[00:00:00] Speaker 03:
Good morning Judge Bress.

[00:00:01] Speaker 03:
May it please the court?

[00:00:02] Speaker 03:
Eric MacArthur for the federal defendants.

[00:00:04] Speaker 03:
I would like to reserve three minutes for rebuttal if I may.

[00:00:09] Speaker 03:
This case concerns two executive orders that direct federal agencies to the extent permitted by law to limit federal funding of medical institutions that perform sex transition procedures on minors and to ensure that federal funds are not used to promote gender ideology.

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The most salient aspect of this case is that rather than await any particular agency action implementing the executive orders, plaintiffs brought a facial challenge to the executive orders themselves.

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That fact has implications both for the justiciability of the case and for the standard that plaintiffs must meet to prevail on merits.

[00:00:49] Speaker 04:
Maybe you can clarify the timeline here for me, just to make sure.

[00:00:53] Speaker 04:
So there were the executive orders, correct?

[00:00:57] Speaker 04:
They were a few days apart, if I remember correctly.

[00:01:01] Speaker 03:
That's right.

[00:01:02] Speaker 03:
I think one was on January 20th.

[00:01:04] Speaker 04:
And then a few days later, there was an implementation where the states were notified

[00:01:12] Speaker 04:
that they were taking action immediately, correct?

[00:01:15] Speaker 03:
So there were two agency subcomponents that pretty quickly thereafter sent out notices that said this was a notice from HRSA and from the CDC, sent out notices to their grant recipients saying that these grant funds should no longer be used to promote gender ideology.

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Now, at what point did they file their lawsuit?

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It was shortly thereafter, I believe.

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Were either of those two orders still in effect at the time they filed their lawsuit?

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They may have been, but the key point... Well, that's my... You know, don't you?

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I actually don't recall specifically.

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I think it was February 11th.

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At least one of them was in place, correct?

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That may be the case.

[00:01:57] Speaker 04:
Well, it was.

[00:01:58] Speaker 04:
Okay.

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But here's the key point.

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Okay.

[00:02:00] Speaker 04:
No, wait a minute.

[00:02:01] Speaker 04:
So when they filed their lawsuit, one of those orders was in place.

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Now, would you agree with that, that they had standing and the case was right at that time?

[00:02:11] Speaker 03:
I do not.

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Why not?

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The reason I do not is because they have not made any showing that their funding was at all affected by those notices.

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I'm talking about the time the lawsuit was filed.

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I'm talking about when those notices were in effect.

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I'm talking about when do you evaluate standing?

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You evaluate standing at the time the lawsuit is filed.

[00:02:32] Speaker 04:
Okay.

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So that notice of

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action was in place.

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At least one of them was.

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We know that.

[00:02:41] Speaker 04:
Okay, now wait a minute.

[00:02:42] Speaker 04:
So as I understand standing, and I'm not a great academic scholar here, but as I understand standing, there was injury in fact, correct?

[00:02:54] Speaker 04:
No, that's what you... So you disagree.

[00:02:57] Speaker 04:
So there was no injury in fact from the government's perspective, so therefore we don't even have to get to rightness?

[00:03:06] Speaker 03:
Well, the constitutional aspect of rightness overlaps significantly with the injury prom of the standing.

[00:03:12] Speaker 04:
So let me ask, why wasn't there injury in fact?

[00:03:14] Speaker 03:
because there is no showing that those notices affected their funding.

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Again, what the notices said is do not use the funds that these agencies have granted to the recipients to promote gender ideology.

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If they had come in and shown, we have those grants, and we are using those funds to promote gender ideology, we are using those funds to subsidize these procedures, and we have to stop because we got these notices, I agree.

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They would have standing there.

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They did not make that showing.

[00:03:43] Speaker 04:
No injury in fact.

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That is correct.

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All right.

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It is not enough.

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And so therefore, there's no injury in fact.

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And generally speaking, as I understand it, rightness, at least the non-prudential part of rightness, basically overlaps with injury in fact.

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This court has said that very often it's the case that they coincide.

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And I think that is the case here on the constitutional aspect.

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On the constitutional side.

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OK, now let me ask you this.

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When you think about rightness, it has a prudential part to it as well.

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So if I were to disagree with you, and I'm not talking about anybody else, but if I were to conclude that there was standing and that it was right at the time the claim was filed, what is it that makes it now all of a sudden unright?

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So for purposes of that question, I'm assuming constitutional ripeness.

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I think there is still the prudential inquiry where you have to ask.

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That's what I'm asking you about.

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Why does it become unripe?

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I mean, I always found that term to be, how can something be ripe and then become unripe?

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I was having a lengthy discussion with my law clerk about ripeness.

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And he said, well, you know, he said, Judge, think about

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a banana becomes ripe, and can it ever become unripe?

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So I don't think this dispute was ever ripe to begin with, but on the prudential factors you look to, are the issues fit for review at this stage, and is there any hardship to the plaintiff from awaiting review at a later stage?

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And I think they have big problems on both of those.

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The issues at this stage of the case are entirely abstract and hypothetical.

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And let me, if I may, just give you one.

[00:05:38] Speaker 01:
Can I just?

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I'm having some trouble understanding why it's abstract or hypothetical when the order says shall terminate.

[00:05:49] Speaker 03:
The order does not say shall terminate.

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It says shall take appropriate steps consistent with law.

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And end.

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And end.

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Doesn't it say end these grants?

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So the defending women executive order says as permitted by law ensure that federal funds are not being used to promote gender ideology but both executive orders contemplate an intervening step by the agencies to evaluate their statutory authorities whether they have the authority at all

[00:06:17] Speaker 03:
to implement these policies, and if so, how?

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Let me give you one concrete example that I think illustrates this problem quite well.

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If you look at footnote five of the district court's opinion, you'll see there that the court premised standing for the state of Minnesota on the possibility that the federal government might implement these executive orders by prohibiting Medicaid reimbursements for these procedures.

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Okay, as it happens in December, CMS did promulgate a notice of proposed rulemaking to prohibit Medicaid reimbursement for these sorts of sex transition procedures for minors.

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And as is typical in a notice of proposed rulemaking, the agency set out its statutory authorities that it was invoking, authorities that say the agency has to assure that Medicaid funds are used for procedures

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that meet standards of quality and are in the best interests of recipients, and then had a factual discussion about why these procedures in their preliminary view don't satisfy those standards.

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Now, what plaintiffs are essentially asking you to do in this case is to pre-adjudicate that challenge.

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And not just that challenge, but countless other hypothetical disputes

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before the agencies have even proposed, let alone taken any action or set out what the statutory authorities they have or done the relevant legal and factual analysis to determine whether they can, in fact, implement the policies set out.

[00:07:42] Speaker 01:
Let me read this language to you.

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I asked you, didn't I say, end the grants?

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And you say, no, no, they don't say that.

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So I look at the medical services order section four, and it says, take appropriate steps to ensure the institutions receiving these grants end.

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And then the gender ideology one says, take steps to end federal funding.

