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

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

IN THE

___________

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

PETITIONERS,

V.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,

RESPONDENTS.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

__________

BRIEF FOR THE CATO INSTITUTE AND

PROFESSOR JEREMY RABKIN

AS AMICI CURIAE SUPPORTING DACA AS A

MATTER OF POLICY BUT PETITIONERS AS A

MATTER OF LAW

__________

Josh Blackman

1303 San Jacinto St.

Houston, TX 77079

(713) 646-1829

jblackman@stcl.edu

Ilya Shapiro

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

August 26, 2019

Additional Captions Listed on Inside Cover

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ii

ET AL., PETITIONERS

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, ET AL.

__________

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

__________

KEVIN K. MCALEENAN, ACTING SECRETARY OF

HOMELAND SECURITY, ET AL., PETITIONERS

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

__________

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

__________

iii

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 Fifth Circuit ruling 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 (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.

iv

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... vi

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION AND

SUMMARY OF ARGUMENT............................... 2

ARGUMENT ................................................................ 4

I.

DACA, WHICH LACKS “EXPRESS

STATUTORY AUTHORIZATION,”

CANNOT BE SUPPORTED BY “IMPLICIT

CONGRESSIONAL ACQUIESCENCE” .............. 4

A. CONGRESS DID NOT—AND COULD

NOT—IMPLICITLY AUTHORIZE DACA

BY ACQUIESCING TO PAST EXERCISES

OF DEFERRED ACTION ................................. 5

B. DACA IS NOT CONSONANT WITH PAST

EXECUTIVE PRACTICE ................................. 6

II. IF FEDERAL LAW AUTHORIZES DACA,

IMPORTANT PROVISIONS OF THE INA

IMPERMISSIBLY DELEGATE LEGISLATIVE

POWER TO THE EXECUTIVE ......................... 10

A. COURTS DO NOT DEFER TO EXECUTIVE

ACTIONS THAT IMPLICATE “MAJOR

QUESTIONS” OF “DEEP ‘ECONOMIC

AND POLITICAL SIGNIFICANCE’” ............. 11

B. “THE HYDRAULIC PRESSURE OF OUR

CONSTITUTIONAL SYSTEM . . . SHIFT[ED]

THE RESPONSIBILITY” FOR REVIEWING

LEGISLATIVE DELEGATIONS FROM

THE NONDELEGATION DOCTRINE TO

THE MAJOR QUESTIONS DOCTRINE ....... 13

v

C. THE FIFTH CIRCUIT USED THE MAJOR

QUESTIONS DOCTRINE “IN SERVICE OF

THE CONSTITUTIONAL RULE” THAT

CONGRESS CANNOT DELEGATE ITS

LEGISLATIVE POWER ................................. 15

D. THE ATTORNEY GENERAL’S LETTER

MADE A REASONABLE

CONSTITUTIONAL OBJECTION

TO DACA ......................................................... 17

E. THE SOLICITOR GENERAL’S BRIEF

REAFFIRMS THE ATTORNEY

GENERAL’S REASONABLE

CONSTITUTIONAL OBJECTION ................ 21

F. TO ELIMINATE NONDELEGATION

CONCERNS, COURTS SHOULD DEFER

TO REVERSALS OF NOVEL EXECUTIVE

ACTIONS THAT EXPANDED

EXECUTIVE POWER .................................... 24

CONCLUSION........................................................... 27

vi

TABLE OF AUTHORITIES

Cases

Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984) ......................... 11

Dames & Moore v. Regan, 453 U.S. 654 (1981) .......... 6

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ........................................ passim

Free Enter. Fund v. PCAOB, 561 U.S. 477 (2010) ...... 8

Gundy v. United States,

139 S. Ct. 2116 (2019) .................................... passim

King v. Burwell, 135 S. Ct. 2480 (2015) ............ passim

Kisor v. Wilkie, 139 S. Ct. 2400 (2019)...................... 25

McDonald v. Chicago, 561 U.S. 742 (2010) .............. 15

McPherson v. Blacker, 146 U.S. 1 (1892) .................... 6

Medellin v. Texas, 552 U.S. 491 (2008) ....................... 6

NAACP v. Trump,

298 F. Supp. 3d 209 (D.D.C. 2018) .............. 8, 17, 24

NLRB v. Noel Canning, 573 U.S. 513 (2014).............. 5

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

525 U.S. 471 (1999) .............................................. 2, 4

Texas v. United States,

328 F. Supp. 3d 662 (S.D. Tex. 2018) .................... 19

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) .......................... passim

Trump v. Hawaii, 138 S. Ct. 2392 (2018) ........... 22, 27

Util. Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ........................................ passim

vii

Vidal v. Nielsen,

279 F. Supp. 3d 401 (E.D.N.Y. 2018)............... 24, 26

Whitman v. American Trucking Ass’ns,

531 U.S. 457 (2001) .................................... 12, 14, 17

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) .................................................. 5

Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) ............... 10

Statutes and Regulations

8 C.F.R. 274a.12(c)(14) .......................................... 4, 18

6 U.S.C. § 202(5) ...................................................... 4, 5

8 U.S.C § 1103(a) ..................................................... 4, 5

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

8 U.S.C. § 1254(e) ........................................................ 8

8 U.S.C. § 1324a(h)(3) .................................................. 4

Dep’t of Justice, Immig. & Naturalization Service,

Employment Authorization; Classes of Aliens

Eligible, 52 Fed. Reg. 46,092 (Dec. 4, 1987) ..... 18-19

Other Authorities

Adam B. Cox & Cristina M. Rodríguez,

The President and Immigration Law,

119 Yale L.J. 458 (2009) ........................................ 26

Adam B. Cox & Cristina M. Rodríguez,

The President and Immigration Law Redux,

125 Yale L.J. 104 (2015) ........................................ 26

Brief for the Cato Institute et al. as Amici Curiae

Supporting Respondents, United States v. Texas,

136 S. Ct. 2271 (2016) (No. 15-674) ........... 15, 27, 28

viii

Brief for the Petitioners, United States v. Texas,

136 S. Ct. 2271 (2016) (No. 15-674) ..................... 4, 5

Brief of Senate Majority Leader Mitch McConnell

and 42 Other Members of the U.S. Senate as

Amici Curiae as Amici Curiae Supporting

Respondents, United States v. Texas,

136 S. Ct. 2271 (2016) (No. 15-674) .................. 19-20

Glenn Kessler, Obama’s Claim that George H.W.

