Amicus Curiae Brief — Joseph R. Biden, Jr., President of the United States, et al., Applicants v. Texas, et al.

No. 21A21

IN THE

Supreme Court of the United States

____________________________________

JOSEPH R. BIDEN, JR., in his official capacity

as President of the United States, et al.,

Applicants,

v.

STATE OF TEXAS and STATE OF MISSOURI,

Respondents.

____________________________________

MOTION FOR LEAVE AND BRIEF OF INDIANA, ALABAMA,

ARIZONA, ARKANSAS, FLORIDA, GEORGIA, KANSAS,

KENTUCKY, LOUISIANA, MISSISSIPPI, MONTANA, OHIO,

OKLAHOMA, SOUTH CAROLINA, UTAH, AND WEST VIRGINIA

AS AMICI CURIAE IN OPPOSITION TO THE EMERGENCY

APPLICATION FOR STAY PENDING APPEAL

____________________________________

Office of the Indiana

Attorney General

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

*Counsel of Record

THEODORE E. ROKITA

Attorney General

THOMAS M. FISHER*

Solicitor General

KIAN J. HUDSON

Deputy Solicitor General

JULIA C. PAYNE

Deputy Attorney General

Counsel for Amici States

Additional counsel listed with signature block

The States of Indiana, Alabama, Arizona, Arkansas, Florida, Georgia, Kansas,

Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah,

and West Virginia move for leave to file the enclosed brief as amici curiae in support

of respondents and in opposition to the application for stay pending appeal (i) without

10 days’ advance notice to the parties of amici’s intent to file as ordinarily required

by Sup. Ct. R. 37.2(a), and (ii) in an unbound format on 8½-by-11-inch paper rather

than in booklet form. Respondents do not oppose the filing of this brief, and Applicants did not respond to Amici States’ notice of their intent to file this motion.

Applicants filed their application in this matter on August 20, 2021. In light of

the expedited briefing schedule, it was not feasible to provide 10 days’ notice to the

parties. In addition, the compressed timeframe prevented Amici States from having

the brief finalized in sufficient time to allow it to be printed and filed in booklet form.

As set forth in the enclosed brief, the undersigned Amici States have a strong

interest in the outcome of this application for stay pending appeal. Specifically, the

Amici States have a critical interest in averting the termination of the Migrant Protection Protocols (MPP) without proper consideration of other reasonable policy alternatives and the States’ evident reliance interests—including the significant costs imposed on the States and their citizens to support the thousands of aliens paroled as a

result of the termination of MPP.

The Amici States thus have a distinct perspective on the harms identified in

the district court’s order, and the amicus brief includes relevant material not brought

to the attention of the Court by the parties that may be of considerable assistance to

the Court. See Sup. Ct. R. 37.1. The brief describes how States have experienced MPP

as a vital tool in reducing the influx of illegal aliens at the southwest border and why

the Secretary of the Department of Homeland Security acted unlawfully in rescinding

MPP without considering either the States’ reliance interests or the alternatives to

doing so.

The undersigned Amici States therefore seek leave to file this brief in opposition

to the application for stay pending appeal.

CONCLUSION

The Court should grant Amici States leave to file the enclosed brief.

Respectfully submitted,

Office of the Indiana

Attorney General

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

THEODORE E. ROKITA

Attorney General

THOMAS M. FISHER*

Solicitor General

KIAN J. HUDSON

Deputy Solicitor General

JULIA C. PAYNE

Deputy Attorney General

*Counsel of Record

Counsel for Amici States

Dated: August 24, 2021

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No. 21A21

IN THE

Supreme Court of the United States

____________________________________

BIDEN, et al.,

Applicants,

v.

TEXAS, et al.,

Respondents.

____________________________________

BRIEF OF INDIANA, ALABAMA, ARIZONA,

ARKANSAS, FLORIDA, GEORGIA, KANSAS, KENTUCKY,

LOUISIANA, MISSISSIPPI, MONTANA, OHIO, OKLAHOMA,

SOUTH CAROLINA, UTAH, AND WEST VIRGINIA

AS AMICI CURIAE IN OPPOSITION TO THE EMERGENCY

APPLICATION FOR STAY PENDING APPEAL

____________________________________

Office of the Indiana

Attorney General

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

*Counsel of Record

THEODORE E. ROKITA

Attorney General

THOMAS M. FISHER*

Solicitor General

KIAN J. HUDSON

Deputy Solicitor General

JULIA C. PAYNE

Deputy Attorney General

Counsel for Amici States

Additional counsel listed with signature block

TABLE OF CONTENTS

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

INTEREST OF THE AMICI STATES .......................................................................... 1

ARGUMENT .................................................................................................................. 2

I.

