[00:00:00] Speaker 03: Case number 14-5325. [00:00:03] Speaker 03: Joseph M. Arpaio, Appellant versus Barack Obama at L. Mr. Klayman for the Appellant, Ms. [00:00:08] Speaker 03: Brickman for the Appellees. [00:00:40] Speaker 01: Excuse me. [00:00:43] Speaker 01: I have a little cold. [00:00:45] Speaker 01: Good morning. [00:00:45] Speaker 01: May it please the court. [00:00:47] Speaker 01: My name's Larry Klayman. [00:00:48] Speaker 01: I'm the attorney for the appellant here, Sheriff Joseph Arpaio of Maricopa County. [00:00:55] Speaker 01: Maricopa County, by the way, is the biggest county in the United States. [00:00:58] Speaker 01: It accounts for 60% of the population of Arizona. [00:01:03] Speaker 01: This is case not about immigration per se. [00:01:06] Speaker 01: I myself am pro-immigration. [00:01:09] Speaker 01: But what I took in interest in this case is the fact that this case comes right up against the Constitution and the Administrative Procedures Act. [00:01:18] Speaker 01: Whether you're conservative or liberal, Democrat or Republican, this is a case that concerns us all because it's the way our laws are enforced. [00:01:28] Speaker 01: While today we have a Democrat president, in a year or so we may have a Republican one. [00:01:33] Speaker 01: And we have to respect that rule of law. [00:01:36] Speaker 01: What would it be like if the president refused to enforce the tax laws? [00:01:40] Speaker 01: or the securities laws, or the environmental laws, or for that matter, enforce the mandate, the tax on Obamacare. [00:01:47] Speaker 02: Mr. Clement, the issue before us first is your client standing to raise the challenges that he's raising. [00:01:55] Speaker 02: And it would be helpful to me if you could walk us through the theory of how the president's program is causing harm to your client and precisely how you think that the relief that he seeks would redress that harm. [00:02:11] Speaker 01: Thank you for asking that question, Your Honor. [00:02:13] Speaker 01: What's important to remember, first of all, is there are two types of analysis in standing. [00:02:18] Speaker 01: There's the facial attack and then there's the factual attack. [00:02:22] Speaker 01: This is a 12b1 motion to dismiss, which deals with the allegations of the complaint. [00:02:28] Speaker 01: The allegations of the complaint allege that my client, the sheriff's office in Maricopa County, expended in excess of nine million dollars from February 2014 to December 2014. [00:02:39] Speaker 01: That's empirical data. [00:02:42] Speaker 01: It's in stone. [00:02:43] Speaker 01: The reason that that money was expended because of the DACA, the Childhood Deferral Program, was because [00:02:53] Speaker 01: repeat offenders of criminals were having to go back into the jail. [00:02:57] Speaker 01: They weren't deported. [00:02:58] Speaker 01: The law was not being enforced. [00:03:00] Speaker 01: So we have concrete, particularized injury to the sheriff's office here. [00:03:05] Speaker 02: The government has made very clear that its policy is actually to prioritize the deportation of criminal aliens, and in order to do that more effectively, to focus its resources on that. [00:03:18] Speaker 02: So I wasn't entirely clear [00:03:20] Speaker 02: Why those were the cases that you pointed out, the child molester or the felon? [00:03:25] Speaker 02: Because as I understand it, there's no suspension of deportation with respect to those people. [00:03:35] Speaker 01: In fact, if there's anything that's speculative here, Your Honor, it's what the government is saying. [00:03:39] Speaker 01: We're the ones who submitted affidavits showing the harm to Sheriff Arpaio. [00:03:44] Speaker 01: There's no contraverted evidence. [00:03:46] Speaker 01: In addition, the government says they don't have enough resources [00:03:49] Speaker 02: No, I asked just a much more targeted question. [00:03:52] Speaker 02: I understand that the sheriff is drawing a causal connection between the DACA program and an increase in his jurisdiction of criminals that he has to incarcerate and deal with. [00:04:09] Speaker 02: But there's just a mismatch between that contention and the scope of the policy. [00:04:15] Speaker 02: that has been adopted as an issue in this case. [00:04:18] Speaker 02: Because those are the people that are, I think all those people are fully and arguably more subject to deportation under this policy. [00:04:27] Speaker 02: So that's what I'm looking for. [00:04:29] Speaker 02: A little more granular than there is in your brief about the causal theory. [00:04:34] Speaker 01: Well, let me lay the foundation to answer that question. [00:04:37] Speaker 01: First of all, this is not a policy. [00:04:39] Speaker 01: That's how Judge Burl Howell described it in the lower court. [00:04:43] Speaker 01: This is whether the law is being enforced or not. [00:04:47] Speaker 01: And consequently, characterizing it as a policy is inaccurate. [00:04:50] Speaker 01: In fact, at a minimum, the Administrative Procedures Act should be applied here, because this is substantive rulemaking. [00:04:58] Speaker 01: It's dealing with the Constitution. [00:05:01] Speaker 01: It's violating the statute. [00:05:03] Speaker 01: It's arbitrary and capricious. [00:05:04] Speaker 01: It's not a policy number one. [00:05:06] Speaker 01: So therefore, the Secretary of Homeland Security does not get to decide what laws to enforce or not. [00:05:13] Speaker 01: That's for Congress to legislate, as Judge Hayden ruled in Texas. [00:05:16] Speaker 00: Can I ask you this question? [00:05:17] Speaker 00: Your argument is a challenge to particular executive actions, right? [00:05:24] Speaker 00: You're not saying that even independent of the executive actions, the perceived failure to enforce the immigration laws is causing harm. [00:05:34] Speaker 00: I mean, somebody could make that argument, but you're challenging particular executive actions, an executive action undertaken in 2012 and subsequent executive actions undertaken in 2014. [00:05:43] Speaker 00: Am I understanding your challenge correctly? [00:05:45] Speaker 01: I'm saying two things, Your Honor. [00:05:45] Speaker 01: I'm saying, number one, [00:05:47] Speaker 01: what is done usurps the power of Congress by the president's own admission he's not an emperor, whether you're Democrat or Republican, presidents are not emperors, number one. [00:05:56] Speaker 01: You don't get to supersede what Congress has legislated, that's one. [00:06:00] Speaker 01: Number two, if you want to take the position, which is incorrect, [00:06:05] Speaker 01: that this is a regulation, which it's not. [00:06:08] Speaker 01: You still have to follow the Administrative Procedures Act with notice and comment. [00:06:13] Speaker 01: But number three, there is real harm here. [00:06:15] Speaker 01: The government didn't refute it. [00:06:17] Speaker 01: They didn't submit one piece of evidence under oath or any other way to refute the Sheriff O'Pyo's office has been damaged here because of repeat offenders who are not deported who wind up back in his jails. [00:06:30] Speaker 00: Can I focus on that third point? [00:06:31] Speaker 00: Sure. [00:06:32] Speaker 00: My question is this. [00:06:33] Speaker 00: The harm that you're saying occurred is not from a general failure to enforce the immigration laws in the way that you would like to see them enforced. [00:06:44] Speaker 00: It's from some failure that stems from concrete executive actions. [00:06:48] Speaker 00: I know you disagree with whether those executive actions are lawful. [00:06:51] Speaker 00: I'm not talking about the legality of them. [00:06:53] Speaker 00: I'm just talking about standing. [00:06:54] Speaker 00: So what you're talking about is the executive action, which you disagree with, undertaken in 2012, and the subsequent executive actions undertaken in 2014, again with which you disagree, that those caused an increased harm. [00:07:07] Speaker 00: It's not the general harm that already exists [00:07:11] Speaker 00: from your perspective, from the failure to enforce the immigration laws, it's some increased harm that results from those challenged executive actions. [00:07:17] Speaker 00: Am I understanding? [00:07:18] Speaker 00: That's correct. [00:07:19] Speaker 00: It's a greatly increased harm. [00:07:22] Speaker 00: So the question is, how do those increase harms with respect to criminals if those policies don't, by their terms at least, in order to the benefit of criminal aliens? [00:07:35] Speaker 00: They inorder to the benefit of non-criminal aliens by their terms because they don't purport