Amicus Curiae Brief — Chad Wolf, Acting Secretary of Homeland Security, et al., Petitioners v. Martin Jonathan Batalla Vidal, et al.

Nos. 18-587 and 18-589

444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States

____________________

DEPARTMENT OF HOMELAND SECURITY, ET AL., Petitioners,

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

____________________

KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND

SECURITY, ET AL., Petitioners,

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

____________________

On Petitions for Writs of Certiorari to the U.S.

Courts of Appeals for the Ninth and Second Circuits

____________________

Brief Amicus Curiae of Citizens United, Citizens

United Foundation, English First Foundation, Public

Advocate of the U.S., The Senior Citizens League, 60

Plus Foundation, Gun Owners of America, Gun

Owners Foundation, Conservative Legal Defense

and Education Fund, Patriotic Veterans, Policy

Analysis Center, and Restoring Liberty Action

Committee in Support of Petitioners

____________________

JOSEPH W. MILLER

RESTORING LIBERTY

ACTION COMMITTEE

Fairbanks, AK 99708

Attorney for Amicus Curiae

RLAC

December 6, 2018

WILLIAM J. OLSON*

HERBERT W. TITUS

JEREMIAH L. MORGAN

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

*Counsel of Record

444444444444444444444444444444444444444444

TABLE OF CONTENTS

Page

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

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

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

ARGUMENT

I.

THE ACTION RESCINDING DACA IS

JUDICIALLY UNREVIEWABLE. . . . . . . . . . . . . . . . 6

A. The Attorney General’s Oath to Support

the Constitution Is Equal to and

Independent of the Judiciary . . . . . . . . . . . 7

B. The Judicial Power “to Say what the

Law Is” Is Neither Exclusive Nor Final . . 10

C. The Executive’s Exercise of Power Is

Politically Accountable to the People,

Not the Courts. . . . . . . . . . . . . . . . . . . . . . 12

II. THE SECRETARY’S DECISION TO RESCIND

DACA WAS NOT ARBITRARY AND CAPRICIOUS

BECAUSE THE ORIGINAL DECISION TO

IMPLEMENT THE DACA POLICY WAS

UNLAWFUL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

III. THE NATIONWIDE INJUNCTIONS EXCEEDED

THE DISTRICT COURTS’ AUTHORITY . . . . . . . . . 18

ii

IV. THE NEW YORK DISTRICT COURT

ERRONEOUSLY CONCLUDED THAT ENDING

DACA WOULD HARM THE SOCIAL SECURITY

TRUST FUNDS.. . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

TABLE OF AUTHORITIES

Page

U.S. CONSTITUTION

Article II, Section 4 . . . . . . . . . . . . . . . . . . . . . . . . 12

Article III, Section 2 . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Article VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8

STATUTES

5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

8 U.S.C. § 1611(b)(2)-(3). . . . . . . . . . . . . . . . . . . . . 25

CASES

Janus v. AFSCME, Council 31, 138 S. Ct.

2448 (2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . 11

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

2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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

(S.D.TX. 2018) . . . . . . . . . . . . . . . . . . . . . . 17, 25

Texas v. United States, 86 F. Supp. 3d 591

(S.D.TX. 2015) . . . . . . . . . . . . . . . . . . . . . . 21, 22

Trump v. Hawaii, 138 S.Ct. 2392 (2018). . . . . . . . 20

Trump v. IRAP and Trump v. Hawaii, 582

U.S. ____ 138 S. Ct. 34 (2017) . . . . . . . . . . . . . 19

Washington v. Trump, 847 F.3d 1151 (9th Cir.

2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

MISCELLANEOUS

A. Bickel, The Least Dangerous Branch

(Yale Press: 1965) . . . . . . . . . . . . . . . . . . . . . . 10

Blackstone’s Commentaries on the Laws of

England (U. Chi. Press, Facsimile ed.:

1765) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

iv

50 Core American Documents (C. Burkett,

ed.: Ashbrook Press: 2016) . . . . . . . . . . . . . . . 11

Congressional Research Service, “Social Security

Benefits for Noncitizens” (Nov. 17, 2016) . . . . 25

G. Gunther, Constitutional Law (12th ed.,

Found. Press: 1991) . . . . . . . . . . . . . . . . . . . . . . 9

Attorney General Jeff Sessions Remarks on

Judicial Encroachment (Oct. 15, 2018). . . . . . 18

J. Richwine, “Ninth Circuit Ruling on DACA

Contains Several False or Misleading

Statements,” Center for Immigration

Studies (November 27, 2018) . . . . . . . . . . . . . . 3

Social Security Administration, 2018 Annual

Report of the Trustees (June 5, 2018). . . . 25, 26

Social Security Administration, Office of the

Chief Actuary, Actuarial Note No. 2017.9

(July 2017), “Replacement Rates for

Hypothetical Retired Workers” . . . . . . . . . . . . 24

L. Tribe, American Constitutional Law

(2d ed., Found. Press 1988) . . . . . . . . . . . . 12, 13

INTEREST OF THE AMICI CURIAE1

Citizens United, Public Advocate of the United

States, The Senior Citizens League, Gun Owners of

America, Inc., and Patriotic Veterans are nonprofit

social welfare organizations, exempt from federal

income tax under Internal Revenue Code (“IRC”)

