ARIZONA, ET AL., Petitioners, v. CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, ET AL., Respondents
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Mark Brnovich, Brian H. Fletcher, Helen H. Hong

John G. Roberts, Jr.: We will hear argument this morning in Case 20-1775, Arizona versus San Francisco. General Brnovich.

Mark Brnovich: Mr. Chief Justice, and may it please the Court: The Ninth Circuit's refusal to let Arizona and other states intervene to defend the public charge rule capped an unprecedented effort by the United States to unlawfully disregard a prior administration's rule. The Department of Justice had spent more than a year successfully fighting the rule's challengers in four different circuits. Every injunction against the rule had been stayed, and this very Court had granted certiorari. But the new Biden Administration suddenly abandoned its defense of the rule.

It coordinated with the rule's challengers and dismissed the granted petition by this Court, all of the pending appeals in the lower courts as well, and it left one final nationwide injunction against the rule in place.

Based only on that, the Biden Administration rescinded the rule without notice-and-comment rulemaking. Days -- within days of these legal maneuvers, Arizona and other states tried to intervene in every district -- or every circuit court to defend the rule.

In the case below, the Ninth Circuit denied intervention without any reasoning. That was error.

The Petitioners had satisfied all four requirements for intervention as a matter of right and easily cleared the bar for permissive intervention.

Arizona has a protectable interest because the rule saved the states collectively more than a billion dollars per year.

This case could impair those interests because a decision against the rule would reimpose those costs on the states. Fixing this error not just for Arizona but also to ensure this case does not become a blueprint for evading the APA in the future, the public charge rule was enacted through notice-and-comment rulemaking, so, therefore, notice-and-rule comma -- comment -- comment rulemaking is required to rescind or replace it. Making clear the states can intervene in these circumstances is not only the way to ensure -- is the only way to ensure future administrations follow the APA. I look forward to your questions.

Clarence Thomas: Would you explain why you have standing to challenge the Ninth Circuit's preliminary injunction in this case?

Mark Brnovich: Well, Your Honor, the states, even by -- the Department of Justice's own brief acknowledges that the states are impacted fiscally for -- by way of more than a billion dollars. But, furthermore, we know that in the -- in future APA cases, the states have an interest in being -- in ensuring that we have the ability to comment on future rules and proposed rules and not reward behavior in this type of case.

So our input really --

Clarence Thomas: But did you comment on the -- this rule or on the replacement rule?

Mark Brnovich: Your Honor, the Department of Justice had just announced a new proposed rule, and, ironically, even in that proposal, they noted that the states would be affected by more than a billion and a half dollars. We have commented on previous rules. We do believe the -- the primary issue here goes back to whether the states timely moved to intervene, which we did, whether there is an interest, which there is.

Even the Respondent states recognize that all of us have an interest, and that interest is there.

Clarence Thomas: But one final question then.

What makes this case different from any other case? I mean, when administrations change -- I think this is my fifth administration change.

And they got -- the -- the new administration often changes its position in cases.

So what's different from this case in which the administration declines to appeal an adverse ruling?

Mark Brnovich: Justice Thomas, this was an unprecedented legal maneuver.

What the Department of Justice did here when the administration changed is literally not only dropped an appeal when this very Court had granted certiorari but then simultaneously dismissed four other appeals in the circuit courts, that were pending before the circuit courts, left in place one judgment in the Northern District of Illinois, and then used that district court decision to rescind a rule without going through the proper notice and rule comment -- commenting. And so it is really unprecedented. Frankly, I'm not aware of any other precedent where you have this types of maneuvers.

Sonia Sotomayor: Counsel --

Mark Brnovich: In fact, just last year, if my recollection is correct -- correct, there was a pending criminal case where the new administration felt like they couldn't defend that case in good faith before this Court, and this Court allowed another party to represent those interests.

And if I recall, it was a 9-0 decision that ultimately the -- they prevailed. So the key is -- is that the administration not only changed, but it refused and opposed the states intervening to protect our interests.

Sonia Sotomayor: Counsel --

John G. Roberts, Jr.: How would you --

Sonia Sotomayor: -- I'm not sure what your interest is. First of all, the preliminary injunction didn't run against you, correct? So, as far as you were concerned, outside of the Seventh Circuit's injunction, there was no preliminary injunction against enforcement of the rule in your jurisdiction, correct?

Mark Brnovich: Justice, we know that the states -- during the 2019 rulemaking process, there literally is an impact of billions of dollars --

Sonia Sotomayor: Counsel --

Mark Brnovich: -- to the states.

Sonia Sotomayor: -- I agree.

But the injunction here was a plenary injunction, not a decision on the merits, correct?

Mark Brnovich: That is correct.

Sonia Sotomayor: So, if it's not a decision on the merits, it's a preliminary injunction that ran against other states.

As far as this injunction's jurisdictional scope, it didn't bar the enforcement of the rule in your state, correct?

Mark Brnovich: Justice, the injunctions are --

Sonia Sotomayor: Just answer that yes or no.

The injunction ran against other states, correct?

Mark Brnovich: That is technically correct, yes.

Sonia Sotomayor: Technically and --

Mark Brnovich: Yes.

Sonia Sotomayor: -- and otherwise. It didn't bar the administration from enforcing the rule in your state? This preliminary injunction in the Ninth Circuit was -- did not run against you, correct, or in your favor?

Mark Brnovich: Well, Justice Sotomayor, they're preliminary now, but the point is they could become permanent at some point and the state --

Sonia Sotomayor: How can they become permanent when --

Mark Brnovich: Because you'd have --

Sonia Sotomayor: -- it's -- the preliminary injunction has been vacated, correct?

Mark Brnovich: That is correct.

Sonia Sotomayor: So there is no injunction in place.

The only thing that can happen is if the rule is resuscitated, correct? If the rule remains not in place or a new rule comes in, correct?

Mark Brnovich: That is correct, but -- however, the --

Sonia Sotomayor: So now let's go to when they vacated the rule.

Didn't you have the right to file an APA action in the appropriate D.C. court --

Mark Brnovich: Justice --

Sonia Sotomayor: -- fighting the fact that they had improperly rescinded the rule?

Mark Brnovich: The -- if we look at the timeline, Justice --

Sonia Sotomayor: Just answer yes or no.

Did you have --

Mark Brnovich: Well, we were --

Sonia Sotomayor: -- a legal opportunity -- I don't remember what the statute of limitations is, but I thought, when a rule has been rescinded, you have a certain number of days to challenge that, don't you?

Mark Brnovich: That is correct.

Sonia Sotomayor: And the jurisdiction for that is not in the Ninth Circuit, correct?

Mark Brnovich: The -- the --

Sonia Sotomayor: The jurisdiction for that APA action is not in the Ninth Circuit?

Mark Brnovich: But there was pending cases in the Ninth Circuit.

There was --

Sonia Sotomayor: Well, what does that --

Mark Brnovich: -- pending cases in the Seventh Circuit --

Sonia Sotomayor: -- have to do with --

Mark Brnovich: -- in the Fourth Circuit, in the Second Circuit.

Sonia Sotomayor: -- the recission of the rule? The legal harm to you is that a rule that you think favors you was illegally rescinded.

You had another jurisdiction to fight that illegal rescission, didn't you?

Mark Brnovich: On March 9th, the administration --

Sonia Sotomayor: Just answer the question, counsel.

Mark Brnovich: -- within a day -- we did -- we are.

We're trying to -- we think the proper vehicle --

Sonia Sotomayor: You're trying to do all of that, but I don't know how that issue will be litigated in the Ninth Circuit.

Mark Brnovich: Because the rule is being -- was being litigated in not only the Ninth Circuit, in other circuits, and that's why the states have an interest in -- in --

Sonia Sotomayor: The issue of whether the rule was illegally rescinded will not be litigated in the Ninth Circuit, correct?

Mark Brnovich: It is necessary for us to intervene in the Ninth Circuit, but does -- it doesn't mean that it's sufficient for the process to be complete.

Amy Coney Barrett: Can I --

John G. Roberts, Jr.: Counsel, the rule was rescinded on the basis of -- I don't know how many sentences it was -- on the basis of a judicial decision in another court, right?

Mark Brnovich: Yes, Justice Roberts.

John G. Roberts, Jr.: So is the rule --

Mark Brnovich: Chief Justice.

John G. Roberts, Jr.: -- that you can challenge the decision in the other circuit as a basis for challenging the rescission of the rule, or do you go back to the district court in D.C. and in the D.C. Court of Appeals or district court, whichever it is, you argue that the judgment in the district court in Illinois was erroneous, or do you go straight to the one in Illinois?

Mark Brnovich: Justice Roberts, I -- I believe the -- the proper approach is to allow the states to intervene not only in the Ninth Circuit, but, once this Court allows the states to do that, I would fully anticipate that the states then would intervene in the other circuits, including trying to get the decision overturned by the Seventh Circuit and the Northern District of Illinois. And, once again, it was unprecedented, the legal maneuvering by the Department of Justice, when you have all of these different appeals going --

Elena Kagan: Well --

Mark Brnovich: -- through the process. So it's important for the states --

Stephen G. Breyer: Everybody has the same question, I think.

The -- the -- my understanding was -- I'd probably put the same question in just a slightly different way -- there are some orders of some district courts in California and in Washington, and those were the orders that went to the Ninth Circuit. Now my last -- well, I'm a little out of date and I've seen how Los Angeles has spread, but I don't think it's yet spread to Arizona.

And so there's nothing around that -- that actually says anybody has to do anything in Arizona.

In this case, it's -- it's in the -- it's in the Seventh Circuit case that you have a problem, so I -- I don't see why -- why -- because they have a nationwide injunction. So you -- you might say: Look, what we want to do is we want to say that the solicitor general of the former administration was right, that the cases are wrong, and we're going to go to the Supreme Court or we're going to ask for rehearing. But, if you win, you -- you've got something set aside that applies only to California, Eastern District of Washington. Never applied to you in the first place. So what we should do is wait for this thing to come out of the Seventh Circuit, where -- where there really is something that affects you or at least could.

