will hear argument today case fifteen six seventy four of the united states versus texas and all generally mr chief justice in may please the court the secretary of homeland security has decided to defer removal of the class of aliens who  parents of u s citizens and l p r said lived in the country continuously since two thousand and ten have not committed crimes that policy is lawful and respondents conceded is lawful it is fully justified by the fundamental reality that the h s has resources only to remove a fraction of the unlawful aliens the aliens presently on our own present unlawful in the way in the country now this class of aliens is a lowest priority and there is a pressing humanitarian concern in avoiding the breakup of families that contain u s citizen children the principal a low priority for removal and it's an official notification to you of that the situation and responders have conceded that we have a lawful authority to do both things and make that judgment and to give an identification card in general  it would make logical progression if you began with your standing argument for us and i think this does lead right into the standing argument that i think that the principle point of contention between the respondents in the united states is over whether secretary can also authorize these people to work and accrue ancillary benefits and the respondents lack standing to challenge that for three fundamental reasons first there's the injury is not redress of both because even if they achieve the even if they achieve the injunction that they want firing us from providing work authorization ancillary benefits we can for the reason justice ginsburg identified still provide them with the first action and under texas law they still qualify for a license under the first action so there's no redress ability second they have not alleged a concrete particularized injury because the costs that they claim now to be an injury are actually the expected and desired result of the policy that exists in current texas law now but if they change that policy to avoid the injury that they allege in other words if they did not confer i offer driver's licenses to those who are lawfully present because of your policy and voided that injury you would sue them wouldn't you i'm not sure at all that we would see them it depends on what they did but the fundamental don't know what they did i'm hypothesizing is that they offered driver's license to everyone but not those who he were here under you or under dapper under your proposal chief justice the key word in your question is hypothesize and that's the point seems to me they have not made that change in their law what they want because they have what seems to me a perfectly legitimate policy is they want driver's license to be available to people who are lawfully present here and if you know the federal government say will do these people are lawfully present that means they have to give driver's license to however many of them bore than half a million people who would be potentially eligible for them and as i understand from your brief your answer is well just don't give them driver's licenses the current policy is not as your honor describes it the current policy reflected in the existing law and regulation is quite different and that's the point they will give a driver's license now to any category of person who has a document from the federal government not only saying you're lawfully present but that you're officially were officially tolerating your presence there are vast numbers of people under existing texas law that are eligible for a license even though they are not lawfully present for example the people who received deferred action for based on childhood arrivals but beyond that for will not issue licenses to this class i think the point it seems to me that the federal government could say this is not for you to say that's correct we we could and we probably would but the point is they haven't done it and so in order to stab at some point of this isn't it they i don't want to give driver's licenses to beneficiaries of dappy well i think unless you can tell us that there is some way that they could achieve that then i don't see how there is not injury in fact disagree with that justice alito and what texas going with which part of it but i think all of it takes texas law and policy now does not express that judgment you look to their law to tell you what their policy is now and what this also is now general when you say that i'm looking at their law and their law says that they will give licenses to persons granted to further action on the basis of immigration documentation received with an alien number and from the government so that's what you're saying they've already made that the chairman a nation that they'll give that licenses subpoena struggles with out of murder that's one thing i'm saying is quite important but it even goes beyond that they're not because they want to do that is there anything wrong with their policy saying if you're lawfully present you want to have a driver's license by i guess mr chief justice what i'm trying to get across is that the policy as it's written down which is it seems to me has to be taken as the authoritative statement texas policy is not just that they want to give licenses to people or lawfully present they give licenses to numerous categories of people who under the substantive theory of law that they are advancing now would not be eligible ok so what your argument is then they should take these people out of eligibility to go my argument is we've we're going to give driver's license to people subject to deferred action and you're saying ok that's your injury you can take that away and i just think that's a real catch twenty two if you're injured you have standing but you're not injured because you can change your policy and not give driver's license to these people and i would suggest that i think you would want you would sue them instantly if they said people here lawfully present under the federal authority are being discriminated against preemption argument the government makes on a regular basis and if you don't the interveners will sue them they've already said that they think that's illegal the fundamental problem mr chief justice is with that theory is that it requires this court essentially issue an advisory opinion about whether this new law out there is would in fact be preempted after all we might think it's preempted but it's up to the judiciary ultimately to decide whether it's preempted so in order for that injury to occur they would the law would have t it's preempted in the normal way so you're saying they would not have injury because they can do this and you might lose the suit that's correct i mean it's hypothetical at this point whether or not i don't understand why you wouldn't lose the suit i mean section sixteen twenty one says states aren't required to give state benefits to nine in a fight and lance including deferred action recipients i guess i don't really understand what the basis of the preemption suit would be given that section you know justice kagan i'd like to be able to agree with you about that we don't think sixteen twenty one actually applies to driver's licenses and depending on what they did we might or might not think the laws preempted but until they actually take that step which would be a significant change from texas law as it now exists there really are asking you for an advisory opinion about whether the thing they want to do would be preempted i mean if you think about it this way saying that they have inflicted this injury on themselves because they have options and one of the options and i assume one that they would like to pursue is to deny driver's licenses to the beneficiaries of data and if you are going to make the argument that they lack standing because they have a viable legal option i think you have to tell us whether in the deal of the united states it would be lawful for them to do that so what i would and i think she just asked you that question before and you didn't get a chance to answer maybe you could answer it now would depend on what they did and why they did it but it seems to me it's fundamental that they have to do it that i mean think about it this this new law that said we're going to give licenses to everybody we're giving them to now there's article three standing for declaratory relief all the time you say this course of action is being compelled me i want to declare victory of suit that says that is boyd and i think that gets to the point that gets to the point justice kennedy right now tomorrow today instead of suing us they had come into court and said we want