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

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APR 11 20%

No. 15-674 OFFICE OF THE Lm

IN THE

Supreme Court of the Gnited States

UNITED STATES OF AMERICA, ET AL..,

Petitioners,

Vv.

STATE OF TEXAS, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

REPLY BRIEF FOR INTERVENORS-

RESPONDENTS JANE DOES

ADAM P. KOHSWEENEY THOMAS A. SAENZ

GABRIEL MARKOFF NINA PERALES

WARD A. PENFOLD (Counsel of Record)

SAMUEL WILSON MEXICAN AMERICAN LEGAL

MALLORY JENSEN DEFENSE AND EDUCATIONAL

JUAN CAMILO MENDEZ FUND

REMI MONCEL 110 Broadway, Ste. 300

O"MELVENY & MYERS LLP San Antonio, TX 78205

Two Embarcadero Center (210) 224-5476

San Francisco, CA 94111 nperales@ maldef.org

DARCY M. MEALS LINDA J. SMITH

JEREMY R. GIRTON* DLA PIPER LLP

O'MELVENY & MYERS LLP 2000 Avenue of the Stars

Washington, DC 20006 Los Angeles, CA 90067

*Not yet admitted; supervised

by principals of the firm.

Attorneys for Intervenors- Respondents Jane Does

A.

C.

i

TABLE OF CONTENTS

Respondents Cannot Sue Because

The Guidance Does Not Affect

Their Sovereign Interests..............

The Alleged Financial Injuries Do

Not Meet The Requirements Of

Injury-In-Fact, Causation, Or

I is natnremmciesinnindvabe

Massachusetts v. EPA Is

SIN «1c sascsccateesuerbsguiiaiuiuenesnis

I]. RESPONDENTS’ APA CLAIMS FAIL

A.

“Lawful Presence” Is Not A Status

Or Classification Established By

oS FRESE AE RSE ae ae sen wee

The Guidance Is Not Reviewable

I I Bi Rinicsnccinevecsscesecesesssas

The Guidance Is A Non-Binding

Policy Statement Exempt From

Notice-And-Comment ....................

II]. RESPONDENTS CANNOT ASSERT

A CLAIM UNDER THE TAKE CARE

vom 12

PT iin ntntinhiniitannpiniiemertncamapiisnpiasearcatinens 24

rf)

TABLE OF AUTHORITIES

CASES

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

Rico,

GD Cs Ee CRIN kecniscecscesssccsesevscnccnssssees

Appalachian Power Co. v. EPA,

208 F.3d 1015 (D.C. Cir. 2000)..................

Arizona Christian Sch. Tuition Org. v.

Winn,

uk fT: } | eer een

Arizona v. United States,

oe ee. ee

Arpaio v. Obama,

797 F.3d 11 (D.C. Cir. 2015) .............00000

Arizona Dream Act Coalition v. Brewer,

2016 WL 1358378 (9th Cir. Apr. 5,

Baylor Univ. Med. Ctr. v. Heckler,

758 F.2d 1052 (5th Cir. 1985) ................++.

Bob Jones Univ. v. United States,

ey Te CD Benescnecescsnenieintosinnisswienes

Chrysler Corp. v. Brown,

GEE TE, ee CRT OD cocssscenenescsveazvesscnesccssaese

Clapper v. Amnesty Int'l USA,

RSS T. Ch, BE GGG ccvesiviesovesccsscesscsoesses

Crawford v. Marion Cnty. Election Bd.,

Be SF WURO GI vcr etnstcessccmncanscennssooesees

Page(s)

saninalendes 23

ill

TABLE OF AUTHORITIES

(continued)

Page(s)

Heckler v. Chaney,

ye bik St eee ete 15, 16, 17

Mada-Luna v. Fitzpatrick,

SERA GG. f To 1; er eens 23

Massachusetts v. EPA,

yi EAE EE te 9, 10, 11

Perez v. Mortgage Bankers Ass'n,

t F ie SB). |. | RTRs A 23

Pub. Citizen v. Dep't of State,

S76 F.3G C34 GD.C. Car. BOGE) caseccccvcscocesecsceccesssecs 23

Pub. Citizen, Inc. v. Nuclear Regulatory

Comm'n,

fs fy, fi lome A: | ee = 21

Reno v. American-Arab Anti-

Discrimination Comm..,

ds Ee Beer 13, 15, 16

Sure-Tan, Inc. v. NLRB,

Yc gek & f. Reece wren eRe S 3

Valley Forge Christian Coll. v.

Americans United for Separation of

Church & State,

SG GE ee Ce wie hcsninidsticcdeitnsnnichstvercseseesindadinn 2

Vermont Yankee Nuclear Power Corp. v.

Nat. Res. Def. Council, Inc.,

00 0. WU II ooo ciettnetracsnrttccet 23

Wyoming v. Dep't of Interior,

O74 FD TBD CRG Cae, DEED csisncaseisecnsssccestivccses 4

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Youngstown Sheet & Tube Co. v.