So, see, everybody is in the same box here.

And I read pretty carefully what you said.

I have to admit I maybe didn't read it carefully enough because I didn't quite see how you get out of that box.

Mark Brnovich: Yeah.

Justice Breyer, I think we all agree that we don't want the problems of Los Angeles spreading to the rest of the country, so I think we can be in agreement on that. But, by its very nature, immigration doesn't -- and this Court has recognized that -- it doesn't stay in one state.

So what happens in California once someone has that status, that does then affect Arizona and the benefits and those programs, those social welfare programs and those safety net programs. So it -- it's not something that's confined to the State of California.

And, furthermore, we would anticipate why it's important for this Court to allow the states, the Petitioner states, to intervene as a matter of right is because then it creates the ability to not only intervene in the Ninth Circuit but to intervene in the Seventh Circuit and in the Fourth.

Stephen G. Breyer: So, yeah, I got the point.

Your point basically is, look, it's really actually not Los Angeles, it's San Francisco, we know that.

Mark Brnovich: Yes, Justice.

Stephen G. Breyer: So you're saying that some of the immigrants under this thing affected come to San Francisco and they would go to Arizona.

Now I'm from San Francisco, and I don't know why anyone would leave San Francisco. (Laughter.)

Stephen G. Breyer: But is there anything in the record or anywhere else that gives us any kind of idea that there were some people affected by this or a lot or many that really did go to Arizona?

Mark Brnovich: Justice Breyer, because of the litigation and the lawsuits and the injunctions, the rule didn't have a lot of time to -- to be into place.

And so we do know that historically, in immigration-related cases, including the Fifth Circuit in the DAPA case, that courts have recognized that what goes on in one state related to immigration affects other states. And all the State of Arizona is asking here, we know this Court has said that states can enforce, you know, immigration laws, so we're at least allowing -- allow the states to step in and defend a federal law when the federal government won't.

Amy Coney Barrett: Well, General -- General Brnovich, let me ask you about that.

So what do you propose that the federal government should have done here? Because one administration is not obliged to defend the rule adopted by the prior administration. The Biden Administration was entitled to change positions, right? So, once the Biden Administration changed positions, what do you think the Biden Administration should have done to effectuate that?

Mark Brnovich: Well, they could have done, once this Court accepted certiorari, continued to defend the rule.

And if they didn't want --

Amy Coney Barrett: But that didn't -- let's posit they don't have to.

So --

Mark Brnovich: Well, then --

Amy Coney Barrett: -- what -- what should they do?

Mark Brnovich: -- then they should not have objected and they should have allowed the states to step in and defend the rule when they wouldn't.

John G. Roberts, Jr.: I thought your position was that they should have gone through notice-and-comment rulemaking to repeal the public charge rule, which is, for example, what this Court said that the prior administration had to do in the DACA case.

Mark Brnovich: Absolutely, Justice Roberts --

Elena Kagan: Well, if that's your position -- and I --

Mark Brnovich: -- Chief Justice.

Elena Kagan: -- I think that's a, you know, very reasonable position, that -- that the government here acted in a way that you would not typically expect or want and that it counts as an evasion of notice-and-comment. But -- but, if it's an evasion of notice-and-comment, I mean, you bring an APA suit.

It's an evasion of -- it's -- it's a violation of the APA.

That's the proper remedy. I mean, there's a kind of mismatch here between what you're saying went wrong and what you're saying you want.

If -- if it's an evasion of notice-and-comment, bring an APA suit saying it's an evasion of notice-and-comment rather than, like, trying to intervene in a suit that's completely dead that never applied to you in the first place?

Mark Brnovich: Justice, part of the -- the problem is is that you have this Northern District of Illinois decision that's out there that the -- the administration used as their basis to repeal the rule, and that ends up with the rule being repealed.

That essentially will serve as a baseline for a future rulemaking. And if, for example, there is a lawsuit against the new proposed rule, the 2022 rule, then what will the states or what will the government go back to? And so it is important -- the states have that interest not only to intervene because of the financial costs but more broadly speaking, is we do want the administration to follow the Administrative Procedures Act and go through the proper --

Amy Coney Barrett: Well --

Mark Brnovich: -- notice and rule --

Amy Coney Barrett: -- are you saying then that there would be no -- the APA could some -- I mean, sorry, the administration could say our hands are tied because there's this vacatur of the rule --

Mark Brnovich: Yes.

Amy Coney Barrett: -- that the district court in the Northern District of Illinois entered, so you really couldn't bring an APA action? Is that your position?

Mark Brnovich: Justice, that is our -- that is part of the concern of the states, is that the administration would use that decision as the basis to say that the rule is no longer in place and -- yes.

Elena Kagan: Well, but, I mean, I think a court would be, you know, quite within its rights to say something along the lines of what you started with if the government said that to them.

It's like you -- you can't use some decision out of the Northern District of Illinois to circumvent notice-and-comment. Wrong.

You can't do that. And -- and you would -- and they would have said this is unprecedented.

Of course, governments decide not to defend rules all the time when administrations change.

That's not problematic.

But this other thing, which is like dismissing everything except one suit in order to say, you know, well, now we -- we get rid of the rule without doing notice-and-comment, that's a different thing. And a court in an APA suit could say exactly that.

I mean, that's the -- that's the mechanism for a violation of the APA, is an APA suit.

Mark Brnovich: Yes, Justice Kagan, but part of the concern is is that you would have inconsistent results with different courts making different decisions, and it would create chaos and uncertainty in the law --

John G. Roberts, Jr.: What would the --

Amy Coney Barrett: Why didn't it apply --

John G. Roberts, Jr.: -- what would the --

Mark Brnovich: -- and I hope the courts --

John G. Roberts, Jr.: -- what would the APA proceeding look like? You've got a -- a repeal that has one sentence which is saying that the Illinois court says this is no good, we -- you know, we acquiesce in that.

We don't want to waste people's time.

And so that's why we're repealing this. Now would the -- if you bring an APA suit challenging the repeal, I guess in the District of Columbia, would the District of Columbia court then review the Illinois court order and say, well, we don't think that's right and so you can't repeal it? Or would they say we think that is right, so you can repeal it?

Mark Brnovich: Well, Chief Justice, I -- I'm not sure what the courts would do.

I learned a long time ago as a young prosecutor not to predict what any judge, especially a federal judge, is going to do. But I do think that there is a legitimate concern, is that you might have some federal judge somewhere saying, well, this decision's out there and they use that as a basis to essentially say that -- that the rule is unconstitutional without allowing the states to get -- to come in and essentially defend the rule.

Sonia Sotomayor: Counsel --

Amy Coney Barrett: So you didn't try because of that judgment, the predictive judgment that you might lose?

Mark Brnovich: No.

It was -- Justice Barrett, it was more -- more of a matter of timing.

Literally, on March 9th, when the administration took the unprecedented step of simultaneously dismissing all of the various appeals and then agreeing that, you know, the decision out of Illinois --

Amy Coney Barrett: No, no, no, and I understand why as a matter of timing you moved to intervene when you did in the Ninth Circuit. I'm just saying, like, you know, to Justice Kagan's point, you haven't then pursued this APA challenge that you could have filed in the District of Columbia, and is that because you think you would lose, that you said, you know, it's hard to predict what a federal judge would do?

Mark Brnovich: It is.

We know, though, that there is -- the four lawsuits are going through the -- the circuit courts, and we think that's the proper vehicle at this point.

Sonia Sotomayor: Counsel, I'm --

Samuel A. Alito, Jr.: Well, in the case in the --

Sonia Sotomayor: -- I'm so totally confused about why this suit is here and not either an APA suit or simply the Seventh Circuit suit. If you go back and you -- we -- we permit you to intervene, we say you should have intervened, can you proceed with the Ninth Circuit case in light of the Seventh Circuit injunction?

Mark Brnovich: Well, Justice Sotomayor, our -- our intention or our plan would be to ask for an en banc review of the entire panel of the Ninth Circuit.

And if that didn't work --

Sonia Sotomayor: But they've already vacated the preliminary injunction, so there's nothing for them to review.

So the en banc -- there is no injunction from the Ninth Circuit.

There's no injunction against you. There's no injunction against the three states and California that are at issue because that was vacated as a result of the dismissal of this action.

So I don't know how you can proceed until the Seventh Circuit injunction is lifted.

Mark Brnovich: Justice, we -- we have also moved to intervene in the Seventh Circuit. This is the case time-wise --

Sonia Sotomayor: No, no, no, but until you get that --

Mark Brnovich: -- that the Court accepted.

Sonia Sotomayor: -- until you get that -- until you get that lifted and until you get the rescission of the rule lifted, something that can't be done by the Ninth Circuit, there's nothing further you could do in any other circuit.

Mark Brnovich: Justice Sotomayor, we -- we could -- if we are allowed to intervene not only in the Ninth Circuit, we would intervene and -- and move to vacate the judgment from the Northern District of Illinois.

Sonia Sotomayor: It's already -- but --

Mark Brnovich: But my --

Sonia Sotomayor: -- you're suggesting the Ninth Circuit could vacate the Seventh Circuit's judgment?

Mark Brnovich: No, I didn't suggest that, Your Honor.

What I --

Sonia Sotomayor: So you just said to me --

Mark Brnovich: -- what I'm suggesting, though, it's the --

Sonia Sotomayor: -- you would -- you would say I would use what happened in the Ninth Circuit so that I can get into the Seventh Circuit?

Mark Brnovich: Yes, Justice.

Sonia Sotomayor: It's an interesting proposition.

