Since Kiser, there has been more uncertainty, but as Judge Beavis explained in Nasir, Kiser sort of d- awakened us from a doctrinal slumber in which we, uh, we moved from a position where, uh, essentially the, the, the, the commentary was-

Let me ask you how this operates, and, and let's take this no- this, uh, this co- this guideline, okay? Um, the ag- the guideline, uh, says, um, the application, uh...

Let's look at the guideline.

It defines it as a, a semiautomatic firearm that is capable of accepting a large capacity magazine, okay? That's the guideline.

That gives you the enhancement under the guideline.

The application note says, makes it clear that this refers only to a firearm that, quote, "at the time of the offense either had attached to it or had in close proximity a large capacity magazine." If I read the guideline just as a guideline, and it says you apply the enhancement to a se- semiautomatic firearm that is capable of accepting a large capacity magazine, I look at the structure of the gun, and if it's capable of it, I don't care where the magazine is or what size the magazine is because the words of the guidelines say capable.

So if I decide that, wouldn't I be more punitive if I decided that large capacity firearm meant any firearm that was built to hold a large magazine?

As it happens, under the Sentencing Reform Act, and, uh, for all the reasons we explain in our brief, uh- The limits on Kiser deference are generally going to be satisfied in most cases involving guidelines commentary because the commentary and the guidelines are so interlinked that the, uh, concept of ambiguity is kind of, uh, in a little bit of a feedback loop there.

Well-

I know that Congress explicitly, um, does away with NEPA in a bunch of different ways, w- and they know how to do it, 'cause they do it frequently, but they haven't done it in this context.

So tell me why we're looking for functional equivalency when what our, um, conflict law basically says it has to be irreconcilably.

So, uh, irreconcilable.

Um, Justice Thomas, anything further? Justice Kagan?

I'm reading the question.

I think the question presented, um, answers what position respondent has taken.

It depends on whether the federal government's submission to a state or territorial regulator of an application to renew a previously issued RCRA permit is final agency action.

Yes, under a different statute.

And so when Congress was amending or creating 511, that was the state of the law, correct? Yes.

It's very clear that when Congress wants to include constitutional law issues within agency consideration, it's very clear about it.

It did it with the Court of Appeals for Veterans Claims and said there that VA actions that are, quote, contrary to constitutional right, power, privilege, or immunity, that that court could decide that.

Correct? Correct.

What sense is

there in your system? This is a pure challenge to – constitutional challenge to a – a provision, the veteran has to go through this elaborate administrative process where now you're saying the board has to look at it, but before he didn't understand that, he had to go through that and wait to have the constitutional challenge decided.

Why?

All 50 states and foreign countries have an

interest.

Can I bring you back to the point? I have a starting problem, which is I don't see anywhere below where you argued the extraterritoriality principle at all.

And in this case, you raised it only on reply.

And yet you come here and start arguing it as your first argument.

Haven't you forfeited? It's a defense like any other.

If you didn't raise it below, I didn't see anywhere in your briefs this argument.

Justice Thomas, anything further? Justice Sotomayor?

Yeah

... rules that inc- that almost impossible in this area because determining whether or not, um, there's active inducement is always contextualI think Grokster said that one of the factors it used was that the name that the infringer was using was suggestive of the infringement.

So that wasn't the express statement of any way to infringe, it was su-just a suggestion.

But in context with other things, it reached, uh, active inducement.

Uh, I'm asking a very simple question.

You don't need all of the things you've been arguing about to win under Trombley and Iancobell, correct?

It's just the general inducement provision, and we think application of the general rules is-

Is, is enough.

We, we, we don't argue that the judicial review bar extends to the constitutional claim.

So counsel, let's go back to the chief's question on Hawaii.

Assume that I disagree with you and that H- Arlington Heights, um, applies because, uh, Hawaii and all of the cases that you cited supporting it involve aliens coming into the United States, not aliens in the United States.

So let's assume that I believe that due process requires some process for aliens who are here to be removed.

Um, then we can argue about what that process is and, um, and how binding it is or not.

But if it's Arlington Heights, a discriminatory purpose just needs to be a reason, not the only reason for acting, correct?

A motivating factor, I think is what it says.

Motivating factor.

We, we, we don't argue that the judicial review bar extends to the constitutional claim.

So, counsel, let's go back to the chief's question on Hawaii.

Assume that I disagree with you and that Har- Arlington Heights, um, applies because, uh, Hawaii and all of the cases that you cited supporting it involve aliens coming into the United States, not aliens in the United States.

