Listening in on this now! https://twitter.com/andresegura/status/1352742923352342528

Judge Tipton seems very skeptical at the arguments of the Texas AG's attorney so far, noting that the agreement is brand new and also would provide no remedy. https://twitter.com/andresegura/status/1352743303742160897

Judge Tipton says: "The way that I look at it initially... it says [DHS must consult] 'within 180 days'" and asks whether that means DHS could just negotiate quickly and have the policy go into effect.

Texas says they believe the agreement requires a total delay of 180 days.

Texas is now arguing in favor of nationwide injunctions, which is particularly entertaining on a meta standpoint.

Judge Tipton points out that in U.S. v. Texas, there was a 26-state lawsuit, whereas here it's just an agreement with Texas. He's very skeptical.

Judge Tipton notes the Supreme Court's recent language against nationwide injunction and indicates that he believes that DAPA case was limited to a specific scenario.

Texas AG's office disagrees, saying even "hawkish" SCOTUS judges would grant a nationwide injunction here.

Some really terrible language from the Texas AG's office, declaring that Texas would be harmed for years if even a single undocumented immigrant is not deported. They have to rely on xenophobia and bad science to argue they are "injured" by this.

Judge Tipton now asks Texas AG "is there prosecutorial discretion about whether to enforce removal orders."

Texas AG says the answer is no and suggests Congress stripped that authority from DHS. On that point he is extremely wrong as a legal matter.

Judge Tipton now asks about irreparable harm: "What exactly is the irreparable harm that the State of Texas is claiming?"

Texas AG says Texas faces "hundreds of millions of dollars" for providing public education and emergency care.

So educating children is harm to Texas, huh?

The Texas AG's office continues to make really painful arguments that Texas "faces significant harm" if children and adults aren't deported and might have to be educated and cared for in emergency rooms.

Judge Tipton says on AG's money damages argument that in his experience as a practicing lawyers, to get a TRO you'd generally need "quantifiable dollars." He asks whether any such numbers are possible to generate and confirms that any such amount would not be recoverable.

And now we move to the DOJ lawyer's time up here. He notes that the DOJ is in the same position as he was, having been blindsided by the case.

Adam Kirschner for DOJ begins by saying that the "status quo" IS the moratorium—anyone affect has been here since November already.

Kirschner says that Texas has just "copied one declaration from a different case over to this case"—which the Texas AG admitted they'd basically done with declarations from the DAPA case years ago. He notes that the 5th Circuit rejected similar arguments in a separate case.

Kirschner makes the obvious point that Texas can't just use "one side of the ledger" when calculating harm from undocumented immigrants, point out that, of course, many people facing deportations are taxpayers who will contribute revenue into Texas's purse.

Kirschner comes out firing on Judge Tipton's question about whether the contract gives Texas standing: "You can't contract away standing."

Kirschner also notes (as I did earlier) that the contract has no consideration at all, and that the remedy is totally unrelated.

Kirschner: Texas "is a party to an agreement, but we do contest that it is a contract... contracts against the federal government are not for specific performance, there is only monetary relief ... the remedy for a federal government breaching a contract is for monetary relief."

Kirschner again notes that the contract raises "serious Article II" concerns, noting that the prior administration seems to have deliberately tried to bind an the incoming administration.

Kirschner also raises major nondelegation concerns with enforceability: "This agreement, which is basically giving Texas a veto power for 180 days over the federal government's powers is certainly beyond 8 USC 1357."

Tipton asks a qualifying question briefly.

Kirschner just reading off a list of problems with lawsuit, having now reached jursdiction. "There are a litany of jurisdictional problems with their argument."

He points out that 8 USC 1252(g) strips jurisdiction from courts over certain issues relating to removal orders.

Tipton says when he looked at the complaint he thought "why would ICE have the authority to disregard a removal order"? Clear Tipton does not understand how removal orders operate.

LOL @ Kirschner's response: "They're not an Article III judge... I don't know about Article I"

Judge Tipton on immigration law and removals: "You used a lot of words that demonstrate that none of us know what the process is."

Kirschner eventually discovers the legal answer, and says that DHS always has ultimate discretion about whether to execute a removal order. True!

Kirschner coming back again and saying that he can't emphasize enough how much the contract violates Article II, that the federal government can't give Texas a veto power over immigration for 180 days. He points out Arizona v. United States as well.

Tipton again turns to the question of the status quo. Kirschner says the question here is different than in arguments between prior parties. He says that the status quo is that, for now, the individuals are not removed.

