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

No. 15-674

In the

Supreme Court of the Anited 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 LEGAL SCHOLARS

RONALD A. CASS AND

CHRISTOPHER C. DEMUTH AND

THE JUDICIAL EDUCATION PROJECT AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

C. BOYDEN GRAY ASHLEY C. PARRISH

ADAM R.F. GUSTAFSON Counsel of Record

DEREK S. LYONS JAMES P. SULLIVAN

JAMES R. CONDE KING & SPALDING LLLP

BOYDEN GRAY 1700 Pennsylvania Ave.. NW

& ASSOCIATES Washington, DC 20006

801 17th Street, NW (202) 737-0500

Washington, DC 20006 aparrish@kslaw.com

Counsel for Amici Curiae*

April 4, 2016 *additional counsel listed on inside cover

CARRIE SEVERINO

THE JUDICIAL

EDUCATION PROJECT

722 12th Street, NW

Washington, D.C. 20005

Counsel for the

Judicial Education Project

TABLE OF CONTENTS

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INTEREST OF AMICI CURIAE......................::0:0000080 ]

INTRODUCTION

AND SUMMARY OF ARGUMENT..................... 3

I a cen cnieedichan< cussing Waransenixexiicsenes 6

I. Rules With Substantive Legal Effect Must

Comply With The APA's Notice-and-

Comment Requirements. ........................0.c000c0000e G

Il. The Secretary's Program Is _ Invalid

Because It Violates Notice-And-Comment

Rulemaking Requirements. ............................0.. 12

A. The Secretarys Program Is A

Substantive Rule Requiring Notice

pT SEES eee REE ENN ene SESE 12

1. DAPA Exempts [Individuals From

PI ech ict incdadadevaasdiscanasse 13

2. DAPA Imposes New Numerical

Criteria To Govern’ Future

Licensing Proceedings.......................... 17

3. DAPA Is A Substantive Rule That

Binds Agency Officials. ........................ 22

B. The Secretary's Program Is Not A

Mere Statement Of Policy..........0......000....00.. 25

Ill. This Court Should Give Full Force And

Effect To The APA’s Notice-and-Comment

EERIE RAE ai ns Res Sere pa 28

ul

A. Agencies May Not Circumvent Notice-

and-Comment Requirements....................... 29

B. Powerful Reasons Of Law and Policy

Compel Notice-and-Comment

Rulemaking In This Case. .....................00008 33

CONCLIUGIOON ...cccescesesseuesss0snsseensinssesteainneasninnninnannnae 36

il

TABLE OF AUTHORITIES

Cases

Atl. Richfield Co. v. United States,

EE 16

Batterton v. Marshall,

648 F.2d 694 (D.C. Cir. 1980) .................c.. cece eee i)

Bowen v. Michigan Academy

of Family Physicians,

476 U.S. 667 (1986)...................... ae 31

Catholic Health Initiatives v. Sebelius,

617 F.3d 490 (D.C. Cir. 2010)................. 18, 19, 20

CBS Inc. v. United States,

SE a 25

Chamber of Commerce v. OSHA,

EE EE OES, GE, BOMIED coccoccccveccccsctesccccceceees 9

Chamber of Commerce v. Whiting,

os cscsccscupnucssevecenesesses 10

Christopher v. SmithKline Beecham Corp.,

a cinoeeerces 31

Chrysler Corp. v. Brown,

EL 5,8

Citizens Commce’ns Ctr. v. FCC,

ee , CA, BOP ERD cccccccccocsecccccccoccrece 33

Citizens to Preserve Overton Park v. Volpe,

a cesuntanortonsenes 4

Cmty. Nutrition Inst. v. Young,

818 F.2d 943 (D.C. Cir. 1987) ....................:cc00e0008 9

iv

Columbia Broad. Sys. v. United States,

Se Le Me MD cesncinstcimtcainnnadendeicebain 9, 25, 27

FCC v. Fox Television Stations, Inc.,

I i 8

Free Enter. Fund v.

Pub. Co. Accounting Oversight Bd.,

re rl 6, 31

General Elec. Co. v. EPA,

- ge Pry fh els 3 20

Gonzales v. Oregon,

Sr a lament 31

Guardian Fed. Saus. & Loan Ass’n v.

Federal Savs. & Loan Ins. Corp.,

ee te ee ire Cs BP pcctcddecctccdseceseniccenens 24

Heckler v. Chaney,

oe ERE ave see 16, 23

Hoctor v. USDA,

82 F.3d 165 (7th Cir. 1996)................ 18, 19, 20, 21

Towa League of Cities v. EPA,

711 F.3d 844 (6th Cir. 2019)........................... 5, 28

Judulang v. Holder,

Be | a en ery a 19

Mahler v. Eby,

a scccientesinaicisoubieilesatachaciaane cat 4

McLouth Steel Prods. Corp. v. Thomas,

638 F.24 1317 (D.C. Cir. 1968)........................... 23

Mendoza v. Perez,

754 F.3d 1002 (D.C. Cir. 2014) ...... eee 9, 33

Morton v. Ruiz,

i i rn ceensibeedenpeuiiaoaeeans 5,9

Motor Vehicle Mfrs. Assn. v.

State Farm Mut. Auto. Ins. Co..,

I at cal eeemiinaiionbe 19

Nader v. CAB,

ofp EF ok ele | | eres 24

Nat'l Small Shipments Traffic

Conference, Inc. v. ICC,

725 F.2d 1442 (D.C. Cir. 1984)........................... 20

National Min. Ass'n v. McCarthy,

768 F.3d 24 (D.C. Cir. 2014)........................... 9, 11

New Jersey Dep't of Envtl. Prot. v. EPA,

626 F.34 1038 (D.C. Cir. 1960) ............................. 9

NLRB v. Wyman-Gordon Co.,

ge Ey REESE ee ay Serer eet 8

Noel v. Chapman,

34 5 f. be . -. eo 28

Pacific Gas & Elec. Co. v. FPC,

ee ee es Gs I idivcisiccccaccecessdcmssscons 23

Pan-Atlantic Steamship Corp. v.

Atlantic Coast Line R. Co.,

Eas SESS ee RaN eer e re 16

Perez v. Mortgage Bankers Ass'n,

ils SI lite sccicimininittanernasenoniciins 4, 7, 32

Pickus v. U.S. Bd. of Parole,

607 F.24 1107 (D.C. Cir. 1974)..................... 24, 26

vl

Prof'ls and Patients for

Customized Care v. Shalala,

oe | ft Vo Re. _— : Raa eneenEneEEnE 22

Rapanos v. United States,

I re a 33

Russello v. United States,

a eI ae 11

Sackett v. EPA,

I ol 4

SEC v. Chenery Corp.,

I eal 5

Shalala v. Guernsey Mem'l Hosp.,

REC a IE ae ei oe 30

Syncor Intern. Corp. v. Shalala,

ee ee Ss ERI TIED dcsisicenektscsncnsanescinucssaion 29

Tex. Sav. & Cmty. Bankers Ass'n v.

Fed. Hous. Fin. Bd.,

BO Fe GSE Gotie Cae. BOG) ....c.ccccccescccsccccccsecesss 29

United States v. Picciotto,

- je | | "8. 3 eee 32

U.S. Tel. Ass’n v. FCC,

BB Be BBE GC. Cae. BODO ..nccccccoccececccccesceseses 22

Vermont Yankee Nuclear Power Corp. v.

