ms. prelogar: we'llyoknow? justice kavanaugh: can admitted. ms. prelogar: our general practices, yes, we find --t within the relevant circuit. but again, the concern here is that actuay,t's imposing on us an obligation to follow it throughout the nation. justice kavanaugh: and if you came up to this court in an emergency application, we said you did not have a likelihood of success. i think said earlier, you would follow that. why would you follow that? ms. prelogar: we recognize that this court has authority to resolve these issues for the nati. justice kavanaugh: even though there are only two parties in the case, you would say, we are going to follow it for everyone else and not force every other affected individual to ce court? you think every future administration would want that same approach? ms. prelogar: lli think that they would likewise understand that even if the relief didn't formally extend beyond parties in the case, obviously the presidential course of this course decision in a given area rule for the nation. stice kavanaugh: thank

ms. prelogar: we'll, you know? justickanaugh: can admitted. ms. prelogar: our general practices, yes, we find -- it wiinhe relevant circuit. but again, the concern here that actually, it's imposing on an obligation to follow it throughout the nation. justice kavanaugh: and if you came utohis court in an emergency application, we said you did not have a likelihood of success. i think said earlier, you would follow that. why wod u follow that? ms. prelogar: we recognize that th court has authority to resolve these issues for t nation. justice kavanaugh: even though there are only two parties in the case, you would say, we are going to follow it for everyone else and not force every other affected individual to come to court? you think every future administration would want that same approach? ms. prelogar: well, i think that eyould likewise understand that even if the relief didn't formally extend beyond parties in the case, obviously the presidential course of this course decision in a given area rule for the nation. justice kavanaugh: thank you. >>

ms. prelogar: no, i'm sorry, let me try to clarify. the purpose has to ensure that they're not left worse off. justice rsh: but the effect can be? ms. elar: some individuals in the class receive relief who wouldn't otherwise needed, that doesn't mean that his plan is invalid. but if i canesnd to your question about better off, worse of justice gorsuch: i'soy, let me pose a different quti. so, some persons can be better off is your position. i guess how many is my next quesonright? let's say to people in missouri, okay, all right, they're better off, fine. but atf it's 90% of the class, just hypothetically? could the secretary do tt under the statute? ms. prelogar: so, i thk the right way to analyze that would be arbitrary and capricious review becau ai've just explained within the statute tolerateomover breath, and so at that point, we have to look at the secretary's justifatn for his action. it sounds to me like that could benrsonable, that maybe he wouldn't be able to justify that particular line drawing choice because it's so extensi

ms. prelogar: no, i'm sorry, let me try to clarify. the purpose has to ensure that they're not left worse off. justice gouc but the effect can be? ms. prog: some individuals in the class receive relief who wouldn't otherwise needed, that doesn't mean that his plan is invalid. but if i can rpo to your question about better off, worse f. justice gorsuch: i'm rr let me pose a different queson so, some persons can be better off is your position. i guess how many is my next questi, ght? let's say to people in missouri, okay, all right, they're better off, fine. but wh iit's 90% of the class, just hypothetically? could the secretary do tha under the statute? ms. prelogar: so, i thinthe right way to analyze that would be arbitrary and capricious review becauses've just explained within the statute tolerate se er breath, and so at that point, we have to look at the secretary's justificiofor his action. it sounds to me like that could be ueanable, that maybe he wouldn't be able to justify that particular line drawing choice because it's so exten