Amicus Curiae Brief — Department of Homeland Security, et al., Petitioners v. Regents of the University of California, et al.

No. 17-1003

In the Supreme Court of the United States

U NITED S TATES D EPARTMENT OF H OMELAND

S ECURITY , ET AL ., PETITIONERS

v.

R EGENTS OF THE U NIVERSITY OF C ALIFORNIA , ET AL .

ON PETITION FOR A WRIT OF CERTIORARI BEFORE

JUDGMENT TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE STATES OF TEXAS, ALABAMA,

ARIZONA, ARKANSAS, FLORIDA, KANSAS,

LOUISIANA, NEBRASKA, SOUTH CAROLINA,

SOUTH DAKOTA, AND WEST VIRGINIA,

GOVERNOR PHIL BRYANT OF THE STATE OF

MISSISSIPPI, AND PAUL R. LEPAGE, GOVERNOR

OF MAINE, AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

SCOTT A. KELLER

Solicitor General

Counsel of Record

J. CAMPBELL BARKER

Deputy Solicitor General

ARI CUENIN

JOHN C. SULLIVAN

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@oag.texas.gov

(512) 936-1700

Q UE S TIO N S P R E S E N TE D

1. Whether the Acting Secretary’s decision to

wind down the DACA policy is judicially reviewable.

2. Whether the Acting Secretary’s decision to

wind down the DACA policy is lawful.

(I)

TA B LE O F C O N TE N T S

Page

Interest of amici curiae........................................................ 1

Summary of argument ......................................................... 3

Argument .............................................................................. 6

I. DACA’s wind-down satisfies Administrative

Procedure Act review (second question

presented). ..................................................................... 6

A. The district court misunderstood APA

review. ..................................................................... 6

B. Texas’s threatened litigation against DACA

raised compelling legal arguments rooted in

precedent, providing a non-arbitrary basis

for the Executive to wind down DACA. .............. 9

C. DACA is unlawful. ............................................... 15

1. DACA is substantively unlawful. ................ 15

2. DACA is procedurally unlawful, as

confirmed by plaintiffs’ own pleadings ....... 16

II. The district court was correct that the DACAwind-down memorandum is reviewable agency

action (first question presented). .............................. 23

III. The decision below warrants certiorari before

judgment. ..................................................................... 26

Conclusion ........................................................................... 27

(III)

IV

TA B LE O F A U TH O R I TIE S

Cases:

Ariz. Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011) ...................................................... 8

Ariz. Dream Act Coal. v. Brewer,

757 F.3d 1053 (9th Cir. 2014).................................... 24

Arizona v. United States,

567 U.S. 387 (2012) .................................................... 13

Chrysler Corp. v. Brown,

441 U.S. 281 (1979) .................................................... 17

Dunn-McCampbell Royalty Interest, Inc. v. Nat’l

Park Serv., 112 F.3d 1283 (5th Cir. 1997) ............... 26

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ...................................................... 8

Freytag v. Comm’r,

501 U.S. 868 (1991) ...................................................... 8

Heckler v. Chaney,

470 U.S. 821 (1985) ........................................ 23, 24, 25

Mach Mining, LLC v. EEOC,

135 S. Ct. 1645 (2015) ................................................ 23

Massachusetts v. EPA,

549 U.S. 497 (2007) ...................................................... 7

McLouth Steel Prods. Corp. v. Thomas,

838 F.2d 1317 (D.C. Cir. 1988) ................................. 17

Morton v. Ruiz,

415 U.S. 199 (1974) .............................................. 17, 22

Prof’ls & Patients for Customized Care v.

Shalala, 56 F.3d 592 (5th Cir. 1995) ........................ 17

Safe Air for Everyone v. U.S. EPA,

488 F.3d 1088 (9th Cir. 2007)...................................... 8

V

Syncor Int’l Corp. v. Shalala,

127 F.3d 90 (D.C. Cir. 1997) ..................................... 17

Texas v. United States, 809 F.3d 134 (5th Cir.

2015), aff’d sub nom. by an equally divided

court, United States v. Texas, 136 S. Ct. 2271

(2016) (per curiam) ........................................... passim

In re United States,

138 S. Ct. 371 (2017) .................................................... 2

Constitutional provision, statutes, and rules:

U.S. Const. art. II § 3 .......................................... 3, 6, 8, 19

Administrative Procedure Act:

5 U.S.C. § 551(4) ........................................................... 16

5 U.S.C. § 701(a)(2) ...................................................... 23

5 U.S.C. § 706(2)(A) ................................................. 4, 15

8 U.S.C. § 1611(b)(2)-(3)............................................ 19, 21

8 U.S.C. § 1621(d) ...................................................... 19, 21

28 U.S.C. § 2401(a) .......................................................... 26

8 C.F.R. § 1.3(a)(4)(vi) ..................................................... 25

45 C.F.R. § 152.2(4)(vi) ................................................... 25

Sup. Ct. R. 37 ..................................................................... 1

VI

Miscellaneous:

AG Paxton Leads 10-State Coalition Urging

Trump Administration to Phase Out

Unlawful Obama-Era DACA Program,

http://www.texasattorneygeneral.gov/news/

releases/ag-paxton-leads-10-state-coalitionurging-trump-administration-to-phase-out

(June 29, 2017) ................................................................ 9

Administrative Record, Regents of Univ. of Cal. v.

U.S. Dep’t of Homeland Sec., No. 3:17-cv05211 (N.D. Cal. Oct. 6, 2017), ECF No. 64-1 ............. 2

Josh Blackman, The Constitutionality of DAPA

Part I, 103 Geo. L.J. Online 96 (2015) ........................ 16

Br. for the State Respondents, United States v.

