WEBVTT

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We will hear argument this morning in case 24A

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-884, Trump vs. Casa, Inc., and the consolidated

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cases. General Sauer. Mr. Chief Justice, and

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may it please the Court. On January 20, 2025,

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President Trump issued Executive Order 14 -160,

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protecting the meaning and value of American

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citizenship. This order reflects the original

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meaning of the 14th Amendment, which guaranteed

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citizenship to the children of former slaves,

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not to illegal aliens or temporary visitors.

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Multiple district courts promptly issued nationwide

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or universal injunctions blocking this order,

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and a cascade of such universal injunctions followed.

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Since January 20th, district courts have now

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issued 40 universal injunctions against the federal

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government, including 35 from the same five judicial

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districts. This is a bipartisan problem that

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has now spanned the last five presidential administrations.

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Universal injunctions exceed the judicial power

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granted in Article 3, which exists only to address

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the injury to the complaining party. They transgress

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the traditional bounds of equitable authority,

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and they create a host of practical problems.

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Such injunctions prevent the percolation of novel

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and difficult legal questions. They encourage

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rampant forum shopping. They require judges to

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make rushed, high -stakes, low -information decisions.

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They circumvent Rule 23 by offering all the benefits

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but none of the burdens of class certification.

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They operate asymmetrically, forcing the government

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to win everywhere while the plaintiffs can win

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anywhere. They invert the ordinary hierarchy

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of appellate review. They create the ongoing

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risk of conflicting judgments. They increase

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the pressures on this court's emergency docket.

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They create what Justice Powell described as

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repeated and essentially head -on confrontations

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between the life -tenured and representative

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branches of government. And they disrupt the

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Constitution's careful balancing of the separation

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of powers. I welcome the Court's questions. General

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Sauer, these universal injunctions, as you say,

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have proliferated over the last three decades

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or so. Would you discuss, though, the origins

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of universal injunctions? In particular, I'm

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interested in sort of historical analogs or the

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historical pedigree, particularly the Bill of

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Peace that was proffered by respondents. Yes,

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Justice Thomas, as you, I think, first pointed

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out in your separate opinion in Trump against

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Hawaii, the Bill of Peace is something very distinct

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from a universal injunction. So the Bill of Peace

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involved a resolution of a small, discrete set

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of claims of a small, discrete group. And even

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more fundamentally, it was binding. on the members

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of that class and those represented by the class.

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So it's much more analogous to a modern class

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action under Rule 23. And in fact, as we've argued

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in other cases and as this Court has described

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in opinions like Ortiz, the Bill of Peace evolved

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into and is directly developed into, so to speak,

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the modern class action that has all the same

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features of a Bill of Peace. So in the words

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of Chief Judge Sutton in the Sixth Circuit, the

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Bill of Peace was a domesticated animal that

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looks nothing like the dragon. of a universal

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injunction. I'm sorry. Here, there's a discrete

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identified group on one issue. Does citizenship

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mean are you born in the territory of the United

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States or does it mean are you loyal to someone

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else, which is your claim, or are your parents

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loyal to someone else? So that's no different

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than what happened in a bill of peace. The United

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States is bigger, so it extends more broadly,

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but it's still an identifiable group on a discrete

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singular question. Your Honor, I'd say three

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things in response to that. First of all, our

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primary contention is that the Citizenship Clause

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related to the children of former slaves, not

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to illegal aliens who weren't even present as

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a discrete class at that time, but more fundamentally

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here as to the issue of the Bill of Peace. There

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are critical differences. The Bill of Peace was

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a binding judgment that would bind absent class

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members. Here we have the AC - Well, here class

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actions don't bind anyone who opts out, so class

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actions are not like bills of peace. I would

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think that a Rule 23b2 class action, which would

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be the relevant analog here, would be one that

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would be binding on absent class members and

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would not have the same notice and opt -out procedures.

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And more fundamentally, that sort of argument

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that there is a commonality here among, you know,

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all the people who purport to be affected by

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this is the sort of argument that's made in class

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certification. So can I ask you a question? Your

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theory here is arguing that Article 3 and principles

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of equity both prohibit federal courts from issuing

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universal injunctions. Do I have your argument

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correct? We argue both of those. You argue both

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of those. If that's true, that means even the

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Supreme Court doesn't have that power. The Supreme

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Court would have the authority to issue binding

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precedent nationwide. But we couldn't enforce

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it against universally, is your argument. If

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there was a decision that violated the precedent

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of the court, then the affected plaintiffs could

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get a separate judgment. And that means you're

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talking about that hundreds and thousands of

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people who weren't part of the judgment of the

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court, they would all have to file individual

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actions? Not necessarily. Or a class action?

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A class action would be a way that... Isn't that...

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That makes no sense whatsoever. Respectfully,

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we believe that... Well, what was the purpose

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of the Bill of Peace, if not to settle a legal

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question finally? And if even the Supreme Court

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doesn't have that right and must invite hundreds

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of thousands of lawsuits, what are we buying

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into? If a set of claims satisfies the rigorous

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criteria of Rule 23, Rule 23 is the modern analog

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of a bill of peace. We have something very different

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here. No, but we don't because the argument here

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is that the president is violating an established,

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not just one, but by my count, four established

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Supreme Court presidents. We have the one arc

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case where we said fealty to a foreign sovereign

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doesn't defeat your entitlement, your parents'

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fealty to a foreign sovereign, doesn't defeat

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your entitlement to citizenship as a child. We

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have another case where we said that even if

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your parents are here illegally, if you're born

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here, you're a citizen. We have yet another case

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that says even if your parents came here and

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were stopped at the border, but you were born

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in our territory, you're still a citizen. And

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we have another case that says even if your parents

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secured citizenship illegally, you're still a

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citizen. So as far as I see it, this order violates

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four Supreme Court precedents. And you are claiming

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that both the Supreme Court and no lower court

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can stop an executive from, universally, from

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violating those holdings by this Court. We are

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not claiming that, because we're conceding that

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there could be an inappropriate case. Only a

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class, only by a class. Can I hear the rest of

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his answer? A Rule 23 class action. And then

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the more fundamental point as to all those Supreme

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Court decisions you referred to. So what do we

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do temporarily? Temporarily, the lower courts

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may issue injunctions that remediate the injuries

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to the plaintiffs that appear before them. lower

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courts in appropriate cases may certify class

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action. So when a new president orders that because

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there's so much gun violence going on in the

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country and he comes in and he says I have the

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right to take away the guns from everyone, then

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people and he sends out the military to seize

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everyone's guns. We and the courts have to sit

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back and wait until every named plaintiff gets

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or every plaintiff whose gun is taken comes into

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court. In appropriate cases, courts have certified

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class actions on an emergency basis. We found

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at least four cases in recent years where that

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was done. But more fundamentally... We profoundly

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disagree with the characterization of the merits.

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This is now fully briefed in the Ninth Circuit

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in case number 25 -807, where we describe how

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that characterization of the holding of Wong

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Kim Ark and the other decisions is profoundly

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incorrect. uh... impact and on the particular

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claimant uh... like a claimant who's alleging

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that the districting in a particular case has

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resulted in racial discrimination against him

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or her based on how the district is drawn now

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a judicial decision about that one plaintiff

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would implicate the redistricting throughout

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the whole case so so uh... throughout the whole

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state how does your theory address that situation?

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That would be what you might call an indivisible

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remedy, where what the court is doing there by,

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for example, redrawing the district lines is,

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as this court said in Gilligan's Whitford, the

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only way to remediate the injury of voting in

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an unconstitutionally drawn district. That is

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similar to abatement of a public nuisance or,

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for example, in the school desegregation cases,

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where remediating the injury to the plaintiff

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before the court necessarily has collateral consequences

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to many others. And certain environmental cases

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might have a similar thing, for example. You

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stop the local plant from pouring water pollution

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into the water. That benefits the plaintiff.

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It happens to benefit a bunch of other people.

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Now, that's very different than what we have

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in these universal injunctions, where it is a

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divisible remedy. I mean, I point to the holding

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of the District of Massachusetts in this case,

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looking at the individual plaintiffs. That court

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said, well, obviously, I don't have to give a

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universal injunction to protect. individuals

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other than the individual plaintiffs. They are

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given complete relief by an injunction that tells

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federal officials only to treat their children

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as citizens. I guess the question is, why does

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the law require that? I mean, I appreciate that

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a court could, in a divisible remedy kind of

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case, narrow in to the plaintiff, but you seem

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to be suggesting that Article 3 or Rule 23 or

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something requires that. And I guess I don't

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really understand it. If I may offer two responses

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to that. In Article 3 context, that is the principle

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announced in Worth against Selden, announced

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in Gill against Whitford, and Lewis against Casey,

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where this court has said again and again, what

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we do in the Article 3 context is grant remedies

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that are tailored to remove the injury to the

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complaining plaintiff. Sometimes they have even

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very broad collateral consequences. But in the

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Article 3 context, what the court has not done,

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and every time it's focused on this in National

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Treasuries Union employees I don't see why then

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the divisible remedies or indivisible remedies

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is an argument. I mean, if Article 3 is suggesting

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that the court has to focus in on the plaintiff

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only, then it would seem to me that that would

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be the power requirement across the board. I

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thought Article 3 was really about limiting the

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court's power with respect to jurisdiction. that

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we say the court has to determine whether or

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not there's subject matter jurisdiction over

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the issue and whether or not there's personal

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jurisdiction over the defendant. And once you

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have those things, the court can evaluate the

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merits of the legal issue and issue, especially

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in equity, appropriate relief. Now, I appreciate

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that there are some prudential concerns that

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the court considers. But it seems to me that

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in many, many, many circumstances, we have not

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required the court to limit their relief to the

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particular plaintiff as a matter of constitutional

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Article III requirement. I disagree with that.

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I offer a response, both first as to Article

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3 and then as to the scope of equitable authority.

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In the Article 3 context, this court said in

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Worth against Selden, for example, that the Article

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3 judicial power exists only to redress the injury

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to the complaining parties. Again, in Gill against

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Whitford and Lewis against Casey. All right,

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so let me give you a hypothetical. So suppose

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we have a manufacturing plant that unlawfully

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releases environmental toxins into the air. And

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we have a plaintiff who lives near the plant,

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brings a nuisance lawsuit, and says they're being

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harmed by unlawful release. Your argument suggests

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that the judgment for the plaintiff has to narrow

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in on preventing, to the extent possible, preventing

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harm to the plaintiff. But it seems to me that

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that's not necessarily the case. You suggest

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with the Chief Justice in response to him that

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there can be incidental beneficiaries, that the

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court could say no more toxins if it's unlawful

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for the defendant to do that, correct? Yes, we

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do. So why? Why, if your Article 3 principle

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is correct? Because again, the Article 3 principle

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is remedying the injury to the plaintiff or set

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of plaintiffs could be many who are before the

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court that has collateral consequences that could

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help. Let me ask you on that point, would one

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distinction be who's bound by the judgment? Like

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I'm wondering whether if the plaintiff needs,

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you can only think Judge Strauss said in the

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A circuit when addressing this issue, you can't

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peel off part of a nuisance. So the whole thing

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has to be shut down. Could a neighbor sue affirmatively

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to hold the nuisance maker in contempt if he

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started to to begin again the nuisance. That's

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a great point. It would not be bounding on those

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collaterally benefited parties, so to speak.

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I don't want to call them parties because they're

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not parties before the court. And that, of course,

00:15:00.039 --> 00:15:01.820
highlights one of the deep problems with the

00:15:01.820 --> 00:15:03.379
universe. But why isn't that the answer, though?

00:15:03.639 --> 00:15:05.740
Well, could you do that now for the universal

00:15:05.740 --> 00:15:09.919
injunction? Could a plaintiff, for example, who

00:15:09.919 --> 00:15:11.940
has the protection of the universal injunction

00:15:11.940 --> 00:15:15.039
but was not named in the suit? Bring a contempt

00:15:15.039 --> 00:15:17.379
action of the sort. I just described they could

00:15:17.379 --> 00:15:19.659
not do that But what they could do is run to

00:15:19.659 --> 00:15:21.799
any of 93 other judicial districts and bring

00:15:21.799 --> 00:15:24.519
their own lawsuit if they if then no no Under

00:15:24.519 --> 00:15:27.100
the under the injunction as it stands under the

00:15:27.100 --> 00:15:31.159
injunctions as they stand could a non named plaintiff

00:15:31.159 --> 00:15:33.500
Who has the benefit of the universal injunction

00:15:33.500 --> 00:15:36.460
that's currently in place? Could that plaintiff

00:15:36.460 --> 00:15:39.149
bring a contempt proceeding? We would, or I guess

00:15:39.149 --> 00:15:41.730
I shouldn't call them a plaintiff. We would dispute

00:15:41.730 --> 00:15:43.409
that they would have the standing to do that

00:15:43.409 --> 00:15:45.830
because it goes to the heart of. Well, no, no,

00:15:45.970 --> 00:15:48.740
no. Let's see. Maybe I'm not being clear. Assume

00:15:48.740 --> 00:15:51.580
the universal injunction is good, like drop your

00:15:51.580 --> 00:15:53.879
argument right now. Oh, I see. As they currently

00:15:53.879 --> 00:15:56.440
stand, could someone who is not named in the

00:15:56.440 --> 00:15:58.720
suit but a beneficiary bring a contempt proceeding?

00:15:58.820 --> 00:16:01.000
I think that that is what the respondents would

00:16:01.000 --> 00:16:03.039
certainly contend. Do you concede that the plaintiffs

00:16:03.039 --> 00:16:05.480
could bring a Rule 23, like the individual plaintiffs?

00:16:05.659 --> 00:16:07.659
We would dispute, I mean, we'd have to address

00:16:07.659 --> 00:16:10.759
the Rule 23 issues, kind of, all the criteria

00:16:10.759 --> 00:16:12.700
as they came up. Okay, but you could, they could

00:16:12.700 --> 00:16:14.179
seek it. Okay, and then last question. They haven't

00:16:14.179 --> 00:16:16.320
done that in Washington. It's just never been

00:16:16.320 --> 00:16:19.740
briefed because... Okay, just last question on

00:16:19.740 --> 00:16:21.899
this point. The states have a different kind

00:16:21.899 --> 00:16:24.100
of claim for financial harm, and they've pointed

00:16:24.100 --> 00:16:26.360
out that it would be very difficult to remedy

00:16:26.360 --> 00:16:29.519
that without some sort of broader relief. I know

00:16:29.519 --> 00:16:31.759
you can test their standing. I want you to assume

00:16:31.759 --> 00:16:34.399
that I think they have standing. Why wouldn't

00:16:34.399 --> 00:16:36.720
they be entitled to an injunction of the scope

00:16:36.720 --> 00:16:38.639
of the one that has currently been entered? I

00:16:38.639 --> 00:16:40.500
would say two reasons. First of all, it's not

00:16:40.500 --> 00:16:42.740
necessary to provide complete relief to the plaintiffs.

00:16:42.799 --> 00:16:44.220
What we offered, for example, in the District

00:16:44.220 --> 00:16:47.139
of Massachusetts in the First Circuit was an

00:16:47.139 --> 00:16:50.360
injunction that would enjoin the federal officials

00:16:50.360 --> 00:16:53.320
and order them to treat the people who would

00:16:53.320 --> 00:16:55.139
otherwise be covered by the executive order as

00:16:55.139 --> 00:16:57.240
eligible for the services that result in the

00:16:57.240 --> 00:16:59.080
pocketbook injuries to the states. And there's

00:16:59.080 --> 00:17:01.600
really no response to that. That is obviously

00:17:01.600 --> 00:17:04.200
would fully remediate their injuries and does

00:17:04.200 --> 00:17:07.059
not require the injunction to be applied in all

00:17:07.059 --> 00:17:09.059
other 50 states. one state comes in and says,

00:17:09.119 --> 00:17:10.720
well, people are going to move across state lines.

00:17:11.059 --> 00:17:12.920
Therefore, we've got 21 states in this case who

00:17:12.920 --> 00:17:14.619
don't want this relief. Sorry, you've got to

00:17:14.619 --> 00:17:18.319
impose it on everybody, because it has to be

00:17:18.319 --> 00:17:21.980
offered to this one particular state. So that's

00:17:21.980 --> 00:17:24.660
one response. The other response is this notion

00:17:24.660 --> 00:17:27.299
that the states have to be provided a complete

00:17:27.299 --> 00:17:29.420
relief because of interstate travel and patchwork.

00:17:29.519 --> 00:17:31.680
I think that's very effectively responded to

00:17:31.680 --> 00:17:33.380
by Chief Judge Sutton's opinion in the Second

00:17:33.380 --> 00:17:35.529
Circuit, where he says, This is a problem. If

00:17:35.529 --> 00:17:38.349
we adopt this logic, it justifies universal injunction

00:17:38.349 --> 00:17:40.329
in every single case. And that can't be the case.

00:17:40.710 --> 00:17:42.369
Fifth Circuit's recent DACA decision comes to

00:17:42.369 --> 00:17:43.910
the same conclusion. Well, what do you say, though,

00:17:44.009 --> 00:17:47.470
to the suggestion, General, that in this particular

00:17:47.470 --> 00:17:50.589
case, those patchwork problems for, frankly,

00:17:50.730 --> 00:17:54.650
the government, as well as for plaintiffs, justify

00:17:54.650 --> 00:17:58.099
broader relief? As to the government, again,

00:17:58.240 --> 00:17:59.759
Chief Judge Sutton addressed that directly as

00:17:59.759 --> 00:18:01.839
well when he said, that's the federal government's

00:18:01.839 --> 00:18:03.059
problem. In other words, the federal government,

00:18:03.279 --> 00:18:04.960
for example, in the First Circuit, we offered

00:18:04.960 --> 00:18:07.880
that as a narrower scope of injunction. And the

00:18:07.880 --> 00:18:09.220
decision was, well, that would cause you too

00:18:09.220 --> 00:18:11.240
many administrative problems. And I think Chief

00:18:11.240 --> 00:18:12.960
Judge Sutton directly addresses that when he

00:18:12.960 --> 00:18:15.019
says, that's a problem for the executive branch.

00:18:15.759 --> 00:18:18.660
That's your problem. All right. And then with

00:18:18.660 --> 00:18:20.680
respect to class certification, your friends

00:18:20.680 --> 00:18:23.380
on the other side point out that that takes time.

00:18:24.730 --> 00:18:28.089
And there are, as you've emphasized, hurdles

00:18:28.089 --> 00:18:31.069
that have to be met to achieve class certification.

00:18:31.849 --> 00:18:35.069
And the argument, of course, is that the injury

00:18:35.069 --> 00:18:39.849
is immediate and ongoing and, as Justice Sotomayor

00:18:39.849 --> 00:18:43.490
suggested, might be seriously questioned as to

00:18:43.490 --> 00:18:45.470
its compliance with this court's precedence.

00:18:45.849 --> 00:18:48.470
Your thoughts? I would offer a couple of things

00:18:48.470 --> 00:18:50.190
in response to that. First of all, there are

00:18:50.190 --> 00:18:54.730
tools for the courts to have tools to achieve

00:18:54.730 --> 00:18:56.849
sort of class -wide universal relief. I referred

00:18:56.849 --> 00:18:58.930
earlier that we found four recent district court

00:18:58.930 --> 00:19:00.670
decisions where class -wide relief was given

00:19:00.670 --> 00:19:03.930
a kind of an emergency basis. However, more fundamentally

00:19:03.930 --> 00:19:05.490
than that... And you agree that that's appropriate

00:19:05.490 --> 00:19:08.150
in certain cases? It may be appropriate. I do

00:19:08.150 --> 00:19:09.809
not concede that it's appropriate in this case,

00:19:09.809 --> 00:19:11.589
but it may be appropriate in other cases. Certainly

00:19:11.589 --> 00:19:14.170
it's an equitable tool that is consistent with,

00:19:14.170 --> 00:19:16.069
for example, the grant of equitable authority

00:19:16.069 --> 00:19:19.529
in the 1789 Judiciary Act as this court interpreted

00:19:19.529 --> 00:19:21.549
in the group of Mexicano decision and honestly

00:19:21.549 --> 00:19:23.130
a line of decisions going all the way back to

00:19:23.130 --> 00:19:25.950
the early 90s. century. So there are two rules

00:19:25.950 --> 00:19:28.589
to address emergency situations, but more fundamentally

00:19:28.589 --> 00:19:31.369
than that, it is a feature, not a bug, of Article

00:19:31.369 --> 00:19:34.470
3 that courts grant relief to the people who

00:19:34.470 --> 00:19:37.670
sue in front of them. So the notion that relief

00:19:37.670 --> 00:19:39.750
has to be given to the whole world because others

00:19:39.750 --> 00:19:41.849
who have not taken the time to sue are not before

00:19:41.849 --> 00:19:43.829
the courts is something that results in all these

00:19:43.829 --> 00:19:45.829
problems. Last question. Do we need to reach

00:19:45.829 --> 00:19:50.839
the Article 3 question? I mean, wouldn't it be

00:19:50.839 --> 00:19:53.819
wise even if you were to prevail for the court

00:19:53.819 --> 00:19:57.559
to reserve that question rather than decide that

00:19:57.559 --> 00:19:59.880
Congress, for example, could never endow this

00:19:59.880 --> 00:20:02.519
court with that authority? That's exactly correct.

00:20:02.599 --> 00:20:04.200
The court does not have to rest on Article 3

00:20:04.200 --> 00:20:06.819
because the court could say, and as we've argued

00:20:06.819 --> 00:20:08.859
and as Justice Thomas' separate opinion in Trump

00:20:08.859 --> 00:20:12.359
against Hawaii says, the 1789 Judiciary Act,

00:20:12.359 --> 00:20:14.339
when it said suits in equity are what the federal

00:20:14.339 --> 00:20:17.250
courts can do, had nothing like this in mind.

00:20:17.349 --> 00:20:19.910
And then I point to the language in Grupo Mexicana

00:20:19.910 --> 00:20:22.630
where the court said there was an issue was a

00:20:22.630 --> 00:20:24.890
preliminary injunction that froze and likely

00:20:24.890 --> 00:20:27.829
insolvent debtors assets so that the plaintiff

00:20:27.829 --> 00:20:29.490
could collect at the end of the case. And the

00:20:29.490 --> 00:20:32.210
court said that's a nuclear weapon in the law

00:20:32.210 --> 00:20:36.950
that had no analog in 1789 in the practices of

00:20:36.950 --> 00:20:38.990
the court of Chancery. And if that's a nuclear

00:20:38.990 --> 00:20:41.789
weapon, I don't know what this is where repeatedly

00:20:41.789 --> 00:20:44.250
40 times in this administration were being enjoined

00:20:44.250 --> 00:20:46.470
against against the entire world. I'm just going

00:20:46.470 --> 00:20:49.630
to ask you to put yourself in a different frame

00:20:49.630 --> 00:20:52.430
of mind, hard to do, assume something you won't

00:20:52.430 --> 00:20:55.009
want to assume. But the assumption that I want

00:20:55.009 --> 00:20:57.829
you to make is that on the merits, which of course

00:20:57.829 --> 00:21:00.210
you did not take to this court, on the merits

00:21:00.210 --> 00:21:04.750
you are wrong, that the EO is unlawful. And I

00:21:04.750 --> 00:21:08.789
want to ask you, if we assume that, how do we

00:21:08.789 --> 00:21:13.269
get to that result on your view of the rules?

00:21:13.829 --> 00:21:16.289
It is very difficult for me to adapt the hypothetical,

00:21:16.430 --> 00:21:18.549
but I will. I think that that's the important

00:21:18.549 --> 00:21:21.630
question in this case. Let's just assume you're

00:21:21.630 --> 00:21:25.650
dead wrong. How do we get to that result? Does

00:21:25.650 --> 00:21:29.049
every single person that is affected by this

00:21:29.049 --> 00:21:32.750
EO have to bring their own suit? Are there alternatives?

00:21:33.650 --> 00:21:37.690
How long does it take? How do we get to the result

00:21:37.690 --> 00:21:40.500
that there is a single rule of citizenship that

00:21:40.500 --> 00:21:43.819
is the rule that we've historically applied,

00:21:44.180 --> 00:21:46.220
rather than the rule that the EO would have us

00:21:46.220 --> 00:21:49.420
do. Rule 23 would be one natural path, assuming

00:21:49.420 --> 00:21:51.220
that a class could be certified, which we might

00:21:51.220 --> 00:21:52.960
dispute in this particular case. Well, you might

00:21:52.960 --> 00:21:57.519
dispute it. And I think the question is, is there

00:21:57.519 --> 00:22:03.920
a class that's just all children of people who

00:22:03.920 --> 00:22:07.859
have entered illegally? Is that an appropriate

00:22:07.859 --> 00:22:10.950
class? Can the same thing be done under Rule

00:22:10.950 --> 00:22:14.309
23? Or are you going to tell me that no, Rule

00:22:14.309 --> 00:22:20.150
23 has lots of requirements and you'll never

00:22:20.150 --> 00:22:23.940
be able to certify a class like that? Rule 23

00:22:23.940 --> 00:22:27.359
provides the equitable tools, subject to rigorous

00:22:27.359 --> 00:22:30.380
criteria, appropriately rigorous criteria, to

00:22:30.380 --> 00:22:32.619
obtain that kind of class -wide... That suggests

00:22:32.619 --> 00:22:34.539
to me you're going to be standing up here in

00:22:34.539 --> 00:22:37.539
the next case saying that Rule 23 is inapt for

00:22:37.539 --> 00:22:40.359
this circumstance, with this number of people,

00:22:40.799 --> 00:22:43.420
maybe with some questions that are individual,

00:22:43.519 --> 00:22:46.740
who knows. So let's put Rule 23 aside because

00:22:46.740 --> 00:22:48.759
I got to tell you that does not fill me with

00:22:48.759 --> 00:22:51.440
great confidence. How else are we going to get

00:22:51.440 --> 00:22:54.440
to the right result here, which is on my assumption

00:22:54.440 --> 00:22:57.279
that the EO is illegal? That would be a profoundly

00:22:57.279 --> 00:22:59.079
wrong result, but I think what I would offer

00:22:59.079 --> 00:23:02.480
is that, very similar to Labrador against Poe...

00:23:02.480 --> 00:23:05.079
What the court should be engaging here is a balancing

00:23:05.079 --> 00:23:08.299
of the equitable factors as to the scope of remedial

00:23:08.299 --> 00:23:10.779
relief, not as to the underlying merits. And

00:23:10.779 --> 00:23:14.000
our contention that this exceeds the traditional

00:23:14.000 --> 00:23:16.359
scope of equity that's reflected in the 1789

00:23:16.359 --> 00:23:18.599
Judiciary Act, we're overwhelmingly likely to

00:23:18.599 --> 00:23:20.339
succeed on those merits for all the reasons that

00:23:20.339 --> 00:23:22.140
are stated in our briefs. I mean, that's a lot

00:23:22.140 --> 00:23:25.079
of words, and I don't have an answer for if one

00:23:25.079 --> 00:23:28.000
thinks. And you know, look, there are all kinds

00:23:28.000 --> 00:23:31.440
of abuses of nationwide injunctions. But I think

00:23:31.440 --> 00:23:34.180
that the question that this case presents is

00:23:34.180 --> 00:23:36.619
that if one thinks that it's quite clear that

00:23:36.619 --> 00:23:40.700
the EO is illegal, how does one get to that result

00:23:40.700 --> 00:23:45.180
in what time frame on your set of rules without

00:23:45.180 --> 00:23:48.119
the possibility of a nationwide injunction? On

00:23:48.119 --> 00:23:50.819
this case, and on many similar cases, the appropriate

00:23:50.819 --> 00:23:53.220
way to do it is for there to be multiple lower

00:23:53.220 --> 00:23:55.640
courts considering it, the appropriate percolation

00:23:55.640 --> 00:23:57.500
that goes to the lower courts, and then ultimately,

00:23:57.900 --> 00:24:00.519
this court decides the merits in a nationwide

00:24:00.519 --> 00:24:02.519
binding precedent. You have a complete inversion

00:24:02.519 --> 00:24:04.500
of that through the nationwide injunctions with

00:24:04.500 --> 00:24:05.720
the district court. So General Sauer, are you

00:24:05.720 --> 00:24:07.500
really going to answer Justice Kagan by saying

00:24:07.500 --> 00:24:10.400
there's no way to do this expeditiously? I'll

00:24:10.400 --> 00:24:13.119
refer to my former answers. Rule 23 provides

00:24:13.119 --> 00:24:16.660
the tools to do so. But you resisted Justice

00:24:16.660 --> 00:24:19.799
Kagan when she said, could the individual plaintiffs

00:24:19.799 --> 00:24:23.980
form a class? That has never been briefed in

00:24:23.980 --> 00:24:25.960
the court below. I do not concede that we wouldn't

00:24:25.960 --> 00:24:27.660
oppose class certification in this particular

00:24:27.660 --> 00:24:29.519
case. There may be arguments that this case is

00:24:29.519 --> 00:24:31.460
or is not appropriate for class certification.

