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

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No. 15-674

EE TS \

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA, ET AL.,

Petitioners,

Vv.

STATE OF TEXAS, ET AL.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF ADMINISTRATIVE LAW SCHOLARS

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

DEREK T. HO

Counsel of Record

JOANNA T. ZHANG*

TYEESHA I. DIXON*

KELLOGG, HUBER, HANSEN,

TODD, EVANS & FIGEL,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dho@khhte.com)

* (Not Admitted in D.C._;

Supervised by Members

March 8, 2016 of the Firm)

TABLE OF CONTENTS

Page

ER I, BEAT BEINN 6 BIND okinvccvecccosececpsnecrsossersoseosss iil

INTERES! OF AMICI CURIALZ............c.c0c00sscc0esee00s l

INTRODUCTION AND SUMMARY OF

REE EOLA CRIES 0 SEE ANC ORIENT Cpa me ay ONDE CE 2

IT i hesiticlsitsianacinntivinnpaapindanhiniaieacididuiaancasencmemedestl 6

I. THE COURT BELOW APPLIED AN

ERRONEOUS STANDARD IN DETER-

MINING WHETHER THE DAPA

MEMO CONSTITUTES A GENERAL

ES EME CW BUEMO ED occ ccccsccceccsssesccsesecense 6

A. General Policy Statements Are Pro-

nouncements that Advise the Public

Prospectively About the Way an

Agency Will Exercise Discretionary

PTT siccctuiconsetsidiasresatetaiusesupasthaweianenesis 6

B. The Fifth Circuit Erred in Requiring

Policy Statements To Leave Lower-

Level Agency Officials “Free To

IIE III occa cencdesssssanceseenesiosss 8

1. The Fifth Circuit’s Holding Is

at Odds with Constitutionally

Grounded Hierarchical Agency

Structure as Reflected in the

EC a ES te aap NS G

2. Requiring Notice and Comment

for Internally Binding Agency

Pronouncements Undermines

Sound Agency Practice...................... 10

3. Internally Binding Agency Guid-

ance Serves the Public’s Inter-

ests in Predictable and Trans-

parent Agency Action......................:. 13

C. Policy Statements Are Not Subject

to Notice and Comment Simply Be-

cause They May Have a Substantial

Practical Impact on Third Parties .......... 17

1. A Substantial-[mpact Test Is

Contrary to § 552(a)(2) and the

Exemptions Carved Out in

DS raise vnccrsssccsstccessommemnietrantineans 17

2. The DAPA Memo’'s Potential

Impact on a Large Number of

Individuals’ Ability To Request

Work Authorization Does Not

Trigger Notice-and-Comment

CNIBID cicscnsnsscseiositctarsnareneeertich 19

D. The Fifth Circuit’s Approach Illegiti-

mately Imposes Procedural Burdens

on Agencies Beyond Those Set Forth

Si GES Fie eicocaissccinanenicrvuisiinanee ae 20

ll. THE DAPA MEMO IS A GENERAL

OT AT eeene Ee GO WUMEA © évccinccencocarececenasencss 23

A. The DAPA Memo Is a Proper Exer-

cise of the Secretary’s Discretionary

Power To Establish National Immi-

gration Enforcement Policies and

PURI cicicsescsisccensrndeacicasdnlacscsaaannal 23

B. The Fifth Circuit’s Reliance on

President Obama’s Press Release

Tee TIO uc icennssovessiniinnntassansmamesaaell 24

IA cc cees esicivssicettstesetqnnsnnbenebulindtadbanasaaniaiid 26

TABLE OF AUTHORITIES

Page

CASES

American Mining Congress v. MSHA, 995 F.2d

is sclavedeonmnonconons 15

Barnhart v. Walton, 535 U.S. 212 (2002)................. 22

Cabais v. Egger, 690 F.2d 234 (D.C. Cir. 1982).... 18, 20

Catawba County v. EPA, 571 F.3d 20 (D.C. Cir.

a. a didsignendseucccnoese 8

Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984).............00.00c0e 22

Chrysler Corp. v. Brown, 441 U.S. 281 (1979)....... 3, 6

Edmond v. United States, 520 U.S. 651 (1997) ....... 10

Erringer v. Thompson, 371 F.3d 625 (9th Cir.

ee eo someseidbensesecesibeconces 8

Free Exter. Fund v. Public Co. Accounting

Oversight Bd., 561 U.S. 477 (2010) .......c.c000-. 10, 13

General Elec. Co. v. EPA, 290 F.3d 377

a csgunanbeciontsevees &

General Motors Corp. v. Ruckelshaus, 742 F.2d

a. scuustonesconetece 6

KasparWire Works, Inc. v. Secretary of Labor,

EE Ie EUs: GMs BED cccccccccccccccccsccesscess 18

Lincoln v. Vigil, 508 U.S. 182 (1993) ............. 3, 18, 24

Mada-Luna v. Fitzpatrick, 813 F.2d 1006

es uunaswonencneees 17

Morton v. Ruiz, 415 U.S. 199 (1974) .....ccc cece eccceees 6

National Mining Ass'n v. MeCarthy, 758 F.3d

a susumednaeons 6,8

Noel v. Chapman, 508 F.2d 1023 (2d Cir. 1975)........ 6

Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199

SIIIIIIY Gstcindshcicnehcaubibeansendebishcicinselaiiinemeiieandiiite 5, 6, 21, 22

Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000)...... 8-9

United States v. Mead Corp., 533 U.S. 218

TTT cnensdbncsscactemnandbadiiecatseatenusiduhssiainaiidadeiinniteg{t 9, 22

Vermont Yankee Nuclear Power Corp. uv.

Natural Res. Def. Council, Inc., 435 U.S. 519

[ERIINIIIY cserioxccechepibiesanstahabinbahbreetentaaeanicnheneaa 7, 19, 21

CONSTITUTION, STATUTES, REGULATIONS,

AND RULES

U.S. Const.:

Is TI whascidisinee taiitadannebiaanibamieediiabiahsiiainniaciatnnabiasaadiaice 9

§ 2, cl. 2 (Appointments Clause)..................... 10

Oe Ce I TI icnsvenncscacaeensainehsaireetesineses 9

Administrative Procedure Act, 5 U.S.C. § 551

it MINE cc ichacnasaneniiaunndicitianinuiaiednemainniadmmdestiin passim

er as Or I Si cnsctatoussese:stdonessenscetohaaintes 7

fob Te | EE ee eReS 5, 17, 18, 19

Ie Sir Ue SU Gini ciisirhaniacinidicnichiincieladpmapinadbeaiediaebaasasetas 1, 16

