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

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No. 15-674

In the

Supreme Court of the Anited States

THE UNITED STATES OF AMERICA, et. al.,

Petitioners,

Vv.

THE STATE OF TEXAS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE CENTER FOR

CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF RESPONDENTS

JOHN C. EASTMAN

Counsel of Record

ANTHONY T. CASO

CRISTEN WOHLGEMUTH

Center for Constitutional

Jurisprudence

c/o Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

(877) 855-3330

jeastman@chapman.edu

Counsel for Amicus Curiae

enn eee ee ee ee aS

QUESTIONS PRESENTED

The Executive Branch has unilaterally created a

program, Deferred Action for Parental Accountability

(“DAPA”), that will confer “lawful presence,” as well

as eligibility for myriad benefits, on millions of aliens

who are unlawfully present in the United States. The

program exceeds merely prioritizing aliens for re-

moval, and so presents the following questions, en-

compassed within this Court’s question whether the

President’s actions violate the Take Care Clause:

1) Has the Executive exceeded its prosecutorial

discretion by categorically granting “lawful

presence” and numerous other benefits to al-

iens unlawfully present in the United States?

2) Has the Executive exercised power in violation

of the non-delegation doctrine, and the limits

placed on the Executive through Article I of the

United States Constitution?

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................00sccccsssssseeseeees i

INTEREST OF AMICUS CURIAE................:::cccceeees 1

SUMMARY OF ARGUMENT. ...................:ccccecececeeeeeeees 1

EE ressticnicrondslipiasgninieitamasstnensansinitenpienndbemactnten 3

I. The Suspension of Removal under the DACA

and DAPA Programs Cannot Be Sustained As

an Exercise of Prosecutorial Discretion. ............... 3

A. The Immigration and Nationality Act

Mandates Removal of Unauthorized Aliens....3

B. DACA and DAPA are Categorical, and

Therefore Unconstitutional, Suspensions of

UI SEITE 2 \sithidissctadisictasiblnansiestakGaniassdesatlaaalansialde temddeddivein 7

II. Prosecutorial Discretion Does Not Extend to the

Granting of “Lawful Presence” or of Benefits. .... 14

IIl.The Administation’s Interpretation of Section

1324a(h)(3) Runs Afoul of the Non-Delegation

ass TR RENAE ORS MOLE AR etn e LPN eran 19

IT alniacntnnnancersndvcscsnnternsitiainmesensrenertiedn 22

TABLE OF AUTHORITIES

Cases

Abbott Laboratories v. Gardner,

Sa ceed nienitonie 2

Adams v. Richardson,

480 F.2d 1159 (1973) (em banc) ..............:ccceceeeeeeeeees 8

Blodgett v. Holden,

275 U.S. 142 (1927) (opinion of Holmes, J.).......... 21

Chamber of Commerce of U.S. v. Whiting,

i a I ccldpielicncsebabasbaneen 18

Clinton v. New York,

a a, A A climemiannbuincomees 22

Crane v. Napolitano, 3:12-CV-03247-0,

2013 WL 1744422 (N.D. Tex. Apr. 23, 2013)...... 6, 7

Crowley Caribbean Transp., Inc. v. Pena,

Fe Oe 8 Clare Gas FI racic ccckcivaccesceveassccoceesces 11

Fed. Express Corp. v. Holowecki,

a er SD isiincnsesendonadeatinssdainbebviobenonsebacootees 6

Federal Radio Comm. v. Nelson Bros. Bond &

Mortgage Co.,

EN EEE OO OTE SE 20

Fiallo v. Bell,

REE R eae ete Sire eRe Po 21

FTC v. Gratz,

I al 20

Galvin v. Press,

Sl ceetnel 21

Heckler v. Chaney,

HI III xciasicvccieshadabeoimnesbaccedunsoneiege passim

Hoffman Plastic Compounds, Inc. v. N.L.R.B.,

ee ai itaihenisccniniccncneeccsiamindsantinmianduipilin 18

In re E-R-M & L-R-M,

25 I. & N. Dec. 520, 520 (BIA 2011).....................20. 7

INS v. Chadha,

a scien sacdenmsnmanebiebiens 21

J.W. Hampton, Jr., & Co. v. United States,

I is sei 20

Kendall v. United States ex rel. Stokes,

Bie Bee od AL 8, | eeeer 3,11

Kleindienst v. Mandel,

A sins i cnn ccceniianbwovpinsnchipbisiaemieanaiin 21

Lopez v. Davis,

Nee ao aiehunomnseaseuisabeteseiee 6

Lozano v. City of Hazleton,

496 F. Supp. 2d 477 (M.D. Pa. 2007) ................004. 18

Mistretta v. U.S.,

I a caiemnediuiteilinaulenias 20

New York Central Securities Corp. v. United States,

I A daha ueeiseonnnueien 20

Oceanic Steam Navigation Co. v. Stranahan,

pe By, RESP rae Sern ener at 21

Perales v. Casillas,

Fe ff fo Sener 12

Perez v. Mortgage Bankers Ass'n,

135 S.Ct. 1199 (2015)............... eee ee aa 1

Reno v. Am.-Arab Anti-Discrimination Comm.,

ee ey Oe ech dsdninniiscenateieteonseeeninsdasesnedaninien 13

Sale v. Haitian Centers Council, Inc.,

rs a ccnisuabidesovpvehieuicinie 21

Tagg Bros. & Moorhead v. United States,

I i cei 20

Texas v. United States,

809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25,

NII: sca si citeechdiepiedi cate clindetadnaiiieciaieeticennmcilimléebonsanneabesimunsa 19