Bush Gave Relief to ‘40 Percent’ of Undocumented

Immigrants, Wash. Post (Nov. 24, 2014) ................ 8

Ilya Shapiro, I’m an Immigrant and a Reform

Advocate. Obama’s Executive Actions Are a

Disaster for the Cause,

Wash. Post, Feb. 24, 2015 ..................................... 3-4

Josh Blackman, Defiance and Surrender,

59 S. Tex. L. Rev. 157 (2018) ................................... 6

Josh Blackman, Gridlock,

130 Harv. L. Rev. 241 (2016) ................................. 11

Josh Blackman, Immigration Inside the Law,

55 Washburn L.J. 31 (2016)................................... 26

Josh Blackman, Presidential Maladministration,

2018 Ill. L. Rev. 397 (2018) ............................... 25-26

Josh Blackman, The Constitutionality of DAPA

Part I: Congressional Acquiescence to Deferred

Action, 3 Geo. L.J. Online 96 (2015) .................... 7, 9

Josh Blackman, The Constitutionality of DAPA

Part II: Faithfully Executing The Law,

19 Tex. Rev. L. & Pol. 215 (2015) .......................... 15

Josh Blackman, Understanding Sessions’s

Justification to Rescind DACA, Lawfare

(Jan. 16, 2018) ........................................................ 17

ix

Karl R. Thompson, OLC Memorandum Opinion,

DHS’s Authority to Prioritize Removal of Certain

Aliens Unlawfully Present in the United States

and to Defer Removal of Others

(Nov. 19, 2014).................................................. 5, 6, 9

Letter from Attorney General Jeff Sessions to

Acting Secretary Duke (Sept. 5, 2017) ............ 18, 20

Peter Margulies, The Boundaries of Executive

Discretion: Deferred Action, Unlawful Presence,

and Immigration Law,

64 Am. U. L. Rev. 1183 (2015) ................................. 8

Presidential Authority to Decline to Execute

Unconstitutional Statutes,

18 Op. OLC 199 (Nov. 2, 1994) .............................. 10

Stephen Breyer, Judicial Review of Questions of

Law and Policy,

38 Admin. L.Rev. 370 (1986) ............................ 11-12

1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan think tank dedicated to individual liberty, free markets, and limited

government. Cato’s Robert A. Levy Center for Constitutional Studies promotes the principles of constitutionalism that are the foundation of liberty. To those

ends, Cato conducts conferences and publishes books,

studies, and the annual Cato Supreme Court Review.

Jeremy A. Rabkin is a law professor at George Mason University’s Antonin Scalia Law School. Prof. Rabkin’s fields of expertise include administrative law,

constitutional history, and statutory interpretation.

The interest of amici here lies in preserving the

separation of powers that maintains the rule of law at

the heart of the Constitution’s protections for individual liberty. Amici generally support DACA-type policies that would normalize the immigration status of

individuals who were brought to this country as children and have no criminal records. But the president

cannot unilaterally make fundamental changes to immigration law—in conflict with the laws passed by

Congress and in ways that go beyond constitutionallyauthorized executive power. Nor does the president acquire more powers when Congress refuses to act, no

matter how unjustified the congressional inaction is.

The separation of powers prevents the president from

expanding his own authority. Those same dynamics

ensure that a subsequent president can reverse his

predecessor’s unlawful executive actions.

1 Rule 37 statement: All parties issued blanket consents to the

filing of amicus briefs. Nobody but amici and their counsel authored any of this brief or funded its preparation and submission.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Through the Deferred Action for Childhood Arrivals program (DACA), the previous administration

took the position that the Immigration and Nationality

Act (INA) authorized the secretary of homeland security to confer lawful presence on roughly 1.5 million

aliens. The current administration reversed course.

The attorney general concluded that this reading of

federal law had “constitutional defects.” He reached

this decision in light of the Fifth Circuit’s injunction of

the similar Deferred Action for Parents of Americans

and Lawful Permanent Residents program (DAPA),

which this Court affirmed by an equally divided vote.

Several lower courts blocked the president from

winding down DACA, however, holding that the executive branch failed to justify the rescission. These rulings are wrong because DACA goes beyond executive

power under the INA. But even if the Court declines to

reach that holding, the attorney general offered reasonable constitutional objections such that if DACA

somehow complies with the INA, then the INA itself

violates the nondelegation doctrine as applied here.

First, DACA, which lacks “express statutory authorization,” Reno v. Am.-Arab Anti-Discrim. Comm.,

525 U.S. 471, 484 (1999), cannot be supported by any

“implicit” congressional acquiescence. Two general

provisions within the INA cannot bear the weight of

this foundational transformation of immigration policy. Moreover, it should not matter if Congress has

stood by idly when previous presidents exercised materially different deferred-action policies. The presi-

3

dent cannot acquire new powers simply because Congress acquiesced to similar accretions in the past. In

any event, DACA is not consonant with past practice.

These arguments are sufficient to confirm the attorney general’s conclusion that DACA is unlawful.

But even if the Court disagrees—or declines to reach

that issue—the executive branch has still provided adequate grounds to justify the rescission of DACA.

That is, second, the attorney general reasonably determined that DACA is inconsistent with the president’s duty of faithful execution. Admittedly, the attorney general’s letter justifying the rescission is not a

model of clarity. But it need not be. This executivebranch communication provides, at a minimum, a reasonable constitutional objection to justify DACA rescission. Specifically, it invokes the “major questions”

doctrine, which is used “in service of the constitutional

rule” that Congress cannot delegate legislative power

to the executive branch. Gundy v. United States, 139

S. Ct. 2116, 2142 (2019) (Gorsuch, J., dissenting). In

other words, if federal law in fact supported DACA,

then important provisions of the INA would run afoul

of the nondelegation doctrine. The attorney general, as

well as the Fifth Circuit, rejected this reading of the

INA. Here, the court should accept the executive’s determination of how to avoid a nondelegation problem:

by winding down a discretionary policy.

Amici support comprehensive immigration reform,

of which a DACA-type policy is only one part. But the

president can’t make the requisite legal changes by

himself. Such unlawful executive actions both set back

prospects for long-term reform and, more importantly

here, weaken the rule of law. See, e.g., Ilya Shapiro,

I’m an Immigrant and a Reform Advocate. Obama’s

4

Executive Actions Are a Disaster for the Cause, Wash.

