Amicus Curiae Brief — Department of Homeland Security, et al., Petitioners v. Regents of the University of California, et al.
Supreme Court briefAug 26, 2019
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Nos. 18-587, 18-588, & 18-589
In the Supreme Court of the United States
U NITED S TATES D EPARTMENT OF H OMELAND
S ECURITY , ET AL ., PETITIONERS
v.
R EGENTS OF THE U NIVERSITY OF C ALIFORNIA , ET AL .
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
D ONALD J. T RUMP , P RESIDENT OF THE U NITED
S TATES , ET AL ., PETITIONERS
v.
N ATIONAL A SSOCIATION FOR THE A DVANCEMENT OF
C OLORED P EOPLE , ET AL .
ON WRIT OF CERTIORARI BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS
FOR THE D . C . CIRCUIT
K EVIN K. M C A LEENAN , A CTING S ECRETARY OF H OMELAND S ECURITY , ET AL ., PETITIONERS
v.
M ARTIN J ONATHAN B ATALLA V IDAL , ET AL .
ON WRIT OF CERTIORARI BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE STATES OF TEXAS, ALABAMA,
ALASKA, ARIZONA, ARKANSAS, FLORIDA,
KANSAS, LOUISIANA, NEBRASKA, SOUTH
CAROLINA, SOUTH DAKOTA AND WEST
VIRGINIA, AND GOVERNOR PHIL BRYANT OF
MISSISSIPPI AS AMICI CURIAE IN SUPPORT OF
PETITIONERS
Counsel Listed on Inside Cover
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant
Attorney General
KYLE D. HAWKINS
Solicitor General
Counsel of Record
MATTHEW H. FREDERICK
Deputy Solicitor General
ARI CUENIN
LANORA C. PETTIT
Assistant Solicitors General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
kyle.hawkins@oag.texas.gov
(512) 936-1700
QUE STIONS P RESENTED
1. Whether the Department of Homeland Security
(DHS)’s decision to wind down the DACA policy is judicially reviewable.
2. Whether the DHS’s decision to wind down the
DACA policy is lawful.
(I)
III
TABL E OF C O NTENTS
Page
Questions Presented ............................................................. I
Table of Contents ............................................................... III
Table of Authorities ........................................................... IV
Interest of Amici Curiae ....................................................... 1
Summary of Argument ......................................................... 2
Argument ................................................................................ 6
I. DACA Is Unlawful. ........................................................ 6
A. DACA contravenes Congress’s extensive
immigration-enforcement scheme ........................ 8
B. DACA is procedurally unlawful because it was
promulgated contrary to the APA’s
requirements ......................................................... 21
II. The Executive’s Decisions Both to Create and to
Rescind DACA Are Subject to Judicial Review ...... 30
III. The Executive’s Rescission of DACA Was Neither
Arbitrary Nor Capricious ........................................... 32
Conclusion ............................................................................ 36
IV
TABL E OF AU TH ORITIE S
Page(s)
Cases:
Am. Bus. Ass’n v. United States,
627 F.2d 525 (D.C. Cir. 1980) ................................. 22, 25
Am. Mining Cong. v. Mine Safety & Health Admin.,
995 F.2d 1106 (D.C. Cir. 1993) ................................24-25
Ariz. Christian Sch. Tuition Org. v. Winn,
563 U.S. 125 (2011) ........................................................ 35
Arizona v. United States,
567 U.S. 387 (2012) ............................................... passim
Azar v. Alina Health Servs.,
139 S. Ct. 1804 (2019) .................................................... 28
Bd. of Trs. of Leland Stanford Jr. Univ. v.
Roche Molecular Sys., Inc.,
563 U.S. 776 (2011) ........................................................ 17
Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc.,
419 U.S. 281 (1974) ........................................................ 34
Burlington Truck Lines v. United States,
371 U.S. 156 (1962) ........................................................ 32
CASA de Md. v. U.S. Dep’t of Homeland Sec.,
924 F.3d 684 (4th Cir. 2019) ........................... 3, 5, 32, 34
284 F. Supp. 3d 758 (D. Md. 2018) ........................ 31, 32
Chevron, U.S.A., Inc. v. NRDC,
467 U.S. 837 (1984) .......................................................... 8
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) ........................................ 4, 22, 24, 28
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) ........................................................ 34
V
Guardian Fed. Sav. & Loan Ass’n v. Fed.
Sav. & Loan Ins. Corp.,
589 F.2d 658 (D.C. Cir. 1978) ....................................... 29
Heckler v. Chaney,
470 U.S. 821 (1985) ........................................................ 31
Hoffman Plastic Compounds, Inc. v. NLRB,
535 U.S. 137 (2002) ........................................................ 15
In re Aiken Cty.,
725 F.3d 255 (D.C. Cir. 2013) ....................................... 35
Iowa League of Cities v. EPA,
711 F.3d 844 (8th Cir. 2013) ......................................... 29
Kendall v. United States,
37 U.S. 524 (1838) ............................................................ 9
Lincoln v. Vigil,
508 U.S. 182 (1993) ........................................................ 31
McLouth Steel Prods. Corp. v. Thomas,
838 F.2d 1317 (D.C. Cir. 1988) ..................................... 30
Medellin v. Texas,
552 U.S. 491 (2008) ........................................................ 18
Morgan Stanley Capital Grp. Inc. v. Pub. Util.
Dist. No. 1 of Snohomish Cty.,
554 U.S. 527 (2008) ........................................................ 34
Morton v. Ruiz,
415 U.S. 199 (1974) ............................................... passim
Motor Vehicles Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) .............................................. 32, 33, 34
NAACP v. Trump,
298 F. Supp. 3d 209 (D.D.C. 2018) .............................. 34
VI
Nat’l Mining Ass’n v. McCarthy,
758 F.3d 243 (D.C. Cir. 2014) ........................... 22, 23, 24
Nat. Res. Def. Council v. EPA,
643 F.3d 311 (D.C. Cir. 2011) ....................................... 25
Perez v. Mortg. Bankers Ass’n,
135 S. Ct. 1199 (2015) .............................................. 22, 29
Phillips Petro. Co. v. Johnson,
22 F.3d 616 (5th Cir. 1994) ........................................... 29
Prof’ls & Patients for Customized Care v. Shalala,
56 F.3d 592 (5th Cir. 1995) ........................................... 28
Regents of the Univ. of Cal. v. U.S. Dep’t of
Homeland Sec.,
908 F.3d 476 (9th Cir. 2018) ................................ passim
Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471 (1999) .................................................. 10, 31
Shalala v. Guernsey Mem’l Hosp.,
514 U.S. 87 (1995) .................................................... 23, 25
Texas v. United States (Texas I),
136 S. Ct. 2271 (2016) ..................................................... 1
809 F.3d 134 (5th Cir. 2015) ................................ passim
86 F. Supp. 3d 591 (S.D. Tex. 2015) ............................ 20
Texas v. United States (Texas II),
328 F. Supp. 3d 662 (S.D. Tex. 2018) ................. passim
United States v. Mead Corp.,
533 U.S. 218 (2001) .......................................................... 8
Util. Air Regulatory Grp. v. EPA,
573 U.S. 302 (2014) .................................................. 21, 23
Weyerhaeuser Co. v U.S. Fish & Wildlife Serv.,
139 S. Ct. 361 (2018) ................................................ 30, 31
VII
Constitutional Provisions, Statutes, and Rules:
U.S. Const.:
art. I, § 8, cl. 4 ................................................................... 9
art. II, § 3 ................................................................ 6, 9, 35
8 U.S.C. § 1611(b)(2)-(4) ...................................................... 13
42 U.S.C.:
§ 402(a)-(h) ...................................................................... 18
§ 405(c)(2)(B)(i)(I) .......................................................... 18
§ 414(a) ............................................................................ 18
Administrative Procedure Act, 5 U.S.C.:
§ 551(4) ............................................................................ 21
§ 553(b) ............................................................................ 22
§ 553(d)(2) ....................................................................... 28
§ 701(a)(1) ....................................................................... 31
§ 701(a)(2) ....................................................................... 31
Haitian Refugee Immigration Fairness Act of 1998,
Pub. L. No. 105-277, div. A, § 101(h), tit. IX,
112 Stat. 2681-538 .......................................................... 16
Immigration Act of 1990, Pub. L. No. 101-649,
104 Stat. 4978 ................................................................. 16
Immigration and Nationality Act, 8 U.S.C.:
§ 1101(a)(15)(A)-(V) ....................................................... 10
§ 1101(a)(15)(H) ............................................................. 15
§ 1101(a)(15)(P) .............................................................. 15
§ 1101(a)(20) ................................................................... 10
§ 1105a(a) ........................................................................ 16
VIII
§ 1151 ............................................................................... 10
§ 1153 ............................................................................... 10
§ 1154(a)(1)(D)(i)(II) ..................................................... 17
§ 1154(a)(1)(D)(i)(IV) .................................................... 17
§ 1154(a)(1)(K) ............................................................... 17
§ 1157 ............................................................................... 10
