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

No. 15-674

- —_——

UNITED STATES, et ai.,

Petitioners,

Vv.

TEXAS, et ai.,

Respondents.

re -——_— — _

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

————— + ee

AMICUS CURIAE BRIEF OF

JUSTICE AND FREEDOM FUND

SUPPORTING RESPONDENTS

Deborah J. Dewart James L. Hirsen

620 E. Sabiston Drive Counsel of Record

Swansboro, NC 28584-9674 5055S. Villa Real Drive

(910) 326-4554 Suite 208

debcpalaw@earthlink.net Anaheim Hills. CA 92807

(714) 283-8880

hirsen@earthlink.net

Counsel for Amicus Curiae

Becker Gallagher - Cincinnati, OH - Washington, D.C - 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................. ili

INTEREST OF AMICUS CURIAE ............. 1

INTRODUCTION AND SUMMARY OF THE

ard oat blade a dels une eucaae 2

EE 0 Wi vile i at att id aac etree ew aca 3

I. DAPA VIOLATES THE CONSTITUTIONAL

SEPARATION OF POWERS. ............ 3

A. Historical Practice Does Not Create

Power—Even In The Face Of

Acquiescence By The Branch Encroached

at acnacedncduevbadeneecue once 5

B. Historical Analysis Supports Limits On

Prosecutorial Discretion............... i)

Il. EXECUTIVE DISCRETION IS BROAD BUT

BEE GHEE, Cg wncvcceccviccvecess 13

A. Executive Authority Involves The

Exercise Of Discretion. .............. 13

l. Presidential Power. .............. 14

2. Executive Agencies. ... . ...... . 16

a) I fe 0 hes oh fl 17

B. Prosecutorial Discretion Is Not

Aa eens wy agen eee 19

lil DAPA IS AN EXECUTIVE

ENCROACHMENT ON LEGISLATIVE

DEE boc Nue ec custuceGeviauan«iaas 23

ii

A. DAPA Conflicts With The

Intricate Statutory Scheme Enacted By

ES vcccaanaesuseewes ban nue 24

B. Congress Explicitly Rejected DAPA’s

Terms When It Declined To Enact The

EI. cS ic bet oeg weciecuvet 26

C. DAPA Is Not An Unreviewable Exercise

Of Prosecutorial Discretion But Rather

An Abuse Of Discretion. ............. 28

ere eee ee eT 31

inl

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp. v. United States,

ss Ss ae oe 7

Arizona v. United States,

es Dn a vee ne ow tae 1, 24, 25

Arlington v. FCC,

SS ED 3s s oo'd vino « 044 4s .. 29

Bowsher v. Synar,

i sg evn pwanke seen 7

Carlson v. Landon,

re ; — oe

Chevron U.S.A. Inc. v. NRDC,

ee es Eo es cece xewdsewek 17

Cincinnati, Wilmington and Zanesville Railroad Co.

v. Commissioners,

fo) 8d a Ae ease

Clinton v. City of New York,

524 U.S. 417(1998) ..... is aac Men! acaces 7

Common Cause v. Biden,

748 F.3d 1280, 409 U.S. App. D.C. 306 (D.C.

Cir.), cert. denied, 135 S. Ct. 451(2014) . . 27

Dames & Moore v. Regan,

Se es OEE 0 8's What et N ewes cas ead

Field v. Clark,

ne a do bob eee at 23

iv

Fletcher v. Peck,

10 U.S. (6 Cranch) 87 (1810) ................ 4

Free Enterprise Fund v. Public Co. Accounting

Oversight Bd..,

Se EE ovens 6c cee dwueeeeueson 7

Heckler v. Chaney,

ee UP CD we cic vecesives 19, 29, 30

Hoffman Plastic Compounds, Inc. v. NLRB,

Se Gy BT GUE ov vc cds wececseecs 19, 25, 26

INS v. National Center for Immigrants’ Rights, Inc.,

ey ED by bb iwk knee hs bade bebe es 25

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

gt Se 8

Kendall v. United States ex rel. Stokes,

Oe GPs CE PD OP CUD ov ccc ccs accvice 4

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................ 6

Mayo Found. for Med. Educ. & Research v. United

States,

UD 4. ook Ca vG da we wkeee bas 17

Medellin v. Texas,

ee ee es cee wate lala ewes ae

Moers v. Reading,

pr CS fis Old Bares! 6 oo 23

Morrison v. Olson,

eT ED eo es 3

Myers v. United States,

I se Se esd re 14

Nat'l Labor Relations Bd. v. Noel Canning, et al.,

ee ee on ao G bak nee bo Fee ee 3

New York v. United States,

505 U.S. 144 (1992)..... she Pr 2 steals a MES

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

525 U.S. 471 (1999) (*AAADC”)....... 18, 19, 29

Texas v. United States,

86 F. Supp. 3d 591 (S.D. Tex. 2015) ......... 11

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) ........... passim

United States v. Batchelder,

I oo ke Oe 19

United States v. Mead Corp.,

ae es ae BRT 17

United States v. Midwest Oil Co.,

I, Se aero ot al SS ee a 16

University of Tex. Southwestern Medical Center v.