Stephen G. Breyer: Yeah, you have an interesting point.

I -- I -- I mean, I've never seen anything like this.

I think that your suggestion, which is quite -- I don't know the answer. You say, look, they just withdrew this rule.

And they're saying they're just acquiescing in a court decision, so, of course, we have the power to acquiesce in the court decision.

And you say, but, wait a minute, if they want to change the rule, they should go through notice-and-comment.

They say, we're acquiescing. So you're here because you say that decision that they want to acquiesce in is really wrong, and we want to intervene to make sure that the Supreme Court or their court en -- you know, en banc or something says it's wrong, because, if not, we're not going to have the chance to say that they could go through notice -- they should go through notice-and-comment when they change the rule for the reason that they're just acquiescing, and we want there to be nothing to acquiesce in. Now that is a -- now don't -- you're just going to agree because it sounds if I'm agreeing with you.

Mark Brnovich: Of course.

Thank you.

Stephen G. Breyer: But you --

Mark Brnovich: Can I sit down now, Justice? (Laughter.)

Stephen G. Breyer: Yeah.

Yeah, yeah. Good.

I know.

I know.

But just don't do that because later on I'd think how wrong I was, you see? So --

Mark Brnovich: Yeah.

No, you're absolutely right.

Stephen G. Breyer: Yeah.

Okay.

Now --

Mark Brnovich: I will assure you you're right.

Yes.

Stephen G. Breyer: -- now I -- but what I wonder, looked at that way, I can't think of anything I ever saw like that, and -- and I'll be interested if the government has.

And it -- it is sort of a point, and -- and -- and the simplest thing would be to wait for the Seventh Circuit.

When is that going to -- when is that going to happen?

Mark Brnovich: Well, the federal government -- the government dismissed all of those appeals, and so the only decision that's final is that Northern District of Illinois decision.

Stephen G. Breyer: No, no, no, no, but you could intervene in the Seventh Circuit, you see? And you have a much --

Mark Brnovich: Yeah.

Stephen G. Breyer: -- better argument because you get rid of that point that it doesn't apply to you because that one does apply to you.

Amy Coney Barrett: They moved to intervene.

Mark Brnovich: Yeah, we did.

Amy Coney Barrett: They moved to intervene in that district.

Stephen G. Breyer: Yeah.

So what happened? What's happened?

Mark Brnovich: The government objected to that.

I mean, part of the whole theory of this case is -- fundamentally is that do the states have the ability to intervene in a case when -- when the federal government won't defend the law?

Stephen G. Breyer: Mm-hmm.

Mark Brnovich: And I've addressed that already.

Stephen G. Breyer: All right.

Yeah, yeah, yeah, I understand that.

But, I mean, I asked you, what's happening in the Seventh Circuit? Because it certainly would be a simpler case if we just had that Seventh Circuit case.

What's happening?

Mark Brnovich: Well, the -- we -- we have tried to intervene in that case, Justice Breyer, and the case that this Court accepted was the case out of the Ninth Circuit.

Stephen G. Breyer: I know that --

Mark Brnovich: But the theory -- the theory --

Stephen G. Breyer: -- but I'm asking you what's --

Mark Brnovich: -- the theory --

Stephen G. Breyer: -- happening in the Seventh Circuit.

Mark Brnovich: -- the theory still applies.

Stephen G. Breyer: Well, please.

What -- do you know what's going on in the Seventh Circuit? I would like -- just like to know.

Mark Brnovich: There's the --

Stephen G. Breyer: You may not know. That's all right.

Mark Brnovich: I do.

There -- there -- there -- there is briefing under way, and those -- there is briefing under way, and those issues are on appeal.

But the question, once again, is do the states have allowed to --

Elena Kagan: Sorry.

Those issues on appeal are which issues in the Seventh Circuit now? The -- this exact issue?

Mark Brnovich: Yes.

John G. Roberts, Jr.: And -- and you moved to intervene in that case?

Mark Brnovich: Yes, Chief Justice.

John G. Roberts, Jr.: And what happened with that motion?

Mark Brnovich: Those motions, they're still pending.

This court just made it to the -- the Court first.

Amy Coney Barrett: I thought the district court denied your motion to intervene in the Northern District of Illinois and you're -- it's on appeal in the Seventh Circuit.

Mark Brnovich: Justice Barrett, yes, that is correct.

Amy Coney Barrett: How important is the APA to your argument? What if this were a statute?

Mark Brnovich: Justice, I think that it's important because there's not only the financial interests the states have at stake, but rule and comment -- the rule and notice commenting rulemaking is something that's very important.

It allows the states to express their interests and to -- you know, it's a complicated, sometimes --

Amy Coney Barrett: But let's imagine the public charge rule were a statute and not an APA rule, so you're not losing the ability to participate in notice-and-comment, but you would presumably be suffering the same downstream economic effects that you say that you're suffering here.

So would you be here making the same arguments?

Mark Brnovich: We would in relationship to Rule 24 and whether the states have a right to intervene.

That's just part of -- it's part of the interest the states have in that interest being impaired.

Amy Coney Barrett: So this isn't driven entirely by your inability to participate in notice-and-comment and the administration's circumvention of notice-and-comment in your view?

Mark Brnovich: Justice, not entirely, but that is part of the states' reasoning, is that there's not only a financial impact but that it's important, that integrity of the process, so, in the future, states have the ability to provide notice-and-comment on rulemaking so their interests are considered.

Elena Kagan: But -- but, when you say "not entirely," just to follow up that question, do you mean that even if the APA weren't involved here, that you're trying to vindicate the point that when the federal government decides to change course, the states have the ability to come in pretty much anywhere they want and -- and step into the federal government's shoes?

Mark Brnovich: Justice Kagan, I think the analysis is really that Rule 24 analysis, was it timely filed, is there an interest, is that interest being impaired, and maybe most importantly, that fourth prong of are those -- is there adequate representation in protecting those interests.

Elena Kagan: Yeah, so I'm -- I'm --

Mark Brnovich: So I think it --

Elena Kagan: -- I'm -- I'm hypothesizing a world in which the federal government has dropped out, and so the states can say, you know, if -- if not for us, there will be nobody to defend the law, that -- that you're saying even put aside any APA issues that there might be, whether it's a statute or -- or what have you, that -- that there is -- there is -- that the -- the courts should understand the intervention mechanism as a way for states to take the place of a departing federal government.

Mark Brnovich: Yes, Justice Kagan. This very Court recognized in Massachusetts versus EPA that states have a special solicitude.

We do have special interest -- or there's interests even going back to the Cascade versus El Paso Natural Gas case, that economic interests within a state is something that, you know, this Court can consider when it looks at intervention as a matter of right. And I think even the Respondent states agree that, you know, there -- there's interests here that we have and that states should be allowed to intervene when the federal government won't do its job.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas? Justice Breyer? Justice Alito? Justice Sotomayor?

Sonia Sotomayor: No.

John G. Roberts, Jr.: Justice Gorsuch? Justice Kavanaugh?

Brett M. Kavanaugh: Yeah.

When the -- when a court says that a rule is unlawful and the government then acquiesces in that court decision, is it the usual practice that the government then has to go through notice-and-comment to repeal what they've just accomplished through acquiescence? Or is that the issue that you're -- you're raising here implicitly in this case? Because I'm not aware of a practice of doing that.

I'm not aware of a practice of not doing that either.

Mark Brnovich: Yeah, Justice Kavanaugh, this is unprecedented, so, in many ways, this --

Brett M. Kavanaugh: Well, it's not -- let me just interrupt.

You've used that word a lot.

It's very much not unprecedented, as Justice Thomas says, for the government to acquiesce in an adverse judgment invalidating a rule.

That is not unprecedented at all. So what is unprecedented here?

Mark Brnovich: Well, Justice Kavanaugh, what is unprecedented is that the federal government didn't let the states come in.

They opposed our intervention and they wouldn't let us defend a rule that they no longer wanted to defend. So I'm not -- we're not -- our position to the states is not that the administration has to defend a rule that it doesn't like.

We -- we believe that if -- if they're not going to defend the rule, then the states have an interest in defending the rule. And if there's a future administration, it's important because, you know, California and Arizona could be on -- on opposite sides in the future on this issue, but, as a matter of right, we do believe the states have a right to intervene. And we do think that using a district court decision to essentially then create a baseline for what a future rule would be, I think --

Elena Kagan: May -- may I?

Mark Brnovich: -- is -- it makes it more difficult --

Brett M. Kavanaugh: Please.

Mark Brnovich: -- in the future to --

Elena Kagan: Is that all right?

Brett M. Kavanaugh: Yeah.

Mark Brnovich: It makes it more difficult in the future to promulgate or if the states --

Elena Kagan: I mean, under that -- under that theory, General, there would never be an effective acquiescence by the federal government.

I mean, there's always some state out there that wants -- that has a different position from the federal government's when the federal government acquiesces.

Whoever the federal government is, there's always going to be a state that thinks it's done the wrong thing. You're essentially saying there shall be no further federal government acquiescence in court decisions.

Mark Brnovich: Justice, that -- that's not the state -- what the state is saying.

What the state is saying is is that when the federal government refuses to defend a law or tries to undermine a rule, the states have special certitude, and especially when you go through that Rule 24 analysis, you know, is there an interest? Is that interest being impaired? And is it adequately being protected by the representation? So the courts would have to do that analysis.

But I -- but I do think it would allow the states more opportunities to defend rules when the federal government won't.

John G. Roberts, Jr.: Justice Kavanaugh, anything further?

Brett M. Kavanaugh: No.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: One -- one question. So I'm just trying to isolate the scope of your argument, and I asked you before how important the APA was to it.

How important to your argument is it that we already had granted cert on this issue? Does that matter?

Mark Brnovich: Justice Barrett, I -- I think it matters in the context of the unprecedented nature of what the federal government did in this case.

