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,

v.

STATE OF TEXAS, et ai.,

Respondents.

+

On Writ Of Certiorari To The

United States Court Of

For The Fifth Circuit

S

AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

7

STEVEN J. LECHNER

Counsel of Record

GINA M. CANNAN

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

lechner@mountainstateslegal!.com

gina@mountainstateslegal.com

Counsel for Amicus Curiae

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM

la.

1b.

i

QUESTIONS PRESENTED

Whether at least one plaintiff State has a per-

sonal stake in this controversy sufficient for

standing, when record evidence confirms that

DAPA will cause States to incur millions of dol-

lars in injuries.

Whether DAPA ~— which affirmatively grants

lawful presence and work-authorization eligibil-

ity — is reviewable agency action under the APA.

Whether DAPA violates immigration and related

benefits statutes, when Congress has created de-

tailed criteria for which aliens may be lawfully

present, work, and receive benefits in this coun-

try.

Whether DAPA - one of the largest changes in

immigration policy in our Nation’s history — is

subject to the APA’s notice-and-comment require-

ment.

Whether DAPA violates the Take Care Clause of

the Constitution, Art. II, § 3.

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........0..............ccccceees i

TABLE OF AUTHORITIES ....................00:::0c0000008 iv

IDENTITY AND INTEREST OF AMICUS CU-

in sccetenandenenionanecowesoncsecoees l

STATEMENT OF THE CASE.............................00. 2

SUMMARY OF ARGUMENT .....0... 4

EERE ES ES A a 5

I. DAPA VIOLATES THE TAKE CARE

ESE 5

A. The Take Care Clause Guards The Sep-

aration Of Powers.......................ccseeeeee 5

B. The Take Care Clause Imposes An Af-

firmative Duty On The President To

Faithfully Execute The Laws, And The

President Is Not Authorized To Sus-

pend Or Dispense With The Laws......... 8

The Take Care Clause Is Justiciable.... 18

D. DAPA Violates The Take Care Clause

Because It Conflicts With The Statu-

tory Scheme Enacted By Congress To

©

Address Immigration ..........................+ 23

Il. DAPAIS AGENCY ACTION SUBJECT TO

REVIEW UNDER THE APA........................ 26

A. Congress Intended The APA To Provide

Generous Judicial Review Of Agency

A PSISRN GEES elds tee oO 27

ill

TABLE OF CONTENTS -— Continued

Page

B. Neither Of The APA’s Narrow Excep-

tions To Judicial Review Apply ............. 29

1. No statute precludes judicial review

EE seen teinnintinnsinitiedeabauciiccininccapmi 30

2. DAPA is not an action committed to

agency discretion by law.................. 33

RIE ebiticcacnimsaicequsiveemncensnnnninniabteinisianaiveiiantii 38

iv

TABLE OF AUTHORITIES

Page

CASES

Abbott Laboratories v. Gardner, 387 U.S. 136

iia icasstsecaintnipamnanconsinian antenitunidiieitapaiiiasnnniiatinagsh 24, 30

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.

REE eS a en rene Pea nlite 36, 37

Alden v. Maine, 527 U.S. 706 (1999).............cccccceceeee 14

Baker v. Carr, 369 U.S. 186 (1962) ................c..ceeeeeeee 18

Bowen v. Michigan Academy of Family Physi-

cians, 476 U.S. 667 (1986) .............0c...cccessescereee 30, 31

Bowsher v. Synar, 478 U.S. 714 (1986)...............00000 21

Buckley v. Valeo, 424 U.S. 1 (1976) ..............c.ccc000 6, 20

Califano v. Sanders, 430 U.S. 99 (1977) ............0000000 29

Citizens to Preserve Overland Park, Inc. v.

Volpe, 401 U.S. 402 (1971) .................ccccccccereeees 29, 37

City of Arlington v. F-C.C., _. U.S. __, 133

REIS. ES SOIREE aR Rares oer eer Role ne ae 18

Clinton v. New York, 524 U.S. 417 (1998).................... 1

Crowley Caribbean Transport, Inc. v. Pefia, 37

oy tof [a eee 36

District of Columbia v. Heller, 554 U.S. 570

RIE PSA RE Ese SCR DOS oO 14

Heckler v. Chaney, 470 U.S. 821 (1985) ....29, 33, 35, 36

Herr v. U.S. Forest Serv., 803 F.3d 809 (6th Cir.

Vv

TABLE OF AUTHORITIES ~— Continued

Page

Kendall v. United States, 37 U.S. (12 Pet.) 524

Ri cntsisinignaiiilasndeeticsadaddiiatabipamsiiiaiebiniiain 12, 13, 18, 22

Lear Siegler, Inc., Energy Products Div. v.

Lehman, 842 F.2d 1102 (9th Cir. 1988), rev'd

in part on rehearing en banc, 893 F.3d 205

EG ST cienictannsiitscncinndteneemncicbapnitienenscianaetapininonints 12

Lincoln v. Virgil, 508 U.S. 182 (19938)...............+.. 33, 34

Marbury v. Madison, 5 U.S. (1 Cranch) 137

EES BEET nena Penmaes Sse me en 5, 18, 21

McAlpine v. United States, 112 F.3d 1429 (10th

SR, ete icnceieicnedidacaladesteniaiiileiiiataiaeiniciaisaierttial aeteiiisal 33, 37

Metropolitan Washington Airports Auth. uv.