Texas, 136 S. Ct. 2271 (2016), 2016 WL

1213267 .......................................................................... 12

Br. for the States of Texas et al., Brewer v. Ariz.

Dream Act Coalition (May 1, 2017) (U.S. No.

16-1180), https://perma.cc/4SYG-3EX7 ......... 12, 13, 26

Br. for the United States as Amicus Curiae in

Opp. to Reh’g En Banc at 16, Ariz. Dream Act

Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014)

(No. 13-16248), ECF No. 75 ........................................ 24

3d Am. Complaint, Batalla Vidal v. Nielsen, No.

1:16-cv-4756 (E.D.N.Y. Dec. 11, 2017), ECF

No. 113 ........................................................................... 21

Complaint, California v. Dep’t of Homeland Sec.,

No. 3:17-cv-5235 (N.D. Cal. Sept. 11, 2017),

ECF No. 1 ..................................................................... 20

Complaint, Garcia v. United States, No. 3:17-cv5380 (N.D. Cal. Sept. 18, 2017), ECF No. 1............... 20

VII

Complaint, NAACP v. Trump, No. 1:17-cv-1907

(D.D.C. Sept. 18, 2017), ECF. No. 1 ........................... 21

Complaint, New York v. Trump, No. 1:17-cv-5228

(E.D.N.Y. Sept. 6, 2017), ECF. No. 1 .................. 21, 22

Complaint, Regents of Univ. of Cal. v. U.S. Dep’t

of Homeland Sec., No. 3:17-cv-5211 (N.D. Cal.

Sept. 8, 2017), ECF No. 1 ...................................... 17, 18

Complaint, Trs. of Princeton Univ. v. United

States, No. 1:17-cv-2325 (D.D.C. Nov. 3, 2017),

ECF No. 1 ..................................................................... 21

H.R. Rep. No. 99-682(I) (1986), reprinted in 1986

U.S.C.C.A.N.................................................................. 14

Oral Arg. Recording, Texas v. United States, 787

F.3d 733 (5th Cir. 2015) (No. 15-40238) ..................... 12

Pls.’ Stip. of Voluntary Dismissal, Texas v. United

States, No. 1:14-cv-00254 (S.D. Tex. Sept. 12,

2017), ECF No. 473 ........................................................ 2

IN TE R E S T O F AM IC I C UR I AE

Amici curiae are the States of Texas, Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Nebraska,

South Carolina, South Dakota, and West Virginia, Phil

Bryant, Governor of Mississippi, and Paul R. LePage,

Governor of Maine. 1

Plaintiffs’ goal in these lawsuits is to force the federal Executive Branch into retaining a “deferred action” program (DACA) that does much more than simply exercise enforcement discretion by deferring deportation proceedings. DACA affirmatively confers “lawful

presence” status and work-authorization eligibility on

over half a million aliens. DACA is thus materially identical to two programs (Expanded DACA and DAPA)

that were invalidated by the Fifth Circuit in a ruling

affirmed by an equally divided vote of this Court. See

Texas v. United States, 809 F.3d 134, 172, 184-86 (5th

Cir. 2015), aff’d by an equally divided court, 136 S. Ct.

2271 (2016) (per curiam).

Texas led the group of States successfully challenging Expanded DACA and DAPA. Texas then led the

group of States notifying the federal government that

they would challenge DACA on the same grounds if

0F

No counsel for any party authored this brief, in whole or in

part. No person or entity other than amici contributed monetarily to its preparation or submission. The parties received

timely notice of filing, and consents are on file with the

Court. See Sup. Ct. R. 37.

1

(1)

2

DACA was not wound down. A.R. 238-40. 2 And it was

because of the Executive’s September 2017 DACAwind-down memorandum that Texas and other States

agreed to dismiss their pending lawsuit. Pls.’ Stip. of

Voluntary Dismissal at 1, Texas v. United States, No.

1:14-cv-00254 (S.D. Tex. Sept. 12, 2017), ECF No. 473.

1F

A.R. cites the Administrative Record, filed as Notice of Filing Administrative Record, Regents of Univ. of Cal. v. U.S.

Dep’t of Homeland Sec., No. 3:17-cv-05211 (N.D. Cal. Oct. 6,

2017), ECF No. 64-1.

2

3

S U M M AR Y O F AR G U M E N T

This Court’s review of the second question presented is needed now to settle a pressing separation-ofpowers dispute: whether the federal Executive Branch

can unilaterally grant lawful-presence status and workauthorization eligibility to over half a million aliens otherwise unlawfully present and lacking work authorization. The Court already granted review on this question

in United States v. Texas, 136 S. Ct. 2271 (2016) (per

curiam) (affirming the Fifth Circuit’s decision by an

equally divided vote).

This separation-of-powers question continues to be

of national importance. It will control several pending

lawsuits arguing that the Executive may not wind down

the prior presidential administration’s controversial

DACA program, which was created by executive order.

This litigation is already occasioning unwarranted and

intrusive discovery requests. See In re United States,

138 S. Ct. 371 (2017) (granting mandamus blocking unwarranted discovery in the cases below). And the injunction below impairs the core objective of the challenged memorandum—to obviate further litigation on

DACA’s legality. Indeed, if the injunction is maintained

through June 2018, amici States will be forced to consider filing a lawsuit challenging the original 2012

memorandum creating DACA.

Furthermore, this Court’s review of whether DACA

validly exercises unilateral executive power is also presented and warranted in Arizona’s pending certiorari

petition in Brewer v. Arizona Dream Act Coalition, No.