to declare a tory judgment we are thinking about in light of this change in federal law we're thinking about changing our state law to a different law and we wanted to clear to a judgment that if we do so it won't be preempted i think you would so that case out in a nanosecond as hypothetical and that is this case that is precisely the situation we are in right now you have to render a judgment on that issue to decide whether they have injury in really or is it enough is it enough that they would have to be put through litigation in order to escape the policy you say well they can just not do this and i think it's you won't dispute i think that they will be put through litigation if they do take i don't think that could be enough mr chief justice because you could have said that in pennsylvania versus new jersey or in any number of cases that they may have to incur some costs but with respect to how it's going to from the friday if i own say a parcel of land and it's subject to some government regulatory program that i think is a taking under under existing law why why isn't the answer when you should go buy some other land that's not subject to it you can avoid the injury by your own action the difference seems to me that's what you're saying here texas says our injury is we have to get driver's license here and that costs money and your answer is well maybe you don't have to give driver's license go change the policy just a difference between you know in your state in your proposed hypotheticals you chief justice that's a direct action against a landowner by the government in this case we're not acting directly against texas we're regulating individual allianz and there's an indirect and incidental effect on texas and that gets to it seems to me the deeper and broader point of informants here which is that if you're going to recognize and it would be the first time i think in in our history we're going to recognize that kind of incidental indirect effect as a basis for allowing one government to sue another another and this really no limit on the kinds of mr general in the normal course of things let's assume that texas decides tomorrow to change its law and it says now contrary to what the its law says right at this moment that it's not going to give licenses to  immigrants with deferred action presumably the immigrant who wants a license would sue the state correct precisely and make either an equal protection or any number preemption argument whatever  the stake it then defend that action correct force and it could raise legitimately while standing to raise any defense in law correct yes it could then say that is illegal just teed up in front of you when it is an important issue but you know the point is that the legitimacy of the citing issues of the support has come from deciding in the context of a concrete case or controversy and you don't have that here your argument is this do i have the school right imagine a federal statute every state must give a driver's license to a member of the federal armed forces  we are transferring one quarter of a million soldiers to rhode island rhode island thinks the first statute is unconstitutional and it also thinks that the second statute for some technical reason is a lawful we're only talking about standing in that circumstance does road i mean this is totally analogous i'm saying i'm trying to say there is a law but you say it's vague i'm imagining it's they are that says texas you have to give a driver's license to certain people and then there's a second law which says we are sending you one million of those people all i want to know is ken texas under those circumstances your argument is we don't know if that's true here or not but under the ones i  is there standing i mean your opinion texas would say the first law is wrong unconstitutional for some reason the second is wrong because it technically failed for some reason do they have standing to say that the did have  to have to carry out my answer because i think if the second law is an immigration law that says we're going to make it an immigration policy judgment that's going to result in additional people being in the state and i don't think they would have standing but the fundamental point i think of importance here is that the premise that the first of the first law that there were acquired to give driver's licenses is not present here then i have no doubt it isn't present here i asked  five what it is i'm supposed to say if i and i you might you answer that i want to know you why i think the premise is different i did try to answer you and then try to tell you why i think the premise is different but i but i do think and i think this is a you know there's a sort of a shoe on the other foot issue here if you really think that a state can sue the federal government based on these kinds of indirect incidental effects and it seems to me you would have to also say that if a state decided for example that it wasn't going to enforce its minimum wage law anymore and as a result the federal government had to increase its enforcement cost for federal minimum wage laws in that state at the federal government would then have standing to go into state court and say that the state is violating state law i don't think anybody would think that's a valid claim but that's just the flip side of this kind of a claim i think is that the injury here anymore in direct and speculative than the injury in massachusetts i can get even yes i think definitely mr chief justice i mean that was obviously a closely divided court in that case but with respect to the majority opinion it seems to me there are two fundamental differences at least two fundamental differences one is what the court said is that under the under the clean air act that congress had charged the e p a with protecting states and others from the effects air pollution and then given a specific cause of action to the people whose protection it was charged with the sewage p p a wasn't doing its job and that and i think this is a page five twenty of the opinion the court said was indispensable was critical to the finding that states got special solicitude and were allowed to sue in a manner where under article three they normally wouldn't be able to sue and i mean addition and in addition i do think that you have is you do have a quite different situation in that there was no way for massachusetts to avoid the effects of power which was complaining and there is a way here so so there is a difference and maybe i could at this point ask you to switch so i'm just going to ask whether i could thank you bob so i think it's important again to frame where we are on the merits agree that that judgments on reviewable what we disagree about is whether principally whether we also have the authority to authorize them to work and to accrue some ancillary benefits based on that work before you get there can i ask you a question about the scope of your argument priority is for removal everybody i mean i just had ministries of you mean by the executive branch for act yes but so that somehow binds the executive branch now the fact that i mean this hasn't been approved by the executive branch prior to this point either and yet it's a fairly  department let me wide eyed i don't i wouldn't agree with that premise mr chief justice well let me walk through it so it's got to be the lowest priority it's there are the regulations going back decades of talk about work authorization related the people at the first action say that there's got to be a tie to a statutory policy that the secretary has the authority to implement such things as foreign relations humanitarian concerns or keeping our family unity when one family member or if it were more is a u s citizen so  you've got a grounded you they've got to be lowest priority it's got to be grounded in this policy concerns and then there are number of the cheater is the chief is going more fundamentally general those are the parameters that the executive has set for itself and now he's asking what keeps you from changing those parameters in the future and simply saying i have under your theory of the case i have discretion to defer action on everybody's got a couple that says question a couple of things about that one is there are statutory constraints that exist now for example congress has told the h s that it has to prioritize the removal of criminal aliens in l a and detained at the border there's no way we could give the f action to those populations consistent with ok so not not criminals who else not aliens detain at the border ok to see that's going to those are the two criminals to me it would follow from that that people who are recently arrived in the