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

Supreme Court briefOct 3, 2019

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

In the Supreme Court of the United States

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

Petitioners,

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF 143 U.S. BUSINESS

ASSOCIATIONS AND COMPANIES

AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

ANDREW J. PINCUS

Counsel of Record

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

KAREN W. LIN

Mayer Brown LLP

1221 Avenue of the

Americas

New York, NY 10020

(212) 506-2500

Counsel for Amici Curiae

Additional Captions Listed On Inside Cover

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL.,

Petitioners,

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND SECURITY, ET AL.,

Petitioners,

MARTIN JONATHAN BATALLA VIDAL, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ...............................................................3

I. RESCINDING DACA WILL HARM U.S.

COMPANIES AND THE ENTIRE

ECONOMY. ............................................................3

A. Dreamers Contribute To The Success Of

U.S. Companies And The Economy As A

Whole.................................................................5

B. Dreamers Help Grow The Economy By

Filling Jobs That Otherwise Would

Remain Vacant Due To An Insufficient

Supply Of Workers. ..........................................9

C. Rescinding DACA Will Inflict Enormous

Harm On Individuals, Companies, And

The Economy................................................... 15

II. THE DACA RECISSION IS INVALID. .............. 20

A. The Rescission Decision Is Subject To

Judicial Review Under The APA. .................. 21

B. The Rescission Decision Must Be Set

Aside. ............................................................... 26

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

TABLE OF AUTHORITIES

Page(s)

CASES

Arizona v. United States,

567 U.S. 387 (2012) .............................................. 28

Barahona-Gomez v. Reno,

236 F.3d 1115 (9th Cir. 2001) .............................. 25

Bonilla v. Lynch,

840 F.3d 575 (9th Cir. 2016) ................................ 22

Bowrin v. INS,

194 F.3d 483 (4th Cir. 1999) ................................ 25

Edison Elec. Inst. v. EPA,

996 F.2d 326 (D.C. Cir. 1993) .............................. 23

Encino Motorcars, LLC v. Navarro,

136 S. Ct. 2117 (2016) .......................................... 26

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) .......................................... 22

Fornalik v. Perryman,

223 F.3d 523 (7th Cir. 2000) ................................ 25

Heckler v. Chaney,

470 U.S. 821 (1985) ........................................ 21, 23

Hotel & Rest. Emps. Union, Local 25 v.

Smith,

846 F.2d 1499 (D.C. Cir. 1988) (en

banc) ..................................................................... 29

iii

TABLE OF AUTHORITIES—continued

Page(s)

I.C.C. v. Brotherhood of Locomotive

Engineers,

482 U.S. 270 (1987) ........................................ 23, 24

INS v. St. Cyr,

533 U.S. 289 ......................................................... 25

Jennings v. Rodriguez,

138 S. Ct. 830 (2018) ............................................ 25

Kenney v. Glickman,

96 F.3d 1118 (8th Cir. 1996) ................................ 23

Kucana v. Holder,

558 U.S. 233 (2010) .............................................. 26

Mach Mining, LLC v. EEOC,

135 S. Ct. 1645 (2015) .......................................... 26

Marbury v. Madison,

5 U.S. 137 (1803) .................................................. 22

Montana Air Chapter No. 29 v. Fed.

Labor Relations Auth.,

898 F.2d 753 (9th Cir. 1990) ................................ 23

Nat’l Wildlife Fed’n v. EPA,

980 F.2d 765 (D.C. Cir. 1992) .............................. 23

Reno v. American Arab AntiDiscrimination Committee,

525 U.S. 471 (1999) ........................................ 25, 30

TABLE OF AUTHORITIES—continued

Page(s)

Safe Air For Everyone v. EPA,

488 F.3d 1088 (9th Cir. 2007) .............................. 26

SEC v. Chenery Corp.,

318 U.S. 80 (1943) ................................................ 26

Sharkey v. Quarantillo,

541 F.3d 75 (2d Cir. 2008) ................................... 23

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) ................................ 25

Transitional Hosps. Corp. of La. v.

Shalala,

222 F.3d 1019 (D.C. Cir. 2000) ............................ 26

Yale-New Haven Hosp. v. Leavitt,

470 F.3d 71 (2d Cir. 2006) ................................... 26

STATUTES, RULES AND REGULATIONS

5 U.S.C. § 701 ............................................................ 21

6 U.S.C. § 202 ............................................................ 27

8 U.S.C. § 1103 .......................................................... 28

8 U.S.C. § 1252 .......................................................... 24

8 U.S.C. § 1324a ........................................................ 31

49 U.S.C. § 30301 note .............................................. 30

TABLE OF AUTHORITIES—continued

Page(s)

8 C.F.R. § 274a.12 ..................................................... 30

MISCELLANEOUS

44 Fed. Reg. 43,480 ................................................... 31

51 Fed. Reg. 39,385 ................................................... 31

Alan Nelson, Legalization and Family

Fairness: An Analysis 64 No. 41 Interpreter Releases 1191 (Oct. 21,

1987) ..................................................................... 29

American Immigration Council,

Executive Grants of Temporary

Immigration Relief, 1956-Present

(Oct. 2014), https://goo.gl/Q87gqn ....................... 29

Andorra Bruno et al., CRS, Analysis of

June 15, 2012 DHS Memorandum,

Exercising Prosecutorial Discretion

with Respect to Individuals Who

Came to the United States as

Children App’x (July 13, 2012),

https://goo.gl/deiGYz ............................................ 29

Ben Gitis & Jacqueline Varas, Am.

Action Forum, The Labor and

Output Declines From Removing All

Undocumented Immigrants (May 5,

2016), https://goo.gl/UAt3dJ ................................ 19

TABLE OF AUTHORITIES—continued

Page(s)

Bob Davis, The Thorny Economics of

Illegal Immigration, Wall St. J. (Feb.

9, 2016) ................................................................. 18

Buttonwood, Keep on Trucking, The

Economist (Feb. 11, 2012).................................... 10

Ctr. for Am. Progress, Results of Tom K.

Wong, United We Dream, National

Immigration Law Center, and Center

for American Progress National

Survey (2016), https://goo.gl/pe2i17 .................... 13

Dan Kosten, Nat’l Immigration Forum,

Immigrants as Economic

Contributors: Immigrant Tax

Contributions and Spending Power

(Sept. 6, 2018),

https://tinyurl.com/ycohpups ................................. 4

David Bier, Cato Inst., Ending DACA

Will Impose Billions in Employer

Compliance Costs (Sept. 1, 2017),

https://goo.gl/1FMidk ........................................... 17

David Bier, Cato Inst., Five Myths

About DACA (Sept. 7, 2017),

https://tinyurl.com/ydy2qx3q ............................... 10

vii

TABLE OF AUTHORITIES—continued

Page(s)

David Dyssegaard Kalick, Americas

Soc’y/Council of the Americas,

Bringing Vitality to Main Street:

How Immigrant Small Businesses

Help Local Economies Grow (Jan.

2015) https://tinyurl.com/lzuglue .......................... 7

David Kenny, Kenny: One Dreamer,

Weathering Two Storms, Houston

Chronicle (Dec. 3, 2017),

https://goo.gl/562Pme ........................................... 14

Deloitte, Waiter, Is That Inclusion in

My Soup? A New Recipe to Improve

Business Performance (2013),

https://tinyurl.com/jnnszk4 .................................... 6

Economics A-Z Terms Beginning with L,

The Economist,

https://goo.gl/BvRwKU......................................... 10

Francesc Ortega et al., The Economic

Effects of Providing Legal Status to

DREAMers, IZA Discussion Paper

No. 11281 (Jan. 2018),

https://tinyurl.com/y9kx52bz ......................... 11, 17

Giovanni Peri, The Effect of Immigrants

on U.S. Employment and

Productivity, Fed. Reserve Bank of

San Francisco Econ. Letter (Aug. 30,

2010), https://goo.gl/jK17fc ............................ 10, 15

viii

TABLE OF AUTHORITIES—continued

Page(s)

Gretchen Frazee, 4 Myths About How

Immigrants Affect the U.S. Economy,

PBS NewsHour (Nov. 2, 2018),

https://tinyurl.com/yxlwzkth ............................... 11

H.R. Rep. No. 111-157 (2009).................................... 28

Heather Boushey & Sarah Jane Glynn,

Ctr. for Am. Progress, There Are

Significant Business Costs to

Replacing Employees (Nov. 16,

2012), https://goo.gl/ZSmRLq .............................. 18

Ike Brannon & Logan Albright, The

Cato Inst., The Economic and Fiscal

Impact of Repealing DACA 1 (Jan.

18, 2017), https://goo.gl/jFXw4g .......................... 16

Interim Relief for Certain Foreign

Academic Students Adversely

Affected by Hurricane Katrina:

Frequently Asked Questions (FAQ)

(Nov. 25, 2005),

https://tinyurl.com/y68s86cy................................ 30

Jacqueline Varas, Am. Action Forum,

How Immigration Helps U.S.