00:24:32.180 --> 00:24:34.599
If there were a class appropriate for class certification,

00:24:34.880 --> 00:24:36.859
you concede that that could resolve the question

00:24:36.859 --> 00:24:38.839
quickly? Yes, absolutely. You concede it could

00:24:38.839 --> 00:24:41.140
resolve the question quickly through precedent?

00:24:42.019 --> 00:24:44.400
Yes, absolutely. It could do so. I mean, we obviously

00:24:44.400 --> 00:24:46.779
dispute that. So just on that point. And if the

00:24:46.779 --> 00:24:48.859
court... Sorry, sorry. Sorry to interrupt. Go

00:24:48.859 --> 00:24:51.349
ahead, please. All right, I got a quick one.

00:24:51.430 --> 00:24:53.589
I got a quick one. Well, I'm going to say just

00:24:53.589 --> 00:24:56.150
I'm just going to say just on that point. So,

00:24:56.269 --> 00:24:58.250
you know, let's let's say that we're an individual

00:24:58.250 --> 00:25:01.829
person even let's say it wasn't a class and goes

00:25:01.829 --> 00:25:04.970
up and gets a ruling from the Second Circuit

00:25:04.970 --> 00:25:09.009
that the EO is illegal. Does the government commit

00:25:09.009 --> 00:25:12.730
to not applying its EO in the entire Second Circuit

00:25:12.730 --> 00:25:16.049
or does it say no we can continue to apply the

00:25:16.049 --> 00:25:18.809
rule as to everybody else in the Second Circuit?

00:25:19.019 --> 00:25:21.539
I can't say, as to this individual case, generally

00:25:21.539 --> 00:25:23.960
our practice is to respect circuit precedent

00:25:23.960 --> 00:25:25.480
within the circuit, but there are exceptions

00:25:25.480 --> 00:25:27.119
to that. Yes, that is generally your practice,

00:25:27.200 --> 00:25:30.779
and I'm asking whether it would be your practice

00:25:30.779 --> 00:25:33.180
in this case. I can't answer it, because it would

00:25:33.180 --> 00:25:34.839
depend on what the lower court decision said.

00:25:34.960 --> 00:25:36.980
So there are circumstances, as I was suggesting,

00:25:37.500 --> 00:25:39.900
where we think that we want to continue to litigate

00:25:39.900 --> 00:25:41.519
that in other district courts in the same circuit

00:25:41.519 --> 00:25:44.039
as well. Yeah, so that means it's not even the

00:25:44.039 --> 00:25:48.359
normal time it takes. for everything to get up

00:25:48.359 --> 00:25:50.819
through the circuit courts and to the Supreme

00:25:50.819 --> 00:25:54.940
Court. Because even in those circuits that say

00:25:54.940 --> 00:25:58.259
that the EO is illegal, you're going to be saying,

00:25:58.539 --> 00:26:01.440
no, we only commit to saying it's illegal to

00:26:01.440 --> 00:26:05.059
this one guy who brought the suit. Article 3.

00:26:05.279 --> 00:26:07.259
and the court's traditional equitable practices

00:26:07.259 --> 00:26:10.299
provide a range of tools to address that, including

00:26:10.299 --> 00:26:13.880
potentially nationwide class action. Nationwide

00:26:13.880 --> 00:26:17.000
class action, would you say you're going to oppose

00:26:17.000 --> 00:26:20.190
when that gets? gets challenged. We are likely

00:26:20.190 --> 00:26:22.529
to oppose on the merits. But that gets put up,

00:26:22.529 --> 00:26:25.829
you know, proposed. Yes, and if it does not meet

00:26:25.829 --> 00:26:27.769
the rigorous criteria of class certification,

00:26:27.970 --> 00:26:30.190
the court should not enter that injunctive relief.

00:26:30.869 --> 00:26:33.769
That's a feature not above. How about you're

00:26:33.769 --> 00:26:36.650
not willing to commit to abiding by the Second

00:26:36.650 --> 00:26:39.789
Circuit's precedent in my... Suppose that there's

00:26:39.789 --> 00:26:43.109
a single person who brings a suit and it gets

00:26:43.109 --> 00:26:45.890
all the way up to us after three or four or five

00:26:45.890 --> 00:26:49.359
years. And we say, you know, we really do agree

00:26:49.359 --> 00:26:52.299
with those four precedents that Justice Sotomayor

00:26:52.299 --> 00:26:57.000
started with, and your EO is illegal. Is that

00:26:57.000 --> 00:26:59.460
only going to bind the one guy who brought the

00:26:59.460 --> 00:27:02.279
suit? No, that would be a nationwide precedent

00:27:02.279 --> 00:27:04.279
that the government would respect. So finally,

00:27:04.640 --> 00:27:07.180
once it gets to us, after four years, you're

00:27:07.180 --> 00:27:09.440
going to respect that? Yes, and in addition,

00:27:09.539 --> 00:27:10.940
we may well respect certain white presidents.

00:27:11.180 --> 00:27:12.880
The Second Circuit, it just is... And for four

00:27:12.880 --> 00:27:16.440
years... there are going to be an untold number

00:27:16.440 --> 00:27:19.380
of people who, according to all the law that

00:27:19.380 --> 00:27:22.220
this court has ever made, ought to be citizens

00:27:22.220 --> 00:27:24.779
who are not being treated as such. And in the

00:27:24.779 --> 00:27:26.339
meantime, any of those plaintiffs could have

00:27:26.339 --> 00:27:29.220
come forward and sought preliminary injunctive

00:27:29.220 --> 00:27:31.279
relief. And they could do so on a class -wide

00:27:31.279 --> 00:27:34.160
basis. There are tools to address this, but the

00:27:34.160 --> 00:27:36.380
universal injunction, which is issued here three

00:27:36.380 --> 00:27:38.240
days after the executive order was issued, is

00:27:38.240 --> 00:27:43.640
not one of those tools. Thank you, counsel. Three

00:27:43.640 --> 00:27:47.759
years, four years, we've been able to move much

00:27:47.759 --> 00:27:50.160
more expeditiously. I think we did the TikTok

00:27:50.160 --> 00:27:55.759
case in a month. Presuming, I gather an important

00:27:55.759 --> 00:27:58.640
part of your answer is that people can litigate

00:27:58.640 --> 00:28:01.680
differently and one will go to Massachusetts,

00:28:01.779 --> 00:28:04.200
the other one will go to Houston, and you'll

00:28:04.200 --> 00:28:08.240
get conflicting decisions fairly quickly. Is

00:28:08.240 --> 00:28:10.240
there any reason why this court, and I gather

00:28:10.240 --> 00:28:13.109
that's your... your safety net is that at the

00:28:13.109 --> 00:28:15.390
end of the day, whatever how long the day is,

00:28:15.930 --> 00:28:18.329
this court can issue a decision and it will bind

00:28:18.329 --> 00:28:20.970
everything else. Is there any reason in this

00:28:20.970 --> 00:28:24.509
particular litigation that we would be unable

00:28:24.509 --> 00:28:27.529
to act expeditiously? Absolutely not, Mr. Chief

00:28:27.529 --> 00:28:31.130
Justice. Okay, thank you. Justice Thomas? General,

00:28:31.730 --> 00:28:37.349
when were the first universal injunctions used?

00:28:37.849 --> 00:28:40.190
We believe that the best reading of that is what

00:28:40.190 --> 00:28:42.529
you said in Trump against Hawaii, which is that

00:28:42.529 --> 00:28:45.089
warts in 1963 was really the first universal

00:28:45.089 --> 00:28:47.289
injunction. There's a dispute about Perkins against

00:28:47.289 --> 00:28:50.410
Lukens oil going back to 1940, and of course

00:28:50.410 --> 00:28:52.029
we point to the court's opinion that reversed

00:28:52.029 --> 00:28:55.109
that universal injunction issued by the DC Circuit

00:28:55.109 --> 00:28:57.869
and said it's profoundly wrong. Now if you look

00:28:57.869 --> 00:29:02.119
at the cases at the either party's site, You

00:29:02.119 --> 00:29:04.859
see a common theme. The cases that we cite, like

00:29:04.859 --> 00:29:07.000
National Treasuries, Treasuries Employment Union,

00:29:07.660 --> 00:29:10.619
Perkins against Lucans Oil, Frothingham and Massachusetts

00:29:10.619 --> 00:29:13.460
against Mellon, going back to Scott against Donald,

00:29:13.759 --> 00:29:15.460
and all of those, those are cases where the court

00:29:15.460 --> 00:29:18.039
considered and addressed the sort of universal,

00:29:18.220 --> 00:29:21.819
in that case, statewide issue of provision of

00:29:21.819 --> 00:29:23.519
injunctive relief. So when the court has considered

00:29:23.519 --> 00:29:25.579
and addressed this, it has consistently said

00:29:25.579 --> 00:29:27.640
you have to limit the remedy to the plaintiffs

00:29:27.640 --> 00:29:29.539
appearing in court and complaining of that remedy.

00:29:29.819 --> 00:29:33.660
So we survived until the 1960s without universal

00:29:33.660 --> 00:29:35.880
injunctions. That's exactly correct. In fact,

00:29:35.900 --> 00:29:38.440
those are very limited, very rare, even in the

00:29:38.440 --> 00:29:42.460
1960s. It really exploded in 2007 in our cert

00:29:42.460 --> 00:29:44.180
petition in Summers Against Earth Island Institute.

00:29:44.359 --> 00:29:46.019
We pointed out that the Ninth Circuit had started

00:29:46.019 --> 00:29:47.720
doing this in a whole bunch of cases involving

00:29:47.720 --> 00:29:51.829
environmental claims. Justice Alito. You began

00:29:51.829 --> 00:29:56.410
by outlining what you see as the practical problems

00:29:56.410 --> 00:30:00.430
that have been created by universal injunctions.

00:30:02.829 --> 00:30:06.410
If we were to hold that the states have standing,

00:30:07.650 --> 00:30:11.609
and if it is possible for a plaintiff to get

00:30:11.609 --> 00:30:16.190
emergency certification of a class, suppose we

00:30:16.190 --> 00:30:19.039
agreed with you on universal injunctions. but

00:30:19.039 --> 00:30:23.619
allowed those other two avenues. Would the practical

00:30:23.619 --> 00:30:27.119
problem be rectified to any substantial degree?

00:30:27.700 --> 00:30:29.440
Certainly, if there were an injunction that extended

00:30:29.440 --> 00:30:32.099
to all of the litigating states, that would cover

00:30:32.099 --> 00:30:34.859
a very substantial portion of the country, and

00:30:34.859 --> 00:30:37.680
also an emergency sort of class certification

00:30:37.680 --> 00:30:39.859
decision might also grant very broad relief.

00:30:40.579 --> 00:30:43.880
So the answer is that the practical problem would

00:30:43.880 --> 00:30:47.200
not be solved. And if that's the case, what is

00:30:47.200 --> 00:30:49.920
the point of this argument about universal injunctions?

00:30:50.500 --> 00:30:52.799
I think the point is that universal injunctions

00:30:52.799 --> 00:30:55.599
exceed traditional principles of Article III,

00:30:55.880 --> 00:30:58.359
and they exceed the traditional equitable authority.

00:30:58.380 --> 00:31:00.619
And that's what yields all these sort of pathologies,

00:31:00.619 --> 00:31:02.819
so to speak, of the current practice of issuing

00:31:02.819 --> 00:31:06.900
them very, very easily. Thank you. Justice Sotomayor?

00:31:07.339 --> 00:31:11.460
You answered Justice Gorsuch, I think, correctly.

00:31:11.980 --> 00:31:17.019
that if Article 3 precludes universal injunctions,

00:31:17.299 --> 00:31:20.480
then even class actions are illegal. That's what

00:31:20.480 --> 00:31:22.660
you're arguing, isn't it? I disagree with that

00:31:22.660 --> 00:31:27.500
profoundly. How could it? If Article 3 only prohibits

00:31:27.500 --> 00:31:32.299
injunctions that affect non -members or non -plaintiffs,

00:31:33.220 --> 00:31:36.019
how could Congress give a remedy like a class

00:31:36.019 --> 00:31:41.269
action? In Rule 23 class, every member, represented

00:31:41.269 --> 00:31:44.410
member of the class has standing by hypothesis.

00:31:44.509 --> 00:31:46.430
So every single one of them has an Article 3

00:31:46.430 --> 00:31:49.849
injury. And Rule 23, again... So that would be

00:31:49.849 --> 00:31:51.890
the only method. It would be very similar to

00:31:51.890 --> 00:31:53.609
the Bill of Peace, where all those parties in

00:31:53.609 --> 00:31:56.789
their representative capacity are bound. We can

00:31:56.789 --> 00:32:02.970
act quickly. If we are worried about those thousands

00:32:02.970 --> 00:32:06.299
of children who are going to be born without

00:32:06.299 --> 00:32:09.880
citizenship papers that could render them stateless

00:32:09.880 --> 00:32:12.440
in some places because some of their parents'

00:32:12.480 --> 00:32:17.839
homes don't recognize children of their nationals

00:32:17.839 --> 00:32:20.420
unless those children are born in their countries.

00:32:21.140 --> 00:32:23.460
They're not going to be receiving federal benefits

00:32:23.460 --> 00:32:29.000
because that's the claim of the plaintiffs here

00:32:29.000 --> 00:32:32.660
that of the state plaintiffs that they're not

00:32:32.660 --> 00:32:35.819
going to be able to provide services to those

00:32:35.819 --> 00:32:39.440
children, shouldn't we grant cert before judgment

00:32:39.440 --> 00:32:43.799
on that issue? If we're afraid that this is,

00:32:43.819 --> 00:32:48.779
or even have a thought that this is unlawful

00:32:48.779 --> 00:32:52.759
executive action, that it is Congress who decides

00:32:52.759 --> 00:32:56.779
citizenship, not the executive, if we believe,

00:32:56.819 --> 00:33:00.779
some of us were to believe that, Why should we

00:33:00.779 --> 00:33:05.960
permit those countless others to be subject to

00:33:05.960 --> 00:33:09.759
what we think is an unlawful executive action,

00:33:10.019 --> 00:33:13.960
as unlawful as an executive taking the guns away

00:33:13.960 --> 00:33:22.819
from every citizen? Is this the kind of case

00:33:22.819 --> 00:33:28.569
where the equities would call for that? And why

00:33:28.569 --> 00:33:32.369
wouldn't it? It's a pure legal question. What

00:33:32.369 --> 00:33:35.549
does the Constitution mean with respect to citizenship?

00:33:36.769 --> 00:33:40.369
There are no individual facts that would alter

00:33:40.369 --> 00:33:46.710
our conclusion. If we can't do it by a universal

00:33:46.710 --> 00:33:49.609
injunction, because you say Article 3 doesn't

00:33:49.609 --> 00:33:53.029
permit that, Article 3 wouldn't permit us to

00:33:53.029 --> 00:33:56.789
give a universal injunction, even if we rule.

00:33:58.119 --> 00:34:01.440
Why don't we grant cert before judgment so that

00:34:01.440 --> 00:34:05.000
all of these parents would have a firm Supreme

00:34:05.000 --> 00:34:10.659
Court decision that they can take where? Because

00:34:10.659 --> 00:34:13.300
you're saying nobody can grant a universal injunction.

00:34:13.469 --> 00:34:15.610
No party has asked for that in this case. I think

00:34:15.610 --> 00:34:17.750
one reason is that would deny the court of the

00:34:17.750 --> 00:34:20.550
benefit of percolation and multiple lower courts

00:34:20.550 --> 00:34:23.409
of a novel and sensitive and important constitutional

00:34:23.409 --> 00:34:23.610
question. Right now, we have multiple courts.

00:34:23.690 --> 00:34:27.130
We have novel courts who have percolated this

00:34:27.130 --> 00:34:31.570
issue and said, you're violating precedent. Not

00:34:31.570 --> 00:34:35.769
only precedent, but the plain meaning of the

00:34:35.769 --> 00:34:41.099
14th of the Constitution. Respectfully, I think

00:34:41.099 --> 00:34:43.480
what we have are lower courts making snap judgments

00:34:43.480 --> 00:34:46.219
on the merits that ignore the fundamental principle

00:34:46.219 --> 00:34:48.320
of the 14th Amendment that it was about giving

00:34:48.320 --> 00:34:50.360
citizenship to the children of slaves, not to

00:34:50.360 --> 00:34:52.440
the children of illegal immigrants who really

00:34:52.440 --> 00:34:54.480
were not even a very discreet class at that time.

00:34:54.659 --> 00:34:56.460
And that's a sort of argument that deserves regulation.

00:34:56.539 --> 00:34:57.300
And there were some people in Congress who argued

00:34:57.300 --> 00:34:59.599
against the 13th Amendment just because of that.

00:35:00.880 --> 00:35:03.320
Some people who argued against passing the amendment

00:35:03.320 --> 00:35:05.900
just because of that, because it would give citizenship

00:35:05.900 --> 00:35:10.119
to gypsies. I think the relevant history of the

00:35:10.119 --> 00:35:12.260
14th Amendment is the statements of Senator Trumbull,

00:35:12.340 --> 00:35:15.579
who emphasized that domicile was the key criteria.

00:35:15.599 --> 00:35:17.599
And he said that in a letter to Andrew Jackson.

00:35:18.820 --> 00:35:21.000
And we've cited our nine circuit reading a host

00:35:21.000 --> 00:35:22.380
of decisions that back that up. And that rejected

00:35:22.380 --> 00:35:25.719
repeatedly. We can go into the history of citizenship,

00:35:25.760 --> 00:35:32.639
but I still go back to my question. You claim

00:35:32.639 --> 00:35:36.340
that there is absolutely no constitutional way

00:35:36.780 --> 00:35:41.579
to stop, put this aside, to stop a president

00:35:41.579 --> 00:35:46.360
from an unconstitutional act, a clearly, indisputably

00:35:46.360 --> 00:35:50.340
unconstitutional act, taking every gun from every

00:35:50.340 --> 00:35:56.059
citizen. We couldn't stop that. I disagree with

00:35:56.059 --> 00:35:58.420
that for the reasons I've said, including the

00:35:58.420 --> 00:36:01.059
equitable tools. No, because you said to us we'd

00:36:01.059 --> 00:36:03.260
have to wait until there was a final judgment.

00:36:03.460 --> 00:36:05.460
You're not sure you would respect the judgment

00:36:05.460 --> 00:36:09.389
of every circuit, you're not sure that you would

00:36:09.389 --> 00:36:12.730
respect even a final judgment of the Supreme

00:36:12.730 --> 00:36:14.849
Court, because it only binds the parties before

00:36:14.849 --> 00:36:18.170
it. And if there's no class action, that only

00:36:18.170 --> 00:36:20.989
binds the parties before the court. I don't think

00:36:20.989 --> 00:36:24.269
there's a, so to speak, really, really unconstitutional

00:36:24.269 --> 00:36:26.110
exception to the strictures of Article 3 or the

00:36:26.110 --> 00:36:27.949
scope of equitable authority. And the court should

00:36:27.949 --> 00:36:29.849
not recognize one, because what we see, not just

00:36:29.849 --> 00:36:33.750
in this case, but in the 39 others, is that district

00:36:33.750 --> 00:36:35.389
courts who are issuing these injunctions all

00:36:35.389 --> 00:36:37.050
passionately disagree with the thing that's being

00:36:37.050 --> 00:36:39.150
challenged in that. So that principle that, well,

00:36:39.150 --> 00:36:41.510
this we think is really unconstitutional, therefore

00:36:41.510 --> 00:36:43.809
we should ignore the general principles of Article

00:36:43.809 --> 00:36:45.989
3, is not a principle the court ought to adopt.

00:36:48.269 --> 00:36:50.949
Justice Kagan. So, General, on this question

00:36:50.949 --> 00:36:54.230
of expedition, I mean, it sort of depends on

00:36:54.230 --> 00:36:56.949
the government's own actions in a case like this

00:36:56.949 --> 00:37:01.000
one. where one can expect that there is not going

00:37:01.000 --> 00:37:03.280
to be a great deal of disagreement among the

00:37:03.280 --> 00:37:06.139
lower courts. I mean, let's assume that you lose

00:37:06.139 --> 00:37:09.119
in the lower courts pretty uniformly, as you

00:37:09.119 --> 00:37:12.420
have been losing on this issue, and that you

00:37:12.420 --> 00:37:15.400
never take this question to us. I mean, I noticed

00:37:15.400 --> 00:37:17.739
that you didn't take the substantive question

00:37:17.739 --> 00:37:20.039
to us. You only took the nationwide injunction

00:37:20.039 --> 00:37:24.699
question to us. I mean, why would you take the

00:37:24.699 --> 00:37:28.019
substantive question to us? You're losing a bunch

00:37:28.019 --> 00:37:30.920
of cases, this guy over here, this woman over

00:37:30.920 --> 00:37:33.380
here. You know, they'll have to be treated as

00:37:33.380 --> 00:37:35.820
citizens, but nobody else will. Why would you

00:37:35.820 --> 00:37:38.340
ever take this case to us? Well, in this particular

00:37:38.340 --> 00:37:41.079
case, we have deliberately not presented the

00:37:41.079 --> 00:37:44.039
merits to this court on the question of the scope

00:37:44.039 --> 00:37:46.619
of remedies, because, of course, that makes it

00:37:46.619 --> 00:37:48.199
a clean vehicle where the court doesn't have

00:37:48.199 --> 00:37:50.599
to look at the past. You're ignoring the import

00:37:50.599 --> 00:37:53.719
of my question. I'm suggesting that in a case

00:37:53.719 --> 00:37:57.329
in which the The government is losing constantly.

00:37:58.030 --> 00:38:00.789
There's nobody else who's going to appeal. They're

00:38:00.789 --> 00:38:04.150
winning. It's up to you to decide whether to

00:38:04.150 --> 00:38:06.789
take this case to us. If I were in your shoes,

00:38:07.269 --> 00:38:09.409
there is no way I'd approach the Supreme Court

00:38:09.409 --> 00:38:12.190
with this case. So you just keep on losing in

00:38:12.190 --> 00:38:15.070
the lower courts. And what's supposed to happen

00:38:15.070 --> 00:38:17.269
to prevent that? Again, I respectfully disagree

00:38:17.269 --> 00:38:19.750
with that forecast of the merits. But in response

00:38:19.750 --> 00:38:22.539
to the question, what I would say is We have

00:38:22.539 --> 00:38:24.119
an adversarial system. And if the government

00:38:24.119 --> 00:38:26.300
is not, for example, not respecting circuit precedent

00:38:26.300 --> 00:38:28.019
on the court's hypothetical in the Second Circuit,

00:38:28.400 --> 00:38:30.119
someone injured in the Second Circuit could take

00:38:30.119 --> 00:38:31.840
the case up. And they could say, look, the government

00:38:31.840 --> 00:38:34.880
is violating circuit precedent on the hypothetical

00:38:34.880 --> 00:38:37.179
multiple circuits. That's the case we're going

00:38:37.179 --> 00:38:43.099
to take? Somebody who says, after we've said

00:38:43.099 --> 00:38:46.500
that this all has to be done one by one by one,

00:38:46.920 --> 00:38:49.119
then we're going to take a case from somebody

00:38:49.119 --> 00:38:53.329
who objects to? proceeding one by one by one?

00:38:55.010 --> 00:38:56.949
I'm not sure I understand the question. I understand

00:38:56.949 --> 00:39:00.429
the hypothetical. If you win this challenge and

00:39:00.429 --> 00:39:02.730
say there is no nationwide injunction and it

00:39:02.730 --> 00:39:05.889
all has to be through individual cases, then

00:39:05.889 --> 00:39:09.530
I can't see how an individual who was not, you

00:39:09.530 --> 00:39:12.250
know, being treated equivalently to the individual

00:39:12.250 --> 00:39:14.969
who brought the case would have any ability to

00:39:14.969 --> 00:39:17.750
bring the substantive question to us. They would

00:39:17.750 --> 00:39:19.989
bring a lawsuit in the federal district courts

00:39:19.989 --> 00:39:23.090
against the government for an injunction protecting

00:39:23.090 --> 00:39:25.110
them. And if the government wasn't respecting,

00:39:25.110 --> 00:39:27.329
you know, on the... Yeah, and then they win.

00:39:27.849 --> 00:39:30.789
And again, I mean, you need somebody to lose.

00:39:31.309 --> 00:39:33.789
But nobody's going to lose in this case. It's

00:39:33.789 --> 00:39:38.489
just you're going to have, like, individual by

00:39:38.489 --> 00:39:41.269
individual by individual, and all of those individuals

00:39:41.269 --> 00:39:43.289
are going to win. And the ones who can't afford

00:39:43.289 --> 00:39:45.690
to go to court, they're the ones who are going

00:39:45.690 --> 00:39:49.030
to lose. The tools that are provided to address

00:39:49.030 --> 00:39:51.730
hypotheticals like this, again, I... This is

00:39:51.730 --> 00:39:53.769
not a hypothetical. This is happening out there,

00:39:53.949 --> 00:39:56.190
right? Every court has ruled against you. We've

00:39:56.190 --> 00:39:58.789
only had snap judgments on the merits. Obviously,

00:39:58.869 --> 00:40:00.630
we're fully briefing the merits in the courts

00:40:00.630 --> 00:40:03.110
of appeals, and our arguments are compelling

00:40:03.110 --> 00:40:05.489
more fundamentally in response to the question.

00:40:05.489 --> 00:40:08.869
I'm suggesting to you, the real brunt of my question

00:40:08.869 --> 00:40:11.360
is, in a case like this... The government has

00:40:11.360 --> 00:40:13.599
no incentive to bring this case to the Supreme

00:40:13.599 --> 00:40:15.800
Court because it's not really losing anything.

00:40:16.219 --> 00:40:18.860
It's losing a lot of individual cases which still

00:40:18.860 --> 00:40:22.519
allow it to enforce its EO against the vast majority

00:40:22.519 --> 00:40:25.179
of people to whom it applies. And again, Rule

00:40:25.179 --> 00:40:28.639
23 provides an avenue to present to address those

00:40:28.639 --> 00:40:33.019
very concerns. Thank you. Justice Gorsuch? Well,

00:40:33.139 --> 00:40:34.880
Justice Kagan asked my questions better than

00:40:34.880 --> 00:40:39.090
I could have. How do you suggest we reach this

00:40:39.090 --> 00:40:42.369
case on the merits expeditiously? There's a number

00:40:42.369 --> 00:40:43.989
of tools the court could do that. We think this

00:40:43.989 --> 00:40:46.650
case is one that cries out for percolation, that

00:40:46.650 --> 00:40:48.849
the court should allow the lower courts to address

00:40:48.849 --> 00:40:52.090
the merits issue multiple times. It's currently

00:40:52.090 --> 00:40:54.170
on briefing in three different cases in the First

00:40:54.170 --> 00:40:56.030
Fourth and Ninth Circuits, and we think that

00:40:56.030 --> 00:40:57.489
that's the appropriate way to do it. If the court

00:40:57.489 --> 00:40:59.550
disagreed, obviously... When you lose one of

00:40:59.550 --> 00:41:02.869
those, do you intend to seek cert? If we lose,

00:41:03.289 --> 00:41:08.750
yes, absolutely. Justice Kavanaugh? So the technical

00:41:08.750 --> 00:41:11.690
problem here seems to be class -wide relief without

00:41:11.690 --> 00:41:14.570
the district courts going through the steps to

00:41:14.570 --> 00:41:17.389
assess whether a class should be certified, correct?

