please the court ben mizer for the united states the supreme court and this court have long made clear two things that are critical and dispositive of this case first is that the constitution gives control over immigration policies including over the removal of us to the federal government and second is that no one has an interest in whether someone else is being prosecuted whether it's under the criminal laws or under the immigration laws the district court's decision to standing because they have no judicially cognizable interest as in who is prosecuted under the immigration laws instead congress has given that prosecutorial responsibility to the department of homeland security congress and also one one distinction that has made her the state's attempt to make here is that this is a little different because it's not just the exercise of prosecutorial discretion but that the order or orders that  issues can for benefits correct your honor and there are several things to be said about that the first is that deferred action guidance does not itself confer benefits and in fact it says it confers and benefits i think what texas is most focused on what the district court was most focused on was the employment authorization documents or work authorization which a recipient of deferred action is eligible for in the discretion of the department of homeland security and that is afforded by the books rather than on the off the books working off the books is a third party crime under thirteen twenty four f for an employer to employ an individual who does not have to have work authorization that employers and gays and crime simp giving the deferred action and giving the employment authorization actually reduces crime by reducing to third party employer crime in addition it allows these individuals to be identified by the department of homeland security as extremely low priorities for an individual has a work authorization only receives that in the discretion of the department after they've gone through the necessary background check and biometric check that is part of the deferred action process and the background checks  actually taking place at one of the mickey we mentioned something about that and i'm wondering what does the record say about the background checks and whether their background checks light and whether that matters for any purpose in this lawsuit your honor i don't have a reputation in front of me at the moment other there is the new file declaration in the record among other record citations that say that in fact the background check is very real in fact requires biometrics and those background checks must be done through in order to to to supply the immigration official to satisfy him or herself that the individual is in fact a low priority for removal and in addition these are individuals who what there would be she made a tarion costs  for moving because the top individuals are individuals who have children who are lawful permanent residents or citizens of the united states so that there are real humanitarian costs for removing these particular individuals go back to your first premise the limits to that i'm wondering what limits you recognize to the under review ability sure i think that the court in heckler was not very clear about what there's limits are but i think that if there were to be an example for the criminal aliens that are removable the thirty to thirty five thousand criminal aliens that are released hypothetically would we do with the agency would that be and reviewable if it gave dapple like protections for those individuals your honor i'm not sure how it would be reviewable but it would be unlawful and here is why the the did department of homeland security has appropriations and congress has said in allocating  appropriations that the agency has to prioritize the removal of criminal aliens and national security threats that's exactly what the department is doing and in fact both the prioritization memo issued by the secretary of homeland security and the deferred action guidance are designed to help the whole department of homeland security further that very purpose in addition to the hypothetical it would be unlawful but you're still not sure it would be review a congressional direction are left to the political branches to sort out in addition there is not only article three problem with a challenge to an exercise of prosecutorial discretion but also an a p a problem with review th would be an unlawful action for which no one could challenge is basically what you're telling me well it depends there may be instances in which if you work authorization for example were granted to certain individuals there may be individuals who would be able to challenge  authorizations if they fall within the zone of interest to thirteen twenty four days so for example there is a doctrine called competitor standing in and perhaps of i think you've answered my question ok might be some other people but not states certainly not states in the race i have some follow up then i'm trying to i'm trying to get the limits to the owner of the ability you told me that that the hypo is not necessarily a limit to the unreviewable to if you still think it is pretty much reviewable even though it be unlawful what if what if all of the what if a directive was were given that allowed every single alien in the united states to have to have the same type of dat treatment would that be unlawful and would that be unreviewable your honor if you do it would be by lawful because the department of homeland security had must comply with the appropriations given to it by congress in fact the department of health of course that hypothetical that you propose is nothing like the circumstance that we cited would it be reviewable that and i think that again i would return to the competitor standing standing doctrine as if but not by states states would not be able to have standing in that circumstance if it's every single so far so there's nothing that could be done that would be that would be reviewable so far except perhaps by this competitor standing let's let me ask a different hypo what if dapper conferred been a fit we know that gave voting rights as a benefit but all to all aliens if that was part of it in addition to giving allowing your status to be in the united states and not accruing tolling your illegal presence it would if you gave voting rights would that be reviewable and would that be unconstitutional or i think that there are different individual when it comes to voting rights there's of course the voting rights act and there are individuals who very much fall within th comment if it gave voting rights or would it be just substantively unconstitutional and illegal your honor i think that the if it if the deferred action got itself on its face as part of the guidance  conferred some sort of voting rights and until some sort of varying rates benefit then it would be a very different kind of rule and it would probably constitute a rule within the meaning of the a p a and professionals versus or i think that that would be the it is but possible that those kinds of challenges would lie against such a policy but the difference here is that benefits the texas is complaining about are triggered by the employment authorization document and it is not th threshold question of can courts even review it i've got a couple questions for both in the on the the threshold question of whether courts can review it you're saying the supreme court's a little bit unclear on heckler but it cites adams and the district court here cites adams so that's a situation where brown says must desegregate if executive action just dallies dallies dallies courts can step in and say you're abdicating your duty right this case isn't that because if i think of that there one of four reasons you say yes the i and they says aliens have to go but arizona has