to relax anything with respect to individuals who have committed crimes. [00:07:46] Speaker 00: And that's the question. [00:07:48] Speaker 01: Again, Your Honor, I refer you to the affidavits of Sheriff Arpaio on behalf of his sheriff's office. [00:07:54] Speaker 01: It's not just, and also the law and the pronouncements that have been put into effect by executive action, [00:07:59] Speaker 01: only the most severe criminals are deported. [00:08:04] Speaker 01: But the lower level criminals, for lack of a better word, they're in his jails. [00:08:09] Speaker 01: And that's raising the cost and has raised the cost to the sheriff's office in Maricopa County. [00:08:15] Speaker 01: Not only that, there's no evidence on the record [00:08:17] Speaker 01: that this administration has enforced the laws and deported criminals. [00:08:21] Speaker 01: Regrettably, we have a 30% increase in criminality during these DACA rules being in effect. [00:08:28] Speaker 01: So it's both. [00:08:29] Speaker 01: It's both. [00:08:30] Speaker 01: But the fact here is that this increases the harm, as Your Honor pointed out. [00:08:35] Speaker 01: There's a direct injury. [00:08:36] Speaker 01: That's what's different from other cases like the Crane case, the Crane case that was submitted as supplemental authority. [00:08:41] Speaker 00: It's speculative. [00:08:41] Speaker 00: Can I ask one question about the increased harm? [00:08:43] Speaker 00: On the increased harm, so far we've been focusing, and it may be because of the result of the questions, but we've been focusing on the increased harm with respect to undocumented aliens who are already here. [00:08:54] Speaker 00: I took a large part of your argument to be, and I thought it was the principal part, but I might have been misunderstanding it, that the increased harm comes from the incentives on individuals who are not here to come. [00:09:06] Speaker 00: I thought your argument was... That's part of it. [00:09:09] Speaker 00: That's part of it. [00:09:09] Speaker 01: But insofar as you're asking Judge Pillard and yourself about the particularized harm, [00:09:15] Speaker 01: the standing that is issued here, primarily. [00:09:18] Speaker 01: We have made that factual showing, and the government did not refute it at all. [00:09:22] Speaker 01: So we went beyond what we had to show in a 12b1, and we actually submitted hard evidence to the court. [00:09:29] Speaker 01: I actually asked Judge Howell if we could take discovery. [00:09:32] Speaker 01: She said, no, it's not necessary. [00:09:34] Speaker 01: You put this on the record throughout the Davids. [00:09:37] Speaker 01: This is an extremely important case. [00:09:38] Speaker 01: It's really not about President Obama. [00:09:41] Speaker 01: It's not about this particular secretary of the Department of Homeland Security. [00:09:45] Speaker 01: This court cannot allow the executive branch to run roughshod over Congress. [00:09:51] Speaker 01: We have a republic here. [00:09:53] Speaker 01: We have representatives in Congress who make the law. [00:09:56] Speaker 01: And if you don't like the law, you don't get to make the law yourself, even if you're president of the United States. [00:10:01] Speaker 01: This president has said [00:10:03] Speaker 01: in a political context, I took an action to change the law. [00:10:07] Speaker 01: That's at page 14 of our brief. [00:10:09] Speaker 01: We quote him, you're not going to be deported, he tells the illegal aliens. [00:10:14] Speaker 01: He has put himself above Congress, he's put himself above the APA, he's put himself above the American people, and this court has to put his foot down, and it doesn't matter what your political persuasion is, we have to preserve the Republican, our system of government here. [00:10:29] Speaker 01: This is not right. [00:10:31] Speaker 03: Well, but we have to decide whether there is standing here. [00:10:36] Speaker 03: And so I think that's what our questions have been focused on. [00:10:40] Speaker 03: And it's difficult to try to pin down exactly how we follow the lines here. [00:10:48] Speaker 03: It seems to me that there are three things, at least three, that are being presented here. [00:10:58] Speaker 03: One is that these actions are ultra-virus. [00:11:01] Speaker 03: right, that the agency is doing something the agency cannot do. [00:11:05] Speaker 03: The other is that these are legislative rules, and therefore there should have been some kind of APA process. [00:11:11] Speaker 03: And the other is more generalized. [00:11:14] Speaker 03: But in each case, we have to have somehow to show that Sheriff O'Pyer has an injury as a result of that. [00:11:26] Speaker 03: I agree. [00:11:28] Speaker 01: I was giving you a passionate speech because I knew this court is so important to protecting the American people, particularly in today's age. [00:11:38] Speaker 03: I understand that, but what we need, and what I understood the district court to be saying, is you can show these generalized costs have increased, right? [00:11:49] Speaker 03: But where is the connection, the causation between those increases and DACA and DACA? [00:12:00] Speaker 01: This is not merely generalized injuries. [00:12:02] Speaker 01: The district court tried to rationalize it. [00:12:05] Speaker 01: She saw this case as a political dispute. [00:12:07] Speaker 01: She didn't think that there was anything really going on between Congress and the executive. [00:12:12] Speaker 01: But in reality here, there's been particularized injury. [00:12:15] Speaker 01: It's in the affidavits of Sheriff Arpaio. [00:12:17] Speaker 01: His office has had to expend just one example from February to December 2014 in excess of $9 million to house individuals who would have otherwise been deported except for Dhaka. [00:12:32] Speaker 01: That is a particularized injury. [00:12:34] Speaker 01: It's more exact than Judge Haynen found in Texas, where he found Sandy just based upon excess cost speculatively of driver's licenses. [00:12:44] Speaker 02: So Mr. Kleman, if the librarian in Maricopa County wanted you to represent him or her because the services provided by the public libraries are vastly taxed by having more people in the county as a result of this policy, or the family courts, or the schools, or the hospitals, [00:13:09] Speaker 02: or indeed if an individual taxpayer wanted representation because the quality of services enjoyed by that taxpayer are diluted and devalued by the presence of people in the county as a result of this policy, I trust that you would be here making the same argument on their behalf. [00:13:29] Speaker 01: It depends on the facts of each case. [00:13:31] Speaker 01: But I will say this, we put a lot of cases in our brief, Your Honor, DC Circuit, your court, where you are enforcing environmental laws in particular with regard to Sierra Club and NRDC that deal with third-party alleged injury. [00:13:47] Speaker 01: Regulations that haven't even come into effect yet, where individuals are coming forward and saying, this is going to harm me. [00:13:52] Speaker 02: So, so, Librarian, I'm going to ask you a little bit more concrete question, because that's the terms in which we have to deal with this case. [00:14:00] Speaker 02: If a librarian came to you and said, I'm willing to make out a declaration that says that after this policy was announced, 2012, and then again in 2014, I perceived a big uptick in the number of people coming and borrowing books, and a lot of them appeared to be speaking Spanish and coming from outside. [00:14:25] Speaker 02: And I can tell you that's caused by this, because if you compare the numbers before this policy and in the year after this policy, they're very, very much higher. [00:14:35] Speaker 02: It's much more expensive. [00:14:37] Speaker 02: Would you argue that that person had standing? [00:14:41] Speaker 02: I think under your theory, I trust that you would. [00:14:44] Speaker 01: If it matched up exactly with the facts of this case, yes, I would. [00:14:47] Speaker 01: Well, what are the facts that I gave you? [00:14:49] Speaker 01: Well, in this case, you have a president who's decided he's going to make the law by his own admission. [00:14:55] Speaker 01: You have a direct conflict with Congress. [00:14:58] Speaker 01: As Judge Haynen pointed out in his decision, let me just quote you one section of it. [00:15:07] Speaker 01: And I'm also citing the immigration laws here. [00:15:13] Speaker 01: The laws are clear. [00:15:14] Speaker 01: We're talking about particular laws. [00:15:16] Speaker 01: Quote, Judge Hanan, it is Congress and Congress