recently made it into the country and they aren't that pain at the border we couldn't give the free action to them either because it seems to me that would undermine the policy judgment of trying to max a so you have to everyone who's been here for two years and then and then there are specific statutory provisions that cover some categories of aliens like people with asylum so then do a whole host of things that info's manageable limits and i think if you know if if the court were to conclude that there is standing obviously we don't think there is but what we can answer just so i poly the so the categories you say would have to be excluded are criminals people detained at the border and people who have been granted asylum and other than that the president could grant preferred removal to everyone everyone here know i'm not saying then you've got a grounding affirmative policy  did with the chief justice hypothesised i suppose the president said you know there was a time when we had open borders in the united states and i think that's the right policy so we're just not going to remove anybody who could challenge that while we obviously were doing more or less the opposite now in terms of what would i understand it's a hypothetical question could anybody in your view challenge that you know i think yes i think that would be challengeable under the you know the footnote in heckler  cheney that says if you just decide that you're not going to enforce the law at all then there may well be a cause of action to challenge it there and but that's not that's a million miles from where we are now and i think the key point is the house well that's a quarter million people from where we are now that well you know that's a big number in right just and kind of it and that's the whole point is that you talk about discretion here what we're doing is defining the limits of discretion and it seems to me that is a legislative not an executive act so all of the cases that the briefs go on for pages to the effect that the president has admitted to certain number of people and then congress approves it that seems to me to have it backwards it's as if the president is setting the policy and the congress is executing it that's just upside down i don't i don't think it's upside down i think it's different and it's different in recognition of the of the unique nature of immigration policy  authorization the earned income tax credit the social search security benefits the medicare benefits so that as i understand it and i think this is your point you made the other side is not disputing the fact that you have authority to exercise discretion correct and that i think is the answer to that i was going to give to your question justice kennedy and it seems to me with respect to this that chris a general before you go on just to make sure we have we're on the same page you only deport four hundred thousand  million forgive me yes it's so we have resources really have been precisely right ten million nine hundred thousand people that cannot be deported because there's not enough resources correct that's cool so they're here whether we want them or not and the key point is that we have always had a policy that says when you have when your presence is going to be officially tolerated you're not here you're violating the immigration laws by being here you don't have any rights but your presence is going to be officially tolerated when you're in that circumstance we allow you to work because it makes sense to allow you to work because otherwise you're going to be here and otherwise if you can't work lawfully you're going to either not be able to support yourself and be forced into the underground economy we feel i have to ask you about two pages in your reply brief on page sixteen you quote the guidance that says the individuals covered are lawfully present in the united states and less than a page later you say with deferred action are present in writing it is because that phrase lawful presence it's cost a terrible amount of confusion in this case i realize that but the reality is it means that if it means something different to people in the immigration world what it means in the immigration world is not that you have a legal right to be in the united states that your status is changed in any way that you have any defense to remove it doesn't mean any of those things and it never has and so it doesn't and so at that fundamental level we're not trying to change anybody's legal status on the lawfully work in the united states isn't that correct that's right and how is it possible to lawfully work in the united states without wrathfully being in the united states there are millions of people millions of people other than that that recipients about whom this is true right now in this gets to the point of why their reading of section thirteen twenty four is completely wrong i'm just talking about the english language i just don't understand it how can you be how can you how can it be rational to work you know but not my full to be here it's let me just go through the reality here and i know give you some sense of just how disruptive a ruling would be to accept their theory on who can lawfully work in the united states right now since two thousand and eight one category people get work authorization or people applying for adjustment of status we've given out three point five million of those for that category of people since two thousand and eight and in the decades before it was hundreds of thousands of people the year they are not lawfully present in the united states on the theory of having in the sense of having lawful status people who've applied for cancellation of removal those are people in removal proceedings now since two thousand and eight we've given out three hundred twenty five thousand of those are statutory categories are they not they're not no there's no statutory authority to do either one of two things either to say that they're lawfully present the united states has no authority for that and this is the key thing for their work authorization argument there is no statutory authority to grant work authorization to those categories of people in those other can't in those other categories did you say that those people were lawfully present in the united states no but you said that here but the diff but the key point is that their argument about why we can't give work authorization is a statutory argument they say that it's   that that ins promulgated which considered that very question of whether passage of that statute restricted ainus to giving out work authorization only to people who are in category specifically identified in the statute ainus rejected that is implausible inconsistent with the theory that's been on the books for thirty years since the chevron deference and then the third point is place i'm sorry thirty points the consequences point this argument they're making says you know if you if you go through the reg that's in the petition appendix that lists all the different categories people get work authorization their reading of thirteen twenty four knocks out like fifteen or sixteen of those categories it just does it's not that doesn't just you think up a way of attacking that nine hundred eighty six regulation salute lee they could petition for thinks it's a problem and wants to put a red pencil through it it's totally it's totally fine and really it does it i understand the issues that it's caused but it's legal significance as a chemical legal significance with respect to eligibility for so security benefits and for this tolling provision and that really you know those that's the tail of the dog in the flea on the and you were asked about an a p a action if they brought an a p a action would they be entitled at least to ask for a policeman or injunction while the  notice and comment proceed procedure was i don't know many of you know forgive me just kind of i haven't thought about that i have my doubts that they would be entitled to get a preliminary injunction of those circumstances it really they would if they would have standing to object if the rulemaking the president announced back on the predecessor provision he said that if he broadened it this is a quote that essentially i would be ignoring the law in a way that i think would be very difficult to defend legally what was he talking about so i think t those two possible things one is what docket does is what dr does which is provide tolerated presence and the essential or the ability to work if he had said i'm actually going to give these people lawful permanent resident status or legal status that would be going further or say or say they were lawfully present and sit and say