Town of Castle Rock, Colo. v. Gonzales,

I eueeaieaunbines 5

U.S. Dep't of Trans. v. Ass’n of American Railroads,

Be III, 6005s ctccmssvencsichsoneronseiendonnhanonnunts l

U.S. v. Juarez-Escobar,

25 F. Supp. 3d 774 (W.D. Pa. 2014) .................eeee 12

Util. Air Regulatory Grp. v. E.P.A.,

ERE er EE a Pe 1

Whitman v. Am. Trucking Ass’ns,

I 19

Statutes

5 OR RAREST ERM rare Alen inet amd Ae eee we 7

se 16, 17

giF Toe bh) |: cece anaes 13

i SERENA AE Season ete Pm NR 17

I 4

Ee Bek SID sciccscsscosenscasecnsosesvaisncconcencs 13

EATEN See clita tee REET ROE R, 4

ni ee a en ie 14

en Ot OID sand cs pean pnsemanattanhabwersasonmaseenl 14

I in ocancubineeeiniansinbeuenioieen 4

I I iliac pesmi ninogeneeneeE 3

pe I canessnvsvnesbunissenabiassionenen 4

os cerpesistbavanicbepbalenieed 4

Os ins cos csc sash sinegidpephinentivonsennimanyiins 17

I I a inincclincainienctaniiaininianinecsouctsitinnsionniies 4,5

ee Se on siccticerinivensismundinabpecsonsennooindniy 4

I SID 0 oc ssienpuintert dine ntovonesenisebneunnonas 5

OT inna cctcnososmvoesnsnesvesce’ 5

SEES SOT ARIST ET Oe OT RE RECS 5

a cseatmen 14

| ig Saag ESE SS RO oer een 13

ee Oe ED occ nricsnsunnsenidobsdstndtenksguscnaeanadeiest 17

icin sehen cnetectionbelbontieedbionsbesteletesah 12

oN” SSIS RE RSEEAE SE Dae cp anand erage 13

REE p= ear ane erin 6

ne nn asieemsannswmnensenininonel 16

te Oe IIE vncivcukcacoscicsnedantussecsvevoniveds passim

aR EEE Ee Sere ee A Me 6

National Defense Authorization Act for Fiscal Year

2004, Pub. L. No. 108-136, § 1703(c)-(d), 117 Stat.

NE at oI A EN re TE eee ore n 13

Title VI of the Civil Rights Act of 1964 ...................... 8

USA PATRIOT ACT of 2001, Pub. L. No. 107-56, §

EE BOW ls SET OO vassncsnistvcceicrtbsisincembinnciiies 13

Constitutional Provisions

Ue. Commh. ent: 5, BR Ob. Fi csscccecssscensssstvinueeeaeae 22

UC. Cate. BiG. Ti, Bo cciccesccnncstessecscnceiiccncaeeaeeee

Other Authorities

1 ABA Standards for Criminal Justice (2d ed.1980)..5

Bo Cooper, General Counsel, INS, INS Exercise of

Prosecutorial Discretion (July 11, 2000)............... 15

Janet Napolitano, Secretary of Homeland Security,

to David V. Aguilar, Acting Commissioner, U.S.

Customs and Border Protection, et al., Exercising

Prosecutorial Discretion with Respect to

Individuals Who Came to the United States as

Conran, De TE GOO TB, Bie cscercenctacseceaciecsenen 8,9

Jeh Charles Johnson, Memorandum for Leon

Rodriguez, et al., Exercising Prosecutorial

Discretion with Respect to Individuals Who Came

to the United States as Children and with Respect

to Certain Individuals Who Are the Parents of U.S.

Citizens or Permanent Residents, p. 2 (Nov. 20,

OO vcncaseniecntscnéncinasenvetiedamman aaa 10, 14, 16

Karl R. Thompson, Office of Legal Counsel, The

Department of Homeland Security's Authority to

Prioritize Removal of Certain Aliens Unlawfully

Present in the United States and to Defer Removal

of Gaara, p. FT G6OU. ID, BOR wvccscocisessisescticsvns 11,13

R. Rotunda and J. Nowak, 1 Treatise on Const. Law

i fT SRR UT 5

Transcript, Hearing on President Obama's Executive

Overreach on Immigration, House of

Vill

Representatives Judiciary Committee (Dec. 2,

IEEE SST SR a 10

U.S. Citizenship and Immigration Services,

Frequently Asked Questions (June 15, 2015)........ 15

Rules

ss os ss cccctankaveneundieecnoasorereeees l

Teen eas ascideduesnescooovasers |

]

INTEREST OF AMICUS CURIAE!

The Center for Constitutional Jurisprudence was

established in 1999 as the public interest law arm of

the Claremont Institute, the mission of which is to re-

store the principles of the American Founding to their

rightful and preeminent authority in our national life.

Those principles include the idea, derived from Mon-

tesquieu and embedded in the very structure of the

Constitution, that the powers of government must be

divided into separate branches in order to avoid

abuse. In addition to providing counsel for parties at

all levels of state and federal courts, the Center has

represented parties or participated as amicus curiae

before this Court in several cases of constitutional sig-

nificance addressing core separation of powers issues

such as those presented by this case, including U.S.

Dep't of Trans. v. Ass'n of American Railroads, 135

S.Ct. 1225 (2015); Perez v. Mortgage Bankers Ass'n,

135 S.Ct. 1199 (2015); and Util. Air Regulatory Grp. v.

E.P.A., 134 §.Ct. 2427 (2014).