alone who has the power under the Constitution to legislate in the field of immigration. [00:15:24] Speaker 01: This is a very particular direct law by Congress. [00:15:28] Speaker 01: Don't mix in. [00:15:29] Speaker 01: 6 USC section 2023 commands the Secretary of the Department of Homeland Security to carry out the immigration enforcement functions vested by Congress. [00:15:39] Speaker 01: 8 USC 1103. [00:15:41] Speaker 01: A, empowers the Secretary to enforce the immigration laws. [00:15:44] Speaker 01: There are no exceptions. [00:15:46] Speaker 03: Mr. Kleeman, what I'm asking, what I want to know is there are people being held in this jail, right? [00:15:57] Speaker 03: And some of them are illegal immigrants. [00:16:03] Speaker 03: But the question is, are these people, the people in custody, are they eligible for DAPA or DACA? [00:16:15] Speaker 03: Or are they just not being deported due to the executive's enforcement priorities? [00:16:21] Speaker 01: Most of them are eligible for DACA as currently constituted. [00:16:24] Speaker 03: So is that your argument? [00:16:27] Speaker 03: That's part of it. [00:16:29] Speaker 03: But it doesn't seem direct, right? [00:16:31] Speaker 03: The first argument is they are coming because [00:16:36] Speaker 03: they are eligible or think they will be eligible for some DACA-like program, right? [00:16:42] Speaker 01: That's not the primary argument. [00:16:44] Speaker 01: Okay. [00:16:44] Speaker 01: Yes, that is their drawing. [00:16:46] Speaker 01: Okay. [00:16:46] Speaker 01: We have opened the door and we've said come. [00:16:51] Speaker 03: The magnet theory is not what you're really relying on. [00:16:54] Speaker 03: You're just relying on the fact that they [00:16:57] Speaker 03: are incarcerated, that increases the cost, and you think they're still here because they're eligible for this program. [00:17:03] Speaker 01: That's been documented. [00:17:04] Speaker 01: You can look at the information and evidence that we provided. [00:17:07] Speaker 01: It wasn't just a bold statement in a affidavit. [00:17:11] Speaker 01: We backed it up with data, empirical data. [00:17:13] Speaker 01: So, Mr. Clement, you said... Government could have refuted that. [00:17:15] Speaker 01: They didn't. [00:17:16] Speaker 02: That was actually an important answer because you said you weren't primarily relying on this magnet theory, that the [00:17:21] Speaker 02: announcement of a sort of hospital program toward aliens was going to encourage more to come, but that is not your principal theory about the harm done. [00:17:32] Speaker 01: I'm relying on both, Your Honor. [00:17:33] Speaker 01: Okay, because we have evidence of what happened and therefore there's a strong presumption that it will continue to happen in even greater degree because of this open door policy that we have. [00:17:45] Speaker 01: And let me add one other thing. [00:17:46] Speaker 02: And do you have a response to, I think the district judge had said, you know, immigration is a very multi-caused phenomenon, and it's very difficult to isolate one particular cause, the circumstances in the country of origin, the availability of jobs or not in the United States. [00:18:09] Speaker 02: violence and other circumstances in the country of origin, is there anything you can provide us just to help us isolate this policy as the magnet to draw people here? [00:18:22] Speaker 01: Well, I believe that I did, Your Honor. [00:18:24] Speaker 01: You know, the lower court judge, and I like her a great deal, Judge Howell. [00:18:28] Speaker 01: But she thought this was a political case, and she analyzed it in a political setting. [00:18:32] Speaker 02: I think in the political sense, she means that it's for the very branches that you say, but for the Congress and for the President. [00:18:40] Speaker 01: This is not a political case, Your Honor. [00:18:42] Speaker 01: This is a case, and I just read you two sections of the immigration code that says it's to be enforced. [00:18:48] Speaker 01: Let me clear the air about something. [00:18:50] Speaker 01: I've known Sheriff O'Pile for a long time. [00:18:52] Speaker 01: He's my friend as well as my client. [00:18:54] Speaker 01: I've never heard one negative remark about Latinos or anyone else. [00:18:58] Speaker 01: I myself was married to a Latino. [00:19:00] Speaker 01: I'm not anti-Latin. [00:19:02] Speaker 01: I protected the community, community in Miami for a very long time, and that's my home. [00:19:07] Speaker 01: This is not about discriminating against Latinos. [00:19:10] Speaker 01: This is about following the law, and that's your responsibility, not to look for a way out. [00:19:15] Speaker 01: but to actually enforce the law. [00:19:17] Speaker 01: You're our last line of defense. [00:19:18] Speaker 01: We're the American people. [00:19:19] Speaker 01: We depend on you. [00:19:20] Speaker 01: If you look for a way, as Judge Howe did, to not rule, you're not doing your job. [00:19:25] Speaker 00: We've drawn the divide between the magnet theory, which is individuals who are not yet here, but who might be attracted to coming. [00:19:31] Speaker 00: Let's put that to one side, because as I understand your argument now, you're focusing on the people who are already here. [00:19:36] Speaker 00: And the argument is that but for the executive action, they would be deported. [00:19:42] Speaker 00: If not for the executive action, they would stay. [00:19:44] Speaker 00: And I'm sorry, because of the executive action, they stay, and they commit more crimes, and that causes the expenditure of resources by your client. [00:19:53] Speaker 00: Correct. [00:19:53] Speaker 00: They commit more crimes, they're re-arrested, and they're put back in jail. [00:19:56] Speaker 00: So the question that I'd like to focus on is this, that in order for that theory to support standing, it seems like there has to be a substantial likelihood, which is the language of the Supreme Court's cases and our cases, [00:20:06] Speaker 00: that the relief you seek, which is, I guess, at the end of the day, some sort of annulment of the executive actions, would in fact result in removal from the country of the individuals who are here and commit more crimes. [00:20:19] Speaker 00: No, I disagree with that, Your Honor. [00:20:24] Speaker 00: You don't need a substantial likelihood. [00:20:26] Speaker 00: We're not... I think I'm quoting the Supreme Court's cases and our court's cases that say there needs to be a substantial likelihood of regressibility. [00:20:31] Speaker 01: No, not in this context. [00:20:34] Speaker 01: I see. [00:20:34] Speaker 01: Okay, because you have an immigration law that says they're to be deported. [00:20:39] Speaker 01: There is no discretion here not to deport them. [00:20:42] Speaker 01: No more than there's no discretion to tell the IRS not to collect taxes. [00:20:46] Speaker 00: This is where I think it's important to draw a distinction between the general baseline objection you have to the failure to enforce the immigration laws, which I understand [00:20:55] Speaker 00: And the effect of these particular executive actions that you're challenging, it's these particular executive actions that you're challenging that have to give rise to standing. [00:21:04] Speaker 00: And I guess with respect to those particular executive actions, I think what you need to show, the burden is on you to show a substantial likelihood that annulment of those executive actions would result in removal of individuals who stay here and commit crimes in a way that [00:21:18] Speaker 00: causes harm to your client. [00:21:21] Speaker 00: That seems like that has to be your theory. [00:21:22] Speaker 00: I'm not saying you can't do it. [00:21:24] Speaker 00: I'm just saying that theoretically that seems like what you need to do, but maybe I'm misunderstanding you. [00:21:29] Speaker 01: But we have set that forth in concrete empirical evidence that once DACA was implemented back in 2012, that the cost to the Sheriff's Office increased dramatically for having to rehouse convicted criminals who were not processed by ICE [00:21:46] Speaker 01: who then remained or were re-arrested and put back in the jails. [00:21:50] Speaker 01: We have hard data. [00:21:51] Speaker 00: That's what's different than these other cases. [00:21:53] Speaker 00: Here's my question to you. [00:21:54] Speaker 00: Is your argument that if these policies were annulled by the court, [00:22:00] Speaker 00: that the consequence of that would be that the executive would then remove individuals who stay here and commit crimes. [00:22:08] Speaker 01: I