Post, Feb. 24, 2015, https://wapo.st/30rnq5m. Reversing the courts below would restore the immigration debate to the political process—exactly where it belongs.

ARGUMENT

I. DACA, WHICH LACKS “EXPRESS

STATUTORY AUTHORIZATION,” CANNOT

BE SUPPORTED BY “IMPLICIT”

CONGRESSIONAL ACQUIESCENCE TO

PREVIOUS USES OF DEFERRED ACTION

This Court has recognized that deferred action is a

“regular practice” in the enforcement of immigration

law. Reno, 525 U.S. at 484 (1999). However, it developed “without express statutory authorization.” Id. (citations omitted). In 2016, the government argued that

three statutes vested the secretary of homeland security with the “broad statutory authority” necessary for

DAPA—and by extension, DACA. Brief for the Petitioners at 42, United States v. Texas, 136 S. Ct. 2271

(2016) (No. 15-674) [“Brief for DAPA Petitioners”].

First, the government cited 6 U.S.C. § 202(5), which

authorizes the secretary of homeland security to

“[e]stablish[] national immigration enforcement policies and priorities.” Second, the government invoked 8

U.S.C § 1103(a), which charges the secretary “with the

administration and enforcement of this chapter and all

other laws relating to the immigration and naturalization of aliens.” Third, the government relied on the interaction between 8 U.S.C. § 1324a(h)(3) and 8 C.F.R.

274a.12(c)(14). The former statute excludes from the

definition of “unauthorized alien” an alien who is “authorized to be so employed by this chapter or by the

Attorney General.” The latter regulation states that an

5

alien who has been granted deferred action “must apply for work authorization” if she “establishes an economic necessity for employment.” The solicitor general

conceded that “Section 1324a(h)(3) did not create the

Secretary’s authority to authorize work; that authority

already existed in Section 1103(a), the vesting clause

that gives the Secretary sweeping authority to administer the INA and to exercise discretion in numerous

respects.” Brief for DAPA Petitioners, at 63.

In short, the case for DACA’s statutory legality

hangs on only two provisions of the U.S. Code: 6 U.S.C.

§ 202(5) and 8 U.S.C § 1103(a). Can the authority for

DACA be found within the four corners of these statutes? No. Instead, the executive branch defended

DACA on a broader understanding of delegation.

A. CONGRESS DID NOT—AND COULD

NOT—IMPLICITLY AUTHORIZE DACA

BY ACQUIESCING TO PAST EXERCISES

OF DEFERRED ACTION

In 2014, the Office of Legal Counsel (OLC) opined

that DAPA and DACA were lawful. Karl R. Thompson,

OLC Memorandum Opinion, DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in

the United States and to Defer Removal of Others at 29

(Nov. 19, 2014) [hereinafter OLC Opinion]. OLC contended that these policies were legal, in part, because

Congress “implicitly approved” past “permissible uses

of deferred action.” Id. at 24.

The Court has, at times, endorsed this sort of “adverse possession” approach to the separation of powers. NLRB v. Noel Canning, 573 U.S. 513, 526 (2014)

(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 610 (1952) (Frankfurter, J., concurring); id.

6

at 613 (Scalia, J., concurring). That is, the president

can accumulate new constitutional powers “by engaging in a consistent and unchallenged practice over a

long period of time.” Id. at 613–14. But see Medellin v.

Texas, 552 U.S. 491, 532 (2008) (quoting Dames &

Moore v. Regan, 453 U.S. 654, 686 (1981)) (“Past practice does not, by itself, create power.”); Josh Blackman,

Defiance and Surrender, 59 S. Tex. L. Rev. 157, 164

(2018) (noting that “courts favor purported defiance

over voluntary surrender”) (citing McPherson v.

Blacker, 146 U.S. 1, 35–36 (1892)).

But the Court has never sanctioned the extension

of a Frankfurterian gloss to the statutory context. The

president cannot accrete new legislation-based powers

because Congress has acquiesced to similar accretions

in the past. The legality of DACA must stand or fall by

virtue of the authority delegated by 6 U.S.C. § 202(5)

and 8 U.S.C § 1103(a), not based on whether Congress

has acquiesced to past invocations of those authorities.

B. DACA IS NOT CONSONANT WITH PAST

EXECUTIVE PRACTICE

Even accepting OLC’s framework, DACA is not

“consonant with” past executive policy. See OLC Opinion at 24. OLC identified only “five occasions since the

late 1990s” where the government “made discretionary

relief available to certain classes of aliens through the

use of deferred action”: deferred action for (1) “[b]attered [a]liens [u]nder the Violence Against Women

Act”; (2) “T and U Visa [a]pplicants”; (3) “[f]oreign

[s]tudents [a]ffected by Hurricane Katrina”; (4)

“[w]idows and [w]idowers of U.S. [c]itizens”; and, as

relevant here, (5) the 2012 “Deferred Action for Childhood Arrivals” (DACA) policy. Id. at 15–20.

7

The scope of Congress’s acquiescence for the first

four policies was far more constrained than OLC suggested. Each instance of deferred action was sanctioned by Congress, and one of two qualifications existed: (1) the alien already had an existing lawful presence in the U.S., or (2) the alien had the immediate

prospect of lawful residence or presence in the U.S. In

either case, “deferred action acted as a temporary

bridge from one status to another, where benefits were

construed as arising immediately post-deferred action.” Josh Blackman, The Constitutionality of DAPA

Part I: Congressional Acquiescence to Deferred Action,

3 Geo. L.J. Online 96, 112 (2015) (emphasis in original). See also Texas v. United States, 809 F.3d 134, 184

(5th Cir. 2015) (“[M]any of the previous programs were

bridges from one legal status to another, whereas

DAPA awards lawful presence to persons who have

never had a legal status and may never receive one.”)

(emphasis added).

The solicitor general makes this same point now:

these past practices “used deferred action to provide

certain aliens temporary relief while the aliens sought

or awaited permanent status afforded by Congress.”

Brief for the Petitioners at 47, Dep’t of Homeland Security v. Regents of the Univ. of California (2019) (Nos.

18-587, 18-588, and 18-589) [SG Brief]. Unlike previous recipients of deferred action, DACA beneficiaries

have no prospect of a formal status adjustment unless

they become eligible for some other statutory relief.

Nor does President George H.W. Bush’s 1990

“Family Fairness” policy, which OLC also cited, support DACA’s legality. First, the Family Fairness policy

served as a bridge to adjustment of status because it

was “interstitial to a statutory legalization scheme.”