SUMMARY OF ARGUMENT

This Court has long recognized that prosecutorial

discretion must be consistent with Congress’s duly en-

acted statutory scheme. In Heckler v. Chaney, for ex-

ample, this Court noted that the normal presumption

against judicial review of executive branch decisions

! Pursuant to this Court’s Rule 37.3, this amicus brief is filed

with the consent of the parties. Pursuant to Rule 37.6, Amicus

Curiae affirms that no counsel for any party authored this brief,

and no person other than Amicus Curiae, its members, or its

counsel made a monetary contribution to the preparation or sub-

mission of this brief.

not to enforce a statute “may be rebutted where the

substantive statute has provided guidelines for the

agency to follow in exercising its enforcement powers.”

470 U.S. 821, 833 (1985). Absent “clear and convinc-

ing’ congressional intent to the contrary, id., at 830

(quoting Abbott Laboratories v. Gardner, 387 U.S.

136, 141 (1967)), agency enforcement actions related

to immigration must follow the statutory scheme es-

tablished within the Immigration and Nationality Act

(“INA”). Since the language of the INA very clearly di-

rects that immigration officials “shall” deport aliens

who are unlawfully present in the United States,

there is arguably no prosecutorial discretion at all,

much less the expansive claim of prosecutorial discre-

tion that the Executive Branch has offered here with

the DAPA program (and its predecessor, the Deferred

Action for Childhood Arrivals (“DACA”) program).

But even assuming that prosecutorial discretion is

broad enough to validate the wholesale, categorical

suspension of the law that is at issue here, prosecuto-

rial discretion simply cannot be extended to confer

“lawful presence” on those who are unlawfully present

in the United States, or to render eligible for work au-

thorization and a litany of other benefits those who

are ineligible for them as a matter of law.

The Government’s claim to the contrary is based

on an impermissible interpretation of 8 U.S.C.

§ 1324a(h)(3). In its view, that provision grants the

Secretary unfettered power to grant work authoriza-

tion to any unauthorized aliens against whom it has

refused to enforce the immigration laws. Such an in-

terpretation stands in direct conflict with the Non-

Delegation Doctrine, even in the moribund state in

which that doctrine currently exists. Congress has not

provided DHS with any intelligible principle upon

which it must rely in its enforcement capacity, nor has

the United States articulated any such principle in its

attempts to justify its conduct.

Both DACA and DAPA therefore represent an ab-

dication of the President’s constitutional duty to “take

Care that the Laws be faithfully executed.” US.

Const. Art. II, § 3. By the President’s command (or,

more precisely, by the command of the President's

Secretary of Homeland Security), the executive agen-

cies charged with enforcing the immigration laws

have not only failed in their statutory duty, but they

have been affirmatively prohibited from executing

that duty by the Secretary. This Court in Kendall v.

United States ex rel. Stokes specifically rejected the

contention that the President’s obligation “to see that

the laws be faithfully executed, implies a power to for-

bid their execution.” 37 U.S. (12 Pet.) 524, 613 (1838).

We agree with Kendall, and we strongly urge this

Court to uphold the decision of the Fifth Circuit in this

matter.

ARGUMENT

I. The Suspension of Removal under the DACA

and DAPA Programs Cannot Be Sustained As

an Exercise of Prosecutorial Discretion.

A. The Immigration and Nationality Act

Mandates Removal of Unauthorized Al-

iens.

Several provisions of the Immigration and Nation-

ality Act mandate specific enforcement actions by im-

migration officials. § Section 1225(a)(3), for example,

specifies that “All aliens (including alien crewmen)

who are applicants for admission [defined as any alien

who has not been admitted] or otherwise seeking ad-

mission or readmission to or transit through the

United States shall be inspected by immigration offic-

ers.” 8 U.S.C. § 1225(a)(3) (emphasis added).? Absent

a credible claim for asylum, stowaways are not eligible

for admission at all, and “shall be ordered removed

upon inspection by an immigration officer.”

§ 1225(a)(2) (emphasis added). And apart from a few

exceptions not at issue here, once an immigration of-

ficer “determines that an alien ... is inadmissible un-

der section 1182(a)(6)(C) or § 1182(a)(7) of this title,

the officer shall order the alien removed from the

United States without further hearing or review ....”

§ 1225(b)(1)(A)(i). In other cases, “if the examining im-

migration officer determines that an alien seeking ad-

mission is not clearly and beyond a doubt entitled to

be admitted, the alien shall be detained for a [removal]

proceeding under section 1229a ....” § 1225(b)(2)(A).

Once an alien has been detained under that statu-

tory mandate, “[a]n immigration judge shall conduct

proceedings for deciding the inadmissibility or deport-

ability of an alien. § 1229a(a)(1) (emphasis added). An

alien who fails to appear “shall be ordered removed in

absentia” if the Immigration Service establishes that

the alien was provided written notice of the hearing

and that the alien is removable. § 1229a(b)(5)(A) (em-

phasis added). Finally, applying the burdens of proof

set out in the statute, “[a]t the conclusion of the pro-

ceeding the immigration judge shall decide whether

2 All code section references are to Title 8 of the U.S. Code, un-

less otherwise noted.

an alien is removable from the United States.”

§ 1229a(c)(1)(A) (emphasis added); §§ 1229a(c)(2), (3).

In other words, the statutory scheme uses the

mandatory “shall” rather than a discretionary “may”

throughout, indicating Congress’s intent to treat

these duties as ministerial mandates rather than dis-

cretionary enforcement options.

To be sure, this Court has recognized that a “well

established tradition of police discretion has long co-

existed with apparently mandatory arrest statutes.”

Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748,

760 (2005) (citing 1 ABA Standards for Criminal Jus-

tice 1—4.5, commentary, pp. 1-124 to 1-125 (2d

ed.1980). But removal proceedings are civil proceed-

ings, not criminal ones, and as at least one prominent

legal treatise has noted: “In contrast to criminal pros-

ecution, the government has no free rein to refuse to

enforce civil actions.” R. Rotunda and J. Nowak, |

Treatise on Const. Law § 7.6 (March 2016).

