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 United States

UNITED STATES OF AMERICA et al.,

Petitioners,

Vv.

STATE OF TEXAS, et ai.,

Respondents.

On Writ of Certiorari

to the U.S. Court of Appeals

for the Fifth Circuit

BRIEF FOR EAGLE FORUM EDUCATION &

LEGAL DEFENSE FUND AS AMICUS CURIAE

SUPPORTING RESPONDENTS

Lawrence J. Joseph

1250 Connecticut Av., NW

Suite 200

Washington, DC 20036

Tel (202) 355-9462

Fax (202) 318-2254

Email lj@larryjoseph.com

LA Och ATER OP OPO RES 2 COT TIE TTT IAT I EIEIO

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

The Executive Branch unilaterally created a

program to deem 4 million unlawfully present aliens

as “lawfully present” and eligible for a host of benefits

including work authorization. Pet. App. 413a. This

program, called DAPA, goes far beyond forbearing

from removal! or enforcement discretion.

The district court entered a preliminary in-

junction of DAPA under the Administrative Procedure

Act. The court of appeals affirmed. Both courts

explained that the injunction does not require the

Executive to remove any alien and does not impair the

Executive's ability to prioritize aliens for removal. In

fact, on the same day it announced DAPA, the

Executive issued a separate memorandum defining

categories of aliens prioritized for removal. This

lawsuit has never challenged that separate

memorandum. The questions presented are:

l.a. Whether at least one plaintiff has a stake in

this controversy sufficient for standing, when record

evidence confirms that DAPA will cause States to

incur millions of dollars in injuries.

1.b. Whether DAPA — which affirmatively grants

lawful presence and work-authorization eligibility — is

reviewable agency action.

2. Whether DAPA violates immigration and

related benefits statutes, when Congress has created

detailed criteria for which aliens may be lawfully

present, work, and receive benefits in this country.

3. Whether DAPA — one of the largest changes in

immigration policy in our history — is subject to the

APA’s notice-and-comment requirement.

4. Whether the Guidance violates the Take Care

Clause of the Constitution, Art. II, § 3.

TABLE OF CONTENTS

8 SE, PL RRC RE RP ERE i

5 RE ES er oe Re il

I dnisandbniinsanintens iv

ee CID circcciviessovecsecerssssesecnsonsnssncsss 1

dil eiesabanianeel 2

Constitutional Background ...........................00006 4

Statutory Backeround ................ccccccccccsssssseoseseees 5

a caaetsipdnbaumpnionsed 6

cise coieresipabieosagvasbuanseseenets 6

aa aie ani necntipenananianunsndasisneseuinani g

I > «een I onic ee cricciiodicliniidunnese 9

A. The States’ injuries are cognizable under

SANS SE ee AR Ps Ne BW apr aoe tees eo a 9

1. The States suffer increased costs and

administrative burdens from DAPA’s

converting illegal aliens into lawfully

ER DEED TS a als dee eed ba 10

2. Increased licensing costs are not self-

Fe ERS SIAR aI Re aoe 11

3. Standing analysis does not consider

indirect benefits that may offset costs

imposed by a defendant’s actions. ........ 12

4. Article III's immediacy requirements

are relaxed for procedural-rights

viodations TRO DDAPA. ..0...00.0000s0ccsses00000. 13

5. This Court should recognize the

States’ parens patriae standing against

ultra vires federal agency action. ......... 15

B. The States’ injuries and claims satisfy

the zone-of-interest test. ..................ccce0eeeees 16

C. DAPA is not unreviewably committed to

agency discretion under Heckler. ................ 19

1. Enforcement policies are reviewable

where — as here — a court has law to

CURBED, incccssincstnisoveciennemnbiinsedianinieaiiil 20

2. Heckler and its progeny do not

preclude review of actual rules............. 22

3. The pre-INA APA allowed review,

and INA did not displace review. ......... 23

4. Pre-APA equity review would

suffice, even if Congress had never

OURDE FIP TAS secivcicccomnumineeusndnad 24

Il. DAPA’s promulgation was procedurally

GG cerrccesmttinnisciininbniniienmaiieeiens 27

A. DAPA’s promulgation violated the APA

SINGIN. siccnssscseneionstiniesanmandianansenteaiddieg 27

B. DAPA’s promulgation violated the

Constitution procedurally. .......................... 29

III. DAPA violates immigration law........................ 30

A. DAPA is fundamentally inconsistent

WUE FIIs wccoriccecsotdcesocuitsbatieaensaninidbmeantae 30

B. The historical pattern of prior deferral

actions cannot support a legislative-

ratification argument. ......................:::0000000 32

IV. DAPA violates the Take Care Clause. .............. 34

CORRE ........ .ciunapehavesnuaceteuenansadcandesanaanennananaial 37

ill

TABLE OF AUTHORITIES

Cases

Abbott Laboratories v. Gardner,

a sesbeocesnce 20-21

Adams v. Richardson,

480 F.2d 1159 (D.C. Cir. 1973) (en banc)......... 22

Alfred L. Snapp & Son v. P.R.,

as cemesneneci 15

Altria Group, Inc. v. Good,

SEE 26

Am. Mining Congress v. Mine Safety & Health

Admin., 995 F.2d 1106 (D.C. Cir. 1993)........... 28

Am. Sch. of Magnetic Healing v. McAnnulty,

an seesbeensoeves 25

Arizona Dream Act Coalition v. Brewer,

757 F.3d 1053 (9th Cir. 2014)................ccccceceeee 11

Arizona v. U.S.,

i cmuvonens 3

Ass'n of Data Processing Serv. Org., Inc. v.

yy MD OI crcccccccevessesscoccecccoseseos 6

Ass'n of Irritated Residents v. EPA,

494 F.3d 1027 (D.C. Cir. 2007)........................ 21

Avoyelles Sportsmen's League, Inc. v. Marsh,

715 F.2d 897 (Gth Cir. 1983)............ccccccccccccosees 27

Bennett v. Spear,

I conesencnronees 4-5

Block v. Community Nutrition Inst.,

|. ccesensonsasoonncooes 24

Bond v. U.S.,

a copmnensons 18

Chambers v. NASCO, Inc.,

a ins ster cipecpasiembanpaciinilatiiecibdieiid 36

Chiles v. Thornburgh,

865 F.2d 1197 (11th Cir. 1989)........................ 17

Chrysler Corp. v. Brown,

ee iain censcatinnnsencpeaindniaddiits 27-29

City of Arlington v. FCC,

es Ba cnictinibintnisiatnermniiaiiteesiaake 17

City of Houston v. Dep't of Hous. & Urban Dev.,

24 F.3d 1421 (D.C. Cir. 1904)..........cccccccccocesvees 35

City of Waukesha v. EPA,

BE Fe Be Ge CO, BD cecccsccecccccccecccccscssccs 9

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821).................0cccceeees 20