Amy Coney Barrett: But it wouldn't change your argument -- if -- if this had happened and you had moved for intervention before we had acted to grant cert, you would still be making the same argument?

Mark Brnovich: I believe so, Justice.

John G. Roberts, Jr.: Thank you, counsel. Mr. Fletcher.

Brian H. Fletcher: Thank you, Mr. Chief Justice, and may it please the Court: The 2019 Public Charge Rule did not regulate or confer any rights on the Petitioner states.

Instead, Petitioners assert an indirect economic interest in the rule's downstream consequences.

Relying on predictions that were made when the rule was drafted, they say that it would cause DHS to deny adjustment of status to people who would be more likely to use state-funded public benefits at some point in the future. But we now know that those predictions were wrong.

During the year that the 2019 rule was in effect, we know that it affected only about five of the approximately 50,000 adjustment of status applications to which it was applied or about 1-100th of 1 percent. The states do not have a legally protectable interest in preserving that negligible indirect effect, and, even if it did, they could not justify intervention in appeals from preliminary injunctions that do not apply in Petitioners' jurisdictions and that now have no effect anywhere because the 2019 rule has been vacated in a separate final judgment. The court of appeals did not abuse its discretion in declining to allow Petitioners to prolong appeals that no longer have any practical consequence. And Petitioners' criticisms of the government's litigation conduct do not call for a different result.

Congress made a policy choice to vest in the Department of Justice the decision whether to seek further review of decisions against the United States. This Court has emphasized that both the government and the courts benefit from that policy precisely because the solicitor general takes a selective approach and often decides against seeking further review, and as some of the questions this morning have suggested, it's not at all uncommon for the solicitor general to make that decision when the decision in question invalidated a regulation. Here, DHS had decided to issue a new Public Charge Rule.

The ongoing litigation would have complicated that rulemaking and required intrusive discovery.

The 2019 rule was not producing its intended effects, and the rule's unintended and unwanted effects were aggravated in the public health crisis. Now Petitioners disagree with the government's decision to dismiss its appeals when faced with those circumstances, but that disagreement does not allow them to revive this litigation that the government had decided was not in the best interests of the United States. I welcome the Court's questions.

Clarence Thomas: Mr. Fletcher, I think Petitioner was doing a little bit more than simply disagreeing with the acquiescence.

From my understanding, they were disagreeing with the government's refusal to allow them to participate or to intervene at the appellate level in very -- in litigation that they thought would affect them significantly. So how do you -- rather than simply focusing on the underlying issue, would you also respond to the fact that they think that intervention is a normal practice in these -- some of these cases at the end of administrations? I don't recall the government opposing such interventions, so would you simply address that a little bit?

Brian H. Fletcher: Of -- of course, Justice Thomas.

So this is a point that they made in the reply brief, and they pointed to two examples where they say the government did not oppose intervention in analogous circumstances. Actually, in both of those cases, the request for intervention came long before the government had decided against seeking further review, so those aren't analogous examples. Candidly, Justice Thomas, I'm not aware of a lot of cases where this has come up, where parties have sought to come in after the government decided to dismiss appeals.

Here, the government made its decision to oppose that intervention because we don't think the Petitioners satisfy the requirements for intervention as of right, and we don't think permissive intervention is appropriate either. And that's -- that's really part and parcel with the judgment that we don't think continued litigation of these cases in the face of ongoing notice-and-comment rulemaking is in the government's interest or the public interest.

Samuel A. Alito, Jr.: Mr. Fletcher, the way you have briefed this case is rather strange because there's -- you focus entirely on Federal Rule of Civil Procedure 24, which has no application to the courts of appeals, nor does it have any application to us. The rules for appellate intervention and intervention before this Court have to be judge-made rules if intervention is going to be allowed at all.

So there's no reason why the courts of appeals or this Court should be tied to the strict letter of Rule 24. And, in fact, some of what Rule 24 says is very difficult to -- to -- to fit with considerations for appellate litigation.

So why have you briefed the case this way?

Brian H. Fletcher: Well, Justice Alito, this Court said in Scofield that although Rule 24 doesn't strictly apply in the courts of appeals, it's a distillation of traditional principles of intervention, so it's a helpful guide. That's the way the parties briefed things in the Ninth Circuit, and that's principally the way that the states have tried to justify their intervention, is that they meet the standards of Rule 24.

We don't think that they do.

And so we've met their arguments on those terms. I completely take the point that Rule 24 doesn't apply by its terms, that intervention in the courts of appeals, which is what this is about, is about sort of judge-made rules about courts controlling their own docket. I think, if that cuts in any direction in this case, though, it sort of cuts further against the Petitioner states because it suggests that the Court is reviewing the Ninth Circuit's exercise of its own judge-made authority to decide whether or not to allow intervention.

Samuel A. Alito, Jr.: Well, why is that so? If we step back and refuse to let the trees obscure our view of the forest, we can take into account everything that happened in this situation, which seems to be quite unique. I -- I congratulate whoever it is in the Justice Department or the executive branch who devised this strategy and was able to implement it with military precision to effect the removal of the issue from our docket and to sidestep notice-and-comment rulemaking, but all of that took place.

I'm not aware of a precedent where an incoming administration has done anything quite like this. And this was an issue that we had agreed to hear before.

So, if we step back and recognize that we're not tied to the minutiae of Rule 24, why shouldn't intervention be allowed? It doesn't mean you're going to lose.

It doesn't mean that the old rule is sound or that it's going to be entered -- that it's -- it's going to be resuscitated. Why shouldn't intervention be allowed? Why would it be inequitable to allow intervention, or, to put it the other way, why doesn't equity argue in favor of allowing intervention?

Brian H. Fletcher: So, Justice Alito, there's a lot packed into the question that I hope we get to come back to, but I -- I want to sort of get right to the point. I think the first thing to think about when stepping back and looking at the entirety of this situation is that this is not a circumvention of notice-and-comment regulation. DHS is engaged in notice-and-comment rulemaking that the states will be free to participate in to make a new Public Charge Rule. Now I -- I take the point that Petitioners have said this is unprecedented, and they've been pressed on what is unprecedented because not seeking further review of a decision against the government is not, even when it involves a regulation.

I think we all now agree with that. And they focused on the fact that the case was in this Court.

And I do take the point.

I'm not aware of another case that transpired like that.

But that's because anything that the government did in that situation would have been unprecedented if those --

Elena Kagan: Well, to me, Mr. Fletcher, the -- the -- the issue about the government's behavior here is not that the case was in the court.

I mean, the case could have been in the court, and if the administration had come in and said we don't want to defend anymore, I mean, the government doesn't have to come up here and defend something that it no longer believes in. The real issue to me is the evasion of notice-and-comment.

And, I mean, basically, the government bought itself a bunch of time where the rule was not in effect.

If you -- if the administration had come in and said, oh, my gosh, we have a notice-and-comment rule, we really hate it, we have to change it, I mean, it would have taken months to change it.

And the administration didn't have to do that. Now you -- I'm sure you will tell me why that way of looking at the essential problem here is wrong, but I also want you to assume that that is a problem and that we shouldn't be green-lighting that behavior for your administration or any other administration, all right? And -- and -- and -- and, on that assumption, what should be the remedy? Because it -- it just seems as though you're here and saying, you know, you can just tell us to go home and -- and -- and nothing is going to happen to us, and everybody will just do it the next time. What -- what's the remedy for something like this if I think that this does present at least a significant APA question?

Brian H. Fletcher: So let me take that question on its terms and then, hopefully, come back to some of the premises later. I think, if you have that concern, the solution is not changing the rules of intervention.

It's not letting the states come in and make it impossible for the government to acquiesce in adverse decisions, as you suggested the other side's approach would. The solution, I think, is the one that Justice Gorsuch highlighted in his opinion when this case -- this rule was before the Court on a stay from the Second Circuit, and it is the nationwide relief that the district court entered here. We don't think that the APA authorizes district courts to enter that relief.

We don't think it's consistent with principles of equity or with Article III.

And if this Court makes clear in an appropriate case that that's not within the authority of district courts to enter, then you don't have this problem because the government -- what I take to be, everyone agrees, that the government has the ability to decide not to seek further review of district court decisions.

And if you make clear that district courts do not have the authority to issue this sort of relief, then the problem goes away.

Neil Gorsuch: Mr. Fletcher, that's -- I think you put your finger right where I -- my concern has been, is I'm not familiar with the APA's "set aside" language, which was supposed to adopt prior practice at the time, any prior practice in which a district court purported to be able to do more than set aside the rule with respect to the litigants in the case or controversy before it.

Are you?

Brian H. Fletcher: I'm not, Your Honor.

Neil Gorsuch: And, in fact, for most of our history even after the APA's adoption, I'm not aware of district courts doing that until relatively recent times.

Brian H. Fletcher: I think there's some scholarly debate about exactly when, but, yes, in general, correct.

Neil Gorsuch: And so you -- you agree that, therefore, the Northern District of Illinois erred when it issued a nationwide injunction?

Brian H. Fletcher: We do.

Neil Gorsuch: Okay.

Brian H. Fletcher: Just -- just a little thing.

I don't think anything turns on this. Technically, it wasn't an injunction.

It was a vacatur of the rule.

But I -- we'd say exactly the same thing.

Elena Kagan: Okay.

But now you present me with another issue because that has not been the question in this case, and so hmm.

Brian H. Fletcher: So I -- I take the --

Elena Kagan: What do I do with that?

Brian H. Fletcher: So I take the point.

I think, you know, one thing it -- it can do is give you some comfort that there is a solution to these problems to the extent that you think they are a problem. And I think what some of the questioning so far this morning has highlighted is that the solutions that are being offered up, you know, by the parties in this case, where they are trying to get at that concern, are really overbroad because --

John G. Roberts, Jr.: Is that an issue that, for example, the -- your friend on the other side could raise if he's successful in intervening in the cases?

