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

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

In the

Supreme Court of the United States

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

Petitioners,

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL,

Respondents.

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

AL.,

Petitioners,

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, ET AL.,

Respondents.

KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL.,

Petitioners,

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit and Writs of Certiorari

Before Judgment to the United States Courts of Appeal

for the District of Columbia and Second Circuits

BRIEF OF NATIONAL SCHOOL BOARDS

ASSOCIATION ET AL. AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

FRANCISCO M. NEGRÓN, JR. RICHARD P. BRESS

Chief Legal Officer

Counsel of Record

NATIONAL SCHOOL BOARDS SAMIR DEGER-SEN

JESSICA SABA

ASSOCIATION

1680 Duke St., FL 2

LATHAM & WATKINS LLP

555 11th St., NW, Ste. 1000

Alexandria, VA 22314

Washington, DC 20004

(703) 838-6722

(202) 637-2200

richard.bress@lw.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

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

INTERESTS OF AMICI CURIAE ..............................1

SUMMARY OF ARGUMENT.....................................4

ARGUMENT ...............................................................7

I.

THE RESCISSION OF DACA MUST

SATISFY NORMAL APA STANDARDS .............7

A. Reasoned decision-making requires that

an agency’s rationale be adequately

explained, that any change in policy be

acknowledged, and that reliance

interests are accounted for.............................8

B. The requirements of reasoned decisionmaking are fully applicable when an

agency’s stated basis for its decision is a

change in its interpretation of the law. .......10

C. A court’s independent assessment of

whether an agency’s policy is unlawful is

inappropriate. ...............................................12

II. THE DECISION TO RESCIND DACA WAS

ARBITRARY AND CAPRICIOUS .....................15

A. DHS failed to adequately explain why it

believes DACA is unlawful. .........................16

1. DHS failed to explain why there was

no “statutory authority” for DACA. ......19

ii

TABLE OF CONTENTS—Continued

Page

2. DHS failed to acknowledge or

account for the differences between

DACA and DAPA. ..................................20

3. DHS’s citation to the Fifth Circuit’s

DAPA ruling is inadequate to justify

its decision to rescind DACA. ................21

4. The Supreme Court’s affirmance of

the Fifth Circuit’s DAPA ruling has

no precedential value. ............................23

5. DHS

fails

to

identify

any

constitutional defect of DACA. ..............24

B. DHS’s post-hoc explanations should be

disregarded and, in any event, do not

meet the requirements for reasoned

decision-making............................................24

C. DHS failed to acknowledge its changed

policy position or provide reasons for

that change. ..................................................31

D. DHS did not adequately take into

account reliance interests. ...........................32

CONCLUSION ..........................................................37

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Advocates for Highway & Auto Safety v.

Federal Motor Carrier Safety

Administration,

429 F.3d 1136 (D.C. Cir. 2005) ..............................7

Alpharma, Inc. v. Leavitt,

460 F.3d 1 (D.C. Cir. 2006) ..................................25

Altera Corp. & Subsidiaries v.

Commissioner,

926 F.3d 1061 (9th Cir. 2019)..............................33

Amerijet International, Inc. v. Pistole,

753 F.3d 1343 (D.C. Cir. 2014) ............................16

Animal Legal Defense Fund, Inc. v. Perdue,

872 F.3d 602 (D.C. Cir. 2017) ..............................12

Arizona Dream Act Coalition v. Brewer,

855 F.3d 957 (9th Cir. 2017), cert.

denied, 138 S. Ct. 1279 (2018) .............................19

Bowman Transportation, Inc. v. ArkansasBest Freight System, Inc.,

419 U.S. 281 (1974) ................................ 6, 9, 18, 23

Catholic Healthcare West v. Sebelius,

748 F.3d 351 (D.C. Cir. 2014) ........................12, 13

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Checkosky v. SEC,

23 F.3d 452 (D.C. Cir. 1994) ................................30

Citizens to Preserve Overton Park, Inc. v.

Volpe,

401 U.S. 402 (1971) ..........................................7, 25

East Texas Medical Center-Athens v. Azar,

337 F. Supp. 3d 1 (D.D.C. 2018) ..........................11

Encino Motorcars, LLC v. Navarro,

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

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .......................... 5, 9, 10, 31, 33

Food Marketing Institute v. ICC,

587 F.2d 1285 (D.C. Cir. 1978) ......................26, 31

Hispanic Affairs Project v. Acosta,

263 F. Supp. 3d 160 (D.D.C. 2017), aff’d

in part, rev’d in part, 901 F.3d 378 (D.C.

Cir. 2018)..............................................................32

International Union, United Mine Workers

of America v. United States DOL,

358 F.3d 40 (D.C. Cir. 2004) ................................22

Interstate Natural Gas Association of

America v. FERC,

617 F.3d 504 (D.C. Cir. 2010) ................................5

v

TABLE OF AUTHORITIES—Continued

Page(s)

Jicarilla Apache Nation v. United States

DOI,

613 F.3d 1112 (D.C. Cir. 2010) ............................32

Judulang v. Holder,

565 U.S. 42 (2011) ................................................12

Kimble v. Marvel Entertainment, LLC,

135 S. Ct. 2401 (2015)............................................8

LePage’s 2000, Inc. v. Postal Regulatory

Commission,

642 F.3d 225 (D.C. Cir. 2011) ..............................32

Manin v. NTSB,

627 F.3d 1239 (D.C. Cir. 2011) ............................31

Michigan v. EPA,

135 S. Ct. 2699 (2015)......................................5, 27

Motor Vehicle Manufacturers Association of

the United States, Inc. v. State Farm

Mutual Automobile Insurance Co.,

463 U.S. 29 (1983) .......................... 9, 10, 24, 27, 31

National Cable & Telecommunications

Association v. Brand X Internet Services,

545 U.S. 967 (2005) ................................................9

Neil v. Biggers,

409 U.S. 188 (1972) ..............................................23

Occidental Petroleum Corp. v. SEC,

873 F.2d 325 (D.C. Cir. 1989) ................................9

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Organized Vill. of Kake v. U.S. DOA,

795 F.3d 956 (9th Cir. 2015)................................27

Pension Benefit Guaranty Corp. v. LTV

Corp.,

496 U.S. 633 (1990) ..............................................25

Perez v. Mortgage Bankers Association,

135 S. Ct. 1199 (2015)..........................................10

Ramaprakash v. FAA,

346 F.3d 1121 (D.C. Cir. 2003) ............................32

Regents of the University of California v.

U.S. DHS,

908 F.3d 476 (9th Cir. 2018)................................21

Reno v. American-Arab Anti-Discrimination

Committee,

525 U.S. 471 (1999) ..............................................28

Republic Airline Inc. v. United States DOT

669 F.3d 296 (D.C. Cir. 2012) ................................9

SEC v. Chenery Corp.,

332 U.S. 194 (1947) .................................. 12, 13, 14

Select Specialty Hospital-Bloomington, Inc.

v. Burwell,

757 F.3d 308 (D.C. Cir. 2014) .............. 5, 20, 28, 30

Smiley v. Citibank (South Dakota), N.A.,

517 U.S. 735 (1996) ..............................................36

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Texas v. United States,

809 F.3d 134 (5th Cir. 2015), aff’d, 136

S. Ct. 2271 (2016)............................... 17, 20, 21, 24

Tourus Records, Inc. v. Drug Enforcement

Administration,

259 F.3d 731 (D.C. Cir. 2001) ........................11, 19

Transcon. Gas Pipe Line Corp. v. FERC,

54 F.3d 893 (D.C. Cir. 1995) ................................15

Trump v. International Refugee Assistance

Project,

137 S. Ct. 2080 (2017)..........................................24

United Airlines, Inc. v. FERC,

827 F.3d 122 (D.C. Cir. 2016) ................................6

Water Quality Insurance Syndicate v.

United States,

225 F. Supp. 3d 41 (D.D.C. 2016) ........................12

STATUTES

5 U.S.C. § 706(2)(A) .....................................................7

6 U.S.C. § 202(5)..................................................19, 29

8 U.S.C. § 1103(a)......................................................19

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)) ......................................30

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Pub. L. No. 107-296, § 402(5), 116 Stat.