Workers and the Economy (Mar. 20,

2017), https://goo.gl/ovHQEh; .............................. 11

TABLE OF AUTHORITIES—continued

Page(s)

Jacqueline Varas, Am. Action Forum,

The Fiscal Implications of the DACA

Program (Jan. 18, 2018), https://tinyurl.com/y36tlgh9 .............................................. 16

Jose Magaña-Salgado, Immigrant Legal

Res. Ctr., Money on the Table: The

Economic Cost of Ending DACA 4

(2016), https://goo.gl/3ZwGVJ ....................... 16, 17

Jose Magaña-Salgado & Tom K. Wong,

Immigration Legal Res. Cntr.,

Draining the Trust Funds (Oct.

2017), https://tinyurl.com/y6y65jvy ..................... 16

Julia Gelatt, Migration Pol’y Inst., All

Eyes Turn to Congress, Following

Trump Decision to Terminate DACA

Program (Sept. 2017),

https://tinyurl.com/yyv89mjb............................... 22

Katherine W. Phillips, How Diversity

Makes Us Smarter, Scientific

American (Oct. 1, 2014)

https://tinyurl.com/zo3asdr .................................... 6

Kenneth Megan, Bipartisan Policy Ctr.,

Immigration and the Labor Force

(Aug. 25, 2015),

https://goo.gl/8p3SP8 ........................................... 10

TABLE OF AUTHORITIES—continued

Page(s)

ManpowerGroup, 2018 Talent Shortage

Survey: Solving the Talent Shortage

(ManpowerGroup 2018),

https://tinyurl.com/y8vxvvf7 ................................ 12

Maria E. Enchautegui, Immigrant and

Native Workers Compete for Different

Low-Skilled Jobs, The Urban

Institute: Urban Wire (Oct. 13,

2015), https://tinyurl.com/ycayp6ky .................... 11

Martin Crutsinger, Thanks to

Consumers, the US Economy Is Still

Rising Steadily, USA Today (Aug.

29, 2019), https://tinyurl.com/y2ngbkch ............................................... 8

Matthew Denhart, George W. Bush

Institute, America’s Advantage: A

Handbook on Immigration and

Economic Growth (3d ed., Sept.

2017), https://tinyurl.com/y4ykokn9 ......... 4, 11, 12

Mem. from Donald Neufeld, USCIS,

Guidance Regarding Surviving

Spouses of Deceased U.S. Citizens

and Their Children (June 15, 2009),

https://goo.gl/SHaCVZ.......................................... 30

TABLE OF AUTHORITIES—continued

Page(s)

Mem. from Elaine C. Duke, “Exercising

Prosecutorial Discretion With

Respect to Individuals Who Came to

the United States as Children”

(Sept. 5, 2017) ...................................................... 20

Mem. from Gene McNary, Comm’r, INS,

to Reg’l Comm’rs, Family Fairness:

Guidelines for Voluntary Departure

under 8 CFR 242.5 for the Ineligible

Spouses and Children of Legalized

Aliens (Feb. 2, 1990), 67 No. 6

Interpreter Releases 153, app. I

(Feb. 5, 1990) ........................................................ 29

Mem. from Janet Napolitano to David

V. Aguilar (June 15, 2012),

https://tinyurl.com/zzxfoue .................................... 2

Mem. from Michael D. Croning, INS, for

Michael A. Perason, INS, VTVPA

Policy Memorandum #2—“T” and

“U” Nonimmigrant Visas (Aug. 30,

2001), https://tinyurl.com/yxpztydf .................... 30

Mem. from Paul Virtue, INS, Supplemental Guidance on Battered Alien

Self-Petitioning Process and Related

Issues (May 6, 1997), 74 No. 41 Interpreter Releases 962 ......................................... 30

xii

TABLE OF AUTHORITIES—continued

Page(s)

Michael A. Clemens, Does Kicking Out

Mexicans Create Jobs?, Politico Magazine (Feb. 15, 2017),

https://goo.gl/XwLj1x ........................................... 19

Nat’l Fed’n of Indep. Bus., Small

Business Jobs Report: Small

Business Owners’ Difficulty Finding

Qualified Workers Reaches Survey

High in August (Aug. 2019),

https://tinyurl.com/y4l4kn9w ........................ 12, 15

Nat’l Fedn. Of Indep. Bus., Small

Business Optimism Index (Aug.

2019), https://tinyurl.com/y72v3t69 .................... 12

New Am. Economy, Sizing Up the Gap

in our Supply of STEM Workers:

Data & Analysis (Mar. 29, 2017),

https://tinyurl.com/y6275mgb.............................. 13

New Am. Economy, Spotlight on the

DACA-Eligible Population (Feb. 8,

2018), https://tinyurl.com/y2fyhf9a ............. 5, 7, 15

Nicole Prchal Svajlenka et al., A New

Threat to DACA Could Cost States

Billions of Dollars, Ctr. for Am.

Progress (July 21, 2017),

https://goo.gl/7udtFu ............................................ 16

xiii

TABLE OF AUTHORITIES—continued

Page(s)

Nicole Prchal Svajlenka, What We Know

About DACA Recipients in the

United States, Ctr. for Am. Progress

(Sept. 5, 2019),

https://tinyurl.com/y4xc6sf4 .................. 8, 9, 13, 15

Nicole Prchal Svajlenka, What We Know

About DACA Recipients, By State,

Ctr. for Am. Progress (Sept. 12,

2019), https://tinyurl.com/yxttwcm9 ..................... 9

Nicole Prchal Svajlenka, Without

Action, More Dreamers Than Ever

Before Could See Their DACA Expire

in October, Ctr. for Am. Progress,

Aug. 15, 2019,

https://tinyurl.com/y38uvt4s.................................. 4

I Felt Like a Normal American Kid . . .

Then Everything Changed,

THINKPolicy Blog (Oct. 9, 2017),

https://goo.gl/oV9P7h ........................................... 14

My American Dream, Minus the Paperwork, THINKPolicy Blog (Oct. 3,

2017), https://goo.gl/876JDm ............................... 14

P’ship for a New Am. Econ., Open for

Business: How Immigrants Are

Driving Business Creation in the

United States 12 (Aug. 2012),

https://goo.gl/3mFkVz ............................................ 4

xiv

TABLE OF AUTHORITIES—continued

Page(s)

Paul Krugman, Opinion, Lumps of

Labor, N.Y. Times (Oct. 7, 2003),

https://goo.gl/GyYTG5 .......................................... 10

President’s Council of Advisors on Science and Technology, Report to the

President: Engage to Excel:

Producing One Million Additional

College Graduates with Degrees in

Science, Technology, Engineering,

and Mathematics (Feb. 2012),

https://goo.gl/v2YRVD .......................................... 13

President Dwight Eisenhower,

Statement Concerning the Entry Into

the United States of Adopted

Foreign-Born Orphans (Oct. 26,

1956), https://goo.gl/BkztnZ ................................. 29

Rachel Unruh & Amanda BergsonShilcock, Nat’l Skills Coalition,

Missing in Action (Feb. 2015),

https://goo.gl/gokfJW............................................ 12

Ryan Nunn, et al., A Dozen Facts about

Immigration, Brookings, Inst. (Oct.

2018), https://tinyurl.com/y5ra3r8l ..................... 15

TABLE OF AUTHORITIES—continued

Page(s)

Sara McElmurry, Ctr. for Am. Progress,

Proactive and Patient: Managing

Immigration and Demographic

Change in 2 Rural Nebraska

Communities, Nov. 14, 2018,

https://tinyurl.com/y4lu3etx .................................. 7

Sarah Bohn et al., Do E-Verify

Mandates Improve Labor Market

Outcomes of Low-Skilled Native and

Legal Immigrant Workers? (May

2014), https://goo.gl/7UihSE ................................ 18

Sarah Elizabeth Richards, How Fear of

Deportation Puts Stress on Families,

The Atlantic (Mar. 22, 2017),

https://goo.gl/qDgeRf ............................................ 17

Tiziana Rinaldi & Angilee Shah, Immigration Limbo Is a ‘Tug of Emotions.’

It’s Also a Mental Health Issue,

Mental Health Issue, PRI’s The

World (Aug. 22, 2017),

https://goo.gl/WLXMZ4; ....................................... 17

Tom K. Wong et al., Ctr. for Am.

