Transcripts For CSPAN2 Trump V. New York Oral Argument 20240711

Chilled from participating in the enumeration. But that counting is now over and whatever chill ever existed has odd thawed. Appellees therefore pivot to possible future injuries but as of this morning career experts at the Census Bureau confirmed with me that they still dont know even roughly how many illegal aliens they will be able to identify, let alone how their number and geographic concentration may affect apportionment. And if they dont know, certainly the otheparties of the case do not david the court should therefore follow the course charted out by the District Court judge last week, vacate the judgment bel, allow the sectary to comply with the memorandum, and allow any effect on apportionnt to be litigated as it normally would be. Is no merits, there procedural problem with the memorandum. The directionmade in two sets of numbers to decide the numbers being the real fight is sstantive, over how much discretion a president has. Text, history, and president are all clear about the general test , whether one is an inhabitant. Question is how to apply that tester people present in the country illegally. Treating someone apprehended at the border on march 31 or scheduled to be removed on april 2 as a usual or settled resident of the United States on april 1 flies in the face of this courts cases, commonsense sense, and any sound. Political representation. The president has some discretion to determine that at least some illegal aliens lack enduring ties to the states which means the judgment should be reversed. I welcome the courts questions payment general, my first question goes to the first point you raised. We expedited this case in light of the december 31 deadline for the secretary to transmit the census to the president. Is that date still operative . Do you still need a decision by that date . The situation is fairly fluid. Because of the two weeks that we lost to the california injunction and subsequent issues and procsing the data, we are not currently on pace to send to the report to the president by the year and statutory deadline, but just this morning i confirmed with Senior Leadership at the department of commerce and the Census Bureau that we are hopeful, and it remains possible we can get at least some of the p. M. Related data to the president in january, so we still need relief from the court, yes. Soundsustice roberts like you had a busy morning. What do you mean by p. M. . President ial memorandum data. The data the president requested to potentially back out illegal aliens from the Apportionment Base. Chief Justice Roberts the standing question, if the court does not intervene now before the secretary transmits the information to the president , i dont know when the court would be able to intervene even all that would be left after that transmittal is the transmittal by the president to the house. Be if the injury cannot redressed at this point, when could it be . General wall in a post apportionment lawsuit, just as franklin v. Evans. If the bureau can feasibly identify enough aliens, and the president excludes those categories, and that affects the apportionment those are all three unknowns but if that happens, you would have a post apportionment challenge for the secretary to revise the report and for the president to send a new report to the house, in effect to redo the apportionment. Chief Justice Roberts but isnt that going to be like having to unscramble the eggs . In any one state will have ripple effects all across the country. It does seem like it would be more manageable at any earlier stage. General wall sir chief justice, i dont want to resist this too much. We were prefer the courts uphold the president ial memorandum. We just think for the rean given by the d. C. District last week there are too many unowns here. I take the point that there is a bit of an omelette to scramble, but we do unscramble that in post apportionment lawsuits, so its possible to enter relief. On the flipside, you couldve the court issug any pending on what the president may or may not do only toiscover that these are week later it is effectively advisory because the numbers are not large eugh to affect the apportionment and the appellee and the other potential appellees would not be injured either with the spec to apportionment or funding. That strikes us as a fairly big problem. Chief Justice Roberts general, quickly, should we assume that we are not going to be talking about all illegal aliens in the country, but some uncertain subset, like the ones in ice detention . General wall i think it is very say fair to say that the president has not made a determination yet because we dont know what is feasible about excluding all illegal aliens, and has recognized that some subsets will be stronger cases for the exercises of his discretion than other subsets. Chief Justice Roberts thank you. Justice thomas russian mark you. Ce thomas thank i would like you to discuss as a as you understand the respondent is arguing. How does their alleged injury would be reversible without including or in joining the president . It is actually his decision that it seems they are ultimately concerned about. General wall i think that is a fair point, Justice Thomas, but the court cross that bridge in utah the evidence that the relief was not addressable because relief could not run against the president. The court held in utah, and no one has said that decision should be overruled, that it was fair, you could enjoy the secretary and the subordinate official, and the judiciary would assume the president would comply. There is no reason to believe the president would not comply with this courts judgment either now or in a post apportionment context. Justice roberts in utah, that was actually the senses, wasnit . General wall yes, it was a challenge to certain procedures that were being used with respect to the cens, in efct a sampling claim. Here we ares but talking about something separate from the census, or rmi mistaken . General wall that is the other sides argument. They have seized on the fact that we sometimes use the word census to refer to the accounting and say, look, the Census Bureau came up with a final number and the president accepted that, but then sought to backout illegal aliens. I dont think thats right. The president ial memorandum makes clear he was exercising his authority under franklin to determine the Apportionment Base after the counting. Is certainly it our position that this is not somehow outside our stands apart from the census. Could youberts actually get the same information in a memo from the Commerce Department or the Census Bureau that says this is report, bution 141 here is what we think those numbers look like . General wall statutory scheme seem to contemplate the president will rely on the secretarys report in sending his submission to congress. Franklin says he is entitled to reform the data that the secretary gives him. I think it will be a much more difficult question if you tried to act entirely outside of the up. Ess that the statute set here he has not done that. He has just exercised his authority under franklin to tell the secretary that he wants to look at different sets of numbers so that he can make a decision about the Apportionment Base. Justice roberts it just seems to me that, you know, i dont understand why y could not get the president could not get the exact same advice outside of the context of a formal report. Numbers, and then make a decision. Beyond that, the chief justice asked you about the subcategories subsets of illegal aliens. Could you give us your idea of what the president means narrowly by illegal alien . General wall he means people who are present in this country unlawfully. That includes a number of different subsets. We have named several of them in our brief, which are the clearest cases for the president s discretion, but there are other subsets, too. The entire category is people in this country in violation of federal law. Justice roberts thank you. Chief Justice Roberts Justice Breyer . Justice breyer i was also concerned about what Justice Thomas brought up. To clear away some weeds from my mind, would you tell me where i miss this, or if im right. We are looking at statute 141. A says the secretaries felt ill take a centennial census. B says the tabulation of the population that he just took, as required for the apportionment of representatives. That tabulation shall be reported by the secretary of the president. That is the report we are concerned about, that is the tabulation we are concerned about. It is based on that where you go to 2a, the President Shall transmit a statement showing the whole number of persons for the purpose of apportionment. We are not interested in other ways, we are interted in this report in this tabulation under 141b. If i am right so far, the president s orde says i will tell you why i want that. Want that because it is our policy that illegal aliens