Opposition Brief — United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674)

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No. 15-674

In the Supreme Court of the United States

UNITED STATES OF AMERICA, ET AL., PETITIONERS

STATE OF TEXAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

KEN PAXTON SCOTT A. KELLER

Attorney General of Texas _ Solicitor General

CHARLES E. Roy Counsel of Record

First Assistant

J. CAMPBELL BARKER

Attorney General Deputy Solicitor General

ARI CUENIN

ALEX POTAPOV

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@

(512) 986-1700

a SSSA

ral.gov

QUESTIONS PRESENTED

The Executive Branch unilaterally created a pro-

gram that will grant “lawful presence” and eligibility

for a host of benefits to over four million aliens present

in this country unlawfully. This program, which is called

DAPA, goes far beyond prioritizing which aliens to re-

move.

The district court entered a preliminary injunction

of DAPA under the Administrative Procedure Act, and

the court of appeals affirmed. Both courts explained

that the injunction does not require the Executive to

remove any alien and does not impair the Executive's

ability to prioritize aliens for removal. Indeed, on the

same day it announced DAPA, the Executive issued a

separate memorandum defining categories of aliens

prioritized for removal. This lawsuit has never chal-

lenged that separate memorandum.

The questions presented are:

l.a. Whether at least one respondent has standing

to challenge DAPA.

1.b. Whether DAPA is unreviewable under the Ad-

ministrative Procedure Act.

2. Whether DAPA is contrary to law or violates

the Constitution.

3. Whether DAPA was subject to the Administra-

tive Procedure Act’s notice-and-comment requirement.

(I)

TABLE OF CONTENTS

Page

EERE oa ne Mee ees. I

2 ERE EEA ee ts ae ee IV

ae SAT AE LE Re en ee EEE rR NSE 1

eR ICEL ENP AR Gere REN Fs See eas aE On RC an 3

Fi, TRRRROT yy WRC OUIIG siscsecsccesscesesscescsersssessececonss 3

B. Deferred Action for Childhood Arrivals

ORME IS SS Fee 6

C. DAPA—the challenged directive ..................... 7

Be III giiiceictnincetniinenddonssendsbonednegecatins 9

FRA AREIE, ESOS eee er er 10

I. The court of appeals correctly upheld the

Preliminary INGUNCON. ........0cccccccecccesersecvesseversseees 12

A. Respondents have standing. .................20:000+ 12

B. DAPA is reviewable. ............ iedeisibienaiinmieeanald 20

1. DAPA is reviewable agency action............ 20

2. Respondents satisfy the APA’s zone-

oi iceriscinicniimnpanionineeniinsia 26

eS eee 28

1. DAPA required notice and comment....... 28

2. DAPA is contrary to law and violates

inset cethiateabienidiclemedoninn 31

II. Certiorari is not warranted at this stage............. 38

RD iinctnicactassinicbiideteitnepnciaretalnantiianteantinpentennsendbapesarnnnsentcen 40

(ITI)

TABLE OF AUTHORITIES

Page

Cases:

Alfred L. Snapp & Son, Inc. v. Puerto Rico,

a Sativa cisidicccccetibasmmtantinneicetesadnicits 14, 17, 18

Arizona v. United States,

eS ES ene 19, 24, 26, 32

Ariz. DREAM Act Coal. v. Brewer,

787 FBG TOBE (BGs Clr. BOTA) 2.ncccccecceocsccescovsecescsecssscosess 14

Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n,

Bs EE III cnrinccuisinininctiensinstouttibicionstubiatannnets 18, 19

Arpaio v. Obama,

797 F.3d 11 (D.C. Cir. 2015), cert. pet. pending,

No. 15-643 (filed Nov. 12, 2015)..................................... 13

CBS, Inc. v. United States,

I cs isipeseesinnapiactianbansiabenmeniiniind 28

Chrysler Corp. v. Brown,

Oe I I itccieccscnisctentincesieciooaiciintnistneniniincscbdinen 27, 28

Clapper v. Amnesty Int'l USA,

ee saiisanenceaicenhcionsaninanasesieinodnntasambaniate 15

Coal. for Responsible Regulation, Inc. v. EPA,

606 F. App’x 6 (D.C. Cir. 2015).............cscecsscesssssessesees 38

Gen. Elec. Co. v. EPA,

jg fs o_O 30

Heckler v. Chaney,

I citriarsnsinetreniaunenpemneigtinianiins 20, 21, 23

Hoffman Plastics Compounds, Inc. v. NLRB,

Se ey Pe I iehiniincsiscnintitanibcsitnensnatastanbasstinsiniaisniniiieanitiy 5

INS v. Nat'l Ctr. for Immigrants’ Rights,

EE AN Sh Ee ne AE 26

J.E. Riley Inv. Co. v. Comm’r,

I cia nel 12, 31

Japan Whaling Ass'n v. Am. Cetacean Soc’y,

IRE See AR 0S eee 14, 23

King v. Burwell,

Be A IID ss ccscesccencsiicssconemesiniestioommmenneinmesien 32, 33

Lewis v. Thompson,

IE As SIIIOD sesessncrvenssenencimsennsuninnsieanracsii 36

Lincoln v. Vigil,

I is teaicctessteenditiitiapsiadniibil 29

Linda R.S. v. Richard D.,

I as stceielimasuninhniaonencanabiavnes 17

Mach Mining, LLC v. EEOC,

I i sasrinincnmeahenion 23

Massachusetts v. EPA,

Be EY II cnsscccitvcnsihannsiinioniesinbdiinensonianuiinian 11, 17,18

Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak,

I itcsericnschcnisrtcensiciintesisinssaitshones 20, 26, 27

Morton v. Ruiz,

IN schists sinecieciastaniagini 28, 29

Nat'l Park Hospitality Ass'n v. Dep't of Interior,

TIT ciccssnatecenisshcapaninebiannipicansimnecublegnsheniouse 30

NRDC v. EPA,

be s 0. ofl > 5 | Renn nenemene 28

Pennsylvania v. New Jersey,

a cestearcesentasicssssidinsistenotatelbieicosasindapieisias 15, 16

Plyler v. Doe,

a a 17

Profls & Patients for Customized Care v. Shalala,

56 F.3d S82 (Gth Cir. 1906)...............cccrscccscssssscsccssseseeses 30

Reno v. Am.-Arab Anti-Discrimination Comm.,

Ps EE I cc sdsccrincenisloniendeeuntnaspidtiniistinciaionias 21, 26

Rumsfeld v. Forum for Acad. & Inst. Rights, Inc.,

gg REA AE RSENS a ENCE es 12

Sure-Tan, Inc. v. NLRB,

Oe a iiiicininiisniaheineinienssitintcininitianasadsiamenann 17

Susan B. Anthony List v. Driehaus,

ne a asscessnsenniennennennaninnte 12

Texas v. United States,

2015 WL 1540022 (S.D. Tex. Apr. 7, 2015).............. 9, 20

United States v. Lee,

I a cress ie esennindeetlanlanebonbeseinieetioitia 25

Util. Air Reg. Grp. v. EPA,

Be ee, Se I I etincipstnesscctinssinininenacesonisnmnes 20, 32, 38

Virginia ex rel. Cuccinelli v. Sebelius,

656 F.3d 253 (4th Cir. 2011)..............cssccsssesccsscesesenceeses 15

Watt v. Energy Action Educ. Found.,

Oe ee aa aii idercntertceesiienenpernientiemessinelioiaiiosien 14

Wayte v. United States,

I saci cccceniiddeptssicelaapedicnanienioieodiannaniven 31

Winter v. NRDC,

a a 12

Wyoming v. Oklahoma,

Be inc cininicincninsiedienontobaipuieeniidape 14, 15

Youngstown Sheet & Tube Co. v. Sawyer,

TI cu stcsitccccnteeanthapnempmamniieiaiatebaenialades 3, 37

Constitutional provisions, statutes, and rules:

U.S. Const.:

OE Di ececietesecenevrinscacccccorstesnnestonessnnanssnesenotasesenusnnwenees 32

art. I, $ 8, Cl. 4........cccecsccssscsssescsceserecesersssscsesonsssnssassterene 32

art. IT, § 3, Cl. 5.....sceccsssssssersenesseseesssenssssnsnsansenrsenennansnaenens 9

Administrative Procedure Act:

h8 lo | eevee 28

ok i)

OB ao ensiicctenscsasernetussncocconcesinsnnsasneentoases 29

5 U.S.C. § GERI GMA) ..n..cceccecsccseesccceesscccccsesseesscrsceseoees 28

Sil tom) ) \ enon 30

BUT... © FORGII) ...0.ccseccsvvescocvecseccceconsssccvennsevsnenscessonse 25

UTC. © FRI) onnccaececceccccsccsecessesesessovsevesescnssesesnseases 20

i 1G | Sea cccoreeenrens 25

OO Pi a ciiceicacsensinistsnconnesepsnsontaneqneencnomicorenvencsenenenns i)

BK U.S.C. & TOBLRICA) q.ceccccccccocsesccvveeccccccsccsscnnevarscnseecesccees 32

Department of Homeland Security Appropriations

Act, 2015, Pub. L. No. 114-4, tit. II, 129 Stat. 39,

I apacnsiamsnnstledeeeninenenenienlaneneneenneNEnetnenys 32

Internal Revenue Code:

4 ee > 6) | \ ener 8

BE UF S.C. & SELON I NE) o.ereacenesecceccccsceseccscssorsecsesscncsesscesnes 8

I ss ciccecsinshesensnsceneseisessovnnecennnsenevesesenenenees 8

DG U.S.C. §$ 3804(a)(14)(A)...-ccecsscccsecsscssssssccersnscnrenseosesees i)

BE TT SLC. © GRBIID) ..20ecocvcsscvcvesvesssossesscccnsocccseseenvesvovene 18

Immigration and Nationality Act:

