to do, or does congress have a right to say what politicians? we are elected to duck issues and pass them on to the state, and who is this court coming here to tell us we must do otherwise. >> time and time again, this court has embraced an interpretive role of congress that if you are going to legislate, entrenchment is on important values, especially federalism. other related values, you must speak with crystalline clarity. >> congress need not speak with crystalline clarity as mr. starr would require. >> how about plain old clarity? [laughter] >> even clarity is not required under the plenary doctrine.

we're talking about all lowest standard of judicial review. -- the lowest standards of judicial review. >> we're delegating traditional responsibility and authority to oversee immigration law? in other words, telling a state to do what is normally its function? you don't think it should speak with crystalline clarity or just plain clarity? >> in this case, there is good reason for the delegation to the state. >> when they go to the edge, they may not delegate unless they speak clearly. at every level, when congress tries to do something cvlose to the line, it must make clear it

really, really means it. . >> there is good reason for delegation to the states. but nebraska or wyoming might doom with respect to aliens might be different from what arizona or texas or california should be doing. >> while there may be good reasons for delegation, that is not what congress passed the statute.

it did it because of the precise reasons that my colleague pointed out, to avoid the issue. not because they wanted the states to be deserving of the debt, but congress did not want to decide. >> with respect to part of the reason for political gridlock is precisely that the circumstances vary geographically. what is good for one state in this kind of matter may not be sufficient for another. >> congress make an affirmative judgment about that. to the contrary, there was an affirmative judgment not to make a judgment. >> that is precisely the affirmative judgment. they would give it to the states and they would make the policy determination on this. we would say that this court's most recent pronouncement in matthews, congress regularly

makes rules that would be unacceptable one apply to citizens. -- when applied to citizens. not everybody can get it. >> is it your position that the statute is ambiguous? >> the statute is clear in delegating the authority. >> if it is not ambiguous, why do we consider the report? >> you need not. to the extent that you believe that there is an ambiguity, i would want you to the joint committee report to clarify. but i was appointed to the joint committee purport to clarify. >> that concludes our argument. never have i been more sympathetic with chief justice roberts then i was today. to have a fantastic colleagues,

that was quite an exercise. >> we know that one justice does not say anything. [laughter] we have - 1 for this purpose. >> i would like to ask a question. >> what a great idea. thank you counsel. you were just wonderful. [applause] it would be really interesting to take a vote of the audience and ask you how you think we would decide this case. i think we will go one by one and listen to our colleagues. we will start with just as calabresi who is seated all the

way to the right in only 1 cents. [laughter] >> i tend to follow my learned senior colleague justice cavanaugh in most views on law. i am inclined to do so from his question today. that is, it seems to me that there are two issues of serious constitutional doubt. one is whether congress has the power to delegate with respect to immigration at all. that is a very difficult constitutional question. especially if the question is, can they, by delegating, hide what they are doing and force courts to take positions on what is constitutional or not. second, if they did that, did

what they delegated amount to something that is constitutional or not about which there were many questions? >> under those circumstances, i think that we have more than a right, i think that we have a duty to avoid the constitutional question and say that congress has not done those things. congress can only make us take stands on difficult constitutional issues if it is clear that it must be answered. we should avoid them if it is at all possible because, otherwise, we are deciding things on which the legislature may not have told us to go to the constitutional boundary. the fact that this is an emergency, which the argument was made by the petitioner, does not change this because it is

precisely in emergencies that congress is apt to duck issues and act fast and get us into constitutional difficulties and we should strike it down under these doctrines. this case is an example of a emergency action by congress in which the court said there was not clear delegation. if congress really means it, they should do it again. in those cases, i would affirm the court to read the statute and not to delegate anything that would raise constitutional issues. if the court wants to go further, and breach constitutional issues, i must say that there is a dramatic

tension between all of the language which says aliens are particularly vulnerable, must be protected, and they are people that are not there. other cases say that there is absolute sovereignty in congress. if i were forced to choose between those two zero, i would reject the a sovereignty -- those two, i would reject that sovereignty. i think it would be a good time to look this over. i doubt that the court or myself would be inclined. >> where would you draw the line if you went down the second road? >> i suppose, if i were going on

that, i would at least limit those cases to situations where there was a direct link to diplomacy and to international relations. those things that are in a non at-alien context. >> what about and national health emergency? >> -- what about a national health emergency? >> i do not think that that has anything to do international relations. >> your vote would be to affirm? >> i would be happy to our firm on a narrow ground -- to a firm on a narrow ground. -- to affirm on a narrow ground.