MPP Is a Vital Tool to Combat Illegal Immigration ............................................ 2

A. MPP promotes a fairer and more operationally effective immigration

system ............................................................................................................... 2

B. The Biden Administration’s termination of MPP jeopardizes the interests

of the States ...................................................................................................... 3

II.

The Memorandum Rescinding MPP Fails to Consider Important Aspects of

the Policy Problem and Is Thus Arbitrary and Capricious under the APA ........ 5

A. The Memorandum fails to consider alternatives ............................................ 6

B. The Memorandum fails to consider reliance interests ................................... 8

CONCLUSION............................................................................................................. 11

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TABLE OF AUTHORITIES

CASES

Arizona v. United States,

567 U.S. 387 (2012) .................................................................................................. 5

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,

140 S. Ct. 1891 (2020) .....................................................................................passim

STATUTES

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

8 U.S.C. § 1101 et seq. .................................................................................................... 1

8 U.S.C. § 1225(b)(2)(C) ................................................................................................. 1

OTHER AUTHORITIES

@JoeBiden, Twitter (Dec. 11, 2019),

https://twitter.com/JoeBiden/status/1204835741554987008 .................................. 3

The Biden Plan for Securing Our Values as a Nation of Immigrants, Biden

Harris, https://joebiden.com/immigration/ .............................................................. 3

Southwest Land Border Encounters, U.S. Customs & Border Protection

(Aug. 12, 2021), https://www.cbp.gov/newsroom/stats/southwest-landborder-encounters ..................................................................................................... 4

ii

INTEREST OF THE AMICI STATES

The States of Indiana, States of Indiana, Alabama, Arizona, Arkansas, Florida,

Georgia, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma,

South Carolina, Utah, and West Virginia respectfully submit this brief as amici curiae in opposition to the Motion for Administrative Stay and for Stay Pending Appeal.

Illegal immigration across the southwest border levies significant costs on the States

and their citizens. In recent years, States have borne billions of dollars in new expenses related to education, healthcare, and other government-assistance programs

because of the rising influx of illegal aliens. AR 440, 442, 452, 555, 587–88. And this

is more than a localized problem or limited to those States on our nation’s southwest

border; illegal immigration’s effects are felt nationwide. Indeed, in many communities

the costly upward trend in illegal entries at the border has been associated with a

spike in violent crime—including predation on migrants by drug cartels and other

bad actors. AR 406, 409–10, 418, 423.

In January 2019, in response to the historic surge in encounters of aliens at

the southwest border, the Department of Homeland Security (DHS) issued a memorandum entitled “Policy Guidance for Implementation of the Migrant Protection Protocols.” AR 151. Exercising the agency’s express authority under the Immigration and

Nationality Act, 8 U.S.C. § 1101 et seq., the Migrant Protection Protocols (MPP) requires aliens who have no legal entitlement to enter the United States but depart

from a third country and transit through Mexico to be returned temporarily to Mexico

while awaiting the outcome of their removal proceedings. See 8 U.S.C. § 1225(b)(2)(C).

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DHS has now issued a seven-page Memorandum purporting to rescind MPP—a Memorandum the district court below found to be unlawfully deficient in multiple respects.

Amici States submit this brief to explain why this Court should leave the district court’s order in place, for Amici States have a strong interest in ensuring that

any decision lifting MPP is undertaken according to law and after consideration of

the consequences for States and their citizens.

ARGUMENT

I.

MPP Is a Vital Tool to Combat Illegal Immigration

A. MPP promotes a fairer

immigration system

and

more

operationally

effective

MPP has proven to be a vital tool in the fight against illegal immigration and

has yielded both a fairer and more operationally effective means of processing aliens.

Before its implementation, each year thousands of aliens were paroled in the United

States while awaiting a hearing—a process that often took several years. See AR 684;

Op. 17. And as the district court noted below, among those aliens referred to the Executive Office for Immigration Review, more than thirty percent failed to appear for

their hearing and were ordered removed in absentia. Id. at 7–8. After the introduction

of MPP, however, fewer aliens were paroled into the United States and pre-pandemic

processing time was significantly diminished. See id. at 17; AR 555, 684.