well but but as i said i you know i really think that and then and then second the other thing is you know maybe he thought it there that you couldn't extend it at that time to adopt what you know what happened here is that the president and the secretary went to the office of legal counsel and asked for an opinion about the scope of their authority to exercise to the scope of this discretionary authority and that not one and they exercise challenge showdown you know no right and which as a legal matter it is no different if i might reserve the balance of my time thank you thank you general is science mr chief justice may it please the court the jane doe three texas mothers of u s citizen children seek the opportunity to apply for discretionary temporary and revocable relief from the daily fear that they will be separated from their families and detained or a mood from their homes under the courage non uniform and frequently arbitrary federal immigration enforcement system which fails to provide any reliable opportunity to be identified as low priority for their own state of texas through this suit has blocked the guidance that would secure the jane doe's an opportunity to step forward register and apply and obtain a timely decision with respect to texas does so based on asserted indirect and speculative budgetary injury that contradicts the state's own legislative decision after balancing our policy considerations to subsidize and encourage the acquisition of driver's licenses with no annual or cumulative limit on subsidies in that form do you think it would be illegal if texas adopted a policy saying everyone lawfully present in texas except people subject to napa get a driver's license i think it would be in candor subject to a challenge that would revolve around the circumstances and the reasoning behind that new legislation it's important of course to know that texas has not done that and there's no indication that its legislative process would result in determining that its previous decision that subsidize licenses makes sense without limit has sound and point the circumstance that you've describe where it's pacifically targets one set of deferred action recipients would certainly raise questions it would be reasonable if they just said but let's take it out of that if they just said you know something there's too many deferred action people don't matter why go to for political refugee we the the people waiting for a different status we're just going to do it for everybody in that circumstance i think it too would be subject to challenge it would be a different challenge because the circumstances and the reasoning would be different there would be equal protection claims there might be preemption claims and those would be resolved in the kind of concrete clash of real  court has indicated article three supports you would have the state of texas defending the decision it has made to change its law and to keep that law in place and you would have agreed that individuals who would have been denied a driver's license because of that change not every state grants licenses to deferred action that's correct in this case that would arise in the context of a change which could raise equal protection concerns to be resolved in the kind of concrete clash of interest this court has indicated are behind article three i think it's important to note that not only has texas not changed its policy i take it from the way you phrase in this that you actually think that the equal protection concerns would be more serious than the preemption concerns i think it depends on the circumstances of how texas is to make its decision all the more reason to wait until it's actually made a decision through a legislative process where there would be a record of why the legislators chose to change from a policy that currently provide licenses to anyone who can demonstrate that there are thrice to be in the united states something that would leave some folks in that category out if they would decide the tolerated presence is not authorization for example we would have a record of why they made that decision course we we are not there yet because texas has not made a decision to change what its current policy is and there is no indication that the in the record we drove more familiar with than i and i doubt the other side the same question i've read in the briefs quite a lot that the reason that they don't want to give driver's licenses to these five hundred thousand extra people who spend six yes i is there any other reason it's in this record such as we could imagine other reasons is there any serious effort to rest their claim we don't want to give them licenses one anything other than money yes  that governor abbott has indicated in the record here yes it's in the record here i believe your honor that in fact this is a political dispute they do not agree with the policy adopted by the administration though they have conceded in this case that it is within the executive discretionary authority you're talking about in general i'm focusing on the narrow question of how texas is hurt specifically not a political disagree how are they specifically hurt by giving these people drivers licenses are they under way is it costs the money are there other way it's no your honor that's the only thing that you put forward in one dollar of their answer to and in fact that it shows that they believe they would face additional expenses so there's not really enough to conclude that it would change the state's previous determination taking into account those costs from every subsidise license isn't losing money the classic case for standing is a classic case where private individual your honor but here we're talking about a state that has made a decision as states often do to spend money by subsidizing licenses because it's a balanced other considerations and  massachusetts against e p a that we have a special solicitude for the claims of the states yes and in that case it was not a financial claim as you know your honor it was a claim related to the state's kweisi sovereign interest over land in addition as general really has indicated there was a procedural right within the clean air act it does not exist here indeed if a procedural right were to be established under the a p a itself there is no limit to the number of states that come come forward to challenge any domestic policy of any kind by this or any future administration if an employer took the position that the employer was not going to hire a dapper beneficiary because the employer believes that they are not they are not lawfully authorized to work with the press would prefer someone else over them could that person sue on any theory of discrimination for example under section one thousand nine hundred one they could your honor and the outcome of that case i think has not been clearly established by precedent so far but it would be a clash between folks with concrete interests an employer who wants to hire someone not the individual you are and that's true then that gives them a legal right it's more than just putting and gives them a legal right they did not have before it gives them the right to work with authorisation certainly however i also need to go back to standing and point out that work authorization has nothing whatsoever to do with driver's licenses in texas where the test it is something to be litigated in fact to be in all candor we have litigated to a settlement so there were no established precedent to make it clear one way or the other really you believe they do have the right they do have work authorization and that certainly means that they ought not be subject to unreasonable discriminatory bases for denying their work it's different from when they don't have work authorization but going back to work authorization it has no relationship to the driver's licenses in fact they could receive licenses without ever applying or receiving work authorization there is no connection between the two therefore any concerns about work authorization would not read death progress the injury behind standing of the state of waiting case a few terms ago the court upheld an arizona statute that imposed pretty severe civil penalties on an employer who employed individuals who were not authorized to work i assume that you believe that dapple would provide a legal defense to that i believe there would be a defense before that because the whiting case involved a requirement to use either if i system under the verify system those who work authorized whether through deferred action or otherwise should come back as authorized workers so i think the state of arizona which premise state statute in part to receive this