Colorado River Water Conserv. Dist. v. U.S.,

| ____RERREEREY RRP amen ne cen racer 20

Corley v. U.S.,

SE SESE 13

DaimlerChrysler Corp. v. Cuno,

gf 4 ESSE se wom 5, 14

Darby v. Cisneros,

es Be i ictictivsanniesisintccittwatsenroneasdanniaon 24

Dart v. U.S.,

846 F.2d 217 (D.C. Cir. 196B)...........c.cccccccesee0000 25

DeCanas v. Bica,

| EER RSET eee sas 4

Diamond v. Charles,

RR RET RU REEL 10

Dickinson v. Zurko,

I A healings 24

Duke Power Co. v. Carolina Envtl. Study Group,

Te 4 eee 14

Ex parte Young,

I a 25

FCC v. ITT World Commce'ns, Inc.,

I ie 24

FEC v. Akins,

I 14

First Nat'l Bank & Trust Co. v. N.C.U.A.,

988 F.2d 1272 (D.C. Cir. 1993)................... 16, 18

Franklin v. Massachusetts,

ST RR, sence sneecnnnstinsunnionelitl 16

FTC v. Morton Salt Co.,

tk eee Te 30

General Elec. Co. v. EPA,

300 F.38 377 (D.C. Cir. BOOB)......0000000000cccec00000. 27

Gray v. Powell,

LES ce Osea 20

Haitian Refugee Ctr. v. Gracey,

809 F.2d 794 (D.C. Cir. 1987).............0..000.. 16-17

Harmon v. Brucker,

SERA Ee enero ere 25

Heckler v. Chaney,

A es ceaunes 7, 19-22

Honeywell Int, Inc. v. EPA,

374 F.3d 1363 (D.C. Cir. 2004), withdrawn

on part on other grounds, 393 F.3d 1315

Tk 8 EERE Senne Cone 19

INS v. Chadha,

ERE TSS Rae RE 29-30

Intl Union v. Brock,

I a 23

Judulang v. Holder,

I a ac 32

Larson v. Domestic & Foreign Commerce Corp.,

ft 8. 15, 17, 25

Louisiana Pub. Serv. Comm'n v. FCC,

a adninaiaianiiil 29

Loving v. U.S.,

I ides 29

Lujan v. Defenders of Wildlife,

| Ere 10, 13-14

Lujan v. Nat Wildlife Fed’n,

Se ee ian icintenenttenctindtictenneseteie 19, 23

Massachusetts v. EPA,

ECE SES EERSTE Pe ieee 7,10

McLouth Steel Products Corp. v. Thomas,

SSS F.BS TSRT GP.C. Coe. BBB) ....ccccecccsccccccsesese 28

Medellin v. Texas,

I ia crea 32

Metro. Washington Airports Auth. v. Citizens

for the Abatement of Aircraft Noise,

a olerntandannaalll 18

Mistretta v. U.S.,

i ouunieeinedens 17, 34

Morton v. Ruiz,

I i tare demaelinienl 28

Mullaney v. Anderson,

EFS enna serene 13

Nat'l Ass'n of Home Builders v. Defenders of

Wildlife, 551 U.S. 644 (2007)................0000000000 26

Nat'l Credit Union Admin. v. First Nat'l Bank

& Trust, Co., 522 U.S. 479 (1998) ..................-. 16

North Am. Coal Corp. v. Director, Office of

Workers’ Compensation Programs,

U.S. Dept. of Labor,

854 F.2d 386 (10th Cir. 1988).................0..0000... 29

Norton v. S. Utah Wilderness Alliance,

I Sc saiinabans 19

Pa. v. Mimms,

a 33

Pennhurst State Sch. & Hosp. v. Halderman,

RE RE ESTA I A ce eR 17

Reno v. American-Arab Antidiscrimination

Committee, 525 U.S. 471 (1999) ...............00.0000 21

Scheduled Airlines Traffic Offices, Inc. v. D.O.D.,

87 F.3d 1366 (D.C. Cir. 1986)...............00..s000000. 19

Schlesinger v. Councilman,

As 26

Simon v. Eastern Kentucky Welfare Rights Org.,

NN II kt srenidannainiisbibilnnsibesidacacs 4,11

State of Ohio Dep’t of Human Serv. v. U.S. Dept.

of Health & Human Serv., Health Care

a 28-29

Sugar Cane Growers Co-op. of Fla. v. Veneman,

260 F.36 BO (D.C. Cir. BOOB) ....0cccccccccscccesceesccess 14

Super Tire Engineering Co. v. McCorkle,

SD 35

Sure-Tan, Inc. v. NLRB,

as 18

Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive

Cmtys. Project, Inc., 135 S.Ct. 2507 (2015)...... 32

Texas Sav. & Cmty. Bankers Ass'n v. Fed. Hous.

Fin. Bd., 201 F.3d 551 (5th Cir. 2001)............. 27

vill

Texas v. U.S.,

86 F.Supp.3d 591 (S.D. Tex. 2015)........... 2, 6, 28

Texas v. U.S.,

ge ff Ld eer 2

Thomas v. Union Carbide Agric. Prods. Co.,

I hs 36

U.S. v. Lee,

I 25

U.S. v. Munoz-Flores,

LARS Rea Benoee me ree 18

U.S. v. Picciotto,

875 F.2d 345 (D.C. Cir. 1989)........................+.. 28

U.S. v. Students Challenging Regulatory Agency

Procedures (SCRAP), 412 U.S. 669 (1973)....... 10

U.S. v. Texas,

I a. enlepenionel 34

Util. Air Regulatory Group v. EPA,

Se 33

Valley Forge Christian College v. Americans

United for Separation of Church and State,

i Se ee re a iiintinitiniersteiisnitiininnicnciese 4

Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp, Ge, BBS (IGT 8) occcccevecccccsssscccccccccesees 11

Warth v. Seldin,

ir Tricia neni cntcnbonineedpeniaupeliniouseleh i)

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass'n,

i icticncndpesceicissutgbonionpepesnnncinedes 33

Wheeldin v. Wheeler,

I II nin ccnicsnemiennuimninnsineisichegnation i)

Youngstown Sheet & Tube Co. v. Sawyer,

ee Uy GE EE ixcccccssidsdontnssnubiionsecieuneiones 32, 36

Statutes

Se, I GNI Bh anc ccecscestnadobanoonesnainiie 4, 15, 29

i EE: MEL Eh CAEL Sb soccscusacsacesetidnncteenanectdenntons 4

es ls le EE TD sncncensedocssienscnivcnsnssess 4, 8, 35-36

i eee aaaeeadii 4

AI TIE Tics iccetsicrcicscsnagnabididdsiniecanmiaadin 4

Administrative Procedure Act,

5 U.S.C. §§551-706.....2, 7-8, 14, 19-21, 23-30, 35

AEE RTE ERR Sere, FS 19

I a 27, 29

I ial 27

I ee 27

I aa cl ae 23-24

ELLE LEY TRO Be 21

| SNA EEE Ore ck Ome OL awe 15, 24

I a a a a Oe 21

Immigration and Naturalization Act (“INA”),

IT i cssocirsenccscnescsasictiniece’ passim

ls Bie I siticsciacecdsntcoscssssstnioscssonneds 31

8 U.S.C. §1182(a)(9)(B)G)AI)..............cerrcseseressreees 31

(OSE ENE See 7 Ae EEL 31

ee IED oi ccecccctscinctetedebicdersodtaieinnbecsscante 31

3 REE SRS Sats ere Meee means 31

oad iden deacebidnbasinal 31

a seins 26

CF ET RSE A AONE Ae SLE RED, Be 31

OS EEESE SEPSIS Sop Pa ellen peek eee 12

Cf ARE TTS PSOE Tk ete Ben Be Br 12

ee 33-34

Federal Food, Drug, and Cosmetic Act

Be a, Be ckcerniccvsscnaneenisenctenccnntsscnsnass 20

Title VI of the Civil Rights Act of 1964,

42 U.S.C. §§2000d-§2000d-7..............ccccccceeeeeeeees 22

Immigration Reform & Control Act (“IRCA”),

Pus. L. No. 99-603,

ah teeenelinlaiie 5

Illegal Immigration Reform and Immigrant

Responsibility Act (““ITRIRA”),

Pus. L. No. 104-208, §505(a),

110 Stat. 3009, 3009 672 (1996)..................06. 5-6

Personal Responsibility and Work Opportunity

Reconciliation Act (“PRWORA’),

Pus. L. No. 104-193,

I I wiisscnccisdchascannessicuctecensien 5-6

Legislative History

Administrative Procedure Act, Legislative

History, 79th Cong., S.Doc. No. 248,

79th Cong., 2d Sees. (1946) ..................cceceecerees 25

H.R. Rep. No. 99-682(1),

I ee I, I oa ios ca vepasnsisensadedudniananene 5

H.R. REP. No. 104-725 (1996) .................008 21, 32-33

Rules, Regulations and Orders

eC I foi orci iicaneicdeidetenindbviisdilaediadenenanin l

i cccslecionstsensanbleilonion 28

B CFTR, BF TIE) .nccccvescnesiessccescisvccccvecisssceses 28

Other Authorities

A.B.A. Section of Admin. Law & Regulatory

Practice, A Blackletter Statement of Federal

Administrative Law, 54 ADMIN. L. REV. 1

EDWIN BORCHARD, DECLARATORY JUDGMENTS,

(IRIS SEE RSE EE ey SSS be Rs ee ONCE ON 25

Kenneth Culp Davis, “Nonreviewable

Administrative Action,” 96 U. PA. L. REV. 749

She ES EG RR PES en anes eer Sen 20

WILLIAM J. HUGHES, FEDERAL PRACTICE §25387

TIE I WII og ans co cseedaconnacenccacunninainescce 25

No. 15-674

on eimabitatiiaiaiediendiaaaseel

In the Supreme Court of the Hnited States

UNITED STATES OF AMERICA et al.,

Petitioners,

STATE OF TEXAS, et al.,

Respondents.

On Writ of Certiorari

to the U.S. Court of Appeals

for the Fifth Circuit

INTEREST OF AMICUS CURIAE'

Amicus curiae Eagle Forum Education & Legal

Defense Fund, Inc. (““EFELDF”) is a_ nonprofit

corporation founded in 1981. For more than thirty

years, EFELDF has defended American sovereignty

and promoted adherence to federalism and the

separation of powers under the U.S. Constitution. In

addition, EFELDF has consistently opposed unlawful

behavior, including illegal entry into and residence in

| his amicus brief is filed with written consent of all parties;

the respondents’ written consent has been lodged with the Clerk

of the Court, and the other parties lodged blanket consents with

the Clerk. Pursuant to Rule 37.6, counsel for amicus curiae

authored this brief; no party’s counsel authored this brief in

whole or in part, nor did any person or entity other than amicus.

its members, and its counsel make a monetary contribution to

the preparation or submission of this brief.

the United States, and supported enforcing immigra-

tion laws. For all these reasons, EFELDF has direct

and vital interests in the issues before this Court.

