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

Supreme Court briefOct 4, 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

___________

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 Before Judgment to the United States

Court of Appeals for the District of Columbia Circuit

___________

KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL.,

Petitioners,

MARTIN JONATHAN BATALLA VIDAL, ET AL.,

Respondents.

___________

On Writ of Certiorari Before Judgment to the United States

Court of Appeals for the Second Circuit

___________

BRIEF OF CURRENT MEMBERS OF CONGRESS AND

BIPARTISAN FORMER MEMBERS OF CONGRESS AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

___________

October 4, 2019

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

DAYNA J. ZOLLE**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

* Counsel of Record

** Not admitted in D.C.; supervised by

principals of the firm

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

ARGUMENT .........................................................

DACA WAS A LAWFUL EXERCISE OF

EXECUTIVE DISCRETION, AND ITS

RESCISSION ON THE GROUND THAT IT

WAS UNLAWFUL THEREFORE VIOLATED

THE APA ...........................................................

DACA WAS A VALID EXERCISE OF

EXECUTIVE AUTHORITY ....................

A. Congress Has Long Conferred

Significant Discretion on the

Executive Branch ..........................

B. The Executive Branch Has Long

Exercised This Broad Discretion

with Congress’s Affirmative

Approval .........................................

C. DACA Was a Valid Exercise of

Executive Discretion ....................

THE TERMINATION OF DACA ON

THE GROUND THAT IT WAS

UNLAWFUL VIOLATED THE APA .....

CONCLUSION .....................................................

APPENDIX ...........................................................

II.

(i)

TABLE OF AUTHORITIES

Cases

Apex Hosiery Co. v. Leader,

310 U.S. 469 (1940) ................................

Page(s)

Arizona v. United States,

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

Barnhart v. Peabody Coal Co.,

537 U.S. 149 (2003) ................................

Bob Jones Univ. v. United States,

461 U.S. 574 (1983) ................................

Burlington Truck Lines, Inc. v. United

States,

371 U.S. 156 (1962) ................................

Dames & Moore v. Regan,

453 U.S. 654 (1981) ................................

Harisiades v. Shaughnessy,

342 U.S. 580 (1952) ................................

Heckler v. Chaney,

470 U.S. 821 (1985) ................................

6, 10

INS v. Chadha,

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

Jama v. ICE,

543 U.S. 335 (2005) ................................

Lichter v. United States,

334 U.S. 742 (1948) ................................

Marx v. Gen. Revenue Corp.,

568 U.S. 371 (2013) ................................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Mathews v. Diaz,

426 U.S. 67 (1976) ..................................

Medellin v. Texas,

554 U.S. 759 (2008) ................................

6, 21

Mistretta v. United States,

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

Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ..................................

Reno v. Am.-Arab Anti-Discrimination

Comm.,

525 U.S. 471 (1999) ....................... 2, 7, 8, 11, 17

Scripps-Howard Radio v. F.C.C.,

316 U.S. 4 (1942) ....................................

SEC v. Chenery Corp.,

332 U.S. 194 (1947) ................................

Tex. Dep’t of Hous. & Cmty. Affairs v.

Inclusive Cmtys. Project, Inc.,

135 S. Ct. 2507 (2015) ............................

Texas v. United States,

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

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) .......... 5, 25, 26, 27

United States ex rel. Knauff v.

Shaughnessy,

338 U.S. 537 (1950) ................................

TABLE OF AUTHORITIES – cont’d

Page(s)

United States v. Craft,

535 U.S. 274 (2002) ................................

United States v. Rutherford,

442 U.S. 544 (1979) ................................

United States v. Vonn,

535 U.S. 55 (2002) ..................................

Constitutional Provisions and Legislative Materials

5 U.S.C. § 551 et seq. .................................

5 U.S.C. § 706(2)(A) ...................................

4, 25

6 U.S.C. § 202(5) ........................................ passim

8 C.F.R. § 109.1(b)(7) (1984) .....................

8 C.F.R. § 245a.2(a)(2)(iv)(5) (1989) .........

8 C.F.R. § 274a.12(c)(14) (1989) ................ 11, 16

8 U.S.C. § 1101 et seq. ...............................

8 U.S.C. § 1103(a)(1) .................................

8 U.S.C. § 1103(a)(3) ........................... 3, 7, 18, 19

8 U.S.C. § 1151(b)(2)(A)(i) .........................

8 U.S.C. § 1154(a)(1)(D)(i)(II) ................... 15, 16

8 U.S.C. § 1154(a)(1)(D)(i)(IV) .................. 15, 16

8 U.S.C. § 1182(a)(9)(B) ............................

TABLE OF AUTHORITIES – cont’d

Page(s)

8 U.S.C. § 1182(a)(9)(B)(i)(II) ....................

8 U.S.C. § 1201(a) ......................................

8 U.S.C. § 1227(d)(1) .................................

8 U.S.C. § 1227(d)(2) .................................

8 U.S.C. § 1255 ..........................................

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

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

52 F.R. 16222 (1987) .................................

158 Cong. Rec. (daily ed. July 19, 2012) ... 21, 23

Battered Immigrant Women Protection Act

of 1999: Hearing on H.R. 3083 Before the

Subcomm. on Immigration & Claims of

the H. Comm. on the Judiciary, 106th

Cong. (2000)............................................

Department of Homeland Security Appropriations Act, Pub. L. No. 114-4, 129

Stat. 39 (2015) ........................................

Emergency Supplemental Appropriations

Act for Defense, the Global War on Terror, and Tsunami Relief, Pub. L. No. 10913, 119 Stat. 231 (2005) .........................

H.R. 5160, 113th Cong. (2014) ..................

Immigration Reform and Control Act of

1986, Pub. L. No. 99-603, 100 Stat.

3359 ........................................................

TABLE OF AUTHORITIES – cont’d

Page(s)

National Defense Authorization Act for

Fiscal Year 2004, Pub. L. No. 108-136,

117 Stat. 1392 (2003) .............................

S. 1615, 115th Cong. (2017) ......................

S. 2631, 113th Cong. (2014) ......................

Subcomm. on Immigration, Citizenship,

Refugees, Border Security, & Int’l L., H.

Comm. on the Judiciary, 111th Cong.,

Rules of Procedure and Statement of

Policy for Private Immigration Bills .....

Uniting and Strengthening America by

Providing Appropriate Tools Required to

Intercept and Obstruct Terrorism Act of

2001 (USA PATRIOT Act), Pub. L. No.

107-56, 115 Stat. 272 .............................

Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114

Stat. 1464 ...............................................

Books, Articles, and Other Authorities

64 No. 41 Interpreter Releases 1191, app. I,

(Oct. 26, 1987) ........................................

67 No. 6 Interpreter Releases 153, app. I,

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

76 Interpreter Releases, app. I (Dec. 3,

1999) .......................................................

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Am. Immigration Council, Executive

Grants of Temporary Immigration Relief,

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

www.americanimmigrationcouncil.org/sites/default/files/research/executive_grants_of_temporary_immigration_

relief_1956- present_final_0.pdf ............

Andorra Bruno et al., Cong. Research

Serv., Analysis of June 15, 2012 DHS

Memorandum, Exercising Prosecutorial

Discretion with Respect to Individuals

Who Came to the United States as Children (July 13, 2012) .............................. 6, 11, 12

Adam B. Cox & Cristina M. Rodríguez, The

President and Immigration Law, 119

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

7, 8

Charles Gordon & Harry N. Rosenfield, Immigration Law and Procedure (1959)....

Ben Harrington, Cong. Research Serv.,

R45158, An Overview of Discretionary

Reprieves from Removal: Deferred Action,

DACA, TPS, and Others (Apr. 10,

2018) .......................................................