16-1180. There, multiple amici States have urged the

Court to grant review, and the Court has called for the

4

views of the U.S. Solicitor General. The Court therefore

may wish to consider both the instant certiorari petition

and the Brewer petition at the same time.

The Executive has now decided to wind down

DACA after a new administration reexamined the legal

issues and concluded that DACA would likely be held

unlawful. A.R. 254-55. That decision easily clears Administrative Procedure Act review. Nobody argues that

anything in the Immigration and Nationality Act (INA)

or any other federal law requires DACA. So one cannot

maintain, as the district court held, that the challenged

action of cancelling DACA is itself “not in accordance

with law.” 5 U.S.C. § 706(2)(A). The APA would be unrecognizable and would violate the Take Care Clause as

applied if, as the district court believed, one judge’s

subsequent views on a debated legal question forecloses

the Executive from acting to rescind a controversial

policy that is not required by any law and that the Executive finds unconstitutional.

Nor does the Executive act arbitrarily or capriciously by rescinding a prior administration’s policy

that is not required by law and is subject to a credible

legal challenge. If a legal challenge presents a goodfaith basis for questioning a prior administration’s legal

judgment for a policy originally justified as an exercise

of discretion, then withdrawing the challenged policy

cannot possibly be “arbitrary” or “capricious.” 5 U.S.C.

§ 706(2)(A). That principle applies here. At a minimum,

there is room for reasonable disagreement on the legality of DACA. That is shown by the success of the challenges brought by Texas and other States to Expanded

DACA and DAPA. After this divided Court affirmed

the Fifth Circuit’s decision agreeing with those chal-

5

lenges, Texas then explained, in publicly available documents, how DACA is unlawful on the same grounds.

In all events, DACA is unlawful for the same reasons that Expanded DACA and DAPA were held unlawful in the previous Texas litigation. See 809 F.3d at

172, 184-86. In fact, plaintiffs’ own pleadings here confirm that DACA was unlawful to begin with because it

altered substantive rights yet was issued without the

required APA notice-and-comment procedure. The Executive cannot be ordered to maintain such an unlawful

program. Thus, even on plaintiffs’ view of notice-andcomment requirements, the district court’s injunction

forcing the Executive Branch to continue with DACA

cannot be justified.

The district court was, however, correct that the

Executive Branch’s decision to wind down DACA is reviewable under the APA. Because the creation of DACA

is reviewable agency action—not mere prosecutorialdiscretion inaction—cancelling that benefits-granting

program is likewise more than mere inaction. In each

case, the Executive took action that provides a focus for

judicial review. Thus, the Court should reject plaintiffs’

APA challenge on the merits—but not on reviewability

grounds.

The Court should grant the petition for certiorari

before judgment and reverse the district court’s order

enjoining the Executive from implementing its decision

to wind down DACA.

6

AR G UM E N T

I.

DACA’s Wind-down Satisfies Administrative

Procedure Act Review (Second Question Presented).

A. The district court misunderstood APA review.

The district court concluded that “[t]he agency action was ‘not in accordance with law’ because it was

based on the flawed legal premise that the agency

lacked authority to implement DACA.” Pet. App. 42a;

see also Pet. App. 62a (concluding that acting on the

Executive’s changed view of its authority to create

DACA was “arbitrary, capricious, and an abuse of discretion”).

But a single judge’s subsequent views on a debated

legal question about a prior, unilateral executive action

does not foreclose the Executive from rescinding that

action in favor of an undisputedly lawful policy. The district court cited no authority supporting that view of the

APA, which would violate the Executive’s Take Care

Clause responsibilities.

1. One initial point should be indisputable: Rescinding “deferred action”—however one may define

that phrase—is not itself contrary to law. No provision

of federal law requires DACA. The district court identified nothing in the INA that prohibits the Executive

from deciding not to issue or renew deferred-action status. Even the Obama Administration’s defense of

DACA, Expanded DACA, and DAPA emphasized that

their benefits could be rescinded at any time. See, e.g.,

A.R. 16 (Office of Legal Counsel memorandum).

Of course, Texas maintained that these programs

were still unlawful. But even the Obama Administration

7

agreed that not granting deferred action is not contrary

to law. Hence, the district court erred in stating that

“[t]he agency action” under review is itself “not in accordance with law.” Pet. App. 42a.

2. Rather than reviewing whether the actual

agency action under review accords with law, the district court undertook a different analysis. It reasoned

that an agency action, even if itself not contrary to law,

can be invalidated if the agency’s action was prompted

by a legal view with which a judge later disagrees, but

which is the subject of reasonable debate and is the basis of a substantial dispute that the agency’s lawful policy avoids. See Pet. App. 42a-43a. The district court

failed to cite any decision supporting that remarkable

conception of APA review.

Massachusetts v. EPA, 549 U.S. 497 (2007), provides no support for the district court’s view of APA review. Cf. Pet. App. 42a. Unlike in Massachusetts, no one

takes the position that federal law requires the agency

to have or maintain the policy at issue here (DACA).

Pet. 32; see Massachusetts, 549 U.S. at 533 (holding

that the agency “refused to comply” with a “statutory

command”). Moreover, in Massachusetts, the statutory

text was “unambiguous” and “clear” as to the agency’s

duty. 549 U.S. at 528, 531. In contrast, DHS certainly

did not have “unambiguous” statutory authority to create DACA. See, e.g., Pet. 27, 28. At a minimum, that

question is subject to reasonable debate. See infra Part

I.B.

