Transcripts For CSPAN Trump Administration Public Charge Rule Oral Argument 20240713

Congress make clear in 1996 that it sought to ensure that aliens admitted to the country do not rely on Public Benefits. That by making them ineligible for the most part for those benefits . It did of course make them ineligible. Concludedhat congress that after you have been here for a number of years, you are eligible for benefits, that reflects that you cannot predict for total accuracy what they will need. Predictere trying to this regulation. Correct. A difference between saying we did not predict this and saying we will authorize you to use benefits. That is different. They were not eligible before this point. That is right. Did not expect you to use them. Congress had every opportunity to elaborate on the public charge revision. Instead, they ignore that, y had 20tanding that the years before. They chose to deal with the problem in a different way. Understand how you draw from that the fact that congress chose to deal with this. They did not want to create an incentive. By making with that people ineligible for benefits. Anyone but green card holders. I want to be clear. Congress amended the statute most recently in 1996. I am not sure i understand that. I thought they had ruled similarly back in 1974. And i am not even talking about the history of everything from 1882 to 1996. Found that there were various interpretations. In the 1999 guidance, they determined it was ambiguous. I dont think in any history that the congress thought it had a settled meaning. Ever one point was there judicial interpretations or administrative interpretations that in any way took the view that receiving any kind of ,ublic and if it was the test as opposed to being dependent for your basic support on being unable to work . I would point this court to one example. A case by 1948. It was about deportation. It was clear that if you fail to repay transportation or clothing or other incidental fences, then youre deportable as a public charge. The person in that case was clearly someone who while applied to be a public charge under the much more restrictive tests that had happened before. There was no prospect of her recovery. She was confined to a mental institution. T they said was an even even for someone like that, if the hospital had not built or for any of the services they were providing, which amounted entire support, she still was not to be considered a public charge. Is the bestng that decision that favors your interpretation . It is true she was institutionalized. To find her a public charge. It was clear that if she was able to read a those incidental expenses, she would have been founded public charge. I would also point out that there are other cases. The court found that that temporary. Of time was that it was enough to make her a public charge. The case you are citing appears to be Strong Authority against everything you are saying. An alien who participates without cost to him in an Adult Education program does not become a public charge. That is the opposite of what you are saying. I disagree. I think that is talking about Public Benefits in general that are available to the public at large that are not means tested. Those are not considered under the rule. Rule, we considered possible benefits and narrative down to just three. Medicaid, snap, and housing vouchers. Food, shelter, and medical care. Further byrowed it saying proposition that supports the validity of this rule is that a person who needs public assistance, and i am quoting from this passage, a person who needs public assistance to provide these basic necessities of life and receive such benefits for longer periods of time is more likely to receive such benefits in the future. Is that the justification . Where do you get the proposition that the person in question needed those benefits . Experience, people take what is available to them. I take tax to the actions. Do i need them . No, i take them because they are available to me. A person who is eligible to or go toenefits receive medical care for free is likely to take it. It. Er than pay for get the you justification that anyone who took something that was available to them for free needed it . A couple of points. , any Public Benefit would not count. You could use cash assistance. That is something that can be considered. Isnt there a difference between ssi which is provided because people are disabled and not able to work and stamp . Snap . Otherwise known as food stamps . Someone whong that works fulltime at minimum wage and stoke all fis for a minimal , because food stamps you get fewer as your income rises, but who is above the poverty line and receives 10 a month in food stamps is likely to become a public charge . To address the fringe cases. Go ahead. Congress could not have been clear in 1996 that they did not want aliens relying on the benefits. They did not want them to serve that as an incentive. They could have been clear. It could have said you could not get them. That is not true. The issue is not whether congress would have preferred not to be giving Public Benefits to these people. The issue is that they take the Public Benefits. Is it a proper basis for making it an admissible . These are just a select group of benefits. The point being, if you cannot meet your basic needs. That is not for your basic needs. It is a Supplemental Program that is intended to provide additional nutrition to people all because congress thought it was a good idea for people to eat at her. In 1996, Congress Passed the affidavit of support provisions. Income is deemed to be part of their alien income. By congress did all of those things is an integrated package to deal with the problem. It did that in the 1990s. You are saying what they really wanted us to do was alter the interpretation of oblate charge to make clear that anybody who gets these benefits, even when congress has authorized them to should bebenefits kept out of the country and the first place for dear that they will get what congress decided to let them have. I dont think they would agree. Be the case that congress authorizing a benefit means it can be considered a public charge. That is not the proposition that all. The proposition is you are trying to draw an intention of congress to do something that it did not do. From Something Else that it did to an apparently thought was the way to deal with the problem that you correctly when it out. I know this is not a direct answer. I think the statutory history is quite clear. Of examples number of that. They specified in 1950 that this was meant to be the executive branch. It is quite clear that congress thought of the term ambiguous and left it to the interpretation of the executive branch. Aliens admitted to the country should not rely on these benefits. This is not the only meeting that could be adopted. But it is a reasonable one. We cite a number of these provisions in our brief. Congress was very concerned about allowing individuals to do this. It was a fact of congress what could be falling on hard times. To use them at the start, there is no reason to not include those. It is not inconsistent with congressional intent. Certainly medicaid, there are exceptions. You would be considered a public charge. I want to emphasize that there is a test. Any adjudicator will have to rationally ask wayne explain why they think this person will be a public charge. It is hard to see as a practical matter what races they would have for that. They are considering the totality of the circumstances. I agree that that is the standard. Someone in the border and customs protection. Someone in the consular office. You would not want to have different standards being applied. Are saying the same thing. Justify ift person the conclusion is the person will justify that . Isnt the answer under the regulation that they cannot be admitted. At some point in the future, they are to be turned away. [cheers of that is true. It is to decide whether the person will take advantage of that program. If that is the best gas based on the totalitarian of the circumstances, the rule says no visa. Is that wrong . That is correct. Even if it is 10 worth. It is nonemergency hospital if you predict that that is going to happen at sometime , out. Future that is how the rule works. Does this have an impact on women of childbearing age . Who may have children or need prenatal care . Issue that was raised by commentators over the rules. You will not count any past benefits in that regard. That is the conclusion. I want to be clear. The exclusion does not apply to women who need medical care following delivery . Because of postpartum depression . I believe it extends for a few months after birth. I should know the answer specifically. Cap other clarification. Of say it is a totalitarian circumstances test. But you also say it is a heavily weighted factor . It is. You can explain that usage. You can say i do not expect to use it in the future. Or if it was a long time ago. It is a heavily weighted factor, no matter how small the benefits obtained . Or it was taken because it was available . That is true. There can be countervailing positive factors. I didnt really need it. I dont need it. I dont needed in the future. The only point i want to make is how many factors are there . Income exceeding 250 of the federal poverty line. As is current employment. But i guess that actually doesnt add anything to the prior one. It is still the same standard. The other weighted factor is having private insurance that was not purchased with the help of the Affordable Care act. I am not sure there are others. But there are a number of positive factors. I wont take up your time running the list of the negative factors. I will point out that the proposed rule. It is likely not to be found to be a public charge. A young person who does not have Health Insurance that is in college. Even though that person didnt have any highly weighted personal factors. Back to the question of a small amount of benefits. The adjudicators have to explain that. It cannot be speculation. What facts were identified. It is hard to see in the abstract. To rely on case you would have to rely on a particular case or case law to figure out the close cases. We start with someone who doesnt speak english at the time that theyre admitted, notwithstanding that they have as much time as it may take if ever for them to get a green card, plus five years before there would be an issue, but thats considered a negative factor. I guess we assume people arent likely to learn english in that period of time, or we assume that the deck is so stacked against these people that they would never be able to make a living. But there are factors that are given