I a ies ie ca aa ae 3

§ U.S.C. § GESIMA) ........................... 3, &, 7, 17, 18

Affordable Care Act, Pub. L. No. 111-148,

124 Stat. 119 (2010) .............0...... RS RB AEE 15

Immigration and Nationality Act, 8 U.S.C. § 1101

et seq.:

ee Oe ccccecciccennccnapacteseeusnndecnpsbentncmmiiahe 9

RG I a ctrcicstictantscrenteneantcnnochnaseati 2.9

tee I cic ccinacusescoscopatiionsseccsnutes 20

Oe I aan cireccsscocemseecopeevesseteies 20

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, 100 Stat. 3359 ............... 19, 20

ee BI costecbariiatneieaniecascinninscaneousscnonarodacnmniaien 11

| | RR aeR a Sine PR eS ne nse ses Fu e e SMA eT Seay 9

I en i a a ee 2, 23, 25

ots Gk, | Saran een ee 20

Sup. Ct. R.:

SE EE saiicthnsship dicinaidiubtbsitnsmatinleabd ie neces 1

I I edi alan tlie i ie ae ee 1

LEGISLATIVE MATERIALS

S. Comm. on the Judiciary, Administrative

Procedure Act: Legislative History, S. Doc.

A, IN, II pcrinoccacemntenoksnbiwedenscvessiie 7

Bien, Bi TN ON ricci ech ected 7

ADMINISTRATIVE MATERIALS

Attorney General’s Manual on the Administra-

tive Procedure Act (1947) ...............cccccceeceee 3, 7, 18

Employment Authorization; Classes of Aliens

Eligible, 52 Fed. Reg. 46,092 (Dec. 4, 1987) ....... 20

Final Bulletin for Agency Good Guidance

Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007)...... 11

Final Report of the Attorney General’s Commit-

tee on Administrative Procedure, S. Doc. No.

UU I 10

Final Rule, Control of Employment of Aliens,

52 Fed. Reg. 16,216 (May 1, 1987).................. 5, 20

Memorandum from Jeh Johnson, Sec’y, Dep't of

Homeland Security, to Leon Rodriguez, Dir.,

U.S. Citizenship & Immigration Servs., et

al. (Nov. 20, 2014), available at https://www.

dhs.gov/sites/default/files/publications/14_

1120_memo_deferred_action.pdf ...2, 3, 5, 6, 8, 16,

19, 20, 23, 24, 25

Press Release, The White House, Office of the

Press Secretary, Remarks by the President

on Immigration — Chicago, IL (Nov. 25,

2014), available at https://www.whitehouse.

gov/the-press-office/20 1 4/1 1/25/remarks-

president-immigration-chicago-il.................. 24, 25

Recommendations of the Administrative Con-

ference Regarding Administrative Practice

and Procedure, 57 Fed. Reg. 30,101 (July 8,

Eat Aetna Sentence ci nee A ae Sere ee 11, 12

Vil

U.S. Gov't Accountability Office, Statement

of Michelle A. Sager. Regulatory Guidance

Processes: Agencies Could Benefit from

Stronger Internal Control Practices (Sept.

23, 2015), available at http://www.gao.gov/

EE 14-15

OTHER MATERIALS

Michael Asimow, California Underground Regu-

lations, 44 Admin. L. Rev. 43 (1992)................... 16

Nicholas Bagley & Helen Levy, Essential

Health Benefits and the Affordable Care

Act: Law and Process, 39 J. Health Pol. Pol'y

ie i I ITI ah insirciacinteeanadmdiibemandigiidenscnmeiaaniene’ 15

David L. Franklin, Legislative Rules, Non-

legislative Rules, and the Perils of the Short

oe 2 Ue E . |. | ae eeee 6

William Funk, A Primer on Nonlegislative Rules,

53 Admin. L. Rev. 1321 (2001).................secsssse0e0. 6

Jacob E. Gersen, Legislative Rules Revisited,

Fe he Ges Me SO: he EE wttveceesenctectesesccvscicons 6

Ronald M. Levin, Rulemaking Under the 2010

Model State Administrative Procedure Act,

30 Widener 1.0. 6E6 (B01 1) ..........00....00000000400000-.. 12

John F. Manning, Nonlegislative Rules, 72 Geo.

Os Ss Pts CNET SEIU caaiccniihviinedescvenmntescenstinnes 6.7

vill

JERRY L. MASHAW:

BUREAUCRATIC JUSTICE: MANAGING SOCIAL

SECURITY DISABILITY CLAIMS (1983) ................... 16

CREATING THE ADMINISTRATIVE CONSTITU.-

TION: THE LOST ONE HUNDRED YEARS OF

AMERICAN ADMINISTRATIVE LAW (2012).............. 12

Nina A. Mendelson, Regulatory Beneficiaries

and Informal Agency Policymaking, 92

I Bk: Sis GE I Oi nicctnédncccnadetiaverosconnerstenss 7

Gillian E. Metzger, The Constitutional Duty

To Supervise, 124 Yale L.J. 1836 (2015).......... 4, 9,

10, 13, 25

Paul R. Noe & John D. Graham, Due Process

and Management for Guidance Documents:

Good Governance Long Overdue, 25 Yale J.

i TE: Spee ED Snnctccirecdicusntbdndavmnstibinctbsncieiseaie 14

Anne Joseph O'Connell, Agency Rulemaking

and Political Transitions, 105 Nw. U. L. Rev.

og SER ee ee 13

Jeff Overley, Pressure Builds on FDA To Over-

haul Guidance Process, Law360 (Sept. 29,

SS LEM LY EN 18 TR DA eT 15

Richard J. Pierce, Jr., Administrative Law

Treatise (5th ed. 2010):

WEG: Or cincisscdscinaclschapusannkebbiadees 4, 6, 13, 14, 15, 16, 17

Connor N. Raso, Note, Strategic or Sincere?

Analyzing Agency Use of Guidance Docu-

ments, 119 Yale L.J. 782 (2010).......................... 14

Revised Model State Administrative Procedure

Act (2010), available at http://www.uniform-

laws.org/shared/docs/state%20administrative

%20procedure/msapa_final_10.pdf..................... 12

Kevin M. Stack, The President's Statutory

Powers to Administer the Laws, 106 Colum.

EN PEEP al, 2 ERE ep a gh on, 25

Peter L. Strauss:

Publication Rules in the Rulemaking

Spectrum: Assuring Proper Respect for an

Essential Element, 53 Admin. L. Rev. 803

INTE niiddedanbasaiitahadininatkakedditiibieddaca ede. 4,7, 13

The Place of Agencies in Government:

Separation of Powers and the Fourth

Branch, 84 Colum. L. Rev. 573 (1984)................ 25

The Rulemaking Continuum, 41 Duke L.J.

RR SET Se RE ORES ME IPN FAM A AR 13, 14

Richard M. Thomas, Prosecutorial Discretion

and Agency Self-Regulation: CNI v. Young

and the Aflatoxin Dance, 44 Admin. L. Rev.