>> i thought it was a terrific problem and it really put the judges in a hard place. as my questions to the council suggested, i think it is relevant what the immigration status of the petitioner is. if the petitioner had been a long time permanent resident, i think that gramm verses richardson would apply and it would be an easy case. conversely, if they were a tourist going to disneyland or an illegal alien, then i think that the state of arizona would be in a much stronger position. i also think that it is relevant. what happened to the vaccine that she was denied. was there an american citizen standing by behind her that was going to get the vaccine yet she

was denied it. if you look at the immigration status and you look at what happened to that vaccine, is there an american citizen right behind her and is the arizona state allowed to say that they want that american citizen to get the vaccine as opposed to this non-citizen who is in a particular immigration status. i think that the problem was brilliant because it had heard in this unusual immigration status which is neither permanent resident nor agreed visitor. asylum status lets someone stay in the country for a year, but if they do not have that they have done that is bad, they can adjust their status. in a sense, we have to deal with it on those particular facts.

i think that, based on the facts that we have, i would have to agree with the lower court, although i would write a concurring opinion to make these particular points known to request below record being the circuit court? >> the circuit court. >> justice fitts? >> i would address this two ways. as a constitutional matter, i would affirm the court of appeals. precisely for the same reasons that judge calabresi has said. this is a problematic case with

discrimination against a minority. it may be the congressional action can sanitize that action, but if they are going to do it, they need to do it with some clarity. they certainly cannot do it when they refused to express a judgment. in that circumstance, i would say that they have not delegated the authority and we should invalidate it. i would raise the more general question, which is discrimination against aliens. on the one hand, it is the classic problem with the minority current if a group is subject to stereotypes and prejudice without legal political recourse because they are aliens, it is all that we think of about groups that need to be protected by the judiciary. on the other hand, the definition of who is part of the

united states, you think of the realm of congress. that is their judgment. justice calabresi suggests that powers are limited by foreign- policy considerations, issues of terrorism or issues of foreign affairs. it does seem to me that congress may have broader powers when it comes to who comes in as a citizen i think that the way it is stated at this point, the constitution gives congress the power on the theory that they may be less subject to the same bias that you would find elsewhere in the state's.

therefore, that refers to the political branch in making those decisions just as calabresi says that he would even question their judgment. i have more doubts about whether we should defer to the sovereignty. >> , so you, too, would affirm. >> this is a very interesting problem. i have been on the court of appeals for more than 30 years and i have never had an issue like this. i have spent some time in the last week reading the cases and cases -- of the cases go both ways. there has been a shift in the

supreme court jurisprudence. when you start with gramm, aliens are entitled to protection under the law. but, little by little, the cases have gone and the other direction. mostly, they have talked in terms of preemptions. it is very hard, in this case, to see a connection between public health and the need for public health and the duration of somebody's residents in the united states. the supreme court has upheld the kind of restriction in recent

years. i have no idea as to what they would do in this case. i have found it from my own standpoint that what the panel asked and commented on is if you are getting close to a constitutional issue and the statute is not clear, and i am not dealing with an alien case, then you have to be -- you have to make congress say what it wants to say. if you're going to take away from the people, a right that the people think that they have, such as privacy, then congress had better be sure about it and accept the public reaction in

the electorate. if they do not do that, then i am not sure that the courts are obliged to think about that or fill in what congress has left out. then, congress can complain that the courts are not doing that what they think that the courts should be doing. i think that we can be -- i would affirm and depending on how the majority opinion were written, i would write the concurrence. >> that would be the narrowest ground. >> i think that we should avoid a constitutional issue if we can. jurisprudence says that we should do that. i don't see a reason not to.

