Respondents Brief — Donald J. Trump, President of the United States, et al., Petitioners v. National Association for the Advancement of Colored People, et al.

Supreme Court briefDec 17, 2018

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No. 18-588

IN THE

Supreme Court of the United States

_________

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL.,

Petitioners,

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, ET AL.,

Respondents.

________

On Petition for a Writ of Certiorari Before

Judgment to the United States Court of Appeals

for the District of Columbia Circuit

________

BRIEF IN OPPOSITION

________

JOSEPH M. SELLERS

JULIE S. SELESNICK

COHEN MILSTEIN SELLERS

& TOLL PLLC

1100 New York Ave., N.W.

Fifth Floor

Washington, DC 20005

(202) 408-4600

THOMAS J. PERRELLI

LINDSAY C. HARRISON

Counsel of Record

SAM HIRSCH

JENNER & BLOCK LLP

1099 New York Ave., N.W.

Suite 900

Washington, DC 20001

(202) 639-6000

lharrison@jenner.com

Counsel for Respondents

NAACP; American

Counsel for Respondents The

Federation of Teachers, AFL- Trustees of Princeton

CIO; and United Food and

University, Microsoft

Commercial Workers

Corporation, and Maria De

International Union, AFLLa Cruz Perales Sanchez

CIO, CLC

(Additional Counsel Listed on Inside Cover)

RAMONA E. ROMERO

WESLEY MARKHAM

PRINCETON UNIVERSITY

New South Building

Fourth Floor

Princeton, NJ, 08544

(609) 258-2500

ISHAN BHABHA

ALEX S. TREPP

JENNER & BLOCK LLP

1099 New York Ave., N.W.

Suite 900

Washington, DC 20001

(202) 639-6000

Counsel for Respondent The

Trustees of Princeton

University

Counsel for Respondents The

Trustees of Princeton

University, Microsoft

Corporation, and Maria De

La Cruz Perales Sanchez

CYNTHIA L. RANDALL

MICROSOFT CORPORATION

One Microsoft Way

Redmond, WA 98052

(425) 538-3176

Counsel for Respondent

Microsoft Corporation

BRADFORD M. BERRY

NAACP

4805 Mount Hope Drive

Baltimore, MD 21215

(410) 580-5797

Counsel for Respondent

NAACP

DAVID J. STROM

AMERICAN FEDERATION OF

TEACHERS, AFL-CIO

555 New Jersey Ave. N.W.

Washington D.C.

(202) 393-7472

Counsel for Respondent

American Federation of

Teachers, AFL-CIO

PETER J. FORD

UNITED FOOD &

COMMERCIAL WORKERS

INTERNATIONAL UNION,

AFL-CIO, CLC

1775 K Street. N.W.

Washington D.C. 20006

(202) 223-3111

Counsel for Respondent

United Food & Commercial

Workers International

Union, AFL-CIO, CLC

QUESTIONS PRESENTED

The questions presented are as follows:

1. Whether the Department of Homeland

Security’s rescission of the Deferred Action for

Childhood Arrivals (DACA) program is immune

from judicial review.

2. Whether the rescission of the DACA program is

lawful under the Administrative Procedure Act.

PARTIES TO THE PROCEEDING

Respondents are The Trustees of Princeton

University; Microsoft Corporation; Maria De La Cruz

Perales Sanchez; the National Association for the

Advancement of Colored People; American Federation

of Teachers, AFL-CIO; and United Food and

Commercial Workers International Union, AFL-CIO,

CLC.

Petitioners are Donald J. Trump, President of the

United States; Matthew Whitaker, Acting Attorney

General of the United States; Kirstjen M. Nielsen,

Secretary of Homeland Security; U.S. Citizenship and

Immigration Services; U.S. Immigration and Customs

Enforcement; the U.S. Department of Homeland

Security; and the United States.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................. ii

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

INTRODUCTION ............................................................. 1

STATEMENT OF THE CASE ....................................... 2

DACA ....................................................................... 2

II.

Proceedings Below ................................................. 8

REASONS FOR DENYING THE WRIT .................. 10

Review of the Regents Case Is

Premature.............................................................. 10

II.

The Petition for Certiorari Before

Judgment in this Case Should Be Denied. ........ 13

III.

The District Court’s Decision Is Correct. ......... 18

The Rescission of DACA Is

Subject to Judicial Review. ..................... 18

The District Court Correctly Held

that the Rescission of DACA Was

Arbitrary and Capricious. ....................... 27

CONCLUSION ................................................................ 35

TABLE OF AUTHORITIES

CASES

Aaron v. Cooper, 357 U.S. 566 (1958) ........................ 18

Alpharma, Inc. v. Leavitt, 460 F.3d 1 (D.C.

Cir. 2006) ................................................................. 30

American Construction Co. v. Jacksonville,

Tampa & Key West Railway Co., 148 U.S.

372 (1893) ................................................................ 12

Ashcroft v. ACLU, 542 U.S. 656 (2004) ..................... 12

Beame v. Friends of the Earth, 434 U.S. 1310

(1977) ....................................................................... 15

Brown v. Chote, 411 U.S. 452 (1973) .......................... 12

Camp v. Pitts, 411 U.S. 138 (1973) ............................. 31

Casa De Maryland v. United States

Department of Homeland Security, 284 F.

Supp. 3d 758 (D. Md. 2018), appeal

docketed, No. 18-1522 (8th Cir. May 8,

2018)......................................................................... 19

Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402 (1971), abrogated by

Califano v. Sanders, 430 U.S. 99 (1977) ............. 19

Coleman v. Paccar Inc., 424 U.S. 1301

(1976) ..............................................................2, 13-14

Consumer Energy Council of America v.

FERC, 673 F.2d 425 (D.C. Cir. 1982), aff’d

sub nom. Process Gas Consumers Group

v. Consumer Energy Council of America,

463 U.S. 1216 (1983)............................................... 32

Crowley Caribbean Transport, Inc. v. Pena,

37 F.3d 671 (D.C. Cir. 1994) ................................. 21

Dames & Moore v. Regan, 453 U.S. 654 (1981) ........ 13

Encino Motorcars, LLC v. Navarro, 136 S. Ct.

2117 (2016) .................................................. 27, 28, 33

Gonzalez v. O Centro Espirita Beneficente

Uniao do Vegetal, 546 U.S. 418 (2006)................ 16

Heckler

Chaney,

470

U.S.

821

(1985) ............................................... 19, 20, 21, 22, 24

ICC v. Brotherhood of Locomotive Engineers,

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

International Union, UAW v. Brock, 783 F.2d

237 (D.C. Cir. 1986)................................................ 25

Judulang v. Holder, 565 U.S. 42 (2011) ..................... 25

Lincoln v. Vigil, 508 U.S. 182 (1993) .......................... 21

Mach Mining, LLC v. EEOC, 135 S. Ct. 1645

(2015) ................................................................... 8, 19

Massachusetts v. EPA, 549 U.S. 497 (2007) ....... 21, 22

Mistretta v. United States, 488 U.S. 361 (1989) ........ 13

Motor Vehicle Manufacturers Ass’n of United

States, Inc. v. State Farm Mutual

Automobile Insurance Co., 463 U.S. 29

(1983) ..................................................... 25, 29, 31, 33

National Ass’n of Manufacturers v.