ICYMI: Speaker Ryan, Senator Hatch Urge

Trump to Keep DACA, fwd.us (Sept. 1,

2017), https://www.fwd.us/news/speakerryan-senator-hatch-urge-trump-keepdaca/ ........................................................

viii

TABLE OF AUTHORITIES – cont’d

Page(s)

Letter from Rep. Lamar Smith et al., to

Hon. Janet Reno, Att’y Gen., DOJ, and

Hon. Doris M. Meissner, Comm’r, INS

(Nov. 4, 1999) .........................................

Bernadette Maguire, Immigration: Public

Legislation and Private Bills (1997) ......

Doris Meissner & Julia Gelatt, Migration

Policy Inst., Eight Key U.S. Immigration

Policy Issues: State of Play and Unanswered Questions (May 2019) ................

Memorandum from Gene McNary, Comm’r,

INS, to Reg’l Comm’rs, Family Fairness:

Guidelines for Voluntary Departure Under 8 C.F.R. 242.5 for the Ineligible

Spouses and Children of Legalized Aliens

(Feb. 2, 1990) .......................................... 12, 13

Memorandum from John Morton, Dir., Immigration & Customs Enforcement, to

All ICE Employees, Civil Immigration

Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens

(Mar. 2, 2011) ........................................ 8, 18, 19

Memorandum from John P. Torres, Acting

Dir., ICE Office of Detention & Removal

Operations, to Field Office Dirs., Detention and Deportation Officer’s Field Manual Update (Mar. 27, 2006), https://

www.ice.gov/doclib/foia/dro_policy_memos/09684drofieldpolicymanual.pdf .....................................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Alan C. Nelson, Comm’r, INS, Legalization

and Family Fairness—An Analysis (Oct.

21, 1987) .................................................

Pres. Barack Obama, Remarks by the President on Immigration (June 15, 2012)...

Press Release, Durbin, Lugar Ask Secretary Napolitano to Stop Deportations of

Dream Act Students (Apr. 21, 2010),

https://www.durbin.senate.gov/newsroom/press-releases/durbin-lugar-asksecretary-napolitano-to-stop-deportations-of-dream-act-students...................

U.S. Citizenship and Immigration Services,

Number of Form I-821D, Consideration of

Deferred Action for Childhood Arrivals

(Nov. 30, 2018), https://www.uscis.gov/

sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20

Types/DACA/DACA_FY19_Q1_Data

.pdf ..........................................................

INTEREST OF AMICI CURIAE1

Amici are a bipartisan group of current and former

members of the U.S. Senate and House of Representatives, many of whom served when key components of

the nation’s immigration laws, including provisions

pertinent to these cases, were drafted, debated, and

passed. Based on their experience serving in Congress, amici understand that the nation’s immigration

laws, including the Immigration and Nationality Act

(INA), 8 U.S.C. § 1101 et seq., delegate significant discretion to the executive branch to interpret and administer those laws, including by setting rational

enforcement priorities and providing guidance to field

officials to implement those priorities. Moreover,

amici know that administrations of both major political parties have for decades exercised that discretion

to grant undocumented immigrants deferred action,

on both an ad hoc basis and by establishing categorical

threshold criteria for deferral, and Congress has consistently approved of these exercises of executive discretion. Where Congress has chosen to vest the

executive with authority to determine how a law

should be enforced, and the executive has acted pursuant to that authority—as was the case with the Deferred Action for Childhood Arrivals (DACA) policy—

amici have an interest in ensuring that courts honor

Congress’s deliberate choice. Amici therefore have a

substantial interest in ensuring that this Court

1 The parties have consented to the filing of this brief, and

their letters of consent have been filed with the Clerk. Under

Rule 37.6 of the Rules of this Court, amici state that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici

or their counsel made a monetary contribution to its preparation

or submission.

recognize that DACA was a permissible exercise of the

broad discretion that Congress has accorded the executive branch, and that the rescission of DACA on the

ground that it was unlawful therefore violated the Administrative Procedure Act (APA), 5 U.S.C. § 551 et

seq.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Because immigration is a complex and dynamic

field, Congress has long conferred significant discretion on the executive branch to implement the nation’s

immigration laws. Effectuating that discretion, administrations of both major political parties have for

decades granted undocumented immigrants deferred

action, both on an ad hoc basis and by establishing categorical threshold criteria for deferral. This Court has

recognized that such grants of deferred action are “a

regular practice” that the executive branch engages in

“for humanitarian reasons or simply for its own convenience.” Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 483-84 (1999) (AADC). Moreover, Congress has repeatedly taken affirmative steps

that demonstrate its ratification of, and reliance on,

these exercises of executive discretion, including passing legislation that presumes that the executive will

continue to grant deferred action or that expressly directs the executive to continue doing so.

Consistent with these past exercises of discretion,

the Department of Homeland Security in 2012 established DACA, which authorized the temporary deferred removal of “certain young people who were

brought to this country as children and know only this

country as home.” Pet. App. 97a-98a.2 In 2017, the

current Administration ended DACA, citing its supposed “legal and constitutional defects.” J.A. 878.

Contrary to the Administration’s contentions when

it rescinded the policy, DACA was a permissible exercise of the broad discretion that Congress conferred on

the executive branch to implement the federal immigration laws. See, e.g., 8 U.S.C. § 1103(a)(3) (authorizing the Secretary of Homeland Security to “establish

such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority” under the INA); 6 U.S.C.

§ 202(5) (directing the Secretary to “[e]stablish[] national immigration enforcement policies and priorities”). DACA was also consistent with the immigration

enforcement priorities that the executive branch had

established, and the Department of Justice’s Office of

Legal Counsel (OLC) advised before DACA’s implementation that it would be lawful, provided that it required review on a case-by-case basis, J.A. 827 n.8—

which it expressly did, Pet. App. 99a.

DACA was also a sensible response to the imperatives and realities of law enforcement: the immigration

laws make a substantial number of noncitizens removable, but Congress has not provided sufficient resources to effectuate the removal of more than a small

fraction of the nation’s undocumented immigrants. Instead, Congress has reasonably permitted the executive branch to determine the nation’s immigration

enforcement priorities.

Indeed, many members of Congress specifically

2 “Pet. App.” and “Supp. Pet. App.” refer to the appendices ac-

companying the original and supplemental petitions for certiorari, respectively, in DHS v. Regents of the University of

California, No. 18-587.

called for the executive to exercise discretion regarding

certain young people who were brought to the United

States as children, and many members of Congress

subsequently praised DACA’s implementation. And

although bipartisan efforts to enact new legislation extending broader rights and protections to certain immigrants who were brought to the United States as

children have thus far failed, see Pet’rs Br. 5 & n.2, as

have numerous congressional efforts to defund or terminate DACA, these facts have no bearing on the legality of DACA itself. The legislative proposals that

Congress has considered were not remotely coextensive with DACA: Under DACA, grants of deferred action may be terminated at any time and confer no

substantive rights or immigration status, J.A. 827,

whereas the legislative proposals that Congress has

considered would have provided more permanent and

wide-ranging protections and benefits, and they would

have extended these protections to a broader class of

individuals. DACA was a valid exercise of the broad

discretion that Congress has delegated to the executive branch, regardless of whether Congress chooses to

provide greater long-term protections for DACA recipients (or others) through new legislation.

Accordingly, the Administration’s decision to rescind DACA on the ground that it was unlawful was

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in violation of the

APA. 5 U.S.C. § 706(2)(A). Although Petitioners now

offer multiple explanations for DACA’s rescission, see,

e.g., Pet’rs Br. 15, those post hoc explanations are irrelevant. At the time that it terminated DACA, the

Administration made clear that it was doing so because it had concluded that the policy was unlawful.