SEE ME eititansitniedinicltsiaciatatesdodeapiatabicbcddesddeicke dois 20) 16

INTEREST OF AMICI CURIAE |

Amici are professors who teach, write, and research

administrative law. They have extensively studied

the effect of administrative law on public administra-

tion and have a strong interest in identifying the

proper scope of the Administrative Procedure Act's

notice-and-comment requirement under 5 U.S.C. § 553.

Amici are the following scholars:*

Daniel A. Farber, Sho Sato Professor of Law,

University of California, Berkeley;

Michael Eric Herz, Arthur Kaplan Professor of Law,

Cardozo School of Law;

Ronald M. Levin, William R. Orthwein Distin-

guished Professor of Law, Washington University

School of Law:

Jerry L. Mashaw, Sterling Professor Emeritus of

Law and Professorial Lecturer in Law, Yale Law

School;

Nina A. Mendelson, Joseph L. Sax Collegiate Profes-

sor of Law, University of Michigan Law School;

Gillian E. Metzger, Stanley H. Fuld Professor of

Law, Columbia Law School:

' Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that none of the parties or their counsel, nor any other

person or entity other than amici or their counsel, made a mone-

tary contribution intended to fund the preparation or submission

of this brief. Pursuant to Rule 37.3(a), counsel for amici repre-

sent that all parties have consented to the filing of this brief.

Petitioners filed a letter with the Clerk granting blanket consent

to the filing of amicus briefs; the written consent of respondents

to the filing of this brief is being submitted with this brief.

2 Amici join this brief as individuals; institutional affiliation

is noted for informational purposes only and does not indicate

endorsement by institutional employers of positions advocated.

Anne Joseph O’Connell, George Johnson Professor

of Law, University of California at Berkeley School of

Law;

Richard J. Pierce, Jr., Lyle T. Alverson Professor of

Law, George Washington University Law School;

Susan Rose-Ackerman, Henry R. Luce Professor of

Jurisprudence, Yale Law School;

Kevin M. Stack, Professor of Law, Vanderbilt Law

School:

Peter L. Strauss. Betts Professor of Law, Columbia

Law School:

Adrian Vermeule, John H. Watson, Jr. Professor of

Law, Harvard Law School.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Congress has expressly authorized the Secretary

of the Department of Homeland Security (“DHS”) to

“[e]stablish[] national immigration enforcement poll-

cies and priorities,” 6 U.S.C. § 202(5), and to “establish

such regulations; ... issue such instructions; and

perform such other acts as he deems necessary for

carrying out his authority,” 8 U.S.C. § 1103(a)(3). For

years, the Secretary has acted pursuant to this statu-

tory authority to forbear from removing particular un-

documented immigrants for discretionary reasons. In

November 2014, DHS Secretary Jeh Johnson issued

a memorandum extending that policy of forbearance

to certain “removable aliens” residing in the United

States whose children are American citizens or lawful

permanent residents. See Memorandum from Jeh

Johnson, Sec’y, DHS, to Leon Rodriguez, Dir., U.S.

Citizenship & Immigration Servs., et al., at 3-4 (Nov.

20, 2014) (“DAPA Memo”), available at https://www.

dhs.gov/sites/default/files/publications/14_1120_memo_

deferred_action.pdf.

The DAPA Memo represents the formalization of

the DHS'’s policy with respect to the agency's exercise

of its statutory enforcement discretion. Rather than

creating substantive legal rights or imposing substan-

tive legal obligations, DAPA simply “‘“advise[s] the

public prospectively of the manner in which the

agency proposes to exercise a discretionary power.” ”

Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (quoting

Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)

(quoting Attorney General's Manual on the Adminis-

trative Procedure Act 30 n.3 (1947) (“AG Manual”))).

As such, the DAPA Memo falls within the Administra-

tive Procedure Act’s (“APA”) definition of a “general

statement of policy,” which is exempt from notice-and-

comment requirements. 5 U.S.C. § 553(b)(A) (allow-

ing agencies to issue “interpretative rules, general

statements of policy, or rules of agency organization,

procedure, or practice” without engaging in notice and

comment).

The Fifth Circuit adopted an erroneous legal stan-

dard in reaching the conclusion that the DAPA Memo

was not a general statement of policy.’ First, the court

mistakenly held that the DAPA Memo was subject to

notice and comment because it did not “genuinely

* While amici may hold varying views on whether the agency

would have been well served, as a matter of public policy. to

undertake notice and comment, they all agree that the APA did

not require DHS to engage in notice and comment before prom-

ulgating the DAPA Memo, because it falls under the APA's policy

statement exception. Amici do not address in this brief whether

the DAPA Memo also falls under the APA's benefits exception,

see 5 U.S.C. § 553(a)(2), or the APA's exception for procedural

rules, see id. § 553(b)(A).

leave the agency and its employees free to exercise

discretion.” Texas v. United States, 809 F.3d 134, 176

(5th Cir. 2015) (emphasis added). Regardless of

whether the underlying factual premise of this asser-

tion is accurate, the fact that an agency pronounce-

ment binds lower-level agency officials does not mean

it is a legislative rule rather than a policy statement

for APA purposes. Indeed, a central purpose of

general policy statements is to permit the agency head

to direct the implementation of agency policy by lower-

level officials.

As amici and other administrative law scholars

have explained, it is critical for agency heads to be

able to bind lower-level agency employees to ensure

that the agency’s policies are reliably carried out.

See, e.g., Gillian E. Metzger, The Constitutional Duty

To Supervise, 124 Yale L.J. 1836 (2015); 3 Richard

J. Pierce, Jr., Administrative Law Treatise § 17.3

(5th ed. 2010) (“Pierce”); Peter L. Strauss, Publication

Rules in the Rulemaking Spectrum: Assuring Proper

Respect for an Essential Element, 53 Admin. L.

Rev. 803 (2001). Requiring notice and comment every

time an agency head promulgates binding internal

guidance would fundamentally impair agency heads’

ability to direct the agencies they are statutorily

charged with overseeing. Discretion at the level of the

agency head, not discretion by lower-level staff, is

therefore the essential factor.

Second, the Fifth Circuit erred to the extent it stated

that a policy statement’s “substantial impact” on third

parties is a basis to require notice and comment.

See Texas, 809 F.3d at 176. Creating legal rights and

obligations, not practical effects, is the touchstone

for notice and comment. See 3 Pierce § 17.3, at 1572

(notice and comment required if a rule has “a legal

binding effect on members of the public”). There is no

textual support in the APA for a “substantial impact”

test. Such a test would undercut the explicit exemp-

tions in the APA. See 5 U.S.C. § 553(b)(A). The APA

is clear that policy statements and interpretive rules

may affect the public. and even be relied upon by the

agency, so long as they were appropriately published

or the public had actual notice, as happened here. See

id. § 552(a)(2). Moreover, such a substantial impact

test is wholly unworkable in practice.

