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

No. 15-674

IN THE

Supreme Court of the Anited States

UNITED STATES OF AMERICA, ET AL.,

Petitioners,

Vv.

STATE OF TEXAS, ET AL.,

Respondents.

On Writ of Certiorari

To the United States Court of Appeals

For the Fifth Circuit

BRIEF OF FORMER U.S. ATTORNEYS

GENERAL AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

DAVID B. RIVKIN, JR.

Counsel of Record

ANDREW M. GROSSMAN

MARK W DELAQUIL

RICHARD B. RAILE

JUSTIN J. SCHWAB

BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

Suite 1100

Washington, D.C. 20036

(202) 861-1731

drivkin@bakerlaw.com

Counsel for the Amici Curiae

QUESTION PRESENTED

This brief addresses the following question:

Whether deeming four million unlawfully present

aliens to be “lawfully present” and eligible for vari-

ous benefits constitutes an exercise of the Executive

Branch’s prosecutorial discretion.

‘

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE..................... 1

INTRODUCTION AND SUMMARY OF

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TTT bss docisisecscsktheseiineincntcgpienstiictooceipaibiicieasioniand 5

DAPA’s Provision of Class-Wide Relief Is

Not Supported by the Executive's

Authority To Forbear Enforcement of the

Lawe im Speckhic Cases..............cccccccccccsccsssccsees 5

I.

IT.

A.

The Executive’s Power To Exercise

Discretion in Prosecution Has Always

Been Limited to Decisions Affecting

i sl 5

The Executive Branch Has Long

Recognized That Prosecutorial

Discretion Is Limited to Decisions

Affecting Specific Cases ....................000000. 10

The Judicial Branch Has Likewise

Recognized That Enforcement

Discretion Is Limited to Decisions

Affecting Specific Cases ..................0000000.. 14

DAPA’s Provision of Class-Wide

Relief Is Not an Exercise of

Prosecutorial Discretion ..................0....... 18

DAPA’s Conferral of Practical Immunity

and Other Benefits Is Not Supported by

the Executive’s Enforcement-Discretion

PEE ESPN YD ARE a DES Ot AO Oe 21

ill

Ill. DAPA Is Not Immune from Judicial

Review Because Its Provision of Class-

Wide Relief and Benefits Is Not

Committed to Agency Discretion by Law .....24

IV. Far irom a Legitimate Exercise of

Enforcement Discretion, DAPA

Constitutes a Forbidden Dispensation

ESSERE Pony Pe Oe Seen E eee 29

Ns iiittnictienicicnniiensariediinshanniiaiiniiiiiaiebediiindin 35

iV

TABLE OF AUTHORITIES

Page

Cases

Abbot Labs. v. Gardner, 387 U.S. 136 (1967) ........ 24

Adams v. Richardson, 480 F.2d 1159

I OS i 15

Am. Horse Prot. Ass'n v. Lyng, 812 F.2d 1

Re See eee ee 16

Am. Ins. Ass'n v. Garamendi, 539 U.S. 396

a 12

Arizona v. United States, 132 S. Ct. 2492

PREY na wee nee teat Sa ney We a en 17, 18

Brown v. Herbert, No. 11-0652,

2012 WL 3580669 (D. Utah Aug. 17, 2012)........ 22

Chrys'er Corp. v. Brown, 441 U.S. 281 (1979)....... 25

Citizens to Pres. Overton Park, Inc. v. Volpe,

I i 25

Clinton v. City of New York,

I I: MO iat 4, 29, 34, 35

Com. v. Wheeler, 2 Mass. 172 (Mass. 1806)........... 22

The Confiscation Cases, 74 U.S. 454 (1868) ........ 8,9

Cook v. FDA, 733 F.3d 1 (D.C. Cir. 2013)........ 15, 16

Crowley Caribbean Transp., Inc. v. Pena,

ge | 54 Jt EES 16

Deloach v. Dixon, 7 F. Cas. 416

I nae 22

Vv

Dunlop v. Bachowski, 421 U.S. 560 (1975)............ 25

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) ........ 2

Goddard v. Smith, 87 Eng. Rep. 1008

REFER eR a SSI 6

Godden v. Hales, 89 Eng. Rep. 1050

SN MII nll tesisscaiesabaindisscieotipninsdiaitgnendiiiudlinaniontiimani 29, 30

Heckler v. Chaney,

STO UB. GEE GIBB) w.sccccccccsccccesceee 14, 15, 23, 25, 26

ICC v. Bhd. of Locomotive Engineers,

9 | ES ee eneenree 26

INS v. Chadha, 462 U.S. 919 (1983)............00..0.004. 35

Kendall v. United States ex rel. Stokes,

gf 8 ELSES ne 33, 34

Lincoln v. Vigil, 508 U.S. 182 (1993) ......... 24, 25, 26

Matthews v. Eldridge, 424 U.S. 319 (1976) ........... 23

Minor v. Mechanics’ Bank of Alexandria,

ik ee 8 006 7, 8, 22

Nader v. Saxbe, 497 F.2d 676 (D.C. Cir. 1974)........ 9

Newman v. United States, 382 F.2d 479

I al 9

NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) ....12

Ponzi v. Fessenden, 258 U.S. 254 (1922)............0..... 1

Reno v. American-Arab Anti-Discrimination

Copmnate., SBS UB. STE CIB ncccscccsccevescccsseccccscccess 23

vi

United States v. Bekric, 785 F.3d 1244

SRE TRE YM PE: TC, 23

United States v. Cox, 342 F.2d 167

EE Se ee 9, 23

United States v. Gillis, 25 F. Cas. 1322

SI lees 7

United States v. Hill, 26 F. Cas. 315

I PO a 7,8

United States v. Juarez-Escobar,

25 F. Supp. 3d 774 (W.D. Pa. 2014)............00...... 17

United States v. Nixon, 418 U.S. 683 (1974) ......... 15

United States v. Orellana, 405 F.3d 360

GREED LE RS LN eer re 23, 24

United States v. Porter, 27 F. Cas. 598

I iii alana 7

United States v. San Jacinto Tin Co.,

I i)

United States v. Sharp, 27 F. Cas. 1046

et 8G Ne eee ee renee eaEnte 6

United States v. Shoemaker, 27 F. Cas. 1067

I 6, 21

United States v. Smith, 27 F. Cas. 1192

I lets 33

United States v. Wenger, No. 11-457, 2013 WL

6633964 (N.D. Ohio Dec. 17, 2013)............... 16, 17

Walsh v. Bishop, 79 Eng. Rep. 809 (K.B. 1632)....... 6

vil

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457

CD oviicorccsaesseccinvnescninninebicudsnieeesbesunneisdeleisiedaannae 28

Zivotofsky ex rel. Zivotofsky v. Kerry,

BD B..CR, Be Gt ciccntescccnntossonsensentitihiainita 12

Constitutional and Statutory Provisions

By CIS, 6 FO nnsescscssnssvisscsiplcincepenuasana 24

BD UP TIKS. © SO cesicascsuscennccinsncisscbticncipindaisieabatelaaaaal 27

BD URS, BB BIIR centssscssinsccssticuvciainiiabdascnnbmmamaieianaaae 27

BD UTA © BID eeccccnssnscessienisshiiidcacniaumaaaan 27

LES Tse G | NN aD tN TN 27

DUE. 1 BIBI circsccscrsncoscissitnisnsiscsecsinnnghineaiadenakenamnne 24

BD UE 6 EE cccceccsisnseannsesnnietnansnciammiionamaaiaianea 24

OB UES, SFB a cccecnnssioieocisiinbiitienimasegmaanainea ee 24

An Act Declaring the Rights and Liberties of

the Subject, and Settling the Succession of

the Crown (Bill of Rights), 1 W. & M., Sess.