See J.A. 877. The Administration also asserted that,

if challenged in court, DACA would meet the same fate

as the Deferred Action for Parents of Americans and

Lawful Permanent Residents (DAPA) policy, which

the Fifth Circuit enjoined in a decision this Court affirmed by an equally divided vote. Id. at 878; see Texas

v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by

an equally divided Court, 136 S. Ct. 2271 (2016) (per

curiam). The Administration reached this conclusion

even though DACA is materially distinguishable from

DAPA. Accordingly, this Court should hold that the

decision to terminate DACA—a policy that lawfully

and laudably deferred removal on a case-by-case basis

of certain persons who were brought to the United

States as children and who met other qualifications—

on the ground that this effort was unlawful and contravened the APA.

ARGUMENT

DACA WAS A LAWFUL EXERCISE OF EXECUTIVE DISCRETION, AND ITS RESCISSION ON

THE GROUND THAT IT WAS UNLAWFUL

THEREFORE VIOLATED THE APA.

DACA WAS A VALID EXERCISE OF EXECUTIVE AUTHORITY.

A. Congress Has Long Conferred Significant

Discretion on the Executive Branch.

As amici know from their time serving in Congress,

it is impossible for Congress to anticipate every situation to which legislation must apply. This fact is particularly true in a complex and dynamic context like

immigration, as demographic, social, and political

changes at home and abroad can cause abrupt and

substantial changes in immigration patterns. This

Court has recognized that the field of immigration is

“vitally and intricately interwoven with . . . the conduct of foreign relations,” Harisiades v. Shaughnessy,

342 U.S. 580, 588-89 (1952), a sphere that falls largely

within the executive branch’s purview. See INS v.

Chadha, 462 U.S. 919, 954 (1983); Arizona v. United

States, 567 U.S. 387, 394-95 (2012) (noting that the

federal government’s authority over immigration

“rests, in part, on the National Government’s . . . inherent power as sovereign to control and conduct relations with foreign nations”); Medellin v. Texas, 554

U.S. 759, 765 (2008) (Breyer, J., dissenting) (acknowledging the “President’s responsibility for foreign affairs”).

Reflecting these considerations, Congress has long

recognized that the executive branch must have discretion to determine how best to enforce the nation’s

immigration laws by “balancing . . . factors which are

peculiarly within its expertise,” Heckler v. Chaney, 470

U.S. 821, 831 (1985), including foreign relations, humanitarian considerations, and national security concerns. Accordingly, Congress has repeatedly conferred

authority on executive branch officials to exercise discretion in enforcing the federal immigration laws. See

Pet’rs Br. 16 (“Decisions about how the government

will exercise enforcement discretion within the bounds

of the law are uniquely entrusted to the Executive

Branch.”). Indeed, as far back as 1959, a key immigration law textbook reported that “Congress traditionally has entrusted the enforcement of its deportation

policies to executive officers, and this arrangement has

been approved by the courts.” Charles Gordon &

Harry N. Rosenfield, Immigration Law and Procedure

406 (1959); see Andorra Bruno et al., Cong. Research

Serv., Analysis of June 15, 2012 DHS Memorandum,

Exercising Prosecutorial Discretion with Respect to

Individuals Who Came to the United States as Children 5 & n.18 (July 13, 2012) [hereinafter CRS Analysis of DHS Memorandum].

In particular, Congress has, for more than sixty

years, authorized the Secretary of Homeland Security

(previously the Attorney General) to “establish such

regulations; . . . issue such instructions; and perform

such other acts as he deems necessary for carrying out

his authority” under the INA, 8 U.S.C. § 1103(a)(3),

which charges him “with the administration and enforcement” of the nation’s immigration laws, id.

§ 1103(a)(1). Moreover, in recognizing a growing gap

between the size of the unauthorized immigrant population and the resources reasonably available for enforcement, Congress directed the Secretary of

Homeland Security in the Homeland Security Act of

2002 to “[e]stablish[] national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). These

and other provisions in our federal immigration laws

“delegat[e] tremendous authority to the President to

set immigration screening policy.” Adam B. Cox &

Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 463 (2009). At a minimum, these provisions of federal immigration law

authorize the executive to define enforcement and removal priorities. See J.A. 831 (“The practice of granting deferred action, like the practice of setting

enforcement priorities, is an exercise of enforcement

discretion rooted in DHS’s authority to enforce the immigration laws and the President’s duty to take care

that the laws are faithfully executed.”).

Indeed, this Court has repeatedly recognized that

Congress has conferred broad discretion on the executive branch in the immigration context, observing that

“[a] principal feature of the removal system is the

broad discretion exercised by immigration officials”

and that “[f]ederal officials, as an initial matter, must

decide whether it makes sense to pursue removal at

all.” Arizona, 567 U.S. at 396; see AADC, 525 U.S. at

483 (“At each stage” of removal, “the Executive has discretion to abandon the endeavor.”). This Court has

also recognized that the executive branch’s broad discretion allows its officers to consider many factors in

deciding when removal is appropriate, including both

“immediate human concerns” and “foreign policy” matters. Arizona, 567 U.S. at 396-97; Jama v. ICE, 543

U.S. 335, 348 (2005) (“Removal decisions . . . ‘may implicate our relations with foreign powers’ and require

consideration of ‘changing political and economic circumstances.’” (quoting Mathews v. Diaz, 426 U.S. 67,

81 (1976))). And this Court has noted that executive

grants of deferred action in particular have become “a

regular practice” and a “commendable exercise in administrative discretion.” AADC, 525 U.S. at 483-84 (citation and internal quotation marks omitted).

Congress’s delegation of this discretion to the executive branch is, in fact, essential: while the immigration laws make a substantial number of noncitizens

removable, Congress has not appropriated the funds

necessary to effectuate such a mass removal—indeed,

it has never come close to providing such vast resources. See Cox & Rodríguez, supra, at 463 (explaining that Congress has made a “huge fraction of

noncitizens deportable at the option of the Executive”);

Memorandum from John Morton, Dir., Immigration &

Customs Enforcement (ICE), to All ICE Employees,

Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens 1 (Mar.

2, 2011) [hereinafter Morton Prioritization Memorandum] (estimating that ICE has enough resources to deport less than 4 percent of the undocumentedimmigrant population each year). In other words,

given the large population of undocumented immigrants in the United States and the limited resources

available to enforce the nation’s immigration laws—

even as appropriations for enforcement have reached

particularly high levels, see Doris Meissner & Julia

Gelatt, Migration Policy Inst., Eight Key U.S. Immigration Policy Issues: State of Play and Unanswered

Questions 1 (May 2019) (“[T]he United States is spending 34 percent more on immigration enforcement than

on all other principal federal criminal law enforcement

agencies combined.”)—the government cannot possibly remove everyone who is eligible for removal.

Accordingly, the executive branch necessarily must

exercise substantial discretion in determining who

should be removed consistent with the nation’s “immigration enforcement policies and priorities.” 6 U.S.C.

§ 202(5); see Mistretta v. United States, 488 U.S. 361,

372 (1989) (“[I]n our increasingly complex society,

. . . Congress simply cannot do its job absent an ability

to delegate power under broad general directives.”).

Even Petitioners recognize that, “[a]s a practical matter, . . . the Executive Branch lacks the resources to remove every removable alien, and a ‘principal feature of

the removal system is the broad discretion exercised

by immigration officials.’” Pet’rs Br. 4 (quoting Arizona, 567 U.S. at 396).

Moreover, the discretion Congress has conferred on

the executive branch to implement the immigration

laws is not limited to decisions related to removal. To

the contrary, Congress has also specifically given the

executive branch significant authority over which persons are entitled to work in the United States. For example, the Immigration Reform and Control Act of

1986 (IRCA) defines an “unauthorized alien” not entitled to work in the United States as an alien who is

neither a lawful permanent resident nor “authorized

to be . . . employed by [the INA] or by the Attorney General [now the Secretary of Homeland Security].” 8

U.S.C. § 1324a(h)(3) (emphasis added); see Pub. L. No.