Department of Defense, 138 S. Ct. 617

(2018) ..................................................................15-16

Pension Benefit Guaranty Corp. v. LTV

Corp., 496 U.S. 633 (1990) ..................................... 31

Ex parte Quirin, 317 U.S. 1 (1942) ............................. 13

Reno v. American–Arab Anti-Discrimination

Committee, 525 U.S. 471 (1999) ..................... 26, 27

Ruckelshaus v. Monsanto Co., 463 U.S. 1315

(1983) ....................................................................... 15

SEC v. Chenery Corp., 318 U.S. 80 (1943) ................ 34

Spears v. United States, 555 U.S. 261 (2009) ............ 11

Texas v. United States, 328 F. Supp. 3d 662

(S.D. Tex. 2018) ...................................................... 14

Texas v. United States, 809 F.3d 134 (5th Cir.

2015), aff’d by an equally divided Court,

136 S. Ct. 2271 (2016) .............................................. 6

United States v. Nixon, 418 U.S. 683 (1974) ............. 13

United States v. Texas, 136 S. Ct. 2271 (2016)............ 6

United States v. Texas, 137 S. Ct. 285 (2016).............. 6

Virginia Military Institute v. United States,

508 U.S. 946 (1993)................................................. 12

Volpe v. District of Columbia Federation of

Civic Ass’ns, 405 U.S. 1030 (1972) ...................... 18

Weyerhaeuser Co. v. United States Fish &

Wildlife Service, 139 S. Ct. 361 (2018) ................ 19

Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952)........................................................ 13

vii

STATUTES

5 U.S.C. § 701(a)(2) ..................................................18-19

6 U.S.C. § 202(5) ............................................................ 33

8 U.S.C. § 1103(a)(1) ..................................................... 34

8 U.S.C. § 1252(g).......................................................... 26

8 U.S.C. § 1324a(h)(2) ................................................... 34

8 U.S.C. § 1611(b)(2) ....................................................... 4

8 U.S.C. § 1611(b)(3) ....................................................... 4

8 U.S.C. § 1621(d)............................................................ 4

28 U.S.C. § 2101(e) .......................................................... 2

LEGISLATIVE MATERIALS

Hearing on Kirstjen M. Nielsen to be

Homeland Security Secretary Before the

S. Comm. on Homeland Sec. and Gov’t

Affairs, 115th Cong. (2017) .................................. 16

Hearing on Oversight of the United States

Department of Homeland Security Before

the S. Comm. on the Judiciary, 115th

Cong. (2018) ............................................................ 17

OTHER AUTHORITIES

8 C.F.R. § 274a.12(c)(14) ................................................ 4

8 C.F.R. § 212.5(f) ........................................................... 4

42 C.F.R. § 417.422(h) .................................................... 4

42 C.F.R. § 422.50(a)(7) .................................................. 4

viii

Scott Clement & David Nakamura, Survey

Finds Strong Support for ‘Dreamers’,

Wash.

Post

(Sept.

25,

2017),

https://tinyurl.com/ybqvqajx ................................. 4

NPR Poll: 2 in 3 Support Legal Status for

DREAMers; Majority Oppose Building a

Wall, NPR: All Things Considered (Feb.

6, 2018), https://tinyurl.com/yblhrs2d ................... 4

READ: President Trump’s Full Exchange

With Reporters, CNN.com (Jan. 24, 2018),

https://tinyurl.com/ydcafdtr ................................. 15

Sup. Ct. R. 11......................................................... 13, 14

INTRODUCTION

The government seeks certiorari before judgment

in this case based primarily on the pendency of its

petition in a different case that is itself a poor candidate

for review. That case, United States Department of

Homeland Security v. Regents of the University of

California, No. 18-587, arrives to the Court on an

interlocutory posture without a circuit split. And the

government makes no credible case for interlocutory

review. The DACA program has been in place since

2012. The program was essentially unchallenged

through the past administration, and the current

administration voluntarily maintained the program for

more than eight months before rescinding it. Even

upon rescission, the administration allowed many

recipients to renew their status once more, effectively

continuing the program into 2020. The government has

not sought to stay the preliminary injunctions issued by

various courts while the parties litigate the Regents

respondents’ claims. Those injunctions are limited to

allowing existing DACA recipients to renew their

status; they do not compel the government to consider

new DACA applications, and they do not allow DACA

recipients to leave the country and return using

1 Although Respondents brought two separate cases, they were

litigated in the district court as one, and are treated in the Petition

as one. Respondents submit a single Brief in Opposition and will

refer to their related cases in the singular. Respondents will

likewise refer to the three related Regents cases in the singular,

and to the two related Batalla Vidal cases in the singular. See

Kirstjen M. Nielsen v. Martin Jonathan Batalla Vidal, No. 18589.

advance parole. In short, the government’s actions in

this case demonstrate a lack of urgency in rescinding

DACA that belies its current assertion that this Court

should review the Regents decision immediately. These

and other arguments are set forth in the briefs in

opposition submitted by the respondents in the Regents

case, and Respondents adopt them in full.

Stripped of the false sense of urgency created by

the government’s invocation of the Regents decision,

there is nothing left of the government’s petition for

certiorari before judgment here, and it should be

denied. This case is presently being briefed before the

D.C. Circuit and will likely be argued in early 2019.

Under this Court’s rules, certiorari before judgment is

warranted only where the petitioner establishes that

“the case is of such imperative public importance as to

justify deviation from normal appellate practice and to

require immediate determination in this Court.” Sup.

Ct. R. 11. It is thus the “extremely rare” case that is

appropriate for such review. Coleman v. Paccar Inc.,

424 U.S. 1301, 1304 n.* (1976) (Rehnquist, J., in

chambers); see 28 U.S.C. § 2101(e). This case does not

meet that standard. And even if it did, the Court should

deny review because the district court correctly held

that DACA’s rescission was reviewable and unlawful.

STATEMENT OF THE CASE

DACA

Prior to 2012, millions of young people raised in this

country were compelled by circumstances beyond their

control to live in the shadows. Brought here as children,

they attended American schools, contributed to

American communities, and strived to achieve

American dreams. But because they were not lawfully

present, their lives did not resemble those of their

American classmates: They often could not secure

government-issued identification and, accordingly,

could not travel by plane to visit family or attend

college far from home; they could not secure work

authorization; they generally could not open bank

accounts, obtain credit cards, or engage in commercial

activity requiring access to credit; they could not access

public benefits and, in many cases, health insurance;

they could not enlist in the Armed Forces; and they

lived in constant fear of law enforcement, with whom

any interaction might mean deportation to a country

that was foreign to them.

Despite these hardships, many of these young

people triumphed. They worked hard and excelled in

school, developed talents and professional skills, and

contributed to their families and communities. Known

as “Dreamers,” they achieved these accomplishments

notwithstanding their status under the immigration

laws. From the perspective of immigration authorities,

they were—and still are—a low priority for

enforcement. AR 1; infra pp. 16-17.2 From the

perspective of most Americans, regardless of political

affiliation, they were—and still are—individuals with

the values and work ethic America cherishes, and they

2 “AR” refers to the administrative record filed by the

government in these proceedings. Dkt. 8-3; see also Regents of the

University of California, et al. v. DHS, et al., Case No. 3:17-cv05211 (N.D. Cal.), ECF No. 64-1. All references to “Dkt.” are to

documents filed in the district court in No. 17-cv-2325.

deserve to live their lives in the only country many

have known.3

In 2012, the Department of Homeland Security

(DHS) sought to address the plight of the Dreamers.

Consistent with its longstanding authority to establish

deferred-action programs. Pet. App. 3a-4a; AR 15-23.

DHS thus established the Deferred Action for

Childhood Arrivals program (DACA). Pet. App. 5a.