Nassar,

133 S. Ct. 2517 (2013) oe

Util. Air Reg. Grp. v. EPA,

oe Be fe ee eee 16, 29

Wayte v. United States,

se BE ce cr

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001). - hae ee

vi

Youngstown Sheet & Tube Co. v. Sawyer,

ee EE oi Sea ake assbsenees passim

Constitutional Provisions

Ns eo cae oh 6 6 ha ae ae A we hs 12

ee eee og oa cp cod uudervesvwbsees 12

ee ee OD ce ce ab een eesee ewes 12

Ce ka ete bade eeuseenen 12

RE vn ecu rede bene ene SN ete neeus 12

Sr Or Ce. oo, ntecec seas bvnswaes 12

Ce MO MMe. . ges ec ee wh eeu abew’ 12

cae nc ees eN eee bacs 12

Md. Const., Deci. of Rignts, art.9.............. 12

ee IE. cee a wae bees euvepeuss 12

N.H. Const., Bill of Rights, art. XXIX .......... 12

Ce Mg cence ewe we keeebews 12

rr rr i Me ee ea ek vee ewe cus 12

eC CSE, Se me a orm bve'dia bik ool bvacale 12

ee a ak ala lg 6 kk w Kis ala Ue wala ats 12

ee er eee =. oy wank ye See ewes 12

ee en SR) Es Ps y ou oo as uw cw bia Rw be feeb: 12

CME 551. s oi oh blu d's Ak ke wk we weet 12

eg RE a nN eras eae 3

vil

Cee ee ee Oe te th a Sater 4

a I I ea ag a ed oe ed 6

ee oD era 19

Statutory Provisions

Immigration and Nationality Act (“INA”),

ee is eck oe waatacaees 25

Immigration Reform and Control Act of 1986

oy MB aerials ee ae Re ts 5 ae cer 25

ee Oe IS ig "6 cok Ou s6a ca vem waa 24

en ar ES 9 0 0 ba sis wa o's GA Be a 24

Ee bla carck neg sehen dened 24

ee I os i ene acs eure sary s 24

on) ee 6 i re ere eee eee 24

eS ko op a's ds ech ce eee nan ee cea 24

ED ons das uneiab ae een pen bes os 24

yer fog fs) eee eee eres a 24

Re ee ED obo k's esas sacks nnseawa 24

as IED o's. gicvt boas davewsew bes 24

8 U.S.C. §§ 1252(a)(2)(A), (B), (C).. 2.2.6... ae

EE EE fog Saba cS srennsheaden ss 18, 28

MRE, soc Stk Ge Gnd sting ese sca ve wo4 24

OEE caw cei gat hese wie ee pee eds 24

yeh ey fer ee 24

viii

Other Authorities

Josh Blackman, ARTICLE: The Constitutionality

of DAPA Part II: Faithfully Executing the

Law, 19 Tex. Rev. Law & Pol. 213 (Spring 2015)

Serre Pree eee eee Tee eee 22, 26, 27, 28

2 William Blackstone, Commentaries ........... g

Curtis A. Bradley & Trevor W. Morrison, Historical

Gloss and the Separation of Powers, 126 Harv. L.

es a te nD aoe es 5,6

Deferred Action for Parents of Americans and

Lawful Permanent Residents (“DAPA”) .. passim

DREAM Act of 2010, H.R. 5281, 111th Cong., 2d

i aalat ae oSe = MPL een ipae REN, By Pa 27

DREAM Act of 2010, S. 3992, 111th Cong. (2010) . 28

Federalist No. 47 (James Madison) (Clinton

oe be ee 9

Federalist No. 48 (James Madison) (Clinton

So ae aes abt d Ware ws 3

Federalist No. 74 (Alexander Hamilton) (Lawrence

Goldman ed., Oxford University Press 2008) .. 9

6 C. Gordon, S. Mailman, & S. Yale-Loehr,

Immigration Law and Procedure (1998) ...... 18

H.R. 5281, 111th Cong. (2010) ......... yrs

ix

Memorandum from David W. Ogden, Deputy Att’y

Gen., to Selected U.S. Att’ys, Investigations and

Prosecutions in States Authorizing the Medical

Use of Marijuana 2 (Oct. 19, 2009), available at

http://perma.cce/JEV5-E7AQ ............... 20

1 Montesquieu, The Spirit of the Laws 163 (J.V.

Prichard ed., Thomas Nugent trans., 1914)

(1748), quoted in The Federalist No. 47 (James

EN ea b/s oa oa oes eed ae ek es 9

Press Release, Remarks by the Presider on

Immigration—Chicago, Ill., The White House

Office of the Press Sec’y (Nov. 25, 2014) ...... 11

Zachary S. Price, Enforcement Discretion

and Executive Duty, 67 Vand. L. Rev. 671 (2014)

Lath o etate ys miele ak wae V én one whee eared passim

Robert J. Reinstein, The Limits of Executive Power,

59 Am U. L. Rev. 259 (2009) ......... 10, 11, 15

Kar! R. Thompson, Office of Legal Counsel, U.S.

Dep’t of Justice, The Department of Homeland

Security's Authority to Prioritize Removal of

Certain Aliens Unlawfully Present in the United

States and to Defer Removal of Others 24 (2014),

available at http://bit.ly/1Qh5mRF

[perma.cce/NDX3-55G5] .... .... .... . 21,22

1

INTEREST OF AMICUS CURIAE'

Justice and Freedom Fund, as amicus curiae,

respectfully submits that the decision of the Fifth

Circuit should be affirmed.

Justice and Freedom Fund is a California non-

profit, tax-exempt corporation formed on September 24,

1998 to preserve and defend the constitutional liberties

guaranteed to American citizens, through education,

legal advocacy, and other means. JFF’s founder is

James L. Hirsen, professor of law at Trinity Law

School and Biola University in Southern California and

author of New York Times bestseller, Tales from the

Left Coast, and Hollywood Nation. Mr. Hirsen is a

frequent media commentator who has taught law

school courses on constitutional law. Co-counsel

Deborah J. Dewart is the author of Death of a

Christian Nation (2010) and holds a degree in theology

(M.A.R., Westminster Seminary, Escondido, CA). JFF

has made numerous appearances in this Court as

amicus curiae, including Arizona v. United States, 132

S. Ct. 2492 (2012).

' The parties have consented to the filing of this brief. Amicus

curiae certifies that no counsel for a party authored this brief in

whole or in part and no person or entity, other than amicus, its

members, or its counsel, has made a monetary contribution to its

preparation or submission.

2

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

This case is not about immigration policy. It is not

about the wisdom of DAPA’s directives. It is about the

separation of powers, a doctrine central to the

structure of American government. That separation is

not always convenient. Gridlock may occur when the

legislative and executive branches do not agree about

policy. But the Framers wisely recognized that

concentration of power in one person or one branch

would lead to tyranny. The Deferred Action for Parents

of Americans and Lawful Permanent Residents

Memorandum (“DAPA”) defies the Constitution by

grabbing power that belongs solely to the legislative

branch. It poses a threat too serious to ignore.

Executive authority admittedly involves the

exercise of discretion in the criminal justice system and

agency administration. Discretion makes it possible to

allocate scarce resources wisely. But discretion is not

unfettered and may not be used to encroach on

legislative territory by overriding congressional

policies. DAPA conflicts with the intricate statutory

scheme Congress enacted to address immigration and

work authorization. Indeed, Congress declined to adopt

the “DREAM Act,” which would have implemented

features of DAPA.

In short, DAPA is an egregious executive overreach

that jeopardizes the constitutional system the Framers

carefully designed to protect American liberty.

3

ARGUMENT

I. DAPA VIOLATES THE CONSTITUTIONAL

SEPARATION OF POWERS.

Power is of an “encroaching nature” and “ought to

be effectually restrained from passing the limits

assigned to it.” Federalist No. 48, at 305 (James

Madison) (Clinton Rossiter ed., 1961). In order to

preserve liberty and guard against tyranny, the

founders structured the Constitution to allocate power

among the three branches of government. Indeed, “the

Constitution’s core, government-structuring provisions

are no less critical to preserving liberty than are the

later adopted provisions of the Bill of Rights.” Nat’!