SS, @. SCI ecsocnecsnvestisancinsieniidideiacsiaaaannnan 30

Del. Decl. of Rights and Fundamental Rules of

IF Fe acasccosscnessnanusienstesniepinngiimsidihanipidaaaaaene 31

Md. Const. of 1776, Decl. of Rights ........................ 31

Pe. Cn, GE TTD ciccssnvinssigninsdatidiiibadiniaeaaaian 31, 32

N.C. Const. of 1776, Decl. of Rights....................... 32

VE. CAGE, OF FP scintnsmsnsnenicuiseesssacieaaanniaee 32

vill

Other Authorities

Anderson's Dictionary of Law (1889) ...........00.......... 5

Authority of the United States To Enter Set-

tlements Limiting the Future Exercise of Ex-

ecutive Branch Discretion, 1999 WL 1262049

SE 13

Congressional Subpoenas of Department of

Justice Investigative Files, 8 Op. O.L.C. 252

The Department of Homeland Security's Au-

thority To Prioritize Removal of Certain Al-

iens Unlawfully Present in the United States

and To Defer Removal of Others,

2014 WL 10788677 (O.L.C. 2014) ..0...0.0. 14

Abraham S. Goldstein, The Passive Judiciary:

Presecutorial Discretion and the Guilty Plea

SE 5, 6

Philip Hamburger, Is Administrative Law Un-

ES ES 30, 31

Jacob’s New Law Dictionary (8th ed. 1762) ............ 5

Jewels of the Princess of Orange,

2 U.S. Op. Att’y Gen. 482 (1831)... 8

Jewels of the Princess of Orange,

2 U.S. Op. Att'y Gen. 496 (1832) 0.0.00. cccccocceoee. 8

Rebecca Krauss, The Theory of Prosecutorial

Discretion in Federal Law: Origins and De-

velopment, 6 Seton Hall Cir. Rev. 1 (2010)....... 5,8

ix

Zachary S. Price, Enforcement Discretion

and Executive Duty, 67 Vand. L. Rev. 671

ST aiicenneniepsananiben siete tadeibienpelan maim ncaned ts Decisis 7, 34

Prosecution for Contempt of Congress of an

Executive Branch Official Who Has Asserted

a Claim of Executive Privilege,

Rf 12, 13

William Rawle, A View of the Constitution of

the United States (1829) .................ccccccccccceeeeeeees 33

1 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911).....................0000000 32

U.S. Dep’t of Justice, United States Attorneys’

REE CSS ORS ae AE 10, 11

James Wilson, 2 Collected Works of James

Wilson (Kermit L. Hall & Mark David Hall

is ee iaiinicenaieiciniinsinlatiabiiniasitieteintaniiailt edad balla 32, 33

INTEREST OF THE AMICI CURIAE'

Amici Curiae Edwin Meese III, Richard Thorn-

burgh, and John Ashcroft served, respectively, as the

Seventy-Fifth, Seventy-Sixth, and Seventy-Nirth At-

torneys General of the United States. The Attorney

General “is the hand of the president in taking care

that the laws of the United States in protection of

the interests of the United States in legal proceed-

ings and in the prosecution of offenses be faithfully

executed.” Ponzi v. Fessenden, 258 U.S. 254, 262

(1922). Amici submit this brief to assist the Court in

understanding the proper contours of the Executive

Branch’s authority to exercise enforcement discre-

tion, informed by the constitutional separation of

powers, historical practice, and the practice of the

United States Department of Justice during their

tenures.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The “DAPA” action under review in this appeal is

formally entitled “Exercising Prosecutorial Discre-

tion with Respect to Individuals Who Came to the

United States as Children and with Respect to Cer-

tain Individuals Who Are the Parents of U.S. Citi-

‘Pursuant to Rule 37.6, counsel for the amici curiae certifies

that no counsel for any party authored this brief in whole or in

part and that no person or entity other than the amici curiae or

their counsel made a monetary contribution intended to fund

the briefs preparation or submission. Letters from the parties

consenting to the filing of this brief are filed with the clerk.

2

zens or Permanent Residents.” Pet. App. 4l1la. That

action would deem over four million unlawfully pre-

sent aliens “lawfully present” and eligible for work

authorization and various other benefits. As the title

reflects, the Executive Branch asserts that this ac-

tion is an exercise of prosecutorial or enforcement

discretion. That assertion of power is not only with-

out precedent, but also bucks more than 200 years of

consistent understanding and practice recognizing

that prosecutorial discretion is limited to the deci-

sion to forbear enforcement in particular cases.

DAPA is nothing like that, affording relief to a

broad class of aliens based on the rote application of

criteria invented by the Executive. But “[iJt is the

peculiar province of the legislature to prescribe gen-

eral rules for the government of society; the applica-

tion of those rules to individuals in society would

seem to be the duty of other departments.” Fletcher

v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810). The legis-

lature here has prescribed general rules governing

immigration and naturalization, including the con-

ferral of “lawful presence” status and work authori-

zation. Rather than enforce those general rules, or

set enforcement priorities within the sweep of those

rules, DAPA attempts to rewrite them, conferring

“lawful presence” status, work authorization, and

eligibility for other benefits on a class of individuals

to which Congress denied them.

That action finds no support in the Executive's au-

thority to exercise prosecutorial discretion. The mod-

ern practice of prosecutorial discretion is derived

3

from the writ of nolle prosequi, which could only be

entered on a case-by-case basis. Modern practice re-

flects its roots, maintaining the focus on the exercise

of discretion with respect to particular individuals

and cases. To the attorneys of the Department of

Justice, the term “prosecutorial discretion” is not an

empty vessel into which any asserted executive pow-

er may be poured, but instead denotes the exercise of

judgment regarding the facts and circumstances of a

particular case, focusing on the nature of the alleged

offense and the characteristics of the individual sus-

pect. The Executive’s consistent practice in this re-

spect over a period of centuries is compelling evi-

dence that the Executive’s authority to exercise dis-

cretion in the enforcement of the laws does not en-

compass the far broader power to authorize the

class-wide relief that the Executive claims in this

case.

Likewise, DAPA’s conferral of substantial benefits

to unlawfully present aliens finds no support in the

Executive's enforcement-discretion authority. Such

discretion is limited to the decision to prosecute or

not at a particular point in time and cannot provide

immunity from future enforcement, much less award

benefits to which a person is not otherwise entitled.

For those reasons, DAPA is not immune from judi-

cial review pursuant to the Administrative Proce-

dure Act. While the law recognizes an exception from

review for actions committed to an agency’s discre-

tion, that exception does not apply to the kind of

generally applicable policy at issue here.

4

The consequences should the Court uphold the Ex-

ecutive’s unprecedented conception of prosecutorial

discretion in this case cannot be overstated. The Ex-

ecutive’s position allows the Executive unilaterally

to dispense with compliance with the law in nearly

every instance, contravening over three hundred

years of Anglo-American legal tradition.