By statute and regulation separate and distinct

from the DACA program, all persons subject to

deferred action—whether under DACA or any other

program—may access certain benefits in recognition of

their continued presence in the United States. They

may seek work authorization. 8 C.F.R. § 274a.12(c)(14).

They may request advance parole to travel abroad and

re-enter the United States. Id. § 212.5(f). And they are

eligible for driver’s licenses, health insurance, and

certain public programs. 8 U.S.C. § 1611(b)(2)-(3)

(Social Security and Medicare); id. § 1621(d) (state

benefits); 42 C.F.R. §§ 417.422(h), 422.50(a)(7) (health

insurance).

Before the DACA program was instituted, the

Office of Legal Counsel (OLC) advised DHS that

DACA was lawful so long as “immigration officials

retained discretion to evaluate each application on an

individualized basis.” Pet. App. 53a n.22 (quotation

3NPR Poll: 2 in 3 Support Legal Status for DREAMers; Majority

Oppose Building a Wall, NPR: All Things Considered (Feb. 6,

2018), https://tinyurl.com/yblhrs2d; Scott Clement & David

Nakamura, Survey Finds Strong Support for ‘Dreamers’, Wash.

Post (Sept. 25, 2017), https://tinyurl.com/ybqvqajx.

marks omitted). OLC later memorialized its analysis in

a 33-page memorandum that primarily addressed a

2014 proposed program known as “Deferred Action for

Parents of Americans and Lawful Permanent

Residents” (DAPA). Pet. App. 52a-53a. In its

memorandum addressing DAPA, the OLC noted, “[t]he

concerns animating DACA were . . . consistent with the

types of concerns that have customarily guided the

exercise of immigration enforcement discretion.” Pet.

App. 53a n.22 (quotation marks omitted; ellipsis in

original).

DACA went into force in 2012, and by all accounts,

DACA has been successful in enabling hundreds of

thousands of young people to pursue higher education

and work legally, without the fear of deportation. Pet.

App. 54a. Today, DACA recipients make substantial

contributions to the U.S. economy, in addition to

serving their communities and in this nation’s military.

Separately, DHS sought to implement DAPA.

DAPA would have extended eligibility for deferred

action to approximately 4 million parents of U.S.

citizens or lawful permanent residents who were

themselves unlawfully present in the United States.

AR 33. DAPA also purported to expand the DACA

program in certain minor respects. AR 39-40 (changing

from two to three-year extension terms, adjusting

date-of-entry requirement, and removing age cap).

DAPA never went into effect, however, because a

coalition of states led by Texas secured a preliminary

injunction based on the agency’s failure to follow the

APA’s notice-and-comment rulemaking requirements.4

Pet. App. 6a. The Fifth Circuit affirmed, holding that

the states had demonstrated a likelihood of success on

the merits not only of their procedural APA claim, but

also of their substantive APA claim, because DAPA

appeared to conflict with the INA’s “intricate process

for illegal aliens to derive a lawful immigration

classification from their children’s immigration status.”

Texas v. United States, 809 F.3d 134, 146, 179 (5th Cir.

2015). This Court granted a petition for a writ of

certiorari but divided evenly, thereby affirming the

preliminary injunction. See United States v. Texas, 136

S. Ct. 2271 (2016). The government sought rehearing,

noting that the country lacked a “definitive ruling” on

DAPA’s legality. Dkt. 28-16 at 2504. That petition was

denied. United States v. Texas, 137 S. Ct. 285 (2016).

Even after President Trump took office, DHS opted

to maintain DACA. In February 2017, then-Secretary

of Homeland Security Kelly repealed a broad array of

immigration directives but specifically exempted

DACA. AR 230. As he later explained, he viewed

“DACA status” as a “commitment … by the

government towards the DACA person.” Dkt. 28-15 at

1922. In June 2017, Secretary Kelly rescinded DAPA,

but again left DACA in place. AR 235-37. Likewise, in

public comments the President said “dreamers should

rest easy,” characterizing the “policy of [his]

administration . . . to allow the dreamers to stay.” Dkt.

28-15 at 1939-40.

4 The states expressly declined to challenge DACA, which had

already been in place for two years.

In June 2017, approximately the time Secretary

Kelly made his second decision to leave DACA in place,

Attorney General Sessions and other members of the

Justice Department communicated with attorneys

general from several of the states that had challenged

DAPA in the Texas case. Dkt. 28-15 at 1951-52. Those

conversations culminated in a letter from the state

attorneys general to Attorney General Sessions on

June 29, 2017. AR 238-40. Although the states had not

challenged DACA in the five years since it had been

implemented, the letter asserted that DACA was

unlawful and asked Defendants to “phase out the

DACA program”; if Defendants did not do so, the

states said, they would amend their years-old complaint

against DAPA to challenge DACA for the first time.

AR 239.

On September 4, 2017, Attorney General Sessions

announced, in a one-page letter, that DACA was

“unconstitutional” and lacked “statutory authority.”

AR 251. The letter provided no legal analysis, but

simply referenced the Texas DAPA litigation and the

“potentially imminent litigation” over DACA. AR 251.

The next day, Acting Secretary of Homeland Security

Duke issued a memorandum rescinding DACA (the

“Duke Memorandum”). AR 252-56. After describing the

course of the Texas litigation and reciting the Attorney

General’s conclusion that DACA was unlawful, Acting

Secretary Duke simply announced that it was “clear”

that DACA should be terminated. AR 255.

The Duke Memorandum instructed DHS to stop

accepting new initial DACA applications and approving

new applications for advance parole; to accept renewal

applications from individuals whose current deferred

action would expire by March 5, 2018; and to accept

such renewals until October 5, 2017. AR 255.

II.

Proceedings Below

Respondents sued in the United States District

Court for the District of Columbia to challenge the

decision to rescind DACA. In April 2018, Judge John D.

Bates granted Respondents’ motion for summary

judgment, holding the agency’s decision unlawful and

setting it aside. Judge Bates concluded that the

rescission of DACA was reviewable and that the

reasons given to support it were inadequate under the

Administrative Procedure Act (APA). Pet. App. 72a74a. In particular, Judge Bates held that the

government could not overcome the “strong

presumption favoring judicial review of administrative

action.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645,

1651 (2015) (internal quotation marks omitted). And he

held that DACA’s rescission was arbitrary and

capricious because the government “failed adequately

to explain its conclusion that the program was

unlawful.” Pet. App. 2a. Judge Bates stayed the order

of vacatur for ninety days to allow DHS to attempt to

remedy the Duke Memorandum’s inadequacies. Pet.

App. 66a.

In June 2018, Secretary Kirstjen M. Nielsen issued

a new memorandum “concur[ring] with and declin[ing]

to disturb” the Duke Memorandum. Pet. App. 81a, 86a.

The government then moved Judge Bates to revise the

April 2018 order and uphold the Duke Memorandum.

Pet. App. 81a.

In August 2018, Judge Bates issued an opinion

denying the government’s motion to revise. The opinion

was narrow: “The Court did not hold in its prior

opinion, and it does not hold today, that DHS lacks the

statutory or constitutional authority to rescind the

DACA program. Rather, the Court simply holds that if

DHS wishes to rescind the program—or to take any

other action, for that matter—it must give a rational

explanation for its decision.” Pet. App. 108a-109a (citing

5 U.S.C. § 706(2)). Judge Bates found, once again, that

DHS had failed to satisfy the bare minimum of rational

decisionmaking required by the APA. Pet. App. 108a109a.