said we have a huge amount of discretion foreign policy humanitarian that's one option another one is the i and a says go but we've only been given a certain amount of them so this actually is a deport ability type memo it's getting fugitives into the system so you think well which is it is it all three or none of the above all of the above your honor i think that there are just disability problems under heckler we're going to engage in passive enforcement and we're only going to go after individuals who raise their hand actually repeatedly and then just are recalcitrant in refusing to register for this elective service result of that policy w unfortunate resources to return to the immigration context there's a second example and that is in fact deferred action in the supreme court in american arab anti discrimination committee which is a mouthful so i call it american a i do think of deferred action is sort of deferred prosecution my background so it's a non target or you're getting like the cold memo that's gotten a lot of press even though the controlled substance act says it's a crime to have marijuana we're going to decide programatic lee personal use amounts we would prosecute your position would be that doesn't have to go through notice and comment but the slight difference is here the same policy requires submission of the application for work authorization so do i understand your position to be that anytime there's preexisting law even if the new policy advantages or is a prerequisite to get it that's still the preexisting law sort of trumps so this is what i mean question because there is this important link you call an incentive to getting benefits that's a little different than non prosecution but your honor all of that was true and in reno versus american era when the court was looking at it  consequences are not dispositive of whether or not something is a general statement of policy instead what matters is whether there is discretion in the individual case not to afford that process might not to prosecute or to prosecute and that's the difference is that a deferred prosecution agreement is we promise not to prosecute use and if you don't violate our agreement the difference here is that deferred action is not a promise not to prosecute because it's always discretionary it's always and it's only temporary and so up matter what it is a three year limits what if it said forever but you still taint in your back pocket the right to revoke it at any time your honor i think that the and the temporal limitation i critical to the fact that this is clearly discretionary but i would refer back to the wait case which was not temporarily limited and so i think exercise a prosecutorial discretion do not necessarily have to carry temp limitations but what it said forever it would still be appropriate i think that it would still be appropriate but i recognize that's a hard to answer for meeting so i would lean heavily on the fact that in fact there is discretion in this case it's temporary and i would turn also to judge house opinion for the d c district in they are pio case where judge how did have record evidence it said that in fact discretion is exercised in individual cases  a finding that there is not discretion and that the government's position respectfully is disingenuous about the discretion and that so that based upon both the the nature of the documents being somewhat ambivalent that it has both mandatory language and permissive language in the document itself and then the determination that the just that the government has not been forthcoming and then also the dhaka evidence that has not been rebutted all of those form an actual finding of the district court and it may be that another district court found another way but we still have to deal with the factual findings of this district court only yes and i think that with respect to that finding there was an act error because there's rep evidence in the record at record on appeal forty one forty six to forty one forty nine that demonstrate that in fact that discretion is being exercised in individual cases and i can spell this out a little bit more but this is what it all comes down to right in a way i mean because they just record says character it's been characterized as a case by case but that's pretext it's disingenuous and then he he he he saw the disingenuity that's the word by virtue of the data from the previous program or by and by looking at presidential comments which isn't it relevant to assessing whether the agency was disingenuous and had a pretext therefore really what's going on is a de facto regulation to keep people in the united states why isn't it very relevant to whether that not abdication but that's not before so i'm what you didn't brief and i'm wondering why wouldn't that same fact that this agency is removing more than ever before be relevant to the district's conclusion that he or the agency was acting pretext really in fact instituting a regulation that keeps people absolutely on or i think that that is a critical fact that the department of homeland security is demonstrably engaged and robust in force when at the immigration laws and in removals of individuals who pose the greatest threat to the security of the united states but to return to judge  which was early on in the implementation of twenty twelve daca there are bring forth other evidence in the district court made a finding that the seven it's credible and that evidence is not or did you stand silent on the dhaka the answer is yes there was was disingenuous in the first first matt sure if i could take both pieces of that first with respect to that the district court's finding of credibility i don't think the district or actually maybe i'm missing it in the district court's opinion but i don't think it actually said it is not crediting the neufeld declaration and that declaration did say that there are instances in which individuals are being removed for completely discretionary reasons but what is more what the district court  like to then return to the second half of your question that the united states biggers the objects to the district court's order stating that there was purported misconduct we are of course responding to that misconduct order and to the finding of the apparent finding by the district court but we believe that was unwarranted and incorrect the critical point for purposes of this court's consideration is that neither the district court nor the state of the union fellow who says that oh they're just rubber stamping but then you're pointing to neufeld who says no no there's just question so we just have direct conflicting statements and i didn't see in the record that the district made a credibility finding it either did you see any but we know that there were a large number of applications and in fact that we know there were a huge number of situations where the officer said oh we need more evidence right almost two hundred thousand or so ok but do we know whether the evidence they were asking related to the criteria listed state actors that are before the court one of those day factors the merits of the likelihood or likelihood of success on the merits and the likelihood of our success on the merits with respect to stand in and remove the review ability under the a p a are extraordinarily high the court is supposed to consider the harms of the united states and to the public interest and those are also extraordinarily high to succeed on your likelihood of success on the merits that would be somewhat of a  court not only earth but abused its discretion in entering the injunction no your honor i think that this court case law instructs that if there is a legal error that is the fundamental premise for the entrance of kinds of benefits that they're complaining about and what's abundantly clear is that never before has a court said that the downstream