Progress, DACA Recipients’

Economic and Educational Gains

Continue to Grow (Aug. 28, 2017),

https://tinyurl.com/y7dqgwd4 ................................ 5

xvi

TABLE OF AUTHORITIES—continued

Page(s)

Tom K. Wong, et al., Ctr. for Am. Progress, DACA Recipients’ Livelihoods,

Families, and Sense of Security Are

at Stake This November, (Sept. 19,

2019), https://tinyurl.com/y3c742re....... 6, 8, 13, 14

Tom K. Wong et al., United We Dream,

Ending DACA Would Have WideRanging Effects but Immigrant

Youth are Fired Up and Politically

Engaged (Aug. 23, 2018),

https://tinyurl.com/y49stg87 ................................ 17

Tony Romm, IBM CEO Ginni Rometty

Is in D.C. Urging Congress to Save

DACA (Sept. 19, 2017),

https://goo.gl/NQeJUc .......................................... 14

U.S. Chamber of Commerce,

Immigration Myths and Facts

(Apr. 14, 2016),

https://tinyurl.com/yay4xjm9............................... 11

U.S. Citizenship & Immigration Serv.,

Number of Form I-821D, Consideration of Deferred Action for Childhood

Arrivals by Fiscal Year, Quarter, Intake and Case Status Fiscal Year

2012-2019 (June 30, 2019), https://tinyurl.com/y5j36gyj ................................................. 2

xvii

TABLE OF AUTHORITIES—continued

Page(s)

U.S. Dep’t of Labor, Bureau of Labor

Statistics, Employment Projections,

https://tinyurl.com/y4lzn72u ............................... 15

U.S. Dep’t of Labor, Bureau of Labor

Statistics, Labor Force Statistics

from the Current Population Survey,

https://tinyurl.com/zyq5xlx (last

visited Oct. 2, 2019) ............................................. 11

U.S. Dep’t of Labor, Bureau of Labor

Statistics, Job Openings and Labor

Turnover Survey (Sept. 10, 2019)

https://tinyurl.com/y57pxqrb ......................... 11, 12

UndocuScholars Project, In the

Shadows of the Ivory Tower:

Undocumented Undergraduates and

the Liminal State of Immigration

Reform (2015),

https://tinyurl.com/y7svqsxr ................................ 14

World Health Org. & Int’l Labour Org.,

Mental Health And Work: Impact,

Issues and Good Practices (2000),

https://goo.gl/ecH1Ut ........................................... 17

INTEREST OF THE AMICI CURIAE1

Amici include 143 individual companies that collectively contribute trillions of dollars in annual revenue to the American economy and have millions of employees.

Some amici are business associations that together represent millions of companies that fuel the

American economy—including the National Association of Manufacturers, the National Retail Federation, the Chamber of Commerce of the United States

of America, the Retail Industry Leaders Association,

the American Hotel & Lodging Association, BSA|The

Software Alliance, the Information Technology Industry Council, TechNet, the National Association of

State Latino Chambers of Commerce, the Software &

Information Industry Association, the Semiconductor

Industry Association, and the HR Policy Association.

The list of the amici is set forth in Appendix A.

Many amici and their members employ individuals who participate in the Deferred Action for Childhood Arrivals (DACA) program—young people who

are now able to live and work in the country that has

been their home for most of their lives. In addition,

amici’s customers and end users are DACA recipients;

and amici’s businesses benefit from DACA recipients’

contributions to the overall economy through their tax

payments, spending, and investments. Accordingly,

No party or counsel for a party authored this brief in whole or

in part, and no one other than amici, their members, or their

counsel funded the preparation or submission of this brief. See

Sup. Ct. R. 37.6. Counsel for petitioners and respondents have

filed blanket consents to the filing of amicus briefs.

amici have a strong interest in DACA recipients’ continued ability to work and participate in our country’s

economy and in our society generally.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Since its inception, DACA has had an enormous

impact on the lives of over 825,000 young people who

“were brought to this country as children and know

only this country as home.”2 DACA enabled those

young individuals to participate fully for the first time

in all aspects of our society without the constant and

crippling fear of deportation.3 And, based on

longstanding federal regulations ratified by Congress,

the deferral of removal granted to DACA recipients

made them eligible to apply for work authorization,

thereby enabling them to obtain jobs commensurate

with their skills and education.

But the beneficial effects of DACA have not been

limited to those individuals. By expanding the opportunities available to DACA recipients, this program

has benefitted America’s companies, our Nation’s

economy, and all Americans. Indeed, employment of

DACA recipients expands work opportunities for everyone, because employment is not a zero-sum game.

DACA recipients are filling vacancies at companies

that otherwise would not be able to attract workers for

Mem. from Janet Napolitano to David V. Aguilar (June 15,

2012), https://tinyurl.com/zzxfoue; U.S. Citizenship & Immigration Serv., Number of Form I-821D, Consideration of Deferred

Action for Childhood Arrivals by Fiscal Year, Quarter, Intake

and Case Status Fiscal Year 2012-2019 (June 30, 2019),

https://tinyurl.com/y5j36gyj.

Mem. from Janet Napolitano, supra n.2.

open positions. They are creating businesses that employ other Americans. And their increased wages lead

to higher tax revenues and expansion of our national

GDP—producing new jobs and benefits for all Americans.

Eliminating DACA will inflict serious harm on

U.S. companies, all workers, and the American economy as a whole. Companies will lose valued employees. Workers will lose employers and co-workers. Our

national GDP will lose up to $460.3 billion, and tax

revenues will be reduced by approximately $90 billion,

over the next decade.

Those harms should not occur, however, because

the rescission of DACA must be set aside under the

Administrative Procedure Act (APA). The Department of Homeland Security (DHS) rescinded DACA

based entirely on its legal conclusion that DACA exceeds the agency’s authority. That legal determination is subject to judicial review. Courts consistently

review agencies’ broadly-applicable policies that rest

on such legal determinations.

And DHS’s legal determination is wrong. DACA

closely resembles deferred action programs adopted in

the past, and—given Congress’s express recognition of

this deferred action authority and the Executive

Branch’s substantial authority with respect to immigration matters—it does not exceed the Department’s

statutory authority.

ARGUMENT

RESCINDING DACA WILL HARM U.S. COMPANIES AND THE ENTIRE ECONOMY.

Immigrants have long been essential to our Nation’s growth and prosperity. They have contributed

to important breakthroughs in science and innovation4; they have created businesses—including many

Fortune 500 companies—that generate over $775 billion in sales and provide numerous jobs to others5; and

they pay over $300 billion in yearly state, local, and

federal taxes.6

Even though DACA is relatively new, DACA recipients—often referred to as “Dreamers”—have contributed significantly to America’s prosperity.

DACA enabled more than 825,000 individuals7 to

come out of the shadows, participate in the economy,

and contribute to U.S. companies and the economy,

which benefits us all. Rescinding DACA will harm not

only individual recipients and their families, friends,

and co-workers, but also the many U.S. businesses

4 Matthew Denhart, George W. Bush Institute, America’s Advantage: A Handbook on Immigration and Economic Growth 70,

76 (3d ed., Sept. 2017), https://tinyurl.com/y4ykokn9.

P’ship for a New Am. Econ., Open for Business: How Immigrants Are Driving Business Creation in the United States 12, 14

(Aug. 2012), https://goo.gl/3mFkVz; Denhart, supra n.4, at 84100.

6 Dan Kosten, Nat’l Immigration Forum, Immigrants as Economic Contributors: Immigrant Tax Contributions and Spending

Power (Sept. 6, 2018), https://tinyurl.com/ycohpups.

The number of DACA recipients has declined from over

800,000 in 2017 to approximately 661,000 today because eligible

individuals who never had DACA are no longer able to apply for

it, and many of those who did have it have either adjusted to

permanent resident status or another status or did not renew or

otherwise lost their DACA status. Nicole Prchal Svajlenka, Without Action, More Dreamers Than Ever Before Could See Their

DACA Expire in October, Ctr. for Am. Progress, Aug. 15, 2019,

https://tinyurl.com/y38uvt4s.

that count on them to help fuel continued innovation

and economic growth.

A. Dreamers Contribute To The Success Of

U.S. Companies And The Economy As A

Whole.

Dreamers have become essential contributors to

American companies and the American economy.

Prior to DACA, these young people—who have obtained at least a high school degree and, in many

cases, have finished college and graduate school—

would have been unable to obtain work authorization,

and therefore unable to put their education and skills

to productive use.

DACA changed that and, as a result, over 90 percent of Dreamers are employed in virtually every sector of the economy—from construction workers to

nurses to cooks to computer scientists.8 Their employment supports the growth of U.S. companies and the

economy in a number of ways.

1. Dreamers Are Valued Employees.

First, Dreamers contribute directly to the success

of U.S. companies, including many amici. At least 72

percent of the top 25 Fortune 500 companies employ

DACA recipients—including IBM, Walmart, Apple,

General Motors, Amazon, JPMorgan Chase, Home

Depot, and Wells Fargo, among others—as do many

others, including Uber and Lyft.9 Those companies

New Am. Economy, Spotlight on the DACA-Eligible Population (Feb. 8, 2018), https://tinyurl.com/y2fyhf9a.

Tom K. Wong et al., Ctr. for Am. Progress, DACA Recipients’

Economic and Educational Gains Continue to Grow (Aug. 28,

2017), https://tinyurl.com/y7dqgwd4.

represent every major sector of the U.S. economy and

generate almost $3 trillion in annual revenue.

Dreamers’ contributions are not limited to their

work product alone. Immigrants like Dreamers bring

diverse backgrounds and experiences to their workplaces, which bolster their colleagues’ creativity and

innovation.10 People with different backgrounds offer

different perspectives when confronted with a problem, and their different opinions and perspectives enable colleagues to anticipate alternative possibilities

and work harder to evaluate those possibilities.11

2. Dreamers Are Business Owners.

Second, many Dreamers are entrepreneurs, who

have created companies themselves. Six percent of

Dreamers (and nearly nine percent of Dreamers 25

years and older) started their own businesses after receiving DACA.12 Those businesses create jobs for

other U.S. residents: Each DACA business owner with

full-time employees employs on average 4.5 other

workers.13 That is nearly 86,000 additional jobs that

otherwise would not exist.