2135, 2178 (codified at 6 U.S.C. § 202(5)) ...........28

Pub. L. No. 110-457, § 204, 122 Stat. 5044,

5060 (codified at 8 U.S.C. § 1227(d)(1)) ..............30

OTHER AUTHORITIES

Moriah Balingit, As DACA winds down,

20,000 educators are in limbo, Wash.

Post (Oct. 25, 2017),

https://www.washingtonpost.com/local/e

ducation/as-daca-winds-down-20000educators-are-inlimbo/2017/10/25/4cd36de4-b9b3-11e7a908-a3470754bbb9_story.html ..........................35

Jill Barshay, Counting DACA students,

Hechinger Report (Sept. 11, 2017),

https://hechingerreport.org/countingdaca-students/ ......................................................35

David Bier, Rescinding DACA, The Dream

Act, Would Impose Massive Costs on

Employers, Newsweek.com (Sept. 5,

2017)

https://www.newsweek.com/rescindingdreamers-act-would-impose-massivecosts-employers-659813 .......................................34

ix

TABLE OF AUTHORITIES—Continued

Page(s)

The Department of Homeland Security’s

Authority to Prioritize Removal of

Certain Aliens Unlawfully Present in

the United States and to Defer Removal

of Others (Nov. 19, 2014),

https://www.justice.gov/file/179206/

download ..................................................19, 28, 31

Roberto G. Gonzales et al., Center for

American Progress, Taking Giant Leaps

Forward: Experiences of a Range of

DACA Beneficiaries at the 5-Year Mark

(June 22, 2017),

https://cdn.americanprogress.org/content

/ uploads/2017/06/21142115/DACAat5brief2.pdf ........................................................33, 34

Letter from Jefferson B. Sessions III, U.S.

Attorney General, to Acting Secretary

Elaine Duke (Sept. 4, 2017),

https://www.dhs.gov/sites/default/files/p

ublications/17_0904_DOJ_AG-letterDACA.pdf ..................................... 17, 18, 19, 20, 24

Memorandum from DHS Secretary Kirstjen

M. Nielsen (June 22, 2018),

https://www.dhs.gov/sites/default/

files/publications/18_0622_S1_Memoran

dum_DACA.pd ............................. 25, 26, 27, 28, 29

x

TABLE OF AUTHORITIES—Continued

Page(s)

Memorandum from Elaine Duke, Acting

Secretary, DHS, 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), https://www.dhs.gov/news/

2017/09/05/memorandum-rescissiondaca .............................................. 16, 17, 21, 23, 24

Memorandum from Janet Napolitano,

Secretary of Homeland Security,

Exercising Prosecutorial Discretion with

Respect to Individuals Who Came to the

United States as Children (June 15,

2012), https://www.dhs.gov/sites/default/

files/publications/s1-exercisingprosecutorial-discretion-individualswho-came-to-us-as-children.pdf ..........................29

David Nakamura, How many people will

Trump’s DACA rollback affect? About

100,000 fewer than initially reported,

Wash. Post (Sept. 7, 2017),

https://www.washingtonpost.com/news/p

ost-politics/wp/2017/09/07/how-manypeople-will-trumps-daca-rollback-affectabout-100000-fewer-than-initiallyreported/ ...............................................................35

xi

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Citizenship & Immigration Services,

Number of Form I-821D, Consideration

of Deferred Action for Childhood

Arrivals, by Fiscal Year, Quarter,

Intake, Biometrics and Case Status

Fiscal Year 2012–2019 (Nov. 30, 2018),

https://www.uscis.gov/sites/default/files/

USCIS/Resources/Reports%20and%20

Studies/Immigration%20Forms%20Data/

All%20Form%20Types/DACA/DACA_

FY19_Q1_Data.pdf ..............................................29

Updating Regulations Issued Under the

Fair Labor Standards Act, 76 Fed. Reg.

18,832-01 (Apr. 5, 2011) ......................................11

Jie Zong et al., Migration Policy Inst., A

Profile of Current DACA Recipients by

Education, Industry, and Occupation

(2017), https://www.migrationpolicy.org/

research/profile-current-daca-recipientseducation-industry-and-occupation ....................35

INTERESTS OF AMICI CURIAE1

Amici curiae are educational organizations deeply

concerned about the significant consequences that

state and local government agencies will suffer if this

Court does not apply its usual standards of judicial

review under the Administrative Procedure Act

(“APA”) to hold that the actions of the Department of

Homeland Security (“DHS”) are arbitrary and

capricious. As entities involved in the provision of

public education, amici’s members are impacted by

complex federal agency regulations and actions.

Amici thus have a strong interest in ensuring that

federal agencies respect statutory and regulatory

limitations and engage in reasoned decision-making,

so as not to issue regulations or take actions that

unnecessarily harm state and local educational

interests. Judicial review ensures that agencies

provide transparency to and allow for meaningful

participation by organizations such as amici.

Amici have grave concerns about DHS’s decision

to rescind Deferred Action for Childhood Arrivals

(“DACA”). This decision would have severe

ramifications and devastating costs for public

education and the students it serves—impacting

thousands of school districts and their communities.

The following education associations respectfully

submit this amici curiae brief in support of

respondents:

1

The parties filed blanket consents to the filing of briefs

amici curiae. No counsel for a party authored this brief in whole

or part; and no such counsel, party, or other person or entity—

other than amici and their counsel—made a monetary

contribution intended to fund the preparation or submission of

this brief.

2

The National School Boards Association

(“NSBA”), founded in 1940, is a non-profit

organization representing state associations of school

boards across the country. Through its member state

associations, NSBA represents over 90,000 school

board members who govern approximately 13,800

local school districts serving nearly 50 million public

school students. NSBA regularly represents its

members’ interests before Congress and federal and

state courts and has participated as amicus curiae in

numerous cases before this Court. NSBA’s mission is

to promote equity and excellence in public education

through school board leadership.

NSBA is

particularly concerned about the ramifications for

public education and the students it serves that will

result from the rescission of DACA.

The School Superintendents Association

(“AASA”) represents over 13,000 school system

leaders and advocates. For over 150 years, AASA has

advocated for the highest quality public education for

all students, and provided programming to develop

and support school system leaders nationwide. The

Nation’s superintendents and the districts and

students they represent would be harmed by the

rescission of DACA. As the largest employer in many

communities, school districts will be impacted by the

cost of this reversal and it will hinder their ability to

provide high quality educational opportunities to

children they educate.

The National Association of Secondary

School Principals (“NASSP”) is the leading

organization of and voice for principals and other

school leaders across the Nation. NASSP seeks to

transform education through school leadership,

recognizing that the fulfillment of each student’s

3

potential relies on great leaders in every school

committed to the success of each student. NASSP

believes that each child is entitled to an excellent

public school education, regardless of their

immigration status.

The American School Counselor Association

(“ASCA”) represents more than 36,000 school

counseling professionals. School counselors promote

equal opportunity, a safe and nurturing environment,

and respect for all individuals regardless of

citizenship status, including undocumented students

and students with undocumented family members,

understanding that this population faces unique

stressors. School counselors work to eliminate

barriers impeding student development and

achievement, and help today’s students become

tomorrow’s productive members of society.

4

SUMMARY OF ARGUMENT

For the past half century, as the administrative

state has grown more complex and increasingly

pervasive, Congress and this Court have cabined the

vast power of executive agencies with one

fundamental check: that an agency must adequately

explain its actions. The government’s position in this

case is a frontal attack on that basic requirement.

Since DACA was established in 2012, the policy

has been relied upon by hundreds of thousands of

residents who entered the United States as children,

have no criminal records, and meet various

educational or military service requirements, to apply

for two-year renewable periods of deferred action. On

September 5, 2017, DHS rescinded DACA on the

ground that the agency believed the policy was

unlawful.

But the entirety of the agency’s

explanation for that decision was a cross-reference to

a threadbare, single-paragraph statement by the

Attorney General, which did not cite any statutory or

constitutional provision, did not acknowledge the

government’s change in position, and did not even

mention the reliance interests engendered by the

prior policy.

Under the ordinary rules governing agency

decision-making, that explanation was manifestly

deficient. This case can and should be resolved on

that ground, without any need for this Court to

address either the agency’s substantive discretion to

revoke DACA or the legality of the DACA program

itself.