Moreover, Congress’s statutory scheme here pro-

vides the “stronger indication” of a true mandate that

this Court found lacking in Gonzales. 545 U.S. at 761

62. Beyond the repeated use of the mandatory lan-

guage, Congress specified that removal proceedings

“shall be the sole and exclusive procedure for determin-

ing whether an alien may be admitted to the United

States or, if the alien has been so admitted, removed

from the United States.” § 1229a(a)(3) (emphasis

added). The President’s claim here that he has discre-

tion not to commence removal proceedings against un-

authorized aliens and thereby afford to them a “lawful

presence” in the United States cannot be squared with

Congress’s language that a determination of admissi-

bility by an immigration judge in a removal proceed-

ing is the “sole and exclusive” means for determining

whether an alien may be admitted.

The U.S. District Court for the Northern District

of Texas in Crane v. Napolitano, 3:12-CV-03247-0,

2013 WL 1744422 (N.D. Tex. Apr. 23, 2013), recently

came to the same conclusion. Although that action by

border patrol agents was ultimately dismissed for lack

of subject matter jurisdiction because the Merit Sys-

tems Protection Board was the exclusive venue for

their claims,* the District Court’s analysis of the rele-

vant statutory language was thorough, and persua-

sive: “Congress’s use of the word ‘shall’ in Section

1255(b)(2)(A) imposes a mandatory obligation on im-

migration officers to initiate removal proceedings

against aliens they encounter who are not ‘clearly and

beyond a doubt entitled to be admitted.” Jd. at *17.

The court found compelling this Court’s decisions

in Fed. Express Corp. v. Holowecki, 552 U.S. 389

(2008), and Lopez v. Davis, 531 U.S. 230 (2001).

Holowecki held that the EEOC’s “duty to initiate in-

formal dispute resolution processes upon receipt of a

charge is mandatory in the ADEA context” because of

statutory language in 29 U.S.C. § 626(d) providing

that the EEOC “shall promptly seek to eliminate any

alleged unlawful practice by informal methods of con-

ciliation, conference, and persuasion.” 552 U.S. at 399

(emphasis added). Similarly, Lopez noted that Con-

gress’s “use of a mandatory ‘shall’. . . imposef[s] dis-

cretionless obligations.” 531 U.S. at 241. The court

3 Crane, No. 3:12-cv-03247-O, Order (N.D. Tex., July 31, 2013),

available at http://www.crs.gov/analysis/legalsidebar/Documents

/Crane_DenialofMotionforReconsideration. pdf.

also found this Court's decisions in, e.g., Heckler v.

Chaney, 470 U.S. at 835, and In re E-R-M & L-R-M,

25 1. & N. Dec. 520, 520 (BIA 2011), to be distinguish-

able. The discretion recognized in the latter—an im-

migration case—was simply whether to refer an un-

authorized alien to regular or expedited removal pro-

ceedings, the court noted, not “to refrain from initiat-

ing removal proceedings at all.” Crane, 2013 WL

1744422, at *10. And the court found the statutory

language in the Food, Drug, and Cosmetic Act at issue

in Chaney, which this Court held committed “complete

discretion to the Secretary to decide how and when

they should be exercised,” 470 U.S. at 835, to be in

contrast with the Immigration and Nationalization

Act, which “is not structured in such a way that DHS

and ICE have complete discretion to decide when to

initiate removal proceedings.” Crane, 2013 WL

1744422, at *10.

B. DACA and DAPA are Categorical, and

Therefore Unconstitutional, Suspensions

of the Law.

Even if Congress’s use of the mandatory term

“shall” is deemed not to foreclose prosecutorial discre-

tion in individual cases, the President's DACA and

DAPA programs go much further than authorizing

case by case discretion. Instead, they amount to a cat-

egorical and therefore unconstitutional suspension of

the law.

This Court’s decision in Chaney is instructive. Af-

ter concluding “that an agency’s decision not to take

enforcement action should be presumed immune from

judicial review under § 701(a)(2)” of the Administra-

tive Procedures Act, this Court “emphasize[d] that the

decision is only presumptively unreviewable; the pre-

sumption may be rebutted where the substantive stat-

ute has provided guidelines for the agency to follow in

exercising its enforcement powers.” Chaney, 470 U.S.

at 832-33. This Court then cited, with apparent ap-

proval, the D.C. Circuit’s en banc decision in Adams

v. Richardson, 480 F.2d 1159 (1973) (en banc). The

Court of Appeals in that case rejected the Govern-

ment’s claim of discretion over how or even whether

to enforce Title VI of the Civil Rights Act of 1964. “Ti-

tle VI not only require[d] the agency to enforce the

Act, but also set[] forth specific enforcement proce-

dures,” Jd. at 1162, just as the Immigration and Nat-

uralization Act does here. More significantly, the

Court of Appeals recognized—in language cited by

this Court—that prosecutorial discretion does not ap-

ply when an agency “has consciously and expressly

adopted a general policy which is in effect an abdica-

tion of its statutory duty.” Jd.; see also Chaney, 470

U.S. at 833 n.4.

