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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A32

## Record

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

## Text

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

SE Ge GOED apts sncnavexercacascesecsvsestscnseassessses I
py PO wo yt yy | -. il
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A32. Public record. Not legal advice.