As this Court has recognized time and again, the

APA requires that “[n]ot only must an agency’s

decreed result be within the scope of its lawful

5

authority, but the process by which it reaches that

result must be logical and rational.” Michigan v.

EPA, 135 S. Ct. 2699, 2706 (2015) (emphasis added)

(citation omitted). Even when a court has “no reason

to doubt” an agency’s authority to take a challenged

action, the action must be vacated if the court “cannot

discern” why the agency made the decision it did.

Select Specialty Hosp.-Bloomington, Inc. v. Burwell,

757 F.3d 308, 314 (D.C. Cir. 2014). Furthermore,

when an agency changes position, it must “display

awareness” of that change and “show that there are

good reasons for the new policy.” FCC v. Fox

Television Stations, Inc., 556 U.S. 502, 515 (2009).

And when the agency’s prior position has “engendered

serious reliance interests,” those interests “must be

taken into account.” Encino Motorcars, LLC v.

Navarro, 136 S. Ct. 2117, 2126 (2016) (emphasis

added) (citation omitted). Here, the whiplash from

this dramatic shift in executive branch policy will, as

amici can attest, have a devastating impact not only

on the young people who have come to rely on DACA,

but on schools, school communities and countless

other educational and social institutions that

depended on the stability of the agency’s

interpretation.

The APA’s procedural requirements stand apart

from whether the agency’s decision was substantively

reasonable or even correct. A court assessing a FERC

ratemaking decision, for example, evaluates not only

whether the particular rate is reasonable, but also the

quality of the agency’s explanation for why it

approved the particular rate. Interstate Nat. Gas

Ass’n of Am. v. FERC, 617 F.3d 504, 508 (D.C. Cir.

2010). Even if the figure approved is reasonable, that

does not immunize the agency’s decision from legal

6

challenge if its explanation is inadequate. See United

Airlines, Inc. v. FERC, 827 F.3d 122, 131 (D.C. Cir.

2016).

The subject matter is different but the same rules

apply where, as here, an agency purports to act based

on its belief that a particular course of action is

unlawful. Encino Motorcars, 136 S. Ct. at 2125. The

question for a reviewing court is not whether the

agency’s view of the law is in fact correct; rather, it is

whether the agency has explained its view of the law

with sufficient clarity so the “path” to its conclusion

may reasonably be “discerned.” Bowman Transp.,

Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281,

285-86 (1974).

Irrespective of the ultimate

correctness of an agency’s legal view, if the proffered

explanation is inadequate, its decision must be

vacated. Encino Motorcars, 136 S. Ct. at 2127; United

Airlines, Inc., 827 F.3d at 131.

Accordingly, this case provides no occasion to

assess the ultimate legality of DACA. Rather, this

Court can and should hold that DACA’s rescission

was invalid because DHS plainly failed to adequately

explain its legal position. To hold otherwise would be

to fashion a dramatically lower standard of judicial

review for agencies when they invoke putative legal

rationales for their decisions than when they invoke

other rationales. And that, in turn, would create

incentives for agencies to invoke the law as a mask for

their policy preferences, shirk responsibility for the

impact of their decisions, and ultimately shift public

accountability onto the federal courts. That result

would be inconsistent with the proper division of

responsibility in our constitutional order and with

core separation of powers principles. The decision of

DHS should be vacated.

7

ARGUMENT

I. THE RESCISSION OF DACA MUST SATISFY

NORMAL APA STANDARDS

Under the APA, a reviewing court must “hold

unlawful and set aside agency action . . . found to

be . . . arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). In determining whether an agency

decision is lawful, a court must engage in a “searching

and careful” inquiry of whether the agency considered

the relevant factors and whether a clear error of

judgment was made. Citizens to Pres. Overton Park,

Inc. v. Volpe, 401 U.S. 402, 416 (1971). “[U]nsupported

agency action normally warrants vacatur . . . .”

Advocates for Highway & Auto Safety v. Fed. Motor

Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir.

2005).

The APA’s requirement of reasoned decisionmaking imposes three core requirements on an

agency that are relevant here. First, agency action

must be adequately explained, such that the agency’s

path to its decision can be reasonably discerned.

Second, an agency must display awareness of any

change from its prior position, and explain the basis

of that change. Third, the agency must take account

of the reliance interests created by an existing policy.

A failure to meet any of these three requirements

justifies a finding that the agency’s decision is

arbitrary and capricious.

These principles apply with full force when an

agency’s purported explanation is that it is compelled

to act by law. In such circumstances, an agency must

explain its view of the law in sufficient detail to

provide assurance that the result was the product of

8

reasoned decision-making. And it must account for

any prior conflicting legal interpretations, and any

reliance interests created by those interpretations.

Indeed, because stability of interpretation is expected

in the law, it is especially important in the legal

context that changes in interpretation are explained

and reliance interests accounted for. See Encino

Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2127

(2016); cf. Kimble v. Marvel Entm’t, LLC, 135 S. Ct.

2401, 2409 (2015) (noting the importance of

“evenhanded,

predictable,

and

consistent

development” of legal interpretations because of the

“reliance” they engender (citation omitted)).

Finally, regardless of the nature of an agency’s

rationale—whether it be driven by policy, technical

factors, or law—a reviewing court may not substitute

its own alternative explanation for the one actually

proffered by the agency itself. Thus, even if a court is

inclined to think that an agency’s legal conclusion was

correct, it cannot affirm the agency’s action if the

agency’s own explanation is deficient. Instead, the

court must remand for the agency to explain its

reasoning. In that posture, the ultimate legality of

the policy would be beyond the scope of the court’s

review.

A.

Reasoned decision-making requires that

an agency’s rationale be adequately

explained, that any change in policy be

acknowledged,

and

that

reliance

interests are accounted for.

The most basic procedural requirement of

administrative rulemaking is that an agency “give

adequate reasons for its decisions.”

Encino

Motorcars, 136 S. Ct. at 2125. This means that an

9

agency must “articulate a satisfactory explanation for

its action including a ‘rational connection between the

facts found and the choice made.’” Motor Vehicle

Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted). An

agency rule is arbitrary and capricious if the agency

has “entirely failed to consider an important aspect of

the problem [or] offered an explanation for its decision

that runs counter to the evidence before the agency.”

Id. On the other hand, an agency satisfactorily

explains a decision when its decision-making “path

may reasonably be discerned” from the explanation

provided. Bowman Transp., Inc. v. Arkansas-Best

Freight Sys., Inc., 419 U.S. 281, 285-86 (1974); see also

Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 344

(D.C. Cir. 1989) (an agency must provide “a decision

that permits the reviewing court to trace the path of

the agency’s decisionmaking process”).

Agencies must also provide a reasoned

explanation for any change in policy, including a

change based on a purely legal rationale. Encino

Motorcars, 136 S. Ct. at 2125-26. Specifically, an

agency must “display awareness that it is changing

position” and “show that there are good reasons for

the new policy.” FCC v. Fox Television Stations, Inc.,

556 U.S. 502, 515 (2009); Republic Airline Inc. v. U.S.

DOT, 669 F.3d 296, 299 (D.C. Cir. 2012) (“One of the

core tenets of reasoned decision-making is that ‘an

agency [when] changing its course . . . is obligated to

supply a reasoned analysis for the change.’”

(alterations in original) (citation omitted)). The

failure of an agency to explain a change in its policy

is “reason for holding [the agency’s decision] to be an

arbitrary and capricious.” Nat’l Cable & Telecomms.

10

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981

(2005).

Finally, “[i]n explaining its changed position, an

agency must also be cognizant that longstanding

policies may have ‘engendered serious reliance

interests that must be taken into account.’” Encino

Motorcars, 136 S. Ct. at 2126 (quoting Fox Television

Stations, 556 U.S. at 515). An agency’s disregard for

such reliance interests is likewise arbitrary and

capricious. See Perez v. Mortg. Bankers Ass’n, 135 S.

Ct. 1199, 1209 (2015) (“[T]he APA requires an agency

to provide more substantial justification . . . ‘when its

prior policy has engendered serious reliance interests

that must be taken into account.’” (citation omitted)).

Agency action that does not meet each of these three

criteria is arbitrary and capricious within the

meaning of the APA and must be vacated. See id.,

Encino Motorcars, 136 S. Ct. at 2125-26; State Farm

Mut. Auto. Ins. Co., 463 U.S. at 42-43.