The fact that individuals who qualify for deferred

action under the DAPA Memo may then request work

authorization does not transform the DAPA Memo

into a substantive rule. Such work authorization

is the result of a rule adopted through notice and

comment in 1987 allowing individuals with deferred

action to request work authorization. See Final Rule,

Control of Employment of Aliens, 52 Fed. Reg. 16.216

(May 1, 1987).

This Court has repeatedly and consistently admon-

ished lower courts not to impose additional procedural

requirements on agencies beyond those mandated by

the APA, including just last Term in Perez v. Mortgage

Bankers Association, 135 S. Ct. 1199 (2015). The Fifth

Circuit’s decision should be reversed because it

ignores the Court’s instructions and improperly

expands the APA’s notice-and-comment requirement.

ARGUMENT

I. THE COURT BELOW APPLIED AN ERRO-

NEOUS STANDARD IN DETERMINING

WHETHER THE DAPA MEMO CONSTI-

TUTES A GENERAL STATEMENT OF

POLICY

A. General Policy Statements Are Pronounce-

ments that Advise the Public Prospectively

About the Way an Agency Will Exercise

Discretionary Authority

It is well-established that regulations that create

legally enforceable rights or obligations for regulated

parties have the force and effect of law, and therefore

are “legislative” or “substantive” rules that must go

through notice and comment. See, e.g., Perez v.

Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1203 (2015);

Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979);

Morton v. Ruiz, 415 U.S. 199, 232, 236 (1974); see also

3 Pierce § 17.3, at 1572. Distinguishing between

legislative rules and those rules the APA expressly

exempts from notice and comment has long been

recognized as “enshrouded in a considerable smog.”

Noel v. Chapman, 508 F.2d 1023, 1030 (2d Cir. 1975);

see General Motors Corp. v. Ruckelshaus, 742 F.2d

1561, 1565 (D.C. Cir. 1984) (en banc); National

Mining Ass'n v. McCarthy, 758 F.3d 243, 251 (D.C.

Cir. 2014) (describing the inquiry as “quite difficult

and confused”). This case presents an opportunity

* Administrative law scholars have long struggled to try to

make sense of the distinction. Leading recent works include

David L. Franklin, Legislative Rules, Nonlegislative Rules, and

the Perils of the Short Cut, 120 Yale L.J. 276 (2010); William

Funk, A Primer on Nonlegislative Rules, 53 Admin. L. Rev. 1321

(2001); Jacob E. Gersen, Legislative Rules Revisited, 74 U. Chi.

L. Rev. 1705 (2007); John F. Manning, Nonlegislative Rules, 72

for the Court to provide much needed clarity and pre-

dictability on that question. See generally Manning,

72 Geo. Wash. L. Rev. at 893 (“Among the many

complexities that trouble administrative law. few

rank with that of sorting valid from invalid uses of

so-called ‘nonlegislative rules.’”).

Although the APA does not expressly define a

“general statement[] of policy.” 5 U.S.C. § 553(b)(A).

the AG Manual — a source to which the Court refers

for insight on the APA’s meaning, see, e.g.. Vermont

Yankee Nuclear Power Corp. v. Natural Res. Def.

Council, Inc., 435 U.S. 519, 546 (1978) — describes

policy statements as a means by which an agency

may “advise the public prospectively of the manner in

which the agency proposes to exercise a discretionary

power.” AG Manual at 30 n.3.

That definition is appropriate. The APA's drafters

were concerned with ensuring that the public was

informed of agency policies. See Strauss, 53 Admin.

L. Rev. at 804-12. They deemed of central importance

section 3(a) of the APA, 5 U.S.C. § 552(a), which

requires agencies to publish statements of general

policy, along with substantive rules, interpretations,

organization, and procedure, in the Federal Register.

See S. Rep. No. 79-752, at 198 (1945). The rules

covered by the express exemptions from notice and

comment in § 553(b)(A) were viewed as part of this

informing function and adopted precisely “to encour-

age the making of such rules” in the first place. See

S. Comm. on the Judiciary, Administrative Procedure

Act: Legislative History, S. Doc. No. 79-248, at 18 (2d

Sess. 1946); Strauss, 53 Admin. L. Rev. at 804-12.

Geo. Wash. L. Rev. 893 (2004): Nina A. Mendelson, Regulatory

Beneficiaries and Informal Agency Policvmaking, 92 Cornell L.

Rev. 397 (2007).

The definition is also consistent with recent D.C.

Circuit case law, which states that notice and

comment is required only when the agency’s issuance

itself imposes legally binding obligations. As Judge

Kavanaugh stated in National Mining Association v.

McCarthy, “{a]n agency action that merely explains

how the agency will enforce a statute or regulation —

in other words, how it will exercise its broad enforce-

ment discretion or permitting discretion under some

extant statute or rule — is a general statement of

policy.” 758 F.3d at 252; see also Catawba County v.

EPA, 571 F.3d 20, 33-34 (D.C. Cir. 2009) (per curiam)

(deeming EPA memorandum a policy statement

because it “does not create or modify legally binding

rights or obligations”) (citing General Elec. Co. v. EPA,

290 F.3d 377, 382-83 (D.C. Cir. 2002)).

B. The Fifth Circuit Erred in Requiring Policy

Statements To Leave Lower-Level Agency

Officials “Free To Exercise Discretion”

In affirming the preliminary injunction, the Fifth

Cucuit held that the DAPA Memo is a substantive

rule because “the states have established a substan-

tial likelihood that DAPA would not genuinely leave

the agency and its employees free to exercise discre-

tion.” Texas, 809 F.3d at 176, 178 (emphasis added).

That reasoning was inappropriate because promulgat-

ing binding guidance for lower-level agency officials is

precisely what general policy statements are properly

designed to do.*

* Other circuits have rejected the Fifth Circuit's proposition

that a guidance document becomes legislative if it binds agency

staff. See, e.g., Erringer v. Thompson, 371 F.3d 625, 631 (9th Cir.

2004) (“Although the [agency manual's] criteria do bind the

Medicare contractors, our query is whether the rule has a binding

effect ‘on tribunals outside the agency.’”); Splane v. West, 216

1. The Fifth Circuit’s Holding Is at

Odds with Constitutionally Grounded

Hierarchical Agency Structure as

Reflected in the APA’s Text

Federal statutes typically vest discretion to deter-

mine agency policy in the agency head — here, the

Secretary of DHS. See, e.g.. 8 U.S.C. § 1103(a)(3) (“[the

Secretary of Homeland Security] shall establish such

regulations; ... issue such instructions; and perform

such other acts as he deems necessary for carrying out

his authority”); 6 U.S.C. § 202: see also United States

v. Mead Corp., 533 U.S. 218, 236 (2001) (noting

“the great variety of ways in which the laws invest the

Government's administrative arms with discretion,

and with procedures for exercising it”). The role of

agency staff, by contrast, is to carry out the policy

decisions made by the Secretary. See, e.g., 8 U.S.C.

