Legal Case Summary

We'll hear argument this morning in case 2258 United States versus Texas. General Praiala-Garth? Mr. Chief Justice, and may it please the court. There are more than 11 million removable non-citizens in this country, and DHS has about 6,000 interior enforcement officers. To focus the agency's limited resources on threats to public safety, national security, and border security, DHS adopted enforcement priorities. But the district court issued a sweeping ruling vacating the guidelines nationwide. This court should reverse. First, the state's lack standing. They argue states can challenge any federal policy that imposes even one dollar of indirect harms on their own taxing or spending. That theory has no limiting principle. It's incompatible with our constitutional structure, and it contradicts more than 200 years of history and tradition where states could not sue the United States on this basis. Federal courts should not now be transformed into open forums for each and every policy dispute between the states and the national government. On the merits, the INA does not create an unyielding mandate to apprehend and remove every non-citizen described in provisions that use the term shall. This court has repeatedly held that the word shall does not displace background principles of enforcement discretion. Across 25 years and five presidential administrations, the agency has never implemented the INA in the manner that respondents suggest. Given congressional funding choices, it would be impossible for DHS to do so. Adopting respondents' reading would not lead to more immigration enforcement. Instead, it would just deprive the secretary of his statutory authority to set priorities to protect the nation's security and borders. Finally, as to remedies, the APA did not create a novel remedy of universal vacator, and the INA specifically bars that remedy. Section 1252F1 prohibits the lower courts from granting coercive relief against the operation of the covered INA provisions, and vacator is plainly coercive. I welcome the court's questions. General, does that same provision 1252F also affect redressability for standing purposes? Well, you know, I think that we've obviously analyzed these issues in two separate ways, and I think that here, assuming that they're were standing, it would have been possible to get a different remedy like a declaratory judgment, which the state sought in their complaint. You don't think that 1252F precludes a declaratory judgment. That's right. We do not think that so long as the declaratory judgment is not issued in such a way that the court has made clear that it's coercive, and for example, would be backed up by contempt, that would effectively function like an injunction. We're not disputing that litigants would be able to obtain a declaratory judgment in line with Section 1252F1. So, which remedies would it preclude in this case? So, it would preclude the nationwide vacator that the states obtained here. And the reason for that is because the statute clearly focuses on forms of coercive relief. As the court said in all among Gonzales last term, it prevents orders that would require DHS officials to take or refrain from taking action to implement the covered INA provisions while the suit proceeds. And that's because Congress's judgment in this area was that only this court should have authority to enter that kind of broad, programmatic interference with the operation of the statute while a suit is proceeding. So, we think that here, vacator, shares the same feature as an injunction in terms of preventing DHS from being able to implement these covered INA provisions while the litigation runs its course. Your Linda RS argument under standing. Doesn't that mean that no state would ever have standing to challenge immigration policies? Concerning apprehension or removal of aliens? That's right. We think that the court articulated a principle there that an individual or a state doesn't have a judicially cognizable injury in seeking enforcement of the law against a third party. What about Biden against Texas? The MPP case from last term? Four months ago. Your position seems inconsistent with that to me. Well, we did protest the state's standing in that case as well. In the lower courts, we litigated that issue and the fifth circuit and the district court ultimately rejected our arguments. We had also contested the state's standing at the state stage in this court. And the court ultimately declined to grant a stay relief and found that the states had a likelihood of success on the merits. And at that point, we went back to the drawing board and thought hard about these arguments and believe very strongly that the states here lack standing both under the kind of constitution. So you went from one argument to believing very strongly the other way. This has been a through line. We have been protesting state standing, broad theories of state standing in the lower courts. And Mr. Chief Justice, the lower courts have not been accepting those arguments, but we think that the lower courts are fundamentally misunderstanding this court's precedence as it relates to our constitutional structure and the kind of... I would have thought you'd have a little more concern about an opinion of ours that's four months old. It's not even out of the cradle yet and you're throwing it under the bus. No. No. That kind of mixed the analogies there. We certainly aren't suggesting that that opinion should be thrown under the bus. We were obviously briefing these issues with multiple mistakes that we thought the district court had made in that case. But I don't think this is a jurisdictional principle and I don't think that it would prevent the court here from recognizing that the kind of theories of state standing that the states here are pressing and that the lower courts are accepting would really remove every possible restriction that could exist in this space. And that's just fundamentally incompatible with both constitutional structure and the separation of powers. Let me ask you about another case. Is it the position of the United States that the states lacked standing in the little sisters of the poor case from two years ago? Because their expected additional health care spending was an indirect injury. Justice Alito, I can't recall whether the government made standing arguments in that case

. Well, I'm just asking you now. What do you think about that? The argument was that the states, Pennsylvania, I believe, and another state had standing because of the regulation they were challenging would have the effect of imposing. It would remove health care from certain residents, students who were away at college in other states, and thereby impose an additional cost on the states. Was that wrong? So if I understand the facts of the case correctly, I think that it's possible that that would constitute the kind of direct injury that this court's precedents have recognized in this space. If the challenge regulation operated directly on the states with respect to dictating, for example, their federal funds or require a regulation that they're ready to leave. No, they just said that they would have to pick that up under state programs. Well, let me move on to something else. On this indirect direct injury distinction that you're drawing, should we hold that injury, that an indirect injury is never injury in fact for Article 3 purposes for all plaintiffs? No, we're not asking for that. So we think that this is a distinctive principle that the court has applied when states are seeking to vindicate sovereign or quasi-sovereign interests. And the reason for that, I think the reason the court's precedents recognize that the states are then under an obligation to show this form of direct injury is about our constitutional structure. So this is a special standing rule for states that disfavor states standing? Let me be perfectly clear that when the states are seeking to proceed on the basis of proprietary harms, the same kinds of interests that other private litigants can bring to the same rules of public. Yes, but an injury that would be sufficient for Article 3 purposes for an individual or for a private entity is not sufficient in your view for the states. There's a special rule for the states. With respect to quasi-sovereign and sovereign interests, yes. And the reason that this is a rule of special hostility to state standing. How is that consistent with Massachusetts versus EPA where the court said that there is a special solicitude for state standing? Special solicitude as we understand it in this court's precedents reflects the fact that states have more theories of injury available to them. So they're not limited to the same proprietary interests that other parties can assert with respect to their contract rights or being regulated as an employer. Instead, special solicitude reflects the fact that states can also seek to proceed on the basis of sovereign or quasi-sovereign harms. But I don't think it's right to suggest that the court's rules or framework in this area amounts to hostility. This is about recognizing that when one sovereign is suing another sovereign under our constitutional structure that implicates fundamental constitutional principles. And I think a contrary rule would effectively mean a state can sue about anything. You don't like the word hostility, but you have a special rule for state standing that disfavors the states. The states are in a less favorable position than they would have been if they were a private entity or an individual. Let me move on to one other case. Do you can see that federal election commission versus Atkins acknowledges that Congress can permit civil actions challenging non-enforcement decisions? Yes, in that case, I recognize that the court concluded obviously over Justice Scalia's dissent, but that is an example where the court allowed standing in that circumstance. And why doesn't that principal apply here? Well, I think that the more on-point precedent in this case is shurtan, where the court specifically took the Linda RS principle and said that it applied in the realm of immigration law as well. What do you do with Heckler versus Cheney, where the court recognized that general principle, but also said when Congress puts specific limits on executive enforcement that courts have authority to enforce those limits? Well, in that case, of course, the court wasn't confronted with standing questions. That was a case about whether a decision was committed to agency discretion by law. And I think the court's recognition there is that Congress has statutory authority to make its own judgments that sometimes will direct agencies in the exercise of discretion. But we think that that presents a merits issue and it raises the question whether you should interpret particular statutory language to create that kind of displacement of discretion in the first place. General, assuming hypothetically that I don't accept your argument, that a cost to a state could give it standing in certain situations. Judge Sutton, in a related case to this one or a similar case to this one, pointed out, however, that under Arizona versus when we have said that if you're going to claim cost, you have to show us that it's a net cost. Could you address that as an alternative theory here? Yes, of course, Justice Sutton, my or. And we think here, getting into the facts of this case, that there was no basis in this record to conclude that the states will actually incur these kinds of indirect effects on their own taxing or spending or regulating. The district court seemed to think that these enforcement priorities would suppress overall levels of enforcement such that there would be the prospect that there might be additional non-citizens present in Texas. But if you look at how the enforcement priorities are intended to operate, this is not about reducing enforcement of the immigration laws. It's about prioritizing limited resources to say go after person A instead of person B. And there is no reason to conclude that that's actually going to lead to less enforcement against individuals overall. Suppose Congress passed a law that said that every person must buy seven apples per week. And let's say I don't like apples and the cost of seven apples is, I don't know, $8. And that's, I say, that's a pocket put put injury for me. So I have standing to challenge that. Do I have standing or do I have to show that the net benefit to me, monetary benefit to me, of buying all these apples is that it will improve my long term health. And so I will health care costs that I might have otherwise incurred. I'll avoid by buying all these apples. If I buy them, I'll feel that I have to eat at least some. Do I have to show net injury there? Justice Alito, I acknowledge that in that hypothetical, no, you could challenge that regulation that is directly operating on you. But I think the problem for the states here is that they're asserting indirect harms. They're suggesting that they're through an attenuated chain of events. There is going to be perhaps the prospect of one additional non-citizen in their borders. And that's going to cause harm. You've gone back to a different argument. I understood those to be two separate arguments. You have the direct indirect argument and you have the net cost argument. Well, here I think I was trying to talk about them. Whether the district court could have reasonably concluded that there would be that kind of actual out of pocket expense for the states. And I was trying to make the overarching point that that's not how these enforcement priorities work in the first place. But even on the specific conclusions that the district court reached, we think that the findings were fundamentally flawed. So clearly, Aronias

. Yes. To agree with you, we have to find, because you didn't talk a lot about the clearly Aronias standard in your brief. So I wondered whether you were saying that the district court's factual findings were clearly Aronias or that the district court made an error of law because it didn't offset burdens with benefits. No, we are arguing that these factual findings are clearly Aronias. And I recognize that the court infrequently delves into facts like these. But I guess what I would say is that if any facts are clearly Aronias, it's these facts. And it's not hard to see on the record why. The district court committed really two independent errors here. The first thing is that it looked at the wrong time frame. It focused on fiscal year 2021 to suggest that the states had incurred costs. But that was a time period before these guidelines even took effect. And so it was improper to draw those kinds of causal errors based on that data. But even putting that to the side and looking at the data, it doesn't support the district court's analysis. The court said DHS is not detaining the same number of criminal noncitizens. But the very chart that the district court included at J.A. 314 shows that over the time in question, the number of criminal noncitizens in custody remained essentially unchanged. And then with respect to removals, the district court said DHS has done far less enforcement action with removals and focused on a comparison between fiscal year 2019 about 250,000 removals and fiscal year 2021 where there were about 55,000. But the district court ignored entirely that that was during the pandemic and the CDC's public health order under Title 42 was an effect and DHS excluded more than a million noncitizens under the Title 42 order. So the bottom line conclusion here that there was less immigration enforcement overall, I think was clear error. If I could move to the merits, let's say that I disagree with you on standing and on the remedies and I have to reach the merits and when we get to the merits, I think shall mean shall. Then we're in a position where, as you see it, Congress has passed a law that is, it is impossible for the executive to comply with. Now it's our job to say what the law is, not whether or not it can be possibly implemented or whether there are difficulties there. And I don't think we should change that responsibility just because Congress and the executive can degree on something that's possible to address this problem. I don't think we should let them off the hook. So shouldn't we just say what we think the law is, even if we think shall mean shall and then leave it for them to sort that out? Well, Mr. Chief Justice, let me take a stab at trying to persuade you that these considerations of resource constraints do properly inform the task for this Court, which is to interpret the meaning of shall and the statute itself. Well, it seems to me that you're arguing with one of the predicates to my question that we think, I think, anyway, shall means shall. What do we do in that situation? If this Court were to actually adopt that interpretation of the statute, then I think that it would be incredibly destabilizing on the ground. I didn't ask you what it would be. I want you to know what we should do. Should we still fulfill our responsibility to say what the law is and then it's up to Congress and the executive to figure out a way to comply with that? I think if the Court did that and the reason I'm turning to the practical implications here is because in the meantime, while Congress and the executive tried to figure it out, it would absolutely scramble immigration enforcement efforts on the ground. It would mean that DHS, I think, if it were under this kind of judiciously enforceable obligation to treat each of those shals as a mandatory shall. So you're still arguing that that would be wrong to say shall means shall? I think it would be wrong to say the shall means shall, and I would welcome the chance to explain as a matter of statutory interpretation why that so. But at the very least, I don't think the Court should announce it as a judiciously cognizable injury here that could justify interference by the courts in light of the practical ramifications. And there are really two sides of the same coin because I think one of the reasons the Court has recognized that there is enforcement discretion in this area is precisely because of the practical necessity that agencies cannot proceed against every violation of the statute. That's what the Court said in Heckler, or in town of Castle Rock, the Court emphasized that a rest mandate, if it were truly a mandatory judiciously enforceable duty, would be a duty of entirely uncertain scope and priority and duration. It would be impossible to comply with it. And the Court said that these background principles of enforcement discretion are a practical necessity. Are those background principles constitutional principles? In other words, if Congress says shall mean shall, and we really mean shall mean shall. Is that unconstitutional? So not in each and every case. Is it ever unconstitutional? In other words, does the President have an article to ability to say I possess enforcement discretion under the Constitution and any attempt by Congress to restrict that enforcement discretion by saying shall mean shall would itself violate article two. You just shared article two briefly in your brief, but you don't really unpack it very much. I'm curious what your answer is to whether that could be unconstitutional. So I think that yes, there could be certain circumstances where Congress has engaged in a really intrusive effort to command the executive to take particular enforcement actions to prosecute individuals in a particular way, where we would say that that does transgress article two limits. Does this one transgress article two, this statute, if the Chief Justice posits shall mean shall. I don't see an argument in your brief that if the statute is read to mean what it says shall mean shall that the statute will be unconstitutional, but I just want to make sure I'm reading your brief correctly. I didn't see an argument that that would be unconstitutional. That's right. We haven't argued that the statute would be unconstitutional, and we accept that Congress in various provisions of the INA has created mandatory duties. General, can we break down 1226 C's shall? Yes. Section 1226A applies to arrest and detention pending a decision on whether the alien is to be removed, correct? That's correct. In Reno and elsewhere, we have repeatedly recognized the agency's broad prosecutor discretion to not put someone in removal proceedings and to drop proceedings, correct? That's right. The Court said that it all stages of the removal process, including whether to charge a non-citizen in the first place. So if someone's not in a removal proceeding, you have the discretion to drop them. If they are or if they're not, you can say we're not going to remove you, correct? That's correct, yes. We've said that in a legion of cases. Yes. So C is only applicable mandatory detention when there's a removal proceeding in place, correct? That is correct, yes