The government filed a notice of appeal to the

United States Court of Appeals for the D.C. Circuit.

Pet. App. 112a, 114a. The government then moved

Judge Bates for a stay of the vacatur pending appeal.

Judge Bates granted the government’s motion in part,

aligning the vacatur order with relief granted by other

courts and maintaining a stable status quo: DHS did

not have to begin accepting initial DACA applications

or applications for advance parole, but the government

had to continue processing DACA renewals. Dkt. 86 at

2. The government has not sought a stay before the

D.C. Circuit.

The government’s opening brief was filed in the

D.C. Circuit on November 26, 2018. Briefing will be

complete in the D.C. Circuit on January 22, 2019.

On November 5, 2018, the government filed a

petition for a writ for certiorari before judgment in this

case and two others: Regents No. 18-587 as well as

Nielsen v. Batalla Vidal, No. 18-589. On November 8,

2018, the Ninth Circuit issued its opinion in the Regents

case. Two judges affirmed the district court in full,

holding that the rescission was reviewable and likely

unlawful. Regents Supp. Pet. App. 5a-78a. One judge

believed that the rescission was not reviewable under

the APA, but that the Regents respondents were likely

to prevail on their equal protection claim. Regents

Supp. Pet. App. 79a-87a.

On November 19, 2018, the government filed a

supplemental brief in this Court in the Regents case,

seeking to convert its petition for certiorari before

judgment into a petition for certiorari and arguing that

the Ninth Circuit opinion strengthened the case for

certiorari in all three cases. The government filed a

second supplemental brief on November 27, 2018,

correcting its prior supplemental brief and maintaining

the same position that certiorari before judgment

should be granted in this case.

REASONS FOR DENYING THE WRIT

Petitioners seek the extraordinary action of this

Court granting certiorari before any court of appeals

has reviewed a final judgment on the questions

presented—and before this case has been fully briefed

before the D.C. Circuit. Petitioners come nowhere near

satisfying this Court’s standards for a grant of

certiorari before judgment, and thus the petition should

be denied.

Review of the Regents Case Is Premature.

As the respondents in the Regents case explain,

notwithstanding the issuance of the Ninth Circuit’s

decision, the petition in that case does not meet the

standard for this Court’s review. That case does not

involve a circuit split. Nor does the petition present an

important question of federal law that should be

resolved now.

The first question presented asks only whether the

district court misapplied the long-settled legal standard

governing when agency action is exempt from judicial

review. Applying that standard, all courts that have

considered the matter have concluded that the agency’s

rescission of DACA is reviewable.

The second question presented addresses the

legality of DHS’s rescission of DACA. While that

question may ultimately merit this Court’s review,

granting certiorari at this stage would short-circuit the

development of these issues in the lower courts. “[T]his

is exactly the sort of issue that could benefit from

further attention in the courts of appeals.” Spears v.

United States, 555 U.S. 261, 270 (2009) (Roberts, C.J.,

dissenting). The D.C. Circuit, in particular, has valuable

expertise on questions of administrative law. It, along

with the Second and Fourth Circuits, will soon pass on

both issues presented by the petition, and the courts of

appeals will likely issue their decisions on these cases in

2019. Granting the petitions before those courts have

ruled would unnecessarily deprive the Court of their

analysis.

Additionally, the Ninth Circuit addressed the

questions presented in an interlocutory posture,

holding that the Regents respondents “are likely to

succeed in demonstrating that the rescission must be

set aside.” Regents Supp. Pet. App. 57a; see also

Regents Supp. Pet. App. 77a & n.31. This Court reviews

that determination solely for “abuse of discretion” and

“uphold[s] the injunction” if “the underlying …

question is close.” Ashcroft v. ACLU, 542 U.S. 656, 66465 (2004) (internal quotation marks omitted). For this

very reason, ordinarily this Court awaits final

judgment before granting a petition for review.5 See,

e.g., Va. Military Institute v. United States, 508 U.S.

946 (1993) (Scalia, J., concurring in denial of certiorari);

Am. Constr. Co. v. Jacksonville, Tampa & Key W. Ry.

Co., 148 U.S. 372, 384 (1893).

Moreover, the Regents respondents present a

distinct equal protection claim that the Ninth Circuit

found credible, but which had not been fully developed.

That claim was not the basis for the district court’s

entry of a preliminary injunction. Regents Supp. Pet.

App. 84a. Thus, it is not squarely presented for this

Court’s review. See Brown v. Chote, 411 U.S. 452, 457

(1973). As all three Ninth Circuit judges recognized,

however, if presented to the district court, that claim

may result in the entry of an identical preliminary

injunction, should the existing injunction be vacated.

See Regents Supp. Pet. App. 77a n.31, 84a-87a.

For these reasons, and those set forth in greater

detail by the Regents respondents, review of the

5 While this Court granted United States v. Texas on an

interlocutory posture, circumstances there were materially

different. DAPA had not yet been implemented, thus there were

no reliance interests to weigh in the balance of factors. See AR 183

(“The interest the government has identified can be effectively

vindicated after a trial on the merits. The interest the states have

identified cannot be, given the difficulty of restoring the status quo

ante if DAPA were to be implemented.”).

questions presented in that case is premature.

II.

The Petition for Certiorari Before

Judgment in this Case Should Be Denied.

Even leaving aside that the district court’s decision

below was correct on the merits, see infra pp. 18-34, the

petition for certiorari before judgment should be denied

for numerous reasons.

First, this case does not meet the standard for

review before judgment. Sup. Ct. R. 11. It does not

involve exigent circumstances remotely comparable to

those at issue in cases where the standard was met,

such as the legality of a military commission at a time of

war, Ex parte Quirin, 317 U.S. 1, 20 (1942); the

wartime seizure of a steel mill, Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 583-84 (1952); an

impending deadline involving the breach of an

international treaty, Dames & Moore v. Regan, 453

U.S. 654, 660 (1981); or grand jury proceedings

involving the sitting President, United States v. Nixon,

418 U.S. 683, 686-87 (1974). Nor is there “disarray

among the Federal District Courts” that might justify

this Court’s expedited review. Mistretta v. United

States, 488 U.S. 361, 371 (1989). Each case in which

certiorari before judgment has been granted involved

emergent issues of national security or issues that

“touch fundamentally upon the manner in which our

Republic is to be governed.” Dames & Moore, 453 U.S.

at 659. Even if the questions of administrative law in

this case may ultimately be appropriate for the Court’s

review, there is no comparable emergency here. Simply

put, this is not the “extremely rare” case that justifies

“deviation from normal appellate practice.” Coleman,

424 U.S. at 1304 n.* (Rehnquist, J., in chambers); Sup.

Ct. R. 11.

Second, the government’s own actions belie its

newly-minted claim of urgency. DACA has been in

place since 2012. The current administration continued

the program for more than eight months before

deciding to discontinue it in response to threats from

certain states. See Pet. App. 8a-9a. Even then, the

administration allowed some DACA recipients to

renew their deferred status, in effect extending the

program for an additional two and a half years. Because

the preliminary injunctions in other cases are limited

and the vacatur in this case is partially stayed, no new

applicants may receive deferred action under the

DACA program. Given this status, the district court in

the Southern District of Texas, the court which

invalidated DAPA, denied the states’ motion for a

preliminary injunction against DACA. Texas v. United

States, 328 F. Supp. 3d 662, 741-42 (S.D. Tex. 2018). No

exigency exists necessitating immediate review of a

policy that has been in place since 2012 and that the

government itself opted to extend in part through

March 2020.