weight to decide whether somebody is ever going to take advantage in any way of any of these benefits. And if the answer is yes, based on the totality of the circumstances, its not a question of are they likely to need a lot. Its a question of is there any predictive is it more likely than not, on a predictive basis, that 10 years from now or beyond they may take advantage of these programs . Thats what the totality of circumstances is supposed to address, is it not . Yes, it is, your honor. I see im out of time. Could i ask a different type of question because weve been spending a lot of time, i think, on whether this how this rule stacks up against the congressional intent expressed in arira. Ive been puzzled about a different thing, if i could be helped by your view on it. To what extent theres a lot of talk in one amicus brief in particular and to some extent in the governments brief about the cost benefit analysis. Is that significant . I mean, i thought that this was basically, that your main argument was this we adopted this rule because its in keeping with the congressional intent. Do we have to find that somehow its rationally supported in some kind of cost benefit analysis, or is that a make weight or is that something that matters to you . No, your honor, i mean, you dont have to find that it was sort of a mathematical cost benefit analysis was required, in fact it wasnt here nor is it clear how that would happen given how uncertain the various costs and benefits or the costs at least ultimately are. But costbenefit, does that even matter if we were to find that or conclude, im not sure how one would go about doing this. But if that were the case, that the costs to Society Economic and otherwise of this rule had not been adequately considered by the agency. In your view, would that matter at all or is that something we shouldnt bother even thinking about . Your honor, i dont think it would matter at all, however, as the reason we discussed because plaintiffs in the District Court were concerned about the agencys failure, alleged failure, to address the costs. And here, the agency did as the ninth circuit found at length addressed the cost st of the rule. The fact this it didnt come up with a specific definitive number is irrelevant. It acknowledged the uncertainty and it acknowledge the cost and that was sufficient under the law. With a brief of the nyu institute for Public Policy integrity was filed subsequent to your rely brief. With your break. Ive read them. Its your brief. Ive read them. I dont know specifically which that brief takes the position that among other things that there is an obligation in rulemaking to consider adequately the issue that judge lynch was talking about, to consider the cost benefit analysis. And i think the point has nothing to do with whether this court would agree that the conclusion, with respect to cost benefit analysis reached by the agency, was correct, but rather whether it was adequately considered. And with respect to things like things like the added costs that would be thrown on to a states Public Hospitals because of poor nourishment or poor medical care, absence of medical care from people who preferred not to get it rather than well, whatever. The person who abstained from getting from taking advantage of available medicaid wouldnt take it, and people wouldnt take food stamps, and the result would be poor nourishment, poor health, and the costs that that would throw on public resources. The brief takes the position that these things were simply blown away, were simply not considered, while there was some consideration of cost benefit, a lot of the obvious costs, obvious but difficult to quantify, were simply not taken into account. And id be interested to know what youd say to that, but more than that, since you never had the opportunity to answer that brief, i would be very interested to have you file a supplemental brief, responding, answering particularly the arguments made in that nyu brief. Sure. Your honor, of course i would be happy to do that. With respect to the specific arguments, the agency did address the question of costs on hospitals and local governments and the Public Health. It noted it cannot quantify those. I think its important to keep this in mind, all of these healths stem from disenrollment in medical benefits. At the time, people are applying to a just status and thats the primary group we are talking about or at the border obviously, too, they are not eligible for medicaid and they wont be for quite some time. So, the people who are disenrolling right now are people who are not subject to the rule. They are people like potentially refugees, asylees, people who have their green cards. The agency in responding to that very point and it made a number of responses but with unit pointed out were going to provide clear guidance on it. And once people learn the effect of the rule, they should reenroll once they realize theyre not subject to it. Of course, if the agency concludes theyre likely to use medicaid later, they will be excluded and wont bring about these costs. Doesnt that bring about everybody, the rule makers and us, ultimately, when its in the record, having a need to understand what the impact of this is . I mean here, were getting a respected amicus argue on the one side, and youre saying, well, that doesnt really thats really not going to apply. Yes. I mean, look, the agency recognized that there be would be people to disenroll including people not covered by the rule. It took six steps to mitigate that, including clear guidance. But it ultimately concluded as your honor was getting to, that the policy of furthering Congress Clear Intent in policy outweighed the potential Health Benefits of the longterm difficult to quantify potential Health Benefits of a more permissive role. Im trying to understand this. People who have temporary admission or withholding of removal or asylum do not have green cards, right . At that moment . Yes, they would apply. They will apply eventually for green cards. And while they are not in green card status, they have eligibility for the benefits. And youre saying they shouldnt disenroll, notwithstanding that if at some future point they apply for a green card, that previous receipt of benefits will be held against them. It will not. It will not . If were talking about refugees, asylees. Yes. Because when they apply for an lpi, they are, by statute, excluded from the public charge provision. I see. So theyre excluded i understand what youre saying now. Got it. They are excluded from the public charge provision. Theyre not just excluded from the diseligibility for the benefits. Right. Got it got it. I understand. So they have no basis for theres something im missing here. Looking at the people who are adversely affected by this rule because they took benefits in the past. They took benefits during the past three during the prior three years. If those persons had not taken those benefits, their circumstance would be different. If they had if they had if they had elected not to take them, and perhaps compromised their health by virtue of not taking them, not taking not getting proper nourishment or not getting proper medical care, there would be what am i missing . They must have been eligible to get the benefits if they took the benefits. And they also could have decided not to take the benefits. One thing, just the way the rule works, it says clearly in the rule itself that we dont consider any benefits received before the rule went into effect. Yeah, but im so thats so if someone has but in the future. In the future, yes. People at a time when they have the choice, either take the benefits because theyre available, or dont take them for whatever reason, dont they have that choice . Yeah, but i dont know that there are many people in that category because they wont have been eligible to have received benefits before. That might be a factor that doesnt come into play very often. There may be some unusual circumstance where someone would become eligible and receive the benefit even before they have their green card. And you know from the statute itself, its rare for that to be the case. If someone did not take some benefit that they might have been eligible for, i dont know what that is, and the result is that they become ill, then you might predict in the future they are likely to take advantage of the benefits, right . Probably not a good strategy to become seriously ill as a result of i mean, that has been part of the public charge since the beginning. Of course. If someones going to be seriously ill, that increases the likelihood. Im trying to figure out who this all is aimed at. Im going to be asking the other side, as well. Is this all symbolic or does this actually have bite on people in real life . Youre kind of suggesting it doesnt have that much affect on people. Certainly, there is a prediction about whether you will in the future be likely. All im suggesting is that for disenrollment disenrollment issues is a different issue. Thats much smaller than i think everyone or shouldnt be an issue. People might be disenrolling but dont need to be. I have one other question , which is we have been presented, as weve been all getting ready to hear this argument and make the arguments with information, data from other government agencies, executive Branch Agencies that call into question some of the assumptions that appear to underline the rule. What should we, in wrestling with the outcome of this case, do with that information . Well, if your honors are referring to the ssas recent rule, you know rule or statistics that basically people who dont speak english are about as well employed as people who do speak english, that sort of thing. Well, i think the ssa addressed that very point in their rule, in which they made clear they were not looking at the same statistics as dhs and they werent looking at it for the purposes of evaluating whether people would have work that was sufficient to meet their basic needs, to avoid becoming likely to be public charge. So its just a different employment seems to me i mean, weve all been employed or at least many of us have been employed. Employment is employment is employment. I think even in that ssa rule , they noted participation in the labor force is lower for people who are in the English Speakers. Its just one factor in the totality of the circumstances and there was ample evidence in the record that, for example, lowering this proficiency is associated with higher unemployment and higher benefits use. And more discrimination perhaps. Thank you, your honor. Im not asking to you repeat yourself, but im confused by the answering you were giving just previously. You seem to be saying just now