99-603, 100 Stat. 3359, 3368 (1986). Thus, whether

deferred action recipients can apply for work authorization “depend[s] on independent and more specific

statutory authority rooted in the text of the INA,” J.A.

833, and falls within the executive’s discretion.

To be sure, executive discretion in the immigration

context is not unlimited, and Congress remains free to

“limit an agency’s exercise of enforcement power if it

wishes, either by setting substantive priorities, or by

otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.”

Chaney, 470 U.S. at 833. Congress has, for instance,

directed the Secretary of Homeland Security to “prioritize the identification and removal of aliens convicted

of a crime by the severity of that crime.” Department

of Homeland Security Appropriations Act, Pub. L. No.

114-4, 129 Stat. 39, 43 (2015). But Congress has never

sought to define enforcement priorities in such detail

that the executive could not exercise its own judgment

at all, nor has it sought to enumerate all the circumstances in which a noncitizen may receive a given accommodation. Accordingly, this Court has observed

that, when it comes to immigration, “[i]t is not necessary that Congress supply administrative officials

with a specific formula for their guidance in a field

where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute

the essence of the program.” United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (quoting Lichter v. United States, 334 U.S. 742, 785 (1948)).

In short, through the INA and other legislation,

Congress has intentionally given the executive branch

broad discretion to rationally decide how best to implement the nation’s immigration laws. See Supp. Pet.

App. 8a-9a.

B. The Executive Branch Has Long Exercised

This Broad Discretion with Congress’s

Affirmative Approval.

The executive has long exercised its broad discretion in the immigration context by implementing policies involving deferred action and similar forms of

discretionary relief, and Congress has affirmatively

approved of, and relied on, those practices. “Since at

least the 1970s, immigration authorities in the United

States have sometimes exercised their discretion to

grant temporary reprieves from removal to non-U.S.

nationals . . . .” Ben Harrington, Cong. Research

Serv., R45158, An Overview of Discretionary Reprieves

from Removal: Deferred Action, DACA, TPS, and Others, at i (Apr. 10, 2018) [hereinafter CRS Overview].

As this Court has recognized, “[t]his commendable exercise in administrative discretion, developed without

express statutory authorization, originally was known

as nonpriority and is now designated as deferred action.” AADC, 525 U.S. at 484 (citation and internal

quotation marks omitted); see CRS Overview at 15

(noting that “[p]rior to 1975, immigration authorities

used the term ‘nonpriority status’ to describe the type

of reprieve now labeled deferred action”); Supp. Pet.

App. 10a (tracing the practice of granting “nonpriority

status” to at least the 1950s).

In 1975, the Immigration and Naturalization Service (INS) issued its first formal guidance on deferred

action. CRS Analysis of DHS Memorandum at 8. Federal agencies have also promulgated regulations recognizing deferred action since the 1980s. E.g., 8 C.F.R.

§ 109.1(b)(7) (1984) (providing that recipients of deferred action are eligible to apply for work authorization) (reserved by 52 F.R. 16222 (1987)); id.

§ 274a.12(c)(14) (1989) (describing deferred action as

“an act of administrative convenience to the

government which gives some cases lower priority”);

id. § 245a.2(a)(2)(iv)(5) (1989) (providing that immigrants granted deferred action before January 1, 1982,

and meeting other criteria could apply for adjustment

to temporary residence status).

Thus, for decades, administrations of both major

political parties have granted discretionary relief from

removal, both on an ad hoc basis and by establishing

categorical threshold criteria for deferral. See CRS

Analysis of DHS Memorandum at 20-23; Am. Immigration Council, Executive Grants of Temporary Immigration Relief, 1956-Present, at 1 (Oct. 2014),

https://www.americanimmigrationcouncil.org/sites/

default/files/research/executive_grants_of_temporary

_immigration_relief_1956-present_final_0.pdf (“Since

at least 1956, every U.S. president has granted temporary immigration relief to one or more groups in need

of assistance.”); id. at 3-10 (collecting 39 examples). In

1987, for instance, after IRCA gave lawful status to

some undocumented immigrants, the Reagan Administration created the Family Fairness Program, which

allowed INS district directors to choose not to remove

some children and spouses of immigrants whose status

had recently changed under the Act. The program provided that those district directors could “exercise the

Attorney General’s authority to indefinitely defer deportation of anyone for specific humanitarian reasons.” Alan C. Nelson, Comm’r, INS, Legalization and

Family Fairness—An Analysis (Oct. 21, 1987), in 64

No. 41 Interpreter Releases 1191, app. I, at 1203 (Oct.

26, 1987).

That program was then expanded in 1990 under

President George H.W. Bush to allow more people to

qualify for deferral of deportation and also to receive

work authorization.

Memorandum from Gene

McNary, Comm’r, INS, to Reg’l Comm’rs, Family

Fairness: Guidelines for Voluntary Departure Under 8

C.F.R. 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). The INS

published guidelines “to assure uniformity in the

granting of voluntary departure and work authorization for the ineligible spouses and children of legalized

aliens.” Id. at 164.

And in 2006, during the administration of President George W. Bush, ICE published a field manual

that included guidelines for when deferred action

could be granted. Memorandum from John P. Torres,

Acting Dir., ICE Office of Detention & Removal Operations, to Field Office Dirs., Detention and Deportation

Officer’s Field Manual Update (Mar. 27, 2006),

https://www.ice.gov/doclib/foia/dro_policy_memos/

09684drofieldpolicymanual.pdf. As was the case with

DACA, the manual specified that “deferred action is

not an immigration status,” and it enumerated “[f]actors to be [c]onsidered . . . as part of a deferred action

determination.” Id. § 20.8(a)-(b). The manual explained that, although deferred action “may, on [its]

face look like a benefit grant,” it “really [is] just [a]

mechanism[] for formalizing an exercise of prosecutorial discretion.” Id. § 20.9(a).

Congress has consistently affirmatively approved

of these exercises of executive discretion. As OLC has

recognized, “Congress has long been aware of the practice of granting deferred action, including in its categorical variety, and of its salient features,” and yet

instead of acting “to disapprove or limit the practice,”

Congress “has enacted several pieces of legislation

that have either assumed that deferred action would

be available in certain circumstances, or expressly directed that deferred action be extended to certain categories of aliens.” J.A. 828-29; cf. Dames & Moore v.

Regan, 453 U.S. 654, 680, 686 (1981) (holding that the

president had authority to settle international claims

by executive agreement and explaining that “crucial to

[this] decision” was the fact that Congress had “placed

its stamp of approval on such agreements” by passing

legislation “creating a procedure to implement future

settlement agreements”); United States v. Rutherford,

442 U.S. 544, 554 n.10 (1979) (“[O]nce an agency’s statutory construction has been ‘fully brought to the attention of the public and the Congress,’ and the latter has

not sought to alter that interpretation although it has

amended the statute in other respects, then presumably the legislative intent has been correctly discerned.”

(quoting Apex Hosiery Co. v. Leader, 310 U.S. 469, 489

(1940))); Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2519-20

(2015) (similar). In this manner, Congress has repeatedly ratified the executive branch’s interpretation of

the federal immigration laws as authorizing the executive to grant discretionary relief from removal.

For example, in making certain victims of trafficking and abuse eligible for immigration-status adjustments, Congress authorized the Secretary of

Homeland Security to stay final orders of removal

while applications for such adjustments are pending.