Labor Relations Bd. v. Noel Canning, et al., 134 S. Ct.

2550, 2592-2593 (2014). This separation of powers has

come before this Court many times. Sometimes it is

subtle, other times transparent:

Frequently an issue of this sort will come before

the Court clad, so to speak, in sheep’s clothing:

the potential of the asserted principle to effect

important change in the equilibrium of power is

not immediately evident, and must be discerned

by a careful and perceptive analysis. But this

wolf comes as a wolf.

Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia. J..

dissenting) (emphasis added). Today, another “wolf” is

before this Court.

The legislative branch — not the executive branch -

is charged with making the law. U.S. Const. art. I, § 1

provides that “[ajll legislative powers herein granted

shall be vested in a Congress of the United States.

which shall consist of a Senate and House of

4

Representatives.” Art. I, § 8 begins: “The Congress shall

have power to....” Clause 4 specifies the power at issue

in this case: “To establish an uniform Rule of

Naturalization.” U.S. Const. art. I, § 8, cl. 4. The

executive reaches too far when it encroaches on

legislature territory and makes new law—as it has

here. DAPA deprives Congress of exclusive control over

quintessentially legislative activity. Its whole purpose

is to make new law rather than to execute the law as

Congress wrote it. Indeed, its provisions openly conflict

with that law and were crafted in the wake of

congressional refusal to adopt them.

Early decisions of this Court acknowledge and apply

the Constitution’s division of labor:

It is the peculiar province of the legislature to

prescribe general rules for the government of

society; the application 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).

Allowing the executive branch the power to forbid the

execution of the law—as DAPA does for an entire

category of persons—“would be clothing the President

with a power entirely to control the legislation of

Congress, and paralyze the administration of justice.”

Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.)

524, 613 (1838) (writ of mandamus issued to require

Postmaster General to perform a duty imposed by law).

No such power can be implied from the President's

obligation to faithfully execute the laws. Jd. Although

the executive may decline prosecution or pardon past

offenses on an_ individual, case-by-case basis,

unbounded non-enforcement authority “could

5

substantially reorder the Constitution’s separation of

powers framework.” Zachary S. Price, Enforcement

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

674 (2014). This Court has an opportunity to zealously

guard that framework by affirming the Fifth Circuit

decision.

A. Historical Practice Does Not Create

Power—Even In The Face Of

Acquiescence By The Branch

Encroached Upon.

DAPA has not been authorized by statute, so the

government grounds its authority in historical practice.

Texas v. United States, 809 F.3d 134, 184 (5th Cir.

2015). “Arguments based on historical practice are a

mainstay of debates about the constitutional separation

of powers.” Curtis A. Bradley & Trevor W. Morrison,

Historical Gloss and the Separation of Powers, 126

Harv. L. Rev. 411, 412 (2012). This is particularly true

when considering the allocation of authority between

the legislative and executive branches. /d. at 412-413.

One reason is the sparse text defining executive

powers: “Unlike the extensive list of powers granted to

Congress in Article I, the text of the Constitution

provides relatively little guidance about the scope of

presidential authority....” Jd. at 417-418.

Over the years, legislative delegations have led toa

gradual accumulation of executive power:

The complexities of the modern economy and

administrative state, along with the heightened

role of the United States in foreign affairs, have

necessitated broad delegations of authority to

the executive branch.

6

Id. at 444-445. Justice Frankfurter, observing this

trend, proposed a practice-based “gloss” on presidential

power:

[A] systematic, unbroken, executive practice,

long pursued to the knowledge of the Congress

and never before questioned, engaged in by

Presidents who have also sworn to uphold the

Constitution, making as it were such exercise of

power part of the structure of our government,

may be treated as a gloss on “executive Power”

vested in the President by § 1 of Art. II.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

610-11 (1952) (Frankfurter, J., concurring). As Justice

Frankfurter cautioned, this “gloss” “cannot supplant

the Constitution” but historical practice may clarify

ambiguities and inform our understanding of the law.

Id.; Bradley & Morrison, Historical Gloss, 126 Harv. L.

Rev. at 430-431; Marbury v. Madison, 5 U.S. (1 Cranch)

137, 177 (1803).

But “[plast practice does not, by itself, create

power.” Medellin v. Texas, 552 U.S. 491, 532 (2008)

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

(1981)). The converse is equally true—the legislative

branch does not forfeit its powers through longstanding

executive practice:

It is said that other Presidents without

congressional authority have taken possession of

private business enterprises in order to settle

labor disputes. But even if this be true, Congress

has not thereby lost its exclusive constitutional

authority to make laws necessary and proper to

7

carry out the powers vested by the

Constitution....

Youngstown, 343 U.S. at 588.

Legislative acquiescence would not alter the result,

because the separation of powers protects individual

liberty. It makes no difference that “the encroached-

upon branch approves the encroachment.” Free

Enterprise Fund v. Public Co. Accounting Oversight

Bd., 561 U.S. 477, 497 (2010) (quoting New York v.

United States, 505 U.S. 144, 182 (1992)). When a

practice allegedly “enhances the President’s powers

beyond” constitutional boundaries, “[i]t is no answer

... to say that Congress surrendered its authority by

its own hand.” Clinton v. City of New York, 524 U.S.

417, 451 (1998) (Kennedy, J., concurring). Similarly,

this Court has rejected unconstitutional delegations of

legislative authority:

* A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495, 537-538 (1935) (“Congress cannot

delegate legislative power to the President to

exercise an unfettered discretion to make

whatever laws he thinks may be needed or

advisable for the rehabilitation of an industry.”).

¢ Bowsher v. Synar, 478 U.S. 714, 734 (1986) (“By

placing the responsibility for execution of the

Balanced Budget and Emergency Deficit Control

Act in the hands of an officer who is subject to

removal only by itself, Congress in effect has

retained control over the execution of the Act

and has intruded into the executive function.

The Constitution does not permit such

intrusion.”)

8

The Constitution does permit Congress to delegate

discretion concerning the details of executing the law,

as distinguished from actually making the law:

The true distinction, therefore, is, between the

delegation of power to make the law, which

necessarily involves a discretion as to what it

shall be, and conferring an authority or

discretion as to its execution, to be exercised

under and in pursuance of the law. The first

cannot be done; to the latter no valid objection

can be made.

J. W. Hampton, Jr. & Co. v. United States, 276 U.S.

394, 407 (1928), quoting Cincinnati, Wilmington and

Zanesville Railroad Co. v. Commissioners, 1 Ohio St.