§ 1158 ............................................................................... 10
§ 1158(c)(1)(B) ................................................................ 15
§ 1158(d)(2) ..................................................................... 16
§ 1159 ............................................................................... 10
§ 1160(d)(3)(A) ................................................................ 16
§ 1181 ............................................................................... 10
§ 1182(a)(6)(A)(i) ............................................................ 11
§ 1182(a)(9)(B) ................................................................ 12
§ 1182(a)(9)(B)(i) ............................................................ 11
§ 1182(a)(9)(B)(ii) ..................................................... 10, 12
§ 1182(a)(9)(B)(iv) .......................................................... 15
§ 1182(d)(5)(A) .................................................... 10, 12, 19
§ 1182(d)(5)(A) (1952) .................................................... 19
§ 1184(p)(6) ..................................................................... 16
§ 1227(a)(1)(B) ................................................................ 11
§ 1227(d)(1)-(2) ............................................................... 16
§ 1229b............................................................................. 10
§ 1229c(a)(2)(A) .............................................................. 19
§ 1231(b)(3) ..................................................................... 10
§ 1252(b) (1988) .............................................................. 19
§ 1252(g) .......................................................................... 32
§ 1254(e) (1988) .............................................................. 19
§ 1254a(a)(1)(B) .............................................................. 16
§ 1255(a) .......................................................................... 12
§ 1255(c)(2) ...................................................................... 15
§ 1255a(b)(3) ................................................................... 16
§ 1255a(e)(1)-(2) ............................................................. 16
IX
§ 1255a note .................................................................... 16
§ 1324a(a) ........................................................................ 15
§ 1324a(f)......................................................................... 15
§ 1324a(h)(3) ................................................................... 20
§ 1324a(h)(3)(B).............................................................. 15
Immigration Reform and Control Act of 1986,
Pub. L. No. 99-603, 101 Stat. 3359 ..................... passim
Internal Revenue Code, 26 U.S.C.:
§ 32(c)(1)(E) .................................................................... 18
§ 32(m)............................................................................. 18
National Defense Authorization Act for Fiscal
Year 2004, Pub. L. No. 108-136,
117 Stat. 1392 ................................................................. 17
Nicaraguan Adjustment and Central American
Relief Act, Pub. L. No. 105-100, tit. II,
111 Stat. 2160, 2193 (1997) ........................................... 16
REAL ID Act of 2005, Pub. L. No. 109-13, div. B
119 Stat. 231, 302 ........................................................... 14
USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115
Stat. 272 .....................................................................16-17
8 C.F.R.:
§ 1.3(a)(4)(vi) ................................................................... 14
§ 274a.12(a) ..................................................................... 20
§ 274a.12(c)(9)-(10) ........................................................ 20
§ 274a.12(c)(14) ........................................................ 17, 20
§ 274a.12(c)(16) .............................................................. 20
20 C.F.R. § 422.104(a)(2)..................................................... 18
45 C.F.R. § 152.2(4)(vi)........................................................ 14
Tex. Lab. Code § 207.043(a)(3) .......................................... 14
Tex. Transp. Code § 521.142(a).......................................... 14
X
Sup. Ct. R. 37 ......................................................................... 1
Other Authorities:
3d Am. Compl., Vidal v. Nielsen,
No. 1:16-cv-4756 (E.D.N.Y. Dec. 11, 2017),
ECF No. 113 .................................................................. 27
52 Fed. Reg. 46,092 (Dec. 4, 1987) ..................................... 20
Br. for State Respondents, United States v.
Texas, 136 S. Ct. 2271 (2016) (No. 15-674),
2016 WL 1213267 ....................................................... 7, 21
Br. for the States of Texas et al., Brewer v. Ariz.
Dream Act Coal., No. 16-1180, 2017 WL
1629324 (U.S. May 1, 2017) ............................................ 7
Complaint, Regents of Univ. of Cal. v. U.S. Dep’t
of Homeland Sec., No. 3:17-cv-5211-WHA
(N.D. Cal. Sept. 8, 2017), ECF No. 1 .......................... 26
Complaint, California v. U.S. Dep’t of
Homeland Sec., No. 3:17-cv-5235 (N.D.
Cal. Sept. 11, 2017), ECF No. 1 ................................... 26
Complaint, Garcia v. United States, No.
3:17-cv-5380 (N.D. Cal. Sept. 18, 2017),
ECF No. 1 ...................................................................... 26
Complaint, NAACP v. Trump, No. 1:17-cv1907 (D.D.C. Sept. 18, 2017), ECF No. 1 ................... 27
Complaint, New York v. Trump, No. 1:17-cv5228 (E.D.N.Y. Sept. 6, 2017), ECF No. 1 ................. 27
Complaint, Trs. of Princeton Univ. v. United
States, No. 1:17-cv-2325 (D.D.C. Nov. 3, 2017),
ECF No. 1 ...................................................................... 22
XI
David Hancock, Few Immigrants Use Family
Aid Program, MIAMI HERALD, Oct. 1, 1990 .............. 19
Deferred Action for Childhood Arrivals (DACA)
Toolkit, Texas v. United States, 86 F. Supp.
3d 591 (S.D. Tex. 2015) (No. 1:14-cv-254),
ECF No. 38-6 ................................................................. 12
H.R. Rep. No. 99-682(I) (1986),
reprinted in 1986 U.S.C.C.A.N. 5649 .................... 17, 20
H.R. Rep. No. 104-725 (1996) (Conf. Rep.),
reprinted in 1996 U.S.C.C.A.N. 2649 .......................... 14
Josh Blackman, The Constitutionality of DAPA Part
I: Congressional Acquiescence to Deferred Action,
103 GEO. L.J. ONLINE 96 (2015) .................................. 21
Letter from León Rodríguez, Dir., USCIS,
to Sen. Grassley (June 29, 2016).................................. 12
Letter from León Rodríguez, Dir., USCIS,
to Sen. Grassley (Oct. 9, 2014) ..................................... 12
Motion for Preliminary Injunction, App. 12, Texas v.
United States (S.D. Tex. May 2, 2018) (1:14-cv68), ECF No. 6, Exh. 3.................................................. 13
Pet. Br., United States v. Texas, 136 S. Ct. 2271
(2016) (No. 15-674), 2016 WL 836758.......................... 11
Pls.’ Stip. of Voluntary Dismissal, Texas v. United
States, No. 1:14-cv-254 (S.D. Tex. Sept. 12, 2017),
ECF No. 473 .................................................................... 2
Principal and Response Brief of Appellees the Regents
of the University of California, Janet Napolitano,
and City San Jose, Regents, 908 F.3d 476 (9th Cir.
2018) (No. 18-15068), 2018 WL 1414352 ..................... 18
XII
U.S. Br. as Amicus Curiae in Opp. to Reh’g En Banc,
Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053
(9th Cir. 2014) (No. 13-16248) ........................................ 9
U.S. Dep’t of Homeland Sec., DACA Nat’l
Standard Operating Procedures (2013) ..................... 13
USCIS, Frequently Asked Questions,
https://www.uscis.gov/humanitarian/consideration
-deferred-action-childhood-arrivalsprocess/frequently-asked-questions ....................... 9, 26
USCIS, How Do I Change to Another
Nonimmigrant Status? (Jan. 2016),
https://www.uscis.gov/sites/default/files/USCIS/
Resources/C2en.pdf ...................................................... 15
Zachary Price, Enforcement Discretion and Executive
Duty, 67 VAND. L. REV. 671 (2014) ............................... 9
INTEREST OF AMIC I CURIAE
Amici curiae are the States of Texas, Alabama,
Alaska, Arizona, Arkansas, Florida, Kansas, Louisiana,
Nebraska, South Carolina, South Dakota, and West Virginia, and Governor Phil Bryant of Mississippi.1
The present lawsuits have forced the Executive to
retain an unlawful “deferred action” program known as
DACA. The administration is correct that DACA is unlawful: DACA operates contrary to substantive immigration law by affirmatively conferring “lawful presence”
status and work-authorization eligibility on over 1.7 million unlawfully present aliens. DACA is thus materially
identical to two programs (Expanded DACA and DAPA,
see infra n.5) that were invalidated by the Fifth Circuit
in a ruling affirmed by an equally divided vote of this
Court. See Texas v. United States, 809 F.3d 134, 172, 18486 (5th Cir. 2015), aff’d by an equally divided court, 136
S. Ct. 2271 (2016) (per curiam) (Texas I).
DACA, like the programs held unlawful in Texas I,
inflicts ongoing irreparable harm on the States. For example, amici “bear the costs of providing . . . social services required by federal law,” including healthcare, education, and law-enforcement. Texas v. United States,
328 F. Supp. 3d 662, 700 (S.D. Tex. 2018) (Texas II).
“[B]ecause DACA increases the total number of aliens in
Pursuant to Supreme Court Rule 37.6, amici state that no
counsel for any party authored this brief, in whole or in part,
and no person or entity other than amici contributed monetarily to its preparation or submission. The parties consent to the
filing of this brief.