00:41:17.530 --> 00:41:23.449
Correct. Okay. And if you win here on this procedural

00:41:23.449 --> 00:41:28.289
point, it seems very likely that the day after

00:41:28.750 --> 00:41:31.250
There are going to be suits filed all over the

00:41:31.250 --> 00:41:34.809
place seeking class -wide treatment. Maybe statewide

00:41:34.809 --> 00:41:37.949
classes, circuit -wide classes, maybe nationwide

00:41:37.949 --> 00:41:40.889
classes. I'm sure they're being prepared now.

00:41:41.949 --> 00:41:46.289
And on what basis would you oppose a statewide

00:41:46.289 --> 00:41:49.650
class? I could imagine certain basis. And again,

00:41:49.869 --> 00:41:52.050
we haven't briefed this in the lower courts yet.

00:41:52.889 --> 00:41:56.469
You've been promising everyone here that Rule

00:41:56.469 --> 00:42:01.300
23 is the cure -all. And I want to explore on

00:42:01.300 --> 00:42:04.500
what basis you would oppose a statewide class.

00:42:04.599 --> 00:42:07.320
Just take that one for now. For example, and

00:42:07.320 --> 00:42:09.019
again, this is very hypothetical because I'm

00:42:09.019 --> 00:42:10.920
not predicting that we will or will not oppose

00:42:10.920 --> 00:42:13.000
that. We haven't taken a position on that yet.

00:42:13.099 --> 00:42:15.599
If you were to oppose it, on what basis would

00:42:15.599 --> 00:42:46.460
you? plausibly oppose it. case, that is a natural

00:42:46.460 --> 00:42:49.579
candidate for a Rule 23 B2 certification. That

00:42:49.579 --> 00:42:51.539
may well be true. The government hasn't taken

00:42:51.539 --> 00:42:53.940
a position on that. Our position is not that

00:42:53.940 --> 00:42:55.760
class certification will necessarily be granted.

00:42:56.179 --> 00:42:59.199
Our position is that Rule 23 is how these sorts

00:42:59.199 --> 00:43:05.769
of claims should be channeled. certification

00:43:05.769 --> 00:43:08.110
may be granted. It is possible. We don't know

00:43:08.110 --> 00:43:10.070
yet because there was a class certification motion

00:43:10.070 --> 00:43:11.809
filed at the very beginning in the Western District

00:43:11.809 --> 00:43:14.010
of Washington and it was just never briefed because

00:43:14.010 --> 00:43:16.349
obviously the pathology here is that the nationwide

00:43:16.349 --> 00:43:19.369
injunctions just go blowing past the class certification

00:43:19.369 --> 00:43:24.010
procedures. And I guess rule 23b2 for a lot of

00:43:24.010 --> 00:43:26.650
the cases we've had over the past 25 years that

00:43:26.650 --> 00:43:28.550
you talk about where there have been universal

00:43:28.550 --> 00:43:30.590
injunctions or the lower courts have had that

00:43:30.590 --> 00:43:34.519
I mean 23b2 could been used in a lot of those,

00:43:34.579 --> 00:43:38.280
presumably, correct? Eviction moratorium, student

00:43:38.280 --> 00:43:42.699
loans, OSHA vaccine mandate. Do you see the possibility

00:43:42.699 --> 00:43:46.170
that 23B2 could have been used instead of? I

00:43:46.170 --> 00:43:48.210
mean, some of those were APA, but put aside the

00:43:48.210 --> 00:43:50.690
APA issue for now. Yeah, we do set aside that

00:43:50.690 --> 00:43:54.849
issue, if I may. I got it. But yes, I agree with

00:43:54.849 --> 00:43:56.489
that as to some, but none of the other cases.

00:43:56.590 --> 00:43:58.550
It's hard to see how, for example, Biden against

00:43:58.550 --> 00:44:00.849
Nebraska, where a state was a plaintiff, might

00:44:00.849 --> 00:44:03.710
have been a 23b2 class. And the Alabama Association

00:44:03.710 --> 00:44:05.530
of Realtors might have been a much better candidate

00:44:05.530 --> 00:44:07.849
for that. And again, not taking a position on

00:44:07.849 --> 00:44:12.090
the individual merits. Our overarching point

00:44:12.090 --> 00:44:16.389
is there's a tradition. of equity in this country

00:44:16.389 --> 00:44:18.849
that goes back to the English Court of Chancery

00:44:18.849 --> 00:44:21.070
and what's happening in these universal injunctions,

00:44:21.570 --> 00:44:23.670
again, 40 times in this administration, at least

00:44:23.670 --> 00:44:26.170
22 times in the last administration, 64 times

00:44:26.170 --> 00:44:29.389
in the administration before that, is just disregarding

00:44:29.389 --> 00:44:32.349
those appropriate procedures to seek this kind

00:44:32.349 --> 00:44:34.699
of global relief. I want to ask one thing about

00:44:34.699 --> 00:44:36.840
something in your brief. You said, quote, and

00:44:36.840 --> 00:44:39.000
of course, this court's decisions constitute

00:44:39.000 --> 00:44:40.960
controlling precedent throughout the nation.

00:44:41.280 --> 00:44:43.659
If this court were to hold a challenge statute

00:44:43.659 --> 00:44:46.059
or policy unconstitutional, the government could

00:44:46.059 --> 00:44:49.480
not successfully enforce it against anyone, party

00:44:49.480 --> 00:44:52.679
or not, in light of stare decisis, end of quote.

00:44:53.599 --> 00:44:57.139
You agree with that? Yes, we do. If you prevail

00:44:57.139 --> 00:45:00.519
here, the original executive order had a 30 -day

00:45:00.519 --> 00:45:03.940
period before it took effect. If you prevail

00:45:03.940 --> 00:45:11.260
here, should there be any pause so that things

00:45:11.260 --> 00:45:14.119
can happen that need to happen for 30 days or

00:45:14.119 --> 00:45:17.239
some period of time, or should we not even worry

00:45:17.239 --> 00:45:19.579
about that? Yes, we can see that the 30 -day

00:45:19.579 --> 00:45:21.480
ramp -up period that the executive order itself

00:45:21.480 --> 00:45:25.579
calls for never started because the universal

00:45:25.579 --> 00:45:28.019
TROs were entered almost immediately, and we

00:45:28.019 --> 00:45:29.579
don't dispute that there should be a 30 -day

00:45:29.579 --> 00:45:32.510
ramp -up period. for another reason as well,

00:45:32.650 --> 00:45:34.929
which is that we've been enjoined from even doing

00:45:34.929 --> 00:45:37.369
guidance, even formulating a policy. And that

00:45:37.369 --> 00:45:39.869
itself is another problem with these injunctions.

00:45:40.110 --> 00:45:44.050
On the day after it goes into effect, it's just

00:45:44.050 --> 00:45:46.070
a very practical question how it's going to work.

00:45:46.489 --> 00:45:50.269
What do hospitals do with a newborn? What do

00:45:50.269 --> 00:45:53.829
states do? with a newborn. I don't think they

00:45:53.829 --> 00:45:55.590
do anything different. What the executive order

00:45:55.590 --> 00:45:57.849
says in section two is that federal officials

00:45:57.849 --> 00:46:01.130
do not accept documents that have the wrong designation

00:46:01.130 --> 00:46:02.949
of citizenship from people who are subject to

00:46:02.949 --> 00:46:04.150
the executive order. How are they going to know

00:46:04.150 --> 00:46:07.090
that? The states can continue to, the federal

00:46:07.090 --> 00:46:08.889
officials will have to figure that out. How?

00:46:09.429 --> 00:46:13.550
So you can imagine a number of ways that the

00:46:13.550 --> 00:46:15.940
federal officials could. Such as? such as they

00:46:15.940 --> 00:46:18.679
could require a showing of, you know, documentation

00:46:18.679 --> 00:46:21.380
showing legal presence in the country. For a

00:46:21.380 --> 00:46:23.099
temporary visitor, for example, they could see

00:46:23.099 --> 00:46:25.800
whether they're on a B -1 visa, which would exclude

00:46:25.800 --> 00:46:27.519
kind of the birthright citizenship in that country.

00:46:27.539 --> 00:46:29.780
For all the newborns? Is that how that's going

00:46:29.780 --> 00:46:33.300
to work? Again, we don't know because the agencies

00:46:33.300 --> 00:46:35.739
were never given the opportunity to formulate

00:46:35.739 --> 00:46:37.179
the guidance. They would have 30 days. They're

00:46:37.179 --> 00:46:39.239
only going to have 30 days to do this. You think

00:46:39.239 --> 00:46:42.539
they can get it together in time? That's what

00:46:42.539 --> 00:46:44.619
the executive order instructs them to do, and

00:46:44.619 --> 00:46:46.719
hopefully they will do so. Again, it's a speculative

00:46:46.719 --> 00:46:48.860
and hypothetical scenario because they were enjoined

00:46:48.860 --> 00:46:50.980
from even starting that process. And then last

00:46:50.980 --> 00:46:53.099
question. You mentioned before this has come

00:46:53.099 --> 00:46:55.440
up in the last four or five administrations,

00:46:55.599 --> 00:46:58.960
primarily. I guess I've thought about that a

00:46:58.960 --> 00:47:01.420
lot, too. Why? It seems why might be it's harder

00:47:01.420 --> 00:47:04.880
to get legislation through Congress, particularly

00:47:04.880 --> 00:47:08.219
with the filibuster rule. Presidents want to

00:47:08.219 --> 00:47:11.559
get things done with good intentions. the executive

00:47:11.559 --> 00:47:14.639
branches that work for those presidents push

00:47:14.639 --> 00:47:18.420
hard to when they can't get new authority to

00:47:18.420 --> 00:47:22.900
stretch or use existing authority. And they've

00:47:22.900 --> 00:47:25.480
been pushing, understandably, all with good intentions,

00:47:25.679 --> 00:47:27.840
all the presidents, both parties, right, with

00:47:27.840 --> 00:47:31.980
good intentions to pushing. Is that your understanding

00:47:31.980 --> 00:47:34.239
of why this has happened more that there's less?

00:47:34.599 --> 00:47:36.519
ability to get legislation because I'm trying

00:47:36.519 --> 00:47:39.159
to figure out the why to your opening about the

00:47:39.159 --> 00:47:41.539
last four or five administrations. I agree with

00:47:41.539 --> 00:47:43.920
it. I think that might be the why, but I'm curious

00:47:43.920 --> 00:47:47.579
what you think. I'm speculating about the motivations

00:47:47.579 --> 00:47:49.880
of the individual district judges to grant these,

00:47:50.159 --> 00:47:52.539
but one explanation might be this is an extraordinary

00:47:52.539 --> 00:47:55.840
power. It's a very strong power for the reasons

00:47:55.840 --> 00:47:58.300
the questions have reflected. Let me just pause

00:47:58.300 --> 00:48:01.440
you right there. The underlying point is that

00:48:01.440 --> 00:48:03.239
these district judges are not just doing universal

00:48:03.239 --> 00:48:06.420
injunctions they're finding these actions illegal

00:48:06.420 --> 00:48:09.619
because they're exceeding existing authority

00:48:09.619 --> 00:48:12.599
and oftentimes we are too when it gets to us

00:48:12.599 --> 00:48:14.860
finding the actions of presidents of both parties

00:48:14.860 --> 00:48:17.320
unlawful because they exceed existing authority

00:48:17.320 --> 00:48:21.480
so is that coming up more often because of why

00:48:21.480 --> 00:48:23.769
is that coming up more often It's hard to do

00:48:23.769 --> 00:48:25.630
a historical analysis, but I would draw an analogy

00:48:25.630 --> 00:48:28.789
to the New Deal. And Professor Bray makes this

00:48:28.789 --> 00:48:30.750
point in his article that actually there were

00:48:30.750 --> 00:48:34.659
very, very passionate challenges to nationwide

00:48:34.659 --> 00:48:36.559
policies during the Roosevelt administration,

00:48:36.820 --> 00:48:38.760
and they were not addressed by issuing universal

00:48:38.760 --> 00:48:40.559
injunctions. He cites an example where in one

00:48:40.559 --> 00:48:42.420
case a policy had been held illegal and there

00:48:42.420 --> 00:48:44.659
were like 1 ,600 injunctions against that policy,

00:48:44.900 --> 00:48:47.019
all protecting the individual plaintiffs. So

00:48:47.019 --> 00:48:49.800
if you look at the history, it's not clear that

00:48:49.800 --> 00:48:53.059
what we have of disagreement, difficulty, gridlock,

00:48:53.239 --> 00:48:54.820
getting things through Congress and so forth,

00:48:55.039 --> 00:48:58.460
that's not necessarily new. What is new and is

00:48:58.460 --> 00:49:00.960
certainly unique to the last five presidential

00:49:00.960 --> 00:49:05.059
administrations is having these given on this

00:49:05.059 --> 00:49:07.500
widespread basis and the systematic basis 40

00:49:07.500 --> 00:49:09.960
again in the last four months. Thank you. Justice

00:49:09.960 --> 00:49:12.880
Barrett. General Sauer, I want to ask you about

00:49:12.880 --> 00:49:15.139
a potential tension. Well no, not potential tension,

00:49:15.300 --> 00:49:17.139
an actual tension that I see in answers that

00:49:17.139 --> 00:49:19.159
you gave to Justice Kavanaugh and Justice Kagan.

00:49:20.150 --> 00:49:23.030
You resisted Justice Kagan when she asked you

00:49:23.030 --> 00:49:25.469
whether the government would obey within the

00:49:25.469 --> 00:49:27.949
Second Circuit a precedent. I'm distinguishing

00:49:27.949 --> 00:49:30.750
between opinions and judgments here. Did I understand

00:49:30.750 --> 00:49:33.349
you correctly to tell Justice Kagan that the

00:49:33.349 --> 00:49:35.909
government wanted to reserve its right to maybe

00:49:35.909 --> 00:49:39.369
not follow a Second Circuit precedent, say, in

00:49:39.369 --> 00:49:41.230
New York because you might disagree with the

00:49:41.230 --> 00:49:45.690
opinion? Our general practice is to respect those

00:49:45.690 --> 00:49:47.929
precedents. But there are circumstances when

00:49:47.929 --> 00:49:51.909
it is not a categorical practice. This administration's

00:49:51.909 --> 00:49:53.710
practice or the long -standing practice of the

00:49:53.710 --> 00:49:55.230
federal government? And I'm not talking about

00:49:55.230 --> 00:49:57.429
in the Fourth Circuit. Are you going to respect

00:49:57.429 --> 00:49:59.469
a Second Circuit? I'm talking about within the

00:49:59.469 --> 00:50:01.650
Second Circuit. And can you say, is that this

00:50:01.650 --> 00:50:03.590
administration's practice or a long -standing

00:50:03.590 --> 00:50:05.900
one? As I understand it, long -standing policy

00:50:05.900 --> 00:50:08.239
of the Department of Justice. Yes, that we generally,

00:50:08.440 --> 00:50:11.400
as it was phrased to me, generally respect circuit

00:50:11.400 --> 00:50:13.260
president, but not necessarily in every case.

00:50:13.780 --> 00:50:16.159
And some examples might be a situation where

00:50:16.159 --> 00:50:18.059
we're litigating to try and get that circuit

00:50:18.059 --> 00:50:20.800
president overruled and so forth. Well, okay,

00:50:20.920 --> 00:50:23.360
so I'm not talking about a situation in which,

00:50:23.360 --> 00:50:25.320
you know, the Second Circuit has a case from

00:50:25.320 --> 00:50:28.559
1955 and you think it's time for it to be challenged.

00:50:28.639 --> 00:50:30.300
That's not what I'm talking about. I'm talking

00:50:30.300 --> 00:50:32.159
about in this kind of situation. I'm talking

00:50:32.159 --> 00:50:34.820
about this week the Second Circuit holds that

00:50:34.820 --> 00:50:37.119
the executive order is unconstitutional and then

00:50:37.119 --> 00:50:39.179
what do you do the next day or the next week?

00:50:39.519 --> 00:50:41.280
Generally, we follow those. So you're still saying

00:50:41.280 --> 00:50:43.460
generally? Yes. And you still think that it's

00:50:43.460 --> 00:50:45.940
generally the policy, long -standing policy of

00:50:45.940 --> 00:50:47.239
the federal government to take that approach?

00:50:47.239 --> 00:50:49.780
That is my understanding. Okay, so... But it

00:50:49.780 --> 00:50:52.239
sounds to me like you accept a Cooper versus

00:50:52.239 --> 00:50:54.920
Aaron kind of situation for the Supreme Court,

00:50:54.920 --> 00:50:58.039
but not for, say, the Second Circuit, where you

00:50:58.039 --> 00:51:00.730
would respect the opinions. And the judgments

00:51:00.730 --> 00:51:02.750
of the Supreme Court. And you're saying you would

00:51:02.750 --> 00:51:05.090
respect the judgment, but not necessarily the

00:51:05.090 --> 00:51:06.769
opinion of a lower court. And again, I think

00:51:06.769 --> 00:51:08.429
in the vast majority of instances, our practice

00:51:08.429 --> 00:51:10.809
has been to respect the opinion as well in the

00:51:10.809 --> 00:51:12.489
circuits as well. But my understanding is that

00:51:12.489 --> 00:51:14.730
has not been a categorical practice in the way

00:51:14.730 --> 00:51:17.269
respect for the precedents and the judgments

00:51:17.269 --> 00:51:18.929
of the Supreme Court has been. So you're not

00:51:18.929 --> 00:51:20.670
hedging it all with respect to the precedent

00:51:20.670 --> 00:51:23.750
of this court? That is correct. I believe the

00:51:23.750 --> 00:51:25.869
quotation from our application directly addresses

00:51:25.869 --> 00:51:29.389
that. And we stand by that completely. OK. Next

00:51:29.389 --> 00:51:32.030
question. So this is also a follow -up to some

00:51:32.030 --> 00:51:34.369
of the questions that others have asked you about

00:51:34.369 --> 00:51:36.969
the merits of the order not being before us.

00:51:37.369 --> 00:51:39.269
Did I understand your answer to be because you

00:51:39.269 --> 00:51:41.230
think percolation is really important for this

00:51:41.230 --> 00:51:43.889
one? We do think percolation is really important

00:51:43.889 --> 00:51:46.010
for this one, but the reason the merits are not

00:51:46.010 --> 00:51:47.809
before is because we've only submitted a stay

00:51:47.809 --> 00:51:49.590
application on the scope of relief question.

00:51:49.849 --> 00:51:52.230
And as Labrador against Poe indicates, the scope

00:51:52.230 --> 00:51:54.110
of relief is a separate question for them. Oh,

00:51:54.210 --> 00:51:56.030
I understand it's a separate question, but there

00:51:56.030 --> 00:51:57.269
are plenty of times that the government comes

00:51:57.269 --> 00:52:00.349
to us and asks for both. Absolutely. For example,

00:52:00.449 --> 00:52:03.050
recently in the Wilkins and Cox application,

00:52:03.190 --> 00:52:04.710
we did exactly that. And the reason why you didn't

00:52:04.710 --> 00:52:07.409
ask for both here is because you think that the

00:52:07.409 --> 00:52:10.670
merits question needs percolation. Yes, but also

00:52:10.670 --> 00:52:13.670
more fundamentally, it illustrates that the very

00:52:13.670 --> 00:52:15.750
problem with these nationwide injunctions is

00:52:15.750 --> 00:52:20.769
they force this rushed, you know, fast and furious

00:52:20.769 --> 00:52:22.730
decisions on the merits. So I think it would

00:52:22.730 --> 00:52:24.630
be very inappropriate in this case to come to

00:52:24.630 --> 00:52:26.809
a stay application saying, please give us a rushed,

00:52:26.809 --> 00:52:29.230
you know, decision on the merits of something

00:52:29.230 --> 00:52:30.849
that's very, very complex. But the government's

00:52:30.849 --> 00:52:33.710
done that in other cases too, right? Those cases.

00:52:34.360 --> 00:52:35.920
would be different in this case. The example

00:52:35.920 --> 00:52:37.500
I gave earlier, we think it's very clear cut

00:52:37.500 --> 00:52:40.659
on the merits. This one is, we concede a novel

00:52:40.659 --> 00:52:41.739
and sensitive question. So this one isn't clear

00:52:41.739 --> 00:52:44.159
cut on the merits? This one, in this case, we

00:52:44.159 --> 00:52:46.260
want the court to address the remedial issue.

00:52:46.460 --> 00:52:48.239
If we offer the merit first, that's a vehicle

00:52:48.239 --> 00:52:50.539
problem because the court has in many cases just

00:52:50.539 --> 00:52:52.300
addressed the merits and not the remedial issue.

00:52:52.320 --> 00:52:54.639
And it's imperative from the federal government's

00:52:54.639 --> 00:52:56.940
perspective that the remedial question be addressed.

00:52:57.159 --> 00:53:00.199
OK, so last question is about why that is. Justice

00:53:00.199 --> 00:53:03.659
Alito asked you, well, what's the point of this?

00:53:04.250 --> 00:53:07.489
the same thing could happen, which is effectively

00:53:07.489 --> 00:53:10.730
the EO being enjoined everywhere via class action

00:53:10.730 --> 00:53:13.130
or because it's necessary to provide complete

00:53:13.130 --> 00:53:16.610
relief, say, to the states. Is there any difference

00:53:16.610 --> 00:53:19.750
in your view between, say, a class is certified

00:53:19.750 --> 00:53:22.670
of all individual plaintiffs and they win? And

00:53:22.670 --> 00:53:26.230
the executive order class -wide, there's a judgment

00:53:26.230 --> 00:53:29.010
saying that it can't be enforced. Do you want

00:53:29.010 --> 00:53:31.530
to say, you know, follow up? Is there any practical

00:53:31.530 --> 00:53:33.650
distinction you see? Why does the government

00:53:33.650 --> 00:53:36.840
care? Is it just the rigors of the certification

00:53:36.840 --> 00:53:39.239
process, or is it something more? The rigors

00:53:39.239 --> 00:53:41.360
of the certification process. Keep in mind that,

00:53:41.460 --> 00:53:43.739
in many of these cases, we successfully oppose

00:53:43.739 --> 00:53:46.059
class action. Let's assume, I think, you can't

00:53:46.059 --> 00:53:48.019
successfully oppose it here for individual plaintiffs.

00:53:48.179 --> 00:53:50.099
Well, I mean, that opportunity to have our day

00:53:50.099 --> 00:53:51.920
in court on that is very, very important. I understand,

00:53:51.940 --> 00:53:54.739
but let's assume. Go with my assumption. Assuming

00:53:54.739 --> 00:53:58.360
that we were to lose... Assume the class is certified.

00:53:58.480 --> 00:54:00.880
Is there any benefit? If a class is certified,

00:54:01.179 --> 00:54:02.659
and let's say, you know, you were pointing out

00:54:02.659 --> 00:54:04.320
that the executive order targets... different

00:54:04.320 --> 00:54:07.099
kinds of people. Let's assume that it's commonality

00:54:07.099 --> 00:54:10.860
because they only target one portion of the order,

00:54:10.940 --> 00:54:14.300
right? In that circumstance, does the government

00:54:14.300 --> 00:54:16.920
get anything different? This is back to Justice

00:54:16.920 --> 00:54:19.059
Alito's question about what's it to you? What's

00:54:19.059 --> 00:54:20.860
the practical difference to you? Do you want

00:54:20.860 --> 00:54:22.880
to say anything about whether there's a practical

00:54:22.880 --> 00:54:25.659
difference between a universal injunction and

00:54:25.659 --> 00:54:29.519
a loss in the class? Absolutely. Among many others,

00:54:30.960 --> 00:54:34.480
the represented class members are bound. in the

00:54:34.480 --> 00:54:36.360
class action context. And that means that if

00:54:36.360 --> 00:54:39.159
they lose, they're bound by that as well. So

00:54:39.159 --> 00:54:41.559
they're taking a grave risk, so to speak, by

00:54:41.559 --> 00:54:43.500
proceeding through a class action. And it has

00:54:43.500 --> 00:54:45.579
this symmetry where the government is bound.

00:54:45.599 --> 00:54:48.400
If we lose, they are bound if we don't lose.

00:54:48.420 --> 00:54:50.179
And that's a very, very important decision. And

00:54:50.179 --> 00:54:53.559
you would respect that judgment? Yes, if it were

00:54:53.559 --> 00:54:56.219
a judgment. Now, we may try to litigate another

00:54:56.219 --> 00:54:58.159
context to try and get a different judgment from

00:54:58.159 --> 00:55:00.559
a different district court. But we would be bound

00:55:00.559 --> 00:55:03.099
by that judgment, as would they. And that's the

00:55:03.099 --> 00:55:06.860
crucial point. Justice Jackson? So as far as

00:55:06.860 --> 00:55:10.440
I can tell, your bottom line seems to be that

00:55:10.440 --> 00:55:13.739
what you call universal injunctions give relief

00:55:13.739 --> 00:55:19.139
to non -parties without going through the necessary

00:55:19.139 --> 00:55:23.139
steps, which you identify in Rule 23. Do I have

00:55:23.139 --> 00:55:25.880
that right? I mean, is that sort of like boiled

00:55:25.880 --> 00:55:28.150
to bare essence what you're saying? I would say

00:55:28.150 --> 00:55:29.969
there's a lot more to it, but that's one very

00:55:29.969 --> 00:55:32.130
important point. That's a key point that I want

00:55:32.130 --> 00:55:35.469
to focus in on for a moment. I guess I don't

00:55:35.469 --> 00:55:40.150
understand why you are saying that these kinds

00:55:40.150 --> 00:55:44.170
of injunctions are giving relief to non -parties.

00:55:44.170 --> 00:55:47.489
First of all, I think they can be also easily

00:55:47.489 --> 00:55:51.409
characterized as focusing only on the defendant

00:55:51.409 --> 00:55:54.269
pursuant to the court's jurisdiction, personal

00:55:54.269 --> 00:55:59.309
jurisdiction over this person relative to the

00:55:59.309 --> 00:56:01.510
subject matter jurisdiction that the court has,

00:56:02.070 --> 00:56:06.849
and the relief is telling the defendant stop

00:56:06.849 --> 00:56:10.570
doing this thing that the court has found to

00:56:10.570 --> 00:56:14.690
be unlawful. So rather than characterizing it

00:56:14.690 --> 00:56:17.869
as a quote unquote universal injunction, I think

00:56:17.869 --> 00:56:21.449
one could easily see that this is just about

00:56:21.449 --> 00:56:25.050
the extent to which the court can constrain a

00:56:25.050 --> 00:56:27.289
defendant over whom it has personal jurisdiction,

00:56:27.869 --> 00:56:31.349
can it do so completely or just partially with

00:56:31.349 --> 00:56:34.090
respect to, you know, just say stop with respect

00:56:34.090 --> 00:56:37.579
to this plaintiff? Am I miscar, like I just,

00:56:37.639 --> 00:56:39.840
I don't understand where this idea of universal

00:56:39.840 --> 00:56:42.360
injunctions comes from in this context. I think

00:56:42.360 --> 00:56:44.639
the relevant distinction is an order that orders

00:56:44.639 --> 00:56:47.280
in this case the government defendant to cease

00:56:47.280 --> 00:56:49.699
allegedly unlawful activity as to the parties

00:56:49.699 --> 00:56:52.119
who have come into court and sued and one that

00:56:52.119 --> 00:56:55.079
says to the government defendant cease the allegedly

00:56:55.079 --> 00:56:57.400
lawful activity against everyone in the entire

00:56:57.400 --> 00:56:59.880
world. No, just cease it. Just stop. This thing,

00:57:00.219 --> 00:57:03.079
this executive order, I mean we do this in the

00:57:03.150 --> 00:57:06.429
uh, APA context all the time, right? The statute

00:57:06.429 --> 00:57:10.210
says you hold that the, you set aside the conduct,

00:57:10.389 --> 00:57:12.989
right? That it's unlawful. And we don't really

00:57:12.989 --> 00:57:15.309
parse it out and say, okay, but it's unlawful

00:57:15.309 --> 00:57:18.190
only as it applies to the plaintiff or not. So

00:57:18.190 --> 00:57:21.869
it's a very common concept for the court to enjoin

00:57:21.869 --> 00:57:25.449
a defendant from doing particular unlawful behavior.

