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

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

In the Supreme Court of the United States

__________________

DEPARTMENT OF HOMELAND SECURITY, et al., Petitioners,

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,

Respondents.

__________________

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

al., Petitioners,

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, et al., Respondents

__________________

KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND

SECURITY, et al., Petitioners,

v.

MARTIN JONATHAN BATALLA VIDAL, et al., Respondents.

__________________

On Writs of Certiorari to the United States Courts of

Appeals for the Ninth, District of Columbia, and

Second Circuits

__________________

BRIEF AMICUS CURIAE OF CITIZENS UNITED,

CITIZENS UNITED FOUNDATION, AND

THE PRESIDENTIAL COALITION, LLC

IN SUPPORT OF PETITIONERS

__________________

August 26, 2019

ROBERT J. OLSON*

JEREMIAH L. MORGAN

HERBERT W. TITUS

WILLIAM J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

*Counsel of Record

Attorneys for Amici Curiae

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iv

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

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT

I.

DHS’ DECISION TO END DACA AND ENFORCE

IMMIGRATION LAW IS NOT JUDICIALLY

REVIEWABLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Revising Reviewability Precedents:

From “No Opinion” to “May Be” to “Is” . . 10

B. The Decision to End DACA Is Not a

“Nonenforcement Decision” . . . . . . . . . . . 13

II. DHS’ DECISION TO END DACA WAS LAWFUL

UNDER SEC V. CHENERY . . . . . . . . . . . . . . . . . 16

III. DACA HAS BEEN UNLAWFUL SINCE ITS

INCEPTION, BUT EVEN IF FOUND LAWFUL, WAS

LAWFULLY RESCINDED . . . . . . . . . . . . . . . . . . . 18

iii

A. The Ninth Circuit Clearly Erred by

Failing to Consider the Constitutionality

of DACA . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

B. DACA Is an Unconstitutional Exercise of

Legislative Power . . . . . . . . . . . . . . . . . . . 20

C. DACA Violates Separation of Powers

Principles. . . . . . . . . . . . . . . . . . . . . . . . . . 22

D. DACA Violates the Take Care Clause . . . 24

E. Even if DACA Was Lawful, It Can Be

Lawfully Rescinded . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

iv

TABLE OF AUTHORITIES

Page

HOLY BIBLE

Exodus 18:16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

U.S. CONSTITUTION

Art. I, Sect. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26

Art. I, Sect. 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Art. II, Sect. 1, Cl. 8 . . . . . . . . . . . . . . . . . . . . . . . . 24

Art. II, Sect. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

STATUTES

5 U.S.C. § 701, et seq. . . . . . . . . . . . . . . . . . . . . . 6, 16

Immigration and Nationality Act . . . . . . . . 6, passim

CASES

Arizona v. United States, 567 U.S. 387

(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 21

City of Arlington v. FCC, 569 U.S. 290

(2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Clinton v. New York, 524 U.S. 417 (1998) . . . . . . 25

Cooper v. Aaron, 358 U.S. 1 (1958). . . . . . . . . . . . 27

Dept. of Transportation v. Ass’n. of American

R.R., 135 S. Ct. 1225 (2015). . . . . . . . . . . . 23, 26

District of Columbia v. Heller, 554 U.S. 570

(2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Franklin v. Massachusetts, 505 U.S. 768 (1992) . . 9

Harper v. Va. Dep’t of Taxation, 509 U.S. 86

(1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Heckler v. Chaney, 470 U.S. 821 (1985) . . 10, 11, 13

IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017). . . . 10

Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . 7, 28

v

Montana Air Chapter No. 29 v. Federal Labor

Relations Authority, 898 F.2d 753

(9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . 11, 12

SEC v. Chenery Corp., 318 U.S. 80 (1943) 16, 17, 18

Texas v. United States, 86 F. Supp. 3d 591

(S.D. Tex. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 6

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

2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Texas, 136 S.Ct. 2271 (2016) . . . . 6

Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952). . . . . . . . . . . . . . . . . . . . . . 14, 22

MISCELLANEOUS

50 Core American Documents (C. Burkett, ed.:

Ashbrook Press: 2016) . . . . . . . . . . . . . . . . . . . 29

B. Adams, “Late to the party: CNN and

MSNBC anchors discover there’s a crisis

at the border,” Washington Examiner

(June 26, 2019). . . . . . . . . . . . . . . . . . . . . . . . . . 4

W. Blackstone, Commentaries on the Laws

of England (Univ. Chi. Facsimile ed.:

1765) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

G. Carey & J. McClellan, The Federalist

(Liberty Fund: 2001). . . . . . . . . . . . . . . . . 14, 29

E. Chemerinsky, In Defense of Judicial

Supremacy, 58 WM. & MARY L. REV.

1459 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Customs and Border Protection, Southwest

Border Migration FY 2019 . . . . . . . . . . . . . . . . 5

S.A. Camarota and K. Zeigler, “63% of

Non-Citizen Households Access Welfare

Programs,” Center for Immigration Studies

(Nov. 20, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

vi

R. Delahunty & J. Yoo, “Dream On: The

Obama Administration’s Nonenforcement

of Immigration Laws, the DREAM Act,

and the Take Care Clause,” 91 TEX. L.

REV. 781 (2013) . . . . . . . . . . . . . . . . . . . . . . . . 26

P. Kurland & R. Lerner, The Founders’

Constitution (Univ. of Chicago Press:

1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Letter from Thomas Jefferson to William

Charles Jarvis (Sept. 28, 1820) . . . . . . . . . 29, 30

K. Pavlich, “His Own Words: Obama Said He

Doesn't Have Authority For Executive

Amnesty 22 Times,” TownHall.com

(Nov. 19, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . 22

K.R. Thompson, “The Department of Homeland

Security’s Authority to Prioritize Removal of

Certain Aliens Unlawfully Present in the

United States and to Defer Removal of

Others,” U.S. Department of Justice, Office

of Legal Counsel (Nov. 19, 2014). . . . . . . . . . . 21

U.S. Citizenship and Immigration Services,

Approximate Active DACA Recipients:

Country of Birth (July 31, 2018) . . . . . . . . . . . 21

INTEREST OF THE AMICI CURIAE1

Citizens United is a nonprofit social welfare

organization exempt from federal income tax under

Internal Revenue Code (“IRC”) section 501(c)(4).