B.

The requirements of reasoned decisionmaking are fully applicable when an

agency’s stated basis for its decision is a

change in its interpretation of the law.

The procedural requirements of the APA apply

with full force where, as here, an agency asserts that

it was legally compelled to act. Just as with other

motivations for agency action, the question for

purposes of APA review is not only the substantive

reasonableness of the agency’s decision—i.e., whether

its view of the law is correct—but also whether the

agency “articulate[d] a satisfactory explanation”

justifying its legal rationale, State Farm Mut. Auto.

Ins. Co., 463 U.S. at 43, taking into account its prior

positions and any reliance interests.

11

For example, in Encino Motorcars, this Court

invalidated a 2011 decision of the Department of

Labor (“DOL”) interpreting the Fair Labor Standards

Act (“FLSA”) to require overtime payments to certain

automobile service providers, after decades of

treating these employees as exempt. The DOL had

interpreted the statutory language of the FLSA

permitting an “exemption from [the statute’s]

overtime compensation requirement” for “‘any

salesman . . . engaged in selling or servicing

[vehicles]’” to exclude “service advisors,” who are

employees that “sell[] repair and maintenance

services but not the vehicle itself.” Encino Motorcars,

136 S. Ct at 2122 (emphasis added) (citation omitted).

The DOL explained that, in its view, “the statute

does not include such position[s].” Id. at 2127

(citation omitted); see also Updating Regulations

Issued Under the Fair Labor Standards Act, 76 Fed.

Reg. 18,832-01 (Apr. 5, 2011). This Court held that

this conclusory assessment amounted to “no reason[]

at all,” because “the Department did not analyze or

explain why the statute should be interpreted” to

support the agency’s reading. 136 S. Ct. at 2127.

Accordingly, this Court vacated the agency’s decision

without deciding whether the agency’s statutory

interpretation was in fact correct. Id.

Lower courts have similarly applied the APA’s

requirement of reasoned decision-making in

analyzing agency actions based on purely legal

rationales. See, e.g., Tourus Records, Inc. v. Drug

Enf’t Admin., 259 F.3d 731, 737 (D.C. Cir. 2001)

(agency action was not “the product of reasoned

decisionmaking” where it was justified by statement

of legal “conclusion” as opposed to a “statement of

reasoning”); E. Tex. Med. Ctr.-Athens v. Azar, 337 F.

12

Supp. 3d 1, 19 (D.D.C. 2018) (agency decision violated

APA where the “Secretary has failed to adequately

explain his interpretation and application of the

[relevant statute] and implementing regulation . . . or

the final rules predating it” (citation omitted)); Water

Quality Ins. Syndicate v. United States, 225 F. Supp.

3d 41, 71-72, 76 (D.D.C. 2016) (setting aside agency

decision based on “the insufficiency of its legal

analysis” and noting that agency’s “gap in legal

analysis” rendered its legal conclusions “shaky at

best”).

These cases confirm that no special rule applies

when an agency anchors its decision in an

interpretation of law. A reviewing court must still

“examin[e] the reasons for [the agency’s] decisions—

or, as the case may be, the absence of such reasons.”

Judulang v. Holder, 565 U.S. 42, 53 (2011). And, just

as when an agency justifies its decision on non-legal

grounds, the lawfulness of agency action depends “on

the agency’s ability to demonstrate that it engaged in

reasoned decisionmaking.” Animal Legal Def. Fund,

Inc. v. Perdue, 872 F.3d 602, 619 (D.C. Cir. 2017).

C.

A court’s independent assessment of

whether an agency’s policy is unlawful

is inappropriate.

Finally, as with other types of agency explanation,

if an agency’s legal explanation is “inadequate or

improper, [a] court is powerless to affirm the

administrative action by substituting what it

considers to be a more adequate or proper [legal]

basis.” SEC v. Chenery Corp., 332 U.S. 194, 196

(1947); see also Catholic Healthcare W. v. Sebelius,

748 F.3d 351, 354 (D.C. Cir. 2014). Accordingly, even

if a reviewing court is inclined to believe the agency

13

came to the right legal result, it must nonetheless

vacate the agency action if its explanation for

reaching that result is inadequate. Indeed, to permit

a court to supply a different legal rationale through

de novo review of a policy’s underlying legality would

be to violate the cardinal principle of administrative

law that judicial review is limited “solely [to] the

grounds invoked by the agency.” See Chenery Corp.,

332 U.S. at 196.

An explanation proffered at a high level of

generality is not an invitation for a court to fill out

that explanation with more precise rationales. A

court cannot “affirm agency decisions on a legal

analysis other than that expressed by the agency”

itself—even if that analysis broadly accords with the

agency’s proffered explanation. Catholic Healthcare,

748 F.3d at 354 (emphasis added).

DHS’s assertion that this decision was driven by

its view of the law, rather than technical or policy

concerns, should make no difference. Regardless of

whether the putative rationale is legal, technical, or

policy-laden, it will virtually always be the case that

a court could convert an agency’s vague assertions

into a more sophisticated rationale; but to do so would

undercut the core function of APA review, which is to

provide a meaningful check on the agency’s own

decision-making process. The fact that a court may

be able to formulate a reasoned justification for action

says nothing about whether the agency itself engaged

in reasoned decision-making and provides no check on

arbitrary agency action.

For this reason, when an agency asserts a legal

justification for its action and fails to provide a

reasoned basis for its legal conclusion, a court cannot

uphold the agency’s action based on its own resolution

14

of the underlying legal issue. Because the APA

imposes distinct procedural requirements that stand

apart from the substantive correctness of the agency’s

ultimate decision, even if a court believes the agency’s

decision correct, it still must vacate the decision when

the agency’s explanation is inadequate. And because

the absence of reasoned decision-making means the

agency’s action must be vacated in any event, any

judicial opinion on a policy’s underlying legality

would be purely advisory. Worse still, it would be an

advisory opinion that violates Chenery by functionally

affirming the agency on the basis of a different

rationale than the one it proffered.

It may appear counter-intuitive for a court to

vacate an agency action that the agency claims was

required by law, when the court believes the agency’s

legal conclusion is correct. But that is the inescapable

result of Congress’s decision to impose independent

procedural constraints on an agency’s decisionmaking. Those procedural constraints are much more

than empty formalism. Administrative agencies

wield enormous power, pervasively impact citizens’

lives, and largely operate outside the glare of public

scrutiny. In enacting the APA, Congress recognized

that, regardless of the substantive reasonableness of

agencies’ decisions, that they must also reach those

decisions in a way that is transparent, publicly

justifiable, and democratically accountable.

Those principles have equal—indeed special—

force when an agency asserts that its decision was

driven by legal concerns, because these circumstances

implicate additional separation of powers concerns.

Enforcing a lesser degree of scrutiny for agency

actions justified by legal rationales would create

powerful incentives for agencies to advance

15

purportedly legal grounds for their actions, shifting

accountability for an agency’s most controversial

decisions to the federal courts. Making an unelected

branch of government the public face of unpopular

decisions both undercuts democratic accountability

and endangers the public legitimacy of the judiciary.

By compelling agencies to publicly explain and justify

their decisions, the APA forbids precisely such a

maneuver.

Applying these principles, this Court should not

assess the ultimate legality of DACA unless it first

deems DHS’s articulated legal reasoning to be

adequate. If that reasoning is inadequate, the

agency’s decision should be vacated without any

further advisory opinion regarding the scope of the

executive branch’s statutory or constitutional power

to implement DACA. Here, as in any other context,

“[i]t is not the role of the courts to speculate on

reasons that might have supported an agency's

decision.” Encino Motorcars, 136 S. Ct. at 2127.

II. THE DECISION TO RESCIND DACA WAS

ARBITRARY AND CAPRICIOUS

DHS’s decision to rescind DACA was based solely

on the agency’s view that the policy was unlawful. It

now seeks to defend that decision by effectively asking

this Court to weigh in on DACA’s underlying legality.