00:57:25.730 --> 00:57:28.929
And what you're now asking us to do is to require

00:57:29.280 --> 00:57:31.920
that the court have an additional limitation

00:57:31.920 --> 00:57:36.139
in its order that says you only have to stop

00:57:36.139 --> 00:57:38.880
doing this with respect to the plaintiff. And

00:57:38.880 --> 00:57:42.699
that's the part that I don't understand. I guess,

00:57:43.019 --> 00:57:44.460
from what I can read from your papers and what

00:57:44.460 --> 00:57:47.500
you've said here, that limitation you say comes

00:57:47.500 --> 00:57:50.599
from this principle that if you don't do that,

00:57:50.599 --> 00:57:54.760
you would be somehow giving relief to non -parties.

00:57:55.139 --> 00:58:00.059
But I wonder if that's right. It seems to me

00:58:00.059 --> 00:58:04.039
that the relief is the judgment that you provide

00:58:04.039 --> 00:58:07.760
to the plaintiff that says, stop doing this conduct.

00:58:07.960 --> 00:58:09.739
And you give it only to the plaintiff. That's

00:58:09.739 --> 00:58:12.139
where the limitation comes. The plaintiff is

00:58:12.139 --> 00:58:15.199
the only person who can go to court after you

00:58:15.199 --> 00:58:18.639
violate this order and enforce it. Other people

00:58:18.639 --> 00:58:22.280
are incidental beneficiaries of a court ordering

00:58:22.280 --> 00:58:24.559
you to follow the law. I mean, that's like everyone

00:58:24.559 --> 00:58:27.639
in the world when the court says, follow the

00:58:27.639 --> 00:58:29.920
law, anybody who would have been hurt by your

00:58:29.920 --> 00:58:33.820
not following the law benefits. OK. I don't understand

00:58:33.820 --> 00:58:36.280
why that would limit the court in its ability

00:58:36.280 --> 00:58:39.699
to tell you, don't do this unlawful conduct.

00:58:40.500 --> 00:58:42.619
Two responses to that. There's a lot there. Two

00:58:42.619 --> 00:58:44.519
responses to that. One is that principle that

00:58:44.519 --> 00:58:46.480
your question referred to is the holding of the

00:58:46.480 --> 00:58:48.460
court in Worth against Selden, and it's reaffirmed

00:58:48.460 --> 00:58:51.300
in Gill against Whitford, in Lewis against Casey,

00:58:51.440 --> 00:58:55.750
and similar cases that the authority of the federal

00:58:55.750 --> 00:58:57.469
court, whether it's viewed as arising under Article

00:58:57.469 --> 00:58:59.690
3 or under its traditional scope of equitable

00:58:59.690 --> 00:59:03.710
authority, is to remediate the injuries to the

00:59:03.710 --> 00:59:06.010
complaining party. And then to address your question

00:59:06.010 --> 00:59:08.949
about... Can I just stop you there? I'm, as the

00:59:08.949 --> 00:59:11.909
court, remediating the injury by telling the

00:59:11.909 --> 00:59:14.829
defendant to stop doing this behavior. The plaintiff

00:59:14.829 --> 00:59:17.750
has brought a claim that this executive order

00:59:17.750 --> 00:59:21.269
is unlawful. I look at it, I litigate it, and

00:59:21.269 --> 00:59:24.159
I say you're right. Stop doing it. You cannot

00:59:24.159 --> 00:59:26.519
enforce this order. So I don't understand why

00:59:26.519 --> 00:59:29.280
that's like outside the scope of Worth versus

00:59:29.280 --> 00:59:32.440
Sullivan. If the court in that case is imposing

00:59:32.440 --> 00:59:34.659
what we've called an indivisible remedy, for

00:59:34.659 --> 00:59:37.440
example, vacator under the APA, there's a debate

00:59:37.440 --> 00:59:39.579
about what set aside means. Assuming it means

00:59:39.579 --> 00:59:43.469
to vacate, then the remedy that Congress has

00:59:43.469 --> 00:59:46.449
provided as a condition of its delegation to

00:59:46.449 --> 00:59:51.030
the agency is if one part of the, you know, if

00:59:51.030 --> 00:59:54.650
the regulation is unlawful, then the remedy granted,

00:59:54.690 --> 00:59:57.030
which directly remediates the plaintiff's injury

00:59:57.030 --> 00:59:59.210
on that hypothetical, is an indivisible remedy

00:59:59.210 --> 01:00:01.429
that benefits others. Here, in this case, and

01:00:01.429 --> 01:00:03.730
in all the other 40 cases, we see something totally

01:00:03.730 --> 01:00:05.130
different. Yeah, I understand. It is not necessary

01:00:05.130 --> 01:00:06.789
to remediate the injuries of the plaintiff before

01:00:06.789 --> 01:00:09.909
them. I understand. Let me just turn your attention

01:00:09.909 --> 01:00:11.530
to one other thing, because the real concern

01:00:11.469 --> 01:00:14.570
I think, is that your argument seems to turn

01:00:14.570 --> 01:00:17.610
our justice system, in my view at least, into

01:00:17.610 --> 01:00:21.489
a catch -me -if -you -can kind of regime from

01:00:21.489 --> 01:00:24.090
the standpoint of the executive, where everybody

01:00:24.090 --> 01:00:27.579
has to have a lawyer. and file a lawsuit in order

01:00:27.579 --> 01:00:29.840
for the government to stop violating people's

01:00:29.840 --> 01:00:32.599
rights. Justice Kagan says, let's assume for

01:00:32.599 --> 01:00:35.579
the purpose of this, that you're wrong about

01:00:35.579 --> 01:00:37.920
the merits, that the government is not allowed

01:00:37.920 --> 01:00:40.519
to do this under the Constitution, and yet it

01:00:40.519 --> 01:00:42.900
seems to me that your argument says we get to

01:00:42.900 --> 01:00:46.579
keep on doing it until everyone who is potentially

01:00:46.579 --> 01:00:50.920
harmed by it figures out how to file a lawsuit,

01:00:51.360 --> 01:00:54.320
hire a lawyer, etc. And I don't understand how

01:00:54.320 --> 01:00:58.519
that is remotely consistent with the rule of

01:00:58.519 --> 01:01:01.000
law. You know, a system, and I appreciate that

01:01:01.000 --> 01:01:04.059
you go back to English common law and the Chancery

01:01:04.059 --> 01:01:06.960
Court, but they had a different system. The fact

01:01:06.960 --> 01:01:10.739
that courts back in English Chancery couldn't

01:01:10.739 --> 01:01:14.860
enjoin the king. I think is not analogous or

01:01:14.860 --> 01:01:17.860
indicative of what courts can do in our system,

01:01:18.260 --> 01:01:20.639
where the king, quote unquote, the executive,

01:01:21.019 --> 01:01:23.960
is supposed to be bound by the law. And the court

01:01:23.960 --> 01:01:27.599
has the power to say what the law is. And so

01:01:27.599 --> 01:01:30.820
one would think that the court could say, this

01:01:30.820 --> 01:01:33.579
conduct is unlawful, and you have to stop doing

01:01:33.579 --> 01:01:37.219
it. I think the catch me if you can problem.

01:01:37.469 --> 01:01:39.869
operates in the opposite direction, where we

01:01:39.869 --> 01:01:41.510
have the government racing from jurisdiction

01:01:41.510 --> 01:01:43.769
to jurisdiction, having to sort of clear the

01:01:43.769 --> 01:01:46.309
table in order to implement a new policy. A great

01:01:46.309 --> 01:01:47.929
example of this is in the Schilling litigation,

01:01:48.369 --> 01:01:51.650
where the military had a military readiness policy.

01:01:51.650 --> 01:01:54.710
It was universally enjoined by the DDC. It went

01:01:54.710 --> 01:01:56.949
up to the DC Circuit. The DC Circuit stayed that

01:01:56.949 --> 01:01:59.909
injunction to allow that policy to go into effect.

01:02:00.090 --> 01:02:02.869
And then one hour later, a district court on

01:02:02.869 --> 01:02:04.349
the other side of the country universally...

01:02:04.349 --> 01:02:06.550
Can I just ask you one final thing, because this

01:02:06.550 --> 01:02:08.730
relates to also something that Justice Kagan

01:02:08.730 --> 01:02:13.469
said. I would think we'd want the system to move

01:02:13.469 --> 01:02:16.730
as quickly as possible to reach the merits of

01:02:16.730 --> 01:02:19.989
the issue and maybe have this court decide whether

01:02:19.989 --> 01:02:22.170
or not the government is entitled to do this

01:02:22.170 --> 01:02:26.889
under the law. Wouldn't having universal injunctions

01:02:26.889 --> 01:02:30.550
actually facilitate that? It seems to me that

01:02:30.550 --> 01:02:33.269
when the government is completely enjoined from

01:02:33.269 --> 01:02:35.809
doing the thing it wants to do, it moves quickly.

01:02:36.559 --> 01:02:39.579
to appeal that, to get it to the Supreme Court,

01:02:39.619 --> 01:02:41.960
and that's actually what we would want. What

01:02:41.960 --> 01:02:45.119
I worry about is similar to what Justice Kagan

01:02:45.119 --> 01:02:47.860
points out, is that if the government is saying

01:02:47.860 --> 01:02:52.460
no lower court can completely enjoin it, it actually

01:02:52.460 --> 01:02:54.539
means that the government just keeps on doing

01:02:54.539 --> 01:02:57.900
the purportedly unlawful thing and it delays

01:02:57.900 --> 01:03:01.119
the ability for this court to reach the underlying

01:03:01.119 --> 01:03:06.730
issue. novel, sensitive constitutional issues

01:03:06.730 --> 01:03:10.650
is a merit of our system. It is not a bad feature

01:03:10.650 --> 01:03:13.190
of the system. Thank you. Thank you, counsel.

01:03:13.929 --> 01:03:16.409
Mr. Feigenbaum. Mr. Chief Justice, and may it

01:03:16.409 --> 01:03:18.510
please the court. This court should deny the

01:03:18.510 --> 01:03:20.860
emergency application. because this injunction

01:03:20.860 --> 01:03:23.260
was properly designed to ensure that the states

01:03:23.260 --> 01:03:26.000
would get relief for our own Article 3 injuries

01:03:26.000 --> 01:03:28.780
as we suffer significant pocketbook and sovereign

01:03:28.780 --> 01:03:31.699
harms from implementation of this executive order,

01:03:32.320 --> 01:03:34.579
including from the application of this EO to

01:03:34.579 --> 01:03:37.000
the 6 ,000 babies born to New Jersey parents

01:03:37.000 --> 01:03:40.500
out of state every year. The U .S. prefers alternative

01:03:40.500 --> 01:03:42.840
approaches for granting that relief, alternatives

01:03:42.840 --> 01:03:44.760
it never raised in the district court below.

01:03:45.210 --> 01:03:47.650
But its approach would require citizenship to

01:03:47.650 --> 01:03:49.650
vary based on the state in which you're born,

01:03:50.289 --> 01:03:52.909
or even turn on or off when someone crosses state

01:03:52.909 --> 01:03:56.829
lines, raising serious and unanswered administrability

01:03:56.829 --> 01:03:59.489
questions, not just for the federal government,

01:03:59.769 --> 01:04:02.250
but also for the states. And it would offend

01:04:02.250 --> 01:04:04.570
the text and history of the citizenship clause

01:04:04.570 --> 01:04:08.030
itself. Since the 14th Amendment, Our country

01:04:08.030 --> 01:04:10.710
has never allowed American citizenship to vary

01:04:10.710 --> 01:04:12.789
based on the state in which someone resides,

01:04:13.449 --> 01:04:15.789
because the post -Civil War nation wrote into

01:04:15.789 --> 01:04:18.309
our Constitution that citizens of the United

01:04:18.309 --> 01:04:20.469
States and of the states would be one and the

01:04:20.469 --> 01:04:23.760
same without variation across state lines. The

01:04:23.760 --> 01:04:26.300
U .S. has claimed that Article 3 establishes

01:04:26.300 --> 01:04:28.860
a bright line rule barring such injunctions no

01:04:28.860 --> 01:04:31.460
matter the circumstance, even where the states

01:04:31.460 --> 01:04:34.239
do need it to meet their own harms, finds no

01:04:34.239 --> 01:04:36.460
support in this court's cases or in the history

01:04:36.460 --> 01:04:39.119
of equity. It's argument that a single district

01:04:39.119 --> 01:04:41.780
court cannot decide birthright citizenship or

01:04:41.780 --> 01:04:43.559
that we need more percolation on that question

01:04:43.559 --> 01:04:46.489
for the nation overlooks that this court already

01:04:46.489 --> 01:04:49.829
settled this exact constitutional question 127

01:04:49.829 --> 01:04:52.869
years ago, and that this EO is contrary to over

01:04:52.869 --> 01:04:56.449
a century of executive practice. Finally, the

01:04:56.449 --> 01:04:59.329
US's objection that nationwide PIs have simply

01:04:59.329 --> 01:05:02.090
become too common in the last few months, a complaint

01:05:02.090 --> 01:05:04.769
about other injunctions sought by other parties

01:05:04.769 --> 01:05:07.570
cannot undermine the extraordinary basis for

01:05:07.570 --> 01:05:10.579
this one. The states, who regularly come before

01:05:10.579 --> 01:05:12.679
this court as plaintiff and defendant alike,

01:05:13.159 --> 01:05:15.260
agree that nationwide relief can be reserved

01:05:15.260 --> 01:05:18.099
for narrow circumstances, but it was needed here.

01:05:18.460 --> 01:05:22.360
I welcome this court's questions. Putting the

01:05:22.360 --> 01:05:26.260
merits aside, what do you think is the origin

01:05:26.260 --> 01:05:30.480
of... or at least a pedigree of universal injunctions

01:05:30.480 --> 01:05:33.099
to cleave the bell of peace, if you would discuss

01:05:33.099 --> 01:05:35.179
that. Absolutely, Your Honor. So there's two

01:05:35.179 --> 01:05:37.679
categories of these broad injunctions. So first,

01:05:38.019 --> 01:05:40.019
although we use the term nationwide injunction,

01:05:40.179 --> 01:05:42.360
if the nationwide injunction is actually about

01:05:42.360 --> 01:05:44.639
meeting our harm and the alternatives are not

01:05:44.639 --> 01:05:46.820
legally or practically workable, then it isn't

01:05:46.820 --> 01:05:49.380
even a universal injunction, as I know this court's

01:05:49.380 --> 01:05:51.039
separate writings has used the term, because

01:05:51.039 --> 01:05:53.099
it's about meeting our own Article III injury,

01:05:53.119 --> 01:05:54.900
which is our basic submission about this case.

01:05:55.139 --> 01:05:57.599
But we do agree that there's some space for universal

01:05:57.599 --> 01:05:59.739
relief. We trace it back through the history

01:05:59.739 --> 01:06:02.480
from the Bill of Peace through Equity Rule 48,

01:06:02.559 --> 01:06:04.900
which specifically clarified that in the American

01:06:04.900 --> 01:06:07.400
equitable tradition, it was not always the case

01:06:07.400 --> 01:06:09.880
that universal relief would bind to the nonparties,

01:06:10.019 --> 01:06:12.659
even as it might benefit the nonparties, continuing

01:06:12.659 --> 01:06:15.639
on to the tax collection injunctions in the 19th

01:06:15.639 --> 01:06:17.599
century, and then continuing on as recently as

01:06:17.599 --> 01:06:20.179
this court's order in AARP. So I do think they've

01:06:20.179 --> 01:06:22.039
always been in narrow circumstances. They've

01:06:22.039 --> 01:06:24.480
never been the reflexive or norm of how relief

01:06:24.480 --> 01:06:26.690
should be granted in this country. but they have

01:06:26.690 --> 01:06:28.329
been available. I don't think I need that for

01:06:28.329 --> 01:06:29.869
my case, but I do think they're available in

01:06:29.869 --> 01:06:32.630
narrow circumstances. You say they should be

01:06:32.630 --> 01:06:35.309
available only in narrow circumstances. Why is

01:06:35.309 --> 01:06:37.789
that? Yeah, so I could offer the three that I

01:06:37.789 --> 01:06:39.869
think make the most sense. But we're mindful

01:06:39.869 --> 01:06:41.670
of some of the concerns that the United States

01:06:41.670 --> 01:06:44.070
raises. We are states who've benefited from federal

01:06:44.070 --> 01:06:45.909
policies. We are states who have our own statutes

01:06:45.909 --> 01:06:48.250
and policies. So sometimes we are on the other

01:06:48.250 --> 01:06:50.570
side of the V in cases involving universal relief.

01:06:50.809 --> 01:06:52.929
So we are sympathetic to some of the concerns

01:06:52.929 --> 01:06:55.429
the United States has about percolation, about

01:06:55.429 --> 01:06:57.929
running the table in particular cases. We just

01:06:57.929 --> 01:06:59.670
don't think that that supports a bright line

01:06:59.670 --> 01:07:02.409
rule that says they're never available. And we've

01:07:02.409 --> 01:07:04.590
identified, I think, at least three circumstances

01:07:04.590 --> 01:07:06.219
where they would make sense to be available.

01:07:06.559 --> 01:07:09.079
The first would be in cases where the alternative

01:07:09.079 --> 01:07:11.980
ways of remedying the harm for the parties are

01:07:11.980 --> 01:07:14.699
not practically or legally workable. That's this

01:07:14.699 --> 01:07:16.760
case, and I'll return to that in a second. The

01:07:16.760 --> 01:07:18.699
second would be congressional authorization.

01:07:19.079 --> 01:07:21.079
So I took my friend on the other side to try

01:07:21.079 --> 01:07:23.340
to set aside Vakitor, but I do think that Article

01:07:23.340 --> 01:07:26.219
3 objections would raise serious questions for

01:07:26.219 --> 01:07:28.780
remedies like Vakitor, for remedies like the

01:07:28.780 --> 01:07:31.119
Hobbs Act. Even the Hobbs Act, which could set

01:07:31.119 --> 01:07:34.360
a nationwide PI after a multi -circuit lottery,

01:07:34.780 --> 01:07:36.440
might ultimately have problems under their view

01:07:36.440 --> 01:07:38.820
of Article 3. And then the third thing I would

01:07:38.820 --> 01:07:41.260
say is there may be cases in which the ultimate

01:07:41.099 --> 01:07:43.119
alternative forms of getting non -party relief

01:07:43.119 --> 01:07:45.980
are not legally or practically available. So

01:07:45.980 --> 01:07:48.539
that might be a case like AARP, or even a case

01:07:48.539 --> 01:07:51.039
like this one, where district courts could consider

01:07:51.039 --> 01:07:53.079
the availability of the class action device,

01:07:53.360 --> 01:07:54.880
but if it couldn't move fast enough, because

01:07:54.880 --> 01:07:58.619
rule 23 doesn't include TROs and PIs, if it couldn't

01:07:58.619 --> 01:08:00.420
move fast enough in those contexts, courts might

01:08:00.420 --> 01:08:02.420
need to step in anyway. But I think we fit in

01:08:02.420 --> 01:08:04.619
the first bucket in this particular case, because

01:08:04.619 --> 01:08:07.079
the alternative ways of remedying our particular

01:08:07.079 --> 01:08:09.320
significant pocketbook harms to the tunes of

01:08:09.320 --> 01:08:11.500
millions of dollars can't be remedied, as the

01:08:11.500 --> 01:08:13.280
district court found below, without granting

01:08:13.280 --> 01:08:16.199
us this kind of relief. Well, I mean, you could

01:08:16.199 --> 01:08:20.199
benefit through percolation and a decision from

01:08:20.199 --> 01:08:25.899
this court with reasonable expedition. So I have

01:08:25.899 --> 01:08:28.840
no objections to reasonable expedition. We would

01:08:28.840 --> 01:08:31.260
have no objection to this court even setting

01:08:31.260 --> 01:08:33.140
supplemental briefing on the merits and hearing

01:08:33.140 --> 01:08:34.939
the merits directly. I'm happy to talk about

01:08:34.939 --> 01:08:37.039
the ways in which I think the merits do bear

01:08:37.039 --> 01:08:39.800
on this emergency application. But more fundamentally

01:08:39.800 --> 01:08:42.180
to your question, Mr. Chief Justice, I would

01:08:42.180 --> 01:08:44.100
just note that I don't think the alternatives

01:08:44.100 --> 01:08:46.899
actually fully remedy our injuries in a couple

01:08:46.899 --> 01:08:49.100
of different respects. So I heard my friend on

01:08:49.100 --> 01:08:51.539
the other side to specifically say today that

01:08:51.539 --> 01:08:53.399
maybe there can be an instruction to the federal

01:08:53.399 --> 01:08:54.840
government that at least when you're dealing

01:08:54.840 --> 01:08:57.340
with the plaintiff states, you treat these individuals

01:08:57.340 --> 01:08:59.899
kind of as though they're citizens, even if they're

01:08:59.899 --> 01:09:02.539
not really citizens. And that doesn't work not

01:09:02.539 --> 01:09:04.420
just for the federal government. I agree, Justice

01:09:04.420 --> 01:09:06.840
Gorsuch. It may well be that the federal government

01:09:06.840 --> 01:09:09.020
can decide when to take its own medicine. But

01:09:09.020 --> 01:09:11.100
I'm talking about administrability burdens on

01:09:11.100 --> 01:09:13.340
the states, and I'm talking about administrability

01:09:13.340 --> 01:09:15.060
burdens on third parties as well. Can I ask you

01:09:15.060 --> 01:09:17.640
a question about that, counsel? Your three buckets

01:09:17.640 --> 01:09:19.500
are very thoughtful. The first one seems to me

01:09:19.500 --> 01:09:22.229
kind of consistent with traditional equity. which

01:09:22.229 --> 01:09:25.869
is if you've got a remedy, the plaintiff's harm.

01:09:26.409 --> 01:09:27.930
That's your point there, and you're saying we

01:09:27.930 --> 01:09:31.529
fall in that bucket. I get that argument. The

01:09:31.529 --> 01:09:39.329
second bucket is possibly Article 3, okay, that

01:09:39.329 --> 01:09:41.430
Congress could authorize, maybe has authorized

01:09:41.430 --> 01:09:43.890
circumstances, but that doesn't answer the equity

01:09:43.890 --> 01:09:48.329
point. So we come to bucket 3. And I'm struggling

01:09:48.329 --> 01:09:51.890
to understand what the rule is there. You seem

01:09:51.890 --> 01:09:56.869
to suggest, well, if it's really important and

01:09:56.869 --> 01:10:00.689
if you have to act expeditiously, then go ahead.

01:10:01.130 --> 01:10:03.750
But I think every district court who enters one

01:10:03.750 --> 01:10:07.729
of these thinks that's what they're doing. So

01:10:07.729 --> 01:10:10.189
what's the constraint there if you share the

01:10:10.189 --> 01:10:12.409
government's concerns about the rise of these

01:10:12.409 --> 01:10:17.689
things in the last few decades? What teeth does

01:10:17.689 --> 01:10:19.609
any of that have? So I do feel like something

01:10:19.609 --> 01:10:21.350
of an amicus to this question because nothing

01:10:21.350 --> 01:10:24.170
in my injunction rises or falls on this. Exactly.

01:10:24.670 --> 01:10:26.829
So I'm happy to answer questions. I need all

01:10:26.829 --> 01:10:30.430
the amici I can get. Fair enough, your honor.

01:10:30.850 --> 01:10:32.890
So I would say two things about that. The first

01:10:32.890 --> 01:10:35.770
is it does require reading the history in a way

01:10:35.770 --> 01:10:37.989
more like I do, which does not create a single

01:10:37.989 --> 01:10:40.289
bright line rule that this is never available.

01:10:40.590 --> 01:10:42.590
Obviously, if someone reads the history as saying

01:10:42.590 --> 01:10:44.550
it's impossible. I'm spotting you that for the

01:10:44.550 --> 01:10:47.350
purposes of my question. Great. I'm not granting

01:10:47.350 --> 01:10:49.130
the promise. I thought you might not, Justice

01:10:49.130 --> 01:10:51.149
Korsach. But I'm spotting it to you. And I'm

01:10:51.149 --> 01:10:53.930
just saying, well, OK. What would that look like

01:10:53.930 --> 01:10:55.949
and how would that be any different from what

01:10:55.949 --> 01:10:58.970
we have experienced over the last few decades?

01:10:59.250 --> 01:11:01.069
So this is a way in which my first bucket and

01:11:01.069 --> 01:11:02.590
my third bucket are actually going to relate

01:11:02.590 --> 01:11:04.270
for a moment, so I think this is... No, no, no,

01:11:04.270 --> 01:11:06.149
no, no, no, no, no. Don't get to squiggle out

01:11:06.149 --> 01:11:08.250
into the first bucket, okay? We're in the third

01:11:08.250 --> 01:11:10.250
bucket. I'll answer for the third bucket, which

01:11:10.250 --> 01:11:12.289
is I think it requires having district courts

01:11:12.289 --> 01:11:14.250
consider the availability of the alternative

01:11:14.250 --> 01:11:16.029
and explaining why it's not workable in the case.

01:11:16.050 --> 01:11:18.989
I think we've told them to do that and... you

01:11:18.989 --> 01:11:21.250
know, gosh, how many times do we have to tell

01:11:21.250 --> 01:11:23.850
them to do that? And I think, in fairness to

01:11:23.850 --> 01:11:27.430
them, that's what they think they have. So let's,

01:11:27.710 --> 01:11:30.430
again, would any case over the last 30 years

01:11:30.430 --> 01:11:33.350
come out differently under your your view of

01:11:33.350 --> 01:11:36.350
the rule in the third bucket than has. Yeah,

01:11:36.350 --> 01:11:37.949
so there's a couple of examples where we don't

01:11:37.949 --> 01:11:40.289
think universal relief was appropriate. I'm most

01:11:40.289 --> 01:11:41.789
familiar with the state litigation, so most of

01:11:41.789 --> 01:11:43.670
my examples will probably come from there, but

01:11:43.670 --> 01:11:45.489
I heard my friend on the other side mention the

01:11:45.489 --> 01:11:48.229
DACA litigation where Texas sought the termination

01:11:48.229 --> 01:11:50.750
of DACA and ultimately the Fifth Circuit terminated

01:11:50.750 --> 01:11:53.369
DACA specific to Texas alone. And we thought

01:11:53.369 --> 01:11:55.329
that that decision was exactly right because

01:11:55.329 --> 01:11:57.829
of the nature of the harms in that case meant

01:11:57.829 --> 01:12:00.250
that Texas could get full relief for its harms.

01:12:00.310 --> 01:12:02.569
Now we're back to the first bucket. We're just

01:12:02.569 --> 01:12:07.069
satisfied. I get that we're gonna always revert

01:12:07.069 --> 01:12:09.649
back to the first bucket, but that means the

01:12:09.649 --> 01:12:12.550
third bucket's empty. I totally take the point.

01:12:12.630 --> 01:12:14.850
I think AARP is a good illustration of the third

01:12:14.850 --> 01:12:17.890
bucket that this court confronted recently, where

01:12:17.890 --> 01:12:21.989
it was the case that there was this rush. just

01:12:21.989 --> 01:12:24.569
a few hours, not possible to go through class

01:12:24.569 --> 01:12:26.210
certification. You heard my friend on the other

01:12:26.210 --> 01:12:28.590
side talk about the rigors of class certification,

01:12:28.590 --> 01:12:30.449
and I don't think my friend on the other side

01:12:30.449 --> 01:12:32.510
would agree. It could be done in three hours

01:12:32.510 --> 01:12:34.310
through the night, and so there were a necessity

01:12:34.310 --> 01:12:37.050
to step in. Do you agree about the rigors of

01:12:37.050 --> 01:12:40.050
class certification? It seems to me that 23b2

01:12:40.050 --> 01:12:43.550
classes, and you probably, if you have to, are

01:12:43.550 --> 01:12:46.449
going to be arguing that they're not so rigorous

01:12:46.449 --> 01:12:50.270
to meet for injunctive relief for national policies

01:12:50.270 --> 01:12:54.529
that are uniform. So the most important thing

01:12:54.529 --> 01:12:56.449
that hasn't come up in the discussion this morning

01:12:56.449 --> 01:12:58.630
yet is that they're not available for state litigation.