section 501(c)(4). Citizens United Foundation, English

First Foundation, 60 Plus Foundation, Gun Owners

Foundation, Conservative Legal Defense and

Education Fund, and Policy Analysis Center are

nonprofit educational and legal organizations, exempt

from federal income tax under IRC section 501(c)(3).

Restoring Liberty Action Committee is an educational

organization. These organizations were established,

inter alia, for purposes related to participation in the

public policy process, including conducting research,

and informing and educating the public on the proper

construction of state and federal constitutions, as well

as statutes related to the rights of citizens, and

questions related to human and civil rights secured by

law.

Some of these amici filed amicus briefs in two of

these cases earlier this year:

• U.S. Department of Homeland Security v.

Regents of the University of California, Brief

1

It is hereby certified that counsel for the parties have consented

to the filing of this brief; that counsel of record for all parties

received notice of the intention to file this brief at least 10 days

prior to the filing of it; that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

Amicus Curiae of Citizens United, et al., U.S.

Supreme Court (Feb. 2, 2018); and

• Vidal v. Nielsen, Brief Amicus Curiae of

Citizens United, et al., U.S. Court of Appeals for

the Second Circuit (Mar. 14, 2018).

STATEMENT

Even though the case below was initiated by the

Regents of the University of California against Donald

J. Trump, Ninth Circuit Judge Wardlaw would have

the reader of her opinion believe that the sole plaintiff

is Dulce Garcia. At the outset of her lengthy opinion,

Judge Wardlaw devotes three detailed paragraphs to

Garcia’s life, rising from a past of poverty and

homelessness to a thriving “legal practice in San

Diego,” all of which is now being put in jeopardy by “a

change in presidential administrations.” Bd. of

Regents, Univ. of California v. Trump, 2018 U.S. App.

LEXIS 31688 at *18-*19 (9th Cir. 2018). It’s as if

Garcia’s life story typifies the 689,800 noncitizens

enrolled in Deferred Action for Childhood Arrivals

(“DACA”) (id. at *34), each of whom is supposedly in

imminent danger of deportation from this country,

even though “the United States of America is the only

home she has ever known,” having been brought here

illegally at four years of age. Id. at *18. Judge

Wardlaw’s broadside allegation seems better suited to

having been made in opposition to Trump’s

immigration policies on the campaign trail, rather

than a recitation of facts in support of a judicial

3

opinion.2

Her broad brush enables her to sweep into one

group an entire class of DACA eligibles to speak with

one voice that they, like Garcia, “trust[ed] the

government to honor its promises,” and were entitled

to “two-year renewable periods of deferred action,”

even though DACA was a “revocable decision by the

government not to deport an otherwise removable

person from the country.” Regents at *19. And yet

Judge Wardlaw contends that the Government would

deny Garcia her day in court to contest the Trump

administration’s decision to end DACA because of the

Government’s “legal determination that DACA is

unlawful is unreviewable by the judicial branch.” Id.

at *20.

However, as the Government points out in its

Petition, its action rescinding the DACA program does

not entail the “‘exercise [of] 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.’” Petition for Certiorari (“Pet.”) at 18.

Furthermore, a person like Garcia is not likely to be

deported given her present professional stature. And

there is nothing in the record to indicate the likelihood

of any adverse action, even after the repeal of DACA

2

See J. Richwine, “Ninth Circuit Ruling on DACA Contains

Several False or Misleading Statements,” Center for Immigration

Studies (Nov. 27, 2018) (“In her ruling that the Trump

Administration must continue [DACA], Ninth Circuit Judge Kim

McLane Wardlaw makes several false or misleading statements

intended to portray DACA recipients positively.”)

4

“‘for humanitarian reasons or simply for [the INS’s]

own convenience.’” Regents at *22. Rescission of the

DACA program, therefore, does not mean that the INS

would no longer recognize what Judge Wardlaw terms

“the cruelty and wastefulness of deporting productive

young people to countries with which they have no

ties,” or ignore “those noncitizens ... who have clean

criminal records, and who meet various educational or

military service requirements.” Id. at *18-*19. Thus,

as Judge Wardlaw concedes, deferred action may be

extended to individuals like Garcia under “the

Executive’s inherent authority to allocate resources

and prioritize cases.” Id. at *21-*22.