But, despite three opportunities to do so, DHS

provided virtually none of the “reasoning that

underlies its conclusion,” as the APA requires. See

Transcon. Gas Pipe Line Corp. v. FERC, 54 F.3d 893,

898 (D.C. Cir. 1995). To the contrary, even a cursory

review of the DHS memorandum rescinding DACA

reveals that the rescission “was issued without the

reasoned explanation that was required in light of the

16

Department’s change in position and the significant

reliance interests involved.” See Encino Motorcars,

136 S. Ct. at 2126.

DHS’s explanation is inadequate for three reasons

under settled principles of administrative law. First,

DHS failed to adequately explain the reasoning that

led it to conclude DACA was legally deficient. Second,

DHS neglected to acknowledge or explain the change

from its prior policy of enforcing DACA. Third, DHS

did not take into account the serious reliance interests

impacted by the rescission of DACA. Under a neutral

application of these settled principles, the agency’s

decision must be vacated. This case provides no

occasion for this Court to decide the substantive

question of DACA’s legality.

A.

DHS failed to adequately explain why it

believes DACA is unlawful.

DHS stated its rationale for rescinding DACA in a

single sentence, which cross-referenced a letter by the

Attorney General, which itself contained only a single

paragraph of reasoning.

Under settled APA

precedent, these “conclusory statements will not do.”

Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350

(D.C. Cir. 2014).

Recognizing the facial deficiency of these reasons,

DHS issued a new memorandum well after this

litigation began. A reviewing court may not consider

those post-hoc assertions. But even if it could, that

memorandum—though more fulsome in its

analysis—still fails to satisfy the APA’s requirements

for reasoned decision-making.

1. On September 5, 2017, then-Acting Secretary

of Homeland Security Elaine Duke issued a

memorandum

rescinding

DACA

(“Duke

17

memorandum”2). The Duke memorandum contains

background information regarding DACA, DAPA, and

the litigation in Texas v. United States, 809 F.3d 134

(5th Cir. 2015). However, the only relevant part of

the memo, the legal analysis justifying the rescission

of DACA, is one sentence long:

“Taking into

consideration the Supreme Court’s and the Fifth

Circuit’s rulings in the ongoing litigation, and the

September 4, 2017, letter from the Attorney General,

it is clear that the June 15, 2012, DACA program

should be terminated.” Duke memorandum.

The Duke memorandum therefore contained no

reasoning of its own, and instead rested on the

reasoning of three other sources: (1) the Fifth Circuit’s

opinion in Texas v. United States, which struck down

the related, but different, DAPA policy, (2) the

Supreme Court’s 4-4 affirmance of that decision, and

(3) the September 4, 2017, letter from Attorney

General Sessions (“Attorney General’s letter”3). The

Attorney General’s letter, in turn, contained only one

paragraph justifying the rescission of DACA:

DACA was effectuated by the previous

administration through executive action,

without proper statutory authority and

2

Memorandum from Elaine Duke, Acting Secretary,

DHS, 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),

https://www.dhs.gov/news/2017/09/05/memorandum-rescissiondaca.

3

Letter from Jefferson B. Sessions III, U.S. Attorney

General, to Acting Secretary Elaine Duke (Sept. 4, 2017),

https://www.dhs.gov/sites/default/files/publications/17_0904_D

OJ_AG-letter-DACA.pdf

18

with no established end-date, after

Congress’ repeated rejection of proposed

legislation that would have accomplished

a similar result. Such an open-ended

circumvention of immigration laws was an

unconstitutional exercise of authority by

the Executive Branch.

The related

[DAPA] policy was enjoined on a

nationwide basis in a decision affirmed by

the Fifth Circuit on the basis of multiple

legal grounds and then by the Supreme

Court by an equally divided vote. . . .

Because the DACA policy has the same

legal and constitutional defects that the

courts recognized as to DAPA, it is likely

that potentially imminent litigation would

yield similar results with respect to DACA.

Attorney General’s letter.

The Duke memorandum and the Attorney

General’s letter, which together constitute DHS’s

entire contemporaneous explanation for the

rescission of DACA, fail to provide a “path” from

which the agency’s decision “may reasonably be

discerned.”

See Bowman, 419 U.S. at 285-86.

Instead, the Duke memorandum and the Attorney

General’s letter offer five conclusory assertions devoid

of “even [a] minimal level of analysis.” See Encino

Motorcars, 136 S. Ct. at 2125. These assertions are:

(1) DACA was enacted without statutory authority,

(2) DACA suffers from the same legal defects as

DAPA, (3) DACA is unlawful based on the Fifth

Circuit’s ruling with respect to DAPA, (4) this Court

affirmed the Fifth Circuit, and (5) DACA is

unconstitutional. As explained below, these five

19

explanations are not “statement[s] of reasoning, but

of conclusion,” and thus they “do[] not meet the APA

standard” for reasoned decision-making. Tourus

Records, 259 F.3d at 737.

1.

DHS failed to explain why there was

no “statutory authority” for DACA.

The Attorney General’s letter summarily asserts

that DACA was enacted “without proper statutory

authority.”

But that assertion is hardly selfexplanatory. The Immigration and Nationality Act

(“INA”) broadly delegates to the executive branch the

power to “[e]stablish[] national immigration

enforcement policies and priorities,” 6 U.S.C. § 202(5),

and to carry out the “administration and enforcement

of [the INA] and all other laws relating to the

immigration and naturalization of aliens,” 8 U.S.C.

§ 1103(a). “Since the INA was enacted, the Executive

Branch has on numerous occasions exercised

discretion to extend various forms of immigration

relief to categories of aliens for humanitarian, foreign

policy, and other reasons.” Office of Legal Counsel

(“OLC”) Opinion4 at 6. As part of the authority

provided by the INA, “it is well settled that the

Secretary can exercise deferred action, a form of

prosecutorial discretion whereby the Department of

Homeland Security declines to pursue the removal of

a person unlawfully present in the United States.”

Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 967

(9th Cir. 2017).

4

The Department of Homeland Security’s Authority to

Prioritize Removal of Certain Aliens Unlawfully Present in the

United States and to Defer Removal of Others (Nov. 19, 2014),

https://www.justice.gov/file/179206/download (“OLC Opinion”).

20

The Attorney General’s letter does not discuss, or

even display awareness of those statutory provisions,

the history of numerous administrations exercising

deferred action, or precedent affirming such

authority. Simply asserting that the policy “lacks

statutory authority,” without more, is no different

from describing a policy as “unlawful” without

providing any explanation for why that is so. In both

situations, there is a “failure to connect the dots”

between the conclusion and its underlying reasoning.

See Select Specialty Hosp.-Bloomington, Inc. v.

Burwell, 757 F.3d 308, 312-13 (D.C. Cir. 2014). And,

as this Court recognized in Encino Motorcars, the

unadorned conclusion that a particular approach is

“unlawful” or not authorized is an inadequate basis

for agency action. See 136 S. Ct. at 2127.

2.

DHS failed to acknowledge or

account for the differences between

DACA and DAPA.

The Attorney General’s letter asserts that “the

DACA policy has the same legal and constitutional

defects that the courts recognized as to DAPA.” That

explanation is facially inadequate because it fails to

identify what “defects” the agency had in mind, and

instead tacitly assumes that DACA and DAPA are

identical in scope and legal foundation. But that is

not so. Indeed, the Fifth Circuit’s opinion in Texas v.

United States itself notes that “DACA and DAPA are

not identical” and that “any extrapolation from DACA

must be done carefully.” Texas, 809 F.3d at 174, 173.

Far from extrapolating “carefully,” DHS extrapolated

completely—and without any explanation at all.

As the Fifth Circuit recognized, DACA impacts “a

younger and less numerous population” than DAPA,

21

“which suggests that DACA applicants are less likely

to have backgrounds that would warrant a

discretionary denial.” Id. at 174. And, importantly, a

critical reason why the Fifth Circuit held DAPA

unlawful was that the INA already prescribed “an

intricate process” for undocumented parents “to

derive a lawful immigration classification from their

children’s immigration status.” Id. at 179. There is,

however, “no analogous provision in the INA defining

how immigration status may be derived by

undocumented persons who arrived in the United

States as children.” Regents of the Univ. of Cal. v.

U.S. DHS, 908 F.3d 476, 508 (9th Cir. 2018).

