Petitioners 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 Gnited States

UNITED STATES OF AMERICA, ET AL., PETITIONERS

STATE OF TEXAS, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONERS

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

BENJAMIN C. MIZER

Principal y Assistant

Attorney

IAN HEATH GERSHENGORN

EDWIN S. KNEEDLER

Deputy Solicitors General

BETH S. BRINKMANN

~—_— Assistant Attorney

eneral

ZACHARY D. TRIPP

Assistant to the Solicitor

General

DOUGLAS N. LETTER

Scott R. MCINTOSH

JEFFREY CLAIR

WILLIAM E. HAVEMANN

STEVAN E. BUNNELL Amarany

General Counsel ae G) See

U.S. Department of ashington, D.C. 20530-0001

Homeland Security SupremeCtBriefs @usdo).qov

Washington, D.C. 20528 (202) 514-2217

QUESTIONS PRESENTED

The Department of Homeland Security has long

engaged in “a regular practice * * * known as

‘deferred action,’” in which the Secretary “exercis/es]

[his] discretion” to forbear, “for humanitarian reasons

or simply for [his] own convenience,” from removing

particular aliens from the United States. Reno v.

American-Arab Anti-Discrimination Comm., 525

U.S. 471, 483-484 (1999). On November 20, 2014, the

Secretary issued a memorandum (Guidance) directing

his subordinates to establish a process for considering

deferred action for certain aliens who have lived in the

United States for at least five years and either came

here as children or already have children who are U.S.

citizens or permanent residents.

The questions presented are:

1. Whether a State that voluntarily provides a sub-

sidy to all aliens with deferred action has Article III

standing and a justiciable cause of action under the

Administrative Procedure Act (APA), 5 U.S.C. 500 et

seq., to challenge the Guidance because it will lead to

more aliens having deferred action.

2. Whether the Guidance is arbitrary and capri-

cious o* otherwise not in accordance with law.

3. Whether the Guidance is invalid because it did

not go through the APA’s notice-and-comment rule-

making procedures.

4. Whether the Guidance violates the Take Care

Clause of the Constitution, Art. II, § 3.

(I)

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TABLE OF CONTENTS

Page

nS TIEN cscnsinsienisinsiuiabeiaoaseitieniietbiiheios daaliaaes 1

STITT iscsi eiihdiapigeeaaeit en lad aie |

Statement:

ie I eciiccscersiscrinneininieriinvetiniiciiimmantiiemassiasiiinsinhinis 2

B. Factual and procedural background........................00. )

‘Summary of argument ..............cccsessecssesssesseessesseesuesseseesseesneevee 12

Argument:

I. This Case is not justiciable ....................c.ccccccesceseeeeeeees 18

A. Respondents lack Article III standing.............. 18

1. Respondents lack Article III standing to

challenge the Guidance on the basis of its

incidental effects. ...............ccccecceseeeeeereeseeerees 20

2. A State cannot challenge the Guidance on

the basis of an indirect and incidental

effect when the State created the causal

link that produces the effect.....................++. 24

3. Massachusetts v. EPA does not support

ESS EER ee ee 29

4. The court of appeals’ radical expansion of

state standing would force courts to hear

a vast new range of challenges to federal

IIE icitacenbesnetcsiniunsesintinsiinmtisiiemseamandineeatenanns 31

B. Protecting a State from the costs of a

voluntary state-law subsidy for driver’s

licenses is not within the “zone of interests”

of any provision of the INA................:ccccsseesseeess 33

C. The Guidance is not justiciable under the

APA because it involves matters that are

committed to agency discretion by law.............. 36

II. The Guidance is a lawful exercise of the Secretary's

broad statutory authority to administer and enforce

(II])

Table of Contents—Continued: Page

A. The Guidance is a lawful and responsible

exercise of the Secretary’s broad authority

gE | eee 43

B. The history of immigration law confirms that

the Guidance is a lawful exercise of the

Secretary’s authority under the INA................ 48

1. Past policies for exercising enforcement

I eicicntterenmncsvntencsenintmninn 48

2. Work authorization as a component of

the exercise of discretion ....................c000++8 50

Feit icetetertneretentsitcmnemmnantenstdennnmenin 53

4. The Family Fairness policy and the

EEE siarenincernmenteestanesinnncenvesesinmnidanene 55

5. Deferred-action statutes..................ccc0e 58

6. The DREAM Act, DACA, and DAPA......... 59

C. Respondents’ counterarguments lack merit..... 60

III. The Guidance is exempt from notice-and-comment

rulemaking requirements ..................:ccccssesseeeeeeeeennees 65

A. The Guidance is a general statement of

policy concerning how DHS will exercise its

discretion to defer action. ... .........csseseeeeeeseeeees 65

B. The Guidance is not impermissibly “binding” .. 68

IV. The Take Care Clause provides no basis for relief .... 73

CIID cinveicesentaiinnsinictneseestdininnadsnteeninsenennbiiniesnenneenninnn 76

TABLE OF AUTHORITIES

Cases:

Arizona v. United States, 132 8. Ct. 2492

TTT siceceiatesinieesecicaleaidbiaabe niggas chetiiaiemaccecelen illest passim

Arizona Christian Sch. Tuition Org. v. Winn,

| __. e E ene 18

Cases—Continued: Page

Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053

(9th Cir.), stay denied, 135 S. Ct. 889 (2014)... 26

Armstrong v. Exceptional Child Ctr., Inc.,

ee ee ED wticnsencnsiennmsiniensenmsnennsemnnnenesccemeseseees 74

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015),

cert. denied, 136 S. Ct. 900 (2016) .........cccccccseccccereeeeeerenenes 44

Baker v. Carr, 369 U.S. 186 (1962).........ccccccccecececceeeesereeeees 73

Barnhart v. Walton, 535 U.S. 212 (2002) ..........ccccseeeseeeeens 51

Chaudhry v. Holder, 705 F.3d 289 (7th Cir. 2013)............. 38

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

pg ee 55

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ...cccccceseseenes 65

Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013)......24

Clarke v. Securities Indus. Ass'n, 479 U.S. 388 (1987) ..... 34

Community for Creative Non-Violence v. Pierce,

786 F.2d 1199 (D.C. Cir. 1986).........ccccccseseressersersseereees 75

Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015) ..........0..... 59

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332

TIT ncsadvesdeimniidiiednniameminnnneanetantnpinitn 18, 20, 32, 33

De Canas v. Bica, 424 U.S. 351 (1976)........cccccceeeeeees 51, 52

Federation for Am. Immigration Reform, Inc. v.

Reno, 93 F.3d 897 (D.C. Cir. 1996), cert. denied,

BE is PI eiciicntninrssecininclatinnesiniaieiiepinneenionineciunssians 35

Franklin v. Massachusetts, 505 U.S. 788 (1992)........0006+ 74

Free Enter. Fund v. Public Co. Accounting Over-

sight Bd., 561 U.S. 477 (2010) .........cccceseesessseeseseeseeenersenneees 19

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907)......29

Heckler v. Chaney, 470 U.S. 821 (1985).......... 3, 36, 44, 66, 75

Hines v. Davidowitz, 312 U.S. 52 (1941) ........cccccceeeeeeeeees 21

Hoffman Plastic Compounds, Inc. v. NLRB,

Be ee I aaiesiscsicctesseceessonicebioseiinisiniiiieeainetiasinnitnonite 53

Cases—Continued: Page

Hotel & Rest. Emps. Union v. Smith, 846 F.2d 1499

as PEN, SUITE cussenitaesieiantnaictinciniuiensidinieneiesentnscipininnpanseapensee 49

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) .........ccesseree 43

Lincoln v. Vigil, 508 U.S. 182 (1998) .......c.ccseeeeees 36, 65, 67

Linda R.S. v. Richard D., 410 U.S. 614 (19738) ..........c00000 20

Lujan v. Defenders of Wildlife, 504 U.S. 555

SITTTITTT A aessseacitiostisabibssiieaeniaslleananeaiianietiouaieiana 18, 20, 21, 30, 35

Massachusetts v. EPA, 549 U.S. 497 (2007) ........... 14, 29, 30

Massachusetts v. Mellon, 262 U.S. 447 (1923)........0c00e0 23

Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014)............. 35

Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867)......... 74

Montgomery v. Louisiana, 136 S. Ct. 718 (2016)...........00 46

Morton v. Ruiz, 415 U.S. 199 (1974)......c.cccccerccsrsccesscereseees 65

Mountain States Legal Found. v. Glickman,

Oe Fe Te GE, Gr Bip iiccenseneeensncotevescersesccscsscecsecccens 34

New York v. United States, 505 U.S. 144 (1992) ............0+. 22

O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773

TTI ssidscusctessiochceiebecepebianansiaiaedbiconbeieatebiieimanininindmesneumnanineéeens 20

Pennsylvania v. New Jersey, 426 U.S. 660

IrrriTicinseitshicetitsbhseebieshasanisimahiasiepnndeebahintiegpaniniennneniasnnien 25, 26, 28

Perales v. Casillas, 903 F.3d 1043 (5th Cir. 1990).............. 40

Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199

CI iccecnscrninininecnnsingieiuniaieunemncnpnininmennnuesinisnpeee 65

Petro-Chem Processing, Inc. v. EPA, 866 F.2d 433

(D.C. Cir.), cert. denied, 490 U.S. 1106 (1989) ..............4. 25

Plyler v. Doe, 457 U.S. 202 (1982).......cssesssereseseeeeees 28, 29, 46

Reno v. American-Arab Anti-Discrimination

Comm. 525 U.S. 471 (1999) .......ccsscsseserssssseseneseesees passim

SEC v. Chenery Corp., 382 U.S. 194 (1947).......ccccccecseneeeees 65

Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191

VII

Cases—Continued: Page

Sebelius v. Auburn Reg'l Med. Ctr., 133 S. Ct. 817

a ic cecehla deka nected haealaiaaieeeddeinsiddalaoniaibaina 57

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83

SIT ics secsissicise eaicielihdeeiiaetapeslebeeebieeteatitbaepiteiaintaianiaetii 18

Summers v. Earth Island Inst., 555 U.S. 488 (2009)... 18, 24

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984).............. 20, 35

Texas Dep't of Hous. & Cmty. Affairs v. Inclusive

Cmtys. Project, Inc., 135 S. Ct. 2507 (2015) .........ccccccceee 5A

Truax v. Raich, 229 U.S. 33 (1915) .......ccccccsereessreersesenseeees 40

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

acinar lt eth ial eral celina te tcaiansedianbiabaiin 23

United States v. Armstrong, 517 U.S. 456 (1996) .............. 72

United States ex rel. Knauff v. Shaughnessy,

ee Ne iia osiceuncasicnesseilienatibsinpiieduetionnimnientesaes 37, 75

Wayte v. United States, 470 U.S. 598 (1985) .......... 38, 39, 70

Wyoming v. Oklahoma, 502 U.S. 437 (1992) ..........cccc000 26

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

SEPT iciecsoseiicalasicsientansdnastnaienteaceretaiasiiimetaneasiiiicinetamateetinnianianeh 73

Constitution, statutes and regulations:

U.S. Const.:

Art. I, § 8:

(ER ard aa EE SIENA ERC IS STEP RRL Sac aT 2

ie RAR Sc SS Ree SNS a ae ede et 2

Art. IT:

gS ER ES eae I Ee eo ee se ren Ee IN A 69

al eseclaceehilahitebameaedaneiianiameliaads 74

STD ceiaseiaehesiiesesi cides deeiaicesehteeteeedeieahaeieiiettadieichamasediial 73

Cl. 5 (Take Care Clause).............. 11, 17, 73, 74, 75

I Fi iitcccicnetniesnersinenesincininnhinisinisnmennnntnsanninnsaneiin passim

Administrative Procedure Act, 5 U.S.C. 500 et seq............ 12

VIII

Statutes and regulations—Continued: Page

RE A ERS A, SM ON ee PEED 11

a ao aieanaiiimiiiniielia 65

RRS aS aa ST oe 65

| REE cre cre nie lane ONC RTT 65

I I csc cesicsticicetieenacciiadaieeaana thechateendeiacinaaiianedbiadiaes 30

I eee cicieataieeeieel 41

i scaleeemsamanaeteinineneiiaaia 36

| RRR ERRE PS S aRE cea ntnaen 34, 35

I TRIED TIT si ict cdaceeetiaiieniaataibaeanegnenereseneiepniniateniomananes 11

Clean Air Act, 42 U.S. TOOT(D)X1) .......cccscccsccsccrccesscesssessersees 30

Consolidated Appropriations Act, 2016, Pub. L. No.

114-113, H.R. 2029, Div. F, Tit. II, 114th Cong.,

A A, scrcsticintehtaainitiiiniinanianiainicinsdntncininiitniiaiiniglenmnecnes 4, 60

Department of Homeland Security Appropriations

Act, 2009, Pub. L. No. 110-329, Div. D, Tit. II,

ns NY hecntesnstncnnnninsincsciinedienimaneitenentmiimaimnnnenecees 4

Department of Homeland Security Appropriations

Act, 2015, Pub. L. No. 114-4, Tit. II, 129 Stat. 42........ 4, 60

Farm Labor Contractor Registration Act Amend-

ments of 1974, Pub. L. No. 93-519, 88 Stat. 1652............. 52

7 U.S.C. 2044(b) (1970 & Supp. [V 1974) 0.00... 52

7 U.S.C. 2045(f) (Supp. PV 1974) .......cssssssscsssssessceessnueees 52

Immigration Act of 1990, Pub. L. No. 101-649,

104 Stat. 4978:

Tit. IIT, § 301(g), 104 Stat. 50B0..................ccccccssssescseeees 57

Tit. V:

§ 521(a), 104 Stat. 5053................ siisiisabidesiiicncawaiicias 57

ee 57

Immigration and Nationality Act, 8 U. S. C. 1101

68 BBE. .x»ecceseecanssnescencensnescnsnessocesesonsecoecsosnescosesessoosscssocoscsscsocouses 2

ep) | __ Ee a 8

Statutes and regulations—Continued: Page

TD a sctadelile iainleimiiniaiandl 58

ERR RE ee ESR tec 58

I a aaiedeenliada a dacdbiapbaitiiontl 61

isi netiniicncnctnninunicepnninnicnaniibaiceteebiian passim

ERTS EE ESE IR OPE Rees 2

| AREER Esco rroso Rn eROCRE er 2, 70

BI ios cccscccusieieniianicctubeepbdladlivaninibnniatidionshetahinn 2

icicle nliesiieiinaete 69

i lieder 46

Be reeds Ge IED even encnsonsrssinerenernetcssemnescemeunnces 6

ee, Fe CE GP csncncncincsccconseveseesccsvetesescesssons 6

a ascsheenioecuabenienicceciaiiasiabtiias 3

ESE erin ene rare 46

oc aeneib diabiaiamitiiianiions 9, 68

ls ID ccncsccissnsiemnantinttaussiniisscwmusitens 9, 41

es ID scccscitssctntnsntascscnstensseteenmnctenes 9, 41

ee IIIT) cn concseccanscansncpensessesesseccsassestas 46

a eieocaensisaiieaiaibaanntas &

ee I iis cceicicsidssnssinanipimiaunasiennsinonioninnns 46

I ad ceealeelaaited 46

I ice eeeicinialidnin denne 46

I ssesepsllapiichameaioaiaaes 4

et is ncsss ceesusepnarentintbemnshdensioabostubariianidt 40

ocak darlene 4

SESE RE Stee eo aren Merenaerboe erence BRT 3

a ssahesinbsecdaunaiaideiiiaiotaniion 46

a i iccetcetindichsinaiieiianiaslainaendiiotenie 58

a uaeena lineal 59

RASS Ee RE ee 62

DU, Br Pic eccecececcscescenesccontensennebensennesomseceten 46

Statutes and regulations—Continued:

ee To rseiecsnethictonorstoneiieniinnsstbamasesocoeenine

ir I NIIITInE IIIs dtc icsinsieeidetterentoiiapeiotiteneenesisanin

8 U.S.C. 1254a (Supp. [1 1990) .o.cocccccccccececececsceceseeseesees

i RES ASR Rae

B U.S.C. 1824a(h)(B) oecccccscccccssssssssssssensesessecsssecsee passim

as AI cisscinsaieiineosteinisient elicit itsanpeinintsit 46, 55

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, 100 Stat. 3359 oo... .cccccccccccccsseeseecseeees

$ 101(b)(1)(C), 100 Stat. 8872 .........cccescescessessecsessecsnesees

§ 101(b)(1)(D), 100 Stat. 8872 0... cccsssssessseeseeseeseeeons

Migrant and Seasonal Agricultural Worker Protec-

tion Act, Pub. L. No. 97-470, § 106(a), 96 Stat.

REE csehiecicnicstibibeciashinibnenapinindiasdiatibicladiciltesaiatamnsins 52

National Defense Authorization Act for Fiscal Year

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

ERE TE ICN Raa Ms DY, Sa

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

Renee OVA Re BN Ce

USA PATRIOT Act, Pub. L. No. 107-56, § 423(b),

BERS AER ENTE eA CS Os 6, 58

Victims of Trafficking and Violence Protection Act

of 2000, Pub. L. No. 106-386, Tit. V,

1503(d)(2)(D)(i)(ID) and (TV), 114 Stat. 1522.00...

Violence Against Women Act of 1994, Pub. L. No.