1
(1)
2
the States by disincentivizing those already present from
leaving, the States must provide more . . . social services,
which cost more.” Id. According to an expert retained by
DACA’s defenders in Texas II, Texas alone “incurs more
than $250,000,000 in total direct costs from DACA recipients per year.” Id. at 700-01.
To seek redress for these injuries, a group of States,
led by Texas, notified the federal government that it
would challenge DACA on the same bases that succeeded as to DAPA and Expanded DACA unless the federal government rescinded DACA. AR 238-40.2 In response, the Executive issued the September 2017 memorandum at issue here announcing DACA’s rescission.
Based on the memorandum, Texas and the other States
agreed to dismiss their pending lawsuit. Pls.’ Stip. of Voluntary Dismissal at 1, Texas v. United States, No. 1:14cv-254 (S.D. Tex. Sept. 12, 2017), ECF No. 473. But DACA
was not wound down. DACA’s rescission was enjoined,
and the Texas-led coalition ultimately filed suit seeking a
declaration that DACA was unlawful. Texas II, 328 F.
Supp. 3d 662.
This case thus directly implicates the States’ effort
to bring about an orderly end to DACA and threatens to
continue the numerous harms inflicted on the States by
this lawless program.
S UM MA RY O F A RGU ME N T
I. The courts below erred by concluding that
DACA was lawful. The Executive decided to wind down
AR cites the Administrative Record, filed as Notice of Filing
Administrative Record, Regents of the University of California v. United States Department of Homeland Security, No.
3:17-cv-5211-WHA (N.D. Cal. Oct. 6, 2017), ECF No. 64-1.
2
3
DACA after a new administration concluded that DACA
was unlawful for the reasons affirmed by the Court in
Texas I, or at least that DACA would likely be held
unlawful, creating significant litigation risk if the
program continued. Pet. App. 114a-18a.3
Respondents in these consolidated cases argue that
rescinding DACA was arbitrary and capricious because
the Executive’s conclusion that DACA was unlawful was
incorrect or insufficiently explained. The courts below
and the Fourth Circuit have agreed. E.g., Regents of the
Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d
476, 494-504 (9th Cir. 2018) (Regents); CASA de Md. v.
U.S. Dep’t of Homeland Sec., 924 F.3d 684, 697-701 (4th
Cir. 2019).4 As the multistate coalition litigating Texas II
has demonstrated, the Executive was correct for several
reasons. Amici will focus on two that demonstrate the
fundamental misunderstandings of law underlying the
decisions under review.
A. DACA is substantively unlawful because it
exceeds the scope of authority delegated to the
Executive by the INA. As the Court has repeatedly
recognized, the power to establish when aliens are lawfully present is “entrusted exclusively to Congress,”
which has enacted “extensive and complex” statutes governing (among other things) lawful presence. Arizona v.
United States, 567 U.S. 387, 395, 409 (2012) (quotation
Pet. App. cites the Appendix to the Petition for a Writ of Certiorari Before Judgment in United States Department of
Homeland Security v. Regents of the University of California,
No. 18-587 (S. Ct. filed Nov. 5, 2018).
3
Although CASA de Maryland has not been consolidated with
this case, it presents the same threshold legal issues.
4
4
marks omitted). Congress delegated limited rule-making
authority to the Executive, which DACA exceeds.
Congress has never given the Executive carte
blanche to grant lawful presence to any alien it chooses
not to remove, let alone benefits including work
authorization, health care, unemployment, and a
pathway to citizenship. To the contrary, Congress enacted the Immigration Reform and Control Act (IRCA)
in 1986 “as a comprehensive framework for combating
the employment of illegal aliens.” Id. at 404 (quotation
marks omitted). Congress has defined numerous categories of aliens entitled to or eligible for work authorization. Entirely absent are the aliens covered by DACA.
DACA contradicts those mandates and would render
Congress’s detailed provisions surplusage.
B. Even if the Court were to conclude that DACA is
substantively lawful, DACA is procedurally invalid because it seeks to change this nation’s immigration law
without following the APA’s notice-and-comment procedure. For forty years, this Court has held that any “substantive” agency rule that “affect[s] individual rights and
obligations” must go through the notice-and-comment
procedures established by the APA. Chrysler Corp. v.
Brown, 441 U.S. 281, 302 (1979). DACA falls within this
category of “substantive” rules because it sets criteria by
which more than a million unlawfully present aliens may
seek access to numerous benefits. Morton v. Ruiz, 415
U.S. 199, 231 (1974). Moreover, DACA imposes extensive
obligations on States to provide social services to an
entire class of people. Assuming such changes could be
adopted without congressional action, they could not be
adopted without APA notice and comment.
5
Plaintiffs cannot avoid this commonsense conclusion
by asserting that DACA is merely a “general policy
statement,” which leaves signficant discretion to the
Executive. As the Fifth Circuit noted in Texas I, DACA
and its Operating Procedures “contain nearly 150 pages
of specific instructions for granting or denying deferred
action.” 809 F.3d at 173 (alterations omitted). Such a
system affords line-level employees at the Department
of Homeland Security (DHS) little practical discretion,
belying the notion that DACA is a “general policy
statement” without binding effect.
II. Three circuit courts have now examined the
sweeping changes to American immigration law effected
by the creation of DACA (or the closely related
Expanded DACA and DAPA programs5), and two of
them have considered DACA’s rescission. Texas I, 809
F.3d at 163-70; Regents, 908 F.3d at 494-504; CASA de
Md., 924 F.3d at 697-701. These courts agree that these
Executive actions were rules subject to judicial review.
This conclusion follows the text of the Immigration and
Nationality Act (INA), the Administrative Procedure
Act (APA), and this Court’s precedent.
III. Because DACA exceeded DHS’s authority
under the INA and was promulgated without notice and
comment, it was never a valid legislative rule. It cannot
DHS announced DACA in 2012 to grant lawful presence to
aliens who arrived in this country as children. In 2014, DHS
expanded DACA to cover additional aliens and lengthen the
lawful-presence period for aliens awarded relief. At the same
time, DHS created the DAPA program to provide lawful presence for unlawfully present aliens with children who were either U.S. citizens or lawful permanent residents. See Texas I,
809 F.3d at 147-49.
5
6
be arbitrary or capricious for the Executive to rescind a
program that was both substantively and procedurally
unlawful. Indeed, such a rule is incompatible with our
constitutional system, which imposes on the President an
obligation “that the Laws be faithfully executed.” U.S.
Const. art. II, § 3.
A R GU MEN T
I.
DACA Is Unlawful.
DACA effected one of the largest shifts in immigration policy in American history, granting “lawful presence” to hundreds of thousands of unlawfully present aliens. That policy shift occurred without public input because the Executive bypassed APA notice-and-comment
procedures. And it violated substantive immigration
laws duly enacted by Congress.
On June 29, 2017, an 11-state coalition, led by Texas,
sent a letter to the federal government proposing a
DACA wind-down to end the Texas I litigation challenging the Executive’s ability to unilaterally confer lawful
presence and work authorization. AR 238-40. At that
time, Texas I challenged only DAPA and Expanded
DACA, but the coalition informed the Attorney General
that it would expand the case if DACA were not wound
down. AR 239-40. This letter explained how the legal arguments that the Fifth Circuit, and ultimately this
Court, sustained against DAPA applied equally to
DACA. AR 238-39.6
Also available to the Attorney General was an amicus brief
filed before this Court, Br. for the States of Texas et al.,
Brewer v. Ariz. Dream Act Coal., No. 16-1180, 2017 WL
1629324 (U.S. May 1, 2017), which explained that DACA was
unlawful for the same substantive and procedural infirmities
6
7
The letter persuaded DHS that DACA is unlawful.
DHS effectively acceded to Texas’s request “after consulting with the Attorney General, and considering the
likelihood of success on the merits of the ongoing litigation.” AR 254. On September 5, 2017, Acting DHS Secretary Elaine C. Duke issued a memorandum stating
that the “DACA program should be terminated” in light
of the “rulings in the ongoing litigation.” AR 255. In particular, Secretary Duke invoked the Fifth Circuit’s decision in Texas I, which concluded that DAPA “conflicted
with the discretion authorized by Congress” because the
INA “‘flatly does not permit the reclassification of millions of illegal aliens as lawfully present,’” and that “implementation of the program did not comply with the
[APA] because the Department did not implement it
through notice-and-comment rulemaking.” AR 253-54
(quoting Texas I, 809 F.3d at 184). Secretary Kristjen M.
Nielsen issued a separate memorandum on June 22, 2018
further explaining the Agency’s conclusion that DACA
was unlawful and should be discontinued for policy reasons. Pet. App. 120a-126a.
DHS’s conclusion was correct. For the reasons
Texas presented in the letter and successfully litigated
in the Southern District of Texas, DACA is substantively
and procedurally unlawful.
found in Texas I regarding Expanded DACA and DAPA, see
Br. for State Respondents at 44-70, United States v. Texas,
136 S. Ct. 2271 (2016) (No. 15-674), 2016 WL 1213267.
8
A. DACA contravenes Congress’s extensive
immigration-enforcement scheme.