Sawyer,

oid lcasccniusenenensatencousonte 24

Zivotofsky ex rel. Zivotofsky v. Clinton,

EE bce nnisvenahedubeonnsavensevenscncesnonece 24

CONSTITUTIONAL PROVISIONS AND STATUTES

io ian rcreipasupanenatsneunennceosens 22

i scascrsndcransbennioniowses 17

Oe a. sssscesceseceanavsacessesens 15, 17

a aemensaesnensebenionens 10

EEN a 17

ee Oe IED cc scccocssexcceszsssccicessoveees 14, 20

IED oi cnnencadnnnvatsnccessnctenensenncces 13

OD Oe IT sscnsvosncncetsonsaverennscocsooscoes 14

Eee 19

oii esnnteecsiceiinnsinbsitnedeannensen 14, 20

ES 14, 20

cassis awnnninsbineicontaanacadads 14, 20

a ladisenmmennnssiennnems 10

REGULATORY MATERIALS

oes cisisasidiaidsasanansansaanansanen 20

ian ciscttnicdenininnnsagniies 20

I se eiariesintilninn 19

Vv

TABLE OF AUTHORITIES

(continued)

28 C.F.R. § 1100.35 (b)(2) .o..cccccccccceseceeseoveveees

yt 2 EF * eee

46 Fed. Reg. 25,079 (1981)......ccccccccceceeseeeeees

OTHER AUTHORITIES

13B Charles A. Wright et al., Federal

Practice & Procedure

§ 3531.11.1 & nn.4-5 (3d ed. 2008) ...........

Tex. Dep't of Pub. Safety, Driver

License Division,

https://www.txdps.state.tx.us/DriverL

ee ec aeaaamasiaoiae

Tex. Dep't of Pub. Safety, Operating

Budget for Fiscal Year 2014,

I].A.2, IT1.A.38, I'V.D.5 (Dec. 1, 2013),

https://www.dps.texas.gov/LBB/opera

i uiiiinceesensretwnnctticnstesintenesecsenses

l

INTRODUCTION

Respondents’ brief proves that their grievance is

a mere political dispute that does not belong in fed-

eral court. While they argue without support that

they can sue to enjoin the Executive's immigration

enforcement decisions based on incidental budgetary

costs, they fail to explain how those costs are actual

or imminent, certainly impending, or fairly traceable

to the Guidance. Moreover, their concessions negate

redressability and reveal the internal inconsistency

of their arguments.

Respondents now admit that the Secretary could

lawfully decline to remove every single immigrant

who meets the Guidance’s eligibility criteria—

including by affirmatively granting hypothetical!

“low-priority identification cards” on a class-wide ba-

sis. Resps.’ Br. 39 (quotation omitted). But the re-

lief they admit the Secretary can grant is no differ-

ent in effect from deferred action under the Guid-

ance, and it would also allow recipients to apply for

work authorization and benefits by operation of oth-

er laws. Pet. App. 413a. Being “lawfully present” in

this way does not mean that the non-citizen receives

an immigration status or classification, and it does

not bestow substantive rights or provide a defense to

removal. Pet. App. 419a. Rather, the phrase “law-

fully present,” which is not defined in the INA, is an

informa] term describing the condition necessarily

resulting either from having lawful immigration sta-

tus under the INA, or from being a removable non-

citizen whose presence is known to and temporarily

tolerated by the Secretary under the enforcement

discretion Respondents admit he possesses.

2

This admission concedes Respondents’ case.

Their alleged injuries are not redressable because,

while they speculate that enjoining the Guidance

will eliminate all costs allegedly resulting from

grants of deferred action, they admit the Secretary

could still defer removal for all DAPA-eligible immi-

grants even if the Guidance remains enjoined. Their

APA claims fail, because there is no difference be-

tween grants of deferred action under the Guidance

and the deferred removals Respondents admit are

lawful and unreviewable. Resps.’ Br. 39, 69.

Finally, Respondents’ admission forecloses their

purported claim under the Take Care Clause. Even

if the Clause allowed justiciable claims against the

Executive, the Guidance constitutes a faithful at-

tempt to enforce immigration law by channeling dis-

cretionary relief on a case-by-case basis to help en-

sure uniform enforcement, consistent with the prior-

ities set by Congress. Because Respondents concede

that such relief is lawful, their claims fail.

ARGUMENT

I. THERE IS NO STANDING

A. Respondents Cannot Sue Because The

Guidance Does Not Affect Their Sover-

eign Interests

Respondents ask the Judiciary to interfere with

the Executive’s enforcement of immigration law,

thereby violating the separation of powers. But fed-

eral court is not the “forum in which to air [one’s]

grievances about the conduct of government or the

allocation of power in the Federal System.” Valley

Forge Christian Coll. v. Americans United for Sepa-

ration of Church & State, 454 U.S. 464, 479 (1982).

3

Respondents have no sovereign interest in the en-

forcement of immigration law, Arizona v. United

States, 132 S. Ct. 2492, 2506-07 (2012); Sure-Tan,

Inc. v. NLRB, 467 U.S. 883, 897 (1984), and thus

may not use the federal courts to “usurp the powers

of the political branches.” Clapper v. Amnesty Int

USA, 133 S. Ct. 1138, 1146 (2013).

Respondents seek to avoid this bar with the pre-

text that they are actually “asserting an interest in

avoiding financial harm[.]” Resps.’ Br. 20-21. But

incidental costs to a State’s budget cannot give

standing to challenge the Executive’s conceded pow-

er over immigration enforcement. Arizona, 132 S.

Ct. at 2506-07; Does’ Cert. Br. 16-17. In their brief,

Respondents argue that a bare financial injury to a

State’s budget counts as an injury to “proprietary” or

“sovereign” interests giving standing to sue the

United States. Resps.’ Br. 21. Their only support for

this novel proposition—which would allow States to

sue the federal government in almost any situa-

tion—is a single treatise section confirming that

States have standing when their ownership interests

over State lands are implicated, or when a federal!

statute preempts State law. Resps.’ Br. 21 (citing

13B Charles A. Wright et al., Federal Practice &

Procedure § 3531.11.1 & nn.4-5 (3d ed. 2008)). The

single decision the treatise cites addressing a finan-

cial injury without more held that Wyoming lacked

standing to challenge a regulation that might inci-

dentally decrease its tax revenues and increase its

expenses, and the decision echoed concerns that a

State’s suit for mere budgetary harm presents “only

a generalized grievance and holding otherwise might

spark a wave of unwarranted litigation against the

4

federal government.” Wyoming v. Dep't of Interior,

674 F.3d 1220, 1231-36 (10th Cir. 2012) (original ty-

po corrected).