Because some of the grounds for invalidating

DAPA do not apply to DACA, it is inadequate for the

agency to assert that the policies suffer from the

“same” “defects.” Instead, it is incumbent on the

agency to explain which of DACA’s “defects” it

believes apply to DACA, and provide at least some

explanation of why those “defects” alone are sufficient

to render DACA illegal. A generalized reliance on

problems that certain courts have identified with a

materially different policy cannot constitute a

reasoned basis for discontinuing a policy on the

ground of illegality.

3.

DHS’s citation to the Fifth Circuit’s

DAPA ruling is inadequate to justify

its decision to rescind DACA.

Next, the agency attempts to remedy its own lack

of reasoning by seeking to incorporate the Fifth

Circuit’s

ruling

regarding

DAPA.

Duke

memorandum.

That asserted incorporation is

inadequate for substantially the same reasons as the

agency’s contention that DAPA and DACA have the

22

“same defects.” The Fifth Circuit did not strike down

DACA and expressly recognized that its reasoning did

not necessarily apply to DACA. Furthermore, DHS

failed to “explain what (if anything) it found

persuasive” in that opinion. See Encino Motorcars,

136 S. Ct. at 2127. An unexplained citation to a single

case by a court of appeals (regarding a materially

different policy) is clearly not enough to alone justify

an agency decision.

For example, in International Union, United Mine

Workers of America v. United States DOL, 358 F.3d 40

(D.C. Cir. 2004), the United Mine Workers of America

challenged the decision of the Mine Safety and Health

Administration (“MSHA”) to withdraw a proposed Air

Quality rule. MSHA stated that the withdrawal was

based, in part, on a decision by the Eleventh Circuit

to invalidate a similar, earlier air quality rule. Id. at

42. The agency claimed that, in light of this decision,

its proposed rule was not “‘a viable means’ of

addressing the health risks it had sought to remedy

with the proposed Air Quality rule.” Id. at 44 (citation

omitted). The D.C. Circuit acknowledged that the

Eleventh Circuit opinion was “indeed a caution for an

agency embarking upon . . . regulation” in the area.

Id. But, the court concluded, MSHA’s decision to

withdraw the proposed rule was nonetheless

arbitrary and capricious because the agency “did not

explain why it came to deem the Eleventh Circuit

decision fatal to [its] effort.” Id. Simply citing a court

of appeals decision invalidating a similar or related

rule does not, the court recognized, satisfy the APA’s

requirement of reasoned decision-making.

DHS likewise cannot rescind DACA simply by

referring to the Fifth Circuit’s holding in Texas v.

United States. Instead, DHS must, at the very least,

23

explain what it was about the decision that would be

“fatal” to DACA. The Fifth Circuit invalidated DAPA

on multiple alternative grounds, and simply citing to

the decision leaves it entirely indeterminate which of

those grounds the agency had in mind, making it

impossible to the “discern[]” the “path” to the agency’s

conclusion. Bowman, 419 U.S. at 286. Moreover, as

discussed above, the Fifth Circuit itself recognized the

substantive differences between DAPA and DACA

and disclaimed any holding as to the latter. Under

the circumstances, a simple citation to the Fifth

Circuit’s decision cannot alone satisfy the APA’s

requirements.

4.

The Supreme Court’s affirmance of

the Fifth Circuit’s DAPA ruling has

no precedential value.

DHS also invokes the Supreme Court’s

“affirm[ance of] the Fifth Circuit’s ruling” to justify its

actions rescinding DACA. Duke memorandum. But

that affirmance was by an equally-divided court and

therefore is not “entitled to precedential weight.” Neil

v. Biggers, 409 U.S. 188, 192 (1972). Reference to this

Court’s affirmance also draws the improper inference

that the “equally divided vote,” Duke memorandum,

was based on the ultimate illegality of DAPA. But the

Court’s affirmance could have been rendered on a host

of other bases, such as the threshold ground of

reviewability. This observation is all the more true

where, as here, the Supreme Court affirms the grant

of a preliminary injunction motion, which itself is “an

exercise of discretion and judgment, often dependent

as much on the equities of a given case as the

substance of the legal issues it presents.” See Trump

24

v. Int’l Refugee Assistance Project, 137 S. Ct. 2080,

2087 (2017).

5.

DHS

fails

to

identify

any

constitutional defect of DACA.

Finally, DHS claims that DACA suffers from

“constitutional defects.” Duke memorandum (citation

omitted). But, yet again, DHS fails to explain this

assertion or even identify which provision of the

Constitution is violated by the continued enforcement

of DACA—let alone “cogently explain” any

constitutional theory. State Farm Mut. Auto. Ins. Co.,

463 U.S. at 48.

And the Attorney General’s letter asserts only that

the policy suffers “the same . . . constitutional defects”

as DAPA.

But no court has identified any

“constitutional defects” with DAPA. Indeed, the Fifth

Circuit’s Texas decision, which again is the only

source of legal reasoning to which the Duke

memorandum cites, explicitly declined to address the

constitutionality of that policy. See Texas, 809 F.3d

at 154 (“We decide this appeal . . . without resolving

the constitutional claim.”). As with its bare assertion

that DACA is “without statutory authority,” the

agency’s

contention

that

the

policy

is

“unconstitutional” does not constitute an adequate

explanation. Those are conclusions, not reasons, and

cannot alone satisfy the APA’s requirements.

B.

DHS’s post-hoc explanations should be

disregarded and, in any event, do not

meet the requirements for reasoned

decision-making.

In the course of the litigation in the D.C. Circuit,

DHS attempted to bolster its bare-bones explanations

25

for the rescission of DACA by issuing yet another

memorandum, this time by Secretary of Homeland

Security Kirstejen M. Nielsen (the “Nielsen

memorandum”5). Because it is well settled that an

agency

cannot

supply

additional

post-hoc

explanations for its actions during litigation, the

Nielsen memorandum should not be considered by

this Court. See Pension Benefit Guar. Corp. v. LTV

Corp., 496 U.S. 633, 654 (1990) (agency’s explanation

must “enable the court to evaluate the agency’s

rationale at the time of decision”); Alpharma, Inc. v.

Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (“[P]ost hoc

rationalizations ‘have traditionally been found to be

an inadequate basis for review’ of agency decisions.”

(quoting Citizens to Preserve Overton Park, 401 U.S.

at 419). Since review of agency action is limited to the

agency’s “rationale at the time of decision,” the

Nielsen memorandum is irrelevant. See Pension

Benefit Guar. Corp, 496 U.S. at 654.

But, even if this Court were to consider the Nielsen

memorandum, it adds nothing to DHS’s reasoning.

Instead of engaging in “any genuine reconsideration

of the issues,” the Nielsen memorandum is no more

than “a barren exercise of supplying reasons to

support a pre-ordained result,” and should

accordingly be rejected. Food Mktg. Inst. v. ICC, 587

F.2d 1285, 1290 (D.C. Cir. 1978).

The Nielsen memorandum begins by reiterating

that “the Duke memorandum . . . remains . . . sound,”

and that DACA is “contrary to law.”

Nielsen

memorandum at 1-2. It then goes on to list a number

5

Memorandum from DHS Secretary Kirstjen M. Nielsen

(June

22,

2018),

https://www.dhs.gov/sites/default/

files/publications/18_0622_S1_Memorandum_DACA.pdf.

26

of purportedly “separate and independently sufficient

reasons” justifying the rescission of DACA. Id. These

reasons are: (1) there are risks associated with the

enforcement of a “legally questionable” policy,

(2) policies like DACA “should be enacted

legislatively,” and (3) deferred action should be

implemented on a “truly individualized, case-by-case

basis.” Id. at 2-3. None of these explanations survive

even minimal scrutiny.

First, the Nielsen memorandum points to

purported harms stemming from DHS’s “doubts”

regarding DACA’s legality. These include a “risk that

[DACA] may undermine public confidence in and

reliance on the agency and the rule of law, and the

threat of burdensome litigation that distracts from

the agency’s work.” Id. at 2. But in order to invoke

litigation risks associated with the enforcement of a

“legally questionable” policy, see id., DHS was

required to seriously evaluate those risks. That

evaluation necessarily involves articulating a

plausible basis to believe DACA is unlawful, such that

there is a meaningful “risk” of it being struck down.

But that is the very thing the agency failed to

adequately explain in the first place. As discussed

above, the agency failed to provide any reasoned

explanation for why DACA is unlawful—and the

Nielsen memorandum does not itself even try to

provide any additional reasoning on that score.

