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

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NO. 15-674

Fn the

Supreme Court of the United States

UNITED STATES OF AMERICA, et al.,

Petitioners,

STATE OF TEXAS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR AMICUS CURIAE THE UNITED

STATES HOUSE OF REPRESENTATIVES IN

SUPPORT OF RESPONDENTS

KERRY W. KIRCHER ERIN MURPHY

General Counsel Counsel of Record

WILLIAM PITTARD ANDREW N. FERGUSON

Deputy General Counsel BANCROFT PLLC

TODD B. TATELMAN 500 New Jersey Ave., NW

Senior Assistant Counsel Seventh Floor

ELENI M. ROUMEL Washington, DC 20001

ISAAC ROSENBERG (202) 234-0090

KIMBERLY HAMM emurphy@bancroftplic.com

Assistant Counsels

OFFICE OF

GENERAL COUNSEL

U.S. HOUSE OF

REPRESENTATIVES

219 Cannon House Office Bldg.

Washington, DC 20515

Counsel for Amicus Curiae

April 4, 2016 . nee!

TABLE OF CONTENTS

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STATEMENT OF THE CASE ..............0..0.00.ssscccceseees 2

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SUMMARY OF ARGUMENT ..................ccccccccceeeeees 12

IARI EIETE (nscsssysisescucenrntenciesieensuhiacenneaeeee 14

I. The Executive's “Discretion” To Enforce The

Law Does Not Include Blanket Power To

Authorize Its Prospective Violation................... 14

Il. The Immigration Laws Do Not Grant The

Executive Power To Authorize—Let Alone

Facilitate—Their Prospective Violation ........... 21

Ill. The Immigration Laws Do Not Implicitly

“Ratify” Any Power Anything Like What The

Bemecutive Claims Hlere.......cccccccccccccoscccscccsescceces 28

COIN viivccevunsadenpdecsdnsincsisctacsieaeeeeee 36

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp.

v. United States,

Ee 19

Am. Petroleum Inst. v. EPA,

I ED, GES BIO cc ccccccsesescccssesaccescoseeee 28

Clinton v. City of New York,

SE 19

Free Enter. Fund

v. Pub. Co. Accounting Oversight Bd.,

es ssinoncnenccnses 19

Heckler v. Chaney,

a sveissusenensoass passim

Indus. Union Dep’t, AFL-CIO

v. Am. Petroleum Inst.

(“The Benzene Case”),

as nadesenvecnecess 19

INS v. Chadha,

A 19

King v. Burwell,

I Io cccnsccnsssvesssscucncsesecees 15, 35

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ...........0......ceee 16

Medellin v. Texas,

ee scudscesuannanvecacees 28

Mistretta v. United States,

EE 19, 20

Motion Picture Ass'n of Am., Inc. v. FCC,

Soe Fe Fee CC. Cir. BOOD).............ccccccccecesseceeee. 28

Myers v. United States,

I I i eee ella 19

Nat'l Cable Television Ass’n v. United States,

| REI RNAP a SECT AE EE oe 19

New York v. United States,

Sc a tancnsaianeienaal 19

NFIB v. Sebelius,

Be i ae MEE CID nccnscccocececvossesnscnseniacs 16, 31, 34

NLBB v. Noel Canning,

es ee I ci ccronceonsncounessncvnisensnvennioieodans 19

Panama Refining Co. v. Ryan,

a sesncnmnmanindin 19

U.S. Tel. Ass'n v. FCC,

_ Ps § Ff lode “me — TREE pEereruee 15

Util. Air Regulatory Grp. v. EPA,

ey i, BE winsnosisnctcounevetssesacnsevsentpnenaceien 16

Wayman v. Southard,

Se es te ID 0 CIID caiinecccnccccdcoccecascasansaniis 18

Wayte v. United States,

Ee i Be i acicccccsvecccnensecinvesenvacreevivictesenvensi 17

Whitman v. Am. Trucking Ass ‘ns,

ec: er EY spunsinmnaphiessicaiemmeteamaidahe 23

Youngstown Sheet & Tube Co. v. Sawyer,

ee Ee OF Ce icenecnccesccccsvassitccedsasnccsnccestacs 24, 31

Constitutional Provisions

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if fe gy OS ee eee 1, 21. 35

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Statutes

EEE LE NATE 22, 25

| Re en Wa Se passim

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RII ET NE SER EBON SEL OE: 6

On a 26

Da Se Re ORS ecto ee POE AE a: 26

The Sg |___Fan DEO 6

es i cicenadsunteeniniainn 3, 29

8 U.S.C. §1182(d)(G)(A) (1994) .................cccccecccseeeeeees 3

Ce al aatianeiiong 34

I es a a le 34

a aha ot seetanpiaaioaion 2, 5, 30

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Or ele 3

ites Sele ca rel 4

Dg REESE Ya Re eS eT 3

I a cies 2, 29

ce fet REITER we oer a trees Rteonee 26

i ts 26

EE ESTES aa OORT Srna Oe Sr? 22, 26

ee 2

a a 2

a ict cccnnddtaptenindadslesetesabdedebeemos 26, 31

Consolidated Appropriations Act, 2016,

Pub. L. No. 114-113, 129 Stat. 2242 (2015).......... 23

Consolidated Security, Disaster Assistance,

and Continuing Appropriations Act, 2009,

Pub. L. No. 110-329, 122 Stat. 3574 (2008).......... 24

Department of Homeland Security

Appropriations Act, 2010,

Pub. L. No. 111-83, 123 Stat. 2142 (2009)........ 6, 34

Haitian Refugee Immigration

Fairness Act of 1998,

Pub. L. No. 105-277, 112 Stat. 2681-538 .............. 27

Homeland Security Act of 2002,

Pub. L. No. 107-296, 116 Stat. 2135 ......0.000000000.... 25

Illegal Immigration Reform and

Immigrant Responsibility Act of 1996,

Pub. L. No. 104-208, 110 Stat. 3009-546

(codified as amended at 8 U.S.C. §1229c)..... 3, 4, 27

Immigration Act of 1990,

Pub. L. No. 101-649, 104 Stat. 4978

(codified as amended at 8 U.S.C. §1254a)......... 3, 27

Immigration and

Nationality Act-Amendment,

Pub. L. No. 107-124, 115 Stat. 2402 (2002).......... 27

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, 100 Stat. 3359.00... 26

LIFE Act,

Pub. L. No. 106-553,

Ire > UD TIN 27

National Defense

Authorization Act for Fiscal Year 2004,

Pub. L. No. 108-136, 117 Stat. 1392 (2003).......... 27

Nicaraguan Adjustment

and Central American Relief Act,

Pub. L. No. 105-100, 111 Stat. 2193 (1997)......

Refugee Act of 1980,

Pub. L. No. 96-212, 94 Stat. 102 (codified as

amended at 8 U.S.C. §1255 note (1982))...........

USA PATRIOT Act of 2001,

Pub. L. No. 107-56, 115 Stat. 272..................... 6, 27

Victims of Trafficking and

Violence Protection Act of 2000,

Pub. L. No. 106-386, 114 Stat. 1464 .................

Violence Against Women and Department

of Justice Reauthorization Act of 2005,

Pub. L. No. 109-162, 119 Stat. 2960 .....0000.00..... 6, 27

Violence Against Women

Reauthorization Act of 2013,

Pub. L. No. 113-4, 127 Stat. 54.........................

William Wilberforce Trafficking Victims

Protection Reauthorization Act of 2008,

Pub. L. No. 110-457, 122 Stat. 5044...............