As Respondents’ former counsel (and current

amicus), then-Texas Attorney General Greg Abbott,

admitted four days after filing this suit, the asserted

financial harms are a mere pretext to invoke juris-

diction. Under questioning, counsel admitted that

“we're not suing for that economic harm. It’s the way

that Texas has been impacted that gives us stand-

ing. What we’re suing for is actually the greater

harm, and that is harm to the constitution by em-

powering the president of the United States to enact

legislation on his own without going through Con-

gress.” J.A. 268 (Dec. 7, 2014 interview) (emphasis

added). There could be no clearer expression of a

generalized grievance. The philosophical dispute

Texas has with the Executive does not provide

standing. !

' Respondents claim an interest in avoiding financial pres-

sure to change their driver’s-license fees, arguing that pressure

“to make a different and less desirable choice is itself a cog-

nizable injury.” Resps. Br. 22 (alterations omitted). This ar-

gument would convert every budgetary cost resulting from a

federal policy decision into a sovereign interest triggering

standing. Regardless, Respondents do not argue that the

Guidance preempts State law or otherwise prevents them from

charging applicants the actual costs of issuing driver's licenses.

Indeed, the Ninth Circuit recently refused to hold that the 2012

DACA initiative has preemptive effect. Arizona Dream Act Co-

alition v. Brewer, 2016 WL 1358378, at *12-14 (9th Cir. Apr. 5,

2016) (holding the JNA preempts a State executive order creat-

ing new immigration classifications).

5

B. The Alleged Financial Injuries Do Not

Meet The Requirements Of Injury-In-

Fact, Causation, Or Redressability

Even if an asserted financial injury to a State’s

budget could support standing without more, Re-

spondents’ particular allegations fail.

1. The Does’ opening brief explained why Texas’s

alleged costs of issuing driver’s licenses do not suffice

for standing. Does’ Br. 29-35. Respondents do not

attempt to rebut these points, instead arguing that

this Court must defer to the district court’s concluso-

ry statements about financial injury, made at the

preliminary injunction stage without the benefit of

an evidentiary hearing. Resps.’ Br. 19-20. But this

Court rigorously examines claims of standing based

on allegations of future harm, and Respondents’

claims simply do not measure up as a matter of law.

Clapper, 133 S. Ct. at 1147-51.

The district court’s conclusion that implementing

the Guidance would make Texas spend money—the

only injury it held sufficient for standing—is unsup-

ported. Without making factual findings, that court

concluded that “[iJf the majority of DAPA beneficiar-

ies currently residing in Texas apply for a driver's

license, it will cost the state $198.73 to process and

issue each license, for a net loss of $174.73 per li-

cense. Even if only 25,000 of these individuals apply

... Texas will still bear a net loss of $130.89 per li-

cense, with total losses in excess of several million

dollars.” Pet. App. 272a (citation omitted). Howev-

er, the only evidence supporting this conclusion is a

single, cursory declaration making vague “estimates”

about expenses Texas’s Department of Public Safety

6

(DPS) might incur to process an influx of applica-

tions. J.A. 380.

Critically, that declaration speculates there will

be a mass influx of DAPA applications, which the

history of Family Fairness shows is in no way guar-

anteed.2 Moreover, it does not claim that issuing a

license actually costs Texas a certain amount—a

claim that would be untenable since Texas makes a

profit in the ordinary course of business from the $25

license application fee. Tex. Dep't of Pub. Safety,

Operating Budget for Fiscal Year 2014, I1A.2,

I11.A.38, [V.D.5 (Dec. 1, 2013).5 Instead, without ex-

plaining how it arrived at these numbers or how

many applications a DPS employee can process in a

given time period, the declaration speculates that an

influx of applications would cause “expenses that

DPS would incur to hire and train... additional

lemployees], purchase additional office equipment

and technology ...{and] open additional driver li-

cense offices or expand current facilities.” J.A. 379-

80. The declaration “estimates” tiers of possible

2 Respondents correctly state that approximately 47,000

immigrants applied for Family Fairness, Resps.’ Br. 54, but

this was a small fraction of the approximately 1.5 million eligi-

ble to apply. Does’ Br. 12-13. Like the Guidance, Family Fair-

ness did not automatically grant relief, and ultimately few in-

dividuals chose to seek relief. With respect to the Guidance,

the temporary, revocable nature of relief means that the initial

application pace is likely to be slow and uneven, particularly in

light of the pending presidential election.

* Respondent Texas's official publications are judicially no-

ticeable. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,

199 n.18 (2008). DPS charges a $1 administrative fee with the

$24 statutory fee. Tex. Dep't of Pub. Safety, Driver License Di-

vision, https://www.txdps.state.tx.us/DriverLicense/fees.htm.

7

costs, but it does not explain what these lump-sum

costs consist of, why (or at what point) hiring new

employees would be necessary to handle increased

application volume, or why 100% of the two-year cost

of hiring employees, buying equipment, and opening

new office space is an injury caused by the Guidance.

J.A. 380. Over two years of employment, assuming

50 five-day workweeks per year, these employees

would only have to process an average 1.62 applica-

tions daily, leaving their time mostly free to do other

profitable work and offset any putative additional

costs. J.A. 380.