incidental effects of immigration policies are a cognizable harm for purposes of article three in fact texas has been here before texas plight as i understand it at first texas says we want to cooperate federalism we want to help remove illegal aliens and then the supreme court comes down arizona says no you can't at all it's our responsibility then the executive streamline a very substantial program to allow people to stay so texas is saying well now we can't do anything at least let us be heard opposing this very substantial program of actually keeping people here so they're just saying we were in a way i'm thinking zone of interest prudential standing there saying we want to be heard and the notice and comment aspect is different than heckler right isn't that the lesson from lincoln so texas is just saying we've got arguably some voice in whether or not congress was was concerned that too many individuals who were applying for deferred action and not getting it were or were filing these successful big protests as it were and these individuals were able to to bring into court selective enforcement cl that's why the court said in justice scalia's opinion in american air and the congress and acted actually a number of provisions in i think it's in twelve fifty two that limit the review of certain decisions by a which congress said was really that animated purpose of the immigration reforms in one thousand nine hundred six were states ever recognized as the type of party that could bring a claim instead congress said there are even disappointed aliens who are vs joe to this chris decision in texas which says that the states do not get to classify aliens and that winter when states complain about the effects of federal policies related to immigration they don't have standing to bring applicability here sure i think that there are two distinguishing factors that make this case different from massachusetts versus e p a first the opinion by justice stevens and a case made very clear that the court was talking about the territorial effects on the state of massachusetts that nasty yes yes she says that massachusetts is the borders are being affected by global warming and that difference here is that texas is claiming no territorial effect it's talking about some kind of benefits second the court also said that there is a procedural right within that relevance to actually itself the clean air act that gave the state of massachusetts a rights to bring its claim into court under the case about incidental effects is it not yet it conferred stand it did it again because there were both a territorial herm's to massachusetts and the procedural right to review in massachusetts massachusetts also magnitude of the harm doesn't matter as long as there harm to some degree than they have standing to challenge the immigration decision at issue the implication of that argument is pretty breathtaking because let's suppose that i am sorry i s gave immigration released to a class of aliens and gave them parole and we can even use a specific case as an example in in fair versus reno the d c circuit in an opinion by judge williams considered a grant of basically everyone has an interest in immigration law the immigration law enforcement is a generalized interests and so and whether it's an interest group like fair or whether it's a state no one can bring a challenge to an exercise of enforcement discretion by the relevant immigration agency which in this case is the department of homeland security and texas has has identified no principle cases that would distinguish the fair case from their theory and in fact if texas is right and they can challenge an individual decision to grant say asylum status to an individual who resides in texas because if that individual that goes and seeks a driver's license that the texas is harmed in texas  challenge that decision but congress has made abundantly clear that if it did that the decisions with respect to individual grants of enforcement relief under the immigration act are subject to a very limited review and in under the procedural a big point well no your honor because i think heckler is an article i think that heckler informs the article three analysis and so if what we're talking about is an think that there are problems under both article three and and i asked if you know just off the top you're had two cases in totally different sections to one back away at the beginning the narrowly tailored aspect of the stay do you have a case that suggests it's not narrowly tailored is an elementary principle that the second i'm wondering what you think the best case is that deals with the tricky issue that i think that the nub of this case is the pretext case what is the best case coming out of the d c circuit anywhere for pretext in other words language is discretion but data arguably undercuts it shows pretext what's the best case that discusses the interplay when a court can invalidate something as a reg because of data suggesting  still on the d c circuit and that was a case about this question of whether something's a general statement of policy and justice and then judge scalia said two things first he said that if we're trying to determine whether something is a general statement of policy we do look first at what the said and how it is characterized what it said but then we also look at the way that it has actually implement the policy and here as i said before there is record evidence first of all there's the face the guidance and then there's record evidence as supported by judge house finding in the the district of d c we don't thought we don't consider that as part of the evidence re record here to support his proposition we would look for where the you brought forth your evidence to show the docket was different in that there had  and found there then we're stuck with that aren't leave despite whether you'd like us to be or not but your honor even if even assuming that you are stuck with it and we contest that you are th that in which the plaintiffs lack standing because regardless of what judge hanan found with respect to the discretion this is nonetheless the implementation of a federal immigration policy in the states do not have standing to challenge the downstream effects of federal immigration policies and in addition i think that the critical factor is that the texas theory is unfounded and therefore for close by the courts decision in the texas case every other decisions from the supreme court out likelihood to succeed on the merits and it touches on something that i think judge smith was asking you about you haven't brought forth any arguments on the constitutional claims today it's not in your brief but in order for us to overturn to to give you a stay to give the government a stay you personally we would have to find that you were likely to succeed on the merits across the lawsuit not just on the a p a notice and comment provision and you haven't even brought forth arguments that you're entitled to that you would win on the constitutional question so why aren't the merits of the rest of the lawsuit at issue in this determination whether we should stay the get give you a stay your honor i think that the answer to that is that i disagree with the premise which is  and the district court found on run reason that we find some other reason supported in the record i mean you are the one that bears the burden at all times to show your likelihood of success on the merits across the board in order to get the stay that you're seeking don't don't you  that burden it's true your honor and i think that ad that the state factors which again are flexible and not rigid dictate that we have to show likelihood of success on the merits i think the likely are likelihood of success on standing  suffices to wipe out the other standing i would agree with race if you could win standing across the board but