Citizens for the Abatement of Aircraft Noise,

ee EB ae 2

Mistretta v. United States, 488 U.S. 361 (1989).......... 7

Mount Royal Joint Venture v. Kempthorne, 477

og, eee 2

Mountain States Legal Found. v. Nat. Wildlife

Fed’n, 497 U.S. 1020 (1990)...........cccccccccceeeeeeeeeeeeesees 2

Myers v. United States, 272 U.S. 52 (1926) ................. 6

Nat'l Treasury Employees Union v. Nixon, 492

Pe GR CAS Bi cteseccctecincceseinenanmecnattonsvents 12

Northwest Mining Ass’n v. Babbitt, 5 F. Supp. 2d

ES Be istccsrtcsinansesniecsntctecenaliinnnetihiiebiainveninia 2

Powell v. McCormack, 395 U.S. 486 (1969)............... 19

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

I I el 32

vi

TABLE OF AUTHORITIES ~— Continued

Page

Riverkeeper, Inc. v. Collins, 359 F.3d 156 (2d

Be SUT iciestehicasueinsidconinassiipiieiabcapanciaittainesiainiviasininidisbenanincinie 36

Sackett v. EPA, 132 S. Ct. 13867 (2012) .......0.000..0...0.2. 30

Stupak-Thrall v. Glickman, 988 F. Supp. 1055

NE SEIEI) SITET acietiansiniiinintpshenndscousiidiinsiameniaipeacinenenucsin 2

TVA v. Hill, 437 U.S. 153 (1978) ..............ccccccccceseeeeeees 5

United States v. Nixon, 418 U.S. 683 (1974) ............. 19

Webster v. Doe, 486 U.S. 592 (1988) .............cccececeeeeeee 33

Youngstown Sheet & Tube Co. v. Sawyer, 343

SE cinecnnnacaninnsstvedsinnenintsasstediesanninnds passim

Zivotofsky ex rel. Zivotofsky v. Kerry, __ U.S.

eee Es es ET EDD cicritncsorscmpesevecsincwitnnnsienes 20

CONSTITUTIONAL PROVISIONS

NI CI I canis asiaind ceecrisatitinlsienapiadielinnennenl 5

Ss ao abeedeaal 5

I 9, 10, 16

nO, OR laa passim

STATUTES

Administrative Procedure Act,

OD le ee OI iccectptesescnnscnnepnerstensnscecines passim

Be EE iternirmiinneevedniotensssenniaciuniastil 29, 30

a ncrniesKenddnatienisennsennpinbsienneniite 29, 33

ee © PIED cvcrecceenisensntacentencstnnivnnmbienieuneseed 26

vii

TABLE OF AUTHORITIES — Continued

Page

5 U.S.C. § TOG(2MC) ....c-ecccercesseersereereseecnnstnnsnenaneeens 26

Immigration and Nationality Act,

& U.S.C. § 1101 et 8€q. ..----..cceereeererenenerereennnrees passim

B U.S.C. § 1125 .....c.cccceccseeeresseresersssnsssnrecsennenners 21, 37

B U.S.C. § 115 1b 2ZMAN A) ....cereeereeerenennrenrenneesnnennees 24

Violence Against Women Act,

8 U.S.C. § 1154(a LD )G) ID) ...2---cecereererrererrnenneees 24

8 U.S.C. § 1154(a) LD) GMTV) «...-0-eccerereereereeeerennenes 24

B U.S.C. § 1154(a)( 2) ....-cceecceeereerecereenererssnnennannnsnnens 24

B U.S.C. § 1182.......sccccccceresssecsesersernsnssnesrnsenssnnaners 21, 37

8 U.S.C. § 1182(aX OMB) GID «....----ccercererrreererenneenernees 24

B U.S.C. § 1201(a).......--cceeerseeersensensrrersrnnanscnnansesannnes 24

B U.S.C. § 1225 .....cscsesecrsesserensssessnssssssnnsnserssnsensnnenses 24

B ULG.C. § 1227 .....cecccesssrseeresessreseresrnsnsensssnresesensens 21, 37

B U.S.C. § 12271). ..ccccecccereerseresersensnssnrsnrarsensnnneanenss 24

B U.S.C. § 1227(d)3B)....-cc-ccescereeeerersersnsensesnrsnennnanennnens 24

BUS.C. § 12292 .....csecccsceereeseessreserserssneesnnsnnsannens 21, 37

B U.S.C. § 1252(g) .....--cccecceeeeceeereeneeneeeennnes 30, 31, 32, 33

BULS.C. § 1255 ......ceccsccssssressesssensersensnnsnacsssersrsenasnessers 24

Pub. L. No. 107-56, §423(b), 115 Stat. 272

(2001) .....ccesssererssscsossrscessrsnesssssscsesesscscsssasessrsnsnenaares® 25

Pub. L. No. 108-136, § 1703(c)-(d), 117 Stat.