Work Authorization for Spouses

of Intracompany Transferees Act,

Pub. L. No. 107-125, 115 Stat. 2403 (2002)......

vill

Other Authorities

Address Before a Joint Session of the

Congress on the State of the Union,

5 Pub. Papers 48 (Jan. 25, 2011)...............:ccceeeeeeeees 7

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8 ee ke rere 30

H.R. Rep. No. 104-469, pt.1 (1996) .....................5. 3, 5

H.R. Rep. No. 104-725 (1996).................ccccssseeseess 31

IRS, Offshore Voluntary Disclosure Program:

Frequently Asked Questions & Answers

2014, http://1.usa.gov/1V 12350 ......................6+. 18

John F. Manning, The Nondelegation

Doctrine as a Canon of Avoidance,

ee (Ne OE ns esses, 20

Remarks in E] Paso, Texas,

5 Pub. Papers 504 (May 10, 2011)........................5. 7

Remarks on Immigration Reform,

2014 Daily Comp. Pres. Doc. 504

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vill

Peter Spivack & Sujit Raman,

Regulating the ‘New Regulators’: Current

Trends in Deferred Prosecution Agreements,

45 Am. Crim. L. Rev. 159 (2008)..........000..00000...

Transcript of President Barack Obama

with Univision, L.A. Times (Oct. 25, 2010),

NE IIIS ds.cisnccersnccecencdococtesoursccesnsnss

U.S. Citizenship & Naturalization Serv.,

The Triennial Comprehensive Report

on Immigration (1997),

re NI Eo cs cccicceeccssnabenaciencnconntens

U.S. Dep’t of Justice,

U.S. Attorneys’ Manual (1997).............00.....0000..

STATEMENT OF INTEREST!

Amicus curiae the United States House of

Representatives is one of the two Houses comprising

the Congress in which “All legislative Powers” granted

by the Constitution are vested. U.S. Const. art. I, §1.

While individual members of Congress and groups of

members file amicus briefs in this Court with some

frequency, the filing of an amicus brief on behalf of the

House itself is no ordinary matter. But this case

involves no ordinary assertion of executive power. The

Executive claims the power—unchecked by statutory

criteria, administrative procedure, or even judicial

review—to decree that millions of individuals may

live, work, and receive benefits in this country even

though federal statutes plainly prohibit them from

doing so.

That is an extraordinary claim indeed. Under our

Constitution, Congress possesses the “Power To ...

establish an uniform Rule of Naturalization.”

U.S. Const. art. I, §8, cl.4. The role of the Executive is

to “take Care that the Laws be faithfully executed.”

U.S. Const. art. IT, §3, cl.5. The Executive is certainly

free to disagree with the immigration laws and to try

to persuade Congress to revise them. And the

Executive even has some discretion (albeit nowhere

near the unlimited discretion it claims) to decide how

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amicus curiae, its

members, and its counsel. made any monetary contribution

toward the preparation or submission of this brief. Pursuant to

Supreme Court Rule 37.3, counsel of record for all parties have

consented to this filing in letters on file with the Clerk's office.

best to use its limited enforcement resources. But the

Executive does not have the power to authorize—let

alone facilitate—the prospective violation of the

immigration laws on a massive class-wide scale.

Because petitioners’ contrary claim would undermine

not only the immigration laws Congress has enacted,

but also the separation of powers that underpins our

very constitutional structure, the House submits this

amicus brief in support of respondents.

STATEMENT OF THE CASE

A. Statutory Background

The Immigration and Nationality Act (“INA”),

8 U.S.C. §§1101 et seq., is among the most detailed,

complex, and comprehensive statutory schemes ever

devised by Congress. The Act comprises hundreds of

laws, spanning more than 500 pages of the U.S. Code,

and identifies in painstaking detail who is authorized

to live, work, and receive benefits in this country. In

addition to making it illegal to enter or reenter the

country under circumstances not authorized by

Congress, see 8 U.S.C. §§1325-26, the immigration

laws identify with specificity the limited

circumstances in which the Executive may authorize

individuals to stay even if their presence is not

authorized by statute, see, e.g., id. §§1229b, 1254a.

While the Executive once claimed relatively broad

discretion in that respect, over the past few decades,

Congress has repeatedly curbed that discretion.

For instance, the Executive once claimed broad

statutory power to grant “voluntary departure” to

individuals who were present without authorization, a

power the Executive frequently used to respond to

unanticipated developments, such as an armed

conflict or a natural disaster, in the individual's home

country. See id. §§1252(b), 1254(e) (1994); Petr.Br.5,

49-51. But Congress largely eliminated that practice

in 1990 when it created a “temporary protected status”

statute identifying when and how such extraordinary

developments can be invoked as protection against

removal. See Immigration Act of 1990 (““IMMACT”),

Pub. L. No. 101-649, §302(a), 104 Stat. 4978, 5030

(codified as amended at 8 U.S.C. §1254a). And

Congress subsequently eliminated the kind of

“extended voluntary departure” that once operated as

de facto permission to stay indefinitely by imposing a

120-day limit on all “voluntary departure.” See Illegal

Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,

§304(a)(3), 110 Stat. 3009-546, -596 (codified as

amended at 8 U.S.C. §1229c).

Likewise, while the Executive once claimed broad

statutory discretion to “parole” individuals into the

United States on a temporary basis, see 8 U.S.C.

§1182(d)(5)(A) (1994), Congress constrained that

discretion after it became concerned that the

Executive was end-running statutory restrictions by

indefinitely paroling whole classes of inadmissible

aliens “with the intent that they will remain

permanently,” H.R. Rep. No. 104-469, pt.1, at 140-41

(1996). See IIRIRA, §§301(a), 602(a). Thus, under

current law, the Executive may “parole” otherwise

inadmissible individuals “into the United States ...

only on a case-by-case basis for urgent humanitarian

reasons or significant public benefit.” 8 U.S.C.

§1182(d)(5)(A).

Congress’ actions with respect to the parents of

citizens and lawful permanent residents are of a piece

with this pattern. A statute has long been on the

books identifying the circumstances in which parents

may rely on their children’s status to stay in this

country even if they are not otherwise authorized to do

so. Before 1996, the relevant statute authorized the

Attorney General to suspend deportation and grant

lawful permanent residence to an individual who

established:

(a) physical presence in the United States for

at least seven years,

(b) good moral character, and

hardship to the alien or to his ... child who is

a citizen of the United States or an alien

lawfully admitted for permanent residence.

8 U.S.C. §1254(a)(1) (1994). Congress subsequently

curtailed that power through IIRIRA, which increased

the continuous presence period and stiffened the

hardship requirement. See ITRIRA, §304(a)(3).

Thus, under current law, the Executive may

cancel the removal of an individual on grounds that he

or she is the parent of a citizen or lawful permanent

resident only if the individual:

(A) has been physically present in the United

States for a continuous period of not less than

10 years immediately preceding the date of

such application;

(B) has been a person of good moral character

during such period:

offenses]; and

(D) establishes that removal would result in

exceptional and extremely unusual hardship

to the alien’s ... child who is a citizen of the

United States or an alien lawfully admitted

for permanent residence.

8 U.S.C. §1229b(b)(1). And Congress further limited

the Executive to granting cancellation to only “4,000

aliens in any fiscal year.” Jd. §1229b(e)(1).

Section 1229b(b)(1) unquestionably does not

provide a path to relief for all parents of citizens or

lawful permanent residents who are living here

without authorization. But that was no accident on

Congress’ part. The reality that there are far more

than 4,000 such individuals was no more lost on

Congress in 1996 than it is today. Even then, rough!y

five million people were estimated to have been living

in this country illegally for at least a year, and in many

instances much longer. See, e.g., U.S. Citizenship &

Naturalization Serv., The Triennial Comprehensive

Report on Immigration ES-2 (1997), http://1.usa.gov/

1Y4Y30S; H.R. Rep. No. 104-469, pt. 1, at 110.