Thus, the declaration does not show that Texas

will suffer injury, but simply speculates that an as-

sumed influx of license applications could cause DPS

to expend resources on new employees and office

space—uncertain future occurrences that are not

certainly impending. Clapper, 133 S. Ct. at 1147,

1151. Likewise, while the declaration speculates

that DPS’s expenses could increase, it is silent as to

how the Guidance would affect Texas’s overall budg-

et. Issuing licenses not only promotes Texas's stated

policy interests in issuing licenses to drivers, includ-

ing all other recipients of deferred action; it also de

creases public safety costs and increases revenues

from gasoline taxes and vehicle-registration fees.

Does’ Br. 33-34. As discussed in this Court’s taxpay-

er standing cases, a governmental entity's decision

to make expenditures in one field often causes its

other revenues to increase, thus making it conjec-

tural that the entity as a whole will suffer injury in

fact. E.g., Arizona Christian Sch. Tuition Org. v.

Winn, 563 U.S. 125, 136 (2011). Speculation that

Texas's overall budget will suffer a net loss if the

8

Guidance is implemented cannot provide standing.

2. Respondents cannot base standing on the

claim that the Guidance will cause them to incur

health care, educational, and law enforcement costs.

Resps.’ Br. 27-30. Even if undocumented immigra-

tion is revenue-negative for Respondents’ budgets—

an easily disputed hypothesis—these alleged costs

“are not caused by DAPA” but rather result from a

stable population of undocumented immigrants al-

ready resident in the country. Pet. App. 309a.

Respondents’ only argument that the Guidance

might impose additional costs of this kind is that it

could cause some resident immigrants to remain in

the United States instead of returning to their coun-

tries of origin. Resps.’ Br. 28-29. This is just “specu-

lation about the complex decisions of non-citizens”

who consider “the myriad economic, social, and polit-

ical realities in the United States and in foreign na-

tions” in deciding whether to immigrate or emigrate.

Arpaio v. Obama, 797 F.3d 11, 21 (D.C. Cir. 2015).

The district court itself rejected Respondents’ argu-

ment as “without supporting evidence,” stating that

“the presence of damages . . . is too speculative to be

relied upon.” Pet. App. 313a.

Indeed, long-term resident immigrants eligible

for deferred action under the Guidance are very un-

likely to emigrate of their own accord, given that do-

ing so could separate them from their U.S. citizen

children. And, in any case, the Guidance is likely to

decrease State law enforcement costs by helping

DHS to focus its limited enforcement resources on

removing serious criminals instead of non-criminals

like the Does, and by allowing deferred action recipi-

9

ents with work authorization to better support

themselves and reduce their and their children’s re-

hance on State-funded health services. Arpaio, 797

F.3d at 24.

3. Respondents’ concession that the Secretary

can defer removal on a class-wide basis for all indi-

viduals eligible under the Guidance—including by

affirmatively issuing them “low-priority identifica-

tion cards”—defeats redressability for all alleged in-

juries. Resps.’ Br. 39 (quotation omitted). Even

without work authorization, individuals receiving

such relief would be “lawfully present” as that in-

formal term is understood and thus able to apply for

Texas driver's licenses just as if they had received

deferred action under DAPA, and such individuais

would be similarly incentivized not to return to their

countries of origin. Enjoining the Guidance would

not redress the financial injuries Respondents com-

plain of, demonstrating lack of standing.

C. Massachusetts v. EPA Is Inapposite

Not satisfied with misrepresenting to this Court

that States can have true parens patriae standing

against the United States,‘ Respondents argue that

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

the standing requirement for their suit. Resps.’ Br.

31-32. Not so. Massachusetts applies only when the

alleged injury and its cause are undisputed and the

‘ Compare Resps. Br. 31 (“/Pjarens patriae standing is

available to the States. Nothing bars such a parens patriae

action against the federal government.”), with Alfred L. Snapp

& Son, Inc. v. Puerto Rico, 458 U.S. 592, 610 n.16 (1982) (“A

State does not have standing as parens patriae to “ring an ac-

tion against the Federal Government.”).

10

harm incrementally worsens with increasing volume;

in addition, the harm must be generalized across so-

ciety and emanate from many sources. Massachu-

setts, 549 U.S. at 521-26. In this narrow context,

States can sue if they have an affected “quasi-

sovereign” interest and an express procedural right

protecting that particular interest. Jd. at 520.

Here, Respondents have neither. They do not

have a procedural right allowing them to protect

their asserted financial interests. While the Clean

Air Act provision allowing suit to challenge rulemak-

ing petition denials was closely tailored to Massa-

chusetts’s interests, Respondents here can only point

to the general APA cause of action, 5 U.S.C. § 706.

Massachusetts, 549 U.S. at 520 (citing 42 U.S.C. §

7607(b)(1)). That cause of action is not closely tai-

lored to the generic financial injuries they claim, and

Congress has not created a specific procedural right

allowing challenges to immigration policy decisions.

Moreover, the procedural-right requirement would

be meaningless if satisfied by the general APA cause

of action.

Furthermore, even if Respondents had a proce-

dura) right, they lack the quasi-sovereign interest

necessary to show a particularized injury. A mere

budgetary loss, without a more complete accounting

of all effects, does not implicate a State quasi-

sovereign interest in the well-being of the populace,

and is more akin to a speculative generalized private

injury. As noted, States’ unique interests go to the

physical domain within their borders. Massachu-

setts reiterated that States (but not private litigants)

have standing to protect these “quasi-sovereign” in-

terests by suing to prevent loss of land from rising

1]

sea levels caused by greenhouse-gas emissions. Id.

at 518-23. Because it had unique interests in its ca-

pacity as a State, Massachusetts could sue even

though a similar injury to a private landowner not

possessing such interests would be insufficiently

particularized. Jd. at 521-23.