1392, 1694-95 (2O003).........0--ecerereererennenrsnennannennnneees 25

Viil

TABLE OF AUTHORITIES ~— Continued

Page

RULES

Supreme Court Rule 37.3............cccccccccsccssscccssssesssscesees 1

Supreme Court Rule 37.3(a)...............:ccccseecceeeeeseeeeeees 1

LEGISLATIVE HISTORY

H.R. REP. NO. 79-1980 (1946)..............cccccccceeeeeeeeeeeeeee 28

S. Doc. NO. 79-248 (1946) ...............cccccccssesesereeeees 27, 28

Bp re ee Hy WRI ccctrrncicatiednseetsscinaddncemmuaninidemsaansing 29

OTHER AUTHORITIES

1 THE RECORDS OF THE FEDERAL CONVENTION OF

1787 (Max Farrand ed., 1966) .................c00c0000 13, 22

1 WILLIAM BLACKSTONE, COMMENTARIES, Ch. 2

Uhh hidandanaanieibieatipesiieniaainsideidesmiammnnneiniekiceemmunests 14

Abner S. Greene, Checks and Balances in an

Era of Presidential Lawmaking, 6 U. CHI. L.

REE PS SS REE eo OT 6, 7

Arthur S. Miller, The President and Faithful

Execution of the Laws, 40 VAND. L. REv. 389

SESE AILS DAE Sea ae arene ne Pee Ae ered 14, 15

Cass R. Sunstein, An Eighteenth Century Pres-

idency in a Twenty-First Century World, 48

es Sl Cee Sei cicccdnnssenionisientaininisnseteiientiaseces 20

ix

TABLE OF AUTHORITIES — Continued

Page

Christopher N. May, Presidential Defiance of

“Unconstitutional” Laws: Reviving the Royal

Prerogative, 21 Hastincs Const. L. Q. 865

I iccesnnckadatisiensenmuvcaeiatisasinianieancadiemeuresniin 11, 13, 17, 22

Elisha Barron, The Development, Relief, and

Education for Alien Minors (DREAM) Act, 48

HARV. J. ON LEGIS. 623 (2011) ............ccceeeeeeeeeees 12, 25

Jeffrey A. Love & Arpit K. Gark, Presidential

Inaction and the Separation of Powers, 112

BEE, Ta, Bere Be CIN ocaccceccccccseccsecenscnscence 7, 8,17

Jonathan R. Siegel, A Theory of Justiciability,

ee ils Bek ee Fie I Untainiisieictcdadenisseneninsennsecsneies 18

Josh Blackman, The Constitutionality of DAPA

Part II: Faithfully Executing the Law, 19

Tex. Rev. L. & Pou. 213 (2015)............. 15, 16, 23, 26

Kevin M. Stack, The Statutory President, 90

RR EER PERRO ES ED Pea eee te 23

L. Jaffe, JUDICIAL CONTROL OF ADMINISTRATIVE

I EE viiienitinctdesentdsennisncssmnieavedticveninndis 35

Lawrence Lessig & Cass R. Sunstein, The Pres-

ident and the Administration, 94 CoLuM. L.

i: el ceaasanumnaennens 10, 35

Martin S. Flaherty, The Most Dangerous

Branch, 105 YALE L. J. 1725 (1996) ............ccccceeeee 17

x

TABLE OF AUTHORITIES - Continued

Morton Rosenberg, Congress’s Prerogative over

Agencies and Agency Decisionmakers: The

Rise and Demise of the Reagan Administra-

tion's Theory of the Unitary Executive, 57

GEO. WASH. L. REV. 627 (1989) ........cccccccccccces-.

THE FEDERALIST No. 47 (James Madison)

(Clinton Rossiter ed., 2008) ............cccc0000...-.......

THE FEDERALIST No. 48 (James Madison)

(Clinton Rossiter ed., 2003)...............................

THE FEDERALIST Nos. 69-77 (Alexander Hamil-

ton) (Clinton Rossiter ed., 2003)........................

THE FEDERALIST No. 69 (Alexander Hamilton)

(Clinton Rossiter ed., 2003) ...............0000...........

THE FEDERALIST No. 70 (Alexander Hamilton)

(Clinton Rossiter ed., 2003) .............00000............

THE FEDERALIST No. 77 (Alexander Hamilton)

(Clinton Rossiter ed., 2003) ..............00..............

Robert J. Delahunty & John C. Yoo, Dream On:

The Obama Administration’s Nonenforcement

of Immigration Laws, the DREAM Act, and

the Take Care Clause, 91 Tex. L. REV. 781

San esi cadeiisidecsintnbsiddinlahsnasenibielinnatiotanepaeiinseaneaies

Robert J. Reinstein, The Limits of Executive

Power, 59 AM. U. L. REV. 259 (2009) ..........00000..