if you don't argue constitutional claims and there's constitutional evidence c question abdication is there any court that has ever invalidated non prosecution guidelines on a theory there is not the cubs and factually how could it ever be shown if the same agency that is being said to abdicate is is removing more than any ever wouldn't no your honor i don't think so because as i said their review ability and standing grounds all all take care of that take care claim as it were if we reach the procedural a p a question here's a concern i have if your position is right that this is just a prioritization memo with the government's position be still the same if the next administration came in and said ok we're going to flip the priorities that the most the most efficient aliens to remove are the ones that have already  d themselves and so use this exact program but reverse the parties could they do that under your theory well your honor i think are revealed ability to put aside scanning and review ability and so i think the problem with such an approach would be that it would run contrary to the principles that congress itself has identified for what it once the removal priorities to be but with respect to whether or not texas would have standing to challenge that that slip of priorit the answer is no and what is more i think that that actually demonstrates why we're right on the some on the merits of the professionals and patients arguments about whether this is a general statement of policy because the test in professionals and patien to change his mind he's he's bound some of his subordinates to follow the things that he has said but that's not what professionals the patients is talking about professionals and patients is talking about whether there's a line in the sand in the individuals who fall on one side of the line will never be r he gives affirmative statements that you are entitled to the relief to people that's just you know general what we would say another context puffery but i mean no disrespect president i think that we are and i think i think  that the president's town hall statements which is i think what you're referring to are have to be taken in context and some of those statements were related to the prioritization memo that the secretary issued and then some i think did relate to the dock a doppler issue but at all  view may be that the key to this case in your view what you should if any should we make of the of the supreme court for a special solicitude it's given to the states and in in standing matters i sumit was not accidentally placed in that opinion so what do we do with it i agree that it was presumably not accidental but i also think that it's not clear what the supreme court meant by that but what the court actually held was the two second that there is an actual procedural right to petition for review and that the violation of that under the clean air act and the clean air act procedural violation was critical to bass she said standing in that case a special solicitude language was kind of it was kind of general general language which it seems to me is reasonably read as current conferring some additional standing position as to the for the for the fifty states at least in some cases of and you've reserved your shop plenty of time for a rebuttal if if if there's anything else we interrupt you would watch a question if there are any other points that you would like to make briefly you may do so but you're certainly not required to if there's anything that we interrupted you and you wanted to cover that you didn't know your honor although if if if the court would like me to address judge overrides questions now i'm happy to do so but i can reserve a lot well why don't you go and do that so that the church and the state can difference in that case was that county california actually had by statute an interest in sharing the revenues with i guess it was a tear not for what it whatever agency it was there was an actual revenue sharing provision and so california was in your communications otherwise no your honor i think that the citations that you're invoking are instances in which the department of homeland security is simply said that there are different terms but it has not said to my knowledge that those terms are interchangeable green card and the individuals who have to further action do not get to apply for a green card that it's abundantly clear from the secretary's guide so that's a key distinction status is a right protectable in court presences discretion of the government it's and so yes there are no internal twenty five congress puts out a lot of ways to get a lawful status as congress in any way restricted the discretion of the attorney general or do you just to give presents there are certain benefit because and these are individuals who are by definition that the doctor eligible individuals have been present in the country without lawful status for and without lawful presence for more than five years in the tolling only matters if you bang here  for a lot without lawful presence for more than a year and then you trigger the three to ten year bar so as a practical matter lawful presence doesn't help these individuals because they've already triggered the three to ten year change it's moving a injury that will occur between today and when this already expedited the women are injunction to kill or be resolved in any injury that the executive could show would not outweigh the irreversible harm of changing the status keep them separate because the doctrines well they tend to overlap artistic first is the standing issue is there an article three case or controversy second is is this committed to the agency's discretion  of citizenship or green card status or otherwise it is an affirmative change in the immigration status of our city and that has legal consequences as we pointed out in our stay on the  code triggers benefits based on whether someone has lawful presence you're eligible for social security and medicare the earned income tax credit unemployment insurance those are all benefits that one becomes eligible for by having a lawful presence that's lawful president says distinguish from a lawful status is that right or that the government seems to make that distinction the executive does try to make that distinction in the u s code uses the terms lawful presence although the executive wants to say that legal status which i believe they're referring to citizenship in green card or l p r status is that is something different but regardless of whether a deferred action recipient is not eligible for citizenship or a green card this is still affirmative government action and so this is not under highclere versus change and agencies refusal to take action all of the other deferred action people throughout history that they thought a lot of people who got deferred action also got lawful presence as a matter of right or course i'm not sure that they have jo jo them for under the original doco the tweeds well documented did not say they were going to get lawful presence with doc a f a q's in the record say that they do get lawful presence and also hurricane katrina victims for widows of u s citizens and t n u v's appleton's frequently it has been said that the one nine hundred ninety family fare is program is also a precedent on which doppler could be based on but they were very distinguish features of the first of those voluntary departure voluntary departure would simply say you're available but if you leave the country within a certain set period of time on your own we're going to let you do that there  zero five nine we have an article that shows that only about forty seven thousand people were actually afforded that so docket and dapo are being used on an entirely new scale as a district court found pertinent to our analysis i don't believe the scale is pertinent on the legal