In contrast, Respondents’ allegations are specula-

tive, and their alleged interest in avoiding financial

injury insufficient. Even though immigration policy

is important to Respondents, they do not have a qua-

si-sovereign interest in regulating immigration or in

avoiding financial costs of immigration in the way

that they have an interest in regulating pollution

harming their physical territory. Arizona, 132 S. Ct.

at 2496-97, 2506-07. While the interest in Massa-

chusetts was unique to the State, the financial inter-

est Respondents assert is no different from that as-

serted by private litigants who have already unsuc-

cessfully tried to challenge the Guidance. Arpaio,

797 F.3d at 21.

Finally, Respondents’ alleged injury is fundamen-

tally unlike that in Massachusetts, which worsened

incrementally but indisputably (and without the

possibility of offsetting the loss of land) with every

additional carbon dioxide molecule emitted. Massa-

chusetts, 549 U.S. at 523-25. Thus, redressability

was satisfied because even though emissions had

many distinct sources, the EPA could act to regulate

some of those sources and reduce some emissions,

thereby incrementally redressing the injury. Id. at

525-26. Unlike in Massachusetts, Respondents’ al-

leged injury does not incrementally increase with

each grant of deferred action because not all recipi-

ents will apply for licenses, Texas will not need to

12

expand its infrastructure to accommodate any single

applicant, and applicants pay taxes and fees that off.-

set costs. Respondents lack standing.

Il. RESPONDENTS’ APA CLAIMS FAIL

A. “Lawful Presence” Is Not A Status Or

Classification Established By Congress

Nearly all of Respondents’ arguments under the

APA rest on the false premise that “lawful presence”

is a formal immigration status or classification that

conveys attendant benefits, and thus that only Con-

gress can bestow “presence.” They assert throughout

their brief that “lawful presence” “placies] aliens in a

legal status with significant consequences” and

“deem|s] the unlawful conduct of millions of aliens to

be lawful.” Resps.’ Br. 40 (emphasis added). At the

same time, they now admit that the Secretary has

authority to defer removal for DAPA-eligible immi-

grants, and that these deferrals are unreviewable

under the APA. Resps.’ Br. 39, 69. This concession

highlights the incoherence of their arguments.

Neither “lawful presence” nor “lawfully present”

is a term of art in immigration law, much less a sta-

tus or classification created by Congress. The specif-

ic phrase “lawful presence” does not even appear in

the INA, and the term “lawfully present” is only in-

formally understood to be the condition that results

either (1) when a non-citizen has a lawful immigra-

tion status pursuant to the INA, or (2) when the Sec-

retary knows that a removable non-citizen is present

and temporarily declines to remove her—including

13

by granting deferred action.5 Reno v. American-Arab

Anti-Discrimination Comm., 525 U.S. 471, 483-84

(1999). In both situations, the non-citizen is present

in a fashion that DHS describes as being “lawfully”

present.

However, whether a non-citizen is lawfully pre-

sent is separate from and does not affect whether

she has an immigration status, or whether she is

admissible, removable, or eligible for visas or ad-

justment of status. This understanding is confirmed

by the Guidance itself, which states that “[o]nly an

Act of Congress can confer” eligibility for status or

substantive rights, and which recognizes that

“|djeferred action does not confer any legal status in

this country, much less citizenship; it simply means

that, for a specified period of time, an individual is

permitted to be lawfully present in the United

States.” Pet. App. 413a.

The statutes in which the term “lawfully present”

appear further confirm that the condition is an in-

formal one separate from immigration statuses or

defined concepts like admissibility and removability.

Whether a non-citizen is removable depends not on

whether she is “lawfully” present but on whether she

is “present in the United States in violation of this

chapter or any other law of the United States.” 8

U.S.C. § 1227(a)(1)(B). In determining whether she

can meet her burden to defend against removal,

5 Other examples of discretionary relief from removal not

specifically authorized by statute include orders of supervision,

granted to individuals already ordered removed, and “parole in

place,” granted to undocumented family members of U.S. ser-

vicemembers.

14

what matters is not being “lawfully present” but

whether, in relevant part, she can demonstrate she

is not removable or inadmissible—including that she

is “lawfully present in the United States pursuant to

a prior admission.” Id. § 1229a(c)(2)(B) (emphasis

added). In another context, whether she can become

eligible for certain Social Security benefits depends

on if she is “lawfully present” as “determined by the

[Secretary].” Jd. § 1611(b)(2)-(4). And whether she

is “unlawfully present” for purposes of the reentry

bars depends on whether she is “present.in the Unit-

ed States after the expiration of the period of stay

authorized by the [Secretary]” or “present in the

United States without being admitted or paroled.”

Id. § 1182(a)(9)(B)(ii).

Respondents attempt to confuse matters by

claiming that the “lawful presence” supposedly

granted by the Guidance is a status or classification

similar to or overlapping with defined statutory

terms such as admissibility, status, parole, visas,

and removability. Resps.’ Br. 2-6. But the Guidance

does not affect eligibility for these things because de-

ferred action does not grant “admission” into the

United States, confer eligibility to adjust to an im-

migration status, or undo the original improper en-

try rendering the recipient removable. As discussed,

what being “present” means varies by provision, but

it has no real definition other than the informal un-

derstanding that someone is present in accordance

with the INA or at the Secretary’s discretion.

Without the misconception that “presence” is

something other than the condition of having remov-

al deferred, Respondents’ arguments fall apart.