77, 88 (1852). Hampton exemplifies appropriate

delegation. The case involved a _ Presidential

proclamation increasing the rate of duty imposed on

barium dioxide, in accordance with a statute granting

him authority to do so. The statute provided an

objective basis to set the rate using the difference

between the cost of producing certain articles in a

foreign country, and the cost of producing and selling

similar articles in the United States. Hampton, 276

U.S. at 404. As this Court noted, it is often necessary to

grant executive officers discretion, within defined

limits, “to secure the exact effect intended by its acts of

legislation.” Jd. at 406. The key is that Congress must

“lay down by legislative act an intelligible principle” to

guide the exercise of discretion. Jd. at 409; Whitman v.

Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001).

9

B. Historical Analysis Supports Limits On

Prosecutorial Discretion.

The separation of powers has long been recognized

as critical to preventing tyranny:

When the legislative and executive powers are

united in the same person, or in the same body

of magistrates, there can be no liberty; because

apprehensions may arise, lest the same monarch

or senate should enact tyrannical] laws, to

execute them in a tyrannical manner.

Price, Enforcement Discretion and Executive Duty, 67

Vand. L. Rev. at 701, quoting 1 Montesquieu, The

Spirit of the Laws 163 (J.V. Prichard ed., Thomas

Nugent trans., 1914) (1748), quoted in The Federalist

No. 47, at 241 (James Madison). Blackstone agreed

that the union of these two powers would be lethal to

public liberty. 2 William Blackstone, Commentaries

146-147.

Executive discretion may also guard against

tyranny. The President’s discretionary pardon power

alleviates the harshness of inflexible prosecution. “The

criminal code of every country partakes so much of

necessary severity, that without an easy access to

exceptions in favor of unfortunate guilt, justice would

wear a countenance too sanguinary and cruel.” Price,

Enforcement Discretion and Executive Duty, 67 Vand.

L. Rev. at 701, quoting The Federalist No. 74, at 364

(Alexander Hamilton) (Lawrence Goldman ed., Oxford

University Press 2008). A discretionary decision

“intervenes between the enactment of [a] prohibition

and its application to any particular individual.” /d. at

702.

10

In early America, executive officials tended to focus

on complete enforcement of the law, an approach

consistent with “a presumption against treating

enforcement discretion as a vehicle for remaking

statutory policy.” Jd. at 742. But “if prosecutorial

discretion today is an old wine in new bottles, it has

been soured by the transition.” Jd. at 743. The modern

tendency is to establish policy by prioritizing certain

offenses and even “exempting categories of offenders

from sanctions” or “prospectively authoring violations.”

Id. at 742. That is the strategy DAPA employs, and it

conflicts with the Constitution’s protections against

oppressive government.

The Constitution was not drafted in a vacuum. It

was written against the backdrop of historical

experience in Great Britain, repudiating almost all the

royal prerogatives characteristic of European

monarchies. As a result, “the allocations of power in

Articles I and II constitute a massive transfer of

previously held executive power to the legislative

branch.” Robert J. Reinstein, The Limits of Executive

Power, 59 Am U. L. Rev. 259, 263 (2009). The

Presidential veto power was the sole royal prerogative

retained by the American executive. Jd. at 278. The

Framers declined to grant a presidential “completion

power” comparable to the royal power wherein “the

King could, by proclamation and without legislative

authorization, change domestic law by prescribing

means that he deemed necessary to make a statutory

scheme more effective.” Jd. at 264. That royal

prerogative is eerily similar to President Obama's

11

declared intent to “change the law” to conform to his

desired policies. Similarly, “President Truman’s

executive order directing the seizure of the steel mills

was the twentieth-century equivalent of an illegal royal

proclamation” (id. at 310)—en action this Court

condemned in Youngstown.

The Framers rejected certain royal prerogatives

directly relevant to this case:

Two of the Crown’s asserted prerogatives had

empowered kings to suspend the operation of

statutes and to grant individuals’. the

dispensation of not being bound by statutes. The

suspending power was much more powerful than

the veto because it allowed a king to nullify not

only bills that were presented for his assent but

also all statutes that pre-dated his reign -

indeed, every law on the statute books. The

dispensing power resembled an anticipatory

pardon; yet, if used widely enough, the power

could be tantamount to suspending a statute.

Id. at 278-79. This is exactly the type of authority

DAPA exerts by categorically suspending operation of

the law for unlawful aliens who meet certain criteria.

But repudiation of these features of royal authority was

“a central achievement of the English Revolution” and

“an important backdrop to the American constitutional

enterprise.” Price, Enforcement Discretion and

* See Texas v. United States, 86 F Supp. 3d 591,657 and n.71(S.D.

Tex. 2015) (quoting Press Release, Remarks by the President on

Immigration—Chicago, II]., The White House Office of the Press

Sec’y (Nov. 25, 2014)).

12

Executive Duty, 67 Vand. L. Rev. at 692. Numerous

state constitutions contain similar restraints.®

Early American history testifies to the new nation’s

restraints on executive power. The “Whiskey Rebellion

of 1794” was a serious challenge to enforcement of the

highly unpopular federal excise taxes on distilled

spirits. Jd. at 736. Yet the Washington Administration,

believing it their constitutional duty to enforce the

statutes, suggested statutory changes rather than

engaging in a policy of non-enforcement. Jd. 737.

President Washington pardoned the past crimes of the

“Whiskey Rebels” in exchange for their promise to obey

the law in the future. Jd. at 738. This careful deference

to the legislative branch clashes with the current

Administration’s categorical exclusion of certain

persons from prosecution for ongoing future violations.

DAPA asserts the royal prerogatives repudiated by the

Framers.

More recent history offers continuing support for

restraints on executive power. In Youngstown, Justice

Frankfurter noted the many times Congress had

provided for executive seizure of an industry (16 times

since 1916)—but “[i]n every case it ha[d] qualified this

grant of power with limitations and safeguards.”

Youngstown, 343 U.S. at 597-598 (Frankfurter, J.,

* Id. at 692 n. 71, listing states with current restrictions: Ala.

Const. § 21; Ark. Const. art. I, § 12; Del. Const. art. I, § 10; Ind.

Const. art. 1, § 26; Ky. Const. § 15; La. Const. art. III, § 20; Maine

Const. art. I, § 13; Mass. Const. pt. I, art. XX; Md. Const., Decl. of

Rights, art. 9; N.C. Const. art. I, § 7; N.H. Const., Bill of Rights,

art. XXIX; Ohio Const. art. 1, § 18; Ore. Const. art. I, § 22; Pa.

Const. art. I, § 12; S.C. Const. art. I, § 7; S.D. Const. art. VI, § 21;

Tex. Const. art. I, § 28; Vt. Const. art. XV.

