first to benefit, does it allow citizens to be put there. [inaudible] >> perhaps i can qualify. if arizona reads the statue putting non-citizens at the bottom of each of the four tiers and we read the statutes such as pregnant women have party as citizens over non- citizens, emergency health workers have priority over non- citizens -- >> that is not an additional criteria. that is inconsistent criteria if

you say pregnant women are first, but half of them do not come first. ' >> the document gives congress broad authority -- >> are you distinguishing between a pregnant woman two months pregnant and nine months pregnant? >> we are not. >> that would also be denied. >> that could be a harder case. >> you have to anticipate that. >> all we're asking is that here in the fidelity state of an early pregnancy, there is no authority for taking into account potential citizenship of the pregnancy and how we apply

this budget. i admit, nine months would present a much harder case. >> in the arizona statute, a unitary statute, if it is unconstitutional in some part, is there anything given to me which says the other parts are safe because that raises some problems. for example, it is a one-year absolute exclusion, if that is unconstitutional and the statute is a unitary statute, then the whole thing falls. i would like to know whether we are supposed to try and save what parts of the statute we can or not, because i do not see it directly. >> this question really underscores why this is an area subject to the plenary power of the political branches. we are in a public health

crisis nationally. >> what is arizona doing specifically that is not part of the statute? it prohibits people moving out, presumably even within priority structure. this is a scheme airs on is actually applying before the statute. federal legislation says nothing about any purpose of furthering public health -- >> that is right. we have a rationing. we believe it is directly authorized by the federal statute. the quota is the implementation of a rationing scheme, and without some kind of limitation on the timing and when we start to open up an expert to category, we cannot effectively reserved the vaccine and cover -- as congress has directed us

to for the priority -- >> as illustrated, interpretation of the statute is a close call. constitutional questions under the equal protection precedent. given that, why should we not enact a law along the lines you say? speak more clearly, and we will approach to constitutional question, as we usually do. >> is the invert -- it is the inverse of that. we're in a national emergency, and this is a situation where we do not have time to go back and retract and have debates between the courts and congress. >> national emergencies are questions for congress, and congress here did not speak clearly to the question of whether immigrants or non- citizens should have lower priority. until congress speaks clearly on that, why should we assume that is what they intended?

>> isn't that more dangerous, to put a seal of approval on and acknowledge it as a sloppy statute? >> no. the statute is a statute that is giving the kind of flexibility required to the political branches -- >> this is a national emergency. [laughter] >> inconsistent with the package. >> it is distinguishable from granby-richardson. we're talking about the lives of citizens, and congress, support from expertise on matters of public health and immigration has determined that we do not want to have people coming over the border and taking up the vaccine. many people coming over the

border may already be infected. rational basis is in a corporate standard care. -- is the appropriate standard here. >> aliens are allowed the same equal protection as citizens. >> aliens aren't entitled to equal protection, but equal treatment does not mean treating people who are differently situated the same way. and i think justice lewis is -- i am calling on justice lewis, who has been very patient. >> what we're trying to determine is the extent to which congress had spoken clearly on this issue and therefore the extent to which the state can be accorded deference to decision making here.

so there are two parts to my question. the first is, your position and the interpretation of the statute strikes me on one level as extraordinary, which is to say by interpreting the terms of additional criteria, it would seem the state of arizona could adopt almost anything as their criteria. is there any limit to what they could adopt under your standard? >> the limit is provided by the requirements of rationality. >> the first part of the federal statute in affect serves no restriction on the criteria. pregnant women, and others. >> i disagree. the statutory part has pregnant women, emergency health workers, and if arizona says, no, we are going to flip those, that would be a contradiction of the state -- >> haven't they said that if somebody is in the bottom ca tegory -- is and that's putting

criteria? >> i think it would be consistent with the statute to say someone who was already ill or planning to spend the next year at of the country should not get the vaccine. i think there are additional criteria consistent with that that would be farming out special cases, and i just want to say that it makes a lot of sense -- i am sorry, my time has expired. >> could you finish, please? >> thank you, madam chief justice. i was just going to say it makes a lot of sense. >> would your position be the same if she was a resident of the united states for a long time with legal resident status? presumably yes, right? and that raises concerns of people protection, involving

legal permanent residents of the united states. your position would overturn richardson. >> with the affected distinguishable, but to the extent you think it is indistinguishable, yes, we would urge that you limit it. thank you. >> chief justice, may it please the court, i would like to turn to the language in richardson, because it sets forth the constitutional standard, the statute arizona passed. taking the elements together, the court will rightly conclude this manifestly and constitutional standard is almost as old as the republic, but certainly as old as the soaring language of the

protection clause. >> if we have the authority to delegate this issue to the state, as it appears to have done, don't we have to defer to that? we said there's power to exclude aliens from the fundamental sovereign attributes by political departments and use judicial control. if that is really the scheme, they punted on the issue of what states had to do. >> this matter is not held to the documentation.

in the document itself of the constitution, article 1, it must be uniform, what has been watched -- it has been launched. in sovereign authority here, we can decide if there are some things in respect to immigration. are you saying the constitution for gives -- forbids congress from making those decisions in the same way we handle bankruptcy, which is also there? it may be a different one, but are you telling us that if congress decides on this issue, they did not know in connecticut better about immigration in connecticut, congress does not have the power to do that?