Their suit depends on artificially distinguishing the

15

non-existent immigration status of “lawful pres-

ence’—which they claim the Executive cannot

grant—from the longstanding practice of deferring

removals, which they admit the Executive can do,

even on a class-wide basis. Resps.’ Br. 39. But being

lawfully present under the Guidance pursuant to a

discretionary grant of deferred action is the exact

same thing as having removal deferred—and it has

always been understood in this way. Reno, 525 U.S.

at 483-84. For purposes of the Guidance, “legal pres-

ence simply reflects an exercise of discretion by a

public official”—nothing more. Pet. App. 222a (Hig-

ginson, J., dissenting) (emphasis original, quotation

omitted). Because Respondents concede that defer-

ral of removal—deferred action—is unreviewable™

and lawful, they cannot plausibly maintain that the

condition of being “lawfully present,” the inherent

result of deferred action, renders the Guidance re-

viewable and unlawful.

B. The Guidance Is Not Reviewable Under

The APA

With Respondents’ concession laying bare the

false premise that the Guidance “placles] aliens in a

legal status with significant consequences,” their re-

viewability arguments fail. Resps.’ Br. 39-40. They

misapply Heckler v. Chaney, 470 U.S. 821 (1985),

failing to comprehend that the Guidance is properly

understood as establishing uniform standards to ap-

ply in exercising prosecutorial] discretion, a matter

“committed to agency discretion by law.” 5 U.S.C. §

701(a)(2).

Respondents concede, as they must, that Heck-

ler’s presumption of unreviewability applies to “an

16

agency's decision not to take enforcement action.”

Resps.’ Br. 38 (citation omitted). The Guidance is a

prototypical example of an agency decision not to ex-

ercise its enforcement authority in certain circum-

stances. Heckler, 470 U.S. at 828. And this Court's

deference to agency nonenforcement decisions makes

particular sense in the removal context, where,

“{djue to limited resources, DHS and its Components

cannot respond to all immigration violations or re-

move all persons illegally in the United States.” Pet.

App. 412a.

Contrary to Respondents’ insistence that the

Guidance “transform[s] unlawful conduct into lawful

conduct,” Resps.’ Br. 41, deferred action under the

Guidance is no different from all other grants of de-

ferred action, including those endorsed in Reno, 525

U.S. at 483-84 & n.8, or from other forms of relief

temporarily allowing non-citizens to remain in the

United States. Supra, at 12-15. Moreover, the

Guidance does not itself grant deferred action; it

simply provides “specific eligibility criteria for de-

ferred action,” leaving “the ultimate judgment as to

whether an immigrant is granted deferred action [to]

be determined on a case-by-case basis.” Pet. App.

419a. Similarly, the Guidance does not purport to

grant eligibility for employment and benefits, simply

noting that recipients can apply for work authoriza-

tion that the Secretary can grant under “separate

authority.” Pet. App. 415a. The Guidance itself

grants nothing, so Respondents’ attempts to portray

it as reviewable agency “action” are unavailing.

Respondents’ other argument for reviewability is

that “[w]hen Congress intends to create unreviewa-

ble power, it uses clear language such as ‘sole and

17

unreviewable discretion.” Resps.’ Br. 42. This mis-

reads Heckler. Under APA Section 701(a)(1), re-

viewability is lacking when “statutes preclude judi-

cial review” using this kind of clear language. 5

U.S.C. § 701(a)(1). But the Heckler presumption

arises under Section 701(a)(2) when such language is

absent, that is, “where Congress has not affirmative-

ly precluded review” but a “statute is drawn so that

a court would have no meaningful standard against

which to judge the agency’s exercise of discretion.”

Heckler, 470 U.S. at 830. Respondents cannot rebut

the Heckler presumption because the INA does not

“provide[] guidelines for the agency to follow in exer-

cising its enforcement powers.” Jd. at 832-33. Ra-

ther, Congress has expressly granted the Secretary

authority to establish enforcement priorities. 6

U.S.C. § 202(5).

As Heckler points out, this does not leave Con-

gress without recourse. If it disapproves of the

Guidance, Congress can legislate to “limit [the]

agency's exercise of enforcement power if it wishes.”

Heckler, 470 U.S. at 833. But it has not done so, and

thus the Guidance is unreviewable.

C. The Guidance Is Lawful

1. Respondents rely on the erroneous notion that

DAPA grants “lawful presence” to argue the Guid-

ance is unlawful, but they failure to explain how it

actually conflicts with any part of the INA or how it

differs from any other previous deferred action initi-

ative. The Guidance fits squarely within the Secre-

tary’s longstanding authority over the removal sys-

tem. Arizona, 132 S. Ct. at 2506-07. For more than

50 years, DHS and INS before it have issued policies

18

guiding conferral of deferred action and other forms

of discretionary relief, such as the Family Fairness

policy of the Reagan and first Bush administrations,

which was available to a similar percentage of the

undocumented population. Does’ Br. 6-13; see supra,

n.2.

Historical practice supports the Guidance’s legal-

ity. Respondents incorrectly point to Congress’s de-

cision to limit the Secretary’s authority to grant pa-

role and voluntary departure as a limit on deferred

action. But Congress chose not to put statutory lim-

its on the Secretary’s ability to grant deferred action,

and all statutes mentioning deferred action assume

that the Secretary has preexisting authority to grant

it. Does’ Br. 11 12. Congress’s decision to limit only

some forms of relief shows that it can limit the Exec-

utive’s authority to grant deferred action at any time

but has chosen not to do so. Bob Jones Univ. v.