will not be included in the census. I cannot tell exactly which ones but it just says illegal aliens will not be included. He asks for the report so he can do that. Constitution forbids him to, or if the statutes forbid him, to subtract from the tabulation for purposes of the statemen if it forbids h to subtract of illegal aliens, or to the extent it does, this tabulation and report are not the tabulation required for the apportionment of the census, and therefore he cant ask, he cannot ask the secretary for that report to contain that information. Right or wrong . If wrong, why . General wall i think i agree with you up until the end. I think you correctly understand how the statutory provisions which were passed together in 1929 work. That if thes true constitution or the statutes constrained the president s ability to back them out, then that would mean that his statement setting aside judicial review statement to congress under 2aa would be unlawful. I dont know if any of that is a constraint on his ability to request the information. Justice breyer it is not the information if it is unlawful that is required for the apportionment of the house of representatives. It is illegal. Whether it is illegal or not is a different question. All we have on that is about 40 briefs that shows the history, language, the consequences, and a bunch of other things argue against you. But you have arguments against that. If that side wins, i dont see how the information he has requested could be the information required for the apportionment of representatives, quoting the statute. General wall all i would say is that, i dont want to run together the procedural and substantive issues. I think when you are getting at is the substantive issue of what the president s powers are here, not any of the procedural issues that they have raised with respect to the memorandum. I agree with you that what is really at issue here is that substantive question that you are focused on. Justice breyer maybe but we are not suing the president they are not, they are suing the secretary. Secretary,ying, mr. You cannot give to the president this requested information, and also say that that piece of paper that you send him is the tabulation as required for the apportionment of representatives. It may be Something Else but it is not that. And that is what he has asked you to do and that is what you are trying to do. If it is illegal, you cannot do it. General wall that is right. My only point is that doesnt have anything to do with the procedural arguments about the use of administrative records or whether this is part of the census. That is all just the substantive claim that the president does not have the power Justice Breyer this started in 1820, they have always counted people who were here, not naturalized, this has never happened before that you included illegal aliens, and it has a lot of negative effects on the state you knew all of those arguments, and i think they are fairly strong ones. They are persons, arent they . Chief Justice Roberts briefly, counsel general wall briefly, counsel, there is the historical practice. The other is the text and history. None of that goes to the question of illegal aliens. Chief Justice Roberts Justice Alito . Alito if i can, i want to press you on some of the answers that you gave to the chief justice. I find the posture of this case quite frustrating. It could be that we are dealing with a possibility that is quite important. It could be that this is much to do about very little. What the Census Bureau and the department of commerce are able to do. If i just take the numbers from the District Court and d. C. s opinion last week, they say the plaintiffs in that case were claiming there were 10. 5 Million People in this country who would be counted as being here illegally, but if you look at the similar number of those who are held in detention facilities , it is Something Like 60,000. The first number could easily change the apportionment of representatives. The second one is much more doubtful that it would change the apportionment of representatives. There are only 31 days left in the year. To exclude a 10. 5 million seems to me a monumental task, to do that without sampling, to take 300 million plus nes and determine individually for eac of those people, whether ty are lawfully in the United States. I would think you would be able to tell us whether that remains a realistic possibility at this point. Can you not provide us with any more information than what you provided in your answer to the chief justice, which was basically, they are working on it . General wall i can provi you with a little more. I dont know how satisfying it will be. I think it is very unlike the bureau will be able to identify all or substantially all illegal aliens present in the country, so anything like the 10 or 12 million numbers that are flyin around. They will be able to do ice facilities, which is some number in the tens of thousands. The question is where it will fall in the middle. We dont know. Reason we dont know is because it turns a great deal on the level of detail that we got in doing the enumeration. Until we actually take the and theseterfile various administrative records, once they are cleaned up and ready to go, and we actually run the models in a few weeks or whenever it is, we will not actually know how many people we pick up. I press the Deputy Director of the Census Bureau of this question. The fact is the experts dont orw if it will be 50,000 100,000 or 500,000 or a million. So there is substantial uncertainty. Justice alito before my time runs out, i have no expertise whatsoever in this area. I can understand if they can say all we can determine is how many people are in detention facilities or subject to final orders of removal. If they are going for the Bigger Picture and trying to identify everybody who is in this country dont see how they can provide a partial answer to that. If they were to say, we have done this for 200 Million People but we dont know about the 100 million plus additional people there is no way in apportionment could be based on that, is there . General wall they are try to get the categories of illegal aliens that you could identify based on the records we have. Final orders of removal for instance, people who have been removed are found again and have not been given any lawful status. It is not that we can pick up everyone. They will be some undetected illegal aliens who we are not attending to screen for because they would not be picked up any record. It is the categories that would be shown by some sort of record we have. The question is how feasible it will be to capture large numbers within those categories. Unfortunately, we dont know at this point. It is a feature not of the governments conduct, but a feature of the fact that appellees brought a preapportionment challenge on the basis of this injury that was always going to cease in the past chief Justice Roberts Justice Sotomayor . Mr. Wall, asayor i understand reading the president s memo, he says he every alienxclude who does not have permission to be here in the United States. Yes, he limits this to where it is feasible to identify that. If right now, his policy is, i can identify them, no matter what the reason is for them being an illegal alien, i will exclude them from the census. Following up on Justice Alitos question, arent those the very categories that you already say we have been told that some of them in ice will come by december 31, and then by january 11, the Census Bureau says it intends to provide the president essaryhe information nec to fully implement the president ial memorandum. I am quoting the Census Bureau. So, if i take that at its face, it means that the number is not going to be 60,000. The number intended is substantially large. And i think that was justice is the point, which Census Bureau has been collecting data about undocumented immigrants from other agencies for over a year. I dont see how you can represent to us that you dont think it will be a substantial number. General wall three quick points. First, i dont think that is actually an accurate statement as a memorandum. You are right that is the policy but there are two builtin limitations. One is whether it is feasible and the second is if the president decides he has the legal disetion to exclude these subsets payment subsets may have different legal analysis depending on the ties they have or the type oftatus they have. Istice sotomayor mr. Wall, am a little bit qutioning of that for the following reasons. The Census Bureau already defines what residency is. As a you are living, snapshot oapril 1, 2020. Whether you ar in a pron, in ice detention, we are told by one of our people that 50 people in the tension will eventually be released in the United States either through asylum or another mechanism. So im not sure how you can entify any class of iigrants that is not living here and is traditional setting. This is where th are, this is