thought your argument was that they don't enforce the law anyway, and so I'm not understanding how you would get... Your Honor, I don't understand your analogy there because what you're saying is we can't prove our case because the administration won't do its job. [00:22:23] Speaker 01: So therefore, by not doing its job, they can defeat our case. [00:22:26] Speaker 00: No, I'm just taking your case on the terms that you're presenting. [00:22:29] Speaker 01: I mean, that's tails I win, heads you lose, or in reverse. [00:22:32] Speaker 00: No, I'm focusing on the particular action you're challenging, which is not the baseline failure to enforce the immigration laws. [00:22:40] Speaker 00: It's the effect of these particular executive actions that you're challenging. [00:22:44] Speaker 00: And so in order to establish addressability, I think you would need to show, but correct me if I'm wrong, I think you would need to show that annulment of those particular executive actions would result in removal of individuals who stay. [00:22:56] Speaker 01: Well, it would under the law. [00:22:59] Speaker 01: I just read you the law. [00:23:01] Speaker 01: The law is the law, Your Honor. [00:23:02] Speaker 00: Congress does remove them. [00:23:04] Speaker 00: Okay, so I understand. [00:23:05] Speaker 00: So you're assuming that the immigration laws outside the context of these executive actions would be enforced to their utmost. [00:23:14] Speaker 00: And if those laws were enforced to their utmost, that's how you would get redress. [00:23:18] Speaker 00: That's your argument. [00:23:20] Speaker 01: No, I'm not assuming that. [00:23:23] Speaker 01: What I'm saying is that the implementation of DACA and the benefits that are conferred there from, which go beyond what Congress has authorized and only Congress can authorize, has created injury. [00:23:40] Speaker 01: We have set that forth in affidavits. [00:23:43] Speaker 01: It hasn't been controverted or refuted. [00:23:45] Speaker 01: The government couldn't do it. [00:23:46] Speaker 01: If they could, they would have. [00:23:47] Speaker 01: Look, Justice Department has 7,000 lawyers. [00:23:49] Speaker 01: You know how many I have? [00:23:50] Speaker 01: A few. [00:23:52] Speaker 01: They couldn't do it. [00:23:54] Speaker 01: So it's on the record that the injury has occurred. [00:23:57] Speaker 01: We cannot speculate as to what the administration, either Democrat or Republican, might or might not do. [00:24:04] Speaker 01: We just know the harm that's caused by the implementation of DACA plus the increased cost. [00:24:10] Speaker 01: And to answer Judge Pillard's question, it's both the empirical data of the injury [00:24:15] Speaker 01: and Judge Brown, and also the fact that this is a magnet now to increase the situation. [00:24:20] Speaker 01: The president says, I'm not going to deport you under any circumstances. [00:24:23] Speaker 01: That's great to win an election, but that has nothing to do with enforcing the law. [00:24:28] Speaker 01: We're a country of laws and not men, our founding father, John Adams, said. [00:24:33] Speaker 01: This court has to stand behind that principle. [00:24:34] Speaker 01: That's the principle on which we are founded. [00:24:36] Speaker 01: You have to look at the standing and accept it, not like Judge Howe, try to find some way out of it. [00:24:42] Speaker 01: That's our duty. [00:24:44] Speaker 01: I'm not trying to be in any way disrespectful. [00:24:46] Speaker 01: I respect you. [00:24:47] Speaker 01: That's why I'm here. [00:24:47] Speaker 01: I'm not a conservative who believes the judiciary is the lesser branch of government. [00:24:53] Speaker 01: I believe you're the most important branch of government. [00:24:56] Speaker 01: And you have to stand in there for the American people. [00:24:58] Speaker 01: This is a bad precedent. [00:25:00] Speaker 01: And it can't, whether it's immigration or tax law or securities law or environmental law, you can't have the president make the law. [00:25:07] Speaker 01: That's not his role under the Constitution or the APA. [00:25:11] Speaker 02: I think, Mr. Klayman, that we're all in agreement with you on the importance of the court and on the importance of the government and on the importance of the president following the law and especially in the area of immigration. [00:25:22] Speaker 02: And we're not trying to struggle with you against your position on that. [00:25:26] Speaker 02: I think we're really trying to focus in a little bit more specifically on the redressability aspect of the case that you're presenting. [00:25:34] Speaker 02: And let me just try one more time. [00:25:36] Speaker 02: I realize that your time has expired, but the DACA program [00:25:44] Speaker 02: gives case by case potential relief at the discretion of immigration officials to people who came when they were children, were present in the United States in June 2012, continuously resided here for at least five years, are in school, have completed high school level education, or have been honorably discharged from the Coast Guard or other U.S. [00:26:08] Speaker 02: armed service and [00:26:10] Speaker 02: have not been convicted of significant criminal offenses and do not otherwise pose a threat to public safety or national security. [00:26:19] Speaker 02: So if someone has been convicted or otherwise poses a threat to national security, this policy does not provide a basis on which immigration officials can allow them to stay in the United States. [00:26:34] Speaker 02: And I understand that Sheriff Arpaio has a lot of people in his jails that he wishes and believes are susceptible to deportation, and he wishes that [00:26:43] Speaker 02: the executive branch would deport those people. [00:26:46] Speaker 02: But the difficulty I think that at least I'm having is that this policy does not give them relief and striking down this policy would not change the absence of relief that they now enjoy. [00:27:00] Speaker 02: And that's the difficulty in terms of causation that I'm having in understanding how the relief you're seeking could address the problem that your client faces. [00:27:08] Speaker 01: Your Honor, the quote that you just read [00:27:10] Speaker 01: I think you inadvertently left out a word, significant criminal offenses. [00:27:15] Speaker 01: You read that, okay? [00:27:16] Speaker 01: Every other offense that isn't significant, they can stay. [00:27:19] Speaker 01: So, who decides that? [00:27:22] Speaker 01: The reality is, based on the data, is that ICE has not been deporting [00:27:29] Speaker 01: criminals. [00:27:30] Speaker 01: And the use of the word significant is subjective. [00:27:34] Speaker 02: Well, there's actually more definition about multiple misdemeanors and felons, and there's a lot more definition. [00:27:40] Speaker 01: You come to this country, and I'm not talking about traffic tickets, but you come to this country and you commit an offense, a drug offense where you assault someone or you do something else, you don't deserve to remain in this country. [00:27:51] Speaker 01: You should be out of here. [00:27:52] Speaker 01: And that's somebody whose pro-immigration is saying that, me. [00:27:58] Speaker 01: I don't see that what you said vitiates the fact that these repeat offenders are winding back into jails, and that's injury. [00:28:08] Speaker 01: It's more injury than Judge Hayden found in Texas with regard to processing driver's licenses. [00:28:14] Speaker 01: And we have two judges now who have ruled that what the president has done is unconstitutional, a judge in Pennsylvania as well. [00:28:20] Speaker 01: So, to me, it's clear that DACA is responsible, and we've shown that on the record under oath. [00:28:26] Speaker 01: Government hasn't shown anything. [00:28:29] Speaker 01: Thank you. [00:28:29] Speaker 01: I may have two minutes to rebut if that's possible. [00:28:31] Speaker 01: Thank you, Mr. Coleman. [00:28:39] Speaker 04: May it please the Court, Beth Brinkman on behalf of the United States. [00:28:42] Speaker 04: The district court correctly dismissed the case for lack of standing. [00:28:46] Speaker 04: The district court's opinion also highlights the nature of this case, which renders it non-justiciable. [00:28:53] Speaker 04: The plaintiff challenges the deferred enforcement of removal against third parties. [00:28:59] Speaker 04: That is an exercise of prosecutorial discretion that the Supreme Court and this court have made clear is generally immune from judicial review. [00:29:07] Speaker 04: That is all the more true in the area of immigration where the Supreme Court