. And so a vision in A. So we would have to basically say that C trumps A and C trumps a discretionary power we've recognized for decades, correct? That you could not proceed with removal, correct? That's right. I think if you were focused on the decision whether to proceed with removal in the first place. So the only issue is if there is a proceeding, if someone is in removal already, whether or not you are mandatory required under C to put them into removal, correct? Yes. And take custody of that. The state's assertion here is that we would have a mandatory obligation, I think, to seek out and identify and go out and apprehend every person who could possibly be described. That's the logic of there. That's the logic of us saying that shall mean shall in all contexts. It means that you have to go look for everybody even when you don't know where they are, correct? That's right. And I want to emphasize that it's not just this provision, there are shouts throughout the INA that would, if it were interpreted to mean mandatory, inflexible duty that displaces enforcement discretion would create these kinds of unyielding mandates across the realm of actions. Well, I don't understand the state's argument to depend on the proposition that the executive must detain everybody, even if it doesn't have the capacity to detain them. I understood that argument to be centered on something quite different. So let's just assume for the sake of argument that there isn't an issue about how many people you are going to detain. But only a question about which ones you are going to detain. And the problem that I see with your final memorandum is that Congress has established its own set of priorities and has said that certain categories of aliens must be detained, shall be detained. And the final memorandum says, tells ICE officers don't do that, don't detain anybody based solely on that person's criminal history. You must make a totality of the circumstances decision about every single alien who you are considering for detention. Isn't that correct? No, that's incorrect. And let me be really clear about how the guidelines operate with respect to detention. They don't govern the question of continued detention at all. They are focused on apprehension and removal. And therefore, when DHS officers have someone in custody and there are pending removal proceedings, the guidelines leave it to the statute to dictate those kinds of detention decisions. And DHS does treat 1226C to his mandatory in that circumstance. And so therefore, it's sort of analogous to mandatory free trial detention statutes, where Congress says if you, as a prosecutor, determine that you are going to go after somebody, you are going to prosecute them in the criminal realm, there are certain people you have to detain during the prosecution. There are certain people who have been convicted of certain crimes. We have statutes where Congress says those people have to be detained, but that doesn't speak to the antecedent determination of whether or not to prosecute those people. I think the problem that I'm seeing with the state's argument is that they appear to be conflating Congress's mandates with respect to detention and Congress's statements with respect to removal. And that the idea of 1226C is that once the determination has been made pursuant to prosecutorial discretion that you're going to remove someone, if those people fall into the particular criminal alien categories, they have to be detained for the purpose of that removal. Am I reading that correctly? Yes, so the way that DHS has long understood and implemented this provision is that if we have a non-citizen in custody with pending removal proceedings as 1226A requires, then if the non-citizen is described in 1226C detention is mandatory. The reason for that is not because it says shall detain. We don't think that that bear use of shall alone displaces enforcement discretion. It's because in 1226C2, Congress specifically delineated the permissible basis for release and said the secretary may release only for narrow witness protection purposes. Isn't it also related to sort of conceptions of government power? In other words, the reason why you have the authority to detain someone is because you've made the determination that they're going to be removed. The government doesn't just go around detaining people without having made a determination about their prosecutorial ability without the fact that they're going to prosecute these people or they're going to remove these people, that's where the authority comes from. Yes, and I think that this relates both to the colloquy that I was having with Justice Sotomayor and with Justice Kavanaugh. It would be a really extraordinary thing for Congress to have dictated to the executive that it has to seek out, identify, apprehend, and remove as an inflexible mandate each and every non-citizen who's described in a provision that uses the word shall in the IMA. Yes, true. I guess your stronger argument is where their removal proceedings have not been initiated. But how about are there some circumstances in which there are pending removal proceedings, so the 1226 kicks in, but you haven't apprehended the person. And are you then saying that you don't have an obligation to apprehend the person even once you've initiated a removal proceeding? Is that ever happened? Is that your argument? Why is it your argument? Yes, so it's possible that that could happen in a circumstance, for example, where DHS encounters someone at the border who lacks papers and so they're removable and they're issued a notice to appear and have pending removal proceedings. But the agency isn't aware that there are a non-citizen described in 1226 C, and then later gains that kind of information after the non-citizen has already been released and therefore is aware of the information at that juncture. But I do want to be clear that it's not as though DHS has a database and an awareness ex ante of each and every non-citizen who might have a 1226 C. So I'm sure that question, which is the one Justice Kagan did, if someone is in removal proceedings, you know it. Can you release them? So I know that was not the question, because the question was that the person had not been apprehended. And the question is, does this statute force you to apprehend the person once you've initiated removal proceedings as to that person? The answer to that question is no. We think that the shall take into custody language has to be read against the backdrop of enforcement discretion and it would be totally unmanageable to have a judicially enforceable duty to go out and apprehend because how many officers do we have to put on the manhunt? How long do we have to look? How many resources do we have to devote to it? But I should also be clear about the factual premise, which is that we would know with certainty that the person is subject to 1226 C. That's actually a really complicated legal analysis under this Court's categorical approach. It requires percing the elements of the state statute, comparing that to the generic federal offense or the federal crime, deciding whether there's an overmatch, deciding whether the statute's divisible, tracking down the shepherd documents. So it's not as though DHS conducts that analysis or knows in advance. Instead it conducts the 1226 C. analysis when it's making release determinations for people who are already in its custody. Council, may we can move on to individual question now and I'm sure that some of it will deal with remedy, which is the one area we haven't addressed yet. And in that area, your position on vacator, that sounded to me to be fairly radical and inconsistent with, for example, you know, what those of us who are on the DC circuit, do five times before breakfast, that's what you do in an APA case. And all of a sudden you're telling us that no, you can't vacate it. You do something different. Are you overturning that whole established practice under the APA? Yes, I acknowledge Mr. Chief Justice that the lower courts, including the DC Circuit, have an R view been getting this one wrong. And they have reflexively assumed that vacator is authorized under Section 706 of the APA. But what I would say is that they haven't reached that conclusion with the decision

. I mean, this is a long, that's what the DC Circuit and other courts with appeals have been doing all the time as a staple of their decision output. But they haven't been doing it with any attention to the text, context, and history of the provision. So it's not as though there are decisions out there that have really engaged with these arguments and come out the other way. Instead, it seems like this happened and came about because courts just reflexively transposed remedies that were available under special statutory review provisions, which do sometimes authorized vacator to the APA context writ large. And our argument is that if you actually drill down on the text of 706 and look at its context, and also look at the history of the APA, which was not intended to create any kinds of new remedies, but instead to simply provide for the remedies that had pre-existed the statutes enactment in the traditional forms of legal action under Section 703, it demonstrates that the courts have aired here. And I don't think- How many cases would you say that we have issued over the past year, decade, whatever, where we have upheld decisions vacating agency rulings under the APA? The court has done it in a number of cases. Some of those involve special statutory review provisions, so I do want to box those off, but I acknowledge, yes, the court has sometimes affirmed decisions that have been made to agency over and over and over again. But also never with attention to the remedial arguments that we're making here. And I don't think it's ever too late for this court to give the statute its proper construction when you actually look at its text context in history. And I don't think- Justice Alito? Well, I want to come back to the last question that I asked you and break it down. And I hope you can give me a succinct answer to these questions that I'm going to ask. If Shell means Shell, is there a- Well, let me meant that. Does the statute say that an alien who has been convicted of an aggravated felony shall be detained? Yes. It says that in Section 1225- And I'm looking at final memorandum pages 114 to 115 of the Joint Appendix, where you set out certain aggravating factors, which includes a serious prior criminal record, the gravity of the offence of conviction and the sentence imposed. And then a list of mitigating factors advanced or tender age, mental condition, various others, military or public service. And then you say on 115, our personnel should not rely on the fact of conviction, or the result of the database search alone. Now, that's what I was getting at. Congress has set out certain priorities at, with respect to an alien convicted of an aggravated felony. It says that person shall be detained. And what your final memorandum says is no, that person shall not be detained based solely on this prior conviction for an aggravated felony you have to take into account. That is one of the aggravating factors, and then all of these mitigating factors, and then the officer must make a determination. So we have one set of priorities established by Congress, and a different set of priorities established by the executive branch. Is that correct? No, that's wrong, because the guidelines govern only decisions about apprehension and removal, whether to charge a non-citizen in the first place. And I think the kind of mismatch here, is that 1226C governs when DHS has already made the charging decision, so there are pending removal proceedings. And at that point, if we have a non-citizen in custody, we will detain them if they're described in section 1226C. ICE does not make release determinations without running that analysis. And so I don't think that there is any fundamental override here of the detention provisions, because the guidelines don't have anything to do with continued detention. Justice Sotomayor. Let's break that down again. Okay. A and C operate only when you've decided to remove somebody. Correct. Correct, because of the pending removal proceedings, or pending a decision on whether the non-citizen. Nothing in A and C takes away your discretion explicitly or otherwise to decide not to remove any particular person. That's correct. What it says is you have to do something when you decide to arrest and detain and remove. Correct. And at that point, we are prohibited from release of their pending removal proceedings. So that at any point in this process, you're saying the guidelines were focusing in on the guidelines as making the determination of whether to detain. You're saying, no, you're making a determination as to whether to remove or not, correct? Yes, that's correct. And it's only then that A and C come into effect. Yes. All right. And we've been talking about 1226. But Justice Sotomayor, your questions touch on 1231 as well, which has in subsection A, a directive that VHS shall remove non-citizens with final orders of removal. But this court already said in Reno versus AADC in Justice Scalia's opinion for the court, that the executive retains discretion not to remove at all stages, including after a final order of removal. So I think we see the same kinds of situations and these principles of enforcement discretion apply there. Thank you. Justice Kagan. You referred a little while ago to past administrations practice and said what you were doing was consistent with that, or at least that Texas' view would be inconsistent with that. And I wondered if you could give a little bit more detail on that. And I'll tell you just that it seems to me that you're, you have a quite strong argument under 1231, but I'm not so sure of your argument under 1226. And so if you would address each of the two provisions and what prior administrations have done. Yes. I would be happy to. So the agency has always implemented these provisions, which were added to the INA in 1996, in recognition that it retains its background principles of enforcement discretion. And so it has never implemented the statute with respect to 1226, 1231, or some of the other big ones like 1225 that you shall as creating an inflexible mandate to go after each and every one of the non-citizens described in those provisions. And that has been constant. With respect to 1226C itself, the other thing that's been constant is what I was describing to Justice Alito, which is that DHS has long understood C2 to require mandatory detention in circumstances where we have pending removal proceedings and already have an individual in custody

. But it has never interpreted that provision as requiring it to go out and arrest every individual who's described in that provision, and both because that would be an impossible burden, and because it's never understood the shall language, the bare use of shall, with respect to the taken to custody provision, to create that kind of inflexible mandate. Thank you. Justice Gorsuch? We haven't had a chance to discuss 1252 much, and I'd like your thoughts on that. In particular, if we were to agree with you on that, do we have to address your standing arguments, let alone the merits? No, I think that if the Court agreed with us on the scope of 1252F1 as prohibiting the vacator that was ordered here, the Court could say that alone and stop. That's also a jurisdictional threshold issue in this case. Is it jurisdictional, though? We've had some question about that last term as you'll recall as well, and whether it's just a remedial limitation on remedial options for the district court or whether it is through the jurisdictional statute. So we think that it is clearly a jurisdictional obstacle to entering a form of relief, and Congress is free to attach the jurisdictional label and the jurisdictional consequences to provisions like this one, which take particular remedies off the table. And 1252F1 itself says that courts shall not have jurisdiction to issue these kinds of orders that in Joanne or Restrain, so we think that it does clearly function as a jurisdictional limit. Okay, and your friend on the other side has made certain arguments about why 1252 doesn't apply, and I just want to give you a chance to address those. So we think that their arguments are fundamentally inconsistent with both the text and the purpose of the statute. Their argument seems to be that the word Restrain in the statute does no work at all. That in Joanne and Restrain is just superfluous, Congress didn't need to use that term, but we think that that clearly ignores the fact that the Court generally doesn't interpret statutory language to produce that kind of superfluity. And then there's a second statutory principle here where the very next subsection of F2, 1252F2 uses just the term in Joanne, and that implicates the principles this Court has articulated that Congress generally means different things when it uses different language in adjacent subsections of the same provision. And then on top of all of that, we think that Texas' arguments would essentially create a giant loophole in what Congress was attempting to do with this statute. The whole point of this provision is to prevent lower courts, not this Court, the lower courts from entering coercive, programmatic relief while the case is being litigated, and that's precisely the effect of universal vacate or here. You indicated earlier, I believe, that you thought a district court could still enter a declaratory judgment, and at least my recollection is the federal government tries to abide by declarations of the law. So how is that fit into your theory? So I think a declaratory judgment would not have been coercive in the same way. If the district court had entered a declaratory judgment here, it wouldn't have required us to comply. We would have thought that that judgment was entered in error, we would have pursued our appeal rights, and I think that DHS would have been free to continue to apply the guidelines in the interim while the case was proceeding. Okay, and on the APA argument, some of us didn't have the benefit of sitting on the district, the DEC circuit five times before breakfast entering these orders, and I stare at the language, and I hear your argument. I think your front on the other side is going to point us most specifically to the language set aside in 706, and hang his hat there if I had to guess. And I'd just like to hear your response. So we have never disputed that set aside can sometimes mean vacate, but I think it's equally clear that that text can sometimes bear the meaning of disregard or literally set to the side. That's how the court uses it when it reviews federal statutes, for example. If the court thinks a statute is invalid and might say we're setting aside the statute. We don't erase them from the books. Correct, you do not vacate or void the statute and take it off the statute books instead you literally disregard it for purposes of fixing the rights of the parties before you, and we think that's how section 706 uses the term. The reason for that is because 706 is setting forth a rule of decision that governs across all of the cases where APA claims can be brought, including things like habeas actions or judicial enforcement or judicial review of an agency enforcement actions. And there would be just like a statute, you can't vacate an agency regulation in a habeas case, you would have to set it to the side. It's section 703 that sets forth the remedies under the APA, not 706, and we think that if you look at the context here, and also the history that there was no intent by Congress to create a truly unprecedented sweeping non-party specific remedy, it fortifies the conclusion that that would not be the proper interpretation of the text. It is kind of interesting that remedies are expressly listed in 703 that Congress would sneak in the most important remedy, and by far the most sweeping one in section 706, what is it? 2B, something like that, which is governs the scope of review, and that nobody at the time, Davis, Jaffee, you know, people who noticed things, noticed this innovation. That's correct. So we think that certainly if Congress were going to take the action of creating this kind of unprecedented remedy that operates directly on the agency rule itself rather than with respect to the parties, someone would have said something, and Congress would have made that much clearer in the text of the statute, and not separately addressed remedies in 703. Thank you, Joe. I have questions on each bucket. So on standing, if a new administration comes in and says, we're not going to enforce the environmental laws, we're not going to enforce the labor laws, your position I believe is no state and no individual and no business would have standing to challenge a decision due as a blanket matter, just not enforce those laws, is that correct? That's correct under this Court's precedent, but the framers intended political checks in that circumstance, you know, if an administration did something that extreme and said we're just not going to enforce the law at all, then the president would be held to account by the voters and Congress has tools at its disposal as well. And what are those tools? Because you mentioned earlier, this would be extraordinary, but I think Congress in 1996, and today, but in 1996, which is the relevant date, thought the immigration problem in the state. And the United States was extraordinary. And the lack of enforcement to the degree that Congress has of 1996 wanted. And so that's why they toughened the laws and constrained the executive discretion, at least that would be, I think the position. So if courts aren't going to be able to enforce those congressional mandates, what are the exact tools that Congress has to make sure that the laws are enforced in the United States? Well, I think that Congress obviously has the power of the purse. It can make the executive's life difficult with respect to his decisions about how to appropriate funds. Congress has oversight powers. These were the same kinds of considerations that the court cited in Reigns versus Bird when it was confronted with some of these same separation of powers, structural constitutional considerations, and identified the fact that Congress wasn't powerless to act. But just as Kavanaugh, if I could just for a minute, press on the premise of your question that Congress in 1996 intended these to be judicially enforceable mandates. I guess I would say two things. One is that Congress has never actually appropriated funds to DHS to permit treating all of these shals as mandatory judicially enforceable shals. And the other thing is that Congress specifically precluded judicial review in provisions like 1226 E and 1231 H, which we haven't had a chance to discuss. Those are good arguments except we have precedent that's against you on those. So at least on 1226. And I know you have a response to that, but don't need to go into it now. But I think your position is instead of judicial review. Congress has to resort to shutting down the government or impeachment or dramatic steps. If some administration comes in and says we're not going to enforce laws or at least not going to enforce the laws to the degree that Congress by law has said the laws should be enforced. And that's forcing, I understand your position, but it's forcing very Congress to take dramatic steps, I think. Well, I think that if those dramatic steps would be warranted, it would be in the face of a dramatic abdication of statutory responsibility by the executive. And there's a reason we don't see that throughout our history because of those political checks that prevent the executive from taking those kinds of actions. And you know, it would be like saying if the president decided to pardon every federal criminal and release them all, obviously no one could sue about that. But there's a reason that doesn't happen