that that the rule that the rule doesnt really have any affect because because prior to their application for lawful permanent residency, theyre not eligible that theres no instance where the person has the opportunity to choose whether to take the Public Benefits or not . Your honor, i want to be clear. Im not suggesting that the real has no affect. Its a prediction about whether you will use it in the future. So thats so, in that prediction, you know, its different than the current rule. When are the circumstances when somebody could have the choice of take the Public Benefit or dont take it . Not until after theyve received their green card, plus five years. Im sorry . Generally speaking, there are exceptions and so forth, but generally speaking not until after after youve got your green card and have been here for five years. So, at the time youre applying for your green card, which is when the public charge or when youre being admitted it he admitted at the border, at that time you will not are not likely to have been receiving benefits for have the option. My only point is not that is that when we talk about disenrollment and people leaving medicaid, it shouldnt be its not people affected by the rule. Its not at the moment that theyre applying because they wont have been eligible. Its people who are confused perhaps about the rule. But the rule the rule will have an effect, of course, because its predicting going forward. What about a person who has been in the United States in the past and has received these benefits, and then has left the United States for a period and then returns and seeks admission at that time . Your honor, that is perhaps an example of someones past benefit use but if it was many years in the past that would be considered. It depends on the amount, the type of benefit of course and all of that and if circumstances have changed, but, yes, and thats perhaps an example of someone. And a green card holder who leaves the country for a vacation and comes back is not regarded as seeking admission. You have to be away for at least six months, is that correct . Yes, thats correct, your honor. So, thats a relatively small number of people, but there are some people who conceivably would have been here long enough to be eligible for the benefits, have taken the benefits, and then because of some need to be out of the country for a period of time coming back in, thats one category. Thats one category, yes, that is true. It makes it sounds like its not very many. That should be a pretty small category, as well. Right. If your honors have no further questions. Thank you, mr. Sinzdak. You have reserved three minutes for rebuttal. Ms. Vale . May it please the court, judith vale for the states and new york city. I will start with why the rule is contrary to the ina and my colleagues representing the private plaintiffs will focus on the arbitrary and capricious and the other preliminary injunction factors. Of course, were happy to answer questions about our particular parties. For over a century, the term public charge has always meant the truly destitute, individuals who are unlikely to subsist without relying primarily on the government in the long term. It has never been understood to mean people who have jobs, who make over the poverty line simply because they may temporarily use any amount of benefits that are designed to improve their lives or get through a shortterm emergency. And the final rule goes far beyond that settled scope of the term public charge and beyond any reasonable interpretation in at least three key ways, by targeting individuals who do work and who make incomes over the poverty line simply because they may use Supplemental Benefits to boost their health or Economic Opportunities rather than to subsist. Two, by sweeping in nominal and temporary benefit use, even for just a few months under the aggregate county system. Just to get through a short period of financial strain. And finally who are the people who are adversely affected by this rule . Who are what are the categories of people who were eligible to receive those benefits and, therefore, took them and, therefore, will be harmed in the future by reason of having taken them . What categories are those . Sure, i want to clarify the people who are affected by the rule is far beyond people who have taken them in the past. So, anyone who is applying for lpr status when i say in the past i mean in the past of a moment where the government has a decision to make about it. I dont mean in the past from now. Sure. Prior to now. I mean prior to an application for something in the future. Prior to an application, lprs are eligible for section 8 without a fiveyear waiting period. They also they can get medicaid or snap, usually after a fiveyear waiting period, or after working for 40 qualifying quarters or becoming a citizen. So, it is true that there are not so many people, except for section 8, theres not so many people who, before they get lpr status, will have probably taken the benefits. However, thats not the definition in this rule. That is one factor. But the definition it transforms it to mean that if an official dhs official thinks you are likely to take any amount of these benefits at any point in the future, even after you are an lpr, even after you are a citizen, when you are definitely eligible for medicaid and snap and section 8, even that is a categorical determination that you are a public charge and the past benefit use is a heavily weighted factor, to be sure would you say as to those people, the prediction would be made, not on the basis of their having taken Public Benefits in the past, but on some other bases . Yes, it would be based largely on the other factors, many of which drive at, for example, pure eligibility for benefits, or english Language Proficiency, or the heavily positive factors that look at whether you make far above the poverty line. There are many ways in which both the definition transformation and the factors go far beyond the established meaning of public charge. And the Supreme Court has made clear in cases like clearinghouse and house and that the agency needs to stay within the scope of that meaning, even if theres some ambiguity or play in the joints and they need to stay within reasonable interpretation. They cannot just abandon the established meaning. And that is whats going on here because the rule will sweep so sweet in with that prediction sweep in with that prediction about benefit use, people who work and make significant incomes over the poverty line, for example can i ask what the standard is under the law for a settled interpretation . I mean, you would agree that this is not the case that one sometimes encounters when interpreting whether you know what a statute means, that congress reenacted the statute after, for example, the Supreme Court had clearly interpreted it to mean x, and now the government comes in and says, oh, you should interpret it to mean not x, and the response of the court says, yes, but congress implicitly adopted the settled meaning because the Supreme Court had said it means x. Thats not this case, right . I agree with that, though i do think there is a settled meaning that had been established, not through one just one Supreme Court case, but through over 100 years of interpretation by the courts and by the bia and the ag in cases like artunian and matter of lopez and those came before the 19999 guidance. And what those cases establish is a scope, certain principles that have been maintained for that time, that we are looking for public charge. We are looking for primary subsistence in the long term. There may be some ambiguity in that, but what you cant do is just abandon that altogether and start targeting people who use benefits that are not necessarily designed and there may be a couple of at least outlier cases that dont fit that consensus . Sure, there might be but youre pointing to a lot of administrative and judicial decisions over the course of a long period of time. Yes. Yes. Although is there is there any case that you can point to where we or the Supreme Court, or if necessary, any court, has taken that kind of view of what is a settled meaning, that is to say, looking at a broad sweep of history there are lots and lots of judicial decisions, there is almost nothing to the contrary. They dont all say the same thing, so its not clear that there is a settled meaning, but there is some clear core to all of those cases and that represents a settled meaning. Is there something you can point to where that the cannon of interpretation that youre relying on has been applied to that kind of situation . Yes, well, i do think the march of cases like gagow and howe from this court in individual cases and announcing these sort of principles. But when you get to cases like hartunian and Martinez Lopez which are bia and ag cases in after a long sweep of cases. 1960sing about in the and 1970s, where theyre saying based on the history of everything that has come before in Martinez Lopez they said a public charge is not somebody who is an able bodied person who can work simply they might take tomorrow Public Benefits. So youre saying that those are cases that might support a conclusion that there was a settled meaning. There might be Supreme Court cases but there are cases of the Administrative Agency charged with interpreting the statute, to which the settled meaning rule applies that would establish a settled meaning. But i guess thats a slightly different proposition than the one i asked about. I wasnt asking you if there is something that looks close enough to the paradigm, wonderful case where the Supreme Court has decided something and then congress reenacts the same statute the next day. Im asking, do you have a case where the settled meaning rule was applied to Something Like what you started with, which was not, were hanging our hat on hartunian, but if you look at 100 years of history, 100 plus years of history, all the cases established at least some common core. And then congress throughout that period is reenacting the statute. Is there a case like that where a court has said oh yeah, that interpretation cannon applies there . Well, i mean, i think a lot of the court cases are from a little bit of an earlier era. Im not asking i think youre misunderstanding my question. Im not asking what kind of case supports your view of the of what the settled meaning of public charge is. Im asking, is there a case in which a court has applied the cannon of interpretation oh, as a general principle, yes. As a cannon of interpretation to this. I did misunderstand, yes. This is a very good example of this exact principle. There, it was the term visitation rights for banking institutions. And the court said this is a term that has a very long statutory history, a very long history of various courts saying various things. And what we can glean from that is that theres an established scope for this term and the agency is far outside the scope and so that fuelled chevron step one. And i think cases like utility air are not exactly what youre saying, but is another example of a scope or reasonable i justn for wanted to know is there a particular case i could look at that would be helpful in deciding whether youre right about how the settled cannon works . Yes, apologies for that. And i think to further illustrate that we are in a place where it goes outside like in clearing house, we do know that many people are eligible for these benefits who work, who take them. More than 60 of nondisabled adults work, many of them fulltime. It depends on the area of income. But in new york city, you can qualify if youre making up to 53,000 a year. And once you qualify, you can retain your benefit up to 83,000 a year. Hats in the joint appendix and s. N. A. P. In 2017, 58. 