Saikrishna Prakash, The Essential Meaning of

Executive Power, 2003 U. ILL. L. Rev. 701

Fae edt iadinnnsevissccdessnnnsselontnitsaniédentnanlabhsenateshuiaanesen

Page

xi

TABLE OF AUTHORITIES — Continued

Page

Steven G. Calabresi et al., State Bills of Rights

in 1787 and 1791: What Individual Rights

Are Really Deeply Rooted in American Histo-

ry and Tradition?, 85 S. Cau. L. Rev. 1451

GRISEA A ARTES IS CM Se ae RUE T ehAT ia See 14

Thomas Jefferson, NOTES ON THE STATE OF

VIRGINIA 123-24 (Lilly & Wait ed. 1832)................. 20

Thomas Lloyd, Notes of the Pennsylvania Raii-

fication Convention (Dec. 1, 1787)...............0.0..000005 15

Zachary Price, Enforcement Discretion and Ex-

ecutive Duty, 67 VAND. L. Rev. 671

SiN aiteishinhinietianecesnpnasaaeniientanbididoenenndnn 7, 13, 26, 34, 37

1

AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

Pursuant to Supreme Court Rule 37.3, Mountain

States Legal Foundation (“MSLF”) respectfully sub-

mits this amicus curiae brief, on behalf of itself and

its members, in support of the respondent states and

their representatives (collectively, “States”).'

*

IDENTITY AND INTEREST

OF AMICUS CURIAE

MSLIF is a nonprofit, public-interest legal foun-

dation organized under the laws of the State of Colo-

rado. MSLF is dedicated to bringing before the courts

those issues vital to the defense and preservation of

individual liberties, the right to own and use prop-

erty, the free enterprise system, and limited and ethi-

cal government. MSLF believes separation of powers

is an essential feature of the American constitutional

system. The Take Care Clause guards the doctrine

of separation of powers, which in turn protects in-

dividual liberty. Clinton v. New York, 524 U.S. 417,

450 (1998) (Kennedy, J., concurring) (“Separation of

' Pursuant to Supreme Court Rule 37.3(a), all parties con-

sent to the filing of this amicus curiae brief. No counsel for a

party authored this brief in whole or in part, and no person or

entity, other than MSLF, its members, or its counsel, made a

monetary contribution specifically for the preparation or sub-

mission of this brief.

2

powers was designed to implement a fundamental in-

sight: Concentration of power in the hands of a single

branch is a threat to liberty.”); Metropolitan Washing-

ton Airports Auth. v. Citizens for the Abatement of

Aircraft Noise, Inc., 501 U.S. 252, 272 (1991) (“The ul-

timate purpose of . . . separation of powers is to pro-

tect the liberty and security of the governed.”).

Since its creation in 1977, MSLF has been actively

involved in litigation regarding the proper interpre-

tation and implementation of the Administrative Pro-

cedure Act (“APA”), 5 U.S.C. §551 et seg. E.g.,

Mountain States Legal Found. v. Nat. Wildlife Fed’n,

497 U.S. 1020 (1990). In fact, the majority of the lit-

igation in which MSLF attorneys provide representa-

tion is brought under the generous judicial review

provisions of the APA. E.g., Herr v. U.S. Forest Serv.,

803 F.3d 809 (6th Cir. 2015); Mount Royal Joint

Venture v. Kempthorne, 477 F.3d 745 (D.C. Cir. 2007);

Northwest Mining Ass’n v. Babbitt, 5 F. Supp. 2d 9

(D.D.C. 1998); Stupak-Thrall v. Glickman, 988 F. Supp.

1055 (W.D. Mich. 1997). If the federal government’s

crabbed interpretation of the APA is adopted in this

case, a considerable amount of agency action will be

insulated from judicial review.

°

STATEMENT OF THE CASE

On November 20, 2014, Jeh Johnson, Secre-

tary of the Department of Homeland Security, issued

an order to Citizenship and Immigration Services,

3

Immigration and Customs Enforcement, and Customs

and Border Protection (collectively, “Petitioners”), an-

nouncing a new program, entitled “Deferred Action

for Parents of Americans and Lawful Permanent

Residents” (“DAPA”), see Petitioners’ Appendix (“Pet.

App.”) at 41la-419a. DAPA would utilize deferred ac-

tion status to stay deportation proceedings and award

certain benefits to four million of the eleven million

individuals currently residing illegally in the United

States. Pet. App. 5a-6a. The Secretary’s order set

forth a list of specific criteria illegal alien applicants

must meet in order to be eligible for deferred action.

Pet. App. 5a-6a, 416a-417a.

Twenty-six states and/or their representatives

challenged DAPA, alleging that it violates the APA,

conflicts with existing immigration statutes, and vio-

lates the Take Care Clause. Joint Appendix (“Joint

App.”) at 11. The States moved for a preliminary in-

junction, seeking to halt Petitioners from beginning

to process applications for deferred action »ursuant to

DAPA, and the district court granted the States’ mo-

tion. Pet. App. 407a. On May 26, 2015, the Fifth Cir-

cuit issued an opinion denying Petitioners’ motion to

stay the preliminary injunction. Pet. App. 156a. On

November 9, 2015, the Fifth Circuit affirmed the

district court’s grant of a preliminary injunction. Pet.