Ey Bite Vy NOU UII, BOIS cccccccccetscesescscseneevesovessveccsecnsecs

Statutes and regulations—Continued: Page

Uae CG cescveenenessveciinssiscsianceritiniinicininniaiinidiidatanasmiaciaaa ieee 2

Lie | — RE men eS a TS 46

be | | NNEC SAR LIDS 7

OD TEs BID cinietctntisevectesvteennninitatiininiae case 15

DF, Fee ccccasnescasisncsnciesisnnsitieaniananadien 8, 41

DUA BID ctcsectcsicctensscoseinricneininciniiiieudtuaiinn aces aan 8,9

Bs Bee cccetsenscinscnsosentctesiuincepiuniisinteaazatanania tiene &

Pe i conssiscesiincescsnnasstesheciiiensttonisicasiciammniamaaaaaaanne 8

DUE. Be wisisecenininisnsiviscpusinsenuicnntiiticiinianuadinmetia ta aan 7,9

BAB RP ilte DD ccctincinccinsesaccsesctriensnsindienetninanininadiecuigamaeiaaliaana 74

BD CA Wii ttersearicectisctsmssinesennniinidiicciaiamimmiaeiekas ee 74

BD Ci SD ceerisesscnrcinscnnetmesiistniaiiiaisiaaps eee 55

BD as Soe COO veicetisvtitncinntnvitnatnitieasstieaiegesiaiee 51

CB Ps Se ceciettccastertninsinsccnitaninpensiutiiatia dee 8

A, Ga cecvesrssincinitsainiiinsilndiiemeemeee 8

Ariz. Rev. Stat. Ann. § 43-1001(2) (2013) ........cccccccsseseeeeeees 32

Mont. Code Ann. § 47-1-111(3)(a) (2015)... cecceseseesenenees 32

Tex. Educ. Code Ann. § 54.341 (West Supp. 2015)........... 32

Tex. Transp. Code Ann. (West Supp. 2015):

Dee cccesserctensesssstossniscisiesniesatiapaneaadeantiaaacsaceene 25

> FD caicacicenacecictastaiseiniastiniitndhGcuceeae eine 26

31 Tex. Admin. Code § 59.2 (2015).........:scsscsecsersersseesssesees 32

37 Tex. Admin. Code § 15.38 (2015) .......csssessssssesessssesesseseees 32

XII

Regulations—Continued: Page

8 C.F.R.:

EES Se a bs]

GEES 69

EET i)

ss epeotonioenat 51

a nesemseransioneans 64

a censpsnieiente 7, 39

a sseessuounoneia 63

EE 63

| aaa 50, 63, 64

a sanineacensianass 7, 39

a ceanesonionante 7, 39

EE 63

Section 274a.12(C)5)-(7)..........esccsersessssscessceesersesesssseeeesees 63

EE 64

Section 274a.12(C)(9)-(11).........cccccccessececeeseeeeseeeeersneeenenees 63

a 64

a passim

Section 274a.12(C)(16)-(17)...........cccccecscesseerseeeeereeereeeneees 63

GE 63

a cane NOnOORSNIONE 63

EE &

Miscellaneous:

Paul Anderson, New Policy on Illegal Immigrants,

Phila. Inquirer, Feb. 3, 1990 ...........:cccccsceceeseererseeeereeneeees 56

Sam Bernsen, Immigration & Naturalization Serv.

Assistant Comm’r, Lawful Work for Nonimmi-

grants, 48 No. 21 Interpreter Releases 168

EE 51

XIII

Miscellaneous—Continued:

Sam Bernsen, Immigration & Naturalization Serv.

Gen. Counsel, Leave to Labor, 52 No. 35 Interpret-

er Releases 291 (Sept. 2, 1975) ...........ccccccccceseeceeneeenees

Black’s Law Dictionary (10th ed. 2014) .0............ccccccce0ee-

President George H.W. Bush, Statement on Signing

the Immigration Act of 1990 (Nov. 29, 1990) ...............0.

Cong. Budget Office, Budgetary Effects of

Immigration-Related Provisions of the House-

Passed Version of H.R. 240, An Act Making

Appropriations for the Department of Homeland

Security (Jan. 29, 2015), https://www.cbo.gov/sites/

default/files/1 14th-congress-2015-2016/

Adam B. Cox & Cristina M. Rodriguez,

The President and Immigration Law, 119 Yale

Dep’t of Health & Human Servs., Summary of Im-

migrant Eligibility Restrictions Under Current

Law (Feb. 25, 2009), http://aspe.hhs.gov/

basic-report/summary-immigrant-eligibility-

restrictions-under-current-law ...........ccccccccccecceeeeoeeeeeeees

Dep’t of Homeland Sec.:

ICE Enforcement and Removal Operations

Report: Fiscal Year 2015 (Dec. 22, 2015),

https://www.ice.gov/sites/default/files/

documents/Report/2016/fy2015removalStats.

SO REA Le OE an

Press Release, DHS Releases End of Year Sta-

tistics (Dec. 19, 2014), http://Awww.dhs.gov/

news/2014/12/1 9/dhs-releases-end-year-

w. 1D

XIV

Miscellaneous—Continued: Page

Yearbook of Immigration Statistics:

2013 Enforcement Actions, Tbi. 39, Aliens

Removed or Returned: Fiscal Years 1892 to

2013 (2014), http-//www.dhs.gov/publication/

yearbook-immigration-statistics-2013-

I trseiitnsintensinetecicanncsncctinsmemmerenenmes 4

Dep't of Justice:

Attorney General’s Manual on the Administra-

tive Procedure Act (1947) ............ccccecseseseneeenneenenseees 65

United States Attorneys’ Manual (2016) ....................- 70

United States Attorneys’ Written Guidelines for

the Declination of Alleged Violations of Fed-

eral Criminal Laws: A Report to the United

a Ge ccctettrevimtrntememenseans 71

DREAM Act of 2010, H.R. 5281, 111th Cong.,

aici adiacetraenieminnietianiiiimiaminits 59

17 Fed. Reg. 11,489 (Dec. 19, 1952) ................-.eeessesseeseeees 51

41 Fed. Reg. 26,825-26,826 (June 29, 1976)...............ccce00000 52

43 Fed. Reg. 2776 (Jan. 19, 1978)...............0reccecsocerseceeseeenees 70

44 Fed. Reg.:

(Feb. 20, 1979):

Rin TE nsciinsincsnisnnnicacnsneninbsienianenioctpiinnmniamnastini 39, 51

(July 25, 1979):

i I aetincsineinienidnibcinntianniasereteneiansiobainnebinpinaaniiitonnenoaiantin 52

46 Fed. Reg.:

(May 5, 1981):

Oa iitepaiinindeneunnnsininerenieceinienesie 39, 40, 52, 68

CR nee 7, 52

GREECE SSUES Orv eono ene anTO Or ONO 53

(Nov. 13, 1981):

Miscellaneous—Continued: Page

51 Fed. Reg. 39,385-39,386 (Oct. 28, 1986) ...........cceecceeeees 54

52 Fed. Reg.:

(May 1, 1987):

Ss TTT sessiniceiietiianhaniiaithatplatpanaiehainianianidesipainiminesiaabinentiaian 7, 5A

i STII etciccceitdteenibnlaeibesisdiiaeaiaanibadailiiaaiatinindidinle 7, 54, 68

(Dec. 4, 1987):

Ih TT tei ialesinsasesiisintiieeiinncintaiinanancitianbieianiignniadeein 54, 63

55 Fed. Reg. 6058 (Feb. 21, 1990) ..............ccccccccccseeseeseeeeeeee 56

61 Fed. Reg. 47,039 (Sept. 6, 1996) ...........cccccccccecccseeeeeecnees 68

75 Fed. Reg. 33,457 (Jume 11, 2010) .0...........cccccccceccesseeeeeneee 50

76 Fed. Reg. 53,764 (Aug. 29, 2011) ............ccccccccceceseeseeneeneee 68

80 Fed. Reg. 7912 (Feb. 12, 2015) .................ccccccccseseeeseecenees 68

Charles Gordon et al., /mmigration Law and Proce-

dure:

RI ccaisiteesictiinaliiiiataticeatatieldeihaiaa tial al caer ala 48

aT css inesaisibetntciepmieatineciendileiecnieiaainibiniiaat 38

ITA cecicarieisnissenscieshaesitiibitiamaiinnineseahitiniariaiapiiaiimatinimaianaiiie 5

John P. Gross, Too Poor to Hire a Lawyer but Not

Indigent, 70 Wash. & Lee L. Rev. 1173 (2013)................. 32

Geoffrey Heeren, The Status of Nonstatus, 64 Am.

ee, iiss cia tciediiial ts ectrniriepnnnnetinigenen 38

H.R. 5759, 113th Cong., 2d Sess. (2014) ...............cccceseeseeeees 60

H.R. Rep. No. 627, 100th Cong., 2d Sess. (1988)...... 5, 48, 49

Immigration Act of 1989: Hearings Before the Sub-

comm. on Immigration, Refugees, and Interna-

tional Law of the House Comm. on the Judiciary,

101st Cong., 2d Sess. Pt. 2 (1990) ............c.ccecessecsereeseeeenes 56

Ruth Mason, Delegating Up: State Conformity with

the Federal Tax Base, 62 Duke L.J. 1267 (2013)............. 32

XVI

Miscellaneous—Continued: Page

Memorandum from Barack Obama, U.S. President,

to Sec’y of Homeland Sec., Deferred Enforced

Departure for Liberians (Sept. 26, 2014),

https:// www.whitehouse.gov/the-press-

office/2014/09/26/ presidential-memorandum-

deferred-enforced-departure-liberians ................-.-.-.+0++ 50

Memorandum from Johnny N. Williams, Exec.

Assoc. Comm’r, Office of Field Operations,

to Reg’ Dirs. et al., Unlawful Presence (June 12,

2002), https://www.uscis.gov/sites/default/files/

USCIS/Laws/Memoranda/2015/unlawful_

presence memo_06_12 2002. pdf ...........-...-ce-ececeeeeereserneneees 9

Office of Policy & Planning, Estimates of the Unau-

thorized Immigrant Population Residing in the

United States: 1990 to 2000 (2003), https://www.

dhs.gov/xlibrary/assets/statistics/publications/

Tl) Report _ 1211 .palf...............cecccsrecessereseseresereresererersvocsesees 57

1 Richard J. Pierce, Jr., Administrative Law

ee 66, 71

Recent Developments, 64 No. 41 Interpreter Releas-

ee CR Ti TIT oi cncensinmepentendatinensenvneinmancinias 55, 56

Recent Development, 66 No. 47 Interpreter Releases

1361, 13G2 (Dec. 11, 1989)............c.crrccccsssscsesssccssecsscsesesees 70

Recent Developments, 67 No. 6 Interpreter Releases

ee 56

Recent Developments, 67 No. 8 Interpreter Releases

a Ba te iircerincenipennieneninenmesencteminittinnnmmnven 56

Marc R. Rosenblum, Understanding the Potential

Impact of Executive Action on Immigration

Enforcement (July 2015), http://www.migration

policy.org/research/understanding-potential-

impact-executive-action-immigration-

SOIT ss aati cee rmnae ecciancentetibbiietenieninaiintinisinaionianesianaes 9

XVII

Miscellaneous—Continued: Page

Tim Schreiner, JNS Reverses Policy That Split

Alien Families, 8.F. Chron., Feb. 3, 1990 ....................0+ 56

S. Rep. No. 132, 99th Cong., Ist Sess. (1985)..............0.000. 55

Texas Dep’t of Pub. Safety, Verifying Lawful

Presence (July 2013), http:/Awww.txdps.state.

tx.us/DriverLicense/documents/verifying Lawful!

I snccsnsunlermsnicinvieteietcninpencaetiasimeiinmnenbadsiaitinns 25, 31

U.S. Citizenship & Immigration Servs.:

1-765 Approvals, Denials, Pending by Class

Preference and Reason for Filing (Feb. 6,

2015), https://www.uscis.gov/sites/default/

files/USCIS/About%20Us/Electronic%20

Reading%20Room/Statistics and Data/I-

765_Receipts Approvals_and_Denials for_

FY2008 through F'Y2014.pdf...............ccccecceceeeeees 64

Number of I-821D, Consideration of Deferred

Action for Childhood Arrivals by Fiscal Year,

Quarter, Intake, Biometrics and Case Status:

2012-2015 (Sept. 30, 2015), http:/Awww.uscis.

gov/sites/default/files/USCIS/Resources/

Reports%20and%20Studies/Immigration%20

Forms%20Data/All%20F orm%20Types/

DACA/1821_daca_performancedata fy2015_

IFIED ccicerriesensencenpeesnnnasinemnesmaainennesainieninanamaninnsnannenenenes 69

13A Charles Alan Wright et al., Federal Practice and

Pn NE MI inniietinictdensctinbedesiieshcctnbelinnchaitioicas 34

In the Supreme Court of the Anited States

No. 15-674

UNITED STATES OF AMERICA, ET AL., PETITIONERS

STATE OF TEXAS, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

55a) is reported at 809 F.3d 134. The opinion of the

court of appeals denying a stay pending appeal (Pet.

App. 156a-243a) is reported at 787 F.3d 733. The

opinion of the district court (Pet. App. 244a-406a) is

reported at 86 F. Supp. 3d 591.

JURISDICTION

The judgment of the court of appeals was entered

on November 9, 2015. The petition for a writ of certi-

orari was filed on November 20, 2015, and was grant-

ed on January 19, 2016. The jurisdiction of this Court

rests on 28 U.S.C. 1254(1).

(1)

STATEMENT

A. Legal Framework

1. “The federal power to determine immigration

policy is well settled.” Arizona v. United States, 132

S. Ct. 2492, 2498 (2012). It is grounded in the Consti-

tution’s text, U.S. Const. Art. I, § 8, Cls. 3 and 4, and

the national government’s “inherent power as sover-

eign to control and conduct relations with foreign

nations.” Arizona, 1382S. Ct. at 2498.

The Immigration and Nationality Act (INA), 8

U.S.C. 1101 et seqg., charges the Secretary of Home-

land Security “with the administration and enforce-

ment of th{e INA] and all other laws relating to the

immigration and naturalization of aliens.” 8 U.S.C.

1103(a)(1).' The Secretary is vested with the authori-

ty to “establish such regulations; * * * issue such

instructions; and perform such other acts as he deems

necessary,” and to have “control, direction, and super-

vision” of all DHS employees. 8 U.S.C. 1103(a)(2) and

(3). Congress has specifically tasked the Secretary

with responsibility for “[e]stablishing national immi-

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

202(5).

2. The removal of aliens is entrusted exclusively to

the federal government. Arizona, 132 S. Ct. at 2506.

Aliens are removable if, inter alia, “they were inad-

missible at the time of entry, have been convicted of

' Congress has transferred to the Department of Homeland

Security (DHS) most of the functions of the former Immigration

and Naturalization Service (INS). £.g., 6 U.S.C. 202(3), 271(b),

557. Unless otherwise indicated, references to the actions of DHS

and the Secretary include actions by their predecessors.

certain crimes, or meet other criteria set by federal

law.” Id. at 2499; see 8 U.S.C. 1182(a), 1227(a).

The federal government cannot remove every re-

movable alien, however. Rather, “[a] principal feature

of the removal system is the broad discretion exer-

cised by immigration officials.” Arizona, 132 S. Ct.

at 2499. DHS, “as an initial matter, must decide

whether it makes sense to pursue removal at all.”

Ibid. It must further decide, inter alia, whether to

initiate removal proceedings, settle or dismiss, stay a

final order, appeal an adverse ruling, and execute a

removal order. J.A. 239-263. Every step implicates

allocation of limited enforcement and detention re-

sources. And “{a]t each stage the Executive has dis-

cretion to abandon the endeavor.” Reno v. American-

Arab Anti-Discrimination Comm., 525 U.S. 471, 483

(1999) (AADC).

3. Like other agencies exercising enforcement dis-

cretion, DHS must balance “a number of factors which

are peculiarly within its expertise.” Heckler v.

Chaney, 470 U.S. 821, 831 (1985). Those factors in-

clude “whether agency resources are best spent on

this violation or another” and “whether the agency has

enough resources to undertake the action at all,” 2bid.,

as well as “immediate human concerns,” such as

“whether the alien has children born in the United

States [or] long ties to the community,” Arizona, 132

S. Ct. at 2499.

Limited appropriations make broad discretion a

practical necessity. Although the total undocumented

population has not increased in recent years, an esti-

mated 11 million undocumented aliens currently live

in the United States. Pet. App. 5a. Congress has

appropriated approximately $6 billion for “enforce-

ment of immigration and customs laws, detention and

removals, and investigations.” Consolidated Appro-

priations Act, 2016 (2016 Appropriations Act), Pub. L.

No. 114-113, H.R. 2029, Div. F, Tit. II, 114th Cong.,

lst Sess. 256; DHS Appropriations Act, 2015 (2015

Appropriations Act), Pub. L. No. 114-4, Tit. I1, 129

Stat. 42. Numbers of removals have varied depending

on circumstances, with DHS setting records for re-

movals in a year (approximately 440,000 in 2013) and

over a six-year span (more than 2.4 million from 2009

through 2014). DHS, Yearbook of Immigration Sta-

tistics: 2013 Enforcement Actions, Tbl. 39, Aliens

Removed or Returned: Fiscal Years 1892 to 2013

(2014); DHS Press Release, DHS Releases End of

Year Statistics (Dec. 19, 2014). But in any given year,

more than 95% of the undocumented population will

not be removed, and aliens continue to be apprehend-

ed at the border or otherwise become removable.

Congress has mandated certain actions, such as de-

tention of criminal aliens and aliens apprehended

illegally crossing the border. See 8 U.S.C. 1225(b),

1226(c). Congress has also directed the Secretary to

prioritize removal of criminal aliens “by the severity

of th{e] crime,” and has directed U.S. Immigration

and Customs Enforcement (ICE) to use at least $1.6

billion to identify and remove criminal aliens. 2016

Appropriations Act 256; DHS Appropriations Act,

2009, Pub. L. No. 110-329, Div. D, Tit. IJ, 122 Stat.

3659. But as relevant here, Congress has otherwise

left it to the Secretary’s discretion to “[{e]stablish{]

national immigration enforcement policies and priori-

ties.” 6 U.S.C. 202(5).

4. “Deferred action” is one of the well-established

ways in which DHS exercises enforcement discretion.

Deferred action is “a regular practice” in which the

Secretary “exercis[es} [his] discretion for humanitari-

an reasons or simply for [his] own convenience,”

to notify an alien of a non-binding decision to

forbear from seeking his removal for a designated

period. AADC, 525 U.S. at 483-484; see 8 C.F.R.

274a.12(c)(14) (“an act of administrative convenience

to the government which gives some cases lower pri-

ority”). Through “[(t]his commendable exercise in

administrative discretion, developed without express

statutory authorization,” AADC, 525 U.S. at 484

(quoting 6 Charles Gordon et al., /mmigration Law

and Procedure § 72.03[(2][h] (1998)), a removable alien

may remain present so long as DHS continues to for-

bear.

Deferred action does not confer lawful immigration

status or provide any defense to removal. An alien

with deferred action remains removable at any time,

and DHS has absolute discretion to revoke deferred

action unilaterally, without notice or process. See

AADC, 525 U.S. at 484-485. An alien’s continued

presence during a period of deferred action does not

violate any criminal law, because “[rJemoval is a civil,

not criminal, matter,” and “[a]s a general rule, it is not

a crime for a removable alien to remain present in the

United States.” Arizona, 132 S. Ct. at 2499, 2505.