DACA is substantively unlawful for the same reasons the Fifth Circuit held Expanded DACA and DAPA
unlawful. The Fifth Circuit assumed without deciding
that the standard set forth in Chevron, U.S.A., Inc. v.
NRDC, 467 U.S. 837 (1984), controlled the review of
DAPA. Texas I, 809 F.3d at 178-79 & n.159. Under Chevron’s familiar two-part test, a court must defer to an
agency’s interpretation of its own statute if the text of
the statute is ambiguous and the agency’s interpretation
is reasonable. Chevron, 467 U.S. at 844. DACA, like
DAPA, fails Chevron at either step: Congress has unambiguously spoken to the precise questions at issue, id. at
842-43; Texas I, 809 F.3d at 185-86. And a program that
is “manifestly contrary” to Congress’s statutory scheme
is necessarily unreasonable. United States v. Mead
Corp., 533 U.S. 218, 227 (2001); Texas I, 809 F.3d at 186.
1.
DACA contravenes Congress’s extensive
statutory framework for lawful presence.
DACA violates Congress’s extensive statutory
framework defining when aliens are lawfully present in
the country. Beneficiaries under DACA receive so-called
“[d]eferred action,” which in this context “means that,
for a specified period of time, an individual is permitted
to be lawfully present in the United States.” Texas I, 809
F.3d at 168 & n.107 (quoting executive memo extending
DACA’s deferred-action period from two to three
years).7
The Executive has repeatedly explained that under DACA,
“while [an applicant’s] deferred action is in effect,” the alien is
7
9
DACA’s purported grant of lawful presence violates
the INA. As the Fifth Circuit explained in Texas I, the
“INA flatly does not permit the [Executive to deem] aliens as lawfully present and thereby make them newly
eligible for a host of federal and state benefits.” 809 F.3d
at 184. The Executive has no power to unilaterally create
immigration classifications that authorize aliens’ presence in this country because “the INA expressly and
carefully provides legal designations allowing defined
classes of aliens to be lawfully present.” Id. at 179.8
a. “Policies pertaining to the entry of aliens and their
right to remain here are . . . entrusted exclusively to Congress”—not the Executive. Arizona, 567 U.S. at 409; see
U.S. Const. art. I, § 8, cl. 4. Congress has accordingly enacted “extensive and complex” statutory provisions governing when aliens may be lawfully present in the country. Arizona, 567 U.S. at 395; accord Texas I, 809 F.3d at
179.
Congress has delineated over 40 classes of lawfully
present aliens. See Texas I, 809 F.3d at 179. The INA
“considered to be lawfully present in the United States.”
USCIS,
Frequently
Asked
Questions,
https://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-process/frequently-asked-questions
(last visited July 20, 2019). The Executive has even described
DACA recipients as having “lawful status.” U.S. Br. as Amicus
Curiae in Opp. to Reh’g En Banc 16, Ariz. Dream Act Coal. v.
Brewer, 757 F.3d 1053 (9th Cir. 2014) (No. 13-16248).
DACA also violates the Take Care Clause, U.S. Const. art.
II, § 3, because DACA “dispens[es]” with certain immigration
statutes. Kendall v. United States, 37 U.S. 524, 613 (1838); See
Zachary Price, Enforcement Discretion and Executive Duty,
67 V AND . L. R EV . 671, 676, 690-91 (2014).
8
10
creates two primary categories of aliens permitted to be
present in the country:
Aliens admitted as “nonimmigrant” aliens, who
receive temporary permission to be lawfully present according to one of several visa categories, 8
U.S.C. § 1101(a)(15)(A)-(V); and
Aliens admitted under “immigrant” visas, who
have lawful permanent residence (LPR) status,
commonly known as possessing “green cards,” id.
§§ 1101(a)(20), 1151, 1153, 1181.
Congress also created other avenues to lawful presence,
such as admission as a refugee, id. §§ 1157, 1159, asylum,
id. § 1158, and humanitarian “parole” into the country,
id. § 1182(d)(5)(A).
By contrast, “unlawful presence” is defined as an alien’s presence in the United States “after the expiration
of the period of stay authorized by the [Executive] or
presen[ce] in the United States without being admitted
or paroled.” Id. § 1182(a)(9)(B)(ii) (emphasis added). Of
course, an alien’s unlawful presence does not automatically mean that he will be removed. Congress has imposed several statutory limitations on removal. E.g., id.
§§ 1229b (cancellation of removal), 1231(b)(3) (withholding of removal). And, due to limited enforcement resources, the Executive generally has “discretion to abandon” removal proceedings on a “case-by-case basis”—
forbearance rooted in prosecutorial discretion and traditionally called “deferred action.” Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 483-84 & n.8
(1999) (AADC). But this traditional conception of deferred action is far removed from “deferred-action status” as DACA defines it: granting lawful presence on a
11
systematic basis to potentially over one million otherwise
unlawfully present aliens.
To be sure, there are four narrow contexts in which
Congress has decided to grant lawful presence to certain
categories of unlawfully present aliens. These include
(1) certain aliens seeking relief under the Violence
Against Women Act, (2) immediate family members of
LPRs killed by terrorism or (3) in combat, and (4) applicants for T- and U- visas denied an administrative stay.
See Texas II, 328 F. Supp.3d at 717 n.78 (collecting statutes). But no such legislation covers unlawfully present
aliens who entered the country as minors. Indeed, as discussed further below (at 25 & n.17), such legislation has
been repeatedly proposed and rejected.
b. DACA also flouts four statutory mechanisms that
Congress enacted to discourage aliens from being unlawfully present in the country.
First, the lawful presence granted by DACA negates
Congress’s determination that an alien is removable as
either “present in the United States in violation of [federal law],” 8 U.S.C. § 1227(a)(1)(B); or present “without
being admitted or paroled,” id. § 1182(a)(6)(A)(i). That is
because once an alien has enrolled in the DACA program, the Executive treats him as though he were not
“present in the United States without being admitted or
paroled.” See Pet. Br. at 9 n.3, Texas, 136 S. Ct. 2271 (No.
15-674), 2016 WL 836758.
Second, DACA vitiates the INA’s reentry bar. Congress directed that, depending on the total time that an
alien is “unlawfully present” in the country, an alien may
not reenter the country legally for three or ten years after departure. 8 U.S.C. § 1182(a)(9)(B)(i). But DACA
stops the reentry-bar clock by granting lawful presence
12
to unlawfully present aliens. Texas I, 809 F.3d at 166
n.99.
Ordinarily the reentry-bar clock starts when an alien
crosses the border “without being admitted or paroled.”
8 U.S.C. § 1182(a)(9)(B)(ii). The INA allows the President to stop that clock by granting humanitarian “parole,” but only in very limited circumstances. Id.
§ 1182(d)(5)(A). The INA does not authorize the Executive to stop this clock for any alien of its choosing based
on the Executive’s priorities for removal proceedings—
yet that is what DACA seeks to effect.
Third, DACA gives unlawfully-present aliens a pathway to citizenship that Congress has disallowed. For an
alien to be eligible to adjust to permanent-resident status (and ultimately citizenship), the alien must be lawfully “admitted or paroled into the United States.” Id.
§ 1255(a). Unlawfully present aliens who depart the
country, however, are generally inadmissible upon return. See id. § 1182(a)(9)(B).
DACA status gives aliens access to “advance parole,” an Executive practice that allows them to leave and
reenter the country lawfully.9 Cf. id. § 1182(d)(5)(A). Advanced parole allows an otherwise inadmissible alien to
be “admitted” into the country, removing a significant
See Letter from León Rodríguez, Dir., USCIS, to Sen. Grassley 1 (June 29, 2016), available at https://www.judiciary.senate.gov/imo/media/doc/2016-06-29 USCIS to CEG - DACA Advance Parole Program.pdf; Deferred Action for Childhood Arrivals (DACA) Toolkit 23-24, Texas v. United States, 86 F.
Supp. 3d 591 (S.D. Tex. 2015) (No. 1:14-cv-254), ECF No. 386; Letter from León Rodríguez, Dir., USCIS, to Sen. Grassley
3-4 (Oct. 9, 2014), Texas, 86 F. Supp. 3d 591 (No. 1:14-cv-254),
ECF No. 64-48.
9
13
barrier to seeking LPR status. DACA thereby “enable[s]
certain individuals to change their inadmissible status
(due to unlawful entry) into an admitted/paroled category.” Texas I, 809 F.3d at 720. Having been paroled into
the country, the alien can seek LPR status.10
As of August 2017, approximately 1,056 DACA recipients had been given citizenship and approximately
39,514 DACA recipients had been given green cards, the
first step on the pathway to citizenship. See Motion for
Preliminary Injunction, App. 12, Texas v. United States
(S.D. Tex. May 2, 2018) (1:18-cv-68), ECF No. 6, Exh. 3.
DACA thus “directly undermines the intent and deterrent effect intended by Congress, and contradicts the express wording of the DACA program’s instituting memorandum.” Texas II, 328 F. Supp. 3d at 720.