STATEMENT OF THE CASE

Twenty-six states (collectively, hereinafter,

“States”) sued several federal officers with duties over

federal immigration law (collectively, the “Admin-

istration” or “Admin.”) to challenge the officers’

implementation of a program known as “DAPA” as

well as its expansion of a prior program known as

Deferred Action for Childhood Arrivals (“DACA”).

Like DACA, DAPA seeks to protect illegal aliens from

removal under federal immigration law by upgrading

their immigration status to lawfully present aliens

and allowing them, thereby. to obtain a variety of

benefits, including work authorization. Although the

States challenge DAPA as both substantively and

procedurally ‘invalid, the District Court issued a

preliminary injunction based only on DAPA’s failure

to undergo the notice-and-comment rulemaking

required by the Administrative Procedure Act, 5

U.S.C. §§551-706 (“APA”), Pet. App. 385a-92a, and the

Administration filed an interlocutory appeal.

The Fifth Circuit affirmed, holding DAPA invalid

both procedurally and substantively. Pet. App. 66a-

67a, 85a-86a. Before explaining why this Court should

affirm, amicus EFELDF first responds to the Admin-

istration’s hyperbolic characterization of the Fifth

Circuit’s standing analysis as a “radical expansion of

state standing [that] would force courts to hear a vast

new range of challenges to federal policies,” Admin.

Br. 31, and “permit[] a State, through the federal

judiciary, to interfere with the federal government's

administration of the immigration laws as to third-

party aliens.” Jd. 28. By relying on preemption cases

on immigration such as Arizona v. U.S., 132 S.Ct.

2492 (2012), the Administration suggests that the

States (and lower courts) are violating federalism —

the divide between state and federal sovereigns. That

rhetoric likely derives from the fact that the state-

federal divide tips to the federal side for immigration,

but it is entirely inapposite to what this litigation

concerns. Here, the Administration-— te., the

President and his officers— adopted immigration

rules that violate immigration laws that Congress

enacted, and previous presidents signed. It is that

divide — not federalism but the separation of powers —

that is at issue here. The fact that the plaintiffs are

states does not make this a federalism case; the

plaintiffs could be individuals with an Article III

injury just as easily as states. In filing such suits, the

plaintiff asserts the power of Congress to make the

laws and the right of the rest of us to live under duly

enacted laws.

For a time, each Administration has the right to

assert arguments for the titular party “United States

of America,” but the Administration is not the United

States. The Administration is one branch of a divided

federal government, and a branch that has a duty to

execute faithfully the laws that another branch —

Congress — enacts. This Court heads the third branch,

which must referee claims that the Administration

has violated that duty. In such cases, it is no defense

that Congress refused to enact laws favored by the

Administration.

Because this Court has never held that

separation-of-powers claims are outside the reach of

ordinary plaintiffs— whether the States or the

People — the remarkable issue here is not how far the

States intrude into federal immigration policy, but

how far the Administration acts beyond federal

immigration law. Article III and the judiciary’s

prudential restrictions open federal courts to anyone

with a case or controversy sufficiently related to the

laws Congress enacted. It is troubling that the

Administration finds that troubling.

Constitutional Background

Congress has plenary power to regulate

immigration. U.S. CONST. art. I, §8, cl. 4. Although the

“[plower to regulate immigration is unquestionably

exclusively a federal power,” DeCanas v. Bica, 424

U.S. 351, 354 (1976), this Court has never held that

every “state enactment which in any way deals with

aliens” constitutes “a regulation of immigration and

thus [is] per se pre-empted by this constitutional

power, whether latent or exercised.” Jd. at 355 (mere

“fact that aliens are the subject of a state statute does

not render it a regulation of immigration”).

For its part, the Executive Branch has the duty to

take care that the laws are faithfully executed. U.S.

CONST. art. II, §3. Except where Congress has

delegated rulemaking authority to the Executive

Branch, “[aJll legislative Powers [are vested] in [the]

Congress.” U.S. CONST. art. I, §1.

Under Article III, federal courts are limited to

hearing cases and controversies, U.S. Const. art. III,

§2, which is relevant here primarily in the “bedrock

requirement” of standing. Valley Forge Christian

College v. Americans United for Separation of Church

and State, Inc., 454 U.S. 464, 471 (1982). This limit is

“fundamental to the judiciary’s proper role in our

system of government.” Simon v. Eastern Ky. Welfare

Rights Organization, 426 U.S. 26, 37 (1976). In both

its constitutional and prudential strands, standing is

“founded in concern about the proper — and properly

limited — role of the courts in a democratic society.”

Bennett v. Spear, 520 U.S. 154, 162 (1997) (interior

quotations and citations omitted). Indeed, standing is

“crucial in maintaining the tripartite allocation of

power set forth in the Constitution.” DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 341 (2006) (interior

quotations omitted, emphasis added).

Statutory Background

The States and Administration outline the history

of federal immigration law, States Br. 2-8; Admin. Br.

50-60, so amicus EFELDF focuses only on the points

salient to this brief. The Immigration Reform &

Control Act, PuB. L. No. 99-603, 100 Stat. 3359 (1986)

(“IRCA”), began the process of amending the Immi-

gration and Naturalization Act, 8 U.S.C. §§1101 1537

(“INA”), to protect against illegal aliens’ working here.

IRCA, and thus INA post-1986, generally “prohibit(s]

the employment of aliens” who “entered the country

illegally.” H.R. Rep. No. 99-682(I), at 46, 1986

U.S.C.C.A.N. 5649, 5650. Two INA amendments in

1996-— the Illegal Immigration Reform and

Immigrant Responsibility Act (“IIRIRA”)? and

Personal Responsibility and Work Opportunity

Reconciliation Act (“PRWORA”) -- accelerated the

effort by Congress to discourage illegal immigration

by eliminating work and other benefits. With

PRWORA, Congress found “a compelling government

interest ... to remove any incentive for illegal

immigration,” H.R. CONF. REP. No. 104-725, at 378

2 Pus. L. No. 104-208, §505(a), 110 Stat. 3009, 3009-672

(1996).

3 ~PuB. L. NO. 104-193, 110 Stat. 2105 (1996).

(July 30, 1996), and implemented the lawful-presence

requirements at issue here. /d. at 383.

Factual Background

Amicus EFELDF adopts the factual background

in the States’ brief (9-14), but emphasizes the

following points here:

e After DACA’s issuance, the President indicated

that DACA represented the limit of his authority

without new legislation: “if we start broadening

that, then essentially I would be ignoring the law

in a way that I think would be very difficult to

defend legally.” JA:388.

e Instead, the President urged Congress to enact a

comprehensive immigration bill he favors, JA:23-

26, which Congress did not do.

¢ The Administration then issued DAPA, which if

implemented would cover four million unlawfully

present aliens. JA:95-96.

e After DAPA’s issuance, the President admitted

that he “just took an action to change the law,”

Pet. App. 384a, and that DAPA confers “a legal

status.” States Br. 13.

e Analogizing to military orders, JA:790, he warned

agents “who aren't paying attention to our new

directives” of “consequences.” JA:788-90.

SUMMARY OF ARGUMENT

To establish standing, a plaintiff must show an

“injury in fact” that is “arguably within the zone of

interests to be protected or regulated” by the relevant

statutory or constitutional provision. Ass'n of Data

Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153

(1970). The States readily meet both tests. First, the

States have standing not only because they provided

ample evidence of financial injury and federal courts

owe states “special solicitude in standing analysis”

under Massachusetts v. EPA, 549 U.S. 497, 520 (2007),

but also because — aside from costs - DAPA imposes

administrative burdens (Section 1.A.1). Further,

standing analysis relaxes Article III’s immediacy and

redressability prongs for procedural-rights plaintiffs

(Section 1.4.4), and this Court can and should

recognize that states can have parens patriae

standing to enforce federal law against ultra vires

administrative action because federal officers ultra

vires actions are not sovereign (Section 1.A.5). Finally,

insofar as the States allege that DAPA is ultra vires

DHS’s authority and _ violates constitutional

separation-of-powers principles, the zone-of-interest

test uses the broadest-possible zone, rather than the

more narrow, immigration-law zones of interest that

the Administration suggests (Section I.B).

With respect to the availability of judicial review,

the general, rebuttable presumption that enforcement

discretion is unreviewable from Heckler v. Chaney,

470 U.S. 821 (1985), is inapplicable here for two

reasons: (1) the relevant statutes here require these

enforcement proceedings, which gives a reviewing

court “law to apply” versus the agency's chosen

nonenforcement path (Section I.C.1); and (2) unlike

an instance of nonenforcement like Heckler, the

Administration here has taken final agency action in

the form of the promulgated DAPA (Section I.C.2). In

addition, the issues raised here are neither

procedurally nor substantively committed to agency

discretion and thus fall within the APA’s “hospitable”

and presumptive review (Section I.C). Further, the

APA requires that post-APA preclusion-of-review

statutes displace APA review expressly, which no

statute does here (Section I.C.3). Indeed, pre-APA

equity review would be available, even if APA review

were not (Section I.C.4), placing the Administration's

interpretation at odds with the canon against

construing subsequent statutes to repeal prior ones by

implication-— a canon that that applies with

particular strength to judicial review.