So let's assume that I believe that due process requires some process for aliens who are here to be removed.

Um, then we can argue about what that process is and, um, and how binding it is or not.

But if it's Arlington Heights, a discriminatory purpose just needs to be a reason, not the only reason for acting, correct?

A motivating factor, I think is what it says.

Motivating factor.

And I, I think what Justice Jackson is getting at is why isn't this case just like that? Th-- Why isn't that the question? I understand your point that, well, they didn't contest it, but it is your burden on, on a motion to dismiss stage to, to rule out that lawful intent that, hey, this is puffery for investors.

investors.Um, and that w- this can be plausibly explained b-uh, by that rather than infringement.

We've uncovered all of this new evidence we can, that we can-

Well, did Judge Andrews granted a motion to dismiss, right?

And, and I'm happy to-

Now let, let's go to that, okay? There's about 300 of these cases that were passed, um, uh, that have ever been brought.

That's not an enormous sum.

After Kabil, that number dropped precipitously, all right? So it's not as if this is such a large number of cases that, um, it's overwhelming the courts below.

We don't see a rush in the four circuits that permit aiding and abetting liability of new cases.

So I'm not sure why this has become unworkable in the stare decisis sense.

But we have the Convention Against Torture, of which we're a member, and China's a member, and Russia, and a whole bunch of other countries, and that does require nations to ensure that people who are complicit in violations of international law are held responsible.

I do think with respect, Justice Sotomayor, this is proven to be unworkable in the lower courts, and the profusion of lower court cases that have-

And, and I'm happy to-

Now let, let's go to that, okay? There's about 300 of these cases that were passed, um, uh, that have ever been brought.

That's not an enormous sum.

After Cabell, that number dropped precipitously, all right? So it's not as if this is such a large number of cases that, um, it's overwhelming the courts below.

We don't see a rush in the four circuits that permit aiding and abetting liability of new cases.

So I'm not sure why this has become unworkable in the stare decisis sense.

But we have the Convention Against Torture, of which we're a member, and China's a member, and Russia, and a whole bunch of other countries, and that does require nations to ensure that people who are complicit in violations of international law are held responsible.

I do think with respect, Justice Sotomayor, this is proven to be unworkable in the lower courts, and the profusion of lower court cases that have-

Yes.

That's not what this does.

This identifies a place, a crime, a limited timeframe, but a timeframe.

So it's not a general warrant in its, its historical sense.

Why isn't this closer to the warrants that we've permitted with beepers, where we don't have a person or a necessarily a place in mind, but we have a location and general things? Why isn't that more consonant with Burger, Zucker, Caro, those lines of cases?

But just to defend this warrant for one second, uh, I- I think the court recognized in Scott, which is a case we cite in our brief, the, which is under the Wiretap Act, not directly a Fourth Amendment case, but the same principle applies, that the-

Now, there's value, isn't there, in our saying something like or deciding we need a warrant? It has to be particular as to time, place, time, um, and it has to explain the reasons why those limitations are reasonable, because that's always a part of a warrant, warrant search.

And wouldn't that have value for the dispute that's going on around the country and between and among judges, even on this court? Some said there was...

Justice Thomas, Justice Alito, Justice Sotomayor?

I, I just wanna pin down the area of the dispute because I too believed that misbranding and registration were not inconsistent, a claim by FIFRA that someone has mid-branded can come, can come even when, uh, registered.

You're taking the position, I think, that misbranding would be limited to things that are not covered by the registration, meaning you change the label, you add something to itYou change it in some way, correct?

And then the next day they market it as labeled, and they could have that all be subject to a misbranding claim.

I think the problem is 136a(f)(2) because it also says, "A valid ri- uh, registration, however, is prima facie evidence that the pesticide's labeling and packaging comply with the registration provisions of FIRFA," but it's prima facie.

It's not presumptive.

And so it seems to me if it's prima facie, it could be rebutted, that you, that FIRFA could come in and say, "You misbranded because you failed to tell us about this risk."

Justice Thomas? Justice Alito? Justice Sotomayor?

I, I just wanna pin down the area of dispute because I too believed that misbranding and registration were not inconsistent.

A claim by FIFRA that someone has mid-branded can come, can come even when, uh, registered.

You're taking the position, I think, that misbranding would be limited to things that are not covered by the registration, meaning you change the label, you add something to itYou change it in some way, correct?

And then the next day, they market it as labeled, and they could have that all be subject to a misbranding claim.