8 U.S.C. § 1227(d)(1). In so doing, Congress took care

to ensure that this new authority would not impair the

forms of relief already available under existing law—

including deferred action—by clarifying that the denial of an administrative stay under the new provision

“shall not preclude the alien from applying for a stay

of removal, deferred action, or a continuance or abeyance of removal proceedings under any other provision

of the immigration laws.” Id. § 1227(d)(2) (emphasis

added). This provision is a clear indication that Congress understood deferred action as a preexisting and

permissible form of relief available under the immigration laws. See, e.g., Emergency Supplemental Appropriations Act for Defense, the Global War on Terror,

and Tsunami Relief, Pub. L. No. 109-13,

§ 202(c)(2)(B)(viii), 119 Stat. 231, 313 (2005) (codified

at 49 U.S.C. § 30301 note) (listing “approved deferred

action status” as a basis for issuing driver’s licenses).

In addition to endorsing the executive’s use of deferred action as a general matter, Congress has at

times required the executive to consider whether individuals who satisfy certain categorical threshold criteria should be granted deferred action. For instance,

Congress has provided that certain victims of domestic

violence with pending petitions for preference status

are “eligible for deferred action and work authorization.” 8 U.S.C. § 1154(a)(1)(D)(i)(II) & (IV). As legislators considered reauthorizing the Violence Against

Women Act (VAWA) in 2000, INS officials testified

that “[a]pproved [VAWA] self-petitioners are placed in

deferred action status,” with the result that “[n]o battered alien who has filed a[n approved] self petition . . .

has been deported.” J.A. 829 (alterations in original)

(quoting Battered Immigrant Women Protection Act of

1999: Hearing on H.R. 3083 Before the Subcomm. on

Immigration & Claims of the H. Comm. on the Judiciary, 106th Cong. 43 (2000) (statement of Barbara

Strack, Acting Exec. Assoc. Comm’r for Pol’y & Planning, INS)). In response to this testimony, Congress

“not only acknowledg[ed] but also expand[ed] the deferred action program in the 2000 VAWA reauthorization legislation, providing that children who could no

longer self-petition under VAWA because they were

over the age of 21 would nonetheless be ‘eligible for deferred action and work authorization.’” Id. (quoting

Victims of Trafficking and Violence Protection Act of

2000, Pub. L. No. 106-386, § 1503(d)(2), 114 Stat. 1464,

1522 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV))).

Congress has similarly ensured that eligibility for

both deferred action and work authorization remains

available to people affected by other prominent tragedies or hardships. See, e.g., Uniting and Strengthening America by Providing Appropriate Tools Required

to Intercept and Obstruct Terrorism Act of 2001 (USA

PATRIOT Act), Pub. L. No. 107-56, § 423(b)(1)-(2), 115

Stat. 272, 361 (specifying that certain relatives of individuals killed in the September 11 terrorist attacks

with pending petitions for preference status “may be

eligible for deferred action and work authorization”);

National Defense Authorization Act for Fiscal Year

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

1392, 1694-95 (2003) (specifying that certain relatives

of individuals killed in combat with pending petitions

for classification “shall be eligible for deferred action,

advance parole, and work authorization”).

Congress has also demonstrated its reliance on the

executive’s practice of granting deferred action in

other ways. For decades, the congressional committees that are responsible for immigration have routinely asked the executive to grant unauthorized

immigrants deferred action or stays of removal while

the committees considered private bills for relief from

enforcement of the immigration laws. See, e.g., Bernadette Maguire, Immigration: Public Legislation and

Private Bills 23-25, 253-55 (1997); Subcomm. on Immigration, Citizenship, Refugees, Border Security, &

Int’l L., H. Comm. on the Judiciary, 111th Cong., Rules

of Procedure and Statement of Policy for Private Immigration Bills, R. 5 (“In the past, the Department of

Homeland Security has honored requests for departmental reports by staying deportation until final action is taken on the private bill.”); see also 8 C.F.R.

§ 274a.12(c)(14) (allowing recipients of deferred action

to apply for work authorization).

In sum, Congress has not simply declined to amend

the law after the executive has announced certain

grants of deferred action, but rather it has “affirmatively manifested its acquiescence” in that practice.

Bob Jones Univ. v. United States, 461 U.S. 574, 601

(1983). As OLC has explained, “[t]he history of immigration policy illustrates” that “[w]hen Congress has

been dissatisfied with Executive action, it has responded . . . by enacting legislation to limit the Executive’s discretion in enforcing the immigration laws.”

J.A. 806. With respect to executive grants of deferred

action, however, Congress has repeatedly enacted legislation affirming the executive branch’s broad authority to grant this relief and relying on the continuation

of this practice. There can therefore be no doubt that

deferred action is a valid form of discretionary forbearance available to the Secretary of Homeland Security

in cases or classes of cases that he rationally deems

appropriate.

C. DACA Was a Valid Exercise of Executive

Discretion.

The Secretary’s establishment of DACA fell well

within the broad discretion that Congress has long

conferred on the executive and repeatedly reaffirmed.

Although deferred action policies originated “without

express statutory authorization,” AADC, 525 U.S. at

484 (citation and internal quotation marks omitted),

they are now “a regular practice,” id. at 483-84, and

are part and parcel of the Secretary’s congressionally

conferred authority both to “[e]stablish[] national immigration enforcement policies and priorities,” 6

U.S.C. § 202(5), and to “establish such regulations; . . .

issue such instructions; and perform such other acts as

he deems necessary for carrying out his authority”

under the INA, 8 U.S.C. § 1103(a)(3). DACA was no

exception to this rule.

DACA enabled “certain young people who were

brought to this country as children and know only this

country as home” to apply for deferred action from removal. Pet. App. 97a-98a. Those whose applications

were approved were protected from removal for renewable two-year periods and were eligible for work authorization.

Id. at 11a-12a.

The executive

memorandum announcing DACA recognized that

“[o]ur Nation’s immigration laws must be enforced in

a strong and sensible manner” and that these laws are

not “designed to remove productive young people to

countries where they may not have lived or even speak

the language.” Id. at 98a-99a. The memorandum also

established specific eligibility criteria and provided

that qualified applicants must pass a background

check and undergo a case-by-case review process to receive the requested deferral from removal. Id. Moreover, the memorandum emphasized that DACA was

an exercise of “[p]rosecutorial discretion, which is used

in so many other areas, [and] is especially justified

here.” Id. at 99a.

DACA was also fully consistent with the reasonable

immigration enforcement priorities that the executive

branch had announced pursuant to 6 U.S.C. § 202(5),

which authorizes the executive to “[e]stablish[] national immigration enforcement policies and priorities.” In a 2011 memorandum, the director of ICE

declared that “[a]liens who pose a danger to national

security or a risk to public safety” were the highest priority for civil immigration enforcement. Morton Prioritization Memorandum at 1. The director deemed

other undocumented immigrants, including “[r]ecent

illegal entrants” and “[a]liens who are fugitives or otherwise obstruct immigration controls” to be lower

enforcement priorities. Id. at 2. The director explained that “[t]he rapidly increasing number of criminal aliens who may come to ICE’s attention heightens

the need for ICE employees to exercise sound judgment and discretion consistent with these priorities

when conducting enforcement operations.” Id. at 4.

He also noted that “[p]articular care should be given

when dealing with . . . juveniles.” Id. By establishing

DACA to advance these carefully constructed priorities, the Secretary acted within his congressionally

conferred discretion to, among other things, “establish

such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority” under the INA, 8 U.S.C.

§ 1103(a)(3).

OLC’s 2014 memorandum further confirms

DACA’s validity. The memorandum noted that prior

to DACA’s implementation, OLC had concluded that a

deferred action policy like DACA “would be permissible, provided that immigration officials retained discretion to evaluate each application on an

individualized basis.” J.A. 827 n.8. Significantly,

DACA expressly guarantees that “requests for relief

. . . are to be decided on a case by case basis. DHS cannot provide assurance that relief will be granted in all

cases.” Pet. App. 99a. OLC also observed that “the

concerns animating [DACA] were consistent with the

types of concerns that have customarily guided the exercise of immigration enforcement discretion.” Id. at

42a. Thus, OLC recognized that DACA would be a

lawful exercise of the executive’s discretionary authority in immigration enforcement.