7 of households who did have one noncitizen in the household also had incomes. What these measures show in part is that congress developed these programs to not just provide basic assistance, but also invest in people to help them simply improve their health, their nutrition, and Economic Opportunities which is good for the recipients, but also for them to be able to contribute more to the work force and the economy, which goes back to the purpose of public charge, which has always been, yes, to exclude those who are truly destitute and want people to work and contribute, but to encourage and give some help to those who can come and contribute, even if they might earn relatively modest wages. And another way in which this goes far beyond the scope is the temporary use point that the aggregate counting system makes it so that if a official thinks if an official thinks you are likely to use benefits at any point in your entire life, thats enough to make you a public charge. And what that means, its not that the official is going to predict whether or not youre going to get nay car accident. What they need to predict is do you have so much financial strength right now, when you apply to a job, that you can basically know that you wont ever need two months two benefits for six months just to get Something Like a sudden job loss, even if you are somebody who is likely to get back on your feet very quickly. And in 1996 and the interpretation in a lot of these cases that youre referring to over the history is actually rather more striking than even youre suggesting. Its not a question of is this someone who has sufficient resources that theyre likely to get back on their feet. If they suffer a temporary setback. Its an ableuch, bodied person there may be no depression. There may be no jobs out there. But this is not somebody who is disabled from work. So, let them in. Thats right. I mean that was the good gal case. I think in many of these case, the folks who were not public chargers had very little money, sometimes didnt speak english, but they were able just to show im not likely to be institutionalized. I am able bodied. Im healthy. Im here and ready to start working. And that was enough. What do you make of congresss response . Im not sure i understand the response. It sounds Like Congress said something that sounded like some kind of disapproval of that because they moved the public charge from the place it had been that contributed to that Supreme Court decision to somewhere else. They did make that move in 1917, but this court made clear in the iorria case was that they did seem to one to change the idea that an external factor a severe depression, wouldnt be considered. But what they didnt change was the idea that whatever factors youre going to consider, whether its Mental Health issue thats personal or extreme depression, those have to lead to youre likely to be primarily dependent in the long term. So, whenever congress that all ofiffs these things that, a large number of things that the government, dhs have said are predictive arent really predictive . That is one of the arguments. Theyre not really predictive. But i think one of the reasons theyre not predictive is the real nature of the programs themselves, what congress did with these programs, how the benefit agencies have understood the programs. I refer you to the public us j justice center, which i think goes through some of this in great detail. And you can see also how broadly this rule is going to go and it is going to have real bite for many people. This is a transformational change from the past 100 years, about 1 or fewer of lpr applicants have been deemed public charges, but 40 of the new york city population uses medicaid. 20 uses snap. 94 of noncitizens have at least one negative factor. 42 have at least one heavily weighted negative factor, and 100 of lpr applicants applying for lpr status, which is now a negative factor under the policy guns. Guidance. Dimensions three things you thought were problematic. You never got to the third. The third was going to be the receipt of noncash benefits. This is something you think is inconsistent with the history . The third was the categorical nature of this, the prediction that as long as they predicted for any point in your life. The cash, noncash i dont think the caching kind is really a distinction that necessarily drives this. There is inkind benefits like longterm institutionalization. That was the thing i was going to raise because i thought there was an argument being made that one of the problems with this regulation is that counts noncash benefits. And that puzzled me for exactly the reason you just suggested. Its not noncash. I think thats just a loose term that gets used sometimes. It is not that distinction that matters. What matters really is the program that congress designed is about. And what we call cast benefits cash benefits like ssi are designed for those who usually, almost always make less than the poverty line and usually do need that cash assistance to subsist, just to have income to survive. Whereas Supplemental Benefits, there may be some people who use Supplemental Benefits in combination with cash assistance to survive, but there are also many people who dont, who take the Supplemental Benefits simply because theyre entitled to, simply because even though they make over the poverty line, it will improve their life to take a supplemental benefit. Someone might be able to afford an apartment in one neighborhood, but use section 8 to get to a neighborhood that is closer to their job or transportation. To put theht be able Bare Necessities of food on the table but you snap to buy fresher produce and more nutritious food. What that shows is that benefits have changed over time but not necessarily the way the circuits defendants in the ninth circuit order. Congress has expanded benefits, made them available, and that continued through even to 1996 when congress had a very clear choice about what to do. Congress had a choice. It did have a Public Policy concern about selfsufficiency and incentives to immigrate. And what congress chose to do was to address that through very detailed and specific provisions about eligibility. Affidavits of support, and what congress affirmatively rejected was the idea that it was going to change the meaning of public charge. It actually rejected a proposal to do just that, almost exactly what dhs is trying to do now. And that proposal was not something that died in committee attention. Ot it passed in the house and got to the senate with the threat of a president ial veto because there was certain that this was going to far in attacking Public Benefits. Cases like Brown V Williamson have made clear that an agency does not have authority when Congress Rejects one regulatory path, the agency does not have authority to come back and try to just do it itself. And one of the sort of sweeping problems with a lot of these arguments about the various 1996 provisions is that it is using hidden meanings and inferences to try to draw a really vast transformation in Immigration Law and benefits law. If thats what congress wanted, if it happened that kind of transformational change, it would have said so directly. It had every opportunity to do so. It knew how to do so, both because it rejected proposals to do that in 1996 and 2013. Its clear they knew how to talk about different kind of benefits when they wanted to and to draw these kinds of distinctions very carefully when they wanted to. The proposition you are relying on in your last statement seems to me to be quite tenuous. There are so many reasons why Congress Might not adopt a provision, and it seems to be hard to justify the proposition agency a new interpretation or a new rule, agency rule, whatever, is otherwise within the power of the agency to adopt, that it should make a difference the congress at some point in the past had faced the same question and not adopted it. The reason for the failure to Pass Congress and the previous session might have been because of the inclusion in the same bill of some other provision or the 1000, unlimited number of reasons why something didnt pass. And if the thing is under the power should it matter that congress at some point in the past did not adopt a similar provision . I think it is at least one piece of evidence as to what congress was thinking, particularly when defendants are using the 1996 act to say that Congress Must have meant all of these things. I think it is important to realize that Congress Actually rejected that approach and did something affirmative. They enacted very specific provisions to address the policy concerns, and the policy statements that the defendants rely on actually specifically refer to affidavits support as and benefits eligibility as the thing that was going to do at that time. Lets make clear at least one of your points is that whatever else is true, the fact that congress specifically rejected a plan to do what the agency is now doing undercuts the argument that we should draw from the things that congress did do at the same time that it decided not to do this, that doing this is what they really wanted, and thats why thats an affirmative reason supporting the legality and appropriateness of the agencys action. Yes, absolutely. But youre trying to make also a broader argument. But i did want to make that distinction, that thats one point and then youre making a second point that you think at least that in the context of the whole sweep of the history, et cetera, et cetera, Congress Decision not to do this lends some further support to the idea of application of the settled interpretation canon. Yes. Thats