Citizens United Foundation is a nonprofit educational

and legal organization exempt from federal income tax

under IRC section 501(c)(3). These organizations were

established, inter alia, for purposes related to

participation in the public policy process, including

conducting research, and informing and educating the

public on the proper construction of state and federal

constitutions, as well as statutes related to the rights

of citizens, and questions related to human and civil

rights secured by law.

The Presidential Coalition, LLC is an IRC section

527 political organization that was founded to educate

the American public on the value of having principled

conservative Republican leadership at all levels of

government, and to support the election of

conservative candidates to state and local government

and the appointment of conservatives to leadership

positions at the federal and state level in order to

advance conservative public policy initiatives.

These amici, along with several others, filed three

amicus briefs in two of these consolidated cases last

year:

1

It is hereby certified that counsel for the parties have consented

to the filing of this brief; that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

•

U.S. Department of Homeland Security v.

Regents of the University of California, Brief

Amicus Curiae of Citizens United, et al., U.S.

Supreme Court, on petition for certiorari

before judgment (Feb. 2, 2018);

•

Vidal v. Nielsen, Brief Amicus Curiae of

Citizens United, et al., U.S. Court of Appeals

for the Second Circuit (Mar. 14, 2018); and

•

U.S. Department of Homeland Security v.

Regents of the University of California, Brief

Amicus Curiae of Citizens United, et al., U.S.

Supreme Court, on petition for certiorari (Dec.

6, 2018).

STATEMENT

The Brief for the Petitioners (“Pet. Br.”) addresses

the need for a rescission of the Deferred Action for

Childhood Arrivals (“DACA”) policy based on the

findings made by Secretary Nielsen in her statement

of July 22, 2018. Pet. Br. at 10, 40-41. These findings

supplemented the reasons given by Acting Secretary

Elaine C. Duke in her September 5, 2017

memorandum determining that DACA was unlawful

and would be wound down. In addition to agreeing

that DACA was contrary to law, Secretary Nielsen

asserted that “‘tens of thousands of minor aliens’ ...

have made the dangerous trek — with or without their

families — to and across our southern border without

legitimate claims to lawfully enter the country.” Id. at

40. Secretary Nielsen determined it necessary “that

DHS should send a strong message that children who

3

are sent or taken on this perilous and illegal journey

will not be accorded preferential treatment.” Id. at 41.

The lack of enforcement of our nation’s

immigration laws mandated by the courts below sends

exactly the wrong signal — that the United States

Government has lost the will to enforce its borders,

and that anyone who enters the country illegally

stands an excellent chance of being rewarded with

permanent status as a lawful resident, and likely

citizenship as well.

Multiple nationwide federal court injunctions that

have been in place for nearly two years send the

message that federal judges are in charge of our

borders — not Congress or the President of the United

States — and judges are welcoming of illegal

immigrants. Indeed, the Ninth Circuit did not try to

hide its policy preferences, praising DACA as a

response to “the cruelty and wastefulness of deporting

productive young people to countries with which they

have no ties.” Regents of the Univ. of Cal. v. U.S.

Dep’t of Homeland Security, 908 F.3d 476, 486 (9th

Cir. 2018) (“Regents”).2

In their briefs urging that the injunctions be

maintained, Respondents are unlikely to concede that

2

Pairing lax and deferred enforcement with the range of welfaretype benefits, the lower court injunctions have exacerbated the

current crisis at the border. Almost two-thirds of illegal aliens

reportedly are receiving welfare benefits. See S.A. Camarota and

K. Zeigler, “63% of Non-Citizen Households Access Welfare

Programs,” Center for Immigration Studies (Nov. 20, 2018).

4

there is a crisis at the border as Secretary Nielsen

contended — although the mainstream media, which

has supported Respondents’ litigation throughout, has

changed its collective view on that point. On February

14, 2019, CNN Anchor Don Lemon opposed President

Trump’s attempt to declare a national emergency to

secure border funding:

Here is a really, really disgraceful thing. OK?

You listening? All of this, this whole mess, is

manufactured. It’s a manufactured crisis. A

noncrisis at the border that’s really not fooling

anybody. People go, ‘Oh, it’s a crisis, it’s a

crisis.’ They know it’s not a crisis. That’s all

for political expediency. [B. Adams, “Late to

the party: CNN and MSNBC anchors discover

there’s a crisis at the border,” Washington

Examiner (June 26, 2019).]

More recently, Lemon reversed ground, stating:

“For anybody who doesn’t think that

immigration is a crisis, a deadly serious crisis,

a humanitarian crisis....” [Id.]

CNN’s Chris Cuomo and MSNBC’s Brian Williams

showed the same pattern and have agreed there is a

crisis at the border. See id.

Some years ago, this Court recognized the scope of

the problems that border states face as a result of

illegal immigration. In Arizona v. United States, 567

U.S. 387 (2012), the Court noted that, in 2010, the

federal government “apprehended almost half a

5

million” unlawful aliens. Arizona at 397. The Court

added that “[s]tatistics alone do not capture the full

extent of Arizona’s concerns” about illegal

immigration, adding that the record in that case

demonstrates “an ‘epidemic of crime, safety risks,

serious property damage, and environmental problems’

associated with the influx of illegal migration across

private land near the Mexican border.” Id. at 398.

Since last addressed by this Court, conditions have

only worsened, and the nation’s border remains in

crisis. Each year, from FY 2014 through FY 2018,

Customs and Border Patrol has continued to

apprehend an average of over half a million

“inadmissibles.”

