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

No. 15-674

IN THE

Supreme Court of the Anited States

UNITED STATES OF AMERICA, et al.,

Petitioners,

v.

STATE OF TEXAS, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF 184 MEMBERS OF THE U.S. HOUSE OF

REPRESENTATIVES AND 34 MEMBERS OF THE

U.S. SENATE AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

KENNETH L. SALAZAR SETH P. WAXMAN

WILMER CUTLER PICKERING Counsel of Record

HALE AND DORR LLP JAMIE S. GORELICK

1225 Seventeenth St. PAUL R.Q. WOLFSON

Suite 1660 DAVID M. LEHN

Denver, CO 80202 SAURABH H. SANGHVI

RYAN MCCARL

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com

TABLE OF CONTENTS

Page

ype FP Ci gf \i,, ee ii

INTEREST OF AMICI CURIAE....0...........cccccccccseeeeseee 1

INTRODUCTION AND SUMMARY OF AR-

FAREED Ta SEL Ras Se Ree 4

iii aa al 9

I. THE DAPA MEMORANDUM Is A PERMISSI-

BLE EXERCISE OF CONGRESSIONALLY

I ii ciecnciriiteneenntthaniiiaeaeaate y

A. Congress Has Appropriately Vested

The Secretary With Broad Discretion

To Establish And Implement Immigra-

tion Policies And Priorities........................c000.0-+« i)

B. The Court of Appeals’ Analysis Is

Fundamentally Flawed ............ ieaindaiiiiaiedislaieanatd 17

Il. THE DECISION BELOW RAISES IMPORTANT

IssUES ABOUT THE PROPER ENFORCE-

MENT OF FEDERAL LAW THAT WARRANT

cereal aaldiial 22

5 EEE SEES Rar cate eRe cesar ct 25

APPENDIX

(i)

is

TABLE OF AUTHORITIES

CASES

Page(s)

Abuelhawa v. United States, 556 U.S. 816

IT ccceiesnpeesineteniiannbisiiuniichiasidiessintiadeteiantantuninntintsanient 10

Arizona Dream Act Coalition v. Brewer,

757 F.3d 1053 (9th Cir. 2014) .............cceecseeeeceeees 16, 22

Arizona v. United States, 132 S. Ct. 2492

II ciscnnsentnintinsinnsiiiiteemnatansitianmeiianiioniimnnn 9, 12,14

Chaudhry v. Holder, 705 F.3d 289 (7th Cir.

eee ee er 19

City of Arlington v. FCC, 133 S. Ct. 1863

STITT ctosctiiassinstanaticesesteapsstabaguneeitnbdemsiiaetinaettabtipnibiiitiel 20

Heckler v. Chaney, 470 U.S. 821 (1985)............c.cc-ccssreerees 9

Jean v. Nelson, 727 F.2d 957 (11th Cir.

1984), aff'd, 472 U.S. 846 (1985) ...........-c-csesesereeseseves 12

Massachusetts v. EPA, 549 U.S. 497 (2007)............ 10, 20

Mistretta v. United States, 488 U.S. 361

TTT oisecteetashpselenbimeeinestatatapesinicennauntiiineninnaennansininitin 11

P&V Enterprises v. Army Corps of Engi-

neers, 516 F.3d 1021 (D.C. Cir. 2008)................000000 21

Reno v. American-Arab Anti-Discrimina-

tion Committee, 525 U.S. 471 (1999)..............0-+. 10, 15

United States ex rel. Knauff v. Shaugh-

nessy, S88 US. G37 (IGG) ..............ec.ceccecsceesecsesereeseee 11

CONSTITUIONAL PROVISIONS, STATUTES,

AND REGULATIONS

UB. Comsat. at. EE, 8 S ccccccssccsccssecscscccsssnssevscesssesssncsessescscese 10

TABLE OF AUTHORITIES—Continued

Page(s)

I aa a ell 6, 11, 13

8 U.S.C.

EET A ai Sea O Ee ee eee 6, 12

§ 1154(a)(L)CD)GT TD) & (TV) ...ccccccccccccccccccceccceseceeseees 15

ERE Se EE eR eC eee Ne Pa 7, 21

NSE TEESE NS Be ie eres 22

5 TE ee ee men Ec eE 22

ETT ASE PR cae Re he SNE 16, 21, 22

I 21

8 C.F.R.

a 15

§ 274a.12(c)(14) (1988) ........cccccccesccceeeeeeees 15, 16, 17, 20

Immigration Reform and Control Act of

1986, Pub. L. No. 99-603, 100 Stat. 3445.00.00... 21

National Defense Authorization Act for

Fiscal Year 2004, Pub. L. No. 108-136,

I ee 15

Uniting and Strengthening America By

Providing Appropriate Tools Required

to Intercept and Obstruct Terrorism

(USA Patriot Act) Act of 2001, Pub. L.

8 Ee 15

Employment Authorization to Aliens in the

United States, 46 Fed. Reg. 25,079

ST Ci TTT arnicesinkaciceinceiinstatiiebinantitentadbetiinmmnetcntasen 16

Control of Employment of Aliens, 52 Fed.

