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

Supreme Court briefAug 23, 2019

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Nos. 18-587, 18-588, 18-589

IN THE

Supreme Court of the United States

DEP’T OF H OMELAND SECURITY, et al., Petitioners

REGENTS OF THE UNIV. OF CALIFORNIA, et al., Respondents

-----DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

et al., Petitioners

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, et al., Respondents

-----KEVIN K. MC ALEENAN, ACTING SECRETARY OF H OMELAND

SECURITY, et al., Petitioners

MARTIN JONATHAN BATALLA VIDAL, et al., Respondents

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE NINTH, D.C., AND SECOND CIRCUITS

BRIEF OF AMICUS CURIAE CENTER FOR

CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS

JOHN C. EASTMAN

Counsel of Record

ANTHONY T. CASO

The Claremont Institute’s

Center for Constitutional

Jurisprudence

c/o Dale E. Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

(877) 855-3330

jeastman@chapman.edu

Counsel for Amicus Curiae

Center for Constitutional Jurisprudence

QUESTIONS PRESENTED

This dispute concerns the policy of immigration enforcement discretion known as Deferred Action for

Childhood Arrivals (DACA). In 2016, this Court affirmed, by an equally divided vote, a decision of the

Fifth Circuit holding that two related Department of

Homeland Security (DHS) discretionary enforcement

policies, including an expansion of the DACA policy,

were likely unlawful and should be enjoined. See

United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). In September 2017, DHS determined that the

original DACA policy was unlawful and would likely

be struck down by the courts on the same grounds as

the related policies. DHS thus instituted an orderly

wind-down of the DACA policy. The questions presented are as follows:

1. Whether DHS’s decision to wind down the

DACA policy is judicially reviewable.

2. Whether DHS’s decision to wind down the

DACA policy is lawful.

This amicus curiae brief addresses the second question presented.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........................................i

TABLE OF AUTHORITIES ........................................ iii

INTEREST OF AMICUS CURIAE ..............................1

SUMMARY OF ARGUMENT.......................................1

ARGUMENT ...................................................................2

I. The DACA Program That President Trump’s

Administration Seeks to Rescind Was Itself

Legally and Even Constitutionally Infirm. ........... 2

A. The Immigration and Nationality Act

mandates removal of unauthorized aliens....... 2

B. DACA and DAPA are both categorical, and

therefore unconstitutional, suspensions of the

law......................................................................... 6

C. The provision of benefits and a “lawful” status

are beyond the scope of prosecutorial

discretion............................................................ 13

II. A Discretionary Decision Not To Enforce The Law

Cannot Give Rise To A Reliance Interest In

Continued (And Certainly Not In Perpetual) NonEnforcement. ........................................................... 22

CONCLUSION .............................................................24

iii

TABLE OF AUTHORITIES

Cases

Adams v. Richardson,

480 F.2d 1159 (1973) ..................................................7

Blodgett v. Holden,

275 U.S. 142 (1927) ..................................................20

Chamber of Commerce of U.S. v. Whiting,

131 S. Ct. 1968 (2011) ..............................................17

Clinton v. New York,

524 U.S. 417 (1998) ..................................................21

Crane v. Napolitano, 3:12-CV-03247-O,

2013 WL 1744422 (N.D. Tex. Apr. 23, 2013) ......5, 6

Crowley Caribbean Transp., Inc. v. Pena,

37 F.3d 671 (D.C. Cir. 1994)....................................11

Fed. Express Corp. v. Holowecki,

552 U.S. 389 (2008) ....................................................5

Federal Radio Comm. v. Nelson Bros. Bond &

Mortgage Co.,

289 U.S. 266 (1933) ..................................................19

Fiallo v. Bell,

430 U.S. 787 (1977) ..................................................21

FTC v. Gratz,

253 U.S. 421 (1920) ..................................................19

Galvin v. Press,

347 U.S. 522 (1954) ..................................................21

Heckler v. Chaney,

470 U.S. 821 (1985) ..................................... 6, 7, 9, 10

Hoffman Plastic Compounds, Inc. v. N.L.R.B.,

535 U.S. 137 (2002) ..................................................17

In re E-R-M & L-R-M,

25 I. & N. Dec. 520 (BIA 2011) .................................6

INS v. Chadha,

462 U.S. 919 (1983) ..................................................20

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) ..................................................19

Kendall, v. United States ex rel. Stokes,

37 U.S. (12 Pet.) 524 (1838).....................................10

Kleindienst v. Mandel,

408 U.S. 753 (1972) ..................................................20

Lopez v. Davis,

531 U.S. 230 (2001) ................................................5, 6

Lozano v. City of Hazleton,

496 F. Supp. 2d 477 (M.D. Pa. 2007), aff’d in part,

vacated in part, 620 F.3d 170 (3d Cir. 2010),

judgment vacated sub nom. City of Hazleton, Pa. v.