App. la. Petitioners timely filed a petition for writ of

certiorari, and this Court granted the petition.

¢

4

SUMMARY OF ARGUMENT

In drafting the U.S. Constitution, the Framers’

principal concern was preventing the concentration of

power in one branch of government. To avoid the

concentration of power, the Framers drafted Article II

to limit the powers of the Executive Branch to spe-

cific, enumerated powers. The Framers included the

Take Care Clause, U.S. Const. art. II, § 3, to impose

an affirmative, justiciable duty on the President to

enforce the laws passed by Congress. By sua sponte

suspending the application of the immigration laws

for one-third of the illegal aliens currently present in

the United States, DAPA constitutes a violation of the

President's duty to enforce the laws under the Take

Care Clause.

DAPA is also reviewable agency action under the

APA. Petitioners have failed to overcome the APA's

presumption of reviewability because they have not

demonstrated that one of the APA’s two very narrow

exceptions to judicial review may apply. Judicial re-

view is not precluded by statute because the Immi-

gration and Nationality Act (“INA”), 8 U.S.C. § 1101

et seq., only precludes judicial review of individual

challenges to deportation proceedings. Furthermore,

Petitioners have no discretion to abdicate their statu-

tory responsibilities. Therefore, DAPA is subject to

judicial review under the APA.

S

5

ARGUMENT

I. DAPAVIOLATES THE TAKE CARE CLAUSE.

A. The Take Care Clause Guards The Sep-

aration Of Powers.

Under Article I of the U.S. Constitution, it is the

exclusive province of Congress not only to formulate

legislative policies and mandate programs and pro-

jects, but also to establish their relative priority for

the Nation. TVA v. Hill, 437 U.S. 153, 194 (1978);

U.S. Const. art. I. Article II vests “(t]he executive

Power ... in a President of the United States of

America,” who must “take Care that the Laws be

faithfully executed.” U.S. Const. art. II, § 1; id., § 3.

And, under Article III, “(i]t is emphatically the prov-

ince and duty of the judicial department to say what

the law is.” Marbury v. Madison, 5 U.S. (1 Cranch)

137, 177 (1803). Petitioners argue that the Executive

Branch has the power to formulate and implement

DAPA without authorization from Congress. Pet. Br.

at 36-48. At the same time, Petitioners argue that

there is no cause of action under the Take Care

Clause because the duty to faithfully execute the laws

is a political one “not subject to judicial direction.”

Pet. Br. at 73-74. Thus, Petitioners seek to usurp both

the legislative and judicial branches in enacting and

implementing DAPA.

Petitioners’ view of the Executive Branch’s pow-

ers runs headlong into the separation of powers

doctrine. The Framers intentionally “built into the

tripartite Federal Government ... a self-executing

6

safeguard against the encroachment or aggrandize-

ment of one branch at the expense of the other.”

Buckley v. Valeo, 424 U.S. 1, 122 (1976). As James

Madison warned, “[tJhe accumulation of all powers,

legislative, executive, and judiciary, in the same

hands, whether of one, a few, or many, and whether

hereditary, self|-Jappointed, or elective, may justly be

pronounced the very definition of tyranny.” THE

FEDERALIST No. 47, at 298 (James Madison) (Clinton

Rossiter ed., 2003).° At the Constitutional Conven-

tion, the Framers adopted the separation of powers

doctrine “‘not to promote efficiency[,] but to preclude

the exercise of arbitrary power.’” Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 629-30 (1952)

(Douglas, J., concurring) (““‘The purpose was not to

avoid friction, but, by means of the inevitable friction

incident to the distribution of the governmental

powers among three departments, *» save the people

from autocracy.’” (quoting Myers v. United States, 272

U.S. 52, 293 (1926) (Brandeis, J., dissenting))). How-

ever inconvenient our process of adopting and imple-

menting laws may be, it is essential to maintain a

balance of power between the three branches. /.N.S.

* Madison viewed the executive power as necessarily “re-

strained within a narrower compass” and “more simple in its na-

ture” than the legislative power. THE FEDERALIST No. 48, at 307

(James Madison) (Clinton Rossiter ed., 2003). Madison’s view

was “central to the federal government as devised in 1787.”

Abner S. Greene, Checks and Balances in an Era of Presidential

Lawmaking, 6 U. Cui. L. Rev. 123, 123 (1994).

* All Federalist citations herein reference this edition.

7

v. Chadha, 462 U.S. 919, 958 (1983) (Discussing the

separation of powers and concluding, “[t]he choices

we discern as having been made in the Constitutional

Convention impose burdens on governmental pro-

cesses that often seem clumsy, inefficient, even un-

workable, but those hard choices were consciously

made by men who had lived under a form of govern-

ment that permitted arbitrary governmental acts to

go unchecked.”).

The Take Care Clause was expressly included by

the Framers to avoid giving the President the power

to make laws. Youngstown, 343 U.S. at 633 (Douglas,

J., concurring); Greene, Checks and Balances, 6 U.