court's blessing of that statute on relying on federal decision makers would not be a position to engage in what you  basically the state of texas has conceded the deferred action determination and seems to be focusing on work authorization but that work authorization has absolutely no relationship to the alleged injury of drivers licenses i see my time is up  general clark thank you mr chief justice and may it please the court stoppers an unprecedented on lawful assertion of executive power stop would be one of the largest changes in immigration policy in our nation's history you see that i mean we have the fairness act that happens in one thousand nine hundred ninety it granted basically the same thing deferred action and work authorization so one point five million people out of four million that was a forty percent of the immigrant population of the time was affected here the best estimate is that only thirty five percent or so at least once before the president has taken action that has a greater percentage affect the now so why is it the largest says that the number of people what the family fairness program first of all was done pursuant to statutory authority was a voluntary departure program it was not an extra statutory deferred action program also we only forty seven thousand people actually got relief some later point after the election or whenever congress can step in and do what it wants to do but just sort of more think that's backwards i think congress has to grant the statutory authority first for the executive to be able to act and to do s on a question that's of this deep economic significance it would have to do so expressly you know you keep saying that deep economic significance those nearly live in million unauthorized aliens are here in the shadows they're affecting the economy whether we want to learn not the answer is if congress really wanted not to have an economic impact it would it would a lot the amount of money necessary to to be people in the country that are on lawfully present and yet congress hope forward those barriers to work and to benefits precisely to determine lawful immigration what the executive is trying to do here is flout that determination except that the federal ban on the employment of an author and ailing and the regulation permitting the attorney general to get work authorization to defer action individuals has stood since that time but when that regulation was passed in  the executive said that the number covered by that regulation was so small as quote to be not worth recording statistically unquote and quote the impact on the labor market is minimal unquote so regardless of what congress may have acquiesced to afterwards that regulation is always been known as being for a small class of individuals for it is an open mind to a large class it was applied to a large class of nine hundred ninety but that one point five million out of four million forty percent of the illegal statutory authority congress responded in one thousand nine hundred six by capping it at one hundred twenty days in the executive acknowledged that when congress did that it could no longer authorize employment under that voluntary departure program exactly but here with the first action when they've only the quoting right now and those programs would have been under temporary protected status humanitarian parole preferred and forced departure which is justified and has been at least under the president's article two power and there's no suggestion of that here is unprecedented because this conceded the legality of tap taken out the work authorization and the social security benefits is that correct you know i'll be very clear when the executive is forbearing for remov on a case by case basis that is what this court in reno noted was deferred action in force and discretion when the executive is transforming unlawful presence into lawful presence and granting eligibility for work me make sure i understand that you're saying that the government could do this case by case one by one with respect to all the people in the class but that the government cannot identify the entire class and say  from enforcement is that correct well that would be a harder tougher case i do believe that they could do it class based if they were simply forbearing for removal if so that's what i asked originally if they were simply for and there was not work authorization attached to it and there was not social security or any other benefits attached to it or you can see it in that in this case given that they are removing  security but if that meant that one by one but to give everyone who fits into this category a client that says no the government is part of its enforcement discretion could do that but that's very different than what they're doing here where they're granting lawful presence and that matters because that's why we have to grant driver's license that's where they get general or you just referring to that single phrase in the adapter memorandum is that what you're referring to because general verrilli of course says you could strike that phrase today if you wanted to that that phrase really has no legal consequence whatsoever that all the stock you meant does is do exactly what you said which is to  grant forbearance to tell people we aren't you are not armed force one priority we are not going to deport you until we say otherwise which we can tomorrow too that lawful presence phrase is key because that's the first time in a deferred action program the executives take in that position of but even if that phrase were struck that would still not cure the defect in the reason is because what the executive is doing when they're granting deferred action is they are affirmatively granting a status and we know that from their own benefits regulations which say this is eight c f r one point three sub a says lawfully present qualifies if you're into first action status and then said he says well just because we're forbearing from removal that doesn't necessarily mean that you're lawfully present and so what is going on here is a transformation of deferred action from what this court recognized in reno to something far more than forbearance for removal it is granting a status and that status then entails certain things beyond even medicare and social security payments is available i really did want to know just take out the work with the recession take out the social security and take out that phrase can they can the government say to all of these and justice kagan they can do that and they can do that under the unchallenged prioritization of what they can do and say it's deferred action that grants a status under the benefits regulation i think that's just a label can they do that it is a label but it's a label that congress my hypothetical is i mean you're suggesting that the label has some legal consequence and my hypothetical is we just say to these however many million people it is you will not be deported and must we change our minds and they do that if that's all they were doing yes but as soon as they wink it even though it's many millions of people they could do that and they can do it all at once yes as long as they're not abdicating and here we are not challenging the on the if that's right then it seems to me your real gripe here and you might maybe it's real quite your real gripe here is to the work authorization piece in to benefits pieces is that right in the granting and they're treating it as also allowing advance parole which we now know apparently some doctor recipients have gotten green cards and a path to citizenship then it seems to me general countered that your that what you should be attacking is not what you should be attacking is the work authorization regulations that the d h s s or for that the i a e a has had for thirty years or you should be attacking other connections that d h has is making i'll quote from it deferred action means that for a specified period of time an individual is permitted to be lawfully present in the united states now the executive wants to take the position that that has no legal consequence of course you will see a memo it j seventy six and this has been misquoted in their reply brief said that what's going on with tolerated presents is it is the fourth actually  toleration of an alien's continued unlawful presence now if it's continued unlawful presence they're not authorized to be in the country we don't have to issue driver's license they can't get deferred action and gun sorry they can't get medicare social security gun possession some context to how this works we have to rely on the federal government's immigration classifications and we should terminate whether someone's