8 U.S.C. § 1101 et 8€q........-.cecssccssereecersrenessssssensnsssseresenes 3

& U.S.C. § 1101(a)(15)(A)....vccecsscesscccsccsssseereeeeessnceesersees 6

8 U.S.C. § 1101(a)(15)(A)-CV).......ecccccseescereeeseensenenensennees 3

(VII)

8 U.S.C. § LIOICAN IGE) ....0..ccecccccscseosecsecnserscssssssoseseveens 6

8 U.S.C. § 1101(a)(15)(G)necsessssssscsssscvsccncecscesecseseeseseesesee 6

8 U.S.C. § 1101(a)(15)(H) sessssesssscssssscsesssssesssssesesseeesesseee 6

& UG.C. 8 UDCRAI NEED cececceccnenncecexsincssereessnenstsaiie 6

8 U.S.C. § 1101 (aX15)L) -ceseesecsssesssonossscsoccccccccsscossevsssees 6

& U.S.C. § 1101(m)CLG)P)qa.a.assssseesessccecsececsssscsnnceccccccccnene 6

S UGC. § TNR vceccscsscsersncsestrnionseae 3

Lit eR). Madore 5

8 U.S.C. § 1108(8)(1)-(B) seeccscsssccscccccccccccccesesssssssssnsecenee 32

UGA. © ROCIO gesscincnixcnssessssecoreeeriessbscamcl 2A

& U.S.C. § 1151 ()(2)(A) Ci) scccccccsscscseseeessesecesenssenenee 4, 35

8 U.S.C. § 1154(a)(1)(D)G)(TD) csscscsesesssssesseeeeesnnsssee 4, 5-6

8 U.S.C. § 1154(a)(1)(D)()(TV) ceccccccscccsssseceessesenennssee 4,6

i a) CO ES. 3

Ti oat) | er 5

5 UBC. © POIINIIOIE cesenseccasseninsnspuisibonennnesseeael 5

Li) (og |) MeO. 4

8 U.S.C. § 1182(a)(Q)(B)G)(D) -eeesecscseseseceessesssesnennsnsensen 30

8 U.S.C. § 1182(a)(9)(B)()(LD).....scssssssssceseeseensee 4, 30, 35

8 U.S.C. § 1182(a)(9)(B) (ii) ...ccccsccsccssssssesesssssesnseeee 26, 30

8 U.S.C. § 1182(a)(10)(C)GI)(TID) ..ccecceeeecsssseeeeseennssnneee 24

& U.S.C. § 1182(G)(5)(A) ceccccccccccccccccccscssecsesesssnsssnensnees 3,9

sus. 11... 5

8 USC. 6 PII intent 5

wi eat). nad 5

& U.S.C. § 1184(q)(1)(A) csssocsccccccsssccccesssecsecsesssssenssessnssen 5

SU RC. 8 ia sociated 4, 35

(VIII)

STD (ciescsieniadeenicnnaninenseersonennaneveneceococoventees 35

i mssunenvecuotcs 4

a 4

ED ceesonnnensnenbecocooesons 4

a 4

rr cesenenvoseeossostososooss 4

i nsvemneieesponoosvionss 4

EES i 3

EES 25

os nrcinceesntccnesesecvosoossecssos 25

OE 25

a sseesbedeinensentatens 3

i ssisinmncanen 5

EE 3, 4, 35

I snicleenennuibns 35

SE a 5

ER 5

8 U.S.C. $ 1SZAaLINS).......cccccccccccccccccsseeee 5, 24, 26, 33, 35

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, 100 Stat. 3359 00... ccc cccceeeeeeeees 5

National Defense Authorization Act for Fiscal Year

2004, Pub. L. No. 108-136, § 1703(c)-(d), 117 Stat.

a cesienbivebenocnee 4,6

Personal Responsibility and Work Opportunity

Reconciliation Act of 1996, Pub. L. No. 104-193:

§ 401, 110 Stat. 2105, 2261 ..............cccscsossecersereere 35-36

Ee 25, 27, 36

acs hsdcnereseensecccesssertennsocecenccsense 8, 18

SE tt EEL EDEEOD ccndcenocensscsnssvstescenveenssoseosenetes 25

ede OF REED coverssaresevencscsessevsenscecessesece 8, 25, 36

Dae as OGD cecevenrcnnncectrtinaniniieniiniisiaa 8, 25, 36

te i iirisintennisncinicnihctapnaintndanssnieadiiibantadieaia: 27

ee cicrniccinicistesisiaisiasinatitiannatiaiiea cinta 27

Ch! a ERESIE Reena eps Teel ey Ore ST 27

REAL ID Act of 2005, Pub. L. No. 109-13, div. B,

§ 202(c)(2)(B)(viii), 119 Stat. 302, 313 ............ eee 8, 13

USA PATRIOT Act of 2001, Pub. L. No. 107-56,

fh DE 4

ETE it ciicocitescheeinethistpapgetnntiapitiiaeeniphiceaharepliiecmpeidiiaiadd 24

Rs Rata a 32

ee Es OED ceccttneicrcncennstcitmenesinenincnnensii 8

es A cnictiteciee thats cinatircicittan tigen eieianbaniael 8

Ba Ce I, GB te Reritctttentcnennsnisctnincmintstneciammainaaiies i)

Tex. Lab. Code § 207.043(a)(3) ...............cccccssccorsserseenes 9, 27

Tex. Transp. Code:

ne aiiiuaiiseninbiabinianaiomhal 8, 27

ESERIES ace ea eae Coen k Sil RTS f 13

BO I i ciescecusinninciainbecsiededadunisid ina iteesiiatiee ieee Lure 13

8 a earl meee LV pa 13

8 C.F.R.:

1 ERC ennereenmen remands revaann va Lm ee ae 8

|) SER EPICS BPE BOW” 34

|! ERSEEES IRIE ewerenenrer swt ened Oe ere ee 34

20 C.F.R.:

REELS SE SSRN ee Pn. PI ss 8

EE SNES ase Sear aren een er ie tee AS 8

| RR ANSE Ener cornet eee WS ad RO A 8

SILT i TIS Ese osrentessnnnemapecsivcsiitsinsemeniccianspiadineamnisianitiaatdil 38

i Seek Bic ID wenenertcceengennossinnenciingetsinianainntaieamiaidisial 12

Miscellaneous:

gf. 9, 93, Sl | ee 16

13A Fed. Prac. & Proc. Juris. § 3531.5 0.0.......ccccccceceeeeeeee 15

44 Fed. Reg. 43,480 (July 25, 1979) ............cccccccecceesseeneees 24

46 Fed. Reg. 25,079 (May 5, 1981) ...............c.:ccceeceeeseeeeeees 34

52 Fed. Reg. 16,216 (May 1, 1987)...................cc-scseeeseeees 34

52 Fed. Reg. 46,092 (Dec. 4, 1987) ............cccccsseeceeeseeeseees 34

Oral Arg., No. 15-40238 (5th Cir. Apr. 17, 2015)............. 18

USCIS, Fact Sheet: Important Information for

Some DACA Recipients Who Received Three-

Year* Work Authorization (July 15, 2015),

http://www.uscis.gov/sites/default/files/USCIS/

Humanitarian/Deferred%20Action%20for%20

Childhood%20Arrivals/3yr-EAD-fact-sheet.pdf ......30

(XI)

In the Supreme Court of the Gnited States

No. 15-674

UNITED STATES OF AMERICA, ET AL., PETITIONERS

Vv.

STATE OF TEXAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

INTRODUCTION

The Executive Branch unilaterally created a pro-

gram—known as DAPA—that will grant “lawful pres-

ence” and eligibility for work permits to over four mil-

lion aliens who are present in this country unlawfully.

“Lawful presence,” an immigration classification estab-

lished by Congress, allows aliens to receive numerous

benefits—such as Medicare, Social Security, the

Earned Income Tax Credit, and unemployment insur-

ance. And Congress has created a detailed, complex

statutory scheme for determining when an alien may

lawfully enter and be present in this country.

The Executive claims the power to ignore these

statutes and unilaterally deem lawful the presence of

any unauthorized alien it chooses not to remove. More-

over, the Executive asserts that it may do so for mil-

lions of aliens without even using conventional notice-

and-comment procedures. But the Executive does not

dispute that DAPA would be one of the largest changes

in immigration policy in our Nation’s history. The Pres-

ident himself described DAPA as “an action to change

the law.” Pet. App. 384a; R.69.' There is no statutory or

constitutional authority for such a change; and at a min-

imum, it had to be promulgated with notice-and-

comment procedure.

The Executive does have enforcement discretion to

forbear from removing aliens on an individual basis.

The preliminary injunction does not interfere with that

discretion. It does not require the Executive to remove

any alien, or affect the Executive’s separate memoran-

dum, Pet. App. 420a-429a, establishing three categories

for removal prioritization.

But law-enforcement discretion does not confer the

distinct power to deem unlawful conduct as lawful, or to

change an alien’s statutory immigration classification.

The Executive admits, as it must, that DAPA does not

merely abandon (or “defer”) removal proceedings. It

expressly grants aliens work-permit eligibility and law-

ful presence in this country. “Lawful presence” is not an

empty label. It is a designation used throughout the

United States Code, and it confers eligibility for nu-

merous benefits—including Social Security, Medicare,

the Earned Income Tax Credit, and unemployment in-

surance.

The Fifth Circuit correctly rejected petitioners

sweeping and unprecedented assertion of Executive au-

' The Fifth Circuit electronic record on appeal is cited as R.p.

thority. This Court can deny certiorari on that basis

alone. Moreover, petitioners do not even attempt to as-

sert a circuit split, and the case remains in a prelimi-

nary, interlocutory posture. Petitioners’ asserted justi-

fication for review—that DAPA is an important new

federal program—is at odds with their own submission

that DAPA is merely a general policy statement advis-

ing the public of the Secretary of Homeland Security’s

tentative intentions. Pet. 29. In reality, of course, DAPA

is a crucial change in the Nation’s immigration law and

policy—and that is precisely why it could be created only

by Congress, rather than unilaterally imposed by the

Executive. If the Court grants review, it should affirm

the injunction and uphold the separation of powers, as it

did in Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952).