SUMMARY OF ARGUMENT

If, as the Ninth Circuit appears to believe, the

continuation of DACA was an action within the

judicially unreviewable discretion of the executive

department of the Obama administration, then it

would be only common sense that the action of the

executive department of the Trump Administration

rescinding DACA is similarly unreviewable. But the

Ninth Circuit ruled otherwise, asserting that

President Trump’s Attorney General transformed what

would have been an exercise of discretion into a

judicially reviewable act solely by his belief that DACA

should be rescinded because it was initially an

unconstitutional exercise of executive authority. The

Ninth Circuit decision is erroneous.

First, it is based upon the flawed assumption that

the executive oath of office to support the Constitution

is subject to review by the judiciary whereas the oaths

5

of office prescribed by Article VI of the Constitution

apply separate and equally to officers of each of its

three branches. Second, it is based upon the flawed

assumption that judicial review of the constitutionality

of the exercise of executive power is exclusive and

final, measured only by court precedents, not by the

constitutional text. And, third it is based on the

flawed assumption that the federal judiciary is more

accountable to the People, than the agencies of the

executive department.

The case before the court involves the lawfulness

of the action by the Trump Administration to wind

down and terminate the Obama Administration’s

DACA policy. This was an issue on which President

Trump campaigned, and which he was elected by the

People to implement. The actions by the courts below

assume the legality of DACA, rather than decide it.

They have been seen by many as thwarting the

expressed will of the People, not because DACA repeal

violates a provision of the U.S. Constitution or a

federal law, but because it violates the will of the

Judges. If the American People do not believe they can

change policy by changing Presidents, our nation will

move into a dangerous time, that would resemble what

France is now experiencing with the “Yellow Vest”

riots.

The issuance of nationwide, universal injunctions

by courts proclaiming what the laws are for all rather

than settling disputes between parties before it, is a

new and troublesome development with serious

repercussions for the rule of law. The ability of

litigants to file challenges to Executive Branch action

6

in carefully selected jurisdictions to get rulings from

judges thought to be predisposed to the plaintiffs’

cause impairs the proper functioning of a

constitutional republic. The Court should order

briefing on the legality of universal injunctions in its

order granting certiorari.

The adverse effects on the nation from the DACA

policy, including the financial drain from giving lawful

status to hundreds of thousands of persons in the

country illegally has been misrepresented in the courts

below, demonstrating why judges with no

responsibility for the public fisc should exercise great

care in issuing orders imposing burdens on the People

without responsibility or accountability to the

electorate.

ARGUMENT

I.

THE ACTION RESCINDING DACA

JUDICIALLY UNREVIEWABLE.

IS

There can be little doubt that, had the DHS

decided to continue DACA, its action would be

judicially unreviewable as an exercise of executive

discretionary power. As the Government points out in

its petition, “[l]ike the decision to adopt a policy of

selective non-enforcement, the decision whether to

retain such a policy can ‘involve[] a complicated

balancing’ of factors that are ‘peculiarly within [the]

expertise’ of ... the agency’s overall policies.” Pet. in

18-587 at 19. As the Government elaborated:

a decision to abandon an existing non-

7

enforcement policy will not, in itself, bring to

bear the agency’s coercive power over any

individual. Indeed, an agency’s decision to

reverse a prior policy of civil non-enforcement

is akin to changes in policy as to criminal

prosecutorial discretion, which regularly occur

within the U.S. Department of Justice both

within and between presidential

administrations, and which have never been

considered amenable to judicial review. [Id.]

The Ninth Circuit panel opinion, however, appears to

reject this claim of unreviewable discretion if the

Government’s reason given in support of its decision

not to retain DACA is that it was obliged by the

Constitution to do so. Indeed, Circuit Judge Wardlaw

goes to great lengths to establish that, on this record,

the sole reason for the decision to jettison DACA was

not a “pragmatic” assessment of “‘litigation risk[s],’”

but the firm “belief that DACA was illegal.” Regents

at *53-*57. In other words, Judge Wardlaw reached

the conclusion that, because the DACA rescission was

based on the Attorney General’s opinion that DACA

was unconstitutional, it was a reviewable “act of

discretion.” Id. at *57.

A. The Attorney General’s Oath to Support

the Constitution Is Equal to and

Independent of the Judiciary.

As an officer of the Executive Department of the

United States, the Attorney General is bound by oath

to support “this Constitution” of the United States.

Pursuant to that oath of office, the Attorney General

8

determined that DACA “was an unconstitutional

exercise of authority by the Executive Branch.”

Regents at *32-*33. By his express reliance on the

Constitution, Judge Wardlaw believed, the Attorney

General’s action transformed what theretofore had

been an exercise of executive discretion, unreviewable

by the judicial branch, into a reviewable constitutional

determination. Missing from the judge’s analysis is

the fact that not only the judiciary is bound by oath to

support “this Constitution” of the United States. The

Attorney General, as an officer of the executive branch,

must support the Constitution as he understands it.

