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`Official Subject to Final Review
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`IN THE SUPREME COURT OF THE UNITED STATES
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`UNITED STATES, ET AL.,
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`Petitioners
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`v.
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`TEXAS, ET AL.,
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`Respondents.
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`Washington, D.C.
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`Monday, April 18, 2016
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`The aboveentitled matter came on for oral
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`argument before the Supreme Court of the United States
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`at 10:04 a.m.
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`APPEARANCES:
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`GEN. DONALD B. VERRILLI, JR., ESQ., Solicitor General,
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`Petitioners.
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`THOMAS A. SAENZ, ESQ., Los Angeles, Cal.; on behalf of
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`IntervenorRespondents in support of Petitioners.
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`SCOTT A. KELLER, ESQ., Solicitor General of Texas,
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`Austin, Tex.; on behalf of Respondents.
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`ERIN E. MURPHY, ESQ., Washington, D.C.; for United
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`States House of Representatives, as amicus curiae,
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`supporting Respondents.
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`C O N T E N T S
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`ORAL ARGUMENT OF
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`On behalf of the Petitioners
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`in support of the Petitioners
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`as amicus curiae, supporting the Respondents
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`REBUTTAL ARGUMENT OF
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`On behalf of the Petitioners
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`P R O C E E D I N G S
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`(10:04 a.m.)
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`CHIEF JUSTICE ROBERTS: We'll hear argument
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`first this morning in Case No. 15674, United States v.
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`Texas, et al.
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`General Verrilli.
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`ORAL ARGUMENT OF GENERAL DONALD B. VERRILLI, JR.
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`ON BEHALF OF THE PETITIONERS
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`GENERAL VERRILLI: Mr. Chief Justice, and
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`may it please the Court:
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`The Secretary of Homeland Security has
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`decided to defer removal of the class of aliens who are
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`parents of U.S. citizens and LPRs, have lived in the
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`country continuously since 2010, and not committed
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`crimes. That policy is lawful and Respondents concede
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`it is lawful. It is fully justified by the fundamental
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`reality that DHS has resources only to remove a fraction
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`of the unlawful aliens, the aliens presently present
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`unlawfully in the country now.
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`This class of aliens is the lowest priority.
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`And there is a pressing humanitarian concern in avoiding
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`the breakup of families that contain U.S. citizen
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`children.
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`The principal
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`JUSTICE GINSBURG: Couldn't the government
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`simply, as was suggested in one of the briefs, have
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`given these children parents of citizens or LPRs,
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`given them identity cards that say "low priority," and
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`would there be any difference between that and what this
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`DAPA Guidance does?
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`GENERAL VERRILLI: That is that's a very
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`important point, Justice Ginsburg. That that is
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`precisely what deferred action is. Deferred action is a
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`decision that you were that you are a low priority
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`for removal, and it's an official notification to you of
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`that decision. And Respondents have conceded that we
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`have the lawful authority to do both things: To make
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`that judgment and to give an identification card.
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`CHIEF JUSTICE ROBERTS: General, maybe it
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`would make logical progression if you began with your
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`standing argument first.
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`GENERAL VERRILLI: Yes. And I think this
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`does lead right into the standing argument.
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`I think the principal bone of contention
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`between the the Respondents and the United States is
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`over whether the Secretary can also authorize these
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`people to work and accrue ancillary benefits, and
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`Respondents lack standing to challenge that for three
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`fundamental reasons.
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`First, there's the injury is not
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`redressable, because even if they achieve the even if
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`they achieve the injunction that they want, barring us
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`from providing work authorization ancillary benefits, we
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`can, for the reason Justice Ginsburg identified, still
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`provide them with deferred action. And under Texas law,
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`they still qualify for a license under deferred action,
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`so there's no redressability.