absolutely right. Not to draw those inferences. And ill just further add to that, that at that 1996 point, congress was making these choices when there was over a hundred years of established meaning. It was aware of the meaning. We know that from the 1992 legislative history and there was just so much law on this, including the 1999 guidance not the 1999, but including the bia and ag decisions that congress was adopting the established meaning of public charge yet again while making these other affirmative charges. But then the next thing is the 1999 guidance comes out. And for two administrations of two different parties, nobody says oh, my god, this guidance is inconsistent with what congress obviously wanted in 1996. But for the failed effort to change the law again in 2013, Congress Certainly doesnt come back and say what are you guys doing . This is inconsistent with what we specifically did in 1996. Thats absolutely right. And the 1999 guidance came out only a couple of years after the 1996 law. And the 1999 guidelines im not saying they can ever change guidelines were kind of a capstone of all of this history that the 1999 guidelines say they were reviewing all of the history and case law out there drawing on the principles to reach the primary assistance. It is, as you say, fursirst as you said, first of all, a guidance and not a notice in rule making. They could change. I agree with that. I think it is yet again another piece of evidence as to how the agencies have been interpreting 1999, butot just in all along. I think 1999 was the culmination of how the agencies had been interpreting it for a long time. Lynchsswer to judge question, after some confusion, you gave him two cases answering his question. One was utility air. What was the other . Cuomo v clearing house. Thank you. I believe it is cited specifically in the house of representatives. Thank you. Mr. Horowitz. Thank you, your honors. Jonathan horwitz for the plaintiffs in the make the roads case. I want to add one case to the question that judge lynch asked about cases from the Supreme Court applying the notion of separate interpretation. The brown and williamson case is also in that category. I would like to address the harm question and the harm that will be done by the rule. There were some questions earlier on, particularly in the governments presentation, and i would like to try to clarify some of the points that were made there. The District Court found that the rule will expose individuals insecurity, wealth instability, and the denial to path to citizenship and potential deportation, finding this uncontested. The dhs concedes itself that the rule caused hundreds of thousands of noncitizens to forego benefits to which they are lawfully entitled including food, nutrition, and housing. We think it greatly understates the severity, but thats dhss estimate itself. Now, to clarify forego the benefits. Mr. Horowitz so, most of those people, your honor, are not people who are subject to public charge. Most of those people because most people who are subject to the public charge rule do not have lpr status, of course, because its a rule that applies to getting lpr status. And most people who are subject to public charge and do not have lpr status are categorically ineligible for the benefits at issue. There are always exceptions, but thats generally speaking the case. What youre talking about here is people who in large measure for a variety of reasons because of confusion about the nature of the law, because of confusion about the benefits, choose out of concern for their immigration status not to accept benefits to which theyre entitled. Parents its not because the rule is has acted to bar them some way. Mr. Horowitz but your honor, its a predictable consequence of the rule. Dhs itself predicts that the expert reports that weve submitted in the record predict that the American Medical Association predict that i dont think theres any question in that prediction is based on we know that thats going to happen for at least two reasons. One because when the law changed in 1996, there was evidence of an enormous Chilling Effect just in the same way. Many, many people who were not obligated to forego benefits chose to do so because of uncertainty. And then more recently in the leadup to the publication of this rule, we know that many people withdrew from benefit programs or chose to forego benefits. I think theres a study that said one in seven immigrants, one in seven noncitizens is in a family that chose to forego benefits out of concern for the rule. So, the rule has that predictable consequence and the census case, for example, tells you that the court properly considered those predictable consequences of the rule. I think im correct about this and maybe its totally obvious. I just want to make sure im right. This whole rule applies only to people who are seeking to immigrate to the United States legally. Mr. Horowitz mr. Horowitz it only applies to people who are either seeking to immigrate legally or who are here and seeking lpr status legally. Thats correct. In large part, this rule, the dhs rule, applies in most cases directly to people who are here in some other immigration status and seeking to adjust so that they have a green card. Judge lynch right, so people who are availing themselves of an opportunity otherwise available to legally become residents of the United States. Thats correct. If youre here and youre in an undocumented status, this rule doesnt apply to you. Judge lynch right. And does it apply to people who are applying for temporary visas, whether tourists or work visas or Something Else . Mr. Horowitz it does. What were challenging is the application of the rule to people seeking status. Leastlynch i take it, at as to tourists and people of that sort, theres already a provision that if it is predicted that theyre going to overstay because they dont look like tourists, they look like people who want to be here forever, thats already something on the basis of which the their application could be denied. Mr. Horowitz i believe thats right. Judge lynch that would subsume anybody who might be expected to try to get, to overstay and switch to green card status and then need benefits. The very fact that youre already thinking thats going to happen because theyre going to apply for green card status someday is a reason to turn down their tourist application. Mr. Horowitz this rule is to be clear, this rule is not about predicting whether someone will overstay. Thats absolutely correct, your honor. The people to whom the rule applies because they are seeking a green card, are you saying the adverse effect on those people is not the part about having received benefits in the past, but other predictive factors. Mr. Horowitz generally speaking, thats right. I will say one other thing. There are for example state benefits to which people who are not lprs have legal access. For example, in new york there are medical assistance. Those arent counted, but many people understandably are confused about whether what they are receiving is federal medicaid or state medicaid or states such as new york and california that tend to merge those things together. So, from the users perspective, you may not know whether you are in the federal Medicaid Program or an entirely statefunded program. So, for those people, to the extent that theres confusion about just which program theyre in, it can affect them as well. Judge lynch i guess i should ask the government this, but i would think it would be very strange if you had a rule that said you are trying to predict whether someone is going to apply for any of these federal benefits that it would somehow be not negative in some way under the totality of the circumstances that they had been receiving state benefits in the past. Mr. Horowitz right. And they do, in fact, ask. The form asks for those benefits as well. And the rule says were not considering it. Judge lynch the rule says theyre not supposed to consider it. Mr. Horowitz the rule says youre not supposed to consider it, but when you fill out the form, theres a long very detailed form you have to fill out when you make your application. And that asks for all sorts of benefits that the rule says that the dhs employee who looks at that form is supposed to ignore. Now, id like to contrast that harm with the total absence of concrete harm to the government here. What the injunction requires the government to do is simply continue providing the field guidance thats been in place consistently since 1999 under standards that we submit have been the law for more than a century. The injunction does not prevent the government from denying status adjustment case by case to anyone deemed likely to be a public charge under the standards of the field guidance. Theres no claim of concrete harm here if the injunction stays in place while the litigation is pending. Theres no claim of emergency, National Security interest. There is no claim of changed circumstances since the geithner was published the the government concedes the field guidance was a lawful exercise of the governments discretion, the agencys discretion. So, the government can see that the field guide would be an entirely proper way for the to assess applications for lpr, which indeed this administration has done. Judge lynch were in an unusual position that if we were to decide the injunction should be affirmed, it would not have any effect at all, at least in the short run. Any such rulings have already been stayed by the Supreme Court. Mr. Horowitz no immediate effect. There are, of course, many ways in which this can play out. An opinion that the Supreme Court did not consider the case and vacates its stay judge lynch well, you write such a great opinion that the Supreme Court decides not even to consider the case and vacates its stay. Mr. Horowitz were confident of that, your honor, yes. Judge leval the District Courts injunction, is that in your portfolio . Mr. Horowitz i would be happy to respond to it. Judge leval im very dubious about the proposition that a district judge in one district and necessarily in one circuit can issue an injunction which will continue to have force even if courts, which we will say in the Second Circuit this happens, a district judge in the Second Circuit issues an injunction and that injunction by its terms will prevent a Government Program from going into effect in the 9th, 10th, 4th circuit not withstanding that the courts of that circuit may decide the opposite way. Mr. Horowitz i acknowledge for the reason judge lynch indicated that the practical consequences of this issue with this case is probably going to be limited. Mr. Horowitz judge leval im talking about if i would be asking this question