DAPA’s promulgation violated the statutory and

constitutional requirements for making rules with

legal effect (Section IJ). First, DAPA required APA

notice-and-comment rulemaking because DAPA had

binding effect and affected public rights and

obligations (Section II.A). Second, insofar as APA

rulemaking is an express exception to the Article I

law-making power delegated to Congress, agencies

that issue legislative rules without APA-compliant

procedures violate the Constitution (Section II.B).

DAPA violates INA substantively by giving a

more favorable pathway to lawful-presence status

than INA provides (or even allows) for parents with

children having either citizen or lawful-presence

status, and it violates INA procedurally by moving

illegal aliens to one possible (and favorable) outcome

to INA’s required removal proceedings, without

initiating the required removal proceeding in the first

place (Section III.A). The Administration’s claim to

congressional ratification of deferred-action efforts

cannot support DAPA due to the lack of favorable

appellate authority, Congress’s 1986 and 1996 efforts

to require removal and avoid illegal aliens’ working

here, the unprecedented scope of DAPA, and DAPA’s

inconsistency with the INA’s plain language (Section

I11.B).

Although the Constitution requires the President

to “take Care that the Laws be faithfully executed.”

U.S. ConstT. art. II, §3, DAPA violates the Take Care

Clause because the Administration knew that DAPA

violated INA and willfully adopted DAPA in violation

of INA (Section IV). Although the Take Care violation

parallels the INA violations, the willfulness precludes

mootness based on a newly promulgated DAPA

version, absent the Administration's truly ceasing the

underlying conduct at issue.

ARGUMENT

I. THIS CASE IS JUSTICIABLE.

Federal courts have jurisdiction over a case if “the

right of [plaintiffs] to recover under [their] complaint

will be sustained if the ... laws of the United States

are given one construction,” even if the plaintiffs’

rights “will be defeated if [those federal laws] are

given another.” Wheeldin v. Wheeler, 373 U.S. 647,

649 (1963) (interior quotations omitted). Accordingly,

federal courts typically consider their jurisdiction

before the merits. Indeed, federal courts should

assume the plaintiff's merits views in evaluating their

jurisdiction to hear the plaintiffs claims: “standing in

no way depends on the merits of the plaintiffs

contention that particular conduct is illegal.” Warth v.

Seldin, 422 U.S. 490, 500 (1975); City of Waukesha v.

EPA, 320 F.3d 228, 235 (D.C. Cir. 2003) (“one must

assume the validity of a plaintiff's substantive claim

at the standing inquiry”). Here, the States’ merits

arguments reinforce their jurisdictional arguments in

several respects. See Sections I.B (zone of interest for

ultra vires agency action), 1.A.4 (procedural-rights

standing), infra.

A. The States’ iniuri izabl

under Article III.

An “injury in fact” is (1) an actual or imminent

invasion of a constitutionally cognizable interest.

(2) which is causally connected to the challenged

conduct, and (3) which likely will be redressed by a

favorable decision. Lujan v. Defenders of Wildlife, 504

U.S. 555, 561-62 (1992). For injuries directly caused

by government action, plaintiffs can show injury with

“little question” of causation or redressability; by

contrast, when government action causes third

parties to inflict injury, plaintiffs must show more to

establish causation and redressability. Defenders of

Wildlife, 504 U.S. at 561-62. Here, the States suffer

both direct and indirect injury from DAPA, which

makes causation and redressability obvious: enjoin

enforcement of DAPA, and the States’ injuries will

cease or at least lessen. That is particularly so given

the “special solicitude in standing analysis” that

federal courts must accord to states “protecting [their]

quasi-sovereign interests.” Massachusetts, 549 U.S. at

520. The following subsections analyze the States’

injuries for purposes of standing.

1. The States suffer increased costs and

administrative burdens from DAPA’s

converting illegal aliens into

lawfully present aliens.

Plaintiffs obviously have standing to challenge

actions that negatively impact them economically,

Diamond v. Charles, 476 U.S. 54, 66 (1986), and the

burden need not be crushing: an “identifiable trifle”

suffices. U.S. v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14

(1973) (internal quotations omitted). A sufficient trifle

includes “plaintiffs with no more at stake ... than a

fraction of a vote, a $5 fine and costs, and a $1.50 poll

tax.” Id. (citations omitted). Amicus EFELDF

respectfully submits, however, that the arguments

here make standing more complex than necessary.

Whereas the type of injury can determine standards of

review — and thus be outcome-determinative on the

merits as with equal-protection claims, garden-

variety Article III injury can be as simple as increased

administrative burdens, which “[cJlearly... mefe]t the

constitutional requirements” for injury for plaintiffs

asserting the “right to be free of arbitrary or irrational

[government] actions.” Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 263 (1977). As

explained below, the States readily meet these tests

for both economic and administrative burdens.

2. Increased licensing costs are not

self-inflicted injuries.

Notwithstanding its support for DACA

beneficiaries’ equal-protection rights to driver's

licenses in Arizona Dream Act Coalition v. Brewer,

757 F.3d 1053 (9th Cir. 2014), the Administration

claims that the States’ — and particularly Texas’s —

decision to subsidize driver's licenses does not support

standing here because that decision constitutes a self-

inflicted injury by Texas. Admin. Br. 24-29. To make

that argument work, the Administration would need

to establish that the States can offer subsidies to all

applicants except DAPA beneficiaries and deny either

the subsidies or licenses altogether to DAPA

beneficiaries. It would be no defense for the

Administration to argue that the Equal Protection

Clause — and not DAPA — would require the States to

provide benefits to DAPA beneficiaries. Such third-

party indirection easily equates to first-party injury

when the result is compelled by law, as opposed to

policy choices. Simon, 426 U.S. at 45 n.25. The Admin-

istration cannot have it both ways (i.e., DAPA avoids

review on standing, but DAPA beneficiaries get State

benefits under Equal Protection).

As interesting as it might be to watch this

Administration attempt to make the required showing

for driver’s licenses, it would prove to be for naught

because the Administration would then need to make

the same showing for Medicare and every other

benefit that the States identify See States Br. 28. At

some point, the task would prove impossible. For

example, 8 U.S.C. §1611(b)(2)-(3) provides certain

Medicare benefits immediately upon an illegal alien’s

obtaining DAPA’s lawful-presence status. The

Administration cannot defend these imposed costs as

self-inflicted injuries because the States have a right

to continue their chosen, pre-DAPA public policies

without the Administration’s unlawfully imposing

higher costs and administrative burdens. Forcing the

States to withdraw these programs for everyone as a

basis for avoiding them on DAPA beneficiaries would

inflict sovereign injuries on the States, so the only way

for the Administration’s self-inflicted-injury argu-

ment to work would be if the States could carve DAPA

beneficiaries out of all these pre-DAPA benefits.

3. Standing analysis does not consider

indirect benefits that may offset

costs imposed by a defendant’s

actions.

The claim that tax benefits to some State agencies

will offset DAPA’s increased licensing and Medicare

administrative burdens and costs — for example, at

the Texas Department of Motor Vehicles (“DMV”) and

Health and Human Services Commission (“HHSC”),

respectively — would be irrelevant, even if it could be

supported factually.‘ As the States explain, the law of

standing does not engage in dollar-for-dollar economic

netting in the circumstances here, States’ Br. 29-30,

but such netting would not save the Administration

even if it applied. Specifically, economic netting would

not undercut the States’ standing from administrative

burden (as distinct from out-of-pocket costs), and it

would not prevent discrete state agencies such as

Texas’s DMV or HSSC from pressing their economic

claims. Those agencies do not receive the alleged tax

boon, even if some other State agency would. To the

extent that these discrete agencies constitute

necessary parties not subsumed with the nominal

State parties, these agencies can, of course, be joined,

even on appeal. Mullaney v. Anderson, 342 U.S. 415,

416-17 (1952) (“dismiss[ing] the present petition and

require[ing] the new plaintiffs to start over in the

District Court would entail needless waste and runs

counter to effective judicial administration’).

4. Article III’s immediacy requirements

are relaxed for procedural-rights

violations like DAPA.

Significantly, this litigation alleges procedural

violations, see Section II, infra, which lower the bar

for Article III standing. “The history of liberty has

largely been the history of observance of procedural

safeguards,” Corley v. U.S., 556 U.S. 303, 321 (2009)

(interior quotations omitted), and “procedural rights’

are special,” Defenders of Wildlife, 504 U.S. at 572 n.7

(interior quotations omitted). For procedural injuries,

‘ Amicus EFELDF understands that Texas has no income

tax, which undercuts the Administration's arguments vis-a-vis

Texas.