The administration’s statements provide further

proof that immediate review is unwarranted. The

President has indicated that it is his “policy” to “allow

the dreamers to stay,” Dkt. 28-15 at 1939-40, and senior

officials have issued other statements in support of

DACA recipients, see, e.g., Dkt. 28-15 at 1922. Contrary

to Petitioners’ arguments, the President also has

asserted that he “certainly [has] the right” to keep

DACA in place and indicated he “might” decide to do

so. See READ: President Trump’s Full Exchange With

Reporters, CNN.com (Jan. 24, 2018), https://tinyurl.

com/ydcafdtr (CNN Statement).

Third, the government’s litigation conduct confirms

that immediate review is unnecessary. The government

has never sought to stay the preliminary injunctions

issued in the Northern District of California or the

Eastern District of New York. Nor did the government

seek a stay of Judge Bates’ decision to allow portions of

the vacatur to take effect consistent with those

preliminary injunctions. A stay request would require

Petitioners to demonstrate irreparable harm, and to

show that the balance of hardships favors a stay,

something Petitioners have never attempted to

articulate—and could not do, even if they tried.

Petitioners’ litigation choices “blunt [the government’s]

claim of urgency,” Ruckelshaus v. Monsanto Co., 463

U.S. 1315, 1317-18 (1983) (Blackmun, J., in chambers),

and “vitiate[] much of the force” of its claimed harm,

Beame v. Friends of the Earth, 434 U.S. 1310, 1313

(1977) (Marshall, J., in chambers).

Fourth, the government faces no concrete harm

from allowing this case to be decided first by the D.C.

Circuit. The government suggests that review is

necessary because it is being required to retain a policy

it believes is unlawful. Pet. 14-15. But the government

need not grant any new DACA applications. And the

asserted harm with respect to existing DACA

recipients does not warrant premature review: courts

regularly maintain the status quo while the

government litigates the extent of its authority or

legality of its conduct. E.g., Nat’l Ass’n of Mfrs. v. Dep’t

of Defense, 138 S. Ct. 617, 627 (2018) (noting the

“nationwide stay of the [Waters of the United States]

Rule pending further proceedings”); Gonzalez v. O

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.

418, 423 (2006) (affirming injunction against

enforcement of Controlled Substances Act). Indeed, an

alteration of the status quo pending final judgment is

the exception, not the norm. The purported harm of

maintaining in place a program that has existed since

2012, in the face of an attempt at rescission deemed

unlawful by Judge Bates, does not justify

circumventing the normal process for appellate review.

The alleged harm of permitting current DACA

recipients to maintain their status while this litigation

is pending is further discredited by Secretary Nielsen’s

testimony before Congress that DACA recipients

would not be an enforcement priority following

DACA’s rescission. See Hearing on Kirstjen M.

Nielsen to be Homeland Security Secretary Before the

S. Comm. on Homeland Sec. and Gov’t Affairs, 115th

Cong. (2017) (exchange with Senator Harris); accord

6 Even if DACA recipients are not likely to be immediately

removed, without DACA they will lose their authorization to

work. As described in detail in Respondents’ submissions to the

district court, the consequences for DACA recipients will be

disastrous, effectively cutting short promising careers and

educational programs and terminating DACA recipients’ ability to

support themselves and their families. See Dkts. 28-8, 28-17;

Regents Pet. App. 62a-66a (recognizing catastrophic consequences

of rescission and concluding that consequences for DACA

recipients and other affected parties outweigh government’s

asserted interest in initiating wind-down); Batalla Vidal Pet. App.

123a-126a (same).

Hearing on Oversight of the United States Department

of Homeland Security Before the S. Comm. on the

Judiciary, 115th Cong. (2018) (exchange with Senator

Harris). Moreover, the district court’s order does not

compel the government to “sanction” the unlawful

presence of anyone. Under DACA’s plain terms, each

renewal application is evaluated “on a case by case

basis,” AR 2, and DHS can initiate removal proceedings

against DACA recipients determined to present a risk

to national security or public safety. AR 1-3; see also

Regents Pet. App. 45a. As Judge Bates noted, this

litigation “does not itself delay the removal of any

specific alien.” Pet. App. 38a.

Fifth, for similar reasons, the continuation of DACA

causes no harm to the public. DACA recipients were

subjected to rigorous background checks and heavy

scrutiny to ensure they did not pose a “threat to

national security or public safety,” had not “been

convicted of certain criminal offenses,” and fulfilled

educational and work-related criteria. Pet. App. 4a.

Under the terms of the DACA program itself, the

government can terminate deferred action if, for

example, a DACA recipient is convicted of a

disqualifying crime. Sensibly, the government does not

even contend that the public might somehow be

harmed by the continued lawful presence of DACA

recipients during this litigation.

Sixth, the government is incorrect that the

pendency of this litigation may stymie legislative

resolutions to these issues. Pet. at 15. As the

government concedes, the challenge of achieving

legislative compromise long predates this litigation.

Pet. at 4, 15. And with a new Congress set to convene,

there is a renewed possibility of a legislative solution.

Congressional action could render the matter moot.

This

possibility

counsels

against

premature

consideration by this Court. See, e.g., Volpe v. D.C.

Fed’n of Civic Ass’ns, 405 U.S. 1030, 1030 (1972)

(Burger, C.J., concurring in denial of certiorari).

Finally, denying certiorari will not preclude

consideration of the questions presented. The

government’s demand that the Court abandon the

ordinary, time-tested appellate process is simply a

means to rush the case to the Court this Term—all in a

context where the government has never identified any

concrete harms caused by addressing this case in the

normal course. It is virtually certain that the D.C.

Circuit will issue a decision in plenty of time for a

petition to be considered next Term. See Aaron v.

Cooper, 357 U.S. 566, 566-67 (1958) (per curiam)

(denying petition for certiorari before judgment). If the

Court believes the questions merit review at that time,

it will have the benefit of additional circuit opinions. It

will also have the option of deciding these issues

through a vehicle that is not interlocutory.

III.

The District Court’s Decision Is Correct.

The Court should also deny certiorari because

Judge Bates’ decision is correct on the merits.

A. The Rescission of DACA Is Subject to

Judicial Review.

As every court to consider the first question

presented has agreed, DACA’s rescission is neither

“committed to agency discretion by law,” 5 U.S.C.

§ 701(a)(2), nor an action “to commence proceedings,

adjudicate cases, or executive removal orders,” 8

U.S.C. § 1252(g). See Pet. App. 25a-43a; Regents Pet.

App. 26a-30a; Batalla Vidal Pet. App. at 25a-31a; see

also Casa De Maryland v. U.S. Homeland Sec., 284 F.

Supp. 3d 758, 770 (D. Md. 2018), appeal docketed, No.

18-1522 (4th Cir. May 8, 2018).

1. There is a “strong presumption favoring judicial

review of administrative action,” that the government

“bears a heavy burden” to overcome. Mach Mining, 135

S. Ct. at 1651 (internal quotation marks omitted); see

also Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.,

139 S. Ct. 361, 369-70 (2018) (slip op. at 11). Section

701(a)(2) offers a “very narrow exception” to that

strong presumption, triggered only when “in a given

case there is no law to apply.” 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). That is not the case here.

a. The government’s lead argument is that “Section

701(a)(2) precludes review of an agency’s decision not

to institute enforcement actions” under Heckler v.