Since 1960, DHS has established more than 20 poli-

cies for exercising discretion via deferred action or

similar practices for large groups of individuals in

defined categories. See pp. 48-60, infra (detailing

history); see also J.A. 64-65. Among others, a 1960

policy accorded “extended voluntary departure” to

undocumented Cuban nationals in the United States

after the Cuban revolution. H.R. Rep. No. 627, 100th

Cong., 2d Sess. 6 (1988) (EVD Report). A 1987 and

1990 “Family Fairness” policy accorded “indefinite

voluntary departure” to undocumented spouses and

children of aliens with legalized status, potentially

encompassing 1.5 million people. J.A. 65, 292; see

p. 56, infra. In 1997 and 2000, the INS established

deferred-action policies for aliens who sought (but had

not yet obtained) lawful status as battered spouses or

victims of human trafficking, respectively. J.A. 66-67.

A 2005 policy accorded deferred action to foreign

students affected by Hurricane Katrina. J.A. 68-69.

A 2009 policy accorded deferred action te certain

widows and widowers of U.S. citizens who had “no

avenue of immigration relief.” J.A. 69 (citation omit-

ted). And in 2012, DHS implemented the Deferred

Action for Childhood Arrivals (DACA) policy to accor!

deferred action to certain aliens who came to this

country as children and have lived here since 2007.

J.A. 70-71.

Congress has repeatedly enacted legislation that

takes as a given DHS’s authority to accord deferred

action. Congress has provided that States participat-

ing in the REAL, ID Act of 2005, Pub. L. No. 109-13,

Div. B, 119 Stat. 302, may (but are not required to)

issue driver’s licenses to aliens with “approved de-

ferred action status.” 49 U.S.C. 30301 note. Congress

has specified that certain aliens who self-petition

for relief under the Violence Against Women Act of

1994, Pub. L. No. 103-322, Tit. V, 108 Stat. 1092, are

eligible to request “deferred action.” 8 U.S.C.

1154(a)(1)(D)G)(1) and (IV). Certain family members

of lawful permanent residents killed on September 11,

2001, or of citizens killed in combat, are “eligible for

deferred action.” USA PATRIOT Act, Pub. L. No.

107-56, § 423(b), 115 Stat. 361; see National Defense

Authorization Act for Fiscal Year 2004, Pub. L. No.

108-136, § 1703(c)-(d), 117 Stat. 1694-1695. And 8

U.S.C. 1252(g) prevents an alien from challenging a

decision to deny deferred action. See AADC, 525 U.S.

at 485.

5. Under longstanding federal law, several conse-

quences flow from a decision to defer action.

a. Without the ability to work lawfully, individuals

with deferred action would have no way to lawfully

make ends meet while present here. Accordingly,

work authorization has long been tied to the exercise

of this kind of discretion. See pp. 50-53, infra. Specif-

ically, aliens with deferred action—like many other

aliens—may apply for and obtain work authorization

based on economic need. 8 C.F.R. 274a.12(a), (b), (ce),

and (c)(14). This longstanding regulation is grounded

in the Secretary’s general authority to administer the

INA. 8 U.S.C. 1103(a); 46 Fed. Reg. 25,080-25,081

(May 5, 1981). And acting against the backdrop of

that regulation, Congress has made it explicit that an

alien may be lawfully hired if he is a lawful permanent

resident or is “authorized to be so employed by thie

INA] or by the Attorney General” (now Secretary). 8

U.S.C. 1324a(h)(3) (emphasis added); see 52 Fed. Reg.

16,221, 16,228 (May 1, 1987).

b. Aliens with deferred action are ineligible for

most federal public benefits. In general, only “quali-

fied” aliens are eligible to participate in federal public

benefit programs, and deferred action does not make

an alien “qualified.” See 8 U.S.C. 1611(a), 1641(b).

Aliens with deferred action thus cannot receive food

stamps, Supplemental Security Income, temporary aid

for needy families, and many other federal public

benefits. Dep’t of Health & Human Servs., Summary

of Immigrant Eligibility Restrictions Under Current

Law (Feb. 25, 2009).

A non-qualified alien is not categorically barred,

however, from participating in certain federal earned-

benefit programs associated with lawfully working in

the United States—the Social Security retirement and

disability, Medicare, and railroad-worker programs—

so long as the alien is “lawfully present in the United

States as determined by the [Secretary].” 8 U.S.C.

1611(b)(2)-(4) (emphasis added). An alien with de-

ferred action is considered “lawfully present” for

these purposes. 8 C.F.R. 1.3(a)(4)(vi); e.g., 42 C.F.R.

417.422(h). Deferred action does not itself entitle an

alien to receive payments under these programs, how-

ever; he must earn them and satisfy every other re-

quirement. For example, a person ordinarily must

work and pay into the system for ten years to become

eligible for Social Security retirement benefits. See

42 U.S.C. 413, 414(a)(2).

ce. Under federal law, deferred action does not

make an alien eligible for any “[s]tate or local public

benefit.” 8 U.S.C. 1621(a) and (c). Although States

may provide certain minimal benefits to all aliens, see

8 U.S.C. 1621(b), they cannot provide additional bene-

fits to aliens who are not “qualified” (and are not pa-

rolees or nonimmigrants),* unless the State affirma-

* Nonimmigrant classes are defined in 8 U.S.C. 1101(a)(15).

Parole is a mechanism by which the Secretary may, on a case-by-

case basis, allow an applicant for admission, other than certain

refugees, into the country for “urgent humanitarian reasons or

significant public benefit.” 8 U.S.C. 1182(d)(5). “Advance parole”

is an indication in advance of an alien’s departure that DHS may

tively chooses after August 22, 1996 to provide them.

8 U.S.C. 1621(a) and (d). Deferred action does not

make an alien “qualified” (or a parolee or nonimmi-

grant). 8 U.S.C. 1641(b). Deferred action thus does

not trigger eligibility for unemployment or any other

state or local public benefit, unless the State itself has

voluntarily acted to extend that additional benefit on

that basis.*

B. Factual And Procedural Background

1. On November 20, 2014, the Secretary issued two

memoranda relevant here. The first directs DHS to

focus its limited resources for removals, “to the great-

est degree possible,” on serious criminals, terrorists,

aliens who recently crossed the border, and aliens whe

have significantly abused the immigration system.

Pet. App. 426a; id. at 420a-429a. Under one estimate,

1.4 million people fell into the priority categories un-

der this policy as of 2014. Marc R. Rosenblum, Un-

derstanding the Potential Impact of Executive Action

on Immigration Enforcement 1 (July 2015).

parole the alien into the country in the future, and is available on

the same basis. 8 C.F.R. 212.5(f).

* Aliens accorded deferred action also cease accruing time for

purposes of 8 U.S.C. 1182(a)(9)(B), which makes an alien inadmis-

sible for three or ten years if he departs the United States after

being “unlawfully present” for six months or a year. 8 U.S.C.

1182(aX9)(B)i). An alien is deemed “unlawfully present” for this

purpose if he is present “after the expiration of the period of stay

authorized by the [Secretary] or is present in the United States

without being admitted or paroled.” 8 U.S.C. 1182(a)(9)(By\ii).

DHS treats deferred action as a “period of stay authorized by the

[Secretary]” that tolls this accrual of time. Memorandum from

Johnny N. Williams, Exec. Assoc. Comm'r, Office of Field Opera-

tions, to Reg’! Dirs. et al., Unlawful Presence 1 (June 12, 2002).

The Secretary’s second memorandum (the Guid-

ance) complements that effort by announcing “new

policies for the use of deferred action” for certain

aliens who are not removal priorities. Pet. App. 412a;

see id. at 41la-419a. The Guidance directs U.S. Citi-

zenship and Immigration Services (USCIS) to expand

the coverage criteria under the 2012 DACA policy to

encompass aliens with a wider range of ages and arri-

val dates, and to lengthen the period of deferred ac-

tion from two years to three. /d. at 415a-4l6a. The

Guidance also directs USCIS “to establish a process,

similar to DACA, for exercising prosecutorial discre-

tion through the use of deferred action, on a case-by-

case basis,” for certain parents of U.S. citizens or

lawful permanent residents. /d. at 416a-417a. This

process is known as Deferred Action for Parents of

Americans and Lawful Permanent Residents (DAPA).

Id. at 2a. To request consideration for deferred action

via DAPA, an applicant must: (1) as of November 20,

2014, be the parent of a U.S. citizen or lawful perma-

nent resident; (2) have continuously resided here

since before January 1, 2010; (3) have been physically

present here on November 20, 2014, and when apply-

ing for relief; (4) have no lawful immigration status on

that date; (5) not fall within the Secretary’s enforce-

ment priorities; and (6) “present no other factors

that, in the exercise of discretion, make[] the grant of

deferred action inappropriate.” /d. at 417a.

The Secretary explained that the new policy would

reach “hard-working people who have become inte-

grated members of American society,” have not com-

mitted serious crimes, and “are extremely unlikely to

be deported given * * * limited enforcement re-

”

sources.” Pet. App. 415a. Deferring action for these

individuals, the Secretary continued, would support

“this Nation’s security and economic interests and

make[s] common sense, because [it] encourage(s|

these people to come out of the shadows, submit to

background checks, pay fees, apply for work authori-

zation (which by separate authority I may grant), and

be counted.” Jbid. The Guidance emphasizes that it

does not establish any right to deferred action and

that deferred action “does not confer any form of legal

status in this country” and “may be terminated at any

time at the agency’s discretion.” /d. at 413a.

The Guidance states that USCIS was to begin ac-

cepting requests under the expanded DACA criteria

no later than February 18, 2015, and under DAPA no

later than May 19, 2015; and that USCIS would begin

issuing three-year terms of deferred action under the

original 2012 DACA criteria on November 24, 2014.

Pet. App. 416a, 418a.

2. On December 3, 2014, respondent States (re-

spondents) sued, seeking declaratory and injunctive

relief against implementation of the Guidance. They

alleged that the Guidance violates the Take Care

Clause, U.S. Const. Art. II, § 3, Cl. 5; is arbitrary and

capricious or otherwise not in accordance with law, 5

U.S.C. 706; and was subject to notice-and-comment

rulemaking requirements, 5 U.S.C. 553. Pet. App. 9a.

On February 16, 2015, the district court entered a

nationwide preliminary injunction against implement-

ing the Guidance. /d. at 407a-410a.

The court of appeals expedited the government’s

appeal. Pet. App. 2a. On May 26, 2015, a divided

panel declined to stay the injunction pending appeal.

Id. at 156a-210a. Judge Higginson dissented. /d.

at 21la-243a.

On November 9, 2015, a divided panel affirmed the

preliminary injunction. Pet. App. la-90a. The majori-

ty, consisting of the two judges who formed the stay-

panel majority, held that “[a]t least one state”—

Texas—has Article III standing and a justiciable

cause of action under the Administrative Procedure

Act (APA), 5 U.S.C. 500 et seq., and that respondents

are substantially likely to establish that notice-and-

comment rulemaking was required. Pet. App. 20a; see

id. at 1la-69a. The majority further held that the

Guidance is “manifestly contrary” to the INA. /d.

at 76a; see id. at 69a-86a.

Judge King dissented. Pet. App. 9la-155a. She

criticized the “majority’s breathtaking expansion of

state standing,” id. at 103a, and, like Judge Hig-

ginson, concluded that the Guidance involves non-

reviewable matters that are committed to agency

discretion by law, id. at 92a-93a. Judge King conclud-

ed that, if the Guidance is implemented as written, it

would not be subject to notice-and-comment require-

ments. /d. at 93a. She also would have upheld the

Guidance as substantively lawful. Jd. at 146a-155a.*

SUMMARY OF ARGUMENT

The court of appeals struck down a federal immi-

gration enforcement policy at the behest of a group of

States that are not the objects of that policy. Its rul-

ing violates bedrock limits of Article III and forces

the federal courts to resolve complex debates over

immigration policy that the Constitution reserves to

the political Branches of the National Government.

* The court of appeals subsequently entered an order permitting

intervention by the intervenor-respondents (Jane Does), who

claimed eligibility for deferred action via the Guidance. J.A. 5.

To make matters worse, having wrongly asserted

jurisdiction over immigration policy, the court of ap-

peals seriously misconstrued immigration law, upend-

ing more than 50 years of settled practice and strip-

ping the Secretary of frequently-exercised discretion

to provide deferred action to categories of aliens al-

ready living in our country. The ruling threatens

great harm not only to the proper role of the federal

courts and to federal immigration law, but also to

millions of parents of U.S. citizens and permanent

residents, aliens who are the lowest priorities for

removal yet now work off the books to support their

families. The decision below should be reversed.

I. Respondents’ challenge to the Guidance is not

justiciable.

A. Article III forecloses respondents’ challenge to

the Guidance. Respondents do not contend that the

Guidance regulates any State directly or requires

them to do (or not to do) anything. Instead, they

invoke the jurisdiction of the federal courts based on

the indirect and incidental effects that they allege will

flow from the Guidance. But a State cannot establish

standing based on a claim of injury from such effects

of federal immigration policy. The Constitution as-

signs the formation and enforcement of immigration

policy exclusively to the National Government. If

individual States could challenge a federal immigra-

tion policy based on its incidental effects on a State’s

fisc, then States could routinely require the federal

courts to resolve immigration policy debates, trans-

gressing the Article III boundaries intended precisely

to avoid entangling the courts in disputes that the

Constitution commits to the political Branches. And

the disregard for Article III’s limitations is particular-

ly pronounced because the injury on which the court

of appeals relied to find standing here—the cost to

Texas of subsidizing temporary visitor driver’s licens-

es for aliens—is entirely self-generated. Texas creat-

ed and Texas can eliminate the effect of the link to

federal law that allegedly has caused Texas harm. If

such self-imposed harms were sufficient, then States

could force disputes over a wide swath of federal poli-

cies into the federal courts by the simple expedient of

linking a state tax or subsidy to a federal standard.

Massachusetts v. EPA, 549 U.S. 497 (2007), pro-

vides no support for such a revolution in standing law.

Unlike this case, Massachusetts involved a rulemak-

ing to create new standards, rather than discretionary

enforcement under existing standards as to third

parties; the link between the asserted injury and the

federal action was not self-generated; the injury

claimed by the States was an invasion of their inde-

pendent and legally-protected sovereign interests in

“the earth and air within [their] domain,” id. at 519—

not mere incidental effects of federal government

action; and the States had a procedural right arising

from a specific federal statute that is entirely absent

here, id. at 523-526. The differences between Massa-

chusetts and this case could not be more stark.

B. Respondents lack a right to sue under the APA

because the interests they seek to protect are not

within the zone of interests of any relevant provision

of the INA. To meet this requirement, Texas asserts

(Br. in Opp. 26-27) interests in “protecting [its] citi-

zens by reserving jobs for those lawfully entitled

to work” and “commentling] on administrative

decisionmaking”—not the interests the court found to

establish standing. But a plaintiff cannot mix-and-

match one interest for Article III standing and anoth-

er interest for the APA, as the court permitted Texas

to do. Moreover, recognition of the interests Texas

set forth would effectively eliminate the zone-of-

interests limitation for challenges under the INA.

The court’s treatment of standing and zone of inter-

ests thus delivered a one-two punch that effectively

opens the federal courts to any State unhappy with

federal immigration policy.

C. This suit is not justiciable for the added reason

that the Guidance involves matters that are committed

to agency discretion by law. Deferred action notifies

an alien that DHS has made a non-binding decision to

forbear for a period of time from removing him, and as

a result the alien may be authorized to work lawfully

during that period (and to participate in Social Securi-

ty). Both components are equally unreviewable: The

exercise of enforcement discretion is traditionally

immune from judicial review. And Congress has simi-

larly accorded the Secretary discretion to decide

whether, as an attribute of enforcement discretion,

aliens may be lawfully employed (and may participate

in Social Security) while their presence has been coun-

tenanced. See 8 U.S.C. 1103(a), 1324a(h)(3), 1611(b).

II. The Guidance is a lawful exercise of the Secre-

tary’s authority.

A. The discretion vested in the Secretary by the

INA provides ample authority for the Guidance. Mil-

lions of undocumented aliens live and work in this

country, and Congress has directed the Secretary to

focus his limited resources on removing serious crimi-

nals and securing the border. The Guidance address-

es this difficult situation forthrightly, and does so by

invoking the well-established practice of deferred

action and work authorization. By deferring action for

individuals who are not priorities for removal, the

Guidance enables DHS to better focus on its removal

priorities. It advances “immediate human concerns,”

by extending a measure of repose to individuals who

have long and strong ties to the community. Arizona

v. United States, 132 S. Ct. 2492, 2499 (2012). And it

encourages “hard-working people who have become

integrated members of American society” to “come

out of the shadows” and work on the books, thus miti-

gating competitive harm to American workers. Pet.

App. 415a.

B. The Guidance has deep historical roots. DHS

and the INS have adopted more than 20 similar poli-

cies in the last 50 years, using deferred action or simi-

lar forms of discretion for large numbers of aliens in

defined categories who were already living here with-

out lawful status. At least since the early 1970s, every

one of those policies has resulted in eligibility for work

authorization, and that practice was codified in formal

regulations in 1981. Fully aware of those practices,

Congress has repeatedly ratified DHS’s authority.

See, e.g., 8 U.S.C. 1324a(h)(3).

C. Respondents cannot explain how the Guidance is

unlawful in light of this statutory and historical back-

drop. Respondents contend that the Secretary can

authorize deferred action and work authorization only

for aliens in categories Congress has expressly speci-

fied. But the INA itself and decades of history and

practice refute that assertion. Respondents also con-

tend (Br. in Opp. 1) that the Guidance’s reach is simp-

ly too big. But they appear to agree that the Secre-

tary has unreviewable discretion to provide a tempo-

rary reprieve to every one of the individuals the Guid-

ance could cover. /d. at 2, 20 n.7. And longstanding

regulations, ratified by Congress and backed by dec-

ades of historical practice, further establish that the

Secretary can authorize lawful work any time he exer-

cises discretion through deferred action for an alien

who needs to work to make ends meet while living

here during that period of forbearance. See 8 C.F.R.

247a.12(c)(14).

III. Like every deferred-action or similar policy

before it, the Guidance is a statement of policy regard-

ing how DHS will exercise discretionary authority—

not a binding rule that required notice-and-comment

procedures. Indeed, no such policy has ever been put

through notice-and-comment procedures.

The court of appeals concluded that this policy was

uniquely different, reasoning that individual DHS

agents must have discretion to reject requests for

deferred action, even when the Secretary’s stated

criteria are satisfied. But a blanket deferred-action

policy is no less a “policy” than one that also gives

rank-and-file agents authority to be less forgiving for

case-specific reasons. And any concerns the court had

about the lack of discretion were at best premature.