Nonetheless, taking into consideration the competing

interests that inhere in a national problem of the

magnitude and complexity of immigration, Congress

made a conscious decision to narrow the Executive's

discretion to treat that familial relationship as a

ground for granting relief to individuals living here

illegally.

Of course, there are also means through which

such individuals may enter the United States legally,

and with authorization to remain permanently.

But Congress has placed limits on the extent to which

a parent-child relationship may be considered in that

context as well. See 8 U.S.C. §1151(a)(1), (b)(2)(A)(i).

An “immediate-relative” visa authorizing permanent

residence on that basis is available only to the parent

of a citizen who is at least 21 years old.

Id. §1151(b)(2)(A)(i). While there is no limit on how

many such visas may issued, id., they are available

only to individuals not subject to a ten-year reentry

bar as a result of having “been unlawfully present ...

for one year or more,” id. §1182(a)(9)(B)(i)(II).

Accordingly, most individuals who are presently living

in this country illegally would need to leave for at least

ten years to become eligible to return on an

immediate-family visa.

Congress has made changes to the immigration

laws since 1996, including some that extend a path to

lawful presence to a new category of individuals, or

remove barriers to a path that already existed.2 But

Congress has repeatedly declined to enact legislation

that would establish an additional path to lawful

presence for the parents of citizens or lawful

permanent residents. See, e.g., H.R. 4437, 109th

Cong. (2005); S. 2611, 109th Cong. (2006); S. 1348,

—_—~—- —e

2 See, e.g.. Violence Against Women Reauthorization Act of

2013. Pub. L. No. 113-4, §803. 127 Stat. 54, 111 (children of

victims of domestic violence); Violence Against Women and

Department of Justice Reauthorization Act of 2005 (“2005

VAWA\"). Pub. L. No. 109-162, §§805, 814, 816, 119 Stat. 2960,

3056-60 (victims of domestic violence); Department of Homeland

Security Appropriations Act, 2010, Pub. L. No. 111-83, §568(c),

123 Stat. 2142, 2186-87 (2009) (surviving spouses of citizens);

USA PATRIOT Act of 2001, Pub. L. No. 107-56, §423(a), 115 Stat.

272. 360-61 (family members of citizens killed by terrorism).

110th Cong. (2007); S. 1639, 110th Cong. (2007);

S. 744, 113th Cong (2013).

B. Factual Background

The President has fervently supported revising

the immigration laws to provide a path through which

many individuals living in this country unlawfully

may obtain authorization to stay. He has urged

Congress repeatedly (but unsuccessfully) to enact

various versions of the “DREAM Act,” which would

authorize the Executive to extend legal status to most

individuals who entered illegally before age 16.

See, e.g., S. 3992, 111th Cong. (2010); S. 952, 112th

Cong. (2011); Address Before a Joint Session of the

Congress on the State of the Union, 5 Pub. Papers 48,

52 (Jan. 25, 2011). The President also has urged

Congress (again unsuccessfully) to enact legislation

that would extend legal status to most of the more

than 4 million of individuals with citizen or lawful

permanent resident children. See Remarks in E] Paso,

Texas, 5 Pub. Papers 504, 508 (May 10, 2011); S. 1258,

112th Cong. (2011).

At the same time, the President acknowledged

that he lacks statutory or constitutional authority to

alter the immigration status of these individuals on

his own. “I'm President, I’m not king,” he explained.

If Congress has laws on the books that says

[sic] that people who are here who are not

documented have to be deported, then I can

exercise some flexibility in terms of where we

deploy our resources, to focus on people who

are really causing problems as a opposed to

families who are just trying to work and

support themselves. But there’s a limit to the

discretion that I can show because | am

obliged to execute the law. That’s what the

Executive Branch means. | can’t just make

the laws up by myself.

Transcript of President Barack Obama_ with

Univision, L.A. Times (Oct. 25, 2010), http://lat.ms/

1tkAH6R; see also, e.g., JA14-16.

Notwithstanding these candid and

constitutionally correct acknowledgements, on June

15, 2012, the Secretary of Homeland Security (“the

Secretary”) announced the creation of a program

designed to achieve the same result as the proposed

but unenacted DREAM Act. Through this “Deferred

Action for Childhood Arrivals” (DACA) program, the

Secretary invited individuals under age 31 who satisfy

criteria nearly identical to that set forth in most

versions of the proposed DREAM Act—i.e., they

entered before age 16, have lived here continuously for

at least five years, have not been convicted of certain

crimes, and are students of good moral character who

pose no threat to national security—to come forward

and obtain a written “deferred action” designation

that authorizes them to continue living here for two

years. See JA102-06. Enforcement officials have

proceeded to reflexively approve nearly every

“deferred action” application received through DACA.

Pet.App.256a.

At the time, the President modified his position to

insist that DACA represented the outermost limit of

his statutory and constitutional authority. Four

months after DACA’s creation, he explained: “I've

done everything I can on my own.” JA23. He later

reiterated that the Executive had already “stretched

our administrative flexibility as much as we can,”

JA24, and that any further “broadening” of deferred

action “would be ignoring the law in a way that I think

would be very difficult to defend legally.” JA388. But

two years later, the President changed his position

once again. When the House declined to take up his

preferred immigration reform bill, the President

instructed his subordinates “to identify additional

actions my administration can take on our own.”

Remarks on Immigration Reform, 2014 Daily Comp.

Pres. Doc. 504, at 2 (June 30, 2014).

On November 20, 2014, the Secretary responded

by issuing two memoranda, both purportedly exercises

of his “prosecutorial discretion” under’ the

immigration laws. The first bears some hallmarks of

an exercise—albeit a very aggressive exercise—of

prosecutorial discretion. In an effort to “develop smart

enforcement priorities, and ensure that use of ...

limited resources is devoted to the pursuit of those

priorities,” it instructs all immigration enforcement

agents to prioritize the removal, first, of unauthorized

aliens who are “threats to national security, border

security, and public safety”; second, of

“misdemeanants and new immigration violators’; and

third, of aliens who have committed “other

immigration violations” and have been issued a

removal order “on or after January 1, 2014.”

Pet.App.421, 423-26. While the memorandum

authorizes enforcement agents to pursue removal of

other individuals only if an Immigration and Customs

Enforcement field office director concludes that doing

so “would serve an important federal interest,” the

memorandum expressly disclaims any intent “to

prohibit or discourage the apprehension, detention, or

removal of aliens unlawfully in the United States who

are not identified as priorities herein.” Pet.App.426.

The second memorandum does something else

entirely. It begins by expanding DACA, relaxing its

eligibility criteria and extending its “deferred action”

designation from two vears to three. Pet.App.415a-

16a. The memorandum then establishes a new

“similar” program through which “parents of U.S.

citizens or lawful permanent residents” can come

forward and apply for comparable “deferred action”

status. Pet.App.414a-17a. To be eligible for “deferred

action” under this new program (known as DAPA), an

individual must (1) have a child who is a citizen or

lawful permanent resident, (2) have continuously

resided in the United States since January 1, 2010,

(3) be present both on the date of the memorandum

and when the “deferred action” application is filed;

(4) have no lawful status as of the date of the

memorandum, (5) not be an enforcement priority

under the separate enforcement memorandum, and

(6) “present no other factors that, in the exercise of

discretion, makes the grant of deferred action

inappropriate.” Pet.App.417a.

DAPA is not, as petitioners contend, merely a

means of “notifying an alien that [the Department of

Homeland Security (“DHS”)] has decided to forbear

from removing him for a_ designated period.”

Petr.Br.36. An individual whose “deferred action”

application under DAPA is granted is designated

“lawfully present in the United States” for the next

three years. Pet.App.413a. That designation is not a

just a matter of semantics. Among other things, the

Secretary treats it as sufficient to designate an

individual “lawfully present” for purposes of 8 U.S.C.