has emphasized that the legislature and the executive are more suited to the resolution of policy issues that touch on foreign policy and national security. [00:29:19] Speaker 04: First, I'd like to address the standing question that this court is focused on. [00:29:24] Speaker 04: The district court here definitively concluded at page 25 of the district court's opinion that the plaintiff failed to meet the causation standard required to establish standing under Article 3. [00:29:37] Speaker 04: The court demonstrated and relied on the fact that the harm that the plaintiff claims here, harm is due to crime and due to illegal immigration, is not demonstrated as fairly traceable to the policies that he challenges here. [00:29:54] Speaker 04: And as the court questions, I think, indicate and reveal that these policies [00:30:00] Speaker 04: do not apply and do not allow even an application to be made by anyone who has been convicted of a serious crime or has not been here for five years. [00:30:09] Speaker 04: Precisely the group of individuals who would be least likely to come in Tongkak with the criminal justice system. [00:30:15] Speaker 00: So I, so Mr. Klein's argument I think is that there's [00:30:18] Speaker 00: It's true that the executive action says it doesn't apply to certain categories of criminal aliens, but it doesn't mean that everybody who's committed any misdemeanor can't get the benefit of one of the challenge executive actions, is that correct? [00:30:33] Speaker 04: It's very limited, Your Honor, particularly with the discretion that's built in. [00:30:37] Speaker 04: There is the authority to deny deferred action to anyone who has any kind of contact with the criminal justice system, specifically the threshold guidelines. [00:30:45] Speaker 04: It's at page 101 of the Joint Appendix for the 2012 DACA. [00:30:49] Speaker 04: policy makes clear that those ineligible to apply include, as Judge Pillard was describing, significant offenses. [00:30:57] Speaker 04: But the more specific language there has to do with any felonies, significant misdemeanors, multiple misdemeanors. [00:31:04] Speaker 04: And then there's also the very generous discretionary of what would present a threat to national security or to public safety. [00:31:15] Speaker 00: So but there could be a single misdemeanor who could successfully seek relief under the 2012 executive action. [00:31:23] Speaker 04: That is within the discretion of the officials under the deferred action policy. [00:31:29] Speaker 04: The other thing I would like to point out is that the policy is quite clear that no one who has not been here before [00:31:38] Speaker 04: under the more recent date even for the 2014 program, so it's not here before January 1st of 2010, cannot apply. [00:31:48] Speaker 04: So again, the speculation that is built into plaintiff's arguments is clear. [00:31:55] Speaker 04: It's an implausible and inherent theory that this would cause [00:32:00] Speaker 04: additional individuals to come who would not be eligible for these programs. [00:32:04] Speaker 00: So not that part of the case, because I think we were drawing a distinction between the idea that the executive actions would impel individuals to come to the country and the theory that the executive action already imposes harm because of the effect for people who are already in the country as of the time when they were problematic. [00:32:21] Speaker 00: So with respect to that, the latter category, so take out of the field of vision the magnet theory for the moment, with respect to the latter category, [00:32:29] Speaker 00: What's your response to the point that, well, at least some individuals could end up, who are here already, could end up benefiting from the executive action? [00:32:39] Speaker 00: And it's the possibility that those individuals would benefit, therefore would stay, therefore may commit crimes, therefore increasing the resources expended by Sheriff Arpaio. [00:32:51] Speaker 04: Again, these are bold assertions of plaintiffs that don't meet the standard of causation. [00:32:58] Speaker 04: person who might at some point have come into contact with a criminal justice system, who could even be eligible to apply here, be someone who would have such an insignificant misdemeanor, which would not have even been of a level that we're required being in jail for, I think, 60 days. [00:33:14] Speaker 04: That type of thing is such an unlikely speculative theory that those would be [00:33:20] Speaker 04: individuals who would come into contact and increase the crime and injury that the plaintiff claims comes directly from illegal immigration, but not from and has failed to demonstrate the traceability to the particular policies that he's challenging here. [00:33:36] Speaker 02: So let me see if I understand this. [00:33:40] Speaker 02: Is it your position that if DACA, DAPA were invalidated, that people currently eligible for discretionary relief under either program would be no more likely to be deported in the absence of those programs? [00:33:58] Speaker 02: Will we invalidate them than they are today? [00:34:00] Speaker 04: Yes, Your Honor. [00:34:04] Speaker 04: plaintiff acknowledges this in his own filings. [00:34:08] Speaker 04: He talks about his preliminary injunction, motion at page 12, that these individuals should not be removed anyway. [00:34:14] Speaker 04: He also talks in his paragraph 30 of his complaint that these harms he sees from crime and illegal immigration are occurring regardless of the details and any immigration policies he's challenging. [00:34:28] Speaker 04: So yes, [00:34:29] Speaker 02: Now, he puts a lot of weight on the notion that Arpaio and the plaintiffs have put in declarations. [00:34:38] Speaker 02: They have evidence. [00:34:39] Speaker 02: And this is, I guess it's a little bit of a murky area. [00:34:43] Speaker 02: First of all, it's on the pleadings. [00:34:45] Speaker 02: But they also put in evidence. [00:34:47] Speaker 02: And the evidence they put in has not been controverted with evidence put in by the government. [00:34:51] Speaker 02: So I'm just trying to understand, in terms of really at the technical level, what the standard is [00:34:58] Speaker 02: for looking at the facts, and relatedly, is your response that the facts aren't enough, or is it more of a theory that even assuming actually everything that they allege and or state in the declaration is not enough? [00:35:14] Speaker 02: Do you see where I'm going? [00:35:15] Speaker 04: It's just a little murky what- Judge Howell did assume the truth of the allegations of harm here, and that's why her- But not the truth of the allegations of causation, and causation is a [00:35:25] Speaker 04: Causation is a legal question. [00:35:27] Speaker 04: No, it's a legal question. [00:35:28] Speaker 04: It's a conclusion. [00:35:29] Speaker 04: And I think the cases like Twomley and Iqbal make clear that bold assertions of causation do not cut the mustard, so to speak. [00:35:38] Speaker 04: That indeed, those are not reasonable inferences that have to be accepted by the court. [00:35:43] Speaker 04: And the court here did take an initiative to investigate the subject matter jurisdiction of the court and afforded [00:35:50] Speaker 04: the plaintiff an opportunity to submit additional evidence. [00:35:54] Speaker 04: He had requested a hearing, but his request for a hearing was limited to a request for the plaintiff himself to testify. [00:36:00] Speaker 04: And so the court's acceptance of additional declarations from the plaintiff certainly met that request. [00:36:08] Speaker 03: I would also... What would be enough here? [00:36:13] Speaker 03: I mean, this is a motion to dismiss, so we're at the very early stages of the case. [00:36:20] Speaker 03: And this is dismissed as speculative. [00:36:23] Speaker 03: But we've had a case in the environmental area where the court has said it's enough that Massachusetts sovereignty will be infringed if its coastline might be affected many years from now by global warming. [00:36:43] Speaker 03: And I realize that there's some difference because that was a state and this is a public official. [00:36:49] Speaker 03: But what would be enough? [00:36:53] Speaker 03: Why is the theory here not sufficient? [00:36:59] Speaker 04: I'd like to give a broad answer to that, Your Honor. [00:37:01] Speaker 04: I think it really goes to non-disability and some threshold doctrines. [00:37:05] Speaker 04: But I also just want to address Massachusetts versus EPA. [00:37:07] Speaker 04: First, the case you referenced from the Supreme Court with the environmental