Article III's’ redressability and immediacy

requirements apply to the present procedural

violation (which may someday injure a concrete

interest) rather than to the concrete future injury.

Defenders of Wildlife, 504 U.S. at 571-72 & n.7; ef.

DaimlerChrysler Corp., 547 U.S. at 353 & n.5 (“once a

litigant has standing to request invalidation of a

particular [government] action, [the litigant] may do

so by identifying all grounds on which the agency may

have failed to comply with its statutory mandate”);

Duke Power Co. v. Carolina Envtl. Study Group, Inc.,

438 U.S. 59, 78-81 (1978) (standing doctrine has no

nexus requirement outside taxpayer standing).

Procedural-rights standing thus undercuts the

Administration's miserly interpretation of Article III.

Significantly, the States need not show that

notice-and-comment rulemaking would result in a

rule more to their liking: “If a party claiming the

deprivation of a right to notice-and-comment

rulemaking under the APA had to show that its

comment would have altered the agency's rule, section

553 would be a dead letter.” Sugar Cane Growers Co-

op. of Fla. v. Veneman, 289 F.3d 89, 95 (D.C. Cir.

2002). Instead, vacatur would put the parties back in

the position they should have been in all along, which

provides enough redress, even if the Administration

potentially could take action on remand, leaving the

States no better off. Remand redresses the injury

“even though the agency (like a new jury after a

mistrial) might later, in the exercise of its lawful

discretion, reach the same result for a different

reason.” FEC v. Akins, 524 U.S. 11, 25 (1998). When

considered in the procedural-rights context, the

States clearly have standing.

5. This Court should recognize the

States’ parens patrige standing

against ultra vires federal agency

action.

Notwithstanding this Court's suggestion that

States lack parens patriae standing against the

Federal Government, Alfred L. Snapp & Son v. P.R.,

458 U.S. 592, 610 n.16 (1982), the States press parens

patriae standing to protect their citizens from the

unlawful competition that DAPA beneficiaries will

present, States Br. 30-31, arguing that the negative

precedent concerns state efforts to protect their

citizens from federal law, as distinct from the States’

efforts here to enforce federal law against ultra vires

administrative action. Amicus EFELDF respectfully

submits that this Court should accept the States’

distinction.

The States have named not only federal

administrative officers, but also the United States as

defendants, as the United States’ waiver of sovereign

immunity expressly allows. 5 U.S.C. §702. Even if the

federal sovereign outranks the States for purposes of

parens patriae, the officer defendants do not: “where

the officer's powers are limited by statute, his actions

beyond those limitations are considered individual

and not sovereign actions.” Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682, 689 (1949).

For purposes of making law, Congress — not the

Executive Branch — represents the United States’

sovereignty, U.S. Const. art. I, §1, but enjoining the

officers’ ultra vires actions will redress the States’

injuries, even if injunctive relief is unavailable

against the United States itself:

For purposes of establishing standing,

however, we need not decide whether

injunctive relief against the President was

appropriate, because we conclude that the

injury alleged is likely to be redressed by

declaratory relief against the Secretary

alone.

Franklin v. Massachusetts, 505 U.S. 788, 803 (1992).

Accordingly, the States have parens patriae standing

against the officer defendants.

B. The States’ injuries and claims satisfy

the zone-of-interest test.

The “zone of interest” prong of standing is a

prudential doctrine that asks “whether the interest

sought to be protected by the complainant is arguably

within the zone of interests to be protected... by the

statute.” Natl Credit Union Admin. v. First Nat'l

Bank & Trust, Co., 522 U.S. 479, 492 (1998) (interior

quotations omitted, emphasis and alteration in

original). Because standing assumes the plaintiffs’

merits views — here, that the Administration lacks

substantive and procedural authority for DAPA -

either the zone-of-interest test is inapplicable or it

applies the zone from the overarching constitutional

issues raised by lawless agency action:

It may be that a particular constitutional or

statutory provision was intended to protect

persons like the litigant by limiting the

authority conferred. If so, the litigant’s

interest may be said to fall within the zone

protected by the limitation. Alternatively, it

may be that the zone of intcrests

requirement is satisfied because _ the

litigant’s challenge is best understood as a

claim that ultra vires governmental action

that injures him violates the due process

clause.

Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 812 n.14

(D.C. Cir. 1987); Chiles v. Thornburgh, 865 F.2d 1197,

1211 (11th Cir. 1989) (same). By acting outside its

constitutional power and _ delegation, the

Administration purports to make law without the

constitutional process for doing so.°

The Constitution's separation of powers is not a

mere technicality — it is an indispensable bulwark

against executive tyranny. The Founders regarded

the Constitution’s “separation of governmental

powers into three coordinate Branches [as] essential

to the preservation of liberty.” Mistretta v. U.S., 488

U.S. 361, 380 (1989) (emphasis added). By

decentralizing power among the three branches (and

5 In defending similar federal overreach, the U.S. Department

of Justice often cites Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 101 n.11 (1984), for the proposition that

“[a] claim of error in the exercise of [delegated] power is ... not

sufficient” to allege ultra vires action. Because it involved an

agency delegated “broad discretion to provide adequate’ mental

health services” and plaintiffs who argued “that [officers] have

not provided such services adequately,” 465 U.S. at 102

(emphasis added), Pennhurst could not erase the bright line that

“where the officer's powers are limited by statute, his actions

beyond those limitations are considered individual and not

sovereign actions.” Larson, 337 U.S. at 689. The Supreme Court

recently clarified that there are no sliding scales of ultra vires

conduct: “Both their power to act and how they are to act is

authoritatively prescribed by Congress, so that when they act

improperly, no less than when they act beyond their jurisdiction,

what they do is ultra vires.” City of Arlington v. FCC, 133 S.Ct.

1863, 1869 (2013) (emphasis added). DAPA is no mere mistaken

exercise of delegated power. It is a wholesale power grab.

between the House and the Senate within the

legislative branch), the Founders intended separation

of powers to protect liberty. U.S. v. Munoz-Flores, 495

U.S. 385, 394-96 (1990); Bond v. U.S., 131 S.Ct. 2355,

2365 (2011) (“[t}he structural principles secured by

the separation of powers protect the individual”).

Indeed, the “aim of [the separation of powers] is to

protect ... the whole people from improvident laws,”

Metro. Washington Airports Auth. v. Citizens for the

Abatement of Aircraft Noise, 501 U.S. 252, 271 (1991)

(“MWAA"), not merely to protect the institutional

prerogatives of the respective branches. Provided that

parties who seek to assert separation-of-powers

injuries have otherwise justiciable claims, Bond, 131

S.Ct. at 2366, they may assert the procedural injuries

from separation-of-powers violations. § More

importantly, the zone at issue is broad enough “to

protect ... the whole people from improvident laws.”

MWAA, 501 U.S. at 271 (emphasis added). That zone

obviously includes the circumstances here.

Even if not the intended beneficiaries, the States

can satisfy the zone of interests as “suitable

challengers” if their “interests... [are] sufficiently

congruent with those of the intended beneficiaries

that [they] are not more likely to frustrate than to

further the statutory objectives.” First Natl Bank &

Trust Co. v. N.C.U.A., 988 F.2d 1272, 1275 (D.C. Cir.

1993) (“NCUA”). Here, the States’ claims are

congruent with their citizens’ interests in

immigration law's protection of the U.S. workforce:

“[a] primary purpose in restricting immigration is to

preserve jobs for American workers.” Sure-Tan, Inc. v.

NLRB, 467 U.S. 883, 893 (1984). Indeed, even

otherwise-unsuitable challengers can nonetheless be

suitable to enforce “statutory demarcation[s], such as

an entry restriction, because the potentially limitless

incentives of competitors [are] channeled by the terms

of the statute into suits of a limited nature brought to

enforce the statutory demarcation.” Honeywell Int'l,

Inc. v. EPA, 374 F.3d 1363, 1370 (D.C. Cir. 2004)

(citing cases) (emphasis added, alteration in original),

withdrawn on part on other grounds, 393 F.3d 1315

(D.C. Cir. 2005); NCUA, 988 F.2d at 1278; Scheduled

Airlines Traffic Offices, Inc. v. D.O.D., 87 F.3d 1356,

1360-61 (D.C. Cir. 1996). For these reasons, amicus

EFELDF respectfully submits, this Court should find

the zone-of-interest test readily satisfied here.

C. DAPA is not unreviewably committed

to agency discretion under Heckler.

The types of enforcement discretion that Heckler

insulates from review are agency inaction on a

particular enforcement matter, not final agency action

in the issuance of a specific rule. Although inaction

can constitute “agency action” under the APA, 5

U.S.C. §551(13), that extends only to inaction on

discrete actions that the agency was legally required

to take, as distinct from programmatic inaction.

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,

62-63 (2004). Where agencies indeed act, “applying

some particular measure across the board ... it can of

course be challenged under the APA.” Lujan v. Nat

Wildlife Fed'n, 497 U.S. 871, 890 n.2 (1990). The

Administration's arguments under Heckler are

specious.