§ 1103(a)(2) (“[The Secretary of Homeland Security]

shall have control, direction, and supervision of all

employees .. . of the Service.”).

That structure is set out in the Constitution itself.

Article II provides express textual recognition of a

duty to supervise that extends beyond the President

and “represents a broader structural principle run-

ning throughout Article II's treatment of the executive

branch.” Metzger, 124 Yale L.J. at 1875. The Take

Care Clause, which specifies that the President “shall

take Care that the Laws be faithfully executed,”

U.S. Const. art. Il, § 3, contemplates that the “actual

execution of the laws will be done by others” under the

President's oversight and that such oversight is

F.3d 1058, 1064 (Fed. Cir. 2000) (“T]he [Supreme] Court's refer-

ence to a regulation having the ‘force and effect of law’ is to the

binding effect of that regulation on tribunals outside the agency,

not on the agency itself.”).

mandatory. Metzger, 124 Yale L.J. at 1875-77. The

Constitution thus lays the foundation for a “hierar-

chical structure for federal administration, under

which lower government officials act subject to higher-

level superintendence.” Jd. at 1879.6

2. Requiring Notice and Comment for

Internally Binding Agency Pronounce-

ments Undermines Sound Agency Prac-

tice

A policy statement’s ability to bind agency staff

without notice-and-comment rulemaking is crucial

to facilitating the agency secretary’s constitutionally

grounded duty to supervise and effectively delegate

responsibilities to lower-level officials. This role for

policy statements was identified by the Final Report

of the Attorney General's Committee on Administra-

tive Procedure, S. Doc. No. 77-8 (1st Sess. 1941) (“AG's

Committee Final Report”), an important document

in the development of the APA. That report urged

agency heads to make greater use of these kinds of

issuances, “stating for the guidance of agency officials

those policies which have been crystallized, and which

the responsible officers need only apply to the partic-

ular case at hand.” AG’s Committee Final Report

at 23; see also id. at 26 (noting agencies’ reliance on

genera! policies and interpretations, and urging recog-

nition “of the authority and duty of agencies to issue

such information”).

® This structure also is evident in the Appointments Clause

case law, which defines “inferior Officers” as “‘officers whose

work is directed and supervised at some level’ by other officers

appointed by the President with the Senate's consent.” Free

Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S.

477, 510 (2010) (quoting Edmond v. United States, 520 U.S. 651,

663 (1997)).

The importance of internally binding guidance for

agency accountability is equally vital today. For

instance, a 2007 Bulletin issued by the Office of Man-

agement and Budget entitled “Agency Good Guidance

Practices” explains that, “while a guidance document

cannot legally bind, agencies can appropriately bind

their employees to abide by agency policy as a matter

of their supervisory powers over such employees

without undertaking pre-adoption notice and comment

rulemaking.” Final Bulletin for Agency Good Guid-

ance Practices, 72 Fed. Reg. 3432, 3437 (Jan. 25, 2007)

(“OMB Bulletin”); see id. at 3440 (“Agency employees

should not depart from significant guidance docu-

ments without appropriate justification and super-

visory concurrence.”).’

The Administrative Conference of the United States

(“ACUS’), a congressionally created body intended to

improve agency practice,” has similarly emphasized

the importance of agencies providing authoritative

guidance for agency staff. In its Recommendation No.

92-2 on policy statements, ACUS stated that agencies

may make “a policy statement which is authoritative

for staff officials in the interest of administrative

‘ The OMB Bulletin clarified that mandatory language such

as “shall” and “must” is permissible if the language is “addressed

to agency staff and will not foreclose agency consideration of

positions advanced by affected private parties. OMB Bulletin,

72 Fed. Reg. at 3440.

® ACUS is empowered by statute to “study the efficiency,

adequacy, and fairness of the administrative procedure used

by administrative agencies in carrying out administrative pro-

grams, and make recommendations to administrative agencies.

collectively or individually, and to the President, Congress. or

the Judicial Conference of the United States, in connection there-

with, as it considers appropriate.” 5 U.S.C. § 594(1).

uniformity or policy coherence,” adding that “agencies

are encouraged to provide guidance to staff ... as

a means to regularize employee action that directly

affects the public.” Recommendations of the Adminis-

trative Conference Regarding Administrative Practice

and Procedure, 57 Fed. Reg. 30,101, 30,103, 30,104

(July 8, 1992). So, too, the Model State Administrative

Procedure Act, drawing on both the ACUS Recommen-

dation and the OMB Bulletin, reiterated that “[a}

guidance document may contain binding instructions

to agency staff members.” Revised Model State

Administrative Procedure Act § 311(c), at 43 (2010),

available at http://www.uniformlaws.org/shared/docs/

state%20administrative%20procedure/msapa_final_

10.pdf; see also Ronald M. Levin, Rulemaking Under

the 2010 Model State Administrative Procedure Act,

20 Widener L.J. 855 (2011).”

Early administrative practice also reveals an emphasis on

the central role of the “internal law of administration,” under

which “higher-level officials instruct subordinates and through

which they can call them to account for their actions.” JERRY

L. MASHAW, CREATING THE ADMINISTRATIVE CONSTITUTION: THE

Lost ONE HUNDRED YEARS OF AMERICAN ADMINISTRATIVE LAW 7

(2012). And, as Professor Mashaw has extensively documented,

the prime mechanism for such high-level oversight was the

equivalent of modern-day policy statements and guidance: inter-

nal circulars and memos laying out the agency head's views

on policy matters and instructing lower-level officials on how to

proceed. /d. at 140. For instance, “the consistency, propriety.

and energy of administrative implementation was made account-

able primarily to high-ranking officials in the Treasury and the

General Land Office.” Id. “These were the sources of instruction,

interpretation, audit, and oversight that counted in the day-to-

day activities of administrative officials.” Jd.

3. Internally Binding Agency Guidance

Serves the Public’s’ Interests’ in

Predictable and Transparent Agency

Action

The power of agencies to order their internal opera-

tions by binding lower-level staff not only is critical to

agency practice, but also serves the public's interests

in the predictability and reliability of agency action.