[00:08:06] Speaker 01:
Then the other section three of the gender ideology shall not be used.

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These are very clear.

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It's not a directive of like, think about this, figure out what you're going to do.

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It says, and no more.

[00:08:24] Speaker 01:
So how could that be any clearer?

[00:08:28] Speaker 01:
This is like a pre-enforcement challenge where it says, you must do this.

[00:08:33] Speaker 01:
And you're now saying, well, but a lot of stuff could happen in between.

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But when you have mandatory language,

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That's to me what distinguishes this from some of the other cases cited in your brief.

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So I'd appreciate a response to that.

[00:08:49] Speaker 03:
The executive orders do not say you must do this full stop.

[00:08:53] Speaker 01:
What does and mean?

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They say in effect you must do this to the extent that you are permitted by law.

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So there is a directive.

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The president is directing them how to exercise any discretion that they have within the bounds of existing law.

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He is not directing them to take these steps regardless of the boundaries of existing law.

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And even if those steps would be inconsistent with the agency's statutory authorities, with the regulations, with the grant terms, he is in effect telling the agencies, I want you to do the analysis.

[00:09:26] Speaker 03:
Here's the general policy I'm setting forth.

[00:09:29] Speaker 03:
I would like to terminate federal funding for these sorts of procedures to the maximum extent permitted by law.

[00:09:35] Speaker 03:
Now, agencies, you go forth and under your various statutes and grant programs, you determine to what extent you are permitted by law to implement that policy.

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And the mandatory part of that is once they've done that analysis and have concluded that they can, then they must.

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That is where the president is inserting himself.

[00:09:53] Speaker 01:
I think that's maybe where we're having kind of a linguistic

[00:09:56] Speaker 02:
Golf here is how does that Mr. McCarthy how does that compare to AFG is the model of the same in terms of the underlying executive order because that case which which started here was then stayed by the Supreme Court some.

[00:10:09] Speaker 02:
I'm looking at what the Supreme Court did.

[00:10:11] Speaker 02:
I'm asking, is that what we have here, or are there any differences?

[00:10:13] Speaker 03:
I think it's very similar to the posture of AFGE, where the president had issued an executive order saying, we're going to do reductions in force as permitted by law.

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And the plaintiffs brought a challenge and said, they're going to do this in a way that's illegal.

[00:10:28] Speaker 03:
And the Supreme Court said, granted the government's stay motion, because at that stage... Go ahead.

[00:10:34] Speaker 03:
I'm sorry.

[00:10:35] Speaker 03:
I didn't mean to even...

[00:10:36] Speaker 03:
At that stage, you couldn't tell whether the agency was going to actually do anything that was inconsistent with law, and the instruction that the executive order had given was perfectly lawful, as are the instructions here.

[00:10:47] Speaker 04:
So don't we know what they're going to do here?

[00:10:51] Speaker 04:
We don't.

[00:10:52] Speaker 04:
Well, I mean, a few days after the executive orders are issued, out comes these orders, and then followed by a press release.

[00:11:03] Speaker 04:
None of that change?

[00:11:04] Speaker 04:
What's left to speculate about what they're going to do, what these agencies are going to do?

[00:11:11] Speaker 04:
I mean, it's pretty clear.

[00:11:12] Speaker 03:
It's not clear at all, Judge Piaz, because the agencies haven't done that.

[00:11:17] Speaker 04:
Let me ask you, I'm very frustrated because we do know that some action was taken, but yet, from your perspective, you want us to disregard that, like it didn't happen.

[00:11:29] Speaker 03:
No, I'm not asking you to disregard that.

[00:11:31] Speaker 03:
First of all, there's been no showing that those notices that were issued were issued unlawfully.

[00:11:36] Speaker 03:
ABCDC and HRSA did a quick analysis and determined there's nothing in our statutes that requires us to continue funding gender ideology and therefore for these... When those notices were rescinded, I thought that there was some, or maybe I read, or maybe... I read a lot here and I can't keep it all straight.

[00:11:55] Speaker 04:
But I thought that when the notices rescinded, part of it had to do with the fact that there had been some injunction issued by a district court out of New Jersey.

[00:12:03] Speaker 03:
That may be.

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I'm sure it's an injunction that we disagree with.

[00:12:06] Speaker 03:
But there's been no showing here.

[00:12:08] Speaker 04:
And that was what prompted them to rescind the notices.

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Did I misread something?

[00:12:13] Speaker 03:
No, I think that is correct.

[00:12:15] Speaker 03:
But that doesn't change the fact that there has been no showing that.

[00:12:18] Speaker 04:
Why didn't you argue muteness?

[00:12:21] Speaker 03:
because their claims they're not challenging those notices they're bringing a facial challenge to the executive order they're not challenging the notices went out again they have not shown that they were affected in any way by those notices so they haven't even shown they would have standing to challenge those notices they're saying in effect because

[00:12:39] Speaker 03:
agencies issue notices implementing the executive order that haven't been determined to be unlawful and that may have affected the funding of other parties not before the court, that they have injury in fact and a right challenge, that doesn't follow at all.

[00:12:51] Speaker 01:
Let me go back to the AFGE case.

[00:12:55] Speaker 01:
It seems that was very different because there the agencies are directed in consultation with DOJ to basically implement a large-scale reduction

[00:13:06] Speaker 01:
and to restructure various agencies.

[00:13:08] Speaker 01:
It's a very broad discretion.

[00:13:11] Speaker 01:
And here, I'm having trouble seeing the same discretion because there it doesn't say, eliminate this agency, eliminate these people.

[00:13:21] Speaker 01:
It says, have consultation with Doge, figure out what you want to do.

[00:13:25] Speaker 01:
And here the language that I read you says, end, end, end, end.

[00:13:30] Speaker 01:
It's very different.

[00:13:32] Speaker 01:
than AFGE?

[00:13:34] Speaker 01:
Do you have a better case than AFGE?

[00:13:37] Speaker 03:
Well, I think you could look at the Supreme Court's decision in Trump versus New York.

[00:13:42] Speaker 03:
That was a case where the president had issued a memorandum about apportionment policy and said, you know, to the maximum extent feasible and consistent with the discretion delegated to the executive branch.

[00:13:54] Speaker 03:
I want to exclude illegal aliens from the apportionment base.

[00:13:58] Speaker 01:
Well, I think in the, let's go back to that New York case, that's the non-citizens voting case.

[00:14:06] Speaker 01:
I think that case wasn't right because the order.

[00:14:10] Speaker 01:
uh, would not inextricably have it, as the court said, have a direct effect on the downstream access to funds or other resources.

[00:14:18] Speaker 01:
And you need it, you had these second order harms, which we don't have here.

[00:14:22] Speaker 01:
This is a first order harm.

[00:14:24] Speaker 01:
So I'm not sure that is convincing.

[00:14:27] Speaker 01:
Is there anything besides Trump v New York or the AFCI case that supports the fact that this wouldn't be right?