Under that view, no law could prevent the Execu-

tive from acting unilaterally to: lower tax rates

through deferred enforcement that nullifies any

penalties incurred; provide non-recoupable entitle-

ment benefits to persons who do not qualify for them

under statute; waive workplace safety laws for pre-

ferred industries; and, more generally, use deferred

action as a bargaining chip to coerce private parties

to do its bidding—for example, by offering to waive

application of onerous statutory requirements in ex-

change for carrying out the Executive's preferred

policies or even contributing money to preferred

causes. This amounts to the forbidden dispensation

power that the Framers denied the Executive, as

combining so many powers in a single branch pre-

sents the risk of tyranny. It would also involve the

kind of inherently legislative action—the effective

repeal of statutory requirements—that the Court

found in Clinton v. City of New York, 524 U.S. 417,

421 (1998), triggered the requirements of the Pre-

sentment Clause.

In all of these ways, accepting DAPA as a legiti-

mate exercise of prosecutorial discretion means ac-

cepting unbridled Executive authority to dispense

5

with the law and doing great violence to the consti-

tutional separation of powers. For that reason, the

Executive’s position here must be rejected and the

decision of the court below affirmed.

ARGUMENT

I. DAPA’s Provision of Class-Wide Relief Is

Not Supported by the Executive’s Authority

To Forbear Enforcement of the Laws in

Specific Cases

A. The Executive’s Power To Exercise

Discretion in Prosecution Has Always

Been Limited to Decisions Affecting

Specific Cases

From its inception, prosecutorial discretion has

always been defined as an executive privilege to be

exercised on a case-by-case basis.

The modern practice of prosecutorial discretion de-

rives from the writ of nolle prosequi, see Rebecca

Krauss, The Theory of Prosecutorial Discretion in

Federal Law: Origins and Development, 6 Seton Hall

Cir. Rev. 1, 19-21 (2010), a “record entry that the

prosecutor does not care to proceed further in the

particular case,” Anderson’s Dictionary of Law 711

(1889). See also Jacob’s New Law Dictionary (8th ed.

1762) (“Nolle prosequi, Is used in the Law, where a

Plaintiff in any Action will proceed no further,...”).

Originating in sixteenth century England, nolle

prosequi terminated an ongoing proceeding “without

any inquiry by the court.” Abraham S. Goldstein,

6

The Passive Judiciary: Prosecutoria] Discretion and

the Guilty Plea 12 (1981). The writ could be used by

private plaintiffs and the English Attorney General

alike. See, e.g., Walsh v. Bishop, 79 Eng. Rep. 809,

809 (K.B. 1632) (plaintiff brings action for trespass

of battery against two, but terminates action against

one of the defendants by entering a nolle prosequi);

Goddard v. Smith, 87 Eng. Rep. 1008, 1008 (Q.B.

1704) (Attorney General entering writ of nolle prose-

qui, which initial defendant later used as evidence of

barratry).

Significantly, in the hands of the royal Attorney

General, nolle prosequi served as “the exercise of a

reviewing authority over the private prosecutor. He

used it to intervene and dismiss charges if they were

frivolous or insubstantial or might somehow inter-

fere with a crown prosecution.” Goldstein at 12. As

such, entry of the writ of nolle prosequi was the pri-

mary means by which the Attorney General could

exercise his power of prosecutorial discretion.

The writ served the same purpose in early Ameri-

can practice. Public prosecutors regularly used nolle

prosequi to terminate proceedings that they had ini-

tiated. E.g., United States v. Sharp, 27 F. Cas. 1046,

1046 (C.C.D. Pa. 1815) (district attorney entering

nolle prosequi after indictment); United States v.

Shoemaker, 27 F. Cas. 1067, 1067 (C.C.D. Ill. 1840)

(“There can be no doubt that, before the trial is gone

into, the prosecuting attorney has a right, under

leave of the court, to enter a nolle prosequi on an in-

dictment....”). In most cases, the writ was used to

7

address concerns about the failure of proof or failure

of jurisdiction. E.g., United States v. Porter, 27 F.

Cas. 598, 599 (C.C.D. Conn. 1808) (“The district at-

torney rose and said he would enter a nollie prosequi”

because of lack of proof.); United States v. Gillis, 25

F. Cas. 1322, 1322 (C.C.D.D.C. 1812) (“Mr. Jones, for

the United States...as he could not prove such a mo-

tive, he would enter a nolle prosequi.”). See also

Zachary S. Price, Enforcement Discretion and Execu-

tive Duty, 67 Vand. L. Rev. 671, 726 (2014) (“[M]ost

case dismissals pursuant to writs of nol pros seem to

have been oriented towards abandoning unprovable

cases, averting duplicative punishment, and avoid-

ing acquittals or legal precedents that might under-

mine law-enforcement efforts.”).

Yet in other instances, the writ was employed to

carry out more discretionary decisions, such as when

a federal prosecutor declined to proceed with prose-

cution of an individual who had been indicted by a

grand jury. See United States v. Hill, 26 F. Cas. 315,

315-16 (Marshall, Circuit Justice, D. Va. 1809) (rec-

ognizing entry of writ where the prosecutor “does not

think it proper to institute proceedings’).

By definition, nolle prosequi was entered on a case-

by-case basis: it was “an agreement not to proceed

further in that suit, as to the particular person, or

cause of action, to which it was applied.” Minor v.

Mechanics’ Bank of Alexandria, 26 U.S. (1 Pet.) 46,

74 (1828) (emphasis added). It did not and could not

operate as a release from liability—as another iden-

tical action could be commenced against the same

8

defendants on the same underlying basis—and it

conferred no benefit or immunity. See id.

The doctrine that prosecutors may exercise discre-

tion over whether or not to bring charges at all arose

by way of analogy to nolle prosequi, and always in

the context of case-by-case discretion. “Until the ear-

ly twentieth century..., the case law on prosecutorial

discretion almost always mentioned the nolle prose-

qui and the judicial deference that accompanied the

procedure.” Krauss, at 24. Indeed, Chief Justice

Marshall, sitting as Circuit Justice, expressly equat-

ed prosecutorial discretion to enter the writ with

prosecutorial discretion “to institute proceedings.”

Hill, 26 F. Cas. at 315.

Likewise, Attorney General Roger Taney, in ad-

dressing whether the President could decline forfei-

ture of property belonging to the Princess of Orange

that had been stolen from her and transported to the

United States, reasoned that “if the President may

order a prosecution begun, [or] to be discontinued, it

is very evident that he may forbid the commence-

ment.” Jewels of the Princess of Orange, 2 U.S. Op.

Att'y Gen. 496, 497 (1832). Taney also recognized

that this prerogative was available “except in so far

as [the Executive’s] powers may be restrained by

particular acts of Congress.” Jewels of the Princess

of Orange, 2 U.S. Op. Att’y Gen. 482, 486 (1831).

Similarly, this Court in 1868 cited nolle prosequi to

establish that particular “[p]ublic prosecutions, until

they come before the court to which they are return-

able, are within the exclusive direction of the district

9

attorney....” The Confiscation Cases, 74 U.S. 454,

457 (1868).

Even as the rules of pleading were relaxed and

courts grounded the theory of prosecutorial discre-

tion in constitutional separation-of-powers princi-

ples, it retained its core as a prerogative to be exer-

cised in individual cases. Indeed, the executive

branch’s ability to “balancife]” the “permissible fac-

tors [underlying prosecutorial discretion] in individ-

ual cases” was the central basis for identifying the

decision whether or not to prosecute “particular in-

dividuals” as an “executive...function.” Nader v.