8 16

iv

TABLE OF AUTHORITIES—Continued

Page(s)

CONGRESSIONAL AND EXECUTIVE

MATERIALS

Letter from Elliot Williams, Assistant Di-

rector, Immigrations and Customs En-

forcement, to Hon. Elton Gallegly,

Chairman, Subcommittee on Immigra-

tion Policy and Enforcement, Commit-

tee on Judiciary, U.S. House of Repre-

sentatives (Nov. 9, 2011) ..............ccccccssecseseesensereeeeees 15

Subcommittee on Immigration and Border

Security of the House Committee on

the Judiciary, 114th Cong., Rules of

Procedure and Statement of Policy for

Private Immigration Bills, R. 5...................c0ces00+e 16

The Department of Homeland Security’s

Authority to Prioritize Removal of Cer-

tain Aliens Unlawfully Present in the

United States and to Defer Removal of

Others, 38 Op. O.L.C. __ (Nov. 19, 2014) ..........200.0-. 24

U.S. Citizenship and Immigration Services,

Adjudicator’s Field Manual .................-0c0s-reesereeeeee 16

OTHER AUTHORITIES

Maguire, Bernadette, Immigration: Public

Legislation and Private Bills (1997) .....................-- 15

Rodriguez, Cristina M., Constraint Through

Delegation: The Case of Executive

Control over Immigration Policy, 59

RE ec li

IN THE

Supreme Court of the Anited States

No. 15-674

UNITED STATES OF AMERICA, et al.,

Petitioners, -

vz.

STATE OF TEXAS, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF 184 MEMBERS OF THE U.S. HOUSE OF

REPRESENTATIVES AND 34 MEMBERS OF THE

U.S. SENATE AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

INTEREST OF AMICI CURIAE'

Amici are 184 Members of the U.S. House of Rep-

resentatives and 34 Members of the U.S. Senate. A

complete list of amici is set forth in the Appendix.

Among them are:

' Letters consenting to the filing of this brief are on file with

the Clerk. No counsel for a party authored this brief in whole or in

part, and no person, other than amici or their counsel, made any

monetary contribution to the preparation or submission of this

brief.

2

U.S. House of Representatives:

Nancy Pelosi, Democratic Leader

Steny H. Hoyer, Democratic Whip

James E. Clyburn, Assistant Democratic Leader

Xavier Becerra, Democratic Caucus Chair

Joseph Crowley, Democratic Caucus Vice-Chair

John Conyers, Jr., Ranking Member, Commit-

tee on the Judiciary

Zoe Lofgren, Ranking Member, Subcommittee

on Immigration and Border Security of the

Committee on the Judiciary

U.S. Senate:

Harry Reid, Democratic Leader

Richard J. Durbin, Democratic Whip

Charles E. Schumer, Democratic Conference

Committee Vice Chair and Policy Committee

Chair, and Ranking Member, Subcommittee on

Immigration and the National Interest, Com-

mittee on the Judiciary

Patty Murray, Secretary, Democratic Confer-

ence

Patrick J. Leahy, Ranking Member, Committee

on the Judiciary

Robert Menendez, Democratic Hispanic Task

Force Chair

As Members of Congress responsible, under Article

I of the Constitution, for enacting legislation that will

then be enforced by the Executive Branch pursuant to

its authority and responsibility under Article II, amici

3

have an obvious and distinct interest in ensuring that

the Executive enforces the laws in a manner that is ra-

tional, effective, and faithful to Congress’s intent.

Given their institutional responsibility, amici would

not, of course, support Executive efforts to exercise un-

fettered discretion at odds with duly enacted federal

statutes. But where Congress has chosen to vest in the

Executive discretionary authority to determine how a

law should be enforced, and the Executive has acted

pursuant to that authority, amici have a strong interest

in ensuring that federal courts honor Congress’s delib-

erate choice by sustaining the Executive’s action.

Those interests extend in full measure to the Exec-

utive’s enforcement of the Nation’s immigration laws.

As representatives of diverse communities across the

United States, amici have witnessed how an approach

to enforcement of the immigration laws that does not

focus on appropriate priorities, such as serious crimi-

nals and national security threats, undermines confi-

dence in those laws, wastes resources, and needlessly

divides families, thereby exacting a severe human toll.

Amici regard the actions of the Executive invalidated

by the court of appeals as appropriate measures to fo-

cus the Department of Homeland Security’s limited en-

forcement resources on the removal of those unauthor-

ized immigrants who pose threats to public safety.

Amici also regard those actions as squarely within

the Executive’s statutorily granted discretion to de-

termine how best to enforce the immigration laws.

Congress understands that the Executive is often bet-

ter positioned to determine how to adjust quickly to

changing circumstances in a complex field, particularly

one, like immigration, involving law-enforcement and

national-security concerns. Congress therefore regu-

4

larly gives the Executive broad discretion to determine

how to enforce such statutes—and rarely has it done so

more clearly than in the Nation’s immigration laws.

Because amici regard the Executive’s actions as a

permissible exercise of the discretion that Congress has

statutorily committed to it, they urge the Court to

grant the petition for a writ of certiorari, reverse the

decision of the court of appeals, and vacate the prelimi-

nary injunction entered by the district court.

INTRODUCTION AND SUMMARY OF ARGUMENT

The decision below represents an extraordinary

substantive invalidation of an agency’s judgment about

how best to exercise the broad authority that Congress

has expressly delegated to it. The court of appeals has

overturned, as contrary to the Immigration and Na-

tionality Act (INA), a practical judgment by the Secre-

tary of Homeland Security about how to channel the

government’s limited immigration enforcement re-

sources toward categories of individuals likely to pose a

danger to the public interest rather than the millions of

individuals who do not.

As reflected in the DAPA Memorandum, Pet. App.

41la-419a,’ the Secretary determined that those indi-

viduals whose situations do not present compelling cas-

es for expending enforcement resources should be en-

couraged to identify themselves to authorities, so that

immigration officers nationwide may know who they

? Memorandum from Jeh Charles Johnson, Secretary of

Homeland Security, to Leén Rodriguez, Director, U.S. Citizenship

and Immigration Services, et al., Exercising Prosecutorial Discre-

tion with Respect to Individuals Who Came to the United States as

Children and with Respect to Certain Individuals Who Are the

Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014).