8

Texas v. United States, 809 F.3d at 185; see also Peter

Margulies, The Boundaries of Executive Discretion:

Deferred Action, Unlawful Presence, and Immigration

Law, 64 Am. U. L. Rev. 1183, 1217 (2015) (“Family

Fairness was ancillary to Congress’s grant of legal status to millions of undocumented persons in IRCA.”).

Second, the actual size of the program is significantly

smaller than DACA. See SG Brief at 49; see also Glenn

Kessler, Obama’s Claim that George H.W. Bush Gave

Relief to ‘40 Percent’ of Undocumented Immigrants,

Wash. Post (Nov. 24, 2014), https://perma.cc/J92EC6M9. Third, the Family Fairness policy was premised

on a different statutory authority, known as extended

voluntary departure, 8 U.S.C. § 1254(e), which was severely curtailed in 1996. 8 U.S.C. § 1229c(a)(2)(A). The

solicitor general now seems to endorse this argument.

See SG Brief at 49 n. 10.2 As a result, all exercises of

deferred action prior to 1996 are of limited relevance.

Finally, OLC admitted that DACA stands on a

more tenuous footing than did DAPA. A cryptic footnote explained that OLC “orally advised” that DACA

was still “permissible,” even though it “was predicated

2 One of the courts below suggested that DACA rescission was

“arbitrary and capricious” because the attorney general “fail[ed]

to even consider OLC’s thorough analysis.” NAACP v. Trump, 298

F. Supp. 3d 209, 240 n.23 (D.D.C. 2018). But one president cannot

“choose to bind his successors by diminishing their powers.” Free

Enter. Fund v. PCAOB, 561 U.S. 477, 497 (2010). Nor can one

administration’s OLC bind a subsequent OLC. The attorney general’s decision to reverse course should be seen as an implicit repudiation of the 2014 OLC opinion. Moreover, declining to explain

internal agency deliberations was in no sense “arbitrary and capricious.” In any case, the solicitor general maintains that the

OLC memo on DAPA “does not undermine the Secretary’s conclusion that DACA is unlawful.” SG Brief at 47.

9

on humanitarian concerns that appeared less particularized and acute than those underlying certain prior

class-wide deferred action programs.” OLC Opinion at

18 n.8. In other words, DACA was less “consonant”

with past executive practice than was DAPA. Even if

this legal framework were correct, OLC once again

erred with respect to the facts. “[T]he concerns animating DACA were” not “consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion.” See id. Generally,

the “humanitarian concern” behind past deferred action policies concerned family reunification. DAPA, at

least, had this attribute: beneficiaries were required to

have a close kinship with a citizen or lawful permanent resident child. In contrast, DACA beneficiaries

need not have any familial relationship with any citizen or lawful resident. See Blackman, The Constitutionality of DAPA Part I, supra at 116–19. Amici agree

with OLC that the legal basis for DAPA was stronger

than the legal basis for DACA. Neither policy, however, can be squared with federal immigration law.

In sum, DACA lacks “express statutory authorization,” and is not supported by “implicit” congressional

acquiescence. This conclusion provides adequate

grounds to reverse the judgments below. The Administrative Procedure Act (APA) cannot be read to force

the executive branch to continue implementing a policy that is contrary to law, regardless of how it chooses

to rescind the policy. SG Brief at 51 (“[I]f DACA is unlawful, even an inadequate explanation could not provide a basis to overturn the agency’s decision to rescind

the unlawful policy.”). But even if the Court disagrees

on that point, or declines to resolve that question, the

executive branch has still provided adequate grounds

to justify the rescission of DACA.

10

II. IF FEDERAL LAW AUTHORIZES DACA,

IMPORTANT PROVISIONS OF THE INA

IMPERMISSIBLY DELEGATE

LEGISLATIVE POWER TO THE EXECUTIVE

The executive doesn’t need the judiciary’s permission to stop enforcing a law it sees as unconstitutional.

Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (Nov.

2, 1994). For example, in 2002, President George W.

Bush construed an obviously “mandatory” statute as

“advisory,” so as not to “impermissibly interfere with

[his] constitutional authority” concerning diplomatic

recognition. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2082

(2015). This decision was compelled by his duty to take

care that the laws be faithfully executed. Const., art.

II, § 3. Ultimately, the Court endorsed this exercise of

departmentalism. See Zivotofsky, 135 S. Ct. at 2096.

Likewise, the executive branch does not need the

judiciary’s permission to cease enforcing a regulation

it determines to be unconstitutional. Indeed, the APA

would be unconstitutional, as applied, whenever its

regulatory manacles required the executive to continue enforcing an unconstitutional policy.

Here, the attorney general determined that DACA

had “constitutional defects,” in light of the Fifth Circuit’s decision in Texas v. U.S, and the major questions

doctrine. The Court should defer to this reasonable interpretation of the president’s duty to faithfully execute the law because it avoids nondelegation problems.

In other words, courts should allow reversals of novel

execution actions that expand presidential power.

11

A. COURTS DO NOT DEFER TO

EXECUTIVE ACTIONS THAT IMPLICATE

“MAJOR QUESTIONS” OF “DEEP

‘ECONOMIC AND POLITICAL

SIGNIFICANCE’”

Under the familiar rule established in Chevron

U.S.A. Inc. v. Natural Res. Def. Council, Inc., courts

will defer to an agency’s interpretation of an ambiguous statute so long as the interpretation is reasonable.

467 U.S. 837, 845 (1984). In four cases from the past

quarter-century, however, the Court carved out an important exception to Chevron: when a regulation implicates a “major question,” the agency is owed no deference. See Josh Blackman, Gridlock, 130 Harv. L.Rev.

241, 260-265 (discussing doctrinal development).

First, FDA v. Brown & Williamson Tobacco Corp.,

held that the FDA could not expand its jurisdiction to

regulate tobacco as a “drug.” 529 U.S. 120, 131–33

(2000). This case introduced the concept of the “major

questions” doctrine. The phrase came from a 1986 article authored by then-Judge Stephen Breyer: “‘Congress is more likely to have focused upon, and answered, major questions,’” he wrote, “‘while leaving interstitial matters to answer themselves in the course

of the statute’s daily administration.’” Id. at 159 (emphasis added) (quoting Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L.Rev.

