# Petitioners Brief — United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 2016 ## Text No. 15-674 In the Supreme Court of the Gnited States UNITED STATES OF AMERICA, ET AL., PETITIONERS v. 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) 7 = i | ta ~ | ? Siac seg ¥ 5 i : 2%, 4 — 7 : bao _— - 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]) IV 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 IX 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: X 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 XI Statutes and regulations—Continued: Page © TE, GD cnrenecsevneveiccnvsnensewisteitaniciininsniigeeans Reena 2 © Eas BIE vciiccieseniciatounbnetsiiecnicnatuiinimesuniniccmns 2, 4, 21, 42, 69 © Eek: BIS UD wtcsnncnncocsnensnnseseniusinintencsisiinaidellcmestadiaaa aan 2 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 © ET.. SED ceecescnsocniccnvisiensiciiisnrniniisiiiatnimuammiece sane mane 9 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): XV 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 v. 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) 2 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. 3 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- 4 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. 5 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 6 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. 7 107-56, § 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 8 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 3) 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). 10 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 11 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. 12 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. 13 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- 14 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- 15 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 16 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- 17 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. 18 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 19 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. 20 !. 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- 21 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 22 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. 23 162-166 (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). 24 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 25 (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 26 (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. 27 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 28 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 29 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- 30 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. 31 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. 32 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 33 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 34 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.”). 35 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 36 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- 37 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 38 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 39 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). 40 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- 41 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. 42 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 43 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 A 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). 45 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 46 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, 47 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. 48 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- 49 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). 50 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). 51 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). 52 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. 53 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 54 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. 55 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 Commissi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A17. Public record. Not legal advice.