As such, the Attorney General is not akin to a junior

member of the judicial branch, subject to oversight

review by a higher judicial officer. Rather, Article VI

of the Constitution treats officers in the executive and

judicial branches of the federal government as equals,

each independently bound by oath to support the

Constitution in the exercise of his respective powers.

Thus, the Attorney General is certainly not obliged

by law or by his oath of office to submit his legal

opinion for court review before he takes action on a

constitutional matter before him. Indeed, had the

Attorney General submitted his opinion for review by

an Article III judge, he would have been rebuffed for

having requested the courts for an “advisory opinion,”

outside the jurisdiction of any federal court over cases

and controversies. As all of the justices of the United

States Supreme Court wrote to President Washington

in 1793:

[T]he three departments of the government

9

[being] in certain respects checks upon each

other, and our being judges of a court in the

last resort, are considerations which afford

strong arguments against the propriety of our

extrajudicially deciding questions alluded to,

especially as the power given by the

Constitution, of calling on the heads of

departments for opinions, seems to have been

purposely as well as expressly united to the

executive.... [Quoted in G. Gunther,

Constitutional Law at 1393-94 (12th ed.,

Found. Press: 1991).]

Judge Wardlaw’s vision of the role of the judiciary

appears to be at odds with the one envisioned by Chief

Justice Jay.

If an agency head is mistaken in her

assessment that the law precludes one course

of action, allowing the courts to disabuse her of

that incorrect view of the law does not

constrain discretion, but rather opens new

vistas within which discretion can operate.

[Regents at *47.]

Elaborating, Judge Wardlaw hypothesized, “if an

administrator chooses option A for the sole reason that

she believes option B to be beyond her legal authority,

a decision from the courts putting option B back on the

table allows a reasoned, discretionary policy choice

between the two courses of action.” Id. at *47-*48. In

other words, why wait for an individual case or

controversy to arise under Article III, Section 2, when

the courts could step in and decide the legal questions

10

before anyone is injured by an erroneous legal decision

by an administrative officer? Professor Alexander

Bickel cautioned against such activist intervention:

One of the chief faculties of the judiciary ... is

that the judgment of courts can come later,

after the hopes and prophecies expressed in

legislation have been tested in the actual

workings of our society; the judgment of courts

may be had in concrete cases that exemplify

the actual consequences of ... executive actions.

[A. Bickel, The Least Dangerous Branch at

115-16 (Yale Press: 1965).]

B. The Judicial Power “to Say What the Law

Is” Is Neither Exclusive Nor Final.

Judge Wardlaw’s vision of an upfront, activist

judiciary, intimately involved in the exercise of

executive discretion, not only violates the separation of

powers, but elevates the judiciary to new heights. Not

only does she affirm the judiciary’s “province and duty

... to say what the law is,” she assumes that its

province and duty is both exclusive and final. It is

neither.

President Andrew Jackson, in his famous 1832

message to the Senate explaining his veto of the bill

rechartering the Bank of the United States, put the

judiciary and its power of judicial review into its

proper place in a government of separated powers:

The Congress, the Executive, and the Court

must each for itself be guided by its own

11

opinion of the Constitution. Each public

officer who takes an oath to support the

Constitution swears that he will support it as

he understands it, and not as it is understood

by others.... The opinion of the judges has no

more authority over Congress than the opinion

of Congress has over the judges, and on that

point the President is independent of both.

The authority of the Supreme Court must not,

therefore, be permitted to control the Congress

or the Executive when acting in their

legislative capacities, but to have only such

influence as the force of their reasoning may

deserve. [Veto Message of the Bill on the Bank

of the United States, reprinted in 50 Core

American Documents at 166-67 (C. Burkett,

ed.: Ashbrook Press: 2016).]

In contrast, Judge Wardlaw believes that the

judicial branch has the “ultimate responsibility” — or

the final say — as to what the law is. Id. at *51. This

is a serious misunderstanding of Marbury v. Madison

which recognized that: “the very essence of judicial

duty” is to decide the case “conformably” to the law or

to the Constitution which ever one applies. Id., 5 U.S.

137, 177-78 (1803). However, in Judge Wardlaw’s

eyes, the judicial branch is apparently above the law,

measuring the correctness of a judicial opinion of the

law by its own precedents, not by any objective

standard.3 In Blackstone’s day, “the laws of nature

and of nature’s God” provided a universal standard by

3

See, e.g., Janus v. AFSCME, Council 31, 138 S. Ct. 2448 at 249798 (2018) (Kagan, J., dissenting).

12

which law in a civil society could be measured. See I

Blackstone’s Commentaries on the Laws of England

38-43, 69-71 (U. Chi. Press, Facsimile ed.: 1765).