. Right, but there's also just a press in this little more. You make a big point your brief. This is unusual. This is rare. But it's unusual for Congress to mandate particular exercises of enforcement or prosecutorial discretion. Most statutes do not say the executive shall detain, shall prosecute. And I think that's why this is an unusual situation. But I take your point on that. Can I move to remedy then because I still have some problems with that, as you might imagine. Set aside, you said the judges on the DC Circuit haven't paid attention to text, context, and history. I guess I would respectfully push back pretty strongly on that. I sat with judges like Silverman and Garland and Tatl and Edwards and Williams. They paid a lot of attention to that. And the government never has made this argument. In all the years of the APA, at least not that I remember it's in there for 12 years. I haven't seen it made. It's a pretty radical rewrite as the Chief Justice says of what's been standard administrative law practice. And you devote three pages in your brief to this complete change that all these judges have been doing for all these years. And the government comes up and acknowledges that in case after case with a labor or energy environmental. And I think it's a big step. And you say they're not paying attention to the text. Yeah, we did. Set aside means set aside. That's always been understood to mean the rules no longer in place. No one's really had a, this no case has ever said what you're saying. Anywhere. No one, you know, it's a recent law review proposal. Good for that. But, you know, that's not been the law. And so I find it pretty astonishing that you come up here. And make it. And I realize it's not your, you know, the main part of your submission. But I'm just going to push back pretty strongly on the three pages for just just toss out decades of this court's law of circle law. And you've got public citizen. And Texas coming after you on this. They don't usually unite in a administrative law case in my experience. And they both say your position is completely unprecedented on that. So. That's not really a question, but that is a. That is a comment on what I, what I think is a pretty extreme argument. And I know it's not your whole argument, this piece of the argument. So I don't want to overstate what I'm saying here. Just this piece of your argument, I think is pretty extreme. So. So just this Kavanaugh, let me say first, let me clarify that of course I didn't mean that the DC circuit is in generally paying attention to text context and history. And I should have been more precise that I don't think that the court has ever had the opportunity to actually engage with the arguments that we're making here. And what I was trying to point out is that I don't think it's too late for courts to start to engage with these arguments. And I recognize that we ourselves are landing on them somewhat late in the day. But we have been making these arguments consistently. I think the first time we started to make them was in 2008 in the summer's versus earth island Institute case. We've repeated it pretty consistently since the little sister's case in the last administration. And in cases here. And some lower courts now that they are actually looking at our arguments have recognized. The force of those arguments it's not accurate to say that no court ever has considered this or accepted it. The force circuit has said that universal vacator is not a permissible remedy under the APA chief judge sudden in the Arizona versus Biden case and his separate concurrence recognize the force of our arguments about vacant or under section 706. And what does it mean just in this case if does it mean for example we rule against you on the other issues but then agree with you on the remedy. The set aside point that mean the government can then ignore the substance of this courts ruling in other states. No, not at all. I think if this court then went to issue well this court would have authority of course to issue a declaratory judgment

. And we would abide by that throughout the nation of this court said what the law meant in this area. So I don't think it suggests that courts are going to be powerless to issue remedies here. They'll just be confined to the traditional legal remedies that pre-existed the APA as Congress intended. And that can include in other contexts injunctions and junk to relief. It can include declaratory judgments and any other permissible remedy that pre-existed the APA. Thank you. Justice Barrett. Let me pick up on the vacator point. So one question I have obviously the chief and Justice Kavanaugh have pointed out that the courts of appeals, particularly the DC circuit have employed the remedy of vacator for a long time. Why isn't it possible and let's say that I agree with you and agree with some of the scholarship that says that this was not contemplated at the time of the APA's enactment. Why can't remedial authority evolve over time? Even if injunctions and declaratory judgments are what those who enacted the APA of Congress had in time, scholars at the time, Jaffee thought that vacator didn't occur to them. Remedial authority is a flexible concept. And so maybe the courts of appeals have expanded that concept. Why would that be impermissible? Well, I think it would be inconsistent with how the court ordinarily approaches these types of questions of statutory interpretation. And I think if you agreed with us that this is not what Congress meant to authorize when it enacted Section 706 of the APA, then there would be kind of no basis to alter the text at this date and to suggest that actually the court can read into that language that all agreed was not to be an agreement. It's not intended to cover vacators. But set aside is broad, right? It's not specific. And even in 703, it says including actions for declaratory judgments, erits of, you know, pro-bittory and mandatory injunctions. It doesn't exclude it. And given that set aside is broad, you know, it's, it's, you know, you're asking for a narrowing construction of it. And I guess what I'm saying is when set aside could be read to include vacator, it doesn't preclude it. Why is it not subject to evolution? Well, I think that there's an additional problem here with trying to expand it in that basis in so far is it would expand beyond party specific relief. And that implicates its own considerations under Article III, and implicates the same arguments we've been making about nationwide injunctions. That when courts issue remedies that go beyond the parties in the case, it can take courts beyond the traditional forms of relief that are authorized whether under Article III or under the statute. So I think here reading into the statute a new, unprecedented remedy that would apply on the agency action itself instead of with respect to the parties would be problematic. Okay, I'm glad you brought that up because I have a question about that too. Why don't you treat this not as a jurisdictional argument? You can see that vacator could be appropriate in a special statutory scheme, but say simply that as a matter of statute, statutory interpretation that APA doesn't authorize it. Why isn't it a matter of Article III jurisdiction? Why do you concede that it would be acceptable if Congress specifically authorizes it? Well, you know, is this court well knows from its various cases trying to parse that line on whether specific statutes are jurisdictional or not, it can often require Congress to speak very clearly if it's trying to attach that jurisdictional label. And here with respect to the remedies that the APA contemplates, we don't know, I mean as a matter of Article III. As a matter of Article III jurisdiction, you know, I guess it would be possible to think about it that way we haven't made that argument, but I wouldn't want to shut the door on it because of the particular concerns with extending beyond party specificities. Last question on jurisdiction, you know, in response to some of Justice Gorsuch's questions about whether we should interpret 1252 to be a preclusion of remedial authority or actually tied into jurisdiction, you said you thought it was jurisdictional. If you think that the APA doesn't authorize the remedy of vacator, is that jurisdictional? By that same logic, I mean. So no, because I think if the APA doesn't authorize vacator in the first place, then you wouldn't have any issue under Section 1252F1. So we're not disputing that a set aside order in the terms of just setting an on lawful agency action to the side for purposes of rendering. No, maybe I didn't articulate my question. Well, I understand that 1252 precludes jurisdiction. Yes. I'm saying that if a court lacks jurisdiction when it lacks the authority to issue a particular remedy, why wouldn't we understand the APA then? Why wouldn't we understand this issue as a matter of statutory interpretation to be jurisdictional? Because if the district court is entertaining an action to award a particular kind of relief that it lacks authority to award, would that be jurisdictional? We have not previously argued that this APA limit is jurisdictional. The reason we've made the argument under 1252 is because it specifically says no court shall have jurisdiction to do this. And we think that that is Congress clearly acting to attach jurisdictional consequences to an exercise of remedial authority. But I take the point and I think it might be possible to conceive of a jurisdictional basis as well if a statute is actually preventing a remedy from being ordered. Last question, this one goes to the merits. So Justice Alito was asking you, you were kind of going back and forth with them about the complexities of making the determination whether a non-citizen even falls in one of these categories in the first place. And I just wanted to give you a chance to address how there's a portion of the statute that talks about your, it's in CD. The Attorney General shall divide and implement a system to make available daily on a 24 hour basis, to state federal and local authorities, to determine whether individuals arrested for such authorities for aggravated felonies or aliens and then it goes on. Why isn't that where the discretion and the resources should be channeled as a matter of statute rather than into the holistic inquiry that the memorandum dictates? So I certainly acknowledge the point that Congress might have anticipated that it would be easier to make this determination about aggravated felony status and it set up mechanisms to try to ensure that there was information sharing between the federal government and the states. And I think maybe Congress couldn't have anticipated the developments in this court with respect to the categorical approach and the legal complexities that would raise about trying to monitor any number of varied state statutes that can be drafted in very different ways with the end result being that before it's possible to be taken. So I think that's a good point to determine with certainty that someone is subject to 1226 C2. It often involves an investment, a considerable investment of resources and consultation between officers and legal advisors to try to ascertain the scope of that provision. But you do have such a system? Yes, we do have systems to share information between states and the federal government with respect to those who have criminal convictions in state court. Thank you. Justice Jackson? Yes, as you might imagine, I would like to circle back to the concerns that the Chief Justice and Justice Kavanaugh raised about vacator and the argument that you're making in this case and seems to be a kind of DC circuit court. It is, it is. And in particular, the conceptual problem that I'm having with your argument. You point to text context and history and I understand those things, but ordinarily, there is a symmetry between the claim that is being made in a case and the remedy that is provided to a successful plaintiff and your remedy, the way that you're reading this actually creates a disconnect from me. Here's what I mean. It is clear that the claim under the APA is about the manner in which the agency has exercised its discretion. And we know, know that agencies have no inherent authority. They get all of their power to make valid and legally binding policies from Congress

. And Congress has said in the APA that in order to make valid and legally binding policies, agencies have to follow certain procedures. So when a plaintiff is making a claim under the APA, they're complaining about the agency's failure to follow the procedures that are necessary in order to reach a valid and legally binding result. Given that that's the case, I think there's a disconnect to say that the successful plaintiff only gets a remedy that is about the application of that rule to them because their complaint is not about the application. Their complaint is that the agency did not have the authority to do what it did because it didn't follow the procedures under the APA. It says, as though they're saying what the agency did is void, it's a null set because they did not follow the procedures that Congress required. So I just don't even understand, setting aside how you read the statute to get to that result, it seems to me to not make sense to say that the remedy is to allow the agency to apply its void defective rule to anyone else who's not the plaintiff. So Justice Jackson, I think where I disagree with your analysis isn't suggesting that a plaintiff in a case isn't protesting the application of the invalid agency regulation to that party. That's the very nature of this kind of dispute. Now it might be the case that the arguments they're making about the right. It's not the nature because, I mean, obviously they are saying it was applied to them as a matter of standing. You have to have it applied to you in order to make the charge. But the claim is that the agency has failed to have notice and comment where it was required or the agency has engaged in arbitrary and capricious decision making. And if that's true, what it means is that the agency does not have a valid exercise of its discretion per Congress's requirements. The result then is that the agency doesn't have a rule that it can apply. And the statute says very plainly, the most common sense result of that is just like in a contracts case. If the court were to find in a contracts case that the contract is void because it wasn't properly formed, you don't... The result is not... you can apply it to whomever, just not the plaintiff standing there. It's not a thing anymore. And that's to me what the statute says. You said it aside because you haven't formed it properly and consistently with what Congress has said. I certainly acknowledge that when a plaintiff is challenging the agency's decision making, their legal theory could suggest that the agency regulation is invalid in all of its applications and as applied to other parties too. But I still think that in that case, just like in the case of interpreting a statute, the proper remedy is the party-specific relief. We don't have it, but the APA is a different kind of claim. It's not a... the statutory claim is not about Congress's authority to make the policy decision. Did they follow the right procedures in making it? Let me ask you about 1252 F because that's another basis that you sort of suggest that courts authority is limited. When I look at 1252 F, it says that there's no jurisdiction or authority to enjoin or restrain the operations of the provisions of this subchapter, which seems to me as though Congress is prohibiting an injunction of the statute. You've interpreted it, I think, to mean operation in the sense of any regulations, any policies of the government that are implementing that statute. But I guess I'm concerned about that because in E3, just the provision prior, Congress is very clear about spelling out things like regulations, guidelines, et cetera. I know that's a different provision because it applies to expedited removal, but Congress knows how to say when it's talking about claims being brought about guidelines, procedures, and things that the agency does. And yet in this statute, in F, which I think also apply to E, it talks about the operations of the statute. So why isn't really what's going on here? That Congress didn't want its new regulations, its new policies concerning immigration to themselves be enjoined, and it wasn't really talking about the agency's implementation in this provision? So I think that that approach would be inconsistent with the court's decision last term and all among Gonzales, where the claims of the non-citizens in that case is that they were entitled to bond hearings under these provisions, and the court recognized that this bar prevents an injunction that would prevent the executive from implementing its policies with respect to bond under that statutory language. And so I think that the same argument potentially could have been made there, that that's not actually enjoining the statute, it's enjoining the agency's policies that are consistent with in the agency's views, those statutory provisions. All right, so what do we do about F as it applies to E? And again, I know E is not in this case, but if we're going to be interpreting F, is it your view that the limitation on injunctive relief as you have interpreted it in F? It applies to challenges on the validity of the system in E in the expedited removal context. Yes, I think that we would take that position because as we understand this court's interpretation in all among Gonzales, it focuses on whether the claims in the case are premised on these statutory provisions and are seeking to require DHS to implement the covered INA provisions in a particular way. And so if the theory of the case were under 1226, any of its provisions, DHS is required to interpret the statute in a particular way or to take particular action, that comes within the bar that 1222 analysis. All right, then we have a statute here at E in which Congress has authorized very specifically a claim. The Congress has said that you can bring a case in order to challenge a regulation policy directive, written policy guideline, or written procedure of the Attorney General or here, DHS. Congress has allowed that and you're suggesting that the only relief is declaratory relief under those circumstances that you don't even have to follow, really? So there is the opportunity for declaratory relief in any court. 1252F1 also permits coercive relief on behalf of individual non-citizens and 1252F1 preserves this court's authority to enter any form of relief. So I think that those are the remedies that Congress delineated under these statutory provisions. Thank you. Thank you, Council. General Stone? Thank you, Mr. Chief Justice, and may it please the court. The states prove their standing at trial based on harm's well-recognized by this court's precedence, prevailed on merits arguments granted firmly in the INA's text and received vacator, the standard APA remedy. Petitioners respond by attempting to rewrite the law of Article 3, the INA, and the APA. They are wrong. Petitioners call the state standing illegitimate because it is based on the cost states incur when petitioners violate federal law. But such costs fall well within those held as sufficient and at least Massachusetts versus EPA and Department of Commerce. As this court has recognized before, the states bear many of the consequences of federal immigration decisions. Those consequences fit comfortably in this court's traditional Article 3 standing framework