Lozano, 131 S. Ct. 2958 (2011), and aff’d in part,

rev’d in part, 724 F.3d 297 (3d Cir. 2013)..............18

Mistretta v. U.S.,

488 U.S. 361 (1989) ..................................................19

New York Central Securities Corp. v. United States,

287 U.S. 12 (1932) ....................................................19

Oceanic Steam Navigation Co. v. Stranahan,

214 U.S. 320 (1909) ..................................................21

Perales v. Casillas,

903 F.2d 1043 (5th Cir. 1990) .................................12

Perez v. Mortg. Bankers Ass’n,

135 S.Ct. 1199 (2015) .................................................1

Reno v. Am.-Arab Anti-Discrimination Comm.,

525 U.S. 471 (1999) ..................................................12

Sale v. Haitian Centers Council, Inc.,

509 U.S. 155 (1993) ..................................................20

Tagg Bros. & Moorhead v. United States,

280 U.S. 420 (1930) ..................................................19

Texas v. United States,

809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25,

2015)...........................................................................18

Town of Castle Rock, Colo. v. Gonzales,

545 U.S. 748 (2005) ....................................................4

Trump v. Hawaii,

138 S. Ct. 2392 (2018) ................................................1

U.S. v. Juarez-Escobar,

25 F. Supp. 3d 774 (W.D. Pa. 2014) .......................11

United States v. Texas,

136 S.Ct. 2271 (2016) .................................................1

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ..................................................19

Statutes

5 U.S.C. § 701(a)(2) ........................................................7

8 U.S.C. § 1101(a)(15)(V) .............................................16

8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) .............................12

8 U.S.C. § 1158(c)(1)(B) ...............................................16

8 U.S.C. § 1182(a)(6)(C) .................................................3

8 U.S.C. § 1182(a)(6)(E)(iii), (d)(11) ...........................13

8 U.S.C. § 1182(a)(7) ......................................................3

8 U.S.C. § 1182(d)(13), (14) .........................................13

8 U.S.C. § 1225(a)(2) ......................................................3

8 U.S.C. § 1225(a)(3) ......................................................3

8 U.S.C. § 1225(b)(1)(A)(i) .............................................3

8 U.S.C. § 1225(b)(2)(A) .............................................3, 5

8 U.S.C. § 1226(a)(3) ....................................................16

8 U.S.C. § 1229a(a)(1) ....................................................3

8 U.S.C. § 1229a(a)(3) ....................................................4

8 U.S.C. § 1229a(b)(5)(A) ...............................................4

8 U.S.C. § 1229a(c)(1)(A) ...............................................4

8 U.S.C. § 1229a(c)(2) ....................................................4

8 U.S.C. § 1229a(c)(3) ....................................................4

8 U.S.C. § 1229b ...........................................................13

8 U.S.C. § 1229c ............................................................12

8 U.S.C. § 1231(a)(7) ....................................................16

8 U.S.C. § 1252(b) .........................................................12

8 U.S.C. § 1254a ...........................................................12

8 U.S.C. § 1324a(h)(3) ..................................... 15, 17, 20

29 U.S.C. § 626(d) ...........................................................5

National Defense Authorization Act for Fiscal Year

2004, Pub. L. No. 108-136, § 1703(c)-(d), 117 Stat.

1392, 1694 .................................................................13

USA PATRIOT ACT of 2001, Pub. L. No. 107-56, §

423(b), 115 Stat. 272, 361 ........................................12

vii

Other Authorities

ABA Standards for Criminal Justice 1–4.5,

commentary (2d ed.1980) ..........................................4

Carrol, Lewis, Through the Looking Glass (1871) .....1

Cooper, Bo, General Counsel, INS, INS Exercise of

Prosecutorial Discretion, (July 11, 2000) ....... 14, 24

Johnson, Jeh Charles, Memorandum for Leon

Rodriguez, et al., Exercising Prosecutorial

Discretion with Respect to Individuals Who Came

to the United States as Children and with Respect

to Certain Individuals Who Are the Parents of U.S.

Citizens or Permanent Residents (Nov. 20, 2014) ..9,

13, 15

Napolitano, Janet, Secretary of Homeland Security,

Memo to David V. Aguilar, Acting Commissioner,

U.S. Customs and Border Protection, et al.,

Exercising Prosecutorial Discretion with Respect to

Individuals Who Came to the United States as

Children (June 15, 2012) ................................ 1, 8, 23

Obama, Barack, Remarks by the President at

Univision Town Hall (March 28, 2011)..................22

Rotunda, R., and Nowak, J., 1 Treatise on Const.

Law § 7.6 (March 2016) .............................................4

S.B. 1291 (2001)............................................................18

Thompson, Karl R., Office of Le-gal Counsel, The

Department of Homeland Security’s Authority to

Prioritize Removal of Certain Aliens Un-lawfully

Present in the United States and to Defer Re-moval

of Others (Nov. 19, 2014) .................................. 10, 12

Transcript, Hearing on President Obama’s Executive

Overreach on Immigration, House of

viii

Representatives Judiciary Committee (Dec. 2,

2014).............................................................................9

U.S. Citizenship and Immigration Services,

Frequently Asked Questions (June 15, 2015) ........15

USCIS Form I-821D (06/25/13) ..................................23

Rules

Sup. Ct. R. 37.3(a) ..........................................................1

Sup. Ct. R. 37.6 ...............................................................1

Constitutional Provisions

U.S. Const. art. I, § 1 ...................................................19

U.S. Const. art. I, § 7 ...................................................21

U.S. Const. art. I, § 9, cl. 7 ..........................................21

U.S. Const. art. II, § 3 ............................................. 2, 10

INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life, including the fundamental separation of powers principles implicated by

these cases. The Center has previously appeared before this Court as amicus curiae in several cases addressing similar separation of powers issues, including Trump v. Hawaii, 138 S. Ct. 2392 (2018); United

States v. Texas, 136 S.Ct. 2271 (2016); and Perez v.

Mortgage Bankers Ass’n, 135 S.Ct. 1199, 1213 (2015).

SUMMARY OF ARGUMENT

Janet Napolitano, the former Secretary of Homeland Security who issued the DACA Memo at issue in

these cases, brought suit against her successor in office alleging, primarily, that her prior handiwork

could not be undone without going through the Notice

and Comment rulemaking procedures that she herself

had not followed. Complaint ¶ 15, Joint Appendix Vol.