doctrines i believe though that informs that what is going on is this would be one of the largest changes in immigration of this case or do we just or do we analyze the standing and the other factors just as they come or is there is separate just disability that we have to do in the  what order either one of those were to be done i'm not sure it would matter we would have to have a satisfying article three case or controversy this would also have to be reviewable under the although the exception of something committed to the agency's discretion by law as overton park and heckler made clear this is a very narrow exception and in fact later the presumption was reversed because there was not any sense yeah actually where there is an agency actually highclere says that action focuses the judicial review and then one can check does this action comport with congressional statues of jumping back to the guy prescience starting the first issue with the with the a p a procedural question i think you're right but i'm not sure i agree that the status presence if you are right that person presents equal status the district court its statement that they were being given legal status in page eighty seven then to me this would begin to look like an amnesty program and it would either be a hacker violation or require no some comment but if you're wrong or the presence is not is the absence of acting against somebody then i don't see that now that becomes very central to me and when i look at the supreme court's decision in reno they say deferred action is a decision for administrative convenience to the government believes someone present and then arizona echoes that and says well of course the federal decade of always has a central feature is to choose to leave why how is it has is there anything in that memo or anything anyone's ever said that that this confers a right in alien can be used to stop removal in other words i see it sort of like the or like even an anon prosecution agreement you say to someone you know behave well we could still prosecute you right now you can be present out there work or tax you you work we don't have to pay to apprehend and detain you parent your u think those are different than prosecutorial discretion those are extra incentives but one answer they say is well those incentives are necessary to get them to identify themselves so these are fugitives they are awful people but the first step towards removing them is getting them conduct ok there would be a separate crime so this whole program trying to get them to say here i am and they in turn admit and i'm an awful and unlike say the kolo they don't get a ticking clock with the statute of limitations right all principal federal law you know value threshold all of those actually are giving you a right because if the government doesn't start that prosecution in five years you never can be prosecuted this is i understand there's never an end the government can always come in and say ok we've expended the resources we that jumps on the jump here from for you a little bit did the district court when it said there was inflexibility this is a de facto rule of non removal did it consider that maybe the very high frequency of grants was because aliens what is only about sixty percent are eligible is even applied in other words most times where the acourt will say this is a u k z the government sort of secretly doing a will that will always get one outcome those are situations where the agencies regulating an industry with consequences penalties here we've got a voluntary itself reporting program with not many people even doing it so it's not surprising you have ninety five percent grant not because the government bound itself but because the applicants would not reveal starting point is the policy statement we take the government at its word it's in word some and the word tentative of the case i found helpful would you go i'm sure you know a national mining judge kavanagh's decision he says ok one way you can detect a policy is if with out that policy the government could do exactly what it's doing and when i think about that mentally here that's what they're doing you're disputing they can use the enforcement priority take away this memo they can do individually exactly what they're doing which makes me think this  basis or regulatory basis for all presidents but the method of communication just that they give a letter doesn't mean anything right i'm still just must tell people all the time proceedings are agents just you counter so it's not the method of communication so now we're willing it down to ok it is that link to the work authorization because all that letter seems to actually do since it doesn't allow you to remove them or them block the removal but one thing the letter does do it's a prerequisite it's not one that suddenly requires rulemaking what is the modification from dhaka one to dhaka two because if anything the criteria got more expansive instead of public safety daca that's the big out for them now we've got i inappropriate or if enforcement priority right now is a third one even because the enforcement party member you're not challenging that right point second four corners of it's got very expansive terms so the more they do then it comes down to the the foliage of the of the districts factual conclusion that despite that expansive quite serious statement of discretion the data from the earlier things first of all the d c circuit in general electric appalachian power the clout steel products and us telephone association they all say that when an agency action is binding in practice it's binding in practice then it is a substance of rule that requires notice and common but like telephone those are all affirmative agency programs where they're reaching out regulating the entire public it's not so for poor and those therefore cases where they're going to impose a penalty and they use absolute numbers and levels they don't have expansive criteria it's not self reporting right those are those are narrow absolute numbers where the agency is safe if not this will penalize and they never deviate made our law paralysis our decision process a u s c thirteen twenty four i thought the good congress had given the attorney general discretion to decide about who gets were now the  work authorizations was simply referring to the discretion not to grant the work authorization thirteen twenty four a h three is a definitional section of the executive points to an executive wants to use that definitional section to say that it has carte wants authority to grant a work authorization to any i thought seven twenty four a went through notice or comment that's on the books that the law yes i believe runners referring to the underlying need to see if margaret says with just deferred action you can apply if you show durant's that's right so that's that is brake system law that the regulations for existing but that's just a regulation you still need statutory authority and even this record would have required a notice of it but that's not part of this lawsuit that's or act that you didn't challenge it before doesn't cut one way or the other whether this one would be challenge did what do we do i'm going to take you to a different place i want to figure out what to do with this abdication theory there's seems to be a problem with if abdication is a theory of standing and it seems to be a problem with article three standing with no injury abdication could be a theory about take care on the merits of the unit show which are injurious but if abdication is the standing theory it seems like it would have a problem with article three in massachusetts versus e p a the state of massachusetts or other states came to court and they said the federal government has abdicated its responsibility in massachusetts uses the word abdicated but you're not standing here today saying that