claim. [00:37:11] Speaker 04: There was a very different situation. [00:37:13] Speaker 04: First, as you point out, it was a state. [00:37:15] Speaker 04: And the standing there was based on kind of a sovereign territory idea [00:37:21] Speaker 04: of the state's interest there. [00:37:22] Speaker 04: And also the statutory scheme there under the Clean Water Act had special provisions for review. [00:37:28] Speaker 04: So I think that's very distinguishable. [00:37:30] Speaker 04: But I think what your question really goes to is the second part. [00:37:33] Speaker 04: I tried to note in my introduction, not only is there standing here, but the [00:37:37] Speaker 04: Court's opinion below really demonstrates why this is a non-justiciable matter. [00:37:43] Speaker 04: And there are a couple of points I'd like to make in that. [00:37:46] Speaker 04: I think, first of all, this is an individual who's challenging the non-enforcement of law against someone else. [00:37:53] Speaker 04: And right there under Linda Arras and the Shertan case, that is an area where we know is just presumptively not subject to review. [00:38:01] Speaker 04: The Hepler v. Cheney case under the APA also [00:38:07] Speaker 04: when it talks about actions that are committed to agency discretion gets into that. [00:38:11] Speaker 04: But it's broader than just the heckler v. Cheney argument. [00:38:14] Speaker 03: But you know, Judge Haynen makes an interesting observation about that, which is that there's a difference between non-enforcement and no action and something that affirmatively contravenes a statute. [00:38:29] Speaker 04: True, Your Honor, and even in Hackler there was a note that acknowledged the Adams type case where there might be abdication, but the case law for this court in particular has made clear that that is the extreme case where there was no enforcement whatsoever of the Title VI provisions or the federal funding cutoff requirements. [00:38:48] Speaker 04: Here, of course, that is far from the case. [00:38:51] Speaker 04: there is a limited amount of appropriations from Congress, and Congress is specifically, unequivocally and explicitly vested in the Secretary of Homeland Security in 6 U.S.C. [00:39:02] Speaker 04: Section 2025, the authority to set priorities and policies, and indeed that's a very crucial role because of the limited resources. [00:39:11] Speaker 04: And going to the redressability point, in order here against these policies would do nothing to increase [00:39:18] Speaker 04: the funding that would allow additional removal of aliens. [00:39:22] Speaker 04: So when you look at that, you have to step back and look at the picture here. [00:39:27] Speaker 04: And when you look at the past six years of removal, it's at a numerical high. [00:39:32] Speaker 04: The purpose of this policy is, in fact, exactly the contrary to abdication. [00:39:38] Speaker 03: I'm not sure that that's a very persuasive argument to me, because that whole idea that, well, we can't do what the statute says because we don't have enough money, but we can do exactly the opposite of what it says, and somehow that is consistent with our obligation under the statute. [00:40:03] Speaker 03: Your Honor, I understand that this is probably, I'm characterizing what you're saying and so I admit that. [00:40:12] Speaker 03: But I think the question for me here is one argument might be that if we did not make it so attractive, that is to affirmatively offer benefits and work authorization and so forth, maybe less people would come. [00:40:32] Speaker 03: maybe people would self-deport. [00:40:36] Speaker 03: So it wouldn't cost us any money at all. [00:40:38] Speaker 03: So I don't think that argument really looks at both sides of the issue. [00:40:46] Speaker 03: But you've said several times this is non-justiciable. [00:40:50] Speaker 03: And I guess, so I guess what you're trying to point out here [00:40:56] Speaker 03: is that you think it's non-justiciable because in your view, this is non-enforcement. [00:41:01] Speaker 03: Is that the argument? [00:41:02] Speaker 03: You're not saying political question or anything like that, right? [00:41:05] Speaker 04: No, although I think that those doctrines, there are a lot of doctrines that overlap in this area, and certainly the case law that's developed. [00:41:12] Speaker 04: A couple things I would say, Your Honor. [00:41:14] Speaker 04: With all due respect, I would not limit our argument to the inadequacy of funding. [00:41:21] Speaker 04: These policies, it's very important, are partnered with the priorities memo that really focuses that the Secretary of Homeland Security has taken so seriously [00:41:32] Speaker 04: the question of border security, national security, and community safety to prioritize in the three different stages the various individuals who are unlawfully here who will be prioritized for removal. [00:41:47] Speaker 04: And this is paired with that, Your Honor, to alleviate the need to expend those resources on [00:41:54] Speaker 04: individuals here who've already been here for five years, that self-deportation, Your Honor, these are all people who've been here for more than five years. [00:42:02] Speaker 03: But if you write about that and the Secretary is really doing a good job and is really removing everybody that should be removed because [00:42:12] Speaker 03: they've got the priorities right now, then doesn't that count? [00:42:16] Speaker 03: That sort of cuts against you, because the argument that this wouldn't be redressed is an argument that, well, we don't enforce the immigration laws anyway, and so these people would still be here. [00:42:27] Speaker 03: But if in fact you're doing a really good job of that, then that actually gives more potency to the argument that it's the [00:42:35] Speaker 03: It's the other way around. [00:42:36] Speaker 04: I think that's really where the limited resources do come in because these are the people who are less likely to be removed because they don't have a criminal record and they're not a priority. [00:42:46] Speaker 04: So I do think that comes into play. [00:42:49] Speaker 04: But if I could shift just for a moment. [00:42:50] Speaker 00: What is the justiciability? [00:42:52] Speaker 00: There's one way to understand justiciability-like concerns, which is that standing doctrine generally serves to promote separation of powers values and separation of powers interests are implicated in this case. [00:43:04] Speaker 00: But that's a standing argument. [00:43:06] Speaker 00: Are you making a freestanding judicial justiciability argument that's something other than political question? [00:43:11] Speaker 00: There's some other justiciability principle that says that we can't, that this suit is incapable of resolution by the judiciary? [00:43:17] Speaker 04: We do point out on our brief that there are other prudential considerations for why this case is not subject to adjudication, and a couple points I would make on that. [00:43:26] Speaker 04: I think it's the first, the non-judicial doctrine about the third party challenging non-enforcement against a third party, and particularly in the area of immigration. [00:43:36] Speaker 04: the Supreme Court in Arizona and the AADC case, the American Arab Anti-Discrimination Committee, made quite clear that the executive has discretion about whether to commence removal proceedings. [00:43:51] Speaker 04: And Heckler v. Cheney makes clear that those types of decisions that are committed to executive discretion [00:43:59] Speaker 04: are not amenable to adjudication because there is no standard by which to measure them. [00:44:04] Speaker 04: So they're certainly not, they're exempt from the APA, a challenge to that kind of non-enforcement, but even more broadly we would say even the notice and comment challenge here come under that. [00:44:15] Speaker 04: Because of the nature of these cases and let me just talk about assume standing You're saying assuming standing even if there were and I should point to this series of cases that we talked about at pages 27 to 28 of our case of our brief There was a series of challenges if I see my time is up if I can continue, please I [00:44:32] Speaker 04: There is a series of cases in 1996 where many states challenged, made very similar challenges like this to the alleged non-enforcement of the immigration laws. [00:44:43] Speaker 04: Several of the circuits, all of the circuits rejected those on different grounds and several on non-justiciable grounds. [00:44:50] Speaker 04: Many of them focused on the political question type argument, but we know from Matthews versus