Chaney, 470 U.S. 821, 831 (1985). Regents Pet. 18. But

the government does not even contend that DACA’s

rescission is such a decision; rather, it seeks to expand

Chaney to make unreviewable all agency decisions

about whether and how to enforce federal statutes—no

matter the scope and formality of the agency’s decision,

no matter whether the decision reflects an erroneous

view of the agency’s legal authority, and no matter

whether the agency action at issue is a nonenforcement decision at all. Such an expansion—which

would encourage politically unaccountable agencies to

make policy in the guise of unreviewable legal

determinations—is unwarranted, unwise, and without

basis in law.

In Chaney, death-row inmates filed a petition

asking the FDA to initiate enforcement proceedings to

stop two states from using certain drugs in their

executions. See 470 U.S. at 823-24. The FDA responded

by letter, explaining that the agency’s enforcement

authority in the area was “generally unclear” and that,

in any event, the agency had decided that the particular

facts alleged did not meet the agency’s criteria for

initiating enforcement. See id. at 824-25. The inmates

sought judicial review, arguing that the FDA did have

authority to act and that it had misapplied its own

enforcement criteria. Id. at 825-26.

This Court held that “an agency’s decision not to

take enforcement action should be presumed immune

from judicial review.” Id. at 832. But the Court’s

decision was limited in two critical respects. First, the

Court was careful to note 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.” Id.

at 833 n.4. In such a case, “the statute conferring

authority on the agency” might suffice to indicate that

the agency’s decision to tie its own hands was not

“committed to agency discretion.” Id. (internal

quotation marks omitted). Second, the Court addressed

only an agency’s refusal to undertake a “particular

enforcement action” in a given instance. Id. at 831. The

Court referred throughout its opinion to an individual

“refusal to institute proceedings,” which it analogized

to an individual prosecutor’s decision “not to indict” a

given offender. Id. at 832; see id. at 827-38.

i. The government seeks to expand Chaney’s

narrow presumption of unreviewability from individual

non-enforcement decisions to “broad enforcement

polic[ies].” Regents Pet. 20 (quotation marks omitted).

But Chaney does not apply to general enforcement

policies at all. This Court has previously declined to

extend Chaney to decisions not to institute a

rulemaking. See Massachusetts v. EPA, 549 U.S. 497,

527 (2007). The Court noted as “key differences” the

fact that “agency refusals to initiate rulemaking ‘are

less frequent, more apt to involve legal as opposed to

factual analysis, and subject to special formalities,

including a public explanation.’” Id. (quoting Am. Horse

Protection Ass’n v. Lyng, 812 F.2d 1, 4 (D.C. Cir.

1987)). There are similar “ample reasons for

distinguishing” between broad enforcement policies

and “single-shot” nonenforcement decisions like in

Chaney. See Crowley Caribbean Transp., Inc. v. Pena,

37 F.3d 671, 676-77 (D.C. Cir. 1994).7

To be clear, Respondents do not suggest that all

challenges to broad enforcement policies are

necessarily amenable to review, but simply that they

are, as a class, outside Chaney’s narrow reversal of the

presumption of reviewability. In some cases, there may

For similar reasons, the lump sum appropriation held

unreviewable in Lincoln v. Vigil, 508 U.S. 182 (1993), is

distinguishable from a broad enforcement policy. Like a singleshot enforcement decision, the decision not to fund a program for

handicapped Indian children in the Southwest is not as amenable

to judicial review as a broad enforcement policy. Id. at 192-93.

be no “law to apply.” See infra pp. 24-26. And in many

cases, review of agency policies will be highly

deferential. See Massachusetts, 549 U.S. at 527 (holding

that review of a refusal to initiate rulemaking should be

deferential). But broad discretion is not the same as

unreviewable discretion, and neither Chaney nor any of

this Court’s other cases suggest that a general

enforcement policy is presumptively immune from

review under the APA.

ii. At a minimum, a general enforcement policy

predicated on a misconception of an agency’s legal

authority is presumptively reviewable. Agency

interpretations of law, by definition, are not

“committed to agency discretion,” as it is ultimately the

role of the courts to determine what the law is. DACA’s

rescission was predicated entirely—or, at a minimum,

overwhelmingly—on a legal judgment about the scope

of the Secretary’s authority. Supra p. 7. The district

court

held

that

“Chaney’s

presumption

unreviewability” did not apply “to a legal interpretation

phrased as a general enforcement policy,” including an

interpretation that “concerns the scope of the agency’s

lawful enforcement authority.” Pet. App. 39a. This

holding is correct.

An agency action premised on the belief that it is

compelled by law does not involve “a complicated

balancing of a number of factors which are peculiarly

within [the agency’s] expertise.” Chaney, 470 U.S. at

831. Indeed, the premise of Petitioners’ rescission is

that they lacked discretion to maintain DACA, so there

were no factors to balance. And for that reason, no

legitimate interest is served by insulating the agency’s

legal judgment from review. Barring review of an

agency policy based on the value of “enforcement

discretion” is nonsensical when the very legal error at

issue is the agency’s too-narrow definition of its own

enforcement discretion. As the district court put it, “an

official cannot claim that the law ties her hands while at

the same time denying the courts’ power to unbind

her.” Pet. App. 73a.

This rule also draws powerful support from the core

purposes of the APA. If an agency’s narrow assessment

of its legal authority were immune from review, an

agency could avoid political accountability for a major

policy choice by insisting that the law forced its hand—

just as the government has repeatedly claimed here—

while also evading any review of the legal judgment As

the district court underscored, approving that result

would thwart the APA’s commitment to ensuring that

agencies are subject to meaningful checks—“in the

court of public opinion” or, if not, in a court of law. Pet.

App. 72a-73a. ICC v. Brotherhood of Locomotive

Engineers, 482 U.S. 270 (1987), is not to the contrary.

There, the denial of a petition to reconsider certain

labor conditions was exactly the sort of single-shot

decision not to act that was held unreviewable in

Chaney. Id. at 282. And the agency did not contend it

was without authority to act—it simply did not believe

the petition had merit. The Court’s statement that an

agency action is not reviewable simply where “the

agency gives a ‘reviewable’ reason for otherwise

unreviewable action,” id. at 283, is beside the point

where, as here, the agency action is reviewable.

iii. Chaney is also inapposite because the rescission

of DACA is not “an agency’s refusal to take requested

enforcement action.” 470 U.S. at 831 (emphasis added).

Rather, the agency has affirmatively terminated a

significant program that provided a form of protection

against removal to hundreds of thousands of people and

offered them the opportunity to work, go to school,

obtain driver’s licenses, and seek other benefits. Supra

p. 4. Indeed, Chaney expressly distinguished nonenforcement decisions from affirmative government

actions:

[W]hen an agency refuses to act it generally does

not exercise its coercive power over an

individual’s liberty or property rights, and thus

does not infringe upon areas that courts often

are called upon to protect. Similarly, when an

agency does act to enforce, that action itself

provides a focus for judicial review, inasmuch as

the agency must have exercised its power in

some manner.

470 U.S. at 832 (emphasis in original).

Termination of a substantial program providing

access to important benefits undoubtedly addresses an

“area that courts often are called upon to protect.”

Because Chaney does not apply to affirmative actions

of that sort, DACA’s rescission is subject to the

ordinary presumption of reviewability, and the

government bears the burden to show that there is “no

law to apply.”

b. There are judicially manageable standards to

apply in resolving Respondents’ claims, and the

government makes little effort to contend otherwise.

First, the basis for the agency’s decision was a

determination that DHS lacks the statutory authority

to continue DACA. That is a purely legal judgment,

and, of course, legal standards exist to resolve legal

questions. See Int’l Union, UAW v. Brock, 783 F.2d

237, 246 (D.C. Cir. 1986) (noting that it is “almost

ludicrous to suggest that there is ‘no law to apply’ in

reviewing whether an agency has reasonably

interpreted a law”).