[00:14:37] Speaker 03:
So there's the DC Circuit's decision in all of all, which I think is on all fours.

[00:14:41] Speaker 03:
But let me take one more run at Trump versus New York.

[00:14:44] Speaker 03:
What the court said in that case was because the president's directive had included those qualifications, right, to the maximum extent feasible and consistent with the discretion delegated to the executive branch,

[00:14:56] Speaker 03:
The Supreme Court said those are real constraints that will affect the ultimate government action that will be taken in the future here.

[00:15:05] Speaker 03:
And we at this stage don't know how they will affect the ultimate government action that will be taken or even whether that government action will be taken.

[00:15:13] Speaker 02:
Some of the discussion has proceeded almost as though the district court dismissed the case as ripe, which it didn't.

[00:15:18] Speaker 02:
And so we can assume maybe that there's some aspect of of the challenge, even the one here that that could be ripe.

[00:15:24] Speaker 02:
I guess the question is then

[00:15:25] Speaker 02:
How do we go from there to the scope of the order, which essentially invalidates the executive order, both of them in every application?

[00:15:34] Speaker 03:
Right.

[00:15:34] Speaker 03:
So even if you get past the rightness question, the fact that they brought a facial challenge does have implications about the merits, right?

[00:15:42] Speaker 03:
So one of those implications is that because they're not challenging any particular agency action, and instead asserted a facial challenge to the order, they have to meet the burden of showing that there is not a single agency under a single statute

[00:15:56] Speaker 03:
administering a single grant program that could lawfully implement this executive order.

[00:16:02] Speaker 03:
They haven't even attempted to make that showing, and they can't make that showing.

[00:16:05] Speaker 03:
That's number one.

[00:16:06] Speaker 03:
Number two, because there is no final agency action, they don't have a cause of action under the APA.

[00:16:12] Speaker 03:
The only cause of action that they can even potentially assert here is a net non-statutory

[00:16:17] Speaker 03:
Altravira's claim and as the Supreme Court recently made clear in the Nuclear Regulatory Commission case, that is in effect a Hail Mary pass.

[00:16:25] Speaker 03:
There are very stringent requirements.

[00:16:26] Speaker 04:
How would you distinguish our case in the Sanctuary Cities case, City and County of San Francisco?

[00:16:35] Speaker 04:
what the district court relied on and which the plaintiffs relied on.

[00:16:39] Speaker 03:
Right.

[00:16:39] Speaker 03:
So the San Francisco case, number one, I don't think it expresses any disagreement with the general rule set out, for example, by the D.C.

[00:16:47] Speaker 03:
Circuit in the Albaugh case, that you do give effect to the sorts of qualifying language that we see in these two executive orders as consistent with law as permitted by law.

[00:16:57] Speaker 03:
That's the general rule.

[00:16:59] Speaker 03:
That's the general presumption.

[00:17:00] Speaker 03:
I think San Francisco was a very narrow exception to that, where the court in effect concluded that in that case, based on particular aspects of that executive order and other facts in that case that aren't present here, the two were irreconcilable.

[00:17:16] Speaker 03:
That the savings clause language was simply irreconcilable with other aspects of the executive order that the court read as a categorical mandate to terminate all federal funds.

[00:17:25] Speaker 03:
for sanctuary cities.

[00:17:28] Speaker 01:
I think they talked about withholding the funds and here it says end the grants.

[00:17:33] Speaker 01:
So I'm having some trouble understanding why the San Francisco case isn't controlling here, which I know never went up on cert to the Supreme Court as I understand.

[00:17:44] Speaker 03:
It's not controlling because the various aspects that the court looked to, things like saying well in that case there was an express carve out for certain

[00:17:52] Speaker 03:
types of grants and that gave rise to an expressio unius inference that all other grants had to be terminated.

[00:17:58] Speaker 03:
There was a specific direction to OMB to analyze grant all grant funds to sanctuary cities.

[00:18:04] Speaker 03:
There was a fact that even before that executive order issued, the attorney general had already imposed those conditions on grants within the department's purview and the government hadn't argued that there were any other grants that could permissibly be terminated or conditioned in that way.

[00:18:19] Speaker 03:
All of those were factors that the court in San Francisco expressly relied on and they are not present here.

[00:18:26] Speaker 03:
But perhaps more fundamentally, I think it would be a serious mistake for this court to read San Francisco as broadly as the district court read it here and as plaintiffs are urging you to read it.

[00:18:36] Speaker 03:
Number one, I think that would run you into conflict with the Supreme Court's decision in Trump versus New York, which says that these are real constraints and have real implications for how courts must review presidential directives.

[00:18:48] Speaker 03:
I think that would create a circuit split with the DC Circuit's decision in Alba.

[00:18:52] Speaker 03:
And it would deprive the president of an essential tool that the president needs in order to exercise his supervisory authority under Article 2 over the executive branch.

[00:19:03] Speaker 03:
Necessarily, the president has to give

[00:19:06] Speaker 03:
policy directions in broad strokes.

[00:19:09] Speaker 03:
I don't know what the alternative here is that plaintiffs think the president should have done.

[00:19:13] Speaker 03:
Should the president himself have analyzed, I don't even know how many statutes are potentially at issue here.

[00:19:19] Speaker 03:
We have 15 agency defendants with who knows how many different grant programs under who knows how many different statutes.

[00:19:27] Speaker 03:
Obviously the president as the head of the executive branch doesn't have the time to do all of that work.

[00:19:31] Speaker 03:
He sets the broad policy and gives the agencies the policy steer and leaves to them

[00:19:37] Speaker 04:
So he, the president was not resting his decision to issue the executive orders on any one particular statute or, or, or stat.

[00:19:45] Speaker 04:
He just was exercising his authority, his presidential authority to set policy for the agents.

[00:19:52] Speaker 03:
That is exactly right.

[00:19:53] Speaker 03:
He was exercising his core Article II authority to supervise his subordinates and say, here is the policy I want you to pursue to the maximum extent permitted by law.

[00:20:03] Speaker 03:
And if we're just going to treat that sort of language as boilerplate and meaningless, that's going to be a real problem for the president because it's not boilerplate and it's not meaningless.

[00:20:14] Speaker 03:
It's the president saying, here's the policy I want you to pursue, but I am also not telling you to do anything illegal.

[00:20:21] Speaker 03:
Yes, I want you to pursue this policy to the maximum extent permitted by law, but I also want you to respect the limits on your legal authority and not exceed them.

[00:20:30] Speaker 03:
That is all the president did here.

[00:20:34] Speaker 01:
Let me ask, you characterize this as a facial challenge, but then I read their briefs and I think they say it's an as applied challenge.

[00:20:44] Speaker 01:
Do you think it matters in this case?

[00:20:47] Speaker 03:
I do think it matters because there's a very imposing standard they have to meet for a facial challenge.

[00:20:53] Speaker 03:
Again, they have to show that there are no circumstances in which any agency could lawfully implement this policy.