DHS has not yet implemented the Guidance, and on

its face it requires precisely the discretion the court

believed necessary.

IV. The Take Care Clause furnishes no basis for

relief. Respondents merely use the Take Care Clause

to dress up their misguided statutory arguments in

constitutional garb. A Take Care question also is not

justiciable, and respondents have no cause of action to

raise such a claim. And in any event, the Secretary is

faithfully executing the weighty and complex task of

administering and enforcing the INA.

ARGUMENT

I. THIS CASE IS NOT JUSTICIABLE

This suit is not justiciable because respondents

lack Article III standing to challenge the Guidance,

their claimed injury is outside the “zone of interests”

protected by any relevant INA provision, and the

Guidance involves matters that are committed to

agency discretion by law.

A. Respondents Lack Article III Standing

“No principle is more fundamental to the judici-

ary’s proper role in our system of government than

the constitutional limitation of federal-court jurisdic-

tion to actual cases or controversies.” DaimlerChrys-

ler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (citations

omitted). “Standing to sue is part of the common

understanding of what it takes to make a justiciable

ease.” Steel Co. v. Citizens for a Better Env't, 523

U.S. 83, 102 (1998). To establish standing, a plaintiff

must show, at a minimum, that it has suffered an indi-

vidualized injury to a “legally protected interest,” that

the injury is “fairly traceable” to the defendant’s chal-

lenged conduct, and that the injury is redressable by a

favorable decision. Arizona Christian Sch. Tuition

Org. v. Winn, 563 U.S. 125, 134 (2011) (brackets and

citation omitted). Unless that showing is made,

“courts have no charter to review and revise legisla-

tive and executive action,” Summers v. Earth Island

Inst., 555 U.S. 488, 492 (2009), and engaging in such

review “would be inimical to the Constitution’s demo-

cratic character,” Winn, 563 U.S. at 133.

Respondents cannot satisfy these “essential and

unchanging” Article III requirements. Lujan v. De-

fenders of Wildlife, 504 U.S. 555, 560 (1992). The

Guidance is a federal immigration policy that does not

regulate States, require States to do (or refrain from

doing) anything, or restrict States in any way. Re-

spondents nonetheless claim injury from incidental

effects that they allege will result from implementa-

tion of the Guidance. But it would be extraordinary to

find Article III standing based on such assertions by a

State, as virtually any administration of federal law by

a federal agency could have such effects. Nor does

Texas suffer Article III injury as a result of any in-

creased costs it might incur to provide subsidized

driver’s licenses to those who receive deferred action

as a result of the Guidance. That injury is one of Tex-

as’s own making. Texas has voluntarily chosen to

subsidize those driver’s licenses, and it could eliminate

that subsidy at any time. There is no precedent in our

Nation’s history for adjudicating the merits of a chal-

lenge to the federal government’s enforcement policy

choices on such a self-generated basis, which is itself a

telling indication that such suits are not justiciable.

Cf. Free Enter. Fund v. Public Co. Accounting Over-

sight Bd., 561 U.S. 477, 505 (2010).

The Constitution reserves exclusive authority to

the National Government to make and enforce immi-

gration policy. The Nation requires uniform policies

that may depart from what some individual States

might prefer. Allowing claims like those respondents

press here to proceed would upend the constitutional

design by enmeshing the courts in all manner of dis-

putes between the federal government and a State, or

competing factions of States, over immigration policy.

!. Respondents lack Article III standing to challenge

the Guidance on the basis of its incidental effects

a. A plaintiff who is not himself the object of chal-

lenged government action or inaction faces a consid-

erable burden to establish standing. See Lujan, 504

U.S. at 562. That burden becomes well-nigh insur-

mountable when a plaintiff claims to be injured by the

incidental effects of federal enforcement policies and

the consequences that flow from those policies under

federal law. “{[I]Jn American jurisprudence at least, a

private citizen lacks a judicially cognizable interest in

the prosecution or nonprosecution of another.” Linda

R.S. v. Richard D., 410 U.S. 614, 619 (1973). An indi-

vidual thus “lacks standing to contest the policies of

the prosecuting authority when he himself is neither

prosecuted nor threatened with prosecution.” Jbid.

An individual similarly has “no judicially cognizable

interest in procuring enforcement of the immigration

laws” against someone else. Sure-Tan, Inc. v. NLRB,

467 U.S. 883, 897 (1984). And an individual generally

lacks standing to challenge the government’s provi-

sion (or denial) of benefits to a third party. F£.g., Cu-

no, 547 U.S. at 342-346; cf. O’Bannon v. Town Court

Nursing Ctr., 447 U.S. 773, 788 (1980) (discussing

“{t]he simple distinction between government action

that directly affects a citizen’s legal rights” and “ac-

tion that is directed against a third party and affects

the citizen only indirectly or incidentally”).

These Article III principles apply with particular

force in a case like this, where a State is relying on the

incidental effects of federal immigration-enforcement

policies to challenge those policies. The Constitution

assigns the formation and enforcement of immigration

policy exclusively to the National Government precise-

ly because immigration is an inherently national mat-

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

2498 (2012) (“Immigration policy can affect trade,

investment, tourism, and diplomatic relations for the

entire Nation, as well as the perceptions and expecta-

tions of aliens in this country who seek the full protec-

tion of its laws.”); cf. Hines v. Davidowitz, 312 U.S.

52, 63 (1941) (“For local interests the several States of

the Union exist, but for national purposes, embracing

our relations with foreign nations, we are but one

people, one nation, one power.”) (citation omitted).

State officials may well dispute the lawfulness or

wisdom of federal immigration policy judgments. But

a State cannot establish its own immigration policies

or undertake the removal of aliens, based on its own

interests or its own evaluation of the costs and bene-

fits of the federal approach. Arizona, 132 S. Ct.

at 2506. And States may disagree not only with the

federal government, but also (as here) with each oth-

er. But such divergent views, no matter how strongly

held, must be addressed to the National Government.

Within the National Government, it is the respon-

sibility of the political Branches—not the federal

courts—to establish and revise immigration policies

for our Nation as a whole and, in so doing, to consider

the views of different States. 6 U.S.C. 202(5). “Vindi-

cating the public interest (including the public inter-

est in Government observance of the Constitution and

laws) is the function of Congress and the Chief Execu-

tive.” Lujan, 504 U.S. at 576. If States could estab-

lish standing on the basis of the indirect effects of

federal policy choices regarding immigration en-

forcement, federal courts would be drawn into all

manner of generalized grievances at the behest of

individual States that disagree with federal policy

judgments. Such a rule would enable any State to

make an end-run around the structural limitations on

its authority and cause the very sort of harms those

limitations are intended to prevent.

b. This suit cannot survive these critical limitations

on the judicial power. Respondents’ claims of injury

are nothing more than allegations of indirect or inci-

dental effects from the Guidance, not invasions of any

legally-protected interest under the Constitution or

the INA.

Respondents’ principal claims of injury center on

allegations (Br. in Opp. 17) that the Guidance will

cause them to incur increased costs of healthcare,

education, and law enforcement, and will cause citi-

zens in their States to face increased labor competi-

tion. But incidental effects of this sort arise inevitably

from a wide range of federal immigration policy deci-

sions. Indeed, the mere presence of any aliens within

the country can have such effects.° And, beyond im-

migration, such effects on States and their citizens

could result from federal policies of all sorts.

The Framers established a national government

with the power to act directly upon individuals, not

upon the States as under the Articles of Confedera-

tion. See New York v. United States, 505 U.S. 144,

* These claims also fail on their own terms. See Pet. App. 309a-

310a. The alleged fiscal costs flow from aliens’ mere presence in

this country, and the Guidance applies only to aliens who have

already been living here since 2010 and are “extremely unlikely” to

be removed with or without the Guidance. /d. at 414a-415a. Re-

spondents’ claim that the Guidance will incidentally cause competi-

tive harm in the labor markets is similarly unfounded because the

Guidance is designed to ameliorate distortions of the labor mar-

kets. See p. 46, infra.

162-166 (1992); see also U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 838-845 (1995) (Kennedy, J.,

concurring). It is to be expected that actions of the

federal government affecting individuals within a

State may in turn generate incidental effects on that

State with respect to its own governmental actions

affecting those same individuals. But the necessary

autonomy inherent in the Constitution’s framework of

separate sovereigns, each acting directly upon indi-

viduals, is inconsistent with the notion that a State has

a legally-protected interest in avoiding the incidental

effects that are derivative of the federal government's

actions affecting residents of the State. Those every-

day emanations of federal government action there-

fore cannot be the basis for a State to invoke the ju-

risdiction of an Article III court to challenge such

action, much less to challenge the merits of federal

immigration policy, and the court of appeals correctly

did not rely upon them.°

The court of appeals nonetheless plucked out one

particular incidental effect of the Guidance and found

it sufficient to establish standing: that Texas will

experience “substantial pressure” to eliminate a state-

law subsidy it offers for aliens with deferred action

(and other categories of aliens). Pet. App. 20a. Spe-

cifically, the court relied on the district court’s find-

ings that Texas has chosen to subsidize the costs of

issuing driver’s licenses, and that deferred action

* This Court’s parens patriae jurisprudence reinforces these

structural principles, for “it is no part of [a State’s}] duty or power

to enforce [its citizens’] rights in respect of their relations with the

Federal Government. In that field it is the United States, and not

the State, which represents them as parens patriae.” Massachu-

setts v. Mellon, 262 U.S. 447, 485-486 (1923).

makes aliens eligible for licenses under state law. /d.

at lla-36a. Because the Guidance will lead to more

aliens in Texas being accorded deferred action, the

court of appeals reasoned, it will lead to more people

applying for licenses, which will increase the subsidy’s

overall cost or cause Texas to face “substantial pres-

sure” to eliminate the subsidy. /d. at 20a-21a.

This alleged injury, however, is no less incidental

than the other claims of injury that the courts below

properly declined to rely upon as a basis for standing.

Texas’s asserted injury is, moreover, a self-generated

effect resulting from its own decision to subsidize the

costs of issuing driver’s licenses, including to many

categories of aliens, and Texas could eliminate that

subsidy at any time. As we next demonstrate, it is

particularly improper to take the extraordinary step

of finding that a State has standing to challenge na-

tional immigration policies on that basis.

2. A State cannot challenge the Guidance on the basis

of an indirect and incidental effect when the State

created the causal link that produces the effect

a. Article III’s requirement to show injury “as-

sures that ‘there is a real need to exercise the power

of judicial review in order to protect the interests of

the complaining party.’"” Summers, 555 U.S. at 493

(citation omitted). But there can be no “real need” for

a State to invoke the judicial power to challenge fed-

eral policies on the basis of their incidental effects on

the State when the plaintiff State itself created the

causal link that produces the unwanted effects. Any

such injury is properly treated as self-inflicted, and

not a legally cognizable injury or one that is fairly

traceable to the challenged federal policy. See Clap-

per v. Amnesty Int'l USA, 133 S. Ct. 1138, 1152-1153

(2013); Petro-Chem Processing, Inc. v. EPA, 866 F.2d

433, 438 (D.C. Cir.) (Ginsburg, J.), cert. denied, 490

U.S. 1106 (1989).

This Court has rejected a State’s effort to claim

standing on such a self-generated basis. In Pennsyl-

vania v. New Jersey, 426 U.S. 660 (1976) (per curiam),

this Court held that a State that chooses to extend a

tax credit on the basis of another sovereign’s actions

does not thereby gain standing to challenge the other

sovereign’s policies by claiming that they have the

incidental consequence of costing the complaining

State money. Specifically, this Court concluded that

Pennsylvania lacked standing to challenge a New

Jersey tax that triggered a tax credit under Pennsy!-

vania law and thereby reduced Pennsylvania’s tax

revenue. /d. at 662-664. The Court explained that

“(njo State can be heard to complain about damage

inflicted by its own hand,” and noted that “nothing

prevents Pennsylvania from withdrawing [the] credit.”

Id. at 664.

Pennsylvania controls. Like the plaintiff State in

Pennsylvania, Texas has created the only causal link

between the challenged federal action (the Guidance)

and its alleged injury (expenditure on a particular

subsidy). Neither the Guidance nor any federal law

required Texas to subsidize driver’s licenses, issue

licenses on the basis of “authorize[d]” presence, Tex.

Transp. Code Ann. § 521.142(a) (West Supp. 2015), or

define that term in a particular way. Indeed, Texas

has exercised its independence in this area by defining

“authorize[d]” presence with a list of categories of

aliens that has no equivalent in federal law. See Tex.

Dep’t of Pub. Safety, Verifying Lawful Presence 2-7

(July 2013). And, as the court of appeals recognized

(Pet. App. 24a), Texas can eliminate the causal link by

“requiring applicants to pay the full costs of licenses.”

Alternatively, Texas could seek to increase prices for

“temporary visitor” licenses for aliens, including those

with deferred action. Tex. Transp. Code Ann.

§ 521.421(a-3) (West Supp. 2015). Or Texas could

seek to raise the price specifically for aliens with de-

ferred action in order to avoid the substantial addi-

tional costs it claims it will face. Because Texas can

sever or alter the subsidy’s link to federal law and

thus eliminate the alleged harm, it cannot “be heard to

complain” about the effects of the Guidance. Penn-

sylvania, 426 U.S. at 664.’

Texas argued below that Wyoming v. Oklahoma,

502 U.S. 437 (1992), controlled, not Pennsylvania.

But Wyoming is inapposite. Wyoming had standing to

challenge an Oklahoma law that facially discriminated

against the use of Wyoming coal in Oklahoma, on the

grounds that it reduced Wyoming’s revenues from a

tax on in-state coal extraction. /d. at 442-446, 454.

* In an amicus brief in Arizona Dream Act Coalition v. Brewer,

757 F.3d 1053 (9th Cir.), stay denied, 135 S. Ct. 889 (2014)

(ADAC), which involved a challenge to Arizona’s adoption of a

prohibition against issuing driver’s licenses to aliens with deferred

action, the government took the position that a State may distin-

guish among categories of aliens, provided that it borrows federal

immigration categories and has a “substantial, independent state

justification” for its choices; mere disagreement with federal

immigration policy does not suffice. Gov't C.A. Amicus Br. at 1-2,

14-16, ADAC, supra (No. 15-15307) (Aug. 28, 2015). Here, de-

ferred action is a federal category. 8 C.F.R. 274a.12(c)(14). And

avoiding substantially increased costs, together with the tempo-

rary and revocable nature of deferred action, could be a substan-

tial, independent reason for eliminating a subsidy. In ADAC,

Arizona did not seek to justify its change as a cost-saving measure.

See Pet. App. 168a.

That is, the plaintiff State was the object of the de-

fendant’s challenged action: the defendant (Oklaho-

ma) targeted Wyoming coal for particular burdens.

And it was thus the defendant that forged the causal

link between the two; Wyoming’s tax depended solely

on activity in Wyoming. By contrast, here the object

of the Guidance is individual aliens, not any State.

And it is the plaintiff that “tie[d] its law to that of

another sovereign.” Pet. App. 106a n.16 (King, J.,

dissenting). Pennsylvania, not Wyoming, therefore

controls here.

b. Remarkably, the court of appeals seized on what

should have been a dispositive reason to reject

standing—that Texas can eliminate the alleged harm

by severing or altering the link to federal law—and

held that it was a basis for standing. As the court saw

it, once Texas chose to provide a subsidy linked to

federal law, a decision by Texas to use any mechanism

to sever or alter that link—or even any “substantial

pressure” Texas might feel to do so—was itself an

Article III injury.

Even taking the court of appeals on its own terms,

Texas has not demonstrated Article III injury. Texas

has not changed its laws; indeed, it has carefully

avoided taking any position on whether it actually

would do so, what changes it would make, or on what

basis it would make them if the Guidance took effect.

This posture renders respondents’ claim of injury too

speculative and attenuated to confer standing—just as

it would if Texas had brought an independent suit

seeking a declaration that, if it changed its law, the

new law would not be preempted.

More to the point, the court of appeals was wrong

to hold that any perceived need by Texas to change its

law would itself qualify as an Article III injury.

Pennsylvania itself establishes that action by Texas

(or “substantial pressure” to consider action) to re-

duce or eliminate a voluntary subsidy linked to federal

law is not a cognizable injury: Pennsylvania lacked

standing because it could have avoided its self-

inflicted harm by “withdrawing th[e] credit.” 426 U.S.

at 664. If the court of appeals were correct, Pennsyl-

vania would have come out the other way: withdraw-

ing the credit (or “substantial pressure” to do so)

would itself have constituted Article III injury, and

Pennsylvania would have had standing.

To be sure, federal law may impose some limita-

tions on the range of permissible state policy choices.

Although Texas is free to delink its subsidies entirely

from federal immigration categories, if Texas chooses

to retain a link it must take federal immigration law as

it comes and cannot burden aliens solely because it

disagrees with federal immigration policies. See note

7, supra. But whatever limitations federal law might

impose on Texas if it someday and somehow changed

its law would not be fairly traceable to the Guidance,

which does not create or tighten those limitations.

They would stem from the Constitution and the exclu-

sive assignment of authority over immigration to the

political Branches of the National Government. See

Arizona, 132 S. Ct. at 2498; Plyler v. Doe, 457 U.S.

202, 219 n.19 (1982). It would be fundamentally back-

wards to rely on the structural limitations on state

authority as a basis for permitting a State, through

the federal judiciary, to interfere with the federal

government’s administration of the immigration laws

as to third-party aliens: Those limitations exist to

prevent individual States from interfering in these

sensitive and inherently national affairs. /bid.

3. Massachusetts v. EPA does not support respondents

The court of appeals erred in concluding (Pet. App.

12a) that Massachusetts v. EPA, 549 U.S. 497 (2007),

justified its radical expansion of standing in this case.

That case involved a rulemaking petition to require

the Environmental Protection Agency (EPA) to set

greenhouse-gas emissions standards, id. at 505, not

discretionary enforcement of existing standards

against third parties, as here. And unlike this case,

the plaintiff State in Massachusetts did not create and

could not eliminate the causal link between the chal-

lenged federal action (the government’s refusal to

regulate greenhouse gases) and the alleged injury (an

incremental loss of the State’s territory to rising

seas). See id. at 526. The link “between manmade

greenhouse gas emissions and global warming” exist-

ed independently as a matter of climate science. /d.

at 523-525. This case is thus fundamentally unlike

Massachusetts.

Beyond ignoring these dispositive distinctions, the

court of appeals committed two further errors in radi-

cally expanding Massachusetts’ “special solicitude.”