The Ninth Circuit case cited by the district court

also is not on point. See Pet. App. 42a. There, the Ninth

Circuit simply reviewed state law where the permissibility of the agency action under review was justified

8

based on a certain conclusion of state law. Safe Air for

Everyone v. U.S. EPA, 488 F.3d 1088, 1091 (9th Cir.

2007). The agency there was not avoiding challenges to

the legality of past policies by taking an undisputedly

lawful approach going forward.

The existence of credible questions about agency

authority to take prior unilateral action that is undisputedly not required by law allows the agency to avoid

litigation about that prior action by rescinding it. See,

e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502,

515 (2009) (agency need not meet higher standard for

rescinding an existing rule than is required to adopt the

rule in the first place). The district court failed to cite

any decision applying the APA’s “not in accordance

with law” standard to block such agency action.

Applying the APA in that manner would intrude on

the President’s independent Article II obligation to ensure “that the Laws be faithfully executed.” U.S. Const.

art. II § 3; see Ariz. Christian Sch. Tuition Org. v.

Winn, 563 U.S. 125, 133 (2011) (“The legislative and executive departments of the Federal Government, no

less than the judicial department, have a duty to defend

the Constitution.”); Freytag v. Comm’r, 501 U.S. 868,

906 (1991) (Scalia, J., concurring) (noting the President’s power of constitutional review in making enforcement decisions). When the Executive determines

that a prior unilateral executive action is unconstitutional and discontinues it, judicial review under the

APA should be limited to whether the law affirmatively

requires the prior action to be maintained. And here,

nothing in the INA or other federal law requires a program like DACA.

9

B. Texas’s threatened litigation against DACA

raised compelling legal arguments rooted in

precedent, providing a non-arbitrary basis for

the Executive to wind down DACA.

1. An agency does not act arbitrarily or contrary

to law by rescinding a prior policy of dubious validity

that is challenged in litigation, when no law affirmatively mandates the continued existence of that prior policy.

This is especially true here where the Executive tried to

justify that prior policy as merely an exercise of executive discretion. A non-arbitrary basis for the Executive

Branch’s decision to wind down DACA is manifest: The

State of Texas made clear, in a publicly available letter,

that it would sue to challenge DACA if the Executive

Branch did not wind it down.

On June 29, 2017, the Texas Attorney General, nine

other State Attorneys General, and one Governor sent a

letter to the federal Executive Branch proposing a

DACA wind-down as a way to end the States’ existing

Texas litigation challenging the Executive’s ability to

unilaterally confer lawful presence and work authorization. That letter is in the administrative record. A.R.

238-40.

On the same day that the Texas Attorney General

sent the letter, he issued a press release that made the

letter public. 3 It explained:

2F

AG Paxton Leads 10-State Coalition Urging Trump Administration to Phase Out Unlawful Obama-Era DACA Program, https://www.texasattorneygeneral.gov/news/releases/agpaxton-leads-10-state-coalition-urging-trump-administrationto-phase-out (June 29, 2017).

3

10

In a letter sent today to the U.S. Attorney

General, Texas Attorney General Ken Paxton,

nine other state attorneys general and the governor of Idaho urged the Trump Administration to phase out the unlawful Obama-era Deferred Action for Childhood Arrival (DACA)

program, which confers lawful presence and

work permits for nearly one million unlawfully

present aliens in the U.S.

....

Attorney General Paxton and the coalition

promised to voluntarily dismiss their lawsuit

challenging unlawful deferred-action programs

currently pending in district court if the Trump

Administration agrees by September 5 to rescind DACA and not renew or issue any new

DACA permits in the future.

The letter itself made crystal clear why DACA was unlawful:

As you know, this November 20, 2014

memorandum creating DAPA and Expanded

DACA would have granted eligibility for lawful

presence and work authorization to over four

million unlawfully present aliens. Courts

blocked DAPA and Expanded DACA from going into effect, holding that the Executive

Branch does not have the unilateral power to

confer lawful presence and work authorization

on unlawfully present aliens simply because the

Executive chooses not to remove them. Rather,

“[i]n specific and detailed provisions, the [Immigration and Nationality Act] expressly and

11

carefully provides legal designations allowing

defined classes of aliens to be lawfully present.”

Texas v. United States, 809 F.3d 134, 179 (5th

Cir. 2015), aff’d by an equally divided court,

136 S. Ct. 2271 (2016) (per curiam). “Entirely

absent from those specific classes is the group

of 4.3 million illegal aliens who would be eligible

for lawful presence under DAPA.” Id. Likewise,

“[t]he INA also specifies classes of aliens eligible and ineligible for work authorization . . .

with no mention of the class of persons whom

DAPA would make eligible for work authorization.” Id. at 180-81. Thus, “DAPA is not authorized by statute,” id. at 184, and “DAPA is foreclosed by Congress’s careful plan,” id. at 186.

For these same reasons that DAPA and

Expanded DACA’s unilateral Executive Branch

conferral of eligibility for lawful presence and

work authorization was unlawful, the original

June 15, 2012 DACA memorandum is also unlawful. The original 2012 DACA program covers over one million otherwise unlawfully present aliens. Id. at 147. And just like DAPA,

DACA unilaterally confers eligibility for work

authorization, id., and lawful presence without

any statutory authorization from Congress.

A.R. 238-39.

This letter thus (1) threatened litigation over DACA

and (2) gave a substantive explanation providing legal

arguments, based on precedent, as to why DACA was

unlawful. Even if this letter were the only cited reason

for the Executive’s challenged action here, it would

12

provide a non-arbitrary, non-capricious, and perfectly

valid basis for the federal Executive Branch’s decision

to wind down DACA.

