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,
v.
REGENTS OF THE
UNIVERSITY OF CALIFORNIA, et al.
Respondents.
On Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
BRIEF OF AMICI CURIAE
THE NATIONAL ASSOCIATION OF HOME
BUILDERS, THE REAL ESTATE ROUNDTABLE,
AND THE ESSENTIAL WORKER IMMIGRATION
COALITION IN SUPPORT OF RESPONDENTS
Gavin R. Villareal
Counsel of Record
BAKER BOTTS L.L.P.
98 San Jacinto Blvd., Suite 1500
Austin, Texas 78701
(512) 322-2500
gavin.villareal@bakerbotts.com
Counsel for Amici Curiae
[Additional Captions Listed on Inside Cover]
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – W ASHINGTON, D.C. 20002
DONALD J. TRUMP,
President of the United States, et al.
Petitioners,
v.
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,
v.
MARTIN JONATHAN BATALLA VIDAL, et al.
Respondents.
On Writ of Certiorari Before Judgment
to the United States Court of Appeals
for the Second Circuit
TABLE OF CONTENTS
Table of Authorities ............................................................ iii
Interest of Amici Curiae ..................................................... 1
Introduction .......................................................................... 2
Argument .............................................................................. 3
I.
DACA Provides Necessary Workers for the
Struggling U.S. Construction Workforce ............. 3
A. DACA recipients and other immigrants
are a valuable part of the U.S. labor
workforce. ......................................................... 3
B. Threats to the immigrant workforce are
threats to the U.S. economy, particularly
the construction industry. ............................... 7
C. Labor shortages hurt homebuilders and
related service industries, and burden
the availability of affordable housing. ............ 8
II. The Decision to Terminate DACA is Subject
to Judicial Review ................................................. 11
A. Reviewability under the APA ....................... 11
B. The DACA termination decision is
reviewable. ...................................................... 16
1.
2.
3.
Chaney’s presumption does not
extend to programmatic rescissions
such as occurred here. ............................ 17
Agency decisions not to act based on
supposed lack of legal authority are
subject to judicial review........................ 18
Actions committed to agency
discretion remain subject to
constitutionality review. ......................... 21
(i)
ii
Conclusion ........................................................................... 21
TABLE OF AUTHORITIES
Page(s)
CASES
Abbott Laboratories v. Gardner,
387 U.S. 136 (1967), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99
(1977) .............................................................................. 12
Bowen v. Michigan Academy of Family
Physicians,
476 U.S. 667 (1986) ....................................................... 12
Casa de Maryland v. U.S. Department of
Homeland Security,
284 F. Supp. 3d 758 (D. Md. 2018) .........................11, 19
Citizens to Preserve Overton Park, Inc. v.
Volpe,
401 U.S. 402 (1971), abrogated on other
grounds by Califano v. Sanders, 430 U.S.
99 (1977) .............................................................. 12, 13, 14
City of Arlington v. Federal Communications
Commission,
569 U.S. 290 (2013) ..................................................15, 16
Crowley Caribbean Transport, Inc. v. Pena,
37 F.3d 671 (D.C. Cir. 1994) ...................................17, 18
Heckler v. Chaney,
470 U.S. 821 (1985) ............................................... passim
ICC v. Brotherhood of Locomotive Engineers,
482 U.S. 270 (1987) ..................................................20, 21
International Longshoremen’s Association,
AFL-CIO v. National Mediation Board,
785 F.2d 1098 (D.C. Cir. 1986) .................................... 20
(iii)
iv
Kenney v. Glickman,
96 F.3d 1118 (8th Cir. 1996) ......................................... 17
Lincoln v. Vigil,
508 U.S. 182 (1993) ....................................................... 12
Mach Mining, LLC v. Equal Employment
Opportunity Commission,
135 S. Ct. 1645 (2015) ................................................... 12
Montana Air Chapter No. 29 v. Federal Labor
Relations Authority,
898 F.2d 753 (9th Cir. 1990) .............................. 14, 15, 20
National Treasury Employees Union v.