2:561. These cases thus have a bizarre, through-thelooking-glass aspect to them. Cf. Lewis Carrol,

Through the Looking Glass (1871). To understand the

full scope of the incongruity, a review of the prior ac-

1 Pursuant to this Court’s Rule 37.3(a), this amicus brief is

filed with the consent of the parties. Pursuant to Rule 37.6,

Amicus Curiae affirms that no counsel for any party authored this brief, and no person other than Amicus Curiae,

its members, or its counsel made a monetary contribution

to the preparation or submission of this brief.

tions, both of former Secretary Napolitano and her immediate successor, former Secretary Jeh Johnson

(who issued the parallel DAPA Memo), is necessary.

That assessment reveals that the prior DACA and

DAPA memos were both illegal and even unconstitutional. They both pushed the idea of prosecutorial discretion beyond the point where discretion becomes

suspension of the law, in violation of the President’s

duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3. And even were such a

categorial refusal to enforce the law within the bounds

of prosecutorial discretion (or, more to the point, not

susceptible to judicially-manageable criteria), the additional benefits conveyed on DACA and DAPA recipients by the memos—including a “lawful presence” in

the United States and eligibility for work authorization—cannot plausibly be subsumed under a prosecutorial discretion umbrella.

Given the patent infirmities of the DACA and

DAPA programs, the notion that the current administration could not exercise its own prosecutorial discretion to actually enforce the laws on the books is,

well, rather bizarre. The lower court decisions so

holding simply must be reversed.

ARGUMENT

The DACA Program That President

Trump’s Administration Seeks to Rescind

Was Itself Legally and Even Constitutionally Infirm.

A. The Immigration and Nationality Act

mandates removal of unauthorized aliens.

Several provisions of the Immigration and Nationality Act mandate specific enforcement actions by immigration officials. Section 1225(a)(3), for example,

specifies that “All aliens (including alien crewmen)

who are applicants for admission [defined as any alien

who has not been admitted] or otherwise seeking admission or readmission to or transit through the

United States shall be inspected by immigration officers.” 8 U.S.C. § 1225(a)(3) (emphasis added).2 Absent

a credible claim for asylum, stowaways are not eligible

for admission at all, and “shall be ordered removed

upon inspection by an immigration officer.”

§ 1225(a)(2) (emphasis added). And apart from a few

exceptions not at issue here, once an immigration officer “determines that an alien … is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the

officer shall order the alien removed from the United

States without further hearing or review….”

§ 1225(b)(1)(A)(i) (emphasis added). In other cases, “if

the examining immigration officer determines that an

alien seeking admission is not clearly and beyond a

doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding under section 1229a

….” § 1225(b)(2)(A) (emphasis added).

Once an alien has been detained under that statutory mandate, “[a]n immigration judge shall conduct

proceedings for deciding the inadmissibility or deportability of an alien. § 1229a(a)(1) (emphasis added). An

alien who fails to appear “shall be ordered removed in

absentia” if the Immigration Service establishes that

the alien was provided written notice of the hearing

2 All code section references are to Title 8 of the U.S. Code

unless otherwise noted.

and that the alien is removable. § 1229a(b)(5)(A) (emphasis added). Finally, applying the burdens of proof

set out in the statute, “[a]t the conclusion of the proceeding the immigration judge shall decide whether

an alien is removable from the United States.”

§ 1229a(c)(1)(A) (emphasis added); §§ 1229a(c)(2), (3).

In other words, the statutory scheme uses the

mandatory “shall” rather than a discretionary “may”

throughout, indicating Congress’s intent to treat

these duties as ministerial mandates rather than discretionary enforcement options.

To be sure, this Court has recognized that a “well

established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.”

Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748,

760 (2005) (citing 1 ABA Standards for Criminal Justice 1–4.5, commentary, pp. 1–124 to 1–125 (2d

ed.1980). But removal proceedings are civil proceedings, not criminal ones, and as at least one prominent

legal treatise has noted: “In contrast to criminal prosecution, the government has no free rein to refuse to

enforce civil actions.” R. Rotunda and J. Nowak, 1

Treatise on Const. Law § 7.6 (March 2016).

Moreover, Congress’s statutory scheme here provides the “stronger indication” of a true mandate that

this Court found lacking in Gonzales. 545 U.S. at 76162. Beyond the repeated use of the mandatory language, Congress specified that removal proceedings

“shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United

States or, if the alien has been so admitted, removed

from the United States.” § 1229a(a)(3) (emphasis

added). The claim that a President has discretion not

to commence removal proceedings against unauthorized aliens and thereby afford to them a “lawful presence” in the United States cannot be squared with

Congress’s language that a determination of admissibility by an immigration judge in a removal proceeding is the “sole and exclusive” means for determining

whether an alien may be admitted.

The U.S. District Court for the Northern District

of Texas in Crane v. Napolitano, 3:12-CV-03247-O,

2013 WL 1744422 (N.D. Tex. Apr. 23, 2013), reached

precisely that conclusion. Although that action by border patrol agents was ultimately dismissed for lack of

subject matter jurisdiction because the Merit Systems

Protection Board was the exclusive venue for their

claims,3 the District Court’s analysis of the relevant

statutory language was thorough and persuasive:

“Congress’s use of the word ‘shall’ in Section

1255(b)(2)(A) imposes a mandatory obligation on immigration officers to initiate removal proceedings

against aliens they encounter who are not ‘clearly and

beyond a doubt entitled to be admitted.’” Id. at *17.

The court found compelling this Court’s decisions

in Fed. Express Corp. v. Holowecki, 552 U.S. 389

(2008), and Lopez v. Davis, 531 U.S. 230 (2001).

