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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A23

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

NO. 15-674

Fn the
Supreme Court of the United States

UNITED STATES OF AMERICA, et al.,

Petitioners,
v.

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

ll

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

ll

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
ee I MI, I ccretianimninnoerstatanpudncenasin 1, 35
if fe gy OS ee eee 1, 21. 35

Ses UR MIRE. Ty TEU Ga se vecscnsacanescndnnsscowcesenes passim

iV

Statutes

EEE LE NATE 22, 25
| Re en Wa Se passim
| RR IE a Re Ne 1 SEH aed eye 6
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
CB EER AEP ree oe ee eeaee ras Bee 9 29
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

Vv

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

vl

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
rg ee CE, CD cevesccnccececsscccesecccesvesesens 6
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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Be; SESE, Pe CAIN, GD cv scerscnscescscncsesesscsovesncesecesi 6
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me: Bi fe. |. RRR rereanrerronrmnernerer ee 7
Bs NE A CA IID vnctcvknccccssuchoshansanekigetentiadniais 7

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.

2

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

3

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).

4

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

(c) that removal would result in extreme
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:

5)

(C) has not been convicted of [certain
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.

6

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).

7

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

8

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

9

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

10

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

1]

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

12

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

13

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,

14

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

15

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.

16

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

17

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
register going forward.

18

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

19

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,

20

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

21

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

22

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.

23

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

24

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

25

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

26

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!”

27

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).

28

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

29

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.

30

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.

31

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

32

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.”

33

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
oversteps the ©xecutive’s statutory and constitutional
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

34

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.

35

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—

36

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,

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
the United States House of Representatives

April 4, 2016

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A23. Public record. Not legal advice.