Fourth, DACA makes otherwise unlawfully present
aliens eligible for Social Security, Medicare, and the
Earned Income Tax Credit. But in 1996, Congress eliminated most federal benefits for unlawfully present aliens. As part of welfare-reform legislation, Congress declared that only those with “lawful presence” are eligible
for specified benefits. As relevant here, Congress required aliens to be “lawfully present in the United
Under DACA’s detailed procedures, officials were to interpret access to this benefit very broadly. See U.S. Dep’t of
Homeland Sec., DACA Nat’l Standard Operating Procedures
139-42 (2013). Under these procedures, work-related conferences, semester-abroad programs and job interviews would all
count as “urgent humanitarian” reasons to travel abroad,
which would provide “significant public benefit.” Id. at 135.
10
14
States” to obtain Social Security, Medicare, and another
retirement benefit. 8 U.S.C. § 1611(b)(2)-(4).11
DACA purports to re-enable access to those benefits. See 8 C.F.R. § 1.3(a)(4)(vi); 45 C.F.R. § 152.2(4)(vi).12
Yet extensive statutory criteria define when an alien’s
presence is lawful, and these provisions do not mention
discretion to deem any alien in the country lawfully present. See supra pp. 8-11. DACA thus does what Congress
prohibited in 1996: It authorizes benefits for aliens, not
because their presence is authorized by Congress, but
simply because the Executive is forbearing from removal.
2.
DACA contravenes statutes defining which
aliens are authorized to work in this
country.
Likewise, DACA’s conferral of work authorization
violates substantive immigration law.
11
The legislative history confirms that those whom the Executive granted deferred removal, previously eligible for such
benefits as “[p]ersons residing under color of law,” would no
longer be eligible for those benefits because they were to “be
considered to be aliens unlawfully present in the United
States.” H.R. Rep. No. 104-725, at 383 (1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N. 2649, 2771. Congress recognized
“approved deferred action status,” i.e., the four programs that
it had approved, as a lawful status when it passed the Real ID
Act of 2005 without returning to the status quo ante. See Pub.
L. No. 109-13 § 202(c)(2)(B)(viii), 119 Stat. 231, 313.
In addition to these federal benefits, lawful presence under
DACA also makes aliens eligible under some state laws for
benefits, such as driver’s licenses, e.g., Tex. Transp. Code
§ 521.142(a), and unemployment insurance, e.g., Tex. Lab.
Code § 207.043(a)(3).
12
15
a. Congress has imposed numerous restrictions to
discourage the employment of unauthorized aliens. In
1986, IRCA created “a comprehensive framework for
‘combating the employment of illegal aliens.’” Arizona,
567 U.S. at 404 (quoting Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U.S. 137, 147 (2002)). Breaking with
previous law, Congress created penalties for employers
who hire “unauthorized aliens.”13 8 U.S.C. § 1324a(a), (f);
see Texas I, 809 F.3d at 181 & n.174. Unauthorized employment also generally makes aliens ineligible to adjust
to LPR status, 8 U.S.C. § 1255(c)(2), or to toll the unlawful-presence clock under the INA’s reentry bar, id.
§ 1182(a)(9)(B)(iv).
b. As with lawful presence, Congress has not given
the Executive free rein to grant work authorization. Instead, Congress has intricately defined which aliens are
authorized for employment in the country.
In particular, Congress has chosen to authorize employment as to about 20 nonimmigrant-visa categories.
E.g., id. § 1101(a)(15)(H) (temporary employment for defined specialty occupations), (P) (entertainment work).14
The INA defines “unauthorized alien” to include aliens who
are neither LPRs nor “authorized to be so employed by [the
INA] or by the [Executive].” 8 U.S.C. § 1324a(h)(3)(B). The
section does not address the scope of the Executive’s delegated work-authorization power. Texas I, 809 F.3d at 183 &
n.185. It merely tells employers that they can rely on work
authorization conferred by statute or by the Executive without
fear of liability for hiring “unauthorized aliens.” 8 U.S.C.
§ 1324a(a).
13
See also USCIS, How Do I Change to Another Nonimmigrant Status? 2 (Jan. 2016), https://www.uscis.gov/sites/default/files/USCIS/Resources/C2en.pdf.
14
16
In addition, Congress has required the Executive to authorize employment of other categories of aliens, including:
Asylum holders, id. § 1158(c)(1)(B);
Aliens granted temporary protected status, id.
§ 1254a(a)(1)(B);
Aliens granted and applying for relief under
IRCA, id. § 1255a(b)(3), (e)(1)-(2);
Aliens granted “Family Unity” under the Immigration Act of 1990, Pub. L. No. 101-649, tit. III,
§ 301, 104 Stat. 4978, 5029 (codified as amended
at 8 U.S.C. § 1255a note).
Congress has further provided that aliens in certain
categories are “eligible” for or “may” receive work authorization from the Executive. Those categories include:
Asylum applicants, 8 U.S.C. § 1158(d)(2);
Certain battered spouses of nonimmigrants, id.
§ 1105a(a);
Certain agricultural worker preliminary applicants, id. § 1160(d)(3)(A);
Certain nationals applying for status adjustment, Haitian Refugee Immigration Fairness
Act of 1998, Pub. L. No. 105-277, div. A, § 101(h),
tit. IX, § 902(c)(3), 112 Stat. 2681-538, 2681-539;
Nicaraguan Adjustment and Central American
Relief Act, Pub. L. No. 105-100, tit. II, § 202(c)(3),
111 Stat. 2160, 2193, 2195 (1997);
Deferred-action U-visa applicants, 8 U.S.C.
§ 1184(p)(6); id. § 1227(d)(1)-(2);
Deferred-action family members of LPRs killed
on September 11, 2001, USA PATRIOT Act of
17
2001, Pub. L. No. 107-56, tit. IV, § 423(b)(1)-(2),
115 Stat. 272, 361;
Deferred-action family members of U.S. citizens
killed in combat, National Defense Authorization
Act for Fiscal Year 2004, Pub. L. No. 108-136, tit.
XVII, § 1703(c)(2), 117 Stat. 1392, 1694-95; and
Deferred-action Violence Against Women Act
self-petitioners and family members, 8 U.S.C.
§ 1154(a)(1)(D)(i)(II), (IV), (a)(1)(K).
Congress, in short, has carefully set out which aliens
are eligible to work. And it has likewise prohibited employment of aliens who “either entered the country illegally, or are in an immigration status which does not permit employment.” H.R. Rep. No. 99-682(I), at 46, 51-52
(1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5650, 565556.15
Except as set out above, Congress has not granted
the Executive the power to unilaterally grant work authorization. And in light of Congress’s “comprehensive
framework,” Arizona, 567 U.S. at 404, there is no basis
to infer such a grant of power to the Executive. If there
were, then Congress’s detailed work-authorization provisions would be surplusage. See Bd. of Trs. of Leland
Stanford Jr. Univ. v. Roche Molecular Sys., Inc., 563
U.S. 776, 788 (2011).
A regulation, 8 C.F.R. § 274a.12(c)(14), makes work authorization available on a case-by-case basis to aliens granted “deferred action” who “establish[] an economic necessity.” To the
extent this provision would cover aliens outside the four categories of deferred-action recipients that Congress made eligible for work authorization, it too is invalid.
15
18
It makes good sense that Congress would keep tight
control over alien work authorization, because work authorization brings a host of other benefits. For example,
aliens’ receipt of work authorization connotes that their
“status is so changed as to make it lawful for them to engage in such employment,” thus allowing a Social Security number to issue. 42 U.S.C. § 405(c)(2)(B)(i)(I); accord 20 C.F.R. § 422.104(a)(2). And with a Social Security
number comes eligibility for Social Security benefits and
the valuable Earned Income Tax Credit. Texas I, 809
F.3d at 149 & n.18; see 26 U.S.C. § 32(c)(1)(E), (m); 42
U.S.C. §§ 402(a)-(h), 414(a). IRCA made clear that these
generous benefits should be available only to a discrete
category of aliens. In overriding that determination,
DACA grants those benefits far more broadly than Congress permitted.
3.
Neither historical practice nor other
Executive programs can cure DACA’s
unlawfulness.
Unable to point to any statutory language or legislative history authorizing DACA, its defenders try to justify the program based on past executive actions. In particular, they point to opinion letters and legal briefs asserting the legality of classic deferred action, Principal
and Response Brief of Appellees the Regents of the University of California, Janet Napolitano, and City San
Jose at 46-47, Regents, 908 F.3d 476 (9th Cir. 2018) (No.
18-15068), 2018 WL 1414352, and instances when the “executive branch has provided blanket or categorical deferrals of deportation.” Regents, 908 F.3d at 488 (quotation
marks omitted). The Court should reject that argument
for four reasons.
19
First, “historical practice . . . ‘does not, by itself, create power.’” Texas I, 809 F.3d at 184 & n.193 (quoting
Medellin v. Texas, 552 U.S. 491, 532 (2008)). This alone
forecloses any attempt to justify DACA based on past
practice.