Cui. L. Rev. at 144 (“In particular, the framers clearly

understood that the executive would not exercise

legislative powers.”); Zachary Price, Enforcement

Discretion and Executive Duty, 67 VAND. L. REV. 671,

693 (2014) (“The evolution of the Take Care Clause

from a power-granting to a duty-imposing provision

underscores that the Framers intended Congress to

have policymaking supremacy.”). Indeed, the entire

constitutional structure revolves around a distinction

between Congress’s authority to make the laws and

the President’s authority to enforce them. Mistretta v.

United States, 488 U.S. 361, 380 (1989) (The “separa-

tion of governmental powers ... [is] essential to the

preservation of liberty.”); Jeffrey A. Love & Arpit K.

Gark, Presidential Inaction and the Separation of

Powers, 112 Micu. L. Rev. 1195, 1203 (2014) (“(TJhe

system of checks and balances that the Framers en-

visioned should prevent the president from making

8

policy unilaterally, whether through action or inac-

tion.”). This separation of powers must be interpreted

and applied functionally to prevent “a tyrannical con-

centration of all the powers of government in the

same hands.” THE FEDERALIST No. 48, at 310 (James

Madison).

Contrary to these venerable principles, Peti-

tioners argue that they may enact a legislative policy

unilaterally granting lawful status and associated

benefits to four million out of the eleven million

illegal aliens residing in the United States. Further,

Petitioners urge that they may avoid judicial review

of such legislative policy as a function of agency dis-

cretion. Petitioners’ argument cannot be reconciled

with the Constitution’s separation of powers frame-

work. Under the Framers’ view, “the ability of a

president to dictate national policy unilaterally is

precisely what the separation of powers was meant to

prevent.” Love & Gark, Presidential Inaction, 112

Micu. L. REv. at 1204.

B. The Take Care Clause Imposes An Af-

firmative Duty On The President To

Faithfully Execute The Laws, And The

President Is Not Authorized To Suspend

Or Dispense With The Laws.

Article Il was structured to provide limited,

enumerated powers to the executive. Youngstown, 343

U.S. at 587 (“It is clear that if the President had

authority to issue the order he did, it must be found

9

in some provisions of the Constitution.”). Article II,

§ 2 sets forth the limited powers granted to the execu-

tive — the power of Commander in Chief, the power to

grant reprieves and pardons, the power to make

treaties, the power to make appointments, and the

power to fill vacancies during the recess of the Sen-

ate. U.S. Const. art. II, § 2. In contrast, Article II, § 3

sets forth the affirmative duties of the executive — the

duties to report to Congress, to receive ambassadors

and other public ministers, to commission officers of

the United States, and to “take care that the laws be

faithfully executed[.]” Jd. § 3. In discussing § 3, Alex-

ander Hamilton — who himself argued for a “vigorous”

executive,’ see THE FEDERALIST No. 70, at 421 — ex-

plained that, beside the appointment power:

The only remaining powers of the Executive

are comprehended in giving information to

Congress of the state of the Union; in recom-

mending to their consideration such measures

as he shall judge expedient; in convening them,

or either branch, upon extraordinary occa-

sions; in adjourning them when they cannot

themselves agree upon the time of adjournment;

* Article II constitutes a balance between the Framers’ de-

sire for a “vigorous” executive in order to avoid “a feeble execu-

tion of the government” and the Framers’ desire to narrowly

define the scope of the executive power to the duties enumerated

therein. THE FEDERALIST No. 70, at 422 (Alexander Hamilton);

THE FEDERALIST No. 69 (Alexander Hamilton) (seeking to ad-

dress concerns that the role of the executive would be akin to a

monarchy by setting forth the narrow scope of the president's

powers).

10

in receiving ambassadors and other public

ministers; in faithfully executing the laws;

and in commissioning all the officers of the

United States.

THE FEDERALIST No. 77, at 462 (Alexander Hamilton);

THE FEDERALIST Nos. 69-77 (Alexander Hamilton)

(discussing each of the President’s enumerated pow-

ers in turn and concluding that such powers consti-

tuted the sum total of the structure and powers of the

executive department); Youngstown, 343 U.S. at 640-

41 (Jackson, J., concurring) (“The President does not

enjoy unmentioned powers... . [If he did,] it is dif-

ficult to see why the forefathers bothered to add sev-

eral specific items, including some trifling ones.”).

The location of the Take Care Clause in § 3 of Article

II cements its status “as a duty rather than a power”:

[T)here is something quite odd about the

structure of the Take Care Clause if it was

conceived by the framers as the source of

presidential power over all that we now con-

sider administration . . . rather than appear-

ing in [§] 2 of Article II, where the balance of

the President’s basic powers are articulated,

the Take Care Clause appears in [§) 3....

Most of these [§ 3 duties] are expressed not

as something the President may choose to do

(as is the case where he has the “power” to

undertake actions), but as something that he

“shall” do.

Lawrence Lessig & Cass R. Sunstein, The President

and the Administration, 94 CoL_um. L. Rev. 1, 62

(1994).