2. Texas has consistently, clearly, and publicly explained for years how DACA is unlawful. The June 2017

letter’s explanation of DACA’s illegality was based on

Texas’s victory, leading a 26-State coalition, in challenging the materially identical Expanded DACA and

DAPA programs. See, e.g., Texas, 809 F.3d at 174 n.139

(“DACA is an apt comparator to DAPA.”). In that litigation, as early as April 2015, counsel of record told the

Fifth Circuit that DACA was required to go through

APA notice-and-comment procedure. Oral Arg. at

1:16:01-10, Texas v. United States, 787 F.3d 733 (5th

Cir. 2015) (No. 15-40238), http://www.ca5.uscourts.gov

/OralArgRecordings/15/15-40238_4-17-2015.mp3 (stay

proceedings).

Even more recently, Texas filed a brief for a 13State coalition urging the Court to grant certiorari in

Brewer v. Arizona Dream Act Coalition, No. 16-1180.

See Br. for the States of Texas et al., Brewer, supra

(May 1, 2017) (“Texas Brewer Br.”), https://perma.cc/

4SYG-3EX7. Those amici States explicitly maintained

that DACA was unlawful—based on the same substantive and procedural arguments successfully made by

the 26-State coalition in the Texas litigation regarding

Expanded DACA and DAPA. See Br. for the State Respondents at 44-70, United States v. Texas, 136 S. Ct.

2271 (2016) (No. 15-674), 2016 WL 1213267 (“Texas

DAPA Br.”).

The Brewer amici States pointed out that DACA is

unlawful because “Deferred action under DACA is

much more than just a decision not to pursue removal of

13

the alien.” Texas Brewer Br. at 3. First, the Executive

deems deferred action under DACA to confer “lawful

presence.” Id. Conferring that legal status is more than

mere inaction. As the States highlighted, Congress used

the status of “lawful presence” (or “unlawful presence”)

as the predicate for numerous consequences, such as

removability, id. at 9; a 3-year or 10-year reentry bar,

id. at 10-11; eligibility for “advance parole,” id. at 11;

and eligibility for numerous federal benefits, id. at 1213. Those consequences turn on the “lawful presence”

status conferred unilaterally by the Executive under

DACA (and DAPA).

Yet, rather than leaving it to the Executive to determine when aliens may be lawfully present in the

country, Congress delineated over 40 classes of lawfully

present aliens and created other specific, statutorilydefined avenues for aliens to obtain lawful presence—

none of which apply here. Id. at 8-9. Congress’s exercise

of that power reflects that policies pertaining to aliens’

right to remain in this country are “entrusted exclusively to Congress,” not the Executive. Id. at 7 (quoting Arizona v. United States, 567 U.S. 387, 409 (2012)). As the

States explained:

The Executive has no power to unilaterally

“create immigration classifications” that authorize aliens’ presence in this country because

“the INA expressly and carefully provides legal

designations allowing defined classes of aliens

to be lawfully present,” Texas, 809 F.3d at 179.

DACA violates the INA just like the materially

identical DAPA program.

Id. (citation omitted).

14

Similarly, the States explained that DACA violated

statutes governing which aliens are authorized to work

in this country:

[W]hen Congress wanted to provide workauthorization eligibility to four narrow classes

of deferred-action recipients, it did so by statute. Otherwise, the 1986 IRCA “prohibit[s] the

employment of aliens who are unauthorized to

work in the United States because they either

entered the country illegally, or are in an immigration status which does not permit employment.” H.R. Rep. No. 99-682(I), at 46, 51-52

(1986), reprinted in 1986 U.S.C.C.A.N. 5649,

5650, 5655-56 (emphasis added).

Id. at 15-16 (footnote omitted). And the States surveyed

various historical practices, explaining how they could

not support DACA’s unilateral conferral of lawful presence and work authorization. Id. at 18-20.

At the very least, this substantial analysis created

good-faith, legitimate grounds to doubt that DACA was

lawful. That conclusion made it entirely proper for the

Executive to conclude that “it is likely that potentially

imminent litigation would yield similar results with respect to DACA” as with respect to Expanded DACA

and DAPA, which had already been enjoined. A.R. 254.

Even the district court below conceded that Expanded DACA modified the original DACA program in

only three “minor ways.” Pet. App. 14a. Yet the district

court’s conclusion that “the DAPA litigation [in the

Fifth Circuit] was not a death knell for DACA,” Pet.

App. 54a, ignored that the Fifth Circuit affirmed the

injunction of, not just DAPA, but also of Expanded

15

DACA. See Texas, 809 F.3d at 147 n.11 (Fifth Circuit’s

notation that its opinion uses “DAPA” to include Expanded DACA). Thus, the unrebutted consequence of

the district court’s own observation—that Expanded

DACA is substantially identical to DACA—is that the

Fifth Circuit’s basis for affirming the injunction of the

former applies to both programs.

The Executive’s decision to wind down DACA rested on an entirely non-arbitrary judgment about the

likely fate of DACA in litigation. Avoiding litigation by

rescinding a prior executive policy that is not required

by law cannot be blocked as agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A).

C. DACA is unlawful.

In all events, DACA is unlawful in the first place.

The scant grounds on which the district court relied to

conclude that DACA is lawful do not withstand scrutiny.

1.

DACA is substantively unlawful.

As explained above, DACA is substantively unlawful for the same reasons that the Fifth Circuit held Expanded DACA and DAPA unlawful. See supra Part I.B.