Second, the leading historical example on which the
Ninth Circuit relied, the 1990 Family Fairness program,
is inapposite. Regents, 908 F.3d at 489. That program offered “extended voluntary departure,” see 8 U.S.C.
§§ 1252(b), 1254(e) (1988), to about 1% of the country’s
unlawfully present aliens (about 47,000 people), David
Hancock, Few Immigrants Use Family Aid Program,
MIAMI HERALD, Oct. 1, 1990, at 1B. But it did so through
a form of Executive forbearance specifically authorized
by Congress at the time, which the Executive interpreted to allow it to grant removable aliens an indefinite
period to “depart voluntarily” from the United States.
Congress took that power away in 1996. 8 U.S.C.
§ 1229c(a)(2)(A).
Likewise, other historical programs preceding
DACA where the Executive forbore from removing classes of aliens were supported by statutory authorization
that Congress has either curtailed or declined to extend
to DACA recipients. These include forms of “parole,”
which previously had been left to the “discretion” of the
Executive. Id. § 1182(d)(5)(A) (1952). Congress limited
the Executive’s statutory parole authority in 1996 to humanitarian parole, which may be granted only “on a caseby-case basis,” and only “for urgent humanitarian reasons or significant public benefit.” See id.
§ 1182(d)(5)(A).
Third, no relevant historical practice supports
DACA’s work authorization. No practice preceding
20
IRCA in 1986 is relevant because there was no general
federal ban on hiring unauthorized aliens.
Post-1986, Congress has never amended IRCA’s
definition of “unauthorized alien” in 8 U.S.C.
§ 1324a(h)(3). Congress has thus consistently maintained
its general prohibition against “employment of aliens”
who “entered the country illegally.” H.R. Rep. No. 99682(I), at 46, 1986 U.S.C.C.A.N. at 5650. Congress reinforced that position in 1996 by eliminating the basis for
work authorization provided under programs like the
1990 Family Fairness program.
The Executive did promulgate a post-IRCA workauthorization regulation that covered a few categories of
aliens. E.g., 8 C.F.R. § 274a.12(c)(9)-(10), (c)(14), (c)(16).
But most aliens who received work authorization under
that regulation already had lawfully present status via,
for example, a nonimmigrant visa. E.g., id. § 274a.12(a).
While the regulation did grant work-authorization eligibility to some deferred-action recipients who fell outside
the four narrow contexts in which IRCA deemed deferred-action recipients eligible for work authorization,
see supra p. 11, that eligibility applied to an exceedingly
small number of aliens. See 52 Fed. Reg. 46,092, 46,09293 (Dec. 4, 1987) (number of aliens covered was so small
as “to be not worth recording statistically” and “the impact on the labor market is minimal”); see also Texas, 86
F. Supp. 3d 591, 639 n.46 (only 500-1,000 aliens received
deferred action annually from 2005-2010, before DACA).
The amici States doubt the validity of that action, but
even if it were lawful, it cannot show congressional acquiescence to a massive new program like DACA.
Fourth, previous grants of deferred action outside
the categories authorized by Congress “are not
21
analogous to [DACA].” Texas I, 809 F.3d at 184. In particular, “many of the previous programs were bridges
from one legal status to another, whereas [DACA]
awards lawful presence to persons who have never had a
legal status and may never receive one.” Id. (footnotes
omitted); see Josh Blackman, The Constitutionality of
DAPA Part I: Congressional Acquiescence to Deferred
Action, 103 GEO. L.J. ONLINE 96, 119-25 (2015) (historical overview); see also Pet. Br. at 46-49 (discussing prior
executive actions). Unlike earlier stop-gap measures designed to facilitate congressional policies see Texas I, 809
F.3d at 184-85 & nn.195, 197, DACA flouts Congress’s
scheme for conferring lawful presence. See Br. for State
Respondents at 59 n.47, Texas, supra (listing lawful-status paths for past deferred-action programs).16
B. DACA is procedurally unlawful because it was
promulgated contrary to the APA’s
requirements.
Even if DACA were consistent with the INA, it
would still be invalid because it was promulgated without
notice-and-comment rulemaking. DACA is indisputably
a “rule” for APA purposes. 5 U.S.C. § 551(4). If DACA
created a “substantive” or “legislative” rule, it had to go
The courts below have also upheld DACA on the grounds
that (1) DACA affects fewer people than DAPA, and (2) DACA
creates a pathway to citizenship rather than simply making it
easier as DAPA did. E.g., Regents, 908 F.3d at 507-09. This too
was in error. Util. Air Regulatory Grp. v. EPA, 573 U.S. 302,
325-28 (2014) (holding that limitations on unlawful regulatory
overreach cannot be justified as interpretive rules); see also
Pet. Br. at 35-37 (explaining why those distinctions do not support DACA’s legality).
16
22
through the notice-and-comment procedure unless it was
subject to an exception. Id. § 553(b); Texas I, 809 F.3d at
171. DACA’s defenders have argued that DACA is exempt from notice-and-comment rule making because
DACA is a “general policy statement” rather than a
“substantive rule.” But settled law confirms the opposite.
A rule is “substantive” if it either (1) “affect[s] individual rights and obligations,” Morton, 415 U.S. at 232;
or (2) does not “genuinely leave[] the agency and its decisionmakers free to exercise discretion,” Am. Bus.
Ass’n v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980).
Based on “the language of the purported statement and
the circumstances of its promulgation,” id. at 530, both
tests confirm that DACA is a substantive rule, not a general policy statement.
1.
DACA required notice and comment
because it affected the substantive rights of
individuals and obligations of States.
DACA is a substantive rule, not—as respondents imagine—a mere policy statement. Courts have routinely
held that an “important touchstone for distinguishing”
substantive rules from policy statements is that “a substantive rule . . . [i]s one ‘affecting individual rights and
obligations.’” Chrysler, 441 U.S. at 302 (quoting Morton,
415 U.S. at 232); see also, e.g., Nat’l Mining Ass’n v.
McCarthy, 758 F.3d 243, 251-52 (D.C. Cir. 2014) (Kavanaugh, J.) (describing impact on private parties as
“most important factor” in determining substantive
rule). Policy statements and interpretive rules, by contrast, do ‘“not have the force and effect of law and are not
accorded that weight in the adjudicatory process.’” Perez
v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015)
23
(quoting Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87,
99 (1995)).
Amici do not challenge the Executive’s well-established authority to defer removal action on a case-bycase basis. Deferred action under DACA, however, “is
far from any program conducted in the past.” Texas II,
328 F. Supp. 3d at 721. DACA is “not just an announcement of [DHS’s] refusal to enforce the statutory . . . requirements; it purports to alter those requirements” for
over a million unlawfully present aliens. Util. Air Regulatory Grp., 573 U.S. at 326. In so doing, DACA both alters individual rights and imposes obligations on States.
It therefore is procedurally unlawful because it never underwent the mandatory notice-and-comment process.
Nat’l Mining Ass’n, 758 F.3d at 251-52 (summarizing the
law).
a. The plain language of the memorandum creating
DACA has a significant impact on individual rights. As
discussed above, when a DHS field office grants a DACA
permit, that act changes the immigrant’s status to “lawful presence,” which triggers numerous benefits, including creating a defense to removability, allowing the alien
to work in the United States, tolling the reentry bar, and
making the alien eligible for numerous social services at
the state and federal levels. See supra pp. 8-14.
This Court has required notice-and-comment procedures for far less significant administrative acts. In Morton v. Ruiz, for example, the Court examined whether
notice-and-comment rulemaking was required before the
Bureau of Indian Affairs could exclude “full-blooded, unassimilated Indians living in an Indian community near
their native reservation,” 415 U.S. at 211, from benefits
provided by Congress to Indians living “on a
24
reservation,” id. at 208. The Court concluded that such a
regulation was “substantive” because it “affect[ed] individual rights and obligations.” Id. at 231-37. DACA, of
course, does that and far more. See supra pp. 11-14.
There is no serious argument that DACA does not “affect individual rights and obligations.” See Morton, 415
U.S. at 232.
b. As the Fifth Circuit recognized in Texas I, DACA
also obligates individual States to increase their spending on various social services. 809 F.3d at 155-56 (discussing impact on Texas). These services include
healthcare, education, and law-enforcement, as well as
social services required by federal law. Texas II, 328 F.
Supp. 3d at 700-04. According to an expert retained by
DACA’s defenders, Texas alone “incurs more than
$250,000,000 in total direct costs from DACA recipients
per year.” Id. at 700-701. If the administrative state
wishes to impose that significant burden on States, it
must at a minimum initiate notice-and-comment review.
Nat’l Mining Ass’n, 758 F.3d at 252 (finding rule to be
interpretive where “State permitting authorities ‘are
free to ignore it’”); cf. Chrysler, 441 U.S. at 302.
This Court should reject any argument that a DACA
permit merely triggers benefits that flow from other regulations. As discussed above (at 13-14), DACA recipients
would be ineligible for these benefits under existing statutes. But DACA makes eligible those whom Congress
has deemed ineligible. It thus must be considered a substantive rule because “in the absence of the rule there
would not be an adequate legislative basis” for DHS either “to confer benefits” relating to lawful status on this
class of individuals or impose the accompanying obligations on States. Am. Mining Cong. v. Mine Safety &
25
Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993); cf.