>> justice cavanaugh? >> thank you, i want to compliment the council. you got a look at a spectacular supreme court council. you really did a tremendous job. my first job out of a clerkship was working for the solicitor general star and my impression then is the same as it is now, that he is a spectacular advocate. also, to the problem, this is a great problem that others have pointed out and they explored some fascinating issues in regards to the constitution and the structure of our government and the separation of power issues.

this is a perfect problem, i would say. i would agree what justice ting had to say. this is an important issue in many cases. as a general matter, the fact that the person was in the country lawfully is certainly a factor that ways in her balance. i would ultimately go with what justice calabresi pointed out. the federal statute did not particularly say anything about authorizing the states to make distinctions based on citizenship status. it just said that any additional criteria. it did not say any additional criteria including citizenship status. give them the language of the statute, i would think that

justice calabresi said that i would interpret it narrowly to avoid the constitutional question. the legislative history would not be relevant in my analysis produces a classic case where it points in different directions. one of the reasons that courts give more attention to the precise words in the statute, i will overall a firm, narrowly. >> as the chief justice, that was the fifth boat and i am feeling awful good.

>> tells about the connecticut supreme court. >> she's got her majority, she doesn't care. >> i am feeling great. >> fight would view this -- i would view this as an issue that takes second place. the public health of addition and the funding of that is always second place. at the start and at the end, i would view this in a public health context. we would consider populations of people, and we need to consider the entire population it would

not help to consider part of their rut -- of a population. second, there are priority class as permit it struck me as an amusing, the thought of people flying over the border in the special priority class's. the thought of pregnant women and children making it one for the border struck me as being an odd way for arizona to get alarmed. there is a maxim in early public health. the welfare of the people is the supreme law. we start from the beginning with this being a peculiar public health issue. the first issue is whether congress can delegate. the rule is that judges should

avoid constitutional issues if they can. it really protects the stability of the existing law. >> it is not a docking -- a ducking thing. it is a principle. >> on the issue of whether congress did delegate, i think that that is rather clear and simple the statutory language is plain and it sets up the priority. even in the additional criteria, it said to further the public health. that has a very special meaning in our law and ethics. as a sideline, public health runs counter to our system of jurisprudence because it focuses less on individual rights of the

rights of the whole population >> -- the whole population. >> how are you coming out? >> i would clearly offered, however, -- i would clearly affirme. if the panel was to get into the public health context, we would talk about the what ifs. if congress could and if congress did, i would say that this statute is irrational. it does not further the public health. i think there is a lot of practical ways in which even judges can look at this. >>the arizona statute is counterintuitive if one analyzes it. we already have a major academic raging in mexico.

the end result could be that people are going to come anyway and they will not get protected. that undermines the whole system. there are really two problems that underlie the whole issue. that is the inadequacy of our public health system. second is our porous immigration policy. arizona has found a way of undermining what is really a public felt statute by encumbering at with immigration policy. i might want to say something about that, but i would not run counter to the majority rationale. >> justice lewis? >> the key. i would like to begin by complimenting council also. kenneth, it is always a pleasure to work with you in any capacity.

especially under the grueling circumstances. teaneck, likewise. -- teaneck, likewise -- tina, likewise. that was really wonderful exercise. i will be brief because eight other people have already said what i would otherwise say, which is that i would affirm the court of appeals. i would like, very much, to find that it violates equal protection clause and that it is unconstitutional. when i was on this score, there were many occasions when a

panel or myself wanted to do this. for that reason, i would take justice calabresi is approached -- judge calabresi's approach. >> i come out the same way. i think that i do about justice calabresi's reasoning. there are two constitutional pieces to this. the first is the uniformity of immigration law. it would be one thing if congress had enacted the provision that arizona enacted. then he would have a clear equal protection issue right in front of you. it is one step removed from that because what happened here is a stake