Natural Res. Def. Council, Inc.,

I nn ca passim

Victoria v. Napolitano,

No. 12cv1827,

2013 WL 3746133 (S.D. Cal., July 15, 2013)...... 13

vil

Wong Yang Sung v. McGrath,

SE, HN II sos serch bru aa cahnsaeiniiasacsisianpesedbieuimeenh 4

Constitutional Provisions

I I, a 8

Statutes

CR SR EINE a ata Ae Cea PR SN RAE eles 7

OO 7

eee hos se 10, 15

ie ete ee oe alae ee 11, 12

Se, Me ao eae 16

NSE SE ERE eB Ee ate ta 8

i a isc sail al lan ia atainncseenipioedtioniaaminsne 11

ee Fe ides tasicinesinsienionsiinninentnsateiedaeoamebietes 8

EE. SMI cis crstcncntiiccsacuesenindwanniovndetpiodsatenenovinides 8

ee I ciths cinvscectriiniarnemisnaacmmstulaiinctmaatinnnoaneadl 11

Be RT sciehinceicocncaniitekginpndenmmennsgaiionanen 11, 17

NG, a al ce 18

I I i a ee ee 18

Sees UE UN ists ices csnlicnbaiitnsed otanddwndaainemnandlicarnedte 14

es te I ccseantctisnasnasscneskacdnbsidedssenienn 13, 14

es Se Se iriiccisitcirinitninvinidestantiniatinnepnnonvamen 16

vill

Other Authorities

Administrative Conference of the United States,

The Procedural and Practice Rule Exemption from

the APA Notice-and-Comment Rulemaking

Requirements Recommendation No. 92-1,

57 Fed. Reg. 30101 (July 8, 1992).............0.00.... 28

Anthony, Robert A.

“Interpretative” Rules, “Legislative” Rules, and

“Spurious” Rules: Lifting the Smog,

Be ee Us EP, BID can ccavetccccnscccouesesees 19

Bamberger, Kenneth A.

Regulation as Delegation: Private Firms,

Decisionmaking, and Accountability in the

Administrative State,

EE aoe 34

Black’s Law Dictionary (10th ed. 2014)................... 10

Bremer, Emily S.

The Unwritten Administrative Constitution,

7 Be ee i)

Davis, Kenneth C.

Administrative Powers of Supervising,

Prosecuting, Advising, Declaring, and

Informally Adjudicating,

ee Ba, Ce IE bctcetesccciseccsccsesiscnennses 27

Duffy, John F.

Administrative Common Law

in Judicial Review,

ie. 3a ‘ot 5.) Pee 27

Friendly, Henry J.

Watchman, What of the Night?,

REESE SSE ale eee cree mean rae 18

1X

Ginnane, Robert W.

“Rule Making” “Adjudications” and Exemptions

Under the Administrative Procedure Act,

io) 8, 9 8. |, rae 7

Gluck, Abbe, et al.,

Unorthodox Lawmaking, Unorthodox

Rulemaking,

115 Colum. L. Rev. 1789 (2015)....0.0..0..e. 31

Greve, Michael S. & Ashley C. Parrish,

Administrative Law Without Congress,

22 Geo. Mason L. Rev. 501 (2015) ...................... 30

Hegel, G.W.F.

The Phenomenology of Mind

(J. Baillie trans., 2d ed. rev. 1949) ....0..00.00000000... 29

Lawson, Gary

Outcome, Procedure and Process: Agency

Duties of Explanation for Legal Conclusions,

48 Rutgers L. Rev. 313 (1996) .....0000..000. 20

Manning, John F.

Nonlegislative Rules,

72 Geo. Wash. L. Rev. 893 (2004) ............00000000... 26

McCarran, Pat

Three Years of the Federal Administrative

Procedure Act—A Study in Legislation,

ee ede cudiete aot 4

Pierce, Jr., Richard J.

Administrative Law Treatise (5th ed. 2010)...... 30

Seidenfeld, Mark

Substituting Substantive for Procedural

Review of Guidance Documents,

yy 3 |: aera 30

Shepherd, George B.

Fierce Compromise: The Administrative

Procedure Act Emerges From New Deal Politics,

OO We. U. Le. Bay. BEST CIGBS) ccccsessccccsscacesseseeseess. 7

Stack, Kevin M.

The Constitutional Foundations of Chenery,

116 Yale Lid. GES (JOOT) .............cccerccccsceecersscorees 34

Strauss, Peter L.

The Rulemaking Continuum,

rig: “SRF me - it. | eeereeeurrrcerrer errr 25

The Federalist No. 70

(Hamilton) (Clinton Rossiter ed., 1961) ............... s)

U.S. Citizenship and Immigration Servs.,

DACA Recipients Who Received 3- Year Work

Permit Post-Injunction: Quick Facts ...............++- 25

Webster's Third New

International Dictionary (2002)....................0..08 10

INTEREST OF AMICI CURIAE'

Amici legal scholars and the Judicial Education

Project respectfully submit this brief to assist the

Court in addressing an important administrative-law

question. Amici legal scholars have taught and

written extensively on administrative law, and thus

have a strong interest in this case. With their

affiliations provided for identification purposes only,

they are:

Ronald A. Cass,

Dean Emeritus,

Boston University School of Law

Christopher C. DeMuth,

Distinguished Fellow,

The Hudson Institute

The Judicial Education Project, a non-profit

educational organization in Washington, D.C., is

dedicated to defending the Constitution as envisioned

by its Framers—a _ federal government of

enumerated, limited powers. The Judicial Education

Project educates citizens about these constitutional

principles, with a focus on the judiciary’s role in our

democracy.

' The parties have consented to the filing of this brief in letters

on file in the Clerk’s office. Pursuant to Supreme Court Rule

37.6, amici state that no counsel for any party authored this

brief in whole or in part, and no person or entity, other than

amici, their members, or their counsel, made a monetary

contribution intended to fund the preparation or submission of

this brief. Amici received no compensation for offering the

views reflected herein.

2

This brief is limited to addressing the third

question presented: Whether the Secretary of

Homeland Security's immigration program had to be

implemented through notice-and-comment rule-

making. Amici take no position on any of the other

questions presented. Nor do they express any view

on the merits of the administration’s program. Were

it not for the posture of the case, this brief could have

been filed in support of neither party. Amici are

concerned exclusively with the Secretary's failure to

follow the Administrative Procedure Act's

requirements for notice-and-comment rulemaking.

Ignoring those requirements has become a recurrent

problem in agency decision-making. This Court

should reject the Secretary's attempts to undermine

that foundational principle of American

administrative law.

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

In a so-called “memorandum,” the Secretary of

Homeland Security has sought to establish a new

program, known as Deferred Action for Parents of

Americans (“DAPA”), that would make _ several

million aliens eligible to receive “lawful presence,”

employment authorization, and other benefits

otherwise barred to them by law. Congress

considered—but did not adopt—a very similar

program. Reasonable people can and do disagree

about the merits of the program; and as this case

comes before the Court, immigration is a central

theme of a contentious election campaign. Yet the

Secretary asserts his authority to implement DAPA,

altering the status of more than four million

immigrants, through the equivalent of a government

press release—on no legal authority except a general

“vesting” of his discretionary powers and without the

notice-and-comment procedures that, in_ the

administrative state, serve to safeguard

constitutional interests in lawful, transparent, and

accountable democratic government. For good

measure, the Secretary insists that his program is

judicially unreviewable. None of these contentions

can be reconciled with the text or structure of the

Administrative Procedure Act (“APA”).

The APA has been described as resolving “long-

continued and _ hard-fought contentions” and

providing a “formula upon which opposing social and

political forces have come to rest.” Vermont Yankee

Nuclear Power Corp. v. Natural Res. Def. Council,

Inc., 435 U.S. 519, 523 (1978) (quoting Wong Yang

4

Sung v. McGrath, 339 U.S. 33, 40 (1950)). The APA

seeks to reconcile a complex, democratic society's

demands for expertise and efficiency with the equally

compelling imperatives of lawful, accountable

government. See generally Pat McCarran, Three

Years of the Federal Administrative Procedure Act—A

Study in Legislation, 38 Geo. L. J. 574 (1950). On

this foundation rest the APA’s procedural and

judicial-review provisions. See 5 U.S.C. §§ 553, 554,

701 706.