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`Second, they have not alleged a concrete
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`particularized injury because the costs that they claim
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`now to be an injury are actually the expected and
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`desired result of the policy that exists in current
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`Texas law
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`CHIEF JUSTICE ROBERTS: Well, but if if
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`they change that policy to avoid the injury that they
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`allege, in other words, if they did not confer offer
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`driver's licenses to those who are lawfully present
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`because of your policy, avoided that injury, you would
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`sue them, wouldn't you?
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`GENERAL VERRILLI: I'm not sure at all that
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`we would sue them. It would depend on what they did.
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`But the fundamental
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`CHIEF JUSTICE ROBERTS: No, no. What they
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`did I'm hypothesizing is that they offered
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`driver's license to everyone, but not those who were
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`here under your under DAPA, under your proposal.
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`GENERAL VERRILLI: Chief Justice, the key
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`point, it seems to me. They have not made that change
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`in their law. What they
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`CHIEF JUSTICE ROBERTS: No, because they
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`have what seems to me a perfectly legitimate policy, is
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`they want driver's license to be available to people who
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`are lawfully present here. And if you, the Federal
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`government, say, well, these people are lawfully
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`present, that means they have to give a driver's license
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`to however many of them, more than half a million
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`people, who would be potentially eligible for them.
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`And as I understand from your brief, your
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`answer is, well, just don't give them driver's licenses.
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`GENERAL VERRILLI: The current policy is not
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`as Your Honor describes it. The current policy
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`reflected in the existing law and regulation is quite
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`different, and that's the point. They will give a
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`driver's license now to any category of person who has a
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`document from the Federal government, not only saying
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`you're lawfully present, but that you're officially
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`we're officially tolerating your presence.
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`There are vast numbers of people under
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`existing Texas law that are eligible for a license even
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`though they are not lawfully present. For example, the
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`people who receive deferred action for based on
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`childhood arrival. But beyond that, for example, people
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`who are applicants for adjustment of status of whom
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`there are hundreds of thousands
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`JUSTICE KENNEDY: But suppose suppose the
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`State of Texas said this policy that the government has
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`announced is invalid; it violates separation of powers;
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`therefore, we will not issue licenses to this class of
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`persons?
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`GENERAL VERRILLI: Well, I think the
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`JUSTICE KENNEDY: It seems to me that the
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`Federal government could say this is not for you to say.
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`GENERAL VERRILLI: That's correct. We could
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`and we probably would. But the point is, they haven't
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`done it. And so in order to establish
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`JUSTICE ALITO: But that's the whole point
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`of this suit, isn't it? They don't want to give
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`driver's licenses to the beneficiaries of DAPA.
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`GENERAL VERRILLI: Well, I think
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`JUSTICE ALITO: And unless you can tell us
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`that there is some way that they could achieve that,
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`then I don't see how there is not injury in fact.
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`GENERAL VERRILLI: I disagree with that,
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`Justice Alito, but
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`JUSTICE ALITO: You disagree with which part
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`of it?
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`GENERAL VERRILLI: I think all of it.
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`(Laughter.)
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`GENERAL VERRILLI: Texas law and policy now
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`does not express that judgment. You look to their law
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`to tell you what their policy is now, and what the
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`policy is now
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`JUSTICE SOTOMAYOR: General, when you say
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`that, I'm looking at their law. And their law says that
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`they will give licenses to persons granted deferred
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`action on the basis of immigration documentation
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`received with an alien number and from the government.
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`So that's what you're saying they've
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`already made the determination that they'll give
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`licenses to people with deferred action.
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`GENERAL VERRILLI: Yes, Justice Sotomayor.
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`That's one thing I'm saying that's quite important, but
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`it even goes beyond that. They're
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`CHIEF JUSTICE ROBERTS: Oh, but they want to
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`do that. Is there anything wrong with their policy
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`saying if you're lawfully present, you ought to have a
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`driver's license?
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`GENERAL VERRILLI: No, but I guess, Mr.
