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`Official ­ Subject to Final Review
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`       
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`IN THE SUPREME COURT OF THE UNITED STATES







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`­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ x
`                                 
`
`UNITED STATES, ET AL.,
`            



`
`:
`
`            
`
`Petitioners
`: No. 15­674

`              
`
`       
`
`v.
`                         
`
`:
`
`TEXAS, ET AL.,
`                    


`
`:
`
`            
`
`Respondents.
`          
`
`:
`
`­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ x
`                                 
`
`                       
`
`Washington, D.C.

`
`                       
`
`Monday, April 18, 2016



`
`              
`
`The above­entitled matter came on for oral






`
`argument before the Supreme Court of the United States








`
`at 10:04 a.m.


`
`APPEARANCES:
`
`GEN. DONALD B. VERRILLI, JR., ESQ., Solicitor General,







`
`   
`
`Department of Justice, Washington, D.C.; on behalf of







`
`   
`
`Petitioners.
`
`THOMAS A. SAENZ, ESQ., Los Angeles, Cal.; on behalf of









`
`   
`
`Intervenor­Respondents in support of Petitioners.




`
`SCOTT A. KELLER, ESQ., Solicitor General of Texas,







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`   
`
`Austin, Tex.; on behalf of Respondents.





`
`ERIN E. MURPHY, ESQ., Washington, D.C.; for United







`
`   
`
`States House of Representatives, as amicus curiae,






`
`   
`
`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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`PAGE
`
`GEN. DONALD B. VERRILLI, JR., ESQ.





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`   
`
`On behalf of the Petitioners
`                     




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`3
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`ORAL ARGUMENT OF


`
`THOMAS A. SAENZ, ESQ.



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`   
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`On behalf of Intervenor­Respondents



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`   
`
`in support of the Petitioners
`35
`                    




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`ORAL ARGUMENT OF


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`SCOTT A. KELLER, ESQ.



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`On behalf of the Respondents
`45
`                     




`   
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`ORAL ARGUMENT OF


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`ERIN E. MURPHY, ESQ.,



`
`For United States House of Representatives,





`   
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`as amicus curiae, supporting the Respondents
`72
`     





`   
`
`REBUTTAL ARGUMENT OF


`
`GEN. DONALD B. VERRILLI, JR., ESQ.





`
`On behalf of the Petitioners
`85
`                     




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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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`            
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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.


`
`            
`
`General Verrilli.

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`    
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`ORAL ARGUMENT OF GENERAL DONALD B. VERRILLI, JR.







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`              
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`ON BEHALF OF THE PETITIONERS




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`            
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`GENERAL VERRILLI: Mr. Chief Justice, and



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`may it please the Court:




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`            
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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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`            
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`The principal ­­


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`            
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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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`word in your question is "hypothesize." And that's the


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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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`            
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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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`point ­­

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`JUSTICE KENNEDY: It seems to me that the





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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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`            
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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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`            
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`GENERAL VERRILLI: I think all of it.



`    

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`            
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`(Laughter.)
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`            
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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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`            
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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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`            
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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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`            
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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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`            
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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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`            
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`JUSTICE ALITO: You're saying they have



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`inflicted this injury on themselves because 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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`            
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`GENERAL VERRILLI: So, it would ­­



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`            
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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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`            
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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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`            
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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

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