Both the DACA and the DAPA program fall on the

“categorical suspension of the law” side of the Chaney

line. In her June 15, 2012 memo establishing the

DACA program (the precursor to the DAPA program

under review in this case), former Homeland Security

Secretary Janet Napolitano set out specific, categori-

cal criteria for DACA program eligibility. Memo from

Janet Napolitano, Secretary of Homeland Security, to

David V. Aguilar, Acting Commissioner, U.S. Cus-

toms and Border Protection, et al., Exercising Prose-

cutorial Discretion with Respect to Individuals Who

Came to the United States as Children, p. 1 (June 15,

2012). Although the memo repeatedly asserts that el-

igibility decisions are to be made “on a case by case

basis,” it is actually a directive to immigration officials

to grant deferred action to anyone meeting the crite-

ria. “With respect to individuals who meet the above

criteria” and are not yet in removal proceedings, the

memo orders that “ICE and CBP should immediately

exercise their discretion, on an individual basis, in or-

der to prevent low priority individuals from being

placed into removal proceedings or removed from the

United States.” Jd. at 2 (emphasis added). And “[w]ith

respect to individuals who are in removal proceedings

but not yet subject to a final order of removal, and who

meet the above criteria,” “ICE should exercise prose-

cutorial discretion, on an individual basis, for individ-

uals who meet the above criteria by deferring action

for a period of two years, subject to renewal, in order

to prevent low priority individuals from being re-

moved from the United States.” Jd. (emphasis added).

USCIS and ICE are directed to “establish a clear and

efficient process” for implementing the directive, and

that process “shall also be available to individuals

subject to a final order of removal regardless of their

age.” Id. (emphasis added).

Current Homeland Security Secretary Jeh John-

son’s November 2014 memo establishing the DAPA

program does the same thing. Although sprinkled

with the phrase, “case-by-case basis,” it also estab-

lishes eligibility criteria for the new program and di-

rects immigration officials “to immediately begin

identifying persons” who meet the eligibility criteria,

in order “to prevent the further expenditure of en-

forcement resources with regard to these individuals.”

Jeh Charles Johnson, Memorandum for Leon Rodri-

guez, et al., Exercising Prosecutorial Discretion with

Respect to Individuals Who Came to the United States

as Children and with Respect to Certain Individuals

Who Are the Parents of U.S. Citizens or Permanent

Residents, p. 2 (Nov. 20, 2014). The memo even an-

nounces that the process for terminating removal of

eligible aliens “shall also be available to individuals”

already “subject to final orders of removal.” Jd. (em-

phasis added).

The notion that either memo allows for a true in-

dividualized determination rather than providing a

categorical suspension of the law is simply not credi-

ble. There is nothing in the memos to suggest that im-

migration officials can do anything other than grant

deferred action to those meeting the defined eligibility

criteria. Indeed, the overpowering tone of the memos

is one of woe to line immigration officers who do not

act as the memo tells them they “should,” a point that

was been admitted by Department of Homeland Secu-

rity officials in testimony before the House of Repre-

sentatives. See Transcript, Hearing on President

Obama's Executive Overreach on Immigration, House

of Representatives Judiciary Committee (Dec. 2, 2014)

(Represenative Goodblatt noting: “DHS has admitted

to the Judiciary Committee that, if an alien applies

and meets the DACA eligibility criteria, they will re-

ceive deferred action. In reality, immigration officials

do not have discretion to deny DACA applications if

applicants fulfill the criteria.”).

Nevertheless, by repeatedly regurgitating the

phrase, “on a case by case basis,” Secretaries Napoli-

tano and Johnson seem to recognize that prosecutorial

discretion cannot be exercised categorically without

crossing the line drawn in Chaney into unconstitu-

tional suspension of the law—without, that is, violat-

ing the President’s constitutional! obligation to “take

care that the laws be faithfully executed.” U.S. Const.

Art. II, § 3; Chaney, 470 U.S. at 833 n.4. But the

memos’ directives to the immigration services not to

enforce the immigration laws against anyone meeting

the eligibility criteria set out in the memos, “in order

to prevent low priority individuals from being re-

moved from the United States,” clearly falls on the un-

constitutional side of the Chaney line. As this Court

recognized nearly 180 years ago, “To contend that the

obligation imposed on the President to see the laws

faithfully executed, implies a power to forbid their ex-

ecution, is a novel construction of the constitution,

and entirely inadmissible.” Kendall, 37 U.S. at 613.

The Office of Legal Counsel at the Depariment of

Justice likewise has recognized the need for individu-

alized determinations for exercises of prosecutorial]

discretion to be constitutional. “[T]he Executive

Branch ordinarily cannot ... consciously and express! y

adopt[] a general policy that is so extreme as to

amount to an abdication of its statutory responsibili-

ties,” the memo notes. Karl R. Thompson, Office of Le-

gal Counsel, The Department of Homeland Security's

Authority to Prioritize Removal of Certain Aliens Un-

lawfully Present in the United States and to Defer Re-

moval of Others. p. 7 (Nov. 19, 2014) (quoting Chaney,

470 U.S. at 833 n.4, internal quotation marks omit-

ted). “[A] general policy of non-enforcement that fore-

closes the exercise of case-by-case discretion poses

‘special risks’ that the agency has exceeded the

bounds of its enforcement discretion.” Jd. (quoting

Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671,

677 (D.C. Cir. 1994)). Yet that is exactly what the ad-

ministration has done here. As the district court for

the Eastern District of Pennsylvania correctly recog-

nized, the executive action at issue here, establishing

threshold eligibility criteria for aliens unlawfully pre-

sent in the United States to obtain “deferred action”

constitutes “legislation” rather than prosecutorial dis-

cretion, “and effectively changes the United States’

immigration policy.” U.S. v. Juarez-Escobar, 25 F.

Supp. 3d 774, 786 (W.D. Pa. 2014).