Shalala, 514 U.S. at 99-100 (holding policy manual was
interpretive rule because it was consistent with regulations).
c. The “circumstances of its promulgation” further
confirm that DACA creates substantive rights. Am. Bus.
Ass’n, 627 F.2d at 530. After all, DACA arose as President Obama’s attempted workaround to Congress’s failure to pass the Development, Relief, and Education for
Alien Minors (DREAM) Act.17 The DREAM Act, if
adopted, would have shared many features with DACA,
including allowing unlawfully present aliens who arrived
before they were 16 to apply for lawful presence.
But the DREAM Act never reached President
Obama’s desk. When the DREAM Act failed in Congress
for the third time, the President set out to do what Congress refused to do: confer lawful presence, and associated benefits, on hundreds of thousands of aliens. The
President did so even though “nothing in the statute,
prior regulations, or case law” authorized the benefits in
question. Nat. Res. Def. Council v. EPA, 643 F.3d 311,
320-21 (D.C. Cir. 2011). That effort to “change[] the law”
cannot be described as anything other than substantive.
Id.; see also Texas I, 809 F.3d at 176-78.
d. Respondents’ own pleadings further confirm that
DACA was a “substantive rule” requiring notice and
comment.
The University of California respondents contend
that the DACA-wind-down memorandum “constitutes a
See also Pet. Br. at 5 & n.2 (discussing failed history of
DREAM Act); id. at 38 (quoting concessions of need for Congressional action to provide this relief).
17
26
substantive rule subject to APA’s notice-and-comment
requirements.” Complaint at 14 ¶ 61, Regents of Univ. of
Cal. v. U.S. Dep’t of Homeland Sec., No. 3:17-cv-5211WHA (N.D. Cal. Sept. 8, 2017), ECF No. 1. In support of
this legal conclusion, respondents allege that DACA purports to unilaterally confer lawful presence. Id. at 8 ¶ 31
(“Individuals with DACA status were ‘not considered to
be unlawfully present during the period in which deferred action [was] in effect.’” (alteration in original) (citing USCIS FAQs)). Furthermore, these respondents admit that aliens with DACA status would not have been
able—but for DACA—lawfully to “obtain jobs and access
to certain Social Security and Medicare benefits.” Id. at
2 ¶ 3.
The State of California respondents likewise plead
that DACA’s attributes meet the test for a substantive
rule requiring APA notice-and-comment procedure. For
instance, these respondents plead that “DACA Provides
Numerous Benefits,” including (1) “the right not to be
arrested or detained based solely on their immigration
status,” (2) “eligibility to receive employment authorization,” (3) the ability to “travel,” specifically the ability “to
briefly depart the U.S. and legally return,” (4) eligibility
for “federal Social Security, retirement, and disability
benefits” not available to other undocumented immigrants, and (5) “equal access to other benefits and opportunities” with other individuals who are lawfully present
in this country. Complaint at 17-18 ¶¶ 82-86, California
v. U.S. Dep’t of Homeland Sec., No. 3:17-cv-5235 (N.D.
Cal. Sept. 11, 2017), ECF No.1.
Indeed, DACA’s defenders insist over and over
again that “DACA confers numerous important benefits
on those who apply for and are granted DACA status.”
27
Complaint at 9 ¶ 27, Garcia v. United States, No. 3:17cv-5380 (N.D. Cal. Sept. 18, 2017), ECF No. 1 (emphases
added). They have done so in multiple courts. See, e.g.,
Complaint, Trs. of Princeton Univ. v. United States, No.
1:17-cv-2325 (D.D.C. Nov. 3, 2017), ECF No. 1; Complaint, NAACP v. Trump, No. 1:17-cv-1907 (D.D.C. Sept.
18, 2017), ECF No. 1; 3d Am. Complaint, Vidal v. Nielsen, No. 1:16-cv-4756 (E.D.N.Y. Dec. 11, 2017), ECF No.
113; Complaint, New York v. Trump, No. 1:17-cv-5228
(E.D.N.Y. Sept. 6, 2017), ECF No. 1.
Respondents list these benefits to support their assertion that by rescinding DACA “federal agencies have
changed the substantive criteria by which individual[]
DACA grantees” are permitted to “work, live, attend
school, obtain credit, and travel in the United States.”
Complaint at 54 ¶ 289, New York v. Trump, No. 1:17-cv5228 (E.D.N.Y. Sept. 6, 2017), ECF No. 1. But that could
be true only if DACA’s creation was itself a substantive
rule—one “affect[ing] individual rights and obligations.”
Morton, 415 U.S. at 232. If DACA did not create substantive criteria by which these immigrants gained the benefits listed in their complaints, id., winding down this program could not have changed any substantive criteria.
The necessary implication of these allegations is that
DACA was a substantive rule that was never validly implemented. If DACA’s rescission “affect[ed] individual
rights and obligations,” id. at 232, so too did DACA’s creation.
28
2.
DACA, as implemented, did not leave
immigration officials with discretion to
deny relief.
Unable to deny that DACA altered substantive
rights, its defenders claim that notice-and-comment
rulemaking was unnecessary because it is worded as a
“general policy statement” regarding how DHS will exercise prosecutorial discretion. While the APA exempts
policy statements from notice and comment, see 5 U.S.C.
§ 553(d)(2), that exemption has no application here for at
least two independent reasons.
First, “a general statement of policy” is a statement
that, by definition, does not alter statutory law or existing regulation. Stated differently, in contrast to a “substantive rule,” a “general policy statement,” cannot “impose any rights and obligations.” Prof’ls & Patients for
Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir.
1995). Such a statement may only lay out the factors that
the agency may consider in applying discretion going
forward. Id.; accord Azar v. Alina Health Servs., 139 S.
Ct. 1804, 1811-12 (2019) (distinguishing “policy statements” under Medicare, which can create “substantive
rules,” from “policy statements” under APA, which cannot). Because DACA “affect[s] individual rights and obligations,” it is a “legislative” rule whose promulgation
“must conform with any procedural requirements imposed by Congress.” Chrysler Corp., 441 U.S. at 302-03.
There is no support in either the APA or this Court’s
precedent for the notion that an agency action that
changes substantive immigration law may be adopted
without notice-and-comment rulemaking merely because
it provides the agency with some level of discretion in its
29
application. Nor would such a rule be consistent with the
purpose of notice-and-comment rulemaking, which is to
ensure that those agencies making binding rules do so in
a way that is open, fair, and accountable. Cf. Perez, 135
S. Ct. at 1206.
Second, DACA does not genuinely give DHS officials
discretion; it removes discretion where it previously existed. While DHS’s label of this policy as “discretionary”
is relevant, the true test is how the program is actually
administered. Azar, 139 S. Ct. at 1812 (“Agencies have
never been able to avoid notice and comment simply by
mislabeling their substantive pronouncements.”) (citing
inter alia Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav.
& Loan Ins. Corp., 589 F.2d 658, 666-67 (D.C. Cir. 1978)).
When a rule purports to allow discretion “is in purpose
or likely effect . . . a binding rule of substantive law,”
courts uniformly look past the label and take the rule “for
what it is.” Guardian, 589 F.2d at 666-67; see also, e.g.,
Iowa League of Cities v. EPA, 711 F.3d 844, 862-63 (8th
Cir. 2013); Phillips Petro. Co. v. Johnson, 22 F.3d 616,
619-20 (5th Cir. 1994).
In Texas I, the Fifth Circuit acknowledged that (like
DAPA) the language in the original memo creating
DACA purported to “instruct[] agencies to review applications on a case-by-case basis and exercise discretion.”
809 F.3d at 172. But, the court correctly gave more
weight to three facts in the record: (1) DACA is implemented through a 150-page manual of associated operating procedures that leaves little actual discretion, (2) of
the 723,000 applications accepted for evaluation under
DACA, only 5% had been rejected, and (3) “[d]espite a
request by the [district c]ourt, the Government’s counsel
did not provide the number, if any, of requests that were
30
denied” for discretionary reasons once the agency concluded that “the applicant met the DACA criteria.” Id. at
172-73 (cleaned up). In the presence of those circumstances, the Fifth Circuit concluded that regulatory reality trumps labels in the original DACA memo. Id.
Despite extensive discovery in Texas II, DACA’s defenders still have not established that DHS field offices
exercise meaningful discretion in implementing DACA.
To the contrary, one reason the Executive decided to rescind DACA was that it could not find a single individual
who qualified for DACA but was nonetheless denied relief for discretionary reasons. Pet. App. 112a-13a n.1; see
also Pet. Br. at 39 & n.7 (explaining less than 10% of applications were denied, most of were denied because applicants were ineligible). Even if some de minimis number of applications were denied for discretionary reasons, the Court should still consider the policy binding
and subject to the notice-and-comment rulemaking procedures established by Congress. McLouth Steel Prods.