The federal judiciary has been assiduous in

safeguarding the APA’s “formula” against erosion,

evasion, or emendation on either side. Courts may

not require agencies to adopt procedures beyond

those required by the APA or an agency’s organic

statutes. See Vermont Yankee, 435 U.S. at 549; Perez

v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1207

(2015). Conversely, agencies must follow, and may

not evade, the procedures—including provisions for

judiciai review—that the law demands. See, e.g.,

Vermont Yankee, 435 U.S. at 549 n.21 (citing Citizens

to Preserve Overton Park v. Volpe, 401 U.S. 402, 417

(1971)); Mahler v. Eby, 264 U.S. 32, 44 (1924); see

also Sackett v. EPA, 132 S. Ct. 1367 (2012).

Agencies’ perennial temptation to depart from

the APA’s formula is particularly strong where, as

here, presidential direction of agency policies

provides an aura of democratic legitimacy,

humanitarian and economic concerns are substantial,

and the Congress that might provide a statutory

framework for a coherent administrative program

appears deadlocked. None of these considerations,

however, grant an agency the power to act in the

5

absence of congressional authorization—-and

certainly not in the face of statutory commands

directing how the agency should proceed. The APA is

not a straightjacket; it affords agencies a great deal

of leeway in choosing their own procedures. Cf. SEC

v. Chenery Corp., 332 U.S. 194, 203 (1947). On that

same account, though, agencies must abide by the

APA’s modest but unmistakable procedural

commands. See Vermont Yankee, 435 U.S. at 549

n.21; see also Chrysler Corp. v. Brown, 441 U.S. 281.

303 (1979); Morton v. Ruiz, 415 U.S. 199, 232 (1974).

Those commands help “secure the values. of

government transparency and public participation,”

Iowa League of Cities v. EPA, 711 F.3d 844, 873 (8th

Cir. 2013), by ensuring that agencies provide

reasoned explanations for their decisions after

evaluating and responding to comments.

In this case, the Secretary has conspicuously

failed to comply with the APA. The Secretary's

deferred-action program is a substantive “rule,” as

the APA defines that term, and not a mere statement

of policy, as the Secretary contends. It must

therefore comply with the APA’s notice-and-comment

procedures. Canons against the circumvention of

APA rulemaking requirements, as well as compelling

reasons of law and policy, prohibit the Secretary's

attempt to evade those basic requirements.

6

ARGUMENT

I. Rules With Substantive Legal Effect Must

Comply With The APA’s_ Notice-and-

Comment Requirements.

The agency action under review is reflected in

the Secretary's memorandum concerning _ its

“Deferred Action for Parents of Americans and

Lawful Permanent Residents” program. Pet. App.

411a—419a. Before this litigation, the administration

concluded that it lacked authority, in the absence of

congressional legislation, to implement the program

at all. See, e.g., State Br. 9. Yet the Secretary now

confidently asserts his authority to implement the

program as a routine exercise of his enforcement

discretion—and to do so without notice and comment.

That bold assertion of executive power threatens

to upend the APA and its carefully wrought formula.

To a startling extent, the Secretary's defense of his

program rests on supposed peculiarities of

immigration law—a conferral of “lawful presence”

that according to the Secretary has no legal

consequence, U.S. Br. 66; or the establishment of a

comprehensive administrative machinery, governing

millions of people, that rests on nothing except the

Secretary's general authority to enforce, or not, the

laws of this country, id. at 61, 63. In that light, the

APA’s formula and its underlying constitutional logic

bear rehearsing.

The APA sets out the basic framework to govern

“a vast and varied federal bureaucracy.” Free Enter.

Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.

477, 499 (2010). It is designed to address the

7

challenges of the administrative state by allowing

agencies to exercise varied executive powers—

subject, however, to procedural requirements

designed by Congress and, with few circumscribed

exceptions, to judicial review.

The APA recognizes two principal forms of

agency action: rulemaking, and adjudication. The

APA “is predicated upon working out a_ logical

distinction between rule making and adjudication

and upon interpreting and integrating the various

exceptions with this basic distinction.” Robert W.

Ginnane, “Rule Making” “Adjudications” and

Exemptions Under the Administrative Procedure Act,

95 U. Pa. L. Rev. 621, 642 (1947). To that end, the

APA broadly defines a “rule” as “the whole or a part

of an agency statement of general or particular

applicability and future effect designed to implement,

interpret, or prescribe law or policy[.}” 5 U.S.C.

§551(4). When an agency “makes’—formulates,

amends, or repeals—a rule, see id. §551(5), it is

ordinarily required to proceed through a familiar

“three-step” notice-and-comment procedure. Perez,

135 S. Ct. at 1203.

Congress did not impose that procedure by

happenstance. It is an essential part of a

compromise that allowed executive agencies to wield

rulemaking power while accounting for the

significant separation-of-powers concerns that arise

from delegating such authority to executive agencies.

See George B. Shepherd, Fierce Compromise: The

Administrative Procedure Act Emerges From New

Deal Politics, 90 Nw. U. L. Rev. 1557 (1996).

Congress, being directly elected and vested with

8

“{ajll” legislative powers granted in the Constitution,

U.S. Const. Art. 1, § 1, can choose whether to assign

reasons for an exercise of those powers; conduct its

deliberations on the record; or give interested

persons an opportunity to participate in _ its

proceedings. Agencies must do these things as the

price of exercising delegated power. See 5 U.S.C.

§ 553(c). In this fashion, notice-and-comment

rulemaking safeguards lawful, transparent, and

accountable government. See, e.g., Chrysler Corp.,

441 U.S. at 303 (noting that the APA’s procedural

requirements “assure fairness and mature

consideration of rules of general application”)

(quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759,

764 (1969)).

The APA also recognizes that procedural

requirements, imposed in_ furtherance of

constitutional government, may impose burdens on

the Executive that are not always necessary. The

statute thus carves out narrow exceptions to notice-

and-comment requirements. The specified exceptions

include exemptions for certain government benefits,

5 U.S.C. § 553(a)(2); “rules of agency organization,

procedure, or practice,” id. § 553(b)(3)(A); “good

cause,” id. § 553(b)(3)(B); and, as relevant here,

“interpretative rules [and] general statements of

policy,” id. § 553(b)(3)(A).

The exceptions are consistent with, and logically

derived from, the constitutional structure. See

generally FCC v. Fox Television Stations, Inc., 556

U.S. 502, 536-37 (2009) (Kennedy, J., concurring);

see also Emily S. Bremer, The Unwritten

Administrative Constitution, 66 Fla. L. Rev. 1215

9

(2014). The powers are delegated to the Executive—

the one branch of government that can, and is

designed to, mobilize and economize on “energy” and

“dispatch.” The Federalist No. 70, at 423~—24

(Hamilton) (Clinton Rossiter ed., 1961). Precisely

because powers entrusted to the Executive are

naturally open-ended, the APA does not define what

does and does not constitute a “good cause” or (as

relevant here) a “statement of policy” For that same

reason, however, an agency s powers to escape notice-

and-comment rulemaking are limited in number and

scope. Batterton v. Marshall, 648 F.2d 694, 701 (D.C.

Cir. 1980) (exceptions are “limited”). The exceptions

must be “narrowly construed and_ reluctantly

countenanced.” New Jersey Dep't of Envtl. Prot. v.

EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980).

The courts have characterized policy statements

as “musings” or explanations about what an agency

may do in the future—agency statements that are

“no more subject to review than a press release.”

Columbia Broad. Sys. v. United States, 316 U.S. 407,

422 (1942); see also National Min. Ass'n v. McCarthy,

758 F.3d 243, 252 (D.C. Cir. 2014); Cmty. Nutrition

Inst. v. Young, 818 F.2d 943, 948 (D.C. Cir. 1987).

The exception remains an exception; notice and

comment remains the baseline. Rules that

implement statutory policy are rules that have

substantive effect and must therefore satisfy notice-

and-comment requirements. Morton, 415 U.S. at

232; see also Mendoza v. Perez, 754 F.3d 1002, 1023

(D.C. Cir. 2014); Chamber of Commerce v. OSHA, 636

F.2d 464, 469 (D.C. Cir. 1980).