Thus, Blackstone observed:

“the law,” and the opinion of the judge are not

always convertible terms, or one and the same

thing; since it sometimes happens that the

judge may mistake the law. [Id. at 71.]

C. The Executive’s Exercise of Power Is

Politically Accountable to the People, Not

the Courts.

Startlingly, Judge Wardlaw claims that, by

expanding the power of the judicial branch, the federal

government would “promote accountability within the

Executive Branch — not accountability to the courts,

but democratic accountability to the people.” Regents

at *48. On its face, this claim is incredible. Of the

three branches of the federal government, the judicial

branch is the least accountable to the people. Both

houses of Congress are directly elected by the people at

fixed times and for limited terms of office. The

President, although not directly elected by the people,

must stand for election every four years, and may not

stand for reelection after serving two of those four-year

terms. In contrast, judges are appointed by the

President with the advice and consent of the Senate,

“hold[ing] their offices during good behavior.”

Except for the remote threat of impeachment

under Article II, Section 4, a federal judgeship has

become a life-time appointment. As Harvard Professor

13

Lawrence Tribe has observed: “once appointed, they

cease to be accountable even to the elected officials

who nominated and confirmed them but rather are

secured in their independence by life tenure and

guaranteed salary.” L. Tribe, American Constitutional

Law at 62 (2d ed., Found. Press 1988).

That is not all. As Professor Tribe also points out:

Perhaps even more significantly, judicial

review is itself said to be antidemocratic since

its result is the invalidation of government

action, legislative or executive — action that,

however indirectly, did have the sanction of

the electorate. It is obvious, the critics argue,

that if judicial review cuts against the grain of

representative democracy, judges should

invoke their power to strike down legislative

and executive power only sparingly. [Id.]

The decision to force the retention of DACA on the

nation is nothing less than an unconscionable attempt

to nullify the results of a presidential election.

II. THE SECRETARY’S DECISION TO RESCIND

DACA WAS NOT ARBITRARY AND

CAPRICIOUS BECAUSE THE ORIGINAL

DECISION TO IMPLEMENT THE DACA

POLICY WAS UNLAWFUL.

This case comes to this Court in a somewhat

unusual procedural posture — a petition to review

three lower court injunctions blocking the Trump

Administration’s decision to wind down the DACA

14

program. As such, the issue of the legality of the

original DACA program, and as amended, is not front

and center. However, should this Court determine

that the rescission of DACA is judicially reviewable

(which these amici believe it is not, see Section I,

supra), then these amici would urge that the

lawfulness of the original DACA order be identified as

one of the questions to be briefed when the writ is

issued, for several reasons.

In issuing his injunction District Judge Garaufis

directly and repeatedly addressed the issue of the

legality of DACA to support his view that its rescission

was illegal. Vidal v. Nielsen, 279 F. Supp. 3d 401, 42027 (E.D.NY. 2018). That fact alone makes it almost

impossible to review the legality of the rescission

without deciding the legality of DACA.

Moreover, in evaluating the likelihood of success

on the merits, Judge Garaufis assumed that the Duke

Memorandum was based exclusively on the September

4, 2017, one-page letter of the Attorney General to

Acting Secretary Duke.

See Memorandum on

Rescission of Deferred Action for Childhood Arrivals

(DACA) (Sept. 5, 2017) App. 111a, et seq. The judge

flatly disagreed with every sentence of the Attorney

General’s Memorandum.

In one section of his

argument, he claims that “The Attorney General Erred

in Concluding that DACA was unconstitutional”(Vidal

at 422), then, “The Attorney General Erred in

Concluding that DACA Has the ‘Same Legal and

Constitutional Defects that the Courts Recognized as

to DAPA” (id. at 423), and finally that the Duke

Memorandum “Relies on a Factually Erroneous

15

Premise that Courts Have Determined that DACA is

Unconstitutional” (id. at 427). Each of these

foundations for his injunction are refutable and should

be reviewed by this Court.

In fact, the DACA wind-down Memorandum issued

by Acting Secretary Duke referenced the Attorney

General’s letter, but was by no means limited to it.

The Duke Memorandum asserted several bases for its

issuance:

• that the original DACA memorandum of June

15, 2012, was based on a “purported” act of

prosecutorial discretion, which could only be

applied on “an individualized case-by-case

basis.” Id. at 112a.

• that the DACA memorandum “confer[ed]

certain benefits to illegal aliens that Congress

had not otherwise acted to provide by law.” Id.

• that the Feb. 16, 2015 order of the U.S. District

Court for the Southern District of Texas

enjoining DAPA concluded that the states “were

likely to succeed on their claim that the DAPA

program did not comply with relevant

authorities.” Id. at 113a.