re they were unable first on april 1, and where they intend to stay if they can do it. General wall based on my understanding, there is a real prospect that the numbers will not affect the apportionment. As i said earlier to the chief justice, im happy of the cot disagrees with us on that and disagrees with the analysis of the District Court last week and moves to t merits. We think on the merits the court should uphold the president to memorandum because at least some of the illegal aliens captured by the president ial memorandum do not satisfy the test for inhabints e, at her as a matter of the constitution or stute. Saysce sotomar the memo president ial memo says, i think anyone without papers should not be counted. Now you are saying, well, maybe the presidenwill limit that subcategory but that is not what he is asking for. He is asking for all of those illegal aliens that can be identified. Defeat thisler argument that we should not rule . Knew there were certain people that states could legitimately borrow from owning guns in their homes, but we didnt say because there is that subset we will not declare with the general law is. So why shouldnt we do the same thing here . You cannot exclude illegal aliens because they are undocumented. General wall the court would have to conclude in order to say that, as the District Court did, that the president does not have the discretion to exclude any illegal aliens from the Apportionment Base, even some subset. The injunction prohibits him from getting any of the information he needs to include any subset. He did make clear in the memorandum that as a matter of policy he wanted to include exclude the entire set, that he had not made a judgment on whether he had the legal discretion to do that for the entire cla. Chief Justice Roberts Justice Kagan . Kagan i like to go with a line of questioning that the chief justice and Justice Alito talked about, as to what categories we are talking about. You are saying there is this small category of ice detainees that is pretty feasible, but that is just tens of thousands of people, so how about a few others . As i understand it, there were almost 200,000 persons subject to final orders of removal. Will the bureau be able to report on those . General wall it is working hard to report on that subset, yes. Justice kagan there are 700,000 daca recipients. Boulder bureau be able to report on those . General wall it is working on too. We cannot be certain and we dont know what the president will decide to do with respect to that set. Obviously, you have papers, all kinds of records on those people. I would think that sounds pretty feasible to me. General wall but the problem is the matching. We have the administrative records. What we dont know is the number that participated in the census either through questionnaires or other proxies that provided sufficient detail to do the matching. That is the problem here. About 3. 2gan how million individuals in proceedings . General wall the same thing. We need reliable information, and that needs to match up with what they provided to the census. Justice kagan what im getting from you is we can get easily to 5 Million People who you have extensive and ministry to records on, and you are saying it is a matching problem. So i guess this goes back to Justice Alitos question. You are 30 days out. It seems to me you either know that you can do matching or whether you cannot do matching. Why the uncertainty on this . General wall until you compare the one side against the other set, you dont know how many hits you will get. I would love to move to the merits because if the Court Decides we are wrong and that ups really is teed constitutionally or potentially, even if there is no effect on apportionment, there are good reasons that we have not yet talked about why the entire category of illegal aliens should not be sought to qualify under the inhabitants e test. How would a post apportionment challenge of the kind that you talked about earlier work . It seems to me the time period, once post apportionment is very crunched. States have to do their own redistricting. How does that work, what is the timeline on it . General wall it is evenasier than a normal case because the district has decided the mers. I think this wod move more quickly than this round of litigation which only took a few months. You bring the case, you get the order to the secretary to fix the report, and then the executive branch would have the option to seek review in the court. That could all play itself pretty quickly. Justice kagan what do you think it would play itself out to . When with the ndp . And the date be . General wall i cannot say. It depends on when the memo gets to the president , when the party agrees to come to this court. I would think a matter oa few months. Justice kagan do you think that given you are uncertain when the report would go to the president going back to the chief justices first question that there is something to be said for not following the expedited procedures that you asked us to follow, and just sort of keeping this around in a normal way, and you could tell us whether expedition was necessary, when you knew . General wall i think the problem is this is all fairly fastmoving. If the court does not enter some sort of release, we would enter a prpect that the secretary would never be able to send the report to the president and the president would not be able to turn around and send a report t congress. There is a lot of controversy between the parties in that sense. We want to be able to have the president exercise his power. The injunction currently blocks us from doing that. It is just no longer founded on some injury to the appellees that is sufficient for standing or lightness purposes. Chief Justice Roberts Justice Gorsuch . Justice gorsuch good morning, mr. Wall. I want to press you further on the practical difficulties and likelihood of being able to do the matching process with respect to various categories. It seems like one Common Ground is the 10,000 or whatever number it is currently in iced attention as something that you think will happen. Beyond that, can you give us any sense of the difficulties or likelihoods . General wall i cannot. The bureau is working hard but until they actually do the comparison, we just will not know how many identifications we are able to make and whether that stands to affect the apportionment. Justice gorsuch so is it a reasonable prospect to think it would limit the number of persons currently in iced attention . General wall that is possible but it is also very possible that theyll be able to do more. We just dont know. I wish i could provide the court with more certainty. I cannot. That is why we think the court should vacate the judgment and not get into this. If the court disagrees, as i say, i would love the opportunity to turn to the merits and talk about why i think they cannot satisfy either half of the usual resident test, the residency or the usual settled requirement. Justice gorsuch i have a question in an entirely different direction. Your colleagues on the other side pointed in a footnote in the brief to the federal reports elimination and sunset act of the 1990s, which looks like it may well have repealed section 2. Over the arguing meaning of a statute that does not exist . I had hoped to get some response from the government on that in its reply brief but did not see any. Perhaps i missed it. Viewis the governments about the status of section two . New york suggests maybe it is revealed but to the extent the government wishes to comply with the repeal statute, it has to follow the repeal statutes terms. Another response is that the only thing reputable war reports , and this is a statement. Does the government have any views on that . General wall yes. In our view, it is not an annual, semiannual, or other periodic report covered by the statement, which is why in 2001, 2011, the executive branch sent over the statement and house reapportioned the statute. It has never been litigated. m not aware if we ever briefed it. In our view, there were various things on the clerks list that i think do not qualify as a type of report covered by versa. In our opinion, our statement is one of those things. Justice gorsuch what do we do about the fact that it appears to be especially referenced by statute in that report . The deceial census report, section two a, right there listed. General wall sorry p just to be more clear. We dont think the language picked up everything in the clerks list because there were things that would not qualify. It only picked up things on the clerks list that qualify as an annual, semiannual, or other peodic report. Justice gorsuch perdic does not include every 10 years . Dont ink thewe other periodic reports picks up the statement. There is a deadline under e statute but it is not as if it has to go over at some set period or on a particular date every time. We dont think that statement qualifies. Justice gorsuch ok. If