13

concurring). DAPA seizes powers never granted by

Congress—indeed, it flouts the existing statutory

scheme (Section IIIB).

Il. EXECUTIVE DISCRETION IS BROAD BUT

NOT UNLIMITED.

A. Executive Authority Involves The

Exercise Of Discretion.

Faced with limited resources and massive statutory

schemes, the executive branch must set priorities for

prosecution. Price, Enforcement Discretion and

Executive Duty, 67 Vand. L. Rev. at 682. Discretion is

critical to both criminal justice and agency

administration. Jd. at 681. State plaintiffs do not

dispute this basic principle, nor do they ask the courts

to rewrite immigration policy. As the Fifth Circuit

noted, “[nJjeither the preliminary injunction nor

compliance with the APA requires the Secretary to

enforce the immigration laws or change his priorities

for removal, which have expressly not been

challenged.” Texas, 809 F.3d at 169.

This is not the first time this Court has considered

the outer limits of executive discretion. In Youngstown,

the Court had to decide whether the President

exceeded his constitutional powers in taking possession

of the nation’s steel mills. The Government argued the

seizure was “necessary to avert a national catastrophe”

and thus within the President’s “inherent power.”

Youngstown, 343 U.S. at 582, 584. No statute

authorized the action. Jd. at 586. But considering the

President’s constitutional powers, this Court concluded

the seizure exceeded executive authority:

14

In the framework of our Constitution, the

President’s power to see that the laws are

faithfully executed refutes the idea that he is to

be a lawmaker. The Constitution limits his

functions in the lawmaking process to the

recommending of laws he thinks wise and the

vetoing of laws he thinks bad. And the

Constitution is neither silent nor equivocal

about who shall make laws which the President

is to execute.

Id. at 587-588. President Truman did not exercise

discretion to execute the law “in a manner prescribed

by Congress” but rather “in a manner prescribed by the

President.” Jd. at 588.

Discretion is permissible but limited. The

separation of powers doctrine was not designed “to

promote efficiency” or “avoid friction” but rather “to

preclude the exercise of arbitrary power” and “save the

people from autocracy.” Youngstown, 343 U.S. at 613-

614 (Frankfurter, J., concurring), quoting Myers v.

United States, 272 U.S. 52, 240, 293 (1926). At times

the relationship between the legislative and executive

branches may be acrimonious and stalemates may

occur, but “[t}]hat is a risk inherent in our system.”

Youngstown, 343 U.S. at 633 (Douglas, J., concurring).

“The Framers with memories of the tyrannies produced

by a blending of executive and legislative power

rejected that political arrangement.” Jd.

1. Presidential Power.

Executive power is sometimes exercised by the

President alone, as in Youngstown, and other times

through agencies, as in this case. The executive branch

15

has become extremely powerful—perhaps, as one

commentator suggests, “the most powerful branch of

government.” Reinstein, The Limits of Executive Power,

59 Am U. L. Rev. at 265. But the limits woven into the

constitutional fabric are still viable.

Justice Jackson’s Youngstown concurrence proposed

a three-tiered analysis of Presidential authority. Where

the President acts in accordance with congressional

authorization, his authority is at its peak. Youngstown,

343 U.S. at 635 (Jackson, J., concurring). When

Congress has neither granted nor withheld authority,

there may be an independent source of power. Jd. at

637. Finally, “[wJhen the President takes measures

incompatible with the expressed or implied will of

Congress, his power is at its lowest ebb for then he can

rely only upon his own constitutional powers minus

any constitutional powers of Congress over the matter.”

Id. at 637. Extreme caution is needed because “what is

at stake is the equilibrium established by our

constitutional system.” Jd. at 638. In Youngstown,

Congress “ha[d] laid down specific procedures to deal

with the type of crisis confronting” President Truman,

but he chose to bypass them. /d. at 662 (Clark, J.,

concurring). The same is true here. Congress enacted

elaborate statutory provisions to handle immigration,

including deportations and work authorizations, but

the Obama Administration chose to override them. (See

Sections IIIA, IIIB.) In Youngstown, even dissenting

Justice Vinson admitted that executive authority did

not extend that far, even in times of national

emergency:

This does not mean an authority to disregard

the wishes of Congress on the subject, when that

16

subject lies within its control and when those

wishes have been expressed, and it certainly

does not involve the slightest semblance of a

power to legislate, much less to ‘suspend’

legislation already passed by Congress.

Youngstown, 343 U.S. at 691-692 (Vinson, J.,

dissenting) (quoting from the Solicitor General’s brief

in United States v. Midwest Oil Co., 236 U.S. 459

(1915)).

2. Executive Agencies.

The expansion of the administrative state is

undeniable. Agencies exercise considerable executive

power, and discretion is needed to stretch limited

resources. Indeed, “agencies today routinely establish

policy and even issue binding regulations pursuant to

statutes that provide only vague and highly genera!

guidance regarding Congress’s desired policy.” Price,

Enforcement Discretion and Executive Duty, 67 Vand.

L. Rev. at 683.

But while agencies may prioritize within the limits

set by Congress, they may not expand discretion

beyond those bounds or revise statutory terms. Util.

Air Reg. Grp. v. EPA, 134 S. Ct. 2427, 2446 (2014)

(“UARG”). Like DAPA’s reconstruction of immigration

law, the EPA rule at issue in UARG “purportled] to

alter {statutory permitting] requirements and to

establish with the force of law that otherwise-

prohibited conduct wiould] not violate the Act.” Jd. at

2445.

Where Congress has expressly delegated authority

or left a gap for an agency to fill, the agency’s

reasonable interpretation is entitled to deference and

17

the court should not substitute its own judgment.

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843-844,

865-866 (1984).

Chevron deference is appropriate “when it

appears that Congress delegated authority to

the agency generally to make rules carrying the

force of law, and that the agency interpretation

claiming deference was promulgated in the

exercise of that authority.” United States v.

Mead Corp., 533 U.S. 218, 226-227 (2001).

Mayo Found. for Med. Educ. & Research v. United

States, 562 U.S. 44, 57 (2011) (applying Chevron to

uphold Treasury Dept. rule that medical residents are

not exempt from FICA tax). But “an agency

interpretation that is ‘inconsisten|t] with the design

and structure of the statute as a whole,’ . . . does not

merit deference.” UARG, 134 S. Ct. at 2442, quoting

University of Tex. Southwestern Medical Center v.

Nassar, 133 S. Ct. 2517, 2529 (2013). An agency

regulation cannot stand if it is “arbitrary, capricious, or

manifestly contrary to the statute.” Chevron, 467 U.S.

at 844. Here, DAPA collides with the intricate

statutory provisions enacted by Congress to regulate

unlawful immigration. (See Sections IIIA, IIIB.)