The Administration’s claims of “enforcement

discretion” under Heckler cannot insulate DAPA from

review for two independent reasons. First, federal

immigration law includes provisions that govern the

procedural question presented here, so this is not a

garden-variety statute with unfettered enforcement

discretion. Instead, reviewability hinges on the

specific fetters that Congress placed in this statute.

Second, DAPA is not simply a decision to focus the

available enforcement resources; it is a rule that

provides benefits to a class of DAPA beneficiaries and

so remains reviewable as a rule. As Chief Justice

Marshali famously put it, “[w]e have no more right to

decline the exercise of jurisdiction which is given,

than to usurp that which is not given.” Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). Indeed,

federal courts have a “virtually unflagging obligation

... to exercise the jurisdiction given them.” Colorado

River Water Conserv. Dist. v. U.S., 424 U.S. 800, 817

(1976). EFELDF respectfully submits that federal

courts are obligated to provide judicial review here.

1. Enforcement policies are reviewable

= r -_

apply.

Heckler held that federal courts could not review

the U.S. Food & Drug Administration’s decision not to

enforce the Federal Food, Drug, and Cosmetic Act

against certain drugs in a challenge by prison inmates

sentenced to death by lethal injection of those drugs.

Although the Administration cites Heckler for the

proposition that the Administration is best suited to

set its enforcement priorities, federal law places both

substantive and procedural limits on how those

priorities get set.

The concept of unreviewable agency discretion did

not begin with the APA, much less with Heckler, see,

e.g., Gray v. Powell, 314 U.S. 402, 412 (1941); Kenneth

Culp Davis, “Nonreviewable Administrative Action,”

96 U. PA. L. REV 749, 750-51 (1948), but the APA did

provide “generous review provisions” and require

“hospitable interpretation” favoring review, Abbott

Laboratories v. Gardner, 387 U.S. 136, 140-41 (1967),

of final agency actions like DAPA. 5 U.S.C. §704. As

relevant in Heckler, 5 U.S.C. §701(a)(2) exempts

“agency action ... committed to agency discretion by

law” from APA review. Heckler, 470 U.S. at 830.

Although recognizing this as “a very narrow

exception,” this Court has relied on the APA's

legislative history to make this exception “applicable

in those rare instances where statutes are drawn in

such broad terms that in a given case there is no law

to apply.” Id. (quoting Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)) (interior

quotations omitted, emphasis added). The question is

whether this is one of the “rare instances” where that

“very narrow exception” applies.

Congress made removal proceedings mandatory

precisely because the Administration’s predecessors

were too lenient in enforcing immigration laws.

Compare Reno v. American-Arab Antidiscrimination

Committee, 525 U.S. 471, 483-84 (1999) (discussing

deferred action) with H.R. REP No. 104-725, at 383

(1996) (“illegal aliens do not have the right to remain

in the United States undetected and unappre-

hended”). Obviously, agency inaction in the face of

statutory mandates cannot qualify as unreviewable

enforcement discretion. See, e.g., Ass'n of Irritated

Residents v. EPA, 494 F.3d 1027, 1032 (D.C. Cir.

2007). Indeed, Heckler itself recognizes as much by

holding that, if there is “law to apply” for APA review,

any presumption of non-reviewability is rebutted.

Heckler, 470 U.S. at 834-35. That is the situation ap-

plicable here.

2. Heckler and its progeny do not

preclude review of actual rules.

An agency policy document like DAPA would be

reviewable final agency action, even if a particular

instance of discretion not to enforce a statute were not

reviewable. Indeed, nothing in Heckler and the

enforcement-discretion cases applies to written rules.

Heckler specifically exempts the “abdication” claim in

Adams v. Richardson, 480 F.2d 1159, 1161-63 (D.C.

Cir. 1973) (en banc), for review of conscious policies of

nonenforcement:

Nor do we have a situation where it could

justifiably be found that the agency has

“consciously and expressly adopted a general

policy” that is so extreme as to amount to an

abdication of its statutory responsibilities.

See, e. g., Adams v. Richardson, ... 480 F.2d

1159 (1973) (en banc).

Heckler, 470 U.S. at 833 n.4; accord id. at 839 (“the

Court ... does not decide today that nonenforcement

decisions are unreviewable in cases where ... an

agency engages in a pattern of nonenforcement of

clear statutory language, as in Adams v. Richardson”)

(Brennan, J., concurring) (citations omitted). In

Adams, the conscious policy— namely, failing to

terminate federal funding for schools found to have

discriminated based on race in violation of Title VI —

was unwritten.®

6 The conscious policy represented the failure to commence

fund-termination proceedings against schools that “reneged on

previously approved desegregation plans or were otherwise out

of compliance.” Adams, 480 F.2d at 1163.

For rules like DAPA that “apply[] some particular

measure across the board,” “of course” a “challengef[]

under the APA” is available. Natl Wildlife Fed’n, 497

U.S. at 890 n.2. Indeed, amicus EFELDF respectfully

submits that it is commonplace to require considering

applications of federal standards in specialized

forums while allowing APA review of the systemic

lawfulness of the federal standards in federal court:

While the Act vested state courts with

exclusive jurisdiction over claims

challenging a state agency’s application of

federal guidelines to the benefit claims of

individual employees, there is no indication

that Congress intended § 2311(d) to deprive

federal district courts of subject-matter

jurisdiction under [28 U.S. C. §1331] to hear

statutory or constitutional challenges to the

federal guidelines themselves.

Intl Union v. Brock, 477 U.S. 274, 285 (1986).

Moreover, the Administration’s narrow confines for

judicial review are belied both by the availability of

judicial review under the circumstances here before

and after APA’s enactment and by INA’s lack of an

express repeal of that review.

3. The pre-INA APA allowed review,

and INA did not displace review.

Nothing in the original 1946 APA repealed the

review that the States could have had in equity before

1946. Moreover, neither INA’s enactment in 1952 nor

any of the subsequent INA amendments expressly

precludes resort to APA review. For post-APA

statutes, 5 U.S.C. §559 requires express statements to

remove otherwise-applicable APA review.

Although the APA — as enacted — did not override

any pre-APA statute that expressly or impliedly

denied review, 5 U.S.C. §702 (“[njothing herein ...

confers authority to grant relief if any other statute

that grants consent to suit expressly or impliedly

forbids the relief which is sought”), post-APA statutes

must deny review expressly. 5 U.S.C. §559

(“[s)ubsequent statute may not be held to supersede

or modify this subchapter ..., except to the extent that

it does so expressly”); Dickinson v. Zurko, 527 U.S.

150, 154-55 (1999).7 Decisions finding implied

preclusion for pre-APA statutes are inapposite to post-

APA statutes. Compare 5 U.S.C. §702 with id. §559.*

Consequently, as post-APA statutes, for INA and its

subsequent amendments to preclude APA review,

they would need to do so expressly, but they do not.

4. Pre-APA equity review would

suffice, even if Congress had never

enacted APA.

As indicated in the prior section, the APA does not

preclude review. But even if the APA did preclude it,

review would still lie with pre-APA equity review.

Even before the original APA provided a cause of

action or the APA’s 1976 amendments waived federal

sovereign immunity, judicial review was available in

7 The leading implied-preclusion authorities concern pre-APA

statutes. See, e.g., Block v. Community Nutrition Inst., 467 U.S.

340 (1984) (Agricultural Marketing Agreement Act of 1937); FCC

v. ITT World Commce'ns, Inc., 466 U.S. 463, 469 (1984)

(Communications Act of 1934). These decisions have no bearing

on the preclusion of review under post-APA statutes like INA.

8 The APA’s 1976 amendments did not expand preclusion of

review. Darby v. Cisneros, 509 U.S. 137, 153 (1993) (citing 5

U.S.C. §559 and Zurko).

equity suits against federal officers: “where the

officer’s powers are limited by statute, his actions

beyond those limitations are considered individual

and not sovereign actions.” Larson, 337 U.S. at 689;

Ex parte Young, 209 U.S. 123, 160 (1908); U.S. v. Lee,

106 U.S. 196, 213 (1882). Unlike the agencies for

which they work, the individual Administration

officials lack sovereign immunity here.

Under our common-law heritage, “[t]he acts of all

[federal] officers must be justified by some law, and in

case an official violates the law to the injury of an

individual the courts generally have jurisdiction to

grant relief.” Am. Sch. of Magnetic Healing v.