United States, 461 U.S. 574, 601 (1983) (congres-

sional acquiescence to agency prartice inferred from

failure to overrule practice).

2. Respondents also claim the Guidance is un-

lawful because deferred action recipients may apply

for work authorization and certain benefits. Because

they concede the Executive’s broad prosecutorial au-

thority to defer removal, this is the linchpin of their

remaining case. Yet this argument also fails, for

whether a benefit is available under another law

does not affect the Guidance’s legality. Regardless,

the Secretary has full authority to grant all these

benefits to deferred action recipients.

Respondents claim that deferred action recipients

should not be able to receive work authorization, and

19

that 8 C.F.R. § 274a.12(c)(14)—a regulation promul-

gated by the Reagan Administration through notice-

and-comment rulemaking that extends work author-

ization eligibility to all deferred action recipients—is

only lawful as applied to four specific categories of

recipients identified by Congress. Resps.’ Br. 51

n.39. This argument fails for at least two reasons.

First, the plain text of a key section of IRCA, 8

U.S.C. § 1324a(h)(3), specifically states that the Sec-

retary has power to grant work authorization to im-

migrants not already authorized by statute: it de-

fines an “unauthorized alien” for employment pur-

poses as someone who is not “authorized to be so

employed by this chapter or by the [Secretary].” 8

U.S.C. § 1324a(h)(3) (emphasis added). This means

that the Secretary has discretionary authority to de-

fine new categories of immigrants who may lawfully

work. Respondents’ citation-free argument that this

provision means something other than what it says

is frivolous. Resps.’ Br. 53. Their interpretation

would render the second clause surplusage because

it would only allow work authorization for categories

of immigrants already specified by statute, leaving

no work to be done by the clause “or by the [Secre-

tary]).” 8 U.S.C. § 1324a(h)(3). Second, Section

1324a(h)(3) was enacted with the understanding

that the Secretary already had authority to grant

work authorization to all recipients of deferred ac-

tion, as prior regulations allowed. 46 Fed. Reg.

25,079, 25,079-81 (May 5, 1981). Instead of limiting

this preexisting authority, Section 1324a(h)(3) reaf-

firmed it.

The Secretary's authority to suspend accrual of

unlawful presence for purposes of the reentry bar is

20

similarly grounded in the INA, which treats undoc-

umented immigrants as “unlawfully present” for

purposes of the reentry bar if they are “present in

the United States after the expiration of the period

of stay authorized by the [Secretary] or [are] present

in the United States without being admitted or pa-

roled.” 8 U.S.C. § 1182(a)(9)(B)(ii). This provision

specifically contemplates that the Secretary may au-

thorize an immigrant to remain in the United States

without accruing unlawful presence. Accordingly,

regulations interpret a “period of stay authorized by

the [Secretary]” to include periods when an immi-

grant is a recipient of deferred action. 8 C.F.R. §

214.14(d)(3); 28 C.F.R. § 1100.35(b)(2). The same is

true of eligibility for benefits like Social Security.

Here, again, the statute gives the Secretary authori-

ty to “determine[]” which immigrants are “lawfully

present in the United States” for purposes of being

eligible for these benefits, 8 U.S.C. § 1611(b)(2)-(4),

and formal regulations treat deferred action recipi-

ents as lawfully present for these purposes. 8 C.F.R.

§ 1.3(a)(4)(vi); 42 C.F.R. § 417.422(h).

® If this Court believes these regulations unlawful, the rem-

edy is not to invalidate the Guidance, but to state that deferred

action recipients are not eligible for suspension of accrual. Re-

gardiess, such an order would have minimal effect. Because

over a year has passed since the date the Guidance sets as the

date when applicants must have been present without lawful

status, all potential DAPA applicants, with the exception of a

limited number of individuals eligible for tolling independent of

deferred action, will have already accrued the time necessary to

trigger application of the maximum 10-year bar.

21

D. The Guidance Is A Non-Binding Policy

Statement Exempt From Notice-And-

Comment

Respondents’ argument that the Guidance is sub-

ject to APA notice-and-comment procedures also

rests on their error that DAPA creates “rights and

obligations” because it “grants lawful presence and

eligibility for benefits.” Resps.’ Br. 61, 69 (citations

omitted). Again, the Guidance does not confer sta-

tus, deferred action, work authorization, or other

benefits available under other laws. It lacks the

“important touchstone” of legislative rules requiring

notice-and-comment: an immediate legal effect on

rights and obligations. Chrysler Corp. v. Brown, 441

U.S. 281, 302 (1979). Instead, the Guidance at-

tempts to avoid “blindly enforc[ing]” the immigration

laws “without consideration given to the individual

circumstances of each case.” Pet. App. 412a. As a

policy statement operating prospectively to help di-

rect the case-by-case exercise of the Secretary’s dis-

cretionary power, the Guidance is exempt from no-

tice-and-comment. Does’ Br. 44-49.

Respondents urge the Court to disregard the cau-

tious, discretionary language of the Guidance as

“mere[] pretext,” Pet. App. 56a, and declare DAPA

binding as a practical matter before it is even im-

plemented. But courts should consider how a policy

statement is applied in practice only when its “lan-

guage and context .. . are inconclusive.” Pub. Citi-

zen, Inc. v. Nuclear Regulatory Comm'n, 940 F.2d

679, 682 (D.C. Cir. 1991). The Guidance’s operative

language instructing employees how to evaluate ap-

plications is clear: employees should review applica-

tions “on a case-by-case basis,” “exercise .. . discre-

22

tion,” and use “judgment.” Pet. App. 417a, 419a.