3. Deferred Action.

The Executive branch enjoys broad prosecutorial

discretion at each critical juncture of a deportation

proceeding:

“To ameliorate a harsh and unjust outcome, the

INS may decline to institute proceedings,

terminate proceedings, or decline to execute a

final order of deportation. This commendable

18

exercise in administrative discretion, developed

without express statutory authorization,

originally was known as nonpriority and is now

designated as deferred action. A case may be

selected for deferred action treatment at any

stage of the administrative process. Approval of

deferred action status means that, for the

humanitarian reasons described below, no action

will thereafter be taken to proceed against an

apparently deportable alien, even on grounds

normally regarded as aggravated.” 6 C. Gordon,

S. Mailman, & S. Yale-Loehr, Immigration Law

and Procedure § 72.03[2]{h} (1998).

Reno v. Am.-Arab Anti-Discrimination Comm., 525

U.S. 471, 484 (1999) (““AAADC”).

Courts rightly hesitate to interfere when discretion

is exercised on a case-by-case basis. In AAADC, this

Court found that 8 U.S.C. § 1252(g) restricts judicial

review. The Court also explained that, unlike criminal

proceedings where delay merely postpones the just

punishment of a criminal (id. at 490), deportation is not

imposed as a punishment but rather “is necessary in

order to bring to an end an ongoing violation of United

States law.” Jd. at 491; see Carlson v. Landon, 342 U.S.

524, 537 (1952).

In AAADC, Respondents alleged they were unfairly

targeted for deportation because of their membership

in a politically unpopular group. AAADC, 525 US. at

472. Unlike AAADC, where officials exercised

individual discretion, this case is about the categorical!

suspension of enforcement for a broad group of persons

who would otherwise be subject to the law. In such a

case, discretion is not unfettered.

19

B. Prosecutorial Discretion Is Not

Unfettered.

In the criminal justice system, the government has

broad discretion about whether to prosecute and what

charges to bring. Wayte v. United States, 470 U.S. 598,

607 (1985); AAADC, 525 U.S. at 489-490. But that

discretion is “not unfettered.” Wayte, 470 U.S. at 608;

United States v. Batchelder, 442 U.S. 114, 124-125

(1979) (prosecutor did not have “unfettered” discretion

to prosecute under either of two statutes that

prohibited identical conduct); Hoffman Plastic

Compounds, Inc. v. NLRB, 535 U.S. 137, 142-143

(2002) (Labor Board had “generally broad” but “not

unlimited” discretion to select and craft remedies for

violations). “Selectivity in the enforcement of criminal

laws is ... subject to constitutional constraints.” Wayte,

470 U.S. at 608, quoting Batchelder, 442 U.S. at 125

(footnote and internal quotation marks omitted). In

Heckler v. Chaney, this Court reasoned that agency

enforcement discretion is analogous to a prosecutor's

decision whether or not to indict—“a decision which

has long been regarded as the special province of the

Executive Branch.” Heckler v. Chaney, 470 U.S. 821,

832 (1985) (citing U.S. Const. art. II, § 3). But “it is

inappropriate to rely on notions of prosecutorial

discretion to hold agency inaction unreviewable.” Jd. at

846 (Marshall, J., concurring in the judgment). Like its

counterpart in criminal justice, an agency’s discretion

is not unbounded.

Outside the immigration context, agency discretion

has recently been an issue in marijuana enforcement.

After several states legalized medical marijuana,

advocates urged the Obama Administration “to adopt

20

a formal policy of declining enforcement against

individuals who possess the drug in compliance with

state law.” Price, Enforcement Discretion and Executive

Duty, 67 Vand. L. Rev. at 757. In 2009, the Justice

Department directed its attorneys not to focus

resources on prosecuting “individuals whose actions are

in clear and unambiguous compliance with existing

state laws providing for the medical use of marijuana.”

Memorandum from David W. Ogden, Deputy Att’y

Gen., to Selected U.S. Att’ys, Investigations and

Prosecutions in States Authorizing the Medical Use of

Marijuana 2 (Oct. 19, 2009), available at

http://perma.cc/JEV5-E7AQ. This exercise of discretion

is just barely constitutional but probably passes

muster. Persons using medical marijuana are a low

priority but still face potential prosecution, and setting

enforcement priorities is a normal use of discretion that

conserves scarce resources.

DAPA is a radical departure from this model. DAPA

transforms presence deemed unlawful by Congress into

“lawful presence” and confers benefits (such as work

authorization) that would otherwise be unavailable.

This dramatic change in legal status far exceeds merely

postponing prosecution or declining to commence

deportation proceedings. Individualized, case-by-case

discretion is appropriate. But DAPA categorically

suspends enforcement and prospectively excludes

certain well-defined categories of persons from the

scope of the law, raising profound separation of powers

concerns:

Prospective nonenforcement - that is, an

announced promise of declining enforcement of

a law in the future - is a particular offense to

21

legislative supremacy because it undermines the

deterrent effect of the law. Similarly, categorical

nonenforcement for policy reasons usurps

Congress’s function of embodying national policy

in law; it effectively curtails the statute that

Congress enacted, replacing it with a narrower

prohibition.

Price, Enforcement Discretion and Executive Duty, 67

Vand. L. Rev. at 705 (emphasis added). These actions

are essentially a “second veto” (id. at 688, 690) allowing

the executive to overrule a law enacted by Congress (at

least for the duration of the President’s term). DAPA is

an example of this danger:

Although the Secretary has discretion to make

immigration decisions based on humanitarian

grounds, that discretion is conferred only for

particular family relationships and specific

forms of relief—none of which includes granting

lawful presence, on the basis of a child’s

immigration status, to the class of aliens that

would be eligible for DAPA.

Texas, 809 F.3d at 180 (emphasis added). This is an

egregious invasion of legislative territory and an attack

on constitutional structure.

Ironically, DAPA destroys genuine discretion. An

opinion from the Office of Legal Counsel (OLC)

acknowledged that “deferred action programs depart in

certain respects from more familiar and widespread

exercises of enforcement discretion.”“* DAPA is an

* See Karl R. Thompson, Office of Legal Counsel, U.S. Dep't of

Justice, The Department of Homeland Security's Authority to

22

unprecedented action that replaces case-by-case

discretion with its own non-negotiable priorities and

“deliberately hobbles immigration law enforcement.”

Josh Blackman, ARTICLE: The Constitutionality of

DAPA Part II: Faithfully Executing the Law, 19 Tex.