Saxbe, 497 F.2d 676, 679 n.18 (D.C. Cir. 1974). See

also Newman v. United States, 382 F.2d 479, 481

(D.C. Cir. 1967) (quoting United States v. Cox, 342

F.2d 167, 171 (5th Cir. 1965)) (observing that “the

attorney for the United States is...an executive offi-

cial of the Government and...exercises a discretion

as to whether or not there shall be a prosecution in a

particular case”) (emphasis added). See also United

States v. San Jacinto Tin Co., 125 U.S. 273, 279

(1888) (describing district attorneys as having re-

sponsibility “to determine when the United States

shall sue, to decide for what it shall sue, and to be

responsible that such suits shall be brought in ap-

propriate cases”) (emphasis added).

10

B. The Executive Branch Has Long

Recognized That Prosecutorial Discretion

Is Limited to Decisions Affecting Specific

Cases

Modern practice within the Executive Branch—the

instant action under review excepted—does not de-

part from historical practice, maintaining its focus

on the exercise of discretion with respect to particu-

lar individuals and cases. Department of Justice at-

torneys exercise prosecutorial discretion on a daily

basis and are deeply familiar with the individualized

nature of the inquiry that is to be undertaken in eve-

ry case.

The parameters of that inquiry are set forth in the

United States Attorneys’ Manual. Its chapter on

“Principles of Federal Prosecution” reprints (and

slightly revises) a memorandum of the same title is-

sued to Department attorneys in 1980 by Attorney

General Benjamin Civiletti.?

Drawing on case law and established practice, the

memorandum addresses the exercise of prosecutors’

“broad discretion in such areas as initiating or fore-

going prosecutions, selecting or recommending spe-

cific charges, and terminating prosecutions by ac-

cepting guilty pleas.” U.S. Dep’t of Justice, United

States Attorneys’ Manual § 9-27.110(B) (2014). It

2 Because the portions of the 1980 memorandum discussed

herein are identical to their counterparts in the current edition

of the Manual, subsequent citations are to the Manual.

11

begins with the presumption that, “ordinarily, the

attorney for the government should initiate or rec-

ommend Federal prosecution if he/she believes that

the person’s conduct constitutes a Federal offense

and that the admissible evidence probably will be

sufficient to obtain and sustain a conviction.” Jd. at

§ 9-27.220(B). That presumption may be overcome,

however, in three situations: “when no substantial

Federal interest would be served by prosecution;

when the person is subject to effective prosecution in

another jurisdiction; and when there exists an ade-

quate non-criminal alternative to prosecution.” Jd.

Each of these situations is intensely case- and per-

son-specific. Thus, determination of the federal in-

terest in prosecution requires “weigh[ing] all rele-

vant considerations.” Jd. at § 9-27.230(A). That in-

cludes potentially more generalized considerations

like “[fjederal law enforcement priorities” and “[t}he

nature and seriousness of the offense.” Jd. But it also

includes considerations that can only be undertaken

on a case-by-case basis: “[t]he person’s culpability in

connection with the offense,” “[t]he person’s history

with respect to criminal activity,” “[t]he person's

willingness to cooperate in the investigation or pros-

ecution of others,” and the “consequences if the per-

son is convicted.” Jd. These factors are not amenable

to rigid, class-wide application but require the prose-

cutor’s considered judgment as to the individual cir-

cumstances of each case. Id.

The point is not that these particular factors define

the constitutional scope of the Executive’s authority

12

to forbear from enforcement of the laws, but that

such authority, as exercised by federal officials every

day since shortly after the Judiciary Act of 1789 es-

tablished the offices of district attorney and Attorney

General, remains inherently individualized at its

core. At a minimum, that consistent practice pro-

vides a “historical gloss on the ‘executive Power’

vested in Article II of the Constitution.” Am. Ins.

Ass'n v. Garamendi, 539 U.S. 396, 414 (2003). See

also NLRB v. Noel Canning, 134 S. Ct. 2550, 2567

(2014); Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.

Ct. 2076, 2090 (2015).

That same view of prosecutorial discretion is re-

flected in the advice provided by the Department's

Office of Legal Counsel. For example, it has averred

that the “Executive’s exclusive authority to prose-

cute violations of the law gives rise to the corollary

that neither the Judicial nor Legislative Branches

may directly interfere with the prosecutorial discre-

tion of the Executive by directing the Executive

Branch to prosecute particular individuals.” Prose-

cution for Contempt of Congress of an Executive

Branch Official Who Has Asserted a Claim of Execu-

tive Privilege, 8 Op. O.L.C. 101, 115 (1984). Thus,

“[a]lthough prosecutorial discretion may be regulat-

ed to a certain extent by Congress and in some in-

stances by the Constitution, the decision not to pros-

ecute an individual may not be controlled because it

is fundamental to the Executive's prerogative.” Jd. at

126 (emphasis added).

13

Notably, OLC has recognized that “the individual

prosecutorial decision is distinguishable from in-

stances in which courts have reviewed the legality of

general Executive Branch policies.” Id. See also Con-

gressional Subpoenas of Department of Justice In-

vestigative Files, 8 Op. O.L.C. 252, 264 (1984) (“The

Executive therefore has the exclusive authority to

enforce the laws adopted by Congress, and neither

the Judicial nor Legislative Branches may directly

interfere with the prosecutorial discretion of the Ex-

ecutive by directing the Executive to prosecute par-

ticular individuals.”) (emphasis added). In other

words, the core of the discretionary authority exclu-

sively reserved to the Executive is the authority to

make decision in particular cases regarding particu-

lar individuals.’

Finally, it should not go unmentioned that OLC’s

institutional commitment to the longstanding prin-

ciples of prosecutorial discretion carried through to

at least its initial analysis of the DAPA program. Its

memorandum reports that OLC’s “preliminary view

3 By the same token, OLC has opined that litigation settle-

ments on behalf of the United States “that irrevocably confer{}

substantial administrative discretion...could...raise constitu-

tional concerns as the other party to the settlement would not

be under the executive branch's control” and so “would have the

consequence of delegating to non-executive branch actors sub-

stantial administrative discretion.” Authority of the United

States To Enter Settlements Limiting the Future Exercise of

Executive Branch Discretion, 1999 WL 1262049, at *15 (O.L.C.

1999).

14

was that such a program would be permissible, pro-

vided that immigration officials retained discretion

to evaluate each application on an individualized ba-

sis." The Department of Homeland Security's Au-

thority To Prioritize Removal of Certain Aliens Un-

lawfully Present in the United States and To Defer

Removal of Others, 2014 WL 10788677, at *13 n.8

(O.L.C. 2014). Providing relief based on “specified

criteria on a class-wide basis,” it continued, would

raise serious questions, and so “it was critical that,

like past policies that made deferred action available

to certain classes of aliens, the DACA program re-

quire immigration officials to evaluate each applica-

tion for deferred action on a case-by-case basis, ra-

ther than granting deferred action automatically to

all applicants who satisfied the threshold eligibility

criteria.” Id. OLC’s final analysis also proceeds on

the assumption that DAPA would involve “case-by-

case determinations” and expressly relies on this

“guarantee of individualized, case-by-case review.”

Id. at *17

C. The Judicial Branch Has Likewise

Recognized That Enforcement Discretion

Is Limited to Decisions Affecting Specific

Cases

This Court recognized the individualized nature of

prosecutorial discretion when it held, in Heckler v.