Moreover, in addition to Congress’s longstanding

general practice of sanctioning executive grants of deferred action, members of Congress affirmatively

called for the executive to exercise discretion regarding

certain individuals who were brought to the country as

children. In a 1999 letter to the attorney general and

the INS commissioner, 28 bipartisan members of Congress noted the “well-grounded” principle that the

“INS has prosecutorial discretion in the initiation or

termination of removal proceedings” and specifically

called on the executive to issue written guidelines and

“exercise . . . such discretion” in “[t]rue hardship

cases,” including those involving people “who came to

the United States when they were very young.” Letter

from Rep. Lamar Smith et al., to Hon. Janet Reno,

Att’y Gen., DOJ, and Hon. Doris M. Meissner, Comm’r,

INS (Nov. 4, 1999), in 76 Interpreter Releases, app. I,

at 1730-32 (Dec. 3, 1999). In sending this letter, members of Congress on both sides of the aisle recognized

that Congress had deliberately given the executive

broad discretion to grant deferred action, and this bipartisan group expressly encouraged the executive to

exercise that discretion with respect to the category of

individuals later covered by DACA.

In the period surrounding DACA’s establishment,

members of Congress on a bipartisan basis continued

to recognize the executive’s prerogative to establish eligibility criteria for deferred action. In 2010, Senator

Richard J. Durbin, then Assistant Majority Leader of

the Senate, and then-Senator Richard G. Lugar, Ranking Member of the Senate Foreign Relations Committee, wrote to the executive branch requesting deferred

action for young immigrants known as Dreamers. See

Press Release, Durbin, Lugar Ask Secretary Napolitano to Stop Deportations of Dream Act Students (Apr.

21,

2010),

https://www.durbin.senate.gov/newsroom/press-releases/durbin-lugar-ask-secretary-napolitano-to-stop-deportations-of-dream-act-students.

Shortly after the 2012 memorandum implementing

DACA was released, a group of 104 members of

Congress sent a follow-up letter to President Obama

praising the use of prosecutorial discretion in DACA,

which they noted deferred the removal of certain “outstanding young Americans.” 158 Cong. Rec. 11764

(daily ed. July 19, 2012) (statement of Rep. Gutiérrez).

These members of Congress emphasized that the “consensus legal opinion among experts” was that DACA

rested “on solid moral and legal ground,” and they

vowed to defend “the authority that [President

Obama], like past Presidents, can exercise to set [immigration] enforcement priorities and better protect

our neighborhoods and our nation.” Id.

Although bipartisan efforts to provide broader and

more permanent protections to Dreamers through new

legislation have thus far failed, see Pet’rs Br. 5 & n.2,

that fact has no bearing on DACA’s legality as an exercise of the discretion Congress has already conferred

on the executive in existing legislation. See United

States v. Craft, 535 U.S. 274, 287 (2002) (“[C]ongressional inaction lacks persuasive significance because

several equally tenable inferences may be drawn from

such inaction, including the inference that the existing

legislation already incorporated the offered change.”

(citation and internal quotation marks omitted)). As

this Court’s precedents confirm, and as Congress has

consistently reaffirmed through the legislation it has

passed, the executive branch’s authority to set rational

immigration enforcement priorities is well established. See Arizona, 567 U.S. at 394-95 (noting that

the federal government’s authority over immigration

“rests, in part, on the National Government’s . . . inherent power as sovereign to control and conduct relations with foreign nations”); Medellin, 554 U.S. at 765

(Breyer, J., dissenting) (acknowledging the “President’s responsibility for foreign affairs”); 6 U.S.C.

§ 202(5) (authorizing the executive to “[e]stablish[]

national immigration enforcement policies and priorities”).

As noted, moreover, the proposals for new legislation that Congress has considered would provide more

permanent and wide-ranging protections for Dreamers

than DACA afforded its recipients, and they would

have extended these protections to a broader class of

Dreamers. See, e.g., S. 1615, 115th Cong. (2017). The

fact that these proposals are not coextensive with

DACA further underscores why Congress’s failure to

pass them has no bearing on DACA’s legality. Indeed,

even if congressional inaction were a permissible consideration when assessing the legality of executive policies, no inference could be drawn here in either

direction, given that Congress has also repeatedly rejected efforts to terminate or defund DACA, see, e.g.,

H.R. 5160, 113th Cong. (2014); S. 2631, 113th Cong.

(2014). In short, Congress’s decision not to pass new

legislation that might affect DACA recipients (and others) is irrelevant to the legality of DACA itself. “The

search for significance in the silence of Congress is too

often the pursuit of a mirage.” Scripps-Howard Radio

v. F.C.C., 316 U.S. 4, 11 (1942).

Likewise, even though President Obama stated

that he intended for DACA to be a short-term measure

until Congress passed legislation to more fully protect

DACA recipients, see Pet’rs Br. 38; Pres. Barack

Obama, Remarks by the President on Immigration

(June 15, 2012) (“This is not a path to citizenship. It’s

not a permanent fix. This is a temporary stopgap

measure . . . .”), this subjective expectation did not alter the legal authority underpinning DACA, much less

set an expiration date on that legal authority. President Obama merely recognized that DACA did not confer a legal immigration status on recipients—an action

that would have fallen within Congress’s domain, see

Pet. App. 101a—and he encouraged Congress to legislate to more completely protect DACA recipients from

removal, even as the executive was providing available

legal protections through DACA in the meantime. Cf.

ICYMI: Speaker Ryan, Senator Hatch Urge Trump to

Keep

DACA,

fwd.us

(Sept.

2017),

https://www.fwd.us/news/speaker-ryan-senator-hatch

-urge-trump-keep-daca/ (quoting statement by thenSenator Orrin Hatch that he has “urged [President

Trump] not to rescind DACA” while recognizing that

“we also need a workable, permanent solution for individuals who entered our country unlawfully as children through no fault of their own” and that “that

solution must come from Congress”).

DACA therefore did what Congress legally authorized the executive to do: grant deferred action to certain qualified and “outstanding young Americans,” 158

Cong. Rec. 11764 (daily ed. July 19, 2012), so that immigration officers could instead focus their enforcement efforts and limited resources on higher priority

cases. See Supp. Pet. App. 56a (“In a world where the

government can remove only a small percentage of the

undocumented noncitizens present in this country in

any year, deferred action programs like DACA enable

DHS to devote much-needed resources to enforcement

priorities such as threats to national security, rather

than blameless and economically productive young

people with clean criminal records.”). Accordingly,

DACA was a lawful exercise of executive discretion.

II. THE TERMINATION OF DACA ON THE

GROUND THAT IT WAS UNLAWFUL

VIOLATED THE APA.

Despite the many explanations that Petitioners

now offer for DACA’s rescission, see, e.g., Pet’rs Br. 15,

what matters is the explanation the executive branch

offered at the time it terminated DACA—namely, that

it had concluded that DACA was unlawful, J.A. 877.

See Burlington Truck Lines, Inc. v. United States, 371

U.S. 156, 168-69 (1962) (“The courts may not accept

appellate counsel’s post hoc rationalizations for agency

action; [SEC v. Chenery Corp., 332 U.S. 194 (1947),]

requires that an agency’s discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself.”); Motor Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983)

(same). In his September 2017 letter advising then–

Acting Secretary of Homeland Security Elaine C. Duke

to end DACA, then–Attorney General Jefferson B. Sessions, III, asserted that “DACA was effectuated . . .

without proper statutory authority” and that “[s]uch

an open-ended circumvention of immigration laws was

an unconstitutional exercise of authority by the Executive Branch.” J.A. 877. He also referenced the DAPA

policy, which the Fifth Circuit had concluded was unlawful in a decision this Court affirmed by an equally

divided vote, and suggested that “it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Id. at 878. Acting

Secretary Duke’s memorandum formally rescinding

DACA the next day echoed and incorporated these reasons for the rescission. See Pet. App. 112a. It stated,

“Taking into consideration the Supreme Court’s and

the Fifth Circuit’s rulings in the ongoing [DAPA] litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012

DACA program should be terminated.” Id. at 117a.