5

are and confirm that they are not a removal priority.

The Secretary further determined that, as long as those

persons continued to meet certain qualifications, the

Department of Homeland Security would refrain from

removing them for a limited period—a discretionary

determination that would be memorialized under the

label of “deferred action,” but would confer no legal

rights and could be reversed at any time. Finally, the

Secretary noted that, pursuant to pre-existing regula-

tions promulgated under the Secretary’s statutory au-

thority, those immigrants with “deferred action” could

apply for work authorization during the period of for-

bearance if they make a showing of economic need—a

practical and sensible accommodation for such immi-

grants. Far from being invalid under the INA, the Sec-

retary’s actions represent exactly the kind of rational

and measured approach to immigration enforcement

that Congress expects—and explicitly empowered—

the Executive to undertake.

The impact of the court of appeals’ decision on the

millions of individuals who might be eligible for de-

ferred action under the Secretary's initiative—and

their U.S. citizen and lawful permanent resident (LPR)

children—would be reason enough for this Court to

grant review of that decision. From amici’s distinct

perspective, however, what is especially troubling

about the court of appeals’ decision is that it appears to

call into question fundamental premises about Con-

gress’s ability to grant the Executive the flexibility and

discretion so often necessary to enforce the law effec-

tively—including, but not limited to, immigration law.

Millions of noncitizens are present in the United States;

an estimated 11.3 million of them are present without

authorization. Congress has long understood that the

Executive, with the limited resources available, cannot

6

apply the immigration laws to all unauthorized immi-

grants. Moreover, the patterns of immigration are sub-

ject to swiftly changing circumstances, and the Execu-

tive is better situated to respond promptly to those

changes and to redirect resources as necessary. On

various occasions, Congress has therefore granted the

Secretary broad discretion in determining how to carry

out the immigration laws, and has explicitly directed

the Secretary to establish policies and priorities for en-

forcement of those laws. These actions represent Con-

gress’s overarching judgment that the Executive

should enforce immigration laws in a rational, tailored,

and effective way.

The petitioners claim not to challenge—and the

court of appeals did not question—the Secretary’s dis-

cretionary authority to designate individuals who

would be covered by DAPA and DACA as low priori-

ties for removal.’ In fact, however, the court of ap-

peals’ decision is not faithful to that congressional

judgment and would in effect nullify those broad statu-

tory grants of discretionary authority. The decision

gives insufficient weight to 6 U.S.C. § 202(5), which

charges the Secretary with “[e]stablishing national

immigration enforcement policies and priorities,” and to

8 U.S.C. § 1103(a)(3), which authorizes the Secretary to

“establish such regulations; ... issue such instructions;

and perform such other acts as he deems necessary for

carrying out his authority” under the INA. Those two

* Those priorities were defined in a separate memorandum

that accompanied the DAPA Memorandum. Pet. App. 420a-429a

(Memorandum from Jeh Charles Johnson, Secretary of Homeland

Security, to Thomas S. Winkowski, Acting Director, U.S. Immi-

gration and Customs Enforcement, et al., Policies for the Appre-

hension, Detention and Removal of Undocumented Immigrants

(Nov. 20, 2014)).

7

provisions unquestionably permit the Secretary to

make the judgment that enforcement resources should

be channeled in particular ways. In addition, in 8

U.S.C. § 1324a, Congress expressly authorized the Sec-

retary, by broad delegation, to determine which noncit-

izens should be authorized to work while they remain in

the United States in addition to those noncitizens who

are otherwise specifically authorized by the INA to

work. Those provisions, taken together, fully authorize

the Secretary’s judgment that the immigration laws

will be better enforced if certain individuals who are

not a priority for removal are encouraged to identify

themselves and allowed to work lawfully during such

time as the Secretary forbears from removing them.

Notwithstanding the express statutory authority

to set enforcement policies, the court of appeals held

that Congress had precluded the Secretary from im-

plementing DAPA and DACA when it established sep-

arate mechanisms for obtaining immigration statuses

that are markedly different from deferred action (such

as LPR status) and when it explicitly allowed for lawful

employment under certain circumstances.

That reasoning reflects a serious misreading of the

INA. Deferred action is not a substitute for LPR sta-

tus or an end-run around the stringent requirements

for obtaining LPR status. An immigrant with LPR

status enjoys numerous substantive and procedural

guarantees reflecting his or her permanent position in

the United States, including permanent residence, a

path to citizenship, and the right to petition for the ad-

mission of close family members; an immigrant granted

deferred action, in contrast, receives none of those

guarantees. Deferred action is extended only as a mat-

ter of administrative convenience, can be terminated at

any time and for any reason, and brings with it only

8

certain limited, temporary, and discretionary accom-

modations (such as eligibility to apply for work authori-

zation on the basis of economic need).

Although Congress has set forth detailed require-

ments for immigrants to attain LPR status, it does not

follow that Congress intended to bar the Secretary

from making the discretionary judgment that certain

other noncitizens should, for different reasons and on

different terms, be allowed to remain in the country for

a limited time and be eligible to apply for authorized

work during that time. The court of appeals’ ra-

tionale—that by setting up one scheme extending bene-

fits to specific classes of noncitizens, Congress must

have meant to foreclose any other scheme applicable to

other classes—which the court also applied with re-

spect to work authorization, is out of place in adminis-

trative law. It is especially inapt with respect to the

INA, which gives the Secretary extensive authority to

make discretionary judgments on how best to enforce

the Nation’s immigration laws where Congress has not

prescribed a specific action. The court of appeals’ deci-

sion undermines Congress’s ability to place critical re-

sponsibility in the hands of an agency with the neces-

sary expertise and capabilities. The Court should

therefore grant review and reverse.