Judge Tipton says that "one concern" is about people who are detained or in custody and are subject to custody and might be released. He has a concern that people might disappear. He says that's "kinda human nature for some people, for sure," which, yikes.

Kirschner's response is perfect, which is that of course Texas wouldn't suffer any irreparable harm in that situation because that was just a generalized concern about immigration enforcement and not something specific.

Judge Tipton now is switching to questions about scheduling on a preliminary injunction briefing. Texas AG says they'll file a separate PI motion, and Kirschner says he thought the TRO was also a PI.

Tipton is asking what the federal government's position on the scope of any injunction would be, and Kirschner says it should of course only be geographically limited to Texas alone. "Again, this is about Texas having a veto power over immigration law."

Tipton again exploring questions of nationwide injunction, and asks "I guess I'd like you to comment to the idea that those who are released instead of deported would cross state lines... into Texas" (which Texas's AG had argued).

"Pure speculation" says Kirschner. Of course!

Moving back to the Texas AG's office, who begins by saying the "I don't think anyone has given Texas a veto." Of course, he previously said in oral arguments that he thinks DHS can't do anything unless they give Texas 180 day notice, so... of course it's a veto!

Texas Ag's office pushes back on standing, and Kirschner's argument that the court has to consider "both sides of the ledger," such as whether undocumented immigrants benefit the State of Texas. Reads from a 5th Circuit case on that point.

More back and forth on standing and reviewability, with Judge Tipton saying he keeps asking questions because there are issues "percolating in his mind."

Texas AG turns to 1252(g), which he says does not apply.

Texas AG now citing to Regents (the DACA case) to say that arbitrary and capricious review has "bite" and argues that DHS "has not explained any justification for departing from the agreement" signed with Texas.

He says DHS should have to talk about it to satisfy APA review.

Tipton now asks Texas AG about Kirschner's argument that this case is squarely settled by Arizona v. US, which says immigration law is up to the federal gov. He says it doesn't forbid an agreement. Tipton doesn't buy that, asking why Texas isn't tying DHS's hands for 180 days.

Texas AG makes an incredibly torture argument to an agency having to following Notice and Comment rules under the APA to DHS having "bound itself."

"Certainly no one is claiming that Texas has some kind of unilateral right without DHS's consent," which is... what they're claim.

Back to Kirschner, who correctly points out the "two sides of the ledger" point that the Texas AG quoted from the DAPA case is just incorrect and not an accurate reading of the case. "It's apples and oranges."

Tipton asks "Do you believe the memorandum is covered by the APA"?

Kirscher says: "I think it's not subject to review under the APA" and says that things which are committed to agency discretion are carved out from the APA. "I don't think it's reviewable under the APA."

"It's the whole nine yards when it comes to Article III standing" is how the DOJ attorney responds to Texas's lawsuit to block the deportation moratorium.

He then lists of a bunch of additional reasons he thinks the court has no jurisdiction over this lawsuit.

Kirschner goes back to Arizona v. US, makes clear that what Texas is *actually* asking for is the judge to order DHS to deport people.

"What Texas is saying here is that this [MOU] is having a veto. You give us 180 days to decide we want to do about immigration law."

Kirschner ends his final argument by making clear that it would be a very serious thing for the judge to order DHS to follow this almost certainly unlawful memo signed just 12 days ago.

Tipton turns right to a briefing scheduling... for the PI? For the TRO?

It seems Tipton is indeed moving right to scheduling a preliminary injunction briefing. Texas AG's brief for a PI is set on January 29th.

Kirschner asks for 21 days to respond given the weighty issues involved. So DOJ response set for February 19.

After that exchange, Texas AG says they actually don't agree to February 19 for DOJ without a TRO in place, and DOJ should only get 5-7 days in response. Kirschner blanches on that and says 7 days isn't enough. Tipton offers 14 days, which, uh...

Tipton asks whether DOJ has the authority to delay the implementation to extend the implementation date. Suggests he might delay the moratorium during briefing (!).

Kirschner notes that DOJ would ask for a stay if Tipton issued a TRO and formally requests a stay in case of TRO.

Okay, Tipton says he is going to take the matter under advisement, and asks DOJ to file whatever they feel is necessary to memorialize their argument. He says "however I rule on the TRO, one way or the other, has no basis on how I would approach the merits of this."

So Judge Tipton ends with an ominous sign for the moratorium being pushed back a few weeks, but throughout the argument he was very skeptical about Texas's arguments on the merits, which is a mixed bag.

Tipton says he will not be ruling immediately and suggests DOJ file a brief.