Thus, the Administration ended DACA because it concluded that it was unlawful and would likely be enjoined if challenged in court.

For the reasons discussed above, however, DACA

was fully consistent with the nation’s immigration

laws and was a permissible—and, indeed, sensible—

exercise of the discretion Congress conferred on the executive to implement those laws. Accordingly, the decision to terminate DACA on the ground that it was

unlawful was itself “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law,” in

violation of the APA. 5 U.S.C. § 706(2)(A).

Contrary to the executive officials’ assertions,

DACA is also materially distinguishable from DAPA,

which the Fifth Circuit addressed in Texas v. United

States, 809 F.3d 134. The Fifth Circuit there upheld a

preliminary injunction against DAPA on the ground

that DHS likely lacked the authority to implement it,

and the Department therefore likely violated the APA

in doing so. See id. at 146, 178-86. Although the Fifth

Circuit noted in its decision some “important similarities” between DACA and DAPA, it also emphasized

that “DACA and DAPA are not identical,” id. at 174,

and that “any extrapolation from DACA must be done

carefully,” id. at 173.

Illustrating one such distinction, the Fifth Circuit

based its DAPA decision in part on its determination

that “Congress has enacted an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status.” Id. at

179; see id. at 180 n.167 (citing 8 U.S.C.

§§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255).

The Fifth Circuit noted with disapproval that “DAPA

would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration status without complying with any of the

[enumerated] requirements . . . that Congress has deliberately imposed.” Id. at 180. This analysis of DAPA

was flawed,3 but it is also inapposite here because

DACA is markedly different from DAPA in this regard.

No legislation provides a framework for young people

who were brought to the United States as children

without documentation to receive lawful status or to

be considered lawfully present in the country, and

therefore DACA does not even plausibly circumvent

any established legislative scheme.

Another important difference the court identified

between the policies was that “[e]ligibility for DACA

was restricted to a younger and less numerous population” than was the case for DAPA. Id. at 174. According to the Fifth Circuit, approximately “1.2 million

persons qualif[ied] for DACA” and only “approximately

636,000 applications were approved through 2014.”

Id. at 147; see id. at 174 n.138. By 2018, that number

was still only 823,815. See U.S. Citizenship and Immigration Services, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, at 1

3 The Fifth Circuit erred by conflating two distinct concepts:

“lawful immigration classification” and “lawful presence.” Texas,

809 F.3d at 179-80. While the former confers significant rights

and benefits, the latter simply means that one’s physical presence

no longer exposes him or her to immigration enforcement consequences that escalate over time. See, e.g., 8 U.S.C. § 1182(a)(9)(B)

(making admissibility determinations depend on how long an alien has been unlawfully present in the United States). Although

the Fifth Circuit acknowledged the existence of this distinction,

Texas, 809 F.3d at 180 (“DAPA does not confer the full panoply of

benefits that a visa gives . . . .”); id. (“LPR status is more substantial than is lawful presence . . . .”); id. at 184 (“DAPA awards lawful presence to persons who have never had a legal status and

may never receive one.” (footnote omitted)), it nevertheless

brushed it aside—declaring with little explanation that Congress’s decision to make lawful immigration classifications available in certain defined situations precluded the executive from

allowing other individuals to be lawfully present through a grant

of deferred action, see id. at 179-82, 186.

(Nov. 30, 2018), https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20

Types/DACA/DACA_FY19_Q1_Data.pdf. By contrast,

“4.3 million [persons] would [have] be[en] eligible for

lawful presence pursuant to DAPA.” Texas, 809 F.3d

at 148; see id. at 174 n.138.

Regardless, the Fifth Circuit’s conclusion about

DAPA’s legality was wrong, undermining any persuasive value the decision might have in assessing the legality of DACA (and the attendant illegality of its

rescission). Although the court purported to disclaim

reliance on the expressio unius est exclusio alterius

canon of statutory construction, id. at 182, it reasoned

that congressional acknowledgement of deferred action’s appropriateness in some circumstances precludes the executive branch from granting deferred

action in other circumstances, as it did in DAPA, see

id. at 179-81. See generally Marx v. Gen. Revenue

Corp., 568 U.S. 371, 392 (2013) (explaining that the expressio unius canon “instructs that when Congress includes one possibility in a statute, it excludes another

by implication”). In other words, the court reasoned

that because “the INA expressly and carefully provides

legal designations allowing defined classes of aliens to

be lawfully present and confers eligibility for ‘discretionary relief allowing [aliens in deportation proceedings] to remain in the country,’” the INA deliberately

does not authorize grants of deferred action to others,

including those eligible for DAPA. Texas, 809 F.3d at

179 (alterations in original) (quoting Arizona, 567 U.S.

at 396); see id. (“Entirely absent from those specific

classes is the group of 4.3 million illegal aliens who

would be eligible for lawful presence under DAPA were

it not enjoined.”).

This Court, however, has repeatedly held that “the

canon expressio unius est exclusio alterius does not apply to every statutory listing or grouping; it has force

only when the items expressed are members of an ‘associated group or series,’ justifying the inference that

items not mentioned were excluded by deliberate

choice, not inadvertence.” Barnhart v. Peabody Coal

Co., 537 U.S. 149, 168 (2003) (quoting United States v.

Vonn, 535 U.S. 55, 65 (2002)). As the court of appeals

explained in one of the decisions below, the INA provisions allowing for deferred action were not collectively

included in the original statute. See Supp. Pet. App.

53a. Rather, Congress has added them piecemeal over

time in separate amendments to the INA as different

situations arose. See id. Accordingly, as many amici

well know from serving in Congress while those

amendments were drafted, debated, and passed, Congress did not intend to preclude the executive from

granting deferred action in other situations besides

those expressly mentioned in the amendments. And,

as explained above, the fact that Congress has not yet

enacted such an amendment permanently protecting

DACA recipients and others from removal does not alter the fact that Congress has given the executive

broad discretion to provide some relief in the meantime.

In short, because DACA was a lawful exercise of executive discretion, the decision to terminate it on the

ground that it was unlawful was itself in violation of

the APA.

CONCLUSION

For the foregoing reasons, the judgments of the

Ninth Circuit and the District Court for the District of

Columbia, as well as the orders of the Eastern District

of New York, should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

DAYNA J. ZOLLE**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

October 4, 2019

* Counsel of Record

** Not admitted in

D.C.; supervised by

principals of the firm

APPENDIX:

LIST OF AMICI

U.S. Senate

Durbin, Richard J.

Senator of Illinois

Schumer, Charles E.

Senator of New York

Leahy, Patrick J.

Senator of Vermont

Feinstein, Dianne

Senator of California

Murray, Patty

Senator of Washington

Wyden, Ron

Senator of Oregon

Reed, Jack

Senator of Rhode Island

Carper, Thomas R.

Senator of Delaware

Stabenow, Debbie

Senator of Michigan

Cantwell, Maria

Senator of Washington

LIST OF AMICI - cont’d

Menendez, Robert

Senator of New Jersey

Cardin, Benjamin L.

Senator of Maryland

Sanders, Bernard

Senator of Vermont

Brown, Sherrod

Senator of Ohio

Casey, Robert P., Jr.

Senator of Pennsylvania

Klobuchar, Amy

Senator of Minnesota

Whitehouse, Sheldon

Senator of Rhode Island

Tester, Jon

Senator of Montana

Udall, Tom

Senator of New Mexico

Shaheen, Jeanne

Senator of New Hampshire

Warner, Mark R.