Brian H. Fletcher: If he's successful in intervening in the --

John G. Roberts, Jr.: Yeah.

It's an argument.

Why didn't you intervene before? Well, one thing is that there shouldn't be a nationwide injunction issued in Illinois or one beyond the parties in the Ninth Circuit and, therefore, you should vacate the injunctions?

Brian H. Fletcher: That would be one of many arguments that he could raise, yes.

John G. Roberts, Jr.: Well --

Amy Coney Barrett: And so --

John G. Roberts, Jr.: -- but I thought part of your -- your -- your briefing was that, you know, this is a useless exercise, why are we here? You know, everything's done. Well, apparently, not everything is done.

Brian H. Fletcher: Well, the -- the "everything is done" was focused on the specific circumstances of this case, where it's about a preliminary injunction that don't apply in the Petitioner states' jurisdictions and that don't have any practical consequences so long as that -- the Seventh Circuit's --

John G. Roberts, Jr.: The Illinois one is nationwide, right?

Brian H. Fletcher: The Illinois one is nationwide, but --

John G. Roberts, Jr.: So it applies to them.

Brian H. Fletcher: But the question before this Court is what -- whether they're entitled to get into the --

Amy Coney Barrett: But, Mr. Fletcher, this --

John G. Roberts, Jr.: Well, they have to get rid of this one if they want to proceed against the one in Illinois.

Otherwise, it does them no good.

Brian H. Fletcher: Well, I -- I -- I don't know that that's true.

These are two preliminary injunctions that don't apply in their jurisdictions at all.

John G. Roberts, Jr.: Well, you agree, don't you, that they have standing because people who are illegally or -- not illegally -- they don't meet the new public charge rule in the United States, they're going to go throughout the United States, as people do?

Brian H. Fletcher: Justice -- Chief Justice Roberts, I think it's very, very hard to make that case given the record that we have about the low number of adjustment of status decisions that were actually affected by this rule while it was in place.

And the rule -- the injunctions don't apply to applications by residents of the Petitioner states. I think, in those circumstances, it's getting very, very attenuated to say that maybe the rule will result in someone being granted adjustment of status, maybe sometime down the road they will apply for and receive benefits, and maybe they will have in the interim moved into one of the Petitioner states.

That's -- that's --

Amy Coney Barrett: But, Mr. Fletcher, can I follow up on what the Chief just asked you? You opposed intervention in the Northern District of Illinois, right?

Brian H. Fletcher: We did.

Amy Coney Barrett: So the -- the principle that you're arguing for really doesn't turn on the fact that the Ninth Circuit's preliminary injunction was not nationwide.

I mean, your -- you opposed their ability to enter in the Seventh Circuit and challenge the scope of the injunction.

Brian H. Fletcher: That's correct, Justice Barrett.

We have -- I'm just highlighting that we have arguments here that we -- that don't apply in the Seventh Circuit case.

We also have arguments that apply in both cases, and there are some arguments that apply in the Seventh Circuit case that aren't at issue here.

Amy Coney Barrett: Because you just flatly think that the states shouldn't be able to interdeem -- intervene, period?

Brian H. Fletcher: That's correct, yes.

Brett M. Kavanaugh: Can I ask a --

Stephen G. Breyer: But suppose they -- what about their argument, which is, look, one -- you say only five people were affected, but you added change of status applicants.

So what they think is there may be millions of people, just across different borders, who will be here, you see, if -- a question of food stamps, and so all those people, we don't know, the record doesn't tell us whether they're in Arizona or not.

And they say it's a billion dollars, and you say it's five people, and so forth.

Okay.

That's one thing. But then they say we have a totally different ground.

Our ground for intervening is simply this: The decision of the courts about the merits of the old rule is completely wrong. And if you allow this to stand, this totally wrong decision, courts of the United States, what the government will do is just acquiesce. And that way they avoid notice-and-comment rulemaking.

And that should be a ground for our being able to intervene to ask for rehearing en banc or maybe ask the Supreme Court. Pretty similar to what we just allowed in that case of the attorney general.

You know, it was a different party.

What was it, Kentucky or -- we just -- and pretty similar.

See? They won't defend it, but we'll defend it because it's totally wrong. And we -- you see what we gain? Now, to me, that is a law professor's issue.

My God, I don't know what the answer is.

And we don't have to get into any of this mess if we can only get the Illinois case here in front of us. That's why I keep asking, what should we do?

Brian H. Fletcher: Justice Breyer, let me start with the effect of the rule because I think it's important to disaggregate a couple of things.

The rule does apply to people seeking to come into the United States, to be admitted at the border, but it very, very seldom actually has application there because the State Department has vetted those people before they come if they are coming on a visa.

If they're not coming on a visa, if they're coming illegally, there are other grounds to deny them admission.

So the rule has very, very little practical effect at the border. Where it has effect -- and this has been common ground across all of the rulemakings and between the parties -- is in those adjustment of status decisions, where, as I explained, it has turned out to have very little effect at all.

So that's the practical stakes. The billions of dollars, I think it's important to understand, are not about the intended effects of the rule.

Justice Barrett laid out in her dissent in the Cook County case on this issue that, actually, the rule does not apply to very many people at all who are actually entitled to receive public benefits because generally you're not entitled to receive them until after you adjust status or if you're in a vulnerable category, like an asylee or a refugee, that's not subject to the public charge bar at all. The billions of dollars are about people who are confused about the rule or mistaken about its effects and who are dropping benefits even though those benefits would not affect their entitlement to come into the case.

Brett M. Kavanaugh: Can I --

Brian H. Fletcher: And --

Brett M. Kavanaugh: Keep going.

I'm sorry.

Brian H. Fletcher: I was just going to say, and I think that highlights that -- that it's hard for the Petitioner states to say that they have a legally protectable interest and the unintended consequence.

Stephen G. Breyer: Yeah, but the second point is my real point.

Brian H. Fletcher: So the second point is about what about the Seventh Circuit case? So it --

Stephen G. Breyer: Well, they have another ground, but then, yeah, what about the Seventh Circuit?

Brian H. Fletcher: So -- right.

If you're -- if you're interested in the Seventh Circuit case, I guess what I would say is the Seventh Circuit case is not the one that's before you now, and the one that's before you now has not only the reasons why we think they shouldn't come into the Seventh Circuit case but other problems as well. And you -- what you shouldn't do is do what they're asking you to do, which is sort of decide this case as a way of telling what -- the Seventh Circuit what to do in that case, which presents different issues and additional arguments.

So we would urge you not to sort of decide this case with a view towards what the right answer in the Seventh Circuit case is.

Brett M. Kavanaugh: I have a question about historical practice to the extent you're aware.

When a notice-and-comment rule is issued and then a court finds that that rule is unlawful and then the government chooses to acquiesce in that judgment, what then usually happens? I suppose one thing is notice-and-comment about a new rule, but that would be about the new rule.

Another option is notice-and-comment about the repeal of the rule, even though it's an acquiescence in the judgment.

A third option is just nothing happens, the old rule is just gone, and the government keeps going without any replacement rule. Do you know under -- what the -- that second thing, notice-and-comment about the repeal after an acquiescence, I'm not sure I've seen that, but I want to get your understanding of historical practice.

Brian H. Fletcher: So I can't pretend to have an exhaustive understanding of this.

We have looked into it.

I'm aware of cases in the first category and the third category.

We have not found cases in that second category, at least where what you're talking about is a decision that sets aside the rule or vacates the rule on a nationwide basis.

Brett M. Kavanaugh: That -- that's my understanding too.

I think it's odd to think about notice-and-comment for repeal after an acquiescence.

I think there would usually be notice-and-comment for the new rule, and you -- and that's now started up here.

And I guess you've looked into it and haven't found anything either way, I guess.

Brian H. Fletcher: I haven't found any examples of it happening.

And, you know, there are -- there are court decisions from the D.C. Circuit, including, I think, your opinion in the EME Homer City case that say -- recognize sometimes this is a thing that the government does and that it is good cause to forego notice-and-comment when what it's doing is effectively compelled by a court decision.

Brett M. Kavanaugh: And then second question, which is kind of on a different tack, I think what they're trying to do here, if I'm piecing it together, and this picks up on Justice Sotomayor's questions a bit, is to intervene here to Munsingwear these -- these decisions and then to bring an APA challenge to the repeal, I think, would be the next part of the strategy if I'm understanding it and then to win or to do better in that APA challenge because the government wouldn't be able to rely on the adverse decisions because they've been Munsingweared.

Is that --

Brian H. Fletcher: So that -- that's about my understanding of what they're trying to do as well.

Brett M. Kavanaugh: Okay.

So why is it -- why is it wrong for them to intervene to try to Munsingwear the adverse decisions?

Brian H. Fletcher: So for a couple of reasons.

I think, first of all, even on that account of their strategy and assuming that the strategy otherwise works, that doesn't justify them getting into this case because this case doesn't include the judgment that was the basis for the rulemaking.

Brett M. Kavanaugh: Okay.

Would it justify them getting into the other case?

Brian H. Fletcher: So I -- I think not. There, we wouldn't have that argument about the limited scope of this appeal.

Brett M. Kavanaugh: Intervention for the purpose of seeking to Munsingwear a case is not good enough?

Brian H. Fletcher: Well, I don't think so. I don't think -- you know, normally, Munsingwear is about relieving the parties to the case of the effects of the judgment.

I'm not aware of any precedent for allowing new parties to come into the case to seek Munsingwear vacatur.

Brett M. Kavanaugh: There's no precedent either way on that question, right?

Brian H. Fletcher: That -- that's fair enough.