See Katherine W. Phillips, How Diversity Makes Us Smarter,

Scientific American, Oct. 1, 2014, https://tinyurl.com/y4vrn8q2.

11 Ibid.; see also Deloitte, Waiter, Is That Inclusion in My Soup?

A New Recipe to Improve Business Performance 8 (2013),

https://tinyurl.com/jnnszk4.

12 Tom K. Wong, et al., Ctr. for Am. Progress, DACA Recipients’

Livelihoods, Families, and Sense of Security Are at Stake This

November (Sept. 19, 2019), https://tinyurl.com/y3c742re; see also

New Am. Economy, Spotlight, supra n.8 (4.5 percent of DACAeligible individuals are entrepreneurs).

13 Wong, Livelihoods, supra n.12.

The businesses started by Dreamers also generate

revenue: In 2015, DACA-eligible entrepreneurs had a

total business income of $658.7 million.14 Those funds

are spent on wages, or goods and services from other

companies, or reinvested, producing more overall

growth.

This entrepreneurial activity is particularly focused on the local, small business level. Immigrants

make up an outsized proportion of Main Street business owners.15 Those businesses attract others in the

community, which often helps to revitalize declining

neighborhoods and reverse declining population

trends.16 Immigrant-owned businesses have revived

communities from Philadelphia to Lexington, Nebraska to Minneapolis-St. Paul to Nashville.17

3. Dreamers Are Consumers.

Third, Dreamers also consume the goods produced and services provided by U.S. companies—contributing to the growth of those companies and the

economy as a whole.

Not surprisingly, receiving a grant of deferred action under DACA—and the resulting eligibility to ap-

14 New Am. Economy, Spotlight, supra n. 8.

15 David Dyssegaard Kalick, Americas Soc’y/Council of the Amer-

icas, Bringing Vitality to Main Street: How Immigrant Small

Businesses Help Local Economies Grow at 2, 5, 8-9, Jan. 2015,

https://tinyurl.com/lzuglue.

16 Id. at 12.

17 Id. at 14-34; Sara McElmurry, Ctr. for Am. Progress, Proactive

and Patient: Managing Immigration and Demographic Change

in 2 Rural Nebraska Communities, Nov. 14, 2018, https://tinyurl.com/y4lu3etx.

ply for work authorization—increases Dreamers’ incomes. Fifty-eight percent of recently-surveyed

Dreamers were able to obtain better-paying jobs; 53

percent were able to move to a job that “better fits

[their] education and training.”18 That, in turn, resulted in average wage increases for Dreamers of 86

percent—128 percent for those 25 years and older—

after receiving DACA.19 In total, Dreamers and their

households exercise $24.1 billion in spending power

(income remaining after paying taxes) each year.20

This increased purchasing power—combined with

the increased stability and security resulting from receiving a grant of deferred action—has enabled

Dreamers to make purchases and investments that

grow our Nation’s economy.

Consumer spending accounts for nearly 70 percent of all economic growth.21 Sixty percent of Dreamers reported buying their first car after receiving

DACA; fourteen percent reported purchasing their

first home.22 Dreamers are responsible for $613.8 million in annual mortgage payments, on top of $2.3 billion in rental payments to landlords.23

18 Wong, Livelihoods, supra n.12.

19 Id.

20 Nicole Prchal Svajlenka, Ctr. for Am. Progress, What We Know

About DACA Recipients in the United States (Sept. 5, 2019),

https://tinyurl.com/y4xc6sf4.

21 Martin Crutsinger, Thanks to Consumers, the US Economy Is

Still Rising Steadily, USA Today (Aug. 29, 2019), https://tinyurl.com/y2ngbkch.

22 Wong, Livelihoods, supra n.12.

23 Svajlenka, supra n.20.

Dreamers’ higher wages also result in increased

fiscal contributions in the form of taxes. Dreamers and

their households pay $5.7 billion in federal taxes and

$3.1 billion in state and local taxes annually.24 In 41

states and the District of Columbia, the state and local

tax contributions of Dreamers’ households total more

than $1 million annually; in 35 states, their contributions are more than $10 million; and in 12 states, they

are more than $50 million.25 These taxes support

American communities and the people and companies

in those communities—funding local schools, infrastructure investments, and services and programs

like police, fire protection, and economic development.

DACA recipients’ payroll taxes also support Social Security and Medicare.

Through these myriad contributions, Dreamers

post-DACA have supported the growth and success of

the U.S. economy.

B. Dreamers Help Grow The Economy By

Filling Jobs That Otherwise Would Remain Vacant Due To An Insufficient Supply Of Workers.

These benefits to the U.S. economy do not come at

the expense of U.S.-born workers. Studies have consistently found that immigrants do not displace U.S.born workers. They instead help grow the economy

and create more opportunities for U.S.-born workers

by filling positions that otherwise would remain vacant because of a shortage of qualified workers.

24 Svajlenka, supra n.20.

25 Nicole Prchal Svajlenka, Ctr. for Am. Progress, What We Know

About DACA Recipients, By State (Sept. 12, 2019), https://tinyurl.com/yxttwcm9.

1. DACA Recipients’ Participation In The

Workforce Expands The Number Of Jobs

Available To Everyone.

“[O]ne of the best-known fallacies in economics” is

the “lump of labor fallacy.”26 Economists from across

the policy and political spectrum have discredited the

notion that “there is a fixed amount of work to be

done—a lump of labour”—such that an increase in the

number of workers reduces the number of available

jobs.27 Rather, the indisputable reality is that jobs beget more jobs. “When people work for a living, they

earn money. They spend that money on goods and services that are produced by other people.”28 That

greater demand for goods and services in turn creates

more jobs.

That has long been America’s experience. “From

1970 to 2017, the U.S. labor force doubled. Rather

than ending up with a 50 percent unemployment rate,

U.S. employment doubled.”29 Studies demonstrate

A-Z Terms Beginning with L, The Economist,

https://goo.gl/BvRwKU.

26 Economics

27 Id.; see also Paul Krugman, Opinion, Lumps of Labor, N.Y.

Times (Oct. 7, 2003), https://goo.gl/GyYTG5.

28 Buttonwood, Keep on Trucking, The Economist (Feb. 11, 2012),

https://goo.gl/x8vqaL; see also Kenneth Megan, Bipartisan Policy

Ctr., Immigration and the Labor Force (Aug. 25, 2015),

https://goo.gl/8p3SP8 (“[A] breadth of research indicates that immigration can be complementary to native born employment, as

it spurs demand for goods and services”); Giovanni Peri, The Effect of Immigrants on U.S. Employment and Productivity, Fed.

Reserve Bank of San Francisco Econ. Letter (Aug. 30, 2010),

https://goo.gl/jK17fc.

29 David Bier, Cato Inst., Five Myths About DACA (Sept. 7, 2017),

https://tinyurl.com/ydy2qx3q.

that increased immigration levels into the U.S. have

had largely positive impacts on the employment levels

and incomes of U.S.-born workers.30

These findings hold true today. The unemployment rate has more than halved since 2012, when

DACA was first implemented.31 The number of total

job openings has increased.32 And studies have found

that DACA has not had any significant effect on the

wages of U.S.-born workers.33

2. Dreamers Fill Critical Labor Shortages.

Studies repeatedly show that immigrants complement, rather than compete with, U.S.-born workers in

the workforce.34 The same holds true for Dreamers,

30 See Jacqueline Varas, Am. Action Forum, How Immigration

Helps U.S. Workers and the Economy (Mar. 20, 2017),

https://goo.gl/ovHQEh; U.S. Chamber of Commerce, Immigration

Myths and Facts (Apr. 14, 2016), https://tinyurl.com/yay4xjm9.

31 U.S. Dep’t of Labor, Bureau of Labor Statistics, Labor Force

Statistics from the Current Population Survey, https://tinyurl.com/zyq5xlx (last visited Oct. 2, 2019).

32 U.S. Dep’t of Labor, Bureau of Labor Statistics, Job Openings

and Labor Turnover Survey (Sept. 10, 2019) https://tinyurl.com/y57pxqrb.

33 Francesc Ortega et al., The Economic Effects of Providing Le-

gal Status to DREAMers 18, IZA Discussion Paper No. 11281

(Jan. 2018), https://tinyurl.com/y9kx52bz.

34 Denhart, supra n.4, at 118; Gretchen Frazee, 4 Myths About

How Immigrants Affect the U.S. Economy, PBS NewsHour (Nov.

2, 2018), https://tinyurl.com/yxlwzkth; Maria E. Enchautegui,

Immigrant and Native Workers Compete for Different LowSkilled Jobs, The Urban Institute: Urban Wire (Oct. 13, 2015),

https://tinyurl.com/ycayp6ky; U.S. Chamber of Commerce, supra

n.30.

who are helping to fill holes in the workforce that are

not being filled by U.S.-born workers.