Broad deferred enforcement programs such as

DACA and Deferred Action for Parents of Americas

(“DAPA”) create an incentive for migrants to enter the

United States illegally, not waiting for proper

immigration processes. This year has seen an

explosion of illegal border crossings and

apprehensions, with over 144,000 apprehensions in

May 2019 alone.3 Through the first 10 months of FY

2019, there have been 862,785 apprehensions on the

Southwest border, but this number does not include

illegal crossings, making it impossible to know how

many total illegal immigrants are entering the United

States each month. The Constitution did not invest in

the federal judiciary the authority to protect the

nation’s borders, and it should not continue to impede

3

See Customs and Border Protection, Southwest Border

Migration FY 2019, https://www.cbp.gov/newsroom/

stats/sw-border-migration.

6

the President of the United States in his effort to do

just that.

It is in this context — the existence of a true crisis

at the border — a border that the President of the

United States has the duty to protect — that these

cases come to this Court.

STATEMENT OF THE CASE

The original DACA policy, implemented by the

Obama Administration in 2012, was a decision not to

enforce existing law against a broad class of persons.

The later and lawfully indistinguishable DAPA policy,

which also expanded DACA, was determined to violate

the notice-and-comment provision of the

Administrative Procedure Act (“APA”) (5 U.S.C. § 701,

et seq.) by the U.S. District Court for the Southern

District of Texas. Texas v. United States, 86 F. Supp.

3d 591 (S.D. Tex. 2015). That decision was affirmed by

the U.S. Court of Appeals for the Fifth Circuit. The

Fifth Circuit took the position that DAPA (and its

expansion of DACA) judgment likely violated both the

APA and the Immigration and Nationality Act. Texas

v. United States, 809 F.3d 134, 136, 170-196 (5th Cir.

2015). Lastly, the judgment of the Fifth Circuit was

affirmed by this Court on an equally divided vote.

United States v. Texas, 136 S.Ct. 2271, 2272 (2016)

(per curiam).

Once the Trump Administration’s Department of

Homeland Security announced its decision to rescind

the DACA policy on September 5, 2017, it was

subjected to multiple challenges: (i) in the U.S.

7

District Court for the Northern District of California

(by the Regents of the University of California, et al.);

(ii) in the District of Columbia (by the National

Association for the Advancement of Colored People, et

al.); and (iii) in the Eastern District of New York (by

Batalla Vidal). These three cases led to the issuance

of three nationwide injunctions against DHS that

remain in effect to this day, nearly two years later.

SUMMARY OF ARGUMENT

The Trump Administration’s decision to end the

DACA non-enforcement policy — which has applied to

a broad class of persons illegally in the United States

— merely returns to the Department of Homeland

Security (“DHS”) the ability to begin to enforce

immigration law as it had been enforced prior to 2012.

The decision to end DACA and begin enforcement itself

did not constitute an adverse action against any

person illegally in the country, and therefore, no one

should have had standing even to challenge its

rescission.

The decision to end DACA was not a nonenforcement decision and should not have been

evaluated as such. Rather, it was the opposite — a

decision to revoke a non-enforcement policy. That

decision to begin enforcement was unreviewable by the

judiciary because it could have been made by DHS for

any policy reason whatsoever. This Court’s decision in

SEC v. Chenery presents no bar to rescission of the

DACA non-enforcement decision. The decision to

enforce the law was not just presumptively

8

unreviewable by federal courts, it was also completely

unreviewable.

The courts below have made the legality and

constitutionality of DACA an issue in this case. The

justification for the injunctions against the rescission

of DACA was that it was predicated, in part, on an

opinion by the Attorney General and Secretary of DHS

that DACA was unlawful. Because the judges involved

disagreed, believing that DACA was lawful, the courts

felt empowered to enjoin DACA’s rescission on the

theory that the government had made a mistake of law

in viewing DACA to be unlawful, thereby rendering

the rescission illegitimate.

Actually, the courts had no basis to enjoin DHS,

irrespective of whether DACA was lawful or unlawful.

First, the judges were wrong in concluding that the

original DACA policy was lawful, and if the Court

agrees, the injunctions must be dissolved. However,

even if this Court were to believe that the original

DACA policy was lawful, the injunctions should still be

dissolved. This case does not present a situation

where there is a dispute of law between an agency and

the courts, and the court must have the final say.

There is no doctrine of judicial supremacy which

requires the Executive to consult with and then bow to

the opinion of the courts before determining and

carrying out its executive functions. Nor are the

Petitioners asking the courts to stand down from any

role in reviewing individual immigration decisions.

Rather, the courts have no role at this time in

mandating what the nation’s immigration policies will

be.

9

ARGUMENT

I.

DHS’ DECISION TO END DACA AND

ENFORCE IMMIGRATION LAW IS NOT

JUDICIALLY REVIEWABLE.

Former Attorney General Sessions and the

Secretary of the Department of Homeland Security

determined that DACA should be phased out, inter

alia, because “the Department lacked statutory

authority to have created DACA in the first place,”

having been “‘an unconstitutional exercise of

authority’” with “the same legal and constitutional

defects that the courts recognized as to DAPA.”4

Regents at 491-92.5 The Ninth Circuit did not dispute

— and indeed no one appears to have disputed — that

the Trump Administration has the absolute discretion

to end the DACA program based on a change in policy.6

See Pet. Br. at 19-20; see also Regents at 510. And no

one in this case has alleged that the executive branch

has improperly enforced any immigration law that

Congress enacted. See Pet. Br. at 19. Indeed,

4

The legality of the DACA program is discussed in Section III,

infra.

5

The government argues that it also had provided additional

reasons for reversing the DACA program, and that those reasons

independently support its decision. Pet. Br. at 37.

6

Presumably, President Trump could simply declare “I have

chosen to end DACA because I believe it necessary to protect the

border,” and that would moot this case, as APA does not apply to

the President, absent express statement by Congress. See

Franklin v. Massachusetts, 505 U.S. 768, 801 (1992).

10

revocation of DACA only signals an intent to enforce

federal immigration law as it was enforced prior to

2012. The only sticking point for the courts has been

the reasons given for the decision to end DACA and to

begin to enforce immigration law. In other words,

DHS made a permissible decision

for an

impermissible reason.7 Due to this perceived error in

reasoning (but not in judgment), the Ninth Circuit

panel below claimed that the decision to end DACA is

judicially reviewable.