[00:20:59] Speaker 03:
And this is a paradigmatic facial challenge.

[00:21:01] Speaker 03:
They are not arguing that these executive orders are unlawful because of some way in which they could be applied to their particular factual circumstances.

[00:21:10] Speaker 03:
They are saying that on their face they are unlawful in all of their

[00:21:14] Speaker 03:
applications and they got an injunction that prohibits enforcement of these these provisions of these two executive orders on their face.

[00:21:25] Speaker 02:
Why don't we hear from your opposing counsel?

[00:21:27] Speaker 02:
We'll put five minutes on the clock for rebuttal.

[00:21:29] Speaker 02:
Thank you.

[00:21:30] Speaker 02:
Thank you.

[00:21:38] Speaker 02:
Mr. Purcell, good morning.

[00:21:39] Speaker 00:
Good morning.

[00:21:40] Speaker 00:
May it please the Court, Noah Purcell on behalf of the Plaintiff States and physicians.

[00:21:45] Speaker 00:
Your Honor, the executive orders that we challenge in this case are profoundly harmful and hateful, but for today's purposes, what matters most is that they are unconstitutional under this Court's binding precedent.

[00:21:55] Speaker 00:
I want to start this morning by talking about separation of powers and then turn to equal protection if I can.

[00:22:00] Speaker 00:
So on separation of powers, this court's decision in City and County of San Francisco that several of you have asked about is dispositive and forecloses virtually every argument that the federal government is making here.

[00:22:10] Speaker 00:
That case held that the president lacks authority to add conditions to grants that are not authorized by statute.

[00:22:15] Speaker 00:
And that's exactly what the president is trying to do here.

[00:22:18] Speaker 00:
And two important points about that case highlight the absurd breadth of the administration's position in this case.

[00:22:24] Speaker 00:
So first of all, the administration is claiming for itself spending power that even Congress does not have.

[00:22:29] Speaker 00:
In the city and county of San Francisco, this court carefully walked through the Supreme Court precedent and explained that even Congress, which has expressed spending power under the Constitution, cannot impose conditions that aren't clearly and unambiguously expressed in statute and cannot impose conditions unrelated to the underlying spending.

[00:22:44] Speaker 02:
I guess the issue here is that agencies have all kinds of

[00:22:48] Speaker 02:
There's a vast universe of how funding gets dispersed, prioritization of who we're going to fund over somebody else, defunding decisions.

[00:22:58] Speaker 02:
And these grants apply to probably thousands of different programs.

[00:23:03] Speaker 02:
And so you can see how on an individual basis, somebody could come in and say, listen, taking this grant away from me, that violates this provision or that provision.

[00:23:13] Speaker 02:
But how can we go from kind of point A all the way to Z and say, well, we should enjoin

[00:23:19] Speaker 02:
all these executive orders as to everything without knowing any more about all the different restrictions or rules that could govern each one of these programs.

[00:23:28] Speaker 00:
There's a lot there, Your Honor, but let me start with this.

[00:23:29] Speaker 00:
So their position is essentially that we should have waited until some specific grant was terminated and then we could have sued.

[00:23:34] Speaker 00:
And there's three very clear problems with that.

[00:23:37] Speaker 00:
So first is just precedent.

[00:23:38] Speaker 00:
City and County of San Francisco did not require that.

[00:23:40] Speaker 00:
In that case, the plaintiff sued before any specific grant funding had actually been taken away.

[00:23:44] Speaker 00:
This court said,

[00:23:45] Speaker 00:
that's fine, standing ripeness, because you're harmed by just the threat of losing that funding.

[00:23:50] Speaker 00:
You're being forced to choose between implementing your state policies and losing funding, and that harm is enough.

[00:23:55] Speaker 00:
And that is very true here, Your Honors.

[00:23:57] Speaker 00:
Hospitals all across the country stopped providing gender affirming care because of the threat of losing tens or hundreds of millions of dollars.

[00:24:04] Speaker 00:
They could not risk having to lay off staff, stop research, and so on.

[00:24:07] Speaker 00:
So that threat is happening right now.

[00:24:10] Speaker 02:
And that could be as to a particular program or a grant,

[00:24:15] Speaker 02:
How can that be as to all grants for all time, for all programs?

[00:24:21] Speaker 00:
The next point I was going to make is that essentially the other thing that's incredibly hypocritical about the administration's position is if we had waited and challenged a particular grant termination, they would have said,

[00:24:31] Speaker 00:
You can't seek an injunction.

[00:24:33] Speaker 00:
You have to go to the Court of Federal Claims to challenge that grant termination, which cannot issue injunctive relief.

[00:24:37] Speaker 02:
Yeah, I guess I'm granting you a lot of what you're saying, or maybe even all of it, to say, well, look, you don't need to wait until the grant is terminated.

[00:24:44] Speaker 02:
You can go in preemptively, perhaps.

[00:24:47] Speaker 02:
But the issue is more the scope of relief as to whether that leads to then invalidating the executive orders on their face as to these funding provisions.

[00:24:57] Speaker 00:
I understand.

[00:24:57] Speaker 00:
So a couple of points about that, Your Honor.

[00:24:59] Speaker 00:
This is an as-applied challenge.

[00:25:01] Speaker 00:
The Supreme Court in Dover re-described the kind of the essentials of an as-applied challenge is that you're not seeking relief beyond your own circumstances.

[00:25:08] Speaker 00:
We are not seeking relief beyond our own circumstances.

[00:25:10] Speaker 00:
We are trying to protect ourselves in this case.

[00:25:13] Speaker 00:
If we win, the order can still be applied all across the country outside of our states and to physicians outside of our states.

[00:25:20] Speaker 00:
We are seeking relief as to our own harms.

[00:25:24] Speaker 00:
Now, statewide relief was necessary to achieve that because as the district court found,

[00:25:28] Speaker 00:
at ER 55 to 56, simply providing relief to state institutions alone and state doctors alone would not be sufficient to remedy our harms.

[00:25:38] Speaker 00:
And so, for example, the University of Washington Medical Center, their faculty work at Seattle Children's Hospital extensively, which is not a state institution.

[00:25:46] Speaker 00:
Their students train there.

[00:25:47] Speaker 00:
They practice there.

[00:25:48] Speaker 00:
So just providing relief to UW would not be enough to address UW's harms.

[00:25:52] Speaker 00:
And for the physician plaintiffs, it's even more obvious

[00:25:54] Speaker 00:
that they have standing on behalf of their patients and their patients, as explained in the briefing, and sorry, and in the record.

[00:26:01] Speaker 02:
But I guess as to what programs, right, it's hard to call this an as-applied challenge when the effect of this is going to say this whole provision in this executive order cannot be applied in such a broad-based way.

[00:26:14] Speaker 00:
Your Honor, I respectfully disagree.

[00:26:16] Speaker 00:
It cannot be applied to us.

[00:26:17] Speaker 00:
It cannot be applied to us.

[00:26:18] Speaker 00:
It can be applied to others.