STATEMENT

A. Statutory Background

1. Lawful presence. Through the Immigration and

Nationality Act (INA), 8 U.S.C. § 1101 et seq., Congress

has delineated detailed criteria for an alien to obtain

legal authorization to be in the country. See, e.g., id.

§§ 1101(a)(20), 1255 (lawful permanent resident (LPR)

or “immigrant” status); id. § 1101(a)(15)(A)-(V) (visas or

“nonimmigrant” status); id. §§ 1101(a)(42), 1158,

1231(b)(3) (refugee status); zd. § 1182(d)(5)(A) (humani-

tarian parole); id. § 1254a (temporary protected sta-

tus).”

* Congress has also directed that each individual] without au-

thorization to be in this country “shall” be “inspected” by

Congress has strictly limited the ability of aliens to

acquire lawful presence on the basis of family reunifica-

tion. Congress has created no path for alien parents to

obtain lawful presence based on their child’s LPR sta-

tus. And if their child is a citizen, alien parents can ob-

tain lawful presence for that reason only if they fulfill a

number of demanding requirements, including volun-

tarily leaving the country and waiting for any reentry

bar to expire. Id. §§ 1151(b)(2)(A)(i),

1182(a)(9)(B)(i(IT), 1201(a), 1255.

Congress has occasionally granted the Executive

authority to confer deferred action, with attendant legal

consequences, on specific categories of aliens. In each

case, the covered aliens either had a preexisting lawful

status or would imminently obtain lawful status. See

Pet. App. 189a, 190a & n.78; see also Pet. App. 81la-82a.

Congress has expressly delegated to the Executive the

authority to grant class-wide deferred action in only

four narrow’ circumstances. See 8 U.S.C.

§ 1154(a)(1)(D)(i)(1D, (TV) (certain petitioners under the

Violence Against Women Act); Pub. L. No. 107-56,

§ 423(b), 115 Stat. 272, 361 (certain family members of

LPRs killed on September 11, 2001); Pub. L. No. 108-

136, § 1703(c)-(d), 117 Stat. 1392, 1694-95 (certain family

members of U.S. citizens killed in combat); 8 U.S.C.

§ 1227(d)(1)-(2) (certain T- and U-visa applicants); see

immigration officers; if the officer determines that the indi-

vidual is not clearly entitled to be admitted, the individual

“shall be detained” for removal proceedings. 8 U.S.C.

§ 1225(a)(1), (a)(3), (b)(2)(A). And Congress has created spe-

cific removal exceptions. E.g., id. §§ 1182, 1227(a)(1), 1229b.

also R.510-11 (Office of Legal Counsel memorandum

(OLC Memo) identifying only these four examples); cf

Pet. 7, 8, 25, 26.

2. Work authorizations. Congress also enacted

detailed statutes addressing when aliens are authorized

to work in the country. The Immigration Reform and

Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100

Stat. 3359, is “a comprehensive scheme” that “forcefully

made combating the employment of [unauthorized] al-

iens central to the policy of immigration law.” Hoffman

Plastics Compounds, Inc. v. NLRB, 535 U.S. 137, 147

(2002) (internal quotation and alteration marks omit-

ted).

Among other things, Congress established penalties

for employers who hire “unauthorized aliens.” 8 U.S.C.

§ 1324a(a), (f). Employers cannot employ aliens who are

neither LPRs nor “authorized to be so employed by this

chapter or by the Attorney General [now, the Secretary

of Homeland Security].” Jd. § 1324a(h)(3) (“Definition of

’ nauthorized alien”). This definitional subsection, which

concerns employer liability, does not address the Exec-

utive’s authority to isswe work-authorization permits.

Indeed, Congress has separately demarcated the

Executive’s delegated authority to issue work permits.

E.g., id. § 1101(i)(2) (human-trafficking victims); id.

§ 1158(c)(1)(B), (d)(2) (asylum applicants); id.

§ 1184(c)(2)(E), (e)(6), (p)(3), (p)(6), (q)(1)(A) (spouses of

L- and E-visa holders; certain crime victims; spouses

and certain children of LPRs); id. § 1254a(a)(1) (tempo-

rary-protected-status holders). Congress also granted

work-permit eligibility to a few narrow classes of de-

ferred-action recipients. E.9., 8 U.S.C.

§ 1154(aX1)(D)\DUD, (UV); Pub. L. No. 108-136,

§ 1703(c)-(d), 117 Stat. at 1694-95. Additionally, certain

nonimmigrant visas automatically provide work author-

ization. #.g., id. § 1101(a)(15)(E), (H), (1), (L) (commer-

cial work); id. § 1101(a)(15)(A), (G) (foreign-government

or international-organization work); id. § 1101(a)(15)(P)

(athlete or entertainer work).

B. Deferred Action for Childhood Arrivals

*(DACA)

On June 15, 2012, the Executive created a program

called Deferred Action for Childhood Arrivals, or

DACA. R.123-25\(DACA memo). DACA grants a two-

year “deferred action” term to unauthorized aliens who

entered this country before June 15, 2007, were under

age 16 at the time of entry, and were under age 31 on

June 15, 2012, among other criteria. R.123. The Execu-

tive described DACA as an “exercise of prosecutorial

discretion,” “on an individual basis.” R.124. As the rec-

ord reveals, however, Executive officials reflexively ap-

prove applications that meet DACA’s eligibility criteria.

Pet. App. 386a-389a; R.1989, 2224, 4148, 4193.

DACA recipients are also deemed eligible for work

permits. R.125. And although the DACA memo itself

said nothing about lawful presence, the Executive has

deemed DACA recipients lawfully present. R.4158.

After DACA’s announcement, the President repeat-

edly emphasized that DACA marked the outer limit of

his administrative powers: “But if we start broadening

that, then essentially I would be ignoring the law in a

way that I think would be very difficult to defend legal-

ly.” R.2142; see R.65-66. Accordingly, the President

called upon Congress to change the immigration laws to

implement his preferences. R.68. Congress did not

oblige.

C. DAPA—The Challenged Directive

On November 20, 2014, the Secretary of Homeland

Security issued the immigration directive challenged

here—the DAPA Directive. Pet. App. 41la-419a; see

R.4149. This directive does four significant things:

First, it directs the relevant Department of Home-

land Security (DHS) division, USCIS, to expand DACA

by (1) eliminating the age cap, (2) increasing the term

from two to three years, and (3) adjusting the date-of-

entry requirement to January 1, 2010. Pet. App. 415a-

416a.

Second, it “direct{s)] USCIS to establish a process,

similar to DACA,” to grant three-year terms of de-

ferred action to aliens who (1) have a child who is a citi-

zen or LPR, (2) lack authorization to be present in this

country, (3) have been present since January 1, 2010,

(4) are not one of three enforcement priorities, and

(5) “present no other factors that, in the exercise of dis-

cretion, makes the grant of deferred action inappropri-

ate.” Pet. App. 416a-418a. This program is known as

Deferred Action for Parents of Americans and Lawful

Permanent Residents. Pet. App. 244a, 383a; R.4791. For

brevity, this brief uses “DAPA” for the Directive creat-

ing this program and expanding DACA.

Third, the Directive states that the “deferred ac-

tion” awarded grants lawful presence to aliens who

would otherwise be unlawfully present: “Deferred ac-

tion... means that, for a specified period of time, an in-

dividual is permitted to be lawfully present in the Unit-

ed States.” Pet. App. 413a (emp! sis added).

Fourth, the Directive states that DAPA recipients

are eligible for work authorizations. Pet. App. 417a-

418a.

DAPA’s grant of lawful presence triggers numerous

other benefits, including:

1. Driver’s licenses. See REAL ID Act of 2005,

Pub. L. No. 109-13, div. B, § 202(c)(2)(B)(viii),

119 Stat. 302, 313 (“deferred action status” basis

for issuing driver’s licenses); see, e.g., Tex.

Transp. Code § 521.142.

2. Social Security. 42 U.S.C. § 405(c)(2)(B)G)(D

(Social Security number eligibility for aliens

whose “status is so changed as to make it lawful

for them to engage in ... employment”); 8 U.S.C.

§ 1611(a), (b)(2) (benefits available to those “law-

fully present”); 20 C.F.R. §§ 422.104(a),

422.107(a), (e); 8 C.F.R. § 1.3(a)(4)(vi).

3. Earned Income Tax Credit. 26 U.S.C.

§ 32(c)(1)(A), (c)(1)(E), (m) (eligibility based on

valid Social Security number issued to alien

whose status permits employment).

4. Medicare. 8 U.S.C. § 1611(b)(2)-(3) (certain bene-

fits available to those “lawfully present”); 42

U.S.C. § 1395¢ (Medicare eligibility concurrent

with Social Security eligibility).

5. Unemployment insurance. 26 U.S.C.

§ 3304(a)(14)(A) (eligibility for aliens who are

“lawfully present”); see, e.g., Ark. Code Ann.

§ 11-10-511; Tex. Lab. Code § 207.043(a)(3).

6. Access to international travel, via “advance pa-

role.” R.587-88; cf. 8 U.S.C. § 1182(d)(5)(A).

Shortly after DAPA issued, the President candidly

admitted, “I just took an action to change the law.” Pet.

App. 384a.

D. Procedural History

Plaintiffs, respondents here, represent a majority of

the States in the Union. Their lawsuit alleges that

DAPA violates the Administrative Procedure Act

(APA), 5 U.S.C. §§ 553, 706, and the Constitution, see

U.S. Const. art. I], § 3, cl. 5. R.241-44. Respondents do

not challenge the separate DHS memorandum that pri-

oritizes categories of aliens for removal. See Pet. App.

332a-333a, 420a-429a.

Respondents moved for a preliminary injunction,

R.137-81, and submitted over 1,000 pages of evidence,

R.1247-2307. After a hearing, R.5120-257, the district

court issued a 123-page opinion preliminarily enjoining

DAPA, Pet. App. 244a-406a.