A. Revising Reviewability Precedents:

From “No Opinion” to “May Be” to “Is.”

On its way to determining that the DHS decision

to revoke DACA was judicially reviewable, the panel

below first cited Heckler v. Chaney, 470 U.S. 821, 832

(1985), where this Court held that nonenforcement

7

This is not the first time that the lower courts have invalidated

this President’s policy agenda based on allegations of improper

reasons for otherwise legitimate decisions. See, e.g., IRAP v.

Trump, 857 F.3d 554, 572 (4th Cir. 2017) (claiming President

Trump’s order “drips with religious intolerance, animus, and

discrimination”). The lower courts have repeated these ad

hominem attacks ad nauseam, claiming that hidden, secret

motivations override the legality of otherwise perfectly acceptable

policy choices with which federal judges personally disagree. In

this case, the judges of the Ninth Circuit have made no secret of

how they wanted the case to turn out. Claiming that President

Obama’s policies “[r]ecogniz[ed] the cruelty and wastefulness of

deporting productive young people,” the allegedly neutral and

detached magistrates below decried the current administration’s

decision to end this so-called “‘commendable exercise’” and to

disappoint DACA recipients who were “trusting the government

to honor its promises.” Regents at 486-87.

11

decisions by the executive branch are presumed to be

nonreviewable by the judiciary. Regents at 495.

However, as the Ninth Circuit noted, this Court had

“express[ed] no opinion” as to whether an agency’s

nonenforcement decision is judicially reviewable if

based upon the belief that the agency lacked

jurisdiction to institute proceedings. Chaney at 833

n.4.8

Undeterred, the Ninth Circuit filled in the alleged

gap in Chaney with its own prior opinion in Montana

Air Chapter No. 29 v. Federal Labor Relations

Authority, 898 F.2d 753, 754 (9th Cir. 1990), finding

that “the Supreme Court had nevertheless ‘suggested

that’” such decisions “‘may be reviewable.’” Regents at

496. Thus, the Ninth Circuit understood Montana Air

as having established that the “presumption of

nonreviewability ‘may be overcome if the refusal is

based solely on the erroneous belief that the agency

lacks jurisdiction.’” Id. (emphasis added).

A page later, however, the Ninth Circuit took yet

another leap, converting Montana Air’s “may be

overcome” language into a hard-and-fast rule that “a

nonenforcement decision is reviewable ... if the

decision was based solely on the agency’s belief that it

lacked jurisdiction to act.” Regents at 497 (emphasis

8

This Court also discussed a situation where “the statute

conferring authority on the agency might indicate that such

decisions were not ‘committed to agency discretion’” (id.), but that

situation is not present here.

12

added).9 Of course, by the Ninth Circuit’s own

admission, this Court has never reached that

conclusion and neither had the Ninth Circuit — until

its decision in this case.

Then, as the icing on its cake, the Ninth Circuit

relied on City of Arlington v. FCC, 569 U.S. 290 (2013),

for the proposition that “there is no difference between

an agency that lacks jurisdiction to take a certain

action, and one that is barred by the substantive law

from doing the same....” Id. at 497. But the facts in

this case have nothing to do with the City of Arlington

distinction between an agency “exceeding the scope

of its authority ... and its exceeding authorized

application of authority that it unquestionably has,”10

or between agencies which “‘act improperly’” versus

ones that act “‘beyond their jurisdiction.’” Regents at

496 (emphasis added). Rather, in this case, DHS

clearly has not acted in excess of or beyond its

jurisdiction — but rather, it is the Ninth Circuit’s

opinion that, in implementing DACA, the agency has

acted well within any limit on its authority. Here, the

Ninth Circuit takes the position that DHS has far

more authority than the agency itself believes it has.

City of Arlington has no application here.

9

In Montana Air, the Ninth Circuit separately concluded that an

agency’s nonenforcement decision might be reviewable if based

“upon adoption of a general policy so extreme as to amount to an

abdication of the agency’s statutory responsibilities.” Id. at 754.

Unsurprisingly, the Ninth Circuit never mentioned this rule when

it opined that the original DACA program — adopting a general

policy not to enforce the law — was lawful.

10

City of Arlington at 299 (emphasis added).

13

B. The Decision to End DACA Is Not a

“Nonenforcement Decision.”

As discussed above, neither this Court’s decisions

nor the Ninth Circuit’s own precedents support its

conclusion that the decision to end DACA is judicially

reviewable. But there is an even more fundamental

weakness in the Ninth Circuit’s decision. The decision

to revoke DACA is not a “nonenforcement decision.”

Regents at 497. Rather, it is the opposite — an

enforcement decision — a “decision to rescind a

nonenforcement policy....” Pet. Br. at 21. Therefore,

this is not a case like Chaney where an agency decides

not to enforce because it does not have the jurisdiction

to bring enforcement proceedings. Rather, here an

agency is deciding to enforce the statute as it is

written, based on the court below’s theory that it does

not have the authority to abdicate its responsibility

to enforce the law.

This means that none of the factors weighing in

favor of judicial reviewability of nonenforcement

decisions is applicable here. See Pet. Br. at 31-32.

Certainly when, as here, an agency states its intent to

enforce the law, there is no “danger that [the] agenc[y]

may not carry out [its] delegated powers with

sufficient vigor....” Chaney at 834. Indeed, unlike

actual nonenforcement decisions, an enforcement

decision presents no conflict between the legislature

and the Executive. Rather, with the DHS decision to

revoke DACA and enforce immigration law, Congress

and the executive branch are once again in lockstep.

Congress has determined that certain persons are

unlawfully present in the United States, and the

14

Trump Administration has announced its intent to

enforce that law. It is only the lower federal courts —

part of the allegedly “weakest of the three departments

of power”11 — which have stood in the way, forcing

both other branches of government to bend to the

judiciary’s will through the liberal application of

nationwide injunctions.12

Both Respondents and the courts below try to give

the impression that the revocation of DACA will end

all exercises of prosecutorial discretion, and that all

DACA recipients immediately will be deported. On the

contrary, there is no indication that the executive

branch now will move generally to deport persons who

are part of the DACA program. With DACA repealed,

enforcement will simply revert to the way it was before

— with real prosecutorial discretion being applied

based on the facts and circumstances of actual

individual cases. True prosecutorial discretion will

replace the policy discretion, on a categorical basis,

engaged in by the prior administration.