The district court’s claim of purported differences that

can save DACA is mistaken. Pet. App. 50a-54a.

First, the district court relied on the fact that

DACA applies to a smaller number of aliens than

DAPA. Pet. App. 54a. But DAPA and DACA’s unlawfulness turns on those programs unilaterally conferring

lawful presence and access to work authorization—not

on their comparative size. Texas, 809 F.3d at 178-86.

Moreover, even were it relevant, DACA and DAPA

16

both far exceed the size of any prior deferred-action

program. See Texas DAPA Br. 53-59.

The district court also observed that Congress has

provided a (demanding) path to lawful presence for

some aliens covered by DAPA, while not providing any

path at all for the aliens covered by DACA. Pet. App.

54a. But that only undermines the district court’s position. It means that DACA has even fewer arguments to

support it than did DAPA. See Josh Blackman, The

Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action, 103 Geo. L.J. Online 96,

116 (2015). Whereas past instances of deferred action

had been defended on the ground that they were stopgap measures to ultimate lawful status theoretically obtainable under existing law, see Texas, 809 F.3d at 18485 & n.197, the district court’s own findings show that

DACA cannot possibly be defended on that basis.

DACA clearly flouts Congress’s detailed scheme for

conferring lawful presence.

2.

DACA is procedurally unlawful, as confirmed by plaintiffs’ own pleadings.

Plaintiffs’ own pleadings in this litigation confirm

that DACA is also procedurally unlawful (even assuming arguendo executive power to create it) because

DACA was a substantive rule that had to go through

APA notice-and-comment procedure.

Nobody has disputed that DACA is a “rule” for

APA purposes. 5 U.S.C. § 551(4). Accordingly, DACA

had to be issued through notice-and-comment procedure if it was a substantive rule rather than a mere

“‘general statement[] of policy.’” Texas, 809 F.3d at 171

(alteration in original). The key distinction between pol-

17

icy statements and substantive rules is that policy

statements cannot be “binding.” Chrysler Corp. v.

Brown, 441 U.S. 281, 302 (1979); accord Syncor Int’l

Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (“We

thus have said that policy statements are binding on

neither the public . . . nor the agency.”); see Texas

DAPA Br. at 61-62.

A rule is binding if it creates or modifies “rights

and obligations.” E.g., Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995),

McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317,

1320 (D.C. Cir. 1988). In Morton v. Ruiz, 415 U.S. 199

(1974), this Court held that a vastly more modest rule

concerning benefits eligibility “affect[ed] individual

rights and obligations” and therefore had to be treated

as a substantive rule. Id. at 232. The same is true of

DACA, under plaintiffs’ own pleadings.

a. This case involves orders entered in five consolidated actions and, therefore, multiple plaintiffs. See

Pet. App. 19a. The University of California plaintiffs

here contend that the DACA-wind-down memorandum

“constitutes a substantive rule subject to APA’s noticeand-comment requirements.” Complaint at 14, Regents

of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No.

3:17-cv-5211 (N.D. Cal. Sept. 8, 2017), ECF No. 1.

But that could be true only if the creation of DACA

was itself a substantive rule—one “affecting individual

rights and obligations.” Ruiz, 415 U.S. at 232. After all,

if DACA were not a substantive rule that changed the

rights of recipients, then winding down this program

also could not be a substantive rule changing rights.

Plaintiffs, however, allege that DACA is just such a

18

substantive rule. First, plaintiffs admit that DACA purports to unilaterally confer lawful presence:

Individuals with DACA status were “not considered to be unlawfully present during the period in which deferred action [was] in effect.”

USCIS FAQs.

Complaint at 8, Regents of Univ. of Cal., No. 3:17-cv5211, ECF No. 1. And plaintiffs admit that aliens with

DACA status would not have been able—but for

DACA—to lawfully “obtain jobs and access to certain

Social Security and Medicare benefits.” Id. at 2. The

necessary implication of those pleadings is that DACA

was unlawful the entire time, as it issued without required APA notice-and-comment procedure.

Plaintiffs point to no requirement that the government must use notice-and-comment procedure to rescind a policy whose issuance needed but did not receive

that procedure. If the APA somehow required the federal Executive Branch to continue enforcing an unlawful policy while notice-and-comment procedure was

used for the first time to rescind the policy, then the

APA would be unconstitutional as applied to that unlawful policy.

b. The State of California plaintiffs here likewise

essentially plead that DACA’s attributes meet the test

for a substantive rule requiring APA notice-andcomment procedure. For instance, these plaintiffs plead

that “DACA Provides Numerous Benefits,” which are

described in detail:

19

82. DACA grantees are provided with numerous benefits. Most importantly, they are

granted the right not to be arrested or detained

based solely on their immigration status during

the designated period of their deferred action.

83. DACA grantees are granted eligibility

to receive employment authorization.

84. DACA also opened the door to allow

travel for DACA grantees. For example, DACA

grantees were allowed to briefly depart the

U.S. and legally return under certain circumstances, such as to visit an ailing relative, attend funeral services for a family member, seek

medical treatment, or further educational or

employment purposes. Travel for vacation is

not permitted.

85. Unlike other undocumented immigrants, DACA grantees are not disqualified on

the basis of their immigration status from receiving certain public benefits. These include

federal Social Security, retirement, and disability benefits. See 8 U.S.C. §§ 1611(b)(2)-(3),

1621(d). As a result, and in reliance on DHS’s

oft-stated position that DACA and similar programs are a lawful exercise of the agency’s authority, Plaintiff States have structured some

schemes around DACA which allow, for example, applicants to demonstrate eligibility for

state programs by producing documentation

that they have been approved under DACA.