Second, in many cases, this Court has invalidated

agency action because it failed to “cogently explain why

it has exercised its discretion in a given manner.”

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 48-49 (1983). In

Judulang v. Holder, 565 U.S. 42 (2011), for example,

the Court unanimously rejected the government’s

policy for determining eligibility for discretionary

immigration relief as arbitrary and capricious,

explaining that the agency’s chosen approach was not

“tied, even … loosely, to the purposes of the

immigration laws or the appropriate operation of the

immigration system.” Id. at 55. Because the agency did

not “exercise its discretion in a reasoned manner,” its

policy could not “pass muster under ordinary principles

of administrative law.” Id. at 53, 64. The Court had no

difficulty making that judgment, even without a

statutory definition of the “appropriate operation of the

immigration system,” because the agency’s rationale

failed on its own terms. Id. at 55. The district court

undertook the equivalent inquiry in this case, ruling not

based on the wisdom of the particular immigration

policy at issue, but on the irrationality of the agency’s

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482). Here, as the district court explained, “there are no

pending removal proceedings with which plaintiffs’

challenge might interfere.” Pet. App. 21a.8

Accordingly, § 1252(g) does not bar review of

Respondents’ claims.

B. The District Court Correctly Held that the

Rescission of DACA Was Arbitrary and

Capricious.

1. The district court held that DHS failed to

“examine the relevant data and articulate a satisfactory

explanation for its action including a rational connection

between the facts found and the choice made.” Pet.

App. 48a. (quoting Encino Motorcars, LLC v. Navarro,

136 S. Ct. 2117, 2127 (2016)); see also Pet. App. 59a-60a.

That narrow holding, which does not rest on DACA’s

legality, is well grounded in this Court’s APA decisions.

First, the district court found the agency’s “scant

legal reasoning” contrary to this Court’s clear

articulation in Encino Motorcars of what the APA

requires. Pet. App. 49a-51a. The agency’s assertion that

DACA violated the INA was “based only on an

incongruous reference to the Fifth Circuit’s decision on

DAPA,” Pet. App. 52a, while its “analysis of DACA’s

8 In addition, § 1252(g) could not bar the claims brought by

Respondents Microsoft and Princeton, neither of whom is an alien

or suing solely “on behalf of” an alien. Rather, each has alleged

that the rescission of DACA will hamper its own operations—in

Princeton’s case as a university, in Microsoft’s case as a

corporation. See Dkt. 1, ¶¶ 61, 62; see also Batalla Vidal Pet. App.

38a-39a.

constitutionality was so barebones that the Court

cannot ‘discern[]’ the ‘path’ that the agency followed,”

Pet. App. 53a-54a (quoting Encino Motorcars, 136 S.

Ct. at 2125). Those failures were “particularly

egregious here in light of the reliance interests

involved.” Pet. App. 54a (citing Encino Motorcars, 136

S. Ct. at 2126); see also id. (“DACA had been in place

for five years and had engendered the reliance of

hundreds of thousands of beneficiaries, many of whom

had structured their education, employment, and other

life activities on the assumption that they would be able

to renew their DACA benefits.”). The district court

noted that this Court “has set aside changes in agency

policy for failure to consider reliance interests that pale

in comparison to the ones at stake here.” Pet. App. 54a55a (citing, e.g., Encino Motorcars, 136 S. Ct. at 2126).9

Second, the district court correctly found

inadequate the government’s explanation for its

“litigation risk” basis to rescind DACA. Pet. App. 55a59a. In the district court, the government argued that if

DACA were challenged in litigation brought by Texas,

“the district court there would enter a ‘nationwide

injunction’ that ‘would have prompted an immediate—

and chaotic—end to the policy.’” Pet. App. 55a (quoting

Defs.’ Reply at 15). The district court appropriately

9 The government suggests that it did consider these interests in

that it allowed DACA recipients to maintain their status until it

expired. Regents Pet. 26-27. But the Duke Memo belies that

argument: It does not so much as mention the interests of DACA

recipients, instead linking the choice to “wind [DACA] down in an

efficient and orderly fashion” to the “administrative complexities”

for the agency in ending the program. AR 254.

held this rationale “so implausible that it fails even

under the deferential arbitrary and capricious

standard.” Pet. App. 60a. In light of the discretion

available to a district court in Texas, “it strains

credulity” that such a court “would have enjoined

DACA immediately and completely without allowing

DHS any opportunity to wind the program down.”10

Pet. App. 58a. Because the agency failed even to

acknowledge the range of options available to a district

court, much less analyze and weigh them against the

benefits of maintaining the DACA program, the court

found this rationale arbitrary and capricious. Pet. App.

58a-59a.11

2. Relying on the Nielsen Memo, the government

seeks to morph its rationale for rescinding DACA into

an argument that it did so based on “serious doubts”

about DACA’s legality. To the extent that rationale

10 As expected, the Southern District of Texas denied Texas’s

motion for a preliminary injunction. Texas, 328 F. Supp. 3d at 74142.

11 For the exact reasons given by the district court, amici’s

argument that “threatened litigation” alone provided a “valid basis

for ending DACA,”—even absent any analysis of the likely

outcome of the litigation or of the costs of rescinding DACA—is

baseless. Texas, Amicus Br. at 10. Moreover, Respondents

identified additional failures of explanation, but the district court

did not reach them in light of its central ruling that the rationales

provided for rescission were themselves inadequate. Nevertheless,

DACA’s rescission could equally be invalidated for failing to

consider alternatives, such as enhancements to the individualized

review of DACA applications, or failing to explain the reasoning

underlying the agency’s idiosyncratic and haphazard “wind-down”

process. See State Farm, 463 U.S. at 50-51.

differs in substance from the rationale in the Duke

Memo, it may not be used to justify, retroactively,

Acting Secretary Duke’s rescission of DACA. And, in

any event, it too fails arbitrary and capricious review.

a. The Duke Memo articulates only one independent

rationale for DACA’s rescission: the claim that DACA

is illegal. Both Attorney General Sessions’ letter and

the Duke Memo are framed in purely legal terms. AR

251-256.

Indeed,

after

declaring

DACA

“unconstitutional” and lacking in “proper statutory

authority,” Attorney General Sessions invoked the

“duty to defend the Constitution and faithfully execute

the laws passed by Congress” and touted the

“restoration of the rule of law” that DACA’s rescission

would purportedly bring about. AR 251. In this context,

the Attorney General’s passing assertion that a court

would “likely” agree with him about DACA, AR 251,

cannot plausibly be viewed as a freestanding basis for

rescission. And the Duke Memo that followed the next

day added nothing of substance to the Attorney

General’s analysis, and certainly nothing resembling a

policy assessment.

The new justifications for the rescission of DACA

contained in the Nielsen Memo cannot retroactively

bolster the prior decision. Alpharma, Inc. v. Leavitt,

460 F.3d 1, 6 (D.C. Cir. 2006) (citing Overton Park, 401

U.S. at 420).12 As the district court put it, there is a

12 As the district court observed: “[H]ad Secretary Nielsen opted

to issue a new decision rescinding DACA, the explanations offered

in her memorandum would be contemporaneous and, consequently,

not post hoc. She did not do this, however.” Pet. App. 94a n.7.