See generally Strauss, 53 Admin. L. Rev. at 808; Peter

L. Strauss, The Rulemaking Continuum, 41 Duke L.J.

1463 (1992); 3 Pierce § 17.3, at 1571-72. And strong

internal supervision within the executive branch is

essential “to ensure that policies and priorities speci-

fied by elected leaders are actually carried out on the

ground.” Metzger, 124 Yale L.J. at 1892-93; see also

Free Enter. Fund, 561 U.S. at 497-99 (emphasizing the

importance of a “clear and effective chain of command”

to political accountability. as the public looks to

the “President to guide the assistants or deputies .. .

subject to his superintendence”) (internal quotation

marks omitted; alteration in original). Predictable.

trustworthy administration of agency policy in turn

benefits the public. See 3 Pierce § 17.3, at 1572

(“Agency employees routinely apply [guidance] to

limit their own discretion, and the public routinely

relies on [them] as a basis for predicting agency

actions.”).

While notice-and-comment rulemaking promotes

transparency and public participation, it also takes

resources and time. Completion of the notice-and-

comment rulemaking process already takes. on aver-

age, more than a year. See Anne Joseph O'Connell,

Agency Rulemaking and Political Transitions, 105

Nw. U. L. Rev. 471, 513 (2011) (estimating that the

average notice-and-comment rulemaking process took

462.79 days, using data on completed actions from the

1983-2010 Unified Agendas). “Agencies rarely amend

legislative rules in important ways once they are in

effect because a major amendment typically involves

cost and delay equa] to that required to promulgate a

major rule.” 3 Pierce § 17.3, at 1574. And the time

needed to complete the notice-and-comment process

would only grow longer if it were mandated for all

internally binding rules. Indeed, such a requirement

would significantly expand the amount of notice-and-

comment rulemaking agencies must undertake, given

that agencies issue substantially more guidance than

notice-and-comment rules. See Strauss, 41 Duke L.J.

at 1469 (providing case studies of several agencies

showing that agencies issue far more guidance than

legislative rules); Connor N. Raso, Note, Strategic or

Sincere? Analyzing Agency Use of Guidance Docu-

ments, 119 Yale L.J. 782, 785-86 (2010) (noting that

guidance outnumbers legislative rules).

As these data on usage suggest, policy statements,

like other forms of guidance, play a critical role in

regulatory programs. See Paul R. Noe & John D.

Graham, Due Process and Management for Guidance

Documents: Good Governance Long Overdue, 25 Yale

J. on Reg. 103, 108 (2008) (noting that guidance docu-

ments are “a key component of regulatory programs”);

U.S. Gov't Accountability Office, Statement of Michelle

A. Sager. Regulatory Guidance Processes: Agencies

Could Benefit from Stronger Internal Control Prac-

tices 1 (Sept. 23, 2015) (“Regulatory guidance is an im-

portant tool that agencies use to communicate timely

information about the implementation of regulatory

and grant programs to regulated parties, grantees,

and the general public.”), available at http://www.gao.

gov/assets/680/672687.pdf. In fact, regulated indus.

tries and States seek out and benefit from agency

instruction in the form of guidance. See Nicholas

Bagley & Helen Levy, Essential Health Benefits and

the Affordable Care Act: Law and Process, 39 J. Health

Pol. Pol'y & L. 441, 442-48 (2014) (observing that

guidance is the primary way agencies have delivered

instructions to state officials implementing the Afford.

able Care Act); Jeff Overley, Pressure Builds on FDA

To Overhaul Guidance Process, Law360 (Sept. 29,

2014) (noting that the Food and Drug Administration

is open to demands from the public to implement “a

faster and more responsive guidance process’),

Treating statements that bind lower-level officials

as substantive rules requiring notice and comment,

as the Fifth Circuit does here, would undermine the

APA's core objective of ensuring transparency in

agency policy. [Impeding agencies from issuing policy

guidance would leave agency policy subject to the

unpredictable and non-transparent discretion of lower-

level officials. See 3 Pierce § 17.3, at 1575 (absent

policy guidance, “[tjens of thousands of low level

bureaucrats w[ould] have broad discretionary powers,

and the affected members of the public wlould] have

no means of predicting the many ways in which

agency employees will exercise those discretionary

powers’); American Mining Congress v. MSHA, 995

F.2d 1106, 1112 (D.C, Cir, 1993) (“The protection that

Congress sought to secure by requiring notice and

comment for legislative rules is not advanced by read.

ing the exemption for ‘interpretive rule’ so narrowly

as to drive agencies into ad hocery - an ad hocery,

moreover, that affords less notice, or less convenient

notice, to affected parties,”) (Williams, J.),

Such a position would also drive agency policy.

making out of public view. Compelled by the need

to bind lower-level officials, agencies would have

perverse incentives to “continue to limit adminis-

trative discretion, but in ways that are hidden from

public (and judicial) view.” 3 Pierce § 17.3, at 1575.

They could confine all staff instructions to informal,

internal documents or oral statements, transforming

policymaking into “an underground operation in

which only a few favored individuals and interest

groups participate.” /d.; see Michael Asimow, Califor.

nia Underground Regulations, 44 Admin, L. Rev. 43,

58 (1992) (explaining that in California, where agen.

cles are required by statute to use notice and comment

to promulgate all non-legislative rules, many agencies

have stopped adopting rules and have left unrevised

all preexisting “rules, manuals, bulletins, and the like

even when these are outdated”); Richard M, Thomas.

Prosecutorial Discretion and Agency Self-Regulation:

CNI v. Young and the Aflatoxin Dance, 44 Admin.

L.. Rev, 131 (1992). The effect would be at odds with

the APA's objective to increase public information,

predictability, and supervision — the very goals § 553's

policy statement exemption sought to achieve.

The supervisor approval and detailed implemen.

tation instructions that the Fifth Circuit cites as

evidence of the DAPA Memo illegitimately binding

internal staff, see Texas, 809 F.3d at 174-75, are

precisely the types of oversight mechanisms that

agencies must provide in order to ensure consistency

and managerial control in mass administrative adju-

dication contexts. See generally JERRY L. MASHAW,

BUREAUCRATIC JUSTICE; MANAGING SOCIAL SECURITY

DISABILITY CLAIMS (1983). Put simply, the APA does

not require notice and comment for guidance that

binds lower-level agency officials, and courts should

not read it as such, See 3 Pierce § 17.3, at 1576 (With

luck, the Supreme Court will have occasion to reject

th[is] doctrine unequivocally before it begins to have

la] devastating effect.”),

C. Policy Statements Are Not Subject to

Notice and Comment Simply Because They

May Have a Substantial Practical Impact

on Third Parties

1. A Substantial-Impact Test Is Contrary

to §552(a)(2) and the Exemptions

Carved Out in § 553(b)(A)

The court below also erred in suggesting that an

agency pronouncement must go through notice and

comment if it might have a substantial practical

impact on third parties outside of the agency. Texas,

809 F.3d at 176. To begin with, the panel itself

acknowledged that the “substantial impact” test is

used by the Fifth Circuit to distinguish between a

procedural rule and a substantive rule, as opposed to

between a policy statement and a substantive rule.