10

The structural and interpretive principles just

described govern permissive as well as coercive rules.

The APA includes explicit provisions that apply when

an agency seeks to exempt an individual or groups of

individuals from generally applicable law. A

permission to do that which is otherwise unlawful is

a license. See 5 U.S.C. § 551(8) (defining “license” as

“the whole or a part of an agency ... exemption or

other form of permission”).

The grant of a license differs from an exercise of

enforcement discretion because a license, by its

nature, changes the legal rights and obligations of

the individual to whom the license is granted. When

executive officials exercise discretion not to enforce

the law in particular cases, the unprosecuted

remains a lawbreaker in the eyes of the law. In

contrast, the grant of a license affirmatively

authorizes the license holder to engage in conduct

that would otherwise be unlawful. In the eyes of the

law, the conduct is permitted, not just unprosecuted.

See Chamber of Commerce v. Whiting, 131 S. Ct.

1968, 1978 (2011) (a license is “a right or permission

granted in accordance with law ... to do some act ...

which but for such license would be unlawful”

(quoting Websters Third New International

Dictionary 1304 (2002)); Black’s Law Dictionary

(10th ed. 2014) (defining “license” as “permission,

usually revocable, to commit some act that would

otherwise be unlawful”).

Precisely because licenses have substantive

effect, the APA recognizes that exemptions from

generally applicable law—no less than coercive

orders—pose challenges for the rule of law. When an

1]

agency creates an exemption prospectively for a

group of individuals—and not in response to a

specific individual's application for an exemption—

the rule governing the process by which licenses will

be granted requires notice and comment. 5 U.S.C.

§ 553(d)(1) (substantive rules include those that

“grant[{] or recognize[{] an exemption or relieve[] a

restriction”); id § 551(9) (defining “licensing” as the

“agency process respecting the grant, renewal, denial

. or condition of a license”); Natl Mining, 758 F.3d

at 251-52 (“an agency action that sets forth legally

binding requirements for a private party to obtain a

permit or license is a legislative rule”).

The need to comply with notice-and-comment

procedures in promulgating such rules is confirmed

by the APA’s text and _ structure. Congress

recognized both the difference and the commonality

between coercive and permissive rules. A coercive

rule, validly enacted, compels prompt compliance

upon proper notice—30 days after publication, under

the terms of the APA. See 5 U.S.C. § 553(d). By

contrast, a “substantive rule which grants or

recognizes an exemption or relieves a restriction” is

exempt from the 30-day publication requirement, id.

§ 553(d)(1), for an obvious reason: the beneficiaries of

the exemption need no warning, only an invitation.

The rules remain substantive nonetheless: Congress

specifically did not exempt them from notice-and-

comment requirements in the APA’s neighboring

section. See id. § 553(b); see also Russello v. United

States, 464 U.S. 16, 23 (1983) (“[W)here Congress

includes particular language in one section of a

statute but omits it in another ..., it is generally

12

presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.’”).

Il. The Secretary’s Program Is Invalid Because

It Violates Notice-And-Comment Rule-

making Requirements.

Because the Secretary's program establishes a

new “agency process respecting the grant ... of a

license,” 5 U.S.C. §551(9), the Secretary was

obligated to comply with the APA's notice-and-

comment requirements. The Secretary's attempt to

escape those requirements conflicts with the APA's

text, structure, and purpose.

A. The Secretary’s Program Is A

Substantive Rule Requiring Notice And

Comment.

DAPA is a rule under the APA, and the

Secretary does not contend otherwise. Through this

rule, the Secretary has sought to establish a new

process for granting exemptions and relieving

restrictions for a broad class of millions of aliens who

are unlawfully present in the United States. Pet.

App. 416a—417a (“I hereby direct USCIS to establish

a process, similar to DACA” (emphasis added)).

Through that process, aliens may obtain lawful

presence, work authorization, and other benefits. See

U.S. Br. 45 (conceding that the program creates

benefits that would not exist “without” DAPA).

Aliens who under DAPA are deemed eligible to

receive benefits are invited to file applications with

the United States Citizenship and Immigration

Services (“USCIS”), which is directed to “begin

accepting” those applications. Pet. App. 418a. A rule

13

of that description has substantive effect. It

(i) establishes a new licensing process for exempting

millions of individuals from applicable law;

(ii) imposes numerical criteria to govern future

licensing proceedings that are not derived from the

statute: and (iii) binds agency officials.

1. DAPA Exempts Individuals From

Applicable Law.

The Secretary labels “deferred action” pursuant

to DAPA as “a form of prosecutorial discretion,’

through which “the Secretary deprioritizes an

individual's case.” Pet. App. 413a. In virtually the

same breath, however, the Secretary acknowledges

that “deferred action” entails quite a bit more than

merely describing the Secretary's enforcement

priorities: it establishes an alien’s “lawful presence”

in the United States, renders him or her eligible to

receive a work authorization, and has continuing

effect. U.S. Br. 7, 37, 45; see Victoria v. Napolitano,

No. 12cv1827, 2013 WL 3746133, *4 (S.D. Cal., July

15, 2013) (a decision not to prosecute an alien is not

the same as an affirmative grant of deferred action

because it does not make aliens eligible for work

authorizations). When the Secretary deems an alien

“lawfully present,” he is affirmatively deciding that

the alien is authorized to stay and, by virtue of this

decision, will no longer accrue “unlawful presence’

for purposes of the temporary reentry bar. See 8

U.S.C. § 1182(a)(9)(B)(i)—-Gi); U.S. Br. 9 n.3, 41 n.8.

The Secretary argues that eligibility for work

authorization is an automatic consequence of

lawfully promulgated rules—not DAPA—and that no

direct legal consequences flow from a grant of

14

deferred action itself. U.S. Br. 68. That is not

correct, for reasons respondents explain. State Br.

67. DAPA fundamentally alters the nature of

deferred action, granting new benefits and effectively

amending an earlier promulgated rule setting the

terms on which an alien will be permitted to remain

in the country.

Even apart from rendering an alien eligible for

work authorization, DAPA creates new substantive

legal rights because it tolls the period of “unlawful

presence” that triggers the statutory bars preventing

unlawful aliens that leave the country from

reentering. See Pet.App. 44a n.99 (conceding the

point and explaining why tolling is a benefit for

minors and some adults). Congress has barred aliens

from reentering for three years if they have been

unlawfully present in the country for 180 days or

more, and ten years if they have been unlawfully

present for 12 months or more. See 8 U.S.C. § 1182.

Congress has also directed that the period of

unlawful presence can be tolled, but for no more than

120 days and only if certain, specific conditions are

satisfied. See id. § 1182(a)(9)(B). The Secretary's

program changes these requirements When the

Secretary deems an alien “lawfully present” under

DAPA, the alien is permitted to remain in the

country and the statutory bars for reentry are

indefinitely tolled. That legal consequence goes far

beyond “merely address[ing) DHS’s internal

computation of time,” as the Secretary suggests in a

cursory footnote. U.S. Br. 68 n.16.

The consequences of “deferred action” materially

distinguish DAPA from traditional non-enforcement

15

policies (such as the Department of Justice's “Petite

Policy”), which the government wrongly describes as

analogous. See U.S. Br. 70-71; see also State Br. 54—

55 (explaining why the grant of lawful presence also

distinguishes "APA from the Family Fairness

Program and other programs that the Secretary

wrongly cites as precedents). None of those policies

render lawful what Congress has deemed unlawful.

None of them entitle the “deprioritized” to some other

benefit. Unlike DAPA, none of them provides a

mechanism to adjudicate any case (let alone

millions). And none establishes a reticulated process

through which permission is granted and the

deprioritized may avail themselves of benefits.