The rescission of DACA undermines such regulatory frameworks.

20

86. DACA grantees are able to secure equal

access to other benefits and opportunities on

which Americans depend, including opening

bank accounts, obtaining credit cards, starting

businesses, purchasing homes and cars, and

conducting other aspects of daily life that are

otherwise often unavailable for undocumented

immigrants.

Complaint at 17-18, California v. Dep’t of Homeland

Sec., No. 3:17-cv-5235 (N.D. Cal. Sept. 11, 2017), ECF

No. 1 (emphases added; citations omitted). The Garcia

plaintiffs here admit the same thing. Complaint at 9

¶ 27, Garcia v. United States, No. 3:17-cv-5380 (N.D.

Cal. Sept. 18, 2017), ECF No. 1 (“DACA confers numerous important benefits on those who apply for and

are granted DACA status.”) (emphases added).

Furthermore, the California plaintiffs state that

the APA does not allow policies to remain in effect when

they are “predicated on an incorrect legal premise.”

Complaint at 22 ¶ 106, California, No. 3:17-cv-5235,

ECF No. 1. In other words, these plaintiffs agree that

the APA does not allow ultra vires actions. Since DACA

is ultra vires action even on plaintiffs’ view—because it

issued without notice-and-comment procedure—

plaintiffs cannot obtain the relief they seek of DACA’s

continued operation.

21

c. In addition to the five challenges pending in the

Northern District of California, at least four other

pending lawsuits challenge the DACA-wind-down

memorandum. Complaint, Trs. of Princeton Univ. v.

United States, No. 1:17-cv-2325 (D.D.C. Nov. 3, 2017),

ECF No. 1; Complaint, NAACP v. Trump, No. 1:17-cv1907 (D.D.C. Sept. 18, 2017), ECF No. 1; 3d Am. Complaint, Batalla Vidal v. Nielsen, No. 1:16-cv-4756

(E.D.N.Y. Dec. 11, 2017), ECF No. 113; Complaint,

New York v. Trump, No. 1:17-cv-5228 (E.D.N.Y. Sept.

6, 2017), ECF. No. 1. Plaintiffs in those cases similarly

have pleaded, in substance, that DACA was unlawful

from the outset because it confers substantive rights

yet was issued without notice-and-comment procedure.

Plaintiffs in the New York lawsuit plead that DACA

affirmatively confers benefits—that is, that DACA alters substantive rights:

[¶] 218. DACA confers numerous benefits

on DACA grantees. Notably, DACA grantees

are granted the right not to be arrested or detained based solely on their immigration status

during the time period their deferred action is

in effect.

....

[¶] 220. DACA grantees are eligible to receive certain public benefits. These include Social Security, retirement, and disability benefits, and, in certain states, benefits such as

driver’s licenses or unemployment insurance.

See 8 U.S.C. §§ 1611(b)(2)-(3), 1621(d). In the

State of Washington, DACA holders also are eligible for certain state financial aid programs

22

and state-funded food assistance. In the State

of New York, DACA holders are eligible for

teaching and nursing licenses.

Complaint at 41, New York, No. 1:17-cv-5228, ECF No.

1 (emphases added; citations omitted).

Accordingly, these plaintiffs essentially admit that

DACA needed to go through APA notice-and-comment

procedure because it was a substantive rule modifying

rights:

[¶] 289. In implementing the DHS Memorandum, federal agencies have changed the

substantive criteria by which individual DACA

grantees work, live, attend school, obtain credit, and travel in the United States. Federal

agencies did not follow the procedures required

by the APA before taking action impacting

these substantive rights.

Id. at 54.

If DACA’s rescission “affect[ed] individual rights

and obligations,” Ruiz, 415 U.S. at 232, as these plaintiffs agree, then DACA’s creation did so too and was

thus unlawful all along. DACA therefore cannot be enforced now, so plaintiffs cannot obtain the relief they

seek.

23

II. The District Court Was Correct that the DACAWind-down Memorandum Is Reviewable Agency Action (First Question Presented).

On the first question presented, the district court

was right that the Executive’s decisions to create and,

later, to wind down DACA are reviewable agency actions under the APA. Amici States disagree with the

Executive’s unreviewability argument under 5 U.S.C.

§ 701(a)(2). See Pet. 16-24. This is essentially the same

unreviewability argument that the Executive raised,

and lost, in the Texas litigation. See Texas, 809 F.3d at

163-70; Texas DAPA Br. at 38-44.

The APA contains a limited exception barring judicial review when an agency decision is “committed to

agency discretion by law.” 5 U.S.C. § 701(a)(2). This exception is “very narrow.” Heckler v. Chaney, 470 U.S.

821, 830 (1985). There is a “strong presumption favoring

judicial review of administrative action.” Mach Mining,

LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (quotation

marks omitted).

Unreviewability under Heckler applies only to “an

agency’s refusal to take . . . action,” such as “an agency’s

decision not to take enforcement action.” 470 U.S. at

831, 832. Heckler thus held that a plaintiff could not use

the APA to force the Food and Drug Administration to

take enforcement actions related to lethal-injection

drugs. Id. at 827. In contrast, “when an agency does

act,” the “action itself provides a focus for judicial review” and “can be reviewed to determine whether the

agency exceeded its statutory powers.” Id. at 832.

24

Here, the Executive did not violate the law in acting

to wind down DACA. See supra Part I.A. Plaintiffs’ underlying claims are therefore meritless.