9

ARGUMENT

lL THE DAPA MEMORANDUM Is A PERMISSIBLE EXER-

CISE OF CONGRESSIONALLY GRANTED DISCRETION

A. Congress Has Appropriately Vested The Sec-

retary With Broad Discretion To Establish

And Implement Immigration Policies And

Priorities

1. Immigration is a complex and dynamic regula-

tory field. Demographic, social, and political changes

abroad can cause abrupt and substantial changes in

U.S. immigration patterns. Those changes in turn often

generate unforeseeable and sometimes urgent chal-

lenges for domestic policy, criminal law enforcement,

national security, and foreign relations. See, e.g., Ari-

zona v. United States, 132 S. Ct. 2492, 2498-2499 (2012)

(stating that “[i]mmigration policy can affect trade, in-

vestment, tourism, and diplomatic relations for the en-

tire Nation, as well as the perceptions and expectations

of aliens in this country who seek the full protection of

its laws,” and noting that immigration enforcement de-

cisions both “embrace[] immediate human concerns”

and “involve policy choices that bear on this Nation’s

international relations”). Effective immigration policy

demands that the government be able to move swiftly

to meet high-priority challenges as they arise.

In addition, for decades the size of the unauthorized

immigrant population in the United States has far ex-

ceeded the resources available to enforce the Nation’s

immigration laws. In any regulatory field, “[aJn agency

generally cannot act against each technical violation of

the statute it is charged with enforcing,” Heckler v.

Chaney, 470 U.S. 821, 831 (1985)}—hence the common

need to set enforcement priorities. That is true in

spades when it comes to the immigration laws. The

10

process of removal requires the dedication of extensive

resources, as it typically involves investigation, charge,

adjudication, and (if the person is found removable) the

actual process of effecting the person’s departure, and

may also involve detention for certain categories of in-

dividuals. As the government explains, “DHS has not

been able to remove more than four percent of the es-

timated removable population in any year.” Pet. 4; see

also Pet. App. 412a (“Due to limited resources, DHS

and its Components cannot respond to all immigration

violations or remove all persons illegally in the United

States.”); Reno v. American-Arab Anti-Discrimination

Comm., 525 U.S. 471, 483 (1999) (observing that “[a]t

each stage” of removal, “the Executive has discretion

to abandon the endeavor”). Given that resource gap,

enforcement of the Nation’s immigration laws will inev-

itably require the Executive to set priorities.

2. In the INA, Congress has empowered the Ex-

ecutive to define enforcement priorities, to do so in a

rational, consistent, and measured way that focuses its

limited resources on the highest-priority cases, and to

establish practical means for implementing those prior-

ities. Of course, “Congress legislates against a back-

ground assumption of prosecutorial discretion,” Abwel-

hawa v. United States, 556 U.S. 816, n.3 (2009); as

this Court has “repeated time and again,” an agency

“has broad discretion to choose how best to marshal its

limited resources and personnel to carry out its dele-

gated responsibilities,” Massachusetts v. EPA, 549

U.S. 497, 527 (2007). Thus, the authority to set removal

priorities is an integral and unavoidable aspect of the

Executive’s discharge of its constitutional responsibil-

ity to faithfully execute the Nation’s immigration laws.

See U.S. Const. art. II, § 3.

11

In crafting the Nation’s immigration laws, howev-

er, Congress has not relied solely on implicit executive

authority. Rather, Congress has recognized that main-

taining rational, secure, efficient, and humane immigra-

tion practices demands a degree of flexibility that the

Executive is better equipped to provide. In view of the

Executive’s institutional advantages, Congress has ex-

plicitly granted the Executive broad discretionary au-

thority to set removal policies and priorities to develop

and implement appropriate means for carrying them

out. E.g., United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537, 543 (1950) (identifying immigration law as

“a field where flexibility and the adaptation of the con-

gressional policy to infinitely variable conditions consti-

tute the essence of the program” (quotation marks

omitted)); see also Mistretta v. United States, 488 U.S.

361, 372 (1989) (“{I]n our increasingly complex society,

replete with ever changing and more technical prob-

lems, Congress simply cannot do its job absent an abil-

ity to delegate power under broad general directives.”);

Rodriguez, Constraint Through Delegation: The Case

of Executive Control over Immigration Policy, 59 Duke

L.J. 1787, 1810 (2010) (“An administrative agency, as a

structural matter, is better equipped than Congress to

take into account factors that require expertise and

speed to discern.”).

Although there had never been any doubt about

the breadth of the Executive’s authority in this area, in

2002 Congress specifically charged the Secretary of

Homeland Security with “[e)stablishing national immi-

gration enforcement policies and priorities.” 6 U.S.C.

§ 202(5). That direction goes beyond the background

assumption that executive agencies will set priorities

for law enforcement; it expresses Congress’s specific

intent that immigration enforcement not be left to

12

chance, but rather be carried out in a way that furthers

the Nation’s immigration policies in an effective and

efficient way.

In addition, since its enactment in 1952, the INA

has authorized the Secretary (previously the Attorney

General) to “establish such regulations; ... issue such

instructions; and perform such other acts : as he deems

necessary for carrying out his authority” to execute the

INA. 8 U.S.C. § 1103(a)(3); see also, e.g., Jean v. Nel-

son, 727 F.2d 957, 965 (11th Cir. 1984) (en banc)

(§ 1103(a) is “(t]he most important” of the INA’s “broad

grants of discretion” to the Secretary), aff'd, 472 U.S.

846 (1985).