I think the problem is 136a(f)(2) because it also says, "A valid vir- uh, registration, however, is prima facie evidence that the pesticide's, uh, labeling and packaging comply with the registration provisions of FIRFRA," but it's prima facie.

It's not presumptive.

And so it seems to me if it's prima facie, it could be rebutted, that you, that FIRFRA could come in and say, "You misbranded 'cause you failed to tell us about this risk."

Yes

That's not what this does.

This identifies a place, a crime, a limited timeframe, but a timeframe.

So it's not a general warrant in its, its historical sense.

Why isn't this closer to the warrants that we've permitted with beepers, where we don't have a person or a necessarily a place in mind, but we have a location and general things? Why isn't that more consonant with Burger, Zucker, Caro, those lines of cases?

But just to defend this warrant for one second, uh, I think the court recognized in Scott, which is a case we cite in our brief, that which is under the Wiretap Act, not directly a Fourth Amendment case, but the same principle applies, that the-

Now, there's value, isn't there, in our saying something like or deciding we need a warrant? It has to be particular as to time, place, time, um, and it has to explain the reasons why those limitations are reasonable because that's always a part of a war- warrant search.

And wouldn't that have value for the dispute that's going on around the country and between and among judges, even on this court? Some said there was...

It rejected the precise argument that respondent is making here today.

Counsel, um, the statute says an alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the US unless the alien has done one of six things, okay? So it's not an alien seeking admission unless it's done one of those six things.

So the question becomes, if the US meets -- decides that there's a possibility that any group of aliens might have a conviction or might be -- have committed a crime of moral turpitude, the basis for that, well, for any reason the government they can think of, okay? And just willy-nilly paroles LPRs, l- people with green cards, into the US and says, "We're just not gonna let you a- be admitted.

We're gonna take away your green card.

You're gonna get it stamped, a stamped card with temporary admission." Is that reviewable?

Do you have it?" And the answer is no, which is the whole reason we're fighting this case, is because border officers are rarely going to be able to collect clear and convincing evidence.

What Justice Sullivan said is, allowing DHS to defer a parole eligibility- eligibility determination, a, and take a wait and see approach contingent on whether a convention, a conviction eventually ma- materializes effectively nullifies the clear command that LPR should be admitted.

That's the clear command of the statute.

Justice Sotomayor?

That's why they set forth statute of limitations.

Y- you often don't have, in regular course, um, a right to demand that someone enforce the law right away.

Yes, in some criminal cases you do, but that's what statute of limitations, it gives the persons with the legal right time to make the claim.

So I don't know what the problem with that is.

But I wanna answer or, or go back to Justice, uh, Gorsuch's question about whether there's jurisdiction here and why this is unusual.

In McLaughlin, we recognized that Congress often permits review of agency action pre-enforcement and post-enforcement, and we said that's perfectly natural.

Unless some other schemes provides otherwise.

Justice Sotomayor?

That's why they set forth statute of limitations.

Y-you often don't have, in regular course, um, a right to demand that someone enforce the law right away.

Yes, in some criminal cases you do, but that's what statute of limitations, it gives the persons with the legal right time to make the claim.

So I don't know what the problem with that is.

But I wanna answer or, or go back to Justice, uh, Gorsuch's question about whether there's jurisdiction here and why this is unusual.

In McLaughlin, we recognized that Congress often permits review of agency action pre-enforcement and post-enforcement, and we said that's perfectly natural.

Unless some other schemes provides otherwise.

We are debating that they have an, a right to the proceeds in question.

You, yeah, the problem I have with that is that, um, we've said, and Justice Thomas himself said in Le- Lehman, that, uh, even with profit-based remedies, without a showing of pecuniary loss, can be included in the compensation of compensatory relief.

The whole idea behind lost profits is you took my money, and you made money from it.

You're not entitled to that, 'cause you invaded my right to have that money, and maybe I wasn't as smart as you or as corrupt as you, and I didn't make that money, but you took it from me.

You invaded my legal rights.

[laughs]

But assuming you were to lose, there's two grounds.

One would be that eq- that disgorgement as an equitable remedy never required proof of pecuniary loss, and there's certainly quite a bit besides Restatement 3, quite a bit of thri- treatises and cases that support that conclusion.

We are debating that they have an, a right to the proceeds in question.

You, yeah, the problem I have with that is that, um, we've said, and Justice Thomas himself said in Le- Lehman, that, uh, even with profit-based remedies, without a showing of pecuniary loss, can be included in the compensation of compensatory relief.

The whole idea behind lost profits is you took my money, and you made money from it.