Diaz and all the way that the Supreme Court talks about the immigration area looks at similar factors. [00:45:00] Speaker 04: to the Baker v. Park factors for a political question. [00:45:04] Speaker 04: So we look at it more in this more general non-justiciable, particularly with the Heckler v. Cheney, the overlap between the reasons why administrative action is not subject to review there. [00:45:18] Speaker 04: And several of those circuits also look to Heckler v. Cheney in dismissing some of those claims. [00:45:24] Speaker 02: But curiously, so here the briefing is really focused on standing, and several of those cases assume without deciding that there is standing, and then go on and say, as you say, for whatever reason, immigration context, political question. [00:45:42] Speaker 02: And I guess one way of maybe sharpening this is, is there a party that you can imagine that does have standing to challenge DACA or DAPA? [00:45:53] Speaker 04: Let me say this. [00:45:57] Speaker 04: In this realm, in light of these cases, this type of challenging the non-enforcement against a third party in immigration cases typically [00:46:07] Speaker 04: been rejected. [00:46:08] Speaker 04: There may be some more isolated scenario, certainly in the Mendoza versus Prez case, where it looks at aspects of the immigration laws that have to do with the workforce and employment, for example. [00:46:19] Speaker 04: But I think what's important to look at is also, for example, this circuit's opinion in the Fair case from 1996. [00:46:27] Speaker 04: That I think is a very telling case here. [00:46:30] Speaker 04: That was a case that was brought by a group of citizens from a limited area, Miami, claiming very similar challenges here, that there was a presidential decision, executive decision, to allow 20,000 Cubans to be paroled in and then to seek lawful permanent residence status on an annual basis. [00:46:48] Speaker 04: Yet this court found that there was no cause of action Well, there wasn't that the right there was not within the zone of interest of the statute that certainly applies here, too a lot of these cases were before Steele co and before Lexmark so I think that the Terminology that we use is one of the issues here and that's why I tried to help you press though is that we've got all these doctors and serve are the gist of you know and and [00:47:14] Speaker 02: So it wears the right place. [00:47:17] Speaker 02: And you can understand why Mr. Klayman is sort of feeling like, wait a minute, there seems to be in the part of the courts a motivation in search of a doctrine as opposed to a doctrine that's compelling an outcome. [00:47:29] Speaker 02: And that puts us in a very uncomfortable light. [00:47:35] Speaker 02: So, one, or not, tell us why. [00:47:39] Speaker 04: Are you not gonna pick one? [00:47:40] Speaker 04: I can try and put them in boxes for you. [00:47:42] Speaker 04: I think there are many alternative grounds on which this case should be dismissed. [00:47:48] Speaker 04: The standing traceability, lack of traceability is quite clear, unequivocally concluded by Judge Hall on page 25 of her opinion. [00:47:56] Speaker 04: I think it's deeply rooted in the speculative nature [00:48:00] Speaker 04: and the implausible, incoherent theory of causation of the challenge policies. [00:48:09] Speaker 04: The challenge policies, any action against them, are not going to address whatever harm we assume the plaintiff is suffering from crime and illegal immigration has not been tied to that. [00:48:22] Speaker 04: I think second more is the more general justiciability, the nature of this case, the cases from the 1990s, [00:48:28] Speaker 04: Again, this court's decision of fare, I think, is very helpful. [00:48:32] Speaker 04: And Linda RS, as you mentioned. [00:48:33] Speaker 04: Yes. [00:48:34] Speaker 04: Linda RS and Shurtan go to the non-justiciability of challenges against the non-enforcement, against the third party. [00:48:41] Speaker 04: And I think that's very clear in the immigration area. [00:48:43] Speaker 04: And I would point out, statutorily, when you look at what Congress has done under 1252G, the statute at issue in the AADC case, [00:48:51] Speaker 04: Even an alien who wants to challenge kind of a selective prosecution theory that the deferred action for someone else is an issue for the individual alien is very narrowly circumscribed by the statute. [00:49:06] Speaker 04: So we are in an area, Your Honor, where I think there is very little room, and the Supreme Court has made clear there's a narrow room for judicial review here. [00:49:14] Speaker 03: Another case I would like to. [00:49:16] Speaker 03: Can I just ask you, because there is a case out there where an injunction has been issued [00:49:21] Speaker 03: And I think the harm there was that states would clearly be the entities that would have to issue the driver's license and so forth under the benefits side of DACA and DAPA. [00:49:36] Speaker 03: And so there is a court that said, well, that's enough of an injury, and that's not speculative. [00:49:44] Speaker 03: We know that's going to happen. [00:49:47] Speaker 03: But the question I have is, [00:49:50] Speaker 03: at least at the state level, isn't concern about public safety and crime and that sort of thing at least equal as a sovereignty concern to the sea level rise, taking a few inches of shoreline. [00:50:08] Speaker 04: It's two things I'd say, Your Honor. [00:50:09] Speaker 04: I think the case of the 1990s really go through and look at that. [00:50:14] Speaker 04: And also on this court's decision in Pennsylvania versus Kleppe from earlier, it was a [00:50:19] Speaker 04: challenged to whether or not the Small Business Administration was adequately providing funding following a hurricane. [00:50:28] Speaker 04: And there were similar claims about the economy, the tax base, all of these injuries. [00:50:33] Speaker 03: Well, I think that the cases in the 90s, pardon me for interrupting you, had a lot to do with this notion that these are just the fortunes of federalism. [00:50:44] Speaker 03: you know, these increased costs, you know, for your social welfare network and that sort of thing. [00:50:51] Speaker 03: But I'm just wondering, one, you know, Massachusetts, the EPA hadn't happened then. [00:50:57] Speaker 03: But I'm also wondering if this isn't a little different. [00:51:00] Speaker 03: In other words, to say, well, you know, this impacts us very generally, we have these increased costs because we have increased population. [00:51:06] Speaker 03: But very specifically, if you're looking at questions of sovereignty, right, if it's impacting the lands of our citizens with these trespasses and so forth, if it's a concern that there are increases in law enforcement because there's increases in crime, which means there's less public safety and so forth, why is that not enough? [00:51:36] Speaker 04: Cases speak at length about this, perhaps in somewhat different language, but it really even comes back in the Pennsylvania v. Kleppe case. [00:51:45] Speaker 04: not to introduce another doctrine. [00:51:47] Speaker 04: But they also reject the parents' pay trade type argument. [00:51:51] Speaker 04: And that's really, in a sense, Sean, or what you're talking about, a jurisdiction within the United States being able to sue on behalf of this generalized grievance of its citizens against the United States. [00:52:03] Speaker 04: But we know from Massachusetts versus Mellon that that is not allowed in the federal system. [00:52:08] Speaker 04: And indeed, in the area of immigration, there is recourse to the political [00:52:14] Speaker 03: branch of Congress, you know, there really isn't because they're only four border states. [00:52:21] Speaker 03: And that makes them, they're really, you know, not able to have the kind of political clout. [00:52:28] Speaker 03: It's not a generalized problem often. [00:52:31] Speaker 04: That's exactly what this court had before it in the Fair case. [00:52:35] Speaker 04: And the DC circuit held that that citizen group from Miami [00:52:40] Speaker 04: did not have some special regional interest. [00:52:44] Speaker 03: I understand that just as citizens, there's not much that we can say about it. [00:52:48] Speaker 03: But does it make a difference if it's a state, if it's a public official, or are we all just in the same boat? [00:52:56] Speaker 04: I think when you look at the zone of interest inquiry and whether there's a cause of action under the APA, [00:53:03] Speaker 04: they would not be within that zone of interest. [00:53:05] Speaker 03: I find that really