Moreover, if Secretary Nielsen had taken a separate

critical distinction between “an ‘amplified articulation’

of the agency’s prior reasoning (which must be

considered),” and “‘a new reason for why the agency

could have’ taken the action (which must be

disregarded).” Pet. App. 92a (citations omitted).

Camp v. Pitts, 411 U.S. 138 (1973), is instructive.

There, an agency declined to approve a bank charter,

and the court of appeals held that the agency’s

explanation for that decision was deficient. This Court

held that under Overton Park, the court could obtain

“such additional explanation of the reasons for the

agency decision as may prove necessary.” 411 U.S. at

143. But the Court stressed a “caveat”: “Unlike

Overton Park, in the present case there was

contemporaneous explanation of the agency decision”

to deny the bank charter; and while that explanation

“may have been curt,” it “surely indicated the

determinative reason for the final action taken.” Id.

Accordingly, the Court said, the validity of the agency’s

action “must … stand or fall on the propriety of that

finding.” Id. If the pivotal finding could not be

sustained even with the benefit of further explanation

from the relevant personnel, the agency would need to

make a fresh decision on remand. Id. (citing SEC v.

Chenery Corp., 318 U.S. 80 (1943)); see also Pension

Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654

(1990) (reaffirming that Overton Park authorizes “a

remand to the agency for a fuller explanation of the

administrative action, Respondents would be entitled to review

the administrative record to assess whether Secretary Nielsen

weighed all of the relevant interests, “look[ing] at the costs as well

as the benefits.” State Farm, 463 U.S. at 52, 54.

agency’s reasoning at the time of the agency action”

(emphasis added)); Pet. App. 82a.

Thus, while the Nielsen Memo’s legal analysis may

be considered, its other arguments—and certainly its

“policy” arguments, to the extent they exist—may not

be used to uphold the rescission.

b. Even if a court could consider the Nielsen Memo’s

“serious doubts about DACA’s legality,” that

justification is arbitrary and capricious.

First, the Nielsen Memo no more explains its

“doubts” about DACA’s legality than did the Duke

Memo explain its conclusion. Pet. App. 106a. Secretary

Nielsen asserts that DACA “was contrary to law”

without specifying which law,13 saying only that the

Fifth Circuit’s DAPA decision turned on the

“incompatibility of such a major non-enforcement policy

with the INA’s comprehensive scheme.” Regents Pet.

App. 122a. But she does not articulate when a nonenforcement policy becomes sufficiently “major” that it

is incompatible with the INA. For example, Secretary

Nielsen does not say which of the myriad past deferred

action programs would pass muster under this novel,

13 To the extent the government contends that DACA was

improper because it would have required notice and comment, that

itself would not be sufficient to uphold the rescission because the

government would have needed notice and comment to undo the

program. See Consumer Energy Council of Am. v. FERC, 673

F.2d 425, 446 (D.C. Cir. 1982) (“[T]he APA expressly contemplates

that notice and an opportunity to comment will be provided prior

to agency decisions to repeal a rule.”), aff’d sub nom. Process Gas

Consumers Grp. v. Consumer Energy Council of Am., 463 U.S.

1216 (1983).

barely-articulated standard. Dkt. 28-16 at 2158-60. And

even though her analysis appears to turn on whether a

non-enforcement policy is sufficiently “major,”

Secretary Nielsen does not address the significant

differences between DACA and DAPA as to scope and

size: both that DAPA, unlike DACA, was an “openended” policy “with no established end-date,” AR 251,

and that there were almost four persons eligible for

DAPA for each person eligible for DACA. Even

combining the efforts of the Duke and Nielsen Memos,

it remains true that “[w]hatever potential reasons

[Defendants] might have given, [they] in fact gave

almost no reasons at all.” Encino Motorcars, LLC v.

Navarro, 136 S. Ct. 2117, 2127 (2016).

The Nielsen Memo’s discussion of reliance interests

also remains inadequate. Secretary Nielsen notes her

awareness “that DACA recipients have availed

themselves of the policy” and states that the “asserted

reliance interests” do not “outweigh the questionable

legality of the DACA policy and [the] other reasons for

ending the policy discussed above.” Regents Pet. App.

125a. But acknowledging that DACA has existed is not

the same thing as weighing the real effects of its

rescission. Thus, like the Duke Memo, the Nielsen

Memo “entirely failed to consider an important aspect

of the problem.” State Farm, 463 U.S. at 43.

Second, even if Secretary Nielsen had provided an

adequate explanation, it would be incorrect. DACA is a

lawful exercise of DHS’s broad statutory authority 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)(1), including

by providing for work authorization, 8 U.S.C.

§ 1324a(h)(2). As the United States itself has previously

argued, the government has long used deferred action

to effectuate its enforcement priorities. See Dkt. 28-16

at 2152-74.14 Because the government is incorrect about

DACA’s legality, rescission based on that rationale is

arbitrary and capricious. SEC v. Chenery Corp., 318

U.S. 80, 94 (1943) (“[A]n order may not stand if the

agency has misconceived the law.”).

Accordingly, Secretary Duke’s rescission of DACA

remains arbitrary and capricious and cannot be saved

by the Nielsen Memo. Because the district court’s

narrow and well-reasoned decision is correct, the

petition should be denied.

14 In arguing that DACA is illegal, amici entirely ignore not only

the well-established history of deferred action programs, but also

the 2014 OLC Memorandum explicitly determining that DACA

was a lawful exercise of executive discretion. See Texas, Amicus

Br. 12. But failing to acknowledge evidence contrary to its position

does not render that evidence invalid.

CONCLUSION

The petition for a writ of certiorari before judgment

should be denied.

Respectfully submitted,

JOSEPH M. SELLERS

JULIE S. SELESNICK

COHEN MILSTEIN SELLERS

& TOLL PLLC

1100 New York Ave., N.W.

Fifth Floor

Washington, DC 20005

(202) 408-4600

Counsel for Respondents

NAACP; American

Federation of Teachers,

AFL-CIO; United Food and

Commercial International

Union, AFL-CIO

THOMAS J. PERRELLI

LINDSAY C. HARRISON

Counsel of Record

SAM HIRSCH

ISHAN BHABHA

ALEX S. TREPP

JENNER & BLOCK LLP

1099 New York Ave., N.W.

Suite 900

Washington, DC 20001

(202) 639-6000

lharrison@jenner.com

Counsel for Respondents The

Trustees of Princeton

University, Microsoft

Corporation, and Maria De

La Cruz Perales Sanchez

RAMONA E. ROMERO

WESLEY MARKHAM

Princeton University

New South Building

Fourth Floor

Princeton, NJ, 08544

(609) 258-2500

CYNTHIA L. RANDALL

MICROSOFT CORPORATION

One Microsoft Way

Redmond, WA 98052

(425) 538-3176

Counsel for Respondent

Microsoft Corporation

Counsel for Respondent The

Trustees of Princeton

BRADFORD M. BERRY

University

NAACP

4805 Mount Hope Drive

DAVID J. STROM

Baltimore, MD 21215

AMERICAN FEDERATION OF

(410) 580-5797

TEACHERS, AFL-CIO

555 New Jersey Ave. N.W.

Counsel for Respondent

Washington D.C.

NAACP

(202) 393-7472

PETER J. FORD

UNITED FOOD &

Counsel for Respondent

COMMERCIAL WORKERS

American Federation of

NTERNATIONAL UNION,

Teachers, AFL-CIO

AFL-CIO, CLC

1775 K Street. N.W.

Washington D.C. 20006

(202) 223-3111

Counsel for Respondent

United Food & Commercial

Workers International Union,

AFL-CIO, CLC

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.