Petitioners appealed and moved in district court for

a stay pending appeal. R.4508-30. The motion was de-

nied. Texas v. United States, 2015 WL 1540022, at *8

(S.D. Tex. Apr. 7, 2015).

Petitioners moved for a stay in the Fifth Circuit.

The Fifth Circuit denied the motion in a 42-page major-

ity slip opinion, after hearing over two hours of oral ar-

gument. Pet. App. 156a-210a. Judge Higginson dissent-

ed. Pet. App. 211a-243a.

-Petitioners did not file a stay application in this

Court. Ms

After regular briefing, two rounds of supplemental

briefing, and two more hours of oral argument, the

Fifth Circuit. affirmed the district court’s preliminary

injunction of DAPAS Pet. App. 1a-90a. The court held

that respondents had standing, Pet. App. 20a-36a,

DAPA is reviewable, Pet. App. 36a-53a, DAPA required

notice-and-comment, Pet. App. 53a-69a, and DAPA is

substantively unlawful, Pet. App. 69a-86a. The court

also agreed that respondents satisfied the equitable

requirements for a preliminary injunction and that the

nationwide scope of the injunction was proper. Pet.

App. 86a-90a.

Judge King dissented, concluding that the challenge

was not justiciable and that DAPA was lawful. Pet. App.

91a-155a.

ARGUMENT

The Fifth Circuit’s decision is correct. The prelimi-

nary injunction of DAPA was necessary to uphold the

separation of powers and ensure the proper functioning

of the administrative state.

First, respondents have standing on multiple inde-

pendent grounds. DAPA will directly impose substan-

tial costs associated with issuing additional driver’s

licenses; it will also require additional healthcare, law-

enforcement, and education expenditures. These inju-

ries would easily establish standing for any ordinary

litigant. In addition, States are due “special solicitude”

in the standing analysis. Massachusetts v. EPA, 549

U.S. 497, 520 (2007). Second, DAPA is reviewable agen-

cy action. It created the authority, and established the

criteria, for granting lawful presence and eligibility for

a variety of benefits to millions of unauthorized aliens.

Third, DAPA—one of the largest changes in immigra-

tion policy in our Nation’s history—is a substantive rule

that required APA notice-and-comment. Moreover, the

Executive lacks substantive authority to create DAPA.

Other considerations also warrant a denial of certio-

rari. Petitioners have not even attempted to identify

any conflict of authority, and the case is in an interlocu-

tory posture. Ultimately, petitioners’ sole argument for

review is that DAPA is a vastly important change in the

Nation’s approach to immigration. It is true that fun-

damental questions of immigration policy are “properly

resolved through the political process.” Pet. 12. But

that political process must include the People’s elected

representatives in Congress. Executive agencies are

not entitled to rewrite immigration laws. Nor are they

entitled to short-circuit public participation by dispens-

ing with notice-and-comment rulemaking. Petitioners’

solitary argument for certiorari therefore only reinforc-

es that DAPA is reviewable and at a minimum required

APA notice-and-comment.

I. The Court of Appeals Correctly Upheld the Pre-

liminary Injunction.

The Fifth Cireuit correctly held that the district

court did not abuse its discretion in applying the four-

factor preliminary-injunction test. See Winter v. NRDC,

555 U.S. 7, 20 (2008). Petitioners’ questions presented

implicate only the first of those factors (likelihood of

success on the merits). Petitioners have thereby forfeit-

ed any arguments about the remaining three factors

(irreparable harm, balance of equities, and public inter-

est) and the injunction’s nationwide scope, Sup. Ct. R.

14.1(a), which the Fifth Circuit correctly resolved in re-

spondents’ favor, Pet. App. 86a-90a.

A. Respondents Have Standing.

Respondents have standing because they possess a

“personal stake” in the outcome of this lawsuit. Susan

B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341

(2014) (citation omitted). “(O]ne party with standing is

sufficient to satisfy Article III’s case-or-controversy re-

quirement.” Rumsfeld v. Forum for Acad. & Inst.

Rights, Inc., 547 U.S. 47, 52 n.2 (2006).

The court of appeals correctly concluded that re-

spondents’ “standing is plain” based on driver’s-license

costs imposed by DAPA. Pet. App. lla. The court did

not reach respondents’ alternative standing grounds,

Pet. App. lla, which are independent bases to affirm,

see J.E. Riley Inv. Co. v. Comm’r, 311 U.S. 55, 59

(1940).

1. Driver’s-license costs. The courts below found

that DAPA would impose substantial costs on the plain-

tiff States’ driver’s-license programs. Pet. App. 20a-21a,

288a.

Texas is one example. Under Texas law, DAPA re-

cipients would be eligible for driver’s licenses. Tex.

Transp. Code § 521.142(a); id. §§ 521.181, 521.1425(d).

Petitioners do not challenge the factual findings that

(1) at least 500,000 aliens in Texas would be eligible for

DAPA; (2) many of them would seek driver’s licenses;

and (3) Texas would lose over $100 per license. Pet.

App. 20a-2la, 3la-32a, 27la-273a; see R.2106. Even if

only a small fraction of DAPA recipients apply for driv-

er’s licenses, Texas would incur millions of dollars in

costs. Pet. App. 21a; cf Arpaio v. Obama, 797 F.3d 11,

23 (D.C. Cir. 2015), cert. pet. pending, No. 15-643 (filed

Nov. 12, 2015) (contrasting this basis for standing with

the standing allegations made in that case).

Other States will experience similar costs. See, e.g.,

R.2040, 2047, 2247.° Moreover, a portion of these costs

is directly attributable to the federal REAL ID Act of

2005, 119 Stat. at 313. See Pet. App. 21a n.58.

Petitioners respond that Texas is free “to alter or

eliminate its subsidy”—in other words, Texas can pass

on the costs imposed by DAPA. Pet. 16. But as the Fifth

Circuit explained, this logic “would deprive states of ju-

dicial recourse for many bona fide harms.” Pet. App.

* Petitioners have abandoned, and the questions presented do

not include, any argument that States lack standing because

these costs can be “offset” by the speculative financial bene-

fits that may flow from DAPA. See Pet. App. 313a; Wash.

State et al. Amicus Br. 11. The Fifth Circuit correctly reject-

ed this theory. Pet. App. 21la-23a.

24a-25a. States theoretically could pass on any financial

injury through taxes or fees. Pet. App. 24a-25a. Yet this

Court has routinely held that States have standing

based on financial losses. E.g., Wyoming v. Oklahoma,

502 U.S. 437, 447-48 (1992); Watt v. Energy Action

Educ. Found., 454 U.S. 151, 160-61 (1981). Similarly,

States frequently establish injury based on federal

preemption of their laws, Pet. App. 25a & n.64, even

though they are free to change those laws.

In short, a defendant cannot defeat standing by as-

serting that a plaintiff should avoid the harm through a

change of policy or behavior. Otherwise, any number of

familiar standing cases would be wrongly decided. See,

e.g., Japan Whaling Ass'n v. Am. Cetacean Soc’y, 478

U.S. 221, 230 n.4 (1986). Here, Texas could avoid the

driver’s-license-cost injury only by changing its policy

and making driver’s licenses less affordable. That is it-

self an injury, because Texas has a sovereign interest in

enforcing its legal code. Pet. App. 24a; Alfred L. Snapp

& Son, Inc. v. Puerto Rico, 458 U.S. 592, 601 (1982).*

‘ In the courts below, petitioners argued that Texas could

simply deny driver’s licenses to deferred-action recipients.

Pet. App. 24a; see Wash. State et al. Amicus Br. 9. Yet the

Executive took the opposite position, R.1309-18, in Arizona

DREAM Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir.

2014), which held that plaintiff Arizona was required to grant

driver’s licenses to all deferred-action recipients. In any

event, being forced to change the State’s standards as to who

may receive driver’s licenses would itself be an injury, as ex-

plained above.

The doctrine of self-inflicted injury is far narrower

than petitioners suggest. It is a causation principle that

applies only where a plaintiff has “manufacture[d)”

standing, Clapper v. Amnesty Int'l USA, 133 S. Ct.

1138, 1143 (2013), and the injury is therefore not at-

tributable to the defendant, 13A Fed. Prac. & Proc. Ju-

ris. § 3531.5. For example, respondents’ injuries would

be self-inflicted if they had amended their driver’s-

license laws in reaction to DAPA, simply to incur costs

and manufacture standing. Cf Virginia ex rel. Cucci-

nelli v. Sebelius, 656 F.3d 253, 270 (4th Cir. 2011). But

respondents have done nothing of the sort. Cf Pet. 18.

Their laws predate DAPA (and DACA). See Pet. App.

27a.

Wyoming v. Oklahoma, 502 U.S. 437 (1992), con-

firms that the self-inflicted-injury doctrine does not ap-

ply here. See Pet. App. 27a. There, Wyoming had stand-

ing to challenge an Oklahoma policy that decreased coal

sales in Wyoming and resulted in “direct injury in the

form of a loss of specific tax revenues”—despite Wyo-

ming’s power to increase the tax rate or tax something

else. Wyoming, 502 U.S. at 447-48. Similarly, Texas has

standing despite its power to increase fees or impose

fees elsewhere.”

Pennsylvania v. New Jersey, 426 U.S. 660 (1976)

(per curiam), predates Wyoming and is not to the con-

trary. Cf. Pet. 16-17. Each plaintiff State’s injury in

* Wyoming also refutes petitioners’ contention that there is

no standing because DAPA “does not regulate States or re-

quire States to do... anything.” Pet. 15; Wyoming, 502 U.S.

at 440 (law regulated only Oklahoma power plants).

Pennsylvania resulted from its own policy of giving its

taxpayers credit for commuter taxes paid in neighbor-

ing States; the Court held that the plaintiff States

lacked standing to challenge the constitutionality of

other States’ commuter taxes. Pennsylvania stands at

most for the proposition that taxation by one State is

not inconsistent with taxation by another. See 7 Fed.

