Test captions Copyright National cable satellite corp. 2008 i did want to make that distinction, thats one point. Yes. And making a second point you think at least that in the context of the whole sweep of history, et cetera, Congress Decision not to do this lends some further support to the idea of application of the settled interpretation. Thats absolutely right. Not to draw those infrensz. I will further add to that, at that 96 point, there was also congress was making these choices at a time when there was over 100 years of established meaning and it was aware of that meaning, we know that from the 1952 legislative history and there was so much law on this, including the 99 guidance or not the 99 guidance, but including the a. G. Decisions that congress was adopting the established meaning of public charge, yet again, while making these other affirmative choices about what to do. The next thing is, the 1999 guidance comes out and for two administrations of two parties nobody says, oh, my god, this guidance is inconsistent with what congress wanted in 1996, but for the failed effort to change the law in 2013, congress doesnt come back and say what are you doing, this is inconsistent with what we specifically did in 1996. Thats right. The 99 guidance came out only a couple years after the 96 law and the 99 guidance, im not saying they could never change it, but the 99 guidelines were a cap stone of this history, the 99 guidelines say they were reviewing all of the history and all of the case law to reach the primary subsistence. It is first of all, a guidance, not a notice and comment rule making and even if it was they could change. Yes. I agree with that, but i think it is still yet again another piece of evidence as to how the agencies have been interpreting this and not just in 99 but all along. I think 99 was the culmination of how the agencies have been interpreting it for quite a long time. The question after some confusion, you gave him two cases answering his question. One was utility air. The other . Cuomo v clearing house. Thank you. Thank you. Thank you, your honor. Good morning. Jonathan horowitz for the plaintiffs in the case. I want to add one case to the question that judge lynch asked about cases from the Supreme Court applying the notion of settled interpretations. The brown and williamson case i think 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 that exposed individuals to economic insecurity, health instability, denial to their path to citizenship and potential deportation, thats a finding that is uncontested. The dhs concedes itself that the rule will cause 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 [ inaudible ] forgo the benefits. 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 have choose out of concern for their immigration status not to accept benefits to which theyre entitled. Parents its not because the rule is active to bar them in that way. 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, and 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 lead up 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 consequence. And the census case, for example, tells you that the District 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. Is this whole rule applies only to people who are seeking to immigrate to the United States legally. 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. 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. Right. And does it apply to people who are applying for temporary visas, whether tourists or work visas or Something Else . It does. What were challenging is the application to the rule people seeking green card status. At least 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. I believe thats correct. That would subassume anybody who might be some day who tried to overstay and switch to green card status then need benefits. The 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. Right. To be clear, this rule is not about predicting whether someone will overstay a visa. Thats absolutely correct, your honor. The people to whom the rule applies because they are seeking a green card, then are you saying that the adverse impact of the rule on those people is not the part about having received benefits in the past but is other predictive factors . 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 lprs. Those arent counted but 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. 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. Right. And they do in fact ask. The form asks for those benefits as well. And the rule says were not considering it. The rule says theyre not supposed to consider it. 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 with the total absence of harm to the government here. What the injunction requires the government to do is continue applying field guidance, the field guidance thats been in place consistently since 1999, under standards 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 change of National Security interests, no change of claim circumstance since the field guidance was published and the government concedes it was a lawful exercise of the governments discretion, the agencys discretion. The government itself can see that the field guidance would be an entire proper way for the government to assess applications for lpr which this administration has done for three years. Somewhat unusual position even if we were to decide that the injunction should be the injunction should be affirmed, it would not have any effect at all, at least in the short run, because no immediate effect. Any such ruling has already been stayed by the Supreme Court. No immediate effect. There are of course many ways in which this can play out. Right. And certainly i think well, you write such a great opinion that the Supreme Court decides not even to consider the case and vacates its stay. Were confident of that, your honor, yes. The scope of the District Courts injunction, is that in your portfolio . I would be happy to respond to it. Yes, your honor. The nationwide injunction . 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 say in the Second Circuit this happened, 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. Right. I acknowledge for the reason judge lynch indicated that the practical consequences of this issue and this case is probably going to be limited. I do want to say a couple things. Im talking about if i would be asking this question regardless of whether the Supreme Court had rendered 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. Theres no mention of geographic limitation in the statute itself. Thats correct, your honor. And then, of course, section 706 of the apa authorizes the court to set aside in fact directs the court to set aside unlawful 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. Right. Well, i guess a couple of things about that. One is, its the nature of our judicial system that challenges to Agency Action examine before particular District Courts in particular circumstances. Congress has authorized the District Courts to take that action. 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 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 injunction be crafted in a way that it continues to have effect, not withstanding the districts of the other court disagree and say no, this is fine. To be fair, i dont think that happened here. The District Court did what it did. That was before and at the same time of the District Court here enjoyed the rule, every other court faced with the rule also enjoyed the rule. The first time that the court decided the rule you didnt know how the other courts are going to turn out. Sure. 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. Sure. And i think to be clear particularly beginning at the moment when those other circuits make their own decision. 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 to consider what is necessary to afford the plaintiffs relief. 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 hear the point clearly, i dont know that there are maybe many injunctions that have been crafted in the way that he suggests. There may be precedence for that. I dont know. I would be 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. I dont know know whether they have. 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 were here and we foe 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 . 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. Okay. I know you want to talk about other things than this. 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 rule. The first is the notion that was brought up by the court about what i think by judge leval, whether or not you can 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 predominantly or exclusively need those benefits, the record given the small amount of benefits that can trigger a public charge finding, the amount of time and 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 might have problems with the word need, right. I as weve discussed earlier. Thats right. And the need is the agencys word. Its not our word. Need the public assistance is the agencys term. That is 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 lotsing a job, undergoing a Health Emergency or being subject to life, and 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. Thats at pain page 41. And again, no evidence in the record why the agency couched it as 12 months when they then went in the small print and said its really 12 payments. Even if they are compacted into four months. I dont have an answer to that question, your honor. Its a good question. And again, no evidence that receipt of multiple benefits over thr