regardless of whether the Supreme Court had rendered that mr. Horowitz absolutely, absolutely. I think its properly before this court. Two things i would say about that, maybe three. One is section 705 of the apa expressly empowers the court to postpone the Effective Date of an Agency Action while a dispute about the legitimacy of the action is pending before the court. Judge lynch theres no geographic limitation . Mr. Horowitz theres no mention of geographic limitation in the statute. Thats correct, yoernur honor. Section 706 authorized the court to set aside unlawful agency i understand your answer about 705. But nonetheless, how is it appropriate for a District Court to say i dont care what the court of appeals in the 7th circuit and 4th circuit and all the others say. Nationwide, this is stopped for those circuits as well as the one that im in assuming that my court of appeals affirms me. Mr. Horowitz right. Well, i guess a couple of things about that. One is its the nature of our judicial system that challenges to Agency Action come before particular District Courts in particular circumstances. Congress has authorized the District Courts to take that action. Judge leval yes, but its perfectly possible to craft an injunction in a manner that will have effect initially nationwide but then will cease to have effect in some other circuit if a court of that circuit decides to the contrary. I understand how its appropriate to start out with a nationwide injunction, but my question is why should the a waytion be crafted in that it continues to have effect, not withstanding the districts of the other court disagree and say no, this is fine. Mr. Horowitz i mean, to be fair, i dont think that happened here. The District Court did what it did. That was before and at the same time that the District Court here enjoined the rule, every other court faced with the rule also enjoined the rule. The first time that the court decided the rule judge leval you didnt know how the other courts are going to turn out. Mr. Horowitz sure. Judge leval and the fact that the rule is being challenged in District Court took it as a factor favoring nationwide injunction, that it was being the rule was being challenged in numerous other districts in other circuits. That seems to me to be a factor in the opposite direction to the extent that this is coming before the court of another circuit. Thats less reason, not more reason, for me to make a ruling that will govern what happens in those circuits. Mr. Horowitz sure. And i think to be clear mr. Horowitz particularly beginning at the moment when those other circuits make their own decision. Mr. Horowitz sure. And i think what a District Court should do, and we think the District Court here did that, is consider what the scope of an injunction is that is necessary to afford complete relief to the plaintiffs in that case, taking account of the authority it has under section 705. Im not saying that the court always has to act nationwide under section 705 with the authority that it has. And i think its appropriate for the District Court, as it did here, to consider what is necessary to afford the plaintiffs relief. Judge lynch i know this is not what you want to spend your time on because in this case, its got virtually no significance anymore. But we are still being asked to affirm the decision of the District Court and this issue of nationwide injunctions is significant to the rest of the world, if not necessarily in this particular case independent of the context of this case. So, i do have this one further question. Ill preface it by saying i levals point very clearly. I dont know that there are many injunctions that have been crafted in the way that he suggests. There may be precedent for that, i dont know. , would be, at least initially hard put to call it an abuse of discretion for a judge not to think of something that nobody else thought of it in the past. My question is lets assume that judge daniels acted appropriately in light of the way the District Court trends were going and in light of whatever the state of history is with respect to whether other courts had adopted a rather more elaborate kind of injunction. By the time we are here and we know what has happened in some of the other circuits, its not for us simply to decide looking at it from the vantage of where judge daniels was did the District Court abuse his discretion. Would you agree that its open to us to address what the appropriateness of a nationwide injunction is now in light of what other courts have, in fact, done . Mr. Horowitz i think this court certainly could do that. And this court, i think certainly could consider what other courts have done in deciding what the scope of an appropriate injunction is, yes. Judge lynch okay. I know you want to talk about other things than this. Mr. Horowitz if i can take two minutes on arbitrary and capricious because there are two points that came up earlier in the argument that, to my mind , illustrate well the arbitrary and capricious notion of the deal. The first was the notion brought up by the court about whether or not you can fairly equate someone who receives benefits or is eligible for benefits with someone who needs benefits. And the arbitrary and capricious aspect of this is im not aware of any evidence in the record that the agency had in front of it that people who received benefits for the time and in the manner in which the agency says trigger a public charge finding that those people predominately exclusively need those benefits. And the record given the small amount of benefits that can trigger a public charge finding the amount of time, the level of income that people can have to be eligible for benefits suggests quite the contrary. The second point i want to make about judge leval some have problems with the word need as we discussed earlier. Mr. Horowitz thats absolutely right. Need is the agencys word. It is not our word. Need is the agencys term. And that problem is multiplied by the way in which the agency aggregates benefits. So, the agency, when it presents its rule, it says well, if you are projected to receive benefits for 12 months out of 36 months, you are considered a public charge. But then the agency aggregates benefits. So, it says if you receive two benefits, then the time is now six months. And if you receive three benefits, its four months. So, under the agencys rule someone could be branded a public charge merely because they might in the future or likely in the future to receive assistance for as little as three or four months after losing a job or otherwise being subject to life. That again is contrary to this agencys stated view that short term and intermittent access to Public Benefits should not lead to a public charge finding. 41, 361 of the register. Again, no evidence in the record the agency counts it as 12 months when they then went in the small sprint and said its really 12 payments, even if they are compacted into four months. Mr. Horowitz i dont have an answer to that question, your honor. Its a good question. And again, no evidence that receipt of multiple benefit oefrs three or four months indicates a lack of selfsufficiency. And then the last point i want to make is English Proficiency which was brought up earlier as well. Dhs tries to justify the use of a lack of English Proficiency as a negative factor as a strike. Citing the applicant by evidence a claims shows nonEnglish Speakers are more likely to be unemployed in English Speakers and likely to receive benefits than English Speakers but if you look at the data, regardless of which category of English Proficiency you fall into, the vast majority of the people in that category do not receive benefits. And as the data that was published in the Social Security rule shows, the vast majority, over 90 of people in every category who were of working age in fact work. And that as Social Security found, its clear from the data they had, that theres no material difference in terms of employment between people who speak only english, people who dont speak english well, and people who dont speak english at all. And the reason its that, the dhs cherry picking of data on that point and ignoring relevant data that makes the rule arbitrary and capricious on that. Judge lynch tell me what we are supposed to do if we find elements of the rule arbitrary and capricious. You focus on that english language provision and i realize this is part of a broad brush attack where you are saying there are all kinds of things that are arbitrary and capricious. But suppose we were to agree that counting english Language Proficiency as a negative factor is totally capricious because even if whatever the numbers are, 90 of people who come here without being able to speak english will work and be selfsupporting, but 93 of people who come speaking english will, but the point is you cant use that to say that all of those 90 are likely to become a public charge. Just take that as one example. If there were one of the pieces of this that were arbitrary and capricious, that would not require the entire regulation to be invalidated, would it . I mean, to the extent there are specific rifle shot problems with particular pieces, do we have the authority to say, well, those pieces are arbitrary and capricious and should drop out of this . Im not aware of a this . Mr. Horowitz im not aware of a case that has said that and what the courts as far as we can tell routinely do in finding that a rule is arbitrary and capricious in whole or in part is to remand to the agency rather than to rewrite the rule. Judge lynch because theyre the ones that have to figure out if this is a keystone to the whole problem. Mr. Horowitz right, exactly. They can decide if the Court Decides that, for example, that the only problem with this rule and our view its far from the only problem but if the Court Decides it relates to English Proficiency, it should be up to the agency to decide in the first instance to decide what to do about that. And, of course, in the interim, it should not be implementing the rule. It should not be using the rule. Thank you mr. Horowitz. Mr. Horowitz thank you, your honor. May it please the court, i before i begin, i would like to thank the court for granting the house argument time in this case. We covered a lot of ground this morning. I hope to not take up too much more of the courts time. What i would like to focus on is the congress that reenacted the term public charge in 1996 cannot have intended to allow the executive branch to rewrite the term in the way that it has attempted to do. And there are a couple of reasons why we know that is true. The first was discussed by my colleague. That is when congress reenacts a particular statutory provision