i were to disagree with you and every 10 years appears to be a regular periodic report, and appears on a list, then what then . General wall there would have to be supplement the briefings. Justice gorsuch all right. And q. Chief Justice Roberts Justice Kavanaugh . Justice kavanaugh good morning. You forcully argue there is too much uncertainty, th the dispute will become a concrete article three controversy when we asked for the president to transmit the statement. I want to button up some things on that to make sure we are on the same page, follow up on what Justice Kagan was asking you. Sayingf all, you are not as a judicial review, not now, not ever, you are just saying not now, as i understand it. But as Justice Breyer indicated, the posture this will change after the president transmits the statement and there is question about injunctive relief against the president. I think you are sayg that we cant assum as the court has before, that the president what comply by a decratory judgment requiring him to transmit calculations at include those noncitizens living unlawfully within the country if we were to issue such an order after the president transmits the statement. Is that accurate . General wall yes. Justice kavanaug your argument for waiting is based on as justice again, kagan, the chief justice were asking about the numbers. One thing that was in the was that it would be not possible to exclude all noncitizens living unlawfully in the country because that would require the use of sampling. The memorandum, the president ial memorandum rules out the possibility of using an unlawful method. Is that accurate, what is your response to that . General wall we are not sampling. We are taking the records from the administrative agencies, and we are taking the data given by individuals with respect to the census, and comparing them. We are literally trying to individually identify people who are present in the United States in violation of federal law. Because we are not sampling and we are doing this fairly cumbersome matching process, it is just not clear what results we will get or whether it will affect the apportionment. Justice kavanaugh is it possible to exclude to get the information to exclude all noncitizens living unlawfully in country . Is it possible only to get information as two subsets at this point . You may not know the answer to that. General wall the latter pay with the records were only cover a particular subset. Justice kavanaugh so it is not possible to exclude all noncitizens living unlawfully in the country. General wall no. If you took somebody who cross the border illegally, was undetected, and did not participate in the census, that person might not be found in any administrative record and they would not be on the other side of the ledger either because they did not participate in the census. That person would not be captured by the process, not even arguably. Justice kavanaugh on the question of rightness or standing, our doctrine as i see it, parts of the rightness inquiry are similar if not identical to the standing inquiry, if you look at the freezing freezing in cases history, susanr b. Anthony on standing. The key point is that the memorandum imposes no obligations on the plaintiffs to point,hg at this unlike, for example, a typical Agency Regulation that may say impose some duties or requiremen on the plaintiffs, so we allopreenforcement challenges. We call that lack of rightness. We have called that no standing. Do you think it matters which we call it, and do you agree that the two inquiries overlap on that kind of particular analysis . General wall yes, theris substantial overlap. We have framed it as a constitutional matter because we dont think it satisfies the constitutional minimum. If you think they got the toe over the line, i think you would get the same analysis as the justices did as a matter of prudential rightness. I agree there is a lot of overlap. You can do prudential rightness before the merits because it is a threshold doctrine. Nothing requires the court to do article three rather than to do it as a president ial matter. Chief Justice Roberts Justice Barrett . A lot of thett historical evidence and longstanding practice really cuts against your position. There is evidence that in the founding era, and habitants were a dweller who lives or resides in a place. You have the patella quote that divides an inhabitant as a distinguished from a citizen, as a stranger is permitted to settle and stay in the country. Do you think that is your best evidence . General wall if you look at the founding, the patella quote is good. What i would say is, there is not a lot of attention given to the specific question of illegal aliens for the first half of the country for obvious reasons. But the court has to deal with the residence or dwelling question and other statutes. The answer it consistently comes back with is if you have entered illegally you are not treated as if you are dwelling or residing here. You are treated as if you are stopped at the border. The other side doesnt really have any other answer to why those cases should not equally apply here and say, if the test is usual or settled residence, you are not thought to be a resident. Even if you are, there is nothing usual or settled about your residence if your presence is violating federal law. Justice barrett but if an undocumented person has been in the country for, say, 20 years, even if illegally, as you say, why would some person not have a settled residence . General wall take longterm embassy personnel. Somebody that has worked at an embassy for 20 years. That person certainly has ties to the community but we have excluded them in some past censuses because they are not the sort of ties that amount to residence or dwelling, or what franklin calls it legions or an enduring tie. Federaltoo, or employees working overseas. We still tnk they have the kind of ties that count here. I am not disputi that illegal aliens form ties to the communities in the sense you are talking about, but they are not the sort of ties that are sufficient to qualy you within the Apportionment Base, because they dont count toward residence or dwelling within the meaning of these federal statutes. Stice barrett but you can see illegal aliens have never been excluded as a category from the census . General wall we have taken account of that befo, and yes. That is the best argument on the other side, historical practice. If we didnt have franklin, it would be tougher, but we know that from franklin the fact that you have a fairly unbroken practice doesnt mean that it is constitutionally compelled. They need some evidence that that has to be the rule as a constitutional or statutory matter. That is what they dont have. They have a bunch of historical evidence that the founders and framers of the 14th amendment did not want to limit it to citizens and voters. Completely agreed with all of that. What they do not have is any evidence that they specifically wanted to include illegal aliens because they thought, even if you came here in violation of the law, you are nevertheless an inhabitant. That is the question that another context the court has answered in the negative, saying you are not a resident. Justice barrett so it is an exercise discretion. All along they could have been excluded from the senses, and the fact that they have not been before does not mean that the president cannot choose to do so now . General wall i would qualify it a little bit. For the first half of the nations history, the question doesnt come up because you dont have federal immigration restrictions. For much of the second half, it doesnt matter as much as it matters now. I will certainly grant that no president has made this president before, no president has ever focused on it before, but in order to say that the president cannot do this, cannot include federal overseas personnel even though they had not been included for a host of censuses they need to point to something in the text or history that clearly mandates that they be included in the Apportionment Base. That is every illegal alien, not only the ones you are talking about that have ties to the community. It is someone apprehended at the border, in an ice detention facility, sometimes for only a day or two before being sent back. Chief Justice Roberts a minute to wrap up. General wall thank you. Just as i was saying earlier, we think there are a handful of unknowns here. While the movie feasible for the bureau to do, whether the president will decide to exclude all of the subsets that are feasible through the memorandum clearly indicates the president has not made that legal judgment. Its been a policy, not a legal judgment. As i said to Justice Kavanaugh, we dont think it matters whether the court labels that under article three or prudential rightness. But we are happy for the court to disagree and go to the merits. There is a fairly small window of time here for the court to decide the merits, on the