But -- but also, you know, Munsingwear is also about relieving the parties of the effects of a judgment after a case has become moot. You know, here, the mooting event was the government's decision not to seek further review of that Northern District of Illinois decision, and so it's a little hard to see how you Munsingwear the decision that actually produces the mootness in the other cases.

So I think that's an additional obstacle for them. And then the other thing I'd just say sort of stepping back a little bit more broadly is -- is, you know, this is a case about intervention and when they have a right to intervene or when the Ninth Circuit would have abused its discretion in keeping them out. And there are a lot of parties that might have interest in judicial precedent or in the development of the law more generally. That's the sort of interest that I take them to be trying to vindicate with this Munsingwear argument, and that's just never been recognized as the sort of thing that justifies intervention as of right.

Sonia Sotomayor: Can we talk about Munsingwear here? It's Munsingwear of what? It --

Brian H. Fletcher: So I -- I --

Sonia Sotomayor: -- what -- assuming that they -- the equity, and that's, you know, putting that on hold, what would they Munsingwear? I thought the preliminary injunction had dissolved once the case was dismissed.

Brian H. Fletcher: Justice Sotomayor, I don't think that's right.

We dismissed --

Sonia Sotomayor: Okay.

Brian H. Fletcher: -- our appeals in the Ninth Circuit.

The litigation in these cases is still stayed in the Northern District of California --

Sonia Sotomayor: Ah, okay.

Brian H. Fletcher: -- and the District of Washington.

The preliminary injunction is still in force.

It just doesn't have any practical effect because of the Seventh Circuit's decision -- or, I'm sorry, the Northern District of Illinois vacatur of the rule.

Sonia Sotomayor: So it would --

John G. Roberts, Jr.: Thank you.

Sonia Sotomayor: -- still have to be -- it would still have to be -- you still have to get the Seventh Circuit injunction lifted before anything happens in the Ninth Circuit?

Brian H. Fletcher: Before the Ninth Circuit decision has any practical consequence, yes.

John G. Roberts, Jr.: Thank you, counsel.

Just one further point. What would you do -- put your itself in Mr. -- General Brnovich's shoes.

You think it was wrong for the new administration not to go through notice-and-comment rulemaking before repealing the -- the order.

What would you do?

Brian H. Fletcher: Well, I suppose, if -- if I was in his shoes, you know, I might try to intervene, but, again, there are rules about who has an entitlement to intervene, and we don't think the states satisfy them because --

John G. Roberts, Jr.: So --

Brian H. Fletcher: -- their disagreement --

John G. Roberts, Jr.: -- so what would -- so there's nothing that an affected state could do in your view? You would give up if you were in General Brnovich's shoes because you say, well, you know, I can't intervene.

I can't go and complain about the fact that there wasn't notice-and-comment because it's a judicial decision that allowed them to dispense with notice-and-comment.

So you think that in this situation there's nothing that can be done?

Brian H. Fletcher: I don't think so, but, again, that's -- that's tied to the fact that this is not a rule that gives them any rights, that regulates them, that really has any effect on them.

John G. Roberts, Jr.: So then it's really quite a license for collusive action for any incoming administration to change rules that were enacted pursuant to the APA and, therefore, can only be repealed under the APA? It's a way to avoid that burden across the board.

Brian H. Fletcher: So I guess I just disagree with that characterization, Mr. Chief Justice.

I mean, this is a case where the -- when the administration changed, the President ordered a review of the rule, DHS decided it wanted to issue a new rule, and then the administration was confronted with the question what to do about the litigation.

And it had sought this Court's review but had done so on the premise that this was a rule that was important to DHS that DHS wanted to preserve.

John G. Roberts, Jr.: Right, right. I'm not questioning anybody's motives.

I'm -- I'm questioning the ease with which a decision in your favor will make it for the -- an incoming administration to avoid notice-and-comment review, because what -- and you say, well, if you were in Mr. Brnovich's shoes, you would sort of take your briefcase and go home, there's nothing to do.

And yet circumventing the APA is a pretty big deal.

Brian H. Fletcher: Well, Mr. Chief Justice, we may have a disagreement about whether this is correctly characterized as circumventing the APA.

I -- I guess --

John G. Roberts, Jr.: Well, it does avoid notice-and-comment rule -- rulemaking on the repeal of the rule.

Brian H. Fletcher: So that's correct.

You know, in this case, of course, DHS is going through notice-and-comment rulemaking.

John G. Roberts, Jr.: No, that's the new one --

Brian H. Fletcher: That -- that's --

John G. Roberts, Jr.: -- an entirely different thing.

Brian H. Fletcher: That -- that's correct. But it does put all the same issues before them and give them the opportunity to comment.

You know, I think, beyond that, we cite in Footnote 11 a bunch of decisions of DOJ deciding not to seek further review of decisions vacating the rule.

You could call each of those circumventing the APA if you wanted to because they have the same effect of taking a notice-and-comment rule off the books without the opportunity for further notice-and-comment. And I think it's -- it's hard.

I understand that because this is a change in administration, this was a controversial case, there's a temptation to view it differently, but I don't think we can have different principles of intervention for what Petitioners in the reply brief call run-of-the-mill cases where the government decides not to seek further review and different rules for intervention for cases that are -- have attracted a lot of controversy or that states are interested in looking into.

John G. Roberts, Jr.: I'm not suggesting there ought to be different rules. I'm suggesting that we have to think long and hard before adopting a rule that allows anybody, any administration, to circumvent notice-and-comment rulemaking before the repeal of a -- of a rule. And as far as I can hear from -- from you, in Mr. Brnovich's shoes, you're saying there's nothing to do -- no -- nothing to be done.

Brian H. Fletcher: Well, so I would say a couple of things about the consequences of a decision agreeing with us in this case. It wouldn't apply in cases where someone actually could satisfy the requirements of Rule 24(a) where their legal rights were directly affected.

The part of our argument here is based on the fact that Arizona and the other states are not actually -- do not have a legally protected stake in the rule.

The answer might be different if you had parties before you who did have such a stake. The other thing I'd say is, just to go back to the answer that I gave to Justice Kagan, you know, I -- I -- I take it everyone agrees that the government has the prerogative to decline to seek further review. The effect of taking the rule off the books without notice-and-comment is an effect of the remedial authority that the Northern District of Illinois asserted in this case. If this Court makes clear that that's not remedial authority that district courts have, then that solves that problem without disrupting principles of intervention or countermanding Congress's choice to put decisions about further review in the hands of the Department.

John G. Roberts, Jr.: Thank you. Justice Thomas?

Clarence Thomas: Nothing, Chief.

John G. Roberts, Jr.: Justice Breyer, anything further? Justice Alito?

Samuel A. Alito, Jr.: Has the government previously argued that district courts lack the power to issue nationwide injunctions in situations like this?

Brian H. Fletcher: We have pretty consistently, Your Honor.

Samuel A. Alito, Jr.: In this Court? In this Court?

Brian H. Fletcher: In this Court? I -- I -- in -- I believe we made that a feature of our stay application in the DHS versus New York case where Justice Gorsuch wrote the opinion that I talked about. Also, I believe in the contraceptive coverage case that was argued in the last administration.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: Counsel, this is a very complex issue.

What I understood that the prior administration had in two cases been before district courts that issued injunction -- injunctions of rules, that the -- I think, in Nevada versus U.S. Department of Labor, the prior administration filed an appeal but then decided to put it in abey -- abeyance and decided to comply with the district court's invalidation, correct? So this happens -- has happened across generations, correct?

Brian H. Fletcher: That's right.

Each case differs in its particulars.

And, you know, I think one of the things that made this case different and that's important to keep in mind when looking at the forest, as Justice Alito said earlier, is that this was a case that the government had brought into this Court and gotten certiorari granted and gotten extraordinary stays entered before DHS decided that it wanted to replace the rule. And if DHS had made the decision that it wanted to engage in new rulemaking and replace the rule and if it was clear that the rule wasn't having its intended effect, it would be very unusual for the government to come to this Court and ask it to grant certiorari. Now, here, those changes, those facts came to light after the petitions had been filed, and the decision was made after cert had been granted, but it's the same sort of decision not to ask this Court to review an adverse decision of the government.

Sonia Sotomayor: So this has happened for generations then?

Brian H. Fletcher: In different forms. Again, I don't want to represent that I can point to a case --

Sonia Sotomayor: No, no, no.

No, not like this --

Brian H. Fletcher: -- just like this because --

Sonia Sotomayor: -- but in different --

Brian H. Fletcher: -- the situation that was presented was unprecedented, but the idea that the government can choose for legal and prudential reasons not to seek further review has happened across administrations in a lot of different circumstances.

Elena Kagan: Mr. Fletcher, just going back to your colloquy with the Chief Justice, I guess I'm a little bit surprised that you didn't say something else.

And, you know, maybe the -- the solicitor general never stands up at the podium and says somebody can bring an APA action against us. But isn't that the answer? Somebody can bring an APA action.

I mean, if there has been circumvention of the APA, like, rather than go through this quadruple bank shot, I mean, why don't we just say, you know, you have a good point about circumvention of the APA, go bring an APA action?

Brian H. Fletcher: So they could bring an APA action.

That's right.

Candidly, we would argue in that APA action --

Elena Kagan: You would -- you would take the other side.

You would say, well, they don't have an APA action either.

I understand that.

But, I mean, because you think that what you did was not circumvention and -- look, I understand that the government is here to defend what it did, and that's perfectly appropriate. But, on the assumption that the government circumvented the APA, isn't the right remedy an APA action?

Brian H. Fletcher: So they can bring an APA action.

If they do, we'll make the argument that the rescission of the rule was justified by the fact that the vacatur had become final.

And I think we're right about that. But I -- you disagree -- may disagree. And so, if they want to bring that argument and try to persuade a court that you're right and I'm wrong, they can absolutely do that.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: Yeah, just a couple questions just to follow up on Justice Kagan. So the government -- I just want to make sure I understand.