You're not entitled to that, 'cause you invaded my right to have that money, and maybe I wasn't as smart as you or as corrupt as you, and I didn't make that money, but you took it from me.

You invaded my legal rights.

[laughs]

But assuming you were to lose, there's two grounds.

One would be that eq- that disgorgement as an equitable remedy never required proof of pecuniary loss, and there's certainly quite a bit besides Restatement 3, quite a bit of thri- treatises and cases that support that conclusion.

And this court picked up on that in Elk Against Wilkins when it says, it uses, you know, completely subject to the political jurisdiction, not very regulatory jurisdiction.

What do you do with one Kim Ark's quote of Daniel Webster's? who said, independently of a residence, with intention to continue such residence, independently of any domiciliation, independently of the taking of any oath of allegiance or renouncing any former allegiance, it is well known that by the public law, a non-citizen, while he is here in the United States, owes obedience to this country's laws.

Now, the examples that Wong R. Kim used as exceptions are situations in which there was not temporary allegiance to the United States.

The children of foreign diplomats whose only allegiance was to their foreign country and or occupied territory residents, including those citizens in Maine and who had been occupied by the British forces.

The U.S. had no control over them.

And the whole theory of the Indian tribes was similar.

The Indian tribes were analogized to foreign diplomats.

Not until 1983 it changed.

And this court picked up on that in Elk Against Wilkins when it says, it uses, you know, completely subject to the political jurisdiction, not very regulatory jurisdiction.

What do you do with one Kim Ark's quote of Daniel Webster's? who said, independently of a residence, with intention to continue such residence, independently of any domiciliation, independently of the taking of any oath of allegiance or renouncing any former allegiance, it is well known that by the public law, a non-citizen, while he is here in the United States, owes obedience to this country's laws.

Now, the examples that Wong R. Kim used as exceptions are situations in which there was not temporary allegiance to the United States.

The children of foreign diplomats whose only allegiance was to their foreign country and or occupied territory residents, including those citizens in Maine and who had been occupied by the British forces.

The U.S. had no control over them.

And the whole theory of the Indian tribes was similar.

The Indian tribes were analogized to foreign diplomats.

Not until 1983 it changed.

Yes, no,

no, no.

My follow-up to that was I think What you're saying, given the transcript, is I think the judge believed he only had to find a race-neutral reason because he says that at the very beginning of this process.

He says, at times, a lot of times on Batson, I just have the state give race-neutral, I'm assuming he meant race-neutral reasons, as to all.

Right.

And she says, I think the jurisprudence simply states the court must make a determination on the basis of all the relevant circumstances to racial discrimination.

The judge then says, I'll have the state give race-neutral reasons.

All

And on this, I think Saxon is quite informative

on what is cross-border.

The problem is that we have too many cases that say you don't have to be the person who actually does the transport.

The baggage carrier that's unloading from an airplane hasn't transported the goods across the country.

interstate lines.

We have a slew of cases that talk about people who don't cross straight lines, so it's not that.

That process continues through loading and unloading.

I'm sorry.

But the issue ripened in the Civil War, and the issue ripened in such a way that every state required the ballot to be received into official custody by Election Day, and then that certainly informs what Congress is thinking in 1872 when they extend the presidential Election Day deadline to the congressional race.

Mr. Clement, what do I do with the two states during the Civil War? Rhode Island, Nevada, you say five favor you, at least two don't.

Nevada simply designated three of the highest officers in command, didn't swear them in, just said three officers in the command can create a ballot box or suitable receptacle for votes and collect the votes of the soldiers with little further formality.

Those military officers then would mail those ballots in and they would be counted whether they arrived on Election Day or after.

What do we do with Rhode Island that simply directed soldiers to deliver a written or printed ballot with the name of the person voted for to the officer commanding the regiment to which he belonged? That officer wasn't sworn in as a state official either, and receipt could happen thereafter.

So...

It's not – yes, many states believed, as they did at the time, that voting had to be in person, that voting had to be not – had to be by voice instead of by paper.

All ballots have to be received and the ballot box has to close on Election Day.

Yes.

The broker hires the company who's going to transport, says the company is negligent because it's had, I think, two or three accidents in the space of a month.

Drivers have, and it only has nine trucks.

And it has a driver who just that month had another crash where he was found negligent.

I don't see how someone hasn't failed in their duty.

Cecilie, do you know anything further?

There's, Amikai says somewhere between 6,000 to 9,000 motor carriers registered with the FMCSA every month.

You're going to tell me that they have the resources to check every one of those new entrants and all the existing ones to see whether they're following the rules? Yes.