See id, (“(T|}he substantial impact test is the primary

means by which [we] look beyond the label ‘proce.

dural’ to determine whether a rule is of the type Con.

gress thought appropriate for public participation.”)

(internal quotation marks omitted; emphasis added;

alterations in original). In fact, other courts have

expressly declined to apply this substantial-impact

test to policy statements. See, e.g., Mada-Luna v, Fitz.

patrick, 813 F.2d 1006, 1016 (9th Cir, 1987) (rejecting

substantial-impact test during review of an earlier

Immigration and Naturalization Service policy state-

ment on deferred action). Even under the panel's own

analysis, therefore, it appears that a policy statement

remains exempt from notice and comment even if it

has substantia) practical effects on third parties.

There is also no basis for adopting a “substantial

impact” test for imposing notice-and-comment

requirements. Such a test finds no grounding in the

APA's text. Indeed, such a test is inconsistent with

the APA's express exemption of certain types of agency

pronouncements from notice and comment even

though they certainly can have substantial practical

effects, See 5 U.S.C, § 553(b)(A). Take, for example,

“interpretative rules.”'° The AG Manual defines

“interpretative rules” as “rules or statements issued

by an agency to advise the public of the agency's

construction of the statutes and rules which it admin.

isters.” AG Manual at 30 n.3; see Lincoln v. Vigil, 508

U.S. 182, 197 (1993). An agency's construction of stat.

utes and rules that it will then administer frequently

will have a substantial impact on regulated entities,

even in cases where it has “no binding effect on mem.

bers of the public or on courts.” | Pierce § 6.3, at 419.

The same goes for policy statements, which often

have non-binding, substantial effects on the public.

A substantial-impact test would improperly override

the APA's express exemption for policy statements

by creating an exception to this exemption out of thin

air. See Kaspar Wire Works, Inc. v. Secretary of Labor,

268 F.8d 1123, 1182 (D.C, Cir, 2001); Cabais v. Egger,

690 F.2d 234, 237 (D.C, Cir, 1982) (“Simply because

agency action has substantial impact does not mean

it is subject to notice and comment if it is otherwise

expressly exempt under the APA.”), Moreover, it is

directly contrary to the APA's explicit provision, in

§ 552(a)(2), that a policy statement “that affects a

member of the public may be relied on, used, or cited

as precedent” by an agency against a party so long

'” “Interpretative” rules are commonly called “interpretive”

rules, and this brief uses those terms interchangeably

as it was published or there was actual notice, as

occurred here,'!

Lastly, a substantial-impact test would be unwork-

able in practice, creating uncertainty for agencies and

effectively eliminating the APA's policy statement

exception, The determination of how much impact a

policy statement can have before notice and comment

is required varies by context and court. Unsure of

whether a court will deem a policy statement’'s impact

“substantial,” agencies will no doubt err on the side

of using notice and comment, As this Court stated in

an analogous context, the possibility of such judicial

“Monday morning quarterbacking” on the agency's

procedural choices “not only encourages but almost

compels the agency to conduct all rulemaking proceed.

ings with the full panoply of procedural devices

normally associated only with adjudicatory hearings.”

Vermont Yankee Nuclear Power, 435 U.S, at 547.

2. The DAPA Memo’s Potential Impact on

a Large Number of Individuals’ Ability

Tv Request Work Authorization Does

Not Trigger Notice-and-Comment Obli-

gations

Under the Immigration Reform and Control Act of

1986 (“IRCA”), the Immigration and Naturalization

Service (DHS's predecessor) used notice-and-comment

rulemaking, receiving thousands of comments in the

ee es

'l Phe full text of the last sentence of section H52(a)(2) pro

vides: “A final order, opinion, statement of policy, interpretation,

or staff manual or instruction that affects a member of the public

may be relied on, used, or cited as precedent by an agency against

a party other than an agency only if-—4i) it has been indexed and

either made available or published as provided by this para.

graph; or (ii) the party has actual and timely notice of the terms

thereof.” 5 U.S.C, § 552(a)(2),

process, before reaffirming its pre-IRCA regulation

providing that deferred-action recipients, along with

other categories of aliens, are eligible to apply for work

authorization, See 8 C.F.R, § 274a,12(c)(14); 52 Fed,

Reg. at 16,217 (noting “broad spectrum” of participa-

tion); see also Employment Authorization; Classes of

Aliens Eligible, 52 Fed, Reg. 46,092, 46,092 (Dee. 4,

1987) (noting “wide spectrum” of participation in prior

rulemaking). Accordingly, if and when many individ.

uals receive deferred action pursuant to the DAPA

Memo, they will, in turn, be able to apply for work

authorization, If they receive such authorization,

then employers may lawfully hire them, see 8 U.S.C,

§ 1324a(a)(1)(a), (h)(3), just as they have lawfully

hired countless other aliens who have received such

authorization over the past 30 years,

The fact that individuals who have been granted

deferred action under the DAPA Memo may then

request work authorization does not transform the

DAPA Memo into a substantive rule, There is no basis

in the APA for taking into account the incidental,

practical impact of a rule in determining whether

notice and comment is required, See supra pp. 17-19;

Cabais, 690 F.2d at 237 n.3 (noting that “[t}he words

‘substantial impact’ do not appear in the APA").

Moreover, the eligibility for work authorization for

deferred-action aliens as for many others is indepen.

dent of the DAPA Memo and instead results from the

IRCA and from the 1987 rule, which was adopted

through notice and comment.

D. The Fifth Circuit’s Approach Illegitimately

Imposes Procedural Burdens on Agencies

Beyond Those Set Forth in the APA

This Court has repeatedly rejected efforts by lower

courts to augment the procedures required by the

APA, As the Court made clear in Vermont Yankee

Nuclear Power Corp. v. Natural Resources Defense

Council, Inc., the APA “established the maximum

procedural requirements which Congress was willing

to have the courts impose upon agencies in conducting

rulemaking procedures,” 435 U.S, at 524, “Agencies

are free to grant additional procedural) rights in the

exercise of their discretion, but reviewing courts are

generally not free to impose them if the agencies have

not chosen to grant them.” /d,

The Court affirmed this principle just last Term

in Perez v. Mortgage Bankers Association, There, the

Court overruled the D.C, Circuit's requirement that

agencies must go through notice and comment prior to

changing an interpretive rule, According to the Court,

“the text of the APA makes plain [that] [i)nterpre-

tive rules do not require notice and comment,” and,

therefore, an agency's amended interpretation of an

interpretive rule does not either. 1355. Ct. at 1208-

09 (internal quotation marks omitted),

This Court specifically refused to impose additiona!

procedural requirements on agencies in order to safe-

guard the interests of regulated parties, explaining

that Congress has decided “to adopt standards that

permit agencies to promulgate freely [interpretive]

rules — whether or not they are consistent with earlier

interpretations” — and that imposing the obligation to

go through notice and comment to change a regulatory

interpretation “is the responsibility of Congress or the

administrative agencies, not the courts.” Jd. at 1207,

This assiduous insistence on not imposing proce-

dural requirements beyond those set forth in the APA

does not mean that, when an agency issues guidance

outside of notice-and-comment rulemaking, its action

goes unchecked, First, as the Court in Perez noted,

even when an agency does not proceed through notice

and comment, “[t}he APA contains a variety of

constraints on agency decisionmaking — the arbitrary

and capricious standard being among the most

notable.” Jd. at 1209."