Chaney, 470 U.S. 821, 831-32 (1985), that “judicial

review of agency decisions to refuse enforcement” are

generally not subject to judicial review. The decision

to refuse enforcement, it explained, “shares to some

15

extent the characteristics of the decision of a prose-

cutor in the Executive Branch not to indict,” because

both entail “a number of factors which are peculiarly

within [the Executive’s] expertise” due to their indi-

vidualized and case-specific nature: “whether a vio-

lation has occurred,” whether “resources are best

spent on this violation or another,” whether “the

agency is likely to succeed if it acts,” and “whether

the particular enforcement action requested best fits

the agency’s overall policies.” Jd.

Chaney contrasts such individualized questions

with matters of general policy and rules of general

applicability. The challenged instance of agency in-

action before it, the Court explained, did not concern

an agency that “has ‘consciously and expressly

adopted a general policy’ that is so extreme as to

amount to an abdication of its statutory responsibili-

ties”—which, it recognized, would present a very dif-

ferent case. Jd. at 833 n.4 (quoting Adams v. Rich-

ardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en

banc)). See also United States v. Nixon, 418 U.S. 683,

693 (1974) (observing that “the Executive Branch

has exclusive authority and absolute discretion to

decide whether to prosecute a case”).

Lower courts have drawn on that very distinc-

tion—between a rigid “general policy” of non-

enforcement and discretion as to whether “particular

enforcement action[s]” fit with the Executive’s objec-

tives—in determining whether to review (and up-

hold) executive non-enforcement action under the

Administrative Procedure Act. See, e.g., Cook v.

16

FDA, 733 F.3d 1, 8 (D.C. Cir. 2013) (“The ‘enforce-

ment’ discretion held unreviewable in Chaney...was

whether to recommend prosecution...[as contrasted

with statute that] left the agency with no discretion

to make an exception, no matter how sensible mak-

ing a particular exception might be.”); Crowley Car-

ibbean Transp., Inc. v. Peria, 37 F.3d 671, 676-77

(D.C. Cir. 1994) (upholding “single-shot non-

enforcement decision” and distinguishing cases in-

volving “expressions of broad enforcement poli-

cies...abstracted from the particular combinations of

facts the agency would encounter in individual en-

forcement proceedings’ because such “general

statements...are more likely to be direct interpreta-

tions of the commands of the substantive statute ra-

ther than the sort of mingled assessments of fact,

policy, and law that drive an individual enforcement

decision and that are, as Chaney recognizes, peculi-

arly within the agency's expertise and discretion”):

Am. Horse Prot. Ass'n v. Lyng, 812 F.2d 1, 4 (D.C.

Cir. 1987) (finding reviewable decision not to initiate

rulemaking that risked amounting to an agency’s

“consciously and expressly adopt[ing] a general poli-

cy that is so extreme as to amount to an abdication

of its statutory responsibilities,” which would “turn

on matters remote from the specific facts of individ-

ual cases”) (quotation marks omitted); United States

uv. Wenger, No. 11-457, 2013 WL 6633964, at *7 n.4

(N.D. Ohio Dec. 17, 2013) (criticizing Department of

Justice sentencing practice that “abdicates, rather

than implements, prosecutorial discretion, in the

sense that ‘to exercise discretion’ means, as | believe

17

it does, to apply objective judgment on an individual,

multi-factored, case-by-case basis, rather than decid-

ing and acting reflexively on a collective, subjectively

categorical basis”) (emphasis in original); United

States v. Juarez-Escobar, 25 F. Supp. 3d 774, 787

(W.D. Pa. 2014) (finding that executive action on

immigration “goes beyond prosecutorial discretion

because...it provides for a systematic and rigid pro-

cess by which a broad group of individuals will be

treated differently than others based upon arbitrary

classifications, rather than case-by-case examina-

tion”).

Finally, this Court has recognized that the execu-

tive enforcement authority protected from en-

croachment by the other branches of the federal gov-

ernment and by the states is that which concerns the

application of the law to particular cases. Thus, Ari-

zona v. United States, 132 S. Ct. 2492, 2499, 2506

(2012), concluded that an Arizona statutory provi-

sion allowing state officers to arrest removable al-

iens encroached on the Executive Branch’s discretion

to determine in individual cases which aliens are

removable and whether a given alien should be re-

moved. “By authorizing state officers to decide

whether an alien should be detained for being re-

movable, § 6 violates the principle that the removal

process is entrusted to the discretion of the Federal

Government.” Jd. at 2506. That holding was not an

open-ended grant of executive authority to rewrite

immigration law, but instead rested on the under-

standing that enforcement entails a close look at

18

“[t]he equities of an individual case,” which “may

turn on many factors, including whether the alien

has children born in the United States, long ties to

the community, or a record of distinguished military

service,” and may also involve case-specific issues of

international concern. Jd. at 2499 (emphasis added).

That type of individualized judgment, Arizona

held, is the discretionary authority that is reserved

exclusively to the Executive.

D. DAPA’s Provision of Class-Wide Relief Is

Not an Exercise of Prosecutorial

Discretion

DAPA does not involve the kind of case-by-case ex-

ercise of judgment that is the hallmark of prosecuto-

rial discretion; to the contrary, it absolutely depends

on class-wide rules of general applicability and

would be completely ineffectual in achieving its stat-

ed aims if it operated in a particularized fashion. In-

deed, the Executive here concedes that, far from par-

ticularized, it is a “blanket policy.” Gov't Br. at 17,

69.

Under the banner of prosecutorial discretion,

DAPA instructs U.S. Customs and Immigration Ser-

vices to declare illegal immigrants who satisfy six

criteria “lawfully present in the United States.” Pet.

App. 413a. An immigrant who satisfies these criteria

“shall also be eligible to apply for work authoriza-

tion,” id. at 417a, and receive deferred action “for a

period of three years,” id. at 418a. Though the mem-

orandum bandies about phrases like “case-by-case

19

basis” and “exercise of discretion,” DAPA is designed

to provide class-wide relief. In fact, DAPA can only

achieve its stated aims if it provides relief to a clear-

ly defined class of individuals.

DAPA is designed to “encourage...people to come

out of the shadows, submit to background checks,”

and provide “biometrics” to USCIS. Id. at 415a,

417a. To convince individuals to divulge this infor-

mation to the government, DAPA must offer assur-

ance that they will receive deferred action in return.

DAPA provides that assurance by establishing

bright-line criteria for identifying who belongs to the

target class. Those who check off the criteria can

thereby be assured—before they visit law enforce-

ment officers, submit to background checks, and

provide biometric data—that they will not be deport-

ed.

Of the six criteria DAPA directs USCIS to use in

evaluating applications, the first five can be mechan-

ically applied to determine whether an individual

belongs to the target class. These criteria include

having “a son or daughter who is a U.S. citizen or

lawful permanent resident,” having “continuously

resided in the United States since before January 1,

2010,” and having “no lawful status on the date of

this memorandum.” Jd. at 417a. The sixth criterion

then ostensibly instructs USCIS to “exer-

cise...discretion” in the event that unspecified “other

factors” “make[] the grant of deferred action inap-

propriate.” Jd. Yet this criterion is deliberately

vague, since any genuine exercise of discretion would

20

discourage people from coming forward, and thus

thwart the very policy objectives DAPA seeks to

achieve.