01:12:59.130 --> 01:13:01.109
It talks about persons. It talks about appointment

01:13:01.109 --> 01:13:03.430
of class counsel. It talks about going through

01:13:03.430 --> 01:13:06.649
this certification process. States, this court's

01:13:06.649 --> 01:13:08.010
precedents are really clear about parents' fat

01:13:08.010 --> 01:13:10.229
tri lawsuits. States can't represent those individuals

01:13:10.229 --> 01:13:12.829
in class actions, nor would we try to. They can't

01:13:12.829 --> 01:13:14.850
represent us, and you don't have classes of states.

01:13:15.130 --> 01:13:17.109
So the whole framework doesn't apply to state

01:13:17.109 --> 01:13:18.909
litigation. So I understood how it might come

01:13:18.909 --> 01:13:21.619
up as an alternative. for some other cases you

01:13:21.619 --> 01:13:23.520
might see in the future. But for the injunction

01:13:23.520 --> 01:13:25.039
you have in front of you from the states, the

01:13:25.039 --> 01:13:27.079
whole class device doesn't even work as an alternative.

01:13:27.319 --> 01:13:29.260
So I don't see how it can be the answer for us.

01:13:29.279 --> 01:13:31.960
But why should you care if the class device doesn't

01:13:31.960 --> 01:13:33.880
work as an alternative if you have bucket one?

01:13:34.060 --> 01:13:36.579
You don't really need the class device. I think

01:13:36.579 --> 01:13:38.199
what you're saying is, will it be frustrating

01:13:38.199 --> 01:13:40.920
for states not to have the class device when

01:13:40.920 --> 01:13:42.460
the individuals have it? But I don't see why

01:13:42.460 --> 01:13:45.600
that's true if giving you complete relief and

01:13:45.630 --> 01:13:48.270
in bucket one solves your problems. So I should

01:13:48.270 --> 01:13:50.130
be very clear, and I'm sorry for the confusion

01:13:50.130 --> 01:13:51.390
on this. This goes back to my colleagues with

01:13:51.390 --> 01:13:53.649
Justice Gorsuch. When states are seeking the

01:13:53.649 --> 01:13:55.649
relief, states are seeking it in bucket one and

01:13:55.649 --> 01:13:58.560
bucket two. as an amicus to the other injunction

01:13:58.560 --> 01:14:00.380
I recognize courts are looking at, I think bucket

01:14:00.380 --> 01:14:03.220
three could be available. We aren't seeking relief

01:14:03.220 --> 01:14:05.359
when it falls into bucket three, because as I

01:14:05.359 --> 01:14:07.279
was saying earlier, we're not going to be seeking

01:14:07.279 --> 01:14:09.199
relief for other parties. This court's cases

01:14:09.199 --> 01:14:12.359
like Bracken make very clear. We aren't suing

01:14:12.359 --> 01:14:14.720
to vindicate the injuries that third parties

01:14:14.720 --> 01:14:16.659
and our residents are suffering. So when states

01:14:16.659 --> 01:14:18.840
come before you, the questions that you would

01:14:18.840 --> 01:14:21.779
ask are, are the alternative ways of remedying

01:14:21.779 --> 01:14:24.300
our injury going to be practically or legally

01:14:24.300 --> 01:14:27.920
workable? and you're going to ask. Did Congress

01:14:27.920 --> 01:14:29.579
authorize it, which gets to the vacator question,

01:14:29.619 --> 01:14:31.680
which gets to the Hobbs Act question, and so

01:14:31.680 --> 01:14:34.180
on. And on that first bucket, which I think describes

01:14:34.180 --> 01:14:36.880
this case well, I had a hard time with some of

01:14:36.880 --> 01:14:38.899
the colloquies earlier today because I think

01:14:38.899 --> 01:14:41.159
they were missing some really serious burdens

01:14:41.159 --> 01:14:42.899
that the states are still going to have to bear

01:14:42.899 --> 01:14:45.420
in this case if we get something less than a

01:14:45.420 --> 01:14:47.520
nationwide injunction. I think it's going to

01:14:47.520 --> 01:14:49.819
hinder the administration of our benefits programs.

01:14:50.020 --> 01:14:51.800
I think it's going to hinder the participation

01:14:51.800 --> 01:14:54.020
in our benefits programs. And I think it's going

01:14:54.020 --> 01:14:56.300
to produce unprecedented chaos on the ground.

01:14:56.520 --> 01:14:58.859
I might offer examples of each. Before you do,

01:14:59.020 --> 01:15:02.819
I'm sorry. How would you get the merits of this

01:15:02.819 --> 01:15:05.380
case to us promptly? So there's two different

01:15:05.380 --> 01:15:06.899
ways that this court could think about doing

01:15:06.899 --> 01:15:09.880
it. So the first is, I heard a couple of colloquies

01:15:09.880 --> 01:15:12.720
earlier today to suggest that maybe the states

01:15:12.720 --> 01:15:14.619
should sort of have to take some of the burdens

01:15:14.619 --> 01:15:17.960
on ourselves because, OK, some people move in.

01:15:18.239 --> 01:15:19.880
Maybe that's just something that equity shouldn't

01:15:19.880 --> 01:15:22.279
care about. And it may be true, this is Horn

01:15:22.279 --> 01:15:24.819
Book equity, that in some cases, states don't

01:15:24.819 --> 01:15:27.159
get complete relief for the harms that they suffered.

01:15:27.199 --> 01:15:28.840
We just have to eat some of the administrability

01:15:28.840 --> 01:15:31.500
burdens. But the merits have always come into

01:15:31.500 --> 01:15:33.859
that. because that is just about remedying a

01:15:33.859 --> 01:15:36.079
party's own injuries. And the strength of the

01:15:36.079 --> 01:15:38.840
ability to remedy our injuries is going to turn

01:15:38.840 --> 01:15:41.500
on a peak on the merits. This is partially Ohio

01:15:41.500 --> 01:15:44.439
versus EPA and building on Justice Kavanaugh's

01:15:44.439 --> 01:15:46.600
Labrador concurrence, where this court said,

01:15:46.600 --> 01:15:48.699
you might have some states who really like a

01:15:48.699 --> 01:15:50.600
policy and some states who want to get relief

01:15:50.600 --> 01:15:53.119
from the policy. And how you reconcile those

01:15:53.119 --> 01:15:55.220
two things, who should get relief, who should

01:15:55.220 --> 01:15:57.600
benefit from the policy, will turn in part on

01:15:57.600 --> 01:15:59.840
a peak at the merits because we have a greater

01:15:59.840 --> 01:16:02.130
right to relief from it. I appreciate that. How

01:16:02.130 --> 01:16:04.569
do we get to the merits fast? This court could

01:16:04.569 --> 01:16:06.649
set supplemental briefing on the merits by an

01:16:06.649 --> 01:16:08.770
order tomorrow if it wished, specifically to

01:16:08.770 --> 01:16:10.989
say the federal government has proposed that

01:16:10.989 --> 01:16:12.770
states get less than complete relief in this

01:16:12.770 --> 01:16:14.869
case. We could not possibly think about giving

01:16:14.869 --> 01:16:16.270
the states less than complete relief without

01:16:16.270 --> 01:16:17.909
looking at the merits. We want briefing. Put

01:16:17.909 --> 01:16:21.949
that aside. Assume we've just got the remedial

01:16:21.949 --> 01:16:24.409
question before us and we're going to decide

01:16:24.409 --> 01:16:26.710
the remedial question one way or the other. Then

01:16:26.710 --> 01:16:28.779
what? Oh, then I share some of Justice Kagan's

01:16:28.779 --> 01:16:31.659
concerns from earlier that it would rely on the

01:16:31.659 --> 01:16:32.800
United States. So I appreciate you share those

01:16:32.800 --> 01:16:35.920
concerns. How would you address them? How would

01:16:35.920 --> 01:16:37.939
the states plan to get this case to the court

01:16:37.939 --> 01:16:41.319
promptly? I think it's very hard to think about

01:16:41.319 --> 01:16:43.279
how the states would lose this case given the

01:16:43.279 --> 01:16:44.920
state of Supreme Court precedent. It creates

01:16:44.920 --> 01:16:47.260
very weird incentives on the certiorari docket

01:16:47.260 --> 01:16:49.460
when there's already binding precedent from this

01:16:49.460 --> 01:16:52.659
court. We do suffer harms from the application

01:16:52.659 --> 01:16:54.699
of this executive order beyond our borders that

01:16:54.699 --> 01:16:57.560
we need relief from. If we don't get a full remedy

01:16:57.560 --> 01:17:00.100
from that, I suppose we could ultimately seek

01:17:00.100 --> 01:17:02.100
cert before judgment on the basis that we still

01:17:02.100 --> 01:17:04.100
have Article III injuries that we're suffering.

01:17:04.399 --> 01:17:06.439
But we'd be asking this court to grant review

01:17:06.439 --> 01:17:08.750
from a circuit. precedent we won on the basis

01:17:08.750 --> 01:17:11.529
that we have, continued injuries. It's not impossible.

01:17:12.010 --> 01:17:13.810
This court knows best when it grants cert and

01:17:13.810 --> 01:17:16.529
when it doesn't. I would think it's not the cleanest

01:17:16.529 --> 01:17:18.909
way to tee up a case historically, and so it

01:17:18.909 --> 01:17:21.170
would raise some real concerns to the colloquies

01:17:21.170 --> 01:17:23.770
earlier today about how this case would ultimately

01:17:23.770 --> 01:17:26.210
come before this court. Are you telling us that

01:17:26.210 --> 01:17:29.529
we really can't decide the question that we ask

01:17:29.529 --> 01:17:32.130
to have briefing and argument on without taking

01:17:32.130 --> 01:17:34.930
a peek at the merits? So I'm not saying that

01:17:34.930 --> 01:17:36.569
at all. So there's two different ways to think

01:17:36.569 --> 01:17:39.920
about this case, Your Honor. One is to say. absolutely,

01:17:40.279 --> 01:17:42.920
the states need to get complete relief for their

01:17:42.920 --> 01:17:44.699
injuries. And then let's figure out the best

01:17:44.699 --> 01:17:46.359
way to do it. And we think the alternatives are

01:17:46.359 --> 01:17:49.579
not workable and not legal. If this court is

01:17:49.579 --> 01:17:51.840
going to entertain giving us anything less than

01:17:51.840 --> 01:17:54.180
full redress for all of the Article III injuries

01:17:54.180 --> 01:17:56.699
we bring before you, I don't see how that can

01:17:56.699 --> 01:17:58.600
be entertained without a peek at the merits.

01:17:58.659 --> 01:18:00.439
Because you always look at the merits to decide

01:18:00.439 --> 01:18:03.800
should we get 100 % or 90 % of our own injuries

01:18:03.800 --> 01:18:06.960
redressed. What a decision on the matter that

01:18:06.960 --> 01:18:09.979
is. I understood to be before us, the narrow

01:18:09.979 --> 01:18:15.239
question that I understood to be before us, make

01:18:15.239 --> 01:18:19.899
any, be helpful in any way if we do not peek

01:18:19.899 --> 01:18:23.039
at the merits and we also do not decide whether

01:18:23.039 --> 01:18:27.810
you have standing. So I'm not sure how you could

01:18:27.810 --> 01:18:30.729
decide whether or not we got an appropriate scope

01:18:30.729 --> 01:18:33.210
of relief without figuring out what our own injuries

01:18:33.210 --> 01:18:36.329
are. Because how you decide, this is the United

01:18:36.329 --> 01:18:38.670
States' own argument, how you decide whether

01:18:38.670 --> 01:18:41.029
or not we should get relief for our own injuries

01:18:41.029 --> 01:18:43.229
turns on what our injuries are that require relief.

01:18:43.569 --> 01:18:46.109
And so I do think we have pretty significant

01:18:46.109 --> 01:18:48.350
pocketbook injuries like in Nebraska to the tunes

01:18:48.350 --> 01:18:50.590
of millions of dollars. And whether we get those

01:18:50.590 --> 01:18:52.970
remedies or don't get those remedied is going

01:18:52.970 --> 01:18:54.750
to turn on the merits, is going to turn on the

01:18:54.750 --> 01:18:56.750
nature. of the harms, and then ultimately the

01:18:56.750 --> 01:18:59.130
workability of the alternatives. Thank you, counsel.

01:18:59.390 --> 01:19:03.250
Justice Thomas? Justice Alito? Well, General

01:19:03.250 --> 01:19:07.710
Sauer began by outlining problems that he sees

01:19:07.710 --> 01:19:11.170
being created by universal injunctions. And he

01:19:11.170 --> 01:19:16.609
said that the issue was a non -ideological issue

01:19:16.609 --> 01:19:18.630
and a non -partisan issue. Do you agree with

01:19:18.630 --> 01:19:21.329
that? I do think presidents of both parties have

01:19:21.329 --> 01:19:22.810
objectives to nationwide injunctions. I agree.

01:19:22.909 --> 01:19:26.569
So what do you say about the practical problem?

01:19:26.850 --> 01:19:31.069
So let's put out of our minds the merits of this

01:19:31.069 --> 01:19:36.210
and just look at the abstract question of universal

01:19:36.210 --> 01:19:39.409
injunctions. What is your response to what some

01:19:39.409 --> 01:19:42.130
people think is the practical problem? And the

01:19:42.130 --> 01:19:44.949
practical problem is that there are 680 district

01:19:44.949 --> 01:19:48.619
court judges. They are dedicated and they are

01:19:48.619 --> 01:19:51.420
scholarly and I'm not impugning their motives

01:19:51.420 --> 01:19:54.140
in any way but you know sometimes they're wrong

01:19:54.140 --> 01:19:58.859
and all Article 3 judges are vulnerable to an

01:19:58.859 --> 01:20:02.479
occupational disease which is the disease of

01:20:02.479 --> 01:20:07.279
thinking that I am right and I can do whatever

01:20:07.279 --> 01:20:10.380
I want. Now on a multi -member appellate court

01:20:10.380 --> 01:20:14.279
that is restrained by one's colleagues but trial

01:20:14.279 --> 01:20:18.680
judge The trial judge sitting in the trial judge's

01:20:18.680 --> 01:20:23.119
courtroom is the monarch of that realm and there

01:20:23.119 --> 01:20:27.079
are situations in which trial judges, the president

01:20:27.079 --> 01:20:28.920
does something, it could be President Trump,

01:20:29.060 --> 01:20:31.020
it could be President Biden, it could be President

01:20:31.020 --> 01:20:34.399
Obama. The trial judge says this is unlawful

01:20:34.399 --> 01:20:38.840
and I'm going to order, I'm going to enjoin it.

01:20:39.000 --> 01:20:42.279
And I'm convinced I'm right, so I'm not going

01:20:42.279 --> 01:20:45.399
to stay the injunction. And then an application

01:20:45.399 --> 01:20:47.939
is made to the Court of Appeals to stay the injunction.

01:20:48.079 --> 01:20:50.979
The Court of Appeals gives it the back of the

01:20:50.979 --> 01:20:53.600
hand. And then the case comes immediately to

01:20:53.600 --> 01:20:56.880
us in the context of an emergency application.

01:20:57.479 --> 01:20:59.439
And some of us have said, well, we don't think

01:20:59.439 --> 01:21:02.779
we should do anything in those situations unless

01:21:02.779 --> 01:21:07.890
it is indisputably clear. that the court below

01:21:07.890 --> 01:21:10.210
was wrong. So what do you say to that practical

01:21:10.210 --> 01:21:13.149
problem? So we're mindful of the practical problems.

01:21:13.289 --> 01:21:15.449
I will say the states have had a through line

01:21:15.449 --> 01:21:17.630
as well across administrations. We have never

01:21:17.630 --> 01:21:19.970
believed, even as nationwide injunctions restrained

01:21:19.970 --> 01:21:22.449
policies that we favored, that they were categorically

01:21:22.449 --> 01:21:24.510
off the table. We've always taken the position

01:21:24.510 --> 01:21:27.289
that they are sometimes available in narrow circumstances,

01:21:27.449 --> 01:21:29.289
whether we like the policy or don't like the

01:21:29.289 --> 01:21:31.489
policy. And so you might have some cases where

01:21:31.489 --> 01:21:34.010
the nature of the harm, this is the DACA example

01:21:34.010 --> 01:21:36.210
from my friend on the other side, where the nature

01:21:36.210 --> 01:21:38.939
of the harm which was Texas saying it had to

01:21:38.939 --> 01:21:42.380
give benefits to residents in the state is actually

01:21:42.380 --> 01:21:46.100
entirely remedied by a nationwide state -only

01:21:46.100 --> 01:21:48.140
injunction that applies just to Texas because

01:21:48.140 --> 01:21:50.319
that might incentivize individuals to leave Texas

01:21:50.319 --> 01:21:52.340
and then Texas doesn't have to give them benefits

01:21:52.340 --> 01:21:54.399
anymore. So you might have a case like that,

01:21:54.659 --> 01:21:57.340
but sometimes you are going to have cases where

01:21:57.340 --> 01:21:59.699
it is impossible to remedy the state's own injuries.

01:22:00.250 --> 01:22:02.529
and the alternatives are not practically or legally

01:22:02.529 --> 01:22:04.890
workable. And that describes this case perfectly.

01:22:04.970 --> 01:22:06.829
And so I don't think the answer is a bright line

01:22:06.829 --> 01:22:08.909
that means even in those situations, it's not

01:22:08.909 --> 01:22:12.130
possible for the states to get relief. In deciding

01:22:12.130 --> 01:22:15.810
the question that is before us here, do you think

01:22:15.810 --> 01:22:20.310
we should, never mind, I withdraw that. I have

01:22:20.310 --> 01:22:25.170
no further questions. Justice Sotomayor. Let's

01:22:25.170 --> 01:22:27.989
start with an answer you've been trying to give

01:22:27.989 --> 01:22:33.000
and haven't completed. which are the general

01:22:33.000 --> 01:22:37.819
suggested there were two ways that your injuries

01:22:37.819 --> 01:22:40.619
could be remedied. He claimed they were both

01:22:40.619 --> 01:22:43.399
presented to the court below. I didn't see that,

01:22:43.420 --> 01:22:47.500
but that's a matter that we could check on. Do

01:22:47.500 --> 01:22:50.159
you agree with me that they were not presented

01:22:50.159 --> 01:22:52.359
to the courts below? I do agree with you. So

01:22:52.359 --> 01:22:54.579
I want to be very clear, because I think there's

01:22:54.579 --> 01:22:57.470
some confusion across the briefing here. We agree,

01:22:57.529 --> 01:22:59.310
and I don't think the First Circuit disagreed,

01:22:59.430 --> 01:23:02.050
they objected to the nationwide injunction in

01:23:02.050 --> 01:23:03.750
the district court, and we attached the briefing

01:23:03.750 --> 01:23:06.329
and we attached the transcript. What they didn't

01:23:06.329 --> 01:23:08.670
do is provide some of the alternatives they've

01:23:08.670 --> 01:23:10.930
pressed in two sentences in their emergency application.

01:23:10.970 --> 01:23:14.590
That's what I mean. Okay. So now go through why

01:23:14.590 --> 01:23:19.529
you question whether their two suggestions now

01:23:19.529 --> 01:23:22.729
that they've only raised before us are inadequate.

01:23:22.920 --> 01:23:26.960
to remedy all of your harms. Because complete

01:23:26.960 --> 01:23:31.380
relief, he says that there is situations in which

01:23:31.380 --> 01:23:36.159
you grant relief that will benefit third parties.

01:23:37.180 --> 01:23:41.140
Why is your relief necessary to give you complete

01:23:41.140 --> 01:23:45.920
relief, even though it benefits these parents

01:23:45.920 --> 01:23:48.420
in other jurisdictions? So I don't think there's

01:23:48.420 --> 01:23:50.680
any serious dispute that if you limit the relief

01:23:50.680 --> 01:23:53.119
to babies born in New Jersey, we won't get complete

01:23:53.119 --> 01:23:57.460
relief. Because 42 USC 1396A, the Medicaid statute,

01:23:57.859 --> 01:24:00.039
requires us, the states, to do the citizenship

01:24:00.039 --> 01:24:02.180
verification. So it's not true that they can

01:24:02.180 --> 01:24:03.720
simply handle it all for themselves. Federal

01:24:03.720 --> 01:24:05.979
law requires us to undertake those responsibilities.

01:24:06.359 --> 01:24:08.500
And we have in New Jersey 6 ,000 babies born

01:24:08.500 --> 01:24:10.729
out of state every year. when they come into

01:24:10.729 --> 01:24:13.090
the state and they need benefits. The Boyle Declaration

01:24:13.090 --> 01:24:14.909
for Massachusetts suggests that's going to cover

01:24:14.909 --> 01:24:17.750
40 % of kids. They come into our state. They

01:24:17.750 --> 01:24:20.890
need benefits. We have to do citizenship verifications,

01:24:21.050 --> 01:24:23.189
which is a burden for us. That's for you in New

01:24:23.189 --> 01:24:25.390
Jersey, but there's, I think, how many states?

01:24:25.449 --> 01:24:27.649
That's just an example. We have 23 attorneys

01:24:27.649 --> 01:24:31.250
general in this. 23 attorney general. So 23 states

01:24:31.250 --> 01:24:34.380
are going to have. babies who were born somewhere

01:24:34.380 --> 01:24:37.020
else without a birth certificate that you're

01:24:37.020 --> 01:24:39.319
now, if they move into your state, going to have

01:24:39.319 --> 01:24:41.239
to do checking on. And that comes to the United

01:24:41.239 --> 01:24:43.199
States as alternative, Justice Sotomayor, which

01:24:43.199 --> 01:24:45.220
is they say, OK, maybe their citizenship turns

01:24:45.220 --> 01:24:47.680
on when they enter New Jersey, maybe for some

01:24:47.680 --> 01:24:49.720
purposes, maybe for all purposes, depending on

01:24:49.720 --> 01:24:51.640
which sentence you're looking at in the emergency

01:24:51.640 --> 01:24:54.939
application. And there are three problems either

01:24:54.939 --> 01:24:57.880
way. The first is it will undermine the administration

01:24:57.880 --> 01:24:59.939
of our benefits program. So individuals will

01:24:59.939 --> 01:25:01.869
move in. When they were born, they were treated

01:25:01.869 --> 01:25:04.409
as non -citizens. They didn't get social security

01:25:04.409 --> 01:25:06.250
numbers because they wouldn't have been eligible

01:25:06.250 --> 01:25:08.710
for the enumeration at birth program in their

01:25:08.710 --> 01:25:10.569
states. And they're going to arrive, and they're

01:25:10.569 --> 01:25:12.890
going to seek benefits that we administer. But

01:25:12.890 --> 01:25:15.710
federal law requires that they have social security

01:25:15.710 --> 01:25:18.369
numbers for the administration of those benefits.

01:25:18.369 --> 01:25:24.090
This is 7 USC 2025 for SNAP. This is 42 USC 1320

01:25:24.090 --> 01:25:26.949
B7 for TANF for Medicaid and so on. So they're

01:25:26.949 --> 01:25:28.449
going to need to have social security numbers.

01:25:28.470 --> 01:25:30.350
They're going to arrive without them, even though

01:25:30.350 --> 01:25:32.479
they were. under this court's precedence, citizens

01:25:32.479 --> 01:25:34.140
who should have been in the enumeration at birth

01:25:34.140 --> 01:25:36.239
program who should have had social security numbers.

01:25:36.319 --> 01:25:38.539
And it's going to be a burden on us, either in

01:25:38.539 --> 01:25:41.100
delaying the benefits, training county social

01:25:41.100 --> 01:25:43.579
service workers, in having to administer benefits

01:25:43.579 --> 01:25:47.180
without the SSNs on a provisional basis. So that's

01:25:47.180 --> 01:25:49.039
the administration of the benefits. Let me give

01:25:49.039 --> 01:25:51.520
an example on participation, which we have responsibility

01:25:51.520 --> 01:25:54.020
for as well. These are babies who were told.

01:25:54.470 --> 01:25:57.170
that their families were told that the babies

01:25:57.170 --> 01:25:59.010
are undocumented, they aren't citizens, they're

01:25:59.010 --> 01:26:00.829
not eligible for these federal programs when

01:26:00.829 --> 01:26:03.090
they were born. They come into our states, they

01:26:03.090 --> 01:26:05.069
think they're now ineligible, they don't realize

01:26:05.069 --> 01:26:07.229
their child is a citizen entitled to these federal

01:26:07.229 --> 01:26:09.829
benefits. And so what will happen is we bear

01:26:09.829 --> 01:26:12.229
the responsibility, putting in our own state

01:26:12.229 --> 01:26:15.149
Medicaid plans, of getting them enrolled. And

01:26:15.149 --> 01:26:19.029
that's 42 USC 1367 BB. So we're responsible for

01:26:19.029 --> 01:26:20.649
putting in our plan how we're gonna enroll them.

01:26:20.890 --> 01:26:23.550
We have to incur substantially more costs to

01:26:23.550 --> 01:26:25.560
get them enrolled. enrolled in our programs.

01:26:25.869 --> 01:26:27.430
Because they think they're undocumented, they

01:26:27.430 --> 01:26:29.510
think they're ineligible because of where they

01:26:29.510 --> 01:26:31.350
were born, even though their citizenship has

01:26:31.350 --> 01:26:33.670
now turned on when they cross state lines. And

01:26:33.670 --> 01:26:36.109
then the last point is, we've never in this country's

01:26:36.109 --> 01:26:38.689
history since the Civil War had your citizenship

01:26:38.689 --> 01:26:40.689
turn on when you cross state lines. So we don't

01:26:40.689 --> 01:26:42.510
have answers to these workability questions,

01:26:42.569 --> 01:26:44.609
not just because it wasn't presented in the district

01:26:44.609 --> 01:26:46.689
court, not just because it's two sentences in

01:26:46.689 --> 01:26:49.109
an emergency application, but because for over

01:26:49.109 --> 01:26:51.529
a century, executive practice has been uniformly

01:26:51.529 --> 01:26:53.890
to the contrary, building on this court's decision

01:26:53.890 --> 01:26:56.210
in Wong Kim Ark. We genuinely don't know how

01:26:56.210 --> 01:26:58.609
this could possibly work on the ground. And although

01:26:58.609 --> 01:27:00.409
my friend on the other side has complained that

01:27:00.409 --> 01:27:02.449
they weren't able to give guidance, the states

01:27:02.449 --> 01:27:04.670
didn't object to guidance. The states have no

01:27:04.670 --> 01:27:06.390
quarrel with internal steps. And if they want

01:27:06.390 --> 01:27:08.609
to put out guidance that says, if Wong -Kamar

01:27:08.609 --> 01:27:10.770
gets overruled, this is what we would do, that's

01:27:10.770 --> 01:27:13.229
fine. What they can't do is require us to take

01:27:13.229 --> 01:27:16.130
any steps or issue guidance that requires everyone

01:27:16.130 --> 01:27:18.210
to start planning for something that is so patently

01:27:18.210 --> 01:27:22.069
against this court's own settled precedent. Going

01:27:22.069 --> 01:27:24.590
back to the history question that Justice Thomas

01:27:24.590 --> 01:27:28.109
started with, you relied on the Bill of Peace,

01:27:28.510 --> 01:27:31.409
you relied on the tax injunction of the 19th

01:27:31.409 --> 01:27:33.750
century, and not so far in the 19th century,

01:27:34.149 --> 01:27:40.449
1891, just about the time the 14th Amendment

01:27:40.449 --> 01:27:46.270
was adopted, okay? At any rate, there are other

01:27:46.270 --> 01:27:50.800
cases one of our amici points out to them. The

01:27:50.800 --> 01:27:54.960
Pierce v. Society of Sisters case, the West Virginia

01:27:54.960 --> 01:27:58.420
State Board of Education case, those were earlier

01:27:58.420 --> 01:28:04.680
than the 1960s. In the Pierce v. Society of Sisters,

01:28:05.199 --> 01:28:08.260
the court affirmed a universal injunction that

01:28:08.260 --> 01:28:10.880
wasn't even sought by the parents, correct? That's

01:28:10.880 --> 01:28:16.239
right. And there what we said was their states

01:28:16.239 --> 01:28:19.039
were imposing criminal penalties on parents who

01:28:19.039 --> 01:28:22.859
sent their children to private school. And just

01:28:22.859 --> 01:28:26.579
two plaintiff schools sued against that penalty.

