During Thursday's Supreme Court oral arguments, Justice Neil Gorsuch questioned attorneys in a case that could decide birthright citizenship.
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00:00Well, I mean, you could benefit through percolation and a decision from this court with reasonable expedition.
00:10So I have no objections to reasonable expedition.
00:13We would have no objection to this court even setting supplemental briefing on the merits and hearing the merits directly.
00:19I'm happy to talk about the ways in which I think the merits do bear on this emergency application.
00:23But more fundamentally to your question, Mr. Chief Justice, I would just note that I don't think the alternatives actually fully remedy our injuries in a couple of different respects.
00:33So I heard my friend on the other side to specifically say today that maybe there can be an instruction to the federal government that at least when you're dealing with the plaintiff states, you treat these individuals kind of as though they're citizens, even if they're not really citizens.
00:46And that doesn't work, not just for the federal government.
00:49I agree, Justice Gorsuch, it may well be that the federal government can decide when to take its own medicine.
00:54But I'm talking about administrability burdens on the states, and I'm talking about administrability burdens on third parties as well.
01:00Can I ask you a question about that, counsel?
01:02Your three buckets are very thoughtful.
01:03The first one seems to me kind of consistent with traditional equity, which is if you've got to remedy the plaintiff's harm.
01:11That's your point there, and you're saying we fall in that bucket.
01:14I get that argument.
01:16The second bucket is possibly Article 3, okay, that Congress could authorize, maybe has authorized circumstances, but that doesn't answer the equity point.
01:29So we come to Bucket 3, and I'm struggling to understand what the rule is there.
01:36You seem to suggest, well, if it's really important and if you have to act expeditiously, then go ahead.
01:46But I think every district court who enters one of these thinks that's what they're doing.
01:52So what's the constraint there?
01:54If you share the government's concerns about the rise of these things in the last few decades, what teeth does any of that have?
02:03So I do feel like something of an amicus to this question, because nothing in my injunction rises or falls on this third bucket.
02:09Exactly.
02:09So I'm happy to answer questions on this.
02:11I need all the amici I can get.
02:14Fair enough, Your Honor.
02:15So I would say two things about that.
02:17The first is it does require reading the history in a way more like I do, which does not create a single bright-line rule that this is never available.
02:25Obviously, if someone reads the history as saying it's impossible.
02:28I'm spotting you that for the purposes of my question.
02:31Great.
02:31I'm not granting this.
02:32I thought you might not, Justice Gorsuch.
02:34But I'm spotting it to you, and I'm just saying, well, okay, what would that look like, and how would that be any different from what we have experienced over the last few decades?
02:44So this is a way in which my first bucket and my third bucket are actually going to relate for a moment, so I think this is—
02:49No, no, no, no, no, no, no, no, no, no, no, no, don't get to squiggle out into the first bucket, okay?
02:52We're in the third bucket.
02:54I'll answer for the third bucket, which is, I think it requires having district courts consider the availability of the alternative and explaining why it's not workable in the case.
03:01I think we've told them to do that, and, you know, gosh, how many times do we have to tell them to do that?
03:07And I think, in fairness to them, that's what they think they have.
03:10So let's—again, would any case over the last 30 years come out differently under your view of the rule in the third bucket than has?
03:21Yeah, so there's a couple of examples where we don't think universal relief was appropriate.
03:25I'm most familiar with the state litigation, so most of my examples will probably come from there.
03:28But I heard my friend on the other side mention the DACA litigation, where Texas sought the termination of DACA, and ultimately the Fifth Circuit terminated DACA, specific to Texas alone.
03:38And we thought that that decision was exactly right, because of the nature of the harms in that case, meant that Texas could get full relief for its harms.
03:45Well, now we're back to the first bucket.
03:47We're just satisfying the—
03:48Oh, I take the point.
03:48I'm so sorry, I'm sorry.
03:49You see what I'm saying?
03:49I take the point, yes.
03:50I mean, I get that we're going to always revert back to the first bucket, but that means the third bucket's empty.
03:56I totally take the point.
03:57And I think AARP is a good illustration of the third bucket that this court confronted recently, where it was the case that there was this rush, just a few hours, not possible to go through class certification.
04:10You heard my friend on the other side talk about the rigors of class certification, and I don't think my friend on the other side would agree it could be done in three hours through the night.
04:18And so there were a necessity to step in.
04:20Do you agree?