MPP also likely led to an overall reduction of encounters at the border and

likely encouraged many asylum seekers without meritorious claims to remain in or

return to their country of origin. AR 555–56, 683–84. These positive changes have

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most certainly lessened the variety of costs imposed by illegal immigration on the

States and their citizens.

B. The Biden Administration’s termination of MPP jeopardizes the

interests of the States

The Biden Administration’s termination of MPP has had the predictable effect

of undermining the interests of the States and further taxing an immigration system

still hampered by the COVID-19 pandemic.

The rescission is a long-promised goal of the new administration. In December

2019, more than a year before taking office, then-candidate Biden decried that

“through his Migrant Protection Protocol policies, [President] Trump has effectively

closed our country to asylum seekers, forcing them instead to choose between waiting

in dangerous situations, vulnerable to exploitation by cartels and other bad actors, or

taking a risk to try crossing between the ports of entry.” See The Biden Plan for Securing Our Values as a Nation of Immigrants, Biden Harris, https://joebiden.com/immigration/;

see

also

@JoeBiden,

Twitter

(Dec.

11,

2019),

https://twit-

ter.com/JoeBiden/status/1204835741554987008. Biden pledged to “end [the Trump

Administration’s] policies, starting with Trump’s Migrant Protection Protocols, and

restore our asylum laws so that they do what they should be designed to do—protect

people fleeing persecution and who cannot return home safely.” The Biden Plan for

Securing Our Values as a Nation of Immigrants, supra.

As promised, on the first day of the new administration DHS Acting Secretary

David Pekoske issued a one-page declaration announcing that MPP would be suspended pending further review. AR 581. Despite the evident time to plan such a move,

3

however, DHS provided no reasoning for its decision. Id. And DHS offered no rationale at all until June 2021, when—after Texas and Missouri had brought this challenge to the suspension—the DHS Secretary issued a seven-page Memorandum announcing the immediate and permanent termination of MPP. AR 1–7.

The consequences of the Biden Administration’s termination of MPP are both

unsurprising and significant. Without MPP, thousands of illegal aliens—the vast majority of whom do not have any legal entitlement to remain in the United States, see

AR 689—will be paroled in the United States while awaiting the outcome of their

removal proceedings. This is certain to impose new, sweeping costs on the States in

supporting the parolees during the pendency of their removal proceedings—not to

mention the thousands who will fail to appear and instead choose to remain in the

United States illegally.

This shift in policy also comes at a time when the number of encounters at the

southwest border continues to rise and, due to the COVID-19 pandemic, DHS’s capacity to process aliens has precipitously declined. For example, in May and June

2021, U.S. Customs and Border Protection recorded over 180,000 and 188,000 encounters, respectively, at the southwest border. See Southwest Land Border Encounters, U.S. Customs & Border Protection (Aug. 12, 2021), https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters. And in July 2021 the count soared to

over 210,000. These constitute the highest numbers of monthly encounters recorded

by United States Customs and Border Protection in more than twenty years—a period that includes several previous surges that took place at times when processing

was not constrained by recent COVID-19 capacity considerations.

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Ultimately, the States rely on the federal government to enforce immigration

law and to protect their interests in this area. See Arizona v. United States, 567 U.S.

387, 394–400 (2012); id. at 397 (“The pervasiveness of federal regulation does not

diminish the importance of immigration policy to the States.”). Indeed, while “[t]he

National Government has significant power to regulate immigration,” this Court has

made clear that “with [this] power comes responsibility.” Id. at 416. The Biden Administration’s efforts to eliminate MPP, without consideration of the States’ significant vested interests and the litany of evident harms it would cause, is an abdication

of that responsibility.

II.

The Memorandum Rescinding MPP Fails to Consider Important

Aspects of the Policy Problem and Is Thus Arbitrary and Capricious

under the APA

The Biden Administration’s refusal to consider the costs of rescinding MPP is

not just bad policy. It is unlawful as well. The Administrative Procedure Act (APA)

requires agencies to “‘consider . . . important aspect[s] of the problem’” before them.