merits , to satisfy either half of the test. There is nothing settled about their residence. They have not offered any coherent theory of lytic representation why all illegal aliens should be included in the Apportionment Base for those reasons if the court reaches a merit, ithould reverse and uphold the memorandum. Chief Justice Roberts thank, general wall. General underwood . General underwood mr. Chief justice inmate please the court. The consultation of the log requires the seats in congress be apportioned according to each person in the state. The president s new policy of refusing to count people not in the lawful imitation status is flatly inconsistent with that command. Our laws reflect a delivery choice not to base apportionment on citizenship, voter eligibility, or any other legal status but instead to count the number of People Living in the state. That has always included people ineligible to vote, including noncitizens, and it has also included people who were present in violation of law. The memorandum treats counting people as a reward to be withheld from states that house undocumented immigrants even but our law views counting people for apportionment as finding fact, not giving and withholding reward. The memorandum pretends that if under the law a person should not be here, then the person is not here. The government can do many things to induce undocumented immigrants to leave, but it cannot declare them to be gone when in fact they are here and likely to remain. Mustiend says the policy be upheld because some undocumented immigrants could be excluded from the count. Whether they could is disputed. In any case, that would not support this policy which applies to all undocumented immigrants, and refuses to count them solely on the basis of undocumented status. As this court recognized in shelby county, an unlawful policy cannot be saved by the possibility that a lawful policy could be written. The question here is whether a blanket policy of not counting undocumented immigrants is not, becauset is undocumented status alone does not tell us where a person resides. This policy ignores the undisputed fact that millions of undocumented immigrants have lived here for decades and have substantial Community Ties. There undocumented status does not erase their presence. Chief Justice Roberts general underwood, could you tell me precisely what the relief is that you seek . In order from the court saying what . General underwood and a ferment of the injunction below, which was to declare the policy invalid, in violation of law and the constitution as well, the statute would do, and an injunction against transmitting the information about undocumented persons as part of the report on which chief Justice Roberts that is up or slice issue i want to focus on. It seems to me you are asking really for a gag order on the secretary of commerce concerning his communications to the president. Lets suppose the secretary conducts the census and prepares the tabulation exactly as you would have it, and puts it in an envelope to send to the president. But also in a separate envelope, information on the number of illegal aliens. He sends both of those envelopes to the president. Is that fine with you . General underwood yes. That does not violate the injunction. There is no gag order to be placed on the secretary of commerce. He can be asked for and respond with all sorts of information. But the particular statements and transmittals that are operative, they are not just the transmission of information. They operate as steps in the apportionment. Thef Justice Roberts president , i would assume, is then free to report to the Congress Information for the apportionment. He can do the math, can take with the secretary has transmitted, subtract the number of illegal aliens, subcategories, and use that information, candy . General underwood we are now at the point that if you issued a declarative judgment saying that that policy was unlawful, and my friend on the other side has said the president would comply with such a declaratory judgment, then the answer is, he would have the information in principle. He could use it. He could not issue a report to congress that was in violation of the constition. Chief Justice Roberts thank. Justice thomas . Generalthomas underwood, im a little confused. That understand you to say the Census Bureau sent the information in a separate envelope, that would be fine, at least if it was labeled not the section 141 report . General underwood yes, it would not violate the law, it would be a transmission of information. Justice thomas so what does that accomplish . I thought our major concern is the use of that information by the president. General underwood that is correct. The concern is that, and in the court, directing the secretary not to transmit this as part of the report, this court would presumably also declare that the use of it was unlawful without enjoining the president. There is that problem about injunctions against the president. Justice thomas so, your argument is, if sent separately, it cannot be used . General underwood in the apportionment, correct. It might be usable for many other things but not a part of the apportionment. Justice thomas thank you. Chief Justice Roberts Justice Breyer . Justice breyer thank you. Manynk are there not statutes among the states on the basis of population, and then they say Something Like as shown by the most recent dice and he also insists die sanyo census does that tie into the report . Are there many instances where it does . General underwood there are many instances where the distribution o funds has to be derived from the census. I suppose we could have an we wod arguet that if the information is used in the census and in the repo sent to congress, it also will have an effect on the stribution of funds. If the information is sent separately Justice Breyer i am thinking of, supposedly this 141report has both the number of ilgal aliens and also the total census. What dyou use . General underwood i dont think it can have th. Justice breyer i didnt think that was your theory. I thought that was the governments theory. So what happens under their thry . Genel underwood i dont ow what happens under their theory. Theyave sometimes said a transmission is two sets of numbers, is all part of this 141b report. Sometimes they say it is separate. I dont know. Justice breyer if we dont know, lets go to a different question. What do you have to say about franklin v. Massachusetts . V. Eral underwood franklin says that the secretary and the president has some discretion but not unlimited. Franklin recognized usual residence as the test and then treated overseas government workers like other situations recognized in the founding, people absent from the state where they have a residence and continuing ties and intend to return. They think of themselves as away from home. Franklin recognizes that situation was suitable for the exercise of executive discretion. There is no support chief Justice Roberts Justice Alito . Justice alito i have two questions that are important to me. I hope i can squeeze them both in. The first concerns your answer that it would be fine for the secretary of commerce to submit numbers that exclude illegal aliens, if it was done in a separate documen unlessan see that you are asking us to overrule what franklin said about the president s directing the secretar to perform the census and then i dont understand where your argument isoing. Suppose the tables were turned. Suppose the president wanted to count every person in the United States on census day but the secretary commerce took it upon himlf to give the president numbers that excluded every illegal alien. Do you think the president would then be unableo direct the secretary of commerce to perform those numbers and make them comply with the theory that the president accepted . General underwood the president , under franklin, wld have the ability to direct a reformion of the census. There would be the same question it wod be a different questi. There is alwayshe question about whether reformation is constitutional or not. Justice alito that is for the substance of the issue whi i want to get to, but once you concede that two documents are possible and that the president can ask the secretary to reform the numbers at are sent to him , i dont understand why the situation where both sets of figures are submitted in a single document is any different. Iteems like a totally meaningless formality. General underwood it is not a meaningless formality in the sense that this is the moment in the process when Judicial Intervention can operate. Of problem arises because the reluctance of the court to enjoin the president. The injunction operates against the secretary and what he can transmit. Secretary what he theput in the 141 report, court will also be telling the president what is lawful to use in his report to congress. Chief Justice Roberts Justice Sotomayor . Justice alito if i could move