McAnnulty, 187 U.S. 94, 108 (1902). Significantiy, the

availability of declaratory relief against federal

officers predates the APA, WILLIAM J. HUGHES,

FEDERAL PRACTICE §25387 (1940 & Supp. 1945);

EDWIN BORCHARD, DECLARATORY JUDGMENTS, 787-88,

909-10 (1941), and the APA did not displace that

relief. See Administrative Procedure Act, Legislative

History, 79th Cong., S.Doc. No. 248, 79th Cong., 2d

Sess., at 37, 212, 276 (1946); Dart v. U.S., 848 F.2d

217, 224 (D.C. Cir. 1988) (“Nothing in the [APA’s]

enactment ... altered the McAnnulty doctrine of

review .... It does not repeal the review of ultra vires

actions recognized long before, in McAnnulty’);

Harmon v. Brucker, 355 U.S. 579, 581-82 (1958)

(relying on McAnnulty for the proposition that

“generally, judicial review is available to one who has

been injured by an act of a government official which

is in excess of his express or implied powers”). “Under

the longstanding officer suit fiction ..., ... suits against

government officers seeking prospective equitable

relief are not barred by the doctrine of sovereign

immunity.” A.B.A. Section of Admin. Law &

Regulatory Practice, A Blackletter Statement of

Federal Administrative Law, 54 ADMIN. L. REV. 1, 46

(2002). Thus, provided that a plaintiff alleges an

ongoing violation of federal law, longstanding equity

practice allows suing federal officers who act beyond

their lawful authority.

The canon against repeals by implication provides

a similar basis to reject the Administration’s

suggestion that the INA provisions impliedly

eliminated whatever APA review existed prior to

INA’s enactment: “repeals by implication are not

favored and will not be presumed unless the intention

of the legislature to repeal [is] clear and manifest.”

Nat'l Ass’n of Home Builders v. Defenders of Wildlife,

551 U.S. 644, 662 (2007) (alteration in original,

interior quotations and citations omitted). Indeed,

“this canon of construction applies with particular

force when the asserted repealer would remove a

remedy otherwise available.” Schlesinger v.

Councilman, 420 U.S. 738, 752 (1975) (internal

quotations omitted).

Under that same clear-and-manifest standard,

“[w]hen the text of [a statute] is susceptible of more

than one plausible reading, courts ordinarily accept

the reading that disfavors pre-emption.” Altria Group,

Inc. v. Good, 555 U.S. 70, 77 (2008) (interior

quotations omitted). Here, the relevant INA

provision — 8 U.S.C. §1252(g) — is readily amenable to

the States’ no-preclusion interpretation. That section

bars judicial review by aliens, not by U.S. citizens or

states. Under Home Builders, this Court should adopt

the no-preclusion interpretation.

ll. DAPA’S PROMULGATION WAS

PROCEDURALLY DEFECTIVE.

By delegating rulemaking authority to agencies,

APA delegates functions that the Constitution vests

in the Congress. To be valid, legislative rules must

either fully satisfy the APA exception to congressional

lawmaking or must otherwise satisfy constitutional

mandates for the lawmaking function. DAPA cannot

meet either test.

A. DAPA’s promulgation violated the APA

procedurally.

DAPA's promulgation violate APA's rulemaking

requirements as a legislative rule issued without

either meeting APA's notice-and-comment require-

ments, 5 U.S.C. §553(b), or satisfying any APA

exceptions to those requirements. Jd. at §553(b)(A)-

(B). As such, DAPA is void ab initio.

Even if DAPA were substantively consistent with

immigration law, its promulgation nonetheless would

violate the APA notice-and-comment requirements.

The APA exemptions for policy statements and

interpretive rules do not apply when agency action

narrows the discretion otherwise available to agency

staff, Texas Sav. & Cmty. Bankers Ass'n v. Fed. Hous.

Fin. Bd., 201 F.3d 551, 556 (5th Cir. 2001); General

Elec. Co. v. EPA, 290 F.3d 377, 380 (D.C. Cir. 2002),

and cannot be used to promulgate the regulatory basis

on which to confer benefits, Chrysler Corp. v. Brown,

441 U.S. 281, 302 (1979) (defining a “substantive

rule — or a legislative-type rule — as one affecting

individual rights and _ obligations”) (internal

quotations omitted); Avoyelles Sportsmen's League,

Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir. 1983)

(“Legislative rules ... grant rights, impose obligations,

or produce other significant effects on private

interests”) (interior quotations omitted, alteration in

original); Am. Mining Congress v. Mine Safety &

Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993).

DAPA fails these tests.

First, the District Court found DAPA binding in

its practical effect, based on record evidence, Pet. App.

386a, and the Administration does not credibly

dispute that finding. As numerous amici supporting

DAPA argue, there are public-policy reasons for

issuing a rule on these issues, but that is precisely

why APA requires notice and comment: to allow the

affected public to voice its concerns.

Second, DAPA plainly affects individual rights

under Chrysler, supra. See also Morton v. Ruiz, 415

U.S. 199, 235 (1974) (“it is incumbent upon agencies

to follow their own procedures”). Before issuing

procedures and substantive policies that it would then

be incumbent on the Administration to follow, the

Administration needed to conduct a rulemaking. For

example, employment authorization is a benefit that

is “granted” to beneficiary aliens, 8 C.F.R.

§274a.12(c)(14), under sixteen specific circumstances,

8 C.F.R. §274a.12(a)(1)-(16), none of which apply to

the across-the-board DAPA program. Cf. U.S. v.

Picciotto, 875 F.2d 345, 346-49 (D.C. Cir. 1989)

(agency cannot add new, specific, across-the-board

conditions under general, case-by-case authority to

consider changes). Under the foregoing APA criteria,

DAPA qualifies as a legislative rule, which agencies

cannot issue by memoranda, policy, or interpretation.

A procedurally infirm rule is a nullity, Avoyelles

Sportsmen's League, 715 F.2d 897, 909-10; McLouth

Steel Products Corp. v. Thomas, 838 F.2d 1317, 1322-

23 (D.C. Cir. 1988); State of Ohio Dep't of Human Serv.

v. U.S. Dept. of Health & Human Serv., Health Care

Financing Admin., 862 F.2d 1228, 1237 (6th Cir.

1988); North Am. Coal Corp. v. Director, Office of

Workers’ Compensation Programs, U.S. Dept. of

Labor, 854 F.2d 386, 388 (10th Cir. 1988), even where

it would have been substantively valid if promulgated

via notice-and-comment rulemaking. Thus, DAPA is a

nullity.

B. DAPA’s promulgation violated the

Constitution procedurally.

Although the more typically contested procedural

issues arise under APA— and the Administration's

failure to comply with APA procedures — this Court

should not forget the underlying constitutional issue:

“All legislative Powers [are vested] in a Congress.”

U.S. Const. art. I, §1; Loving v. U.S., 517 U.S. 748,

771 (1996). Allowing an agency to issue legislative

rules outside APA’s requirements would violate the

Constitution.

Specifically, the Administration claims to rely on

APA exceptions to congressional lawmaking that

Congress itself enacted. 5 U.S.C. §553(b). But failure

to follow those APA procedures renders the resulting

agency action both void ab initio and unconstitutional.

Chrysler, 441 U.S. at 303; Louisiana Pub. Serv.

Comm'n v. FCC, 476 U.S. 355, 374 (1986) ("an agency

literally has no power to act ... unless and until

Congress confers power upon it”). In essence, when an

agency fails to follow the procedures ordained by

Congress — here, the APA delegation of lawmaking

power— the resulting rule violates the core

constitutional requirements for making law, which

“are integral parts of the constitutional design for the

separation of powers.” INS v. Chadha, 462 U.S. 919,

946 (1983) (emphasis added). Valid legislative rules

must either satisfy bicameralism and presentment

requirements, which “represent|] the Framers’

decision that the legislative power of the Federal

government be exercised in accord with a single, finely

wrought and exhaustively considered, procedure,”

Chadha, 462 U.S. at 951, or they must fully satisfy the

limited administrative exemption that APA provides.

FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948)

(“general rule of statutory construction [is] that the

burden of proving justification or exemption under a

special exception to the prohibitions of a statute

generally rests on one who claims its benefits”). When

acting within APA requirements, a federal agency

might be on solid ground. When acting outside those

requirements, however, a federal agency simply seeks

to usurp congressional power.

III. DAPA VIOLATES IMMIGRATION LAW.

As the States argue convincingly, State Br. 44-59,

DAPA violates the substance and the procedure of

federal immigration law. Either flaw renders DAPA

ultra vires and thus void. Moreover, although the

Administration claims that Congress ratified its

authority for DAPA, that claim is risible in light of the

lack of appellate authority, Congress’s subsequent

efforts in 1986 and 1996 to limit illegal aliens’

remaining and working here, and Congress's failure

to enact the very provisions that the Administration

claims that Congress supports.

A. DAPA is fundamentally inconsistent

with INA.

As indicated, DAPA violates INA on both sub-

stantive and procedural grounds. Either is fatal.

Substantively, immigration law already set the

criteria for a parent to obtain lawful-presence status

based on a child's citizenship (e.g., leave the country

for their inadmissibility bar of at least three years,

await the child’s turning 21, and then obtain a family-

preference visa while abroad), with no corresponding

path for parents to obtain lawful-presence status from

their child’s mere lawful-presence status. 8 U.S.C.