The Office of Legal Counsel, in deeming DAPA

lawful on grounds quite different from the

government's position in this case, has described

“deferred action” as an “unusual” form of

enforcement discretion. J.A. 76. But that “unusual”

form makes no appearance in the APA. In contrast,

the APA does have words for “deferred action” and

the agency process through which it is granted: it

calls it a “license” and the process “licensing.” 5

U.S.C. § 551(8) (“license”: as “the whole or a part of

an agency ... exemption or other form of

permission.”); id. § 551(9) (“licensing”: the “agency

process respecting the grant, renewal, denial ... or

condition of a license”).

The Secretary appears to concede that DAPA

establishes a new administrative process for granting

licenses and provides aliens with permission to

remain lawfully within the country. On its face and

as explained below, DAPA creates new criteria that

16

an alien “must” satisfy to “request consideration for

deferred action via DAPA.” U.S. Br. 10; id. at 45

(noting that “[w]ithout” DAPA, aliens would be

treated differently by law-enforcement officials). The

benefits of deferred action do not flow from the

agency's failure to enforce the law; they are

affirmatively granted as a result of the DAPA

process.

The Secretary insists that deferred action under

DAPA is granted on a case-by-case basis, and that it

is temporary and revocable at any time. U-/S. Br. 5,

38, 67. But every licensing process proceeds case-by-

case. And virtually all licenses are temporary and

revocable. Atl. Richfield Co. v. United States, 774

F.2d 1193, 1200 (D.C. Cir. 1985) (rejecting the

argument that temporary “licenses” are excluded

from the sweep of the APA, as having “no basis in

law”); see also Pan-Atlantic Steamship Corp. v.

Atlantic Coast Line R. Co., 353 U.S. 436, 440 (1957)

(a “harmonious reading of [a statute and the APA]

requires the latter to be read as supplementing the

former and to be construed as applying to temporary

as well as to permanent licenses”). The fact that

deferred action is granted (on a temporary basis) and

can be revoked only confirms that it is a license. A

policy of forbearance can be abandoned or

discontinued; it is not a “grant” that may be

“revoked.” Cf 5 U.S.C. § 551(10)(F). Non-

enforcement decisions are presumptively

unreviewable, Heckler v. Chaney, 470 U.S. 821

(1985); license denials and revocations are reviewable

unless, as here, Congress has provided otherwise, see

8 U.S.C. § 1252(a)(2)(B).

17

An administrative act that satisfies all APA

criteria of a “license” is a license. And a rule that

grants or recognizes an exemption requires notice

and comment. 5 U.S.C. § 553(d)(1).

2. DAPA Imposes New Numerical

Criteria To Govern Future

Licensing Proceedings.

DAPA also requires notice and comment because

it imposes arbitrary criteria that govern the new

process by which a private party is able to obtain a

license. To receive “deferred action” and “lawful

presence” under DAPA, aliens must satisfy specific

“parameters” set out by the Secretary. A DAPA

applicant must (1) as of November 20, 2014, have a

child “who is a U.S. citizen or lawful permanent

resident”; (2) have been physically present in the

country on November 20, 2014, and when applying

for relief; and (3) have been unlawfully present since

January 1, 2010. Pet. App.417a. The Secretary’s

memorandum provides in mandatory terms that to

qualify for deferred action, an alien must “file the

requisite applications” “pursuant to the new criteria.”

Id. Each applicant granted deferred action under

DAPA shall be eligible to apply for work

authorization, and that authorization—like the grant

of deferred action that must precede it—shall extend

for a period of three years. Pet. App. 417a—418a.

These specific requirements and numerical

“parameters” are not derived from any statute or pre-

existing regulation; they are established by and

through the Secretary’s program. Nor, unlike earlier

programs of a more modest scale, is DAPA

interstitial to a program or policy contemplated by

18

the immigration statutes enacted by Congress. See

State Br. 54-59. The Secretary himself insists that

DAPA does not interpret any substantive rule of law;

it rests entirely on the general “vesting” of the

Secretary’ discretionary authority under the

immigration laws. See U.S. Br. 42, 61, 63, 68-69

(citing 8 U.S.C. § 1103(a), 6.U.S.C. § 202(5)).

“[W]hen an agency wants to state a principle in

‘numerical terms,’ terms that cannot be derived from

a particular record for statutory language], the

agency is legislating and should act through

rulemaking.” Catholic Health Initiatives v. Sebelius,

617 F.3d 490, 495 (D.C. Cir. 2010) (quoting Henry J.

Friendly, Watchman, What of the _ WNight?,

Benchmarks 144-45 (1967)). Notice-and-comment

rulemaking is required when an agency “makes

‘reasonable but arbitrary (not in the ‘arbitrary and

capricious’ sense) rules that are ... not derived from

{a statute], because [numerical rules] represent an

arbitrary choice among methods of implementation.”

Id. at 495 (quoting Hoctor v. USDA, 82 F.3d 165, 171

(7th Cir. 1996)).

Judge Friendly’s proposition reflects two related

tenets, both deeply rooted in the APA.

First, when an agency transposes a vague,

general rule into specific criteria applicable to private

parties, it is hard to qualify the action as anything

but substantive rulemaking. “[I]f the relevant

statute or regulation ‘consists of vague or vacuous

terms—such as ‘fair and equitable, ‘just and

reasonable,’ ‘in the public interest,’ and the like—the

process of announcing propositions that specify

applications of those terms is not ordinarily one of

19

interpretation, because those terms in themselves do

not supply substance from which the propositions can

be derived.” Catholic Health, 617 F.3d at 494—95

(citing Robert A. Anthony, “Interpretative” Rules,

“Legislative” Rules, and “Spurious” Rules: Lifting the

Smog, 8 Admin. L. J. Am. U. 1, 6 n.21 (1994)). That

is still more true where, as here, an agency's rule,

containing numerical bounds, rests on no pre-existing

rule except the agency’s general authority However

the agency may describe the exercise of that

authority, it involves substantive rulemaking and

requires notice and comment. Hoctor, 82 F.3d at

170-71.

Second, the APA commands that an agency

engaged in rulemaking must give reasons for its

actions. See Motor Vehicle Mfrs. Assn. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). That

requirement helps to ensure that agencies act within

the scope of their delegated authority, and it protects

private parties’ opportunity for meaningful judicial

review. An “arbitrary choice among methods of

implementation” may rest on compelling reasons; on

consideracions that may or may not pass an

“arbitrary and capricious” examination; on no reason

except administrative convenience; or even on

considerations that are affirmatively foreclosed by an

agency's organic statute. Cf. Judulang v. Holder, 132

S. Ct. 476, 483-84 (2011) (“[cJourts retain a role, and

an important one, in ensuring that agencies have

engaged in reasoned decisionmaking’).

There may be reasons, grounded in relevant and

legally permissible considerations, to restrict DAPA

licenses to aliens who have been “unlawfully present

20

since January 1, 2010”; or to prescribe a three-year

term for deferred action and employment

authorizations (where the earlier DACA program

applied for only two years). That reasoning from

relevant facts and circumstances to a “method of

implementation” is precisely what the notice-and-

comment process and the attendant judicial review

are meant to elicit. See Natl Small Shipments

Traffic Conference, Inc. v. ICC, 725 F.2d 1442, 1447-

48 (D.C. Cir. 1984) (“Notice-and-comment procedures

. are especially suited to determining legislative

facts and policy of general, prospective

applicability”); see also Gary Lawson, Outcome,

Procedure and Process: Agency Duties of Explanation

for Legal Conclusions, 48 Rutgers L. Rev. 313, 318-19

(1996).

Lower courts have regularly applied the test

enunciated in Catholic Health to require notice and

comment for agency rules that could far more readily

have been described as non-substantive than is

DAPA. For example, an EPA guidance providing a

default, numerical toxicity factor that EPA would

apply in granting waivers from waste-disposal

regulation was held to be a binding substantive rule

that required notice-and-comment rulemaking.