The district court’s factual findings, which were

upheld by the Fifth Circuit, confirm that the DAPA

criteria are designed to be applied mechanically,

without exercise of case-specific discretion—a point

which the Executive essentially concedes at this

stage. See Gov't Br. at 17, 69. The district court de-

termined that DAPA “imposes specific, detailed and

immediate obligations upon DHS personnel,” to such

an extent that “[nJlothing about DAPA genuinely

leaves the agency and its [employees] free to exercise

discretion.” Pet. App. 389a (second alteration in orig-

inal) (quotation marks omitted). By providing USCIS

personne! with a “check the box’ standardized form,”

DAPA ensures that all individuals who satisfy the

five concrete criteria will be approved. Jd. at 387a.

See also id. at 386a (“[I]t is clear from the record that

the only discretion [underlying DAPA] that has been

or will be exercised is that already exercised by Sec-

retary Johnson in enacting the DAPA program and

establishing the criteria therein.”); id. at 202a

(‘DAPA would not genuinely leave the agency and

its employees free to exercise discretion.”).

As further support for its finding that DAPA af-

fords officials no genuine discretion, the district

court examined the enforcement history of DAPA’s

predecessor, “DACA.” The court found that “[n]o

DACA application that has met the criteria has been

denied based on an exercise of individualized discre-

21

tion.” Id. at 388a. Furthermore, “only 1-6% of

[DACA] applications have been denied at all, and all

were denied for failure to meet the criteria..., or for

fraud.” Jd. Indeed, when pressed to provide even a

single example of an individual who had been “de-

nied for reasons other than not meeting the criteria

or technical errors with the form and/or filing,” the

government failed to do so. Id.

In sum, DAPA is simply and necessarily—in light

of its policy goals—incompatible with the case-by-

case exercise of constitutionally authorized prosecu-

torial discretion.

Il. DAPA’s Conferral of Practical Immunity

and Other Benefits Is Not Supported by

the Executive’s Enforcement-Discretion

Authority

Prosecutorial discretion implicates nothing more

than the decision to prosecute or not to prosecute at

a particular moment in time. DAPA, by contrast,

amounts to an alteration in legal status, affecting

rights and conferring positive benefits. Those things

are not, and never have been, proper incidents of the

exercise of prosecutorial discretion.

The Executive's decision not to prosecute can con-

fer no rights on the individual subject to that deci-

sion. Under early American case law, the entry of a

writ of nolle prosequi on an indictment was “no bar

to a subsequent prosecution for the same offence.”

United States v. Shoemaker, 27 F. Cas. 1067, 1067

(C.C.D. Ill. 1840). That is, it was not considered to be

22

“in the nature of a retraxit, operating as a full re-

lease and discharge of the action, and, of course, as a

bar to any future suit.” Minor v. Mechanics’ Bank of

Alexandria, 26 U.S. (1 Pet.) 46, 74 (1828). To the

contrary, it was “simply...an agreement not to pro-

ceed further in that suit” for the time being. Jd. See

also Deloach v. Dixon, 7 F. Cas. 416, 417 (C.C.D.

Ark. 1840) (“A discontinuance and nolle prosequi

stand on the same ground; neither of them operat-

ing, like a retraxit, to discharge, release, and bar the

cause of action.”); Com. v. Wheeler, 2 Mass. 172, 174

(Mass. 1806) (Parsons, C.J.) (same).

In the same way, the modern exercise of prosecu-

torial discretion does not bind a prosecutor, or his

successors, on a prospective basis. One illustration is

Brown v. Herbert, No. 11-0652, 2012 WL 3580669 (D.

Utah Aug. 17, 2012), a case brought by the star of

the reality television show Sister Wives to challenge

the constitutionality of Utah’s anti-bigamy statute.

In an attempt to moot any claim to a justiciable “case

or controversy,” the Utah County Attorney’s office

adopted “a formal non-prosecution policy” and ar-

gued that the absence of a threat of prosecution ren-

dered the case moot. Jd. at *2. The district court dis-

agreed, observing that there is “no reason to believe

that such a determination is anything beyond an ex-

ercise of prosecutorial discretion that could be easily

reversed in the future by a successor Utah County

Attorney, or by Mr. Buhman himself, if he should

change his mind.” Jd. at *4.

23

Prosecutorial forbearance is likewise unreviewa-

ble, affecting no cognizable right subject to judicial

or other process. Chaney, 470 U.S. at 832; United

States v. Cox, 342 F.2d 167, 171-72 (5th Cir. 1965);

United States v. Bekric, 785 F.3d 1244, 1247 (8th

Cir. 2015) (“A prior exercise of prosecutorial discre-

tion in Bekric’s favor does not limit a future court’s

ability to hear evidence and draw conclusions.”).

By contrast, the conferral of benefits necessarily

implicates rights in a way that a decision to forbear

enforcement of the law does not. This Court has rec-

ognized that “the interest of an individual in contin-

ued receipt of...benefits is a statutorily created

‘property’ interest protected by the Fifth Amend-

ment,” such that the Government must “provide all

the process that is constitutionally due before a re-

cipient can be deprived of that interest.” Matthews v.

Eldridge, 424 U.S. 319, 332-33 (1976) (addressing

procedures required to terminate Social Security

disability benefits).

DAPA confers positive benefits on a massive

scale—including benefits of the kind held to estab-

lish interests subject to Due Process protections. It

provides that unlawfully present aliens who meet

the requisite criteria will be deemed “lawfully pre-

sent in the United States,” Pet. App. 413a, thereby

immunizing them from the ongoing consequences of

“an ongoing violation of United States law.” Reno v.

American-Arab Anti-Discrimination Comm., 525

U.S. 471, 491 (1999) (emphasis in original). See also

United States v. Orellana, 405 F.3d 360, 370 (5th

24

Cir. 2005) (“[A] temporary stay of removal does not

render an otherwise illegal alien’s presence lawful.”).

DAPA further provides that “[eJach person who ap-

plies...pursuant to the criteria above shall...be eligi-

ble to apply for work authorization.” Pet. App. 417a.

DAPA likewise entitles an alien to such things as

Social Security benefits, see 8 U.S.C. § 1611(b)(2),

and the Earned Income Tax Credit, see 26 U.S.C.

§ 32(c)(1)(e); 42 U.S.C. § 405(c)(2)(B)(i)(1).

Whether or not the Executive has the lawful au-

thority to confer such benefits on persons other than

those specified by Congress, the extension of such

benefits has nothing to do with any exercise of prose-

cutorial discretion.

III. DAPA Is Not Immune from Judicial

Review Because Its Provision of Class-

Wide Relief and Benefits Is Not Committed

to Agency Discretion by Law

Agency action that exceeds the scope of traditional

executive discretion, or exceeds the powers that may

be lawfully delegated by a consenting Congress, falls

squarely within the judicial-review provision of the

Administrative Procedure Act, 5 U.S.C. § 701(a),

which embodies a “basic presumption of judicial re-

view’ of executive agency decision-making. Abbot

Labs. v. Gardner, 387 U.S. 136, 140 (1967). While

that presumption may be rebutted by a showing that

the agency action is “committed to agency discretion

by law,” under Section 701(a)(2), that exception ap-

plies only in the “rare circumstances where the rele-

vant statute ‘is drawn so that a court would have no

25

meaningful standard against which to judge the

agency's exercise of discretion.” Lincoln v. Vigil, 508

U.S. 182, 191 (1993) (quoting Heckler v. Chaney, 470

U.S. 821, 831 (1985)). This is not such a circum-

stance.