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`Chief Justice, what I'm trying to get across is that the
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`policy, as it's written down and which, it seems to me,
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`has to be taken as the authoritative statement of the
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`Texas policy, is not just that they want to give
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`licenses to people who are lawfully present. They give
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`licenses to all to numerous categories of people who,
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`under the substantive theory of law that they are
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`advancing now, would not be eligible
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`CHIEF JUSTICE ROBERTS: Okay. So what your
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`argument is then, they should take these people out of
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`eligibility, too.
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`GENERAL VERRILLI: No. My argument
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`CHIEF JUSTICE ROBERTS: Their argument is,
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`we're going to give driver's license to people subject
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`to deferred action. And you're saying, okay, that's
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`your injury? You can take that away.
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`And I just think that's a real catch22.
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`If if you're injured, you have standing. But you're
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`not injured because you can change your policy and not
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`give driver's license to these people.
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`And I suggest that I think you would
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`want you would sue them instantly if they said,
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`people here lawfully present under the Federal authority
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`are being discriminated against. It's a preemption
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`argument the government makes on a regular basis. And
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`if you don't, the intervenors will sue them. They've
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`already said that they think that's illegal.
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`GENERAL VERRILLI: The fundamental problem,
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`Mr. Chief Justice, is with that theory is that it
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`requires this Court essentially to issue an advisory
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`opinion about whether this new law of theirs would, in
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`fact, be preempted. After all, we might think it's
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`preempted, but it's up to the judiciary ultimately to
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`decide whether it's preempted. So in order for that
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`injury to occur, they the law the judiciary would
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`have to decide it's preempted. And the normal way
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`CHIEF JUSTICE ROBERTS: So you're saying
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`they would not have injury because they can do this, and
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`you might lose the suit.
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`GENERAL VERRILLI: That's correct. It's
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`it's hypothetical at this point.
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`JUSTICE KAGAN: I mean, General, I don't
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`understand why you wouldn't lose the suit. I mean,
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`Section 1621 says, "States aren't required to give State
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`benefits to nonqualified aliens, including deferred
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`action recipients."
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`I guess I don't really understand what the
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`basis of a preemption suit would be given that section.
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`GENERAL VERRILLI: Justice Kagan, I'd like
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`to be able to agree with you about that. We don't think
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`1621 actually applies to driver's licenses. And it
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`depending on what they did, we might or might not think
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`the law is preempted. But until they actually take that
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`step, which would be a significant change from Texas law
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`as it now exists, they really are asking you for an
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`advisory opinion about whether the thing they want to do
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`would be preempted. I mean, if you think about it
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`JUSTICE ALITO: You're saying they have
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`options. And one of the options, and I assume the one
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`that they would like to pursue, is to deny driver's
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`licenses to the beneficiaries of DAPA. And if you're
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`going to make the argument that they lack standing
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`because they have a viable legal option, I think you
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`have to tell us whether, in the view of the United
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`States, it would be lawful for them to do that.
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`GENERAL VERRILLI: So, it would
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`JUSTICE ALITO: I think the Chief Justice
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`asked you that question before, and you didn't get a
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`chance to answer it. Maybe you could answer it now.
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`GENERAL VERRILLI: It would depend on what
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`they did and why they did it. But it does seem to me,
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`it's fundamental that they have to do it. I mean, think
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`about it this way
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`JUSTICE ALITO: I mean, if you're saying
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`to you're saying to us they lack standing because
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`they have an option, but we're not going to tell you now
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`whether it's a lawful option. You'll have to wait down
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`the wait to some point in the future.
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`GENERAL VERRILLI: We might depending on
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`what they, we might well think it's unlawful. For
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`example, if they did try to enact this new law that
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`said, we're going to give licenses to everybody we're
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`giving them to now
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`JUSTICE KENNEDY: But there's Article III
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`standing for declaratory relief all the time. You say
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`this course of action is being compelled on me. I want
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`a declaratory suit that says that it's void.