U.S. job creation has been outpacing supply. As a

result, the U.S. unemployment rate is currently quite

low, and the number of job openings is high. In June

2019, the U.S. had 7.4 million job openings, but only 6

million people looking for work.35 Sixty-four percent of

small business owners reported hiring or trying to

hire workers, but of those, 89 percent reported having

“few or no ‘qualified’ applicants.”36 This gap in demand and supply has led commentators to state that

“[i]f the widely discussed slowdown occurs, a significant contributor will be the unavailability of labor.”37

Moreover, that gap is likely to be exacerbated as the

“baby boom” generation retires.38

U.S. employers have reported particular difficulty

filling skilled labor positions, such as teachers, accounting and finance staff, nurses, and engineers.39

35 U.S. Dep’t of Labor, supra n.32..

36 Nat’l Fed’n of Indep. Bus., Small Business Optimism Index

(Aug. 2019), https://tinyurl.com/y72v3t69.

37 Nat’l Fed’n of Indep. Bus., supra n.36.

38 Denhart, supra n.4, at 60.

39 Nat’l Fed’n of Indep. Bus., Small Business Jobs Report: Small

Business Owners’ Difficulty Finding Qualified Workers Reaches

Survey High in August (Aug. 2019), https://tinyurl.com/y4l4kn9w

(Thirty-three percent of small business owners have job openings

for skilled workers); See ManpowerGroup, 2018 Talent Shortage

Survey: Solving the Talent Shortage (ManpowerGroup 2018),

https://tinyurl.com/y8vxvvf7; see also Rachel Unruh & Amanda

Bergson-Shilcock, Nat’l Skills Coalition, Missing in Action 3-4

(Feb. 2015), https://goo.gl/gokfJW.

And the U.S. faces a shortfall of millions of professionals in the science, technology, engineering, and mathematics (STEM) fields in the next few years.40

Dreamers help to fill these unfilled positions.

Dreamers have at least a high school degree or equivalent—and 46 percent have obtained a bachelor’s degree or higher.41 Twenty percent have received professional licenses since receiving DACA.42 In other

words, they are qualified for the skilled labor jobs for

which there is a severe shortage of workers.

Reality reflects Dreamers’ paper qualifications. A

significant number of Dreamers are employed in the

education and health services industries, as well as in

management and business occupations.43 Many others work in technology, science, and finance.44

Amici’s experiences are illustrative. For example,

IBM has at least 31 Dreamers within the company

who work in areas such as software development and

40 New Am. Economy, Sizing Up the Gap in our Supply of STEM

Workers: Data & Analysis (Mar. 29, 2017), https://tinyurl.com/y6275mgb; see also President’s Council of Advisors on

Science and Technology, Report to the President: Engage to Excel:

Producing One Million Additional College Graduates with Degrees in Science, Technology, Engineering, and Mathematics 1

(Feb. 2012), https://goo.gl/v2YRVD.

41 Wong, Livelihoods, supra n.12.

42 Wong, Livelihoods, supra n.12.

43 Svajlenka, supra n.20; Ctr. for Am. Progress, Results of Tom

K. Wong, United We Dream, National Immigration Law Center,

and Center for American Progress National Survey 4 (2016),

https://goo.gl/pe2i17.

44 Ctr. for Am. Progress, Results, supra n.43.

client support.45 One IBM Dreamer provided critical

remote technical support to ensure continuity of

IBM’s Cloud services when Hurricane Harvey flooded

Houston.46 Lyft employs at least one Dreamer as a

software engineer, who serves as one of the tech leads

of the team driving critical data projects.47

And Dreamers’ contributions to these fields will

likely only increase. By making it possible for Dreamers to apply for work authorization, DACA has made

pursuing higher education both possible and worthwhile for Dreamers. Forty percent are currently in

school—almost all of whom are working toward a

bachelor’s or post-graduate degree.48 And a substantial portion of those individuals are pursuing studies

in STEM fields—acquiring the knowledge and skills

that U.S. companies so desperately need to continue

to innovate and stay competitive.49

Dreamers in occupations that do not require advanced degrees are similarly filling under-met labor

needs. Sixty-eight percent of small business owners

45 See Tony Romm, IBM CEO Ginni Rometty Is in D.C. Urging

Congress to Save DACA, Recode.net (Sept. 19, 2017),

https://goo.gl/NQeJUc; My American Dream, Minus the Paperwork, THINKPolicy Blog (Oct. 3, 2017), https://goo.gl/876JDm; I

Felt Like a Normal American Kid . . . Then Everything Changed,

THINKPolicy Blog (Oct. 9, 2017), https://goo.gl/oV9P7h.

46 See

David Kenny, Kenny: One Dreamer, Weathering Two

Storms, Houston Chronicle (Dec. 3, 2017), https://goo.gl/562Pme.

47 See Decl. of Emily Nishi ¶ 4, JA1099, Doc. 54, Batalla Vidal v.

Nielsen, No. 18-485 (2d Cir. Mar. 7, 2018).

48 Wong, Livelihoods, supra n.12.

49 The

UndocuScholars Project, In the Shadows of the Ivory

Tower: Undocumented Undergraduates and the Liminal State of

Immigration Reform 8 (2015), https://tinyurl.com/y7svqsxr.

reported having “few or no qualified applicants” for

construction jobs.50 Construction, meanwhile, is the

second largest industry employing DACA-eligible individuals.51 Additionally, there are significant labor

shortages in food preparation and serving-related occupations and personal care and services occupations.52 But “[a]mong less-educated workers, those

born in the United States tend to have jobs in manufacturing or mining, while immigrants tend to have

jobs in personal services and agriculture.”53 And a

substantial proportion of Dreamers have jobs in food

preparation.54

In sum, DACA has enabled thousands of young

people who grew up in the United States to obtain jobs

that fill critical gaps in the economy and that produce

benefits for United States’ workers, companies, and

economy.

C. Rescinding DACA Will Inflict Enormous

Harm On Individuals, Companies, And

The Economy.

All of the above benefits—and more—will be lost

if DACA’s rescission is permitted to stand. Over the

next decade, our country’s GDP would lose between

$215 and $460.3 billion; and federal tax revenue will

50 Nat’l Fed’n of Indep. Bus., supra n.39.

51 New Am. Economy, Spotlight, supra n.8; cf. Ryan Nunn, et al.,

A Dozen Facts about Immigration (Oct. 2018), https://tinyurl.com/y5ra3r8l.

52 U.S. Dep’t of Labor, Bureau of Labor Statistics, Employment

Projections, https://tinyurl.com/y4lzn72u.

53 Peri, supra n.28.

54 Svajlenka, supra n.20.

drop by approximately $60 to 90 billion.55 Texas alone

would lose $6.3 billion in GDP; California would experience a $11.6 billion decline in GDP.56 And Social Security and Medicare contributions would lose out on

$40.9 billion over 10 years.57

This economic contraction would result directly

from Dreamers’ loss of work authorization. Under federal law, employers are prohibited from employing individuals who do not have a valid work authorization

document. Accordingly, all of the hundreds of thousands of employed Dreamers would lose their jobs. In

addition to the obvious harm to Dreamers themselves,

the loss of so many workers will have severe repercussions for U.S. companies and workers.

Already, the possibility that DACA’s rescission

might go into effect is impacting Dreamers and, by extension, the companies for which they work. Dream-

55 See Decl. of Ike Brannon & Logan Albright ¶ 11, Doc. 45-3 at

359, Regents of the Univ. of Calif. v. U.S. Dep’t of Homeland Sec’y,

No. 18-18056 (9th Cir. Mar. 13, 2018); Nicole Prchal Svajlenka

et al., Ctr. for Am. Progress, A New Threat to DACA Could Cost

States Billions of Dollars (July 21, 2017), https://goo.gl/7udtFu;

Jose Magaña-Salgado, Immigrant Legal Res. Ctr., Money on the

Table: The Economic Cost of Ending DACA 4, 6-7 (2016),

https://goo.gl/3ZwGVJ; see also Ike Brannon & Logan Albright,

The Cato Inst., The Economic and Fiscal Impact of Repealing

DACA 1 (Jan. 18, 2017), https://goo.gl/jFXw4g; Jacqueline Varas,

Am. Action Forum, The Fiscal Implications of the DACA Program (Jan. 18, 2018), https://tinyurl.com/y36tlgh9.

56 Svajlenka et al., supra n.55.

57 Jose

Magaña-Salgado & Tom K. Wong, Immigration Legal

Res. Cntr., Draining the Trust Funds (Oct. 2017), https://tinyurl.com/y6y65jvy.

ers now live with the constant threat of job loss, withdrawal from society, and forced removal from the only

country they have ever known.