By definition, there is “law to apply,” where a stat-

ute gives “clear and specific directives.” Citizens to

Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410—

11 (1971) (quotation marks omitted). See also Chrys-

ler Corp. v. Brown, 441 U.S. 281, 318 (1979) (finding

that statute placing “substantive limits” on agency

action did not grant it unlimited discretion).

Thus, the “rare circumstances” of unreviewability

typically involve the express or necessarily implied

statutory commitment of particular matters to the

Executive’s discretion—not agency suspension of a

statute’s express dictates. For instance, an agency's

decision not to institute enforcement proceedings is

not subject to review because a decision of that na-

ture “involves a complicated balancing of a number

of factors which are peculiarly within [the agency's]

expertise,” Lincoln, 508 U.S. at 191 (quoting and

discussing Chaney, 470 U.S. at 831), but the exemp-

tion does not apply where a statute “provide|[s]

guidelines for exercise of [an agency's] enforcement

power.” Chaney, 470 U.S. at 834 (discussing Dunlop

v. Bachowski, 421 U.S. 560 (1975)).

Likewise, an agency’s decision to deny reconsidera-

tion of a previous ruling generally will not be second-

guessed, notwithstanding an alleged “material error”

in the previous ruling, because the denial of recon-

26

sideration is distinct from the previous ruling, and

there is no “adequate standard of review” for gaug-

ing the degree of error committed. JCC v. Bhd. of Lo-

comotive Engineers, 482 U.S. 270, 282 (1987); Lin-

coln, 508 U.S. at 191 (discussing JCC). But, of

course, the underlying decision is reviewable if it is

timely appealed, as is a decision granting a reconsid-

eration petition or denying reconsideration of a peti-

tion alleging new evidence of changed circumstances.

ICC, 482 U.S. at 278-81.

For the same reasons, an agency’s discretion in

the “allocation of funds from a lump-sum appropria-

tion” is regarded as committed to agency discretion

because of the “complicated balancing of a number of

factors which are peculiarly within its expertise,” in-

cluding where best to spend resources, where an

agency is most likely to fulfill its statutory mandate,

whether a program best fits an agency’s overall poli-

cies, and whether the agency has the resources to

fund the program. Lincoln, 508 U.S. at 193 (quota-

tion marks omitted). The agency “is far better

equipped than the courts to deal with the many var-

iables involved.” Jd. (quotation marks omitted). But

if Congress does place restrictions on the appropria-

tion the exemption does not apply. Id.

In other words, an agency’s decision to ignore stat-

utory directives cannot be defended on the basis that

Congress placed that discretion within its absolute

purview. By definition, it did not.

In this case, Congress has codified explicit, sub-

stantive limits that confine agency discretion with

27

respect to persons unlawfully present in the United

States, which of those persons may be permitted to

remain, and which of those permitted to remain may

receive authorization to work. Congress specified in

statute the major categories of aliens that may be

lawfully present. See, e.g., 8 U.S.C. § 1101(a)(15) (de-

lineating some two dozen categories of “nonimmi-

grant aliens,” ranging from accredited ambassadors

of foreign governments to victims of human traffick-

ing); id. § 1101(a)(20) (defining “lawfully admitted

for permanent residence,” or “LPR” status). Congress

also expressly permitted conditional and constrained

means by which otherwise inadmissible aliens may

be admitted. E.g., 8 U.S.C. § 1182(d)(5)(A) (allowing

the Attorney General discretion to temporarily “pa-

role [persons] into the United States...for urgent

humanitarian reasons or significant public benefit,”

but “only on a case-by-case basis”) (emphasis added).

And Congress expressly authorized the Secretary of

Homeland Security to grant specific types of aliens

work authorization. See 8 U.S.C. § 1101(i) (providing

this authorization with regard to trafficking victims);

id. § 1158(c)(1)(B) (same, for asylum seekers). In ad-

dition, Congress provided detailed criteria under

which aliens may remain in the United States law-

fully due to their child’s citizenship. See 8 U.S.C.

§ 1151(b)(2).

DAPA departs from that detailed statutory

scheme. It creates a broad new category of aliens

who will be deemed “lawfully present” and who will

“be eligible to apply for work authorization.” Pet.

28

App. 413a, 417a. That category is defined by criteria

of the agency’s own invention, such as whether the

alien has a child that is a United States citizen or

LPR, and whether the alien has continuously resided

in the United States since 2009. See id. This set of

factors is not drawn from the statute, and it applies

potentially to millions of unlawfully present persons.

Thus, in the face of a detailed, clear, and substantive

statutory scheme governing its treatment of unlaw-

fully present persons, the Executive has created a

new, programmatic treatment of a large category of

persons independent of, and without reference to,

governing statutory law. Interpreting the Immigra-

tion and Nationality Act to confer such unfettered

authority on the Executive uncabined by any “intel-

ligible principle” would itself raise serious constitu-

tional issues. Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 472 (2001).

DAPA is different from the sort of policy guidance

on enforcement prioritization that has always

properly been exempt from judicial review. That dif-

ference is underscored by the promulgation of a sep-

arate memorandum by Secretary Johnson, also is-

sued November 20, 2014, titled “Policies for the Ap-

prehension, Detention and Removal of Undocument-

ed Immigrants.” That memorandum establishes

three tiers of aliens, generally defined by reference

to criminal and immigration history, to “provide

clearer and more effective guidance in the pursuit of

{immigration-enforcement] priorities.” Pet. App.

421a. The Policies Memo does not purport to author-

29

ize any alien or class of aliens to work in the United

States, nor does it deem them to be “lawfully pre-

sent.” The Policies Memo simply sets forth enforce-

ment priorities and is, for that reason, unreviewable.

Indeed, Respondents here do not challenge it.

But DAPA is not a mere statement of priorities.

Instead, it cuts across an elaborate statutory frame-

work that provides ample “law to apply.” For that

reason, it is subject to judicial review under the

APA.

IV. Far from a Legitimate Exercise of

Enforcement Discretion, DAPA Constitutes

a Forbidden Dispensation from the Law

While the Executive Branch has been appropriate-

ly vigilant in defending the core of executive discre-

tion from encroachment by the Legislative Branch,

uncabining that discretion from its historical con-

fines risks the opposite infirmity: aggrandizement of

the Executive at the expense of the Legislature by

allowing the Executive to dispense with legal duties.

“There is no provision in the Constitution that au-

thorizes the President to enact, to amend, or to re-

peal statutes.” Clinton v. City of New York, 524 U.S.

417, 438 (1998). That is a truism in this nation’s con-

stitutional scheme, yet the principle was not always

obvious. In 1686, the King’s Bench ruled “that the

laws were the King’s laws: that the King had a pow-

er to dispense with any of the laws of Government as

he saw necessity for it; that he was the sole judge of

that necessity; that no Act of Parliament could take

30

away that power....” Godden v. Hales, 89 Eng. Rep.

1050, 1051 (K.B. 1686). The ruling ratified King

James II's suspension of statutory restrictions on of-

fice-holding by Catholics and Protestant dissenters,

but sparked public outrage.

The Glorious Revolution of 1688 resolved that con-

troversy and the broader question of the suspension

of the laws and the granting of dispensations. Wil-

liam III] and Mary II replaced King James, and, as

part of the constitutional settlement, they agreed to

the English Bill of Rights. The first two articles for-

bid the monarch from exercising two powers that

James II had claimed were royal prerogatives: the

“power of suspending of laws or the execution of

laws” and the “power of dispensing with laws or the

execution of laws.” An Act Declaring the Rights and

Liberties of the Subject, and Settling the Succession

of the Crown (Bill of Rights), 1 W. & M., Sess. 2, c. 2

(1689).