. On the merits, the final memorandum is unlawful for multiple reasons, most clearly because it treats Section 1226C as discretionary, while both this court and every previous administration have acknowledged it as mandatory. Petitioners respond by appealing to resource constraints in their prosecutorial discretion, both of which are beside the point. The states do not claim the petitioners must remove anyone in particular. Rather, petitioners' detention obligations run only to arise before and after their decision to prosecute and run only to a small subset of this nation's illegal aliens. Finally, eliminating the APA's vicar remedy would jettison nearly a century of administrative practice. When Congress empowered federal courts under Section 706 to set aside agency action, it authorized courts consistent with pre-APA practice to vacate unlawful rules not merely to disregard them. This court should not hold otherwise. I welcome the courts questions. General Stone, I'd like you to respond to some of our back and forth about 1252F, particularly it has it effects your standing in this case. And whether or not you can obtain the remedies that you see, for example, as vicar to your vicar to actually possible under 1252F. Certainly, Justice Thomas, so in our view, vicar is left available by 1252F1 for several reasons. First of all, vicar is not injunctive relief. The terms in join in restrained in 1252F1 speak to two traditional kinds of injunctive relief, injunctions and temporary restraining orders. And perhaps if there are other orders that operated like them in key regards, which is to say the operating personum, they had a participatory or mandatory character, it might bar those as well. Vicar tori is, is this court has put in Monsanto a much less drastic remedy, and the most important way in which it's less drastic can easily be seen by the perspective of someone who in fact has been enjoined. A party who's been enjoined to do or not do something is effectively under the supervision of a federal district judge, and has to go to that district judge or suffer their counterparty going to that district judge. If they want to attempt to re-implement, otherwise take the action that's been subject to that injunction. No such obligation to no collateral contempt potential exposure exists with vicar. Now, my friend on the other side said quite, quite candidly that in the event that Texas were to have received declaration, of course, and I believe her words were, the United States would follow that declaration or would be bound by it. It's very hard to explain how it is that vicar, which acts against directly against a rule and does not in personum bind any officer or agency of the United States, is coercive or otherwise prohibited in the meaning of 1252F1, but the declaratory relief, which the United States acknowledges, it would in fact follow is somehow not coercive. I think that line is evidence if it exists at all. And so the best reading of 1252F1 is only to injunctions and those sorts of orders, and that Texas, the state. It strikes me, General, that you had a better argument on this score and maybe a good argument before Alamanghan's gala's. But after Alamanghan's gala's, it seems hard to me for you to make the case. I'm just going to read you a quote there. We held that the 1252F1 barred orders that require officials to take actions that in the government's views are not required by the INA, and to refrain from actions that again in the government's view are allowed by the INA. So, wouldn't vacating the guidelines here require DHS officials to take enforcement actions that in the government's view are not required by the INA just falls with the direct language of that decision? I don't think so, Your Honor. And I have two points. First, Vigator is self-executing. But Vigator orders affirmed by this Court or if it's issued otherwise in any court. It acts against the challenged thing, the challenged rule order on its own, and makes it legally void. It does not require any action whatsoever. It does not on its own prohibit any action whatsoever. And second, to the extent that petitioners have been attempting to draw distinction consistent with Alamanghan's gala's between Vigator and declaratory relief again. I think there's no for purposes of what would coerce or otherwise would restrain in the sense of Alamanghan's gala's petitioners. And Adverse Declaration saying that the guidelines, the final memorandum, has been unlawful under 1226C and 1231 certainly has at least as much coerce of pressure. I think that's none, but the same amount of coerce of pressure. And so if that's the case, if petitioners are saying that 1252F1 removes all available remedies, then one, it's a very strange way of writing that provision in two. I should come out and say it and then say that in fact there are no remedies available whatsoever. I just don't think the Vigator declaratory relief distinction doesn't work. General, I take your point about declaratory judgments, but just I just want to press a little bit further on this same point. And that is for purposes of standing and redressability, you took the position, I believe, that Vagature does solve Texas's problems. Because the immigration laws will be enforced differently without the guidelines and with the guidelines, right? Yes, and to be a little more specific, there are findings of fact from the trial court that the guidelines support that. Yes, yes. So without the guidelines, the government will enforce the immigration laws differently in a way that satisfies Texas. Without the guidelines, yes, and just to specify a little bit that without the guidelines, federal immigration officials will no longer view their, their mandatory allegations as a person. We can spin it out as long as you want. The answer is yes, right? Yes, Your Honor. Okay. And if that's the case, then why isn't a Vagature of the guidelines in joining in the language that we used last term, the government's ability to enforce the immigration laws in a certain way? In part because Your Honor, the essence of an injunction is not whether or not people will react to it in a way that remedies someone's arm, it's that they're compelled to. Something about injunction doesn't just say, fix this person's injury, it says you must underpain of court supervision, underpain of penalty, you must do these things or refrain from using them. Well, isn't that Texas' whole point? Is that under 1226, 1231, the government must do certain things and it's not doing it because of the guidelines, getting rid of the guidelines will fix the problem. And therefore, the government is now effectively required when forced immigration laws differently than it otherwise would. Those are our merits arguments as to 1226 and 1232A. Our remedy is simply because the guidelines are unlawfully causing DHS agents essentially not to treat mandatory things as mandatory, rather to treat mandatory things as discretionary. They are as a matter of fact reducing the number of detentions, etc. But our relief would not coerce them into doing anything. It's merely a matter of fact that DHS agents would so respond. We're not asking for anything coerced, thank you

. But they could, I mean the guidelines are gone, but that doesn't mean that ICE officers or DHS couldn't more informally say, we're going to exercise our prosecutorial discretion, not to institute removal proceeding against this particular non-citizen. That certainly might well be the case, Your Honor. Of course, that would have been the kind of evidence that would have attacked our address ability that had petitioners submitted that to the district court. Certainly, one of undermined and unlawfully. But it's your burden to show standing, right? Yes, Your Honor, and we did by, again, finding supported by Cleary, showing the causal relationship between actual enforcement actions and this memorandum, including, for example, 22 emails specifically citing the guidelines as a reason for removing detainers. But why isn't the causal relationship, the chain, broken in the sense that you have voluntary decision making by Texas, say in relation to the criminal justice costs that you feel compelled or you want to go after individual people? In other words, aren't the costs associated with Texas's decision to incarcerate or parole certain non-citizens if the federal government decides not to detain them? Aren't those a result of the state's own policy choices in a way that we have recognized or decided it is not sufficient in a case like Pennsylvania versus New Jersey? Your Honor, I think ordinarily in the Court's Article III standing analysis, for example, in the docket case in the regions. The Court didn't go well, California is suffering this injury in the first place because they have chosen to employ individuals subject to this immigration right, et cetera. And so really to some extent the loss of these individuals as a self-inflicted injury, more to the point Texas suffers injuries regardless of what it does, whether it detains, releases or pearls individuals, because we have not only law enforcement costs, but social services costs, and very serious threats of recidivism. All right, well separate out the, can we just for a second separate out the criminal justice costs from the health care and other things that would be required? With respect to the criminal justice costs, presumably, first of all the federal government has said that they've determined that these particular individuals aren't going to be a high risk, and so that's why they're not detaining them. So why isn't Texas's determination to detain them on Texas? I mean, presumably there'll be other states that might agree with the federal government and say, you know, we're not going to expend any money to try to supervise or detain these particular individuals. Well, two points, Your Honor. First of all, there are district court findings. In fact, this was a disputed subject at the trial court regarding whether or not the rates of recidivism were not separately high, what kinds of risk Texas was exposed to by these releases. And more to the point, Congress has made the determination specifically in the passage of IRA in 1226C, whether or not these individuals are unacceptable. Well, that's on the merits. That's a merits question. I mean, you know, I guess my point is just in terms of injury and who is bearing the cost and why? Isn't it Texas's determination to go after and detain or keep detained these people, you know, a cost that Texas has chosen to incur? The guidelines don't require states to keep these people in custody. No, Your Honor. And I think that's because Texas has put to what we call sort of an Article III dilemma, where it either pays the costs of continued detention or pays the costs that are incurred through recidivism. Again, recidivism in this case being a hotly contested question at trial upon which there were direct testimony from one of the largest counties in Texas, regarding the criminal population there, actual evidence of recidivism by specific individuals who had been detained and released pursuant to detain. All right, so can we answer Judge Justice sort of my yours question about net cost then. So fine, there might be costs with respect to this group of people, but the government, the federal government says that you're going to save a whole lot based on other aspects of the operation of the guidelines. What's your response to that? Two responses to that question. The first is somewhat straightforward, which is to say that's in the nature of a factual assertion. A factual assertion about which petitioners offered zero evidence whatsoever. That was a disputed fact question at trial. They offered no evidence. If there were in fact evidence, I think that would go that would be powerful evidence attacking our standing. There's assertions afterwards. I'm sorry, you have to prove standing. And we have said in Arizona the Arizona case that you have to show the net effect and you didn't. You didn't show me what the government has said and what the record clearly proves is that there's been a surge at the border. If left unattended, that surge would overwhelm all of the border states, not just Texas. And that the cost of doing that has to give them greater priorities in terms of aliens who are already here. But we know that many of those people coming in will be risk to the state of Texas, et cetera. Why haven't you shown that that net effect of keeping more people out is going to mean less than the few people that they decide to erroneously let go? Respectfully, I think there's two points here. One is that this court doesn't typically treat standing as an accounting exercise as to whether or not. No, but you have to show you can't look at a piece of a policy and say I don't like a piece. You have to look at the policy altogether. Certainly, Justice Sonny, what we are looking at here is a very specific challenge to the exercise of detention authority on two sections. I don't think it's an Article 3 vice that Texas isn't challenging the entire immigration code's application in all cases. General, do you think that there's any immigration policy that you could not challenge under the way you've used standing? I think that's hard to discuss in the abstract. There might well be your honor, but it shouldn't come to the other side. It's hard to think of, I guess, as what I'm saying. I mean, if all you need to do is to say we have a dollar's worth of costs and you don't even need to think about the benefits on the other side. I mean, every immigration policy you let in, more people you let in fewer people, is going to have some effect on a state's fiscal condition. Maybe they'll get lesser or more tax dollars. Maybe they'll have to spend lesser or more money. I mean, every single immigration policy. And then, you know, not to mention all the other policies in the world that if a state comes in and says I've got a dollar's worth of costs that I can show you. I mean, we're just going to be in a situation where every administration is confronted by suits by states that can, you know, bring up a policy to a dead halt to a dead stop by just showing a dollar's worth of costs. Two points, Your Honor, the first is, and I can't speak for all states, obviously, even though 37 of them are participating in this case and none have adopted the United States' theory of standing. Texas has more than half of the sub-interference. Let's not responsive to my question. Yes, Your Honor. I mean, look, and this isn't anything that has to do with this administration. You know, some other administration will come in and the California solicitor general will be standing where you are. And, you know, there's an issue here, especially with respect to immigration policy. Immigration policy is supposed to be the zenith of federal power and it's supposed to be the zenith of executive power. And instead, we're creating a system where a combination of states and courts can bring immigration policy to a dead halt. Two points, Your Honor, the first is, again, speaking at least for Texas, it shouldn't be particularly surprising that we would suffer outsized article three injuries given the fact that half of the southern border immediately abuts Texas. You're not saying that you have a special kind of injury here. You're saying all the usual rules apply, maybe more than the usual rules, and all you need to show is a dollar's worth of costs. We are indeed saying the usual rules apply with one twist, which is to the extent the usual rules don't apply. Immigration surely is the kind of sort of sovereign prerogative than in the sense of Massachusetts versus EPA. Texas has had to surrender to the Union as a part of the State of Joining the Union. And Texas has been given a procedural right just like in Massachusetts versus EPA to vindicate those interests that has had to surrender the Federal Government. So I guess what strikes me is that these very broad arguments that the solicitor general was making. Maybe we shouldn't, even if we don't think that we should accept them as broad prohibitions, the fact that you are not the party directly regulated, the fact that you are challenging an enforcement action, particularly an enforcement action where the most discretion has been given to executive officials. But those formed the backdrop by which we should say, you know, it's just not enough that you're coming in here with a set of speculative possibilities about your costs. You have to do more than that. Given the backdrop of what has become, I think, a system that nobody ever thought would occur, which is that the states can go into court at the drop of a pin. And stop federal policies in their tracks. So, Your Honor, I think there's two points that the first being the extent you're describing a rule that sort of shows special skepticism of the states, that's a minimum in the teeth of Massachusetts or the FDA. Yeah, I'm saying that like coming in and saying, you know, it seems to us that we have some costs associated with this. And we're not going to look at the benefits and we're not going to look at the fact that as Judge Sutton said, the fact that there are priorities, you know, that the person A will be, you know, will not be removed versus person B will, that that doesn't particularly show that your net costs are even your gross costs are going to rise, let alone your net costs. And all of this speculation and all of this kind of like, we think we kind of showed it is just not enough given the backdrop of this case. We don't think we showed it, Your Honor, a trial court judge, reviewable for clear error, things that we showed it. And he based that on that. Can I one more? One more. I mean, just to think about just the backdrop of this case and what's going on here, let me just add to the notion, not your fault. This is not, you know, in Texas, there are divisions within districts. You can pick your trial court judge. You know, you play by the rules, that's fine, but you pick your trial court judge. One judge stops a federal immigration policy and it strikes because you have a kind of sort of speculative argument that your budget is going to be affected. Respectfully, Your Honor, it's not speculative. In fact, this is how concrete it is. We have at least one example in the record of a specific alien Rubin Abonza, who specifically had a detainer placed on him that detainer was removed. He had a final order of removal and was a 1226 alien. That detainer was removed. He was released. And then he was re-apprehended for committing human trafficking. That commits the kind of cost, both law enforcement recidivism that certainly forms the basis of an Article III injury. That is not speculative. It occurred. Thank you, Counsel. I'd like to move to the merits a little bit. The solicitor general on the other side responded to some of my questioning about the impossibility by emphasizing that, well, that's a good reason to think that. The Congress really didn't intend that result. It's a compelling argument and what is your answer? To the extent it is impossible for the executive to do what you want him to do, right? I don't think so, Your Honor. At least has applied to the narrow 60 to 80,000. This is a matter of finding facts. There's evidence in the records. I wanted to explain that. The 60 to 80,000 pool of individuals were criminal aliens under subsection. Are there 60 to 80,000 empty beds? No, Your Honor, but the way that those beds work is they work both in terms of having a bed and the velocity with which the individuals are removed under the system. And of course, under 1226, see the government's detention obligation runs only until they make a determination whether or not to remove the individual. If the government says we made a determination, we're not going to remove the 1226 the obligation ends instantly. Well, assuming we think it would be if not impossible surprising and very difficult for the executive to comply, isn't that a consideration we should take into account and try and figure out if Shell means Shell? Because there certainly are cases where we've said Shell means May. Your Honor, I don't think so for two reasons. One being the backdrop that Shell indeed means Shell and the 1226 has a variety of other intertextual clues that suggest this shall, especially means shall. Now it's contra distinction with May and 1226, a it's extremely tight restrictive possible release provision in 1221, C2. But more importantly, Congress actually considered this exact excuse in the transition rules following IRA where Congress gave the executive two years saying if the executive in any given 1226 case believes it simply does not have the enforcement ability, doesn't have a resources, that will excuse mandatory detention. After two years, the executive went back to Congress and asked for renewal of that. Congress said no, and then immediately then the Clinton administration acknowledged that the obligations under 1226 C became mandatory. But the resources are still not there. And so I guess on both standing and pick up on Justice Kagan's questions, standing in merits on the Chief Justice's questions as well. There's a tradition of not allowing people to challenge, not enforcement decisions