[00:26:20] Speaker 00:
We are bringing a suit to prevent our own harms.

[00:26:22] Speaker 00:
We only challenge specific provisions of these orders

[00:26:24] Speaker 00:
Mr. MacArthur brought up section five of the order and what it might allow.

[00:26:28] Speaker 00:
We didn't even challenge that section.

[00:26:29] Speaker 00:
So we brought very narrow challenge to specific provisions that were having immediate impacts on us.

[00:26:34] Speaker 00:
It's an as applied challenge.

[00:26:36] Speaker 00:
And the relief is appropriate because the relief was necessary to remedy our harms.

[00:26:42] Speaker 01:
I understand the crux of the government's argument is that despite my quotation of the mandatory provisions of the executive order,

[00:26:53] Speaker 01:
the government takes a position that they're still discretionary as permitted by law leeway.

[00:27:01] Speaker 01:
And therefore that bounces you out of this ripeness situation.

[00:27:05] Speaker 01:
What is the state's response to that?

[00:27:07] Speaker 00:
I think it just flies in the face of reality.

[00:27:08] Speaker 00:
I mean the administration immediately sent out notices to thousands of grant recipients saying that their grants were terminated to the extent they conflicted with the executive order.

[00:27:17] Speaker 00:
Hospitals across the country immediately began eliminating programs and the White House

[00:27:21] Speaker 00:
bragged that that was the purpose, that it was having its intended purpose.

[00:27:25] Speaker 00:
So the idea that there was some discretion to be exercised later, it just flies in the face of the way it was actually being implemented.

[00:27:31] Speaker 00:
This court addressed that exact argument in City and County of San Francisco.

[00:27:34] Speaker 00:
I know my friend on the other side says that it's different somehow.

[00:27:37] Speaker 00:
If anything, I think it's more stark here because here, there's not just this impending threat that everyone understands and is very clearly being communicated by officials up and down the administration.

[00:27:46] Speaker 00:
You have actual notices going out saying grants are being terminated, which had not happened yet in that case.

[00:27:51] Speaker 00:
And in that case, you had even a subsequent memo purporting to narrow the order where you have nothing like that here.

[00:27:57] Speaker 02:
How do we know if any of these terminations would even be unlawful?

[00:28:00] Speaker 02:
I mean, don't we need to look at the statutes and the regulations to understand all the terms and conditions of all these different programs?

[00:28:07] Speaker 00:
Your Honor, the burden is on the administration to show that they are acting within some statutory authority, that they are acting within, they certainly have, the president has authority to use discretion

[00:28:19] Speaker 00:
within grant programs where Congress has granted it, the president cannot just make up new policy priorities that are completely separated from congressional lawmaking.

[00:28:28] Speaker 00:
That just usurps Congress's power.

[00:28:31] Speaker 02:
The concern one would have, presidents issue these kinds of orders like this across administrations, all kinds of presidents issue orders saying, here's what I want to do, I want you to do it consistent with law, go look into it and do it, and do it even immediately.

[00:28:46] Speaker 02:
To then take that and say, well, we're going to enjoin that practice before we have any understanding of how it's even going to unfold is a significant intrusion on executive authority.

[00:28:56] Speaker 00:
Your honor, I respectfully disagree.

[00:28:57] Speaker 00:
Presidents certainly have issued executive orders over many decades, not like these, not like these ones.

[00:29:03] Speaker 00:
These ones just across the board attempt to establish nationwide health care policy in a way that no prior president has attempted to do.

[00:29:10] Speaker 00:
And if you think about the implications,

[00:29:12] Speaker 00:
The other side's theory essentially gives the president power to dictate healthcare policy nationwide on whatever topic he wants.

[00:29:18] Speaker 00:
He can set vaccine policy, gender affirming care policy, medical malpractice policy by just saying, in any state that doesn't have my preferred approach, we're gonna cut off all grant funding.

[00:29:28] Speaker 01:
And states will- I think that response to that would be, and then if he does, or if the agency does, then you sue.

[00:29:36] Speaker 00:
But again, Your Honor, the problem is the harm has already happened.

[00:29:39] Speaker 00:
States, I mean, it's happened in this case, right?

[00:29:41] Speaker 00:
States cannot, hospitals cannot afford to lay off hundreds of staff while they try to get their grant funding back.

[00:29:47] Speaker 00:
They can't stop research studies into cancer and Alzheimer's and diabetes midstream while they go to the court of federal claims and try to get their money back.

[00:29:55] Speaker 01:
So how does this case then differ from the Afge case and the Trump v. New York case?

[00:30:03] Speaker 00:
I'm glad you asked that, your honor.

[00:30:05] Speaker 00:
So starting with the Trump v. New York case, in that case, the president had directed the Census Bureau to prepare options for him about different ways he might apply the enumeration to exclude undocumented immigrants.

[00:30:17] Speaker 00:
The court found a lack of standing, a lack of causation there because the president had not made any decision, no options had been presented yet.

[00:30:24] Speaker 00:
It wasn't clear what the options would be, and it wasn't clear what impact the options would have on the different state plaintiffs.

[00:30:29] Speaker 00:
So there were multiple steps before any actual harm would happen.

[00:30:33] Speaker 00:
Here, the harm began as soon as the president issued these orders.

[00:30:36] Speaker 00:
Hospitals and research institutions started changing their policies, cutting off care.

[00:30:40] Speaker 00:
The harms were happening.

[00:30:42] Speaker 00:
And that was not an accident.

[00:30:43] Speaker 00:
The president made very clear that was not an accident, both through the letters and the public statements.

[00:30:48] Speaker 00:
On AFGI, AFGI is a two paragraph unexplained order

[00:30:52] Speaker 00:
that simply says the plaintiffs are likely or sorry the defendants are likely to succeed on the merits as your honor highlighted.

[00:30:57] Speaker 00:
It gave some broad direction to agencies about preparing reductions in force.

[00:31:01] Speaker 00:
It did not address in any detail separation of powers concerns or anything like that.

[00:31:05] Speaker 00:
And crucially, Your Honors, the other side is not arguing that City and County of San Francisco has been overruled, has been narrowed, has been superseded.

[00:31:13] Speaker 01:
I mean, that case is... Well, I think the argument from the government's perspective is it's just a very, very narrow case given the nature of the executive order.

[00:31:23] Speaker 01:
But it's clearly good luck, right?

[00:31:25] Speaker 00:
It's clearly good law.

[00:31:26] Speaker 00:
They're not even arguing it's not good law.

[00:31:27] Speaker 00:
And I think, if anything, the executive orders here are more flagrantly contrary to the Constitution and more immediately causing harm than the orders there.

[00:31:36] Speaker 00:
So if it is narrow, this extreme example clearly falls within it.

[00:31:40] Speaker 02:
The Ninth Circuit cited it in the AFGE case that was then stayed by the Supreme Court.

[00:31:48] Speaker 02:
And so is it, I think, a question as to how much of it remains

[00:31:52] Speaker 02:
something the Supreme Court would approve, given what Justice Sotomayor said in her separate concurrence in AFGE.