Seventy-six percent of Dreamers reported living

with the daily worry of being separated from their

children.58 The fear for the future that is now a daily

part of life for Dreamers and their families affects

both physical and mental health.59 That, in turn, negatively affects employee productivity and performance, illness and absenteeism, accidents, and turnover.60

If this Court permits the DACA rescission to take

effect and thereby end Dreamers’ work authorization,

companies will face an estimated $6.3 billion in costs

to replace Dreamers—if they can even find new employees to fill the empty positions.61 Companies will

forfeit the funds invested in training Dreamers, and

will incur costs recruiting and training new employees, who will be less experienced and therefore less

58 Tom K. Wong et al., United We Dream, Ending DACA Would

Have Wide-Ranging Effects but Immigrant Youth are Fired Up

and Politically Engaged (Aus. 23, 2018), https://tinyurl.com/y49stg87.

59 See Tiziana Rinaldi & Angilee Shah, Immigration Limbo Is a

‘Tug of Emotions.’ It’s Also a Mental Health Issue, PRI’s The

World (Aug. 22, 2017), https://goo.gl/WLXMZ4; Sarah Elizabeth

Richards, How Fear of Deportation Puts Stress on Families, The

Atlantic (Mar. 22, 2017), https://goo.gl/qDgeRf.

60 See World Health Org. & Int’l Labour Org., Mental Health And

Work: Impact, Issues and Good Practices

https://goo.gl/ecH1Ut; Ortega, supra n.33, at 9-10.

(2000),

61 See David Bier, Ending DACA Will Impose Billions in Em-

ployer Compliance Costs, Cato Institute (Sept. 1, 2017),

https://goo.gl/1FMidk; see also Magaña-Salgado, supra n.55, at 4.

productive.62 These costs are particularly burdensome

for small businesses.

But numbers alone do not come close to capturing

Dreamers’ contributions and the tremendous harm

that will result from their loss. People are the heart of

every business; and every company’s goal is to create

teams that work seamlessly together—teams in which

colleagues support one another both within and outside the workplace. Ripping Dreamers out of their jobs

hurts not only Dreamers, but other employees who

lose friends and colleagues, and companies that lose

trusted members of their teams.

History confirms that forcing Dreamers out of the

workforce will reduce job growth and harm the U.S.

economy. After Arizona passed the Legal Arizona

Workers Act (LAWA) in 2007, which targeted the use

of unauthorized workers, economic growth fell, reducing job opportunities. The State’s total employment

was 2.5 percent less than what it would have been

without the law, and its GDP was reduced by an average of 2 percent a year between 2008 and 2015.63

Similarly, in 1964, the U.S. expelled Mexican

braceros, who were previously permitted to work temporarily in the U.S., mostly on farms. One study revealed that excluding the Mexican braceros “did not

62 Heather Boushey & Sarah Jane Glynn, Ctr. for Am. Progress,

There Are Significant Business Costs to Replacing Employees

(Nov. 16, 2012), https://goo.gl/ZSmRLq.

63 See Bob Davis, The Thorny Economics of Illegal Immigration,

Wall St. J. (Feb. 9, 2016), https://goo.gl/j4dd7J; see also Sarah

Bohn et al., Do E-Verify Mandates Improve Labor Market Outcomes of Low-Skilled Native and Legal Immigrant Workers? 1718, 21, 24-25 (May 2014), https://goo.gl/7UihSE (finding that employment rates of U.S.-born men dropped post-LAWA).

affect the wages or employment of U.S. farmworkers.”64 Instead, farms responded by eliminating the

jobs—often by moving production abroad or going out

of business.65

Removing Dreamers from the workforce is likely

to have the very same negative effect on U.S. employment. As documented above, companies are already

struggling to fill job openings; additional labor shortages will further hamper productivity and growth.

The resulting drag on the economy will be exacerbated

as Dreamers are forced to shutter businesses—putting the jobs of nearly 86,000 other U.S. workers at

risk—and companies lose the income from Dreamers

and Dreamers’ employees that has helped drive demand and production of goods and services provided

by U.S.-born workers.66

More fundamentally, just as DACA sent a powerful message of inclusion, its rescission tells the immigrants who have been integral to the growth and development of our society and economy for decades that

they are no longer welcome here. As a result, DACA’s

64 Michael A. Clemens, Does Kicking Out Mexicans Create Jobs?,

Politico Magazine (Feb. 15, 2017), https://goo.gl/XwLj1x.

65 Id.

66 Cf. Ben Gitis & Jacqueline Varas, Am. Action Forum, The La-

bor and Output Declines From Removing All Undocumented Immigrants (May 5, 2016), https://goo.gl/UAt3dJ (concluding that

removing undocumented immigrants from the workforce would

cause private sector employment to decline by 4 to 6.8 million

workers, would reduce real private sector output by $381.5 to

$623.2 billion, and would have further negative economic impacts through the loss of consumption, investments, and entrepreneurship).

rescission will reduce the future ability of U.S. companies to attract individuals from around the world to

support America’s continued economic growth and

prosperity.

II. THE DACA RECISSION IS INVALID.

DHS’s decision to rescind DACA did not rest on a

change in immigration enforcement priorities, or a reassessment of the policy’s costs and benefits, or the financial cost to the federal government of administering DACA. Rather, as the Ninth Circuit and the District Courts for the District of Columbia and Eastern

District of New York correctly recognized,67 DHS

rested its decision on the legal conclusion that DACA

“was effectuated * * * without proper statutory authority” and therefore “was an unconstitutional exercise of authority by the Executive Branch.”68

Because of the across-the-board nature of the rescission determination and the particular justification

given by DHS, that decision is subject to judicial review. And because of the Executive Branch’s broad authority with respect to the relevant immigration matters, the long history of administrative grants of deferred action and work authorization, and Congress’s

67 18-587 Pet. Supp. Br. App. 35a-43a; 18-588 Pet. App. 39a-42a,

97a; 18-589 Pet. App. 26a-27a, 94a.

68 Mem. from Elaine C. Duke, Acting Secretary, Dep’t of Home-

land Security, on Rescission of the June 15, 2012 Memorandum

Entitled “Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children” (Sept. 5,

2017).

express recognition of that authority, the agency’s rescission decision must be vacated.69

A. The Rescission Decision Is Subject To Judicial Review Under The APA.

The rescission of DACA—like all agency action—

is subject to review under the APA unless it falls

within one of two narrow exceptions: “(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a).

Pointing to this Court’s decision in Heckler v.

Chaney, 470 U.S. 821 (1985), the government argues

that its rescission of DACA is a “decision not to prosecute or enforce” that is “generally committed to an

agency’s absolute discretion” and “unsuitab[le] for judicial review.” U.S. Br. at 18 (quoting Chaney, 470

U.S. at 831).

Chaney stated that an agency’s decision not to enforce the law is “generally” unreviewable, but carefully refrained from holding that all refusals to enforce are unreviewable. And the Court expressly declined to hold unreviewable a refusal to enforce based

on the belief that the agency lacked jurisdiction, observing that such decisions might not be “committed

to agency discretion.” 470 U.S. at 833 n.4.

Judicial review is available here, because three

aspects of the agency decision combine to render the

general Chaney rule inapplicable.

69 For

the reasons explained by Judge Bates (see 18-588 Pet.

App. 103a-108a), the June 2018 memorandum issued by Secretary of Homeland Security Nielsen did not provide a justification

for the rescission decision other than that set forth in the initial

rescission memorandum—that the DACA program is unlawful

because it exceeds the Department’s authority.

First, the decision to rescind DACA is a broad policy determination, not an individualized exercise of

enforcement discretion. And that policy determination directly affects the lives of close to two million

people—current DACA recipients and individuals

who would be entitled to apply for DACA status.70 It

is therefore fundamentally different from the archetypal decision not to prosecute an individual or not to

enforce a statute with respect to a particular set of

facts.

Second, the rescission decision rested on a purely

legal determination. There accordingly is no risk that

judicial review would require assessment of the policy

considerations or fact-based exercises of discretion

that frequently underlie such decisions.

Courts are fully qualified to review an agency’s interpretation of a statute or the Constitution. See, e.g,

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1629-30

(2018). Indeed, “[i]t is emphatically the province and

duty of the judicial department to say what the law

is.” Marbury v. Madison, 5 U.S. 137, 177 (1803).

A long line of lower court decisions apply this principle, holding that agency actions that are generally

unreviewable—if based on the agency’s evaluation of

factual and policy factors—nonetheless are reviewable when based on a legal interpretation, including a

legal determination regarding the agency’s jurisdiction or authority.71

70 See Julia Gelatt, Migration Pol’y Inst., All Eyes Turn to Congress, Following Trump Decision to Terminate DACA Program

(Sept. 2017), https://tinyurl.com/yyv89mjb.

71 See, e.g., Bonilla v. Lynch, 840 F.3d 575, 587 (9th Cir. 2016)

(holding reviewable BIA’s decision not to exercise its sua sponte

The government is wrong in asserting (U.S. Br.

23-25) that I.C.C. v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987), supports its contention

that the DACA rescission is not reviewable. That case

involved a decision not to reconsider a prior decision

interpreting a statute. The legal question resolved in

the initial determination “could have been brought

[before the court] by appeal from the original order.”

Id. at 279. In that very different context, the fact that

the Commission based its refusal to reconsider the unauthority to open the petitioner’s motion to reopen his order of

removal where the BIA did not deny the motion “as an exercise

of discretion,” but rather based on the “conclu[sion] that it lacked

the authority to reopen”); Montana Air Chapter No. 29 v. Fed.