Horner,
854 F.2d 490 (D.C. Cir. 1988) ...................................... 17
OSG Bulk Ships, Inc. v. United States,
132 F.3d 808 (D.C. Cir. 1998) ...................................... 17
Robbins v. Reagan,
780 F.2d 37 (D.C. Cir. 1985) ........................................ 18
Texas v. United States,
809 F.3d 134, 163-170 (5th Cir. 2015), cert.
granted, 136 S. Ct. 906, and aff’d by an
equally divided court, 136 S. Ct. 2271 (2016)
(per curiam) ..............................................................11, 19
Webster v. Doe,
486 U.S. 592 (1988) ....................................................... 21
Weyerhauser Co. v. U.S. Fish & Wildlife
Service,
139 S. Ct. 361 (2018) ..................................................... 12
STATUTES
5 U.S.C. § 701 ...................................................................... 11
5 U.S.C. § 701(a)(2) ..................................................... passim
v
5 U.S.C. § 702 ...................................................................... 11
5 U.S.C. § 703 ...................................................................... 11
5 U.S.C. § 704 ...................................................................... 11
5 U.S.C. § 705 ...................................................................... 11
5 U.S.C. § 706 ...................................................................... 11
OTHER AUTHORITIES
Ashok Chaluvadi, Top Challenges for Builders:
Materials in 2018, Labor in 2019, NAHB: Eye
on Housing (Mar. 18, 2019),
http://eyeonhousing.org/2019/03/topchallenges-for-builders-materials-in-2018labor-in-2019/ .................................................................. 7
Deloitte, 2019 US Travel and Hospitality
Outlook,
https://www2.deloitte.com/content/dam/Deloitt
e/us/Documents/consumer-business/usconsumer-2019-us-travel-and-hospitalityoutlook.pdf ....................................................................... 5
Exec. Order No. 13,878, 84 Fed. Reg. 30,853
(June 25, 2019) .............................................................. 10
Freddie Mac, The Major Challenge of Inadequate
U.S. Housing Supply 1 (Dec. 2018),
http://www.freddiemac.com/fmacresources/research/pdf/201811-Insight-06.pdf.......9, 10
Jie Zong, et al., A Profile of Current DACA
Recipients by Education, Industry, and
Occupation, Migration Policy Inst.: Fact
Sheet 7 (Nov. 2017),
https://www.migrationpolicy.org/sites/default/f
iles/publications/DACA-Recipients-WorkEducation-Nov2017-FS-FINAL.pdf .....................3, 6, 7
vi
Jie Zong, et al., A Profile of Current DACA
Recipients by Education, Industry, and
Occupation, Migration Policy Inst.: Fact
Sheet 7 (Nov. 2017),
https://www.migrationpolicy.org/sites/default/
files/publications/DACA-Recipients-WorkEducation-Nov2017-FS-FINAL.pdf ............................ 6
NAHB, Housing Market Index: Special
Questions on Labor and Subcontractors’
Availability 16 (July 2019),
http://eyeonhousing.org/wpcontent/uploads/2019/08/July2019-SplQREPORT-EXTERNAL.pdf ......................................... 8
NAHB, Housing Market Index: Special
Questions on Significant Problems
Builders Faced in 2018 and Expect to face
in 2019 (Jan. 2019),
http://eyeonhousing.org/wpcontent/uploads/2019/03/HMI-Jan-2019SplQ-REPORTEXTERNALFINAL.pdf ................... 8
Natalia Siniavskaia, Immigrant Workers in the
Construction Labor Force, NAHB (Jan. 2,
2018),
https://www.nahbclassic.org/generic.aspx?s
ectionID=734&genericContentID=260375 .............3, 4
New Am. Econ., Spotlight on the DACAEligible Population (Feb. 8, 2018),
https://research.newamericaneconomy.org/r
eport/spotlight-on-the-daca-eligiblepopulation/ ....................................................................... 6
vii
Paul Emrath, Labor and Subcontractor Costs
Outpacing Inflation, Raising Home Prices,
NAHB: Eye on Housing (Sept. 10, 2018),
http://eyeonhousing.org/2018/09/labor-andsubcontractor-costs-outpacing-inflationraising-home-prices/....................................................... 9
Paul Emrath, Labor Shortages Still Hurting
Affordability, NAHB: Eye on Housing
(Aug. 5, 2019),
http://eyeonhousing.org/2019/08/laborshortages-still-hurting-affordability/ ........................... 8
PHI, U.S. Nursing Assistants Employed in
Nursing Homes: Key Facts 3 (2019),
https://phinational.org/wpcontent/uploads/2019/08/US-NursingAssistants-2019-PHI.pdf ............................................4, 5
PHI, Understanding the Direct Care
Workforce: Key Facts & FAQ,
https://phinational.org/policy-research/keyfacts-faq/ (last visited Oct. 3, 2019) ............................... 5
Robert Dietz, Construction Job Openings Up
in July, NAHB: Eye on Housing (Sept. 10,
2019),
https://eyeonhousing.org/2019/09/constructi
on-job-openings-up-in-july/ ........................................... 6
Robert Dietz, Job Openings Slow, Still Higher
Year-over-Year, NAHB: Eye on Housing
(Aug. 6, 2019),
http://eyeonhousing.org/2019/08/jobopenings-slow-still-higher-year-over-year/ ................. 7
viii
Robert Espinoza, Immigrants and the Direct
Care Workforce, PHI Research Br. (June
2017), https://phinational.org/wpcontent/uploads/2017/06/Immigrants-andthe-Direct-Care-Workforce-PHI-June2017.pdf............................................................................ 4
Rose Quint, Housing Affordability Holds
Steady at a 10-Year Low in the Fourth
Quarter, NAHB: Eye on Housing (Feb. 14,
2019),
http://eyeonhousing.org/2019/02/housingaffordability-holds-steady-at-a-10-year-lowin-the-fourth-quarter/ .................................................. 10
U.S. Travel Assocoation, U.S. Travel Answer
Sheet,
https://www.ustravel.org/answersheet (last
visited Oct. 3, 2019)......................................................... 5
INTEREST OF AMICI CURIAE1
The National Association of Home Builders (NAHB) is
a trade federation of more than 700 state and local associations whose mission is to enhance the climate for housing
and the building industry. Chief among NAHB’s goals is
providing and expanding opportunities for all people to
have safe, decent, and affordable housing. About onethird of NAHB’s approximately 140,000 members are
home builders or remodelers. NAHB members provide
80% of all homes constructed in the United States.
The Real Estate Roundtable (the Roundtable) brings
together leaders of the nation’s top publicly-held and privately-owned real estate ownership, development, lending, and management firms with the leaders of major national real estate trade associations to jointly address key
national policy issues relating to real estate and the overall
economy. By identifying, analyzing, and coordinating policy positions, the Roundtable’s business and trade association leaders seek to ensure a cohesive industry voice is
heard by government officials and the public about real estate and its important role in the global economy. Collectively, the Roundtable members’ portfolios contain over 12
billion square feet of office, retail, and industrial properties valued at more than $3 trillion; over two million apartment units; and more than three million hotel rooms. Participating trade associations represent more than two million people involved in virtually every aspect of the real
estate business.
1
No counsel for any party authored this brief in whole or in part and
no entity or person, aside from amici curiae, their members, and their
counsel, made any monetary contribution intended to fund the preparation or submission of this brief. The parties have consented to the
filing of this brief by blanket consent on file with the Court.