that received a settled meaning over the course of long history, we know the congress intends to adopt and Carry Forward that meaning and the court need not just look at the history of interpretive decisions although we think that those are squarely supportive of our position. But the court should begin with what the Supreme Court has said ofthe fundamental canon statutory instruction, that you look to the meaning of the term when it was first enacted. In 1882, congress enacted the public charge. I dont think there is any serious dispute that that term was a term of art that meant someone whos primarily dependent on the government. It typically applied to wards of the state, indeed the text of the statute in 1882 was someone, unable to take care of himself or herself without becoming a public charge. Congress told us what it thought the term meant in 1882 and it has meant the same thing since. And i think that at that time, benefits were talking about now were not available, were they . Mr. Havemann that is in part true although of course there was the immigrant fund which contemplated that immigrants who arrived here would need some temporary support. We think thats another congress cant have meant small amounts of welfare received over a temporary period of time would make someone a public charge. But it is by and large true that the primary means of support for noncitizens was support, you know, by virtue of institutionalization, but that is, again, strongly supportive of our point because all of those ways in which the government provided support for noncitizens at the time were ways in which it primarily supported noncitizens. So, congress cant have contemplated that temporary small amounts of support would qualify. Judge lynch what do we make of the fact you say the meaning of public charge is informed by the original text of the 1882 statute. But that text was changed, right . Originally, it did say im sorry. I had it here a second ago. You just quoted it. People who are unable to take care of themselves without becoming a public charge. Mr. Havemann right. Judge lynch unable to take care of themselves without becoming a public charge. But then that unable to take care language came out. Mr. Havemann thats true. It came out because congress amended the statute to provide for a prospective inquiry, a predictive inquiry. It changed it to someone likely to become a public charge. So, instead of as in 1882 judge lynch yes, but that doesnt change the fact that they could have said that were predicting what we want to predict is someone who will be unable to take care of themselves without being a public charge. It just skipped to public charge. Mr. Havemann right, because at the time, it was well nood that public charge was a term of art. Judge lynch already had that meaning. Mr. Havemann so, it was unnecessary to spell it out in any great detail. That is by and large the answer to many arguments about why of dhss arguments about why didnt congress amend the statute to define the term because the term had a wellunderstood meaning and congress didnt think it was necessary to do so. My colleague identified two or maybe three cases that he thought supported his reading of the statute over the course of the last 138 years. None of them actually support their interpretation. You discussed the matter of b case. Theres also, i think you referred to a turner case. That was the case in which i think the quote is this is a person who was possessed of no property from which he can derive income. He suffered a condition that will get worse over time and when suffering from ailments he will likely be incapacitated from work or earning work for himself and his family. And there was a reference to i think what was the diamond case which was a District Court case from 1925 where the person admitted at the hearing that i have been dealing in booze, bootlegging, breaking the law. I might as well own up to it. I couldnt live and support my family otherwise. These are the best cases dhs can come up with. In the course of more than 100 years of precedent and theres not just absence of support for its interpretation. Theres affirmative case law rejecting its interpretation. That was a case when someone was receiving welfare at the time of their hearing and and the bia said no, that is not enough alone to render someone a public charge and that just cant be consistent. Judge lynch then what do you make of mr. Simms point that both congress and to some extent the agency in the guidance that there isnt a settled meaning . What do we make of that . Mr. Havemann i understand those statements by congress to suggest that this is a case by case determination. And when congress declined in the ina in 1952 to create a definition, it said it happened to be done by case by case adjudication as it had been done since 1882. And it said we dont want there to be a strict definition of public charge because this is the totality of the circumstances approach and its hard to predict x and t, all of the factors that may be relevant in a particular case. I understand its a Senate Report, so take it for what its worth. But if the Court Considers it, i think it does not support dhss view that it can adopt a strict definition of public charge which is what congress itself declined to do in 1952. And i think i do want to get to a few of the points that my colleague made with respect to the decisions that congress made in 1996. Of course, in 1996, congress was considered with noncitizen selfsufficiency. But congress does not pursue its policy goals at all costs. And the way the congress dealt with this issue was by making noncitizens generally ineligible for Welfare Benefits with exceptions. And one exception was lprs who have been here for five years. And dhs does not have a good explanation as to why congress would make noncitizens eligible for this raft of benefits if congress thought any of these the receipt of any of these benefits was enough to make someone inadmissible at the outset. And i think that this sort of highlights a perverse result of the logic of this rule and that is that the more generous Congress Opts to be with respect to granting particular classes of noncitizens eligibility with benefits, the more discretion dhs has to then exclude that class at the outset and i think this is illustrative of what congress did in 1992, congress in 1996 generally made noncitizens ineligible for food stamps. After six years under that regime, congress had a change of heart. It saw the negative Public Health consequences of that decision and said no. Noncitizens who are lprs who have been here for five years should be entitled to food stamps. It is inconceivable that the congress that made that decision in 1992 thought that what it was doing was allowing dhs more discretion to exclude noncitizens at the outset by virtue of the fact they were able to receive food stamps and at some point of their stay here and thats true because the field guidance was in effect at that time when congress made its decision in 2002. The last point i want to make which is one that again my colleague made but i want to emphasize is judge leval, you had indicated you asked how many people would be affected by this rule. The answer is that the rule is transformative. Because of course, its not just that you look at the class of noncitizens who have received these benefits in the past. The purpose of the rule is to make a prediction about who is likely to receive these benefits at any point in the future. And we dont know exactly how many people that will apply to because of course it just took effect. Its predictive. But we know that in the past this rule has applied to about 3 of people who apply. And we also know that what aspect of the rule up lies . Mr. Havemann sorry. It has applied to exclude. It has applied to exclude about 3 of applicants under the public charge. Judge lynch the public charge rule leads to the exclusion of singledigit 1 , low numbers. Mr. Havemann the numbers are difficult because multiple agencies administer the rule, but it has always been, since 1882, a very small percentage. Judge lynch is that on the basis of having previously received these benefits . Mr. Havemann in the past . No, because the rule in the past was not, but the receipt of benefits was enough to make you a public charge. In the past, it was dhs was looking at a particular candidate and they were asking is this person likely to depend on the government in the long term . Thats what they were asking and the answer to the question yes in about 3 of cases. Now, in the future, we dont know how many people it will apply to. But we know approximately half of the u. S. Born population of this country at some point in their lives receives one of the benefits, s. N. A. P. , public housing, medicaid that is enough under the dhs rule to label you a public charge and allow dhs to exclude you at the outset when you apply here, about half. And this is a transformational rule. And of course when this court is looking to a claim of chevron deference of the things the likelyourt asks is how is it that congress intended to give Administrative Agency authority to make the change that it is attempting to make. It is very unlikely that congress in 1996 would reenact with the same provisions that appeared in the law for more than 100 years requires a wealth requirement for people seeking to come and settle here. That is not what congress had in mind in 1996. Im happy to answer any other questions. Mr. Havemann judge leval i have a question about the definitions. The likelihood of becoming a public charge renders one inadmissible, right . Mr. Havemann thats right. Judge leval now, can one be inadmissible what are the consequences of being inadmissible . Mr. Havemann the consequences of being inadmissible depends on it depends. If you are seeking a visa to come to this country, i believe you cant get the visa. If you are already here and you are seeking to adjust to lawful permanent resident status, you cant adjust your status. Judge lynch folks looking for a green card, whether they are applying in the first place abroad to come to the United States as an immigrant, not as a tourist or some other temporary status. Mr. Havemann right. Judge lynch anyone in that category whos seeking to become a permanent resident, this applies to. Because they have to be admitted to the United States . Mr. Havemann correct. Judge lynch and anyone already here and is seeking for whatever reason to adjust possibly from some other perfectly legal status to green card holder, that counts, even if they dont have to physically leave the country and come back as some people do is my recollection. But even if they are allowed otherwise to adjust their status by staying