11

A. Hamilton, Federalist No. 78, reprinted in G. Carey & J.

McClellan, The Federalist at 402 (Liberty Fund: 2001).

12

This Court has held that when the Executive and Congress act

arm-in-arm on a matter, the President’s authority is at its

maximum. Thus, a decision to enforce federal law, when

“executed by the President pursuant to an Act of Congress would

be supported by the strongest of presumptions and the widest

latitude of judicial interpretation, and the burden of persuasion

would rest heavily upon any who might attack it.” Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).

15

Respondents here are attempting to convince this

Court to do on a wholesale level what instead should

be done at the retail level. But as Petitioners note, “an

alien subjected to removal proceedings may challenge

the substantive validity of an adverse final order, but

he may not raise a procedural claim that the

government was arbitrary and capricious for

commencing enforcement.” Pet. Br. at 23.

In upholding the district court’s issuance of a

nationwide injunction, the Ninth Circuit has declared

that a duly enacted statute may not be enforced by the

Executive.13 In other words, the judiciary has created

a requirement that the federal government must

continue to permit our immigration laws to be broken

by hundreds of thousands of persons for a period now

going on two years — unless permitted to do otherwise

by the judicial branch. See Pet. Br. at 16. The

injunction below was not issued because the decision

to revoke DACA is unconstitutional, or because it

conflicts with a statute or an international agreement

13

The Ninth Circuit credits itself with “empowering the

Executive” in this case by informing DHS that it has greater

authority than it believes. Regents at 490. Of course, this is just

whitewash, as the Ninth Circuit’s opinion upheld the district

court’s injunction preventing the administration from

implementing its policy agenda and forcing the DACA program on

the American people for nearly an additional two years. Later,

the Ninth Circuit outrageously claims that its opinion in this case

“prevents [an] anti-democratic and untoward outcome,” allegedly

because an accurate description of the law permits voters to

properly allocate blame. Regents at 499. Of course, there is

nothing democratic about four unelected and unaccountable

judges below, all appointed by Democratic presidents, unilaterally

impeding the political agenda of an elected Republican president.

16

or treaty. Rather, it was issued solely because an

executive branch agency has taken the position that a

law Congress enacted should be enforced, and that the

prior administration’s political abdication of its

responsibility to enforce the law was wrong.

II. DHS’ DECISION TO END DACA

LAWFUL UNDER SEC V. CHENERY.

WAS

Having determined that neither the APA nor the

Immigration and Nationality Act imposes any bar to

judicial review of the rescission of DACA, the Ninth

Circuit examined the merits of the decision to end

DACA, based on the “likelihood of success on the

merits” prong of the preliminary injunction standard.

Regents at 505, et seq.

The court below relied on this Court’s decision in

SEC v. Chenery Corp., 318 U.S. 80 (1943). There, the

Court determined that it could not uphold an “order”

by the Securities and Exchange Commission based on

the record before the Court. The Court likened review

of agency action to appellate review of lower court

decisions: if a lower court reaches the right result but

for the wrong reason, the appellate court nevertheless

can sustain the decision if there is an alternative

ground on which the lower court could have relied.

However, in cases where a required showing, or factual

or jury determination, was not made, the appellate

court must remand the case to make that

determination. Chenery at 88.

In rejecting the Commission’s order in Chenery,

the Court likened that case to the latter scenario — a

17

situation where “[t]he record is utterly barren of any

such showing,” and where “findings might have been

made and considerations disclosed which would justify

its order,” but were not. Id. at 93-94. Specifically, the

Court noted that the Commission had applied the

wrong standard to the case but that, since “the

Commission is not bound by settled judicial

precedents,” it was impossible for the Court to weigh

in on the issue, and thus remanded the case for further

findings. Id. at 89, 95.

This case involves precisely the opposite situation,

and implicates the first scenario from Chenery —

where a decision “must be affirmed if the result is

correct ‘although the lower court relied upon a wrong

ground or gave a wrong reason.’” Id. at 88. Here, the

decision to end DACA was said to have been made

because the program was believed to have been

unlawful and unconstitutional at its inception. And

even if the Ninth Circuit is correct that such a

justification was incorrect, the court admits that the

decision to end DACA may have been justified for any

number of other reasons, presumably including one as

simple as “because we can.” Unlike in Chenery, there

is no need to send the decision back to DHS for

additional fact finding or required showings, since the

agency was not required to find any facts or make any

showing before ending an entirely discretionary

program.

In Chenery, the Commission’s decision could have

been justified only by a determination that was not

made. Here, however, the decision to end DACA

presumably could have been justified by just about

18

any reason, allegedly except the one that was given.

Thus, like the other cases relied on by the panel below,

Chenery provides no support for the Ninth Circuit’s

decision, but actually demonstrates that the DHS

decision to end DACA should have been upheld.

III.

DACA HAS BEEN UNLAWFUL SINCE ITS

INCEPTION, BUT EVEN IF FOUND

LAWFUL, WAS LAWFULLY RESCINDED.

A. The Ninth Circuit Clearly Erred by

Failing to Consider the Constitutionality

of DACA.

Although the questions presented to this Court do

not directly raise the legality or constitutionality of

DACA, that question is subsumed in the second

question presented — whether the Trump

Administration’s decision to wind down the Obama

Administration’s DACA policy is lawful. Indeed, these

amici argued at the petition stage that, in order to

evaluate properly the rescission of DACA, it would be

essential to evaluate the legality and constitutionality

of the original policy. See Brief Amicus Curiae of

Citizens United, et al. (Dec. 6, 2018) at 14.14

14

The government’s brief on the merits extensively addresses the

legality of the original DACA policy. See Pet. Br. at 43-52. So too

did the Ninth Circuit’s opinion below, as the legality of DACA was

necessary for the courts below to conclude as to the illegality of

the decision to end DACA. Regents at 506-510. See also Vidal v.