. And instead, we're creating a system where a combination of states and courts can bring immigration policy to a dead halt. Two points, Your Honor, the first is, again, speaking at least for Texas, it shouldn't be particularly surprising that we would suffer outsized article three injuries given the fact that half of the southern border immediately abuts Texas. You're not saying that you have a special kind of injury here. You're saying all the usual rules apply, maybe more than the usual rules, and all you need to show is a dollar's worth of costs. We are indeed saying the usual rules apply with one twist, which is to the extent the usual rules don't apply. Immigration surely is the kind of sort of sovereign prerogative than in the sense of Massachusetts versus EPA. Texas has had to surrender to the Union as a part of the State of Joining the Union. And Texas has been given a procedural right just like in Massachusetts versus EPA to vindicate those interests that has had to surrender the Federal Government. So I guess what strikes me is that these very broad arguments that the solicitor general was making. Maybe we shouldn't, even if we don't think that we should accept them as broad prohibitions, the fact that you are not the party directly regulated, the fact that you are challenging an enforcement action, particularly an enforcement action where the most discretion has been given to executive officials. But those formed the backdrop by which we should say, you know, it's just not enough that you're coming in here with a set of speculative possibilities about your costs. You have to do more than that. Given the backdrop of what has become, I think, a system that nobody ever thought would occur, which is that the states can go into court at the drop of a pin. And stop federal policies in their tracks. So, Your Honor, I think there's two points that the first being the extent you're describing a rule that sort of shows special skepticism of the states, that's a minimum in the teeth of Massachusetts or the FDA. Yeah, I'm saying that like coming in and saying, you know, it seems to us that we have some costs associated with this. And we're not going to look at the benefits and we're not going to look at the fact that as Judge Sutton said, the fact that there are priorities, you know, that the person A will be, you know, will not be removed versus person B will, that that doesn't particularly show that your net costs are even your gross costs are going to rise, let alone your net costs. And all of this speculation and all of this kind of like, we think we kind of showed it is just not enough given the backdrop of this case. We don't think we showed it, Your Honor, a trial court judge, reviewable for clear error, things that we showed it. And he based that on that. Can I one more? One more. I mean, just to think about just the backdrop of this case and what's going on here, let me just add to the notion, not your fault. This is not, you know, in Texas, there are divisions within districts. You can pick your trial court judge. You know, you play by the rules, that's fine, but you pick your trial court judge. One judge stops a federal immigration policy and it strikes because you have a kind of sort of speculative argument that your budget is going to be affected. Respectfully, Your Honor, it's not speculative. In fact, this is how concrete it is. We have at least one example in the record of a specific alien Rubin Abonza, who specifically had a detainer placed on him that detainer was removed. He had a final order of removal and was a 1226 alien. That detainer was removed. He was released. And then he was re-apprehended for committing human trafficking. That commits the kind of cost, both law enforcement recidivism that certainly forms the basis of an Article III injury. That is not speculative. It occurred. Thank you, Counsel. I'd like to move to the merits a little bit. The solicitor general on the other side responded to some of my questioning about the impossibility by emphasizing that, well, that's a good reason to think that. The Congress really didn't intend that result. It's a compelling argument and what is your answer? To the extent it is impossible for the executive to do what you want him to do, right? I don't think so, Your Honor. At least has applied to the narrow 60 to 80,000. This is a matter of finding facts. There's evidence in the records. I wanted to explain that. The 60 to 80,000 pool of individuals were criminal aliens under subsection. Are there 60 to 80,000 empty beds? No, Your Honor, but the way that those beds work is they work both in terms of having a bed and the velocity with which the individuals are removed under the system. And of course, under 1226, see the government's detention obligation runs only until they make a determination whether or not to remove the individual. If the government says we made a determination, we're not going to remove the 1226 the obligation ends instantly. Well, assuming we think it would be if not impossible surprising and very difficult for the executive to comply, isn't that a consideration we should take into account and try and figure out if Shell means Shell? Because there certainly are cases where we've said Shell means May. Your Honor, I don't think so for two reasons. One being the backdrop that Shell indeed means Shell and the 1226 has a variety of other intertextual clues that suggest this shall, especially means shall. Now it's contra distinction with May and 1226, a it's extremely tight restrictive possible release provision in 1221, C2. But more importantly, Congress actually considered this exact excuse in the transition rules following IRA where Congress gave the executive two years saying if the executive in any given 1226 case believes it simply does not have the enforcement ability, doesn't have a resources, that will excuse mandatory detention. After two years, the executive went back to Congress and asked for renewal of that. Congress said no, and then immediately then the Clinton administration acknowledged that the obligations under 1226 C became mandatory. But the resources are still not there. And so I guess on both standing and pick up on Justice Kagan's questions, standing in merits on the Chief Justice's questions as well. There's a tradition of not allowing people to challenge, not enforcement decisions. When to RS stands is probably the lead precedent on that. And so too on the merits question, there is a tradition of reading statutes against the backdrop of prosecutorial discretion, and at least in the federal context is rooted in Article 2. And then Castle Rock talks about that background principle in the state context. Those two things together are both probably united by the fact that there are never enough resources or almost never enough resources to detain every person who should be detained, arrest every person who should be arrested, prosecute every person who's violated the law. And so those two principles seem to me to come from the same problem. And that problem, even after the two-year period you described, is present today, right? Taking is an assumption that it would not be possible. We think that's at least disputable, but it's not possible to detain everyone covered by this. A couple of points. First of all, the prosecutorial discretion, typically prosecutorial discretion means the power to bring a criminal action and then pursue it or not pursued against someone. Or in this context, then notice to appear and to bring that all the way through to a final order removal and execute or not execute it. Prosecutorial discretion doesn't prevent, as you pointed out for example, Heckler versus Cheney, Congress setting enforcement priorities, and it's not an excuse for an executive not to comply with a mandate on the executive itself. Now, I take the exception, of course, for a possibility that Congress said you must prosecute this individual. I think that would be the sort of very core of an argument. How about if Congress said you must prosecute that the executive must prosecute everyone who violates this law? I think that would be the strongest possible article to argument available. Nothing in the text, nothing in the state's theory. That'd be a problem under article two, don't you think? I think so, yes, you're right. I think that would be the strongest possible. How is that different from what we have here in terms of, let's change that hypothetical, you must arrest the executive must arrest everyone who there's probably a call us to believe violated the law. How is that different from theoretically from this provision? Certainly, because two reasons one, because essentially prosecutorial discretion doesn't cover every potential possible active enforcement from soup tenuts in the process. It is the core of prosecutorial discretion, is the ability to choose whether or not to bring in charges and prosecute them now. I agree that perhaps that article two question gains strength or loses it depending on how intrusive the invasion is. But here, 1226 C1 as read in Longside, 26A and 1231 A1 both respect the executive's prosecutorial discretion immensely. 1226 C1 only applies until they have made a decision whether or not to prosecute. If they decide not to, it immediately ends. I'm sorry. I was the last question that I'm sorry, if you prevail here, what will happen? That's a concern, because I'm not sure much will change, because they don't have the resources to change. So what do you envision? I know Florida's, Mika's brief says, well, the executive will then strive to meet its obligations, strive to is not a usual term of a judicial order. So what do you think happens if you prevail here? We think consistent with the district court's findings that individual officers and I will go back to not believing that their enforcement discretion has been restrained in the ways the prosecutorial, rather the guidelines that the MOUs have caused that to be more specifically about the lack of resources that you are on. There is an on the record finding of bad faith in this specific context for two reasons. One, here petitioners have repeatedly sought to decrease their enforcement capabilities to decrease their detention capabilities. And two, they've persistently underused them. Okay. One, you got to adjust the sum, I wonder. Council, I don't know that I understand your theory, but maybe I'm getting it. Number one, you're saying there is no command to remove anyone who falls on your 1226 and 1231. We're certainly not saying that there is your honor whether or not you're saying there's completed absolute discretion for the government to say anybody charged with any crime. We're not going to remove you. I'm not sure that I can see that much, but we're certainly not arguing other words. All right. So what are you arguing? Are you arguing that only if they are told that there is a criminal who fits the 1226 C or 1231 conditions that they must remove those people? Our argument doesn't run to remove at all, Justice Senator. It runs through the rest of the presentation. The policy guidelines, exactly what the government said, which is this has nothing to do with detention. It has to do with removal. We've made a decision that certain categories of people were not going to spend the money on giving them a notice of appearance or giving or removing them. Well, you're on our in part because the guidelines on their face and 1226 C contains an arrest requirement. We believe that's the natural reading of taken to custody, but the guidelines on their face refer to individuals who should be subject to arrest detainers and removal proceedings. It should be, but you just said to me they don't have to be. The government has the discretion to say I don't want to remove this person, correct? I apologize. I was referring to how this does affect detainers. I agree once again we are not seeking to have any individual. So really this case is all about the people that a detainer has been put on and that the government can't withdraw that detainer once they put it on. This case is about under two different answers. The answer no to that is that because there's a lot of states, for example, that don't cooperate with ISIS. And they don't tell the government about somebody, but maybe the government found out about it. Do they have to go and put the detainer on that person? The answer to your previous question is no. The answer to this question is yes. Right. So they have to go and spend the resources to sit outside of that prison and find out what day that person is going to be released so they can arrest that person that day. 1226D actually directs the Federal Government to create a 24-hour accessible system for purposes of having the same

. When to RS stands is probably the lead precedent on that. And so too on the merits question, there is a tradition of reading statutes against the backdrop of prosecutorial discretion, and at least in the federal context is rooted in Article 2. And then Castle Rock talks about that background principle in the state context. Those two things together are both probably united by the fact that there are never enough resources or almost never enough resources to detain every person who should be detained, arrest every person who should be arrested, prosecute every person who's violated the law. And so those two principles seem to me to come from the same problem. And that problem, even after the two-year period you described, is present today, right? Taking is an assumption that it would not be possible. We think that's at least disputable, but it's not possible to detain everyone covered by this. A couple of points. First of all, the prosecutorial discretion, typically prosecutorial discretion means the power to bring a criminal action and then pursue it or not pursued against someone. Or in this context, then notice to appear and to bring that all the way through to a final order removal and execute or not execute it. Prosecutorial discretion doesn't prevent, as you pointed out for example, Heckler versus Cheney, Congress setting enforcement priorities, and it's not an excuse for an executive not to comply with a mandate on the executive itself. Now, I take the exception, of course, for a possibility that Congress said you must prosecute this individual. I think that would be the sort of very core of an argument. How about if Congress said you must prosecute that the executive must prosecute everyone who violates this law? I think that would be the strongest possible article to argument available. Nothing in the text, nothing in the state's theory. That'd be a problem under article two, don't you think? I think so, yes, you're right. I think that would be the strongest possible. How is that different from what we have here in terms of, let's change that hypothetical, you must arrest the executive must arrest everyone who there's probably a call us to believe violated the law. How is that different from theoretically from this provision? Certainly, because two reasons one, because essentially prosecutorial discretion doesn't cover every potential possible active enforcement from soup tenuts in the process. It is the core of prosecutorial discretion, is the ability to choose whether or not to bring in charges and prosecute them now. I agree that perhaps that article two question gains strength or loses it depending on how intrusive the invasion is. But here, 1226 C1 as read in Longside, 26A and 1231 A1 both respect the executive's prosecutorial discretion immensely. 1226 C1 only applies until they have made a decision whether or not to prosecute. If they decide not to, it immediately ends. I'm sorry. I was the last question that I'm sorry, if you prevail here, what will happen? That's a concern, because I'm not sure much will change, because they don't have the resources to change. So what do you envision? I know Florida's, Mika's brief says, well, the executive will then strive to meet its obligations, strive to is not a usual term of a judicial order. So what do you think happens if you prevail here? We think consistent with the district court's findings that individual officers and I will go back to not believing that their enforcement discretion has been restrained in the ways the prosecutorial, rather the guidelines that the MOUs have caused that to be more specifically about the lack of resources that you are on. There is an on the record finding of bad faith in this specific context for two reasons. One, here petitioners have repeatedly sought to decrease their enforcement capabilities to decrease their detention capabilities. And two, they've persistently underused them. Okay. One, you got to adjust the sum, I wonder. Council, I don't know that I understand your theory, but maybe I'm getting it. Number one, you're saying there is no command to remove anyone who falls on your 1226 and 1231. We're certainly not saying that there is your honor whether or not you're saying there's completed absolute discretion for the government to say anybody charged with any crime. We're not going to remove you. I'm not sure that I can see that much, but we're certainly not arguing other words. All right. So what are you arguing? Are you arguing that only if they are told that there is a criminal who fits the 1226 C or 1231 conditions that they must remove those people? Our argument doesn't run to remove at all, Justice Senator. It runs through the rest of the presentation. The policy guidelines, exactly what the government said, which is this has nothing to do with detention. It has to do with removal. We've made a decision that certain categories of people were not going to spend the money on giving them a notice of appearance or giving or removing them. Well, you're on our in part because the guidelines on their face and 1226 C contains an arrest requirement. We believe that's the natural reading of taken to custody, but the guidelines on their face refer to individuals who should be subject to arrest detainers and removal proceedings. It should be, but you just said to me they don't have to be. The government has the discretion to say I don't want to remove this person, correct? I apologize. I was referring to how this does affect detainers. I agree once again we are not seeking to have any individual. So really this case is all about the people that a detainer has been put on and that the government can't withdraw that detainer once they put it on. This case is about under two different answers. The answer no to that is that because there's a lot of states, for example, that don't cooperate with ISIS. And they don't tell the government about somebody, but maybe the government found out about it. Do they have to go and put the detainer on that person? The answer to your previous question is no. The answer to this question is yes. Right. So they have to go and spend the resources to sit outside of that prison and find out what day that person is going to be released so they can arrest that person that day. 1226D actually directs the Federal Government to create a 24-hour accessible system for purposes of having the same. I just asked you a direct question. Does the government now have to put the resources in place to watch the prison every day to see if someone has been released? The government must attempt to fulfill its mandatory detention. How it doesn't turn out to be individual resource spenders. You can just tell me something contradictory. How do you deal with 1231H? And the fact that it says that the statute, 1231, quote, does not create any right or benefit that is legally enforceable by any party. So how do you get into court under 1231H? Two points are out of the first is this court in Zavid Asfi Davis said that 1231 of its own force only prevents an individual from saying that 1231 gives them essentially a right or cause of action. It did not block. No, that's your any person, your Texas. You saying you have a right or a cause of action under your theory of indirect harm that permits you to attack it under the APA. You need to attack it under whatever else. You fit right in any person saying that you have a right or a benefit under the APA to attack 1231 policy. No, your honor, at least two points one. No more than an individual seeking release under 2241 did. It doesn't say any more than an individual. It says that you does not create any and any is very broad. Right or benefit that is legally enforceable by any party doesn't say any alien party. It doesn't say anything like that. I agree, Justice Sotomayor and in Zavid Asfi, an individual alien through a habeas corpus action was claiming his detention was illegal because of a violation of the law. That that's maybe a prototypical, but that's not the language is unlimited to that situation. It doesn't say any right or benefit that is legally enforceable by an undocumented alien. It says any party. You're in any party. The Court didn't told that 2241 that act of that exercise jurisdiction illegal. It said 1231 was restricted only to that section in the use of 2241 was permitted. The APA is at least as separate from section 1231 as the general habeas statute and more to the court. So why don't we just spend a little bit of time on remedy before we move to individual questioning. And on that an important question for me was the one raised by Justice Gorsuch. How did the APA's new vacator remedy slip by unnoticed from all these administrative law scholars? I can't speak as to the attention of the administrative law scholarship universe, Mr. Chief Justice, but I can tell you that the vacator remedy recognized in 7062 was consistent with then existing APA practice. And to put a fine point on it, this court around 1920 reviewing generally speaking interstate commerce commission orders specifically describe the relief that was being sought below and that it sometimes affirmed, sometimes refused. As orders attempting to unull or revoke a given commission rule, Idaho versus United States actually does double work for us here. One in this court affirmed an order unknowing an interstate commerce commission order. And then also Idaho's theory of harm was entirely premised on the federal regulation of a private party in its state. Well, as the solicitor general on the other side pointed out, the courts really haven't dealt with the analysis that raises this question, namely the one in Professor Harrison's article. The DC Circuit may have been doing it for a long time, but sort of did not address the arguments that are being raised today. And perhaps that might be a reason why strictly speaking they are precluded by Stariah decisis, Your Honor, but the fact that the lower courts and that they're precluded by Stariah decisis from a lower court. I mean, lower courts often do things for long periods of time unthinkingly or maybe thinkingly and thoughtfully that turn out to be wrong. And I'm sorry that doesn't afford Stariah's slices effect. I said that it wasn't. I'm sorry. I must have either misspoke or meant to say what's not right. I'm sure I miss her general. I'm sorry. That it does not. It is not precluded by Stariah's slices, but it is again thoughtful 80-year history that is essentially informed. Everything Congress has done subsequently. Congress has enacted subsequent review statutes using the same language, for example, 28 USC 2342 with a specific administrative review statute. There are definitely specific administrative review statutes that contemplate this. But let's put those aside for the moment. And just look at the APA itself. Isn't it a little odd that Section 706 governs the scope of review and proceeds to tell us to review questions of Law Day Novo? That's all another Kellogg fish. Whether we do that. But it tells us to do that. And then goes on and tells us when we find an unlawful agency action, finding or conclusion we should set it aside. We don't think of negating or vacating or erasing findings or conclusions. We put them aside and go ahead and decide the case without them usually. And why wouldn't the same apply to errors of law under a Day Novo standard review? Especially when 703 does list all the remedial forms available in an APA action, declaratory judgment and junctions. It would seem like it would be a monster swallowing all of the other remedies that sits in these five words. You know, hold on lawful and set aside