on to my second point. I want to give you six categories of people, and ask you to answer yes or no to the extent you can whether you think each of these people in each of these categories must be counted for apportionment purposes . First category is the foreign diplomat who was posted here for three years. Becauseunderwood no, several reasons. Justice alito no, all right. A urist here on a valid visa. General underwood no. Justice alit a taurus that overstayed her visa and is here illegally. General underwood that person now outside the realm of we expect them to leave. Resident like a any other undocumented perso chief Justice Roberts Justice Sotomayor . , itice sotomayor genal see this as being very similar to franklin. I think you are arguing, and i thk the solicitor general the president has to use only the numbers that are given to him by the secretary. Secretary gives him the legal numbers to exclude,hen he cnot used an outside report, to exclude tse people from apportionment. Is that correct . Cannot do anwood illegal report, yes. Justice sotomayor cannot use a separate report. The tabulation has to provide him the numbers that he uses, correct . General underwood correct. Justice sotomayor so, if it is illegal for him to exclude illegal aliens sorry about exactlythen we can do what we said could be done previously, which is to order the secretary not to give the president illegal numbers. Correct . General underwood correct. Justice sotomayor so that is your point. Ande is going to tabulate exclude illegal aliens, we have to decide, as a matter of law, whether the word persons as used in the constitution who live here permits the exclusion of illegal aliens. Correct . That is the legal question. General underwood correct. Justice sotomayor if he later decides that he wants a particular category of people to be excluded as illegal aliens, then he gives a memo to the say thisetary tha category, think, should not be here for these reasons. And if the secretary says i will give you those numbers, then we wod have an identical franklin decision, where they could come and sue and say to the secretary, no, you should not permit those illegal aliens. You suld. Whatever the answer is. General unrwood agree correct. Justice tomayor that is what is missing here. The president is asking to exclude numbers the category ofllegal aliens of any kind, and some of those numbers legitimately cannot be included. That is your argument, correct . Chief justice rorts justice kan . Justice kagan general underwood, if i could take you ba to the standing question, this is how i understood what came out of general walls minutes. Of government has tons records on tons of people. We are not just talking abo ice detainees. By the and a number of other categories , you easily get over 4 Million People. Sayseneral rule essentially the department has not yet gone through this process of trying to match those numbers with the answers to the questionnaire. I dont understand how that process works. I am wondeng if you do if you can tell me whether you think it is credible that the csus bureau at this point would not know approximately how many people they will be able to exclude of all the people they have administrativrecords on and the second question would be , is that what we should be focused on or is that an unportant question . Master of the technology here. Do know that there is a process i which matching occurs, and i do not know and i cannot opine on how successful they will be. Can only say that what we have a lot of evidence that ey have a lot of numbers available and they are working as hard as they can to do as much of this as they can and subtracting just some of the 4 million or so from the count would be enough to take the seat away from one or speculationand that we havepoint and repeated representations from the Census Bureau and the department of justice that they have been working on this since july 2019 and they are now starting to tell us about the categories that they will be able to identify in. If there turns out to be a problem, there isnt enough here to be the basis for any judicial action good it is speculation that they wont be able to do it at this point. So it seems to me it would make sense it might make sense for this court to a couple of weeks and find out if there is more information that would shed some light on this question. Thank you, general. Matter ofs a speculation whether they are going to be able to include or exclude, why isnt that a standing problem now . If we must rule now . As i understand it, they cant use statistical standings and they will have to match detention records or docket records against the enumeration in the census. At the present, they tell us they might not be able to do more than the aliens in the i. C. E. Centers which could be thousands it may not affect the portion at all. They are saying that is a group they already know they will be able to do and they are working feverishly to do the same for other groups. We know from the last round of senses litigation that they have the ability to do matching it i cannot speak to the technology of it but they were confident they were going to be able to do matching. Justice gorsuch you can see it is speculative as to how much they are going to be able to do. , thene are in that world its speculative whether theres going to be any effect on the apportionment and in that world, we have a problem, dont we . General underwood that is not quite the world we are in your we have a substantial risk of injury but all of the evidence was that they were going to be the to do to implement president ial memorandum and theyre just now saying they are not sure how fully they are going to be able to do it. That is a substantial risk of injury for article three standing and there could be some interest in waiting to get more information. They seem to be saying there will be more information very soon. I think we have article thre standing. Justice kavanaugh . Justice kavanaugh general underwood. As Justice Barretts question illuminated, you have statutory arguments on the merits of a categorical exclusion of all unlawful , but i am not sure that is going to be a dispute. If we said now as you want us to say that the secretary and the president cannot exclude all noncitizens living here and then the president excludes not all but some subsets, then we will be right back here with litigation, correct . General underwood what you policyave isnvalidated and he couldnt act and the secretary couldnt act pursuant to this policy. Justice kavanaugh couldnt he then substitute a new policy consistent with the decision on , were going to exclude some subsets and then there will blitigation on that and we will be right back here. General underwood perhaps, but nowe are speculating more abouwhat he might do. Think thevanaugh i solicitor general has indicated it will be impossible to exclude all. I guess i amondering seems like part of this, and youve acknowledged this, is the difficulty of an injunction against the president if we wait to post apportionment or post president ,n, but the weve assumed in the past would comply with claire tory judgment and we have with clair claritory judgment and is that the problem that has encouraged you to bring this litigation now . General underwood it could mitigate it, but a declaratory , i dont think you against thethat president if the secretary has already done everything he is going to do. It is not clear exactly who the appropriate recipient of that declaration is. Justice barrett Justice Barrett Justice Barrett. Justice barrett i have one question, the feasibility of counting all these categories about illegal aliens. Of president and secretary commerce are only able to identify certain categories and as Justice Kavanaugh said, if that means there would be litigation on a casebycase basis about whether some category should be in an out, doesnt that cut in favor of rating and that there is no injury because we are not sure with the ctours of the decision would be . General underwood i think i should object to the idea that the categoriesre so small that they will make a difference and that they would be litigated one by one. I think at the policy that the president articulated as many as possible. Mr. Will said the president uld exercise after the information came in, the matter the memo said at the president s discretion. Theolicy is not to identify subcategories but do as much as possible the categories thatre available are just going to be whatever they can find. I think th court can speak to that policy now. Is it likely they would come back with other new policies . That would always be true and i dont think that is a reason to decide here and now. Hat if we say we cannot cegory categorically exclude all aliens. I will, everyone in a detention facility and say all daca recipients. I have reasons for thinking each of theseont satisfy the inhabitants the requirements. Wouldt you just be back litigating those issues . Yes, thinkwood we would. A minute torap up, general underwood. General underwood the constitution and laws provide house seats should be allocated on total population. The framers wanted a system that could not that could not be manipulated, so they decided to come just the persons living in each state the policy was for the first time in the nations history reject that choice. People who live in the state without lawful immigration status still there. Their presence requires attention from the government and the need for representatives to give that. That is the rationale or one rationale or including them. The decision to refuse to count them has produced a controversy from the moment it was announced in this court should resolve the controversy and reject the policy that would refuse to count millions of people that for decades have jobs, mortgages, families and Community Ties and reside in a state under any reasonable interpretation of those words. Thank you, general. For 230 years, dating to the founding, states have always held seats in the house according to the number of persons in each state without regards to immigration status. With respect to standing, the test under susan b. Anthony is if there is a substantial risk of injury and past experience shows it is easy to risk change in the apportionment. Of imputation added a total of 32,000 people in North Carolina and 5000 in utah, and that difference was enough to shift one seat from the latter to the former. We know the numbers here are much bigger as Justice Kagan pointed out. They have information on millions of undocumented immigrants. In july 2019, it was stated the government could already match citizenship records for 90 of the population. There is substantial risk for injury now and it would be better to resolve this now rather than in six months during the redistricting process which could be disrupted. With post the problem apportionment litigation . We have shown we dont know what the secretary is going to do and we dont know what the president is going to do and dont know many how many aliens would be exuded and what the effect would be on apportionmentead all these questions would be resolved if we wait until the apportionment takes ace. So why are we better advised to do that. Ho the rord establishes there is substantial risk of a shift in the apportiment now and if t question is should the court wait now or send this back for another rou of expedited seedings, then there are many good reasons to decide this case now. The governmentrgued waiting would deprive the nation of prompt notice reapportionment as required by statute a that it could be very disruptive to redistricting processes. Justice roberts waiting a coupleeeks is not going to give us much more information that we have now waiting for apportionment would give uall of the information we dont ha. Sorry, a did mean waiting before and a half or five weeks dependi on when the apportionment port is delivered. I would see that short of the weight would not be disruptive. If we are talking to sending this for additional proceedings and another expedited appeal and doing this all over again over a period of several months, that would be disruptive to ongoing redistricting processes. Justice thomas . mr. Ho, if the additial information would be benecial in a few weeks, wouldnt it be beneficiato actually resolving this case as the questioning seems to suggest, there is some difficulty in assessing exactly what information will be available and what that information will be. Ho the justice is to a mandates theroadly extent under law and the position is that under law, all undocumented immigrants may be excluded. View is the, their entire category of undocumented immigrants are not inhabitants. The court is presented with a challenge to a categorical policy. The government has been free to issue a narrower memorandum excluding subgroups rather than taking aim at undocumented immigrants at large and it hasnt done that. It is unlawful. Justice thomas i think your argument would be the implementation of a categorical policy would be unlawful, but what im hearing is that we dont exactly know which category or subcategory will be excluded. Ho as i take the representations here, the government will exclude to the maximum extent that is feasible and permitted under law and the governments view is that the entire category of undocumented immigrants may be excluded under the law, even if we take three categories who are supposedly excludable, those are quite heterogeneous and overbroad. I dont think they are all category not inhabitants. Justice thomas. Thank you. Justice thomas thank you. What do you think about just excluding those that are in centers are under final order to remove . Ho those in detention is quite heterogeneously heterogeneous. Many would qualify. You can be a lawful permanent e. Sident and be in i. C. Detention and even someone detained at the border, that person can apply for asylum. Justice breyer what if we say we are going to exclude or not, people under legal order to remove . Final people under removal can stay in the country for quite some time. They can see other forms of relief and challenge the orders. Some are never actually deported, even after going through those processes because the home country. Justice breyer what line would you draw between those they can count and those they cant. Ho usual residence in the plane meeting turns on whether or not someone commonly resides in the United States. It doesnt turn on their lawful immigration status. That term usual residence was defined at the founding as where a person commonly lives or sleep in the both the johnson and bailey dictionaries. If you look at the dictionary the government relies on, it defines residence as distinct from nationality, offering the example of the residence of an american in france or italy for a year. Residents doesnt admit exclusions on the basis of lawful immigtion status, it turns on whether a persons physical presee is transient or not. Justice alito . Oing to getto i am you to try to answer Justice Breyers questio unlawfully andd was almost immiately apprehended. And then placed in detention pit would he have to be counted . General underwood on mr. Ho; under the current rules, he uld. I know at the courts holdin was whether or not someone had enterefor purposes alito is it your opinion that every single alien who is in the United States on census day mt be counted . Mr. Ho i would s that every person who is an alien in the United States is subject to the same residence requirements as anne else who is a person insi of the state. If a United States citizen is usually a resident abroad and is temporarily visiting the cntry on census da see family, that person is not counted in the census. Justice alito you are same for each of ese people there has to be a very specific determination about whether they are a resident or not . Is that administrable aall . Mr. Ho the rules that were administered by the federal 1790 were asked whether or not a person usually resides at the dwelling thats being visited. If not, where do they actually usually reside and if the person had no stable residce, to count them simply where they are found on april 1. At has been the practice is the founding. I would agree there is discretion to make decisions on the basis of residence. Thethe plain language of constitutional and statutory provisions dont turn unlawful immigration they rn on the persons residential circumstances. Alito thank you. Ho, i would like to follow waiting in this case. Thewaiting problem senses apportionment doesnt nsusen until april 1, ce portionment doesnt happen until april 1. Mr. Ho the president must submit a report to congress within seven days of the been beginning of Congress Term and then the house within 15 days of that send rtificates to each of the states notifying them how many seats in congress each state will get. So it beginsayor when the report is issued and so we would have to on strangle the egg . Can we go back tohe question myt seems to be what many of colleaguesre asking about, rule that should we simply tt not counting illegal aliens because they are undocumented that that is a violation of the statute in the constitution . Is that enough relief to you . Mr. Ho i think it is, because the policy that we are challenging is brought enough and we are bringing a challenge to it and the policy lacks a plainly legitimate sweep for the vast majority of undocumented immigrants qualify as usual residence under the term. Istice sotomayor should agree, what does that mean . What does the secretary do . He doesnt send anything. What happens if President Trump says just on these categories . What happens then . Mr. Ho the injunction prohibits the information to implement the existing president ial memorandum and the secretarys 141 report for apportionment. It is not a gag order on the commerce secretary. There is nothing that would prohibit the commerce secretary from publishing accounts