Senator of Virginia

LIST OF AMICI - cont’d

Merkley, Jeff

Senator of Oregon

Bennet, Michael F.

Senator of Colorado

Gillibrand, Kirsten E.

Senator of New York

Manchin, Joe, III

Senator of West Virginia

Coons, Christopher A.

Senator of Delaware

Blumenthal, Richard

Senator of Connecticut

Schatz, Brian

Senator of Hawai‘i

Baldwin, Tammy

Senator of Wisconsin

Murphy, Christopher

Senator of Connecticut

Hirono, Mazie K.

Senator of Hawaiʻi

Heinrich, Martin

Senator of New Mexico

LIST OF AMICI - cont’d

King, Angus S., Jr.

Senator of Maine

Kaine, Tim

Senator of Virginia

Warren, Elizabeth

Senator of Massachusetts

Markey, Edward J.

Senator of Massachusetts

Booker, Cory A.

Senator of New Jersey

Peters, Gary C.

Senator of Michigan

Van Hollen, Chris

Senator of Maryland

Duckworth, Tammy

Senator of Illinois

Hassan, Margaret Wood

Senator of New Hampshire

Harris, Kamala D.

Senator of California

Cortez Masto, Catherine

Senator of Nevada

LIST OF AMICI - cont’d

Smith, Tina

Senator of Minnesota

Rosen, Jacky

Senator of Nevada

Hart, Gary

Former Senator of Colorado

Levin, Carl

Former Senator of Michigan

Reid, Harry

Former Senator of Nevada

Udall, Mark

Former Senator of Colorado

U.S. House of Representatives

Lofgren, Zoe

Representative of California

Nadler, Jerrold

Representative of New York

Castro, Joaquin

Representative of Texas

Pelosi, Nancy

Representative of California

Hoyer, Steny H.

Representative of Maryland

LIST OF AMICI - cont’d

Clyburn, James E.

Representative of South Carolina

Aguilar, Pete

Representative of California

Allred, Colin Z.

Representative of Texas

Barragán, Nanette Diaz

Representative of California

Bass, Karen

Representative of California

Beyer, Donald S., Jr.

Representative of Virginia

Blumenauer, Earl

Representative of Oregon

Brown, Anthony

Representative of Maryland

Brownley, Julia

Representative of California

Carbajal, Salud O.

Representative of California

Cárdenas, Tony

Representative of California

LIST OF AMICI - cont’d

Carson, André

Representative of Indiana

Casten, Sean

Representative of Illinois

Castor, Kathy

Representative of Florida

Chu, Judy

Representative of California

Cicilline, David N.

Representative of Rhode Island

Cisneros, Gilbert R., Jr.

Representative of California

Clarke, Yvette D.

Representative of New York

Cohen, Steve

Representative of Tennessee

Correa, J. Luis

Representative of California

Costa, Jim

Representative of California

Cox, TJ

Representative of California

LIST OF AMICI - cont’d

Crow, Jason

Representative of Colorado

Cummings, Elijah E.

Representative of Maryland

Davis, Danny K.

Representative of Illinois

Davis, Susan A.

Representative of California

DeFazio, Peter A.

Representative of Oregon

DeGette, Diana

Representative of Colorado

DeLauro, Rosa L.

Representative of Connecticut

DelBene, Suzan K.

Representative of Washington

Demings, Val Butler

Representative of Florida

DeSaulnier, Mark

Representative of California

Deutch, Theodore E.

Representative of Florida

LIST OF AMICI - cont’d

Engel, Eliot L.

Representative of New York

Escobar, Veronica

Representative of Texas

Eshoo, Anna G.

Representative of California

Espaillat, Adriano

Representative of New York

Evans, Dwight

Representative of Pennsylvania

Foster, Bill

Representative of Illinois

Gabbard, Tulsi

Representative of Hawai‘i

Gallego, Ruben

Representative of Arizona

Garamendi, John

Representative of California

García, Jesús G. “Chuy”

Representative of Illinois

Garcia, Sylvia R.

Representative of Texas

10A

LIST OF AMICI - cont’d

Gomez, Jimmy

Representative of California

Green, Al

Representative of Texas

Grijalva, Raúl M.

Representative of Arizona

Haaland, Debra A.

Representative of New Mexico

Harder, Josh

Representative of California

Hayes, Jahana

Representative of Connecticut

Hill, Katie

Representative of California

Huffman, Jared

Representative of California

Jackson Lee, Sheila

Representative of Texas

Jayapal, Pramila

Representative of Washington

Jeffries, Hakeem

Representative of New York

11A

LIST OF AMICI - cont’d

Johnson, Henry C. “Hank,” Jr.

Representative of Georgia

Keating, William R.

Representative of Massachusetts

Khanna, Ro

Representative of California

Kildee, Daniel T.

Representative of Michigan

Lawrence, Brenda L.

Representative of Michigan

Lee, Barbara

Representative of California

Levin, Andy

Representative of Michigan

Lewis, John

Representative of Georgia

Lieu, Ted W.

Representative of California

Lowenthal, Alan S.

Representative of California

Lowey, Nita M.

Representative of New York

12A

LIST OF AMICI - cont’d

Matsui, Doris O.

Representative of California

McCollum, Betty

Representative of Minnesota

McEachin, A. Donald

Representative of Virginia

McGovern, James P.

Representative of Massachusetts

McNerney, Jerry

Representative of California

Meeks, Gregory W.

Representative of New York

Meng, Grace

Representative of New York

Moore, Gwen

Representative of Wisconsin

Napolitano, Grace F.

Representative of California

Neguse, Joe

Representative of Colorado

Norton, Eleanor Holmes

Delegate of District of Columbia

13A

LIST OF AMICI - cont’d

Ocasio-Cortez, Alexandria

Representative of New York

Panetta, Jimmy

Representative of California

Peters, Scott H.

Representative of California

Pocan, Mark

Representative of Wisconsin

Porter, Katie

Representative of California

Pressley, Ayanna

Representative of Massachusetts

Quigley, Mike

Representative of Illinois

Raskin, Jamie

Representative of Maryland

Rice, Kathleen M.

Representative of New York

Richmond, Cedric L.

Representative of Louisiana

Rouda, Harley

Representative of California

14A

LIST OF AMICI - cont’d

Roybal-Allard, Lucille

Representative of California

Rush, Bobby L.

Representative of Illinois

Sánchez, Linda T.

Representative of California

Schakowsky, Janice D.

Representative of Illinois

Schiff, Adam B.

Representative of California

Schneider, Bradley Scott

Representative of Illinois

Serrano, José E.

Representative of New York

Sires, Albio

Representative of New Jersey

Smith, Adam

Representative of Washington

Soto, Darren

Representative of Florida

Stanton, Greg

Representative of Arizona

15A

LIST OF AMICI - cont’d

Swalwell, Eric

Representative of California

Takano, Mark

Representative of California

Thompson, Bennie G.

Representative of Mississippi

Titus, Dina

Representative of Nevada

Tlaib, Rashida

Representative of Michigan

Torres, Norma J.

Representative of California

Vargas, Juan

Representative of California

Vela, Filemon

Representative of Texas

Velázquez, Nydia M.

Representative of New York

Welch, Peter

Representative of Vermont

Yarmuth, John A.

Representative of Kentucky

16A

LIST OF AMICI - cont’d

Gonzalez, Charles

Former Representative of Texas

Holtzman, Elizabeth

Former Representative of New York

LaHood, Ray

Former Representative of Illinois

Morella, Constance

Former Representative of Maryland

Schneider, Claudine

Former Representative of Rhode Island

Skaggs, David E.

Former Representative of Colorado

Smith, Peter

Former Representative of Vermont

Waxman, Henry A.

Former Representative of California

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.