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1910 (2020)

(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983)) (alterations in original); see also 5 U.S.C. § 706(2)(A). DHS has not

done so.

Despite MPP’s evident benefits and the corresponding costs of revoking the

policy, DHS suspended MPP in January via a three-line, two-sentence declaration

announcing—without any explanation whatever—that DHS would be suspending

5

new enrollments in MPP “pending further review of the program.” AR 581. This unreasoned change in policy plainly violated the APA: It lacked consideration of any

aspects of the problems confronting American immigration policy.

More than four months after DHS suspended MPP—and several weeks after

Texas and Missouri filed this lawsuit challenging this unreasoned change in policy—

the DHS Secretary issued the Memorandum at issue here, which “direct[s] DHS personnel to take all appropriate actions to terminate MPP, including taking all steps

necessary to rescind implementing guidance and other directives or policy guidance

issued to implement the program.” AR 2. And while this Memorandum contains some

explanation, it too violates the APA for failing to consider all aspects of the problem.

Indeed, the Memorandum suffers—at the very least—from the same two deficiencies for which this Court invalidated the rescission of the Deferred Action for

Childhood Arrivals (DACA) program in Regents: It fails to consider (1) “alternatives

that are within the ambit of the existing policy” and (2) “whether there was legitimate

reliance” on the existing MPP policy. Regents, 140 S. Ct. at 1913 (internal quotation

marks, brackets, and citations omitted). And each of these failures are independently

sufficient to render the Memorandum unlawful.

A.

The Memorandum fails to consider alternatives

The obligation of federal agencies to consider alternatives to their chosen policies was definitively established at least as far back as State Farm, but this Court’s

recent decision in Regents confirms just how significant and unwavering this obligation is: Agencies retain this obligation even if they correctly conclude that some

change must be made to existing policy.

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In Regents, DHS had rescinded DACA on the ground that the program was

unlawful, and this Court expressly declined to “evaluate the claims challenging the

explanation and correctness of th[at] illegality conclusion.” Id. at 1910. Yet this Court

nevertheless held that, even if that conclusion were correct, DHS could not completely

rescind the program without giving meaningful consideration to alternative options—

in particular, keeping elements of the program that may have been lawful. See id. at

1912 (“Even if it is illegal for DHS to extend work authorization and other benefits to

DACA recipients . . . the DACA Memorandum could not be rescinded in full ‘without

any consideration whatsoever’ of a forbearance-only policy.” (quoting State Farm, 463

U.S. at 51)).

Accordingly, it is not enough for DHS to provide sufficient policy reasons for

discontinuing MPP—and it is far from clear the agency did so here in any case. Regents holds that even if the Memorandum clears that bar, it still must specifically

identify—and explain why DHS rejected—alternatives to completely rescinding current policy.

The Memorandum fails to do so. While it claims DHS “considered various alternatives” to terminating MPP, the Memorandum’s discussion of this aspect of the

problem is limited to a single paragraph that neither identifies specific alternatives

nor advances any rationale beyond conclusory assertions. AR 5.

Underscoring its all-or-nothing approach, the Memorandum’s discussion of “alternatives” begins by noting that DHS could “maintain[] the status quo”—which,

given its earlier suspension of MPP, would effectively amount to terminating the

program—or it could keep MPP and “resum[e] new enrollments in the program.” Id.

7

Beyond this, the Memorandum does nothing more than briefly suggest that “the program could be modified in some fashion” without specifically identifying any such

potential modifications. Id. The Memorandum thus fails to establish the agency considered any alternatives short of terminating the entire MPP program. It therefore

violates the rule “that when an agency rescinds a prior policy its reasoned analysis

must consider the ‘alternative[s]’ that are ‘within the ambit of the existing [policy].’”

Regents, 140 S. Ct. at 1913 (quoting State Farm, 463 U.S. at 51 (alterations in original)).

Further, in addition to not identifying alternatives, the Memorandum fails to

provide any reasoned explanation for rejecting them. It simply asserts that preserving MPP “would not be consistent with this Administration’s vision and values and

would be a poor use of the Department’s resources,” and that modifying MPP “would

require a total redesign that would involve significant additional investments in personnel and resources.” AR 5. The APA demands more than such conclusory statements. Even if “there may be a valid reason” ultimately to reject a particular alternative policy, the APA requires the agency to “establish that DHS considered that

option.” Regents, 140 S. Ct. at 1913. The Memorandum here fails to do so, and that

“omission alone renders . . . [the] decision arbitrary and capricious.” Id.

