# Reply 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%3A21 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2016 ## Text ee FILE® 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A21. Public record. Not legal advice.