Prac. & Proc. Juris. § 4051. Furthermore, Pennsylva-

nia turned on the constitutional provisions at issue (the

Privileges and Immunities and Equal Protection Claus-

es), which “protect people, not States.” 426 U.S. at 665.

Petitioners argue that Wyoming is distinguishable

because it does not feature one sovereign incorporating

the law of another. Pet. 16-17. This misses the point.

The relevant distinction is that, unlike the plaintiff

States in Pennsylvania, Texas and Wyoming “cannot

both change their laws to avoid injury from amend-

ments to another sovereign’s laws and achieve their

policy goals.” Pet. App. 28a n.65. In addition, Texas

cannot be faulted for incorporating federal immigration

classifications into its driver’s-license determinations

because, as petitioners have previously conceded, it is

forbidden from creating its own. Pet. App. 170a n.34; cf.

Pet. 18.°

* Petitioners also rely on purported “structural bars” which,

in reality, have no effect on this case. Pet. 14-15. Respond-

ents are not contesting any nonprosecution decisions and do

not base their standing on “collateral benefits” of nonprose-

cution. Cf. Pet. 21. Instead, respondents’ standing is based on

direct harms to the States and their residents. See Pet. App.

19a (noting that petitioners’ cases “concerned only nonprose-

cution” rather than “both nonprosecution and the conferral of

2. Healthcare, education, and law-enforcement

costs. The States also have standing because DAPA will

cause them to incur healthcare, law-enforcement, and

education costs. Texas spends hundreds of millions of

dollars on uncompensated healthcare for unauthorized

aliens. Pet. App. 302a; R.1248-92; see also Pet. App.

298a (law-enforcement costs). Texas also spends over

$9,000 annually to educate each unauthorized alien who

attends public school—as required by Plyler v. Doe, 457

U.S. 202 (1982). In a single year, Texas spent almost

$60 million on education costs stemming from unlawful

immigration. Pet. App. 301a; see R.1983-87.

The district court found that DAPA will increase the

number of unauthorized aliens imposing these costs.

Pet. App. 31la-312a. Quite apart from any future in-

crease in immigration, see Pet. App. 3l4a & n.43;

R.1998-99, there will be aliens who would have emigrat-

ed but for DAPA’s benefits, and aliens who would have

been removed but for DAPA, R.2249.

3. Parens patriae. States have parens patriae

standing to vindicate their “quasi-sovereign” interest in

protecting their citizens’ “economic well-being.” Alfred

L. Snapp, 458 U.S. at 601, 605. In this capacity, a State

can sue the federal government to enforce federal law,

as respondents do here, but cannot sue the federal gov-

ernment to “protect her citizens from the operation of

federal statutes.” Massachusetts, 549 U.S. at 520 n.17

(emphasis added).

benefits”); cf. Pet. 14 (discussing Linda R.S. v. Richard D.,

410 U.S. 614, 619 (1973), and Sure-Tan, Inc. v. NLRB, 467

U.S. 883, 897 (1984)).

In the Fifth Circuit, petitioners admitted that lawful

residents would have “competitor standing” to chal-

lenge legalization of work by unauthorized aliens. Oral

Arg. at 0:06:40-0:07:10, 0:07:55-0:08:19, No. 15-40238

(5th Cir. Apr. 17, 2015). As parens patriae, the States

have the same standing. In addition, respondents seek

to protect their citizens from economic discrimination in

favor of DAPA recipients, caused by the Affordable

Care Act. R.2285; see 8 U.S.C. § 1611(a); 26 U.S.C.

§ 4980H(b).

4. Special solicitude and institutional injury. As

in Massachusetts, the plaintiff States here are suing to

protect sovereign interests. 549 U.S. at 519-20; Pet.

App. 15a-18a. Because States ceded certain sovereign

prerogatives upon entering the Union, they “cannot es-

tablish their own classifications of aliens.” Pet. App.

17a. Accordingly, the plaintiff States “now rely on the

federal government to protect their interests.” Pet.

App. 18a. And, like in Massachusetts, the States have a

procedural right—here, furnished by the APA. 549 U.S.

at 517; see Pet. App. 15a-16a. The States are thus “enti-

tled to special solicitude in (this Court’s] standing anal-

ysis.” Ariz. State Legislature v. Ariz. Indep. Redis-

tricting Comm’n, 135 S. Ct. 2652, 2664 n.10 (2015)

(quoting Massachusetts, 549 U.S. at 520); see Pet. App.

12a-20a.

Petitioners suggest that States have no sovereign

interests in who is lawfully within their borders. Pet. 16,

19. But States have an “easily identified” interest in

“the exercise of sovereign power over individuals and

entities within the relevant jurisdiction.” Alfred L.

Snapp, 458 U.S. at 601. And Arizona recognized “the

importance of immigration policy to the States.” Arizo-

na v. United States, 132 S. Ct. 2492, 2500 (2012). Addi-

tionally, as noted above, DAPA intrudes on the States’

sovereign interests in enforcing their legal code and

protecting their citizens’ economic well-being.

Moreover, as in Arizona State Legislature, re-

spondents are “institutional plaintiffls] asserting an in-

stitutional injury.” 135 S. Ct. at 2664; see Pet. App.

315a-331a. Petitioners therefore get it precisely back-

ward when they suggest that the States are less likely

to establish standing than regular litigants. Pet. 15.

Petitioners resort to a parade of horribles, suggest-

ing that recognizing respondents’ standing would create

a flood of litigation. Pet. 17-18; see Intervenors’ Br. 20-

21. The Fifth Circuit correctly rejected these argu-

ments. First, “standing requirements would preclude

much of the litigation the government describes”; for

example, the injury and causation requirements would

likely be difficult to meet in cases involving individual

aliens. Pet. App. 34a-35a. Second, few litigants will be

entitled to “special solicitude.” Pet. App. 35a. Third, the

APA imposes a number of relevant limitations. Pet.

App. 34a. Fourth, “it is pure speculation that a state

would sue about matters such as an IRS revenue rul-

ing.” Pet. App. 35a-36a. Finally, Massachusetts “en-

tailed similar risks, but the Court still held that Massa-

chusetts had standing.” Pet. App. 33a.

B. DAPA Is Reviewable.

DAPA is reviewable under the APA, consistent with

“Congress’s ‘evident intent’ ... ‘to make agency action

presumptively reviewable.” Match-E-Be-Nash-She-

Wish Band of Pottawatomi Indians v. Patchak, 132

S. Ct. 2199, 2210 (2012) (citation omitted).

1. DAPA Is Reviewable Agency Action.

a. DAPA is not unreviewable as an exercise of en-

forcement discretion. Cf Pet. 13, 18, 20-21, 23, 30. The

type of enforcement decisionmaking that traditionally

has been “committed to agency discretion by law,” 5

U.S.C. § 701(a)(2), is “very narrow,” Heckler v. Chaney,

470 U.S. 821, 830 (1985) (citation omitted).

Unlike a decision to forbear from removing particu-

lar aliens, Pet. 20, DAPA would deem lawful the pres-

ence of millions of unauthorized aliens. This cannot be

“an exercise of [the Executive’s] enforcement discre-

tion,” because “it purports to alter [INA] requirements”

and pronounce “that otherwise-prohibited conduct will

not violate the Act.” Util. Air Reg. Grp. v. EPA, 134

S. Ct. 2427, 2445 (2014) (UARG).

The district court’s injunction neither prohibits nor

requires any removal proceedings, and it does not pre-

vent the Executive from deprioritizing removal for

identified aliens. Pet. App. 331a-335a, 405a.’ The sepa-

’ Petitioners admitted below that they could still distribute

“documentation designating certain [unauthorized] immi-

grants as low-priority law enforcement targets without addi-

tionally awarding legal status and other benefits.” Texas,

2015 WL 1540022, at *7. Accordingly, petitioners are wrong

rate DHS memo prioritizing three categories of aliens

for removal is neither enjoined nor challenged. Pet. App.

420a-429a.

No case holds that changing immigration classifica-

tion or benefits eligibility is unreviewable. Reno v.

American-Arab Anti-Discrimination Committee, 525

U.S. 471 (1999) (AADC), confirms that the Executive

has distorted “deferred action” beyond this Court’s

conception of it. AADC explained that “deferred action”

entailed simply the “discretion to abandon” removal

proceedings. /d. at 483-84. Abandonment of a removal

proceeding, of course, is “an agency’s decision not to

take enforcement action,” which is “presumptively un-

reviewable” under Heckler. 470 U.S. at 832. But the af-

firmative acts of granting lawful presence and work-

authorization eligibility are reviewable. See id. at 831.

Petitioners argue that “lawful presence” means only

that “DHS has decided to countenance that person’s

continued presence in the United States.” Pet. 21

(claiming that “lawful presence” is “simply the label for

the consequence of memorializing a decision to forbear

from enforcement action for a designated time”). That

understanding is not shared by Congress, which in 1996

amended statutes to make lawful presence a condition

of certain benefits. See infra pp. 35-36. As the Fifth

Circuit explained, DAPA “transform(s] presence

deemed unlawful by Congress into lawful presence and

that without DAPA they would “have to do the underlying

legwork every time.” Pet. 34.

confer(s] eligibility for otherwise unavailable benefits

based on that change.” Pet. App. 46a.°

Petitioners are wrong that DAPA’s consequences

should be attributed to previous statutes and regula-

tions. Pet. 21. It is DAPA—and not prior statutes or

regulations—that grants lawful presence to millions of

unauthorized aliens and makes them eligible for work

authorization. See, e.g., Pet. App. 368a (district court

recognizing that DAPA “awards some form of affirma-

tive status”).°

To be sure, DAPA professes not to grant a “legal

status.” Pet. 10. But it then explicitly grants lawful

presence—a status that DAPA recipients could not oth-

erwise receive.’ That status has several “consequenc-

es,” including eligibility for Social Security, Medicare,

the Earned Income Tax Credit, and unemployment

benefits. See swpra pp. 8-9. An action that eliminates a

categorical eligibility bar “provides a focus for judicial

* Petitioners argue that this change is “revocable,” Pet. 20,

but revocability “is not the touchstone” for whether agency

action is reviewable. Pet. App. 46a. Conferring lawful pres-

ence is an affirmative action, and lawfu! presence is valuable

while it is possessed. Pet. App. 389a.