01:28:26.859 --> 01:28:30.840
They sought and won an injunction that categorically

01:28:30.840 --> 01:28:33.300
restrained the state from enforcing the law.

01:28:33.340 --> 01:28:38.319
That was 1925, correct? That's right. And similarly

01:28:38.319 --> 01:28:41.340
with West Virginia, saluting the flag by Jehovah

01:28:41.340 --> 01:28:44.699
Witnesses. The injunction was universal. So in

01:28:44.699 --> 01:28:48.489
answer to Justice Gorsuch's point, We've had

01:28:48.489 --> 01:28:52.310
universal injunctions in some form, correct?

01:28:52.699 --> 01:28:54.600
Since the founding. That's right. If I can make

01:28:54.600 --> 01:28:57.000
two points on that. In equity, correct. Exactly.

01:28:57.279 --> 01:28:59.880
So I agree with your reading of the equitable

01:28:59.880 --> 01:29:02.159
history that it goes back from the English pill

01:29:02.159 --> 01:29:05.699
of peace through equity rule 48, through the

01:29:05.699 --> 01:29:08.100
tax collection injunctions, through equity rule

01:29:08.100 --> 01:29:10.779
X, through the ex parte young period you're referring

01:29:10.779 --> 01:29:13.600
to, through AARP just a few weeks ago. So I agree

01:29:13.600 --> 01:29:15.680
with your read of the history. But I just want

01:29:15.680 --> 01:29:18.979
to make one quick point. Well, let me go ahead,

01:29:18.979 --> 01:29:21.300
make your point. But I want to finish this thought,

01:29:21.479 --> 01:29:27.260
which is You started earlier by saying universal

01:29:27.260 --> 01:29:31.079
injunction should not be the preferred remedy,

01:29:32.260 --> 01:29:36.039
and it should be limited. You've suggested three

01:29:36.039 --> 01:29:39.539
ways to limit it. I agree with you, those three,

01:29:39.800 --> 01:29:42.600
and yours clearly falls within one, that's your

01:29:42.600 --> 01:29:47.119
claim. But the point that I think my two other

01:29:47.119 --> 01:29:50.479
colleagues are raising is how do we ensure district

01:29:50.479 --> 01:29:53.260
courts are following that? So so if I can make

01:29:53.260 --> 01:29:54.819
a point about the history and make a point about

01:29:54.819 --> 01:29:57.859
the guidance on the history I understand that

01:29:57.859 --> 01:30:00.119
the United States at the podium today tries to

01:30:00.119 --> 01:30:03.289
make the history all about what it calls indivisibility

01:30:03.289 --> 01:30:06.170
cases, cases where there's just a unitary on

01:30:06.170 --> 01:30:08.510
-off switch, as it were, and either something

01:30:08.510 --> 01:30:10.350
happened or it didn't happen, like a redistricting

01:30:10.350 --> 01:30:12.350
plan needs to be completely redone, or a power

01:30:12.350 --> 01:30:14.529
plan is on or it's off. But if I could give an

01:30:14.529 --> 01:30:16.609
example that shows it's not quite so limited,

01:30:16.649 --> 01:30:18.789
and it very much requires looking more broadly

01:30:18.789 --> 01:30:21.050
at what's practically or legally workable on

01:30:21.050 --> 01:30:23.550
the ground, I would point to apportionment as

01:30:23.550 --> 01:30:25.390
an example. So say that there's an executive

01:30:25.390 --> 01:30:27.270
order that says, we're just not gonna count minors,

01:30:27.329 --> 01:30:29.750
people under 18 in apportionment anymore, we're

01:30:29.750 --> 01:30:31.810
only gonna count people who are voting age. And

01:30:31.810 --> 01:30:34.909
the state of New York files a lawsuit, and it

01:30:34.909 --> 01:30:37.210
wins its lawsuit. And all of its 17 and under

01:30:37.210 --> 01:30:39.430
-year -olds get counted for apportionment. That

01:30:39.430 --> 01:30:42.409
isn't indivisible in any way. It's not a redistricting

01:30:42.409 --> 01:30:44.750
plan. It's not a power plant. But it is going

01:30:44.750 --> 01:30:47.529
to skew apportionment in a way that is totally

01:30:47.529 --> 01:30:50.449
unfair, practically and legally, to third parties.

01:30:50.510 --> 01:30:52.649
Because now 17 -year -olds are being counted

01:30:52.649 --> 01:30:54.630
in New York, but they're not being counted in

01:30:54.630 --> 01:30:58.359
Oklahoma. And you would end up Messing up apportionment

01:30:58.359 --> 01:31:01.119
between states for that very reason and that

01:31:01.119 --> 01:31:03.960
shows as just a broader insight that we've always

01:31:03.960 --> 01:31:06.439
looked to the harms that third parties will suffer

01:31:06.439 --> 01:31:09.699
as negative externalities of court orders. And

01:31:09.699 --> 01:31:11.279
that's our submission here, that to accept what

01:31:11.279 --> 01:31:13.800
the United States wants as against our injunction

01:31:13.800 --> 01:31:15.680
and to say that it turns on or off when you cross

01:31:15.680 --> 01:31:17.960
state lines doesn't just harm the administration

01:31:17.960 --> 01:31:20.180
of our benefits, doesn't just even harm enrollment

01:31:20.180 --> 01:31:22.960
in our benefits, also puts chaos on the ground

01:31:22.960 --> 01:31:25.079
where people's citizenship turns on and off when

01:31:25.079 --> 01:31:27.539
you cross state lines. If ICE has initiated a

01:31:27.539 --> 01:31:29.520
removal proceeding when you live in Philly and

01:31:29.520 --> 01:31:32.260
you move to Camden, I suppose the ICE removal

01:31:32.260 --> 01:31:34.300
is supposed to turn off at that point, potentially,

01:31:34.359 --> 01:31:36.140
because your citizenship status has changed.

01:31:36.340 --> 01:31:38.180
I don't know if you lose it if you move back

01:31:38.180 --> 01:31:39.800
to Philly, whether you were born in New Jersey

01:31:39.800 --> 01:31:42.140
or born in Philly, move to Camden and move back.

01:31:42.220 --> 01:31:44.619
It's a very porous part of the country. I don't

01:31:44.619 --> 01:31:46.739
know if the ICE removal turns back on when you

01:31:46.739 --> 01:31:48.899
cross state lines again. And that sort of chaos

01:31:48.899 --> 01:31:50.739
on the ground, those implementation questions

01:31:50.739 --> 01:31:53.039
we don't know, are serious third -party harms

01:31:53.039 --> 01:31:55.060
we've always taken into account. This is North

01:31:55.060 --> 01:31:57.600
Carolina versus Covington, where courts ask what's

01:31:57.600 --> 01:31:59.539
workable as an injunction matter, and it's also

01:31:59.539 --> 01:32:01.590
the winter factor. where factor three looks at

01:32:01.590 --> 01:32:03.829
the balance of the equities between the parties

01:32:03.829 --> 01:32:05.869
and workability and harm to them, and winter

01:32:05.869 --> 01:32:07.710
factor four looks at public interest and the

01:32:07.710 --> 01:32:09.909
negative externalities and workability problems

01:32:09.909 --> 01:32:13.590
we're imposing on others. General, you've had

01:32:13.590 --> 01:32:16.289
a chance to talk about your administrative costs

01:32:16.289 --> 01:32:19.189
and the workability problems that New Jersey

01:32:19.189 --> 01:32:22.010
would confront. But how about this magnet problem?

01:32:22.109 --> 01:32:25.149
I mean, it strikes me as completely obvious that

01:32:25.149 --> 01:32:27.050
if you have two states and they have different

01:32:27.050 --> 01:32:30.050
rules for citizenship and one benefits babies

01:32:30.050 --> 01:32:32.750
and the other doesn't, that everybody moves to

01:32:32.750 --> 01:32:35.930
the state where the more favorable rule exists.

01:32:36.189 --> 01:32:39.829
But why is it that preventing that harm from

01:32:39.829 --> 01:32:44.550
happening should count as providing you with

01:32:44.550 --> 01:32:47.020
complete relief. So I think, actually, my point

01:32:47.020 --> 01:32:48.579
is somewhat different. I agree with you that

01:32:48.579 --> 01:32:50.560
the incentives could potentially factor into

01:32:50.560 --> 01:32:52.739
the calculus because we're ultimately experiencing

01:32:52.739 --> 01:32:55.859
some harm we might not otherwise to our benefits

01:32:55.859 --> 01:32:57.800
programs. But my point is different. Even if

01:32:57.800 --> 01:32:59.739
you just take normal migration for New Jersey,

01:32:59.920 --> 01:33:03.159
6 ,000 babies born out of state, 8 % or 8 million

01:33:03.159 --> 01:33:05.439
every year traveling across state lines, without

01:33:05.439 --> 01:33:07.500
worrying about the incentives, we're going to

01:33:07.500 --> 01:33:09.619
be looking at that problem for how we administer

01:33:09.619 --> 01:33:12.420
benefits programs. I got that. Are you saying

01:33:12.420 --> 01:33:15.289
we shouldn't consider? No, I think you can. I

01:33:15.289 --> 01:33:16.829
think you can, Your Honor, and it's because of

01:33:16.829 --> 01:33:19.390
the nature of three things together. One is it's

01:33:19.390 --> 01:33:20.770
the movement, but it's not just the movement.

01:33:21.130 --> 01:33:23.609
Two is it's the fact that citizenship, historically,

01:33:23.729 --> 01:33:25.590
was something you had at birth or didn't have

01:33:25.590 --> 01:33:27.989
at birth. And so you arrive to our state, in

01:33:27.989 --> 01:33:29.789
theory, without birthright citizenship, because

01:33:29.789 --> 01:33:30.989
you would have been told when you're born in

01:33:30.989 --> 01:33:32.890
the hospital what you have or don't. And then

01:33:32.890 --> 01:33:34.550
the third, and this is really important, is the

01:33:34.550 --> 01:33:37.630
way that citizenship permeates so much, not just

01:33:37.630 --> 01:33:39.850
for individuals, but for what states are obligated

01:33:39.850 --> 01:33:42.310
to do, whether it's citizenship verification

01:33:42.310 --> 01:33:44.390
eligibility, whether it's enrollment in our own

01:33:44.359 --> 01:33:47.319
programs, over and over you see citizenship in

01:33:47.319 --> 01:33:50.119
Congress's own laws as the on or off switch for

01:33:50.119 --> 01:33:52.300
our own administration of benefits. And that's

01:33:52.300 --> 01:33:54.260
actually sort of unique. So I don't think every

01:33:54.260 --> 01:33:56.260
time people move between states, you automatically

01:33:56.260 --> 01:33:58.420
need to have a nationwide injunction. What you

01:33:58.420 --> 01:34:00.140
need is a demonstration about how that's going

01:34:00.140 --> 01:34:02.779
to contribute to the state's harm. And then I

01:34:02.779 --> 01:34:04.359
think this is really important to colloquy as

01:34:04.359 --> 01:34:06.020
you were having with the United States earlier.

01:34:06.490 --> 01:34:09.310
A court could in an appropriate case say, well

01:34:09.310 --> 01:34:11.409
sure, state, you might have to keep some of the

01:34:11.409 --> 01:34:13.329
harm. We're only going to remedy 90 % of your

01:34:13.329 --> 01:34:15.130
harm because it's too disruptive to everyone

01:34:15.130 --> 01:34:17.130
else. But I don't think you can do that in a

01:34:17.130 --> 01:34:19.340
case. without looking at the merits. Because

01:34:19.340 --> 01:34:21.659
whether we should get to 100 % of our injuries

01:34:21.659 --> 01:34:24.060
taken care of or 90 % of our injuries taken care

01:34:24.060 --> 01:34:26.739
of will always involve the strength of our merits

01:34:26.739 --> 01:34:28.439
showing. And I don't see how you could have a

01:34:28.439 --> 01:34:30.899
stronger merit showing than we have here, 127

01:34:30.899 --> 01:34:33.319
years of Supreme Court precedent over a century

01:34:33.319 --> 01:34:35.680
of executive practice and congressional statutes

01:34:35.680 --> 01:34:38.920
that codified both into law in 1940 and 1952.

01:34:39.180 --> 01:34:40.840
And given that strength of the merits and the

01:34:40.840 --> 01:34:42.819
settled precedent combined with our nature of

01:34:42.819 --> 01:34:44.939
harm, I don't think this is a close case for

01:34:44.939 --> 01:34:47.750
why we need national relief to remedy our. Thank

01:34:47.750 --> 01:34:51.569
you. Justice Gorsuch? Justice Kavanaugh? Justice

01:34:51.569 --> 01:34:53.609
Barrett? I have a question about the history.

01:34:54.250 --> 01:34:56.789
So Grupo tells us that we have to look back to

01:34:56.789 --> 01:35:00.850
1789 and the High Court of Chancery. So I appreciate

01:35:00.850 --> 01:35:02.930
that there have been some cases from later, and

01:35:02.930 --> 01:35:04.630
you were talking about some of those with Justice

01:35:04.630 --> 01:35:06.770
Sotomayor from the early 20th century, maybe

01:35:06.770 --> 01:35:10.630
the late 19th century. Can you say, and let's

01:35:10.630 --> 01:35:13.329
say that I think the bill of peace is more like

01:35:13.329 --> 01:35:16.310
a representational suit that is a forerunner

01:35:16.310 --> 01:35:18.649
to the class action. What do you think is your

01:35:18.649 --> 01:35:22.789
very best example of something that would look

01:35:22.789 --> 01:35:24.970
at the period that Grupo tells us is relevant?

01:35:25.149 --> 01:35:27.649
That would support something that looks like

01:35:27.649 --> 01:35:30.970
universal relief. So I do think from 1789 from

01:35:30.970 --> 01:35:33.170
English equity I do think the best example is

01:35:33.170 --> 01:35:34.850
the Bill of Peace and so I understand if we see

01:35:34.850 --> 01:35:36.609
it differently. It's a fair point I will just

01:35:36.609 --> 01:35:39.390
say quickly on Grupo Mexicano its own tradition

01:35:39.390 --> 01:35:40.930
and this is sort of the analogical reasoning

01:35:40.930 --> 01:35:43.750
you talked about in Rahimi It looks at that period

01:35:43.750 --> 01:35:46.210
but in other times we've also looked at American

01:35:46.210 --> 01:35:48.829
tradition to see analogically how we've liquidated

01:35:48.829 --> 01:35:51.390
that tradition or not and in American equitable

01:35:51.390 --> 01:35:54.590
tradition This is equity rule 48 which specifically

01:35:54.439 --> 01:35:58.659
said non -parties are not bound. by certain relief

01:35:58.659 --> 01:36:00.579
and even as they may benefit from it. And I take

01:36:00.579 --> 01:36:02.239
that to be the principal reason my friend on

01:36:02.239 --> 01:36:04.420
the other side thinks that bills of peace look

01:36:04.420 --> 01:36:06.539
much more like class actions than they ultimately

01:36:06.539 --> 01:36:09.100
look like universal injunctions. And equity rule

01:36:09.100 --> 01:36:11.699
48 was to the contrary. Tax collection injunctions

01:36:11.699 --> 01:36:13.979
in American history were to the contrary. So

01:36:13.979 --> 01:36:15.600
I just have a hard time with that reading even

01:36:15.600 --> 01:36:18.060
though I agree with you that you would be starting

01:36:18.060 --> 01:36:20.500
in the founding trying to do analogical reasoning

01:36:20.500 --> 01:36:23.479
based on what Grupo Mexicano says but using American

01:36:23.479 --> 01:36:25.899
equity to answer some of the unresolved ambiguities.

01:36:26.000 --> 01:36:27.619
Oh, I completely agree with you. you need some

01:36:27.619 --> 01:36:29.960
analogical reasoning. And I don't think that

01:36:29.960 --> 01:36:32.859
Grupo completely rules that out. And I mean,

01:36:32.859 --> 01:36:35.000
I think even if you talked about the distinction

01:36:35.000 --> 01:36:38.479
between a bill of peace and a class action, you

01:36:38.479 --> 01:36:39.840
would be looking at some of that. It doesn't

01:36:39.840 --> 01:36:41.840
have to be called the same thing. I think the

01:36:41.840 --> 01:36:44.739
problem is when we have such a party -centric

01:36:44.739 --> 01:36:47.979
history, if it has to be reasoning that fits

01:36:47.979 --> 01:36:50.380
within the confines, then I think we have a little

01:36:50.380 --> 01:36:53.420
bit of trouble. Let me just ask you one question

01:36:53.420 --> 01:36:57.149
about relief. So let's say that I think that

01:36:57.149 --> 01:36:59.630
the states do need something broader in order

01:36:59.630 --> 01:37:01.949
to have complete relief, even if the universal

01:37:01.949 --> 01:37:05.489
injunction is too broad and inconsistent with

01:37:05.489 --> 01:37:09.909
Grupo. That isn't how the court below approached

01:37:09.909 --> 01:37:11.670
the question, because that isn't what the court

01:37:11.670 --> 01:37:13.890
below thought it had to do, because the court

01:37:13.890 --> 01:37:15.569
below thought it could just enter a universal

01:37:15.569 --> 01:37:20.770
injunction. So how would I go about crafting

01:37:20.770 --> 01:37:24.159
some sort of holding or decretal language that

01:37:24.159 --> 01:37:27.140
would take care of you and the fact that you

01:37:27.140 --> 01:37:29.619
need maybe broader complete relief than maybe

01:37:29.619 --> 01:37:32.720
an individual plaintiff would, right? Because

01:37:32.720 --> 01:37:34.600
the district court didn't go through that analysis,

01:37:34.859 --> 01:37:36.439
you know, the kind of the analysis that you're

01:37:36.439 --> 01:37:38.939
telling us today. So tell me practically what

01:37:38.939 --> 01:37:40.800
that would look like. So I think the district

01:37:40.800 --> 01:37:42.920
court in the Massachusetts case did actually

01:37:42.920 --> 01:37:46.220
do a very good job of this. It specifically said,

01:37:47.260 --> 01:37:49.300
I'm saying New Jersey is a stand in 23 Attorney

01:37:49.300 --> 01:37:52.770
General. The states need this relief. And he

01:37:52.770 --> 01:37:54.670
didn't grant universal relief to the individual

01:37:54.670 --> 01:37:57.029
plaintiffs in that case. So he did actually ask

01:37:57.029 --> 01:37:59.189
for relief for different parties. And he said,

01:37:59.270 --> 01:38:02.109
this is necessary for us. Part of why we're talking

01:38:02.109 --> 01:38:03.670
about alternatives in a different way at the

01:38:03.670 --> 01:38:06.130
podium today is because these alternatives were

01:38:06.130 --> 01:38:08.130
not presented to the district court. So the district

01:38:08.130 --> 01:38:10.529
court just had before him the idea that maybe

01:38:10.529 --> 01:38:12.949
we have to eat some harms or maybe we get universal

01:38:12.949 --> 01:38:14.649
relief. And of course, we need universal relief

01:38:14.649 --> 01:38:16.590
given the strength of the marriage showing as

01:38:16.590 --> 01:38:19.000
between those choices. I think what you could

01:38:19.000 --> 01:38:21.180
say is here, there were two sentences in an emergency

01:38:21.180 --> 01:38:24.619
application that raise new alternative ways to

01:38:24.619 --> 01:38:26.760
remedy the harms. Those sorts of things need

01:38:26.760 --> 01:38:28.579
to be raised to the district court. And when

01:38:28.579 --> 01:38:30.119
they are raised to district courts in appropriate

01:38:30.119 --> 01:38:32.579
cases when states file suit, courts should ask

01:38:32.579 --> 01:38:35.460
first. Are those alternatives going to be practically

01:38:35.460 --> 01:38:37.659
or legally workable for the plaintiffs and for

01:38:37.659 --> 01:38:39.880
third parties? I agree to Justice Gorsuch's point.

01:38:39.920 --> 01:38:41.600
If the federal government wants to take on its

01:38:41.600 --> 01:38:43.739
own burdens, it can do so, but it can't just

01:38:43.739 --> 01:38:45.199
say that for third parties. But you're talking

01:38:45.199 --> 01:38:46.680
about what would happen in the future. I'm talking

01:38:46.680 --> 01:38:48.579
about what would happen to you now. Oh, so I

01:38:48.579 --> 01:38:51.000
think if the United States seriously wanted to

01:38:51.000 --> 01:38:52.579
press these alternative with facts about how

01:38:52.579 --> 01:38:54.619
they would work and put that before the district

01:38:54.619 --> 01:38:56.760
court, parties can always put new alternatives

01:38:56.760 --> 01:38:58.520
in a motion to dissolve an injunction before

01:38:58.520 --> 01:39:00.279
the district court. That's something that has

01:39:00.279 --> 01:39:02.079
happened regularly when there's changed circumstances

01:39:02.079 --> 01:39:03.710
or new alternatives. alternatives. They're welcome

01:39:03.710 --> 01:39:06.550
to do that in this case or in any other, but

01:39:06.550 --> 01:39:08.310
then they're going to have to put forward actual

01:39:08.310 --> 01:39:10.510
facts about how it's practically or legally workable.

01:39:10.729 --> 01:39:12.909
I will say on its face these two sentences don't

01:39:12.909 --> 01:39:14.649
look practically or legally workable for the

01:39:14.649 --> 01:39:16.350
reasons I raised, but they'd have to make that

01:39:16.350 --> 01:39:17.770
showing in the district court in the first instance.

01:39:18.010 --> 01:39:20.329
Thank you. Justice Jackson. So I guess I'm kind

01:39:20.329 --> 01:39:23.810
of hung up on the posture in which we find ourselves

01:39:23.810 --> 01:39:28.750
looking at these issues. Justice Alito, I think,

01:39:28.869 --> 01:39:31.390
focused on this a little bit when he says that

01:39:31.390 --> 01:39:34.630
the district court makes this initial determination.

01:39:34.869 --> 01:39:39.829
It turns out to be wrong. The remedy, I thought,

01:39:39.829 --> 01:39:43.649
was to appeal. And I guess, for me, the question

01:39:43.649 --> 01:39:48.130
is whether and under what circumstances the government

01:39:48.130 --> 01:39:53.130
keeps on doing the thing that the court has found

01:39:53.130 --> 01:39:56.500
unlawful. while the litigation is proceeding

01:39:56.500 --> 01:39:59.960
to determine whether or not the government's

01:39:59.960 --> 01:40:02.739
activity violates the law. We're sort of in an

01:40:02.739 --> 01:40:05.039
interim posture. Many of your arguments, and

01:40:05.039 --> 01:40:09.659
I appreciate them, are kind of couched in the

01:40:09.659 --> 01:40:12.659
state is going to need complete relief for their

01:40:12.659 --> 01:40:16.100
injury. And that's true, definitely, as a final

01:40:16.100 --> 01:40:19.380
matter. But here we are at the beginning of this

01:40:19.380 --> 01:40:22.489
litigation. No one has determined whether or

01:40:22.489 --> 01:40:25.489
not the government's conduct is actually unlawful.

01:40:26.010 --> 01:40:28.590
We have a district court, several district courts

01:40:28.590 --> 01:40:31.470
and now courts of appeals that say it is and

01:40:31.470 --> 01:40:34.949
so as an interim matter we are saying the government

01:40:34.949 --> 01:40:38.750
has to stop doing it while we litigate the issue

01:40:38.750 --> 01:40:41.930
of the unlawfulness. To me that kind of puts

01:40:41.930 --> 01:40:45.029
the whole thing in a different frame. It's sort

01:40:45.029 --> 01:40:48.369
of like why isn't the question in this posture,

01:40:48.470 --> 01:40:51.560
in this circumstance, can the government or has

01:40:51.560 --> 01:40:56.000
the government shown that it is going to suffer

01:40:56.000 --> 01:40:58.819
some sort of harm from being made to completely

01:40:58.819 --> 01:41:02.079
stop this activity while we're litigating the

01:41:02.079 --> 01:41:04.739
lawfulness of the conduct? I don't understand.

01:41:05.000 --> 01:41:06.859
And then you say, yes, we're going to suffer

01:41:06.859 --> 01:41:09.020
harm. This is the balance of the equities that

01:41:09.020 --> 01:41:12.840
are part of the PI and the stay showing. But

01:41:12.840 --> 01:41:15.619
I just don't understand why that's not the focus

01:41:15.619 --> 01:41:19.300
here. And I apologize because I didn't get a

01:41:19.300 --> 01:41:21.880
chance to ask Mr. Sauer this. But maybe he can

01:41:21.880 --> 01:41:27.579
address this on his rebuttal. But what problem

01:41:27.579 --> 01:41:31.560
is the government facing as a harm matter from

01:41:31.560 --> 01:41:35.239
being completely told it has to stop doing this

01:41:35.239 --> 01:41:38.439
while we, the court system, determine whether

01:41:38.439 --> 01:41:41.159
or not its conduct is lawful? So we included

01:41:41.159 --> 01:41:42.720
this in our application. We do think this case

01:41:42.720 --> 01:41:44.859
is quite unique in that I do think it's hard.

01:41:45.100 --> 01:41:47.420
for the government to show in this particular

01:41:47.420 --> 01:41:49.680
case that it needs to be able to act contrary

01:41:49.680 --> 01:41:52.119
to this court's settled precedent. That's obviously

01:41:52.119 --> 01:41:54.380
come up in a couple of questions today. It's

01:41:54.380 --> 01:41:55.779
something of, I realize, the elephant in the

01:41:55.779 --> 01:41:58.159
room. I've often been asked to assume that the

01:41:58.159 --> 01:42:00.640
merits are put to the side, and I'm fine assuming

01:42:00.640 --> 01:42:02.380
that for those questions. But to your point,

01:42:02.619 --> 01:42:05.119
you're not wrong. It is quite striking, obviously,

01:42:05.439 --> 01:42:08.079
that it's not just that district courts are saying,

01:42:08.479 --> 01:42:10.619
this looks like it might be unlawful. They're

01:42:10.619 --> 01:42:13.220
saying Wong Kim Ark settled this exact issue

01:42:13.220 --> 01:42:16.180
127 years ago. years ago, this court has reaffirmed

01:42:16.180 --> 01:42:18.479
it since, over a century of executive practices

01:42:18.479 --> 01:42:20.619
built on that. And Congress has codified that

01:42:20.619 --> 01:42:23.300
directly into law. So I do think it's a particularly

01:42:23.300 --> 01:42:25.640
unusual case for the government to be saying

01:42:25.640 --> 01:42:28.340
that it has been quite so harmed and needs this

01:42:28.340 --> 01:42:30.279
kind of relief. But at the end of the day, I'm

01:42:30.279 --> 01:42:31.979
happy to join issue on when relief may or may

01:42:31.979 --> 01:42:33.800
not be appropriate. And I just think we're clearly

01:42:33.800 --> 01:42:35.180
on the other side. But you're saying that at

01:42:35.180 --> 01:42:37.600
least in some circumstances, from your perspective,

01:42:37.760 --> 01:42:41.159
in order to even decide whether or not you are

01:42:41.159 --> 01:42:45.039
entitled to an interim complete injunction the

01:42:45.039 --> 01:42:47.100
courts now going to have to peak at the merits.