Holowecki held that the EEOC’s “duty to initiate informal dispute resolution processes upon receipt of a

charge is mandatory in the ADEA context” because of

statutory language in 29 U.S.C. § 626(d) providing

that the EEOC “shall promptly seek to eliminate any

3 Crane, No. 3:12-cv-03247-O, Order (N.D. Tex., July 31,

2013), available at http://www.crs.gov/analysis/legalsidebar/Documents /Crane_DenialofMotionforReconsideration.pdf.

alleged unlawful practice by informal methods of conciliation, conference, and persuasion.” 552 U.S. at 399

(emphasis added). Similarly, Lopez noted that Congress’s “use of a mandatory ‘shall’ . . . impose[s] discretionless obligations.” 531 U.S. at 241. The court

also found this Court’s decision in, e.g., Heckler v.

Chaney, 470 U.S. 821, 835 (1985), and the Board of

Immigration Appeals decision in In re E-R-M & L-RM, 25 I. & N. Dec. 520, 520 (BIA 2011), to be distinguishable. The discretion recognized in the latter—

an immigration case—was simply whether to refer an

unauthorized alien to regular or expedited removal

proceedings, the court noted, not “to refrain from initiating removal proceedings at all.” Crane, 2013 WL

1744422, at *10. And the court found the statutory

language in the Food, Drug, and Cosmetic Act at issue

in Chaney, which this Court held committed “complete

discretion to the Secretary to decide how and when

they should be exercised,” 470 U.S. at 835, to be in

contrast with the Immigration and Nationalization

Act, which “is not structured in such a way that DHS

and ICE have complete discretion to decide when to

initiate removal proceedings.” Crane, 2013 WL

1744422, at *10.

B. DACA and DAPA are both categorical,

and therefore unconstitutional, suspensions of the law.

Even if Congress’s use of the mandatory term

“shall” is deemed not to foreclose prosecutorial discretion in individual cases, the DACA and DAPA programs went much further than authorizing case by

case discretion. Instead, they amounted to a categorical and therefore unconstitutional suspension of the

law.

This Court’s decision in Chaney is instructive. After concluding “that an agency’s decision not to take

enforcement action should be presumed immune from

judicial review under § 701(a)(2)” of the Administrative Procedures Act, this Court “emphasize[d] that the

decision is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in

exercising its enforcement powers.” Chaney, 470 U.S.

at 832-33. This Court then cited, with apparent approval, the D.C. Circuit’s en banc decision in Adams

v. Richardson, 480 F.2d 1159 (1973) (en banc). The

Court of Appeals in that case rejected the Government’s claim of discretion over how or even whether

to enforce Title VI of the Civil Rights Act of 1964. “Title VI not only require[d] the agency to enforce the

Act, but also set[] forth specific enforcement procedures,” id. at 1162, just as the Immigration and Naturalization Act does here. More significantly, the

Court of Appeals recognized—in language cited by

this Court—that prosecutorial discretion does not apply when an agency “has consciously and expressly

adopted a general policy which is in effect an abdication of its statutory duty.” Id.; see also Chaney, 470

U.S. at 833 n.4.

Both DACA and DAPA fall on the “categorical suspension of the law” side of the Chaney line. In her

June 15, 2012 memo establishing the DACA program,

former Homeland Security Secretary Janet Napolitano set out specific, categorical criteria for DACA

program eligibility. Memo from Janet Napolitano,

Secretary of Homeland Security, to David V. Aguilar,

Acting Commissioner, U.S. Customs and Border Protection, et al., Exercising Prosecutorial Discretion with

Respect to Individuals Who Came to the United States

as Children, p. 1 (June 15, 2012). Although the memo

repeatedly asserts that eligibility decisions are to be

made “on a case by case basis,” it is actually a directive

to immigration officials to grant deferred action to anyone meeting the criteria. “With respect to individuals who meet the above criteria” and are not yet in removal proceedings, the memo orders that “ICE and

CBP should immediately exercise their discretion, on

an individual basis, in order to prevent low priority

individuals from being placed into removal proceedings or removed from the United States.” Id. at 2 (emphasis added). And “[w]ith respect to individuals who

are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria,” “ICE should exercise prosecutorial discretion, on

an individual basis, for individuals who meet the

above criteria by deferring action for a period of two

years, subject to renewal, in order to prevent low priority individuals from being removed from the United

States.” Id. (emphasis added). USCIS and ICE are

directed to “establish a clear and efficient process” for

implementing the directive, and that process “shall

also be available to individuals subject to a final order

of removal regardless of their age.” Id. (emphasis

added).

Homeland Security Secretary Jeh Johnson’s November 2014 memo establishing the DAPA program

did the same thing. Although sprinkled with the

phrase, “case-by-case basis,” it also established eligibility criteria for the new program and directed immigration officials “to immediately begin identifying persons” who met the eligibility criteria, in order “to prevent the further expenditure of enforcement resources

with regard to these individuals.” Jeh Charles John-

son, Memorandum for Leon Rodriguez, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and

with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents, p. 2

(Nov. 20, 2014). The memo even announced that the

process for terminating removal of eligible aliens

“shall also be available to individuals” already “subject to final orders of removal.” Id. (emphasis added).

The notion that either memo allowed for a true individualized determination rather than providing a

categorical suspension of the law is simply not credible. There is nothing in either memo to suggest that

immigration officials could do anything other than

grant deferred action to those meeting the defined eligibility criteria. Indeed, the overpowering tone of the

memos is one of woe to line immigration officers who

did not act as the memo told them they “should,” a

point that was admitted by Department of Homeland

Security officials in testimony before the House of

Representatives. See Transcript, Hearing on President Obama’s Executive Overreach on Immigration,

House of Representatives Judiciary Committee (Dec.