. I just asked you a direct question. Does the government now have to put the resources in place to watch the prison every day to see if someone has been released? The government must attempt to fulfill its mandatory detention. How it doesn't turn out to be individual resource spenders. You can just tell me something contradictory. How do you deal with 1231H? And the fact that it says that the statute, 1231, quote, does not create any right or benefit that is legally enforceable by any party. So how do you get into court under 1231H? Two points are out of the first is this court in Zavid Asfi Davis said that 1231 of its own force only prevents an individual from saying that 1231 gives them essentially a right or cause of action. It did not block. No, that's your any person, your Texas. You saying you have a right or a cause of action under your theory of indirect harm that permits you to attack it under the APA. You need to attack it under whatever else. You fit right in any person saying that you have a right or a benefit under the APA to attack 1231 policy. No, your honor, at least two points one. No more than an individual seeking release under 2241 did. It doesn't say any more than an individual. It says that you does not create any and any is very broad. Right or benefit that is legally enforceable by any party doesn't say any alien party. It doesn't say anything like that. I agree, Justice Sotomayor and in Zavid Asfi, an individual alien through a habeas corpus action was claiming his detention was illegal because of a violation of the law. That that's maybe a prototypical, but that's not the language is unlimited to that situation. It doesn't say any right or benefit that is legally enforceable by an undocumented alien. It says any party. You're in any party. The Court didn't told that 2241 that act of that exercise jurisdiction illegal. It said 1231 was restricted only to that section in the use of 2241 was permitted. The APA is at least as separate from section 1231 as the general habeas statute and more to the court. So why don't we just spend a little bit of time on remedy before we move to individual questioning. And on that an important question for me was the one raised by Justice Gorsuch. How did the APA's new vacator remedy slip by unnoticed from all these administrative law scholars? I can't speak as to the attention of the administrative law scholarship universe, Mr. Chief Justice, but I can tell you that the vacator remedy recognized in 7062 was consistent with then existing APA practice. And to put a fine point on it, this court around 1920 reviewing generally speaking interstate commerce commission orders specifically describe the relief that was being sought below and that it sometimes affirmed, sometimes refused. As orders attempting to unull or revoke a given commission rule, Idaho versus United States actually does double work for us here. One in this court affirmed an order unknowing an interstate commerce commission order. And then also Idaho's theory of harm was entirely premised on the federal regulation of a private party in its state. Well, as the solicitor general on the other side pointed out, the courts really haven't dealt with the analysis that raises this question, namely the one in Professor Harrison's article. The DC Circuit may have been doing it for a long time, but sort of did not address the arguments that are being raised today. And perhaps that might be a reason why strictly speaking they are precluded by Stariah decisis, Your Honor, but the fact that the lower courts and that they're precluded by Stariah decisis from a lower court. I mean, lower courts often do things for long periods of time unthinkingly or maybe thinkingly and thoughtfully that turn out to be wrong. And I'm sorry that doesn't afford Stariah's slices effect. I said that it wasn't. I'm sorry. I must have either misspoke or meant to say what's not right. I'm sure I miss her general. I'm sorry. That it does not. It is not precluded by Stariah's slices, but it is again thoughtful 80-year history that is essentially informed. Everything Congress has done subsequently. Congress has enacted subsequent review statutes using the same language, for example, 28 USC 2342 with a specific administrative review statute. There are definitely specific administrative review statutes that contemplate this. But let's put those aside for the moment. And just look at the APA itself. Isn't it a little odd that Section 706 governs the scope of review and proceeds to tell us to review questions of Law Day Novo? That's all another Kellogg fish. Whether we do that. But it tells us to do that. And then goes on and tells us when we find an unlawful agency action, finding or conclusion we should set it aside. We don't think of negating or vacating or erasing findings or conclusions. We put them aside and go ahead and decide the case without them usually. And why wouldn't the same apply to errors of law under a Day Novo standard review? Especially when 703 does list all the remedial forms available in an APA action, declaratory judgment and junctions. It would seem like it would be a monster swallowing all of the other remedies that sits in these five words. You know, hold on lawful and set aside. It's in a scope of review section. Just on its face. Putting aside our learned friends on the DC circuit on the one hand and our learned friends from six and the fourth on the other. So I think the answer to your honor is to look at both 703 and 706 together. I disagree with you that 703 provides remedies and I think taking sentence by sentence. It's just that it doesn't well take a look at it again. Council tell me if you really think that because I look at it talks about venue and forms of proceeding and the forms of proceeding listed. Include in junk to relief and declaratory judgments. Those are classic remedial forms of relief or forms of proceeding. Well, you're on our two points. First of all, I don't think anyone has ever thought that federal rule of civil procedure two which provides one form of action. And this is the same words you're here using form of proceeding. And it specifies the applicable legal form of action. I don't think anyone thinks. Forms of proceeding and at list them is declaratory and injunct. You'd agree those are remedies. I agree there are forms of action, your honor. And yes, they can't think in remedies. Okay, so those are remedies in declaratory relief and junctions. There they are in 703. So it's a little odd that there be this giant remedies swallow as the whole of 703 lurking over in 706. And then put that aside too. What about 702? Which limits the power of certain persons to come into court under the APA. Limits them to agree persons who've actually been personally and concretely injured. Their Congress is carefully respecting our standing rules at the front end. Would it be odd for it to blow a giant hole in our remedial rules at the back end through five words in 706? I don't think so, your honor. Two points. The first being this court is recognized, I believe in Luhon in 1990, that the APA provides an especially generous form of judicial review. Ordinarily you have to have some sort of legal right typically. And this provides, as you point out, just this course which both available for someone suffering a legal wrong, as well as a party adversely affected or aggrieved. So I think that's much broader than the traditional form of that. It's not everybody in the world who has a generalized grievance. Certainly not. It has to be someone who's specifically harmed, consistent with Article 3, right? That's certainly true. That's certainly true, Justice Gorsuch. The fact that Congress created, and I'm going to speak specifically to the assumption that Vicketer exists on your Article 3 question, then... Oh yeah, where does that word appear in the APA? It comes from set aside as you... It doesn't appear in the APA, right? It does not. It comes from... It's just, we assume it from those five words. And from previous practice, Justice Gorsuch, previous practice that had been recognized in this Court, more than ten times, as a matter of fact, had been recognized in this Court, in the terms of unknow or evoke, synonyms that were recognized by contemporary legal dictionaries at the time as being synonymous with set aside. And synonyms that relate to the claim at issue in the case. I mean, aren't... What is your thought on my point about the claim at issue in this case being about the agencies in valid exercise of authority because it didn't follow the right procedures? I agree with you, Justice Jackson, that to the extent the kind of claims that Congress provided for underneath the administrative procedure act included claims that run to the essential invalidity of a thing, that it simply is not valid exercise of power. Congress chose to give that power over both orders and rules when it provided for review of agency action, a term defined in statute to include both. And so I agree with you that vacators the natural remedy, which is to say, of vacating the actual thing itself that is categorically invalid. And it's in section 06, along with the kinds of claims that people can make, what the Court is reviewing and looking for, are these kinds of errors by the agency. And we're told that when they exist, you set aside the agency action. I agree with you, both 706-1 and 706-2 follow the same structure, which is to say the initial words provide the remedy, order, agency action. And then the next component says, what the substantive standard you have to mean is.

. It's in a scope of review section. Just on its face. Putting aside our learned friends on the DC circuit on the one hand and our learned friends from six and the fourth on the other. So I think the answer to your honor is to look at both 703 and 706 together. I disagree with you that 703 provides remedies and I think taking sentence by sentence. It's just that it doesn't well take a look at it again. Council tell me if you really think that because I look at it talks about venue and forms of proceeding and the forms of proceeding listed. Include in junk to relief and declaratory judgments. Those are classic remedial forms of relief or forms of proceeding. Well, you're on our two points. First of all, I don't think anyone has ever thought that federal rule of civil procedure two which provides one form of action. And this is the same words you're here using form of proceeding. And it specifies the applicable legal form of action. I don't think anyone thinks. Forms of proceeding and at list them is declaratory and injunct. You'd agree those are remedies. I agree there are forms of action, your honor. And yes, they can't think in remedies. Okay, so those are remedies in declaratory relief and junctions. There they are in 703. So it's a little odd that there be this giant remedies swallow as the whole of 703 lurking over in 706. And then put that aside too. What about 702? Which limits the power of certain persons to come into court under the APA. Limits them to agree persons who've actually been personally and concretely injured. Their Congress is carefully respecting our standing rules at the front end. Would it be odd for it to blow a giant hole in our remedial rules at the back end through five words in 706? I don't think so, your honor. Two points. The first being this court is recognized, I believe in Luhon in 1990, that the APA provides an especially generous form of judicial review. Ordinarily you have to have some sort of legal right typically. And this provides, as you point out, just this course which both available for someone suffering a legal wrong, as well as a party adversely affected or aggrieved. So I think that's much broader than the traditional form of that. It's not everybody in the world who has a generalized grievance. Certainly not. It has to be someone who's specifically harmed, consistent with Article 3, right? That's certainly true. That's certainly true, Justice Gorsuch. The fact that Congress created, and I'm going to speak specifically to the assumption that Vicketer exists on your Article 3 question, then... Oh yeah, where does that word appear in the APA? It comes from set aside as you... It doesn't appear in the APA, right? It does not. It comes from... It's just, we assume it from those five words. And from previous practice, Justice Gorsuch, previous practice that had been recognized in this Court, more than ten times, as a matter of fact, had been recognized in this Court, in the terms of unknow or evoke, synonyms that were recognized by contemporary legal dictionaries at the time as being synonymous with set aside. And synonyms that relate to the claim at issue in the case. I mean, aren't... What is your thought on my point about the claim at issue in this case being about the agencies in valid exercise of authority because it didn't follow the right procedures? I agree with you, Justice Jackson, that to the extent the kind of claims that Congress provided for underneath the administrative procedure act included claims that run to the essential invalidity of a thing, that it simply is not valid exercise of power. Congress chose to give that power over both orders and rules when it provided for review of agency action, a term defined in statute to include both. And so I agree with you that vacators the natural remedy, which is to say, of vacating the actual thing itself that is categorically invalid. And it's in section 06, along with the kinds of claims that people can make, what the Court is reviewing and looking for, are these kinds of errors by the agency. And we're told that when they exist, you set aside the agency action. I agree with you, both 706-1 and 706-2 follow the same structure, which is to say the initial words provide the remedy, order, agency action. And then the next component says, what the substantive standard you have to mean is... And wouldn't it be odd for the Court to go back to 703? I mean, it seems to me that if you read all of the provisions in order, there's sort of a logical progression of how one brings an action, the form of action you can bring, the venue of the proceeding, that's 702, 703, which actions are reviewable, 704. And then we finally get to 706. It's what the Court is looking for and the relief that can be provided. I agree with you, and it only point out 705, which you skipped over, which provides the ability for a Court in interim relief to delay the effective data agency action. Delaying the effective date unquestionably acts on the action itself and is against all the world, and I think that's a strong textual clue, Congress intended that's where everybody. Why don't we move to individual questions, Justice Aledo? Well, I was quite surprised by the argument based on Alamun Gonzalez. I don't have a proprietary interest in the opinion, however. I understood the issue there to be the meaning of the operation of a statute, not the meaning of an injunction. Have I misread that? No, Your Honor, and part of the thrust of our argument is what is meant by an order that enjoins or restrains. And I also see, and then we, this is not the slip opinion or the United States report, but it's the Supreme Court reporter. So probably this is accurate. There's a footnote, too, which says that an oral argument the government suggested that 1252 F1 not only bars class-wide injunctive relief, but also prohibits any other form of relief that is, quote, practically similar to an injunction, including class-wide declaratory relief, and we, according to this footnote, specifically reserved decision on that question. Is it your understanding that that's actually an accurate footnote and that we took pains in this decision to reserve decision on whether an injunction means something that's not formally an injunction, but might have an effect that is analogous to an injunction? I agree entirely, Justice Salito, and would only add that the line between vacator and declaratory relief that my friend on the other side suggests here and that that note I think suggests that the United States's position might be something else in a subsequent case is another reason why their interpretation should be rejected. Now, like Justice Gorsuch, I did not have the benefit of serving many years on the DC Circuit and vacating regulations three times before breakfast or however many times, five times before breakfast. Justice, but this does seem to me like a pretty big issue. And as Justice Kavanaugh mentioned, we have three pages from the government on this in its opening brief. The argument is based primarily on a law review article, innovative law review article that appeared in 2020, and then you came back with three pages on this, and then the government expanded their argument to four pages in the reply breake. Now, what do we do with this? Are we supposed to, we left to do all of the scholarship that would be required to figure out whether this new interpretation is the correct interpretation? But you do say, and you're right, that this is not a clear case of starry decisis. So how would you approach, how would you suggest we approach that? I don't think it's clearly presented, it fairly eclipsed within the questions presented. Your Honor, it's just that the United States made such a colossal argument arguing with such far-flung consequences that we would have been remiss not to address it. But I think this court can essentially choose to chair to ignore it on that ground. Of course, we believe that the 80 years of practice and for the reasons we outlined in our brief that they're also wrong on the merits. Is this on the order? Yes, we could also assume that it's not encompassed by the question presented and deal just with the 1252 issue, correct? Yes, Justice on the order. All right, now secondly, you said the guidelines were binding on immigration officers, that that's what the district court helped. I'm not unsure, I understand it's holding. Do you understand the district court have said that the guidelines are wrong because they impose on immigration officers a bunch of factors to look at before they decide to do so. I think my answer is in two parts. Okay. The first is that the district court found as a matter of fact that as a matter of fact that individuals applying these guns would treat them as mandatory. And then there's a problem with all. Mandatory to consider, correct? No, your Honor, the finding was that they would think that the framework provided by the guidelines was in fact mandatory period. The framework, the framework says you look at the totality of circumstances, you look at all of these things. If that's all the guidelines said, would you have a day in court today? Certainly, Your Honor, in part because the essence of 1226C of Congress's considered judgment behind that. So you are going back on what you said to me earlier, you're saying that you believe that this statute 1226 and 1231 take away all discretion to decide whether to read. Do you want to remove somebody or not? No, Your Honor, only discretion whether to detain them pending the decision. I know you keep going back to that, but the guidelines are talking about a decision to remove someone to arrest, detain or remove. And if a DHS officer looks at the totality of circumstances and says, this is a person we're not going to remove. Can you argue about that? At that point, I think the 1226C1, assuming that was the final decision, the 1226C1 obligation is resolved by 1226A. Which says pending removal. Okay. Pending a decision. All right. So if the district court anywhere say that the guidelines categorically prevent DHS officers from ever going outside of the priorities. He made a finding that those three categories were looked at as exclusive. And that's in part backed up by, for example, an internal tool, the ART tool that was promulgated by DHS to its line level officials, which is. But that has to go to the issue of removal. Everybody has to use guidelines into determining whether to remove someone. If there are guidelines to look over where are we spending our money to remove, what are we doing to remove? I don't know why if that power is within my discretion, I can't set binding mandatory, whatever you want to call it, guidelines on my officers to say. These are the people that I want to remove and these are the people I don't want to remove. As I understood your previous question, Justice Sotomayor, I thought you were asking me whether or not there was something showing that officers did not have the discretion to go outside of the guidelines. There is in fact that I believe it's record 11, 6, 10, it states in bold, other priority is in not one of the three guidelines components is no longer permitted. It says that in bold text, internal training. Then we're back to my point. You are basically trying to sneak into, you want to cabin removal and say you must remove these people, whether or not you want to or not. No, Your Honor, we have repeated. So once you say that, then how can the guidelines be wrong? Because it's simply a statement that says these aliens, we're not going to remove. Because the guidelines also say we have the absolute discretion to decide whether to arrest or detain anyone. Congress has, and again, I want to make clear, we're disclaiming that any of our arguments require the petitioners to remove any individual in particular