§1611(b), which dictates who may receive benefits

under Social Security, Medicare, and railroad-worker

programs. See Petr.Br.8. The Secretary also treats it

as sufficient to toll the accrual of time during which an

alien is “unlawfully present” for purposes of 8 U.S.C.

§1182(a)(9)(B), which imposes time-bars on lawful

reentry after an extended period of unlawful presence.

See Petr.Br.9 n.3. And the Secretary treats it as

sufficient to entitle an individual to apply for work

authorization. Pet.App.417a-18a.

While this second memorandum purports, like the

first, to be an exercise of “prosecutorial discretion,” the

Secretary's explanation for DAPA has little, if

anything, to do with enforcement priorities, allocation

of agency resources, or any other “factors which are

peculiarly within (the Secretary’s] expertise.” Heckler

uv. Chaney, 470 U.S. 821, 831 (1985). Indeed,

individuals are eligible for DAPA only if they are not

“enforcement opprioritiies}!” under the first

memorandum—1.e., only if the Secretary has already

instructed enforcement agents not to pursue their

removal. Pet.App.417a. The Secretary's explanation

for DAPA instead rested on a different kind of policy

judgment altogether: In his view, “most individuals”

eligible for DAPA “are hard-working people who have

become integrated members of American society’ and

who should be “encourage[d] ... to come out of the

shadows, submit to background checks, pay fees,

apply for work authorization ..., and be counted.”

Pet.App.415a. DAPA creates a mechanism through

which they can do just that—even though Congress

has declared their presence unlawful, mandated their

removal, and prohibited their employment. As the

President candidly acknowledged shortly afterward,

DAPA is “an action” not to enforce, but “to change the

law.” Pet.App.384a.

SUMMARY OF ARGUMENT

Petitioners come before this Court with the most

aggressive of executive power claims. According to

petitioners, not only has Congress bestowed upon the

Executive the power to decide whether millions of

individuals who are living in this country illegally may

stay, work, and receive benefits; that power is so

absolute that it is unconstrained by statutory criteria,

administrative procedure, or even judicial review.

Thus, in petitioners’ view, the Executive may decide

for itself whether to bestow prospective authorization

to violate the immigration laws on a case-by-case

basis, a categorical basis, or even across the board, and

there is nothing under the immigration laws or even

the Administrative Procedure Act that anyone can do

about it. More remarkable still, petitioners insist that

the Executive has unqualified discretion to bestow

“lawful presence,” work authorization, and other

benefits on the very same class of individuals on which

Congress repeatedly has refused to bestow those very

same benefits. In other words, petitioners claim to

have discovered lurking in the immigration laws

“sweeping authority,” Petr.Br.63, to achieve through

unilateral and unreviewable executive action

precisely what Congress has consistently declined to

amend those laws to achieve.

That extraordinary contention strains credulity.

It is the rare statute that grants the Executive

absolute and unreviewable discretion to do anything.

A statute that grants the Executive blanket discretion

to resolve a question of the magnitude and scope of the

question at issue here is unheard of—and

understandably so, as it would raise constitutional

concerns of the first order. At a bare minimun, if the

Executive is to make such an improbable claim, it

must have the most compelling of evidence that

Congress intended to achieve that untenable result.

Yet petitioners rest their claim principally on the

notion that the power to authorize the prospective

violation of the immigration laws on a massive class-

wide scale is implicit in the Executive’s purportedly

unreviewable “enforcement discretion.” That starting

conception of enforcement discretion is a stretch even

for the Executive. While the Executive's obligation to

“take Care that the Laws be faithfully executed,” U.S.

Const. art. II, §3, cl.5, is not so absolute as to admit of

no discretion as to which enforcement actions to

pursue, it manifestly does not admit of discretion—let

alone’ statutorily, procedurally, and _ judicially

unchecked discretion—to affirmatively authorize, and

even facilitate, massive prospective violation of the

very laws the Executive is charged with executing.

Such an improbable grant of power, if even

constitutionally permissible, would have to come

directly and explicitly from the immigration laws

themselves, not from vague allusions to “enforcement

discretion.” But petitioners fare no better there, as the

statutes on which they rely do not even mention the

powers they claim, let alone convey them in sweeping

and absolute terms. Petitioners are thus left

attempting to demonstrate that Congress has

somehow implicitly “ratified” the Executive's claimed

authority to confer “lawful presence,” work

authorization, and other benefits on anyone it pleases,

no matter what the immigration statutes say. But

petitioners’ revisionist history of past exercises of

executive discretion in this area largely ignores the

reality that the recent history of the immigration laws

has been one of constraining, not ratifying or

encouraging, the Executive's ability to exercise the

kind of discretion it claims here. Moreover, petitioners

fail to grapple with the fact that the programs to which

they analogize are simply nothing like DAPA, as those

programs facilitated Congress’ efforts to grant relief to

particular classes of individuals. DAPA, by contrast,

is a naked effort to circumvent Congress’ refusal to

grant relief to the very class to which it applies.

At bottom, DAPA finds no support in any

recognizable concept of “enforcement discretion,” any

express grant of statutory authority, or any

“longstanding” executive practice. Instead, DAPA is

an unprecedented effort, as the President

acknowledged, to “change” the immigration laws by

executive fiat. Whether couched as a statutory power,

a constitutional power, or an implicit component of

“enforcement discretion,” that is not a power the

Executive possesses. The Constitution gives Congress

the power to make the law; the Executive's obligation

is toenforce it. Petitioners identify nothing that comes

close to justifying abandonment of that bedrock

constitutional principle.

ARGUMENT

l. The Executive’s “Discretion” To Enforce The

Law Does Not Include Blanket Power To

Authorize Its Prospective Violation.

The extraordinary conception of executive power

that petitioners press exceeds the outermost limits of

law. logic, and the Constitution. Statutes should not

lightly be construed to empower the Executive to

resolve “a question of deep ‘economic and political

significance’ that is central to [the] statutory scheme.”

King v. Burwell, 135 S. Ct. 2480, 2489 (2015). Nor

should they lightly be construed to enable the

Executive “to accomplish the agency hat trick—avoid

defense of its policy at any stage.” U.S. Tel. Ass'n v.

FCC, 28 F.3d 1232, 1235 (D.C. Cir. 1994). Yet here,

the Executive claims not just discretion, but

unreviewable discretion, to resolve one of the Nation's

most hotly debated social, economic, and political

issues. Moreover, petitioners’ argument goes beyond

even an implausible claim of discretion to “consciously

and expressly adopt[] a general policy’ that is so

extreme as to amount to an abdication of its statutory

responsibilities.” Chaney, 470 U.S. at 833n.4. For

according to petitioners, Congress has given the

Executive absolute discretion not just to decline to

enforce the immigration laws against more than 4

million people, but to affirmatively authorize those

people to keep right on violating those laws.

It would be a bizarre statute indeed that

empowered the Executive to authorize and even

encourage people to do the very things the statute

prohibits—and then insulates the Executive from any

substantive, procedural, or judicial constraints on that

power. At the very least, if Congress truly intended to

accomplish such an improbable result (which it

manifestly did not), then “it surely would have done so

expressly.” King, 135 S. Ct. at 2489. Yet petitioners

do not rest their sweeping theory on any express grant

of absolute discretion to the Executive—something

Congress knows full well how to accomplish.

See Resp.Br.42 n.32 (collecting immigration statutes

granting Executive “sole and _ unreviewable

discretion”). Instead, petitioners’ principal claim is

that the power to affirmatively authorize prospective

violation of the immigration laws on a massive scale is

implicit in the Executive’s purportedly unreviewable

“enforcement discretion.”