Those broad congressional grants of discretionary

authority plainly suffice to support the enforcement

priorities established by the Secretary in a separate

memorandum. See Pet. App. 423a (prioritizing “threats

to national security, border security, and public safe-

ty”); Arizona, 132 S. Ct. at 2499 (stating that a “princi-

pal feature of the removal system is the broad discre-

tion exercised by immigration officials,” including as to

“whether it makes sense to pursue removal at all”).

They also support the particular policies adopted by the

Department of Homeland of Security to accommodate

low-priority unauthorized immigrants, such as using

the deferred action mechanism to memorialize a deci-

sion to temporarily refrain from removal, and deeming

deferred-action recipients eligible to apply for lawful

employment during the period of forbearance (an ac-

commodation adopted decades ago and separate from

the DAPA Memorandum). For in instructing the Sec-

retary to set and carry out national immigration en-

forcement “policies” (as well as “priorities”), Congress

did not limit the Secretary to determining which indi-

viduals should be the focus of removal efforts or require

13

that the Secretary leave millions of people in perpetual

limbo; it also necessarily granted the Secretary the au-

thority to determine how to accommodate the many in-

dividuals who are determined not to be enforcement

priorities.

The Secretary has determined that low-priority en-

forcement cases may receive “deferred action,” along

with (pursuant to a longstanding and unchallenged

agency regulation known to Congress for decades) eli-

gibility to apply for a time-limited authorization to

work. That judgment easily qualifies as “national im-

migration enforcement polic{y!’ under 6 U.S.C.

§ 202(5), as it enables the Executive to effectively focus

its enforcement resources on the most pressing catego-

ries of cases. See Pet. App. 412a (“This memorandum is

intended to reflect new policies for the use of deferred

action.”).

First, those accommodations create a mechanism—

and an incentive—for low-priority noncitizens to identi-

fy themselves to the Department of Homeland Security

and submit to a background check. See Pet. App. 415a

(noting intent to encourage individuals “to come out of

the shadows, submit to background checks, pay fees,

apply for work authorization (which by separate au-

thority [the Secretary] may grant), and be counted”).

This self-identification process allows enforcement offi-

cials to focus their attention and resources on investi-

gating and processing high-priority cases. /d. 418a-

419a (instructing enforcement officials to “prevent the

further expenditure of enforcement resources” with

regard to individuals who may qualify under DAPA,

including by seeking administrative closure of any

pending removal proceedings). Moreover, it promotes

public safety and national security, for it ensures that

14

millions of individuals in the country without authoriza-

tion to remain can be identified and screened.

Second, by allowing individuals with deferred action

to apply for authorization to work where they have an

economic need, the Secretary helps ensure that his pri-

oritization scheme is not self-defeating or otherwise

contrary to the public interest. If individuals deemed to

present low-priority cases for enforcement—and thus

effectively permitted on a contingent basis to temporar-

ily remain in the United States—were denied the ability

to work lawfully, many would have no means of survival

other than illegal activity. Cf Arizona, 132 S. Ct. at

2504 (stating that immigration law’s “framework re-

flects a considered judgment that making criminals out

of aliens engaged in unauthorized work—aliens who al-

ready face the possibility of employer exploitation be-

cause of their removable status—would be inconsistent

with federal policy and objectives”). The Secretary

could properly determine that such a situation would

undermine the incentive for unauthorized immigrants to

report themselves to the Department of Homeland Se-

curity, impair the government’s ability to keep track of

such individuals, and perpetuate a situation in which

millions of individuals live “in the shadows.”

3. Further still, Congress has expressly given the

Executive the discretion to accommodate unauthorized

immigrants with deferred action and, separately, the

discretion to authorize employment. Congress has long

been aware of the Executive’s practice of deferred ac-

tion, and Congress has long recognized that the Execu-

tive has discretionarily extended work authorization to

categories of individuals as a matter of immigration-

enforcement priority, even outside the INA’s separate

and distinct regime for issuing visas or other forms of

work authorization under certain circumstances.

15

a. Although the practice of deferred action began

“without express statutory authorization,” it long ago

became a “regular practice.” American-Arab Anti-

Discrimination Comm., 525 U.S. at 484 (quotation

marks omitted). Indeed, regulations recognizing de-

ferred action and connecting deferred action to work

authorization have been in force continuously since the

1980s. See, e.g., 8 C.F.R. § 109.1 (1982) (providing that

noncitizens with deferred action are eligible to apply

for work authorization); id. § 274a.12(c)(14) (1988) (de-

scribing deferred action as “an act of administrative

convenience to the government which gives some cases

lower priority”).

Congress, in turn, has approved of this practice and

has enacted legislation incorporating the practice into

regulatory schemes, including for certain victims of

domestic violence, 8 U.S.C. § 1154(a)(1(D)(ix(ID & (IV),

and for certain relatives of certain individuals killed in

the 9/11 terrorist attacks or in combat, Uniting and

Strengthening America By Providing Appropriate

Tools Required to Intercept and Obstruct Terrorism

(USA Patriot Act) Act of 2001, Pub. L. No. 107-56,

§ 423(b), 115 Stat. 272, 361; National Defense Authori-

zation Act for Fiscal Year 2004, Pub. L. No. 108-136,

§ 1703(c)-(d), 117 Stat. 1392, 1694-1695 (2003). And for

decades, the very congressional committees that are

responsible for immigration have routinely asked the

Executive to grant unauthorized immigrants deferred

action or stays of removal while the committee consid-

ered private bills for relief from enforcement of the

immigration laws.“

. See, e.g., Maguire, Immigration: Public Legislation and

Private Bills 23-25, 253-255 (1997); Letter from Elliot Williams,

Assistant Director, Immigrations and Customs Enforcement, to

16

b. In 1981, the Executive promulgated a regula-

tion (after notice and comment) codifying decades of

administrative practice permitting employers to hire

noncitizens who are discretionarily authorized to work

by the Executive. Employment Authorization to Al-

iens in the United States, 46 Fed. Reg. 25,079 (May 5,

1981); 8 C.F.R. § 109.1 (1982); U.S. Citizenship and Im-

migration Services, Adjudicator’s Field Manual, ch.