without article three injury the state of texas has this right now we have to show in article three injury and i would say when a state sues the federal government for costs that are caused by not enforcing federal law in an area rational statute is preempted state law that that is absolutely a case where there would be an article three injury in fact the novel theory of standing but i believe that alpha male snap and some other cases bear out that in an instance where the executive has rewritten a statute and that statute has preempted state law the fact that the states no longer have the protection of that congressional statute but that itself could be in article three injury putting aside a financial injuries however here we absolutely have a personal stake which is the gist of the standing corey through the cost of that are imposed the driver's license also from the cost of education and health care that will be caused and to be perfectly clear the district court made fact findings that the states would incur costs in education and health care from authorizing aliens and also made the additional fact finding that dump itself would cause additional costs in those rooms now the only reason the district court did not find standing on the basis is that analyzed and offsets in korea that the executive suggested that there could be offsetting economic benefits but first of all that is legally irrelevant and we've cited numerous cases from second third ninth six circuits that you just ask is there a concrete injury this particular eyes then you don't do an accounting exercise as the third circuit put it to determine are there offsetting benefits on your checking for is is there a personal stake in the litigation and second of all the district court specifically noted that any possible offsetting economic benefits were speculative that's  a way for fortunato and so not only do we have standing on the financial injury from driver's license cost but we also have standing based on the additional education and health care costs that doppler will cause the if i can return briefly to the substantive ruling corey we talked about the restricting the agency's discretion there's another aspect of the darpa restricts the agency's discretion and that is in six categories that are very expansive right but don't allow them to stay don't stop removal proceedings if it's inappropriate or if it's against federal interests or if they're in enforcement priority so yeah i agree you've got some mandatory absolute number type criteria but then underneath that you've got these very capacious expansive criteria and when unforced main impact that's regulatory so you're on the heckler we favor review where is this is a we won't enforce anything if these criteria so we flip it and heckler says that's where courts have to be very reluctant to enter so we are still back it is it pretext and then we have facts and and i think opposing counsel agreed we'd give you those for clear error but the facts there was no evidence you're hearing and of course there's no snapshot data of this program so we're inferring from a past program and that's i guess the my difficulties with the discourse reasoning there are several one i don't think he considered the self selection bias is that did you see that in the district's been in other words you would get a high level conformity for grants because said if the court decides that the defendants new declarations create a fact dispute of material consequence to the motion which they do not the correct step would be to hold a second hearing and we ask for an evidentiary hearing at four to one not but course said was the court in oral argument specifically asked for evidence of individuals who didn't mind for reasons other than not meeting the criteria were technical errors or in your filing except for fraud which always disqualify someone from any program the government the executive did not provide that evidence a good new felts attachment say they didn't have they didn't keep the reason so how could they come up with the evidence well with the new field declaration point to  specific instances that it said these are discretionary do not you're just to am i correct that the neufeld it material said we don't have a database for those reasons is that right or wrong i'm not sure about that particular database from what i can tell you is neufeld declaration cited two specific instances that the executive believe that that was a genuinely discretionary denial of daca in fact they were they were for juvenile offenses that were committed that would have rendered someone  eligible for docket it did the neufeld also stated that almost two hundred thousand times officers asked for more evidence how is that not powerful suggestion of some discretion going on they wouldn't asked both sides this question several times do you agree or do not agree that the district court made no discussion of whether or not we have substantial self selection bias did it discuss that or not i don't believe  because the agents feel bound to always keep them here it's because they aren't even applying if they're not going to get it why isn't that a powerful factor because of that you know people that have applied but i thought the statistic was only sixty percent of the other problem is the docket one program was a different program in scope and involve the various much smaller pool i think in other words we're looking at dreamers and those are people that basically have only been in the united states so those people you would think wouldn't hit problems with enforcement priority and with inappropriateness but now we're going to dopamine everybody both sides if we were talking about millions more or less connected it perfectly logical to think they would be refusing more as inappropriate so the pool is different and the programs differ and i think everyone agrees if you put a program one next a program to dhaka one the data relied on by the district court only said if you're a significant misdemeanor that's the priority but now when we get the docket to we have to expansive categories the inappropriateness factor that didn't exist in one all these seem to substantially call for in my mind in doubt the extrapolation going on to say oh well this is all pretext they're really trying to keep people in instead of save money to get the bad people out vs reads from the supreme court would be a case that shows that yes absolutely in a situation like this where you have an agency action that creates eligibility criteria and there it was eligibility criteria for affirmative benefits  procedures were required now there is a language in lincoln that says well in her ways the agency also said in addition to the a p a that it would also bind itself to procedures but reason so for first to notice and common procedures through the were not at issue in any event the courts future substantive rule cases quote we're always for the proposition that when an agency action affects individual rights and obligations that that is a substantive rule that's chrysler corporation versus brown it back just a minute to a helpful questions judge higginson has asked was it was was the self selection issue discussed at all in the district court and say was was not an argument of the government may i don't believe that the executive  i don't believe to try to challenge the docket information the argument was that the examples weren't there to show that there was true discretion being used but he did that didn't say you know it doctor is relevant the executive never said that argument over and been forth been put forth to use it irrelevant because it's a preexisting smaller program and it was all of this made these arguments where all these arguments made there were i don't recall any argument about of discretion and is it likely that the plaintiff states can show standing in review