363, 370 (1986)). Regulations that resolve such “major

questions” in “extraordinary cases,” give courts “reason to hesitate before concluding that Congress has intended such an implicit delegation.” Id. As a result, the

Court was “obliged to defer not to the agency’s expansive construction of the statute, but to Congress’ consistent judgment to deny the FDA” the authority to

12

regulate tobacco as a drug. Id. at 160. The Court was

“confident that Congress could not have intended to

delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Id.

Second, Whitman v. American Trucking Ass’ns, 531

U.S. 457 (2001) elaborated on the Brown & Williamson

framework. The Court recognized that Congress “does

not alter the fundamental details of a regulatory

scheme in vague terms or ancillary provisions.” Id. at

468. Justice Scalia explained in a memorable line that

Congress “does not, one might say, hide elephants in

mouseholes.” Id. (citations omitted).

Third, in Util. Air Reg. Group v. EPA (UARG), the

Court added a skeptical gloss to Brown & Williamson:

“When an agency claims to discover in a long-extant

statute an unheralded power to regulate ‘a significant

portion of the American economy,’ we typically greet

its announcement with a measure of skepticism.” 573

U.S. 302, 324 (2014) (quoting Brown & Williamson,

529 U.S. at 159). Congress will “speak clearly if it

wishes to assign to an agency decisions of vast ‘economic and political significance.’” Id. ((quoting Brown

& Williamson, 529 U.S. at 159).

Fourth, the Court revisited the major questions

doctrine in King v. Burwell. 135 S. Ct. 2480 (2015).

This case considered whether the Affordable Care Act

(ACA) permitted the payment of subsidies on exchanges established by the federal government. Id. at

2488. The Court declined to defer to the government’s

reading of the ACA: “In extraordinary cases . . . there

may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Id. at

2488–89 (quoting Brown & Williamson, 529 U.S. at

13

159). Instead, it recognized that the payment of billions of dollars of credits on the federal exchanges was

a major question of “deep ‘economic and political significance’ that is central to this statutory scheme.” Id.

at 2489 (quoting UARG, 573 U.S. at 324)) (emphasis

added, to signal that the modifier “deep” was grafted

onto the Brown & Williamson test). If Congress had

intended for the IRS to have this authority to grant tax

credits, “it surely would have done so expressly.” Id.

A recent opinion from this Court sheds further light

on the major questions doctrine and its constitutional

foundation, the nondelegation doctrine.

B. “THE HYDRAULIC PRESSURE OF OUR

CONSTITUTIONAL SYSTEM . . .

SHIFT[ED] THE RESPONSIBILITY” FOR

REVIEWING LEGISLATIVE

DELEGATIONS FROM THE

NONDELEGATION DOCTRINE TO THE

MAJOR QUESTIONS DOCTRINE

Gundy v. United States considered the constitutionality of a provision of the Sex Offender Registration

and Notification Act (SORNA). 139 S. Ct. 2116 (2019).

SORNA § 20913(d) gave the attorney general “the authority to specify the applicability of the requirements

of this subchapter to sex offenders convicted before the

enactment of this chapter . . . and to prescribe rules for

the registration of any such sex offender.” A plurality

of the short-handed Court held that Section 20913(d)

did not violate the “nondelegation doctrine[, which]

bars Congress from transferring its legislative power

to another branch of Government.” Id. at 2121.

At least three justices disagree. The SORNA provision, Justice Gorsuch wrote, “purports to endow the

14

nation’s chief prosecutor with the power to write his

own criminal code governing the lives of a half-million

citizens.” Id. at 2131 (Gorsuch, J., dissenting).

Through this statute, he observed, Congress “gave the

Attorney General free rein to write the rules for virtually the entire existing sex offender population in this

country.” Id. at 2132. Justice Gorsuch acknowledged

that the Court “last held that a statute improperly delegated the legislative power to another branch” more

than eight decades ago. Id. at 2141. Yet “the Court has

hardly abandoned the business of policing improper

legislative delegations.” Id. The judiciary has continued to perform that function with a different label, notably “the ‘major questions’ doctrine.” Id.

Generally, “an agency can fill in statutory gaps

where ‘statutory circumstances’ indicate that Congress meant to grant it such powers.” Id. The major

questions doctrine is as an exception to that rule.

Chevron deference does not apply “[w]hen the ‘statutory gap’ concerns ‘a question of deep economic and political significance’ that is central to the statutory

scheme.’” Id. (quoting Burwell, 135 S. Ct. at 2488–89).

What are examples of such “major questions?” Justice

Gorsuch cited each case in the modern nondelegation

trilogy: (1) Brown & Williamson (regulations “to ban

cigarettes”); (2) UARG (regulations to “assume control

over millions of small greenhouse gas sources”); and

(3) King v. Burwell (regulations “to rewrite rules for

billions of dollars in healthcare tax credits”). Id. at

2141–42. In each case, deference was not warranted

because Congress “did not hide elephants in mouseholes.” Whitman, 531 U.S. at 468.

The major questions doctrine is not a mere “canon

of statutory construction.” See Gundy, 139 S. Ct. at

15

2142 (Gorsuch, J., dissenting). Instead, courts “apply

the major questions doctrine in service of the constitutional rule that Congress may not divest itself of its

legislative power by transferring that power to an executive agency,” id.3 “When one legal doctrine becomes

unavailable to do its intended work, the hydraulic

pressures of our constitutional system sometimes shift

the responsibility to different doctrines.” Id. (citing

McDonald v. Chicago, 561 U.S. 742, 758 (2010)). In

this way, the major questions doctrine is a corollary to

the nondelegation doctrine.

C. THE FIFTH CIRCUIT USED THE MAJOR

QUESTIONS DOCTRINE “IN SERVICE

OF THE CONSTITUTIONAL RULE” THAT

CONGRESS CANNOT DELEGATE ITS

LEGISLATIVE POWER

In Texas v. United States, the Fifth Circuit purported to decide the legality of DAPA “without resolving the constitutional claim.” 809 F.3d. at 154. Specifically, the panel expressly declined to “decide the challenge based on the Take Care Clause.” Id. at 146 n. 3.4

The panel observed that “[w]e merely apply the ordinary tools of statutory construction to conclude that

3 Although the Gundy plurality rejected Justice Gorsuch’s application of the nondelegation doctrine in that case, no justice disputes that the major questions doctrine reflects long-established

constitutional concerns.