General Elec. Co. v. EPA, 290 F.3d 377, 385 (D.C. Cir.

2002). In Catholic Health itself, the invalidated

agency “guidance” prescribed a numerical standard,

issued under a_ broadly worded statute, that

determined certain insurers’ eligibility to recover

Medicare costs. Catholic Health, 617 F.3d at 495-97.

Hoctor addressed a rule governing the height of

animal fences issued pursuant to a_ general

regulation by the USDA. Hoctor, 82 F.3d at 171.

21

Judge Friendly’s proposition does not entail that

every numerical rule or cut-off issued pursuant to a

general statute, regulation, or grant of authority

requires notice and comment. For example,

established scientific criteria may help an agency to

“get” from a general norm to a specific number,

especially if the accompanying agency statement

explains the reasoning process. Hoctor, 82 F.3d at

171 (distinguishing American Min. Congress v. Mine

Safety & Health Admin., 995 F.2d 1106 (D.C. Cir.

1993), on that basis). But the principle applies when

there is simply no way of deriving the numerical! cut-

off from the general rule or grant of authority

This case illustrates the good sense of that

approach. Just as there is no way of getting from a

hability rule to a statute of limitations, Hoctor, 82

F.3d at 170, there is no way of excogitating a three-

year cut-off from the Secretary's grant of authority,

or even the work-authorization regulation. Why not

two years (as under DACA)? Why not four? Why

January 2010 rather than June 15, 2007 (as under

DACA)? Why, for that matter, rely on arbitrary cut-

offs rather than qualitative criteria, such as hardship

or ties to the community?

To repeat: The Secretary may have good reasons

for his choices—reasons that might pass the hardest

of hard looks with flying colors. But there is no

administrative record against which the agency's

choices can be evaluated. And while DAPA offers

general reasons for the program, including

humanitarian concerns and resource constraints, it

provides no reason at all for the choice of criteria and

parameters that make the program operational. By

22

short-circuiting the notice-and-comment process, the

Secretary dispensed with his obligation to provide

reasons for his actions.

3. DAPA Is A Substantive Rule That

Binds Agency Officials.

In distinguishing rules with substantive legal

effect from interpretative rules and statements of

policy, courts of appeals have relied on an “impact on

the agency” test. That test “turns on an agency's

intention to bind itself to a particular legal policy

decision.” U.S. Tel. Ass'n v. FCC, 28 F.3d 1232, 1234

(D.C. Cir. 1994); see also Profls and Patients for

Customized Care v. Shalala, 56 F.3d 592 (5th Cir.

1995). The court below explicitly relied on the test in

this case. Based on the district court’s findings of

fact, which command deference unless clearly

erroneous, the court of appeals twice held that DAPA

evinced the agency’s intent to bind itself to a future

course of conduct. That holding is correct.

As shown above, DAPA on its face establishes

rigid, numerical criteria that the agency will apply in

administering the program, and commands who shall

be eligible for work authorization and other DAPA

benefits and for what length of time. The agency’s

program thus separates eligible from ineligible

applicants, and the criteria are binding with respect

to prospective applicants as well as agency personnel.

Prospective applicants may not receive, and agency

officials may not issue, a DAPA license when, for

example, an unlawful alien arrived in February 2010.

Aliens who wish to benefit from DAPA must “file the

requisite applications” “pursuant to the new criteria.”

Pet. App. 417a. And the Secretary’s memorandum

23

commands that the USCIS must “begin accepting

applications” from the new class of aliens who under

DAPA are eligible to receive those benefits. Pet. App.

418a.

The Secretary emphasizes that DAPA contains

references to the “discretionary” and “case-by-case”

nature of the process. The Secretary also holds open

the possibility—however remote—that in certain

cases the Secretary might step in and waive DAPA's

requirements. U.S. Br. 68-73. But whenever an

agency promulgates a substantive rule, the question

in any future application is always “whether the rule

should be waived or applied in that particular

instance.” Pacific Gas & Elec. Co. v. FPC, 506 F.2d

33, 39 (D.C. Cir. 1974). The fact that the Secretary

reserves his right to waive DAPA in individual cases

means only that the Secretary has _ retained

enforcement discretion. See Heckler v. Chaney, 470

U.S. 821 (1985). It does not make DAPA any less

binding or substantive in nature. If that were the

test, no rule would ever have to comply with the

APA's notice-and-comment requirements.

Nor does directing immigration officers to

consider “other factors that, in the exercise of

discretion, makes the grant of deferred action

inappropriate,” Pet. App. 417a, change the nature of

the cut-offs. The fact that a rule is not “ironclad”

does not render it a non-binding policy statement

under the APA. McLouth Steel Prods. Corp. uv.

Thomas, 838 F.2d 1317, 1320-22 (D.C. Cir. 1988)

(holding that model “substantially curtailfed]” EPA's

discretion and was therefore a legislative rule, even

though EPA “retained discretion” to deviate from it).

24

To the contrary, “[ijf it appears that a so-called policy

statement is in purpose or likely effect one that

narrowly limits administrative discretion, it will be

taken for what it is[—Ja binding rule of substantive

law.” Nader v. CAB, 657 F.2d 453, 455 (D.C. Cir.

1981) (quoting Guardian Fed. Savs. & Loan Ass'n v.

Federal Savs. & Loan Ins. Corp., 589 F.2d 658, 666-

667 (D.C. Cir. 1978); see also Pickus v. U.S. Bd. of

Parole, 507 F.2d 1107, 1113-14 (D.C. Cir. 1974)

(exception for procedural rules does not apply to

“action which is likely to have considerable impact on

ultimate agency decisions’).

Insofar as the exercise of officials’ residual

discretion bears on the inquiry, the district court’s

findings as well as additional, undisputed evidence

strongly support respondents. The inherent

difficulty with the “impact” test is its ex post nature:

it requires experience with an agency's application of

the rule at issue. Seeking to make the most of that

common difficulty, the Secretary characterizes the

States’ challenge to DAPA as a premature “facial”

challenge to a policy that has never been applied.

U.S. Br. 72. But that is simply incorrect. In between

the promulgation of DAPA and the district court's

preliminary injunction, USCIS issued 108,000 three-

year work permits under the expanded program, as

set forth in the memorandum at issue in this case.

Not a single work permit had a different duration. In

addition, USCIS issued 2,000 permits even after the

injunction was entered, all of them with three-year

terms. The Secretary had to recall those three-year

work permits, warning that failure to surrender

them would result in the revocation of the deferred

action granted under DAPA. In fact, the Secretary

25

did revoke deferred action for 22 aliens who did not

return their work-authorization documents. See U.S.

Citizenship and Immigration Servs., DACA

Recipients Who Received 3-Year Work Permit Post-

Injunction: Quick Facts, available at https://www

.uscis.gov/humanitarian/daca-recipients-who-received

-3-year-work-permit-post-injunction-quick-facts.

B. The Secretary’s Program Is Not A Mere

Statement Of Policy.

The Secretary describes his program as nothing

more than a “statement of policy” that is exempt from

notice-and-comment requirements. U.S. Br. 65—68.

This contention is irreconcilable with the APA's

understanding of a “policy statement,” as elucidated

by courts over the decades.

Reviewing courts look to the nature and

substance of an agency’s action, not its artful,

idiosyncratic, or _ self-serving characterizations.

Columbia Broad., 316 U.S. at 416; see also CBS Inc.

v. United States, 316 U.S. 407, 416 (1942). That

scrutiny serves to prevent agency proceedings and

pronouncements from becoming a mere “charade,

intended to keep the proceduralizing courts at bay.”

Peter L. Strauss, The Rulemaking Continuum, 41

Duke L.J. 1463, 1485 (1992). Suspicion is amply

warranted here.

The Secretary purports to rely on oft-quoted

language from a footnote in the Attorney General's

Manual on the APA, which broadly defines a policy

statement as a statement to “advise the public

prospectively of the manner in which the agency

26

proposes to exercise a discretionary power.” U.S. Br.