38.2. Far from disapproving this regulation (or under-

lying practice), Congress in 1986 expressly granted the

Executive the discretion to continue doing it by enact-

ing 8 U.S.C. § 13824a(h\(3), which provides that an em-

ployer may hire a noncitizen if that person is “author-

ized to be ... employed by this chapter or by the Attor-

ney General”—now the Secretary (emphasis added).

See also Arizona Dream Act Coal. v. Brewer, 757 F.3d

1053, 1062 (9th Cir. 2014) (recognizing that

§ 1324a(h)(3) vests in the Executive “broad discretion

to determine when noncitizens may work in the United

States”).

Exercising that clear statutory authority, the Ex-

ecutive then promulgated (again, after notice and com-

ment, Control of Employment of Aliens, 52 Fed. Reg.

Hon. Elton Gallegly, Chairman, Subcommittee on Immigration

Policy and Enforcement, Committee on Judiciary, U.S. House of

Representatives (Nov. 9, 2011) (stating that “[pjursuant to the

agreement between DHS and Congress, ... [DHS] will temporarily

grant deferred action to the beneficiary” of a private bill for the

relief of an unauthorized immigrant, and noting that under 8

C.F.R. § 274a.12(c)(14), the beneficiary could “file for work author-

ization”); Subcommittee on Immigration and Border Security of

the House Committee on the Judiciary, 114th Cong., Rules of Pro-

cedure and Statement of Policy for Private Immigration Bills, R. 6

(“In the past, the Department of Homeland Security has honored

requests for departmental reports by staying deportation until

final action is taken on the private bill.”).

17

16,216 (May 1, 1987)) 8 C.F.R. § 274a,12(c)(14), which

remains in force today and which permits unauthorized

immigrants who are granted deferred action to apply

for work authorization. It is that regulation, not the

DAPA Memorandum challenged in this litigation, that

makes recipients of deferred action pursuant to the

DAPA Memorandum eligible to apply for lawful em-

ployment. And that regulation properly implements

the Executive’s delegated authority to determine, as a

matter of discretion and judgment, which noncitizens

may be allowed to remain in the country temporarily

and work lawfully during that period, even if they have

not been issued a formal status entitling them to do so

as a matter of statutory right.

B. The Court of Appeals’ Analysis Is Fundamen-

tally Flawed

Despite the ample discretionary authority that

Congress granted to the Secretary through the INA,

the court of appeals ruled not only that the DAPA

Memorandum was unauthorized by the Secretary’s

broad policymaking and priority-setting authorities,

but also that it is “manifestly contrary to the INA” be-

cause the INA “directly” and “precise[ly]” prohibited

the Secretary’s actions. Pet. App. 70a-7la, 76a, 85a.

The court’s reasoning is wrong. It incorrectly equates

deferred action and eligibility for work authorization

with other forms of accommodation and formal immi-

gration status set forth in the INA. More fundamental-

ly, the court’s reasoning is wrong because it presumes

that, where Congress has not specifically authorized

the Executive to take a particular action, Congress has

barred that action, even in a regulatory field as com-

plex as immigration. That reasoning stands to wreak

havoc with immigration enforcement, and it could

18

gravely undermine Congress’s fundamental objective

that the Secretary implement the Nation’s immigration

laws in a rational and effective manner. Perhaps there

might be some statutory schemes for which the court of

appeals’ interpretive approach—whether it be a clear-

statement rule, the principle of expressio unius, or an-

other canon—would be appropriate. But the INA is

not one of them. The court’s analysis reads the most

important grants of authority out of the statute.

1. With respect to deferred action, the court of

appeals pointed to provisions of the INA that specifical-

ly authorize immigrants to remain in the country under

certain circumstances not relevant here. The court

noted, for example, that “Congress has enacted an in-

tricate process for illegal aliens to derive a lawful im-

migration classification [i.e., LPR] from their children’s

immigration status”; it then recited the various hurdles

that must be cleared to obtain LPR status, but that are

not required to obtain deferred action. Pet. App. 72a.

And the court pointed out that the INA explicitly

“identifie[s] narrow classes of aliens eligible for de-

ferred action,” but that the class of immigrants who

would be eligible for deferred action under the DAPA

Memorandum is not among them. /d. 71a-72a.

Deferred action, however, is not a substitute for

LPR status or an end-run around the requirements for

obtaining LPR status. The court commented that LPR

status is “more substantial” than deferred action, Pet.

App. 74a, but that was a considerable understatement.

Among other differences, LPR designation is a perma-

nent lawful status that confers the right to remain in

the United States, apply for citizenship after five years,

and petition for the admission of close family members.

Neither the DAPA Memorandum nor the practice of

deferred action generally confers “any form of legal

19

status” or any “substantive right, immigration status,

or pathway to citizenship.” Id. 413a, 419a. Nor does

the DAPA Memorandum confer immunity from the

immigration laws or any other kind of permanent sta-

tus or legal right, as deferred action may be “terminat-

ed at any time at the agency’s discretion.” Jd. 413a. In

this way, although deferred action may mean that a

person is “lawfully present” under certain narrow stat-

utory provisions, lawful “presence” and lawful “status”

“are distinct concepts” in the INA with substantially

different implications. Chaudhry v. Holder, 705 F.3d

289, 292 (7th Cir. 2013).