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`GENERAL VERRILLI: And I think that gets to
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`the point that gets to the point, Justice Kennedy.
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`If right now, tomorrow, today instead of suing us they
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`had come into court and said we want a declaratory
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`judgment, we are thinking about in light of this
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`change in Federal law, we're thinking about changing our
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`State law to a different law, and we want a declaratory
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`judgment that if we do so, it won't be preempted, I
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`think you would throw that case out in a nanosecond as
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`hypothetical, and that is this case.
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`That is precisely the situation we are in
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`right now. You have to render a judgment on that issue
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`to decide whether they have injury in fact with respect
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`to
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`CHIEF JUSTICE ROBERTS: Do we really, or is
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`it enough is it enough that they would have to be put
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`through litigation in order to escape the policy? You
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`say, well, they can just not do this. And I think
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`it's you won't dispute, I think, that they will be
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`put through litigation if they do take that out.
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`GENERAL VERRILLI: I don't think that could
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`be enough, Mr. Chief Justice, because you could have
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`said that in Pennsylvania v. New Jersey or in any number
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`of cases, that they may have to incur some cost with
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`respect to
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`CHIEF JUSTICE ROBERTS: Well, how is that
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`different? If I if I own, say, a parcel of land and
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`it's subject to some government regulatory program that
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`I think is a taking under under existing law, why
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`isn't the answer, well, you should go buy some other
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`land that's not subject to it. You can avoid the injury
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`by your own action.
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`And it seems to me that's what you're saying
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`here. Texas says, our injury is we have to give
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`driver's license here, and that costs us money. And
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`your answer is, well, maybe you don't have to give
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`driver's license. Go change the policy.
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`GENERAL VERRILLI: It's a difference
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`between in your in your proposed hypothetical,
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`Mr. Chief Justice, that's a direct action against the
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`land owner by the government. In this case, we're not
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`acting directly against Texas. We're regulating
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`individual aliens, and there's an indirect and
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`incidental effect on Texas. And that gets to, it seems
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`to me, the deeper and broader point of importance here,
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`which is that if you're going to recognize and it
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`would be the first time, I think, in in our
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`history you're going to recognize that kind of
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`incidental/indirect effect as a basis for allowing one
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`government to sue another another, then there's
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`really no limit on the kinds of
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`JUSTICE SOTOMAYOR: Mr. General, in the
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`normal course of things, let's assume that Texas decides
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`tomorrow to change its law, and it says, now, contrary
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`to what the its law says right at this moment that
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`it's not going to give licenses to immigrants with
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`deferred action. Presumably, the immigrant who wants
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`that license would sue the State, correct?
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`GENERAL VERRILLI: Precisely.
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`JUSTICE SOTOMAYOR: And make either an equal
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`protection or any number of preemption argument,
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`whatever. The State could then defend that action,
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`correct?
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`GENERAL VERRILLI: Of course.
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`JUSTICE SOTOMAYOR: And it could raise
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`legitimately full standing to raise any defense in law,
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`correct?
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`GENERAL VERRILLI: Yes.
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`JUSTICE SOTOMAYOR: It could then say that
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`DAPA is illegal
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`GENERAL VERRILLI: Yes.
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`JUSTICE SOTOMAYOR: correct?
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`So there is a cause. It is there is a
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`way for it to defend its actions and a way that it will
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`defends its actions.
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`GENERAL VERRILLI: And and I think that
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`points out I mean, it really goes to what the Court
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`said in Raines v. Byrd. You know, it may seem like this
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`is an important issue that is is teed up in front of
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`you, and it is an important issue. But, you know, the
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`point is that the legitimacy of the citing issues of
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`this importance come from deciding the context of a
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`concrete case or controversy, and you don't have that
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`here yet
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`JUSTICE BREYER: Your argument is do I
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`have this right? Imagine a Federal statute. Every
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`State must give a driver's license to a member of the
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`Federal armed forces. That's a statute. Second
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`statute: We are transferring one quarter of a million
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`soldiers to Rhode Island.