Even setting aside the dubious proposition that

the Executive's power to decline to enforce a law

knows no bounds, but see, e.g., Chaney, 470 U.S. at

833 n.4; U.S. Const. art. II, §3, cl.5, that lesser-

includes-the-greater theory of “enforcement

discretion” defies common sense. Cf. NFIB v. Sebelius,

132 S. Ct. 2566, 2591 (2012) (Roberts, C.J.) (Necessary

and Proper Clause “does not license the exercise of any

‘great substantive and independent power[s]’ beyond

those specifically enumerated” (quoting McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 411 (1819))).

Indeed, the Executive action at issue here cannot even

meaningfully be “defend[ed] ... as an exercise of ...

enforcement discretion.” Util. Air Regulatory Grp. v.

EPA, 134 S. Ct. 2427, 2445 (2014). There is an obvious

difference between declining to devote resources to

enforcing a law in some circumstances and

“purport[ing] to alter [the law] and to establish with

the force of law that otherwise-prohibited conduct will

not violate” it. Jd. It is one thing, for instance, for the

Executive to prioritize enforcement actions against

the worst violators of pollution statutes. It is another

thing entirely for the Executive to identify a

substantial class of violators as to which it believes

those statutes should not apply and then invite those

violators to apply for a government-issued card that

every enforcement agent in the country is instructed

to treat as authorizing them to continue violating

those statutes unless and until the Executive changes

its mind.

That commonsense distinction was not lost on the

Secretary when he created DAPA. After all, the

Secretary issued not one memorandum on November

20, 2014, but two. The enforcement memorandum

(not at issue here) is confined to establishing which

unlawfully present aliens are prioritized for removal,

to ensure that the “limited resources” available for

enforcement are put to most effective use.

Pet.App.421. The second memorandum, by contrast,

allows millions of unlawfully present aliens to apply

for authorization to stay, work, and receive benefits,

on grounds that those particular individuals should be

“encourage[d] ... to come out of the shadows, submit to

background checks, pay fees, apply for work

authorization ..., and be counted.” Pet.App.41l5a.

Whatever the Secretary may have chosen to label

those two distinct actions, only the first bears any

resemblance to any _ recognizable concept of

“enforcement discretion.”

Indeed, petitioners identify no other context in

which “enforcement discretion” includes the power not

just to overlook past violations of the law, but to

license future violations as well.* When the Executive

3 To the extent petitioners claim Wayte v. United States. 470

U.S. 598 (1985). fits that bill, Petr. Br.38-39, they are mistaken.

The “passive enforcement” policy at issue there simply identified

the circumstance in which the government would investigate

individuals who failed to register for the draft. It did not invite

individuals to come forward and obtain permission to refuse to

enters into a deferred prosecution agreement, it does

not empower the defendant to continue violating the

law so long as he first confesses his past wrongdoings.

It conditions deferred prosecution on remedying past

violations and refraining from committing future ones.

See, e.g., Peter Spivack & Sujit Raman, Regulating the

‘New Regulators’? Current Trends in _ Deferred

Prosecution Agreements, 45 Am. Crim. L. Rev. 159,

161 (2008); U.S. Dep’t of Justice, U.S. Attorneys’

Manual §9-22.010 (1997) (explaining that prevention

of future crimes and remediation of past ones are chief

functions of pre-trial diversion). The IRS’s voluntary

disclosure program for offshore account offenses did

not authorize participants to continue declining to pay

taxes on their accounts so long as they provided notice

of their intention to do so. It required them to come

forward, pay back taxes and penalties, and disclose

the account for future taxation. See IRS, Offshore

Voluntary Disclosure Program: Frequently Asked

Questions & Answers 2014, http://1.usa.gov/1V123So.

That is how the Executive exercises “enforcement

discretion”—not by affirmatively authorizing people to

continue violating the law, and making it easier for

them to do so.

Petitioners’ novel theory that the power to enforce

the law includes the power to authorize its prospective

violation not only defies law and logic; it also raises

constitutional concerns of the first order. Under our

Constitution, “the legislature makes, the executive

executes, and the judiciary construes the law.’

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825).

To be sure, that division of labor may be inconvenient

at times, particularly when issues of immense

national importance are at stake. But “(t]he doctrine

of the separation of powers was adopted by the

convention of 1787 not to promote efficiency but to

preclude the exercise of arbitrary power.” Myers v.

United States, 272 U.S. 52, 293 (1926) (Brandeis, J..,

dissenting). In this respect as in so many others, “the

Constitution protects us from our own best intentions:

It divides power among sovereigns and among

branches of government precisely so that we may

resist the temptation to concentrate power in one

location as an expedient solution to the crisis of the

day.” New York v. United States, 505 U.S. 144, 187

(1992).

To preserve that separation of powers, this Court

has “not hesitated to strike down provisions of law” or

reject assertions of power “that either accrete to a

single Branch powers more appropriately diffused

among separate Branches or that undermine the

authority and independence of one or another

coordinate Branch.” Mistretta v. United States,

488 U.S. 361, 382 (1989); see also, e.g., NLRB v. Noel

Canning, 134 S. Ct. 2550 (2014); Free Enter. Fund v.

Pub. Co. Accounting Oversight Bd., 561 U.S. 477

(2010); Clinton v. City of New York, 524 U.S. 417

(1998); INS v. Chadha, 462 U.S. 919 (1983);

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495 (1935); Panama Refining Co. v. Ryan, 293

U.S. 388 (1935). Nor has the Court hesitated to apply

constitutional avoidance principles to reject statutory

interpretations that create separation of powers

concerns. See, e.g., Indus. Union Dep't, AFL-CIO v.

Am. Petroleum Inst. (“The Benzene Case”), 448 U.S.

607, 646 (1980); Nat'l Cable Television Ass'n v. United

States, 415 U.S. 336, 342-43 (1974); John F. Manning,

The Nondelegation Doctrine as a Canon of Avoidance,

2000 Sup. Ct. Rev. 223.

Petitioners invite—indeed, urge—the Court to

interpret the immigration laws to create precisely the

sort of unconstitutional delegation the Court has

repeatedly construed statutes to avoid. After all,

petitioners do not contend that DAPA is permissible

because it is consistent with some “intelligible

principle,” Mistretta, 488 U.S. at 372, that Congress

has established to guide or constrain the Secretary's

professed power to decide who may violate those laws.

To the contrary, petitioners take great pains to argue

that nothing constrains the Secretary's purported

power to confer—or revoke, see Petr.Br.5, 38—

“deferred action” status and the work authorization

and benefits that come with it. Indeed, petitioners are

so adamant that there is “no meaningful standard” by

which the Secretary’s actions may be judged that they

insist even this Court lacks any power to review them.

Petr. Br.36.

Yet, by the Secretary's own telling, DAPA is not

grounded in any of the typical factors that have been

understood to be “peculiarly within [the Executive's]

expertise,” such as “whether a violation has occurred,”

or “whether agency resources are best spent on this

violation or another.” Chaney, 470 U.S. at 831.

Indeed, individuals are eligible for DAPA only if the

Secretary has already concluded that they are not an

“enforcement priority.” See Pet.App.4l7a. The

Secretary grounded DAPA in_ something else

entirely—his views about what the immigration laws

should permit. And in his view, rather than

prohibiting the class of individuals covered by DAPA

from staying, working, and receiving benefits, those

laws should “encourage these people to come out of the

shadows, submit to background checks, pay fees,

apply for work authorization ..., and be counted.”

Pet.App.415a.

