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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A34

## 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

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

i
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?

il

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

ii

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

iv

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

Vv

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

vi

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

vu

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.

2

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

3

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,

4

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.

5

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-

6

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.

7

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

8

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

9

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

10

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

11

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”

12

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).

13

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

14

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

15

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.

16

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

17

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

18

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

19

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.

20

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

21

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).

22

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,

JOHN C. EASTMAN
Counsel of Record
ANTHONY T. CASO
CRISTEN WOHLGEMUTH
Center for Constitutional
Jurisprudence
c/o Fowler Schoal of Law
Chapman University
One University Drive
Orange, CA 92866
(877) 855-3330
jeastman@chapman.edu

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A34. Public record. Not legal advice.