• that the U.S. Court of Appeals for the Fifth

Circuit agreed that the “DAPA policy conflicted

with the discretion authorized by Congress” as

the Immigration and Nationality Act “flatly

does not permit the reclassification of millions

of illegal aliens as lawfully present and thereby

16

make them newly eligible for a host of federal

and state benefits, including work

authorization.” Moreover “‘DAPA is foreclosed

by Congress’ careful plan; the program is

“manifestly contrary to the statute” and

therefore was properly enjoined.’” Id.

Then, turning to the Attorney General’s input, she

added:

• that she had consulted with the Attorney

General as to risk of litigation pending in Texas.

Id. at 116a.

• that the Attorney General sent a letter to the

Department ... articulating his legal

determination that DACA “was effectuated by

the previous administration through executive

action, without proper statutory authority and

no established end-date after Congress’

repeated rejection of proposed legislation.” Id.

• that the Attorney General stated that “Such an

open-ended circumvention of immigration laws

was an unconstitutional exercise of authority by

the Executive Branch.” Id.

Only after making all of those findings, does the

Duke Memorandum make one passing reference to the

Attorney General’s statement that DACA “has the

same legal and constitutional defects that the courts

recognized as to DAPA.” However, Judge Garaufis

seized on that sentence to justify his injunction,

stating “[t]his premise is flatly incorrect” as the Texas

17

courts’ findings were based on the Administrative

Procedure Act, not the Constitution. Vidal at 427.

Rather than finding a smoking gun, that statement is,

at best, ambiguous as it could be read to reflect (i) the

Attorney General’s misunderstanding of the holding of

the court, or (ii) the Attorney General drawing a

logical conclusion from findings and statements made

by the courts, even though those courts did not

ultimately decide the constitutional issues at that

time. However, given all the other bases given for the

decision, the Acting Secretary’s Memorandum

certainly cannot simply be dismissed as having relied

solely on the Attorney General’s statement about

constitutionality.

Lastly, Judge Garaufis seemed to find that the

Sessions letter was “factually erroneous” because it

concluded “that the Southern District of Texas and

Fifth Circuit would enjoin the continued operation of

the DACA program....” Id. at *61. However, in this

case, it was Judge Garaufis who appears to have made

the “erroneous” statement, not the Attorney General.

In February 2018, District Judge Hanen issued a

detailed explanation as to why DAPA and DACA were

legally indistinguishable. See Texas v. United States,

328 F.Supp.3d 662, 723-25 (S.D.TX. 2018).

Thus, whether the prior administration’s DACA

policy is lawful should be an important question on

which this Court grants review. It would be entirely

anomalous to say that one administrative action

undoing another administrative action because it was

unlawful is arbitrary and capricious without

examining whether that initial administrative action

18

is lawful. Not to review the original DACA policy

would only result in further delay and a waste of

judicial resources, prolonging the controversy and

effectively negating the vote of the American people in

electing a new President to implement new policies

different from a prior administration. Every year that

DACA remains in place is another year of compelled

adherence to the prior administration’s illegal DACA

policy.

III. THE

NATIONWIDE

INJUNCTIONS

EXCEEDED THE DISTRICT COURTS’

AUTHORITY.

Former Attorney General Sessions recounted:

In the first 175 years of this Republic, not a

single judge issued one of these orders.

But, they have been growing in frequency

and, since President Trump took office less

than two years ago, 27 district courts have

issued such an order. [Attorney General Jeff

Sessions Remarks on Judicial Encroachment

(Oct. 15, 2018)4.]

The cases below fall into that category. On January 9,

2018, Judge William Alsup of the Northern District of

California issued a preliminary injunction “to maintain

the DACA program on a nationwide basis on the same

terms and conditions as were in effect before the

4

https://www.justice.gov/opa/speech/attorney-general-jeffsessions-delivers-remarks-heritage-foundation-judicial-encroac

hment.

19

rescission on September 5, 2017,” with certain narrow

exemptions. The district judge asserted “a nationwide

injunction is appropriate” because:

Our country has a strong interest in the

uniform application of immigration law and

policy. Plaintiffs have established injury that

reaches beyond the geographical bounds of the

Northern District of California. The problem

affects every state and territory of the United

States. [Regents of the Univ. of Cal. v. United

States Dept. of Homeland Sec., 279 F.Supp.3d

1011, 1048-49 (2018).]

Judge Alsup cited two cases in support of his view,

both of which have been substantially weakened by the

passage of time.

First, Judge Alsup relied on the Ninth Circuit’s

opinion in Washington v. Trump, 847 F.3d 1151, 1167

(9th Cir. 2017), enjoining President Trump’s Executive

Orders and Proclamations to deny entry to aliens from

certain countries, based on the need for uniformity in

immigration law and policy.5 That reliance may not be

well-founded, as revealed by the well-considered view

of a member of this Court. Although it denied a stay,

this Court, in a per curiam order, narrowed the

injunctions, leaving them in place, over the dissent of

Justices Thomas, Alito, and Gorsuch. See Trump v.