.. And wouldn't it be odd for the Court to go back to 703? I mean, it seems to me that if you read all of the provisions in order, there's sort of a logical progression of how one brings an action, the form of action you can bring, the venue of the proceeding, that's 702, 703, which actions are reviewable, 704. And then we finally get to 706. It's what the Court is looking for and the relief that can be provided. I agree with you, and it only point out 705, which you skipped over, which provides the ability for a Court in interim relief to delay the effective data agency action. Delaying the effective date unquestionably acts on the action itself and is against all the world, and I think that's a strong textual clue, Congress intended that's where everybody. Why don't we move to individual questions, Justice Aledo? Well, I was quite surprised by the argument based on Alamun Gonzalez. I don't have a proprietary interest in the opinion, however. I understood the issue there to be the meaning of the operation of a statute, not the meaning of an injunction. Have I misread that? No, Your Honor, and part of the thrust of our argument is what is meant by an order that enjoins or restrains. And I also see, and then we, this is not the slip opinion or the United States report, but it's the Supreme Court reporter. So probably this is accurate. There's a footnote, too, which says that an oral argument the government suggested that 1252 F1 not only bars class-wide injunctive relief, but also prohibits any other form of relief that is, quote, practically similar to an injunction, including class-wide declaratory relief, and we, according to this footnote, specifically reserved decision on that question. Is it your understanding that that's actually an accurate footnote and that we took pains in this decision to reserve decision on whether an injunction means something that's not formally an injunction, but might have an effect that is analogous to an injunction? I agree entirely, Justice Salito, and would only add that the line between vacator and declaratory relief that my friend on the other side suggests here and that that note I think suggests that the United States's position might be something else in a subsequent case is another reason why their interpretation should be rejected. Now, like Justice Gorsuch, I did not have the benefit of serving many years on the DC Circuit and vacating regulations three times before breakfast or however many times, five times before breakfast. Justice, but this does seem to me like a pretty big issue. And as Justice Kavanaugh mentioned, we have three pages from the government on this in its opening brief. The argument is based primarily on a law review article, innovative law review article that appeared in 2020, and then you came back with three pages on this, and then the government expanded their argument to four pages in the reply breake. Now, what do we do with this? Are we supposed to, we left to do all of the scholarship that would be required to figure out whether this new interpretation is the correct interpretation? But you do say, and you're right, that this is not a clear case of starry decisis. So how would you approach, how would you suggest we approach that? I don't think it's clearly presented, it fairly eclipsed within the questions presented. Your Honor, it's just that the United States made such a colossal argument arguing with such far-flung consequences that we would have been remiss not to address it. But I think this court can essentially choose to chair to ignore it on that ground. Of course, we believe that the 80 years of practice and for the reasons we outlined in our brief that they're also wrong on the merits. Is this on the order? Yes, we could also assume that it's not encompassed by the question presented and deal just with the 1252 issue, correct? Yes, Justice on the order. All right, now secondly, you said the guidelines were binding on immigration officers, that that's what the district court helped. I'm not unsure, I understand it's holding. Do you understand the district court have said that the guidelines are wrong because they impose on immigration officers a bunch of factors to look at before they decide to do so. I think my answer is in two parts. Okay. The first is that the district court found as a matter of fact that as a matter of fact that individuals applying these guns would treat them as mandatory. And then there's a problem with all. Mandatory to consider, correct? No, your Honor, the finding was that they would think that the framework provided by the guidelines was in fact mandatory period. The framework, the framework says you look at the totality of circumstances, you look at all of these things. If that's all the guidelines said, would you have a day in court today? Certainly, Your Honor, in part because the essence of 1226C of Congress's considered judgment behind that. So you are going back on what you said to me earlier, you're saying that you believe that this statute 1226 and 1231 take away all discretion to decide whether to read. Do you want to remove somebody or not? No, Your Honor, only discretion whether to detain them pending the decision. I know you keep going back to that, but the guidelines are talking about a decision to remove someone to arrest, detain or remove. And if a DHS officer looks at the totality of circumstances and says, this is a person we're not going to remove. Can you argue about that? At that point, I think the 1226C1, assuming that was the final decision, the 1226C1 obligation is resolved by 1226A. Which says pending removal. Okay. Pending a decision. All right. So if the district court anywhere say that the guidelines categorically prevent DHS officers from ever going outside of the priorities. He made a finding that those three categories were looked at as exclusive. And that's in part backed up by, for example, an internal tool, the ART tool that was promulgated by DHS to its line level officials, which is. But that has to go to the issue of removal. Everybody has to use guidelines into determining whether to remove someone. If there are guidelines to look over where are we spending our money to remove, what are we doing to remove? I don't know why if that power is within my discretion, I can't set binding mandatory, whatever you want to call it, guidelines on my officers to say. These are the people that I want to remove and these are the people I don't want to remove. As I understood your previous question, Justice Sotomayor, I thought you were asking me whether or not there was something showing that officers did not have the discretion to go outside of the guidelines. There is in fact that I believe it's record 11, 6, 10, it states in bold, other priority is in not one of the three guidelines components is no longer permitted. It says that in bold text, internal training. Then we're back to my point. You are basically trying to sneak into, you want to cabin removal and say you must remove these people, whether or not you want to or not. No, Your Honor, we have repeated. So once you say that, then how can the guidelines be wrong? Because it's simply a statement that says these aliens, we're not going to remove. Because the guidelines also say we have the absolute discretion to decide whether to arrest or detain anyone. Congress has, and again, I want to make clear, we're disclaiming that any of our arguments require the petitioners to remove any individual in particular. So once they decide they're not, and that's what a decision not to arrest or detain means, we're not going to be moving. I don't think that's accurate, Your Honor. I think conceivably, petitioners could make all three decisions at once. The problem is they have said every- Well, that's a moment that they make the decision if they know the person is in jail. They don't put a detainer on them. They don't file a notice to appear. All of those acts says, at this moment today, I'm not removing you. They have to actually make that decision before their 1226C obligation is absolved. Well, but they have by saying we're not going to put a detainer on you. I think some of the slippage here is the situation where the United States simply hasn't made a decision at all relative to some given alien covered by 1226C. Well, that might be, but I don't know how you would ever know that. Because I know the things I see. I know he's here. I know I could put a detainer on him. I choose not to, because I'm not going to choose to remove him. Well, the United States postulated there would be individuals in this category that were part of 1226C one. They run away. Exactly, but you're not saying to me, and I think you disavowed earlier, that they have to spend the resources to find everybody who falls into these categories and to affirmatively then say, I'm not going to remove you. They certainly have to make that affirmative statement because of the way that you have to see. Well, they have to not remove. Okay, thank you. And, yes, Ms. Kagan. You might get a chance to clarify that because I've completely lost the thread and I apologize, General Stone. But are you saying that 1226C applies only once removal proceedings are pending? We are not. We are saying it applies until a decision regarding removal has been made. So I don't understand how you can possibly read 1226A and C to be about anything other than what happens pending removal decision. In other words, when removal proceedings are ongoing. In our view, 1226A is pending a removal decision, does not just begin with the notice to appear. Of course, the removal decision begins when the executive decides whether or not to bring a notice to appear. Until that decision has been made and anywhere along the lines of that initial prosecutorial judgment all the way through the end of enforcing an order. At any time, petitioners can say we've made the decision not to remove and the obligation under 1226C comes to an end instant. I guess the question is, where does the, it's start in your view. In other words, prior to the government initiating removal proceedings, do you think 1226 applies? Yes, that's the intent. Okay, because 1226A, that seems to me a pretty hard argument to make and not consistent with our precedent. I mean, DeMor v. Kim addresses this issue pretty precisely and it just says that this is what this is about is it's about while removal proceedings are pending while they're taking place. Add a minimum, your honor. First of all, DeMor doesn't speak to the situation where there's an individual required to be detained about which the United States hasn't yet made a decision. 1226C says or C1 says when it applies in its own terms when an alien is released, 1226D directs the attorney general or now the federal executive to create a system in order to know when these individuals are going to be released. And then that obligation ends in 1226A when they've made a decision pending removal. That could be. I mean, I guess what, what, what, what I'm drawing from this is that even putting aside the dish out really being shall argument that, that, that you're reading the shall to kick in at a place where we've never understood it to kick in before. I don't believe that this courts passed one way or another on that question, but even if not, that would be a small subset of individuals. And these guidelines claim the power to treat detention is discretionary for individuals in removal proceedings as well. And if I could ask about 1231, a similar question, which is like even putting aside all the castle rock issues, especially in a context in which we know that DHS can't really do what, whatever the shall means. But even putting that aside, if you look at the language of 1231, it's the attorney general shall detain the alien. It doesn't say anything about shall remove. It doesn't say anything about shall apprehend shall arrest. It just says shall detain. And, and again, these guidelines don't say anything about detention. First, I believe that on by speaking is to arrest and detainer they do, but that's a small point compared to the rest of your question, Justice Kagan. 1231, a, 1231, a one specifies the circumstances under which the detention obligation exists, which is only where the United States has used its prosecutorial discretion to bring a notice to appear, to prosecute that all the way to a final removal, an order of removal. And then they have a final order of removal. Only then do petitioners have an obligation to detain and under no circumstances release for a subset of individuals that alien. If at any point they choose to discontinue proceedings, they're not bringing them in the first place. 1231 at no point attaches. It seems to me that you're reading 1231 to impose an obligation on DHS to go apprehend people. And 1231 specifically does not use that language

. So once they decide they're not, and that's what a decision not to arrest or detain means, we're not going to be moving. I don't think that's accurate, Your Honor. I think conceivably, petitioners could make all three decisions at once. The problem is they have said every- Well, that's a moment that they make the decision if they know the person is in jail. They don't put a detainer on them. They don't file a notice to appear. All of those acts says, at this moment today, I'm not removing you. They have to actually make that decision before their 1226C obligation is absolved. Well, but they have by saying we're not going to put a detainer on you. I think some of the slippage here is the situation where the United States simply hasn't made a decision at all relative to some given alien covered by 1226C. Well, that might be, but I don't know how you would ever know that. Because I know the things I see. I know he's here. I know I could put a detainer on him. I choose not to, because I'm not going to choose to remove him. Well, the United States postulated there would be individuals in this category that were part of 1226C one. They run away. Exactly, but you're not saying to me, and I think you disavowed earlier, that they have to spend the resources to find everybody who falls into these categories and to affirmatively then say, I'm not going to remove you. They certainly have to make that affirmative statement because of the way that you have to see. Well, they have to not remove. Okay, thank you. And, yes, Ms. Kagan. You might get a chance to clarify that because I've completely lost the thread and I apologize, General Stone. But are you saying that 1226C applies only once removal proceedings are pending? We are not. We are saying it applies until a decision regarding removal has been made. So I don't understand how you can possibly read 1226A and C to be about anything other than what happens pending removal decision. In other words, when removal proceedings are ongoing. In our view, 1226A is pending a removal decision, does not just begin with the notice to appear. Of course, the removal decision begins when the executive decides whether or not to bring a notice to appear. Until that decision has been made and anywhere along the lines of that initial prosecutorial judgment all the way through the end of enforcing an order. At any time, petitioners can say we've made the decision not to remove and the obligation under 1226C comes to an end instant. I guess the question is, where does the, it's start in your view. In other words, prior to the government initiating removal proceedings, do you think 1226 applies? Yes, that's the intent. Okay, because 1226A, that seems to me a pretty hard argument to make and not consistent with our precedent. I mean, DeMor v. Kim addresses this issue pretty precisely and it just says that this is what this is about is it's about while removal proceedings are pending while they're taking place. Add a minimum, your honor. First of all, DeMor doesn't speak to the situation where there's an individual required to be detained about which the United States hasn't yet made a decision. 1226C says or C1 says when it applies in its own terms when an alien is released, 1226D directs the attorney general or now the federal executive to create a system in order to know when these individuals are going to be released. And then that obligation ends in 1226A when they've made a decision pending removal. That could be. I mean, I guess what, what, what, what I'm drawing from this is that even putting aside the dish out really being shall argument that, that, that you're reading the shall to kick in at a place where we've never understood it to kick in before. I don't believe that this courts passed one way or another on that question, but even if not, that would be a small subset of individuals. And these guidelines claim the power to treat detention is discretionary for individuals in removal proceedings as well. And if I could ask about 1231, a similar question, which is like even putting aside all the castle rock issues, especially in a context in which we know that DHS can't really do what, whatever the shall means. But even putting that aside, if you look at the language of 1231, it's the attorney general shall detain the alien. It doesn't say anything about shall remove. It doesn't say anything about shall apprehend shall arrest. It just says shall detain. And, and again, these guidelines don't say anything about detention. First, I believe that on by speaking is to arrest and detainer they do, but that's a small point compared to the rest of your question, Justice Kagan. 1231, a, 1231, a one specifies the circumstances under which the detention obligation exists, which is only where the United States has used its prosecutorial discretion to bring a notice to appear, to prosecute that all the way to a final removal, an order of removal. And then they have a final order of removal. Only then do petitioners have an obligation to detain and under no circumstances release for a subset of individuals that alien. If at any point they choose to discontinue proceedings, they're not bringing them in the first place. 1231 at no point attaches. It seems to me that you're reading 1231 to impose an obligation on DHS to go apprehend people. And 1231 specifically does not use that language. It's used in lots of other places in this statute. But 1231 only imposes an obligation to detain certain people who have orders of removal already made. It doesn't obligate anybody to do anything with respect to finding them. At a minimum, your honor, 1226 sees taken to custody certainly means to arrest. But as far as I think in context, 1231, a, 2, shall detain. And then the under no circumstances language should be best read as a mandatory requirement of both acquiring an individual of arresting them as well as detaining. In part because, for example, in the Fourth Amendment context, this Court understands detention or if someone has been asked if they're detained as significant for purposes of the arrest. And you're reading in context to insert a different word, which actually is an extraordinarily onerous obligation on DHS to go around finding people, everybody who has had orders of removal put in where they don't have the faintest idea where they are. I mean talking about distorting the agency's priority. And you're basically saying it doesn't really say that. It's just we're reading this in context to imply it. You honor, I think detain can be fairly mentored for some of the resources that we cite in our brief can be fairly understood to also mean arrest if someone has to be detained. Well, then we would have a question about why the why the statute uses arrest and apprehend all over the place and not in that section. Certainly, certainly, your honor. I might also point out that there's the second sentence, the individuals under no circumstances. Petitioners agree that that is mandatory. There is a complete overlap between those. I agree that that's mandatory because that's a person that they know where the person is. And so they don't have to do anything to apprehend that person. We already have them. We're not releasing them. And that, the language in the statute is very different and makes that completely clear and they're complying with that language. Respectfully, Your Honor, I don't think that's accurate. I think before my friends on the other side noted they don't always know where a 1226C1 individual is. Every single individual. I was talking about 1231. Yeah, I understand justice Kagan. Every individual covered by 1226C1 who has a final order of removal falls into that second sentence. Thank you, if there. Thank you, General. Does this go or such? Does this Kavanaugh? I have a few questions. So first, on the resource constraints issue that's been raised, just trying to figure out how this will play out if you were to prevail. So the government says we don't have the money to comply. Then what do you do? I don't think we even have final agency action at that point to sue over, let alone, that we could point at 1226C or 1231. So nothing changes. If the government said that they didn't have money to comply and then continued ignoring this court's order, we might be able to put together some sort of de facto. Well, it's not ignoring it. It's just we don't have, if they say, we don't have the money to comply with the court's order or the statute as written, as construed by you, the shall. I agree that presents a difficult hypothetical justice Kavanaugh, but in this case where there are findings of fact regarding persistently underused detentionability. It's a much harder case where there's a world where as a matter of fact, petitioners are using in their own best judgment all of the resources they have. I think that's a much harder case. It'd be harder case at least on redressability rounds. That's not this case and there are findings of fact on this record supported by ample evidence. If you play it out and you go into district court, the district court would have to issue an order then essentially mandating arrests. Certainly not your honor. We're only seeking vicar of the guidelines. No, here I'm talking about if you win here, then the government doesn't do anything because it says we don't have the money to do anything. Then you try some action. I guess you already said there wouldn't be final agency action there. I don't believe there'd be final agency action. That's good. Okay. Second, the hypothetical raised by the government which I don't think's been raised, could a state challenge the president's exercise of war powers, for example, being a violation of the court. The constitution or the war powers resolution. They raised that as an issue that your theory would lead to. I don't believe so, Your Honor. In part because, for example, why not? Well, it'll be costly to the state from its people going into a foreign war. So why couldn't the state then challenge under your theory here? At a minimum, the president isn't an agency. So the president is either a Congress