(1)
2
The Essential Worker Immigration Coalition (EWIC)
is a coalition of businesses, trade associations, and other
organizations from across the industry spectrum concerned with the shortage of both lesser skilled and unskilled labor. EWIC supports policies that facilitate the
employment of essential workers by U.S. companies and
organizations, as well as reform of U.S. immigration policy
to facilitate a sustainable workforce for the American
economy while ensuring our national security and prosperity.
In addition to their respective interests in ensuring the
vitality of the nation’s construction workforce, the availability of affordable housing, and the existence of equal employment opportunities, amici each have a particular interest in ensuring appropriate judicial review of state and
federal government decisions and actions.
INTRODUCTION
The U.S. construction industry, and the industries that
provide related services to the real estate sector, are suffering from a prolonged labor shortage. Among other consequences, the labor shortage is increasingly hampering
the construction and affordability of new homes. The
country is not building enough new homes to keep pace
with demand and maintain a healthy housing stock. Builders nationwide recognize the problem and report that the
labor shortages are getting worse, creating a cascading
impact on the pace of home construction and the price of
new homes. The labor shortage is having similar negative
effects in multiple support service industries, such as food
preparation and serving, hotel and hospitality, health and
elder care, and building and grounds cleaning and maintenance.
It is undisputed that immigrants provide a valuable
source of construction labor and play a significant role in
the workforce that services buildings once constructed.
3
Taken together, about 41% of DACA recipients work in
industries represented by amici.2 The decision to rescind
the Deferred Action for Childhood Arrivals (DACA) policy
threatens to further exacerbate the ongoing labor shortage and harm the U.S. economy, and make the American
dream of homeownership harder than ever to achieve.
Courts can and should play a role in such agency decisions, as every court below in these consolidated cases appropriately concluded (and as many of the amici States
otherwise supporting respondents agree). The Court’s
decision in Heckler v. Chaney, 470 U.S. 821 (1985), which
established a presumption of nonreviewability of certain
agency decisions, does not apply to the DACA rescission
decision. To the contrary, that decision, based upon an
agency’s presumption that it lacked legal authority to act
otherwise, is precisely the type of agency determination
that courts are well equipped to review.
ARGUMENT
I. DACA PROVIDES NECESSARY WORKERS FOR THE
STRUGGLING U.S. CONSTRUCTION WORKFORCE
A. DACA recipients and other immigrants are a
valuable part of the U.S. labor workforce.
Immigrants comprise an essential part of the U.S. labor workforce. For example, immigrant workers now account for close to one in four workers in the construction
industry, a percentage that has been rising since the Great
Recession.3 The share of immigrants is even higher in
2
Jie Zong, et al., A Profile of Current DACA Recipients by Education, Industry, and Occupation, Migration Policy Inst.: Fact Sheet 7
(Nov. 2017), https://www.migrationpolicy.org/sites/default/files/publications/DACA-Recipients-Work-Education-Nov2017-FSFINAL.pdf.
3
Natalia Siniavskaia, Immigrant Workers in the Construction Labor Force, NAHB (Jan. 2, 2018), https://www.nahbclassic.org/generic.aspx?sectionID=734&genericContentID=260375.
4
construction trades, reaching 30%, and is particularly high
in some of the trades needed to build a home and that consistently register high labor shortages, such as carpenters, painters, drywall/ceiling tile installers, brick masons,
and construction laborers.4
Reliance on foreign-born workers is pronounced in
some states. In 2018, immigrants comprised almost 42%
of the construction workforce in California; 41% in Texas;
37% in New York and Nevada; and 35% in Florida.5
The importance of immigrant laborers extends
throughout the national workforce. The role of immigrants in providing direct health care and working as
nursing assistants, who work in our nation’s hospitals, elder care facilities, and other health care properties, is illustrative. In 2017, one in four workers providing handson care to older people and people with disabilities nationwide was an immigrant, and that number continues to
grow.6 Including independent providers, about one million
immigrants work in direct health care services.7 Similarly,
21% of nursing assistants were born outside of the United
States, compared to 17% of all U.S. workers.8 The need
for such health care workers is growing dramatically.
From 2015 to 2050, the population of adults aged 65 and
over will almost double, from 47.8 million to 88 million, and
the number of adults over 85 will more than triple over the
4
Ibid.
Ibid.
6
Robert Espinoza, Immigrants and the Direct Care Workforce,
PHI Research Br. (June 2017), https://phinational.org/wp-content/uploads/2017/06/Immigrants-and-the-Direct-Care-Workforce-PHIJune-2017.pdf.
7
Ibid.
8
PHI, U.S. Nursing Assistants Employed in Nursing Homes:
Key Facts 3 (2019), https://phinational.org/wp-content/uploads/2019/08/US-Nursing-Assistants-2019-PHI.pdf.
5
5
same time period, from 6.3 million to 19 million.9 As a result, nursing homes will have to fill nearly 680,000 nursing
assistant job openings by 2026, primarily as workers leave
the field.10 The elder care industry will continue to rely on
immigrants to fill that need.
Likewise, the sustainability and growth of the U.S.
travel industry—estimated to generate $2.5 trillion in economic output, supporting a total of 15.7 million American
jobs, and generating $170.9 billion in tax revenue to support infrastructure and other critical government services11—depends on the availability of foreign-born talent
at all skill levels. Hotel and other lodging real estate assets confront serious workforce shortages.12 “Even
though immigrants comprise only 13 percent of the US
population—they account for 31 percent of the workforce
in the hotel and lodging industry and 22 percent in restaurants.”13
DACA-eligible immigrants are a crucial component of
the workforce in amici’s industries. Among the top ten
industries employing DACA recipients, construction
9
PHI, Understanding the Direct Care Workforce: Key Facts &
FAQ, https://phinational.org/policy-research/key-facts-faq/ (last visited Oct. 3, 2019).