01:42:48.080 --> 01:42:50.340
while the merits are being litigated? I think

01:42:50.340 --> 01:42:52.119
the court always has to peek at the merits in

01:42:52.119 --> 01:42:54.119
deciding whether the party itself should be getting

01:42:54.119 --> 01:42:56.239
relief from its harms, including complete relief

01:42:56.239 --> 01:42:58.359
as even the United States accepts. So those are

01:42:58.359 --> 01:43:00.199
all four of the winter factors. You have to figure

01:43:00.199 --> 01:43:02.420
out what the irreparable harm is that you're

01:43:02.420 --> 01:43:04.119
trying to deal with. You have to figure out if

01:43:04.119 --> 01:43:05.960
we have a sufficient merits showing in order

01:43:05.960 --> 01:43:08.420
to eliminate that irreparable harm. And depending

01:43:08.420 --> 01:43:09.960
on the strength of the merits showing, you're

01:43:09.960 --> 01:43:11.899
also looking at winter's factors three and four.

01:43:12.140 --> 01:43:14.140
So this court has given four winter factors that

01:43:14.140 --> 01:43:16.300
I think are quite useful in most cases. I took

01:43:16.300 --> 01:43:18.680
my friends on the other side to be saying, well,

01:43:18.720 --> 01:43:20.720
beyond the winter factors, there's this bright

01:43:20.720 --> 01:43:23.000
line rule from Article 3 or the history of equity

01:43:23.000 --> 01:43:24.880
that just says it can never get to this point.

01:43:25.279 --> 01:43:27.239
I obviously disagree a bit with them on the reading

01:43:27.239 --> 01:43:29.319
of that history, but I just think it has no bearing

01:43:29.319 --> 01:43:31.260
on the case that the states bring to this court

01:43:31.260 --> 01:43:36.079
here. Thank you. Thank you, counsel. Ms. Corcoran.

01:43:37.319 --> 01:43:39.300
Mr. Chief Justice, and may it please the court.

01:43:39.609 --> 01:43:42.250
The executive order's stripping of citizenship

01:43:42.250 --> 01:43:44.829
from U .S. born children is contrary not only

01:43:44.829 --> 01:43:47.489
to the 14th Amendment's plain text, but also

01:43:47.489 --> 01:43:49.909
our common law history, this court's precedent,

01:43:50.270 --> 01:43:52.489
a federal statute, and over a century of executive

01:43:52.489 --> 01:43:55.369
branch practice. Every court to have considered

01:43:55.369 --> 01:43:57.609
the issue agrees that the order is blatantly

01:43:57.609 --> 01:44:00.329
unlawful, a determination the stay application

01:44:00.329 --> 01:44:03.119
does not challenge. The government instead argues

01:44:03.119 --> 01:44:06.039
that Article 3 and equitable tradition categorically

01:44:06.039 --> 01:44:08.819
prohibit providing non -party relief from the

01:44:08.819 --> 01:44:11.079
order's enforcement regardless of the order's

01:44:11.079 --> 01:44:14.119
illegality or the irreparable harm it inflicts.

01:44:14.279 --> 01:44:16.779
The government is wrong. It is well settled that

01:44:16.779 --> 01:44:19.779
preliminary injunctions may benefit non -parties

01:44:19.779 --> 01:44:22.119
when necessary to provide complete relief to

01:44:22.119 --> 01:44:25.079
the plaintiffs or when warranted by extraordinary

01:44:25.079 --> 01:44:28.119
circumstances, both of which are true here. The

01:44:28.119 --> 01:44:29.939
court should reject the government's efforts

01:44:29.939 --> 01:44:32.560
to stay a preliminary injunction that maintains

01:44:32.560 --> 01:44:35.140
a status quo all three branches of government

01:44:35.140 --> 01:44:38.159
have ratified and operated under for over a century

01:44:38.159 --> 01:44:40.239
and that prevent the catastrophic consequences

01:44:40.239 --> 01:44:42.819
that will result for the plaintiffs and our country

01:44:42.819 --> 01:44:45.680
if the government is allowed to execute an unconstitutional

01:44:45.680 --> 01:44:48.579
citizenship stripping scheme simply because legal

01:44:48.579 --> 01:44:51.319
challenges take time. I welcome the court's questions.

01:44:52.119 --> 01:44:55.779
You say the government is wrong about the availability

01:44:55.779 --> 01:45:01.739
of on preliminary injunctions. On what do you

01:45:01.739 --> 01:45:05.670
base that? So I think the two reasons I identified,

01:45:05.789 --> 01:45:07.850
one, it is well settled and I understood General

01:45:07.850 --> 01:45:10.609
Sauer to agree today that universal injunctive

01:45:10.609 --> 01:45:12.989
relief is appropriate when necessary to provide

01:45:12.989 --> 01:45:15.590
complete relief to the plaintiffs. That is the

01:45:15.590 --> 01:45:19.010
case here and I'm happy to talk about that. But

01:45:19.010 --> 01:45:23.430
I also, this court has long recognized the availability

01:45:23.430 --> 01:45:26.329
of universal injunctive relief in extraordinary

01:45:26.329 --> 01:45:31.090
circumstances where it's justified. I think I

01:45:31.090 --> 01:45:32.760
would focus particularly on the public interest

01:45:32.760 --> 01:45:36.819
and equities prongs of the winter test. And I'm

01:45:36.819 --> 01:45:38.560
happy to talk about that as well. But I think

01:45:38.560 --> 01:45:40.159
those are the two reasons the government wants.

01:45:40.159 --> 01:45:46.399
Do you think that even if one considers the history

01:45:46.399 --> 01:45:50.039
not to support you, that the pragmatic considerations

01:45:50.039 --> 01:45:52.880
and the policy considerations should override

01:45:52.880 --> 01:45:57.079
that? So again, I would put us in the complete

01:45:57.079 --> 01:46:00.369
relief bucket. Mr. Foggenbaum, I'll put on my

01:46:00.369 --> 01:46:04.149
amici hat in answering that question. I understand

01:46:04.149 --> 01:46:06.310
General Sauer's proposal to be that we channel

01:46:06.310 --> 01:46:09.930
all of this through Rule 23. I think that is

01:46:09.930 --> 01:46:12.250
a historical one. It's inconsistent with the

01:46:12.250 --> 01:46:14.689
Rules Committee's understanding of other rules.

01:46:15.050 --> 01:46:18.449
If you look at Rule 23, Rule 65, and Rule 71

01:46:18.449 --> 01:46:21.670
together, they establish that Rule 23 is not

01:46:21.670 --> 01:46:23.470
the channeling mechanism that the government's

01:46:23.470 --> 01:46:26.250
suggesting. I'll start with Rule 71 because it's

01:46:26.250 --> 01:46:28.029
responsive justice to bear it to your question.

01:46:27.789 --> 01:46:30.710
question earlier about whether non -parties can

01:46:30.710 --> 01:46:34.409
enforce orders. Rule 71 explicitly contemplates

01:46:34.409 --> 01:46:37.489
that and says if a non -party receives relief,

01:46:37.890 --> 01:46:40.649
they are entitled to enforce it. I'd point also

01:46:40.649 --> 01:46:43.369
to Rule 65, the preliminary injunction rule.

01:46:43.670 --> 01:46:46.770
In 2017, the Rules Committee considered a proposal

01:46:46.770 --> 01:46:50.930
from Professor Bray to amend the rule to prohibit

01:46:50.930 --> 01:46:53.350
relief to non -parties. The committee rejected

01:46:53.350 --> 01:46:55.949
that proposal because it found that it ran afoul

01:46:55.949 --> 01:46:58.300
of the rules -enabling And then I'd end by pointing

01:46:58.300 --> 01:47:01.020
to Rule 23 itself, which says nothing about it

01:47:01.020 --> 01:47:04.140
being a channeling mechanism. In Prince B. V.

01:47:04.300 --> 01:47:08.159
Scarborough, this court said we don't treat the

01:47:08.159 --> 01:47:12.079
rules as excluding background equitable practices.

01:47:12.180 --> 01:47:14.819
And here, Rule 23 doesn't even contemplate preliminary

01:47:14.819 --> 01:47:17.659
relief. It's focused on permanent injunctive

01:47:17.659 --> 01:47:20.500
relief. And I think that's because, as we've

01:47:20.500 --> 01:47:22.840
been discussing, it's very difficult to get class

01:47:22.840 --> 01:47:24.800
certification and time to have preliminary relief.

01:47:24.819 --> 01:47:26.399
So you're doing putative class relief. relief,

01:47:26.680 --> 01:47:28.399
which is the exact same thing as what's happening

01:47:28.399 --> 01:47:30.859
here. Well, why can't you get putative class

01:47:30.859 --> 01:47:34.880
relief in a preliminary injunction or TRO posture?

01:47:35.119 --> 01:47:37.579
You mean, sorry, in the type of content? Get

01:47:37.579 --> 01:47:42.640
relief for a putative class in a TRO or PI posture.

01:47:42.739 --> 01:47:44.600
I certainly think you can. The court did that

01:47:44.600 --> 01:47:47.779
recently in AARP. My point is, when the court

01:47:47.779 --> 01:47:50.899
does that, it's relying on the equitable authority

01:47:50.899 --> 01:47:53.180
it has to enter that sort of relief, not on the

01:47:53.180 --> 01:47:56.399
Rule 23 mechanism, because the class isn't binding

01:47:56.399 --> 01:47:58.960
until after certification, until after final

01:47:58.960 --> 01:48:02.000
judgment. If that mechanism is available, whether

01:48:02.000 --> 01:48:05.979
one way or another, doesn't that solve a large

01:48:05.979 --> 01:48:10.739
part of the problem in a way that complies with

01:48:10.739 --> 01:48:15.090
the the rules, the problems with universal injunctions

01:48:15.090 --> 01:48:17.510
that have been identified by administrations

01:48:17.510 --> 01:48:22.489
of both parties. Go through rule 23 and do what's

01:48:22.489 --> 01:48:25.789
needed there, and people are bound then, so that's

01:48:25.789 --> 01:48:28.310
a wrinkle. But why doesn't that just solve the

01:48:28.310 --> 01:48:29.989
problem? Right, so they're not going to be bound

01:48:29.989 --> 01:48:31.909
until after you get past class certification,

01:48:31.970 --> 01:48:33.050
so we're talking about you. I understand that.

01:48:33.210 --> 01:48:35.189
And for that reason, I would go to Justice Alito's

01:48:35.189 --> 01:48:37.689
point earlier, that all you're doing is taking

01:48:37.689 --> 01:48:40.390
the non -party injunctions that are happening

01:48:40.390 --> 01:48:42.989
now outside of Rule 23 and shoving them into

01:48:42.989 --> 01:48:45.609
Rule 23. It doesn't address the forum selection

01:48:45.609 --> 01:48:48.229
concerns. It doesn't address the concerns about

01:48:48.229 --> 01:48:50.470
the emergency docket. It complies with the rules.

01:48:50.609 --> 01:48:53.329
I mean, the law, we care about technicalities,

01:48:53.329 --> 01:48:56.880
and this may all be a technicality. But it seems

01:48:56.880 --> 01:49:01.000
to me the technicality of Rule 23 and the history

01:49:01.000 --> 01:49:06.539
of that provides, 23b2 provides a mechanism to

01:49:06.539 --> 01:49:10.100
do what's needed here in terms of getting relief

01:49:10.100 --> 01:49:14.300
to people. And if you have PIs available for

01:49:14.300 --> 01:49:17.319
putative classes, that seems to solve the. solve

01:49:17.319 --> 01:49:19.520
the issue for preliminary relief and the timing

01:49:19.520 --> 01:49:22.939
issue as well. So B2 provides for permanent injunctive

01:49:22.939 --> 01:49:25.220
relief. It does not provide for preliminary injunctive

01:49:25.220 --> 01:49:28.659
relief. Again, rule 23 does not purport to be

01:49:28.659 --> 01:49:30.800
the exclusive channeling mechanism. And as I

01:49:30.800 --> 01:49:32.279
said, the rules committee doesn't think it did.

01:49:32.319 --> 01:49:34.380
So it would be this court kind of projecting

01:49:34.380 --> 01:49:37.800
its own policy decision to treat rule 23 that

01:49:37.800 --> 01:49:40.300
way. And I would come back again to Justice Alito's

01:49:40.300 --> 01:49:42.579
concerns. That is not actually addressing the

01:49:42.579 --> 01:49:44.699
court's emergency docket. It's just now we're

01:49:44.699 --> 01:49:47.920
slapping a label of class certification. So I

01:49:47.920 --> 01:49:50.420
would, and I'll make a second point on that and

01:49:50.420 --> 01:49:52.479
then say what I think the better. what our way

01:49:52.479 --> 01:49:54.680
of approaching the problem is, which is I think

01:49:54.680 --> 01:49:57.340
the General Sauer and I are in agreement that

01:49:57.340 --> 01:49:59.560
the Venn diagram of cases that are appropriate

01:49:59.560 --> 01:50:01.819
for class certification and where injunctive

01:50:01.819 --> 01:50:04.739
relief I think would be appropriate is not coterminous.

01:50:05.060 --> 01:50:08.000
I think we could pursue successfully class certification

01:50:08.000 --> 01:50:10.880
here. I heard General Sauer to disagree, and

01:50:10.880 --> 01:50:13.039
I think it's because they're just different circumstances.

01:50:13.140 --> 01:50:15.760
If you look at the class certification requirements,

01:50:16.039 --> 01:50:17.760
commonality, typicality, they were actually added

01:50:17.760 --> 01:50:22.250
to Rule 23 in 1966. to address the expansion

01:50:22.250 --> 01:50:25.050
of class certification to include damages suits.

01:50:25.109 --> 01:50:27.270
That makes sense there. But those were never

01:50:27.270 --> 01:50:31.270
requirements prior to 1966. Ms. Corcoran, on

01:50:31.270 --> 01:50:33.470
the class certification point you've been developing,

01:50:34.890 --> 01:50:36.850
one response might be, and I just want to get

01:50:36.850 --> 01:50:40.670
your reaction to it, that by proceeding through

01:50:40.670 --> 01:50:43.529
the class mechanism, even a putative class mechanism,

01:50:43.750 --> 01:50:46.670
a court is making a preliminary assessment about

01:50:46.670 --> 01:50:49.430
who are the parties going to be before it. and

01:50:49.430 --> 01:50:52.930
issuing interim relief so that it preserves its

01:50:52.930 --> 01:50:55.649
jurisdiction to issue final relief with respect

01:50:55.649 --> 01:50:58.789
to those parties. And that's very different,

01:50:59.069 --> 01:51:02.449
the argument would go, than simply saying everybody

01:51:02.449 --> 01:51:06.649
everywhere, nationwide, universally, or perhaps

01:51:06.649 --> 01:51:10.510
cosmically, stands to benefit from this decision

01:51:10.510 --> 01:51:13.489
without ever having to suffer being bound by

01:51:13.489 --> 01:51:17.500
it. So I would say, again, that's an ahistorical

01:51:17.500 --> 01:51:20.239
approach. You haven't had that sort of rule 23

01:51:20.239 --> 01:51:23.159
train. Well, assume for the moment that we read

01:51:23.159 --> 01:51:27.520
bills of peace, which I understand to be your

01:51:27.520 --> 01:51:32.880
best set of cases, to be prototypical of what

01:51:32.880 --> 01:51:37.579
is now rule 23. Right. And so the bills of peace

01:51:37.579 --> 01:51:39.399
and kind of going through, as Mr. Foggenbaum

01:51:39.399 --> 01:51:42.279
was talking about, equity rule 48 and then 38.

01:51:42.489 --> 01:51:45.010
In none of those circumstances were we doing

01:51:45.010 --> 01:51:48.050
this ex ante class certification determination.

01:51:48.489 --> 01:51:50.649
So the modern class action device actually looks

01:51:50.649 --> 01:51:53.210
quite different than it was for representative

01:51:53.210 --> 01:51:55.289
suits historically. So it would be putting on

01:51:55.289 --> 01:51:58.250
an ahistorical constraint. I appreciate that

01:51:58.250 --> 01:52:00.909
argument, okay, but now we're haggling over the

01:52:00.909 --> 01:52:05.409
history, which we have to do, I accept. But if

01:52:05.409 --> 01:52:08.250
bills of peace are understood, again, accept

01:52:08.250 --> 01:52:13.500
the premise, to be... predecessors of Rule 23,

01:52:14.060 --> 01:52:16.260
then respond to the point that there is something

01:52:16.260 --> 01:52:20.579
fundamentally different about a preliminary injunction

01:52:20.579 --> 01:52:23.180
to a putative class you've found is likely to

01:52:23.180 --> 01:52:26.060
be certified and likely to succeed on the merits

01:52:26.060 --> 01:52:28.399
in order to preserve that court's jurisdiction

01:52:28.399 --> 01:52:31.640
toward ultimate relief to those parties before

01:52:31.640 --> 01:52:34.000
it, and that that's categorically different.

01:52:34.250 --> 01:52:36.050
than a universal injunction. So starting with

01:52:36.050 --> 01:52:37.609
the presumption that was different about the

01:52:37.609 --> 01:52:40.449
Bills of Peace is that they were binding, I think

01:52:40.449 --> 01:52:42.949
sometimes it's not clear always, at the end when

01:52:42.949 --> 01:52:44.770
they were getting to final judgment. I would

01:52:44.770 --> 01:52:48.470
go back to Grupo Mexicano to Justice Barrett's

01:52:48.470 --> 01:52:50.770
point, although that was a high watermark of

01:52:50.770 --> 01:52:53.850
this equitable originalism. The way the court

01:52:53.850 --> 01:52:57.470
articulated the test focused on 1789, but the

01:52:57.470 --> 01:53:00.970
actual analysis in Grupo Mexicano focused on

01:53:00.970 --> 01:53:05.300
1890 through 1942. And what the court found there

01:53:05.300 --> 01:53:08.779
is that there were numerous cases expressly rejecting

01:53:08.779 --> 01:53:11.340
the Mareva injunction. And that was confirmed

01:53:11.340 --> 01:53:13.699
in the 1970s when England adopted and said, no,

01:53:13.699 --> 01:53:16.260
we've never done this before. We are in an entirely

01:53:16.260 --> 01:53:19.239
different world here. One, the cases that Justice

01:53:19.239 --> 01:53:22.039
Sotomayor laid out earlier all come from between

01:53:22.039 --> 01:53:25.420
1890 and 1942. And they suggest that non -party

01:53:25.420 --> 01:53:28.699
relief was provided for outside of the class

01:53:28.699 --> 01:53:32.699
action context. But the fact that we have, I

01:53:32.699 --> 01:53:36.840
think, this time. I studied scholars in this

01:53:36.840 --> 01:53:39.479
rigorous debate about what the bills of peace

01:53:39.479 --> 01:53:41.619
meant, what the railroad cases meant. I think

01:53:41.619 --> 01:53:43.880
shows that this is very different in Grupo Mexicano.

01:53:44.399 --> 01:53:47.000
And for the court to kind of delve into that

01:53:47.000 --> 01:53:49.600
and adopt the categorical rule that the government

01:53:49.600 --> 01:53:53.079
is suggesting, I think is certainly an overcorrection.

01:53:53.439 --> 01:53:55.760
It's a hornet's nest on Article 3, right? It

01:53:55.760 --> 01:53:58.800
calls into concern APA class action, a whole

01:53:58.800 --> 01:54:00.800
sort of things. I would suggest that the court

01:54:00.800 --> 01:54:03.739
instead focus on providing limiting principles.

01:54:03.850 --> 01:54:07.529
within the confines of the Nikin factors of the

01:54:07.529 --> 01:54:11.310
window. Is there a practical problem? So I want

01:54:11.310 --> 01:54:13.170
to put aside the history, and I take your points

01:54:13.170 --> 01:54:16.010
on that. And why you don't think rule 23 fits,

01:54:16.170 --> 01:54:18.729
I take your point on that. But if putative class

01:54:18.729 --> 01:54:23.050
actions and preliminary relief are an option.

01:54:24.050 --> 01:54:26.909
What, then, is the practical problem you see

01:54:26.909 --> 01:54:30.050
as distinct from the current regime? Well, if

01:54:30.050 --> 01:54:32.050
General Sauer is right in that there are class

01:54:32.050 --> 01:54:35.210
certification problems here, then in this particular

01:54:35.210 --> 01:54:37.810
case, you're going to have thousands of - Okay,

01:54:37.930 --> 01:54:40.029
I think you would be arguing that the class should

01:54:40.029 --> 01:54:42.329
be certified here. Right, but I'm saying the

01:54:42.329 --> 01:54:44.270
government is just - So more generally, taking

01:54:44.270 --> 01:54:48.470
it out of this case, if you could, do you see

01:54:48.470 --> 01:54:50.520
practical problems? Yeah, it would eliminate

01:54:50.520 --> 01:54:53.520
the associational standing trade cases, you know,

01:54:53.600 --> 01:54:55.140
the cases brought by the Chamber of Commerce,

01:54:55.340 --> 01:54:58.460
the NRA, other associations that aren't suitable

01:54:58.460 --> 01:55:01.920
for class certification. I think also the questions,

01:55:02.020 --> 01:55:04.220
again... Can you explain that? Well, they wouldn't...

01:55:04.220 --> 01:55:06.340
So if we were to seek cert, it would be on behalf

01:55:06.340 --> 01:55:09.640
of our individual plaintiffs, you know, for the

01:55:09.640 --> 01:55:11.680
same reason that the government would have difficulty

01:55:11.680 --> 01:55:14.239
seeking class certification. The state government,

01:55:14.380 --> 01:55:17.220
I think... associations are not necessarily a

01:55:17.220 --> 01:55:21.689
good fit for that framework. That's also not

01:55:21.689 --> 01:55:24.270
solving the court's problem. It's just channeling

01:55:24.270 --> 01:55:25.970
the problems through a different mechanism. I

01:55:25.970 --> 01:55:28.050
don't think that can be solved, just to be honest.

01:55:28.149 --> 01:55:30.029
But that's a separate issue from what the right

01:55:30.029 --> 01:55:33.069
rule is as to how things transpire in the district

01:55:33.069 --> 01:55:35.449
courts. Could I perhaps try to solve it in a

01:55:35.449 --> 01:55:38.310
different way? What I would suggest, we spent

01:55:38.310 --> 01:55:41.369
some time trying to catalog the cases in which

01:55:41.369 --> 01:55:44.170
this court has approved universal injunctive

01:55:44.170 --> 01:55:46.430
relief and the cases in which it's rejected it

01:55:46.430 --> 01:55:50.399
with the aim of giving the court maybe a suggestion

01:55:50.399 --> 01:55:54.020
on how it might affirmatively articulate some

01:55:54.020 --> 01:55:57.800
limiting principles such that you would not be

01:55:57.800 --> 01:55:59.500
getting the injunctions that the court thinks

01:55:59.500 --> 01:56:01.260
are inappropriate, but the ones that the court

01:56:01.260 --> 01:56:03.380
has approved would still be able to proceed.

01:56:03.439 --> 01:56:06.140
Again, that's not the categorical rule that the

01:56:06.140 --> 01:56:08.899
government is suggesting. I think roughly what

01:56:08.899 --> 01:56:12.380
the court has been doing is saying that universal

01:56:12.380 --> 01:56:16.260
injunctions are appropriate only in facial challenges

01:56:16.260 --> 01:56:19.300
involving fundamental constitutional rights,

01:56:19.640 --> 01:56:22.600
where there are real concerns about whether the

01:56:22.600 --> 01:56:26.539
legal and practical availability of relief to

01:56:26.539 --> 01:56:28.720
similarly situated parties who are also going

01:56:28.720 --> 01:56:30.880
to experience irreparable harm. I think that

01:56:30.880 --> 01:56:34.579
maybe explains AARP. Most recently, IRAP would

01:56:34.579 --> 01:56:38.159
fall into that category. Chrysophis, the New

01:56:38.159 --> 01:56:39.899
York eviction case, would fall in that category.

01:56:39.760 --> 01:56:42.500
On the other side of the ledger, the court seems

01:56:42.500 --> 01:56:46.199
to disapprove quite a bit of nationwide injunctions

01:56:46.199 --> 01:56:48.939
involving discretionary benefits. So that's some

01:56:48.939 --> 01:56:53.319
of the recent ones that you have undone or stayed.

01:56:53.659 --> 01:56:56.199
So I think what the court could do is kind of

01:56:56.199 --> 01:56:58.539
identifying limiting principles that would provide

01:56:58.539 --> 01:57:01.060
guidance to the lower courts on when it's appropriate

01:57:01.060 --> 01:57:03.060
to issue these injunctions. A natural home for

01:57:03.060 --> 01:57:05.520
that is the public interest prong of the winter

01:57:05.520 --> 01:57:08.300
test, right? If you're going to issue an injunction

01:57:08.300 --> 01:57:10.270
that's going to have an impact on other peoples,

01:57:10.329 --> 01:57:12.810
you need to be doing a really muscular public

01:57:12.810 --> 01:57:16.689
interest assessment before doing that. So that's

01:57:16.689 --> 01:57:18.430
what I would urge the court. Ms. Corcoran, are

01:57:18.430 --> 01:57:21.489
you pushing back on the class certification idea?

01:57:21.890 --> 01:57:24.430
Because you're worried that there are cases where

01:57:24.430 --> 01:57:28.310
there will be no certification, but in which

01:57:28.310 --> 01:57:31.489
broad relief is, in fact, appropriate, so that

01:57:31.489 --> 01:57:36.600
the two categories don't line up. why you're

01:57:36.600 --> 01:57:39.699
pushing back, why are you worried about that?

01:57:39.819 --> 01:57:41.899
What are the cases you're worried won't line

01:57:41.899 --> 01:57:44.079
up properly in that way? I mean, the government

01:57:44.079 --> 01:57:46.199
has suggested it's going to argue that here.

01:57:46.399 --> 01:57:48.500
Again, I think the commonality, so thinking about

01:57:48.500 --> 01:57:51.020
questions like common injury, make a lot of sense

01:57:51.020 --> 01:57:53.479
when you're talking about class -wide damages,

01:57:53.899 --> 01:57:56.520
less so when you're talking about a facial challenge

01:57:56.520 --> 01:57:59.380
to a constitutional violation. So I think it's

01:57:59.380 --> 01:58:02.220
a bit of a mismatch. And again, it's not what

01:58:02.220 --> 01:58:05.819
Rule 23 was ever intended to do. solve any of

01:58:05.819 --> 01:58:07.960
the court's policy problems. So I think it's

01:58:07.960 --> 01:58:11.199
a. you know, it's a lose, lose, lose proposal

01:58:11.199 --> 01:58:13.539
that the government is offering. I'm a little

01:58:13.539 --> 01:58:15.600
concerned that I have focused a lot on my amici

01:58:15.600 --> 01:58:17.439
hat and haven't actually explained to the court

01:58:17.439 --> 01:58:20.239
why the injunction is necessary for complete

01:58:20.239 --> 01:58:22.819
relief here. But I don't want to pivot too quickly,

01:58:22.840 --> 01:58:25.460
but I want to make sure I address our primary

01:58:25.460 --> 01:58:27.399
argument as well. Tell us why it's necessary

01:58:27.399 --> 01:58:31.579
for complete relief. Thank you. For two reasons.

01:58:31.640 --> 01:58:35.800
The first is that a plaintiff's specific injunction

01:58:35.800 --> 01:58:39.760
would not be administratively workable, I'll

01:58:39.760 --> 01:58:41.039
explain that in a second, but I want to note

01:58:41.039 --> 01:58:43.960
the second one is that even if it were workable,

01:58:44.260 --> 01:58:48.960
it would require the association members to identify

01:58:48.960 --> 01:58:51.760
and disclose to the government an association

01:58:51.760 --> 01:58:56.060
that puts them at great risk. of adverse consequences,

01:58:56.239 --> 01:58:58.800
detention, or deportation, even if they're here

01:58:58.800 --> 01:59:01.899
lawfully. And so it's not complete relief to

01:59:01.899 --> 01:59:05.039
require the plaintiffs to make dangerous disclosures

01:59:05.039 --> 01:59:07.680
in order to claim the constitutional right. And

01:59:07.680 --> 01:59:09.220
then maybe I'll pivot back to the workability,

01:59:09.420 --> 01:59:13.159
unless there are questions about that. So, oh,

01:59:13.159 --> 01:59:15.560
sorry. Very briefly, and then we'll move on to

01:59:15.560 --> 01:59:21.920
the next stage of our questioning. The government's

01:59:21.920 --> 01:59:25.359
workability argument with respect to the individual

01:59:25.359 --> 01:59:28.199
plaintiffs, the private plaintiffs is wholly

01:59:28.199 --> 01:59:30.760
tethered to its argument that the injunction

01:59:30.760 --> 01:59:34.119
should be limited to the 16 named plaintiffs.