Amici previously explained how DAPA runs afoul of the

Take Care Clause. See Brief for the Cato Institute et al. as Amici

Curiae Supporting Respondents at 20-30, United States v. Texas,

136 S. Ct. 2271 (2016) (No. 15-674) [“Cato DAPA Brief”]. These

arguments apply with equal force to DACA. See also Josh Blackman, The Constitutionality of DAPA Part II: Faithfully Executing

The Law, 19 Tex. Rev. L. & Pol. 215 (2015).

4

16

Congress directly addressed, yet did not authorize,

DAPA.” Id. at 183 n 191. Although the major questions

doctrine, again, is not a mere “canon of statutory construction,” Gundy, 139 S. Ct. at 2142 (Gorsuch, J., dissenting), part VII of Texas faithfully considered the

modern nondelegation trilogy:

DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and “we must be guided to a degree by common sense as to the manner in which Congress

is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” DAPA undoubtedly implicates

“question[s] of deep ‘economic and political significance’ that [are] central to this statutory

scheme; had Congress wished to assign that decision to an agency, it surely would have done

so expressly.”

Texas, 809 F.3d at 181 (citing Brown & Williamson,

529 U.S. 120, UARG, 573 U.S. 302, and King v. Burwell, 135 S. Ct. 2480).

Next, the Fifth Circuit considered the three statutes that OLC claimed supported DAPA, as well as

DACA: “the broad grants of authority” in 6 U.S.C. §

202(5) and 8 U.S.C. § 1103(a)(3) “cannot reasonably be

construed as assigning ‘decisions of vast ‘economic and

political significance,’ such as DAPA, to an agency.” Id.

at 183 (quoting UARG, 573 U.S. at 324). What about 8

U.S.C. § 1324a(h)(3), which purportedly empowers the

secretary to provide DACA recipients with work authorization? The court observed that the statute “does

not mention lawful presence or deferred action” and “is

17

listed as a ‘[m]iscellaneous’ definitional provision expressly limited to § 1324a.” Id. This section, which

“concern[s] the ‘Unlawful employment of aliens’” was

“an exceedingly unlikely place to find authorization for

DAPA.” Id. (citing Whitman, 531 U.S. at 468 (“Congress, we have held, 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 mouseholes.”). At bottom, the Fifth Circuit’s

decision is best understood to reflect an application of

the major questions doctrine, a corollary to the nondelegation doctrine.

D. THE ATTORNEY GENERAL’S LETTER

MADE A REASONABLE

CONSTITUTIONAL OBJECTION TO

DACA

In September 2017, the attorney general wrote a

one-page letter to the acting secretary of homeland security. A careful parsing of this executive-branch communication, read in conjunction with Texas and Justice Gorsuch’s Gundy dissent, establishes a reasonable

constitutional objection to DACA premised on the nondelegation doctrine. Indeed, this reading was apparent

even before Gundy.5

5 NAACP v. Trump, 298 F. Supp. 3d 209, 240 n.21 (D.D.C. 2018)

(“At least one commentator has identified a second possible constitutional argument in the Sessions Letter: ‘The Obama administration’s open-ended reading of certain definitional provisions

of the Immigration and Nationality Act (INA) would run afoul of

the nondelegation doctrine.’ See Josh Blackman, Understanding

Sessions's Justification to Rescind DACA, Lawfare (Jan. 16,

2018), https://perma.cc/B28T-2DRJ; see also Texas, 809 F.3d at

150 (noting that the plaintiffs there had asserted “constitutional

claims under the Take Care Clause” and the “separation of powers doctrine”)).

18

The letter recognized that under DACA, “certain

individuals who are without lawful status in the

United States [can] request . . . benefits such as work

authorization.” Letter from Attorney General Jeff Sessions to Acting Secretary Duke (Sept. 5, 2017). The attorney general explained that the work-authorization

grants were “effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after

Congress’ repeated rejection of proposed legislation

that would have accomplished a similar result.” Id. He

added that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id.

Why was the provision of work benefits “effectuated . . . without proper statutory authority”? Why was

it “an unconstitutional exercise of authority by the Executive Branch”? Why was it “an open-ended circumvention of immigration laws”? Admittedly, the attorney general’s letter is not a model of constitutional

clarity. But it need not be. It provides, at a minimum,

a reasonable constitutional objection to justify the rescission of DACA.

First, consider the regulation that authorizes the

secretary to grant DACA recipients with work authorization, with which we can presume the attorney general was familiar.6 8 C.F.R. 274a.12(c)(14) provides a

crystalline illustration of the elephant-in-mousehole

framework. In 1987, the Immigration and Naturalization Service denied a petition for rulemaking to restrict the issuance of work authorization to certain aliens. See Dep’t of Justice, Immig. & Naturalization,

6 See infra n.8.

19

Employment Authorization; Classes of Aliens Eligible,

52 Fed. Reg. 46,092 (Dec. 4, 1987). The government

justified the denial, in part, because the number of

such work authorizations would be “quite small”—so

small, that the number was “not worth recording statistically.” Id. at 46,092-93. Moreover, such authorizations would “normally [be] of very limited duration,”

and would be very rare. Id. at 46,092.

DACA operates in a very different fashion. The policy could provide roughly 1.5 million aliens with work

authorization, and those authorizations could be renewed for years to come.7 This elephantine-sized grant

of work authorizations—limited in neither size and

“with no established end-date”—cannot conceivably be

jammed into a not-statistically-significant mousehole.

In every sense, this provision of benefits relies on a

reading of federal immigration law that amounts to

“an unconstitutional exercise of authority by the Executive Branch”—that is, the exercise of legislative powers. The attorney general’s conclusion is consistent

with the Court’s admonition in Brown & Williamson:

“Congress could not have intended to delegate a decision of such economic and political significance”—the

ability to provide work authorization to 1.5 million aliens—“in so cryptic a fashion.”8

7 Texas v. United States, 328 F. Supp. 3d 662, 676 (S.D. Tex. 2018)

(“An estimated population of 1.5 million people—greater than the

populations of at least ten states—potentially qualify for these

benefits.”). As a matter of first principle, people should not need

government permission to work. But federal (and state) law often

imposes onerous and even irrational requirements on the right to

earn an honest living, which the president is powerless to alter.