>> i am suggesting that because of the need for conformity would raise a serious question, and the statute, section one, the delegating -- it does not speak all with respect to immigration -- >> congress can delegate to immigration to the state. >> i am suggesting to your honor that it could raise a serious constitutional question -- >> is that a yes answer? >> is a conditional yes. >> i think this court should hold that to the and it can delegate, and thereby create

a network that this founding generation never contemplated, this court is anti federalist and says -- >> in dealing with the district of columbia, congress specifically put immigrants in. if we read the statute as not doing that, congress has critical lack of uniformity with what they did in the district of columbia and what is happening in the states. that is a problem, because they will have done it. uniformity seems to me could be argued by saying we who are argued by the states have established that immigrants rate lower, and we have now told the states they must do the same with respect to there's.

>> that statute, passed by congress, has not been tested on constitutionality. secondly, it brings me back that i currently urged the court to go back to gramm versus richardson. a unanimous decision in this court that has been set into law mainly alienage is a suspect -- >> we can allow benefits to a narrow standard of review, and it is reasonable to make an eligibility depend on the character and duration of residence. now, we did have a foot note on

what the state can do, but [inaudible] so you cannot really go back to graham. >> justice sloviter, if we go back to what congress has done in these various areas, we see that in matthews, they spoke with crystalline clarity. the court embraced deferential listen. some justices would not disagree on this because it is so except in the canon of constitutional law that aliens deserve protection. they are lawfully here, and these particular individuals are refugees. she has satisfied arizona's requirement. hearst special case cries out for participation on an equal basis -- >> you would say we need to find a d.c. statute as unconstitutional? because that would follow from

that proposition, would it not? >> not all. my suggestion is that any legislation acts perilously when it draws a line that sends individuals outside the city gates on grounds of alienage because of a component of the due process clause. it is an american constitutional law that aliens in particular are a note the hon. -- a vulnerable class who need the succor of the law. >> can we take into account that this is an unusually deadly outbreak threatening the entire population of the united states? >> a powerful policy reason that would suggest congress should speak with clarity. i draw the court back to the statute. the statute that congress passed is not clear in the

slightest. in fact, returned to the language of section two. additional criteria, for any additional criteria for establishing the vaccines and distributing them, it is necessary to do what? to further the public health. >> what criteria would states want to enact, if not suited specifically to their own geographical location and the fact pattern? this is a true border states and is risking horrible experiences public health that there is an invasion from mexico. what criteria was anticipated? if not a criteria linked to a geographical distinction, which arizona house? >> that is the case. there may be certain neighborhoods that are vulnerable, and in fact, there is a limited record in this case

suggesting that immigrant neighborhoods are in fact uniquely vulnerable, and the most vulnerable class is pregnant women. >> a somewhat different situation presuppose congress was prepared for the statute and cooked aliens in the situation? they could only apply that to be district of columbia. but for the state to treat the balance differently, with the ability to look at public health concerns and be open to immigration pretty and those situations, where congress was trying to provide greater

allowances, without be unconstitutional? >> it is drawing a line based on a lineage, it can and might pass scrutiny. perhaps there are compelling reasons. >> new york state's, the state troopers public -- >> there is no question, as i suggested minutes ago. the congress does enjoy under court's jurisprudence greater flexibility to draw lines the states do not, and there are powerful reasons for that. they are talking here about the line the state of arizona has drawn, and going back, this court is well advised to be very worried when it is the state

drawing a discriminatory line. >> [inaudible] >> presumably, yes. >> my answer was presumably yes, but presumably congress can do virtually anything it wants to do, it can come up against naturalization. i keep going to naturalization. [laughter] >> that runs headlong into your rhetoric with respect to a protection of aliens. it is protection of aliens, because they are so defensive, because they do not have the boat, all the reasons the professor in his time said, courts need to protect certain groups certainly apply to them, but it all disappears like that

with no congressional sovereignty motion. so we are in a way -- discord has been talking out of both sides of its mal -- this court has been talking out of both sides of its mouth. can go with sovereignty, where aliens are really at the bottom, or we can say in most cases, complete sovereignty cases are 19th century abominations' we built up and it is time to get rid of them, but to try to make an argument from aliens into saying that congress has to do something, that -- >> that is emphatically not my argument. that is an interesting discussion. might i finish ever so briefly? [laughter] i understand the look, madam chief justice. [laughter]