10
PHI, U.S. Nursing Assistants Employed in Nursing Homes:
Key Facts 2 (2019), https://phinational.org/wp-content/uploads/2019/08/US-Nursing-Assistants-2019-PHI.pdf.
11
U.S. Travel Ass’n, U.S. Travel Answer Sheet, https://www.ustravel.org/answersheet (last visited Oct. 3, 2019).
12
Deloitte, 2019 US Travel and Hospitality Outlook,
https://www2.deloitte.com/content/dam/Deloitte/us/Documents/consumer-business/us-consumer-2019-us-travel-and-hospitality-outlook.pdf. “In 2009, the US Bureau of Labor Statistics estimated 353,000 job openings across the leisure and hospitality sector.
As of 2018, * * * that number swelled to 1,139,000.” Id. at 3 (footnote
omitted).
13
Id. at 11.
6
ranks second, employing more than 84,000.14 Of that
group, more than 27,000 identify as construction laborers.15 A loss of these 84,000 workers amounts to more than
20% of the July 2019 job openings in construction.16
DACA recipients also account for material percentages of workers in a broad range of professions critical to
serve the nation’s building infrastructure, where Americans live, work, shop, recreate, and heal. In a 2017 study,
a combined 41% of the DACA recipients worked as laborers in construction, food preparation and serving, office
and administrative support, building grounds cleaning and
maintenance, and transportation and material moving.17
The study estimates that 23% of DACA recipients serve
the “arts, entertainment, recreation, accommodations and
food services” industries, and 14% are in the “retail
trade,”18 including personnel who work in malls and brickand-mortar stores—key sectors that are essential to a
thriving U.S. real estate industry.
According to one past estimate, if the DACA rescission
proceeds, an average of 915 DACA recipients each day will
lose their work authorization and protection from
14
New Am. Econ., Spotlight on the DACA-Eligible Population (Feb.
8, 2018), https://research.newamericaneconomy.org/report/spotlighton-the-daca-eligible-population/.
15
Ibid.
16
Robert Dietz, Construction Job Openings Up in July, NAHB: Eye
on Housing (Sept. 10, 2019), https://eyeonhousing.org/2019/09/construction-job-openings-up-in-july/.
17
Jie Zong, et al., A Profile of Current DACA Recipients by Education, Industry, and Occupation, Migration Policy Inst.: Fact Sheet 7
(Nov. 2017), https://www.migrationpolicy.org/sites/default/files/publications/DACA-Recipients-Work-Education-Nov2017-FSFINAL.pdf.
18
Id. at 6.
7
deportation.19 Such losses will degrade an already struggling U.S. labor market.
B. Threats to the immigrant workforce are threats
to the U.S. economy, particularly the construction industry.
The labor shortages in industries in which immigrants
and DACA recipients are a material percentage of the
workforce represent a substantial threat to the nation’s
economy. While such shortages are troubling for many industries, the lack of available workers is reaching crisis
levels for the U.S. construction industry in particular. The
number of open construction jobs nationwide has been increasing since the end of the Great Recession and reached
post-Great Recession highs in 2019.20 The overall trend in
this metric signals the ongoing need for additional workers in the construction industry.21
Given the industry’s labor shortage, it is unsurprising
that cost and availability of labor has risen dramatically as
an area of significant concern among builders over the
past eight years. In 2011, for instance, only 13% of residential builders reported labor as a significant problem
that they were currently facing.22 That percentage increased in every subsequent year: to 30% in 2012; 53% in
2013; 61% in 2014; 71% in 2015; 78% in 2016; 82% in both
2017 and 2018.23 In a January 2019 survey, 82% of
19
Id. at 3.
Robert Dietz, Job Openings Slow, Still Higher Year-over-Year,
NAHB: Eye on Housing (Aug. 6, 2019), http://eyeonhousing.org/2019/08/job-openings-slow-still-higher-year-over-year/.
21
Ibid.
22
Ashok Chaluvadi, Top Challenges for Builders: Materials in 2018,
Labor in 2019, NAHB: Eye on Housing (Mar. 18, 2019), http://eyeonhousing.org/2019/03/top-challenges-for-builders-materials-in-2018labor-in-2019/.
23
Ibid.
20
8
NAHB’s builder members identified cost and availability
of labor as an area of expected significant concern for 2019,
making it the number one such concern for builders.24
In a recent survey of home builders, shortages of labor
directly employed by builders were widespread.25 Many
of the shortage percentages were little changed from
where they were as of the same time in 2018.26 Averaged
across nine labor occupations that NAHB has been consistently covering since the 1990s, the incidence of labor
shortages reached 69% in 2019—the highest number on
record.27
C. Labor shortages hurt homebuilders and related
service industries, and burden the availability of
affordable housing.
The ongoing and worsening labor and subcontractor
shortages continue to impact the homebuilding industry in
a number of ways, including placing additional upward
pressure on new home prices. In July 2019, more than
87% of builders reported the need to pay higher wages and
higher subcontractor bids as a result of labor issues, 81%
reported that issues with available labor made it difficult
to complete projects on time, and 75% reported having to
raise home prices as a result.28 Since 2015, rising labor
24
NAHB, Housing Market Index: Special Questions on Significant
Problems Builders Faced in 2018 and Expect to face in 2019, at 2 (Jan.
2019), http://eyeonhousing.org/wp-content/uploads/2019/03/HMIJan-2019-SplQ-REPORTEXTERNALFINAL.pdf.
25
Paul Emrath, Labor Shortages Still Hurting Affordability,
NAHB: Eye on Housing (Aug. 5, 2019), http://eyeonhousing.org/2019/08/labor-shortages-still-hurting-affordability/.