Further, it states that employees considering appli-

cations should determine whether each applicant is

a priority for removal, meets the other specified

DAPA criteria, and “present[s] no other factors that,

in the exercise of discretion, make[] the grant of de-

ferred action inappropriate.”’ Pet. App. 417a.

As the dissent below noted, this case presents the

first time an unimplemented policy statement has

been enjoined based on speculation that employees

might interpret it as binding. Pet. App. 13la-132a

(King, J., dissenting). There is no record evidence

that employees would treat the Guidance as “control-

ling in the field.” Appalachian Power Co. v. EPA,

208 F.3d 1015, 1021 (D.C. Cir. 2000). Nor could

there be, because the Guidance has never been im-

plemented. Respondents nevertheless suggest that

the Court may “extrapolat{e]” evidence—as the

courts below did—from the implementation of 2012

DACA while ignoring critical differences between the

two initiatives. Pet. App. 59a. But DAPA’s use of

new discretionary criteria alone makes evidence of

DACA’s implementation an unreliable predictor of

how DHS would implement DAPA. Does’ Br. 47-49.

Respondents mislead this Court by asserting

there is “concrete evidence concerning DAPA’s im-

plementation” in the Executive's accidental grant of

three-year deferred action terms (and work authori-

’ Respondents focus on mandatory language in the Guid-

ance’s procedural sections, directing employees to “establish a

process” to accept applications. Resps. Br. 64. That language

constitutes “rule[s] of agency organization, procedure, or prac-

tice” exempt from notice-and-comment. 5 U.S.C. § 553(b)(A).

23

zation cards) in the period before and just after the

Guidance was enjoined. Resps.’ Br. 65. These ex-

panded terms were given only to individuals already

eligible for deferred action under the 2012 DACA ini-

tiative, not to individuals newly eligible for deferred

action under the Guidance. J.A. 729, 753-54. Nei-

ther the expanded DACA nor the DAPA criteria have

ever been put into effect, so there is no evidence of

how they would be implemented.

Finally, Respondents argue that the Guidance

must be a legislative rule carrying force of law be-

cause it has the potential to affect many people.*

Resps.’ Br. 60. But the APA’s exemptions from the

notice-and-comment process are “categorical”—the

breadth of an initiative’s effects is immaterial where

the initiative is otherwise exempt. Perez v. Mortgage

Bankers Ass'n, 135 S. Ct. 1199, 1206 (2015). Holding

otherwise would impose procedural requirements

beyond what Congress has established, violating a

bedrock principle of administrative law. Vermont

Yankee Nuclear Power Corp. v. Nat. Res. Def. Coun-

cil, Inc., 435 U.S. 519, 524 (1978).

Ill. RESPONDENTS CANNOT ASSERT A

CLAIM UNDER THE TAKE CARE CLAUSE

Respondents’ arguments under the Take Care

Clause consist of repackaged statutory claims and

an inapposite discussion of English legal history that

* This appears to be an attempt to revive the “substantial

impact” test that nearly every circuit long ago abandoned. E.z.,

Pub. Citizen v. Dep't of State, 276 F.3d 634, 640 (D.C. Cir.

2002); Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1016 (9th Cir.

1987); Baylor Univ. Med. Ctr. v. Heckler, 758 F.2d 1052, 1061

(5th Cir. 1985).

24

adds no analysis. Neither approach rebuts the fact

that the Clause defines Executive power without giv-

ing rise to a cause of action, and Respondents cannot

identify any case holding otherwise. Does’ Br. 55-56;

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

579 (1952) (Take Care Clause asserted as defense by

Executive). Even if a claim could be asserted under

the Clause, it would not be justiciable, for the Clause

does not provide “judicially discoverable and man-

ageable standards for resolving” whether the Execu-

tive has “faithfully” applied enforcement discretion.

Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct.

1421, 1428 (2012).

In any event, any theoretical claim under the

Clause fails with Respondents’ false premise that the

Guidance confers legal status. Resps.’ Br. 74. As

they concede, there is nothing unlawful about defer-

ring removals. Resps.’ Br. 39. The Guidance consti-

tutes faithful execution of the immigration laws by

setting criteria for uniform exercise of the Execu-

tive’s enforcement discretion, reducing the danger

that such discretion—a clear and longstanding part

of immigration law—would be implemented in an

arbitrary and inconsistent fashion. It was not a rad-

ical move for the Secretary to issue the Guidance as

a focusing mechanism for enforcement. In fact, it

was the only course of action consistent with his ob-

ligation to faithfully execute the laws given the prac-

tical challenges posed by insufficient congressional

appropriations. Does’ Br. 14-15.

CONCLUSION

The judgment of the court of appeals should be

reversed.

25

Respectfully submitted,

ADAM P. KOHSWEENEY

GABRIEL MARKOFF

WARD A. PENFOLD

SAMUEL WILSON

MALLORY JENSEN

JUAN CAMILO MENDEZ

REMI MONCEL

O’MELVENY & MYERS LLP

Two Embarcadero Center

San Francisco, CA 94111

DARCY M. MEALS

JEREMY R. GIRTON*

O’MELVENY & MYERS LLP

Washington, DC 20006

*Not yet admitted; super-

vised by principals of the

firm.

THOMAS A. SAENZ

NINA PERALES

(Counsel of Record)

MEXICAN AMERICAN

LEGAL DEFENSE AND

EDUCATIONAL FUND

110 Broadway, Ste. 300

San Antonio, TX 78205

(210) 224-5476

nperales@maldef.org

LINDA J. SMITH

DLA PIPER LLP

2000 Avenue of the Stars

Los Angeles, CA 90067

Attorneys for Intervenors-Respondents Jane Does

April 11, 2016