2, 2014) (Represenative Goodblatt noting: “DHS has

admitted to the Judiciary Committee that, if an alien

applies and meets the DACA eligibility criteria, they

will receive deferred action. In reality, immigration

officials do not have discretion to deny DACA applications if applicants fulfill the criteria.”).

Nevertheless, by repeatedly regurgitating the

phrase, “on a case by case basis,” Secretaries Napolitano and Johnson seemed to have recognized that

prosecutorial discretion cannot be exercised categorically without crossing the line drawn in Chaney into

unconstitutional suspension of the law—without, that

is, violating the President’s constitutional obligation

to “take care that the laws be faithfully executed.”

U.S. Const. art. II, § 3; Chaney, 470 U.S. at 833 n.4.

But the memos’ directives to the immigration services

not to enforce the immigration laws against anyone

meeting the eligibility criteria set out in the memos,

“in order to prevent low priority individuals from being removed from the United States,” clearly falls on

the unconstitutional side of the Chaney line. As this

Court recognized nearly 180 years ago, “To contend

that the obligation imposed on the President to see the

laws faithfully executed, implies a power to forbid

their execution, is a novel construction of the constitution, and entirely inadmissible.” Kendall, v. United

States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838).

The Office of Legal Counsel at the Department of

Justice has likewise recognized the need for individualized determinations for exercises of prosecutorial

discretion to be constitutional. “[T]he Executive

Branch ordinarily cannot … consciously and expressly

adopt[] a general policy that is so extreme as to

amount to an abdication of its statutory responsibilities,” it noted in the memo purporting to validate the

DAPA program. Karl R. Thompson, Office of Legal

Counsel, The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Un-lawfully Present in the United States and to Defer Removal of Others, p. 7 (Nov. 19, 2014) (quoting Chaney,

470 U.S. at 833 n.4, internal quotation marks omitted). “[A] general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses

‘special risks’ that the agency has exceeded the

bounds of its enforcement discretion.” Id. (quoting

Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671,

677 (D.C. Cir. 1994)). Yet that is exactly what DACA

and DAPA did. As the district court for the Eastern

District of Pennsylvania correctly recognized, the executive actions at issue in those programs, establishing threshold eligibility criteria for aliens unlawfully

present in the United States to obtain “deferred action,” constituted “legislation” rather than prosecutorial discretion, “and effectively change[d] the United

States’ immigration policy.” U.S. v. Juarez-Escobar,

25 F. Supp. 3d 774, 786 (W.D. Pa. 2014).

Neither were the executive actions implemented in

the DACA and DAPA programs simply an exercise of

the kind of prosecutorial discretion that had been exercised by previous administrations. Much was made

at the time of the Family Fairness Program implemented by President George H.W. Bush’s administration in February 1990. But that program, which dealt

with delayed voluntary departure rather than DACA

and DAPA’s deferred action, was specifically authorized by statute. Section 242(b) of the Immigration and

National Act at the time provided, in pertinent part:

In the discretion of the Attorney General and under such regulations as he may prescribe, deportation proceedings, including issuance of a

warrant of arrest, and a finding of deportability

under this section need not be required in the

case of any alien who admits to belonging to a

class of aliens who are deportable under section

1251 of this title if such alien voluntarily departs from the United States at his own expense, or is removed at Government expense as

hereinafter authorized, unless the Attorney

General has reason to believe that such alien is

deportable under paragraphs (4) to (7), (11),

(12), (14) to (17), (18), or (19) of section 1251(a)

of this title.

8 U.S.C. § 1252(b), cited in Perales v. Casillas, 903

F.2d 1043, 1048 (5th Cir. 1990) (emphasis added).

That specific statutory authority was largely superseded by the Temporary Protected Status program

established by the Immigration Act of 1990, which is

available to nationals of designated foreign states affected by armed conflicts, environmental disasters,

and other extraordinary conditions, 8 U.S.C. § 1254a,

and subsequently limited to 120 days by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRI”), see 8 U.S.C. § 1229c. In contrast,

as even the OLC opinion defending DAPA acknowledged, “deferred action,” which is the asserted basis

for the DACA and DAPA executive actions, “developed

without statutory authorization.” OLC Memo, at 13;

see also Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 484 (1999) (noting that deferred

action “developed without express statutory authorization,” apparently in the exercise of discretionary response to international humanitarian crises that trigger the President’s separate foreign affairs authority

of the sort now covered by the Temporary Protected

Status Program).

There are now specific statutes that authorize deferred action. See, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II),

(IV) (providing that certain individuals are “eligible

for deferred action”); USA PATRIOT ACT of 2001,

Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361 (proving that certain immediate family members of Lawful

Permanent Residents who were killed on 9/11 should

be made “eligible for deferred action.”); National Defense Authorization Act for Fiscal Year 2004, Pub. L.

No. 108-136, § 1703(c)-(d), 117 Stat. 1392, 1694, and

other statutes that delegate to the Attorney General

discretion to waive other provisions of the INA in specific circumstances, e.g., 8 U.S.C. § 1182(a)(6)(E)(iii),

(d)(11) (authorizing discretionary waiver of smuggler

ineligibility for admission rule for smugglers who only

assisted their own spouses, parents, or children); 8

U.S.C. § 1182(d)(13), (14) (authorizing, in certain

specified circumstances, discretionary waiver of inadmissibility rules for recipients of “T” and “U” visas); cf.