26
Ibid.
27
Ibid.
28
NAHB, Housing Market Index: Special Questions on Labor
and Subcontractors’ Availability 16 (July 2019), http://eyeonhousing.org/wp-content/uploads/2019/08/July2019-SplQ-REPORT-
9
costs have outpaced inflationary effects. In 2018, for example, overall inflation was 2.9%, but labor costs increased
by 5.2% over the same period.29
Other effects of labor shortages are less common but
nevertheless also on the rise. For example, the share of
builders indicating that labor shortages have slowed the
rate at which they accept incoming orders doubled between 2015 and 2018 (from 16% to 32%).30 Even the least
common of the effects—lost or cancelled sales—was up to
26% in 2018, suggesting that the shortages are having a
significant impact on production levels.31
The labor shortages further complicate the unfortunate reality that the United States is not building enough
housing to meet the country’s needs. According to a study
by Freddie Mac, between 2011 and 2018, residential housing construction has increased, but only gradually—and
not enough to meet demand.32 Freddie Mac estimated that
the annual rate of construction as of the end of 2018 was
about 370,000 units below the level required by long-term
housing demand.33 After years of low levels of building, a
significant shortfall had developed, with between 0.9 and
4.0 million too few housing units to accommodate longterm housing demand.34 Freddie Mac predicted that until
EXTERNAL.pdf.
29
Paul Emrath, Labor and Subcontractor Costs Outpacing Inflation, Raising Home Prices, NAHB: Eye on Housing (Sept. 10, 2018),
http://eyeonhousing.org/2018/09/labor-and-subcontractor-costsoutpacing-inflation-raising-home-prices/.
30
Ibid.
31
Ibid.
32
Freddie Mac, The Major Challenge of Inadequate U.S. Housing
Supply 1 (Dec. 2018), http://www.freddiemac.com/fmac-resources/research/pdf/201811-Insight-06.pdf.
33
Id. at 8.
34
Id. at 2.
10
construction ramped up, housing costs would likely continue rising above income, constricting household formation and preventing homeownership for millions of potential households.35 Indeed, housing affordability hovered at a ten-year low as of the end of 2018.36 In all, only
56.6% of new and existing homes sold in the last quarter
of 2018 were affordable to families earning the U.S. median income of $71,900.37
The current administration has expressed concern regarding the issue of housing affordability. In establishing
a White House Council on eliminating regulatory barriers
to affordable housing, President Trump noted that “[f]or
many Americans, access to affordable housing is becoming
far too difficult.” Exec. Order No. 13,878, 84 Fed. Reg.
30,853 (June 25, 2019). “Rising housing costs are forcing
families to dedicate larger shares of their monthly incomes
to housing. * * * These rising costs are leaving families
with fewer resources for necessities such as food,
healthcare, clothing, education, and transportation, negatively affecting their quality of life and hindering their access to economic opportunity.” Ibid.
***
The ongoing labor shortages in construction and related services are negatively affecting the U.S. economy,
causing among other problems a decrease in available affordable housing. Policy decisions that threaten the availability of immigrant labor, such as the decision to rescind
35
Id. at 8.
Rose Quint, Housing Affordability Holds Steady at a 10-Year Low
in the Fourth Quarter, NAHB: Eye on Housing (Feb. 14, 2019),
http://eyeonhousing.org/2019/02/housing-affordability-holds-steadyat-a-10-year-low-in-the-fourth-quarter/.
37
Ibid.
36
11
DACA, are likely to further exacerbate the labor shortages and the negative consequences those shortages are
already causing.
II. THE DECISION TO TERMINATE DACA IS SUBJECT TO
JUDICIAL REVIEW
In each of the consolidated cases, petitioners contended below and reiterate in this Court that the decision
to terminate DACA is not subject to judicial review, in part
based on the “committed to agency discretion” exemption
under Section 701(a)(2) of the Administrative Procedure
Act (APA). 5 U.S.C. § 701(a)(2). Five federal courts, including the Ninth Circuit, have now rejected that argument, albeit for slightly different reasons. 18-587 Gov’t
Supp. Br. App. 23a-45a (9th Cir.); 18-587 Pet. App. 26a-33a
(N.D. Cal.); 18-589 Pet. App. 24a-39a (E.D.N.Y); 18-588
Pet. App. 19a-21a, 25a-43a (D.D.C.); Casa de Md. v. U.S.
Dep’t of Homeland Sec., 284 F. Supp. 3d 758, 769-770 (D.
Md. 2018); cf. Texas v. United States, 809 F.3d 134, 163170 (5th Cir. 2015), cert. granted, 136 S. Ct. 906, and aff’d
by an equally divided court, 136 S. Ct. 2271 (2016) (per curiam). In addition, although supporting petitioners on the
merits of rescinding DACA, amici the States of Texas, Alabama, Alaska, Arizona, Arkansas, Florida, Kansas, Louisiana, Nebraska, South Carolina, South Dakota, and West
Virginia, and Mississippi Governor Phil Bryant, all agree
with respondents that the decision to terminate the DACA
program is subject to judicial review. States of Texas et
al. Amicus Br. 30-32. That is indeed the correct conclusion.
A. Reviewability under the APA
The APA provides for judicial review of “agency action.” 5 U.S.C. §§ 701-706. Any person “adversely affected or aggrieved” by agency action, including a
“fail[ure] to act,” is entitled to “judicial review thereof,” as
long as the action is a “final agency action for which there
is no other adequate remedy in a court.” Id. §§ 702, 704.