* This feature distinguishes DAPA from pretrial diversion,

which neither grants accused criminals an affirmative status,

nor deems their conduct lawful. Cf. Pet. 22.

'© Indeed, “deferred action,” as the Executive now uses the

term, is itself a legal status. See R.1317 (United States Brief

in Arizona DREAM Act Coalition) (stating that “approved

deferred action status’ is ‘lawful status’ that affords a period

of ‘authorized stay’”).

review.” Heckler, 470 U.S. at 832."' Petitioners argued

below that DAPA did not also provide an independent

path to LPR status or citizenship. R.407. This may be

true, but it is irrelevant.

b. DAPA is not otherwise committed to agency dis-

cretion by law. Pet. App. 42a-50a. Lacking sny express

statutory language, petitioners are forced to argue that

DAPA is implicitly committed to Executive discretion.

Pet. 22-23.

But Congress did not give the Executive the ware-

viewable power to grant lawful presence and establish

eligibility for benefits. Cf Pet. 22. “Congress rarely in-

tends to prevent courts from enforcing its directives to

federal agencies,” and there is “a strong presumption

favoring judicial review of administrative action.” Mach

Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (in-

ternal quotation marks omitted). Petitioners identify no

“clear and convincing evidence of legislative intention to

preclude review.” Japan Whaling, 478 U.S. at 230 n.4.

And the Executive’s “action at least can be reviewed to

determine whether the agency exceeded its statutory

powers” against the intricate backdrop of the INA. Pet.

App. 49a (footnote omitted) (quoting Heckler, 470 U.S.

at 832).

" Heckler’s unreviewability presumption, even if applicable, would

be rebutted. Agency policy that “is so extreme as to amount to an

abdication of its statutory responsibilities” is reviewable. 470 U.S.

at 833 n.4. The Executive has expressly abdicated its responsibility

to enforce Congress’s criteria for establishing lawful presence and

work-permit eligibility. See supra pp. 3-6.

No statute delegates to the Executive the discretion

to grant lawful presence to any unauthorized alien it

chooses not to remove. Pet. App. 361a; see Pet. App.

189a-192a. Contrary to petitioners’ view, Pet. 2-3, the

Executive’s authority to enforce immigration laws (8

U.S.C. § 1103(a)(3)) and set enforcement priorities (6

U.S.C. § 202) does not create such unbridled discretion.

Congress has explicitly given the Executive discretion-

ary authority in some instances—for example, by using

the statutory phrase “at the Secretary’s sole and unre-

viewable discretion,” 8 U.S.C. § 1182(a)(10)(C)(ii)CI1D).

And Congress has created “discretionary relief” allow-

ing narrow categories of aliens in removal proceedings

“to remain in the country.” Pet. App. 7la & n.163

(quoting Arizona, 132 S. Ct. at 2499 (certain aliens

seeking asylum, cancellation of removal, voluntary de-

parture, or T or U visas)). But it has not done so with

respect to determining lawful presence.

The same is true of work authorization. Congress

has expressly made various classes of aliens eligible or

ineligible for work authorization; in particular, it has

specified that certain narrow categories of individuals

with deferred action can obtain work permits. See su-

pra pp. 5-6. Petitioners claim unreviewable authority to

issue work permits. But this cannot be squared with the

INA. See infra pp. 33-35; cf. Pet. 23 (arguing that this

power flows from the Executive’s “discretion over re-

movals”). Nor could it stem from regulations promul-

gated before Congress enacted comprehensive statuto-

ry reform of alien employment in 1986. See Pet. 23 (cit-

ing 44 Fed. Reg. 43,480 (July 25, 1979)). And it does not

flow from 8 U.S.C. § 1324a(h)(3), which is a definitional

provision that shapes employer liability and does not

grant Executive authority, much less mention deferred

action or lawful presence.

Petitioners also assert that the Executive has unre-

viewable discretion to grant Medicare and Social Secu-

rity eligibility to any unauthorized alien it chooses not

to remove. Pet. 22; see Pet. 6-7. But the statutes peti-

tioners rely on, 8 U.S.C. § 1611(b)(2) and (3), say noth-

ing about unreviewable executive discretion. In fact, 8

U.S.C. § 1611 was enacted by Congress to curtail the

benefits that had been available to unauthorized aliens.

See infra pp. 35-36. And Congress knows how to dele-

gate unreviewable discretion: it did just that in a sepa-

rate, nearby provision regarding community services.

See 8 U.S.C. § 1611(b)(1)(D) (referring to “the Attorney

General’s sole and unreviewable discretion”).

ec. The INA does not bar judicial review of re-

spondents’ claims. Pet. 22-23; see 5 U.S.C. § 701(a)(1).

Petitioners note that the INA’s cause of action for chal-

lenging individual orders of removal is limited to aliens.

Pet. 23 (citing 8 U.S.C. § 1252). But this suit does not

concern individual removal orders. And respondents

rely on the APA and the Constitution for their causes of

action. See 5 U.S.C. § 702; United States v. Lee, 106

U.S. 196, 220-21 (1882).

Petitioners next point to two inapplicable reviewa-

bility bars. Pet. 22-23. Respondents bring no claim “by

or on behalf of any alien” to challenge a determination

concerning removal proceedings. 8 U.S.C. § 1252(g).

And 8 U.S.C. § 1252(a)(2)(B)(ii) concerns decisions

“specified ... to be in the discretion of the [Secretary],”

whereas none of the powers invoked by petitioners are

so specified.

For similar reasons, there is no “broader statutory

framework” of unreviewability. Pet. 23 n.4. No statute

bars judicial review of Executive immigration actions

generally, and no INA judicial-review bar applies. See

Pet. App. 39a-41a. To the contrary, the INA’s narrow,

reticulated exclusions foreclose any broader jurisdic-

tion-stripping inference, which would render the specif-

ic provisions superfluous. See AADC, 525 U.S. at 486-87

(listing sections insulating Executive discretion from

judicial review).

2. Respondents Satisfy the APA’s Zone-of-

Interests Test.

Respondents are also within the INA’s and APA’s

“zone of interests.” Pet. 18-20. This test is not “especial-

ly demanding.” Patchak, 132 S. Ct. at 2210. No judge

below found that respondents failed to satisfy it.

This Court has recognized “the importance of immi-

gration policy to the States.” Arizona, 132 S. Ct. at

2500. And States have an interest in protecting their

citizens by reserving jobs for those lawfully entitled to

work—a key immigration-law goal. ]/NS v. Nat'l Ctr. for

Immigrants’ Rights, 502 U.S. 183, 194 (1991). Petition-

ers incorrectly conflate the concrete-injury standing

analysis and the zone-of-interests test. Pet. 19. Re-

spondents’ interests need only be “arguably within the

”@ Neither 8 U.S.C. § 1182(a)(9)(B)(ii) nor § 1324a(h)(3) men-

tions “discretion.” Many other INA provisions do. See Pet.

App. 40a & nn.88-89.

zone of interests to be protected or regulated by the

statute.” Patchak, 132 S. Ct. at 2210. The Fifth Circuit

relied on Arizona and recognized that the “interests the

states seek to protect fall within the zone of interests of

the INA.” Pet. App. 37a."

Respondents are also squarely within the zone of in-

terests of the APA’s notice-and-comment provision,

which allows interested persons to comment on adminis-

trative decisionmaking. Chrysler Corp. v. Brown, 441

U.S. 281, 316 (1979). States are entitled to deny benefits

to unauthorized aliens, 8 U.S.C. § 1621(a),"* so they are

keenly interested in whether millions of unauthorized

aliens are rendered lawfully present. Pet. App. 37a.

% The Fifth Circuit did not rely exclusively on 8 U.S.C.

§ 1621, as petitioners imply. Pet. 19. Regardless, that statute

permits States to withhold benefits to unauthorized aliens,

id. § 1621(a), and recognizes lawful presence as an immigra-

tion classification, td. § 1611.

' Contrary to petitioners’ assertion, Pet. 19 n.2, Texas has

extended unemployment benefits to lawfully present aliens,

Tex. Lab. Code § 207.043(a)(3); ef 8 U.S.C. § 1621(d) (States

need to enact statutes after 1996 only to extend benefits to

“an alien who is not lawfully present”) (emphasis added). And

petitioners have waived any challenge to the finding that re-

spondent Wisconsin has paid $570,748 in unemployment ben-

efits to deferred-action recipients. Pet. App. 302a. Further-

more, regardless of whether driver’s licenses are § 1621

“public benefits,” compare Pet. 19, with Pet. App. 180a n.48,

Texas has a significant interest in DAPA because it will ex-

tend driver’s-license eligibility to millions of aliens under

Texas Transportation Code § 521.142.

C. DAPA Is Unlawful.

1. DAPA Required Notice and Comment.

The Fifth Circuit correctly concluded that DAPA is

a substantive rule and thus required APA notice-and-

comment.” Pet. App. 53a-64a; see 5 UL-S.C.

§ 553(b)(3)(A). That procedure was not followed, so

DAPA is unlawful.

For multiple independent reasons, DAPA is not a

“general statement of policy” exempt from APA notice-

and-comment. The Executive’s own label is not control-

ling. See, e.g., CBS, Inc. v. United States, 316 U.S. 407,

416 (1942); cf Pet. 30. And circuit courts recognize that

“notice and comment exemptions must be narrowly

construed” to further Congress’s goal of allowing par-

ties to provide the agency robust perspectives. See Pet.