Labor Relations Auth., 898 F.2d 753, 756 (9th Cir. 1990) (holding

that Chaney does not apply to decisions “based on a belief that

the agency lacks jurisdiction” or “an agency’s statutory interpretations made in the course of nonenforcement decisions”);

Sharkey v. Quarantillo, 541 F.3d 75, 85, 91 (2d Cir. 2008) (holding reviewable USCIS’s rescission of plaintiffs’ lawful permanent

resident (LPR) status where decision was based on agency’s

“nondiscretionary decision[]” that plaintiff did not have LPR status within meaning of rescission statute and regulation); Edison

Elec. Inst. v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993) (“[I]nterpretation [of] the substantive requirements of the law * * * is not

the type of discretionary judgment concerning the allocation of

enforcement resources that [Chaney] shields from review.”); Nat’l

Wildlife Fed’n v. EPA, 980 F.2d 765, 773 (D.C. Cir. 1992) (holding

reviewable EPA’s nonenforcement decision where plaintiff challenged agency’s “statutory interpretation embodied in [the regulation], * * * and does not contest a particular enforcement decision”); see also Chaney, 470 U.S. at 833 n.4 (suggesting exception

would not apply if case involved “a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction”); Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996)

(interpreting Chaney as applying “to individual, case-by-case determinations of when to enforce existing regulations rather than

permanent policies or standards”).

derlying order on a legal interpretation did not provide a cogent reason for making the refusal to reconsider reviewable. Ibid.

Judicial review of agency decisions based entirely

on legal determinations also serves the important

purpose of promoting accountability. When an agency

rests a broad non-enforcement decision on policybased discretion, citizens who support or oppose the

decision know that the agency bears responsibility for

the determination. That makes clear that any efforts

to either overturn or support the decision should be

directed to agency decisionmakers.

Allowing an agency to rest its decision on purely

legal grounds and yet avoid judicial review has the opposite effect: insulating the agency decisionmaker

from accountability—and responsibility. Even if the

agency’s legal justification is patently incorrect, the

agency would be able to shift responsibility to Congress by asserting a lack of legal authority. And citizens who oppose the decision would blame Congress

for failing to act rather than the agency decisionmakers.

Third, a statute relating to judicial review in the

immigration context provides additional support for

this conclusion.

That provision, 8 U.S.C. § 1252(g), states that,

subject to certain exceptions, “no court shall have jurisdiction to hear any cause or claim by or on behalf of

any alien arising from the decision or action by the

Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”

The government contended below that Section

1252(g) precluded judicial review here—but it has

abandoned that argument. U.S. Br. 20. In fact, the

provision bolsters the argument in favor of judicial review.

This Court explained in Reno v. American Arab

Anti-Discrimination Committee, 525 U.S. 471 (1999)

(AAADC), that Section 1252(g) “applies only to three

discrete actions that the Attorney General may take:

her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Id. at 482;

see also id. at 485 (stating that § 1252(g) was “designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations” (emphasis added)); Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) (plurality op.).

Section 1252(g) thus reflects the distinction between fact-specific exercises of discretion in the context of an individual proceeding and other types of decisions, as this Court and the lower courts have recognized.72 Congress focused specifically on enforcementrelated exercises of discretion in the immigration context and specifically did not exclude from judicial review broad policy pronouncements based entirely on

72 See, e.g., INS v. St. Cyr, 533 U.S. 289, 293 & 311 n.34 (2001)

(§ 1252(g) did not apply to challenge to “Attorney General[’s] interpret[ation]” of statutes); Texas v. United States, 809 F.3d 134,

165 (5th Cir. 2015) (§ 1252(g) did not apply to challenge to

DAPA); Barahona-Gomez v. Reno, 236 F.3d 1115, 1118-19 (9th

Cir. 2001) (§ 1252(g) did not apply to challenge to directives issued by the BIA Chairman and the Chief Immigration Judge

that were based on legal interpretations); Bowrin v. INS, 194

F.3d 483, 488 (4th Cir. 1999) (“§ 1252(g) does not apply to agency

interpretations of statutes”); Fornalik v. Perryman, 223 F.3d 523,

532 (7th Cir. 2000) (habeas petition filed before INS filed initial

filing in removal case was not request for “relief from a decision

to commence proceedings”).

an agency’s legal determination. That congressional

determination supports review here.

In sum, the particular characteristics of this decision combine to place it clearly within the category of

agency actions subject to judicial review.

In this unusual context, there is no basis for disregarding the “strong” and “well-settled” presumption

favoring review of executive determinations. Mach

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

Kucana v. Holder, 558 U.S. 233, 241 (2010).

B. The Rescission Decision Must Be Set

Aside.

The decision to rescind DACA rested on a legal determination: DHS’s conclusion that the program exceeded the agency’s statutory authority. Because that

conclusion constituted a change in position—the government had previously stated that DACA was lawful—DHS was required to provide “a reasoned explanation for the change” in position. Encino Motorcars,

LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). Failure

to explain a change in agency policy “‘is a reason for

holding an interpretation to be an arbitrary and capricious change.’” Id. at 2126 (citation omitted).

Even if the explanation were adequate, the rescission must be set aside if the agency’s legal analysis is

wrong. SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)

(“[I]f the [agency] action is based upon a determination of law * * *, an order may not stand if the agency

has misconceived the law.”); Yale-New Haven Hosp. v.

Leavitt, 470 F.3d 71, 86 (2d Cir. 2006); Safe Air For

Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007);

Transitional Hosps. Corp. of La. v. Shalala, 222 F.3d

1019, 1029 (D.C. Cir. 2000).

The rescission decision must be vacated for both

reasons: DHS failed to provide an adequate explanation for its change in policy and it erred in determining that DACA is beyond the Executive Branch’s legal

authority.

To begin with, as Judge Bates explained in detail

in two opinions (see 18-588 Pet. App 1a-74a & 80a109a), the “scant legal reasoning” set forth by DHS

“was insufficient to satisfy the Department’s obligation to explain its departure from its prior stated view

that DACA was lawful.” Id. at 51a.

Moreover, “[t]he Department’s failure to give an

adequate explanation * * * was particularly egregious

here in light of the reliance interests involved”—because the program had been in place for five years

“and had engendered the reliance of hundreds of thousands of beneficiaries, many of whom had structured

their education, employment, and other life activities

on the assumption that they would be able to renew

their DACA benefits.” Id. at 54a. Citing Encino Motorcars, Judge Bates stated that “[t]he Supreme Court

has set aside changes in agency policy for failure to

consider reliance interests that pale in comparison to

the ones at stake here.” Id. at 54a-55a.

Even if DHS’s explanation could be deemed adequate, the Department’s legal analysis is wrong: the

DACA program falls well within the Executive

Branch’s particular legal authority with respect to immigration for several related reasons.

First, Congress has broadly authorized the Department of Homeland Security to exercise discretion,

including to “[e]stablish[] national immigration enforcement policies and priorities”—which is precisely

what the DACA program does. 6 U.S.C. § 202(5); see

also 8 U.S.C. § 1103(a)(1) (charging the Secretary

with the “administration and enforcement” of the immigration laws); id. § 1103(a)(3) (authority to “perform such other acts as he deems necessary for carrying out his authority” under the immigration laws);

H.R. Rep. No. 111-157, at 8 (2009) (“rather than

simply rounding up as many illegal immigrants as

possible, which is sometimes achieved by targeting

the easiest and least threatening among the undocumented population, DHS must ensure that the government’s huge investments in immigration enforcement are producing the maximum return in actually

making our country safer”).

Second, granting “deferred action” is a long-established administrative practice expressly recognized by

this Court and by Congress.

The government recognizes that “[a]s a practical

matter, * * * the Executive Branch lacks the resources

to remove every removable alien,” and “[f]or any alien

subject to removal, DHS officials must first ‘decide

whether it makes sense to pursue removal at all.’”

U.S. Br. 4 (quoting Arizona v. United States, 567 U.S.

387, 396 (2012)). For that reason, Presidents since

1956 have implemented formal programs deferring

government action to remove individuals present in

the United States—thereby enabling over two million

otherwise-removable aliens to remain temporarily in

the country.

In the 1950s, President Eisenhower authorized

the admission of (“paroled”) almost 1,000 foreign-born

children into the United States; and he and Presi-

dents Kennedy, Johnson, and Nixon later paroled another 600,000 Cubans.73 In the 1970s and 1980s, the

Ford and Carter Administrations granted “extended

voluntary departure,” which “temporarily suspend[ed] enforcement” of deportation, to “particular

group[s]” of immigrants.74

The Reagan Administration introduced the “Family Fairness” program, which deferred removal actions

against minor children whose parents were in the process of obtaining legal status but who did not themselves qualify for legal status.75 President George

H.W. Bush then extended the program in 1990 to

cover qualified spouses.76 And on at least four additional occasions, immigration officials have extended

deferred action to specified classes of individuals.77

73 See President Dwight Eisenhower, Statement Concerning the

Entry Into the United States of Adopted Foreign-Born Orphans

(Oct. 26, 1956), https://goo.gl/BkztnZ; American Immigration

Council, Executive Grants of Temporary Immigration Relief,

1956-Present (Oct. 2014), https://goo.gl/Q87gqn.