ability and of course when we're back in the trial court we will have the opportunity to put on additional evidence through the process of the trial but the question here is should this program that would significantly change the status quo go into effect in the entire purpose of a preliminary injunction is to preserve this court's ability to issue in the district course ability to issue a meaningful judicial remedy i asked posing counsel assuming that you can establish standing and that there's not some unreviewable ability bar ex ante at the beginning for the district i mean for the opposing counsel to produce their own on the likelihood to succeed on the merits did also need to make some sort of argument about the constitutional arguments  that it doesn't address the constitutional positions but i don't know that you do either and it would seem that if they're good they have to show a likelihood of success on the merits that they should have said and were likely to win on these reasons too but you don't seem to address that they would win on the subset of claims now in this posture we have a footnote in our stay opposition saying just that that we have such a claim as we have an a p a country locksley we have a separation of powers cla were millions i agree the scale is different but i in the so no easy answer to that but it bleeds into and i'm sure both sides i mean that you've prepared enough that that there's a strong legal twist here that's difficult for me the government cites the treatise pierces treatise the administrative law treaties that you get a chance to look at that the only reason i ask that is he cites are cases that both professionals and patients for the concern that you don't want courts to have a rule that the more they are all government executive agents guide and channel their officers the more then the data will suggest it's an inflexible rule and all of a sudden the guideline is invalid the public participation right that's what peer says is a misunderstanding of the binding norm test and creates horrible incentives so to rephrase it if what we're saying here is over we've looked at the data and the government officers are largely adhering to their own criteria therefore guideline invalid so but if the trouble is now we're going to tell every single executive agency every single department go back and review your priority memos because if you have it here do them too often these are no longer executive discretion you better go in the shadows and not put anything in writing they're no longer interaction with congress because now it's the public that's going to be deciding how you prioritize your resources that's a dangerous wolf for us to try to write and i know you're saying this is bigger in this one would be applied but i don't understand whatever they say and then they have the catchall which exist in this one and don't fail to prosecute if there's an important federal interest the government sticks that into principles of federal prosecution sticks it in everywhere and i thought that largely m discretion they if it's a but the pity policy perfect example you probably i don't know i don't have data but you would think it would be nearly a hundred percent conformity whenever the state is prosecute someone and they got a conviction even though the law the supreme court says federal government if it violates your law you can go after him to the department of justice u s trains manual says don't petite policy unless there's an important federal interest so they will all adhere to a two hundred thousand a s a s will always appear to it but under this rule that would suddenly make for this reason if i'm not mistaken at the conclusion of that decision this the district of columbia circuit said you know when we've got a situation and you correctly cited where the data seems to suggest they're always doing something that they in fact say they will only prioritise but the relieving given was remain back to the agency don't invalidate the war and force it into will make ing instead send it back to the agency so the agency can prove that what they said that they truly mean there is discretion am i correct in describing the relief given in the sort of ok why not here ok so this is a very big question in the d c circuit as to whether you've ma would be a great case of going to show how each state can make a choice there or it was selecting the class of tax items coal in a particular tax rate and even though wyoming made it both the selection of the classification and the particular tax rate wyoming still had standing to challenge an agency action that then impacted the amount of coal that they were to be able to receive in tax revenues so similarly here states have chosen the class of individuals eligible for driver's licenses and they've chosen a particular feat in the fact that they have made those decisions doesn't render standing eliminated through self injury d which the pennsylvania was going through your first of all it predated wyoming and wyoming itself didn't address pennsylvania second it would be incompatible with standing doctrine in general three that any choice somehow negates standing as you also have the japan whaling case where the plaintiffs there chose to watch and study whales but that choice didn't negate standing somehow also pennsylvania was a turn on the particular constitutional provisions at issue their states were trying to enforce the privileges and immunities clause in the protection clause and as pennsylvania noted though those provisions protect individuals they don't protect states and so the sovereign interests there were not the same as saying wyoming versus oklahoma or in this case we're talking about the integrity of borders these are lawfully states policies and what they're setting and also it most pennsylvania would stand for the proposition that taxation in one state isn't necessarily inconsistent with taxation in another zone of interest it was i right or wrong i mean it seems to me texas really wants  i mean self inflicted is complicated i don't understand it i've heard your comments and but for read just on the driver's license theory the cost of a driver's license opposing counsel said at the end but that would mean you would claim that texas is standing even from the grant o standing i don't think it's as if any court ever found in an prosecution guideline to be an application under heckler is there any court that ever said th of pretext can we can we say oh this looks a lot more like bright or prioritization and a lot less like amnesty if it's being done by an agency that is showing such alacrity to remove it in other respects is that a fair in press releases in town halls and he is the executive the chief executive but i don't think there is a case ever that says it helps us figure out what a p a box we put agency action in it i don't know of any case that's referred to a president by press statement one or even let's assume something more binding signing statements where presidents say i don't think o enforce this part of the law and that's actually a signing statement i couldn't find a single a p a case absolutely but so that's i mean that's that's my worry about what the rule that seems to be suggested is going to create much more executive or betrayer in this because any time we have conformity to internal rules then those you decide to leave them present present that's the word used in arizona and then reno deferred action is just that it means that you are hope they are you are present we have not commenced removal but we might which are not  bail you can go and you can keep working and then lo and behold the us government gets your tax money and if your kids are u s citizens you parent them we don't have to you know that's the big debate the states are saying that this is actually an economic boom and they're even telling us where they are we're