[00:31:58] Speaker 02:
But I guess the issue I would say is, let's assume that some part of this is ripe and that there's some immediate concern here.

[00:32:06] Speaker 02:
There's still the question of how should this dispute unfold in the courts?

[00:32:10] Speaker 02:
And I think that's the concern I have, which is, is this the right way to handle this, to enjoin the whole thing up front, or should it be playing out in a more

[00:32:19] Speaker 02:
deliberate way with a more focused attention on different programs.

[00:32:24] Speaker 00:
Your honor, the problem with that, and I apologize if I'm being a little repetitive here, is that the harms will have already happened.

[00:32:29] Speaker 00:
I mean, hospitals around the country would have to lay off staff.

[00:32:33] Speaker 00:
If they lose this grant funding and then have to go try to get it back, they will have to lay off staff.

[00:32:38] Speaker 00:
They will have to stop the midstream important research projects.

[00:32:43] Speaker 00:
And that was already happening, right?

[00:32:45] Speaker 00:
Hospitals were already making the decisions to terminate providing this kind of care.

[00:32:48] Speaker 00:
to avoid those consequences.

[00:32:50] Speaker 00:
And it was only when we got the injunction in this case that our own states were protected from those harms.

[00:32:54] Speaker 00:
And so requiring us to wait until then would essentially be requiring us to suffer the very harms we're trying to prevent.

[00:33:00] Speaker 00:
And so that can't be right.

[00:33:01] Speaker 02:
And it's not right under... The harm only... You have an immediate loss of funding or a threatened loss of funding, but the question is whether that's legal, right?

[00:33:09] Speaker 02:
And so how do we know that across all these things?

[00:33:13] Speaker 02:
That's the concern I have.

[00:33:15] Speaker 00:
Because you are the president is trying to intrude on Congress is spending power the president has to point to some statute that authorizes his exercise of discretion before he can remove funding or put conditions on grants and again.

[00:33:30] Speaker 00:
if that's not the rule, then the president can just set health care policy nationwide just through grant conditions.

[00:33:35] Speaker 00:
And, you know, I think, for example, the other side would have to agree that if a current president can do this, a next president who wants to take the opposite approach could say, you know what, only hospitals that provide gender-forming care.

[00:33:46] Speaker 02:
Why wouldn't it depend on the terms of the specific program?

[00:33:51] Speaker 02:
Why wouldn't it depend on the terms that you're making, you're arguing, well, the president can't do this,

[00:33:56] Speaker 02:
How do we know that until we look and see, well, here's what these statutes says, here's what that reg says?

[00:34:01] Speaker 00:
The other side has had a year to come up with any statute that even plausibly allows these conditions as to any grant.

[00:34:07] Speaker 00:
And they have not done that.

[00:34:08] Speaker 00:
I mean, they've had a year.

[00:34:09] Speaker 00:
They've had so much time to think about what statute could we cite to justify this as to any grant.

[00:34:16] Speaker 00:
And they haven't cited one.

[00:34:17] Speaker 01:
Was this more like Youngstown?

[00:34:19] Speaker 01:
I mean, they had a potential statute.

[00:34:22] Speaker 01:
But even the president said, I'm not relying on that statute.

[00:34:25] Speaker 01:
I'm relying on this, my constitutional authority, and you can't sort of imply a statute after the fact.

[00:34:33] Speaker 01:
So is this Youngstown?

[00:34:35] Speaker 00:
I mean, I think it's very close.

[00:34:36] Speaker 00:
I mean, you heard today that the president is not relying on any statute, right?

[00:34:41] Speaker 00:
And so that also highlights, I think, why it's so wrong to think that our claim is a disguised statutory claim.

[00:34:46] Speaker 00:
We are not bringing some disguised statutory ultra-various claim.

[00:34:49] Speaker 00:
We have a constitutional separation of powers claim.

[00:34:52] Speaker 02:
So what should the president have done?

[00:34:53] Speaker 02:
Should the executive order been like 100 pages and gone through every possible grant program that could be implicated?

[00:35:00] Speaker 02:
Or is the president not allowed to offer this kind of general directive and say, but consistent with law?

[00:35:06] Speaker 00:
Your Honor, this would be a harder case if it were not intended to be implemented immediately and across the board in the way that it so clearly was and started to be.

[00:35:15] Speaker 00:
And if the president had simply given direction that he wanted agencies to prepare options consistent with law, identify grants or programs that statutes that they administered that might allow conditions like this, and then report back, and then they could make decisions after that.

[00:35:29] Speaker 00:
That is clearly not what the intention was.

[00:35:31] Speaker 00:
Sorry, let me set aside there the equal protection problems that would be present.

[00:35:35] Speaker 00:
But in terms of spending clause, in terms of the spending clause, if there were decisions to be made later after review of statutes and after identifying statutory authority, then

[00:35:45] Speaker 00:
there would be a plausible argument that the case was not right yet, that there wasn't a spending clause argument here.

[00:35:51] Speaker 00:
But that's very clearly not the reality on the ground.

[00:35:54] Speaker 00:
The president intended it to be implemented immediately.

[00:35:56] Speaker 00:
Agencies started implementing it immediately and across the board.

[00:35:59] Speaker 00:
The regulated entities understood it to be immediately effective and started reacting immediately and suffering the harms.

[00:36:06] Speaker 00:
So it just flies in the face of reality to say,

[00:36:09] Speaker 00:
that this is all sort of some future theoretical to-be-determined leader set of impacts.

[00:36:16] Speaker 00:
The impacts are now, and again, City and County of San Francisco talked about that very specifically in the context of standing in ripeness and saying, the harm is now, the harm is being forced to choose between the loss of federal funding and your own longstanding policy priorities.

[00:36:31] Speaker 01:
Well, on the statutory ultra various versus constitutional,

[00:36:37] Speaker 01:
As you've indicated, there's no specific statute implicated, and yet I think the government does point to this recent Fourth Circuit case on sustainability in which there was in effect an implied statutory challenge related to the spending powers.

[00:36:57] Speaker 01:
What is your position on the applicability or distinction of that Fourth Circuit case?

[00:37:03] Speaker 00:
Yeah, thank you, Your Honor.

[00:37:04] Speaker 00:
The plaintiffs in that case had a wide range of arguments.

[00:37:07] Speaker 00:
And their primary arguments, as the Fourth Circuit understood them, were that there were certain statutes that forbade the government from cutting off their grants.

[00:37:14] Speaker 00:
And then they argued that because the president was violating those statutes, he was also violating the separation of powers.

[00:37:20] Speaker 00:
And it was because of that that the court treated that as essentially an attempt to end run around statutory limits on causes of action like that.

[00:37:28] Speaker 00:
That is not the situation here.

[00:37:29] Speaker 00:
We have only constitutional claims.

[00:37:32] Speaker 00:
Our separation of powers claim is a well-recognized

[00:37:34] Speaker 00:
stand-alone type of constitutional claim.