74 Hotel & Rest. Emps. Union, Local 25 v. Smith, 846 F.2d 1499,

1510 (D.C. Cir. 1988) (en banc); Andorra Bruno et al., CRS, Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the

United States as Children App’x (July 13, 2012),

https://goo.gl/deiGYz.

75 Alan Nelson, Legalization and Family Fairness: An Analysis

(Oct. 21, 1987), in 64 No. 41 Interpreter Releases 1191 app. I.

76 Mem.

from Gene McNary, Comm’r, INS, to Reg’l Comm’rs,

Family Fairness: Guidelines for Voluntary Departure under 8

CFR 242.5 for the Ineligible Spouses and Children of Legalized

Aliens (Feb. 2, 1990), in 67 No. 6 Interpreter Releases 153, app.

I, at 164-65 (Feb. 5, 1990).

77 See, e.g., Mem. from Paul Virtue, INS, Supplemental Guidance

on Battered Alien Self-Petitioning Process and Related Issues at

In view of that long history, it is not surprising

that this Court itself has recognized the “regular practice” of “deferred action.” AAADC, 525 U.S. at 483-85.

Most importantly, Congress has enacted statutes

expressly recognizing that authority. As the government itself recognizes (U.S. Br. 43), Congress has on

several occasions recognized the legal authority to

grant deferred action by expressly expanding deferred

action to certain categories of individuals and by authorizing States to issue driver’s licenses to immigrants with “approved deferred action status.” 49

U.S.C. § 30301 note.

Given this long historical practice and express

congressional recognition, it is plain that the Executive Branch has broad authority to grant deferred action.

Third, permitting deferred action recipients to obtain work authorization has a similarly lengthy pedigree.

A regulation promulgated in the 1980s provides

that individuals who receive deferred action are eligible to apply for work authorization. See 8 C.F.R.

§ 274a.12(c)(14). That regulation codified the already3 (May 6, 1997), 74 No. 41 Interpreter Releases 962 app. I; U.S.

Citizenship & Immigration Servs. (USCIS), Interim Relief for

Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) 1, 7 (Nov. 25,

2005), https://tinyurl.com/y68s86cy; Mem. from Michael D.

Croning, INS, for Michael A. Pearson, INS, VTVPA Policy Memorandum #2—“T” and “U” Nonimmigrant Visas (Aug. 30, 2001),

https://tinyurl.com/yxpztydf; Mem. from Donald Neufeld,

USCIS, Guidance Regarding Surviving Spouses of Deceased U.S.

Citizens

and

Their

Children

(June

15,

2009),

https://goo.gl/SHaCVZ.

existing practice and procedure of granting employment authorization to such individuals. See Proposed

Rules for Employment Authorization for Certain Aliens, 44 Fed. Reg. 43,480 (July 25, 1979). And in the

almost forty years since, Congress has declined to

limit this practice in any way.

To the contrary, in the face of a challenge to the

Attorney General’s authority to grant work authorizations to individuals who have been granted deferred

action (see Employment Authorization, 51 Fed. Reg.

39,385 (Oct. 28, 1986)), Congress ratified the Attorney

General’s authority, enacting a law prohibiting employers from hiring unauthorized aliens, but expressly

excluded from that category individuals “authorized

to be so employed by * * * the Attorney General.” 8

U.S.C. § 1324a(h)(3).

In sum, the broad discretionary authority conferred on the Executive Branch in this immigration

context, the long history of administrative grants of

both deferred action and work authorization, and

Congress’s express recognition of that practice establish that DACA falls within the legal authority available to the Executive Branch.

CONCLUSION

The judgments of the Court of Appeals for the

Ninth Circuit and the District Court for the District of

Columbia, and orders of the District Court for the

Eastern District of New York should be affirmed.

Respectfully submitted.

ANDREW J. PINCUS

Counsel of Record

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

KAREN W. LIN

Mayer Brown LLP

1221 Avenue of the

Americas

New York, NY 10020

(212) 506-2500

Counsel for Amici Curiae

OCTOBER 2019

APPENDIX A

LIST OF AMICI CURIAE

Business Associations

American Hotel & Lodging Association

BSA | The Software Alliance

Chamber of Commerce of the United

States of America

HR Policy Association

Information Technology Industry

Council

National Association of Manufacturers

National Association of State Latino

Chambers of Commerce

National Retail Federation

North Texas Commission

10.

Philadelphia Area Cooperative Alliance

11.

Retail Industry Leaders Association

12.

Semiconductor Industry Association

13.

Software and Information Industry

Association

14.

Sustainable Business Network of

Greater Philadelphia

15.

Tech:NYC

16.

TechNet

17.

Texas Association of Business

18.

Vail Valley Partnership

Individual Companies

A Medium Corporation

Adobe Systems Incorporated

Affirm, Inc.

Airbnb, Inc.

Akamai Technologies, Inc.

Amazon.com, Inc.

Ampush LLC

Asana, Inc.

Aspen Skiing Company, LLC

10.

Atlassian Corp. Plc

11.

Autodesk, Inc.

12.

Azavea Inc.

13.

Ben & Jerry's Homemade, Inc.

14.

Berry Appleman & Leiden LLP

15.

Best Buy, Inc.

16.

Box, Inc.

17.

Braze, Inc.

18.

Brightcove Inc.

19.

CareZone Inc.

20.

Checkr, Inc.

21.

Chegg, Inc.

22.

Chobani, LLC

23.

Cisco Systems Inc.

24.

Citrix Systems, Inc.

25.

Civis Analytics, Inc.

26.

Cloudera, Inc.

27.

Cloudflare, Inc.

28.

Codecademy

29.

Color Genomics, Inc.

30.

Columbia Group LLP

31.

Cummins Inc.

32.

DoorDash

33.

Driscoll's

34.

Dropbox, Inc.

35.

eBay Inc.

36.

Ernst & Young LLP

37.

Exelon Corp.

38.

Facebook, Inc.

39.

Fastly, Inc.

40.

Foossa

41.

Foursquare Labs, Inc.

42.

Gap Inc.

43.

General Assembly Space, Inc. DBA

General Assembly

44.

Golden Door Scholars

45.

Google LLC

46.

Graham Holdings Company

47.

Greenough Consulting Group

48.

Hewlett Packard Enterprise

49.

Hilton Worldwide Holdings Inc.

50.

HMS Holdings Corp.

51.

Host Hotels and Resorts, Inc.

52.

HP Inc.

53.

IBC Bank

54.

IBM Corporation

55.

IKEA North American Services, LLC

56.

Imgur, Inc.

57.

Indiegogo, Inc.

58.

Intel Corporation

59.

JAND, Inc. d/b/a Warby Parker

60.

Kickstarter, PBC

61.

Knotel

62.

Lam Research Corporation

63.

Levi Strauss & Co.

64.

Linden Research, Inc. d/b/a Linden Lab

65.

Lydecker Diaz

66.

Lyft, Inc.

67.

Mapbox

68.

Marriott International, Inc.

69.

Medidata Solutions, Inc.

70.

Molecule Software, Inc.

71.

MongoDB, Inc.

72.

MPOWERD Inc.

73.

Netflix, Inc.

74.

NETGEAR, Inc.

75.

NewsCred, Inc.

76.

Niskanen Center

77.

Okta, Inc.

78.

OpenAI, LLC

79.

Patreon, Inc.

80.

PayPal Holdings, Inc.

81.

Pinterest, Inc.

82.

Planet Labs Inc.

83.

Postmates

84.

RealNetworks, Inc.

85.

Red Ventures

86.

Rippling

87.

Salesforce.com, Inc.

88.

Scopely, Inc.

89.

ServiceNow

90.

Shutterstock, Inc.

91.

Space Exploration Technologies Corp.

92.

Spokeo, Inc.

93.

SpotHero, Inc.

94.

Spotify USA Inc.

95.

Square, Inc.

96.

Squarespace, Inc.

97.

Starbucks Coffee Company

98.

Strava, Inc.

99.

SurveyMonkey Inc.

100. Tampa Bay Tech

101. Target

102. TaskRabbit, Inc.

103. Tesla, Inc.

10a

104. The Nielsen Company

105. Thumbtack, Inc.

106. TNTP, Inc.

107. TPG Capital

108. TransferWise Inc.

109. TripAdvisor LLC

110. Turner Morris, Inc.

111. Turo Inc.

112. Twitter Inc.

113. Uber Technologies, Inc.

114. Univision Communications Inc.

115. Upwork Inc.

116. Verizon Communications Inc.

117. Via Transportation, Inc.

118. Western Union

11a

119. Work & Co.

120. Workday, Inc.

121. Y Combinator Management, LLC

122. Year Up

123. Yelp Inc.

124. Zendesk, Inc.

125. ZenPayroll, Inc. d/b/a Gusto

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.