So, if -- if a state were to bring an APA action, the government's position would be what?

Brian H. Fletcher: So I think we're talking about an APA action that's challenging the rescission that --

Neil Gorsuch: Yes.

Brian H. Fletcher: -- in March of 2021.

Neil Gorsuch: Yes.

Brian H. Fletcher: And we would say that that was valid without notice-and-comment because the existence of the vacatur judgment by the district court was good cause to forgo notice-and-comment and that the fact that that judgment had been entered, finally vacated the rule, and was no longer being appealed justified the rescission of the rule.

Neil Gorsuch: Even though, on -- on the government's view, the -- the scope of the vacatur was unlawful?

Brian H. Fletcher: That's correct, yes.

Neil Gorsuch: Okay.

And I guess that leads me to my -- kind of where I'm stuck in this case, and it's sort of where the Chief Justice is.

Any administration coming in, of course, can agree not to contest a judicial opinion.

That's often good practice. But, in this case, the government is relying on an injunction or a vacatur of nationwide scope that it believes to be unlawful as the basis for the rescission. How do I think about that when we come to the equitable considerations associated with intervention, that the government's rescission here is premised on what it admits to be an unlawful order?

Brian H. Fletcher: So, Justice Gorsuch, I think often, when the government decides not to seek further review of a decision, including a decision setting aside a regulation, it may disagree very strongly with the legal grounds for that decision and think that the order was wrong and that the judge didn't have the authority to enter it but, nonetheless, decide that the sort of high standards that the government applies before seeking further review, especially this Court's review, aren't meant --

Neil Gorsuch: I -- I -- I -- Mr. Fletcher, I -- I -- I don't disagree with any of that.

I accept that.

Of course, the government often disagrees with the judges.

That's -- that's the independence of the judiciary, and -- and we're all stuck with that. But what -- what is kind of a little different in this case is to tell a state that it has no recourse through the APA, through litigation, all because the government's acquiescence in a judicial order that it agrees is wrong and -- and is that an equitable consideration that we should as judges take into account when we're deciding a question of intervention, noting that intervention is ultimately an equitable sort of considered -- question?

Brian H. Fletcher: So it is an equitable question.

I would hesitate to encourage courts to rely on those sorts of judgments because one of the themes that I've been trying to convey this morning is that Congress has decided that these are decisions for the government to make about whether or not to seek further review.

Neil Gorsuch: Of course.

Brian H. Fletcher: Different story if you have a party that actually has the sort of intervention that justifies -- stake that justifies intervention as of right.

But, if you're not in that world and you're talking about permissive intervention, I'd warn the Court away from suggesting that courts ought to sort of look under the hood about whether or not they agree with the government's decision-making or the way that it weighed all of the competing considerations.

Neil Gorsuch: Of -- of -- of course.

I -- I -- I get that.

I guess I'm just wondering, would that be the narrowest basis of decision if -- if -- if the Court were to rule against you, that those are unique circumstances that might justify permissive intervention at least here?

Brian H. Fletcher: So those aren't narrow circumstances.

I'm not sure that they're the basis for an administrable rule because, of course, I've just told you that we disagree with district courts.

Often --

Neil Gorsuch: No, I know you -- I know you --

Brian H. Fletcher: -- often that doesn't happen.

Neil Gorsuch: -- I know you disagree.

But, if we were to rule against you, would that be the narrowest basis, or do you have another narrow one?

Brian H. Fletcher: Another narrow way to lose?

Neil Gorsuch: Yeah. (Laughter.)

Brian H. Fletcher: I, you know --

Neil Gorsuch: A tough question.

I -- I've had it presented to me.

Brian H. Fletcher: Yeah.

Neil Gorsuch: Nobody likes it. And I'm sorry to ask it.

Brian H. Fletcher: Well, I take that.

You know, I think, if -- we, of course, don't think we should lose at all.

We think a lot of the concerns that have been addressed would be addressed by adopting your view about the scope of district courts' remedial authority. If you're not willing to go down that road and you think that the states ought to be permitted to intervene, I think the narrowest basis for a decision in this case, which is, again, about these preliminary injunction appeals, would be to say that under these circumstances, because the controversy has become moot because the government acquiesced in a different judgment, they can come in and seek Munsingwear vacatur and that's all. I think that, you know, relieves them of some of their concerns and doesn't create the problems that we have about forcing the government to continue litigating about this rule that it's simultaneously trying to replace, which was really a big part of the concern that we had when we were approaching what to do about this litigation.

Neil Gorsuch: Thank you.

Brett M. Kavanaugh: Just want to pick up right there.

So intervening for the purpose of Munsingwear -- seeking Munsingwear is the -- is the narrowest ground, you -- you suggest?

Brian H. Fletcher: I -- I'm open to other even narrower grounds. (Laughter.)

Brian H. Fletcher: But that is the narrowest one that I can come up with, yes.

Brett M. Kavanaugh: And -- okay.

And then going back to the APA suit challenging the rescission of the rule, I think that raises a big question.

The Chief Justice raises important concerns, but I think there are important concerns going both ways there because it's never been the case, as I understand it and our colloquy illustrated, that acquiescence in adverse judgment triggers notice-and-comment responsibilities for the repeal of that rule, right? At least you haven't found anything.

Brian H. Fletcher: Correct.

I don't want to represent that there's nothing out there, but I -- I certainly haven't found anything.

Brett M. Kavanaugh: So it would be a big deal, I think, to hold that all of a sudden the government, when it acquiesces in a judgment, also has to go through notice-and-comment for the repeal, different from the new rule, for the repeal.

That would be a big deal.

Brian H. Fletcher: Correct, I agree.

And I think --

Brett M. Kavanaugh: And that would hamstring new administrations, which is, you know, the flip -- the Chief raises important concerns.

The flip side is, of course, not allowing a -- a new administration to get out of the starting blocks because they're -- they're stuck.

Brian H. Fletcher: I -- I agree with that, and I'd just add that it's not just the transition to a new administration.

You know, this happens even within an administration, that there's a rule --

Brett M. Kavanaugh: Sure.

There's a new secretary who comes in, new political or policy views.

Yeah.

Brian H. Fletcher: Or the government decides, you know, this rule, there's too much litigation risk.

We might make bad law if we pursue it.

Or it turns out actually we don't think it's such a good idea.

There are all sorts of reasons why the government might acquiesce or decline to seek further review of these decisions, and a rule saying -- a judgment saying that anyone can intervene if they have Article III standing and force continued litigation or that there has to be notice-and-comment rulemaking would be quite disruptive.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: I do have a question about historical practice. So, you know, as Footnote 11 in your brief makes clear, lots of historical practice for the government acquiescing in -- in judicial decisions and not appealing. What about the government opposing intervention in this circumstance? Because I think these are two separate threads, right? We can all agree that the government has the ability to acquiesce -- acquiesce in a judgment in its favor. But that's a distinct question from whether the government should oppose or a court should deny permission to a state who wants to intervene at that point.

What has the historical practice been there?

Brian H. Fletcher: So I don't have a lot of examples of that, I think, in part, because it just hasn't come up.

You know, the two examples that they offer in their reply brief, as I explained, aren't really examples of this --

Amy Coney Barrett: Yeah.

Brian H. Fletcher: -- because intervention happened earlier.

I guess what I'd say, though, is we don't view them as being quite that distinct because, when the government decides not to seek further review, it's often because the government has made a decision that further review isn't in the government's interest because it might make bad law, because it turns out the agency is about to replace the policy anyway, you know, for all sorts of reasons. And when that happens, sort of part and parcel of that decision is a judgment also that we don't want other parties to step in and continue the litigation, which forces us to continue litigating the case, which is exactly what we tried not to do by declining to seek further review. So I think they're two decisions that are linked in our mind.

Amy Coney Barrett: So the examples that they come up with in their reply brief, I mean, you just haven't -- nobody's been able to come up with more.

So, when they say that this is unprecedented on the government's part, you're saying it's also unprecedented on the state's part to try to intervene in this circumstance.

Brian H. Fletcher: I -- I'm saying that I -- I have not looked -- you know, I haven't done an exhaustive survey for this.

I'm sure there are cases where it has happened before. It just has not happened a lot. And when it does happen, the government, if we thought that they were entitled to intervene, that they met the Rule 24(a) standards, then we'd be taking a different position about whether or not they're entitled to intervene. But if -- when we think they don't meet the Rule 24(a) standards and when the question is, as a permissive matter, should a court allow them into a case that the government has decided continued litigation is not in the interest of the United States, then I don't think it's surprising that we -- we'd oppose that precisely because we do want to avoid continued litigation.

Amy Coney Barrett: Right.

Okay.

John G. Roberts, Jr.: Thank you, counsel. Ms. Hong.

Helen H. Hong: Mr. Chief Justice, and may it please the Court: There are many ways in which we agree with Petitioners about the legal standards governing intervention.

Those standards are broad and we've relied on them ourselves to intervene in cases that threaten to impair our interests. But those standards do impose limits. And under the particular circumstances of this case, Petitioners' motion to intervene in the Ninth Circuit exceeded those limits.

The central problem with that motion is that there's no practical sense in which the Ninth Circuit proceedings threatened to impair Petitioners' asserted interests. The 2019 Public Charge Rule was vacated through a final judgment in a separate case in a different circuit, and there is no rule left for Petitioners to defend in the courts below. This case can be resolved on that straightforward basis alone.

I welcome the Court's questions.

Clarence Thomas: Would you be just a bit more -- give us a bit more detail about why you oppose intervention here? You said you generally agree with Petitioner that there should be intervention available. I think, of course, like, California may have intervened in cases like Affordable Care Act.

How is this different? And I think some of those have involved matters, perhaps not exclusively, but matters that were nationwide or other states, involved other states. So would you just be -- give us a little more detail?