Pet. App. 12a. First, the interest Texas asserts is

fundamentally unlike the one Massachusetts asserted,

which was an independent and legally-protected inter-

est in “the earth and air within its domain.” 549 U.S.

at 519 (quoting Georgia v. Tennessee Copper Co., 206

U.S. 230, 237 (1907)). The State’s standing “hinge[d]

on” that particularized sense of infringed sovereignty,

id. at 537 (Roberts, C.J. dissenting), akin to the injury

that would occur if a contiguous State redrew its

boundaries to assert dominion over part of the com-

plaining State’s territory. But as set forth above, see

pp. 20-24, supra, Texas seeks to vindicate an interest

that is not legally protected at all: an asserted inter-

est in not experiencing indirect or incidental effects of

federal immigration-enforcement policies.

Second, Massachusetts attached “critical im-

portance” to the particular “procedural right” under

the Clean Air Act, 42 U.S.C. 7607(b)(1), to challenge

the EPA's denial of a petition for rulemaking on emis-

sions standards. 549 U.S. at 516, 518. “{A] person

who has been accorded a procedural right to protect

his concrete interests can assert that right without

meeting all the normal standards for redressability

and immediacy.” Lujan, 504 U.S. at 572 n.7. But the

INA creates no procedural right for any third party to

challenge immigration-enforcement and related poli-

cies. Instead, the INA insulates exercises of the Sec-

retary’s discretion from judicial review even by aliens

who are the object of deferred-action policies. Reno v.

American-Arab Anti-Discrimination Comm., 525

U.S. 471, 483-485 (1999); see 8 U.S.C. 1252(g); see also

5 U.S.C. 701(a). And the APA’s provisions, which

apply universally, are not analogous to the specific

Clean Air Act provision at issue in Massachusetts.

Indeed, Lujan rejects the view that the injury-in-fact

requirement can be “satisfied by congressional con-

ferral upon all persons of an abstract, self-contained,

noninstrumental ‘right’ to have the Executive observe

the procedures required by law.” 504 U.S. at 573.

Thus, whatever the outer boundaries of the “special!

solicitude” recognized in Massachusetts may be, re-

spondents’ challenge to federal immigration policy is

far outside those limits.

4. The court of appeals’ radical expansion of state

standing would force courts to hear a vast new

range of challenges to federal policies

In the immigration context alone, the court of

appeals’ theory would give States virtually unfettered

ability to conscript courts into entertaining their com-

plaints about federal policies. Texas has extended

the same license subsidy to myriad other groups of

aliens—including aliens with parole, asylum, tempo-

rary protected status, and deferred enforced depar-

ture, and any alien with an employment authorization

document, which itself also captures aliens with de-

ferred action and dozens of other categories. See

Verifying Lawful Presence 1-5. Under the court of

appeals’ reasoning, Texas would have standing to sue

any time the federal government interprets the INA

or adopts immigration policies affecting a substantial

group of aliens in any of these categories. For exam-

ple, a single State could have sued to block INS or

DHS policies for exercising discretion as to Cubans in

the 1960s; Vietnamese in the 1970s; Nicaraguans in

the 1980s; Chinese and Salvadorans in the 1990s;

Haitians in the 1990s and 2000s; as well as every prior

or future deferred-action policy. See pp. 48-50, infra

(collecting examples).

As these historical examples show, the exercise of

immigration enforcement discretion will often be

bound up with sensitive foreign policy imperatives, as

well as pressing humanitarian concerns. Allowing

individual States to challenge such decisions based on

their incidental effects would upend the federalism

and separation-of-powers principles that form the

foundation of our constitutional structure.

Indeed, on the court of appeals’ theory, States

could interfere with the federal government's admin-

istration of the law in many other contexts as well—

effectively circumventing the rule that complaints

about the government’s taxation of (or provision of

benefits to) third parties are nonjusticiable general-

ized grievances. E.g., Cuno, 547 U.S. at 342-346.

Most States, for example, voluntarily incorporate the

federal definition of “adjusted gross income” or “taxa-

ble income” as the basis for computing their state

income taxes. Ruth Mason, Delegating Up: State

Conformity with the Federal Tax Base, 62 Duke L.J.

1267, 1269 (2013); e.g., Ariz. Rev. Stat. Ann. § 43-

1001(2) (2013). Likewise, most states incorporate

“Federal Poverty Guidelines to determine if a defend-

ant is ‘indigent’ and therefore eligible for assigned

counsel.” John P. Gross, Too Poor to Hire a Lawyer

but Not Indigent, 70 Wash. & Lee L. Rev. 1173, 1174

(2013); e.g., Mont. Code Ann. § 47-1-111(3)(a) (2015).

And many States (including Texas) provide subsidies

to disabled veterans, and borrow the federal defini-

tions for who qualifies as a disabled veteran. E£.g.,

Tex. Educ. Code Ann. § 54.341 (West. Supp. 2015)

(free tuition); 31 Tex. Admin. Code § 59.2 (2015) (free

admission to state parks); 37 Tex. Admin. Code § 15.38

(2015) (free driver’s licenses). On the court of appeals’

theory, any State that voluntarily adopted such a tax

or subsidy tied to a federal category could sue the

federal government to challenge any policy that had

the incidental effect of decreasing state revenue or

increasing state costs.

The court of appeals asserted that it is “speculation

that a state would sue” in the myriad circumstances

its holding would authorize. Pet. App. 35a. But the

very fact that respondents have sued is proof that the

risk is not hypothetical. And considering immigration

alone, there is every reason to think that States would

seek to air their policy grievances in the federal

courts. Because “[i)mmigration policy shapes the

destiny of the Nation,” Arizona, 132 S. Ct. at 2510, it

is often controversial. In all events, the court of ap-

peals’ blithe reassurance that this case is a once-in-a-

lifetime event effectively concedes that Article I1]—a

limitation that “is crucial in maintaining the ‘tripartite

allocation of power’ set forth in the Constitution,”

Cuno, 547 U.S. at 341 (citations omitted) —would be no

barrier.

Respondents may have “understandable frustra-

tions with the problems caused by illegal immigra-

tion,” Arizona, 132 S. Ct. at 2510, and may disagree

with the Guidance as a matter of law and policy, just

as other States support it. But under Article III,

courts are not the appropriate forums for resolving

such a disagreement. Rather, the appropriate forum

is the political process, “informed by searching,

thoughtful, rational civic discourse.” /bid. This Court

should not enable a faction of States to evade Arizona

and to use the federal courts to wrest control over a

sensitive and quintessentially national matter that the

Constitution and INA reserve exclusively to the politi-

cal Branches of the federal government.

B. Protecting A State From The Costs Of A Voluntary

State-Law Subsidy For Driver's Licenses Is Not With-

in The “Zone Of Interests” Of Any Provision Of The

INA

Even if respondents made the showing necessary

for Article III standing, they would lack a cause of

action under the APA. The APA does not “allow suit

by every person suffering injury in fact.” Clarke v.

Securities Indus. Ass'n, 479 U.S. 388, 395 (1987).

Rather, the APA provides a cause of action only to a

plaintiff “adversely affected or aggrieved by agency

action within the meaning of a relevant statute.” 5

U.S.C. 702. To be “aggrieved” in this sense, “the

interest sought to be protected by the complainant

[must] be arguably within the zone of interests to be

protected or regulated by the statute * * * in ques-

tion.” Clarke, 479 U.S. at 396 (brackets and citation

omitted).

Respondents cannot satisfy this requirement be-

cause no relevant statute protects a State from bear-

ing the costs of a voluntary state-law subsidy for driv-

er’s licenses. Indeed, respondents have never con-

tended otherwise. £.g., Br. in Opp. 26-27. Respond-

ents instead have tried to satisfy the zone-of-interests

test by pointing to different interests. They assert

(ibid.) that the INA protects States by “protecting

their citizens by reserving jobs for those lawfully

entitled to work,” and that the APA's notice-and-

comment provision protects their interest in “com-

ment{ing] on administrative decisionmaking.” But a

plaintiff cannot mix-and-match one interest for Article

II] purposes and a different interest for zone of inter-

ests. “[O]n any given claim|[,] the injury that supplies

constitutional standing must be the same as the injury

within the requisite ‘zone of interests.’"” Mountain

States Legal Found. v. Glickman, 92 F.3d 1228, 1232

(D.C. Cir. 1996); see 183A Charles Alan Wright et al.,

Federal Practice and Procedure § 3531.7, at 513 (3d

ed. 2008) (“[T]he same interest must satisfy both

tests.”).

Respondents’ assertion of these additional injuries

also fails on its own terms. No provision of the INA

departs from the well-settled rule that States cannot

raise a derivative claim on behalf of their citizens

against the federal government for its administration

of the federal laws. See note 6, supra. Indeed, the

citizens themselves would lack a claim under the Con-

stitution or the INA. See Sure-Tan, 467 U.S. at 897;

Federation for Am. Immigration Reform, Inc. v.

Reno, 93 F.3d 897, 899 (D.C. Cir. 1996) (dismissing

under zone-of-interests a suit challenging parole of

Cubans into this country, where plaintiffs relied on

incidental effects of that policy on workers in Miami),

cert. denied, 521 U.S. 1119 (1997). And respondents’

circular notice-and-comment argument would elimi-

nate the zone-of-interests test in every notice-and-

comment case: Anybody who is willing to initiate a

lawsuit could plausibly assert that he also wished to

submit a comment. Not only must a party seeking to

compel notice-and-comment rulemaking have Article

III standing, but also it must be “aggrieved” under

the “relevant statute.” 5 U.S.C. 702; cf. Lujan, 504

U.S. at 572-573 & n.8. That means the underlying

substantive statute: here, an operative provision of

the INA. E.g., Mendoza v. Perez, 754 F.3d 1002, 1016

(D.C. Cir. 2014).

The court of appeals’ approach to the zone-of-

interests analysis also exacerbates the practical dan-

gers of its unprecedented approach to Article III, by

forcing courts to resolve disputes over immigration

policy under the APA unless review is independently

precluded by law. The one-two punch of these rulings

thus would dramatically alter the separation of pow-

ers, and throttle the effective administration and

enforcement of the immigration laws through pro-

tracted litigation with different States or competing

factions of States.

C. The Guidance Is Not Justiciable Under the APA Be-

cause It Involves Matters That Are Committed To

Agency Discretion By Law

The APA precludes judicial review of certain cate-

gories of decisions that are “committed to agency

discretion by law.” 5 U.S.C. 701(a)(2). The Guidance

fits the bill. A decision to defer action is itself unre-

viewable because notifying an alien that DHS has

decided to forbear from removing him for a designat-

ed period is an exercise of enforcement discretion—a

matter traditionally regarded as unreviewable. Pet.

App. 98a (King, J., dissenting); id. at 213a-214a (Hig-

ginson, J., dissenting). And Congress has enacted

statutes authorizing the Secretary to decide, as a

matter of discretion, whether aliens may work lawful-

ly and in turn participate in the Social Security system

(as they must do if they are to be lawfully employed).

See pp. 7-8, supra. Those provisions furnish “no

meaningful standard against which to judge the [Sec-

retary’s] exercise of discretion.” Lincoln v. Vigil, 508

U.S. 182, 191 (1993). And an unreviewable exercise of

enforcement discretion with unreviewable conse-

quences is unreviewable.

1. In Heckler v. Chaney, 470 U.S. 821 (1985), this

Court held that “an agency’s decision not to take en-

forcement action should be presumed immune from

judicial review under § 701(a)(2).” Jd. at 832. Heck-

ler’s presumption of non-reviewability applies to deci-

sions to defer immigration enforcement action. Ad-

ministrative discretion is “[a] principal feature of the

removal system.” Arizona, 132 S. Ct. at 2499. In-

deed, immigration is “a field where flexibility and the

adaptation of the congressional policy to infinitely

variable conditions constitute the essence of the pro-

gram.” United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537, 543 (1950) (citation omitted). And de-

ferred action is a “regular” and longstanding practice

for exercising that discretion. AADC, 525 U.S.

at 483-484.

The court of appeals acknowledged (Pet. App. 44a)

that the Secretary has unreviewable discretion under

Heckler to forbear from pursuing removal of every

single individual who could obtain deferred action

under the Guidance—and to forbear from pursuing

removal of the much larger number of aliens whom

the Secretary has determined are not enforcement

priorities. The court nonetheless believed that Heck-

ler’s presumption against review is inapplicable here,

because deferred action permits an individual “to be

lawfully present in the United States.” Jd. at 413a.

That fundamentally misunderstands the term “law-

ful presence.” Insofar as deferred action itself is

concerned, “lawful presence” simply describes the

result of notifying an alien that DHS has made a non-

binding decision to forbear from pursuing his removal

for a period of time: He may remain present in the

United States without being removed, for so long as

DHS continues to forbear. Pet. App. 113a-114a (King,

J., dissenting). The discretion to permit an alien to be

“lawfully present” in this sense is thus precisely the

kind of agency judgment that is committed to DHS’s

discretion under Heckler. Indeed, respondents ap-

pear to agree that DHS has unreviewable discretion to

“distribute documentation designating certain unau-

thorized immigrants as low-priority law enforcement

targets.” Br. in Opp. 20 n.7 (brackets, citation, and

internal quotation marks omitted). That describes

deferred action perfectly.

Respondents insist that deferred action goes fur-

ther and “purports to alter [INA] requirements.” Br.

in Opp. 20 (citation omitted; brackets in original).

That is incorrect. It does not change the law in any

way or create any new immigration categories. DHS

can unilaterally revoke deferred action, without notice

or process, and pursue removal. See pp. 4-7, supra.

Deferred action thus “does not confer any form of

legal status in this country.” Pet. App. 413a; see

Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013)

(“{UJnlawful presence and unlawful status are distinct

concepts.”); 5 Immigration Law and Procedure

§ 63.10[2][c] (2014) (discussing this distinction); e.g.,

Geoffrey Heeren, The Status of Nonstatus, 64 Am. U.

L. Rev. 1115, 1122-1133 (2015) (same). “Lawful sta-

tus” (such as lawful permanent resident status) pro-

vides a legally-enforceable defense to removal under

the INA. Deferred action does not. See pp. 4-7, su-

pra. The label “lawful presence” does not alter this

essential legal distinction.

“Lawful presence” in this sense is the result of eve-

ry decision to accord deferred action, on any basis.

See Pet. App. 413a. If that were enough to justify

APA review, Heckler would provide little protection in

the immigration context, because countenancing an

individual alien’s continued presence “is an inevitable

element of almost any exercise of discretion in immi-

gration enforcement.” J.A. 76. Similar practices are

also common outside immigration. For example, the

“passive enforcement” policy in Wayte v. United

States, 470 U.S. 598 (1985), countenanced an ongoing

failure by approximately 674,000 people to register for

the draft. See id. at 600, 604 & nn.3-4. Criminal pros-

ecutors also often send declination letters, enter into

deferred-prosecution agreements, or use pretrial

diversion, which similarly notify an individual of the

decision to forbear. See Pet. App. 117a (King, J.,

dissenting). Yet the government is aware of no case

relying on such attributes of prosecutorial discretion

to bootstrap a challenge to the exercise of discretion

itself.

2. DHS’s decisions about the other attributes of

deferred action—the ability to work lawfully and, in

turn, to participate in Social Security—are also com-

mitted to agency discretion by law and do not render

the Guidance reviewable.

At the outset, the Guidance does not change the

way the law operates with respect to deferred action’s

consequences. For decades, aliens with deferred

action have been able to apply for work authorization

on the basis of economic need and, in turn, to partici-

pate in Social Security. See 46 Fed. Reg. at 25,080; 44

Fed. Reg. 10,371 (Feb. 20, 1979). That was long be-

fore this Court in 1999 described deferred action as “a

regular practice,” AADC, 525 U.S. at 483-484, and

long before Congress enacted a series of statutes

encouraging the Secretary to use “deferred action” for

more groups of aliens. A ruling that the Guidance is

reviewable because of long-established consequences

that it does not alter would eviscerate Heckler’s pro-

tection under the INA, because the same consequenc-

es flow from countless discretionary decisions in im-

migration enforcement. F.g., 8 C.F.R. 274a.12(a), (b),

and (c) (aliens may obtain work authorization on doz-

ens of grounds).

Furthermore, as set forth more fully below, see pp.

48-53, infra, Congress has long made it a component

of the Secretary’s enforcement discretion to decide

whether to authorize the affected aliens to work. DHS

and its predecessor INS have exercised that authority

for more than 50 years pursuant to their authority to

administer the INA, 8 U.S.C. 1103(a); it has been

codified in formal regulations since 1981, 46 Fed. Reg.

at 25,080; and Congress ratified that interpretation by

providing that an employer may lawfully hire an alien

who is “authorized to be so employed by th[{e INA] or

by the [Secretary].” 8 U.S.C. 1324a(h)(3) (emphasis

added). The connection between enforcement discre-

tion and work authorization is close and natural:

Exercising discretion means that aliens will live in the

United States, and “in ordinary cases [people] cannot

live where they cannot work.” Truazx v. Raich, 239

U.S. 33, 42 (1915).

These statutes and regulations are “completely

permissive” and provide “no meaningful standards

against which to judge the agency’s exercise of discre-

tion.” Perales v. Casillas, 903 F.2d 1043, 1047, 1049

(5th Cir. 1990) (decisions to deny work authorization

to a particular class of aliens are committed to agency

discretion by law). Although Congress has imposed

some limits on the Secretary’s discretion to provide

work authorization, e.g., 8 U.S.C. 1226(a)(3) (aliens

released on bond or recognizance during removal

proceedings); 8 U.S.C. 1231(a)(7) (aliens released on

orders of supervision after final order of removal),

none applies here.

Congress has similarly granted “the [Secretary]”

discretion to “determine[]” whether a non-qualified

alien is “lawfully present” for purposes of participat-

ing in Social Security retirement and certain other

federal earned-benefit programs. 8 U.S.C. 1611(b)(2)-

(4). This provision does not limit authorization to

aliens with “lawful status,” and articulates no mean-

ingful standard for judging the Secretary’s decision."

3. The INA’s structure provides additional confir-

mation that the APA bars judicial review of the Guid-

ance. When an alien receives a final removal order,

the INA generally provides the alien a right of judicial

review. 8 U.S.C. 1252. But the INA provides no cause

of action to a State or other third party to challenge a

removal order or an exercise of discretion in an alien’s

favor. If Congress had intended to allow suits to chal-

lenge decisions concerning deferred action or its con-

sequences, one would expect that the parties most

directly affected—aliens denied deferred action—

would be permitted to sue. Instead, 8 U.S.C. 1252(g)

squarely prohibits just that. This Court explained in

AADC that Section 1252(g) is “directed against a

particular evil: attempts to impose judicial con-

straints upon prosecutorial discretion.” 525 U.S.

at 486 n.9; see 5 U.S.C. 701(a)(1). That is precisely

what respondents seek here, and their effort should be

rebuffed.