Rev. Law & Pol. 213, 237-238 (Spring 2015). DAPA’s

“consistent discretion” is “oxymoronic” and contrary to

appropriate individual discretion. Jd. at 240. DAPA

“turn(s} discretion into a rubber stamp” (id. at 284)

that undermines the ability to detect fraud and

national security risks while ensuring that applications

meeting DAPA criteria will be approved. See Texas, 809

F.3d at 174. Such “rubber-stamp discretion” is not

discretion at all.

Expansive executive discretion also impairs political

accountability:

Substantial nonenforcement of federal statutes

clouds public perception of what conduct is

unlawful, thus impairing rule-of-law values and

diminishing Congress’s political accountability

for the range of conduct it has proscribed.

Price, Enforcement Discretion and Executive Duty, 67

Vand. L. Rev. at 746. By obscuring the line between

legislative and executive, executive “lawmaking”

generates confusion as to who is responsible for

existing laws and policies.

Prioritize Removal of Certain Aliens Unlawfully Present in the

United States and to Defer Removal of Others 24 (2014), available

at http://bit.ly/1Qh5mRF |perma.cc/NDX3-55G5].

23

il. DAPA IS AN EXECUTIVE

ENCROACHMENT ON LEGISLATIVE

POWER.

At its core, this case is about an executive decision

to categorically reclassify millions of persons

unlawfully residing in the United States. Texas, 809

F.3d at 170. The Department of Homeland Security has

discretionary power in individual cases, but the

executive branch lacks authority to alter the statutory

scheme by prospectively excluding an entire category of

persons from application of the law:

The true distinction...is between the delegation

of power to make the law, which necessarily

involves a discretion as to what it shall be, and

conferring authority or discretion as to its

execution, to be exercised under and in

pursuance of the law. The first cannot be done;

to the latter no valid objection can be made.

Field v. Clark, 143 U.S. 649, 693-694 (1892) (emphasis

added) (quoting Moers v. Reading, 21 Pa. 188, 202

(1853)). Executive discretion involves “setting priorities

within the confines of statutory policy, not an

unrestrained authority to adjust the law on the ground

to match their preferences as to what the law on the

books ideally should be.” Price, Enforcement Discretion

and Executive Duty, 67 Vand. L. Rev. at 765. DAPA

crosses the line and encroaches on legislative territory.

The executive branch has made new law because

unlawful aliens who meet the stated criteria

automatically receive “lawful presence” status. This

status “is not an enforceable right to remain in the

United States and can be revoked at any time” but

“thle] classification nevertheless has significant legal

24

consequences.” Texas, 809 F.3d at 148. Those

consequences include eligibility for federal and state

public benefits that are otherwise not available to

unlawfully present persons.

A. DAPA Conflicts With The Intricate

Statutory Scheme Enacted By Congress.

Congress has enacted specific and _ intricate

statutory provisions that unambiguously address

lawful presence in the United States:

Federal governance of immigration and alien

status is extensive and complex. Congress has

specified categories of aliens who may not be

admitted to the United States. See 8 U. S. C.

§ 1182. Unlawful entry and unlawful reentry

into the country are federal offenses. §§ 1325,

1326.

Arizona, 132 S. Ct. at 2499. Examples of these

provisions include 8 U.S.C. §§ 1101(a)(20), 1255

(lawful-permanent-resident status); §§ 1101(a)(15),

1201(a)(1) (nonimmigrant status); §§ 1101(a)(42), 1157-

59, 1231(b)(3) (refugee and asylum status); § 1182(d)(5)

(humanitarian parole); § 1254a (temporary protected

status); cf. §§ 1182(a) (inadmissible aliens), 1227(a)-(b)

(deportable aliens). Texas, 809 F.3d at 179 n. 162.

Congress has specified various narrow classes eligible

for deferred action but the list does not include the

group of 4.3 million persons who would be eligible for

lawful presence under DAPA. /d. at 179, citing DAPA

Memo at 4. DAPA openly flouts existing law and

hijacks legislative authority.

Statutory limitations on lawful residence reflect

congressional concern about unlawfully present

25

persons applying for and receiving public benefits from

federal, state, and local governments. Texas, 809 F.3d

at 179. Congress was also concerned about “closely

guarding access to work authorization and preserving

jobs for those lawfully in the country.” Jd. at 181.

DAPA brushes these concerns aside by causing a

dramatic increase in the number of aliens eligible for

work authorization, which in turns triggers eligibility

for numerous public benefits.

INA spells out the classes of aliens eligible for work

authorization—“with no mention of the class of persons

whom DAPA would make eligible.” Id. at 181 (emphasis

added). Indeed, Congress enacted the Immigration

Reform and Control Act of 1986 (“IRCA”) “as a

comprehensive framework” to combat the employment

of persons unlawfully present in the country. Arizona

132 S. Ct. at 2504, quoting Hoffman, 535 U.S. at 147.

Employers face an array of criminal and civil penalties

if they knowingly hire, recruit, refer, or continue to

employ unauthorized workers, or fail to verify the

status of potential employees. Arizona, 132 S. Ct. at

2504. In Hoffman, this Court found that federal

immigration policy, as expressed in IRCA, foreclosed

the National Labor Relations Board’s award of backpay

to an unauthorized alien. Hoffman, 535 U.S. at 140.

Combating the employment of unauthorized aliens is

central to “the policy of immigration law” as expressed

in IRCA.” Id. at 147, citing INS v. National Center for

Immigrants’ Rights, Inc., 502 U.S. 183, 194, and n. 8

(1991).

Under IRCA, employment of an undocumented alien

is not possible without some person ‘directly

contravening explicit congressional policies.” Hoffman,

26

535 U.S. at 148. With its vast expansion of work

authorization, DAPA contravenes explicit congressional!

policies. If DAPA had merely deferred deportation of a

low-priority group of aliens, it might be a reasonable

exercise of discretion. Instead, “the decision to establish

a program to solicit registrations for deferrals as a

means to provide work authorization to bring these

aliens ‘out of the shadows’ elevates the policy to the

level of disregarding the law.” Blackman, The

Constitutionality of DAPA Part II, 19 Tex. Rev. Law &

Pol. at 236.

The Fifth Circuit’s carefully reasoned opinion

canvasses the detailed statutory scheme enacted to

address DAPA’s subject matter: lawful presence and

employment. DAPA “amounts to a_ categorical,

prospective suspension of both the statutes requiring

removal of unlawful immigrants and the statutory

penalties for employers who hire immigrants without

proper work authorization.” Price, Enforcement

Discretion and Executive Duty, 67 Vand. L. Rev. at 760.

The conflicts between DAPA and existing immigration

law are open and obvious, leading inexorably to the

conclusion that the executive branch has usurped

legislative power.