IRAP and Trump v. Hawaii, 582 U.S. ____ 138 S. Ct.

34 (2017). Although neither the per curiam opinion

5

Regents, 279 F.Supp.3d at 1049.

20

nor the dissent discussed the nationwide nature of the

injunctions under review, the Ninth Circuit opinion on

which Judge Alsup relied was overturned by this Court

on June 26, 2018. See Trump v. Hawaii, 138 S.Ct.

2392 (2018). Because this Court “reverse[d] the grant

of the preliminary injunction as an abuse of

discretion,” it made “it unnecessary to consider the

propriety of the nationwide scope of the injunction

issued by the District Court.” Id. at 2423.

However, Justice Thomas substantively questioned

the validity of nationwide injunctions. Discussing how

such injunctions prevent “legal questions from

percolating through the federal courts, encourag[e]

forum shopping, and mak[e] every case a national

emergency for the courts and for the Executive

Branch,” Justice Thomas stated his fundamental

concern:

I am skeptical that district courts have the

authority to enter universal injunctions.

These injunctions did not emerge until a

century and a half after the founding. And

they appear to be inconsistent with

longstanding limits on equitable relief and the

power of Article III courts. If their popularity

continues, this Court must address their

legality. [Id. at 2425 (Thomas, J., concurring).]

Second, Judge Alsup asserted “the Fifth Circuit

reached the same conclusion” in affirming “the

21

appropriate scope of an injunction over DAPA6 ...

holding that uniform application of the immigration

laws justified a nationwide injunction. So too here.”

Regents, 279 F.Supp.3d at 1049. See Texas v. United

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

divided court United States v. Texas, 136 S.Ct. 2271

(2016). However, Judge Alsup failed to note that the

injunction under review in the Fifth Circuit had been

issued by Judge Hanen with respect to the adoption of

the DAPA program for violation of APA’s procedural

requirements.

In his February 16, 2015 decision, Judge Hanen

found that the Obama Administration has “clearly

legislated a substantive rule without complying with

the procedural requirements under the Administration

[sic] Procedure Act” requiring “notice and comment.”

Texas v. United States, 86 F. Supp. 3d 591, 676-77

(S.D.TX. 2015). The APA grants district courts the

authority to “hold unlawful and set aside agency

action, findings, and conclusions” in such

circumstances. 5 U.S.C. § 706. Since the DAPA policy

was not implemented in accordance with “notice and

comment” requirements, Judge Hanen concluded that

it was invalid. He summarized his ruling as follows:

this temporary injunction enjoins the

implementation of the DAPA program that

awards legal presence and additional benefits

to the four million or more individuals

potentially covered by the DAPA

6

“Deferred Action for Parents of Americans and Lawful

Permanent Residents.”

22

Memorandum and to the three

expansions/additions to the DACA program

also contained in the same DAPA

Memorandum. [Texas, 86 F.Supp.3d at 677.]

There is no language characterizing Judge Hanen’s

opinion as “nationwide” or “universal.” He only relied

on the terms of the APA holding that the Department

of Homeland Security could not continue to implement

a policy that had been adopted in violation of APA’s

procedural requirements.

By contrast, the Ninth Circuit had made clear that

the injunction was not based on a violation of APA’s

notice-and-comment requirement. See Regents at

*101. Rather, the Ninth Circuit asserted “that the

claim underlying the injunction here is an arbitraryand-capricious challenge under the APA” which should

lead to the rule being “‘vacated — not that their

application to the individual petitioners is proscribed.’”

Id. at *78-79. However, the “arbitrary and capricious”

finding of the district court was grounded exclusively

on the claim that it “was based solely on an erroneous

legal premise...” that DACA itself was adopted

illegally, and was rescinded for that reason. Id. at *65,

*71-77, *82. This was not a procedural APA violation.

Judge Alsup’s opinion falsely assumes that only judges

can assess and act on their view about the legality of

any policy, and the Justice Department’s view that

DACA was illegal was a usurpation of that judicial

role. In essence, Judge Alsup admits that, if the

DACA rescission had been based on a change in policy,

he would have had no ground to enjoin it. And, the

Ninth Circuit disregarded subsequent information

23

from Secretary Nielsen as to the additional policy

reasons for the policy change. Id. at *78 n.24. See also

Petitioners’ Supplemental Brief (Nov. 19, 2018) at 4-5.

Even concurring Judge Owens could not go along with

the Ninth Circuit’s assertion that it could review the

DACA rescission for compliance with the substantive

rules of the APA. Regents at *103. That rationale was

a thin reed on which to base a finding of the DACA

rescission being considered “arbitrary and capricious,”

and without such a finding there could be no “set

aside” order and no national injunction.

The widely criticized practice of district courts

issuing nationwide injunctions is an important issue

which has not been resolved by this Court, but should

be.