finding the fugitives and this the twenty six point two states absolutely have a personal stake in this lawsuit is not about the wisdom of any particular gratian falls what it's about is whether the execut amnesty in other words according to no one's contending this makes them not removable it's a pathway to citizenship three it contains these are in serious malefactors in other words they're only people that have family members that are citizens or permanent residents and they don't present a public safety so this is not a president can rewrite anything and give people to let people go for i guess we are getting the benefit of fugitives are now telling us where they aren't admitting they're here on the awfully and the last thing i was just thinking about is that not only all that but congress can end of this with a click of the pen no more deferred action or they can do what they did with family fairness and say deferred action hereafter d h s patients category of public safety the government has demonstrated that that public safety great here has been invoked to deny a number of options and then to say well you didn't exercise your discretion when in fact that is a discretion are different from the point of dhaka criteria is the pool did you argue that the pool is different to not just the program but the pool of people much much bigger maybe more inappropriate people i don't think we as i'm not i don't recall if that wa a critical point is that the new criteria that secretary johnson's at the fourth take in a clear six discretionary fighters i mentioned earlier on the question of harms i have yet to hear the state of texas distinguish the immigrants because of the alleged failure of the federal government sufficiently to enforce the immigration laws all of those cases were treated as either not just issues on standing grounds or not just a simple as political question is that these are questions that are best left to the political branches of the federal government with the rule they're urging short circuit that process i know i didn't see that being argued by your brief but but it seems to me this this particular step the second stake in has drawn a lot of attention in congress whether it be defunding or tighten up the restrictions so my question is is there a law that would suggest that we shouldn't intercede courts that sorry state of texas has made a policy choice to subsidize drivers licenses and also has made a policy choice the ones to give driver's licenses to certain aliens and i'm sure they have very good reasons for that policy choice but we knew from and what they borrow from the federal government is employment authorization documents and they've chosen to subsidize i think pennsylvania vs new jersey is directly on point because just as texas here has chosen subsidize drivers licenses their pennsylvania had chosen to get a tax credit to its citizens and what the court said to pennsylvania in that case was you can revoke your tax credit to your own citizens if you choose and then you're no longer harmed as a result of that choice that's available to you you don't have article three standing and i think the same is true here in texas could stop subsidizing driver's licenses and the harm would be a race to now texas might say we shouldn't have to need to be should have to make that choice but the supreme court said in reno versus condon that it is a commonplace for states to have to change their state standards whenever they have borrowed from the federal government federal standards with texas violate equal protection if it did not driver's offered one but one approach might be cheap subsidized to choose federal ilian classifications different from employment authorization documents but instead to say we're going to give driver's licenses individuals who are in the who are aliens who are asylum the legitimate state reason that the federal government would accept i thought the federal government told us in the vilest case for example that anything that effects the day to day life of a folks is would be would be you know under strict scrutiny if it occupies a field of immigration at all then i don't think that that was our position in the bill is case your honor i think instead what the position is is that when a state is operating in a way that affects immigration it has to have a legitimate state interest and i believe texas would probably proffer costs based on their arguments as far as their legitimate status and i think it would yes the distinction here from the arizona case would be that arizona had a bare disagreement with federal immigration policies and with federal immigration classifications it said that was the problem with the justification in arizona but carefully where that's not present in the in the sister state cases and they're making changes i think that the and the fact that texas is concerned about federal preemption is not a sufficient reason for it to have standing because again texas has made the choice to subsidize certain drivers licenses and under pennsylvania vs new jersey it can revoke those subsidies and in any event added the mere fact that texas disagrees with federal policies is not a ground for saying on the standing issue they're saying you've begun an action that will de prioritize millions of people a lot will live in texas we want to be heard they're just saying that's our article three st maybe you've emphasized in that when congress gives a lump sum appropriation to an agency generally speaking no one's going to be able to complain about where they are allocated the money here's my question have you not emphasized it because hypothetically if congress gave enough money to remove all eleven million do you agree the d h s s would not be able to give any of those people deferred action or do you disagree i partially agree  so shallow like in title eighteen heckler doesn't mean must get a comedy as foreign policy concerns and humanitarian concerns right which is exactly did with his words and just last week and crane and talking about well tony i think that given that it's been a justice o'connor said that for a federal courts to entertain such a stupid would work an improper intrusion into a coordinate branch of the federal government and in addition for all the reasons i talked about before there are important they are themselves removed from the table and so the agency knows these are not individuals who are priorities it's a clear demarcation of who's a purdy who's a not and who's not a priority in addition those individuals are then not enabling third party crimes for either by reporting crime or by cooperating when and a law enforcement official encounters them while investigating crime and so there are public safety and order and homeland security concerns that are implicated by the blockage that the benefits that are available by virtue of the employment authorization under federal law are only in it at the daily boy eventually because that what happens is the work authorization removes one barrier but then there are still other criteria that have to be suggesting is that during the time that the preliminary injunction is being adjudicated by this court if there were a stay in place and it's unlikely that that money would actually go out but if if we were enjoined then perhaps the federal government would under injunction face an obligation to claw back anything that went on for all of the reasons i've identified we would request that the court and enter of an immediate stay if the court is a claim to do so we request that you do so immediately with an opinion to follow thank you thank you mr measure your motion for straightening appeal is under submission we don't generally have oral argument on motions such as this but it's been an extremely helpful outstanding presentation on both sides has been of great benefit to the panel and with that the court is in recess