Neither are the Administration’s actions—either

the adoption of the DACA program in June 2012 or

the DAPA program’s massive expansion of it an-

nounced in November 2014—simply an exercise of the

kind of prosecutorial discretion that has been exer-

cised by previous administrations. Much has been

made of the Family Fairness Program implemented

by President George H.W. Bush’s administration in

February, 1990. But that program, which dealt with

delayed voluntary departure rather than the current

program’s deferred action, was specifically authorized

by statute. Section 242(b) of the Immigration and Na-

tional Act at the time provided, in pertinent part:

In the discretion of the Attorney General and un-

der such regulations as he may prescribe, de-

portation proceedings, including issuance of a

warrant of arrest, and a finding of deportability

under this section need not be required in the

case of any alien who admits to belonging to a

class of aliens who are deportable under section

1251 of this title if such alien voluntarily de-

parts from the United States at his own ex-

pense, or is removed at Government expense as

hereinafter authorized, unless the Attorney

General has reason to believe that such alien is

deportable under paragraphs (4) to (7), (11),

(12), (14) to (17), (18), or (19) of section 1251(a)

of this title.

8 U.S.C. § 1252(b), cited in Perales v. Casillas, 903

F.2d 1043, 1048 (5th Cir. 1990) (emphasis added).

That specific statutory authority was largely su-

perseded by the Temporary Protected Status program

established by the Immigration Act of 1990, which is

available to nationals of designated foreign states af-

fected by armed conflicts, environmental disasters,

and other extraordinary conditions, 8 U.S.C. § 1254a,

and subsequently limited to 120 days by the 1996 II-

legal Immigration Reform and Immigrant Respons-

bility Act (“IIRIRI”), see 8 U.S.C. § 1229c. In contrast,

as even the OLC opinion acknowledges, “deferred ac-

tion,” which is the asserted basis for the President's

recent actions, “developed without statutory authori-

zation.” OLC Memo, at 13; see also Reno v. Am.-Arab

Anti-Discrimination Comm., 525 U.S. 471, 484 (1999)

(noting that deferred action “developed without ex-

press statutory authorization,” apparently in the ex-

ercise of discretionary response to international hu-

manitarian crises that trigger the President’s sepa-

rate foreign affairs authority of the sort now covered

by the Temporary Protected Status Program).

There are now specific statutes that authorize de-

ferred action. See, e.g., 8 U.S.C. § 1154(a)(1)(D) GID),

(IV) (providing that certain individuals are “eligible

for deferred action”); USA PATRIOT ACT of 2001,

Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361 (prov-

ing that certain immediate family members of Lawful

Permanent Residents who were killed on 9/11 should

be made “eligible for deferred action.”); National De-

fense Authorization Act for Fiscal Year 2004, Pub. L.

No. 108-136, § 1703(c)-(d), 117 Stat. 1392, 1694, and

other statutes that delegate to the Attorney General

discretion to waive other provisions of the INA in spe-

cific circumstances, see, eg, 8 US.C. §

1182(a)(6)(E)(iii), (d)(11) (authorizing discretionary

waiver of smuggler ineligibility for admission rule for

smugglers who only assisted their own spouses, par-

ents, or children); 8 U.S.C. § 1182(d)(13), (14) (author-

izing, in certain specified circumstances, discretion-

ary waiver of inadmissibility rules for recipients of “T”

and “U” visas); cf. 8 U.S.C. § 1229b (authorizing the

Attorney General to “cancel removal!” and “adjust sta-

tus” for up to four thousand aliens annually who are

admitted for lawful permanent residence and who

meet certain specific statutory criteria). But none of

these statutes authorize the broad use of deferred ac-

tion for domestic purposes asserted by the June 2012

DACA program or the expanded November 2014

DAPA program. Indeed, the fact that Congress

deemed it necessary to include such statutory author-

ization for these specific domestic uses of deferred ac-

tion is compelling evidence that the Executive does

not have unfettered discretion to give out deferred ac-

tion whenever it chooses, and certainly not to deem

such individuals as “lawfully present in the country

for a period of time,” as Secretary Johnson claimed in

his November 20, 2014 memo. Johnson Memo, supra,

at 2.

Il. Prosecutorial Discretion Does Not Extend to

the Granting of “Lawful Presence” or of Ben-

efits.

Even if the President’s categorical suspension of

deportation requirements could be viewed as a valid

exercise of prosecutorial discretion, the granting of af-

firmative benefits such as work authorization and

“lawful presence” cannot be.

“The doctrine of prosecutorial discretion applies to

enforcement decisions, not benefit decisions,” noted

Bo Cooper, General Counsel for the Immigration and

Naturalization Service at the end of the Clinton Ad-

ministration. Bo Cooper, General Counsel, INS, INS

Exercise of Prosecutorial Discretion, at 4 (July 11,

2000).* Although Cooper was of the opinion that the

INS had “prosecutorial discretion to place a removable

alien in proceedings, or not to do so,” he acknowledged

that it did “not have prosecutorial discretion to admit

an alien into the United States who is inadmissible

under the immigration laws, or to provide any immi-

gration benefit to any alien ineligible to receive it.” Jd.

at 1. “[T}he grant of an immigration benefit, such as

naturalization or adjustment of status, is a benefit de-

cision that is not a subject for prosecutorial discre-

tion.” Jd. at 4.

Yet the Immigration services contend that an un-

authorized alien “who has received deferred action is

authorized by DHS to be present in the United States,

and is therefore considered by DHS to be lawfully pre-

sent during the period of deferred action is in effect.”