8 U.S.C. § 1229b (authorizing the Attorney General to

“cancel removal” and “adjust status” for up to four

thousand aliens annually who are admitted for lawful

permanent residence and who meet certain specific

statutory criteria). But none of these statutes authorize the broad use of deferred action for domestic purposes asserted by the June 2012 DACA program or the

expanded November 2014 DAPA program. Indeed, the

fact that Congress deemed it necessary to include

such statutory authorization for these specific domestic uses of deferred action is compelling evidence that

the Executive does not have unfettered discretion to

give out deferred action whenever it chooses, and certainly not to deem such individuals as “lawfully present in the country for a period of time,” as Secretary

Johnson claimed in his November 20, 2014 memo.

Johnson Memo, supra, at 2.

C. The provision of benefits and a “lawful”

status are beyond the scope of prosecutorial discretion.

Even if DACA’s categorical suspension of deportation requirements could be viewed as a valid exercise

of prosecutorial discretion, the granting of affirmative

benefits such as work authorization and “lawful presence” cannot be.

“The doctrine of prosecutorial discretion applies to

enforcement decisions, not benefit decisions,” noted

Bo Cooper, General Counsel for the Immigration and

Naturalization Service at the end of the Clinton Administration. Bo Cooper, General Counsel, INS, INS

Exercise of Prosecutorial Discretion, at 4 (July 11,

2000).4 Although Cooper was of the opinion that the

INS had “prosecutorial discretion to place a removable

alien in proceedings, or not to do so,” he acknowledged

that it did “not have prosecutorial discretion to admit

an alien into the United States who is inadmissible

under the immigration laws, or to provide any immigration benefit to any alien ineligible to receive it.” Id.

at 1. “[T]he grant of an immigration benefit, such as

naturalization or adjustment of status, is a benefit decision that is not a subject for prosecutorial discretion.” Id. at 4.

Yet in implementing DACA, the Immigration services contended that an unauthorized alien “who has

received deferred action is authorized by DHS to be

present in the United States, and is therefore considered by DHS to be lawfully present during the period

of deferred action is in effect.” U.S. Citizenship and

Immigration Services, Frequently Asked Questions

4 Available at http://niwaplibrary.wcl.american.edu/refer-

ence/dditional-materials/immigration/enforcement-detention-and-criminaljustice/government-documents/BoCooper-memo%20pros%20discretion7.11.2000.pdf

(June 15, 2015).5 And Secretaries Napolitano and

Johnson both directed the immigration services to extend work authorization to individuals they placed in

deferred action who were otherwise ineligible to work

in the United States. Secretary Napolitano’s memo establishing the DACA program cited no provision of

law authorizing her to grant work authorization, but

Secretary Johnson purported to find such authority in

five words of the work authorization definitional statute. “Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred

action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of the Immigration and Nationality Act,” he wrote. Johnson Memo,

at 4-5 (citing 8 U.S.C. § 1324a(h)(3)).

Section 1324a establishes the general rule that

employing an unauthorized alien is illegal. Subsection

(a)(1) specifically makes it unlawful to hire “an unauthorized alien (as defined in subsection (h)(3) of this

section).” Subsection (h)(3) in turn defines “unauthorized alien” as any alien who is not “lawfully admitted

for permanent residence” (that is, someone who qualifies under one of the carefully wrought exemptions to

inadmissibility contained in Section 1101(a)(15) of the

Immigration Code, such as the “T” visa) or an alien

“authorized to be so employed by this chapter or by the

Attorney General.” 8 U.S.C. § 1324a(h)(3) (emphasis

added).

5 Available at https://web.archive.org/web/20150626103

508/https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-askedquestions.

That last phrase, “or by the Attorney General”

(and by extension the Secretary of Homeland Security), was the statutory hook that Secretary Johnson

claimed to have provided him unfettered discretion to

grant work authorization to any unauthorized alien

he wished. It was, to say the least, a pretty slim reed.

For one thing, such a broad interpretation of that

brief statutory reference would render superfluous

several other statutory provisions that give specific

authority to the Attorney General to confer both lawful status and work authorization and other benefits

on certain unauthorized aliens in carefully circumscribed circumstances. Section 1101(a)(15)(V), for example, allows the Attorney General to confer temporary lawful status on the close family members of lawful permanent residents who have petitioned the Attorney General for a nonimmigrant visa while an application for an immigrant visa is pending. Section

1158(c)(1)(B) authorizes the Secretary to grant work

authorization to aliens who have been granted asylum). Section 1226(a)(3) allows the Secretary to grant

work authorization to otherwise work-eligible aliens

pending a removal decision, and Section 1231(a)(7)

permits the Secretary to grant work authorization under certain narrow circumstances to aliens who have

received final orders of removal. Much more likely,

therefore, that the phrase, “or by the Attorney General,” simply refers to the specific grants of authority

given to the Attorney General in other pro-visions of

the Immigration Code.

For another, nothing in the legislative history suggests that Congress intended to give the Attorney

General the kind of unfettered discretion that Secretary Johnson claimed. The section of the immigration

law that includes the brief phrase on which this entire

edifice of authority was erected was added in 1986 as

part of the Immigration Reform and Control Act. The

legislative record leading to the adoption of that monumental piece of legislation is extensive, but there

does not appear to be any discussion whatsoever of the

clause, much less any claim that by including that

clause, Congress was conferring unfettered discretion

on the Attorney General to issue “lawful presence”

and work authorization to anyone illegally present in

the United States he chose. Indeed, such a position

makes a mockery out of the finely wrought (and hotly

contested) provisions elsewhere in the Immigration

code providing for such lawful status only upon meeting very strict criteria.