1]

By limiting the President’s powers to those

enumerated in Article II and including the affirma-

tive mandate of the Take Care Clause, the Framers

sought to avoid the historical tradition of English

monarchs who often claimed the unilateral power to

suspend duly enacted laws. Robert J. Delahunty &

John C. Yoo, Dream On: The Obama Administration’s

Nonenforcement of Immigration Laws, the DREAM

Act, and the Take Care Clause, 91 Tex. L. Rev. 781,

804 (2013); Price, Enforcement Discretion, 67 VAND. L.

Rev. at 675 (arguing that the Take Care Clause

places limits on the President’s discretion not to en-

force the laws because “American Presidents, unlike

English kings, lack authority to suspend statutes or

grant dispensations that prospectively excuse legal

violations.”); Saikrishna Prakash, The Essential

Meaning of Executive Power, 2003 U. ILL. L. Rev. 701,

726 n.113 (2003) (“[The Take Care Clause] supposedly

was the Constitution’s analogue to the English and

state constitution prohibitions on dispensing and sus-

pending the laws.”).° Consistent with the Framers’

intent, this Court has declined to interpret the Take

Care Clause as a grant of authority. See Youngstown,

* When England adopted a Bill of Rights in 1689, it abdi-

cated the power of the monarch to suspend laws without the

consent of Parliament, and “(t]he suspending power which kings

had employed for nearly 400 years to avoid implementing the

law was never again exercised by the English crown.” Christopher

N. May, Presidential Defiance of “Unconstitutional” Laws: Re-

viving the Royal Prerogative, 21 Hastincs Const. L. Q. 865, 872

(1994).

12

343 U.S. at 587 (rejecting President’s argument that

the Take Care Clause implies a grant of presidential

power). Instead, this Court and the circuit courts

have held that the Take Care Clause imposes an af-

firmative obligation to enforce the laws, and the Pres-

ident is not at liberty to dispense with the laws that

Congress has passed. Kendall v. United States, 37

U.S. (12 Pet.) 524, 612-13 (1838) (“To contend that the

obligation imposed on the President to see the laws

faithfully executed, implies a power to forbid their

exevution, is a aovel construction of the constitution,

and entirely inadmissible.”); Nat'l Treasury Employ-

ees Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974)

(“That constitutional duty [to take care that the laws

be faithfully executed] does not permit the President

to refrain from executing laws duly enacted by the

Congress... .”). If the President dislikes a law, his

only recourse is to exercise the veto power or to try to

persuade Congress to change the law.’ See Lear

Siegler, Inc., Energy Products Div. v. Lehman, 842

F.2d 1102, 1124 (9th Cir. 1988) (“The only constitu-

tionally prescribed means for the President to effec-

tuate his objections to a bill is to veto it and to state

* In the case at bar, President Obama repeatedly expressed

his desire for Congress to pass legislation functionally equiva-

lent to DAPA, and Congress declined to do so. See generally

Elisha Barron, The Development, Relief, and Education for Alien

Minors (DREAM) Act, 48 Harv. J. ON LEGIS. 623, 631-38 (2011)

(discussing Obama’s advocacy and multiple failed attempts to

pass the DREAM Act). Indeed, when discussing DAPA, Obama

cited to Congress's failure to pass legislation as the impetus for

his executive action. Joint App. 780-81.

13

those objections upon returning the bill to Con-

gress. ...”), rev'd in part on rehearing en banc, 893

F.3d 205 (9th Cir. 1989).

Allowing the President to dispense with or sus-

pend certain laws, even partially, would render the

President’s constitutionally limited means of dis-

agreeing with Congress a nullity. Kendall, 38 U.S.

(12 Pet.) at 525 (“[V]esting in the President a dispens-

ing power ... would be clothing the President with

a power to control the legislation of congress, and

paralyze the administration of justice.”); Robert J.

Reinstein, The Limits of Executive Power, 59 Am. U.

L. REv. 259, 278-80 (2009) (“The prohibition on the

suspending and dispensing powers was encoded in

Article II’s requirement that the President must ‘take

Care that the Laws be faithfully executed.’ Thus,

these rejected royal prerogatives were denied to the

President.”). “A critical piece” of the legacy of the

Revolution “was the hard won principle that the

Executive did not possess the authority to suspend a

law.” May, Presidential Defiance, 21 HASTINGS CONST.

L. Q. at 872; Price, Enforcement Discretion, 67 VAND.

L. Rev. at 693 (“At the Constitutional Convention,

the delegates unanimously rejected a proposal to

grant the President suspending authority.” (citing 1

THE RECORDS OF THE FEDERAL CONVENTION OF 1787,

at 103-04 (Max Farrand ed., 1966))). Indeed, by the

time the Constitutional Convention convened in 1787,

“six states had constitutional clauses restricting the

power to suspend or dispense with the laws” and the

Framers looked to those states’ constitutions for

14

guidance. Steven G. Calabresi et al., State Bills of

Rights in 1787 and 1791: What Individual Rights Are

Really Deeply Rooted in American History and Tradi-

tion?, 85 S. CAL. L. Rev. 1451, 1534 (2012). In draft-

ing Article II, the Framers also emulated England's

Bill of Rights:

A[n] act of parliament, thus made, is the ex-

ercise of the highest authority that this

kingdom acknowledges upon earth... . And

it cannot be altered, amended, dispensed

with, suspended, or repealed. . . . It is true it

was formerly held, that the king might in

many cases dispense with penal statutes, but

now ... the suspending or dispensing with

laws by regal authority, without consent of

parliament, is illegal.