§§1151(b)(2)(A)G), 1182(a)(9)(B)G@)T1), 1255, 1201(a).

For parents with citizen children, DAPA short-circuits

these restrictions. For parents with lawfully present,

non-citizen children, DAPA is inconsistent with the

implied ban, based on the INA restrictions for parents

with citizen children. In both cases, DAPA thereby

exceeds the Administration's delegated authority.

Procedurally, through DAPA, a non-enforcement

agency purports to channel aliens into deferred action

under prosecutorial discretion, without initiating the

statutorily mandated removal proceeding. Specif-

ically, under 8 U.S.C. §1225(a)(1), “an alien present in

the United States who has not been admitted ... shall

be deemed for purposes of this chapter an applicant

for admission.” That designation triggers 8 U.S.C.

§1225(a)(3), which requires that all applicants for

admission “shall be inspected by immigration

officers,” which triggers 8 U.S.C. §1225(b)(2)(A)’s

mandate that “if the examining immigration officer

determines that an alien seeking admission is not

clearly and beyond a doubt entitled to be admitted, the

alien shall be detained for a [removal] proceeding

under section 1229a of this title.” In essence, DAPA

jumps aliens to a favorable possible result of the

removal process, without the statutorily required

process that must precede that outcome.

B. The historical pattern of prior deferral

actions cannot support a legislative-

ratification argument.

The claim that Congress ratified deferred-action

policies in DAPA, Admin. Br. 48-60, is not borne out

in the historical record of INA enactments, agency

actions, or appellate decisions, much less INA’s text.

As such, the Court must reject the Administration's

claim to legislative ratification.

At the outset, a claim to an agency's consistent

interpretation would be “a slender reed to support a

significant government policy” because “[a]rbitrary

agency action becomes no less so by simple dint of

repetition.” Judulang v. Holder, 132 S.Ct. 476, 488

(2011). Nor are there the “unanimous holdings of the

Courts of Appeals” for Congress to have accepted and

ratified, as in Tex. Dep't of Hous. & Cmty. Affairs v.

Inclusive Cmtys. Project, Inc., 135 S.Ct. 2507, 2520

(2015). Standing alone, of course, prior instances of

Executive misconduct cannot “be regarded as even a

precedent, much less an authority for the present

[misconduct].” Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 649 (1952). Something more is

plainly required.

That something more should be “a systematic,

unbroken, executive practice, long pursued to the

knowledge of the Congress and never before

questioned,” which “can ‘raise a presumption that the

[action] had been [taken] in pursuance of its consent.”

Medellin v. Texas, 552 U.S. 491, 531 (2008) (quoting

Dames & Moore v. Regan, 453 U.S. 654, 686 (1981))

(alterations in Medellin). Unfortunately, the history

for INA is considerably “broken” by Congress's later

action to clamp down on illegal aliens: “illegal aliens

do not have the right to remain in the United States

undetected and unapprehended.” H.R. Rep. No. 104-

725, at 383 (1996).

The history is also not as systematic — or perhaps

as synergistic — as the Administration's arguments

require. Where Congress has occasionally amended

legislation to address humanitarian issues addressed

in the first instance administratively, it is critical that

that did not happen here. Quite the contrary, the

legislation that the Administration seeks to issue via

DAPA has consistently failed in Congress for more

than a decade.

Another issue is scope: perhaps no one would

challenge a minor program in the first place, but a

reviewing court might hold that truly de minimis

deviations do not matter, Washington v. Washington

State Commercial Passenger Fishing Vessel Ass'n, 443

U.S. 658, 687 & n.29 (1979); Pa. v. Mimms, 434 U.S.

106, 111 (1977), perhaps because “/dje minimis non

curat lex ... is part of the established background of

legal principles against which all enactments are

adopted.” Util. Air Regulatory Group v. EPA, 1348.Ct.

2427, 2435 n.1 (2014) (interior quotations omitted). Of

course, DAPA is not de minimis in any way.

The Administration's ratification argument also

includes this non sequitur: “Congress has repeatedly

ratified DHS’s authority. See, eg, 8 U.S.C.

1324a(h)(3).” Admin. Br. 16. The cited subsection is a

definition, which provides as follows:

Definition of unauthorized alien. As used in

this section, the term “unauthorized alien”

means, with respect to the employment of an

alien at a particular time, that the alien is not

at that time either (A) an alien lawfully

admitted for permanent residence, or (B)

authorized to be so employed by this Act or by

the Attorney General.

8 U.S.C. 1324a(h)(3). This pre-1996 definition may

imply that the Attorney General has — or at one time

had— authority to authorize the employment of

certain aliens, but the definition does not itself

delegate any authority. It would be entirely consistent

with this pre-1996 definition for a later-enacted INA

amendment to have repealed the Attorney General’s

employment-authorizing powers, without impacting

the status of any aliens affected before Congress

began to crack down on employment.®

On balance, the Administration's claim that

Congress ratified deferred-action plans like DAPA is

simply not plausible. As in most (if not all) instances,

this Court should simply follow INA’s plain text to

glean what Congress intended. As shown in Section

II].A, supra, and by the States at length, Congress did

not authorize DAPA.

IV. DAPA VIOLATES THE TAKE CARE

CLAUSE.

In granting review here, this Court ordered “the

parties ... to brief and argue ‘[w)hether [DAPA]

violates the Take Care Clause of the Constitution.”

U.S. v. Texas, 136 S.Ct. 906 (2016). The take-care

issue affects this case procedurally and substantively,

in both instances against the Administration.

% If this definition itself delegated carte blanche authority to

authorize employment, it would violate the nondelegation doc-

trine, which requires “an intelligible principle to which the

person or body authorized to exercise the delegated authority is

directed to conform.” Mistretta, 488 U.S. at 372.

Procedurally, the take-care issue will keep this

case on track, even if the Administration undergoes a

rulemaking to cure the notice-and-comment issue. For

example, this Court — like the District Court — might

find the States likely to prevail on the procedural APA

claims without needing to reach the INA merits. The

take-care issue applies not only to the DAPA version

now at issue, but also to any curative DAPA versions

that the Administration (or its successor) might issue.

The take-care issue thus ensures that that the merits

would survive mootness, even if a new DAPA version

cured the procedural defects. '°

Substantively, the take-care issue goes further

than the substantive INA violations discussed, supra.

At some level, any substantively or even procedurally

ultra vires action represents a failure faithfully to

execute the laws, U.S. CONST. art. II, §3, but the Take

Care Clause requires both more and less: “he shall

take Care that the Laws be faithfully executed.” /d.

This clause does not require perfection in execution,

but it does require taking care. In this case, the

Administration candidly acknowledged the unlaw-

fulness of DACA numerous times before issuing

DAPA for political reasons when Congress remained

unwilling to act. A court issuing an equitable remedy

which to provide benefits to illegal aliens will remain at issue

between the parties, even if a new DAPA version were to moot

the States’ APA claims. Super Tire Engineering Co. v. McCorkle,

416 U.S. 115, 122-24 (1974); City of Houston v. Dep't of Hous. &

Urban Dev., 24 F.3d 1421, 1428 (D.C. Cir. 1994) (“well-

established that if a plaintiff challenges both a specific agency

action and the policy that underlies that action, the challenge to

the policy is not necessarily mooted merely because the challenge

to the particular agency action is moot”) (collecting cases).

in these circumstances could find the Administration

willfully violated the law, then tailor the remedy to

account for unfaithful willfulness. Cf. Thomas v.

Union Carbide Agric. Prods. Co., 473 U.S. 568, 592

(1985) (distinguishing between faithful arbitrators

and “arbitrators who abuse or exceed their powers or

willfully misconstrue their mandate under the

guverning law”); Chambers v. NASCO, Inc., 501 U.S.

32, 46-47 (1991) (sanctions for willful violations of

court orders). Our quadrennial elections do not choose

a temporary despot. Instead, the Constitution

requires presidents to faithfully execute the laws that

Congress has passed. U.S. CONST. art. II, §3. Courts

must hold presidents to that standard.

The States close their brief with a chilling excerpt

from Justice Jackson’s Youngstown opinion, States’

Br. 76-77, but he is worth quoting in full:

With all its defects, delays and inconven-

iences, men have discovered no technique for

long preserving free government except that

the Executive be under the law, and that the

law be made by parliamentary deliberations.

Such institutions may be destined to pass

away. But it is the duty of the Court to be

last, not first, to give them up.

343 U.S. at 655. Justice Jackson put Youngstown

within a “judicial tradition” beginning with Chief

Justice Coke’s admonishing his sovereign that “[the

King] is under God and the Law” when “King James

took offense at the independence of his judges,” which

the King deemed treasonous. 343 U.S. at 655 n.27

(interior quotations omitted). Following Coke and

Jackson, this Court must reject the Administration's

overreach here.

CONCLUSION

This Court should affirm the Fifth Circuit.

April 4, 2016 Respectfully submitted,