That is certainly a policy question on which

reasonable minds can differ. But it is by no stretch of

the imagination a question “peculiarly within [the

Executive's] expertise.” Chaney, 470 U.S. at 831. To

the contrary, it is a question peculiarly within—

indeed, constitutionally committed to—Congress’

expertise. See U.S. Const. art. I, §8, cl.4. And

Congress has concluded that the class of individuals

covered by DAPA is not “lawfully present,” is not

authorized to work, and is not entitled to receive

benefits. Unless and until Congress decides to change

those laws, the Executive's obligation is to “take Care

that [they] be faithfully executed.” U.S. Const. art. II,

§3, cl.5. Whatever else may be said about the scope of

the Executive’s “enforcement discretion” in fulfilling

that charge, that discretion plainly does not include

the power—let alone the statutorily, procedurally, and

judicially unchecked power—to authorize prospective

violation of those laws on a massive class-wide scale.

Il. The Immigration Laws Do Not Grant The

Executive Power To Authorize—Let Alone

Facilitate—Their Prospective Violation.

Assuming the Constitution could even tolerate a

grant of unbridled executive power to confer “lawful

presence,” work authorization, and other benefits on

individuals who are living in this country illegally, any

claim to such power must rest on something far more

compelling than vague notions of “enforcement

discretion.” Indeed, nothing short of an explicit

statutory grant could suffice to prove that Congress

actually intended to grant such a constitutionally

suspect power. Yet petitioners do not rest their

sweeping theory of executive power on any such

express grant of “sole and unreviewable discretion.”

Nor do they even rest their theory on an express grant

of power to confer “deferred action,” “lawful presence,”

work authorization, or anything else on individuals

living in this country illegally.

Instead, petitioners seek to infer this unfettered

executive power from a most unlikely trio of sources:

the provision of the INA that “charge[s]” the Secretary

with the “administration and enforcement” of the

immigration laws, 8 U.S.C. §1103(a); the provision of

the Department of Homeland Security's organic act

that assigns one of the new agency's under-secretaries

responsibility for “[e]stablishing national immigration

enforcement policies and priorities,” 6 U.S.C. §202(5);

and a provision of the statutory prohibition on

employing unauthorized aliens that defines

“unauthorized alien” to exclude an_ individual

“authorized ... by the Attorney General” to work, 8

U.S.C. §1324a(h)(3). That is it. After combing

hundreds of immigration statutes spanning more than

500 pages of the U.S. Code, the best statutory

authority petitioners can identify for the proposition

that the Executive possesses absolute discretion to

authorize more than 4 million individuals to violate

those laws on a prospective basis is a vesting clause,

an assignment of responsibility to a new under-

secretary, and a definitional provision that does not

assign any power at all.

The principle that Congress “does not ... hide

elephants in mouseholes,” Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 468 (2001), suffices to doom any

suggestion that these statutes actually grant the

power the Executive claims. So, too, does their text.

To start with section 1103(a), that statute says not a

word about “deferred action,” “work authorization,” or

the power to confer benefits on unlawfully present

individuals. Instead, the principal language on which

petitioners rely reads:

The Secretary of Homeland Security shall be

charged with the administration and

enforcement of this chapter and all other laws

relating to the immigration’ and

naturalization of aliens, except insofar as this

chapter or such laws relate to the powers,

functions, and duties conferred upon the

President, Attorney General, the Secretary of

State, the officers of the Department of State,

or diplomatic or consular officers[.]

8 U.S.C. §1103(a)(1). As is plain on its face, the

purpose of that provision is simply to establish that

the Secretary, not some other Executive official, is

“charged with the administration and enforcement of”

the immigration laws, except insofar as those laws sav

otherwise.

To be sure, that charge is not so absolute as to

admit of no discretion to determine which enforcement

actions to prioritize—subject, of course, to such

constraints as Congress and the Constitution may

impose. See, e.g., Consolidated Appropriations Act,

2016, Pub. L. No. 114-113, div. F, tit. 1, 129 Stat. 2242,

2493 (2015); Consolidated Security, Disaster

Assistance, and Continuing Appropriations Act, 2009,

Pub. L. No. 110-329, div. D., tit. II, 122 Stat. 3574,

3654-67 (2008); U.S. Const. art. II, §3, cl.5; Chaney,

470 U.S. at 833 n.4. ‘ But nothing about section

1103(a)(1) explicitly or implicitly evinces any intent to

empower the Secretary to go beyond exercising

“enforcement discretion” in the ordinary sense and

actually authorize violations of the very laws he is

charged with enforcing. If anything, section

1103(a)(1) undermines petitioners’ argument. Just as

“the President's power to see that the laws are

faithfully executed refutes the idea that he is to be a

lawmaker,” Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 587 (1952), the Secretary's charge to

“administer{] and enforce[]” the immigration laws

refutes the idea that Congress has assigned him the

power to authorize—and even facilitate—their

prospective violation.

Petitioners vaguely allude to other, unspecified

provisions of section 1103(a) that authorize the

Secretary “to exercise discretion in numerous

respects.” Petr.Br.63. But they tellingly decline to

identify which of those provisions has anything to do

with the power claimed here—and for good reason, as

not a single one says anything about making “deferred

action,” “work authorization,” or any other benefits

available to individuals who are living in this country

illegally. Petitioners make passing reference (at 2, 70)

to subsections (a)(2) and (a)(3), but surely the

Secretary's power to “control, direct| ], and supervisfe]

. all employees,” 8 U.S.C. §1103(a)(2), does not

empower him to direct them to do anything he pleases,

without regard to what the hundreds of immigration

laws that follow say. Nor does the power to “establish

such regulations; ... issue such instructions; and

perform such other acts as he deems necessary for

carrying out his authority under the provisions of this

chapter,” id. §1103(a)(3), say anything about the scope

of the Secretary's “authority under” those “provisions.”

Petitioners’ reliance on 6 U.S.C. §202(5) fails for

much the same reasons. At the outset, section 202 is

not even part of the title of the U.S. Code that houses

the immigration laws. It is a provision of DHS’s

organic act that assigns responsibilities to the Under

Secretary for Border and Transportation Security.

See Homeland Security Act of 2002, Pub. L. No. 107-

296, §402, 116 Stat. 2135, 2177-78. Moreover, the

responsibility section 202(5) assigns is responsibility

for “[e]stablishing national immigration enforcement

policies and priorities.” 6 U.S.C. §202(5). That is not,

as petitioners seem to think, the power to make all

manner of immigration policy, unconstrained by

statutory criteria, administrative procedure, or even

judicial review. It is simply the power to develop

policies and priorities for enforcing the immigration

laws—which, as already discussed, plainly do not

include policies designed to facilitate their violation.

That leaves the definitional provision of 8 U.S.C.

§1324a, the statutory prohibition on employing an

“unauthorized alien. Here, too, petitioners identify

no statutory text that by its terms gives the Executive

power—let alone unfettered power—to grant “lawful

presence,” work authorization, or any other benefit to

people living here illegally. Instead, petitioners seek

to infer that power from the bare fact that section

1324a defines “unauthorized alien” to mean “that the

alien is not at that time either (A) an alien lawfully

admitted for permanent residence, or (B) authorized

to be so employed by this chapter or by the Attorney

General.” Id. §1324a(h)(3) (emphasis added). In their

view, because Congress accepted the premise that the

Attorney General has the power to grant work

authorization in some circumstances, Congress must

have accepted the premise that the Attorney General

has blanket discretion to do so in any circumstances of

his choosing.

In fact, the explanation for that language is much

more prosaic: Other provisions of the immigration

laws expressly authorize, or even obligate, the

Attorney General (or now the Secretary) to grant work

authorization in certain circumstances. See, e.g., id.