* Congress has similarly committed to “the [Secretary's)” discre-

tion the determination of whether an alien's “stay” is “authorized”

for purposes of computing time towards the “unlawful presence”

bars to admissibility. 8 U.S.C. 1182(a)(9)(B)(i) and (ii). That pro-

vision is also largely irrelevant here. Every individual covered by

the Guidance is already removable, with or without tolling. Accru-

al and tolling have no impact unless an individual departs the coun-

try. [bid. And tolling is entirely irrelevant for virtually all parents

under DAPA because they are adults who stayed in the United

States for a year without authorization, and hence face the maxi-

mum ten-year barrier if they depart. /bid.; see Pet. App. 44a n.99.

Il. THE GUIDANCE IS A LAWFUL EXERCISE OF THE

SECRETARY’S BROAD STATUTORY AUTHORITY TO

ADMINISTER AND ENFORCE THE INA

The Guidance is a lawful, responsible exercise of

the Secretary’s broad _ statutory authority to

“{e]stablish[{] national immigration enforcement poli-

cies and priorities,” 6 U.S.C. 202(5), and to carry out

the “administration and enforcement of th{e INA] and

all other laws relating to the immigration and natural-

ization of aliens,” 8 U.S.C. 1103(a), including by au-

thorizing aliens to be lawfully employed, 8 U.S.C.

1324a(h)(3); 8 C.F.R. 274a.12(c)(14). The Guidance is

carefully designed to employ enforcement discretion,

in the form of deferred action and concomitant work

authorization, to address a difficult National problem

involving severe resource constraints and significant

humanitarian and policy concerns.

Although DHS fully uses available appropriations

to remove hundreds of thousands of aliens annually,

the fact remains that millions of undocumented aliens

will continue living and working here. Rather than

ignoring that reality, the Guidance addresses it forth-

rightly by using deferred action for two categories of

aliens with particularly strong ties to this country and

who are particularly unlikely to leave voluntarily:

Parents of U.S. citizens or lawful permanent resi-

dents, and people who came here as children, many of

whom have never known another home. Deferred

action does not provide these individuals with any

lawful status under the immigration laws. But it pro-

vides some measure of dignity and decent treatment,

and addresses some of the pressing policy conse-

quences that their presence generates. It recognizes

the damage that would be wreaked by tearing apart

families, and it allows individuals to leave the shadow

economy and work on the books to provide for their

families, thereby reducing exploitation and distortion

in our labor markets.

Long settled practice under the immigration laws

underscores that the Guidance is a lawful exercise of

the Secretary’s broad discretion. That history con-

firms that discretion, of necessity, is a principal fea-

ture of the administration and enforcement of the

INA; that responsible Executive officials have regu-

larly exercised that discretion by issuing policies for

deferring action (or exercising similar forms of discre-

tion) on the basis of aliens’ membership in defined

categories; that work authorization has consistently

been tied to such exercises of discretion; and that

Congress has long been aware of these practices and

has repeatedly responded by affirming the Secretary’s

authority with respect to both enforcement discretion

and work authorization, while at the same time direct-

ing DHS to focus its limited enforcement resources on

securing the border and removing serious criminals.

This dialogue between the political Branches reflects

the ongoing push and pull over the Nation’s immigra-

tion policies by those who are democratically respon-

sible for formulating and implementing them. And the

Secretary’s longstanding interpretation of the INA as

authorizing these practices is entitled to great defer-

ence. See Scialabba v. Cuellar de Osorio, 134 S. Ct.

2191, 2203 (2014) (opinion of Kagan, J.); JNS v. Aguir-

re-Aguirre, 526 U.S. 415, 425 (1999).

A. The Guidance Is A Lawful And Responsible Exercise

Of The Secretary’s Broad Authority Under The INA

The Guidance is a vital part of the Secretary’s re-

sponsible exercise of the authority the INA vests in

him. Enforcement discretion is classically exercised

to consider “whether agency resources are best spent

on this violation or another,” whether a particular

action “best fits the agency’s overall policies,” and

“whether the agency has enough resources to under-

take the action at all.” Heckler, 470 U.S. at 831. The

level of congressional appropriations for DHS’s en-

forcement operations means, by necessity, that Con-

gress has accorded the Secretary “tremendous au-

thority” to decide which aliens will actually be the

subject of enforcement—and, as a corollary, to decide

which aliens will not. Adam B. Cox & Cristina M.

Rodriguez, The President and Immigration Law, 119

Yale L.J. 458, 463 (2009); see id. at 510-511. In par-

ticular, the scope of enforcement funded by current

appropriations ensures that millions of aliens who

have lived and worked in this country for years are

going to continue living and working here for the

foreseeable future.

The Secretary responded to this reality by issuing

two interrelated memoranda. First, consistent with

Congress's statutory directions, see pp. 3-4, supra, his

priorities memorandum focuses enforcement re-

sources “to the greatest degree possible” on removing

serious criminals, terrorists, aliens who are appre-

hended at or have recently crossed the border, and

aliens who have significantly abused the immigration

system. Pet. App. 426a; id. at 420a-429a. Second, the

Guidance complements those priorities by establishing

a process for according deferred action to some non-

priority aliens in order to focus more resources on

removing criminal aliens and others who are priori-

ties. See Arpaio v. Obama, 797 F.3d 11, 24 (D.C. Cir.

2015), cert. denied, 136 S. Ct. 900 (2016).

Under the Guidance, individual non-priority aliens

can come forward, identify themselves, pay a fee to

defray expenses, pass a background check, and poten-

tially receive deferred action. Pet. App. 417a. If law-

enforcement officials later encounter such an individ-

ual, ICE can “quickly confirm the alien’s identity

through a biometric match” and confirm that he or she

does not warrant the commitment of resources for

removal. D. Ct. Doc. 150-1 4 15 (Feb. 23, 2015); see id.

1% 14-17. Without the Guidance, ICE would have to

check that individual's background and immigration

history every time—and ICE would foot the bill. See

id. 1% 14-17; D. Ct. Doc. 150-2 919 7-13 (Feb. 23, 2015).

In addition to facilitating DHS’s ability to focus on

enforcement priorities, the Guidance also takes into

account the weighty humanitarian and policy consid-

erations produced by the inescapable fact that millions

of aliens will remain in this country. This Court has

emphasized that, when exercising its discretion, DHS

appropriately considers “whether [an] alien has chil-

dren born in the United States [or] long ties to the

community.” Arizona, 132 S. Ct. at 2499. The Guid-

ance does just that. Every person under the Guidance

has “long ties to the community,” ibid., because it only

reaches people who have lived in this country continu-

ously since January 1, 2010, or earlier. Pet. App.

416a-417a. Both the original (unchallenged) 2012

DACA policy, and the DACA policy as expanded by

the Guidance, reach only people with particularly

strong ties to this country: people who came here as

children, many of whom have never known another

home. J/bid. These individuals are removable, but

“fundamental conceptions of justice” confirm that

people who came to this country as children are not

similarly situated to adults. Plyler, 457 U.S. at 220; ef.

Montgomery v. Louisiana, 136 S. Ct. 718, 732-734

(2016). The INA itself recognizes this principle, as

time when an alien is a minor “shall [not] be taken into

account” when calculating periods of “unlawful pres-

ence.” § U.S.C. 1182(a)(9)(B)(iii)(1).

The DAPA policy set forth in the Guidance reaches

a group that is compelling for different reasons: par-

ents of U.S. citizens or lawful permanent residents.

Pet. App. 417a. Again, the INA embodies the signifi-

cance of this parent-child relationship. Parents of

U.S. citizens qualify for “immediate relative” visas—

the “most favored” visa category, Cuellar de Osorio,

134 S. Ct. at 2197 (opinion of Kagan, J.)—as soon as

their child turns 21. 8 U.S.C. 1151(b)(2)(A)(i). And

parents of lawful permanent residents obtain the same

treatment once their child becomes a U.S. citizen,

which ordinarily may occur after five years or less.

See 8 U.S.C. 1427(a). An immigration judge also may

grant lawful permanent residence through “[c]ancella-

tion of removal,” under certain circumstances, because

of the impact of removing an alien parent on a U.S.-

citizen or lawful permanent resident child. 8 U.S.C.

1229b(b)(1)(D); see 8 U.S.C. 1182(a)(3)(D)(iv),

(g)(1)(B), (h)(1)(B), and (i)(1), 1227(a)(1)(H). Deferred

action will give these parents the dignity of coming

forward and “beling] counted,” and their families

some limited measure of relief from fear that they will

be broken up. Pet. App. 415a.

The Guidance also promotes self-sufficiency and

helps protect American workers, see 8 U.S.C. 1324a,

1601, through deferred action’s longstanding tie to

work authorization for aliens with economic need, 8

C.F.R. 274a.12(c)(14). With or without the Guidance,

most of the covered individuals will continue living

and working here. See Pet. App. 415a. But without

the Guidance, many would work off-the-books, expos-

ing themselves to exploitation while putting American

workers and scrupulous employers at a competitive

disadvantage. Deferred action and work authorization

will “encourage these people to come out of the shad-

ows,” work on the books at higher wages, and pay

taxes on those higher wages. /bid. That in turn will

make those individuals more self-reliant, less depend-

ent on social services, and increase federal and state

tax revenues. See States of Wash. et al. Amicus Br. 3-

8; see also Cong. Budget Office, Budgetary Effects of

Immigration-Related Provisions of the House-Passed

Version of H.R. 240, An Act Making Appropriations

for the Department of Homeland Security 1-8 (Jan.

29, 2015) (estimating that blocking the Guidance

would cost the federal government $7.5 billion from

2015-2025).

The Guidance also guards against perverse incen-

tives. To avoid encouraging further migration, it

covers only people who have already lived here since

2010—and it helps DHS focus more resources on

border enforcement. Pet. App. 416a-417a. DAPA also

applies only to people who, by November 20, 2014, are

already parents of U.S. citizens or lawful permanent

residents. Jd. at 417a. So individuals cannot become

eligible by having children now.

In sum, the Guidance is a policy for responsibly ex-

ercising enforcement discretion, under the INA, to

address a difficult real-world problem within the Sec-

retary’s purview.

B. The History Of Immigration Law Confirms That The

Guidance Is A Lawful Exercise Of The Secretary's Au-

thority Under The INA

Current immigration law “is the product of a long

history,” 1 /mmigration Law and Procedure § 2.01

(2015), which confirms that the Guidance is within the

Secretary’s authority. For more than 50 years, the

INS and DHS have issued policies for conferring

deferred action (or other similar discretionary prac-

tices) for aliens living in the United States without

lawful status, and doing so on the basis of defined

categories targeting large groups—including the 1990

Family Fairness policy targeting approximately 40%

of the estimated undocumented population at the time.

And these policies have consistently resulted in work

authorization. In response, Congress has repeatedly

ratified the Secretary's authority to exercise discre-

tion in this way. Respondents’ challenge to the Guid-

ance cannot be reconciled with this history.

1. Past policies for exercising enforcement discretion

Since 1960, the INS and DHS have established

more than 20 policies for using deferred action (or

functionally similar forms of enforcement discretion)

for large numbers of aliens who were living in the

United States without lawful status, and doing so

based on their membership in defined categories. See

EVD Report 6 (collecting examples); J.A. 209-212

(same). From 1960 to 1990, the INS adopted a string

of policies for according “extended voluntary depar-

ture” to aliens living in the United States, based solely

on their nationality. /bid. Extended voluntary depar-

ture permitted “otherwise deportable aliens to remain

temporarily in the United States,” as a matter of dis-

cretion, “out of concern that the forced repatriation of

these individuals could endanger their lives or safety.”

EVD Report 6; see Hotel & Rest. Emps. Union v.

Smith, 846 F.2d 1499, 1501 (D.C. Cir. 1988) (en bane)

(per curiam) (Mikva, J.); Smith, 846 F.2d at 1519

(Silberman, J.) (“extrastatutory decision to withhold

enforcement” as a matter of discretion). For example,

a 1960 policy applied to Cuban nationals; 1975 policies

reached Vietnamese, Cambodians, and Laotians; and a

1987 policy reached between 150,000 and 200,000

Nicaraguans during unrest. EVD Report 6; J.A. 210."

The INS and DHS have also established many such

policies with categories defined based on factors in

addition to (or different from) nationality. For exam-

ple, in the 1970s, the INS accorded extended volun-

tary departure to approximately 250,000 foreign na-

tionals from the Western Hemisphere who were al-

ready living here. J.A. 209. The INS’s “Family Fair-

ness” policy, adopted in 1987 and expanded in 1990,

invoked indefinite voluntary departure as a means to

exercise discretion for as many as 1.5 million unau-

thorized aliens because they were ineligible spouses or

children of certain aliens granted lawful status. J.A.

210-211; see p. 56, infra. Policies in 1989 and 1990

* In 1990, Congress codified the nationality-based practice with a

“more formal and orderly mechanism,” known as “(tlemporary

protected status.” 8 U.S.C. 1254a (Supp. II 1990); EVD Report 4.

Extended voluntary departure has not been used since then. See

J.A. 211-212. Congress did not constrain the Secretary's ability to

exercise discretion on additional or other grounds, however. Upon

signing the act, the President stated that he did not interpret it to

do so and that “[a)ny attempt” to displace that authority “would

raise serious constitutional questions.” President George H.W.

Bush, Statement on Signing the Immigration Act of 1990 (Nov. 29,

1990).

after the Tiananmen Square protests invoked “de-

ferred enforced departure” for certain Chinese na-

tionals (approximately 80,000 individuals); a 1992

policy covered certain Salvadorans (approximately

190,000); a 1997 policy covered certain Haitians (ap-

proximately 40,000); and policies in 1999, 2007, 2011,

and 2014 have covered certain Liberians. J.A. 210-

212; see Memorandum from President Barack Obama,

to Sec’y of Homeland Security, Deferred Enforced

Departure for Liberians (Sept. 26, 2014)."°

Since 1997, DHS has used deferred-action policies

for battered spouses and victims of human trafficking;

foreign students displaced by Hurricane Katrina;

widows and widowers of U.S. citizens; and, under

DACA, individuals who came to the United States as

children and have long made this country their home.

See pp. 5-7, supra. And Congress has enacted a series

of statutes recognizing that the Secretary may accord

“deferred action” for aliens in defined categories, and

encouraged him to do so more often. /bid.

2. Work authorization as a component of the exercise

of discretion

Crucially, INS and DHS have authorized lawful

work by aliens who remain in the United States under

every deferred-action or similar policy since at least

the early 1970s. The INS and DHS have long inter-

preted their broad authority to administer the immi-

gration laws, 8 U.S.C. 1103(a), to encompass the abil-

ity to authorize aliens to work as an exercise of discre-

' “Deferred enforced departure” is similar to extended volun-

tary departure and, since 1990, has been directed only by the

President. See 8 C.F.R. 274a.12(a)(11); 75 Fed. Reg. 33,457 (June

11, 2010).

tion. E.g., 17 Fed. Reg. 11,489 (Dec. 19, 1952) (8

C.F.R. 214.2(c)) (authorizing nonimmigrants to en-

gage in employment if “authorized by the district

director or the officer in charge having administrative

jurisdiction over the alien’s place of temporary resi-

dence”). This Court “will normally accord particular

deference” where the agency interpretation in ques-

tion is “of ‘longstanding’ duration.” Barnhart v. Wal-

ton, 585 U.S. 212, 220 (2002) (citation omitted).

By the early 1970s, the INS’s ordinary practice was

to authorize “illegal aliens” to work when it decided

not to pursue deportation—including aliens with “ex-

tended voluntary departure” or “whose departure or

deportation will not be enforced.” Sam Bernsen, INS

Gen. Counsel, Leave to Labor, 52 No. 35 Interpreter

Releases 291, 294 (Sept. 2, 1975); see Sam Bernsen,

INS Assistant Comm’r, Lawful Work for Nonimmi-

grants, 48 No. 21 Interpreter Releases 168, 315 (June

21, 1971). To do so, the INS would stamp an immigra-

tion form (the I-94) with “Employment Authorized.”

Ibid. At the time, there was no general federal prohi-

bition against hiring unauthorized aliens. See De

Canas v. Bica, 424 U.S. 351, 360-361 (1976). But

“{sjome employers [would] not hire an alien” without

“some evidence of authorization to work, and the So-

cial Security Administration [would] not issue a social

security card without evidence of work authorization.”

Leave to Labor 294; see 44 Fed. Reg. at 10,371 (Social

Security cards issued to aliens with I-94 indicating

work authorization).’’ The INS granted work authori-

zation as a component of its exercise of discretion,

reasoning that “in such cases gainful employment

“ At the time, aliens were barred from receiving Social Security

benefits only if they res ded abroad. See 42 U.S.C. 402(t) (1970).

should not be prevented and that it is reasonable to

give the alien something that he can present to a pro-

spective employer to show that he can work.” Leave

to Labor 294; see De Canas, 424 U.S. at 364-365 (dis-

cussing INS issuance of work authorization and State

concession that it could not bar employment by aliens

with such authorization).

In 1974, Congress ratified the INS’s position that it

had discretion under the INA to authorize aliens to

work. The Farm Labor Contractor Registration Act

Amendments of 1974, Pub. L. No. 93-519, 88 Stat.

1652, made it unlawful for farm labor contractors to

knowingly employ any “alien not lawfully admitted for

permanent residence or who has not been authorized

by the Attorney General to accept employment.” 7

U.S.C. 2045(f) (Supp. IV 1974) (emphasis added); see

7 U.S.C. 2044(b) (1970 & Supp. IV 1974) (license could

be revoked on same basis). The clear premise was

that “the Attorney General” was already empowered

to “authorize[]” aliens “to accept employment.” /bid.;

see 41 Fed. Reg. 26,825-26,826 (June 29, 1976) (INS

Form I-94 designated “H-2” or stamped “Employment

Authorized” showed work authorization).”

In 1981, the INS promulgated formal regulations

codifying its existing practices. 46 Fed. Reg. at

25,080-25,081; see 44 Fed. Reg. 43,489 (July 25, 1979).

The INS relied on its general authority to administer

the INA under Section 1103(a). See ibid.; see also 46

In 1983, Congress replaced this provision with a similar

scheme that prohibited farm-labor contractors from knowingly

employing “an alien not lawfully admitted for permanent residence

or who has not been authorized by the Attorney General to accept

employment.” Migrant and Seasonal Agricultural Worker Protec-

tion Act, Pub. L. No. 97-470, § 106(a), 96 Stat. 2589-2590.