65. That reliance is misplaced.

The most passing glance at DAPA’s text and

substance shows that it does considerably more than

merely “advise” or “propose.” As seen, there is

nothing tentative about DAPA’s new licensing

process or the eligibility criteria that DAPA

applicants must satisfy. Cf. Pickus, 507 F.2d at 1113

(APA exception for procedural rules “[cjertainly ...

does not include formalized criteria adopted by an

agency to determine whether claims for relief are

meritorious’ ).

More fundamentally, the Manual’s definition of a

policy statement as an agency rule to “advise the

public prospectively of the manner in which the

agency proposes to exercise a discretionary power”

cannot bear the weight the Secretary seeks to place

on it. Read in isolation, the definition encompasses

rules that are clearly substantive in nature. The

definition may help to distinguish policy statements

from internal rules of procedure (they advise “the

public’) and from _ orders (they operate

“prospectively’). It does not distinguish policy

statements from rules of substantive force. If

pressed into that service, the definition must be

understood as a ceiling rather than a floor: a policy

statement must do no more than advise the public.

See John F Manning, Nonlegislative Rules, 72 Geo.

Wash. L. Rev. 893, 916 (2004) (statements of policy

must be “wholly nonbinding.”)

That understanding is buttressed by the APA’s

structure—specifically, the status of policy

statements as an exception to the general notice-and-

27

comment requirements. It is further buttressed by

the pre-existing practice that informed the APA and

the Attorney General's Manual itself. See John F

Duffy, Administrative Common Law in Judicial

Review, 77 Tex. L. Rev. 113, 131 (1998). The “key

case’ on the distinction between _ reviewable

substantive rules and policy statements is Coli:mbia

Broadcasting System v. FCC, 316 U.S. 407 (1942).

See Kenneth C. Davis, Administrative Powers of

Supervising, Prosecuting, Advising, Declaring, and

Informally Adjudicating, 63 Harv. L. Rev 193, 240

(1949); see also Pacific Gas, 506 F.2d. at 42 n.25

(while “the case arose prior to the enactment of the

APA ... the treatment of the issues is helpful in

understanding the difference between a rule and a

general statement of policy under the APA.”). In

Columbia Broadcasting, the Federal Comm-

unications Commission claimed that its “chain

broadcasting” rules were unreviewable in an equity

proceeding. The agency asserted that the rules were

nothing more than an expression of the agency’s

general policy, which the Commission proposed to

apply in future exercises of its capacious licensing

discretion. Columbia Broad., 316 U.S. at 422.

This Court roundly rejected the Commission's

position. Looking behind the agency’s opportunistic

characterization of its rule, the Court held that when

an agency issues a policy, “couched in terms of

command and accompanied by an announcement of

the Commission that the policy is one ‘which we will

follow in exercising our licensing power’, they must

be taken by those entitled to rely upon them as what

they purport to be—an exercise of the delegated

legislative power.” Columbia Broad., 316 U.S. at 422.

28

Columbia Broadcasting stands for the principle that

policy statements are nothing more than “musings”

or explanations about what an agency may do in the

future; a rule that does “something more” is a

substantive rule that must comply with the APA's

notice-and-comment requirements. /d. at 422.

Long-standing interpretations of the APA have

confirmed this understanding. Where, as here, a rule

“significantly affects conduct, activity or a

substantive interest that is the subject of agency

regulation” or when it “affects the standards for

eligibility for government programs,” notice-and-

comment procedures are necessary. Administrative

Conference of the United States, The Procedural and

Practice Rule Exemption from the APA Notice-and-

Comment Rulemaking Requirements Recomm-

endation No. 92-1, 57 Fed. Reg. 30101, 30103 (July 8,

1992) (“application requirements that serve to limit

eligibility for a government benefit program” are not

exempt from notice-and-comment rulemaking).

Ill. This Court Should Give Full Force And

Effect To The APA’s Notice-and-Comment

Requirements.

The APA’s distinction between substantive (or

“legislative”) rules on one hand and “interpretative”

rules and “statements of policy” on the other has

often been described as “murky,” Jowa League, 711

F.3d at 873, and “enshrouded in considerable fog,”

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

But to hold that DAPA is anything other than a

substantive rule is to wander from a mere fog into a

night where all the cows are black. Cf. G.W.F. Hegel,

The Phenomenology of Mind 79 (J. Baillie trans., 2d

29

ed. rev. 1949). This case illustrates why the authors

of the APA thought they needed an admittedly

difficult, imprecise distinction between substantive

and non-substantive rules—and why the enforcement

of that distinction is a crucial responsibility of

reviewing courts.

A. Agencies May Not Circumvent Notice-

and-Comment Requirements.

DAPA, the Secretary insists, has no binding legal]

effect. Pet. App. 413a; U.S. Br. 66. “Deferred action”

may be revoked at any time, for any reason. DAPA

itself may be modified or summarily rescinded,

perhaps by a different administration, at any

moment and for any reason, U.S. Br. 66-—67—in

which event the “hard-working people” who have

availed themselves of the opportunity to “come out of

the shadows ... and be counted,” Pet. App. 415a, may

discover that they have been processed and counted

for purposes of deportation. This “legal effects” test

is the sum and substance of the Secretary's defense of

DAPA as a mere statement of policy. That account

mischaracterizes DAPA and misstates the law.

Undoubtedly, a rule is substantive when it

imposes legal obligations, affects individual! rights, or

imposes or elaborates a legal norm. See, e.g., Tex.

Sav. & Cmty. Bankers Ass'n v. Fed. Hous. Fin. Bd.,

201 F.3d 551, 556 (5th Cir. 2000) (“Substantive or

legislative rules affect individual rights and

obligations and are binding on the courts.”); Syncor

Intern. Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir.

1997) (a policy statement, unlike a substantive rule,

“does not seek to impose or elaborate or interpret a

legal norm”). For reasons explained, DAPA readily

30

satisfies that test. In any event, the “legal effects”

test is a rule of inclusion, not exclusion. Even if

DAPA does not have binding legal effect, as the

Secretary suggests, that is not, has never been, and

cannot be the exclusive test for determining when a

rule must comply with the APA’s notice-and-

comment requirements.

The rationale behind the legal effects test,

correct so far as it goes, is that an agency that

proceeds through guidance documents or policy

statements is giving something up: namely, the

binding legal effect of its pronouncements. Shalala

v. Guernsey Mem'l Hosp., 514 U.S. 87, 99 (1995);

Mark Seidenfeld, Substituting Substantive for

Procedural Review of Guidance Documents, 90 Tex.

L. Rev. 331, 356 (2011). The Secretary invokes that

reasoning in defense of his choice of procedure. U.S.

Br. 65-66 (citing 1 Richard J. Pierce, Jr.,

Administrative Law Treatise § 6.3, at 419 (5th ed.

2010)). Courts have not been content, however, to

rely on the free play of agency incentives. Instead,

they have policed the boundary between substantive

and non-substantive rules. That approach reflects

the common-sense recognition that agencies have any

number of ways to shape, deter, and dictate private

primary conduct. See, e.g., Michael S. Greve &

Ashley C. Parrish, Administrative Law Without

Congress, 22 Geo. Mason L. Rev. 501, 532-34 (2015).

A bare-bones legal-effects test cannot protect against

agency evasion and circumvention. See G. Lawson,

Federal Administrative Law 377 (6th ed. 2013) (“The

problem with the legal effects test is that it is readily

subject to agency gamesmanship.”).