IV. THE NEW YORK DISTRICT COURT

ERRONEOUSLY CONCLUDED THAT

ENDING DACA WOULD HARM THE SOCIAL

SECURITY TRUST FUNDS.

The injunction order issued by the U.S. District

Court for the Eastern District of New York

acknowledged that it is within the government’s

authority to end DACA: “New Administrations may ...

alter or abandon their predecessors’ policies....” Vidal

at 408-09. But the court then left the realm of law to

address matters of policy. The court stated that

policies may change when administrations change,

“even if these policy shifts may impose staggering

personal, social, and economic costs.” Id.

To that end, the court asserted “the costs of the

24

DACA rescission over the next decade at ... $24.6

billion in lost Social Security and Medicare tax

contributions.” Id. at 409 n.4. For the estimate of

$24.6 billion in lost Social Security and Medicare tax

contributions, the court cited the amicus brief of 114

companies. That brief, in turn, cites to and relies

exclusively on a policy brief of the Immigrant Legal

Resource Center (“ILRC”) on the “economic cost of

ending DACA.” The ILRC policy brief arrives at its

estimate of tax receipts based on the number of

employed DACA recipients, average annual wages,

and payroll taxes over the next 10 years. It limited its

projection to 10 years, but DACA recipients would not

have been eligible to retire in that timeframe due to

the DACA age requirements. This estimate is

misleading because its methodology focuses only on

income and ignores the expenses on Social Security

that DACA recipients will impose on the Social

Security Trust Fund in the future. Moreover, lower

income workers, such as most of those benefitted by

DACA, will receive disproportionately greater benefits

relative to taxes paid than will higher income workers,

causing a significant net drain on trust funds.7 The

7

An illegal alien born in 1995, granted lawful status under

DACA, who fell into the “low earnings” tier (career average

earnings equal to $22,215) would receive annual Social Security

benefits of $12,276 in wage-indexed 2017 dollars. On the other

hand, a U.S. citizen born the same year in the “high earnings” tier

(career average earnings equal to $78,985) would pay 3.5 times

the taxes paid by the low income worker, but would receive

annual Social Security benefits of $26,802 — only 2.2 times the

benefits paid to the low income worker. See Office of the Chief

Actuary, Social Security Administration, Actuarial Note No.

2017.9 (July 2017), “Replacement Rates for Hypothetical Retired

25

court’s decision also ignores the drain from the DACA

recipients who may qualify for disability benefits

before retirement.8

The court’s assertion about the high cost of

rescinding DACA is in error. Actually, it is DACA

itself — not the rescission of DACA — that should by

logic have an adverse effect on the federal budget.

Looking at just one federal program, persons granted

“lawful status” under DACA are no longer barred from

receiving Social Security Disability Insurance and

Retirement benefits.9 8 U.S.C. § 1611(b)(2)-(3).10

Workers,” Table C.

8

See Congressional Research Service, “Social Security Benefits

for Noncitizens” (Nov. 17, 2016) at 9.

9

The U.S. District Court for the Southern District of Texas

recently confirmed that:

unlawfully present aliens would normally be

barred from receiving Social Security retirement

benefits, Social Security disability benefits, and

health insurance under Part A of the Medicare

program because these are federal public benefits.

DACA, however, by making its recipients lawfully

present, removes an otherwise insurmountable

roadblock to their receipt of Social Security,

Medicare, and other benefits.

[Texas, 328

F.Supp.3d at 675.]

10

The Social Security Board of Trustees 2018 Annual Report

anticipates the rescission of DACA will have a negligible impact

on the long-term health of the Social Security system — certainly

not the significant losses assumed by the New York District

Court. See 2018 Annual Report of the Trustees (June 5, 2018) at

37, https://www.ssa.gov/OACT/TR/2018/ tr2018.pdf.

26

Even without the addition of DACA beneficiaries

to the disability rolls, the trust funds from which those

benefits are generally paid face a seriously troubled

financial future. See id. at 2-3. Decisions that would

grow the future liabilities of the United States should

be left to the branch with the power of the purse.

Congress has developed a nuanced system of

entitlement programs and immigration controls,

including the payment of benefits only to certain

persons. DACA upends that system, usurping the

power of the purse from Congress and imposing new

and untold liabilities on the United States, putting

older Americans at increased financial risk, in ways

that Congress to date has refused to sanction.

CONCLUSION

For the foregoing reasons, the Petitions for Writs

of Certiorari should be granted, and the parties

directed to brief the two additional issues identified

herein.

Respectfully submitted,

JOSEPH W. MILLER

RESTORING LIBERTY

ACTION COMMITTEE

Fairbanks, AK 99708

Attorney for Amicus Curiae

RLAC

December 6, 2018

WILLIAM J. OLSON*

HERBERT W. TITUS

JEREMIAH L. MORGAN

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

*Counsel of Record