Fed. Reg. at 25,080 (“[E }mployment authorization is a

matter of administrative discretion because humani-

tarian or economic needs warrant administrative ac-

tion.”). From the start, those regulations enabled

aliens to work notwithstanding that they lacked lawful

immigration status: Aliens with deferred action were

covered, as well as any aliens who merely applied for

adjustment of status. 46 Fed. Reg. at 25,081. Aliens

with extended voluntary departure were added short-

ly thereafter. 46 Fed. Reg. 55,920-55,921 (Nov. 13,

1981). These regulations thus embody the INS’s

longstanding interpretation that, as a component of

the exercise of discretion, the INA empowers it to

authorize lawful work by aliens who lack lawful status.

3. IRCA

In the Immigration Reform and Control Act of

1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359, Con-

gress adopted a “comprehensive scheme prohibiting

the employment of illegal aliens in the United States.”

Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.

137, 147 (2002). IRCA extended to all employers the

sanctions regime that had previously applied only to

farm-labor contractors. See § 101(b)(1)(C) and (D),

100 Stat. 3372. IRCA’s key provision makes it unlaw-

ful for an employer to hire “an unauthorized alien (as

defined in subsection (h)(3) of this section) with re-

spect to such employment.” 8 U.S.C. 1324a(a)(1) (em-

phasis added). Subsection (h)(3) in turn defines “un-

authorized alien” as an alien who is not a lawful per-

manent resident and not “authorized to be so em-

ployed by th{e INA] or by the Attorney General.” 8

U.S.C. 1324a(h)(3) (emphasis added). When read

“(algainst th{e] background understanding in the legal

and regulatory system,” including experience under

the agriculture-specific regime IRCA supplanted,

IRCA is “convincing support for the conclusion that

Congress accepted and ratified” the INS’s preexisting

understanding that it could authorize aliens to work as

an integral component of the exercise of discretion in

administering and enforcing the INA. Texas Dep't of

Hous. & Cmty. Affairs v. Inclusive Cmtys. Project,

Inc., 135 S. Ct. 2507, 2520 (2015).

The INS formally adopted this straightforward in-

terpretation of IRCA shortly after it became law. An

administrative challenge had been filed arguing that

the INS’s work-authorization regulations were ultra

vires. See 51 Fed. Reg. 39,385-39,386 (Oct. 28, 1986).

In the wake of IRCA, the principal challenger submit-

ted a comment interpreting Section 1324a(h)(3) to

mean that the Attorney General lacked authority “to

grant work authorization except to those aliens who

have already been granted specific authorization by

the [INA].” 52 Fed. Reg. 46,093 (Dec. 4, 1987). The

INS rejected that view. “(T]he only logical way to

interpret” the phrase “authorized to be so employed

by th{e INA] or by the Attorney General,” the INS

explained, “is that Congress, being fully aware of the

Attorney General’s authority to promulgate regula-

tions, and approving of the manner in which he has

exercised that authority in this matter, defined ‘unau-

thorized alien’ in such fashion as to exclude aliens who

have been authorized employment by the Attorney

General through the regulatory process, in addition to

those who are authorized employment by statute.”

Ibid. (citation omitted). The INS recodified its work-

authorization regulations—including for aliens with

deferred action—identifying Sections 1103(a) and

1324a as authority. See 52 Fed. Reg. at 16,221, 16,228.

The limitations period for challenging those regula-

tions expired decades ago. See 28 U.S.C. 2401(a).

DHS’s longstanding interpretation of its authority to

authorize aliens to work—codified both before and

after IRCA—warrants full deference under Chevron

U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 843-844 (1984).

4. The Family Fairness policy and the IMMACT

Legislation and administrative practice since

IRCA further confirms that the Guidance is a valid

deferred-action policy. In IRCA, Congress granted

lawful status to millions of undocumented aliens who

applied and satisfied certain residency and other re-

quirements. £.g., 8 U.S.C. 1255a(a) and (b). This

enabled them to obtain temporary resident status with

work authorization, and eventually permanent resi-

dent status and naturalization. /J/bid.; see 8 U.S.C.

1427(a). But Congress pointedly decided not to ex-

tend legal protection to those aliens’ spouses and

children who had arrived too recently or were other-

wise ineligible. See S. Rep. No. 132, 99th Cong., Ist

Sess. 16 (1985) (“It is the intent of the Committee that

the families of legalized aliens will obtain no special

petitioning rights by virtue of the legalization.”).

In October 1987, the INS Commissioner estab-

lished a “Family Fairness” policy to provide more

modest relief, through enforcement discretion, to

some members of that same group. See Recent Devel-

opments, 64 No. 41 Interpreter Releases 1190, App. I,

at 1203-1204 (Oct. 26, 1987). The INS announced that

it would “indefinitely defer deportation” for

(1) ineligible spouses and children who could show

compelling or humanitarian factors; and (2) ineligible

unmarried minor children who could show that both

parents (or their only parent) had achieved lawful

temporary resident status. /bid. Those individuals

also could obtain work authorization. /d. App. II, at

1206.

In 1990, the INS expanded the Family Fairness

policy dramatically. As expanded, it provided indefi-

nite voluntary departure for any ineligible spouse or

minor child of a legalizing alien who showed that he or

she (1) had been residing in the country by the date of

IRCA’s 1986 enactment; (2) was otherwise inadmissi-

ble; (3) had not been convicted of a felony or three

misdemeanors; and (4) had not assisted in persecu-

tion. J.A. 213-215. The Commissioner explained that

“we can enforce the law humanely,” and that “[t]Jo split

families encourages further violations of the law as

they reunite.” Recent Developments, 67 No. 6 Inter-

preter Releases 153, 154 (Feb. 5, 1990). The policy

stated that “[wJork authorization will be granted” to

aliens who qualified. J.A. 215.

The INS could only estimate how many people

were potentially eligible and how many would actually

come forward, but on any estimate the numbers were

large. E.g., Recent Developments, 67 No. 8 Interpret-

er Releases 201, 206 (Feb. 26, 1990)."* The INS Com-

missioner testified that 1.5 million people were esti-

mated to be eligible. J/mmigration Act of 1989: Hear-

" E.g., 55 Fed. Reg. 6058 (Feb. 21, 1990) (anticipating requests

from “approximately one million” people); J.A. 646 (internal INS

memorandum estimating “greater than one million” people “will

file”); J.A. 642 (“potentially millions”); see 67 No. 8 Interpreter

Releases 206 (“no more than 250,000”); Tim Schreiner, INS Re-

verses Policy That Split Alien Families, S.F. Chron., Feb. 3, 1990,

at Al5 (“more than 100,000 people” estimated to file); see also

Paul Anderson, New Policy on Illegal Immigrants, Phila. Inquir-

er, Feb. 3, 1990, at Al0 (it “may run to a million”).

ings Before the Subcomm. on Immigration, Refugees,

and International Law of the House Comm. on the

Judiciary, 101st Cong., 2d Sess. Pt. 2, at 49, 56 (1990).

The estimated undocumented population in 1990 was

3.5 million. Office of Policy & Planning, Estimates of

the Unauthorized Immigrant Population Residing in

the United States: 1990 to 2000, at 10 (2003).

Congress responded by ratifying the Family Fair-

ness program and by providing for an even broader

group to obtain lawful status beginning one year

thereafter. Immigration Act of 1990 (IMMACT), Pub.

L. No. 101-649, Tit. III, § 301(g), 104 Stat. 5030. Con-

gress stated that this one-year delay “shall not be

construed as reflecting a Congressional belief that the

existing family fairness program should be modified in

any way before such date.” /bid.

The IMMACT simultaneously made several

amendments to IRCA’s key provision on work author-

ization, 8 U.S.C. 1324a. Tit. V, §§ 521(a), 538, 104

Stat. 5053, 5056. But Congress did not modify the

provision recognizing that “the Attorney Genera)”

could “authorize[{]” aliens to be lawfully employed—

even in response to the INS’s policy that could have

extended work authorization to a large proportion of

the total undocumented population. 8 U.S.C.

1324a(h)(3). It is well-settled that “when Congress

revisits a statute giving rise to a longstanding admin-

istrative interpretation without pertinent change, the

congressional failure to revise or repeal the agency’s

interpretation is persuasive evidence that the inter-

pretation is the one intended by Congress.” Sebelius

v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 827-828

(2013) (citation omitted).

5. Deferred-action statutes

Since the IMMACT, Congress has enacted a series

of statutes acknowledging DHS'’s authority to defer

action and authorize work for aliens in defined catego-

ries. For example, in the REAL ID Act of 2005, Con-

gress permitted participating States to issue driver's

licenses to aliens with “approved deferred action sta-

tus.” 49 U.S.C. 30301 note. In 2000, Congress simi-

larly made two additional categories of aliens eligible

for deferred action. See Victims of Trafficking and

Violence Protection Act of 2000 (VTVPA), Pub. L. No.

106-386, Tit. V, § 15038(d)(2)(D)(i)IT) and (IV), 114

Stat. 1522. Those statutes did not purport to create,

define, or constrain the category of “deferred action.”

Rather, they presuppose existing authority for de-

ferred action and (in the VTVPA) direct that the Sec-

retary consider exercising that preexisting authority

in the identified types of cases. See USA PATRIOT

Act § 423(b), 115 Stat. 361 (certain aliens “may be

eligible for deferred action and work authorization”).

A similar ratification occurred in 2008. In 2001, the

INS had instituted a policy to use “[e)xisting authori-

ty,” including “deferred action,” to forbear from re-

moving individual aliens who could make a bona fide

showing of eligibility for nonimmigrant T and U visas

under 8 U.S.C. 1101(a)(15)(T) and (U) as victims of

human trafficking and other crimes, but who did not

have any lawful status. J.A. 232. In 2008, Congress

ratified (and expanded) that policy. See 8 U.S.C.

1227(d)(1). Congress authorized DHS to grant admin-

istrative stays of removal to aliens covered by this

same policy, and further provided that the denial of a

request for a stay would not “preclude the alien from

applying for * * * deferred action.” 8 U.S.C.

1227(d)(2).

These statutes powerfully support the Guidance.

Congress’s decisions to encourage the Secretary to

accord “deferred action” for more categories of aliens,

to validate under federal law the issuance of driver's

licenses to aliens with deferred action, and to ratify an

existing deferred-action policy targeting a defined

category, “highlight Congress’s continued acceptance”

of this “flexible and discretionary” practice. Pet. App.

150a (King, J., dissenting).

6. The DREAM Act, DACA, and DAPA

In 2012, following Congress’s failure to enact the

DREAM Act of 2010, H.R. 5281, 111th Cong., 2d Sess.

(2010), which would have created a lawful status for

undocumented aliens who came here as children, ibid.,

DHS announced the original DACA policy. DACA did

not confer lawful status, but instead took the familiar

and more modest course of deferring enforcement

action for such aliens, as a matter of discretion, with

concomitant work authorization. See J.A. 102-106. An

estimated 1.4 million aliens were eligible under this

policy. J.A. 176-177. DHS reports that, through Sep-

tember 2015, more than 836,000 initial requests were

received, of which 787,855 were accepted and 699,832

were granted. USCIS, Number of 1-821D, Considera-

tion of Deferred Action for Childhood Arrivals by

Fiscal Year, Quarter, Intake, Biometrics, and Case

Status: 2012-2015 (Sept. 30, 2015). This suit does not

challenge the original DACA policy. See Crane v.

Johnson, 783 F.3d 244, 247 (5th Cir. 2015) (dismissing

Mississippi challenge to that policy for lack of stand-

ing).

Congress has considered a series of bills that would

bar implementation of DACA (and later DAPA) or

block funding unless they are rescinded, and that

would limit the Secretary's authority to grant work

authorization. E.g., H.R. 5759, 113th Cong., 2d. Sess.

(2014). None has passed both the House and Senate,

much less become law. After much debate, Congress

instead has enacted two appropriations bills that fund

DHS—leaving DACA and DHS'’s deferred action and

work-authorization authority untouched. 2016 Appro-

priations Act 256; 2015 Appropriations Act, 129 Stat.

42.

In sum, decades of law, practice and dialogue be-

tween the Executive and Congress confirm that the

Guidance is lawful. It is no different in kind from

more than 20 policies issued over the last 50 years,

targeting large groups of aliens; this kind of exercise

of enforcement discretion has been tied to work au-

thorization since at least the early 1970s; formal regu-

lations have embodied that practice since 1981; Con-

gress has ratified DHS’s longstanding view that it can

exercise discretion via deferred action, and can au-

thorize aliens to work lawfully; and Congress has

encouraged the Secretary to accord deferred action

for more categories of aliens, validated the issuance of

driver’s licenses to aliens with deferred action, and

ratified an existing deferred-action policy targeting a

defined category.

C. Respondents’ Counterarguments Lack Merit

Respondents argue (Br. in Opp. 31-37) that the

Guidance is unlawful because, in their view, (1) the

Secretary lacks statutory authority to accord deferred

action for any category of aliens not specifically iden-

tified as eligible in the INA itself; and (2) the poten-

tially eligible population under the Guidance is simply

too large to be permitted absent congressional author-

ity. As the lengthy historical discussion shows, how-

ever, these arguments dramatically understate the

scope of authority the INA confers.

1. The court of appeals held (Pet. App. 70a-71a)

that Congress had “directly addressed the precise

question” here and foreclosed DHS from adopting a

deferred-action policy for the categories of aliens

eligible under the Guidance. The court did not, how-

ever, identify any express statutory provision barring

DHS from exercising its discretion in this manner.

Instead, the court inferred such a bar from the fact

that the INA expressly identifies certain categories of

aliens as eligible for deferred action, but does not

include children who arrived here as minors or par-

ents of U.S. citizens or lawful permanent residents.

See id. at 7la-72a.

That is an untenable reading of the INA. Deferred

action and similar discretionary practices that DHS

and the INS before it have repeatedly followed do not

have their source in pinpoint grants of authority by

Congress. They have always been, and have always

been understood to be, exercises of the general vest-

ing power that Congress bestowed in Section 1103—as

the history recounted above conclusively establishes.

The statutes to which the court of appeals pointed do

not create authority to use deferred action; they pre-

suppose its existence and instruct DHS to consider

the specified aliens as eligible for that form of discre-

tion.

The court of appeals purported (Pet. App. 7la-74a)

to find confirmation of its atextual and ahistorical

reading of the INA in the fact that parents of U.S.

citizens or lawful permanent residents would obtain

deferred action under the Guidance without having to

meet the INA’s more stringent requirements for ob-

taining lawful permanent resident status through

cancellation of removal or by adjusting status. See 8

U.S.C. 1229b, 1255. But that reasoning is fundamen-

tally flawed. Those statutory provisions are categori-

cally different because they confer lawful status and

do not merely defer enforcement: Aliens who receive

cancellation of removal or otherwise become lawful

permanent residents are no longer removable. /bid.

By contrast, the Guidance does not create a new law-

ful status; it involves an exercise of discretion to for-

bear from enforcement against an alien who remains

removable. See pp. 37-39, supra. That exercise of

discretion is perfectly consistent with the INA. In-

deed, the INA’s family-unity provisions support the

DAPA policy because it covers people who will become

“immediate relatives” when their children become

adult U.S. citizens. See p. 46, supra.

2. Echoing the court of appeals, respondents insist

(Br. in Opp. 32) that the number of aliens who are

potentially eligible under the Guidance is simply too

large to be justified under existing statutory authori-

ty. DAPA could reach approximately four million

parents, Pet. App. 5a-6a, which is larger than the

potentially eligible group under any prior similar

policy, J.A. 95-97. (The number of people who would

actually request or obtain deferred action is un-

known.) But respondents do not dispute that the

Secretary has discretion to establish policies for for-

bearing from removing every single person who is

potentially eligible under the Guidance—and indeed

for forbearing from removing the larger number of

aliens who he has determined are not enforcement

priorities. E#.g., Pet. App. 44a. The Secretary thus

has ample authority to notify these lowest-priority

aliens that he has made a non-binding decision not to

remove them for a period of time.

The real focus of respondents’ legal objection is not

deferred action itself, but the availability of work

authorization as a result. They assert (Br. in Opp. 24-

25) that Section 1324a(h)(3) cannot justify work au-

thorization on this scale, because it is a mere “defini-

tional provision.” But respondents focus on the wrong

provision. Section 1324a(h)(3) did not create the Sec-

retary’s authority to authorize work; that authority

already existed in Section 1103(a), the vesting clause

that gives the Secretary sweeping authority to admin-

ister the INA and to exercise discretion in numerous

respects. Section 1324a(h)(3) was enacted decades

later. It both ratifies and independently supports the

Secretary’s longstanding position that he can “author-

ize[]” aliens to be lawfully employed as a component of

the exercise of his discretion. 8 U.S.C. 1°24a(h)(3);

see 52 Fed. Reg. at 46,093 (formally adopting that

interpretation of Section 1324a(h)(3)).

The number of people who could obtain work au-

thorization because of the Guidance is also not dispro-

portionate to past exercises of the same authority.

Many aliens may obtain work authorization as a mat-

ter of the Secretary’s discretion, without specific

statutory authorization, including via 8 C.F.R.

274a.12(a)(6), (9), (11), (¢)(3), (5)-(7), (9)-(11), (14), (16)-

(17), (21), and (25). DHS reports indicate that, from

2008 through 2014, it granted nearly 5.5 million initial

applications and renewals for work authorization to

aliens in these categories, averaging approximately

750,000 per year. USCIS, /-765 Approvals, Denials,

Pending by Class Preference and Reason for Filing

(Feb. 6, 2015)."* Many of these aliens lack lawful sta-

tus, e.g., 8 C.F.R. 274a.12(a)(11) (aliens with deferred

enforced departure); 8 C.F.R. 274a.12(c)(9) (applicants

for adjustment of status), and may indeed be in re-

moval proceedings, e.g., 8 C.F.R. 274a.12(c)(10) (appli-

cants for cancellation of removal).

Notably, at least since the early 1970s, every policy

similar to the Guidance has made aliens eligible for

work authorization. See pp. 48-53, supra. The Nica-

raguans, Chinese, and Salvadorans who were afforded

discretionary relief by the tens or hundreds of thou-

sands were eligible for work authorization. /bid. The

1990 Family Fairness policy—adopted shortly after

Congress enacted IRCA—led to work authorization

and targeted as many as 1.5 million people, about 40%

of the undocumented population at the time. See pp.