The more limited view of Section 1324a(h)(3),

namely, that it simply refers to other provisions of federal law conferring such authority on the Attorney

General in specific circumstances, was implicitly espoused by a plurality of this Court when, in Chamber

of Commerce of U.S. v. Whiting, it summarized Section 1324a(h)(3) as defining an “unauthorized alien”

to be “an alien not ‘lawfully admitted for permanent

residence’ or not otherwise authorized by federal law

to be employed.” 131 S. Ct. 1968, 1981 (2011) (emphasis added); see also Hoffman Plastic Compounds, Inc.

v. N.L.R.B., 535 U.S. 137, 147 (2002) (federal immigration law denies “employment to aliens who (a) are

not lawfully present in the United States, or (b) are

not lawfully authorized to work in the United States,”

citing Section 1324a(h)(3)); Lozano v. City of Hazleton,

496 F. Supp. 2d 477, 518-19 (M.D. Pa. 2007), aff’d in

part, vacated in part, 620 F.3d 170 (3d Cir. 2010),

judgment vacated sub nom. City of Hazleton, Pa. v.

Lozano, 131 S. Ct. 2958 (2011), and aff’d in part, rev’d

in part, 724 F.3d 297 (3d Cir. 2013).

Moreover, if the clause did provide the Attorney

General (now Homeland Security Secretary) with

such unfettered discretion, Congress had been wasting its time trying to put just such an authority into

law. For more than a decade illegal immigration advocates had been pushing for Congress to enact the

DREAM Act, the acronym for the Development, Relief, and Education for Alien Minors Act first introduced by Senators Dick Durbin and Orin Hatch as

Senate Bill 1291 back in 2001. The bill would give lawful permanent residence status and work authorization to anyone who arrived in this country illegally as

a minor, had been in the country illegally for at least

five years, was in school or had graduated from high

school or served in the military, and was not yet 35

years old (although that age requirement could be

waived). The bill or some version of it has been reintroduced in each Congress since, but has usually faced

such stiff opposition by those who view its principal

provisions as an “amnesty” for illegal immigrants that

even its high-level bipartisan support has proved insufficient to get the bill adopted. It is hard to imagine

the expenditure of so much political capital to provide

an authority to the Secretary that he claimed had

been in the existing statutes all along. As Judge Smith

noted in the Fifth Circuit’s decision enjoining DAPA,

such an interpretation is “exceedingly unlikely.”

Texas v. United States, 809 F.3d 134, 183 (5th Cir.

2015), as revised (Nov. 25, 2015). “Congress … does

not alter the fundamental details of a regulatory

scheme in vague terms or ancillary provisions—it

does not, one might say, hide elephants in mouse-

holes.” Id., n. 186 (quoting Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 468 (2001)).

Indeed, even if this Court were to accept that the

general phrase, “or by the Attorney General,” could be

interpreted to support Secretary Johnson’s claimed

authority to extend work authorization without reliance on other specific grants of authority, such an interpretation would render the clause unconstitutional, a violation of a core aspect of separation of powers.

Article I, Section I of the Constitution requires that

“[a]ll legislative Powers” granted by the Constitution

must be exercised by Congress and cannot be delegated away. U.S. Const. art. I, § 1. This Court has

held that Congress can delegate a large amount of

rule-making authority to executive branch agencies,

but only if it “lay[s] down by legislative act an intelligible principle to which the person or body authorized

to [act] is directed to con-form.” J.W. Hampton, Jr., &

Co. v. United States, 276 U.S. 394, 409 (1928); Mistretta v. U.S., 488 U.S. 361, 372 (1989).

To be sure, this Court has, over the decades, been

rather generous in determining what qualifies as an

“intelligible principle.” See, e.g., Tagg Bros. & Moorhead v. United States, 280 U.S. 420 (1930) (“just and

reasonable”); New York Central Securities Corp. v.

United States, 287 U.S. 12 (1932) (“public interest”);

Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 285 (1933) (“public convenience, interest, or necessity”); and FTC v. Gratz, 253

U.S. 421 (1920) (“unfair methods of competition”). But

even though the treatment of such amorphous language as an “intelligible” principle might rightly cause

one to wonder whether the word “intelligible” is really

intelligible at all, this Court has always insisted that

there at least be something in the statute adopted by

Congress to constrain the agency’s discretion.

If Secretary Johnson’s interpretation of Section

1324a(h)(3) were to be accepted, there is absolutely

nothing. The phrase, “or by the Attorney General,” is

not constrained by any requirement that the Attorney

General’s decision be in the “public interest,” or for the

“public convenience, interest, or necessity,” or be “just

and reasonable,” or even be in the public interest as

the Attorney General determines it to be. Rather, it

stands entirely on its own, unadorned and unencumbered by any lawmaking judgment by Congress.

Because such an interpretation as that offered by

Secretary Johnson would be manifestly unconstitutional, a violation of the non-delegation doctrine even

in its current, largely moribund state, it should only

be adopted, under the doctrine of constitutional avoidance, if no other reasonable interpretation exists that

would render the statute constitutional. See, e.g.,

Blodgett v. Holden, 275 U.S. 142, 148 (1927) (opinion

of Holmes, J.). Because the constitutionally valid alternative interpretation set out above is not only reasonable, but much more consistent with the Immigration code in its entirety, Secretary Johnson’s interpretation simply cannot stand.

This should be particularly true in the immigration law context, over which Congress’s power has repeatedly been described by this Court as “plenary.”

See, e.g., Sale v. Haitian Centers Council, Inc., 509

U.S. 155, 201 (1993); INS v. Chadha, 462 U.S. 919,

940-41 (1983); Kleindienst v. Mandel, 408 U.S. 753,

766 (1972). Indeed, this Court declared over a century

ago that “over no conceivable subject is the legislative

power of Congress more complete” than immigration.

Oceanic Steam Navigation Co. v. Stranahan, 214 U.S.

320, 339 (1909) (emphasis added); Fiallo v. Bell, 430

U.S. 787, 792 (1977). “[T]hat the formulation of [immigration] policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any

aspect of our government.” Galvin v. Press, 347 U.S.