Without properly explaining why DACA is unlawful,

the agency, a fortiori, cannot have provided a

reasoned basis for why there was a litigation “risk”

associated with its continuation.

Moreover, when an agency invokes “risk” as a

basis for action, it typically must conduct an analysis

weighing that risk against the policy’s benefits

27

(including, here, the protection of substantial reliance

interests)—which DHS clearly did not do. See

Michigan v. EPA, 135 S. Ct. 2699, 2711 (2015) (an

agency did not engage in reasoned decision-making

where it “plainly did not” consider relevant benefits);

State Farm Mut. Auto. Ins. Co., 463 U.S. at 52, 54

(“reasoned decisionmaking” requires agencies to “look

at the costs as well as the benefits”). The mere

assertion that a particular course of action involves

“risk”—without any assessment of the magnitude of

that risk, the action’s putative benefits, or the

associated

costs

of

discontinuation—cannot

constitute reasoned decision-making.

Finally, as the various challenges to the rescission

itself

demonstrate,

“litigation”

and

“public

confidence” “risks” were inevitable whichever option

the agency chose.

To provide an adequate

explanation, DHS therefore had to explain why there

was more risk in enforcing DACA than in rescinding

it—a dubious proposition when either action would

“predictably le[ad] to [a] lawsuit.” See Organized Vill.

of Kake v. U.S. DOA, 795 F.3d 956, 970 (9th Cir. 2015)

(invocation of litigation as a rationale for agency

decision was inadequate because “[a]t most, the

Department deliberately traded one lawsuit for

another”).

Second, the Nielsen memorandum asserts that

DACA “should be enacted legislatively.” Nielsen

memorandum at 3. But that normative conclusion is

wholly unexplained. When Congress created DHS, it

expressly vested the agency with responsibility for

“[e]stablishing national immigration enforcement

policies and priorities.” Homeland Security Act of

2002, Pub. L. No. 107-296, § 402(5), 116 Stat. 2135,

2178 (codified at 6 U.S.C. § 202(5)); see also Reno v.

28

Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

483-84 (1999) (observing the “regular practice (which

had come to be known as ‘deferred action’) of

exercising that discretion for humanitarian reasons

or simply for its own convenience”).

Congress

therefore contemplated that at least some forms of

deferred action would not be enacted legislatively.

The agency’s explanation critically fails to explain

why this instance of deferred action “should” have

been “enacted legislatively” when others, presumably,

“should not.” See Burwell, 757 F.3d at 312-13

(agency’s “failure to connect the dots” was not

reasoned decision-making).

The Nielsen memorandum states only that DACA

“lack[s] the permanence and detail of statutory law.”

Nielsen memorandum at 2. But that statement

provides no basis to rescind the policy; at most, it

explains why a legislative solution for DACA

recipients would be better than deferred action alone.

But that is not a reasoned basis for rescinding

deferred action without any such legislative solution.

Moreover, it is ultimately Congress, not the

agency, that determines which forms of deferred

action “should be enacted legislatively.” If Congress

had agreed with the agency, it could have responded

“by enacting legislation to limit the Executive’s

discretion in enforcing the immigration laws,” OLC

Opinion at 6, which it did not do. The agency’s

substitution of its own judgment for Congress’s as to

what policies “should” be enacted legislatively is not a

reasoned basis to act.

Third, DHS asserts that the agency “should only

exercise its prosecutorial discretion not to enforce the

immigration laws on a truly individualized, case-bycase basis.” Nielsen memorandum at 3. But the

29

Nielsen memorandum does not define “truly

individualized, case-by-case” adjudication or explain

why the agency believes DACA falls short of that goal.

It is well understood that the federal government

cannot deport the over ten million undocumented

persons within the United States. Accordingly. the

INA mandates that the executive branch “shall”

establish “immigration enforcement priorities and

policies” to guide individualized discretion. 6 U.S.C.

§ 202(5). As with any such policy, DACA guides—but

does not remove—the discretion of individual

immigration officers.

Memorandum from Janet

Napolitano, Secretary of Homeland Security,

Exercising Prosecutorial Discretion with Respect

to Individuals Who Came to the United States

as

Children

at

1

(June

15,

2012),

https://www.dhs.gov/sites/default/files/publications/s1

-exercising-prosecutorial-discretion-individuals-whocame-to-us-as-children.pdf (“[A]dditional measures

are necessary to ensure that our enforcement

resources are not expended on these low priority cases

but are instead appropriately focused on people who

meet our enforcement priorities.”). Indeed, DHS

statistics reveal that 17.8% of the DACA initial

applications acted upon in 2016 were denied, 16.3%

were denied in 2017, and 24.8% were denied in 2018.

U.S. Citizenship & Immigration Services, Number of

Form I-821D, Consideration of Deferred Action for

Childhood Arrivals, by Fiscal Year, Quarter, Intake,

Biometrics and Case Status Fiscal Year 2012–2019

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

files/USCIS/Resources/Reports%20and%20Studies/

Immigration%20Forms%20Data/All%20Form%20Ty

pes/DACA/DACA_FY19_Q1_Data.pdf.

30

In calling for “truly individualized, case-by-case”

assessment, the Nielsen memorandum might be

advocating entirely unguided discretion, which would

itself be in stark tension with the INA’s requirements.

In addition, the memorandum fails to provide any

reasoned explanation why it would be superior to let

individual officers make entirely discretionary

decisions, rather than setting broad policies to guide

that discretion. See Burwell, 757 F.3d at 312 (noting

that when “an agency’s failure to state its reasoning

or to adopt an intelligible decisional standard is . . .

glaring . . . we can declare with confidence that the

agency action was arbitrary and capricious” (quoting

Checkosky v. SEC, 23 F.3d 452, 463 (D.C. Cir. 1994)).6

In short, the Nielsen memorandum fails to explain

what “truly case-by-case” discretion means, how it

differs from DACA, or why, if it means wholly

unguided discretion, it is superior to the guided

discretion that has long been a hallmark of

immigration law and policy.

The Nielsen

memorandum thus fails to provide any reasoned basis

to explain DACA’s rescission.

6

This failure is particularly telling in the immigration

context, where policies and statutes commonly prescribe guided

discretion. See, e.g., 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));

William

Wilberforce

Trafficking

Victims

Protection

Reauthorization Act of 2008, Pub. L. No. 110-457, § 204, 122

Stat. 5044, 5060 (codified at 8 U.S.C. § 1227(d)(1)).

31

C.

DHS failed to acknowledge its changed

policy position or provide reasons for

that change.

In addition, none of the proffered explanations

discussed above even mentions—let alone provides a

“reasoned explanation” for—the Department’s change

in policy. See Encino Motorcars, 136 S. Ct. at 2127.

An agency is not permitted to “depart from a prior

policy sub silentio.” Fox Television Stations, 556 U.S.

at 515; see also Manin v. NTSB, 627 F.3d 1239, 1243

(D.C. Cir. 2011) (“When an agency departs from its

prior precedent without explanation, . . . its judgment

cannot be upheld.”). Instead, it was “incumbent” upon

DHS to “carefully to spell out the bases of its decision

when departing from prior norms.” See Food Mktg.

Inst. v. ICC, 587 F.2d at, 1290; State Farm Mut. Auto.

Ins. Co., 463 U.S. at 42 (“[A]n agency changing its

course by rescinding a rule is obligated to supply a

reasoned analysis for the change beyond that which

may be required when an agency does not act in the

first instance.”).

These principles have special force where, as here,

the OLC has weighed in on the issue. In 2014, the

OLC prepared a detailed 33-page opinion, carefully

explaining why DACA and DAPA are lawful. See, e.g.,

OLC Opinion at 18 n.8 (noting OLC determination

that DACA was “legally permissible”). The Attorney

General’s letter, Duke memorandum, and Nielsen

memorandum all “completely ignore” the OLC

Opinion—and the government’s prior position—and

wholly fail to acknowledge the dramatic shift in legal

assessment. This flaw is alone fatal. Both this Court

and the D.C. Circuit have “never approved an agency’s

decision to completely ignore relevant precedent.” See

32

Jicarilla Apache Nation v. U.S. DOI, 613 F.3d 1112,

1120

(D.C.