§§1160(a)(4), (d)(1)(B), (d)(2)(B), 1255a(b)(3)(B),

(e)(1)(B), (e)(2)(B). These provisions are not recent

innovations; many were added to the code along with

section 1324a. Compare Immigration Reform and

Control Act of 1986, Pub. L. No. 99-603, §101(a)(1),

100 Stat. 3359, 3368 (enacting section 8 U.S.C.

§1324a(h)(3)), with, e.g., id. §201 (enacting 8 U.S.C.

§1255a(b)(3)(B), (e)(1), (2)), and id. §302(a)(1)

(enacting 8 U.S.C. §1160(a)(4), (d)(1)(B)), (d)(2)(B));

see also Refugee Act of 1980, Pub. L. No. 96-212,

§401(b), 94 Stat. 102, 118 (codified as amended at 8

U.S.C. §1255 note (1982)). Section 1324a(h)(3) thus

reflects nothing more than the unremarkable reality

that work authorization sometimes comes directly

from a statute and other times must come from the

Attorney General, pursuant to statute.‘

‘ Petitioners’ reliance on 8 U.S.C. §1611(6) suffers from the

same flaw: Congress’ recognition that whether an individual “is

lawfully present” is to be “determined by the Attorney Genera!”

To the extent there were any doubts on that score,

subsequent statutory enactments eliminate them. As

petitioners themselves explain in _ detail, see

Petr.Br.56-59, since section 1324a was enacted,

Congress has passed a host of laws authorizing or

instructing the Attorney General to grant work

authorization in certain circumstances.’ Petitioners

cannot explain why Congress has continued to

enumerate the narrow circumstances in which the

Executive may grant work authorization to

individuals who entered or remained in the country

illegally if the combination of the INA’s “vesting

clause” and section 1324a’s definitional provision

already give the Executive the power to do so any time

it chooses.

does not mean the Attorney General gets to decide what

constitutes “lawful presence.” It simply means the Attorney

General is responsible for determining whether an individual! “is

lawfully present” under the statutes Congress has enacted.

5 See, e.g., William Wilberforce Trafficking Victims Protection

Reauthorization Act of 2008, Pub. L. No. 110-457, §201(c), 122

Stat. 5044, 5053; id. §203(c)(2); 2005 VAWA, §814(b)-(c); Nationa!

Defense Authorization Act for Fiscal Year 2004. Pub. L. No. 108-

136, §1703(c)(1)(A), (d)C1)(A), 117 Stat. 1392, 1694-95 (2003):

USA PATRIOT Act of 2001. §423(b)(1). (2): Immigration and

Nationality Act-Amendment, Pub. L. No. 107-124. 115 Stat.

2402, 2402 (2002); Work Authorization for Spouses of

Intracompany Transferees Act. Pub. L. No. 107-125. §1. 115 Stat.

2403, 2403 (2002); Victims of Trafficking and Violence Protection

Act of 2000, Pub. L. No. 106-386. §1503(d)(2)(TV), 114 Stat. 1464.

1522; LIFE Act, Pub. L. No. 106-553, §1102(b). 114 Stat. 27624-

142, 2762A-143-44 (2000); Haitian Refugee Immigration

Fairness Act of 1998, Pub. L. No. 105-277. §902(c)(3). 112 Stat.

2681-538, -539; Nicaraguan Adjustment and Central American

Relief Act, Pub. L. No. 105-100, §202(c)(3). 111 Stat. 2193. 2195

(1997); IIRIRA, §604(a); IMMACT. §§221. 301(a)(2), 302(a).

Indeed, if the “vesting clause” truly gave the

Secretary the “sweeping authority” petitioners claim,

Petr.Br.63, then Congress would have had no need to

enact anything beyond section 1103(a), as its work

apparently was done the moment it identified which

Executive official was “charged” with “administration

and enforcement” of the immigration laws, 8 U.S.C.

§1103(a). Unsurprisingly, such arguments have not

met with success in the past. See, e.g., Motion Picture

Ass’n of Am., Inc. v. FCC, 309 F.3d 796, 805-06 (D.C.

Cir. 2002); Am. Petroleum Inst. v. EPA, 52 F.3d 1113,

1120 (D.C. Cir. 1995). Under our Constitution,

Congress makes the law and the Executive enforces it.

The bare fact that Congress has identified which

member of the Executive is charged with enforcing the

laws it enacted does not—and cannot—upend that

basic constitutional order.

Ill. The Immigration Laws Do Not Implicitly

“Ratify” Any Power Anything Like What The

Executive Claims Here.

Ultimately, petitioners’ real argument is not that

these (or any other statutes) grant the Executive

blanket discretion to confer “lawful presence,” work

authorization, and other benefits on anyone it pleases.

It is that the combination of these statutes, snippets

of various others, and certain actions or inactions over

the vears evince Congress’ intent to “ratifly]” the

Executive's purportedly “longstanding” practice of

claiming that blanket discretion. Petr.Br.16-17. Of

course, “|pjast practice does not, by itself, create

power.” Medellin v. Texas, 552 U.S. 491, 532 (2008).

Nor could past practice even begin to do so here, as the

Executive simply does not have any past practice—let

alone any “longstanding” past practice—of doing

anything like DAPA.

At the outset, petitioners’ narrative of executive

action over the past several decades contains a healthy

dose of revisionist history. While petitioners detail at

length various instances in which the Executive has

claimed discretion to make relief from deportation or

removal available “on the basis of aliens’ membership

in defined categories,” Petr.Br.43, they conveniently

relegate to footnotes any mention of the many

instances in which Congress has curtailed—or even

eliminated—-the very forms of discretion on which

they rely. For example, some of those programs were

exercises of a statutory “parole” power that, as a result

of a subsequent congressional enactment, the

Executive now may invoke “only on a case-by-case

basis for urgent humanitarian reasons or significant

public benefit.” 8 U.S.C. §1182(d)(5)(A). Several more

were undertaken pursuant to “voluntary departure”

practices that the Executive ceased exercising after

Congress enacted the “temporary protected status”

statute and imposed a 120-day statutory limit that put

a permanent end to the “extended voluntary

departure” of old. See id. §§1229c(a)(2), 1254a.°

® While the President has occasionally invoked his “foreign

affairs’ power to grant country-specific relief in circumstances

beyond those set forth in 8 U.S.C. §1254a, that practice has no

bearing here, as DAPA plainly is not animated by “sensitive

foreign policy imperatives,” Petr.Br.31. Individuals are eligible

for DAPA without regard to their country of origin, let alone

whether return to that country presents foreign policy or safety

concerns.

Petitioners also largely ignore the fact that most

of the programs they identify were country-specific

programs, designed to deal with extenuating

circumstances, such as armed conflict or a natural

disaster, that gave rise to “concern that the forced

repatriation ... could endanger th[e] lives or safety” of

individuals. H.R. Rep. No. 100-627, at 6 (1988). And

the rare programs petitioners identify that were not

country-specific cannot plausibly support their

implicit “ratification” theory, as they were exercises of

statutory authority that the Executive can no longer

claim. For instance, the “Family Fairness” program

on which petitioners place so much emphasis was

undertaken pursuant to the “extended voluntary

departure” practice that Congress subsequently

eliminated.’ Congress also placed additional

constraints on the Executive’s discretion to grant

relief from removal based on familial relationships six

years later when it increased the continuous presence

period and stiffened the hardship showing for parents

of citizens and lawful permanent residents, and

capped cancellation of removal at 4,000 individuals

per year. 8 U.S.C. §1229b(e)(1).

Petitioners likewise neglect to mention that most

of the work authorization and benefits practices they

identify pre-date statutes that fundamentally altered

those landscapes. For instance, whether’ the

Executive's “ordinary practice” in “the early 1970s”

' Moreover. like the categorical “deferred action” programs of

the 1990s and 2000s, the “Family Fairness” program applied only

to individuals who were on track to receive a visa. DAPA, by

contrast. applies without regard to whether an individual has

any statutory path to lawful status. See infra pp.32-33.

was to “authorize ‘illegal aliens’ to work when it

decided not to pursue deportation,” Petr.Br.51, is

largely beside the point, as Congress did not prohibit

the employment of unauthorized aliens until 1986.