B. Congress Explicitly Rejected DAPA’s

Terms When It Declined To Enact The

“DREAM Act.”

As one discerning commentator described it:

Overall, DAPA is a perfect storm of executive

lawmaking, descending to the lowest depths of

Youngstown, beyond the “zone of twilight,” and

even below the “lowest ebb.” .. Like the

27

mythical phoenix ... DAPA arose from the ashes

of congressional defeat.

Blackman, The Constitutionality of DAPA Part I], 19

Tex. Rev. Law & Pol. at 267.

Youngstown is precisely on point. In 1947, Congress

“consider|ed) whether governmental seizure should be

used to avoid serious industrial shutdowns”—the very

power President Truman exercised unilaterally in

defiance of Congress. Youngstown, 343 U.S. at 598

(Frankfurter, J., concurring). This was not a case that

left room for doubt about congressional intent:

[Nlothing can be plainer than that Congress

made a conscious choice of policy in a field full of

perplexity and peculiarly within legislative

responsibility for choice. In formulating

legislation for dealing with industrial conflicts,

Congress could not more clearly and

emphatically have withheld authority than it did

in 1947,

Id. at 602.

The same is true here. Congress rejected the

Development, Relief, and Education for Alien Minors

Act (“DREAM Act”). This proposed legislation “passed

the House of Representatives during the 111th

Congress and then stalled in the Senate.” Common

Cause v. Biden, 748 F.3d 1280, 1281, 409 U.S. App.

D.C. 306 (D.C. Cir.), cert. denied, 135 8. Ct. 451 (2014)

(citing H.R. 5281, 111th Cong. (2010). It had features

strikingly parallel to DAPA, including “a form of

permanent residency and work permits for certain

immigrants who were brought to the United States as

minors.” Blackman, The Constitutionality of DAPA

28

Part II, 19 Tex. Rev. Law & Pol. at 267; see DREAM

Act of 2010, S. 3992, 111th Cong. (2010). The pattern

tracks Youngstown—Congress declines to enact the

President’s proposed legislation, followed by the

executive's exertion of the power Congress denied. This

“amounts to an open and notorious decision to

disregard the democratic process, based on pretextual

legal justifications.” Blackman, The Constitutionality of

DAPA, Part II, 19 Tex. Rev. Law & Pol. at 269. And

“unlike President Truman, who told Congress he would

listen if they passed legislation, President Obama

threatened to veto a bill that would defund his

program.” Jd. at 282.

Upholding DAPA would be tantamount to writing

the separation of powers out of the Constitution. As in

Youngstown, “|t\o find authority so explicitly withheld

is not merely to disregard in a particular instance the

clear will of Congress. It is to disrespect the whole

legislative process and the constitutional division of

authority between President and Congress.”

Youngstown, 609 (Frankfurter, J., concurring),

C. DAPA Is Not An Unreviewable Exercise

Of Prosecutorial Discretion But Rather

An Abuse Of Discretion.

The government insists that 8 U.S.C. § 1252(g)

places DAPA beyond judicial review. Texas, 809 F.3d at

164. But that statute is not an expansive “zipper

clause” that shields DAPA’s executive overreach from

review. It “applies only to discrete actions... to

commence proceedings, adjudicate cases, or execute

29

removal orders.” AAADC, 525 U.S. at 482.° AAADC

involved allegations that petitioners were targeted for

deportation because of their political affiliations. The

government's discretionary decision to commence

proceedings for these individuals fell within the

statutory bounds, rendering it unreviewable. Jd. at

472-473. DAPA, in contrast to AAADC’s

commencement decision, involves a sweeping executive

action that prospectively and categorically reclassifies

millions of persons and thereby excludes them from the

reach of existing immigration law. This action is

inherently legislative in nature.

Reviewability often hinges on whether there is a

“meaningful standard against which to judge the

agency's exercise of discretion.” Jd. at 832. If so, a

reviewing court may consider “whether the agency has

stayed within the bounds of its statutory authority.”

UARG, 134 S. Ct. at 2439 (reviewing an EPA

interpretation of the Clean Air Act), quoting Arlington

v. FCC, 133 8. Ct. 1863, 1868 (2013) (emphasis

deleted). DAPA “at least can be reviewed to determine

whether the agency exceeded its statutory powers.”

Chaney, 470 U.S. at 832. Chaney, like AAADC, was a

case of unreviewable discretion. The FDA's decision not

to take enforcement action to prevent the use of lethal

injection, as requested by death row inmates, was not

subject to judicial review under the Administrative

Procedure Act. Chaney and AAADC both clarify the

* See, e.g., 8 U.S.C. § 1252(a 2A) (any claim arising from the

inspection of aliens arriving in the United States); 8 U.S.C.

§ 1252(aX2XB) (denials of discretionary relief authorized by

various statutory provisions); 8 U.S.C. § 1252(a2XC) (final

removal orders against criminal aliens).

30

contours of executive discretion, Here, because

Congress has enacted an intricate statutory scheme

(Section IIIA) and DAPA openly disregards and

conflicts with that scheme (Section IIIB), there is

assuredly a “meaningful standard” for review.

The Fifth Circuit dissent countered the majority

with an assertion that “[djeferred action

decisions. . . are quintessential exercises of

prosecutorial discretion” and therefore “presumptively

unreviewable.” Texas, 809 F.3d at 189, 196 (King, J.,

dissenting). Sometimes this is true, but not

always—and certainly not here. Justice Brennan's

concurring opinion in Chaney provides a succinct

summary that highlights the outer limits of agency

discretion and illuminates the difference between

unreviewable cases and circumstances where review is

appropriate:

It may be presumed that Congress does not

intend administrative agencies, agents of

Congress’ own creation, to ignore clear

jurisdictional, regulatory, statutory, or

constitutional commands .. . . Individual,

isolated nonenforcement decisions, however,

must be made by hundreds of agencies each day.

Chaney, 470 U.S. at 839 (Brennan, J., concurring)

(emphasis added). DAPA transgresses both statutory

and constitutional commands. As Chaney explained,

“Congress did not set [the Department of Homeland

Security] free to disregard legislative direction in the

statutory scheme that the agency administers.” /d. at

833.

31

CONCLUSION

This Court should affirm the decision of the Fifth

Circuit.

Respectfully submitted,

James L. Hirsen

Counsel of Record

505 S. Villa Real Drive, Suite 208

Anaheim Hills, CA 92807

(714) 283-8880

hirsen@earthlink.net

Deborah J. Dewart

620 E. Sabiston Drive

Swansboro, NC 28584-9674

(910) 326-4554

debcpalaw@earthlink.net

Counsel for Amicus Curiae