Cir.

2010)

(emphasis

added);

Ramaprakash v. FAA, 346 F.3d 1121, 1125 (D.C. Cir.

2003) (an agency is required to “come to grips with

conflicting precedent”).

The fact that OLC opinions constitute binding law

within the executive branch provides all the more

reason to vacate the agency’s decision, because “[a]

contrary result would permit agencies to toss aside

OLC memoranda that contain legal conclusions

contrary to the agency’s preferred policy choices.” See

Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d

160, 178 (D.D.C. 2017), aff’d in part, rev’d in part, 901

F.3d 378 (D.C. Cir. 2018). And it is, in the very least,

highly suspect that DHS made a decision of enormous

national importance—based solely on a legal

rationale—without even consulting the office within

the Department of Justice charged with determining

the legality of executive branch practices. Had DHS

truly believed that DACA was unlawful, the agency

could have asked OLC to directly address the issue—

as it had in 2014. DHS’s failure to do so further

underscores the shaky foundation of its legal

rationale for rescinding DACA.

DHS’s departure from “established precedent”

without “a reasoned explanation” cannot be upheld.

LePage’s 2000, Inc. v. Postal Regulatory Comm’n, 642

F.3d 225, 233 (D.C. Cir. 2011) (citation omitted).

D.

DHS did not adequately take into

account reliance interests.

Finally, DHS’s decision contravened the APA

because the agency did not take into account the

considerable reliance interests of the parties

impacted by DACA’s rescission, including critical

33

stakeholders like children, public schools, and the

affected communities. See Encino Motorcars, 136 S.

Ct. at 2126-27. As this Court has emphasized, agency

action “engender[s] serious reliance interests”

amongst regulated parties who depend on the

stability and predictability of agency guidance. Id. at

2126 (citation omitted). These reliance interests must

be taken into account, even where an agency believes

that the policy change is legally mandated. See id. at

2125-27 (considering reliance interests where change

in agency position was based upon interpretation of

governing statute). And “an agency may need to

‘provide a more detailed justification than what would

suffice for a new policy created on a blank slate . . .

when, for example, . . . its prior policy has engendered

serious reliance interests.’”

Altera Corp. &

Subsidiaries v. Comm'r, 926 F.3d 1061, 1100 (9th Cir.

2019) (alterations in original) (quoting Fox, 556 U.S.

at 515).

The rescission of DACA will undoubtedly

implicate serious reliance interests of regulated

parties. For instance, many young people who were

forced to prematurely exit the school system because

of barriers related to their immigration status have,

for years, relied upon DACA in order to maintain a

livelihood.

The policy’s work authorization has

enabled these young people to take jobs

commensurate with their education, and has

incentivized investments in such programs. Roberto

G. Gonzales et al., Center for American Progress,

Taking Giant Leaps Forward: Experiences of a Range

of DACA Beneficiaries at the 5-Year Mark (June

22, 2017), https://cdn.americanprogress.org/content/

uploads/2017/06/21142115/DACAat5-brief2.pdf.

34

Because of the program, DACA beneficiaries have

experienced immediate and continued job mobility.

Id. at 4-5. Indeed, many DACA beneficiaries have

obtained significant job training and are using these

new opportunities as building blocks to careers. The

magnitude of DACA’s impact has been most felt by

these young people. And the personal success of these

DACA beneficiaries has in turn provided them with

more purchasing power, allowing them to invest in

the United States at the local and state levels. Id. at

6.

Individual DACA recipients are not the only group

with significant reliance interests on the continued

viability of the policy. Requiring institutions “to

adapt to the Department’s new position could

necessitate systemic, significant changes.” Encino

Motorcars, 136 S. Ct. at 2126. For example, DACA

rescission will cost employers $6.3 billion in employee

turnover costs, including recruiting, hiring, and

training 720,000 new employees.

David Bier,

Rescinding DACA, The Dream Act, Would Impose

Massive Costs on Employers, Newsweek.com (Sept.

5,

2017),

https://www.newsweek.com/rescindingdreamers-act-would-impose-massive-costs-employers659813. If the rescission is allowed to stand, U.S.

employers will have to terminate 6,914 employees

currently participating in DACA every week for the

next two years, at a weekly cost of $61 million. Id.

Pertinent to amici, public school districts are

collectively the largest employer in the country and

will be sharply affected by these costs. Specifically,

public elementary schools, high schools, and

universities stand to lose thousands of employees.

According to one estimate, DACA protects close to

9,000 education employees from deportation. Jie

35

Zong et al., Migration Policy Inst., A Profile of Current

DACA Recipients by Education, Industry, and

Occupation (2017), https://www.migrationpolicy.org/

research/profile-current-daca-recipients-educationindustry-and-occupation (download fact sheet). The

Migration Policy Institute estimates that there are

20,000 immigrants with DACA-protected status

working as educators, including 5,000 in California

and 2,000 each in New York and Texas. Moriah

Balingit, As DACA winds down, 20,000 educators are

in

limbo,

Wash.

Post

(Oct.

25,

2017),

https://www.washingtonpost.com/local/education/as

-daca-winds-down-20000-educators-are-in-limbo/2017/

10/25/4cd36de4-b9b3-11e7-a908-a3470754bbb9_

story.html. Many of these educators have helped to

alleviate the shortage of qualified teachers,

particularly in high-needs schools and communities.

The rescission of DACA will also have a

devastating impact on schools and school

communities. An estimated 365,000 high school

students are eligible for DACA status, and another

241,000 of DACA-eligible students are in college.

Together, that number accounts for 51% of the nearly

1.2 million DACA-eligible population. Jill Barshay,

Counting DACA students, Hechinger Report (Sept. 11,

2017),

https://hechingerreport.org/counting-dacastudents/ (figures from the Migration Policy Institute

based on 2014 census data). Overall, about 690,000

immigrants are enrolled in DACA and could face

deportation if and when their work permits expire.

David Nakamura, How many people will Trump’s

DACA rollback affect? About 100,000 fewer than

initially reported, Wash. Post (Sept. 7, 2017),

https://www.washingtonpost.com/news/post-politics/

wp/2017/09/07/how-many-people-will-trumps-daca-

36

rollback-affect-about-100000-fewer-than-initiallyreported/. These people are parents, neighbors,

teachers, custodians, administrators, and students in

public schools. If they are forced to leave the only

country they call home, the communities in which

schools do their crucial work will be devastated.

In short, DACA has entrenched enormous reliance

interests in its seven years of operation and its

removal threatens to destabilize virtually every sector

of the Nation’s economy and society. Yet, not only did

DHS fail to discuss these potential impacts of DACA’s

rescission, it failed to even acknowledge any reliance

interests at all. DHS’s failure to even mention—let

alone account for—the interests created by the prior

policy is flatly inconsistent with this Court’s holding

in Encino Motorcars. See also Smiley v. Citibank

(S.D.), N.A., 517 U.S. 735, 742 (1996) (agency decision

that “does not take account of legitimate reliance on

prior interpretation” may be arbitrary and

capricious). Indeed, the principles espoused in Encino

and this Court’s other precedent would be a virtual

dead letter if an agency were permitted to rescind a

policy upon which so many people rely without even

one word acknowledging that reliance.

*****

If this Court’s administrative law principles are to

mean anything, they must be applied neutrally and

impartially in even the most challenging cases. This

Court’s most fundamental check on unfettered agency

discretion—the

requirement

of

reasoned

explanation—would mean nothing if the threadbare

explanation here were deemed adequate to invalidate

a policy of unquestioned national importance. DHS’s

decision to rescind DACA must be vacated.

37

CONCLUSION

For the foregoing reasons, the Court should vacate

the decision of DHS.

Respectfully submitted,

FRANCISCO M. NEGRÓN, JR. RICHARD P. BRESS

Chief Legal Officer

Counsel of Record

NATIONAL SCHOOL BOARDS SAMIR DEGER-SEN

ASSOCIATION

JESSICA SABA

1680 Duke Street, FL 2

LATHAM & WATKINS LLP

Alexandria, VA 22314

555 Eleventh Street, NW

(703) 838-6722

Suite 1000

Washington, DC 20004

(202) 637-2200

richard.bress@lw.com

Counsel for Amici Curiae

October 4, 2019