. It's used in lots of other places in this statute. But 1231 only imposes an obligation to detain certain people who have orders of removal already made. It doesn't obligate anybody to do anything with respect to finding them. At a minimum, your honor, 1226 sees taken to custody certainly means to arrest. But as far as I think in context, 1231, a, 2, shall detain. And then the under no circumstances language should be best read as a mandatory requirement of both acquiring an individual of arresting them as well as detaining. In part because, for example, in the Fourth Amendment context, this Court understands detention or if someone has been asked if they're detained as significant for purposes of the arrest. And you're reading in context to insert a different word, which actually is an extraordinarily onerous obligation on DHS to go around finding people, everybody who has had orders of removal put in where they don't have the faintest idea where they are. I mean talking about distorting the agency's priority. And you're basically saying it doesn't really say that. It's just we're reading this in context to imply it. You honor, I think detain can be fairly mentored for some of the resources that we cite in our brief can be fairly understood to also mean arrest if someone has to be detained. Well, then we would have a question about why the why the statute uses arrest and apprehend all over the place and not in that section. Certainly, certainly, your honor. I might also point out that there's the second sentence, the individuals under no circumstances. Petitioners agree that that is mandatory. There is a complete overlap between those. I agree that that's mandatory because that's a person that they know where the person is. And so they don't have to do anything to apprehend that person. We already have them. We're not releasing them. And that, the language in the statute is very different and makes that completely clear and they're complying with that language. Respectfully, Your Honor, I don't think that's accurate. I think before my friends on the other side noted they don't always know where a 1226C1 individual is. Every single individual. I was talking about 1231. Yeah, I understand justice Kagan. Every individual covered by 1226C1 who has a final order of removal falls into that second sentence. Thank you, if there. Thank you, General. Does this go or such? Does this Kavanaugh? I have a few questions. So first, on the resource constraints issue that's been raised, just trying to figure out how this will play out if you were to prevail. So the government says we don't have the money to comply. Then what do you do? I don't think we even have final agency action at that point to sue over, let alone, that we could point at 1226C or 1231. So nothing changes. If the government said that they didn't have money to comply and then continued ignoring this court's order, we might be able to put together some sort of de facto. Well, it's not ignoring it. It's just we don't have, if they say, we don't have the money to comply with the court's order or the statute as written, as construed by you, the shall. I agree that presents a difficult hypothetical justice Kavanaugh, but in this case where there are findings of fact regarding persistently underused detentionability. It's a much harder case where there's a world where as a matter of fact, petitioners are using in their own best judgment all of the resources they have. I think that's a much harder case. It'd be harder case at least on redressability rounds. That's not this case and there are findings of fact on this record supported by ample evidence. If you play it out and you go into district court, the district court would have to issue an order then essentially mandating arrests. Certainly not your honor. We're only seeking vicar of the guidelines. No, here I'm talking about if you win here, then the government doesn't do anything because it says we don't have the money to do anything. Then you try some action. I guess you already said there wouldn't be final agency action there. I don't believe there'd be final agency action. That's good. Okay. Second, the hypothetical raised by the government which I don't think's been raised, could a state challenge the president's exercise of war powers, for example, being a violation of the court. The constitution or the war powers resolution. They raised that as an issue that your theory would lead to. I don't believe so, Your Honor. In part because, for example, why not? Well, it'll be costly to the state from its people going into a foreign war. So why couldn't the state then challenge under your theory here? At a minimum, the president isn't an agency. So the president is either a Congress. You bring something against the Secretary of Defense as has been done before. I think almost certainly political question doctrine then also to some extent. I don't know about that after Zyvatoski, but that's a different argument. Okay. So I'll go on to my next question. Justice Kagan raises a good point about the problem of government programs getting shut down quickly. Now, first, that can only happen. This is a helpful question to you, but that can only happen if you not only have standing, but you have a successful claim on the merits, likelihood of success on the merits, correct? That's correct. Okay. And if you, you know, I think the follow-up question was, you might get a judge with an idiosyncratic view of a particular issue and that can shut down a government program, but you can seek an immediate. The government can seek an immediate appeal in that circumstance or emergency motion. Not only can, but frequently does, and so it is in this court. We are aware. Okay. And last question is on the set aside. I just want you to say more. I have obviously shown what I think about that, but set aside argument is not just new as I understand it, but it was wrong from the beginning as your point. And that 706 deals with remedies, not just in 706, too, but 706-1 is a remedy. Just say a couple of cents about why you think it's wrong from the beginning, not just wrong, because a few judges like me get it for years on the DC circuit. Certainly, Justice Kavanaugh. So contemporary legal dictionaries. Indeed, even the dictionary, Marion Webster is on which petitioners cite in its e-definition, defined set aside to mean a no. Or to overrule that's in one B of their definition. That fits comfortably with the history recognized in this court prior to in leading up to the administrative procedure act. That definition pairs 706-2s, whole and lawful and set aside, which has the vicar remedy we've been discussing along with 706-1, which unquestively provides a remedy to order agency action on reasonably withheld. So the intertextual clues and history from this court and administrative practice prior to in leading up to the APA all point in the same direction that courts have properly been issuing vicar under 706-2 since the beginning. Thank you. Justice Barrett. Just a quick one on vicar. I agree with Justice Alito. This is a huge issue. And frankly, I wasn't expecting the 706 briefing. I thought we were just going to get briefing about the 1252-F1 issue. But this court, when it comes to jurisdiction, gives little weight to drive by jurisdictional rulings. And this list, there are general pointed out that this is not an issue. We might think of these as drive by remedial rulings because it's not an issue that this court or maybe even the lower courts have analyzed in depth. If I think you're wrong about the original meaning of the APA or what people expected set aside meant at that time, and these are all drive by remedial rulings, do you lose? If you think I'm wrong, then I think you'd have to ask whether or not you thought it was fairly within the question presented. I agree that the lower courts rulings don't bind this court. And this court's previous rulings, I think the fact this court has affirmed vicar many, many times should have you paused before thinking that we're wrong. But yes, I agree at that point you could rule against us on the merits. Thanks. Justice Jackson? Yes, so on the merits, it was very clarifying to me in your exchanges with Justice Sotomayor and Justice Tagan that you said you're not challenging the removal determination that you're saying this is really about detention, as the statute says, in that you're interpreting section 1226C to require the detention. And I think that you said that you're not challenging the detention of certain criminal non-citizens before DHS decides to initiate removal proceedings. Am I right about that? And arrest, which we think both of those come from taking to custody, but yes. But it's before, before. You said when they make the decision not to remove someone, then that then their duty dissipates and they can let them go. It attaches once the individuals released and it dissipates as soon as they make a decision. The reason why that's troubling me so, and you mentioned the Fourth Amendment at one point, the reason why that's troubling me so is that isn't the executive branches authority to take people into custody because they're going to effectuate their removal, that you get to arrest and detain this person based on your decision. And sort of thinking about a hypothetical situation in which it might take the government nine months, a year or whatnot to make a decision as to whether or not to remove such a person. Is it your view that once this person has served their criminal sentence in State Court and they're about to be released? The government, federal government has to pur the statute come in and detain that person even if they haven't decided to remove them and they could hold them. I suppose indefinitely until they make that determination. Two parts, the first part is very direct yes, the second part is perhaps in certain extreme circumstances there might be as applied constitutional challenge. That having been said to me the idea that the federal government hasn't decided whether to prosecute but will detain someone, sounds analogous to that the federal government believes someone has committed a crime and has probable cause and arrests them and then may perhaps choose later to let them go inside an all-prosage. But under our criminal system don't you have a limited amount of time as the government to decide whether or not to prosecute someone that you might arrest them based on probable cause. But then the government's got to pretty promptly arrange them meaning charge them and start the prosecution. You can't just indefinitely hold people. And so what I'm worried about is that your conception of this is that the government has to come in even before they've decided whether or not they're going to remove this person and detain them and apparently according to this very detailed statute there's no limit from Congress as to how long this person can be detained prior to the law. And so the determination of bringing charges that just seems totally anathema to what we've thought of in terms of valid exercises of government detention power. Three points, Your Honor, the first being that this Court has held previously that exercises of detention over non-citizens can be constitutionally tolerable even when they're constitutionally intolerable against citizens

. You bring something against the Secretary of Defense as has been done before. I think almost certainly political question doctrine then also to some extent. I don't know about that after Zyvatoski, but that's a different argument. Okay. So I'll go on to my next question. Justice Kagan raises a good point about the problem of government programs getting shut down quickly. Now, first, that can only happen. This is a helpful question to you, but that can only happen if you not only have standing, but you have a successful claim on the merits, likelihood of success on the merits, correct? That's correct. Okay. And if you, you know, I think the follow-up question was, you might get a judge with an idiosyncratic view of a particular issue and that can shut down a government program, but you can seek an immediate. The government can seek an immediate appeal in that circumstance or emergency motion. Not only can, but frequently does, and so it is in this court. We are aware. Okay. And last question is on the set aside. I just want you to say more. I have obviously shown what I think about that, but set aside argument is not just new as I understand it, but it was wrong from the beginning as your point. And that 706 deals with remedies, not just in 706, too, but 706-1 is a remedy. Just say a couple of cents about why you think it's wrong from the beginning, not just wrong, because a few judges like me get it for years on the DC circuit. Certainly, Justice Kavanaugh. So contemporary legal dictionaries. Indeed, even the dictionary, Marion Webster is on which petitioners cite in its e-definition, defined set aside to mean a no. Or to overrule that's in one B of their definition. That fits comfortably with the history recognized in this court prior to in leading up to the administrative procedure act. That definition pairs 706-2s, whole and lawful and set aside, which has the vicar remedy we've been discussing along with 706-1, which unquestively provides a remedy to order agency action on reasonably withheld. So the intertextual clues and history from this court and administrative practice prior to in leading up to the APA all point in the same direction that courts have properly been issuing vicar under 706-2 since the beginning. Thank you. Justice Barrett. Just a quick one on vicar. I agree with Justice Alito. This is a huge issue. And frankly, I wasn't expecting the 706 briefing. I thought we were just going to get briefing about the 1252-F1 issue. But this court, when it comes to jurisdiction, gives little weight to drive by jurisdictional rulings. And this list, there are general pointed out that this is not an issue. We might think of these as drive by remedial rulings because it's not an issue that this court or maybe even the lower courts have analyzed in depth. If I think you're wrong about the original meaning of the APA or what people expected set aside meant at that time, and these are all drive by remedial rulings, do you lose? If you think I'm wrong, then I think you'd have to ask whether or not you thought it was fairly within the question presented. I agree that the lower courts rulings don't bind this court. And this court's previous rulings, I think the fact this court has affirmed vicar many, many times should have you paused before thinking that we're wrong. But yes, I agree at that point you could rule against us on the merits. Thanks. Justice Jackson? Yes, so on the merits, it was very clarifying to me in your exchanges with Justice Sotomayor and Justice Tagan that you said you're not challenging the removal determination that you're saying this is really about detention, as the statute says, in that you're interpreting section 1226C to require the detention. And I think that you said that you're not challenging the detention of certain criminal non-citizens before DHS decides to initiate removal proceedings. Am I right about that? And arrest, which we think both of those come from taking to custody, but yes. But it's before, before. You said when they make the decision not to remove someone, then that then their duty dissipates and they can let them go. It attaches once the individuals released and it dissipates as soon as they make a decision. The reason why that's troubling me so, and you mentioned the Fourth Amendment at one point, the reason why that's troubling me so is that isn't the executive branches authority to take people into custody because they're going to effectuate their removal, that you get to arrest and detain this person based on your decision. And sort of thinking about a hypothetical situation in which it might take the government nine months, a year or whatnot to make a decision as to whether or not to remove such a person. Is it your view that once this person has served their criminal sentence in State Court and they're about to be released? The government, federal government has to pur the statute come in and detain that person even if they haven't decided to remove them and they could hold them. I suppose indefinitely until they make that determination. Two parts, the first part is very direct yes, the second part is perhaps in certain extreme circumstances there might be as applied constitutional challenge. That having been said to me the idea that the federal government hasn't decided whether to prosecute but will detain someone, sounds analogous to that the federal government believes someone has committed a crime and has probable cause and arrests them and then may perhaps choose later to let them go inside an all-prosage. But under our criminal system don't you have a limited amount of time as the government to decide whether or not to prosecute someone that you might arrest them based on probable cause. But then the government's got to pretty promptly arrange them meaning charge them and start the prosecution. You can't just indefinitely hold people. And so what I'm worried about is that your conception of this is that the government has to come in even before they've decided whether or not they're going to remove this person and detain them and apparently according to this very detailed statute there's no limit from Congress as to how long this person can be detained prior to the law. And so the determination of bringing charges that just seems totally anathema to what we've thought of in terms of valid exercises of government detention power. Three points, Your Honor, the first being that this Court has held previously that exercises of detention over non-citizens can be constitutionally tolerable even when they're constitutionally intolerable against citizens. The second being it may very well be the case there could be an as applied constitutional challenge in an extreme case here. But when the Odin Congress have to be clear that that's what there was actually trying to do. I mean, I would think constitutional avoidance would counsel us to read their statute not to even, you know, create the kind of constitutional problem you're talking about. And there's a very legitimate way to read it, which is the way that many of the justices have been pointing out. And that the solicitor general points out which is this applies to detention once the determination has been made. That makes it similar to criminal. That makes it consistent with the constitution and everything that we've said. I think it applies to both arrest and detention from taking to custody, but not to lose the force for the trees, Justice Jackson. Even if in fact this Court held that that's the duration permissible, it begins only with the notice to appear. The final memorandum would still be unlawful because it says the essentially that petitioners have the unbridled absolute discretion to arrest or detain or not arrest or not detain anyone. Under any circumstances, including individuals who have in fact committed actions that subject them to mandatory detention under 1226 C. So even if we stipulated that that was how the court were to interpret 1226 A, that the detention period ends upon the bre- doesn't attach until the beginning of a notice to removal proceeding, which I think doesn't follow from the statute's text. I'm sorry, I can't just say one more thing and I know we're running low on time. The statute's text in A says pending a decision on whether the alien is to be removed from the United States. And as Justice Kagan pointed out in D'Amora, we made very clear that that's a process. That it starts with the DHS's determination that they're going to seek removal and it ends ultimately with an order of removal. So it seems to me that A is talking about detention during the duration of that period. What you're saying is they can detain them prior to the United States's determination that they're even going to seek the person's removal. And I guess indefinitely until they make that decision. The problem here on is that pending a determination about whether someone is to be removed, itself in that passive voice contemplates the possibility that will be a negative determination. Otherwise, Congress would have said something like, you must detain these individuals for the duration of their removal proceedings. Or something to indicate removal proceedings that already begun. That's just not the text. Thank you, Council. Rebuttal General Farlegar. Thank you, Mr. Chief Justice. On 1252F1, my friend fundamentally misunderstands the difference between a declaratory judgment and vacator. If the district court here had entered a declaratory judgment, we would have still had the enforcement priorities and DHS would have been entitled to rely on those while it continued to pursue its appeal rights. It's not a coerce of remedy. Vacator stands in an entirely different posture because the district court voided the guidelines and that prevented DHS officials from being able to continue to rely on those while the case was litigated. And that is precisely contrary to the judgment that Congress made in 1252F1. On the merits, make no mistake. It is impossible for DHS to comply with each and every shall in the INA if that is truly a judicially enforceable duty. I don't think that my friend can reasonably contest that point. Justice Kavanaugh asked what the consequences of that would be on the ground. Here's what I think it would mean. If this court actually said that shall displaces all enforcement discretion, then DHS would be under a judicially enforceable obligation to take enforcement action against whoever it first encounters on the ground who might be subject to one of these provisions. But there are non-citizens out there who have criminal convictions for serious offenses like murder and sex offenses that wouldn't qualify under a shall because of the court's categorical approach. And that means we wouldn't have the resources or ability to go after those individuals who are threats to public safety, national security and border security. That is a senseless way to run an immigration enforcement system and it is not the statute that Congress enacted. On standing, my friend has articulated no limits on the circumstances that would permit a state to sue. He gestured at the idea that maybe it's when states have relinquished their sovereignty to the federal government, but that explains every exercise of the federal government's powers. It's always pursuant to the enumerated powers where there has been that relinquishment of sovereignty. He agrees that even one more non-citizen or one fewer, one dollar of indirect costs on taxing and spending would get states into court. And that would be an indirect effect of every single federal government policy because the national government and the states share sovereignty over the same people. And what that means is that anytime we regulate with respect to the people of the states, the states will be able to point to those kinds of indirect, incidental downstream effects on their own taxing and spending that has not provided a basis for standing. If you look at our history and tradition and the court should make that limit clear. Finally, I think it's worth taking a step back here. We think the district court committed a lot of different independent errors, any one of which would entitle us to relief, and it gives the court's options about how to resolve this case. But I think it's worth pausing on the consequences of the district court's very broad conception of standing here and its claim of remedial authority. Under the versions of state standing that the lower courts have been accepting, it means that states can challenge the federal government with any policy with which they disagree. All 50 state attorneys general can come to court. They can file multiple suits as they frequently do in multiple jurisdictions. And at that point, the federal government has to run the table. We have to win each and every one of those cases as we did here with these enforcement guidelines in the sixth circuit. But if the states can persuade even one single district judge in a forum of their choosing to be skeptical of the federal government's position, then that judge can claim authority to issue a universal remedy that is going to immediately put the federal government's policies on hold. And that resolves the issue for everyone everywhere and puts the government in the position where it frequently has to seek emergency relief from this court as the court well knows, as members of the court have recognized that requires high stakes decision making with very little time. And in a situation where it has stymied the ability of the court to rely on lower courts to vet the issues and give them consideration because one district judge has claimed authority to resolve the issue for the nation

. And I think that that is bad for the executive branch. I think it's bad for the American public. And I think it's bad for Article 3 courts. So we would encourage this court to say that and to verse. Thank you, Council. The case is submitted