12
This Court has consistently articulated “a ‘strong presumption’ favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651
(2015) (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)); see also, e.g., Weyerhauser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370
(2018) (noting that this Court has “long applied a strong
presumption favoring judicial review of an administrative
action” (quoting Mach Mining, 135 S. Ct. at 1653)); Lincoln v. Vigil, 508 U.S. 182, 190 (1993) (“[W]e have read the
APA as embodying a ‘basic presumption of judicial review.’” (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140
(1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977))). This Court has indicated that the
APA’s review provisions are “generous” and that courts
“must” give them “a hospitable interpretation.” Abbott
Labs., 387 U.S. at 140-141 (citations omitted). The government carries a “heavy burden” to overcome the presumption of judicial review. Mach Mining, 135 S. Ct. at 1651.
Section 701(a)(2) of the APA provides an exception to
judicial review when “agency action is committed to
agency discretion by law.” 5 U.S.C. § 701(a)(2). This
Court has instructed that this “is a very narrow exception.” Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 410 (1971), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99 (1977); see also Weyerhaeuser, 139 S. Ct. at 370 (noting that the Court has “read
the exception in § 701(a)(2) quite narrowly” in light of the
“strong presumption favoring judicial review” (quoting
Mach Mining, 135 S. Ct. at 1653)).
As this Court has explained, Section 701(a)(2) “is applicable in those rare instances where ‘statutes are drawn in
such broad terms that in a given case there is no law to
apply.’” Overton Park, 401 U.S. at 410 (citation omitted);
see also Chaney, 470 U.S. at 830 (“[R]eview is not to be
had if the statute is drawn so that a court would have no
13
meaningful standard against which to judge the agency’s
exercise of discretion.”).
In Chaney, this Court interpreted the scope of Section
701(a)(2) in considering “the extent to which a decision of
an administrative agency to exercise its ‘discretion’ not to
undertake certain enforcement actions is subject to judicial review under the [APA].” 470 U.S. at 823. The case
involved a challenge by several death-row inmates to the
decision by the Commissioner of the U.S. Food & Drug
Administration to exercise discretion not to consider the
inmates’ request for an investigation into the safety and
effectiveness of lethal injection drugs. Id. at 823-825. The
D.C. district court dismissed the lawsuit for lack of jurisdiction, holding that “decisions of executive departments
and agencies to refrain from instituting investigative and
enforcement proceedings are essentially unreviewable by
the courts.” Id. at 825 (citation omitted).
A divided panel of the D.C. Circuit reversed. Relying
in part on this Court’s decision in Overton Park, the D.C.
Circuit began with the presumption that Section 701(a)(2)
should be narrowly construed and invoked only where the
substantive statute left the courts with “no law to apply.”
Id. at 826 (citing Overton Park, 401 U.S. at 410). The court
determined, however, that judicial review of the FDA
Commissioner’s nonenforcement decision was not foreclosed because of an FDA policy statement indicating that
the agency was “obligated” to investigate certain unapproved drug uses. Ibid. Having concluded that the policy
statement provided sufficient “law to apply,” and in light
of the strong presumption that all agency action is subject
to review, the court proceeded to review the decision, concluding it was irrational. Id. at 826-827.
This Court reversed. Id. at 838. The Court reiterated
that Section 701(a)(2) is a “narrow” exemption, ibid., and
that it precludes review of agency action “if the statute is
14
drawn so that a court would have no meaningful standard
against which to judge the agency’s exercise of discretion.”
Id. at 830. But the Court took issue with the D.C. Circuit’s
interpretation of Overton Park: “Overton Park did not involve an agency’s refusal to take requested enforcement
action. It involved an affirmative act of approval under a
statute that set clear guidelines for determining when
such approval should be given.” Id. at 831. After discussing several relevant factors why nonenforcement decisions
are inapt for judicial review, id. at 831-832, the Court concluded that Section 701(a)(2) encompasses and excludes
judicial review of “agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise.” Id. at 838.
In reaching that conclusion, however, the Court in a
footnote expressly disclaimed any opinion as to the reviewability of an agency’s decision not to act because of the
agency’s belief that it lacked jurisdiction to act. Id. at 833
n.4 (“We do not have in this case a refusal by the agency
to institute proceedings based solely on the belief that it
lacks jurisdiction,” and expressing no opinion as to
“whether such decisions would be unreviewable under
§ 701(a)(2)”).
Following Chaney, both the Ninth and D.C. Circuits
concluded that judicial review was appropriate in the situation that the Court reserved in Chaney’s footnote. In
Montana Air Chapter No. 29 v. Federal Labor Relations
Authority, 898 F.2d 753 (9th Cir. 1990), a union representing civilian technicians employed by the Montana Air National Guard sued to challenge a decision of the Federal
Labor Relations Authority’s General Counsel not to issue
an unfair labor practice complaint. Id. at 755. The district
court granted FLRA summary judgment on the basis that
the court lacked jurisdiction to review the agency’s decision. Id. at 756.
15
The Ninth Circuit reversed, citing to Chaney’s footnote and concluding that Chaney’s presumption of nonreviewability “may be overcome if the refusal is based solely
on the erroneous belief that the agency lacks jurisdiction.”
Id. at 754-756 (citing Chaney, 470 U.S. at 833 n.4). The
court noted that had the FLRA’s General Counsel indicated a discretionary refusal to act, the court “would be
compelled to deny review.” Id. at 757. But the General
Counsel’s communications “strongly indicate[d] a belief
that the General Counsel lacked jurisdiction” to consider
the alleged unfair labor practice. Ibid. That question of
statutory interpretation was subject to review. Id. at 762763 (agreeing that the decision not to issue an unfair labor
practice complaint was presumptively unreviewable, but
the mistaken basis for that decision—a lack of jurisdiction
to act—was subject to review).