Nielsen, 279 F. Supp. 3d 401, 420-27 (E.D. NY 2018). Thus, the

lawfulness of the original DACA policy is before the Court, should

the Court first find the rescission of DACA to be judicially

reviewable. If this Court finds that DACA was unlawful to begin

19

Interestingly enough, the Ninth Circuit

acknowledged that the Attorney General’s (and DHS’s)

decision to end DACA was based in part on its

perceived unconstitutionality. Regents at 492, 506.

Yet, even though it purportedly rejected that

argument, the Ninth Circuit actually did not address

it. Rather, the court washed its hands of any

constitutional strictures on the theory that “no court

has ever held that DAPA is unconstitutional” and “the

government makes no attempt in this appeal to defend

the Attorney General’s assertion that the DACA

program is unconstitutional.” Id. at 506.

That is quite an interesting conclusion. Certainly,

it is axiomatic that, in a typical case, a criminal

defendant can waive many constitutional challenges.15

And an individual plaintiff certainly can waive

constitutional claims, such as in Section 1983

litigation. But this is anything but a typical case.

Here, with the Sessions16 and Duke memoranda, it was

the government arguing that its own ongoing action

is unconstitutional.

In the typical cases discussed above, a waiver of

constitutional claims or arguments means only that a

court must overlook past possible constitutional

with, then the nationwide injunctions against the Trump

Administration’s rescission of the program are even more clearly

unlawful.

15

See Criminal Resource Manual 626: Plea Agreements and

Sentencing Appeal Waivers — Discussion of the Law.

16

See Joint Appendix 877-878.

20

violations. Here, however, multiple federal courts,

including the Ninth Circuit, mandated future

government action, yet the Ninth Circuit expressly

refused to analyze whether that action is

constitutional or not. It was error for the court below

to fail to consider DACA’s constitutionality before

ordering that the program continue unabated.

In fact, once the district courts issued their

injunctions, DACA which originated as an executive

action, became DACA perpetuated by judicial action.

And it seems evident that courts have an obligation to

sua sponte consider the constitutionality of their own

orders. Indeed, had the Ninth Circuit examined the

issue, it would have found that the DACA policy

violated several constitutional provisions.

B. DACA Is an Unconstitutional Exercise of

Legislative Power.

The Immigration and Nationality Act did not

delegate to the Executive the power to invalidate

immigration laws, either permanently or temporarily.

Although the DACA policy advised beneficiaries that

their status (or lack thereof) could be revoked at any

time, DACA nevertheless granted a renewable twoyear deferred action status, and the benefits that go

with that status, to more than 700,000 aliens who are

present in the United States in defiance of the

immigration laws enacted by Congress.17 DACA thus

changed the nation’s immigration law in a

17

See U.S. Citizenship and Immigration Services, Approximate

Active DACA Recipients: Country of Birth (July 31, 2018).

21

fundamental way — a change that began in 2012 and

continues to this day.

Any notion that the Obama Administration

implemented DACA pursuant to congressional

authority is not plausible.

President Obama

repeatedly failed to persuade Congress to enact the

Development, Relief, and Education for Alien Minors

Act (“DREAM”) Act, which would have gone a long way

towards eviscerating many of the nation’s immigration

laws. Thrice, Congress has made known its position

with respect to the provisions of DACA. First,

Congress explicitly legislated with regard to the

legality of aliens’ presence and the grounds for their

removal. See Arizona v. United States, 567 U.S. 387,

396-97 (2012). As the U.S. Department of Justice

Office of Legal Counsel’s own Memorandum (“OLC

Memo”) notes, “[i]n the INA, Congress established a

comprehensive scheme governing immigration and

naturalization.” Id. at 3.18 Second, Congress implicitly

rejected President Obama’s DACA scheme, in refusing

to take any steps toward enacting the DREAM Act and

thus ratifying the program. Third, the President has

only narrow, statutorily defined circumstances

whereby he may grant deferred-action status for

certain specified illegal aliens.

18

See K.R. Thompson, “The Department of Homeland Security’s

Authority to Prioritize Removal of Certain Aliens Unlawfully

Present in the United States and to Defer Removal of Others,”

U.S. Department of Justice, Office of Legal Counsel (Nov. 19,

2014).

22

Even the Ninth Circuit admits that “[u]nlike most

other forms of relief from deportation, deferred action

is not expressly grounded in statute.” Regents at 487.

In fact, President Obama publicly announced that he

did not believe he had the power to implement a

DACA-type policy.19 Nevertheless, he implemented

DACA anyway. President Obama’s assumption of a

broad general power (a power he acknowledged he did

not have) to waive the nation’s immigration laws for

large numbers of persons is simply incompatible with

the narrow and detailed statutory scheme. With

DACA, President Obama not only established new

national immigration policy outside of the legislative

process, but also he acted contrary to Congress’ clear

desires, where his power is clearly “at its lowest ebb”20

and, indeed, its exercise is unconstitutional.

C. DACA Violates Separation of Powers

Principles.

The Ninth Circuit, as well as the parties before it,

acknowledged that “DACA’s adoption was a general

statement of policy.” Regents at 513. But such a

policy is not the equivalent of legislation adopted

pursuant to the bicameral approval and presentment

process in Article I, Section 7 that govern the exercise

of legislative power. See Dept. of Transportation v.

19

K. Pavlich, “His Own Words: Obama Said He Doesn't Have

Authority For Executive Amnesty 22 Times,” TownHall.com (Nov.

19, 2014).

20

Youngstown Sheet & Tube Co. at 637 (Jackson, J., concurring).

See discussion in Section II.B, infra.

23

Ass’n. of American R.R., 135 S. Ct. 1225, 1237 (2015)

(“DOT”) (Thomas, J., concurring).