App. 54a (citations omitted); cf Pet. 13 (advocating for

agency “flexibility”).

First, DAPA would be one of the largest changes in

immigration policy in our Nation’s history, and a rule is

substantive when it “affect{s} individual rights and obli-

gations.” Chrysler, 441 U.S. at 302 (quoting Morton v.

Ruiz, 415 U.S. 199, 232 (1974)). It is therefore “easy” to

find that DAPA is a substantive rule because it

“changed the law.” NRDC v. EPA, 643 F.3d 311, 320

(D.C. Cir. 2011). No “statute, prior regulations, or case

law” authorizes the Executive to grant lawful presence

to millions of unauthorized aliens. /d. at 321. As the

Fifth Circuit observed, DAPA is “easily distinguished”

' Petitioners have never disputed that DAPA is a “rule” un-

der the APA. 5 U.S.C. § 551(4).

from agency actions that lacked legal force; DAPA “has

an effect on regulated entities” because it “remove|s] a

categorical bar to [unauthorized] aliens who are receiv-

ing state and federal benefits.” Pet. App. 59a n.137; see

Ruiz, 415 U.S. at 235-36 (holding that notice-and-

comment procedures were needed to change “eligibility

requirements” for benefits to Native Americans).

Lincoln v. Vigil is inapposite. 508 U.S. 182 (1993).

Lincoln held that an agency’s unreviewable decision to

“discontinue a discretionary allocation of unrestricted

funds from a lump-sum appropriation” was not a sub-

stantive rule. /d. at 197. Lincoln expressly distin-

guished Rwiz on the basis that the agency in Lincoln

did not “modify eligibility standards.” Jd. at 198.

Petitioners make two counterarguments, both una-

vailing. Pet. 31-32. First they claim that DAPA is ex-

empt from notice and comment as “a matter relating

to ... public ... benefits.” 5 U.S.C. § 553(a)(2). As the

Fifth Circuit explained, that exception is inapplicable

for three reasons: (1) the key legal consequence of

DAPA—lawful presence—is not a public benefit;

(2) USCIS, which is in charge of processing the applica-

tions, is not an agency that administers benefit pro-

grams; and (3) this exception must be construed nar-

rowly. Pet. App. 67a-68a, 205a-207a.

Petitioners also argue that DAPA recipients are en-

titled to work permits and Social Security as a result of

previous regulations that themselves underwent notice-

and-comment. But DAPA is necessary for millions of

unauthorized aliens to get work permits and Social Se-

curity. And in any event, petitioners admit that another

legal consequence of DAPA—the tolling of the unlaw-

ful-presence clock that would otherwise cause the impo-

sition of a reentry bar, see 8 U.S.C. § 1182(a)(9)(B)(i)(I)-

(II), (ii)—never went through notice-and-comment. Pet.

32 n.5; see Pet. 22.

Second, an agency action must be tentative to count

as a general statement of policy. See, e.g., Nat'l Park

Hospitality Ass'n v. Dep’t of Interior, 538 U.S. 803, 808

(2003). There is nothing tentative about DAPA. To the

contrary, it “order[{s] immediate implementation” of a

variety of measures, Pet. App. 340a, and it is filled with

mandatory language, Pet. App. 39la n.103 (collecting

examples). Petitioners immediately began implement-

ing it, granting Expanded-DACA permits to over

100,000 aliens in under three months, R.5282, and to

over 2,000 aliens after the preliminary injunction was

issued. See USCIS, Fact Sheet: Important Information

for Some DACA Recipients Who Received Three-Year*

Work Authorization (July 15, 2015), http:/Awww.uscis.

gov/sites/default/files/USCIS/Humanitarian/Deferred

%20Action%20for%20Childhood%20Arrivals/3yr-E AD-

fact-sheet.pdf.

Third, DAPA has a “restrictive effect on agency de-

cisionmakers.” Profls & Patients for Customized Care

v. Shalala, 56 F.3d 592, 601 (5th Cir. 1995); Pet. App.

385a-386a; see Gen. Elec. Co. v. EPA, 290 F.3d 377, 384

(D.C. Cir. 2002) (substantive rule where discretion not

exercised in “standard cases’ )."° Here the district court

subordinates without going through notice-and-comment.

Pet. 30. That is true if the matter is one “of agency organiza-

tion, procedure, or practice.” 5 U.S.C. § 553(b)(A). But peti-

tioners do not even invoke this exemption, and the Fifth Cir-

found—after a careful review of the evidence—that

DAPA, like DACA, would not be implemented with any

genuine discretion in eligibility decisions. The Fifth

Circuit concluded that this determination was not clear-

ly erroneous. Pet. App. 64a. Petitioners do not even at-

tempt to engage with any of the evidence, which shows

(among other things) that no DACA requests were de-

nied for discretionary reasons; that DAPA on its face

purports to establish a process similar to DACA; and

that DAPA applications would be processed in a way

that denied discretion to USCIS officers. Pet. App. 56a-

59a; cf. Pet. 31. In any event, it is uncontested that

DAPA entirely eliminates discretion on a range of other

issues, such as the length of the deferred-action period,

the background check and biometrics requirements,

and the application fee amount. Pet. App. 416a-418a.""

2. DAPA Is Contrary to Law and Violates the

Constitution.

Respondents’ two substantive claims provide alter-

native, independent bases to affirm. See J.E. Riley, 311

U.S. at 59.

cuit persuasively explained that it cannot shield an action

like DAPA, which carries massive consequences for outside

parties. Pet. App. 64a-67a.

'’ Petitioners rely (at Pet. 30) on Wayte v. United States, 470

U.S. 598 (1985), which is irrelevant. Wayte considered only

whether an exercise of genuine enforcement discretion had

been implemented in a discriminatory way. /d. at 610-14.

Wayte does not even mention the APA, let alone notice-and-

comment.

a. The Executive’s unilateral grant of lawful pres-

ence and work authorization under DAPA is “not in ac-

cordance with law.” 5 U.S.C. § 706(2)(A); see UARG,

134 S. Ct. at 2446 (the Executive lacks “power to revise

clear statutory terms”). The Constitution assigns most

immigration responsibilities to the “national govern-

ment,” Pet. 15, 18, but it vests that power in Congress,

U.S. Const. art. I, §§ 1, 8, el. 4.

Given DAPA’s breadth and magnitude, one would

expect explicit congressional authorization for it. But

there is none. Cf. Pet. 26. Petitioners do not dispute that

Congress created intricate statutory provisions regard-

ing when aliens can lawfully be present and work in the

country. See supra pp. 3-6; Arizona, 132 S. Ct. at 2499

(“Federal governance of immigration and alien status is

extensive and complex.”). Neither historical practice

nor the delegations at 8 U.S.C. § 1103(a)(1)-(3) and 6

U.S.C. § 202(5) modify those statutory limitations." Af-

ter all, whether millions of aliens are lawfully present

and eligible for benefits is “a question of deep ‘economic

and political significance’ that is central to this statuto-

ry scheme; had Congress wished to assign that question

to an agency, it surely would have done so expressly.”

King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quoting

UARG, 134 8. Ct. at 2444).

'® Nor did Congress expand the Executive’s power through a

2015 appropriation (cf Pet. 25), which dealt only with “neces-

sary expenses for enforcement of immigration ... laws, de-

tention and removals.” Pub. L. No. 114-4, tit. II, 129 Stat. 39,

42.

Petitioners are also incorrect that “(t]he Secretary

has similarly longstanding authority to decide whether

a class of aliens should be eligible to be lawfully em-

ployed.” Pet. 26. The INA dictates which classes of al-

iens are eligible and ineligible for employment. See s2z-

pra pp. 5-6. Absent from this scheme is any provision

giving the Executive unlimited power to grant work au-

thorizations to any alien. See King, 135 S. Ct. at 2489.

To assert this far-reaching power, the Executive re-

lies on 8 U.S.C. § 1324a(h)(3), which defines the term

“unauthorized alien” in that section to exclude aliens

“authorized [to work] by the Attorney General.” Pet. 27.

But § 1324a regulates employers. Subsection (h)(3) is a

definitiona] provision, freeing employers from punish-

ment for relying on work permits. The subsection does

not address, let alone vastly expand, the scope of Exec-

utive authority to isswe those work permits.”

Petitioners’ interpretation of § 1324a(h)(3) would

make surplusage of the numerous INA provisions that

empower the Executive to authorize work for targeted

classes of aliens. See supra pp. 5-6. This complex statu-

tory scheme belies petitioners’ suggestion that the

granting of work authorization is “closely bound up”

with exercising discretion to forbear from removal. Pet.

13, 23. In fact, when Congress has wanted to permit de-

'® Section 1324a(h)(3) does refer to aliens “authorized to be so

employed by [the INA] or by the [Secretary].” Pet. 27 (em-

phasis added by petitioners). This is because, under the INA,

work authorization is automatic for some enumerated classes

of aliens, but the Executive has certain discretion as to other

classes specified by Congress. See supra pp. 5-6.

ferred-action recipients to obtain work authorization, it

has said so. See supra pp. 5-6.

Unable to overcome these statutory obstacles, peti-

tioners fall back on “regulations governing work au-

thorization.” Pet. 26-27 (citing 46 Fed. Reg. 25,079,

25,080 (May 5, 1981), replaced by 52 Fed. Reg. 16,216,

16,226-28 (May 1, 1987) (codified at 8 C.F.R.

§ 274a.12(a)-(c)). One of those regulations, 8 C.F.R.

§ 274a.12(c)(14), makes work authorization available to

certain aliens granted deferred action. Petitioners insist

that this regulation—which the Executive claimed

would affect very few aliens and have only modest ef-

fects on the labor market, see 52 Fed. Reg. 46,092 (Dec.

4, 1987)—supports their current view that the Execu-.

tive may authorize millions of aliens to work simply be-

cause it has chosen to “countenance[]” their presence.