More fundamentally, none of the statutory provi-

sions relied on by the court of appeals in its analysis—

indeed, no provision of the INA anywhere—explicitly

bars the Executive from using deferred action to me-

morialize discretionary decisions to forbear from initi-

ating removal proceedings. Although the court dis-

claimed reliance on the canon of expressio unius, Pet.

App. 77a, its reasoning reflects a negative inference,

drawn from the fact that the INA explicitly authorizes

LPR status under certain circumstances and deferred

action under certain circumstances but does not explic-

itly authorize deferred action as granted under the

DAPA Memorandum. That kind of negative-inference

reasoning, however, is perilous in the context of a

sprawling and complex statute like the INA; it would

seriously constrain Congress’s ability to delegate to

agencies the responsibility to respond to fast-moving or

unanticipated events. It is also contrary to the text of

the INA, which expressly grants the Secretary broad

discretionary authority to set enforcement policies and

priorities and to adopt appropriate means to carry out

those priorities, as detailed above.

20

The court of appeals dismissed those relevant

grants of discretionary authority, asserting that they

“cannot reasonably be construed as assigning decisions

of vast economic and political significance ... to an

agency.” Pet. App. 79a (quotation marks and footnote

omitted). That is precisely what they are doing, and

the court cited no ground for concluding otherwise. As

this Court has acknowledged, “Congress knows to

speak in plain terms when it wishes to circumscribe,

and in capacious terms when it wishes to enlarge, agen-

cy discretion.” City of Arlington v. FCC, 133 S. Ct.

1863, 1868 (2013). Indeed it does—and here it has spo-

ken in capacious terms to enlarge agency discretion in

an area where discretion is critical. See also Massa-

chusetts, 549 U.S. at 532 (“The broad language of

§ 202(a)(1) [of the Clean Air Act] reflects an intentional

effort to confer the flexibility necessary to forestall ...

obsolescence.”).

2. The court of appeals similarly went astray in

concluding that the INA specifically forecloses the Sec-

retary from allowing the immigrants covered by the

DAPA Memorandum to apply for employment authori-

zation. A longstanding regulation, 8 C.F.R.

§ 274a.12(c)(14), permits those unauthorized immi-

grants who are granted deferred action to apply for

work authorization based on economic need. The court

of appeals, however, concluded that that regulation is

“beyond the scope of what the INA can reasonably be

interpreted to authorize” because the INA “specifies

classes of aliens eligible and ineligible for work authori-

zation ... with no mention of the class of persons whom

[the DAPA Memorandum] would make eligible for

work authorization.” Pet. App. 49a, 74a-75a (footnote

omitted).

21

It is far too late for the petitioners to seek to have

this decades-old regulation set aside as ultra vires.’ In

any event, the court’s negative inference here is also

unwarranted, given the clear and broad grants of dis-

cretionary authority to carry out immigration enforce-

ment policies and priorities. Section 1324a(h)(3) of Title

8 explicitly vests in the Executive the discretion to “au-

thorize[{]” employers to hire noncitizens. Nothing in

that provision suggests that the Executive’s authority

to extend work authorization is limited to those catego-

ries of noncitizens already specifically identified by

Congress. Rather, Congress has granted the right to

apply for work authorization for certain classes of

noncitizens, prohibited it for certain others, and given

the Secretary discretion to determine whether to grant

it to anyone else.

The court of appeals suggested that § 1324a(h)(3)

would be “an exceedingly unlikely place” to find the

requisite authority to extend work authorization to in-

dividuals granted deferred action because that provision

“does not mention lawful presence or deferred action,

and ... is listed as a ‘[mliscellaneous’ definitional provi-

sion expressly limited to § 1324a, a section concerning

the ‘Unlawful employment of aliens.” Pet. App. 78a-

79a. That reasoning reflects a serious misunderstanding

of § 1324a. Section 1324a, introduced by the Immigra-

tion Reform and Control Act of 1986, Pub. L. No. 99-

603, 100 Stat. 3445, is the centerpiece of the INA’s em-

ployment-authorization provisions, rendering it unlaw-

> 28 U.S.C. § 2401(a) (six-year limitations period); P&V En-

ters. v. Army Corps of Eng’rs, 516 F.3d 1021, 1023 (D.C. Cir. 2008)

(dismissing claim that agency rule had “overstepped its authority”

as untimely under § 2401(a)).

22

ful for employers to hire any “unauthorized alien.” 8

U.S.C. § 13824a(a)(1)(A).

Although § 1324a(h) includes three “miscellaneous”

provisions, including (in subsection (h)(3)) the definition

of “unauthorized alien,” there is nothing marginal about

that definitional provision. That is where Congress de-

fined the essential term “unauthorized alien,” and thus

that is also precisely where one would expect Congress

to specify whether the Secretary may authorize the

employment of noncitizens not otherwise authorized to

be employed by statute. Nor is it surprising that the

provision “does not mention lawful presence or de-

ferred action,” for Congress chose to speak more broad-

ly, instead granting general authority to the Secretary

to act in this area. Arizona Dream Act Coal., 757 F.3d

at 1062 (§ 13824a(h)(3) vests Executive with “broad dis-

cretion to determine when noncitizens may work in the

United States”).

Il. THE DECISION BELOW RAISES IMPORTANT ISSUES

ABOUT THE PROPER ENFORCEMENT OF FEDERAL LAW

THAT WARRANT THIS CouRT’s REVIEW

The significance of this case to Congress’s ability to

ensure rational, effective, and efficient enforcement of

federal law by executive agencies cannot be overstated.

Other participants in this case have articulated, and

presumably will again articulate, important interests

impaired by the decision below. We focus on two.