Second, the Court has made clear that an agency's

choice to issue a policy statement or interpretive rule

as opposed to a legislative rule issued through notice-

and-comment rulemaking has other consequences for

judicial review. In particular, the agency's statutory

interpretations in the policy statement may not qual-

ify for deference under Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984),

depending on the circumstances, whereas those same

positions in a legislative rule would presumptively

warrant consideration under Chevron. See Mead, 533

U.S. at 229-30 (holding that rulemaking and its exer-

cise are very good indicators for Chevron deference);

cf. Barnhart v. Walton, 535 U.S. 212, 221 (2002)

(absence of notice-and-comment rulemaking does not

automatically deprive the interpretation of judicial

deference under Chevron). To the extent agencies

wish to benefit from Chevron deference as to their

statutory interpretation positions, this doctrine gives

agencies an incentive to implement their statutes

through legislative rules that have the public partici-

pation benefits of notice and comment. In short,

administrative law polices agency policy statements

'? The Court also noted that “Congress is aware that agencies

sometimes alter their views in ways that upset settled reliance

interests” and addresses this concern by “sometimes includ[ing]

in the statutes it drafts safe-harbor provisions that shelter

regulated entities from liability when they act in conformance

with previous agency interpretations.” 1355S. Ct. at 1209.

through standards of review that are clearly articu-

lated in advance, not by imposing on an agency proce-

dural requirements beyond those the agency or others

could find in the APA.

ll. THE DAPA MEMO IS A GENERAL STATE-

MENT OF POLICY

A. The DAPA Memo Is a Proper Exercise of

the Secretary’s Discretionary Power To

Establish National Immigration Enforce-

ment Policies and Priorities

The DAPA Memo embodies the Secretary's

prospective decision, in the exercise of his congres-

sionally delegated discretion, not to use DHS's limited

resources to remove certain applicants from the

United States. See DAPA Memo at 3 (recognizing

that law-abiding parents of United States citizens or

lawful permanent residents are “extremely unlikely to

be deported given th[e] [DHS's] limited enforcement

resources”). The DAPA Memo thus is a quintessential

general policy statement because it announces the

Secretary's prospective implementation, within his

own agency, of his discretionary decision on “national

immigration enforcement policies and priorities.”

6 U.S.C. § 202(5)."

'3 Amici also note that. contrary to the States’ contention, the

DAPA Memo grants significant discretion to internal agency

staff. It explicitly gives agency officials discretion over enforce-

ment decisions, referencing nine times the “case-by-case” deter-

minations that U.S. Citizenship and Immigration Services

agents must make in deciding whether to grant deferred action

to applicants. DAPA Memo at 4-5. It also includes criteria that

the agents are to use in exercising their discretionary judgment.

such as considering whether an applicant “present[s] no other

factors that, in the exercise of discretion, makes the grant of

deferred action inappropriate.” /d.

Furthermore, the DAPA Memo does not create

any legal rights or obligations for private parties. It

expressly states: “This memorandum confers no

substantive right, immigration status or pathway

to citizenship. Only an Act of Congress can confer

these rights. It remains within the authority of the

Executive Branch, however, to set forth policy for

the exercise of prosecutorial discretion and deferred

action within the framework of existing law. This

memorandum is an exercise of that authority.” DAPA

Memo at 5.

The Secretary retains the discretion to change the

agency's policy at any time, and no member of the

public would have a legal basis to enforce the DAPA

Memo if the agency were to modify its discretionary

allocation of internal immigration enforcement

resources. Cf. Lincoln, 508 U.S. at 197 (“Whatever

else may be considered a ‘general statemen|t] of

policy,’ the term surely includes an announcement like

the one before us, that an agency will discontinue a

discretionary allocation of unrestricted funds from a

lump-sum appropriation.”) (alteration in original).

B. The Fifth Circuit’s Reliance on President

Obama’s Press Release Was Improper

The Fifth Circuit inappropriately gave weight to

President Obama’s public statement that he “took

action to change the law” in reference to DAPA in

concluding that the DAPA Memo modified substantive

rights. See Press Release, The White House, Office

of the Press Secretary, Remarks by the President

on Immigration — Chicago, IL (Nov. 25, 2014) (“Nov.

25, 2014 Press Release”), available at https://www.

whitehouse.gov/the-press-office/20 14/1 1/25/remarks-

president-immigration-chicago-il; Texas, 809 F.3d at

185. As an initial matter, the President was not

addressing whether the DAPA Memo was binding law

subject to notice and comment, but merely using the

term “law” in an informal sense. His press release

stated: “[T]he way the change in the law works is that

we're reprioritizing how we enforce our immigration

laws generally. So not everybody qualifies for

being able to sign up and register, but the change

in priorities applies to everybody.” Nov. 25, 2014

Press Release. The “change in the law” to which the

President was referring was the alteration of removal

priorities within the agency. At no point did the Pres-

ident suggest that the DAPA Memo was legally bind-

ing on the public. In fact, he specifically acknowledged

that “[t]his isn’t amnesty, or legalization, or even a

pathway to citizenship — because that’s not something

I can do.” Id.

Nor does the President's statement have the power

to alter the legal status of the DAPA Memo under

the APA, because Congress granted the Secretary, not

the President, authority over national immigration

enforcement priorities. See supra pp. 23-24 (discuss-

ing 6 U.S.C. § 202(5)). The President’s power — and

constitutional duty — is limited in this circumstance

to supervising the DHS Secretary's exercise of that

statutorily delegated authority. See Metzger. 124

Yale L.J. at 1929; Peter L. Strauss, The Place of

Agencies in Government: Separation of Powers and

the Fourth Branch, 84 Colum. L. Rev. 573, 605-08

(1984); Kevin M. Stack, The President's Statutory

Powers to Administer the Laws, 106 Colum. L. Rev.

263, 322 (2006) (advocating “a conception of the

agency official's role that emphasizes the official's

independent duty under the law, as opposed to its act-

ing in the stead of the President”). The President's

characterization of the Secretary's DAPA Memo thus

is not authoritative and cannot be used to impose

notice-and-comment requirements under the APA.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,