[00:37:36] Speaker 00:
This court has recognized it.

[00:37:37] Speaker 00:
The Supreme Court has recognized it in the free enterprise case cited in our briefing.

[00:37:41] Speaker 00:
It's not a novel theory.

[00:37:42] Speaker 00:
It is a very straightforward claim, and all those ultra-various cases very clearly distinguish between constitutional claims, which parties can bring, and then sort of disguised equitable statutory cause of action that try to evade statutory limits on those cause of action.

[00:37:56] Speaker 00:
That's not what we're doing here.

[00:37:57] Speaker 02:
Let me ask you, on the theme of the Fourth Circuit, there's another Fourth Circuit case

[00:38:01] Speaker 02:
the National Association of Diversity Officers case that got into some of these issues about as applied versus facial.

[00:38:08] Speaker 02:
Judge Diaz wrote about that.

[00:38:09] Speaker 02:
I don't know if you're familiar with that case, but how does that case differ from this one, if at all?

[00:38:14] Speaker 00:
Well, again, your honor, we are seeking relief only as to our own circumstances.

[00:38:19] Speaker 00:
If I recall correctly, that was a nationwide seeking nationwide relief as to all possible applications.

[00:38:24] Speaker 00:
We are seeking relief as to our own circumstances.

[00:38:27] Speaker 00:
We these executive these provisions of these executive orders cannot constitutionally be applied to us.

[00:38:33] Speaker 00:
That's what we're asking for here.

[00:38:34] Speaker 00:
Even if we win, they can still be applied to others.

[00:38:37] Speaker 01:
And and that is I think that's where your brief says this is an as applied challenge.

[00:38:42] Speaker 01:
The government says, well, it's really

[00:38:44] Speaker 01:
a facial challenge.

[00:38:45] Speaker 01:
Does it matter in the end?

[00:38:48] Speaker 00:
Your Honor, I think the framing of it does matter.

[00:38:50] Speaker 00:
I mean, we would urge the court to find that it is an as-applied challenge because that makes much more straightforward what the overall approach is.

[00:38:57] Speaker 00:
But even if you apply that sort of language about no constitutional application, these provisions cannot constitutionally be applied to us because there is no authority for the president to impose these conditions.

[00:39:08] Speaker 00:
They have had a year to find any.

[00:39:10] Speaker 00:
They have cited none.

[00:39:11] Speaker 00:
There is no authority.

[00:39:13] Speaker 00:
to apply these provisions to us.

[00:39:15] Speaker 00:
But again, we brought this as an as applied challenge.

[00:39:18] Speaker 00:
It's intended to be an as applied challenge.

[00:39:20] Speaker 00:
We are only seeking relief as to our own harms.

[00:39:23] Speaker 00:
And so that's what we think should should make the difference in terms of how this court views the case.

[00:39:27] Speaker 00:
And I'd also point out that, you know, counsel talked about some provisions in Section five of one of the orders that that are being implemented.

[00:39:35] Speaker 00:
We didn't challenge

[00:39:36] Speaker 00:
all the provisions in the orders.

[00:39:37] Speaker 00:
There are other provisions in these orders that they are currently implementing that we have not yet challenged.

[00:39:41] Speaker 00:
We may challenge how they turn out someday because we want to see too far into the future, but we will very likely disagree with the administration's interpretation of some of the rules that come out of those processes, and we will challenge them then.

[00:39:54] Speaker 00:
But these provisions were harming us right now, and so we challenge them now.

[00:39:58] Speaker 00:
And City and County of San Francisco makes clear that we have standing to do that.

[00:40:02] Speaker 04:
I had a pretty good discussion with Mr. MacArthur about ripeness.

[00:40:10] Speaker 04:
And, you know, to me, it looks like when the complaint was filed, there was standing injury, in fact, and probably constitutional rightness.

[00:40:19] Speaker 04:
But there's another part of rightness that kicks in, which is prudential considerations.

[00:40:24] Speaker 04:
And as you listen, as I listen to the discussion that you've had here, Judge Bress raises, you know, I think some sort of nuanced points that need to be dealt with, and which is, you know, the orders were rescinded.

[00:40:40] Speaker 00:
Right?

[00:40:41] Speaker 00:
Well, not the orders have not been rescinded.

[00:40:43] Speaker 00:
Not the orders.

[00:40:43] Speaker 04:
I meant the notices.

[00:40:45] Speaker 00:
The letters were rescinded.

[00:40:46] Speaker 00:
I'm sorry.

[00:40:46] Speaker 00:
Because of injunctions.

[00:40:47] Speaker 04:
I mean, if the case hadn't been... But they were rescinded.

[00:40:51] Speaker 04:
Those letters are not in force right now, correct?

[00:40:54] Speaker 00:
Fair enough, Your Honor, but that certainly would not, for example, lead to mootness because it's... I didn't say mootness.

[00:40:59] Speaker 04:
Did you hear me say mootness?

[00:41:00] Speaker 04:
Sorry, Your Honor.

[00:41:01] Speaker 04:
I didn't say mootness.

[00:41:01] Speaker 00:
Sorry, I got ahead of myself.

[00:41:02] Speaker 00:
Yeah.

[00:41:03] Speaker 04:
But in terms of prudential... I'm talking about the prudential aspects

[00:41:07] Speaker 04:
of ripeness.

[00:41:08] Speaker 04:
As a court, shouldn't we take where things are at now, the nature of the challenge, the nature of the orders, and say, well, maybe we need to let this sort of develop a little bit further.

[00:41:29] Speaker 00:
I would urge you not to think about it that way.

[00:41:30] Speaker 00:
Why?

[00:41:30] Speaker 00:
Because part of prudential ripeness is the hardship to the parties of withholding decision.

[00:41:35] Speaker 00:
the hardship to the states and to the patients is immense, is life changing.

[00:41:41] Speaker 00:
And so to withhold hundreds of millions of dollars in grant funding because of the president's threats is to force state institutions to lay off staff, to stop crucial research, is to force patients to forego life-saving treatment.

[00:41:56] Speaker 00:
And it's just there's no basis in law to require that, especially under this court's decision in City and County of San Francisco, which also dealt with prudential rightness.

[00:42:03] Speaker 00:
I know I'm over time.

[00:42:05] Speaker 00:
If I may just have 30 seconds to address the equal protection issue briefly because we would urge the court to resolve the case purely on separation of powers grounds because we think that's the most straightforward approach given the pending cases at the Supreme Court.

[00:42:17] Speaker 00:
But if the court reaches equal protection, it should absolutely affirm the district court on that aspect of the case because of the egregiously discriminatory nature of these orders.

[00:42:26] Speaker 02:
So the big issue here is Skirmetty.

[00:42:28] Speaker 00:
Yes, your honor, but sorry, sorry, or he got fair enough.

[00:42:32] Speaker 00:
And again, that, you know, we would encourage you to resolve it solely based on separation of powers.