Helen H. Hong: Yes, Your Honor.

I think it goes to the Rule 24 standards that requires impairment of the Petitioners' interest.

But, as a more practical matter, the question is, what would the courts do below if Petitioners were authorized to intervene? There is no rule to litigate.

There's nothing that the Ninth Circuit can do to restore the rule.

So the Petitioners' motion really achieves nothing of significance. That's why we think that Petitioners' motion was properly denied in the court of appeals here in the Ninth Circuit.

Brett M. Kavanaugh: What about Munsingwear?

Helen H. Hong: Your Honor, Munsingwear raises two separate issues, one that goes to the scope of the Munsingwear doctrine, and the second is a separate case-specific question about Rule 24's requirements. Munsingwear itself, I think, as -- as my friend from the federal government has explained, is a doctrine that was designed to relieve existing parties of the consequences of a judgment once a case became moot. I'm not aware of an extension of Munsingwear that has been sort of applied in this circumstance for non-parties to intervene in a moot case to seek vacatur, but even if it were theoretically possible, that still raises the Rule 24 question, which is, what practical stake or what stake has Arizona identified to seek vacatur in these circumstances? And we think that's where Petitioners fall short.

Brett M. Kavanaugh: But wouldn't --

Helen H. Hong: Their legal --

Brett M. Kavanaugh: -- the theory be, and you've heard me say this, that they seek Munsingwear of the adverse -- to get the adverse decisions off the books, and they have an APA suit where they challenge the repeal, and the government in that is no longer able to rely on the adverse judgments, which Mr. Fletcher said they would certainly be relying on in any such APA suits. So the chain of logic seems pretty straight to me of how they would use intervention here if -- if I have the -- have it right.

Helen H. Hong: Yeah, there -- but there's no judgment here.

So their concern is the Ninth Circuit's decision on a preliminary injunction appeal, which isn't tantamount to a decision on the merits.

And the decision doesn't require the state to do anything or refrain from doing anything.

And the federal government has represented that it doesn't feel encumbered by the decision from reimposing the same rule in the future. So what this boils down to then is the Petitioners' legal disagreement with the reasoning of the court of appeals' decision. And we don't think that's enough to give them the necessary stake to intervene under the standards of Rule 24 to seek vacatur in these circumstances.

John G. Roberts, Jr.: So you'd have a different view if this were the case from the Seventh Circuit?

Helen H. Hong: Your Honor, it's -- it's a different question there.

I think that both the Rule 24 analysis is different because, of course, our basis for intervene -- or opposing an intervention motion here is that their interests can't be impaired because of the vacatur judgment. That basis for opposing doesn't exist in Illinois.

The district court there ruled solely on timeliness grounds and denied the motion, concluding that the Petitioners had intervened too late in that proceeding.

That is not a basis --

John G. Roberts, Jr.: Do you remember how much -- how long they waited before moving to intervene in that case?

Helen H. Hong: Your Honor, the judgment -- the final judgment that vacated the rule was issued in November of 2020.

They attempted to intervene on March 11 in the Seventh Circuit. It was, we acknowledge, just two days after the Seventh Circuit dismissed the appeal and issued the mandate.

John G. Roberts, Jr.: Two -- two days is the answer to my question, right?

Helen H. Hong: Yes, Your Honor.

John G. Roberts, Jr.: Thank you.

Helen H. Hong: But we're not pressing timeliness as a ground here.

And, of course, as -- as we discussed earlier today, I think those ongoing proceedings are subject to an appeal and proceedings in the Seventh Circuit. And even if Petitioners are able to successfully intervene there, there are still a number of steps that would have to occur before there would be any prospect of live litigation here in the Ninth Circuit. After intervention, they would still have to secure modification of the final vacatur judgment and then rescission of the rescission rule before the rule could spring back to life and there could be any meaningful litigation in the Ninth Circuit. And that's primarily the basis for our opposition to the motion to intervene here, which is nothing in this case can restore the rule and nothing then can redress the Petitioners' asserted claims of injury.

Sonia Sotomayor: Let's go back to that equity question.

And you answered to Justice Kavanaugh. You said the preliminary injunction ruling here is not a judgment, correct?

Helen H. Hong: The preliminary injunction orders are not a judgment, yes, Your Honor.

Sonia Sotomayor: And so they can't hurt them in terms of any arguments they have elsewhere because it's not a merits decision, correct?

Helen H. Hong: Correct, Your Honor.

Sonia Sotomayor: It's an equity balance?

Helen H. Hong: That -- the preliminary injunction factors certainly included an equitable balance.

I -- I -- I take Petitioners' arguments to be that the Ninth Circuit's decision on the likelihood of success is what they would like to wipe off the books.

Sonia Sotomayor: Correct.

So why is that not an interest adequate in equity to grant them intervention?

Helen H. Hong: Right.

And the question is whether they have a necessary stake to seek that.

And we don't think that Petitioners have identified anything different than bare legal disagreement with the reasoning of the decision. Again, it doesn't require them to do anything.

The federal government is not thwarted from reimposing the same rule.

And, of course, a court considering the merits would not be bound by or controlled by the Ninth Circuit's decision on the likelihood-of-success prong.

Elena Kagan: Ms. Hong, I'm -- I'm curious to know what your answer would be to the series of questions that both the Chief Justice and I were -- were -- were asking about if one thinks that there is a kind of circumvention of the APA that the federal government did here, this is not your problem, it's their problem, but if one thinks that, and Justice Kavanaugh presents some real reasons to -- to think that that's a hard question, but, if one thinks that and one is concerned about green-lighting that kind of government conduct, what should we do in this case? What should we do in some other case?

Helen H. Hong: Your Honor, I think that might be a basis for intervention in the proceedings where the rule was actually vacated. So that would be the Seventh Circuit proceedings, which is an ongoing appeal. Separately, I think Your Honors have discussed this morning the prospect of a separate lawsuit under the APA challenging the federal government's reliance on the good cause exception to notice-and-comment rulemaking. Those -- Petitioners' concerns about the federal government's evasion of the APA really is a core -- at its core a concern about the scope of that good cause exception.

We think those are two alternative fora where Petitioners could try to make their case. But even if the Court has concerns about the federal government's conduct that led to the vacatur of the rule and then the issuance of the rescission rule, those concerns do nothing to -- to permit the Ninth Circuit in this case to restore the rule. And I think Petitioners functionally concede that in their reply brief when they recognize there's nothing that the Ninth Circuit can do while the vacatur judgment exists to get them to have the rule restored in these proceedings.

And that's why we think the court of appeal properly denied intervention both as a matter of right and as a matter of permissive intervention.

Neil Gorsuch: Counsel, let's -- let's suppose that Arizona succeeds in the Seventh Circuit just hypothetically.

Would -- would California take the position that the Ninth Circuit's preliminary injunction should apply and applies nationwide or not?

Helen H. Hong: Well, the preliminary injunction by its terms that issued in our case is limited geographically, and, of course, the Washington case injunction was narrowed by the Ninth Circuit. I guess, to go back to Your Honor's -- the premise of the question, which is, if Petitioners succeed in intervention -- intervening in Arizona, does that mean that we have a live dispute here, and that's just not the case.

Neil Gorsuch: No, my -- my question was a little more specific than that. What -- what would California's position be in the Ninth Circuit litigation about the scope of the appropriate relief?

Helen H. Hong: Your Honor, if the rule were restored, then the preliminary injunctions that were issued in our case are geographically limited.

We -- are geographically limited.

Neil Gorsuch: I understand that currently.

But what would California's position be as to their proper scope?

Helen H. Hong: We -- we did seek a nationwide injunction in the district court.

We were not successful in that endeavor.

And I think we would have to live with both the district court's conclusion that the --

Neil Gorsuch: Are you representing you wouldn't seek nationwide relief before the Ninth Circuit?

Helen H. Hong: In terms of the final relief, that might be different.

We might seek nationwide relief, but -- but that's only if the rule was restored.

At present, there's no rule to litigate and there's no way the district court, we think, could properly issue a vacatur judgment in our case.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas? Justice Breyer, anything further?

Sonia Sotomayor: Just one question following up on what Justice Gorsuch said. There'd have to be a vacatur of the nationwide rule -- rule in the Seventh Circuit, correct?

Helen H. Hong: Correct, Your Honor.

Sonia Sotomayor: And the grounds for that would inform whatever position you took with respect to nationwide relief later, correct?

Helen H. Hong: Potentially, Your Honor. If there were a ruling from this Court in those Seventh Circuit proceedings, for example, that bore on what arguments we could make, then, certainly, that would have a -- bear a relationship to --

Sonia Sotomayor: If -- if --

Helen H. Hong: -- what we could argue.

Sonia Sotomayor: -- we ruled that nationwide injunctions are improper, you couldn't seek one then?

Helen H. Hong: Correct.

Sonia Sotomayor: Okay.

John G. Roberts, Jr.: Justice Kagan? Justice Gorsuch, anything further? Justice Barrett? Thank you, counsel. General, rebuttal?

Mark Brnovich: Thank you, Mr. Chief Justice. I can't help but hearing my mom's voice in my head that it's better to remain quiet and be thought a fool than open your mouth and remove all doubt. But I do think it's important for the record to emphasize that the question pending before this Court today and what seemingly none of us disagree with is whether the Ninth Circuit erred in denying Arizona's motion to intervene. The -- the answer to that question is clearly yes.

Nothing the Respondents have said today casts any real doubt on that.

It is, indeed, the Solicitor's prerogative to decide what rulings she may well appeal, but it is not her choice and her choice alone to determine whether a party or a state can intervene in a case. And, ultimately, if you allow the actions of the Department of Justice to stand in this case, it sets a dangerous precedent for future administrations to essentially do an end-around the APA. Thank you very much.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.