The Ninth Circuit noted support from the D.C. Circuit
for this conclusion. Id. at 756. (“[T]he D.C. Circuit has recognized two exceptions to the general rule of unreviewability of agency nonenforcement decisions: 1) agency
nonenforcement decisions are reviewable when they are
based on a belief that the agency lacks jurisdiction; and
2) an agency’s statutory interpretations made in the
course of nonenforcement decisions are reviewable.”) (internal citations omitted).38
Relatedly, this Court in City of Arlington v. FCC, 569
U.S. 290 (2013), has explained that the question of agency
jurisdiction to act is inseparable from the question of
agency authority to act. City of Arlington involved
whether an agency’s determination of its own jurisdiction
is entitled to Chevron deference. The Court concluded
38
The D.C. district court below noted some inconsistency in the D.C.
Circuit rulings on the issue of Chaney’s applicability to agency decisions based on presumed lack of jurisdiction. See 18-588 Pet. App. 28a
(D.D.C.).
16
that “[t]he reality, laid bare, is that there is no difference,
insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its
‘jurisdiction’) and its exceeding authorized application of
authority that it unquestionably has.” Id. at 299. As the
Ninth Circuit below elucidated, “City of Arlington teaches
that there is no difference between an agency that lacks
jurisdiction to take a certain action, and one that is barred
by the substantive law from doing the same; the question
‘is always, simply, whether the agency has stayed within
the bounds of its statutory authority.’” 18-587 Gov’t Supp.
Br. App. 29a (9th Cir.) (citing City of Arlington, 569 U.S.
at 297).
A cogent analytical structure emerges from these decisions. Under Chaney, an agency’s refusal to enforce the
substantive law is presumptively unreviewable because
that discretionary nonenforcement function is “committed
to agency discretion” within the meaning of the APA. 470
U.S. at 828-830. But a nonenforcement decision should be
reviewable notwithstanding Chaney if the agency based
its decision on its belief that it lacked jurisdiction to act—
the issue the Court expressly reserved in Chaney. See id.
at 833 n.4. Thus, an agency’s nonenforcement decision is
outside the scope of the Chaney presumption—and is
therefore presumptively reviewable—if it is based on a belief that the agency lacked the lawful authority to do otherwise. That is, where the agency’s decision is based not
on an exercise of discretion, but instead on a belief that
any alternative choice was foreclosed by law, the APA’s
“committed to agency discretion” bar to reviewability, 5
U.S.C. § 701(a)(2), does not apply.
B. The DACA termination decision is reviewable.
Petitioners contend that DHS’s decision to terminate
the DACA program “is a quintessential exercise of enforcement discretion” that is exempted from judicial
17
review under Section 701(a)(2). 18-587 Gov’t Br. 17. Under the analytical framework described above, petitioners
are incorrect.
1. Chaney’s presumption does not extend to programmatic rescissions such as occurred here.
Petitioners substantially rely on Chaney as being dispositive of the reviewability question here. 18-587 Gov’t
Br. 17-26. By its terms, however, Chaney involved and applies to agency decisions “not to take enforcement action.”
470 U.S. at 832. It strains logic to describe the rescission
of an entire policy as an agency decision not to undertake
an individual enforcement action. To the contrary, programmatic rescission is fundamentally different than oneoff agency enforcement decisions.
Several circuits agree, appropriately distinguishing
between individualized nonenforcement decisions, which
are unreviewable under Chaney, and agency adoptions of
general enforcement policies, which are subject to judicial
review. See OSG Bulk Ships, Inc. v. United States, 132
F.3d 808, 812 (D.C. Cir. 1998) (citing Crowley Caribbean
Transp., Inc. v. Pena, 37 F.3d 671, 674-675 (D.C. Cir.
1994)); see also Kenney v. Glickman, 96 F.3d 1118, 1123
(8th Cir. 1996); Nat’l Treasury Emps. Union v. Horner,
854 F.2d 490, 496-497 (D.C. Cir. 1988). Two of the district
courts below noted this substantial distinction in rejecting
the applicability of Chaney’s presumption to DACA’s rescission. 18-589 Pet. App. 28a-31a (E.D.N.Y) (“The decision to rescind DACA is unlike the nonenforcement decision at issue in Chaney.”); 18-587 Gov’t Pet. App. 26a-30a
(N.D. Cal.) (noting that the DACA termination “is different from Chaney[, in which] the agency simply refused to
initiate an enforcement proceeding”). The D.C. Circuit
has noted that broad policy changes “are more likely to be
direct interpretations of the commands of the substantive
statute rather than the sort of mingled assessments of
18
fact, policy, and law that drive an individual enforcement
decision.” Crowley, 37 F.3d at 677.
The Court in Chaney noted several policy considerations supporting its conclusion about the nonreviewability
of nonenforcement decisions, including that such decisions
require balancing factors peculiarly within the agency’s
expertise, and that such decisions are akin to the exercise
of prosecutorial discretion that is typically the province of
the Executive Branch. Chaney, 470 U.S. at 831-832. Such
considerations may apply to individual nonenforcement
decisions; they do not apply to a broad policy change affecting hundreds of thousands of DACA enrollees. The
Court noted in Chaney that in making a nonenforcement
decision, an agency “does not exercise its coercive power
over an individual’s liberty” and thus “does not infringe
upon areas that courts often are called upon to protect.”
Id. at 832. That rationale supports reviewability here,
given that the DACA rescission amounts to the rescission
of a nonenforcement commitment made to DACA holders.
See 18-587 Gov’t Pet. App. 29(a) (N.D. Cal.) (“In contrast
to nonenforcement decisions, ‘rescissions of commitments,
whether or not they technically implicate liberty and property interests as defined under the fifth and fourteenth
amendments, exert much more direct influence on the individuals or entities to whom the repudiated commitments
were made.’” (quoting Robbins v. Reagan, 780 F.2d 37, 47
(D.C. Cir. 1985))).
