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

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## Record

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

## Text

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.

1

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

i

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

1V

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

v

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

vu

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

xl

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

xl

No. 15-674
on eimabitatiiaiaiediendiaaaseel

In the Supreme Court of the Hnited States

UNITED STATES OF AMERICA et al.,
Petitioners,

V.
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.

1

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

2

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

3

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

4

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).

5

(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

6

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

7

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

8

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.

9

(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.

10

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).

11

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.

13

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.

14

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

16

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.

17

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

18

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

19

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

20

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.

21

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.

22

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.

23

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).

24

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 &

25

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.

26

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,

27

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.

28

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

29

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

30

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.

31

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

32

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)

33

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.

34

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

‘© The merits issues regarding impermissible INA bases on
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).

35

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.

36

CONCLUSION
This Court should affirm the Fifth Circuit.

April 4, 2016 Respectfully submitted,

Lawrence J. Joseph

1250 Connecticut Av., NW
Suite 200

Washington, DC 20036

Tel (202) 355-9452

Fax (202) 318-2254

Email lj@larryjoseph.com

37

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A37. Public record. Not legal advice.