U.S. Citizenship and Immigration Services, Fre-

quently Asked Questions (June 15, 2015). And Secre-

taries Napolitano and Johnson both directed the im-

migration services to extend work authorization to in-

dividuals they placed in deferred action who were oth-

erwise ineligible to work in the United States. Secre-

tary Napolitano’s memo establishing the DACA pro-

gram cited no provision of law authorizing her to

* Available at http://niwaplibrary.wcl.american.edu/refer-

ence/dditional-materials/immigration/enforcement-detention-

and-criminaljustice/government-documents/Bo-Cooper-

memo™%20pros%20discretion 7. 11.2000. pdf

5 Available at https://www.uscis.gov/humanitarian/considera-

tion-deferred-action-childhood-arrivals-process/frequently-

asked-questions.

grant work authorization, but Secretary Johnson pur-

ported to find such authority in five words of the work

authorization definitional statute. “Each person who

applies for deferred action pursuant to the criteria

above shall also be eligible to apply for work authori-

zation for the period of deferred action, pursuant to

my authority to grant such authorization reflected in

section 274A(h)(3) of the Immigration and Nationality

Act,” he wrote. Johnson Memo, at 4-5 (citing 8 U.S.C.

§ 1324a(h)(3)).

Section 1324a establishes the general rule that

employing an unauthorized alien is illegal. Subsection

(a)(1) specifically makes it unlawful to hire “an unau-

thorized alien (as defined in subsection (h)(3) of this

section).” Subsection (h)(3) in turn defines “unauthor-

ized alien” as any alien who is not “lawfully admitted

for permanent residence” (that is, someone who qual-

ifies under one of the carefully wrought exemptions to

inadmissibility contained in Section 1101(a)(15) of the

Immigration Code, such as the “T” visa) or an alien

“authorized to be so employed by this chapter or by the

Attorney General.” 8 U.S.C. § 1324a(h)(3) (emphasis

added).

That last phrase, “or by the Attorney General”

(and by extension the Secretary of Homeland Secu-

rity), is the statutory hook that Secretary Johnson

claims provides him unfettered discretion to grant

work authorization to any unauthorized alien he

wishes. It is, to say the least, a pretty slim reed.

For one thing, such a broad interpretation of that

brief statutory reference would render superfluous

several other statutory provisions that give specific

authority to the Attorney General to confer both law-

ful status and work authorization and other benefits

on certain unauthorized aliens in carefully circum-

scribed circumstances. Section 1101(a)(15)(V), for ex-

ample, allows the Attorney General to confer tempo-

rary lawful status on the close family members of law-

ful permanent residents who have petitioned the At-

torney General for a nonimmigrant visa while an ap-

plication for an immigrant visa is pending. Section

1158(c)(1)(B) authorizes the Secretary to grant work

authorization to aliens who have been granted asy-

lum). Section § 1226(a)(3) allows the Secretary to

grant work authorization to otherwise work-eligible

aliens pending a removal decision, and Section §

1231(a)(7) permits the Secretary to grant work au-

thorization under certain narrow circumstances to al-

iens who have received final orders of removal. Much

more likely, therefore, that the phrase, “or by the At-

torney General,” simply refers to the specific grants of

authority given to the Attorney General in other pro-

visions of the Immigration code.

For another, nothing in the legislative history sug-

gests that Congress intended to give the Attorney

General the kind of unfettered discretion the Secre-

tary now claims. The section of the immigration law

that includes the brief phrase on which this entire ed-

ifice has been erected was added in 1986 as part of the

Immigration Reform and Control Act. The legislative

record leading to the adoption of that monumental

piece of legislation is extensive, but there does not ap-

pear to be any discussion whatsoever of the clause,

much less any claim that by including that clause,

Congress was conferring unfettered discretion on the

Attorney General to issue “lawful presence” and work

authorization to anyone illegally present in the

United States he chose. Indeed, such a position makes

a mockery out of the finely wrought (and hotly con-

tested) provisions elsewhere in the Immigration code

providing for such lawful status only upon meeting

very strict criteria.

The more limited view of Section 1324a(h)(3),

namely, that it simply refers to other provisions of fed-

eral law conferring such authority on the Attorney

General in specific circumstances, was implicitly es-

poused by a plurality of this Court when, in Chamber

of Commerce of U.S. v. Whiting, it summarized Sec-

tion 1324a(h)(3) as defining an “unauthorized alien”

to be “an alien not ‘lawfully admitted for permanent

residence’ or not otherwise authorized by federal law

to be employed.” 131 S. Ct. 1968, 1981 (2011) (empha-

sis added); see also Hoffman Plastic Compounds, Inc.

v. N.L.R.B., 535 U.S. 137, 147 (2002) (federal immi-

gration law denies “employment to aliens who (a) are

not lawfully present in the United States, or (b) are

not lawfully authorized to work in the United States,”

citing Section 1324a(h)(3)); Lozano v. City of Hazleton,

496 F. Supp. 2d 477, 518-19 (M.D. Pa. 2007), affd in

part, vacated in part, 620 F.3d 170 (3d Cir. 2010),

judgment vacated sub nom. City of Hazleton, Pa. v.

Lozano, 1318. Ct. 2958 (2011), and affd in part, rev'd

in part, 724 F.3d 297 (3d Cir. 2013).

Moreover, if the clause does provide the Attorney

General (now Homeland Security Secretary) with

such unfettered discretion, Congress has been wast-

ing its time trying to put just such an authority into

law. For more than a decade illegal immigration ad-

vocates have been pushing for Congress to enact the

DREAM Act, the acronym for the Development, Re-

lief, and Education for Alien Minors Act first intro-

duced by Senators Dick Durbin and Orin Hatch as

Senate Bill 1291 back in 2001. The bill would give law-

ful permanent residence status and work authoriza-

tion to anyone who arrived in this country illegally as

a minor, had been in the country illegally for at least

five years, was in school or had graduated from high

school or served in the military, and was not yet 35

years old (although that age requirement could be

waived). The bill or some version of it has been rein-

troduced in each Congress since, but has usually faced

such stiff opposition by those who view its principal!

provisions as an “amnesty” for illegal immigrants that

even its high-level bipartisan support has proved in-

sufficient to get the bill adopted. It is hard to imagine

the expenditure of so much political capital to achieve

authority that the Secretary claims has been in the

existing statutes all along. As Judge Smith noted be-

low, such an interpretation is “exceedingly unlikely.”