But the district court was correct that the Executive’s memorandum winding down DACA is reviewable

under the APA. The Executive here essentially reraises the same unreviewability argument that it made

and lost in the Texas litigation regarding Expanded

DACA and DAPA. Namely, the Executive asserts that

these programs are merely prosecutorial discretion, unreviewable under Heckler. See, e.g., Pet. 17 (characterizing DACA as a mere “policy of civil non-enforcement”

committed to the Executive’s discretion).

That argument is incorrect, as the Fifth Circuit

held when addressing it in Texas. 809 F.3d at 169 (holding that Expanded DACA and DAPA do not qualify for

the “committed to agency discretion by law” exception

to reviewability). DACA is not merely an exercise of

prosecutorial discretion. DACA creates a massive bureaucracy to grant applicants a host of benefits—

including lawful presence, related benefits eligibility,

and work authorization. See id. at 184 (“The INA flatly

does not permit the [Executive to deem] aliens as lawfully present and thereby make them newly eligible for

a host of federal and state benefits.”).

The Executive’s certiorari petition elsewhere admits that DACA “confer[s] on [aliens] affirmative benefits (including work authorization).” Pet. 12. Likewise,

the Executive previously acknowledged that DACA

“deferred action status” is a “lawful status.” Br. for the

United States as Amicus Curiae in Opp. to Reh’g En

Banc at 16, Ariz. Dream Act Coal. v. Brewer, 757 F.3d

1053 (9th Cir. 2014) (No. 13-16248), ECF No. 75. And

25

the Executive’s own benefits regulations establish a

“deferred action status.” 8 C.F.R. § 1.3(a)(4)(vi); 45

C.F.R. § 152.2(4)(vi).

Creating a program conferring a legal status with

numerous benefits and work authorization is affirmative governmental action and does not qualify for the

narrow Heckler reviewability exception, as the Fifth

Circuit correctly held. As counsel for the Executive

conceded in district court in Texas with respect to

DAPA, such a program ‘“works in a way that’s different

than . . . prosecutorial discretion’ because it grants inducements ‘for people to come out and identify themselves.”’ Texas DAPA Br. 39 (quoting government

counsel’s statement reproduced at page 716 of the joint

appendix there).

The Executive does not dispute that reviewability

here rises or falls on the same basis as the reviewability

of the memoranda creating DACA and DAPA. See Pet.

17 (“Like the decision to adopt a policy of selective nonenforcement, the decision to retain such a policy [is unreviewable].”). Because the directive creating DACA is

reviewable, so is the directive rescinding it. In both cases, the Executive’s memorandum creating or rescinding

the program provides a “focus for judicial review.”

Heckler, 470 U.S. at 832.

Amici explain their position on this reviewability

question because it matters to APA jurisprudence more

broadly. The district court should not be reversed on

the basis that the DACA-wind-down memorandum is

unreviewable under the APA (first question presented).

Rather, the district court should be reversed because

the DACA-wind-down memorandum is not arbitrary,

26

capricious, or otherwise contrary to law (second question presented).

III. The Decision Below Warrants Certiorari Before

Judgment.

The Court should grant certiorari before judgment.

Without this Court’s prompt intervention, the district

court’s injunction could last for over a year—frustrating

the very purpose of the Executive’s decision to promptly terminate disputes about the legality of a controversial past policy.

Indeed, if the litigation challenging the DACAwind-down memorandum persists through June of this

year, Texas will be forced to consider whether to file

suit challenging the June 15, 2012 memorandum creating DACA and its continued implementation. Texas will

be forced to consider bringing that challenge by June

15, 2018, in order to avoid issues about possible application of the six-year statute of limitations in 28 U.S.C.

§ 2401(a). See Dunn-McCampbell Royalty Interest, Inc.

v. Nat’l Park Serv., 112 F.3d 1283, 1286 (5th Cir. 1997).

That will only further multiply the present burdens to

the courts from the existing litigation and could result

in an injunction abruptly ending DACA, rather than

winding it down as directed by the Executive in the

memorandum challenged here.

Review of DACA’s legality is also presented and

warranted in Arizona’s pending certiorari petition in

Brewer v. Arizona Dream Act Coalition, No. 16-1180,

which is ripe for the Court’s review. See Texas Brewer

Br. at 1-26. Accordingly, the Court may wish to consider both the instant certiorari petition and the Brewer

petition at the same time.

27

C O N C L U S IO N

The petition for a writ of certiorari before judgment

should be granted.

Respectfully submitted.

STEVE MARSHALL

Attorney General of

Alabama

KEN PAXTON

Attorney General of

Texas

MARK BRNOVICH

Attorney General of

Arizona

JEFFREY C. MATEER

First Assistant

Attorney General

LESLIE RUTLEDGE

Attorney General of

Arkansas

SCOTT A. KELLER

Solicitor General

Counsel of Record

PAMELA JO BONDI

Attorney General of

Florida

J. CAMPBELL BARKER

Deputy Solicitor General

DEREK SCHMIDT

Attorney General of

Kansas

JEFF LANDRY

Attorney General of

Louisiana

BRENT DAVIS

Chief Counsel to the

Governor of Maine

ARI CUENIN

JOHN C. SULLIVAN

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@oag.texas.gov

(512) 936-1700

28

PHIL BRYANT

Governor of

Mississippi

DOUG PETERSON

Attorney General of

Nebraska

ALAN WILSON

Attorney General of

South Carolina

MARTY J. JACKLEY

Attorney General of

South Dakota

PATRICK MORRISEY

Attorney General of

West Virginia

JANUARY 2018