Because the decision to rescind DACA dramatically
extends beyond individualized nonenforcement decisions,
Chaney’s presumption of nonreviewability simply does not
apply.
2. Agency decisions not to act based on supposed
lack of legal authority are subject to judicial review.
In any event, as the record demonstrates and the
19
Ninth Circuit below thoroughly explained, DHS did not
base its DACA rescission decision on the type of policy rationales the Court discussed in Chaney, but did so rather
on the forthright and solitary position that the DACA program was unlawful. 18-587 Gov’t Supp. Br. App. 34a-42a
(9th Cir.) (noting that Attorney General Sessions advised
the DHS Acting Secretary to rescind the program because
“DACA was effectuated . . . without proper statutory authority,” and that DACA “was an unconstitutional exercise
of authority by the Executive Branch”); 18-587 Pet. App.
30a (N.D. Cal.) (“The main, if not exclusive, rationale for
ending DACA was its supposed illegality.”).
That reason for agency decisionmaking—when an
agency bases its decision not on an exercise of discretion
but rather on its belief that the law forecloses any other
alternative—is plainly analogous to the type of situation
that the Court explicitly left undecided in Chaney. 470
U.S. at 833 n.4 (noting that “[w]e do not have in this case a
refusal by the agency to institute proceedings based solely
on the belief that it lacks jurisdiction,” and expressing no
opinion as to “whether such decisions would be unreviewable under § 701(a)(2)”). Each of the courts below rejected
the Chaney presumption of nonreviewability in such circumstances. 18-587 Gov’t Supp. Br. App. 23a-45a (9th
Cir.); 18-587 Pet. App. 26a-33a (N.D. Cal.); 18-589 Pet.
App. 24a-39a (E.D.N.Y); 18-588 Pet. App. 19a-21a, 25a-43a
(D.D.C.); Casa de Md., 284 F. Supp. at 769-770; cf. Texas
v. United States, 809 F.3d at 163-170. As one of the district
courts below stated, “an official cannot claim that the law
ties her hands while at the same time denying the courts’
power to unbind her. She may escape political accountability or judicial review, but not both.” 18-588 Pet. App.
73a (D.D.C.).
That outcome is in line with Ninth Circuit and D.C.
Circuit precedent holding that agency inaction caused by
an agency’s determination that it lacks jurisdiction to act
20
is appropriately reviewable by the courts. Montana Air,
898 F.2d at 754 (concluding that Chaney’s presumption of
nonreviewability “may be overcome if the refusal is based
solely upon the erroneous belief that the agency lacks jurisdiction”); Int’l Longshoremen’s Ass’n, AFL-CIO v.
Nat’l Mediation Bd., 785 F.2d 1098, 1100 (D.C. Cir. 1986)
(noting that federal courts are empowered to review National Mediation Board decisions disclaiming jurisdiction).
And subjecting such a decision to judicial review accords with this Court’s guidance in Chaney. Section
701(a)(2) excludes from review only decisions that are
“committed to agency discretion by law.” 5 U.S.C.
§ 701(a)(2). DHS’s decision to terminate DACA, however,
was fundamentally based upon its determination that the
program was unlawful, and that the agency had no discretion but to act as it did. Such a conclusion—that an agency
lacks any discretion to act—is a legal interpretation that
is subject to “judicially manageable standards” of review.
Chaney, 470 U.S. at 830. Judicial review in such circumstances does not tread on the agency’s discretion; rather,
judicial review appropriately determines whether an
agency has correctly interpreted the scope of its own legal
authority. That is well within the courts’ wheelhouse.
18-587 Pet. App. 30a (N.D. Cal.) (rejecting the presumption of nonreviewability when an agency bases its decision
on lack of legal authority to act, because “determining illegality is a quintessential role of the courts”).
The Court’s decision in ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 283 (1987) (BLE) does not
lead to a different conclusion. BLE concerned the reviewability of the Interstate Commerce Commission’s denial of
a motion to reopen proceedings on grounds of material error. Id. at 280. The Court concluded such agency action
was presumptively unreviewable based upon “a similar
tradition of nonreviewability” to nonenforcement decisions as arose in Chaney. Id. at 282. The Court thus
21
rejected the proposition that “if the agency gives a ‘reviewable’ reason for otherwise unreviewable action, the
action becomes reviewable.” Id. at 283.
BLE has no applicability here. In Chaney, the Court
left open the question of reviewability of agency decisions
not to act when the agency based that decision on a lack of
legal authority to act. Chaney, 470 U.S. at 833 n.4. For
the reasons described above, such decisions are appropriately subject to judicial review. Accordingly, BLE’s guidance regarding an unreviewable decision is irrelevant
here.
3. Actions committed to agency discretion remain subject to constitutionality review.
“It is well-established that ‘even where agency action
is “committed to agency discretion by law,” review is still
available to determine if the Constitution has been violated.’” 18-589 Pet. App. 31a (E.D.N.Y) (citing cases). In
Webster v. Doe, 486 U.S. 592 (1988), this Court held that
Section 701(a)(2) did not preclude judicial review of constitutional claims by a former CIA employee. 486 U.S. at
603-604 (rejecting the Government’s arguments that constitutional claims were unreviewable under Section
701(a)(2) because the National Security Act vested the
CIA director with termination decisions, because the Act
did not expressly preclude review of such claims). The
same result is merited here.
CONCLUSION
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 as
to their respective determinations that the termination of
the DACA program is subject to judicial review under the
APA.
22
Respectfully submitted.
Gavin R. Villareal
Counsel of Record
BAKER BOTTS L.L.P.
98 San Jacinto Blvd., Suite 1500
Austin, Texas 78701
(512) 322-2500
gavin.villareal@bakerbotts.com
Counsel for Amici Curiae
October 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.