Corp. v. Thomas, 838 F.2d 1317, 1321 (D.C. Cir. 1988)
(where model was used to resolve 96 out of 100 applications it was a substantive rule).
II. The Executive’s Decisions Both to Create and to
Rescind DACA Are Subject to Judicial Review.
DACA is substantively and procedurally unlawful—
and the federal courts are empowered to say so. The Executive’s decisions to create and, later, to wind down
DACA are reviewable agency actions under the APA.
Courts have “long applied a strong presumption favoring
judicial review of administrative action.” Weyerhaeuser
Co. v U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370
(2018). This presumption can be rebutted in only two
31
ways: (1) if the challenged action is “committed to agency
discretion by law,” or (2) if the relevant statute “preclude[s] review.” 5 U.S.C. §§ 701(a)(1), (a)(2). These
“very narrow” exceptions, Heckler v. Chaney, 470 U.S.
821, 830 (1985), do not apply here.
First, DACA cannot be considered an “agency action
committed to agency discretion by law.” 5 U.S.C.
§ 701(a)(2). This exception is limited to “certain categories” that have been “traditionally committed to agency
discretion,” including “a decision not to institute enforcement proceedings” or allocation of lump-sum appropriations. Lincoln v. Vigil, 508 U.S. 182, 191 (1993); see also
Weyerhaeuser Co., 139 S. Ct. at 370. Rulemaking is not
an area left to agency discretion.
DACA cannot be defended as simply an announcement of enforcement priorities or an exercise of prosecutorial discretion. DACA, like DAPA and Expanded
DACA, “is much more than nonenforcement” because it
“affirmatively confer[s] ‘lawful presence’ and associated
benefits on a class of unlawfully present aliens.” Texas I,
809 F.3d at 166. That plainly distinguishes DACA from
the form of immigration-enforcement forbearance
known as “deferred action.” AADC, 525 U.S. at 482-84.
DACA also creates a massive bureaucracy to grant applicants that status. As every court to consider the question has concluded, the creation and subsequent dismantling of such a bureaucracy is not a question committed
to one branch of government’s unilateral discretion. E.g.,
CASA de Md. v. U.S. Dep’t of Homeland Sec., 284 F.
Supp. 3d 758, 765 (D. Md. 2018) (“[J]udicial decisions
throughout the DAPA litigation illustrate” that “challenges to DAPA or analogous immigration programs
32
promulgated by DHS without approval by Congress are
justiciable.”), aff’d, 924 F.3d 684, 698-700 (4th Cir. 2019).
Second, no INA provision precludes judicial review
of the Executive’s decision to grant lawful presence to
entire classes of aliens. DACA’s rescission is not made
unreviewable by 8 U.S.C. § 1252(g), which shields final
deportation orders from review, because DACA reflects
no claim “by or on behalf of any alien” challenging removal-proceeding determinations. Indeed, the idea that
section 1252(g) “precludes judicial review has been rejected repeatedly.” CASA de Md., 284 F. Supp. 3d at 769.
III. The Executive’s Rescission of DACA Was Neither
Arbitrary Nor Capricious.
The arguments against DACA’s rescission are premised on the notion (rebutted above) that DACA was lawful. They also reflect a fundamental misunderstanding of
the scope of arbitrary-and-capricious review under the
APA. Tellingly, no court has found that rescinding an unlawful executive policy is arbitrary and capricious. Instead, respondents maintain that a court may block an
agency from rescinding its own policy merely because
the court disagrees with the agency that the policy is unlawful. That is not the law.
The standard of review under the APA is “narrow.”
Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). As this Court has repeatedly stated, a court may only look to whether the Executive examined “the relevant data” and articulated “a satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice
33
made.’” Id. (quoting Burlington Truck Lines v. United
States, 371 U.S. 156, 168 (1962)).18
The Executive here did precisely that. Secretary
Duke’s memorandum winding down DACA summarized
DHS’s conclusion that DACA was illegal “after consulting with the Attorney General and considering the likelihood of success on the merits of the ongoing litigation”
in Texas I. Specifically, the memo recited the Attorney
General’s “legal determination[s]” that (1) “DACA ‘was
effectuated by the previous administration through executive action, without proper statutory authority,”
(2) “[s]uch an open-ended circumvention of immigration
laws was an unconstitutional exercise of authority by the
Executive Branch,” and (3) “because DACA 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.” Pet. App. 116a (quotation marks omitted); see
also id. 122a-23a (explaining how Secretary Nielsen
reached similar conclusion).
As discussed above, the Executive’s conclusion that
DACA is illegal was correct. But, at the very least, it met
this Court’s requirement that “the [Executive] examine
the relevant data,’”—here, the legal opinions of the Fifth
Circuit as affirmed by this Court and the highest-ranking lawyer in the United States—and explained why she
As Amici have previously explained, this standard does not
change simply because the new administration has different
policy goals or reaches a different conclusion about the legality of DACA. See Brief for the States of Texas, et al., as Amici
Curiae in Support of Petitioners, U.S. Dep’t of Homeland Sec.
v. Regents of the Univ. of Cal., No. 18-587, at 5-8 (U.S. Dec. 6,
2018).
18
34
thought the program was unlawful. Motor Vehicles Mfrs.
Ass’n, 463 U.S. at 43 (quotation marks omitted). That is
all the APA requires.
The courts below held to the contrary only by imposing additional standards not required by the APA. Each
court to consider the question has recognized that
“DACA was rescinded based on [DHS’] view that the policy was unlawful.” CASA de Md., 924 F.3d at 704; see also
Regents, 908 F.3d at 500; NAACP v. Trump, 298 F.
Supp. 3d 209, 249 (D.D.C. 2018). The courts concluded
that the Executive action was nonetheless arbitrary because they disagreed with either the Fifth Circuit analysis the Executive invoked or its applicability to DACA.
See Regents, 908 F.3d at 508-10; CASA de Md., 924 F.3d
at 705; NAACP, 298 F. Supp. 3d at 239-40. For example,
the Ninth Circuit concluded that Secretary Duke erred
in deciding that DACA was illegal under the Fifth Circuit’s opinion in Texas I because she failed to expressly
address the differences in size between the DACA and
DAPA populations. Regents, 908 F.3d at 509 (“As the district court laconically put it, ‘there is a difference between 4.3 million and 689,800.’”).
That is not arbitrary-and-capricious review. An
agency is not required to explain the reasons behind its
policy changes in minute detail. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513-14 (2009). Moreover, courts are to “uphold a decision of less than ideal
clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Ark.-Best Freight
Sys., Inc., 419 U.S. 281, 286 (1974); see also, e.g., Morgan
Stanley Capital Grp. Inc. v. Pub. Util. Dist. No. 1 of
Snohomish Cty., 554 U.S. 527, 544-45 (2008) (upholding
action that was legally required even if agency cited
35
different rationale for decision). There is no basis in this
Court’s jurisprudence to require an agency to anticipate
and discuss every legal distinction that a district court
might later deem relevant. Such searching review is the
definition of substituting the judgment of judges for that
of the Executive, which the APA and this Court’s precedent foreclose.
Applying the APA otherwise would intrude on the
President’s Article II obligation to “take Care that the
Laws be faithfully executed.” U.S. Const. art. II, § 3. The
“executive department[] of the Federal Government, no
less than the judicial department, ha[s] a duty to defend
the Constitution.” Ariz. Christian Sch. Tuition Org. v.
Winn, 563 U.S. 125, 133 (2011). Absent a ruling by this
Court, “subordinate executive agencies supervised and
directed by the President” may “decline to follow [even
a] statutory mandate” that the President concludes is unconstitutional. In re Aiken Cty., 725 F.3d 255, 261 (D.C.
Cir. 2013) (Kavanaugh, J.). This Court should hold that
it is not arbitrary and capricious for the Executive to discontinue a prior unilateral executive action that it determines is unlawful.
36
C O NCL USI O N
The decisions enjoining the Executive’s rescission
of DACA should be reversed.
STEVE MARSHALL
Attorney General of
Alabama
KEVIN G. CLARKSON
Attorney General of
Alaska
MARK BRNOVICH
Attorney General of
Arizona
LESLIE RUTLEDGE
Attorney General of
Arkansas
ASHLEY MOODY
Attorney General of
Florida
DEREK SCHMIDT
Attorney General of
Kansas
JEFF LANDRY
Attorney General of
Louisiana
Respectfully submitted.
KEN PAXTON
Attorney General of
Texas
JEFFREY C. MATEER
First Assistant
Attorney General
KYLE D. HAWKINS
Solicitor General
Counsel of Record
MATTHEW H. FREDERICK
Deputy Solicitor General
ARI CUENIN
LANORA C. PETTIT
Assistant Solicitors General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
kyle.hawkins@oag.texas.gov
(512) 936-1700
37
PHIL BRYANT
Governor of
Mississippi
DOUG PETERSON
Attorney General of
Nebraska
ALAN WILSON
Attorney General of
South Carolina
JASON R. RAVNSBORG
Attorney General of
South Dakota
PATRICK MORRISEY
Attorney General of
West Virginia
AUGUST 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.