B.

The Memorandum fails to consider reliance interests

Nor do the Memorandum’s deficiencies stop there. It also “fail[s] to address

whether there was ‘legitimate reliance’” on the existing MPP policy. Id. (quoting Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996)). As the district court

8

observed below, the Memorandum “fail[s] to consider the costs to Plaintiffs and Plaintiffs’ reliance interests in the proper enforcement of federal immigration law.” Op. 37.

Indeed, “the agency did not consider the costs to the States at all.” Id.

Notably, the United States scarcely challenges these observations. Its response

on this point does not identify any discussion in the Memorandum of reliance interests that could be affected by terminating MPP, but merely quotes the Memorandum’s assertion that DHS considered “‘the impact such a decision could have on border management and border communities.’” Mot. 18 (quoting AR 5). Such an isolated

suggestion obviously cannot constitute sufficient consideration of anything, and in

any case there is nothing to suggest that this particular phrase has anything to do

with reliance at all. This phrase does not mention reliance—on the part of States or

anyone else—and is immediately followed by the puzzling announcement that the

Secretary “considered the Department’s experience designing and operating a phased

process, together with interagency and nongovernmental partners, to facilitate the

safe and orderly entry into the United States of certain individuals who had been

placed in MPP.” AR 5. Whatever this means, it certainly does not have anything to

do with States’ reliance on MPP.

Left without any actual discussion of reliance interests in the Memorandum,

the United States instead insists that DHS was not required to “consider State reliance interests” at all because “the States have no cognizable reliance interest in a

discretionary program.” Mot. 18. This argument, however, is squarely foreclosed by

Regents. There this Court acknowledged that the DHS Secretary “plainly exercised

such discretionary authority in winding down [DACA],” 140 S. Ct. at 1910, but it held

9

that the Secretary was nevertheless obligated to “consider[] potential reliance interests,” id. at 1913. Indeed, it reiterated that the Secretary was obligated to do so even

though “the DACA Memorandum stated that the program ‘conferred no substantive

rights’ and provided benefits only in two-year increments,” and even though DHS—

if it had addressed the issue—may have eventually concluded that “reliance interests

in benefits that it views as unlawful are entitled to no or diminished weight.” Id. at

1913–14 (internal citation omitted). While such factors “are surely pertinent in considering the strength of any reliance interests,” the APA still requires that such “consideration must be undertaken by the agency in the first instance, subject to normal

APA review.” Id.

In rescinding MPP—as in rescinding DACA—DHS “was not writing on a blank

slate,” and it was therefore “required to assess whether there were reliance interests,

determine whether they were significant, and weigh any such interests against competing policy concerns.” Id. at 1915 (internal quotation marks and citation omitted).

Because this Memorandum fails to do so, it is arbitrary, capricious, and unlawful

under the APA.

10

CONCLUSION

The Court should deny the application for stay pending appeal.

Respectfully submitted,

Office of the Indiana

Attorney General

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

THEODORE E. ROKITA

Attorney General

THOMAS M. FISHER*

Solicitor General

KIAN J. HUDSON

Deputy Solicitor General

JULIA C. PAYNE

Deputy Attorney General

*Counsel of Record

Counsel for Amici States

Dated: August 24, 2021

11

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

LYNN FITCH

Attorney General

State of Mississippi

MARK BRNOVICH

Attorney General

State of Arizona

AUSTIN KNUDSEN

Attorney General

State of Montana

LESLIE RUTLEDGE

Attorney General

State of Arkansas

DAVE YOST

Attorney General

State of Ohio

ASHLEY MOODY

Attorney General

State of Florida

JOHN M. O’CONNOR

Attorney General

State of Oklahoma

CHRISTOPHER M. CARR

Attorney General

State of Georgia

ALAN WILSON

Attorney General

State of South Carolina

DEREK SCHMIDT

Attorney General

State of Kansas

SEAN D. REYES

Attorney General

State of Utah

DANIEL CAMERON

Attorney General

Commonwealth of Kentucky

PATRICK MORRISEY

Attorney General

State of West Virginia

JEFF LANDRY

Attorney General

State of Louisiana

Counsel for Amici States

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