3]

The perceived necessities of a “vast and varied

federal bureaucracy,” Free Enter., 561 U.S. at 499,

have made agency evasion of procedural

requirements a constant. And, in recent years,

agency gamesmanship and “unorthodox” rulemaking

have been recognized as something of a cottage

industry by scholars of administrative law. See, e.g.,

Abbe Gluck, et al., Unorthodox Lawmaking,

Unorthodox Rulemaking, 115 Colum. L. Rev. 1789

(2015). Familiar doctrines of administrative law,

however, have always guarded against

circumvention. Some pertain to the availability of

judicial review. The presumption of reviewability, by

way of prominent example, is difficult to derive from

the APA's text; it is best viewed as a prophylactic

rule. See Bowen v. Michigan Academy of Family

Physicians, 476 U.S. 667, 670-73 (1986). Other anti-

circumvention canons help to delineate the domain of

judicial deference. See, e.g., Gonzales v. Oregon, 546

U.S. 243 (2006) (declining to defer to regulation that

merely “parrot(s]” statutory language); Christopher v.

SmithKline Beecham Corp., 132 S. Ct. 2156, 2166

(2012) (deference is “undoubtedly inappropriate”

when an agency’s legal interpretation appears to be a

post hoc rationalization).

Anti-circumvention rules that address matters of

agency procedure and, in particular, notice-and-

comment rulemaking are of one piece with this body

of administrative law. While some of the tests that

have served to distinguish substantive rules from

interpretative rules and policy statements look

definitional, all are intimately tied to the purpose of

blocking agency gamesmanship. Columbia

Broadcasting was an anti-circumvention decision.

32

Its unquestioned doctrine that reviewing courts will

conduct an independent, substantive inquiry into the

nature of a given rule is an anti-evasion doctrine.

Similarly, Judge Friendly’s test, applied in Catholic

Health, is readily understood as an anti-evasion rule.

The contrary rule would give agencies an incentive to

write broad and vague rules—and to evade notice-

and-comment requirements in_ all _ future

“interpretative” proceedings. Cf. United States v.

Picciotto, 875 F.2d 345, 346-47 (D.C. Cir. 1989)

(agency cannot “grant itself a valid exemption to the

APA ... and “be free of the APA's troublesome

rulemaking procedures forever” through “agency-

generated exemptions’). The “impact on the agency”

test likewise serves to discourage agencies from

disguising effectively binding policies as mere

“musings” or “advice.”

Anti-evasion rules must not be so broad as to

prohibit conduct or to impose obligations that the

lawmaker never envisioned. Vermont Yankee, 435

U.S. at 549; Perez, 135 S. Ct. at 1207. Moreover, the

rules must not be so draconian as to deter legitimate

and sensible uses of non-substantive rules and thus

to drive agencies into “pure ad hocery.” American

Min., 995 F.2d at 1112. But neither of these perils is

present here. By the Secretary's own lights the

agency cannot administer a program for some four

million aliens through ad hoc adjudication: it would

never encounter most of those individuals in the first

place. And the only procedures that the agency is

being asked to follow are the procedures imposed by

Congress. Enforcing those procedures is essential to

preserving the integrity of the APA and the

constitutional values it was designed to protect.

33

B. Powerful Reasons Of Law and Policy

Compel Notice-and-Comment Rule-

making In This Case.

The Secretary's “suggestion that under the APA

[he] can do without notice and hearing in a policy

statement what Congress failed to do when the

[immigration] bill died in the last Congress is, to say

the least, remarkable.” Citizens Commc'ns Ctr. v.

FCC, 447 F.2d 1201, 1204 n.5 (D.C. Cir. 1971) (Skelly

Wright, J.). Still more perplexing is the Secretary's

failure to explain and defend his decision to proceed

without notice and comment. The Secretary's

contention that his policy is “long-standing,” U.S. Br.

37, 55, 63, is untenable, for reasons explained by

respondents. See State Br. 54—59. It is in any event

no answer: an agency's “previous failure to comply

with the notice and comment requirements of the

APA cannot excuse its later violation of those

requirements, nor render the latter violation

unreviewable.” Mendoza, 754 F.3d at 1015; see also

Rapanos v. United States, 547 U.S. 715, 752 (2006)

(rejecting agency’s “curious appeal to entrenched

executive error’). But the Secretary's position is

“remarkable” at a deeper level.

No one denies the significant challenges of

immigration policy. No one questions the Secretary's

broad discretion to set enforcement priorities. At the

same time, no one can reasonably dispute that DAPA

raises serious questions that are of immense public

interest, debate, and concern.

Notice-and-comment rulemaking procedures are

tailor-made for precisely these types of situations.

The “transparent nature of administrative record

34

building and agency decisionmaking ... facilitates

accountability in a host of ways,” including

prompting appropriate oversight by Congress.

Kenneth A. Bamberger, Regulation as Delegation:

Private Firms, Decisionmaking, and Accountability in

the Administrative State, 56 Duke L.J. 377, 406—07

(2006). The process ensures that the agency

considers and grapples with serious comments

offered by interested parties, providing greater

democratic legitimacy and outcomes that are more

likely to be acceptable to the public at large. And,

the process ensures that accountable decision-makers

have embraced the grounds for the agency’s actions

and have exercised judgment in the first instance.

See Kevin M. Stack, The Constitutional Foundations

of Chenery, 116 Yale L.J. 952, 958—59 (2007).

Equally important, requiring agencies to comply

with the APA’s notice-and-comment rulemaking

procedures simplifies and depoliticizes the judicial

review process. It cabins the scope of judicial review

to ensure that the agency has complied with its

statutory mandates and the procedural requirements

of reasoned’ decision-making, while largely

preventing courts from second-guessing the agency's

substantive choices. It simplifies any question as to

whether the agency has complied with its

constitutional obligations to take care that the laws

are faithfully executed. It even helps to elucidate

standing issues that turn on the significance of the

costs imposed by the Secretary's program, which

could surely be better understood in the context of a

fully developed administrative record.

35

The issues addressed in the amicus briefs filed in

this case in support of the Secretary suggest the

range and salience of policy questions, including

whether DAPA will result in higher wages for

workers, improve the lives of young adults, protect

local interests, strengthen family unity for resident

LGBT children in Asian and Pacific Islander

Communities, enhance educational opportunities and

children’s psychosocial well-being, serve the interests

of religious communities, benefit businesses, and

help immigrants contribute to their communities and

society as a whole. Those concerns should by all

rights be considered by the agency in the first

instance, in the open and on the record. That, to

repeat, is what the notice-and-comment process is

for.

For supporters of DAPA, APA rulemaking

procedures should pose no threat or concern. They

should be confident that the process will confirm the

wisdom of the Secretary's position and help promote

sensible and less_ politicized discussions of

immigration policy. For those who harbor concerns

about DAPA, the notice-and-comment process would

afford an opportunity for the first time to have the

Secretary fairly consider and formally respond to

their perspectives on the weighty issues it implicates.

DAPA’s intended beneficiaries would benefit from an

orderly process and a resulting agency decision that

would not, as the Secretary here insists, be revocable

by a different administration the way DAPA was

produced—a stroke of a pen. And all citizens would

benefit from being assured in these politicized times

that, regardless of their views on DAPA’s merits, the

Secretary's program has been established through

36

due legal process and not by executive fiat or political

contrivance.

In stark fashion, then, this case illustrates the

enduring value of a “formula upon which opposing

social and political forces have come to rest.”

Vermont Yankee, 435 U.S. at 523. The Court should

enforce the APA's procedural requirements.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

C. BOYDEN GRAY ASHLEY C. PARRISH

ADAM R.F.GUSTAFSON Counsel of Record

DEREK S. LYONS JAMES P. SULLIVAN

JAMES R. CONDE KING & SPALDING LLP

BOYDEN GRAY 1700 Pennsylvania

& ASSOCIATES Avenue, NW

801 17th Street, NW Washington, DC 20006

Washington, DC 20006 (992) 737-0500

aparrish@kslaw.com

Counsel for Amici Curiae

CARRIE SEVERINO

THE JUDICIAL

EDUCATION PROJECT

722 12th Street, NW

Washington, D.C. 20005

Counsel fer the

Judicial Education Project

April 4, 2016