A. The court of appeals’ approach to statutory in-

terpretation would curtail Congress’s ability to dele-

gate broad discretionary authority to the Executive

and force Congress to specifically prescribe every pri-

ority and power with detailed enforcement instructions.

In the immigration context, as in many other compli-

cated regulatory contexts, Congress has rarely seen fit

23

to cabin the Executive’s enforcement discretion or to

instruct the Executive specifically on what classes of

immigrants to prioritize or what means to adopt to im-

plement those priorities. The vast majority of prioriti-

zation and implementation decisions are not addressed

specifically by the INA. This is entirely appropriate,

indeed essential; given the circumstances that charac-

terize the field of immigration, as discussed above,

Congress has recognized the Executive’s substantial

institutional advantages and recognizes that it is not

well situated to micromanage Executive enforcement

actions. Congress must have the ability to vest broad

discretionary authority in the Executive, and the lan-

guage used in the INA to accomplish that objective is

as clear as such language could be. If the INA’s lan-

guage does not suffice, it is difficult to imagine what

language Congress could use in the future to accom-

plish that objective.

B. The court of appeals’ ruling, if allowed to

stand, will have adverse consequences for immigration

enforcement far beyond DAPA. It would damage the

INA significantly, throwing well established and im-

portant immigration practices into disarray and harm-

ing millions of individuals and families around the

country.

The court’s reasoning seems to leave little room for

deferred action or work-authorization eligibility

(whether provided on a case-by-case basis or categori-

cally), except under the few circumstances expressly

provided for by statute. But for decades now—long be-

fore the DAPA Memorandum—Administrations of both

major political parties have extended deferred action

(and other forms of forbearance), as well as eligibility

for work authorization and other accommodations, to

numerous individuals through the discretionary exer-

24

cise of the Executive’s delegated authority, often on a

class-wide basis. F£.g., The Department of Homeland

Security’s Authority to Prioritize Removal of Certain

Aliens Unlawfully Present in the United States and to

Defer Removal of Others, 38 Op. O.L.C. __, 14-18 (Nov.

19, 2014) (documenting “more than two dozen instances

dating to 1956”).

The erroneous decision below instantly casts a sub-

stantial cloud over the lives of these individuals, includ-

ing the hundreds of thousands who have already re-

ceived deferred action under DACA. The potentially

devastating consequences for these individuals, their

families, and their communities alone make this case

appropriate for this Court’s review.

The potential harm of the decision below is com-

pounded by the court’s rulings on standing and the na-

tionwide scope of the injunction. Plaintiffs seeking to

expand the scope of the decision below to encompass

other situations in which deferred action or work au-

thorization are used may well be able to sue in the Fifth

Circuit and similarly secure nationwide injunctions.

There is thus no prospect that any of the issues pre-

sented would benefit from percolation among the vari-

ous courts of appeals. Given the decision’s sweeping

scope, States dissatisfied with other aspects of the Ex-

ecutive’s implementation of the INA will have every

incentive to file suit in the Fifth Circuit to overturn

those administrative actions, and that court’s decisions

would then become the law of the land (absent this

Court’s review, of course). That prospect, which would

seriously interfere with the rational administration of

the immigration laws, emphasizes the need for this

Court’s prompt review.

25

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted.

KENNETH L. SALAZAR SETH P. WAXMAN

WILMER CUTLERPICKERING Counsel of Record

HALE AND DoRR LLP JAMIE S. GORELICK

1225 Seventeenth St. PAUL R.Q. WOLFSON

Suite 1660 DAVID M. LEHN

Denver, CO 80202 SAURABH H. SANGHVI

RYAN MCCARL

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com

DECEMBER 2015

la

LIST OF AMICI CURIAE

U.S. House of Representatives

Alma S. Adams

Pete Aguilar

Karen Bass

Joyce Beatty

Xavier Becerra

Ami Bera

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Sanford D. Bishop, Jr.

Earl Blumenauer

Suzanne Bonamici

Madeleine Z. Bordallo

Brendan F. Boyle

Robert A. Brady

Corrine Brown

Julia Brownley

Cheri Bustos

G.K. Butterfield

Lois Capps

Michael E. Capuano

Tony Cardenas

John C. Carney, Jr.

André Carson

Matt Cartwright

Yvette D. Clarke

Wm. Lacy Clay

Emanual Cleaver

James E. Clyburn

Steve Cohen

Gerald E. Connolly

John Conyers, Jr.

Jim Costa

Joe Courtney

Joseph Crowley

Henry Cuellar

Elijah E. Cummings

Danny K. Davis

Susan A. Davis

Peter A. DeFazio

Diana DeGette

John K. Delaney

Rosa L. DeLauro

Suzan K. DelBene

Mark DeSaulnier

Theodore E. Deutch

Debbie Dingell

Lloyd Doggett

Michael F . Doyle

Tammy Duckworth

Donna F.. Edwards

Keith Ellison

Eliot L. Engel

Anna G. Eshoo

Elizabeth H. Esty

Sam Farr

Chaka Fattah

Bill Foster

Lois Frankel

Marcia L. Fudge

Tulsi Gabbard

Ruben Gallego

John Garamendi

Alan Grayson

Al Green

Gene Green

Raul M. Grijalva

Luis V. Gutiérrez

Janice Hahn

Alcee L. Hastings

Denny Heck

Brian Higgins

James A. Himes

Rubén Hinojosa

Michael M. Honda

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Steve Israel

Sheila Jackson Lee

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Marcy Kaptur

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Sander M. Levin

John Lewis

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Ben Ray Lujan

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Bill Pascrell, Jr.

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Nancy Pelosi

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