eligible for a driver's license we run that through the federal save background system so we ask the federal government is this individual authorized to be in the country they say yes or no but the government also says you don't have to do that or maybe you don't have to do that and maybe maybe not they won't sue you but why don't you go ahead and not give them driver's license well i think as your honor it's just said before that we are in a catch twenty two here either we have to not incur millions of dollars of financial harm with that which is a quintessential articles for injury or we have to change our law and somehow we have to come up with a different background check system we wouldn't have a uniform policy i'm sorry how does somebody get a license in sex then i know how to do it in new york and washington because i lived in both places but i don't know how to do that in texas do you go up and you do what you would go to a department of motor vehicles you would show the documentation showing who you are and that you're eligible for a license now in the context of aliens and this is a j three seventy seven three eighty two outlining the process then the state verif sometimes people wait the entire day and i know that they leave the next day when they haven't gotten to them and they keep coming back it's not an ideal situation and most states to avoid the frustration do ramp up but many states still people just keep coming back until their license can be processed so why is it that you have to spend all this money why can't you just happy a regular process in which people wait on line well the first of all under the federal real idea act if our states driver's license recipients want to be able to use that license to get through airport security is c s a security there has to be integrity in the license for the federal government and so we have to check whether an alien is actually i'm just saying why do you have to ramp up this being one of the allegations i because a there's already a a built in profit from profiting licenses of twenty five dollars that you really don't know if you have to add all this person now because every f five million people are not going to walk into d m v in one day and that the numbers are going to be much less no matter what because not everybody not all five million are going to want licenses to start with so the question i have is why do you have to ramp up why can't you just let people wait on line so this is a j three seventy seventy three eighty two and the reason is because there's going to be a spike in the applicants for driver's licenses and they're much more to do than simply granting a license they would have to be your processing of paperwork making other determinations about any event that you buy that in the speech you do it in meaning i got a temporary little piece of paper when i was there and it took weeks for me to get the regular license while the motor vehicle bureau did what it was going to do is faster as slow as it wanted to do it well and here we have a fact finding that we would incur these cost neither parties and my friends on the other side of said that this  to give you a standing just on the basis of you saying i'm going to do this with it makes no sense we have a fact finding here they have not allege it's clear air we also have declarations in from wisconsin indiana that have not been challenge the bottom line is if we're going to issue a drivers license it's going to cost more money you have to say this morning and i would like to ask a question the only thing i've found here is about money really if there's something else that's worrying you it's it's sort of hidden that money is money i understand that and my question is about  stand and this is technical but it's important to me looking at the briefs off a lot of briefs senators both sides of a lot grief from states both sides members of congress why because this has tremendous political violence keep that in mind now keeping that in mind let's go back to two cases which are scarcely mentioned but on supreme court cases never die unless luckily they're over route and if you happen if there are submerged like icebergs the one i'm thinking of is frothingham be mellow massachusetts the melon and there in those cases the federal government had given something to some people there were beneficiaries all of the people wanted to sue me because they said that means we're going to have to pay more money and the court said you would have people from massachusetts i'm sorry massachusetts lost but lo and behold it did that's just because i'm from massachusetts now but the but the point is they lost because says the court we can't let you just sit on the basis but you know as a taxpayer we'll have to spend more money because if we do taxpayers all over the country will be suing in all kinds of cases many of which will involve nothing more than political disagreements of all kinds and before you know it power will be transferred from the president and the congress where power belongs to a group of  and for that reason we say you individuals who will have to pay more money will cannot josue on that basis and as for the state it cannot represent you because this is between the federal government in the citizens they're the ones who have to pay and as far as massachusetts is concerned again bringing up to a case with a one that was their own coastline and that's not money that's the physical territory belonging to massachusetts and of course they have standing to protect that but here i want you think for a second i'm finished you see you see my point and i want to know how you get around that robbing him massachusetts female with it when you give a benefit here cut the taxpayer by a money over there he doesn't have the kind of interest that gives him stand now well sovereign harms you realize would follow a force you are right because if a state cannot soup and its citizens cannot sue to stop the feds from giving somebody a benefit on the ground it will cost the state or the individuals for money surely they cannot sue just by announcing it requires a change in law in general or because it requires hurts our sovereign interest were then every case of political disagreement where states disagree with come before the court well but i think a lot of those cases would be taken care of through causation requirements injury in fact requirements and the sort of interest test for instance the adjusted gross income example in the veterans benefits example that the other side has brought up i think all those cases would be screened out through the zone of interest test here we put forward over a thousand pages of evidence into the preliminary injunction record with over a dozen declarations and in fact findings establish exactly what arizona versus united states which is that the states bear the consequences of illegal immigration and when we can come to court and show a concrete injury and a policy that is causing that injury harm financial that interact leaf loose change in policy would be subject to attack let me give you a prime example ok imagine texas passed a law forbidding its state pension plan from investing in any financial company whatsoever that the federal stability oversight council to clear systematically important too big to fail texas reasonably doesn't want to invest money in companies that if they fail are going to tank the economy now let's say the federal government sets out a policy memorandum that says in our discretion we are not going to declare some insurance firms under a certain size as to big to fail we just don't think we should ok why can't the states sue the federal agency and say the lord mandates that you sell us who's too big to fail i don't think states would be protected by laws governing which banks are too big to fail but states absolutely are protected by immigration laws saying who is lawfully present within our borders and i think so that would be weeded out of the zone of interest test so even if we go we've already said in arizona versus whiting that you can't we absolutely are in this precise way of standing here because as the court recognized in arizona just because the federal government pervasively regulates immigration that doesn't mean that the states don't have a significant interest in who is within their borders we have an easily identifiable sovereign interest on with unfortunate that we tolerated presidents but it's not just an unfortunate slip when they're granting deferred action status under the regulations that is lawful presence so they want you to take out the awful presence from the and pretend lawful presence isn't in there but then when you go into the regulations but then