01:59:34.319 --> 01:59:37.560
It has offered no argument for how it would administer.

01:59:38.029 --> 01:59:40.609
how state and local agencies could administer

01:59:40.609 --> 01:59:44.449
an injunction that was narrowed to the ASAP and

01:59:44.449 --> 01:59:46.710
CASA members. So I think that's probably the

01:59:46.710 --> 01:59:49.149
end of the road. Mr. Fagenbaum made the point

01:59:49.149 --> 01:59:51.250
that they can always go back to the district

01:59:51.250 --> 01:59:54.149
court and ask for the injunction to be dissolved

01:59:54.149 --> 01:59:56.210
if they present some sort of workable proposal.

01:59:56.489 --> 01:59:59.529
They haven't, and I don't think they can. I don't

01:59:59.529 --> 02:00:02.159
want to talk for too long, but I... If anyone

02:00:02.159 --> 02:00:03.600
is interested, I'm happy to answer questions

02:00:03.600 --> 02:00:05.159
about why I think it's unworkable. Oh, I'm sure

02:00:05.159 --> 02:00:07.260
someone will be. Thank you, though, counsel.

02:00:07.380 --> 02:00:11.239
Justice Thomas? Justice Alito? Should we decide

02:00:11.239 --> 02:00:16.329
or make up our minds on the underlying birthright,

02:00:16.590 --> 02:00:19.090
citizenship question without briefing and argument

02:00:19.090 --> 02:00:23.289
and deliberation? I think that we would be very

02:00:23.289 --> 02:00:25.689
eager to do supplemental briefing on that. General

02:00:25.689 --> 02:00:27.890
Sauer noted that none of the parties had asked

02:00:27.890 --> 02:00:29.529
for cert before judgment. We couldn't because

02:00:29.529 --> 02:00:31.569
we keep winning. I will ask right now for cert

02:00:31.569 --> 02:00:35.029
before judgment. What's the answer to my question?

02:00:35.279 --> 02:00:37.840
Yes, I think you can, Grant, for judgment. No,

02:00:37.840 --> 02:00:40.100
that wasn't my question. But I will say, I think

02:00:40.100 --> 02:00:41.659
- All right, that's all right. You don't want

02:00:41.659 --> 02:00:43.380
to answer it that small. No, no, I will. If I

02:00:43.380 --> 02:00:44.840
could give an answer, which is that I think it's

02:00:44.840 --> 02:00:47.800
very difficult, if not impossible, for the court

02:00:47.800 --> 02:00:50.720
to do a meaningful in -can analysis without taking

02:00:50.720 --> 02:00:52.699
into account the fact that the government is

02:00:52.699 --> 02:00:55.720
asking the court to allow it to ignore this court's

02:00:55.720 --> 02:00:58.460
precedent, to ignore a duly enacted statute,

02:00:58.739 --> 02:01:01.579
and to upend 100 years of executive branch practice.

02:01:01.640 --> 02:01:04.520
So I think, although the government has attempted

02:01:04.619 --> 02:01:07.779
to separate them that really the merits are embedded

02:01:07.779 --> 02:01:15.500
in the income factors. I find it hard to understand

02:01:15.500 --> 02:01:19.439
how a district court in looking at a preliminary

02:01:19.439 --> 02:01:22.500
injunction under the winter factors where we

02:01:22.500 --> 02:01:25.420
said that the likelihood of success on the merits

02:01:25.420 --> 02:01:30.539
is the keystone. How we could separate that out

02:01:30.539 --> 02:01:33.939
and say The keystone of whether you're entitled

02:01:33.939 --> 02:01:38.619
to universal injunction is the only merits question,

02:01:38.720 --> 02:01:41.819
because the other factors are not eliminated

02:01:41.819 --> 02:01:44.539
by winter. You have to balance the equities,

02:01:44.600 --> 02:01:46.680
and you can't balance the equities without the

02:01:46.680 --> 02:01:48.420
merits, correct? I think that's right. I think

02:01:48.420 --> 02:01:52.609
also irreparable harm. is going to be very difficult

02:01:52.609 --> 02:01:54.949
for the government to prove if it's not contesting

02:01:54.949 --> 02:01:56.890
that the, or not contesting, or at least not

02:01:56.890 --> 02:01:58.529
defending the constitutionality of the order

02:01:58.529 --> 02:02:00.930
because the government has no interest in enforcing

02:02:00.930 --> 02:02:03.890
an unconstitutional order. I'd also note there's

02:02:03.890 --> 02:02:06.909
a quote from Professor Bray in Justice Gorsuch's

02:02:06.909 --> 02:02:09.489
Texas Concurrence, and it's, in equity it all

02:02:09.489 --> 02:02:12.449
connects. The broader and deeper the relief the

02:02:12.449 --> 02:02:14.789
plaintiff seeks, the stronger the plaintiff's

02:02:14.789 --> 02:02:17.350
story has to be. So I think there really is kind

02:02:17.350 --> 02:02:19.430
of an equitable consideration here of the merits

02:02:19.430 --> 02:02:24.229
as well. Now, the state has explained why it

02:02:24.229 --> 02:02:27.550
can't pursue class actions. So it really, it

02:02:27.550 --> 02:02:32.510
admits it's limited to whether it's entitled

02:02:32.510 --> 02:02:37.609
to complete relief. But how about your organization?

02:02:37.890 --> 02:02:40.890
You sort of answered it, but I wanted to pin

02:02:40.890 --> 02:02:44.569
you down on that. Do you believe that associational

02:02:44.569 --> 02:02:47.800
organizations can seek Class action? I believe

02:02:47.800 --> 02:02:50.239
our individual plaintiffs certainly can. Yes,

02:02:50.319 --> 02:02:53.220
there's no question. I am nervous about the government's

02:02:53.220 --> 02:02:55.119
suggestion that it's going to oppose our class

02:02:55.119 --> 02:02:57.300
certification motion if we were to file one.

02:02:57.659 --> 02:03:00.640
Class certification can be very discovery intensive.

02:03:01.239 --> 02:03:03.899
It could be the sort of thing that really delays

02:03:03.899 --> 02:03:06.260
our plaintiffs from getting the relief that they

02:03:06.260 --> 02:03:10.180
seek. Thank you. Mrs. Kagan? I guess what I worry

02:03:10.180 --> 02:03:12.640
about here, Ms. Corcoran, is that this case is

02:03:12.640 --> 02:03:15.380
very different. from a lot of our nationwide

02:03:15.380 --> 02:03:18.859
injunction cases in which many of us have expressed

02:03:18.859 --> 02:03:22.260
frustration at the way district courts are doing

02:03:22.260 --> 02:03:26.300
their business. The typical way in which that

02:03:26.300 --> 02:03:29.819
frustration emerges is that legal questions are

02:03:29.819 --> 02:03:32.199
hard and they're complicated and different courts

02:03:32.199 --> 02:03:35.260
would decide them differently. Instead, because

02:03:35.260 --> 02:03:38.420
of the forum selection process, a party goes

02:03:38.420 --> 02:03:41.380
to one place You know, in the first Trump administration,

02:03:41.439 --> 02:03:43.800
it was all done in San Francisco. And then in

02:03:43.800 --> 02:03:46.220
the next administration, it was all done in Texas.

02:03:47.279 --> 02:03:51.039
And there is a big problem that is created by

02:03:51.039 --> 02:03:55.199
that mechanism. And that leads to the questions

02:03:55.199 --> 02:03:59.079
to you and to General Feigenbaum, which is like,

02:03:59.079 --> 02:04:02.180
you know, your third buckets, which are, oh,

02:04:02.180 --> 02:04:06.100
if it's like super important or if it's quintessentially

02:04:06.100 --> 02:04:09.739
national or whatever the way you know, is not

02:04:09.739 --> 02:04:12.380
going to solve our problem for that set of cases,

02:04:12.739 --> 02:04:16.079
which is not this case. This case, what's problematic

02:04:16.079 --> 02:04:18.359
about it is that the courts keep deciding the

02:04:18.359 --> 02:04:21.039
same way. And nobody really thinks that the lower

02:04:21.039 --> 02:04:24.000
courts are going to do anything different. And,

02:04:24.000 --> 02:04:27.600
you know, for that reason, it does present the

02:04:27.600 --> 02:04:30.239
catch -me -if -you -can problem that Justice

02:04:30.239 --> 02:04:33.100
Jackson said and the problem of how are we ever

02:04:33.100 --> 02:04:36.409
going to get a case here. But our general case

02:04:36.409 --> 02:04:39.109
is not like that. And I just want you to sort

02:04:39.109 --> 02:04:41.430
of comment on that. Yeah. I'd say first that

02:04:41.430 --> 02:04:43.510
the government's proposal of channeling through

02:04:43.510 --> 02:04:46.430
Rule 23 does nothing to solve anything you just

02:04:46.430 --> 02:04:48.729
described. I think the limiting principles that

02:04:48.729 --> 02:04:50.689
I was proposing, which again was just me trying

02:04:50.689 --> 02:04:53.430
to reflect back to the court the through lines

02:04:53.430 --> 02:04:55.829
that it's been identifying, are sufficiently

02:04:55.829 --> 02:04:58.109
concrete that if this court were to articulate

02:04:58.109 --> 02:05:00.649
them, it would cut back on the number of universal

02:05:00.649 --> 02:05:03.090
injunctions. Is it a facial challenge? Does it

02:05:03.090 --> 02:05:07.329
involve a fundamental constitution? Those are

02:05:07.329 --> 02:05:09.829
concrete questions. And then I would point to

02:05:09.829 --> 02:05:13.069
Justice Kavanaugh's PO concurrence. I think vertical

02:05:13.069 --> 02:05:15.109
stare decisis is going to be important here.

02:05:15.449 --> 02:05:18.609
When courts enter these sorts of injunctions,

02:05:18.850 --> 02:05:20.529
they are immediately appealable to the courts

02:05:20.529 --> 02:05:22.529
of appeals. So if there are any district courts

02:05:22.529 --> 02:05:24.949
that are kind of getting over their skis on these,

02:05:25.149 --> 02:05:29.649
it's correctable by the courts of appeals. Justice

02:05:29.649 --> 02:05:35.250
Gorsuch? Justice Kavanaugh? Concerns about this

02:05:35.250 --> 02:05:39.130
court being involved, because I'm not sure I

02:05:39.130 --> 02:05:41.670
really understand that, when a president or an

02:05:41.670 --> 02:05:45.949
administration enacts some major new rule, the

02:05:45.949 --> 02:05:49.109
question ultimately, and it's legally challenged,

02:05:49.390 --> 02:05:51.489
ultimately it'll be a year or two from now it'll

02:05:51.489 --> 02:05:54.390
get here and we'll make a final judgment. But

02:05:54.390 --> 02:05:57.350
the interim status of that rule, as this case

02:05:57.350 --> 02:06:00.510
illustrates, and many others, vaccine mandate,

02:06:01.320 --> 02:06:04.180
eviction moratorium, go down the list. They're

02:06:04.180 --> 02:06:06.659
really important whether they're in effect for

02:06:06.659 --> 02:06:10.520
that year or two. And I guess I don't know why

02:06:10.520 --> 02:06:13.939
you should be concerned or we should be concerned

02:06:13.939 --> 02:06:15.979
about this court playing a role in this. Oh,

02:06:15.979 --> 02:06:17.859
I don't have concerns about that. I was responding

02:06:17.859 --> 02:06:20.119
to General Sauer's point that this has become

02:06:20.119 --> 02:06:22.939
pathological in the number of universal injunctions

02:06:22.939 --> 02:06:25.239
that are making its way onto the court's emergency

02:06:25.239 --> 02:06:27.220
docket. Just because there are more significant

02:06:27.220 --> 02:06:30.899
executive actions over the last Three decades.

02:06:31.359 --> 02:06:33.439
I certainly agree with that. And I, you know,

02:06:33.699 --> 02:06:36.399
that are that are, you know, at the moment, Loper,

02:06:36.640 --> 02:06:39.739
Brighton or West Virginia versus EPA are arguably

02:06:39.739 --> 02:06:44.000
some part of that story as well. I agree completely.

02:06:44.000 --> 02:06:45.960
And to answer the question you asked General

02:06:45.960 --> 02:06:48.539
Sauer earlier about why have we seen this proliferation

02:06:48.539 --> 02:06:51.560
of these universal injunctions, I think it's

02:06:51.560 --> 02:06:53.279
directly I would say first that the government,

02:06:53.279 --> 02:06:55.180
I think, pretty dramatically overstates them.

02:06:55.199 --> 02:06:58.279
It's double counting TROs and PIs and the same

02:06:58.279 --> 02:07:01.590
case. But If you look at the number of executive

02:07:01.590 --> 02:07:03.909
actions in the first six weeks of this administration,

02:07:04.109 --> 02:07:06.130
it's more than any other president issued in

02:07:06.130 --> 02:07:08.810
a year dating back to 1951 during the Korean

02:07:08.810 --> 02:07:11.390
War. But I don't want to sing. I mean, it's going

02:07:11.390 --> 02:07:13.770
back. It's bipartisan phenomenon, completely

02:07:13.770 --> 02:07:16.010
bipartisan, and completely, in my view, well

02:07:16.010 --> 02:07:17.689
-intentioned, because presidents want to get

02:07:17.689 --> 02:07:20.729
things done. And I get that. Yeah, I agree with

02:07:20.729 --> 02:07:23.329
that. I think it's directly correlated to the

02:07:23.329 --> 02:07:25.569
number of unilateral executive actions we've

02:07:25.569 --> 02:07:29.659
seen over the last few years. I just have one

02:07:29.659 --> 02:07:32.180
question. You said that you're in bucket one,

02:07:32.520 --> 02:07:34.060
so you felt like you were playing kind of the

02:07:34.060 --> 02:07:36.520
amici role. I understand why you might think

02:07:36.520 --> 02:07:38.479
you're in bucket one for the associational point.

02:07:38.579 --> 02:07:40.359
Do you think you're in bucket one for individual

02:07:40.359 --> 02:07:43.750
plaintiffs? So I don't know that I would extract

02:07:43.750 --> 02:07:46.170
them because the... Well, named plaintiffs. Let's

02:07:46.170 --> 02:07:47.989
imagine you had individual plaintiffs that are

02:07:47.989 --> 02:07:49.970
named members of the association. So I guess

02:07:49.970 --> 02:07:51.630
what I'm saying is let's take the association

02:07:51.630 --> 02:07:53.430
outside of it and let's just say that we're talking

02:07:53.430 --> 02:07:55.590
about individual plaintiffs. Would you put that

02:07:55.590 --> 02:07:57.289
in bucket one? So there I would go to the second

02:07:57.289 --> 02:08:00.149
injury I had identified earlier, which is if

02:08:00.149 --> 02:08:02.250
you're asking... Our individual plaintiffs have

02:08:02.250 --> 02:08:05.170
pseudo names right now. That would be contemplating

02:08:05.170 --> 02:08:08.229
a scenario where they would have to identify

02:08:08.229 --> 02:08:11.270
themselves to the federal government and say...

02:08:11.239 --> 02:08:15.439
I am the plaintiff in this case, at which point

02:08:15.439 --> 02:08:17.939
they are immediately vulnerable to deportation.

02:08:17.979 --> 02:08:19.680
Even again, if they're here lawfully, we've seen

02:08:19.680 --> 02:08:22.840
the government removing visa holders and asylum

02:08:22.840 --> 02:08:26.180
seekers. Mrs. Jackson? So I think I understand

02:08:26.180 --> 02:08:27.840
your argument. There's just one little piece

02:08:27.840 --> 02:08:30.720
of it that is confusing to me, and I hope you

02:08:30.720 --> 02:08:35.140
can clarify. So if we view the relief in this

02:08:35.140 --> 02:08:39.140
case and others like it to be a judgment ordering

02:08:39.140 --> 02:08:41.859
the defendant not to do something that the court

02:08:41.859 --> 02:08:44.500
has found to be likely, because we're in the

02:08:44.500 --> 02:08:48.560
interim stage, unlawful, are non -parties in

02:08:48.560 --> 02:08:53.020
that situation actually getting relief, or are

02:08:53.020 --> 02:08:56.760
they just incidental beneficiaries of an order

02:08:56.760 --> 02:09:00.479
requiring the government not to do this harmful

02:09:00.479 --> 02:09:03.619
thing? I thought it was the latter. And that

02:09:03.619 --> 02:09:05.800
just, you know, the government is told by the

02:09:05.800 --> 02:09:09.430
court, don't do X. And of course, anybody who

02:09:09.430 --> 02:09:11.770
would have been harmed by the government doing

02:09:11.770 --> 02:09:15.430
X is benefited by that. But they're not really,

02:09:15.430 --> 02:09:18.189
I thought, getting relief. But here's where I

02:09:18.189 --> 02:09:20.869
get confused, because I thought they're not getting

02:09:20.869 --> 02:09:25.430
relief because they can't come into court independently

02:09:25.430 --> 02:09:29.649
and seek a contempt ruling if the government

02:09:29.649 --> 02:09:31.890
continues to do the thing. They weren't parties.

02:09:31.949 --> 02:09:35.500
They don't have the judgment. That's what differentiates

02:09:35.500 --> 02:09:38.500
them from, say, the class action people or the

02:09:38.500 --> 02:09:40.680
plaintiff people. The reason why we have the

02:09:40.680 --> 02:09:43.020
rules for class action, et cetera, is because

02:09:43.020 --> 02:09:45.819
at the end of the day, the members of the class

02:09:45.819 --> 02:09:49.739
are getting a judgment that they can then use

02:09:49.739 --> 02:09:54.220
to enforce this obligation as against the government,

02:09:54.420 --> 02:09:57.300
whereas the people in the universal injunction

02:09:57.300 --> 02:10:01.479
world are just benefiting if the government actually

02:10:01.949 --> 02:10:05.050
you know, follows the order. Yeah, I think that

02:10:05.050 --> 02:10:08.310
what you're articulating is consistent with a

02:10:08.310 --> 02:10:10.989
long history of precedent and practice. I mean,

02:10:10.989 --> 02:10:13.510
it's the classic REM case, right? Making a declaration

02:10:13.510 --> 02:10:16.810
about property. I think Professor Fander's amicus

02:10:16.810 --> 02:10:18.670
brief is really helpful on that. He talks about

02:10:18.670 --> 02:10:21.710
the patent laws. And I think you can see that

02:10:21.710 --> 02:10:24.510
same instinct in the court's cases that Justice

02:10:24.510 --> 02:10:26.590
Sotomayor was talking about earlier, right? The

02:10:26.590 --> 02:10:29.529
railroad rates, Barnett, Pierce v. Society of

02:10:29.529 --> 02:10:30.890
Sisters. And I guess my point is that's why we

02:10:30.890 --> 02:10:34.619
don't need because we're actually doing conceptually

02:10:34.619 --> 02:10:37.060
a different thing. We're not trying to give all

02:10:37.060 --> 02:10:39.199
these people, everyone in the world, some sort

02:10:39.199 --> 02:10:41.359
of enforceable right as against the government.

02:10:41.720 --> 02:10:44.800
We are simply just doing what courts do, I thought,

02:10:45.000 --> 02:10:47.180
which is telling the defendant over whom they

02:10:47.180 --> 02:10:48.819
have personal jurisdiction that they have to

02:10:48.819 --> 02:10:51.100
stop doing something unlawful. And of course,

02:10:51.300 --> 02:10:53.199
that benefits people. But the thing that confuses

02:10:53.199 --> 02:10:56.380
me about your argument is that you alluded at

02:10:56.380 --> 02:11:01.659
the beginning to Rule 71 and suggested that the

02:11:01.659 --> 02:11:06.319
non -parties could somehow enforce. this universal

02:11:06.319 --> 02:11:08.140
injunction. I didn't understand. I think rule

02:11:08.140 --> 02:11:11.140
71 contemplates that. It would be very onerous.

02:11:11.319 --> 02:11:13.279
I mean, I think when General Sauer, he was kind

02:11:13.279 --> 02:11:15.420
of contemplating the idea that, you know, tens

02:11:15.420 --> 02:11:17.300
of thousands of people were going to have to

02:11:17.300 --> 02:11:19.020
come to court individually. Right. But I think

02:11:19.020 --> 02:11:21.020
if you're right about that, it undermines the

02:11:21.020 --> 02:11:23.619
point that I'm making because it puts people

02:11:23.619 --> 02:11:27.319
in the same place as the class action folks and

02:11:27.319 --> 02:11:31.220
the parties in a way that that I think raises

02:11:31.220 --> 02:11:33.100
legitimate concerns that some of my colleagues

02:11:33.100 --> 02:11:36.039
have. put forward with respect to universal injunctions.

02:11:36.220 --> 02:11:38.720
So the thing that distinguishes them is that

02:11:38.720 --> 02:11:42.460
universal injunctions are not benefiting or giving

02:11:42.460 --> 02:11:46.279
relief to non -parties in any meaningful sense

02:11:46.279 --> 02:11:49.000
is my theory. I think both have always been true,

02:11:49.039 --> 02:11:50.840
and maybe they're in tension each other, but

02:11:50.840 --> 02:11:55.340
Rule 71 originated in Equity Rule X, which was

02:11:55.340 --> 02:11:58.720
enacted or was put in place in 1842, which had

02:11:58.720 --> 02:12:02.399
this same idea of quite apart from representative

02:12:02.399 --> 02:12:07.500
suits, non -parties enforcing orders that provided

02:12:07.500 --> 02:12:09.659
them with relief. Although maybe this, as I'm

02:12:09.659 --> 02:12:12.420
talking, I think maybe I'm talking about under

02:12:12.420 --> 02:12:14.699
Rule 71, orders that provide relief. But let

02:12:14.699 --> 02:12:16.079
me just... You're talking about injunctions.

02:12:16.460 --> 02:12:19.960
What I'm asking you is, in this very case, if

02:12:19.960 --> 02:12:23.619
we have a series of plaintiffs that have actually

02:12:23.619 --> 02:12:26.220
named people, and they get an injunction, as

02:12:26.220 --> 02:12:30.239
the government says, against... Sorry, if they

02:12:30.239 --> 02:12:32.279
get a universal injunction, what they call a

02:12:32.279 --> 02:12:35.220
universal injunction, the government cannot enforce

02:12:35.220 --> 02:12:39.319
this executive order. Can someone who is not

02:12:39.319 --> 02:12:43.359
a non -plaintiff come into court to enforce that

02:12:43.359 --> 02:12:47.060
if the government... violates it. So I'm hesitant

02:12:47.060 --> 02:12:50.600
to say no, both because Rule 71 exists and those

02:12:50.600 --> 02:12:52.880
aren't my clients, are my plaintiffs, and we

02:12:52.880 --> 02:12:55.380
needed this universal injunction. Yes, I understand.

02:12:55.800 --> 02:12:57.640
I'm just trying to figure this out. But I think

02:12:57.640 --> 02:13:00.899
both what you said is true. If we look at cases

02:13:00.899 --> 02:13:02.939
like Barnett and Pierce and we go all the way

02:13:02.939 --> 02:13:06.100
back, I think Justice Story's dissent that he

02:13:06.100 --> 02:13:08.439
signed onto in Cherokee Nation v. Georgia is

02:13:08.439 --> 02:13:11.359
terrific on this point. He was the preeminent

02:13:11.359 --> 02:13:13.779
scholar on equitable remedies, and he certainly

02:13:13.779 --> 02:13:16.180
thought the way that you're articulating, we

02:13:16.180 --> 02:13:17.880
are going to make a declaration about whether

02:13:17.880 --> 02:13:22.060
Georgia can enforce its laws on Cherokee Nation

02:13:22.060 --> 02:13:24.079
property. And that is just a declaration of the

02:13:24.079 --> 02:13:27.380
law that will have an impact on everyone. But

02:13:27.380 --> 02:13:30.000
I'm hesitant to say that Rule 71 doesn't have

02:13:30.000 --> 02:13:32.300
any application. Thank you. Thank you, counsel.

02:13:32.899 --> 02:13:36.279
Rebuttal, General Sauer. Thank you, Mr. Chief

02:13:36.279 --> 02:13:39.640
Justice. The original meaning of the Citizenship

02:13:39.640 --> 02:13:43.029
Clause extended citizenship to the children of

02:13:43.029 --> 02:13:46.250
former slaves, not to people who are unlawfully

02:13:46.250 --> 02:13:48.449
or temporarily present in the United States.

02:13:48.789 --> 02:13:50.550
The merits arguments we are presenting to the

02:13:50.550 --> 02:13:53.069
lower courts are compelling. We cite, for example,

02:13:53.109 --> 02:13:56.109
a host of 19th century authorities that point

02:13:56.109 --> 02:14:00.090
out that domicile was the touchstone of non -citizens

02:14:00.090 --> 02:14:05.210
having their offspring treated as citizens in

02:14:05.210 --> 02:14:07.850
that context. That is consistent with Wong Kim

02:14:07.850 --> 02:14:09.649
Ark as well as with the slaughterhouse cases

02:14:09.649 --> 02:14:12.010
in Elk against Wilkins and the suggestion that

02:14:12.010 --> 02:14:14.229
our position on the merits is weak is profoundly

02:14:14.229 --> 02:14:17.350
mistaken. And that kind of snap judgment on the

02:14:17.350 --> 02:14:19.649
merits that was presented in the lower courts

02:14:19.649 --> 02:14:22.210
is exactly the problem with the issue of racing

02:14:22.210 --> 02:14:24.779
to issue these nationwide injunctions. The Chief

02:14:24.779 --> 02:14:26.659
Justice correctly pointed out that this court,

02:14:26.659 --> 02:14:28.560
if it wishes to address the merits expeditiously,

02:14:28.640 --> 02:14:30.699
has many tools to do so. Cert before judgment

02:14:30.699 --> 02:14:33.000
is one possible tool. There are also others.

02:14:33.619 --> 02:14:36.460
But this court should also address the scope

02:14:36.460 --> 02:14:38.899
of remedy, the remedial question that's presented

02:14:38.899 --> 02:14:41.420
in the application. That is an extremely urgent

02:14:41.420 --> 02:14:43.539
question. And one of the reasons it's an extremely

02:14:43.539 --> 02:14:46.760
urgent question is the limiting principles that

02:14:46.760 --> 02:14:48.560
my friends on the other side have been offering

02:14:48.560 --> 02:14:51.319
have all proven to be completely ineffective

02:14:51.319 --> 02:14:55.430
to slowing the essentially slow flood or cascade

02:14:55.430 --> 02:14:57.590
of universal injunctions that we see in these

02:14:57.590 --> 02:15:00.489
cases. The states here have a unique issue that

02:15:00.489 --> 02:15:02.229
hasn't come up yet, but for the reasons we state

02:15:02.229 --> 02:15:04.770
in our application, they lack third party standing

02:15:04.770 --> 02:15:07.829
very clearly under cases like Murthy and Heyland

02:15:07.829 --> 02:15:12.710
and Katzenbach and Kowalski. So no injunction

02:15:12.710 --> 02:15:14.329
really should run to the states in this particular

02:15:14.329 --> 02:15:18.010
case anyway. And most fundamentally, the vision

02:15:18.350 --> 02:15:21.010
of the district courts that's reflected in the

02:15:21.010 --> 02:15:23.069
issuance of these nationwide injunctions is a

02:15:23.069 --> 02:15:26.369
vision of them as a roving commission to correct

02:15:26.369 --> 02:15:29.510
every legal wrong that they can consider and

02:15:29.510 --> 02:15:31.970
to exercise general legal oversight over the

02:15:31.970 --> 02:15:34.310
executive branch, which is what this court rejected

02:15:34.310 --> 02:15:36.789
in TransUnion. And for those reasons, we ask

02:15:36.789 --> 02:15:38.770
the court to grant the applications.