[00:42:37] Speaker 00:
But scrimmage, the court found that those Tennessee law issue there was targeting certain medical treatments and not individuals, not transgender individuals as such.

[00:42:47] Speaker 00:
There's no plausible argument that that is the case here.

[00:42:49] Speaker 00:
The gender ideology order threatens funding to any institution that simply acknowledges the existence of transgender individuals.

[00:42:56] Speaker 00:
There's no rational basis for that sort of rule other than discrimination and the district court correct and the other order talks about life-saving medical care as child abuse, as mutilation, as maiming, the orders threaten prosecution of doctors and families.

[00:43:13] Speaker 00:
The district court correctly found that these orders are riddled with animus and that was certainly not a clearly erroneous finding.

[00:43:20] Speaker 00:
So, Your Honors, again, we would ask the Court to affirm the District Court's preliminary injunction unless there's any further questions.

[00:43:28] Speaker 02:
Thank you, Mr. Purcell.

[00:43:31] Speaker 02:
Mr. MacArthur.

[00:43:34] Speaker 03:
I have just a few points, Judge Paias.

[00:43:36] Speaker 03:
I do think there are serious prudential rightness considerations in this case, and there are two cases in particular that I would urge the court to take a look at.

[00:43:43] Speaker 03:
One is the Supreme Court's decision in Texas versus United States.

[00:43:47] Speaker 03:
That goes to the question of whether the issues are fit for review at this stage.

[00:43:52] Speaker 03:
In that case, the Supreme Court said

[00:43:53] Speaker 03:
The nature of the challenge that Texas brought there would require the court to speculate about every potential application of the Texas statute at issue there and whether that would.

[00:44:03] Speaker 03:
Implicate the federal voting rights act and the court said we don't have the powers of imagination to do that and the legal issues will be much better assessed.

[00:44:12] Speaker 03:
much better grasped in light of a particular application.

[00:44:15] Speaker 03:
The problem here is orders of magnitude worse than it was in Texas because it's not just one potential statute that we're trying to imagine what are the possible applications.

[00:44:25] Speaker 03:
It's a whole host.

[00:44:26] Speaker 03:
Who knows how many federal statutes and grant programs at issue.

[00:44:30] Speaker 01:
The other case that I would urge the court to look at, this goes... The difficulty with that argument is to say because this order is so wide-sweeping,

[00:44:41] Speaker 01:
And because it's so clear as to who's targeted, and there could be so many institutions, we just throw up our hands and say, not now.

[00:44:50] Speaker 01:
But doesn't that really ignore the harm to patients?

[00:44:55] Speaker 01:
hospitals and doctors now?

[00:44:58] Speaker 03:
It doesn't, and that is the second aspect of the Prudential Rightness Inquiry.

[00:45:01] Speaker 03:
And I would encourage the court to take a look at this court's decision in the Colwell case.

[00:45:06] Speaker 03:
That was a Prudential Rightness case where the agency had put out a guidance that said, you know, if you don't provide certain translation services to low English proficiency patients, your funding is at risk and could be terminated.

[00:45:19] Speaker 03:
And the court said that there was no hardship

[00:45:22] Speaker 03:
in actually awaiting an application.

[00:45:24] Speaker 03:
If the agency in the context of an enforcement applied that guidance to terminate funding, they could raise all their defenses when it was actually applied.

[00:45:31] Speaker 01:
You don't see some difference between imminent medical care and a translation service in terms of hardship?

[00:45:40] Speaker 03:
Well, both of those cases concern loss of funding.

[00:45:43] Speaker 01:
I understand they concern loss of funding, but the impact of the loss of funding leads to

[00:45:49] Speaker 03:
But I think the key point is that there is no present impact and will be no impact until an intervening step happens, which is an agency actually taking a specific action to implement the executive order.

[00:46:04] Speaker 03:
The only present harm that they are saying they are incurring is

[00:46:09] Speaker 03:
what they're characterizing in a sense as a chilling effect, that if we continue to provide these procedures at some point in the future, our funding may be terminated.

[00:46:18] Speaker 03:
And it's interesting if you look at their supplemental brief, almost all of the cases they cite are First Amendment cases where rightness standards are relaxed in light of that sort of chilling effect.

[00:46:27] Speaker 03:
These procedures are not protected speech or any other sort of protected conduct.

[00:46:32] Speaker 03:
And the mere fear that some agency in the future might take an action that would affect their funding is not enough to establish

[00:46:39] Speaker 03:
a ripe dispute.

[00:46:41] Speaker 02:
Can you address this debate about whether this is an as-applied versus facial challenge?

[00:46:45] Speaker 03:
Yeah, so with respect to Mr. Purcell, I think he's simply confusing a question about the scope of relief with how you distinguish between a facial and an as-applied challenge.

[00:46:55] Speaker 03:
The scope of relief is governed by equitable principles by, for example, the Supreme Court's decision in CASA, which says that courts are limited to providing relief that redresses the injuries of the parties before the court, and that's a ceiling and you can't go farther.

[00:47:08] Speaker 03:
That has nothing to do

[00:47:09] Speaker 03:
with whether the challenge is a facial or as applied challenge.

[00:47:12] Speaker 03:
What makes something a facial or as applied challenge is the nature of your legal theory.

[00:47:17] Speaker 03:
Are you arguing that this provision is invalid in all of its applications and can't be applied to anyone, setting aside scope of relief questions.

[00:47:25] Speaker 03:
If the legal theory is valid as to me, it would be valid as to some other plaintiff.

[00:47:30] Speaker 03:
The nature of their challenge here is not there's some particular facts about our grants.

[00:47:35] Speaker 03:
that make this executive order unlawful.

[00:47:37] Speaker 03:
They're arguing that the executive order is unlawful in all of its applications.

[00:47:41] Speaker 03:
The court can't grant relief consistent with CASA that goes that far.

[00:47:45] Speaker 02:
But that's a separate question from... How about city and county of San Francisco in terms of the argument that essentially the president needs to have affirmative authority in order to change the funding?

[00:47:55] Speaker 03:
The president does not need to have affirmative authority to give instructions to his subordinates to analyze their authorities.

[00:48:03] Speaker 03:
That is the district court lost sight of some very basic principles about how our system of government works.

[00:48:10] Speaker 03:
Statutes often vest the executive branch with broad discretion as to how they get implemented.

[00:48:16] Speaker 03:
And the president, as the head of the executive branch under Article 2, has the constitutional authority to direct them in the exercise of that discretion within the bounds of the law.

[00:48:29] Speaker 03:
The only separation of powers violation that occurred in this case was when the district court enjoined the president from exercising that core Article II power to direct his subordinates about how they should exercise their discretion within the bounds of existing law.

[00:48:45] Speaker 03:
That is all these executive orders do.

[00:48:49] Speaker 02:
Thank you.

[00:48:50] Speaker 02:
Thank you, Mr. McArthur.

[00:48:52] Speaker 02:
Thank you, Mr. Purcell.

[00:48:53] Speaker 02:
This matter is submitted.