why aren't you challenging the regulations i mean i understand what you're saying that in some sense triggers the regulations but only because the regulations say what they say that your real challenge is not to dot which is the not enforcement part of this the real challenge is to the regulations the fact that non enforcement leads to a certain set of results and yet you're not here challenging those regulations under the a p a for your failure to exhaust your avenues in the agency first but this is we're challenging top we're challenging that memo please go ahead and when we bring forth that suit which only occurred as of november twentieth twenty fourteen just because we're challenging topples granting to for action doesn't mean in the four narrow categories that congress has passed actually allowing for action for widows and widowers that somehow we'd have to also be challenged you think this suppose that instead of doing d h as had decided to go one by one by one and it just you know it sent a notice to each person  you think at that point that the d h s could also say and this will include work authorization because of our preexisting regulations in so far as they were granting lawful presence no work authorization i think at most you look at what has there been congressional acquiescence to this minimal i guess i'm not sure i understood the first part of that because that is just like take out the labels just it notifies a single person you're low priority we're not going to deport you unless we change our minds and by virtue of preexisting regulations you now can work on the books is that legal could could d h just do that i don't think there's statutory authorization there may have been congressional a practice in a very small cases that's bridging lawful c that's interesting because i thought and as you said it's not statutory authorization with respect to that and i thought your entire argument is that they can't do this except for statutory authorization and now you're saying well in some cases they can do it just doesn't say we have multiple organs the first is a statutory argument in our back up argument which is a response of the executives congressional acquiescence argument is that it most congress would have acquiesced to a practice a very small use is that we're bridgehead about this but d h doesn't do it one by one and the d h says it's senseless to do it one by one we should use some categories here's the category you've been here for twenty five years you're entitled to not entitled you can stay unless we change our minds so that's the category smaller category but you know there are some there's a lot of people if it was no previously waffle status or an eminent lawful status there's no way congress  of thousands of people let's say not millions tens of thousands you we won't deport you unless we change our minds and you can work you can feed your families you can do that just as  're saying even with respect to a much smaller policy of the kind that each of us or its predecessor agencies have done literally every year for the last three decades that all of that was ultra virus authorization is justified the executive was telling everyone through the ministry of process that this was for a miniscule number of people that it wouldn't affect the labor market and this also brings to light that here the executive didn't even use notice and comment in promulgating sweeping their theory is that they can grant further action where there's not going to be awful status that no court can review it and they didn't even use notice and comment procedure that is unprecedented is a sweeping assertion is justice jackson s youngstown it is the duty of the court to be last not first to give up the separation of powers thank you general mr chief justice and may it please the court rate years ago the executive asked congress to enact legislation that would have given at the power to authorize most of the people that are living in this country unlawfully to stay work and receive benefits and congress declined now the executive comes before this court with the extraordinary claim that it has had the power to achieve the skews and it was in that of the all that was that part of the package for a pathway to citizenship it was not a pathway to citizenship it was a pathway to lawful presence in the country that would have allowed individuals to have a legal status to remain in this country and congress has not created a legal status for the category of individuals covered by  and why do you think this is a legal status in the way that the bill imagines it is a legal status because under the agency's own regulations it is a status that has consequences and i would point you in particular to c f r one point three this is the statute that defines the term wofully present under that statute if you are in deferred action status you are unlawfully present and eligible for benefits now that statute goes on to say if you are just an individual as to whom d h us has declined to pursue removal proceedings you are not lawfully present so whether you are in deferred action status makes a difference under the agenc own regulations it's that affirmative act of not just forbearing and making the decision not to remove somebody but putting them into deferred action status that triggers the availability of work authorization and the grant of deferred action status where the whatever the executive wants to label that under its own regulations deferred action status is equated with lawful presence so if you cross it out of the doppler memo it's still part of the people cards that say we're not going to enforce a law as to you but that's all not at issue in this case because what the executive wants to do is something much more than that if all they wanted to do was say we're not going to enforce as to you the only member  would have issued is the enforcement priorities double because in order to qualify for da you have to already not be an enforcement priority under the enforcement priorities memory and what the executive wanted to accomplish was something more to say not only are you not an enforcement priority but we want you to be eligible to work and to receive benefits and the way that we do that is by taking this affirmative act of converting you into a status that under our own notice and comment taking too long asking for a preliminary injunction i don't think that's the way that it actually makes sense for this to proceed because there's nothing inherently problematic about a regulation that ties deferred action status to work authorization congress has superseded i don't mean to suggest that that's not a way you could challenge but i don't think it's the way you have to challenge this because to me the real problem is not the linking of deferred action status and work  that's not a power that includes the power to grant deferred action status to individuals who are on on a class based program but if you have then you get an agreement in general because i think he did say on social security where i would say is we would have concerns if this case were challenging just to enforcement priorities memorandum and we would have the same concerns if you had that and invited people in and gave them an enforcement priority car that's not what this case is challenging so ultimately whether the house has concerns about the enforcement priorities memorandum is really beside the point here because what this case is challenging is the doppler memorandum that goes beyond the mere enforcement disc so can we can can we take it break it down sure are you arguing that the executive does not have the power to defer  mere forbearance or putting them into deferred action status we don't believe the executive has the power to put this class of individuals into deferred action status first of all there's plainly no statutory authority to do so but even if you get into the world of their congressional acquiescence theory the types of deferred action status programs that existed in the past are fundamentally different both in kind and in scope from this one before nine hundred ninety seven you didn't even have class based affirmative action programs all of the programs they're talking about pre one thousand nine hundred seven are exercises of different powers powers pursuant to statutes that existed at the time such as the picked up your thought and also coupled it with what the s g said cross out the words that say special status and suppose that we would it work to say look the question is whether texas has standing to complain about simply the change in priorities for action we don't know yet if that affects driver's licenses or could or could affect benefits or we