The unconstitutionality of the dispensing and sus-

pending powers remained a vital concern of the Eng-

lish on the eve of the American Revolution. In 1766,

King George, facing a wheat shortage and riots, uni-

laterally suspended a 1670 statute that permitted

the export of grain from English ports. He justified

his suspension of the Embargo Act by “the urgency of

necessity.” Philip Hamburger, Is Administrative

Law Unlawful? 70 (2014) (quotation marks omitted).

Parliament was in recess, and the drastic measure

was required to prevent the export of the little grain

that remained in the country.

31

Nevertheless, when Parliament returned to ses-

sion, King George’s decision “was denounced as a

matter of suspending or dispensing with the law—

the general question being whether the Crown had a

right to suspend an act of Parliament, in any case, or

any pretense whatever?” Jd. (quotation marks omit-

ted). “The necessity of the embargo was universally

allowed,” yet Parliament objected that necessity

“was no excuse for dispensing or suspending the

laws.” Id. (quotation marks omitted). And while Par-

liament eventually passed an indemnification stat-

ute, the statute began by proclaiming that the em-

bargo “could not be justified by law.” Id. at 72.

These events influenced constitutional develop-

ment in the New World. A number of state constitu-

tions at the time of the Founding prohibited the ex-

ecutive from suspending or dispensing of laws. E.z.,

Del. Decl. of Rights and Fundamental Rules of 1776,

§ 7 (“That no Power of Suspending Laws, or the Exe-

cution of Laws, ought to be exercised unless by the

Legislature.”); Md. Const. of 1776, Decl. of Rights, §

7 (‘That no power of suspending laws, or the execu-

tion of laws, unless by or derived from the Legisla-

ture, ought to be exercised or allowed.”); Va. Const.

of 1776, Bill of Rights, § 7 (‘That all power of sus-

pending laws, or the execution of laws, by any au-

thority, without consent of the representatives of the

people, is injurious to the their rights, and ought not

to be exercised.”); Mass. Const. of 1780, pt. 1, art. XX

(“The power of suspending the laws, or the execution

of the laws, ought never to be exercised but by the

32

legislature, or by authority derived from it, to be ex-

ercised in such particular cases only as the legisla-

ture shall expressly provide for.”); id. pt. 2 ch. VI,

art. I (requiring state officials to swear “no foreign

Prince, Person, Prelate, State or Potentate, hath, or

ought to have, any jurisdiction, superiority, preemi-

nence, authority, dispensing or other power, in any

matter, civil, ecclesiastical or spiritual, within this

Commonwealth”) (emphasis added); N.C. Const. of

1776, Decl. of Rights, § V (“That all powers of sus-

pending laws, or the execution of laws, by any au-

thority, without consent of the Representatives of

the people, is injurious to their rights, and ought not

to be exercised.”); Vt. Const. of 1786, ch. 1, art. 17

(“The power of suspending laws or the execution of

laws, ought never to be exercised, but by the Legisla-

ture, or by authority derived from it, to be exercised

in such particular cases only as the Legislature shall

expressly provide for.”).

The Constitutional Convention subsequently con-

sidered a resolution to provide the President a sus-

pension power and rejected it. 1 The Records of the

Federal Convention of 1787 103—04 (Max Farrand

ed., 1911). The Constitution instead enshrines the

English Bill of Rights’ prohibitions in the Take Care

Clause, an interpretation confirmed by a number of

early commentators, including some who were pre-

sent at the Convention. James Wilson stated that

the Clause means that the President has “authority,

not to make, or alter, or dispense with the laws, but

to execute and act the laws, which [are] established.”

33

2 Collected Works of James Wilson 878 (Kermit L.

Hall & Mark David Hall eds., 2007).

Justice William Paterson, a New Jersey repre-

sentative to the Convention, later addressed the

question of whether the Constitution imparts “dis-

pensing power to the president” while riding circuit.

United States v. Smith, 27 F Cas. 1192, 1229

(C.C.D.N.Y. 1806). “Far from it,” he concluded, “for

[the Constitution] explicitly directs that he shall

‘take care that the laws be faithfully executed.” Zd.

William Rawle wrote in his early nineteenth century

commentary on the Constitution that the Take Care

Clause “declares what is [the President's] duty, and

it gives him no power beyond it. The Constitution,

treaties, and acts of congress, are declared to be the

supreme law of the land. He is bound to enforce

them; if he attempts to carry his power further, he

violates the Constitution.” William Rawle, A View of

the Constitution of the United States 149 (1829).

This Court adopted that view in Kendall v. United

States ex rel. Stokes, 37 U.S. 524 (1838), which con-

cerned an asserted presidential privilege to disre-

gard a statutory duty to pay certain sums to a con-

tractor for the postal service. The Court explained:

“To contend that the obligation imposed on the Pres-

ident to see the laws faithfully executed, implies a

power to forbid their execution, is a novel construc-

tion of the constitution, and entirely inadmissible.”

Id. at 613. Recognizing this authority, said the

Court, “would be vesting in the President a dispens-

34

ing power, which has no countenance for its support

in any part of the constitution.” Jd.

This understanding was also reflected in early ex-

ecutive and legislative practice. The first Presidents

and their top aides repeatedly expressed the view

that “they had only narrow, case-by-case authority to

excuse violations.” Zachary S. Price, Enforcement

Discretion and Executive Duty, 67 Vand. L. Rev. 671,

732-33 (2014) (discussing the practices and views of

Presidents Washington, Adams, and Jefferson). Al-

exander Hamilton was particularly concerned that

“relaxations” in enforcement should be made only in

“special cases,” and expressed the risk in even men-

tioning executive discretion to field officers “because

I should fear an abuse.” Jd. at 735 (quotation marks

omitted). To this view there was one exception: the

prerogative not to enforce an unconstitutional law—

which President Jefferson assumed by suspending

enforcement of the Alien and Sedition Acts—but

there is no indication that that prerogative was seen

as supporting any broader authority to suspend law

on policy grounds. Jd. at 740—41.

This Court was presented with a related question

concerning the suspension power in Clinton v. City of

New York, 524 U.S. 417, 421 (1998), which invali-

dated the Line Item Veto Act. That Act, the Court

explained, allowed the President unlimited discre-

tion to “reject[] the policy judgment made by Con-

gress and rely[] on his own policy judgment.” Jd. at

444. Although technically decided on Presentment

Clause grounds, Clinton controls here insofar as the

35

power claimed to fall within the Executive's inherent

enforcement discretion is functionally equivalent to a

power Clinton held to be inherently legislative and

that, in turn, triggered the presentment require-

ment. Jd. at 438 (“[R]Jepeal of statutes, no less than

enactment, must conform with Art. I.””) (alteration in

original) (quoting INS v. Chadha, 462 U.S. 919, 954

(1983)).

At a minimum, the claim that the Executive pos-

sesses a far broader authority to dispense with law-

fully enacted statutes the constitutionality of which

is not in question cannot survive Clinton.

CONCLUSION

The decision of the court below should be affirmed.

Respectfully submitted,

DAVID B. RIVKIN, JR.

Counsel of Record

ANDREW M. GROSSMAN

MARK W. DELAQUIL

RICHARD B. RAILE

JUSTIN J. SCHWAB

BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

Suite 1100

Washington, D.C. 20036

(202) 861-1731

drivkin@bakerlaw.com

APRIL 4, 2016