>> we talked earlier about congress punting on the issue of how things are handled, and why is that actually not a wise thing to do in this national emergency when we know border states have a different kind of problem than, for example, my state of pennsylvania or kansas or something? are the states in the best position to know how these borders ought to unfold and how the treatment ought to unfold in according to the question of whether or not there's a likelihood of an influx over the borders -- >> i am willing to accept congress possibility to do that, and they should accept it and do it in language we understand. the language in step 2 could have said including and not limited to the problem of aliens and certain border states --

>> [inaudible] what about this committee report, which is all we have other than to congressmen representing opposing views? what about the committee report? does that help? >> i do not think so. the report suggests -- i am going to quote from it. expectations are to remain alert tot he interplay of public health and magnet risks. be on alert. paint it orange. give it color. this is not saying engage in a regime of discrimination. >> can we take in the actual statute that congress has enacted authorizing the states to discriminate against aliens, for example? for example, the immigration

reform act that authorized states in their own discretion to deny benefits come at the welfare reform act of 1986 with authorized states to withhold benefits to non-citizens? isn't that something we should take judicial cognizance of? >> absolutely. however, the constitutionality of a number of statutes has either not been tested or has actually been tested and those statutes have been found wanting. this court has not spoken authoritatively to this, but what this court has made absolutely clear throughout jurisprudence is aliens are vulnerable. if congress wants to -- >> any way in which we can interpret the words public and persons to exclude on lawfully here aliens, it is not. it seems the language used simply encompasses said. >> yes, at least with respect to

those of lawfully. he said unlawfully, and of course the plaintiff is here granted asylum. if you send her home, she faces persecution under the 1980 refugee act. we have three obligations to protect her. she is in this country lawfully and has been in arizona two years, and get under those circumstances she has been denied this -- >> it precariousness with which the statute was strong, to include somebody not only in the hyper recruit somebody who really was an invited guest, it chose the old wisdom of being unduly differential to the states and two in for a fast delegation of authority with respect to matters that affect immigration and naturalization. >> looking at the committee report to which he has been directed, i see the words immigration in single quotation

marks. does that mean something else? >> it is a term of art. that is -- >> gomez in mexico. that is an immigration magnet. >> yes, the opportunity for health care, no question, your honor. >> but we know exactly what it says in that report. >> certainly in the steering committee report is flagging a clear social problem, but it is not law, to state the obvious. second, what is the mandate? it is to remain alert to the interplay. that is a high level of generality. >> that is what arizona has done. >> arizona has gone with an absolute vengeance to cross the line. but they have done so in a way that offends the constitution. there is nothing here that says that to remain alert to this interplay means that you can come in arizona or any state,

violate constitutional norms articulated by this court time and again. >> can you exclude aliens from the insurance reform bill that is currently considering? could it say that aliens could not buy insurance under the bills now, under consideration? >> two points. this court would be quite deferential. i believe certain judgments congress makes, congress also -- congress well knows that it is perilously close to the ground of on constitutionality in light of the vulnerability of aliens and the suspect classification they are embracing. therefore, it puts the onus on congress to have a very -- a very compelling interest in testifying at those kind of line drawings. for those lawfully in this country, our submission goes to those lawfully in the united

states. >> is to report a forte of? >> it certainly is null block -- is the report authoritative? >> it certainly is not law. >> should we consider it in with that in mind? >> the statute is not ambiguous. it is light, natural to speak with clarity. the clear and unambiguous rule should apply here, that arizona could not discriminate against a tourist that was in the country legally to visit disneyland, who wanted to cut in front of the united states citizen in order to get the vaccine because they fit within a preferred category aside from citizenship. a tourist could come in and not be discriminated against. >> no, it depends upon -- >> if somebody was in the country legally -- >> going back to the categories, your honor, and i accept that as

a friendly amendment. when we return to the statute, what is it that congress -- i understand we want to honor congress' judgment as to who does in fact deserve protection, and there is a number of categories. there is a lot of room for the state to rome, except to discriminate against the vaccine. as a matter of discrimination, not law. >> this court has the power to force congress not to duck issues, and that is an interesting thing, because if we buy what you say, we have our right to tell congress that it must take a very difficult political positions that it does not want to take, and we as a court can tell them they must do it.