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`Now, Rhode Island thinks the first statute
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`is unconstitutional, and it also thinks that the second
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`statute, for some technical reason, is unlawful. We're
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`only talking about standing. In that circumstance, does
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`Rhode Island have standing?
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`See, totally analogous. I'm trying to say
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`there is a law, which you say is vague. I'm imagining
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`it's there. It says, Texas, you have to give a driver's
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`license to certain people. And then there's a second
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`law which says, we are sending you a million of those
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`people. Now, all I want to know is: Can Texas, under
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`those circumstances your argument is we don't know if
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`that's true here or not but under the ones I
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`hypothesize, is there standing, in your opinion?
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`Texas would say the first law is wrong,
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`unconstitutional for some reason. The second is wrong
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`because it technically failed for some reason. Do they
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`have standing to say that?
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`GENERAL VERRILLI: The I have to I
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`have to caveat my answer, because I think if the second
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`law is an immigration law that says we're going to make
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`an immigration policy judgment that's going to result in
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`additional people being in the State, then I don't think
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`they would have standing.
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`But the fundamental point, I think, of
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`importance here is that the premise that the first of
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`the first law that they are required to give driver's
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`licences is not present here.
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`JUSTICE BREYER: I have no doubt it isn't
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`present here. I asked the question to clarify what it
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`is I'm supposed to say if I agree with you.
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`GENERAL VERRILLI: And I tried to answer
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`that and tell you why I think the premise is different.
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`I did try to answer you and then tell you why I think
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`the premise is different.
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`But I but I do think and I think this
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`is you know, there's a sort of a
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`shoeontheotherfoot issue here. If you really think
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`that a State can sue the Federal government based on
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`these kinds of indirect and incidental effects, then it
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`seems to me you'd have to also say that if a State
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`decided, for example, that it wasn't going to enforce
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`its minimum wage law anymore, and as a result, the
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`Federal government had to increase its enforcement costs
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`for Federal minimum wage laws in that State, that the
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`Federal government would then have standing to go into
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`State court and say that the State is violating State
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`law? I don't think anybody would think that's a valid
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`claim. But that's just the flip side of this kind of a
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`claim.
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`CHIEF JUSTICE ROBERTS: Is the injury here
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`any more indirect and speculative than the injury in
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`Massachusetts against EPA?
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`GENERAL VERRILLI: Yes. I yes. I think
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`definitely, Mr. Chief Justice. I mean, that was
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`obviously a closelydivided Court in that case, but with
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`respect to the majority opinion, it seems to me there
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`were there are two fundamental differences, at least
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`two fundamental differences.
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`One is what the Court said is that under
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`the under the Clean Air Act, that Congress had
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`charged the EPA with protecting States and others from
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`the effects of air pollution and then given a specific
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`cause of action to the people whose protection EPA was
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`charged with to sue if EPA wasn't doing its job. And
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`that and I think this is at page 520 of the
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`opinion the Court said was indispensable, was
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`critical to the finding that States got special
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`solicitude and were allowed to sue in a manner where,
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`under Article III, they normally wouldn't be able to
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`sue.
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`In addition and in addition, I do think
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`that you do have a quite different situation in that
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`there was no way for Massachusetts to avoid the effects
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`about which it was complaining, and there is a way here.
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`So so there is a difference.
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`CHIEF JUSTICE ROBERTS: Maybe I could ask
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`you to switch.
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`GENERAL VERRILLI: I was just going to ask
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`whether I could. Thank you.
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`So I think it's important, again, to frame
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`where we are on the merits here, that the their
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`Texas agrees that the that DHS has the authority to
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`defer removal of this class of alien parents of U.S.
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`citizens and LPRs. They agree that that judgme