55-57, supra. Notably, Congress responded by enact-

ing a statutory program with broader relief, while

endorsing that policy’s ongoing operation for a year.

Ibid. And although Congress at that time made other

changes to Section 1324a, Congress has never

changed its provision that “the Attorney General”

may “authoriz[e]” aliens to be lawfully employed.

Ibid. Respondents are unable to explain how those

prior grants of work authorization were lawful, de-

spite their considerable scope, while those under the

Guidance are not.

'* Eligibility codes correspond to sections of 8 C.F.R. 274a.12.

Ill. THE GUIDANCE IS EXEMPT FROM NOTICE-AND-

COMMENT RULEMAKING REQUIREMENTS

A. The Guidance Is A General Statement Of Policy Con-

cerning How DHS Will Exercise Its Discretion To De-

fer Action

The Guidance is exempt from the APA’s notice-

and-comment requirements because it is a general

statement of policy regarding how DHS will exercise

its enforcement discretion under the INA. The APA

generally requires an agency to follow notice-and-

comment procedures before promulgating rules. 5

U.S.C. 553(b) and (c); Perez v. Mortgage Bankers

Ass’n, 135 8. Ct. 1199, 1203 (2015). But the APA ex-

empts “general statements of policy” from that re-

quirement unless another statute provides otherwise,

5 U.S.C. 553(b)(3)(A), and none does here.

1. General statements of policy “advise the public

prospectively of the manner in which the agency pro-

poses to exercise a discretionary power.” Vigil, 508

U.S. at 197 (quoting Dep't of Justice, Attorney Gen-

eral’s Manual on the Administrative Procedure Act

30 n.3 (1947)). By contrast, legislative rules adopted

through notice-and-comment procedures have the

force and effect of law, and thus create legally-

enforceable rights or obligations in regulated parties.

Perez, 135 S. Ct. at 1203; Chrysler Corp. v. Brown,

441 U.S. 281, 302 (1979); Morton v. Ruiz, 415 U.S. 199,

232, 236 (1974). The APA leaves to the agency the

choice of which mode to employ. See 5 U.S.C. 553(b);

ef. SEC v. Chenery Corp., 332 U.S. 194, 209 (1947). If

an agency chooses to issue a statement of policy ra-

ther than a legislative rule through notice-and-

comment rulemaking, that choice has consequences:

the agency’s statements in the policy have “no binding

effect on members of the public or on courts.” 1 Rich-

ard J. Pierce, Jr., Administrative Law Treatise § 6.3,

at 419 (5th ed. 2010) (Pierce).

The quintessential use of policy statements is for

an agency to announce how and when it will pursue (or

forbear irom) enforcement, in the exercise of its dis-

cretion. Like the statement of policy for the allocation

of a lump-sum appropriation in Vigil, such enforce-

ment policies explain how the agency intends to exer-

cise a power that is “generally committed to an agen-

cy’s absolute discretion.” Heckler, 470 U.S. at 831.

Unlike legislative rules adopted after notice-and-

comment, such enforcement policies do not establish

or alter any legally-enforceable rights or obligations

of third parties. And such policies can be readily

changed, in response to changing circumstances, fund-

ing, and priorities.

In light of these principles, the Guidance is exempt

from notice-and-comment requirements. Like every

deferred-action or similar policy DHS or the INS has

ever issued, the Secretary issued the Guidance as a

statement of policy without following notice-and-

comment procedures. Pet. App. 41la-412a. Its text

reinforces the point again and again. It is a “memo-

randum.” /bid. It states that it “is intended to reflect

new policies for the use of deferred action” and “is an

exercise of thf{e] authority” to “set forth policy for the

exercise of prosecutorial discretion and deferred ac-

tion within the framework of existing law.” /d.

at 412a, 419a (emphases added). It explains that

“(djeferred action is a form of prosecutorial discre-

tion” and it “confers no substantive right,” “does not

confer any form of legal status in this country, much

less citizenship,” and “may be terminated at any time

at the agency’s discretion.” /d. at 413a, 419a. And no

alien has an enforceable right to obtain deferred ac-

tion under this or any other policy. See 8 U.S.C.

1252(g); AADC, 525 U.S. at 485.

The Secretary remains free to modify or revoke the

Guidance, in his discretion; to establish (or revoke)

other deferred-action policies, in his discretion; to

grant (or deny) deferred action as to any individual

under this policy, other policies, or under no policy at

all, in his discretion; to revoke a grant of deferred

action, in his discretion; and to pursue removal, in his

discretion. The Guidance thus does not bind regulated

parties or the courts in any way.”

2. Nor does the Guidance change the consequences

of deferred action, so it is not a policy regarding them.

But even if it were appropriate to look past deferred

action itself, those consequences—including work

authorization—also are aspects of the Secretary’s

discretionary authority under the INA. Accordingly,

the Secretary may use statements of policy to “advise

the public prospectively of the manner in which [DHS]

proposes to exercise [its] discretionary power” with

respect to those consequences. Vigil, 508 U.S. at 197

(citations omitted). The INS issued statements of

policy concerning work authorization for years before

codifying its existing practices into regulations. See

pp. 50-53, supra. And DHS has issued many state-

ments of policy concerning deferred action and similar

‘Ss Furthermore, deferred action involves forbearance and thus is

inherently non-coercive, and the Guidance does not announce any

new norm for primary conduct. The criteria are backward-looking

and immutable (e.g., the alien must have entered the country by

January 1, 2010), or mirror preexisting legal norms (e.g., not to

commit crimes). Pet. App. 417a.

forms of discretion that resulted in work authoriza-

tion. Ibid. Not one was adopted through notice-and-

comment procedures.

In any event, the rule that individuals with de-

ferred action may request work authorization based

on economic need has already been adopted through

notice-and-comment rulemaking. The INS followed

notice-and-comment procedures in 1981 when first

promulgating those regulations, 46 Fed. Reg.

at 25,080, and did so again after Congress enacted

IRCA, 52 Fed. Reg. at 16,228. The rules that lift the

barrier for a non-qualified alien to participate in So-

cial Security retirement and disability (and Medicare)

have similarly been issued through notice-and-

comment rulemaking. See 76 Fed. Reg. 53,764 (Aug.

29, 2011); 61 Fed. Reg. 47,039 (Sept. 6, 1996); see also

80 Fed. Reg. 7912 (Feb. 12, 2015)."°

B. The Guidance Is Not Impermissibly “Binding”

The court of appeals held (Pet. App. 53a-69a) that

notice-and-comment procedures were required be-

cause the Guidance supposedly denies individual DHS

agents the leeway to reject deferred action for case-

specific reasons when the stated criteria are satisfied.

Id. at 64a. That contention is legally irrelevant, and at

best premature.

1. Congress has vested the Secretary himself with

discretion to administer the INA, including its remov-

policy that deferred action tolls the accrual of “unlawful presence.”

See note 3, supra. That policy interprets 8 U.S.C. 1182(aX9)B),

does not bind any regulated party or court in any way, and merely

addresses DHS’s internal computation of time. That policy is also

largely irrelevant here. See note 8, supra.

al provisions, see 8 U.S.C. 1103(a), and to “{e]s-

tablish[] national immigration enforcement policies,” 6

U.S.C. 202(5). Subordinate DHS agents exercise only

the authority the Secretary has delegated to them.

See 8 U.S.C. 1103(a)(5); 8 C.F-R. 2.1. The Secretary’s

choice to define criteria for deferring action thus itself

reflects his exercise of the discretion that the INA

vests in him.

Under the APA, it is irrelevant whether a state-

ment of policy regarding the exercise of enforcement

discretion also allows rank-and-file agents to be more

aggressive in enforcement for case-specific reasons. A

blanket policy is still a “policy.” See Black’s Law

Dictionary 1345 (10th ed. 2014) (“[PJolicy” means “{a]

standard course of action that has been officially es-

tablished by an organization.”); Webster’s New Inter-

national Dictionary 1908 (2d ed. 1958) (“{a]} settled or

definite course or method adopted and followed by a

government”). If anything, a policy that does not

allow rank-and-file agents to be more aggressive is

more clearly a “general” statement of policy because

it advises the public of the manner in which the entire

agency will exercise its discretion. The public need

not guess about the idiosyncratic behavior of individu-

al agents; the “course of action” is more “settled” and

is actually “followed” agency-wide.

A contrary rule would undermine senior execu-

tives’ ability to control the Executive Branch. See

U.S. Const. Art. II, § 1 (“The executive Power shall be

vested in a President of the United States of Ameri-

ea.”). The Secretary is responsible for “[eJstablishing

national immigration enforcement policies and priori-

ties.” 6 U.S.C. 202(5). But the Secretary cannot set

national policies without also exercising his authority

to “control, direct{], and supervis{e}” his subordinates.

8 U.S.C. 1103(a)(2). DHS must exercise discretion in

millions of situations each year. The Secretary thus

must have the ability, if he so chooses, to direct rank-

and-file agents to exercise authority he delegated to

them in the manner he concludes is most appropriate.

For decades, the INS and DHS have announced

policies—without undertaking notice and comment—

that used stated criteria while leaving little or no room

for rank-and-file agents to take a different enforce-

ment stance for case-specific reasons. For example,

the 1989 and 1990 policies for providing “deferred

enforced departure” to certain Chinese nationals did

not permit case-by-case deviation. See Recent Devel-

opments, 66 No. 47 Interpreter Releases 1361, 1363

(Dec. 11, 1989) (“[W]e’ll protect everyone.”); see also

43 Fed. Reg. 2776 (Jan. 19, 1978) (notice that certain

nurses “shall” be granted extended voluntary depar-

ture, without mention of case-specific deviation).

More broadly, senior prosecutors often set a

bright-line policy with little or no room for individual

prosecutors to proceed if the policy provides other-

wise. For example, the “passive enforcement” policy

in Wayte did not permit individual prosecutors to

adopt an “active enforcement” stance. See 470 U.S.

at 601-602, 613. The Department of Justice’s “Petite

Policy” generally precludes federal prosecution “fol-

lowing a prior state or federal prosecution based on

substantially the same act(s) or transaction(s) unless

three substantive prerequisites are satisfied.” Dep't

of Justice, United States Attorneys’ Manual § 9-

2031(1) (2016). And senior prosecutors have estab-

lished blanket policies against charging drug posses-

sion below weight thresholds (and theft below dollar

thresholds). Dep’t of Justice, United States Attor-

neys’ Written Guidelines for the Declination of Al-

leged Violations of Federal Criminal Laws: A Report

to the United States Congress 6-10, 22-24 (1979). If

enforcement policies lacking an additional layer of

case-specific discretion triggered notice-and-comment

requirements, all of those policies would be unlawful.

Prohibiting senior officials from announcing poli-

cies that bind rank-and-file agents, without first fol-

lowing notice-and-comment procedures, also “would

create horrible incentives.” Pierce 424. “If agencies

are allowed to establish policies that limit the discre-

tion of their employees only through use of the expen-

sive and time-consuming notice and comment proce-

dure, they rarely will choose to limit the discretion of

their employees charged with enforcement and prose-

cutorial responsibilities.” Jbid. “Alternatively, they

will refuse to disclose those limits to the public.” Jbid.

Either way, “neither affected members of the public

nor politically accountable government officials would

be able to predict the actions of those employees or to

know what policies an agency is attempting to imple-

ment.” Ibid.

2. Even if “general statements of policy” had to

permit rank-and-file agents to adopt a more aggres-

sive stance for case-specific reasons, the Guidance is

still valid because it permits such discretion. The

Guidance provides that agents cannot defer action

under DAPA for a particular individual who otherwise

meets the specified criteria, without determining that

a request “present(s] no other factors that, in the

exercise of discretion, make[] the grant of deferred

action inappropriate.” Pet. App. 417a; e.g., J.A. 548-

549 (discussing examples of discretionary rejections

under DACA based on arrest records or suspected

gang affiliations).

The court of appeals dismissed (Pet. App. 55a-64a)

DAPA’s express requirements as pretext, based on the

district court’s finding that DHS approves the vast

majority of requests under a different policy (the

ongoing DACA policy). But a legal conclusion that the

Guidance forecloses discretion does not follow from

the district court’s findings: Among other things, the

rate at which DHS approves requests, for example,

sheds little light on the existence of discretion to deny

them because a self-selection bias skews the numbers.

Individuals who have strong equities weighing against

deferred action are unlikely to request deferred action

in the first place. /d. at 136a-137a (King, J., dissent-

ing).

More fundamentally, DHS has never implemented

DAPA and there is no sound basis for concluding that

it will do so in a way that eliminates the additional

layer of discretion it specifies. “The presumption of

regularity supports the[] prosecutorial decisions” of

Executive Branch agencies, “and, in the absence of

clear evidence to the contrary, courts presume that

they have properly discharged their official duties.”

United States v. Armstrong, 517 U.S. 456, 464 (1996)

(citation and internal quotation marks omitted). Ari-

zona in turn underscores that when a facial challenge

is brought to a sovereign’s law-enforcement policy

“even before [it] has gone into effect,” and the policy

could be implemented in some ways that are unlawful

but other ways that “avoid these concerns,” it is inap-

propriate to enjoin the policy on the assumption that

the sovereign will act unlawfully. 132 S. Ct. at 2509-

2510. The proper time for such a challenge is instead

“after [the policy] goes into effect.” Jd. at 2510.

IV. THE TAKE CARE CLAUSE PROVIDES NO BASIS

FOR RELIEF

1. In a single paragraph in their brief in opposi-

tion, respondents assert that the Guidance violates the

Take Care Clause, Art. II, § 3, because it is “incom-

patible with the express or implied will of Congress.”

Br. in Opp. 37 (quoting Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., con-

curring in the judgment)). That assertion collapses

into their argument that the Guidance exceeds the

Secretary’s statutory authority under the INA. As

demonstrated above, however, the Guidance—far

from being incompatible with the INA—is firmly

supported by its text and structure, foundational prin-

ciples concerning the exercise of enforcement discre-

tion, and a long history, ratified by Congress, of the

Secretary’s exercising such discretion and issuing

work authorization.

Even if respondents had sought to raise an inde-

pendent constitutional argument, however, the Take

Care Clause would furnish no basis for affirmative

relief in an Article III court. For the Judicial Branch

to undertake such an inquiry would express a “lack of

the respect due” to the Nation’s highest elected offi-

cial, Baker v. Carr, 369 U.S. 186, 217 (1962), by assum-

ing judicial superintendence over the exercise of Ex-

ecutive power that the Clause commits to the Presi-

dent. Indeed, this Court has recognized that “the duty

of the President in the exercise of the power to see

that the laws are faithfully executed” “is purely execu-

tive and political,” and not subject to judicial direc-

tion. Mississippi v. Johnson, 71 U.S. (4 Wall.) 475,

499 (1867).

No court has ever taken that step, and there is no

basis for entering those uncharted constitutional wa-

ters here. Respondents have no cause of action to

raise such a claim, because neither the APA nor the

Take Care Clause itself furnishes a right to sue to

challenge the President’s action or inaction. See

Franklin v. Massachusetts, 505 U.S. 788, 796 (1992);

ef. Armstrong v. Exceptional Child Ctr., Inc., 135

S. Ct. 1378, 1383-1384 (2015)."" And if, contrary to

our submission, this Court were to reach the merits of

respondents’ statutory challenges and find the Guid-

ance unlawful on those grounds, there of course would

be no reason even to consider any claim that the Guid-

ance is unlawful under the Take Care Clause.

2. In any event, the Secretary is faithfully—and

vigorously—executing the immigration laws, fully

utilizing DHS’s appropriations for enforcement and

removing hundreds of thousands of aliens each year.

See pp. 3-4, supra. Consistent with Congress’s direc-

tion, the Secretary has directed DHS to focus its lim-

ited resources on border enforcement and removing

serious criminals. For example, 70% of the aliens ICE

removed in fiscal year 2015 were apprehended at or

near the border; 59% of the total were convicted crim-

inals. DHS, ICE Enforcement and Removal Opera-

‘ In rendering an opinion that the Guidance is lawful, the Office

of Legal Counsel (OLC) addressed considerations it concluded

were relevant to the Executive’s exercise of judgment under the

Take Care Clause. J.A. 39-101. But the fact that OLC addressed

those considerations in advising the Head of another Executive

Department, see 28 U.S.C. 511, 512; ef. U.S. Const. Art. II, § 2,

does not mean that they are enforceable in the courts.

tions Report: Fiscal Year 2015, at 8 (Dec. 22, 2015).

The Guidance is intended to enable DHS to focus even

more resources on removing serious criminals and

policing the border, by expending fewer resources in

encounters with the lowest priority aliens. See p. 44,

supra. It provides a measure of repose to the people

who are the lowest priority for removal, have particu-

larly strong ties to this country, and whose removal

would come at serious human cost. And in accordance

with longstanding statutes, regulations, and practice,

it provides for work authorization to enable the indi-

viduals whose presence is countenanced to work on

the books, be self-sufficient, and avoid undermining

protections for American workers during that period.

The exercise of discretion to take into account re-

source constraints, humanitarian concerns, and other

equities as part of a broader enforcement strategy is

not a violation of the Take Care Clause—it is a vital

component of the faithful execution of the laws. See

Heckler, 470 U.S. at 832; Community for Creative

Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir.

1986) (Bork, J.) (“The power to decide when to inves-

tigate, and when to prosecute, lies at the core of the

Executive’s duty to see to the faithful execution of the

laws.”). That is particularly true for immigration,

where “flexibility and the adaptation of the congres-

sional policy to infinitely variable conditions constitute

the essence of the program,” Knauff, 338 U.S. at 543

(citation omitted), and funding limits require the exer-

cise of discretion on a vast scale. Before the Secretary

issued the Guidance, OLC concluded in a lengthy

opinion that it would constitute a lawful exercise of his

discretion. J.A. 39-101. But even if the Court were to

conclude otherwise, that would scarcely suggest that

the Secretary has not been “faithful” in carrying out

the weighty and complex task of administering and

enforcing the INA.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

DONALD B. VERRILLI, JR.

Solicitor General

BENJAMIN C, MIZER

Principal y Assistant

Attorney General

IAN HEATH GERSHENGORN

EDWIN S. KNEEDLER

Deputy Solicitors General

BETH S. BRINKMANN

— Assistant Attorney

eneral

ZACHARY D. TRIPP

Assistant to the Solicitor

General

DOUGLAS N. LETTER

STEVAN E. BUNNELL Scott R. MCINTOSH

General Counsel JEFFREY CLAIR

U.S. Department of WILLIAM E. HAVEMANN

Homeland Security Attorneys

MARCH 2016

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