522, 531 (1954) (emphasis added).

There is yet another constitutional problem with

the interpretation that had been offered by Secretary

Johnson. The granting of “lawful presence” and work

authorization by the Executive branch alone made

DACA and DAPA recipients eligible for other financial benefits without specific authorization from Congress. That violates Article I, Section 9 of the Constitution, which provides: “No Money shall be drawn

from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. Only

Congress, in compliance with the bicameralism and

presentment requirements of the Constitution, U.S.

Const. art. I, § 7, could authorize such appropriations;

a President (much less a Secretary of Homeland Security) cannot do it unilaterally. See Clinton v. New

York, 524 U.S. 417, 438 (1998).

In sum, by frequent use of the word “shall,” the Immigration and Nationality Act itself mandates removal in a number of circumstances, thus overriding

whatever prosecutorial discretion might normally exist. Even if otherwise, the DACA and DAPA programs

were categorical suspensions of the law rather than

the exercise of true case-by-case discretion, and therefore ran afoul of the President’s constitutional duty to

take care that the laws be faithfully executed. And

even if the line between permissible discretion and impermissible suspension is deemed to be too difficult a

line to be judicially enforceable, the provision of a

“lawful presence” status and other benefits such as

work authorization is simply beyond the scope of what

can be accomplished through the use of prosecutorial

discretion. Former President Obama was therefore

correct when, on more than a dozen occasions, he announced he had no constitutional authority to “just

suspend deportation through executive order.” See,

e.g., Remarks by the President at Univision Town Hall

(March 28, 2011).6 “There are enough laws on the

books by Congress that are very clear in terms of how

we have to enforce our immigration system that for

me to simply through executive order ignore those

congressional mandates would not conform with my

appropriate role as President.” Id.

The notion, accepted by the lower courts, that the

current administration cannot rescind a discretionary

policy of a prior administration that was itself of such

dubious legality simply cannot be countenanced.

II.

A Discretionary Decision Not To Enforce

The Law Cannot Give Rise To A Reliance Interest In Continued (And Certainly Not In

Perpetual) Non-Enforcement.

A second argument advanced by plaintiffs and accepted by the courts below, namely, that DACA cannot

be rescinded because DACA recipients have reliance

and Due Process interests in retaining their deferred

6 Available at https://obamawhitehouse.archives.gov/the-

press-office/2011/03/28/remarks-president-univision-townhall.

action “lawful presence” status, is equally without

merit, for several reasons.

First, if the DACA program was a valid exercise of

prosecutorial discretion not to enforce the law, it is

necessarily the case that a successor administration

(or even the same administration, should it decide to

exercise its discretion in a different direction) could

choose once again to exercise that same prosecutorial

discretion in favor of enforcing the law. Indeed, the

exercise of discretion to enforce is necessarily more

valid than the exercise of discretion not to enforce, because the former carries with it no risk of crossing the

line into an unconstitutional suspension of the law.

Second, the DACA program on its own terms explicitly disclaimed any reliance interest. The policy,

as articulated by Secretary Napolitano, “confer[ed] no

substantive right, immigration status or pathway to

citizenship.” Regents Pet. App. 101a. “Only the Congress, acting through its legislative authority, can

confer these rights,” she added. Id. And applicants

for the DACA program were separately notified, on

the application form itself, that “Deferred action does

not confer lawful status upon an individual.” USCIS

Form I-821D (06/25/13).7

Such caveats are not surprising. Law enforcement

officers exercise prosecutorial discretion every day,

most often without such express caveats. When a

highway patrol officer chooses not to stop someone

driving a few miles over the speed limit, that is an ex-

7 Available at https://web.archive.org/web/2014010707

4823/http://www.uscis.gov/sites/default/files/files/form/

i-821d.pdf.

ercise of prosecutorial discretion. When the Drug Enforcement Agency decides not to arrest someone for

small amounts of marijuana possession, that, too, is

an exercise of prosecutorial discretion. But in none of

those routine cases does an entitlement to future exercises of prosecutorial discretion arise, should one

choose to continue to violate the law. And this is true

even if the law enforcement officer does not spell out

in writing or explicitly state that his decision not to

make an arrest this time is not an immunity from arrest next time. The notion that there can possibly be

a reliance interest in continued, even perpetual, prosecutorial discretion not to have the law enforced would

turn the “discretion” into an entitlement, a “grant of

an immigration benefit, such as naturalization or adjustment of status, … that is not a subject for prosecutorial discretion,” as former Clinton administration

INS General Counsel Bo Cooper acknowledged more

than two decades ago. Bo Cooper, INS Exercise of

Prosecutorial Discretion, at 4, supra at 14.

Finally, had the DACA program actually created

an entitlement in which there could be a reliance interest, it would even more clearly have amounted to

an unconstitutional suspension of the law. See supra,

I.B.

The claim of “reliance interest” in a prosecutor’s

“discretion” is therefore an oxymoron that should be

rejected by this Court.

CONCLUSION

Because the DACA program adopted in 2012 is itself constitutionally infirm, the decision by the current administration to rescind it is well within the

bounds of its own executive authority. But even were

it perfectly valid as a legitimate exercise of prosecutorial discretion, the discretion exercised by one presidential administration cannot possible bind a future

presidential administration that chooses to exercise

its prosecutorial discretion in a different manner.

That would convert a discretionary decision not to

prosecute into an entitlement to be exempt from the

operation of the law entire, which is a legislative rather than executive function, assigned under our Constitution to the Congress, not to the President. The decisions of the courts below to the contrary should

therefore be reversed.

Respectfully submitted,