Legislative power is vested by Article I, Section 1

of the Constitution in Congress alone, and Congress

“cannot delegate its ‘exclusively legislative’ authority

at all.” Id. The question, then, is whether DACA is an

exercise of legislative power to create immigration

policy or, as the Ninth Circuit alleges, stems from “the

Executive’s inherent authority to allocate resources

and prioritize cases.” Regents at 487.21

Although DACA is a rule governing the Secretary

and DHS agents in the administration and

enforcement of INA, it is also a rule governing private

conduct. First, DACA requires an alien to apply for

lawful presence status. Second, DACA requires the

alien to affirmatively demonstrate that he is entitled

to the deferred action status including, but not limited

to, “not fall[ing] within the Secretary’s enforcement

priorities.”22 And third, presumably if an applicant

21

The Ninth Circuit initially claims that DACA involves a system

whereby “each application is ... evaluated for approval by DHS

personnel on a case-by-case basis.” Regents at 490. Later,

however, the court lets the truth slip, acknowledging that this

alleged “case-by-case” review involves no “prosecutorial

discretion,” but rather that “DACA obviously allows (and indeed

requires) DHS officials to exercise discretion in making deferred

action decisions as to individual cases....” Id. at 507. In other

words, DACA allows/requires voluntary/mandatory “decisions” by

DHS rubber stampers. The Ninth Circuit’s statements are

doublespeak.

22

“Frequently Asked Questions: Rescission of Memorandum

Providing for Deferred Action for Parents of Americans and

24

fails to stay outside of those enforcement priorities, he

would be outside of the DACA qualifications, and

subject to priority removal. In sum, DACA established

a law — a generally applicable rule of private conduct

that applies generally to all aliens, but benefits only

certain of those aliens who “have no lawful

immigration status on th[e] date” of application. Id.

That action violated the separation of powers.

D. DACA Violates the Take Care Clause.

After a bill becomes law, other constitutional

provisions govern. The Take Care Clause of Article II,

Section 3 requires the President to “take Care that the

Laws be faithfully executed,” and the President’s Oath

of Office requires him to “preserve, protect and defend

the Constitution of the United States.” So long as a

law was duly enacted, and so long as it comports with

the Constitution, the President has a duty to

implement or enforce the law.23 The reason that all

persons illegally in the United States are not deported

immediately is regularly described as being due to

inadequate enforcement resources — not due to a

decision by the President that the law was unworthy

of being enforced. See Pet. Br. at 4.

Lawful Permanent Residents (“DAPA”),”

Homeland Security (June 15, 2017).

23

Department

of

On the other hand, if a law was not duly enacted, or if it is

“repugnant” to the Constitution, then the President could argue

that he is duty-bound by his oath not to implement and enforce

it. See Article II, Section 1, Clause 8. However, the Obama

Administration never made such claims about the INA.

25

This Court has noted that, “[a]lthough the

Constitution expressly authorizes the President to play

a role in the process of enacting statutes, it is silent on

the subject of unilateral Presidential action that either

repeals or amends parts of duly enacted statutes.”

Clinton v. New York, 524 U.S. 417, 439 (1998).

However, the Court did not view this silence as

authorizing executive action, but rather viewed it as

“equivalent to an express prohibition” on the postenactment executive meddling with enacted statutes.

Id. Whenever a President acts to “effect the repeal of

laws ... without observing the procedures set out in

Article I, § 7 ... he is rejecting the policy judgment

made by Congress and relying on his own policy

judgment.” Id. at 444-45.

Indeed, in the debates on the Constitution,

Hamilton and other advocates of a strong executive

proposed that “[t]he Executive ought to have an

absolute negative” over laws passed by Congress.

Records of the Federal Convention, June 4, 1787,

reprinted in P. Kurland & R. Lerner, The Founders’

Constitution (“Founders”) (Univ. of Chicago Press:

1987), vol. 2, p. 389. However, other delegates thought

that “[t]his was a mischievous sort of check,” that “[t]o

give such a prerogative would certainly be obnoxious

to the temper of this country,” and the proposal was

unanimously rejected by a vote of the state

delegations. Id. at 390. Since the framers specifically

rejected the idea that the President should have an

absolute veto, it certainly could not be argued that

they would have favored absolute executive power to

dispense with a law for policy reasons after it has been

enacted. This “threat of nonenforcement gives the

26

President improper leverage over Congress by

providing a second, postenactment veto.”

R.

Delahunty & J. Yoo, “Dream On: The Obama

Administration’s Nonenforcement of Immigration

Laws, the DREAM Act, and the Take Care Clause,” 91

TEX. L. REV. 781, 795 (2013).

Because DACA is a “‘law’ in the Blackstonian

sense of [a] generally applicable rule[] of private

conduct” (see Dep’t of Transportation v. Ass’n of

American R.R., 135 S.Ct. 1225, 1245 (2015), it is

outside the authority of the DHS, because Article I,

Section 1 vests legislative power exclusively in

Congress. Id.

The [Constitution] itself and the writings

surrounding it reflect a conviction that the

power to make the law and the power to

enforce it must be kept separate, particularly

with respect to the regulation of private

conduct. [Id. at 1244.]

Thus, contrary to the lower courts’ conclusions that

DACA was a lawful exercise of authority under the

INA, for the reasons set forth above, and for the

reasons set forth by Petitioners, DACA was an

unlawful and unconstitutional action, and it was

appropriate for the Secretary to rescind it.

E. Even if DACA Was Lawful, It Can Be

Lawfully Rescinded.

Although these amici contend that DACA was

unlawful when implemented, the case does not turn on

27

that issue. If DACA was lawful when implemented, as

the courts below have contended, it nevertheless was

certainly possible for the Secretary of DHS and the

Attorney General to have a different view, and take

action based on that view, without first seeking

judicial approval.

Indeed, judges have no

constitutional authority to decide constitutional issues

not properly before them. Any belief that no President

may have a view of the Constitution at odds with a

judge is an extreme and unsupportable view of judicial

supremacy.