Pet. 27; see Pet. 5-6. The regulation is correctly read,

however, as “pertaining only to those classes of aliens

identified by Congress as eligible for deferred action

and work authorization.” Pet. App. 195a n.95.

In any event, if the regulation did mean what peti-

tioners believe it does, it would conflict with the statu-

tory framework that Congress has imposed. After the

current regulation was enacted in 1987, Congress has

repeatedly authorized the Executive to provide work

permits only to specific, narrow categories of aliens, in-

cluding certain deferred-action recipients. See supra

pp. 5-6. Those provisions would be surplusage if the

Executive already had the power to authorize every al-

ien to work. As explained above, the only plausible

reading of this statutory framework is that the Execu-

tive may provide work permits only to the classes of al-

iens specified by statute. The regulation therefore has

valid applications and is not facially invalid. Pet. App.

195a n.95. But it has been abrogated to the extent it

must be read—as petitioners advocate—to be incompat-

ible with the current statutory framework. The Execu-

tive’s claims of legislative acquiescence in its boundless

reading of the regulation are precisely backward.”

DAPA also flouts the “intricate process for [unau-

thorized] aliens to derive a Jawful immigration classifi-

cation from their children’s immigration status.” Pet.

App. 72a (citing 8 U.S.C. §§ 1151(b)(2)(A)(),

1182(a)(9)(B)(i ID, 1201(a), 1255); cf Pet. 28. But pe-

titioners’ asserted theory of Executive power does not

stop with family-unification policies. Cf Pet. 28. In-

stead, petitioners claim the unbounded power to grant

lawful presence to millions of unauthorized aliens under

the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104-

»® Petitioners point to six irrelevant amendments of § 1324a,

none of which affected the subsection they purport to inter-

pret, § 1324a(h)(3). Those amendments in no way undermine

the plain import of the provisions that do address work au-

thorization. And petitioners’ claims of acquiescence are espe-

cially implausible because, prior to 2012, the Executive had

never undertaken a deferred-action program that was re-

motely similar to DAPA. See Pet. App. 8la-84a; cf Pet. 27.

21 In attempting to minimize the significance of DAPA, peti-

tioners state without explanation that aliens who receive law-

ful presence through DAPA “are removable.” Pet. 28. DAPA

grants can be revoked, but so can a visa. See & U.S.C.

§ 1201(i). That does not mean a visa holder (or other lawfully

present alien) is removable.

193, § 401, 110 Stat. 2105, 2261 (codified as amended at

8 U.S.C. § 1611(b)(2), (3)), and the INA. See Pet. 22. But

under those statutes, Congress actually foreclosed legal

status that arose solely from the Executive’s decision

not to enforce the immigration laws. PRWORA, for ex-

ample, imposed limits on benefit eligibility for unau-

thorized aliens, and introduced 8 U.S.C. § 1611, which

eliminated most benefits for unauthorized aliens who

had previously received benefits without formal status

(those who were “permanently residing in the United

States under color of law”). See, e.g., Lewis v. Thomp-

son, 252 F.3d 567, 571, 577, 578 & n.20 (2d Cir. 2001).

Petitioners also defend DAPA as consistent with the

Executive’s “longstanding ... practice” of removal dis-

cretion. Pet. 24, 25-26. But that practice is neither chal-

lenged nor enjoined in this suit. Moreover, previous de-

ferred-action programs are so unlike DAPA that they

“shed[] no light on the [Executive]’s authority to im-

plement DAPA.” Pet. App. 84a; see Pet. App. 85a-86a

(distinguishing DAPA’s type of purported removal dis-

cretion as “manifestly contrary” to the INA). Most pre-

vious discretionary deferrals temporarily bridged law-

ful statuses, or they responded to crises on a circum-

stance- or country-specific basis. See Pet. App. 81a-82a,

189a, 190a & n.78. DAPA eclipses previous past uses of

discretionary relief in scope, see Pet. App. 321la n.46,

and in kind, e.g., Pet. App. 83a (noting previous use of

voluntary departure, rather than deferred action, in a

“Family Fairness” program that was “interstitial to a

statutory legalization scheme”).™

That the Executive possesses enforcement discre-

tion and faces resource constraints, see Pet. 25-26, does

not mean the Executive has inherent power to grant

lawful presence and eligibility for work permits to over

four million unauthorized aliens. See R.498 (OLC

Memo) (“{T]he Executive cannot, under the guise of ex-

ercising enforcement discretion, attempt to effectively

rewrite the laws to match its policy preferences.”); cf.

Pet. 5.

b. DAPA also violates the Take Care Clause, and

the Constitution’s separation of powers more generally.

See R.153-64, 1179-210. Presidential action that lacks

congressional support “must be scrutinized with cau-

tion.” Youngstown, 343 U.S. at 638 (Jackson, J., concur-

ring). DAPA’s grants of lawful presence and work-

permit eligibility are “measures incompatible with the

expressed or implied will of Congress,” where the

“{President’s] power is at its lowest ebb.” Jd. at 637. Pe-

titioners’ argument that DAPA is necessary so that un-

authorized aliens can “support themselves through law-

ful work,” Pet. 27, is also directly contrary to Con-

gress’s will as expressed in the INA’s reticulated work-

authorization scheme.

2 Family Fairness granted voluntary departure to about

47,000 people, R.2060, not 1.5 million people, Pet. 7.

Il. Certiorari Is Not Warranted at This Stage.

Petitioners have not alleged that the Fifth Circuit’s

decision is “in conflict with the decision of another

United States court of appeals” or “a state court of last

resort.” Sup. Ct. R. 10. Petitioners suggest that no oth-

er court is likely to review DAPA. Pet. 34. But they

have failed to identify a split of authority on any of the

legal principles at issue in the case. And the case is in

an interlocutory posture.

Moreover, while petitioners address the merits at

length, they ignore the other three prongs of the pre-

liminary-injunction analysis. Petitioners have thereby

forfeited any challenge to the equitable bases for or na-

tionwide scope of the injunction. And the injunction is

not “unprecedented.” Pet. 11, 13, 32. Courts routinely

enjoin unlawful agency action. See, e.g., Coal. for Re-

sponsible Regulation, Inc. v. EPA, 606 F. App’x 6, 7-8

(D.C. Cir. 2015) (per curiam) (vacating unlawful EPA

regulations in accordance with UARG).

Petitioners rely almost exclusively on DAPA’s

“great and immediate significance.” Pet. 35; see Pet. 33-

34. This argument contradicts petitioners’ own charac-

terization of DAPA as a general statement of policy,

which merely advises the public of the Secretary of

Homeland Security’s tentative intentions. Pet. 29. If

that characterization were accurate, further review

would be unwarranted: An interlocutory decision that

creates no splits does not merit review simply because

it temporarily halts the implementation of a tentative

policy statement that has no legal significance.

In reality, of course, DAPA is a significant and im-

mediate change in immigration law and policy. But this

only highlights the breadth of petitioners’ theory of Ex-

ecutive power. According to petitioners, this crucial pol-

icy shift (1) does not affect respondents enough to cre-

ate a case or controversy, (2) cannot be reviewed by any

court, (3) falls within the Executive’s unbridled discre-

tion, and (4) did not even require notice-and-comment

procedure to implement. That is a remarkable claim.

This particular assertion of unilateral Executive

power occurred in the immigration context. But if peti-

tioners’ arguments are accepted, there is nothing stop-

ping this Executive or future Executives from invoking

resource constraints to declare conduct lawful in other

areas—such as environmental, tax, criminal, campaign-

finance, and civil-rights laws. Pet. App. 328a.

Petitioners urge a view of Executive power that is

manifestly contrary to our separation of powers. Certi-

orari is therefore unwarranted. But if the case merits

review, it is to affirm the injunction of DAPA and

thereby ensure the proper functioning of the adminis-

trative state, maintain the separation of powers, and

reject petitioners’ sweeping assertion of Executive au-

thority.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

LUTHER STRANGE

Attorney General

of Alabama

MARK BRNOVICH

Attorney General

of Arizona

LESLIE RUTLEDGE

Attorney General

of Arkansas

PAMELA JO BONDI

Attorney General

of Florida

SAMUEL S. OLENS

Attorney General

of Georgia

LAWRENCE G. WASDEN

Attorney General of Idaho

CALLY YOUNGER

Counsel for the

Governor of Idaho

JOSEPH C. CHAPELLE

PETER J. RUSTHOVEN

Counsel for the

State of Indiana

KEN PAXTON

Attorney General of Texas

CHARLES E. Roy

First Assistant

Attorney Genera!

Scott A. KELLER

Solicitor General

Counsel of Record

J. CAMPBELL BARKER

Deputy Solicitor General

ARI CUENIN

ALEX POTAPOV

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@

texasattorneygeneral.gov

(512) 936-1700

DEREK SCHMIDT

Attorney Genera!

of Kansas

JAMES D. “BUDDY”

CALDWELL

Attorney General

of Louisiana

PAUL R. LEPAGE

Governor of Maine

BILL SCHUETTE

Attorney General for the

People of Michigan

DREW SNYDER

Counsel] for the Governor

of Mississippi

TIMOTHY C. Fox

Attorney General

of Montana

DOUGLAS J. PETERSON

Attorney General

of Nebraska

ADAM PAUL LAXALT

Attorney General of Nevada

ROBERT C. STEPHENS

Counsel for the Governor

of North Carolina

WAYNE STENEHJEM

Attorney General

of North Dakota

MICHAEL DEWINE

Attorney General of Ohio

ERIC E. MURPHY

Co-counsel for the

State of Ohio

E. Scott PRUITT

Attorney General

of Oklahoma

ALAN WILSON

Attorney General

of South Carolina

MARTY J. JACKLEY

Attorney General

of South Dakota

HERBERT SLATERY III

Attorney General and

Reporter of Tennessee

SEAN D. REYES

Attorney General of Utah

PATRICK MORRISEY

Attorney General

of West Virginia

BRAD D. SCHIMEL

Attorney General

of Wisconsin

DECEMBER 2015

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