of subcategories of undocumented immigrants on the internet. That is not something that is prohibited by the injunction. Justice kagan . Justice kagan i would like you on the view of the feasibility of the process, whether you have insight into that as to how the process works. And maybe as part of that whether you have any insight into the question of why it is the government knows now that it can do that with respect to the i. C. E. Detainees but cant do it with respect to categorys of people for whom it has equally good administrative records. Mr. Ho i am not a social scientist, but here is what i know. President 19, the issued an executive order on the collection of administrative records as they relate to citizenship, with one of the goals being to ascertain the number of undocumented immigrants in each state. The text of that memorandum states that the Census Bureau at that time, july 2019, had determined based on experience that administrative records to which it only had access would enable us to determine sit should sip status for prep. Etermine citizenship 90 . We know with matching it can do withth the population agencies they have been collting more records for the last year and a half. And noted the goverent has information on millions of undocumented immigrants. You at that together, that is at least a substantial risk of injury, because it doesnt take much to change the apportionment noted. I Justice Breyer it cld be the differee between gaining or losing a seat. Justice gorsuch . Justice gorch no questions. Chief justice this is kavanaugh . Kavanaugh am hoping e solicitor general can address this on reply that the declaratory judgment, who that wod be addressed to and how that would work is something i would appreciate more from the solicitor general on. To ask you about your point that we should rule now because the memo expresses the noncitizensclude who are here unlawfully to the maximum extent under l is what you saihere you quoted that a couple of times. You also referenced the memorandums as feasible. Revealedhe argument is as debriefs but it is going to be very difficult and it wil not be particularly feasible to exclude all of the noncitizens, so we will be left with categories. How do we think about feasibility . Mr. Ho the government identified three subcategories of undocumented immigrants, which in the last few pages, i assume those are the ones the government thinks are the most feasible. Each of those groups, i think, is overbroad. Those groups are heterogeneous and to exclude intervals would violate constitutional and statutory command. There are people detained at the border. Kavanaugh could we rule to that effect now . We have not had briefing and argument on the particular subcategories. Mr. Ho i would agree that to the extent the government wants to rely on saving this policy by citing one or two valid subcategories to exclude, it would be better to get full briefing on those categories. There is nothing that stops the court from ruling on the validity of thisolicy, because it plainly lac legitimate sweep. Justice kavanaugh and then in januy we would deal with the subcategories. Is thahow you see this . Mr. Ho if that is what the president also ultimately does and releases a new memorandum, that is something we would have to do with one way or other because the injunion that was issued by the District Court does not prohibit the exclusion of particular subcategories under a differen memo than the blanket categorical one that is the sue in this case. Justice barrett . Justice brett do you agree there would be nothing wrong or no legal prohibition against the present issuing a new memo articulating a new bases for excluding subcategories . Mr. Ho the injunction in this case doesnt so preclude the president , Justice Barrett. I dont know if i would commit to there be nothing wrong or it being not unlawful. I think we would have see what the memo does come if it excludes people on the basis of transient residence within the realm of the president s discretion. Justice barrett i didnt mean that the lawfulness of whatever the new memorandum said would be determined, i just meant there would be nothing unlawful about his switchin positions and articulating a new rationale for whcertain categories of illegaaliens were excluded. Mr. Ho it wouldnt just be a new ratiale, it would be an entirely new policy with a differentcope in addition t different reasoning. Justicbarrett he could that, right . Mr. Ho the injection doest prohibit that the injunction dont prohibit that. Justice barrett you said that would be a breach we would have to cross later. If he said it is not feasible and we havent been able to get the information so this is why we a going to exclude those in detention facilitie mr. Ho the basis for exclusion where that they were undocumented and tir lack of lawful status, that would run into the same kind of reasoning this court pointed to in shelby county. Justice barrett but in that instance, you are saying the policy itself would be unlawfu but youreot tak the position that he is preclud at this point from anging positions and issuing a new policy . That would be a separate question . Mr. Ho that would be correct, the injunction is specific to the policy issued in its categorical nature. Minute to wrap up. Point,n closingat no no, was in no executive branch bere now has ever thought undocumented immigrants should be excluded from the whole mber of persons in each state. In 1868, the 14th amendment based apportionment on persons, not cizens, specifically to embrace the entire iigrant population and to secure ratificati by states with large immigrant populaons. In 1929, Congress Mandated apportionment on total population, the plain meaning of which does not permit exclusions foimmigration status. Does not permiexclusions for immigration status. While the president may have some discretion in borderle cases, he does not have authority to erase milons of state residents from the Apportionment Based on unlawful immigration status. Undocumented immigrants contribute one trillion in gdp, 20 million in federal taxes, 8 aressential workers, one in four are homeowners and pay property taxes. They are neighbors, coworkers, antheir usual residence under any plausible definition of that term. Chief Justice Roberts thank you. Rebuttal, mr. Wall question mark mr. Wall . Mr. Wall by the time we have more information, the secretary will be ready to send his report. This will happen on a compressed timeline and i do not think prudential ripeness should be used to await a claim that could run out the clock on an opportunity to stand a statement to congress. On the merit, if the president immigration status for any subset they need to take three categories, those in ice facility, those that have committed crimes, and those that have overstayed visas. The president could decide it is consistent with his discretion to exclude those categories, and the question then is do they have an enduring tie under franklin. They dont. We know that from kaplan. Even if they do, it is not enduring because they can be removed. Side that they have not spent defending, where you live orleep over time and that does not include college or boarding school students. The test is not just where you lay your head at night. It is where you have allegiance or enduring tie, and there is no coherent theory of Political Representation that says every illegal alien, no matter how little time they have been here or imminently facing removal is a usual, settled resident. Is the seven prerogative to define the community. The other side is left to say look, this is what t founders wanted, but they dont have an explanation for why the founders would have wanted it, and that should give us pause. They were not painless pele given too purposeless structures. The court should vacate or subject. He finally, to you Justice Kavanaugh, that would open up post apportionment litigation. And if they preva and that litigation othe basis of whatever categories are excluded, they would then be asking for the same relief as in franklin. They wou be asking for a declaratory judgment. It would not be declaratory against the president. Franklin does not allow that. Utah tells us we assume the president will comply with that. There is no room to formulate a different assumption. The president would comply with post apportionment judgment in the event that litigation never happens. We think there is a real prospect it will not. If it does, there is time for that to happen when you have concrete injuries any definitive decision from the president of which groups will be excluded from the appropriation base. We are asking to appropriate or aimed at supporting ocean conservation. This is a little more than an hour. Good afternoon. Hello, senator leahy. Sorry i am late. So, the day has arrived that we are talking about plastics in the ocean. [laughter] why are we having this hearing . So that senator sullivan and the white house will leave me alone. [laughter]