8 In 2016, a group of 43 senators explained that “it strains credu-

lity that Congress would grant the Executive such unfettered discretion” to grant so many work authorizations. See Brief of Senate

20

Second, the attorney general’s analysis echoed another important attribute of modern nondelegation

doctrine: the provision of work authorization to 1.5

million aliens was a major question of “deep ‘economic

and political significance’ that is central to this statutory scheme.” King v. Burwell, 135 S. Ct. at 2489 (quoting UARG, 573 U.S. at 324)). Indeed, the attorney general stressed that DACA sidestepped Congress “after

Congress’ repeated rejection of proposed legislation

that would have accomplished a similar result.”

Secretary of Homeland Security Kristjen Nielsen

echoed this reading of Texas. Her June 2018 memorandum noted that the Fifth Circuit’s decision “turned on

the incompatibility of such a major nonenforcement

policy with the INA’s comprehensive scheme.” (emphasis added). That is, DACA resolved a “major question.”

The status of the Dreamers has divided our polity for

more than a decade. This question is of far deeper “economic and political significance” than the payment of

healthcare subsidies on the federal exchange.

Third, the letter cited part VII of the Fifth Circuit’s

panel decision. The attorney general reasoned that

“[b]ecause the DACA policy has the same legal and

constitutional defects that the courts recognized as to

DAPA, it is likely that potentially imminent litigation

would yield similar results with respect to DACA.”

Letter from Attorney General Sessions, supra (emphasis added). Admittedly, the Fifth Circuit purported to

Majority Leader Mitch McConnell and 42 Other Members of the

U.S. Senate as Amici Curiae Supporting Respondents at 22–23,

United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674). That

brief should provide some insight into the current administration’s thinking: it was authored by the current head of OLC and

joined by the attorney general who authorized DACA rescission.

21

decide the case “without resolving the constitutional

claim.” Texas, 809 F.3d. at 154. But that framing was

inapt. Justice Gorsuch’s Gundy dissent clarifies that

the application of the major question doctrine was a

constitutional decision. The attorney general’s reference to DAPA’s “constitutional defects” is most naturally understood as a rejection of the prior administration’s unbounded reading of federal law.

E. THE SOLICITOR GENERAL’S BRIEF

REAFFIRMS THE ATTORNEY

GENERAL’S REASONABLE

CONSTITUTIONAL OBJECTION

To be sure, the solicitor general stopped short of referring to the major questions doctrine, as well as the

nondelegation doctrine. He did not expressly reference

what the “constitutional defects” in DACA were. With

good reason. Generally, the federal government is hesitant to support doctrines that could result in the invalidation of federal law. But it is difficult to read the

government’s brief—especially after Gundy—without

seeing its constitutional overtones.

First, the solicitor general touches all the bases of

the Court’s modern nondelegation doctrine jurisprudence. He observes that “DHS retains authority to address ‘interstitial matters’ of immigration enforcement.” SG Brief at 44 (citing Brown & Williamson, 529

U.S. at 159). However, DACA “is hardly interstitial.”

Id. Next, he explains that “longstanding regulations”

concerning “work authorization” are inconsistent with

DACA, which “is not a gap-filling measure in any

meaningful sense.” Id. Instead, DACA is “an agency

decision[] of vast ‘economic and political significance’ ”

without any warrant from Congress.” Id. at 44–45

(quoting UARG, 573 U.S. at 324). “When an agency

22

claims to discover in a long-extant statute an unheralded power over important national affairs, this

Court typically greets its announcement with a measure of skepticism.” Id. at 45 (cleaned up).

Second, the solicitor general explains that the prior

administration’s broad reading of federal immigration

laws cannot be reconciled with Congress’s “finely reticulated regulatory scheme” over immigration. See

Trump v. Hawaii, 138 S. Ct. 2392, 2406–07 (2018) (citations omitted). The government argues that “neither

the INA’s general grants of authority in 6 U.S.C.

202(5) and 8 U.S.C. 1103(a)(3), nor the other scattered

references to deferred action throughout the U.S.

Code, can be fairly interpreted as authorizing DHS to

maintain a categorical deferred-action policy affirmatively sanctioning the ongoing violation of federal law

by up to 1.7 million aliens to whom Congress has repeatedly declined to extend immigration relief.” SG

Brief at 43–44 (emphasis added). The brief adds that 6

U.S.C. § 202(5) and 8 U.S.C. § 1103(a)(3) “simply do

not provide the clarity that is required to authorize a

nonenforcement policy of the nature and scope of

DACA.” SG Brief at 45-46 (emphasis added). Finally,

the brief observes that the lower courts did not “identify any specific delegation on which DHS could rely”

to enact a policy of DACA’s magnitude. SG Brief at 46

(emphasis added). The emphasized language—fairly

interpreted, clarity, and specific delegation—is about

as close as any solicitor general will ever get to conceding that his predecessor espoused a reading of federal

law that would violate the nondelegation doctrine.

Third, and most important, the solicitor general

frames the attorney general’s decision in expressly departmentalist terms: he was not merely interpreting a

23

statute, but was advising on the executive’s duty of

faithful execution. His brief explains that “as a coordinate Branch, the Executive has an independent duty

to determine whether it lacks authority to act.” SG

Brief at 50. What is an example of such a determination? The quintessential exercise of executive power:

“the Attorney General may direct United States Attorneys not to bring prosecutions that, in his view, would

be unconstitutional.” Id. at 51. Does the government

need to persuade the courts about the validity of that

action? Absolutely not. “[I]n the unique context of its

decision whether or not to enforce the law, the Executive is entitled to act on its view of the bounds of its

enforcement discretion even if the courts might disagree.” Id. at 50–51 (emphasis added). The solicitor general explains that “[t]here is nothing arbitrary and capricious about making such an enforcement decision

based on the Executive’s own view of what the law permits. So too here, DHS was entitled to stand on its

view that DACA is an invalid exercise of prosecutorial

discretion even if the courts would uphold it.” Id. It is

difficult to read this conclusion, which follows a

lengthy discussion of the major questions doctrine, as

anything but an endorsement of the constitutional theory underlying the nondelegation doctrine.

Here, the executive branch is on the same page: the

previous administration’s reading of federal law that

supports DACA would render parts of the INA unconstitutional. For that reason, the attorney general recommended, and the secretary decided, to rescind

DACA. The Court should hesitate before reaching an

alternate holding, in which the attorney general and

the secretary of homeland security, as well as the solicitor general, were simply mistaken about the executive’s faithful execution. The better understanding is

24

that the reference to DACA’s “constitutional defects”

was framed in terms of the major questions and nondelegation doctrines, as Justice Gorsuch recognized in

Gundy.9 But if there is any doubt about this important

question, the government should be asked to represent

its position about DACA’s “constitutional defects.”