Likewise, whatever benefits the Executive may or may

not have extended to such individuals before 1996 is

irrelevant, as Congress put an end to those practices

with ITRIRA, which requires an individual to be

“lawfully present” to obtain Social Security, Medicare,

and other benefits. 8 U.S.C. §1611(b)(2)-(4). The

whole point of that restriction was to eliminate the

past practice of affording benefits whenever the

Executive chose to forebear removal. See, e.g.,

H.R. Rep. No. 104-725, at 383 (1996).

In light of that history, the only discretionary

practice of any relevance that even arguably has any

continued vitality under current law is “deferred

action.” And the only “deferred action” practices that

even arguably have any relevance here are those that

granted “deferred action” not on a case-by-case basis,

but “on the basis of aliens’ membership in defined

categories.” Petr.Br.43. Yet as compared to the

handful of past programs of that nature, DAPA plainly

“accomplishes a shift in kind, not merely degree.”

NFIB, 132 S. Ct. at 2605."

* The only possible exception is DACA, a program that

Congress has decidedly not ratified. Indeed. Congress’ decade-

long refusal to enact the DREAM Act has far greater relevance to

legality of DACA than Congress decision not to block all DHS

funding unless DACA is rescinded. See Petr. Br.59-60. While

Congress’ consistent refusal to grant the Executive a particular

power certainly has bearing on whether such power exists. see,

eg., Youngstown, 343 US. at 597-602 (Frankfurter. J.

concurring), Congress’ failure to take immediate action to refute

First, none of those programs extended “deferred

action” to a class of individuals who neither entered

this country legally nor have any prospect of obtaining

statutory authority to remain. Instead, past programs

have been confined to classes of individuals who either

were on track to obtain lawful status or were lawfully

present but lost (or were likely to imminently lose)

that status due to extraordinary circumstances

beyond their control. For instance, after Congress

enacted special visa provisions for victims of domestic

abuse, human trafficking, and other crimes, the

Executive established deferred action policies that

allowed beneficiaries of those statutes to stay while

awaiting visas. JA216-28, 229-38. In the wake of

Hurricane Katrina, the Executive adopted a deferred

action policy that allowed affected student-visa

holders to stay for a few months while awaiting the

opportunity to reenroll. R.675-83. And in 2009, the

Executive “provid[ed] deferred action to certain

surviving spouses of deceased U.S. citizens and their

children while Congress considered legislation to

allow these individuals to qualify for permanent

residence status.” Pet.App.4]14a n.3. Each of those

programs provided a bridge to a statutory form of

lawful status. DAPA. by contrast, is a bridge to

nowhere.

Second, none of those programs was adopted in

the face of a statute that expressly constrained the

Executive's authority to grant relief bared on

membership in the very same class. Yet DAPA not

only establishes a “deferred action” program for the

a novel assertion of executive power hardly suffices to prove

“ratification.”

same class covered by 8 U.S.C. §1229b(b)(1); it renders

members of that class eligible for relief on terms far

more generous than those established by Congress.

Whereas section 1229b(b)(1) requires physical

presence for ten years, DAPA requires it only since

January 1, 2010. Pet.App.417a. Whereas section

1229b(b)(1) requires proof “that removal would result

in exceptional and extremely unusual hardship to the

alien's ... child,” DAPA asks only whether there are

any “factors that, in the exercise of discretion, makes

the grant of deferred action inappropriate.”

Pet.App.417a. DAPA thus reverses the presumption

section 1229b(b)(1) creates; instead of demanding

“exceptional and extreme[]” circumstances that make

“lawful presence” appropriate, DAPA asks only

whether any factors make “lawful presence”

inappropriate. That unprecedented use of a

categorical “deferred action” program to override

express statutory constraints on the Executive's

discretion to grant relief to the very same class plainly

bounds.

Third, none of those other programs was adopted

in response to Congress’ refusal to create a statutory

path to lawful presence based on membership in that

same category. Instead, most past “deferred action”

programs were interstitial, designed to fill a statutory

gap in a way that facilitated Congress’ evident intent

to protect the category at issue. For instance, the

programs adopted for U and T visa beneficiaries

ensured that the Executive's own delay in adopting

implementing regulations and processing applications

would not force temporary removal of individuals

eligible for the new path to lawful status that

Congress created. See JA229-38. The surviving

spouses program was a temporary measure adopted in

response to Congress’ ongoing consideration of

uncontroversial legislation that shortly thereafter

became law. See Department of Homeland Security

Appropriations Act, 2010, Pub. L. No. 111-83, §568(c),

123 Stat. 2142, 2186-87 (2009). DAPA, by contrast, is

an unabashed effort to extend relief to a class of

individuals living in this country illegally in direct

response to Congress’ refusal to do the same.

Finally, while the principal problem is that DAPA

“accomplishes a shift in kind, not merely degree,”

NFIB, 132 S. Ct. at 2605, DAPA also dwarfs past

class-based “deferred action” programs by orders of

numerical magnitude. U and T visas were capped by

Congress at 15,000, 8 U.S.C. §1184(0)(2), (p)(2)(A), and

relief for student-visa holders affected by Hurricane

Katrina was limited to “several thousand foreign

students,” JA68. DAPA, by contrast, makes “deferred

action” available to more than 4 million individuals—

more than a third of the entire estimated population

of individuals living in this country illegally An

attempt to alter the legal consequences of continued

presence in this country for more than a third of the

illegal population plainly falls on the legislative, not

the executive, side of the line.®

In the end, then, it is petitioners’ conception of the

Executive's discretion under the immigration laws

" It also plainly constitutes the kind of executive action that,

even if authorized by statute—which it manifestly is not—could

be undertaken only in accordance with the Administrative

Procedure Act’ notice-and-comment safeguards. See Resp. Br.60-

70.

that “cannot be reconciled with this history,”

Petr.Br.48, for the recent history of those laws has

been one of constraining, not expanding or ratifying,

the kind of discretion the Executive claims here.

Moreover, even the forms of class-based discretion the

Executive has continued to exercise (albeit without

express statutory authority) bear no resemblance to

DAPA. Petitioners’ contention that Congress has

“ratified” the extraordinary power they claim thus

fails for the most basic of reasons: Congress cannot

have ratified a power that has never before been

asserted.

Nor is there any reason to believe Congress ever

would ratify a power as radical as the one the

Executive claims here. After all, Congress does not

ordinarily surrender to the Executive its power to

resolve “a question of deep ‘economic and political

significance’ that is central to [the] statutory scheme.”

King, 135 S. Ct. at 2489. And there are few questions

of greater economic and political significance to this

country than whether individuals who entered

illegally should be authorized to stay, work, and

receive benefits. That is certainly a question on which

reasonable minds can disagree. But this case is not

about how to answer that question; it is about who has

the power to answer that question. Under our

Constitution, Congress is entrusted with “All

legislative Powers,” including the “Power To

establish an uniform Rule of Naturalization.”

U.S. Const. art. I, §§1, 8, cl.4. The Executive may

disagree with the laws Congress enacts and may try

to persuade Congress to change them. But neither any

immigration law now on the books nor. the

Constitution empowers the Executive to authorize—

let alone facilitate—the prospective violation of those

laws on a massive class-wide scale. Because that is

precisely what DAPA does, it is both unlawful and

unconstitutional.

CONCLUSION

For the foregoing reasons, this Court should

affirm the judgment below

Respectfully submitted,