Legal scholars may differ as to whether Congress

and the President have a role to play in interpreting

the law and the Constitution, or whether the Supreme

Court’s decisions become part of the supreme law of

the land. That is an extreme view — advanced only on

one known occasion by this Court in Cooper v. Aaron,

358 U.S. 1, 18 (1958), but at odds with a great deal of

history. Famously, William Blackstone wrote that a

judge’s “opinion” represents merely “evidence” of what

the law is. W. Blackstone, I Commentaries on the

Laws of England (Univ. Chi. Facsimile ed.: 1765) at ¶

71. In Marbury v. Madison, this Court likewise held

that it is the role of judges “to say what the law is.” 5

U.S. 137, 177 (1803). And just as “a legislative act

contrary to the constitution is not law,” (id.), a judicial

opinion that “is manifestly absurd or unjust” is not

simply “bad law” but rather “not law” at all.

Blackstone at ¶ 70; see also Harper v. Va. Dep’t of

Taxation, 509 U.S. 86, 107 (1993) (Scalia, J.,

concurring). It does not matter which branch of

government is responsible for the act, action, or

28

opinion — if it violates the law or the Constitution, all

are equally “not law.”

Indeed, although Marbury established judicial

review, it did not adopt judicial supremacy, “the idea

that the Supreme Court should be viewed as the

authoritative interpreter of the Constitution and that

we should deem its decisions as binding on the other

branches and levels of government....”

E.

Chemerinsky, In Defense of Judicial Supremacy, 58

WM. & MARY L. REV. 1459 (2017). The natural

corollary to this view is that any opinion from any

judge in any court in the country issued on any topic

is the supreme law of the land, at least until overruled

by a higher court.

Although judicial supremacy is viewed by some as

“desirable because we want to have an authoritative

interpreter of the Constitution,”24 it has no basis in the

structure of the Constitution, which divides federal

power — including the power to opine on the law —

among the branches. Chemerinsky at 1459. And, as

amici argued in their brief at the petition stage,

officers of the executive and judicial branches are

“each independently bound by oath to support the

Constitution in the exercise of [their] respective

24

This school of thought would require that, if this Court in

District of Columbia v. Heller, 554 U.S. 570 (2008) had

determined that “the right of the people” only referred to a right

of the states to maintain the National Guard, overriding the

Second Amendment’s clear text, the Court’s edict must be followed

nationwide. History, however, teaches us that even this Court is

not infallible.

29

powers.” Brief Amicus Curiae of Citizens United, et al.

in Support of Petitioners (Dec. 6, 2018) at 8. These

oaths are to follow the Constitution and the law as the

oath taker understands it to be, not as the Ninth

Circuit would advise it should be. This understanding

stands in contrast to the Ninth Circuit’s view of “the

judiciary [being] the branch ultimately responsible for

interpreting the law....” Regents at 499.

President Andrew Jackson, in vetoing the national

bank bill enacted by Congress, wrote that “[t]he

Congress, the Executive, and the Court must each for

itself be guided by its own opinion of the

Constitution.... The opinion of the judges has no more

authority over Congress than the opinion of Congress

has over the judges, and on that point the President is

independent of both.” Veto Message of the Bill on the

Bank of the United States, reprinted in 50 Core

American Documents at 166-67 (C. Burkett, ed.:

Ashbrook Press: 2016). Likewise, in Federalist 49,

Madison wrote that “[t]he several departments being

perfectly co-ordinate by the terms of their common

commission, neither of them, it is evident, can pretend

to an exclusive or superior right of settling the

boundaries between their respective powers....”25

Finally, Thomas Jefferson wrote that “to consider the

judges as the ultimate arbiters of all constitutional

questions” is “a very dangerous doctrine indeed and

one which would place us under the despotism of an

25

J. Madison, Federalist No. 49, reprinted in The Federalist.

30

Oligarchy.”26 Petitioners agree, arguing that “as a

coordinate Branch, the Executive has an independent

duty to determine whether it lacks authority to act.”

Pet. Br. at 50.

Thankfully, this Court need not resolve any such

thorny and enduring constitutional disputes in this

case. This case does not involve a disagreement

between the branches as to what the law or

Constitution requires the President to do (or not to

do), but what the law permits him to do. As the

Ninth Circuit has admitted, this case is not a situation

where the agency has actually done anything unlawful

or unconstitutional. Rather, this case involves a

matter of executive discretion.

In forming the nation’s immigration policy, former

Attorney General Sessions and DHS officials have

relied upon their own opinions as to what the law and

Constitution requires of them. They may be right, or

they may be wrong, but it is not within the purview of

the courts to weigh in every time another branch of

government takes a position on a law or the

Constitution, and then acts on that position.

The Ninth Circuit disagreed, claiming that “[t]he

government may not simultaneously both assert that

its actions are legally compelled, based on its

interpretation of the law, and avoid review of that

assertion by the judicial branch....” Regents at 486.

But courts are not roving tribunals open to anyone

26

Letter from Thomas Jefferson to William Charles Jarvis (Sept.

28, 1820).

31

who might dispute the legality of government action or

inaction. See Exodus 18:16. As Petitioners note, “the

Executive is entitled to act on its view of the bounds of

its enforcement discretion even if the courts might

disagree.” Pet. Br. at 50-51.

Ironically, the Ninth Circuit does not accuse DHS

officials of taking too expansive a view of the scope of

executive authority, but rather too narrow a view. The

Ninth Circuit may disagree with the assessment that

DACA was wrongly implemented, but that does not

consequently give rise to a power to have its say on the

matter to set the record straight. In a case such as

this, it is perfectly acceptable for President Trump and

the Ninth Circuit to have different interpretations of

the law. And, unlike many other times in our history,

no constitutional crisis is created by DHS’s decision to

end DACA contrary to the wishes of the Ninth Circuit.

CONCLUSION

For the foregoing reasons, the decisions issued by

the U.S. Court of Appeals for the Ninth Circuit and the

U.S. District Court for the District of Columbia, and

the order issued by the U.S. District Court for the

Eastern District of New York granting an injunction,

should be reversed.

32

Respectfully submitted,

August 26, 2019

ROBERT J. OLSON*

JEREMIAH L. MORGAN

HERBERT W. TITUS

WILLIAM J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

*Counsel of Record