interesting because would you say that these are legislative rules? [00:53:13] Speaker 03: Or do you agree with that? [00:53:14] Speaker 03: No, we believe this is a statement of policy that's not subject to notice and comment. [00:53:18] Speaker 03: Well, let's assume that they were legislative rules. [00:53:21] Speaker 03: Let's assume that there were benefits tied to them and that people were actually bound by this [00:53:29] Speaker 03: articulation of policy. [00:53:32] Speaker 03: So it would be a legislative rule. [00:53:33] Speaker 03: And your view would be Sheriff Apayo is not within the zone of interest for, you know, arguing that he was entitled to notice and comment that this was going to happen. [00:53:46] Speaker 03: Yes, Your Honor. [00:53:48] Speaker 03: So who would be within the zone of interest? [00:53:50] Speaker 03: Only illegal immigrants? [00:53:52] Speaker 04: Well, certainly when you look at an APA cause of action in the zone of interest there, you look to the underlying substantive statute [00:53:59] Speaker 04: And I think FAIR is instructive in that area. [00:54:02] Speaker 04: These other cases about the state's regions are not within the zone of interest to bring suit under that. [00:54:12] Speaker 04: And I think that that makes sense, Your Honor, when you look at the Supreme Court's recent Arizona case, for example. [00:54:19] Speaker 04: That opinion made quite clear that states are not in a position to challenge federal immigration policy through legislation. [00:54:27] Speaker 04: And here, we would [00:54:29] Speaker 04: you know, urge the same type of argument that states cannot try and do that through the judiciary either. [00:54:37] Speaker 04: And one thing that I think often gets lost in this debate about immigration policy is really the foreign policy consequences. [00:54:45] Speaker 04: I just want to go back to the Fair case again, because that case involved [00:54:50] Speaker 04: an agreement between the United States and Cuba that followed one of the boat lifts, just a tragic situation. [00:54:57] Speaker 04: So the countries came together, and part of the solution was that the United States said, OK, we'll do 20,000 paroles annually, and then we'll have the lawful permanent residence ability to seek that. [00:55:11] Speaker 04: That is a great example of why [00:55:15] Speaker 04: this is left to the federal government to speak with one voice in immigration, because immigration does touch upon foreign policy and international relations, not to mention national security. [00:55:27] Speaker 04: So I do think it's a unique area that the Supreme Court has really recognized. [00:55:33] Speaker 04: The flip side, too, I just want to point out is that, of course, plaintiffs' theory of standing is without limit. [00:55:41] Speaker 04: Under this theory, every time there was a new temporary protective status, which is generally a group of people from a particular country, for example, the plaintiff could come in and bring the same type of suit alleging that there was going to be harm to him from crime and illegal immigration without being able to trace it back to the challenge policy. [00:56:05] Speaker 04: And we think that is what the bottom line ruling of the district court here was, that there was no standing. [00:56:12] Speaker 04: And we do think that the additional grounds of non-justiciability, lack of cause of action, are also grounds on which the case could be dismissed. [00:56:20] Speaker 00: But he did trace it back to the policy, at least in the statement in the affidavit. [00:56:24] Speaker 00: Because I think in the affidavit, the statement is made that there has been increased cost to me because of the effects of the challenge of executive actions. [00:56:35] Speaker 04: and the district court on page 25 rejected that for a couple of reasons. [00:56:39] Speaker 04: One, she explained the [00:56:42] Speaker 04: lack of traceability in that when you look at other parts of the arguments that plaintiff makes, he also argues that it is regardless of the details of the policy, it's the general immigration policy overall because people aren't being removed that is causing that. [00:56:59] Speaker 04: That is the antithesis of non-prioritizing people who aren't criminals to allow the removal of the people who would be more likely to come into the justice system. [00:57:08] Speaker 04: She also points to the fact that in his preliminary injunction, [00:57:11] Speaker 04: argument he argued that these low priority individuals would not be removed anyway, again going to the redressability point. [00:57:20] Speaker 04: And she also, the court also spoke about the speculative nature of the future entry pointing out that any kind of order would not provide more funding to remove all aliens who are here unlawfully as plaintiff urges, nor would reduce crime, nor would stop [00:57:41] Speaker 04: people from entering, which is a third party decision, which the district court pointed to one of the issues that this is such a difficult area, Your Honor. [00:57:50] Speaker 04: I think this also goes back to one of Judge Brown's questions. [00:57:52] Speaker 04: These cases inherently challenge regulation of a third party and many of the cases, the American Hospital Association and Brock and other cases [00:58:02] Speaker 04: The wrestling coach's case, I'll point out that when you have a third party actor, it's very difficult. [00:58:09] Speaker 04: Those are all cases in which it was too speculative because you can't trace it to the challenge policy. [00:58:15] Speaker 04: It's rather the actions of an independent third party. [00:58:19] Speaker 04: We urge you to affirm the district court. [00:58:21] Speaker 03: Thank you. [00:58:25] Speaker 03: Of course, Mr. Klayman, you're out of time, but we'll give you two minutes. [00:58:30] Speaker 03: Thanks. [00:58:33] Speaker 01: I might point out that Maricopa County is larger than 24 states in this country. [00:58:37] Speaker 01: It's huge, so it has a significant impact, what's happening in that jail. [00:58:41] Speaker 01: Secondly, Your Honor, Judge Brown, you hit the nail on the head. [00:58:44] Speaker 01: This is a motion to dismiss. [00:58:46] Speaker 01: If the government wants to come up with new ideas here, and what I heard was testimony, not really argument, they never put it in an affidavit, they'll have an opportunity to take discovery and prove their point. [00:58:56] Speaker 01: This case should proceed forward at a minimum. [00:58:59] Speaker 01: Thirdly, the case of United States versus Mills, the Supreme Court case, is instructive. [00:59:04] Speaker 01: When the government violates a constitutional right, injury is presumed just from the violation of the Constitution. [00:59:12] Speaker 01: And that case stood for the proposition that one day of the violation of the Constitution, [00:59:17] Speaker 01: is injury and one day too much. [00:59:20] Speaker 01: It's also important to recognize that the Justice Department under the Obama administration itself issued an opinion in the Office of Legal Counsel. [00:59:28] Speaker 01: I'm an alumnus of the Justice Department. [00:59:31] Speaker 01: I respect what it said. [00:59:32] Speaker 01: And when it said the first time before politics entered into it, it told the president, you can't do this. [00:59:36] Speaker 01: And he went out to justify to the Latino community, I can't do this. [00:59:40] Speaker 01: I'm not an emperor. [00:59:42] Speaker 01: This was a reversal. [00:59:44] Speaker 01: It was a reversal that was convenient at the time. [00:59:47] Speaker 01: And Republican presidents have done the same thing, but that doesn't make it right. [00:59:51] Speaker 01: And last but not least, the government never asked for more money for enforcement. [00:59:55] Speaker 01: That's on the record. [00:59:56] Speaker 01: In fact, Congress appropriated more money despite the fact that this president and the executive branch never asked for it. [01:00:02] Speaker 01: So what we heard here in and of itself was an argument that [01:00:07] Speaker 01: We, the executive branch, are above the law. [01:00:09] Speaker 01: We're not accountable to the American people. [01:00:12] Speaker 01: We don't recognize that people can be injured here or sheriff's offices or Maricopa County. [01:00:18] Speaker 01: We get to do what we want. [01:00:20] Speaker 01: And we can't allow that to happen in this country. [01:00:22] Speaker 01: This is just not what we're based on. [01:00:24] Speaker 01: Thank you for your time. [01:00:26] Speaker 03: Thank you, Mr. Clinton. [01:00:27] Speaker 03: The case will be submitted.