in the country and applying for a green card, they are considered to be applying for admission even if theyve already been here for years and years . Mr. Havemann correct. Judge lynch so, anyone whos seeking permanent residence status is subject to this rule effectively. Mr. Havemann right. Judge leval can you become inadmissible when you have a green card . Mr. Havemann i dont know the answer to that question. I know that its very complicated. I hope that its an answer to your question to say that there is a different public charge provision that renders you deportable. That is if you have been found to have become a public charge during the five years after your admission to the country, then you are deportable as a public charge unless you can show that the reason you became a public charge wasnt foreseeable at the time of your admission. And dhs i actually think the doj implements that statutory provision and they havent changed it. That statutory provision, the deportability provision is under the 1999 field guidance. Judge lynch so, is that part of this rule . Mr. Havemann it is not. Judge lynch but it is the case that someone who has a green card and leaves the country for more than, i believe, its six months, but for some relatively lengthy period is regarded as seeking admission when he or she returns to the country not withstanding their green card and this rule would apply to that presumably relatively small subset of green card holders. Mr. Havemann yes, that that is right. I dont recall the specific number of months. I do believe it is a number of months and that qualifies as admission even if you have already been admitted. Judge lynch the Immigration Law is filled with words that dont mean what you would think they mean. Mr. Havemann yes. Ive noticed the same thing, your honor. Thank you. Excuse me, i apologize. People get us confused, your honor. Not too much longer. Just a few more points. To clarify, refugees are about half the people that apply for green cards. They are not in part of the rule, but a point to hit on, the acceptance of this canon is about congressional intent. We know congress surveyed the landscape and concluded there no establish meeting for this term and ruled to not adopt one. Guidance and so forth. As this court recognized that as out, congressame overruled it by removing the statute. Not just our court, but lots of quartz seem not to have congress did intend that to be the change. The courts did not notice. Some didnt, i agree, there was some confusion over that. There was a Senate Report saying why they did it. So, in any event, i also want to talk a little bit about the 1996 proposal. In terms of congressional intent, obviously dangerous to rely on rejected proposals. Here the Senate Passed the bill. I believe the house had passed something similar in an earlier bill and plaintiffs note the president that objected and then congress didnt turn around and adopt a narrow definition. It left the term undefined. And so i think taken from that is that it intended to retain discretion for the executive branch. You know, just in general about congress allowing benefits and authorizing them, congress can define the term public charge any time it likes. It can also, as it has done in the past, respect battered aliens with respect to amnesty programs. It can say were making people eligible for these benefits. They are not to be counted toward public charge. Its done that in the past. It can do that again. And just finally one point. I think the point was made that 50 of u. S. Citizens would qualify. Thats inaccurate. As a statistic, its inaccurate. The study, in fact, said it cant say how many would meet but12month threshold, aliens are subject to any number of requirements including vaccination requirements and others that u. S. Citizens are not subject to. Judge lynch i hope thats not their point because if it is you would be completely right that congress can make rules that would apply to aliens dont apply to citizens. But i dont think thats the point theyre making. The point theyre making is if as many as 50 of the people in the country and i take your point about the 12 months. At some point in their lives rely on or at least accept or receive these benefits. That does suggest that its a rather dramatic change to go from a rule that has been applied for a very long time in such a way that a very tiny percentage of potential immigrants are found to be public charges to one that potentially could lead to the exclusion of as many as 50 or maybe more if its true as the regulations presume that people who dont speak english or who are otherwise new to this country are more likely to take advantage of these benefits. That is a pretty striking change, is it not . Mr. Sinzdak your honor, i agree that it is a change. Obviously its a change. The agency, though congress was quite clear. I know there are counterarguments that in 1996 it did not want aliens relying on Public Benefits. It wanted them relying on their own private weve covered that. Judge lynch im thinking more of the 1952 codification and the fact that congress said, well, we would just as soon leave this where it lies rather than create a hard and fast definition of public charge. Its a little bold to say that what they intended to do was to leave it to the executive branch to make exactly that decision to have a hard and fast decision, definition, and one that potentially would multiply by a factor of 10 times or 20 times the percentage of people who are subject to this exclusion. That doesnt seem exactly to be supported by the idea that its working well enough the way it is. We dont need to have a hard and fast definition. Lets leave it to totality of the circumstances. Thats a far cry from what this rule does, isnt it . Mr. Sinzdak well, i mean, i guess my main response would be in 1950, the congress made clear it was leaving it to the discretion. And there were sources i know we talked about the cases already. But the treatises that provided a much broader definition and congress said, you know, we recognize different courts that applied different standards and even in close proximity to each other, and were not going to define the terms. I think congress understood they had a broad interpretation and was leaving it up to the agency or the executive branch to determine how far to extend. And the only question here is whether under the 1996 law, whether this is a reasonable interpretation of congresss intent, and we believe it is. Judge leval you didnt address the scope of the injunction. Mr. Sinzdak yes, obviously we disagree that a nationwide injunction is appropriate here for the reasons your honor has already mentioned. Its inequitable and perfect example that it should go into effect in the District Courts injunction. If it werent stayed, would have overruled the rulings of those courts. Its also not required by the apa, the apas equitable release. Equitable defenses can be caseposed even in an apa and so forth. If this District Court said something to the effect that there was need for a uniform interpretation of the Immigration Laws, what about that . Mr. Sinzdak your honor, that is up to the agencies to decide on that. In fact, i would point out that until last monday, the rule was enjoined in illinois and dhs was prepared to implement the rule differently in illinois. As i noted, congress itself noted judge lynch went to the Supreme Court. Precisely the argument that it shouldnt have mr. Sinzdak on the merits and so forth. It wouldnt have been impossible i guess is what im saying for dhs to have done any they still carried it out and it was their determination. Congress itself in 1950 recognize there were different interpretations and different localities and so forth it didnt have a problem with that back then. So, yes, we strongly assert that if this court were to affirm, which we dont think it should, but if it were, it should limit the injunction to the plaintiff state. Generally speaking, we do not have a uniform rule of anything. Mr. Sinzdak thats true, your honor. Supreme court irons outs differences. Mr. Sinzdak agencies apply different rules and different circles in different circuits. Thank you, your honor. Judge leval thank you all, for well argued, helpful arguments. Thank you for coming up. We are going to take a short recess, and allow the masses to disperse if they are so inclined, but allow microphones and cameras to be removed, so we will be back, and we will be hearing the argument, the united so if counsel want to be at the table, that would be great. Monday night on the communicators, the former fcc commissioner talks about ways to reduce hate speech and extremism online. Companies, when they find terrorist content, they will tag andthers dont copy it there is much greater cooperation them we had two years ago that there is still a tremendous amount to be done. The communicators monday night at 8 00 eastern on cspan two. The house returns today at 2 00 p. M. Eastern for legislative business. The Senate Passed a resolution limiting u. S. Military action against iran without congressional authorization. Also, legislation to repeal the president s 2017 travel ban on certain countries and restrict his ability to impose new ones. In the senate is back at 3 00 p. M. They continue debate on energy and environmental policy legislation. Watch live coverage on cspan, the senate of the house on cspan, the senate on cspan2. If it comes out to be a campaign in which we have one candidate who is standing up for the working class and the middle class, we are going to win that election. For those who have been knocked down, counted out, left behind, this is your campaign. The president ial primaries and caucuses continue tuesday 46 states including idaho, michigan, mississippi, missouri, north dakota, and washington. Watch our campaign 2020 coverage of the candidate speeches and results tuesday evening, live on cspan, cspan. Org, or visit from wherever you are on the free cspan radio app. Now, a Panel Discussion about global immigration and refugee policy moderated by kurt volker, the former u. S. Representative to ukraine. This discussion is hosted by the Florida International university and the mccain institute, part of their annual conference on the state of the world. Mr. Volker the topic of this discussion were about to have his immigration, finding is immigration, finding solutions. And i think the first thing we have to do is say what is the problem exactly . And when you start thinking about what is the problem, it goes in a lot of different directions. You have an issue of global migration, you have immigration and immigration policy in the United States, you have refugees and displaced persons, and you have the treatment of people and