Texas v. United States, 809 F.3d 134, 183 (5th Cir.

2015), as revised (Nov. 25, 2015). “Congress ... does

not alter the fundamental details of a regulatory

scheme in vague terms or ancillary provisions—it

does not, one might say, hide elephants in mouse-

holes.” Id., n. 186 (quoting Whitman v. Am. Trucking

Ass'ns, 531 U.S. 457, 468 (2001)).

Ill. The Administration’s Interpretation of Sec-

tion 1324a(h)(3) Runs Afoul of the Non-Del-

egation Doctrine.

Finally, even if this Court were to accept that the

general phrase, “or by the Attorney General,” could be

interpreted to give the Secretary authority to extend

work authorization without reliance on other specific

grants of authority, such an interpretation would ren-

der the clause unconstitutional, a violation of a core

aspect of separation of powers.

Article I, Section I of the Constitution requires that

“{ajll legislative Powers” granted by the Constitution

must be exercised by Congress and cannot be dele-

gated away. This Court has held that Congress can

delegate a large amount of rule-making authority to

executive branch agencies, but only if it “lay[s] down

by legislative act an intelligible principle to which the

person or body authorized to [act] is directed to con-

form.” J.W. Hampton, Jr., & Co. v. United States, 276

U.S. 394, 409 (1928); Mistretta v. U.S., 488 U.S. 361,

372 (1989).

To be sure, this Court has, over the decades, been

rather generous in determining what qualifies as an

“intelligible principle.” See, e.g., Tagg Bros. & Moor-

head v. United States, 280 U.S. 420 (1930) (“just and

reasonable”); New York Central Securities Corp. v.

United States, 287 U.S. 12 (1932) (“public interest”);

Federal Radio Comm. v. Nelson Bros. Bond & Mort-

gage Ce., 289 U.S. 266, 285 (1933) (“public conven-

ience, interest, or necessity”); and FTC v. Gratz, 253

U.S. 421 (1920) (“unfair methods of competition”). But

even though the treatment of such amorphous lan-

guage as an “intelligible” principle might rightly cause

one to wonder whether the word “intelligible” is really

intelligible at all, this Court has always insisted that

there at least be something in the statute adopted by

Congress to constrain the agency’s discretion.

Here, if Secretary Johnson’s interpretation of Sec-

tion 1324a(h)(3) were to be accepted, there is abso-

lutely nothing. The phrase, “or by the Attorney Gen-

eral,” is not constrained by any requirement that the

Attorney General’s decision be in the “public interest,”

or for the “public convenience, interest, or necessity,”

or be “just and reasonable,” or even be in the public

interest as the Attorney General determines it to be.

Rather, it stands entirely on its own, unadorned and

unencumbered by any lawmaking judgment by Con-

gress.

Because such an interpretation as that offered by

Secretary Johnson would be manifestly unconstitu-

tional, a violation of the non-delegation doctrine even

in its current, largely moribund state, it should only

be adopted, under the doctrine of constitutional avoid-

ance, if no other reasonable interpretation exists that

would render the statute constitutional. See, e.g.,

Blodgett v. Holden, 275 U.S. 142, 148 (1927) (opinion

of Holmes, J.). Because here, the constitutionally-

valid alternative interpretation set out above is not

only reasonable, but much more consistent with the

Immigration code in its entirety, Secretary Johnson's

interpretation simply cannot stand.

This should be particularly true in the immigra-

tion law context, over which Congress’s power has re-

peatedly been described by this Court as “plenary.”

See, e.g., Sale v. Haitian Centers Council, Inc., 509

U.S. 155, 201 (1993); INS v. Chadha, 462 U.S. 919,

940-41 (1983); Kleindienst v. Mandel, 408 U.S. 753,

766 (1972). Indeed, this Court declared over a century

ago that “over no conceivable subject is the legislative

power of Congress more complete” than immigration.

Oceanic Steam Navigation Co. v. Stranahan, 214 U.S.

320, 339 (1909) (emphasis added); Fiallo v. Bell, 430

U.S. 787, 792 (1977). “[T]hat the formulation of [im-

migration] policies is entrusted exclusively to Con-

gress has become about as firmly embedded in the leg-

islative and judicial tissues of our body politic as any

aspect of our government.” Galvin v. Press, 347 U:S.

522, 531 (1954) (emphasis added).

There is yet another constitutional problem with

the Secretary’s interpretation. The granting of “lawful

presence” and work authorization by the Executive

branch alone makes DACA and DAPA recipients elli-

gible for other financial benefits without specific au-

thorization from Congress. That violates Article |,

Section 9 of the Constitution, which provides: “No

Money shall be drawn from the Treasury, but in Con-

sequence of Appropriations made by Law.” U.S. Const.

art. I, § 9, cl. 7. Only Congress, in compliance with the

bicameralism and presentment requirements of the

Constitution, can authorize such appropriations; the

President (much less his Secretary of Homeland Secu-

rity) cannot do it unilaterally. See Clinton v. New

York, 524 U.S. 417, 438 (1998).

CONCLUSION

For the reasons noted above, the decision of the

Fifth Circuit enjoining the implementation of DAPA

should be affirmed.

Respectfully submitted,