F. TO ELIMINATE NONDELEGATION

CONCERNS, COURTS SHOULD DEFER

TO REVERSALS OF NOVEL EXECUTIVE

ACTIONS THAT EXPANDED EXECUTIVE

POWER

Admittedly, amici’s reading of the attorney general’s letter is charitable. Indeed, one of the court below took exception to this approach: “Some academic

commentators have offered interesting arguments as

to why courts should review deferentially Defendants’

decision to end the DACA program.” Vidal v. Nielsen,

279 F. Supp. 3d 401, 421 (E.D.N.Y. 2018) (citing Josh

Blackman on Lawfare Blog and Zachary Price on Take

Care Blog). The court observed that the government

has not sought such deference, “arguing instead that,

if their decision is indeed subject to judicial review, it

should be reviewed under the ordinary arbitrary-andcapricious standard of APA § 706(2)(A).” 279 F. Supp.

at 421, n. 9 (emphasis added). If the government still

maintains this position, amici respectfully posit that a

different standard should be applied.

9 One of the courts below contended that because the government

did “not raise” arguments premised on the nondelegation doctrine, it would “not consider them.” NAACP, 298 F. Supp. 3d at

240 n. 21 (D.D.C. 2018). Amici contend that these constitutional

defenses were not—and indeed cannot be—waived.

25

The attorney general’s letter is not akin to mundane guidance documents in which an agency interprets its own regulations. See Kisor v. Wilkie, 139 S.

Ct. 2400 (2019). This case isn’t about the “regulatory

definition of active moiety,” whatever that is. Id. at

2410 n.1. Rather, the letter explains that continuing to

enforce DACA would be unconstitutional. And it concludes: “As Attorney General of the United States, I

have a duty to defend the Constitution and to faithfully execute the laws passed by Congress.” This invocation of the constitutional standard takes this letter

out of the realm of normal administrative law. See SG

Brief at 50 (“DHS was interpreting the scope of its own

authority to maintain a discretionary policy of nonenforcement that no one claims was required by law.”).

For example, the Court has recognized that the major questions doctrine takes a regulation out of Chevron’s domain. Such a “presidential discovery” of new

power should not be entitled to deference. See Josh

Blackman, Presidential Maladministration, 2018 Ill.

L. Rev. 397, 423 (2018) (“[W]hen the President’s instigation leads to an agency asserting some new power,

Article III spider senses should start tingling. This

caution should be even more pronounced when the discovery of the new power occurs after Congress refused

to vest a similar power through bicameralism.”). This

cramped approach restores the “major question” back

to the democratic process.

A similar dynamic should apply for the major questions doctrine, but in reverse: deference should be afforded to the rescission. Stated differently, the “presidential discovery” of a novel power should be viewed

with skepticism, while the “presidential reversal” of

that action should be viewed with deference. See id. at

26

405, 483-84. The “ordinary arbitrary-and-capricious

standard of APA § 706(2)(A),” Vidal, 279 F. Supp. at

421 (emphasis added), is not applicable in this context.

Both approaches lead to the same destination:

“while Congress can enlist considerable assistance

from the executive branch in filling up details and

finding facts,” Congress cannot “endow the nation’s

chief prosecutor with the power to write his own [immigration] code governing the lives of [one-and-a-]halfmillion” aliens. See Gundy, 139 S. Ct at 2131, 2148

(Gorsuch, J., dissenting).

*

*

*

If the previous administration’s boundless reading

of immigration law was correct, Congress would have

unconstitutionally delegated legislative authority to

the executive branch. Indeed, leading immigration

scholars—whom the government cited—endorse such

an expansive conception of statutory delegation. See

Adam B. Cox & Cristina M. Rodríguez, The President

and Immigration Law, 119 Yale L.J. 458, 511 (2009)

(noting that the president now enjoys a “de facto delegation of power that serves as the functional equivalent to standard-setting authority.”); Adam B. Cox &

Cristina M. Rodríguez, The President and Immigration Law Redux, 125 Yale L.J. 104, 155 (2015) (concluding that “the structure of modern immigration law

simply leaves us with no discernable congressional enforcement priorities.”); Josh Blackman, Immigration

Inside the Law, 55 Washburn L.J. 31 (2016) (recalling

that according to some immigration scholars, “Congress and the INA impose absolutely no constraints on

the prosecutorial discretion of the President, so long as

the President does not entirely stop deportations”).

27

But a de facto delegation of statutory authority

with no discernable congressional enforcement priorities would “constitute an invalid delegation of legislative power to the executive.” See Cato DAPA Brief at

24–25. In a conflict between a novel executive action

based on a theory that would render vast swaths of immigration law unconstitutional, and a more constrained reading of those laws that allows Congress to

resolve “major questions,” the latter must prevail.

The Court need not treat this case as a vehicle “to

revisit” the nondelegation doctrine, writ large. Gundy,

139 S. Ct. at 2131 (Gorsuch, J., dissenting). Instead, it

can be resolved on the narrower “hydraulic” principle

afforded by the major questions doctrine. Indeed, this

modified approach is especially appropriate here because the executive seeks to reverse a discretionary

policy endorsed by his predecessor. Here, we have the

rare situation where the federal government seeks to

contract, rather than expand, its own powers. SG Brief

at 39 (“Nothing in our system of separated powers prohibits executive officials from seeking legislative approval for particularly significant executive actions.”).

Courts enforcing constitutional checks and balances

should encourage these kinds of decisions.

CONCLUSION

Presidents with different priorities come and go.

But under our constitutional separation of powers,

Congress’s “painstaking[ly] detail[ed]” and “finely reticulated regulatory scheme” over immigration must

prevail. See Trump v. Hawaii, 138 S. Ct. at 2444 (Sotomayor, J., dissenting). Congress, not the president,

is empowered to resolve the status of the Dreamers, a

major question that has divided our polity for more

28

than a decade. Three years ago, amici explained that

rejecting this novel discovery of executive power

“would return the ball of change to the court where it

belongs: Congress.” Cato DAPA Brief at 34. The same

principle controls here.

Respectfully submitted,

Josh Blackman

1303 San Jacinto St.

Houston, TX 77079

(713) 646-1829

jblackman@stcl.edu

August 26, 2019

Ilya Shapiro

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org