don't but should the administration do so then they might have a case that they could bring challenging aspect of the situation all we're saying is that they do not have the case now given the s g concession or agreement or a desire to strike those words out does that work or not in your op point is that i don't think anything either in texas's view of the case or an overview of the case if it turns on these words lawful presence being in the doppler memorandum because what matters as it says is designed to make it a path for individuals to be eligible for work authorization and without top of their not and it's also a path to make than once they are in deferred action status that is why they are considered lawfully present you're not considered lawfully present just because the executive is not actively pursuing removal proceedings against you again see if it's c f r one point three its pacifically sets the decision not to pursue a removal proceeding does not render you lawfully present so it matters you know the words that were used here and the program that's being created matters it's not enough to have mere forbearance you need this additional step to achieve square situation that he acted illegal no because that program was justified on a different power than the power here it was deferred out that the deferred enforced departure was no  authority for him to do it is a power that the executive has always grounded in article two foreign affairs power in nationality country base concerned power now there is currently a statute on the books the temporary protected status statute that says it is the exclusive authority through which the the executive can grant nationality basis doesn't much of that came after this right and at the time that  happening before nine hundred ninety doesn't tell you very much about what congress has acquiesced and when congress passed a statute in one nine hundred ninety that said these are the circumstances under which you can i appreciate that and it may be what congress does here it may come back and say deferred action is limited in this way but it hasn't yet so assuming that we have a history of deferred action fo categories of people then what you're really arguing about and use and i stopped you got interrupted when you were answering me earlier why are you are you arguing that the nine eighty six regulation which gives the attorney general the right to grant work authorization to individuals from who have been provided to for action are you arguing that some constitution no because there are statutes on the books that say deferred action status also comes with work authorization so of course  that the those people deferred action can be granted under the statute yes or by the attorney general i wonder if you're striking out by the attorney  general i was talking about different statutes not thirteen twenty four age three i was talking about the statutes that actually refer to deferred action and they say that the executive can grant deferred action and work authorization so there's nothing inherently problematic about a regulation implements congress's precise understanding that in the circumstances where the executive is authorized to grant i figured it was something i was not statutorily authorized to suppose is a version of the hypothetical that i gave to general color suppose same kind of question that i gave to general keller suppose that there was a policy but it was of much less significance scope let's say a policy that said if you've been in the united states for thirty years and you have children here we're not going to deport you unless we decide otherwise and you're entitled to work on the books could v h s do that no there is not any congressional authority that allows it and there is no past practice like it  significant no past practice like it and there is not any pets was that family was not a family affair now was voluntary departure there was a statute on the books at the time that permitted extended voluntary departure you no longer can do that there is no past deferred action program that was for a category of individuals that had no path the law so this is important because you're basically saying that d h a skill in forward any administration  cannot have any kind of policy even if it's limited much more limited than this kind of policy is that allows undocumented aliens to work congress has passed a statute that says if you are living in this country without legal authority you cannot work that's congress policy judgment in thirteen twenty four anyway i mean it is i would have may disagree with you you know i understand the point i guess i'm just saying this this would be an enormous change in practice not at all your honor because the past practices there are no and they have not pointed to a single deferred action program that granted it to a class of individuals who had no lawful path to status in this country is minutes generally thank you mr chief justice first on standing i would note that they have no answer to our redress ability point you didn't hear what they didn't have one second even if you think they got over the article three they are advocating here and taxpayer standing and fairness patronised is dead on correct this would invite exactly the same kind of flood of litigation that you have always said article three is designed to prevent and if you want proof of that it already exists texas is already using this theory to sue the united states based on the resettlement of syrian refugees in texas and now i'll just be the beginning now justice alito you raised a couple of points i want to get to with some specifics you asked about whether an employee with a defer discrimination claim and when the employee doesn't that statute says if you're a lawful public resident you do the right actions on the side or you know what i was asking about section one thousand nine hundred one well what but i think that if you have a hard hard time making that claim given that congress has made that kind of a references to lawful presence my friends on the other side of me to a huge deal about this in particular eight c f r one point three which i think they cite you seven or eight times i urge you to go look at it i urge you to in fact read the will making order that went along with it from  first action as lawful presence for the purpose of accruing social security benefits for the reason that if you can work lawfully ought to be able to benefits this does not confer any lawful status under the immigration watch that specifically says that and so we can argue about whether the executive has the authority to consider people with deferred action as lawfully present in that narrow sense we think we're right maybe they're right but that is the pale on the dog if you not i mean if the phrase lawful presence were stricken from the guidance would you take the position that the beneficiaries are not lawfully present for purposes of under certain statutes that use that phrase for the bar for eligibility for for federal benefits it's the only federal benefit is social security you know there are going to say they were wofully present for those to start soetoro regulations that say that they are but we can we can fight about that but that doesn't but that as i said that is the tail on the dog now if i could go to the merits and that repeatedly you've heard that the family fairness policy was pursuant to statutory authorization that's just flat wrong there's a d c circuit case and you can read just someone's opinion in that case that we cited page forty nine in our brief specifically describes it as extra statutory which is what it was now the other key point i think this is really important their theory about the scope of who can get work authorization is that either congress has to specifically say you get we're through authorization or congress has specifically authorized the attorney general now at the h s to get to when to decide whether people in this particular category can get work  forget about the first action there are millions of people who get work authorization under existing laws now the who couldn't get it if that if that were the proper interpretation the law these millions of people are in proceedings for adjustment status to hundreds of thousands of people who are in proceedings for cancellation of removal the hundreds of thousands of people have for well none of those people qualify under their reading the statute that is why in one nine hundred eighty seven one when i know so we're making proceeding about this they rejected it it's completely and totally up in the administration of the immigration laws and frankly it's a reckless suggestion that just and they just