1 WILLIAM BLACKSTONE, COMMENTARIES, Ch. 2 at 185

(1765).’

From a practical standpoint, the Take Care

Clause must be read to impose an affirmative duty on

the President to execute the laws. Without such an

affirmative duty, the laws passed by Congress would

be dead letters that the President could choose to en-

force or ignore depending on political whims and pref-

erences. Arthur S. Miller, The President and Faithful

" Blackstone's Commentaries was an oft-cited resource by

the Framers and “ ‘constituted the preeminent authority on Eng-

lish law for the founding generation. . . .’” District of Columbia

v. Heller, 554 U.S. 570, 593-94 (2008) (quoting Alden v. Maine,

527 U.S. 706, 715 (1999)).

15

Execution of the Laws, 40 VAND. L. Rev. 389, 398

(1987) (“There is no way, at least no known way, that

either Congress or the judiciary can oversee the

implementation of the details of the statutes... .”

(emphasis in original)). This effect would be manifest-

ly contrary to the Framers’ intent. See Thomas Lloyd,

Notes of the Pennsylvania Ratification Convention

(Dec. 1, 1787), available at http://consource.org/document/

thomas-lloyds-notes-of-the-pennsylvania-ratification-

convention-1787-12-1 (“I would not have the legisla-

ture sit to make laws, which cannot be executed. It is

not meant here that the laws shall be a dead letter; it

is meant, that they shall be carefully and duly con-

sidered, before they are enacted; and that then they

shall be honestly and faithfully executed.” (statement

of James Wilson)). As one scholar has phrased it, “[a|

literal reading of the ‘take care’ clause confirms the

President’s duty to ensure that officials obey Con-

gress’s instructions. . . .” Morton Rosenberg, Congress's

Prerogative over Agencies and Agency Decision-

makers: The Rise and Demise of the Reagan Admin-

istration’s Theory of the Unitary Executive, 57 Gro.

Wash. L. Rev. 627, 650-51 (1989); see also Josh Black-

man, The Constitutionality of DAPA Part II: Faith-

fully Executing the Law, 19 Tex. Rev. L. & POL. 213,

220-21 (2015) (“The Constitution does not simply vest

the President with powers concerning his own office,

but imposes a duty on the President to execute the

laws of Congress with those powers.” (emphasis in

original)); Miller, The President and Faithful Execu-

tion of the Laws, 40 VAND. L. REV. at 398 (“Once Con-

gress enacts a statute, whether over a Presidential

16

veto or with his approval, the President is duty bound

to enforce it. ... To ‘execute’ a statute ... emphati-

cally does not mean to kill it.”). The Take Care Clause

is not a mere nicety that the President may disregard

at will.

Here, Petitioners argue that DAPA’s suspension

of the immigration laws for four million out of the

eleven million illegal aliens currently residing in the

United States is merely an exercise of prosecutorial

discretion akin to a nationality-based action to tem-

porarily delay deportation of a specific immigrant

population during an international crisis." Pet. Br.

at 49-50. But there are limits to the President’s pros-

ecutorial discretion. While prosecutorial discretion is

undisputedly necessary in individual enforcement

actions, that discretion does not extend to a unilateral

decision not to enforce the laws with regards to mil-

lions of illegal aliens.” Where a president “cho[o]sel[s]

*" The executive actions cited by Petitioners are more appro-

priately characterized as an exercise of the President’s enumer-

ated powers over foreign affairs. See U.S. Const. art. II, § 2.

DAPA applies equally to all nations, and is thus distinguishable

from past executive actions pausing specific deportation pros-

ecutions for humanitarian purposes. Blackman, The Consti-

tutionality of DAPA Part II, 19 Tex. Rev. L. & Pow. at 265-66

(“That DAPA applies equally to all nations makes it more dif-

ficult to square with the President's broad powers over foreign

affairs.”). Regardless, Petitioners “make! | no pretense of relying

on the President's constitutional authority over foreign affairs.”

Id. at 266.

* As the States demonstrate, the President did not stop at

suspending the INA and other immigration laws for one-third of

(Continued on following page)

17

inaction in order to promote his own policy goals at

the expense of Congress’s, [that] decision . . . raise[s]

separation-of-powers questions.” Love & Gark, Presi-

dential Inaction, 112 Micn. L. Rev. at 1220-22 (Argu-

ing that the executive “must not be allowed to thwart

the will of Congress by refusing to enforce the law.”).

Therefore, the Take Care Clause’s affirmative

mandate that the Executive Branch must execute the

laws requires the President to enforce those laws,

regardless of his opinion of them. See Martin S.

Flaherty, The Most Dangerous Branch, 105 YALE L. J.

1725, 1794 (1996) (“[The Take Care Clause] advances

the Founding goal of balance in mandating that the

executive remain faithful to something other than his

whim — presumably federal laws and the Constitu-

tion.”); May, Presidential Defiance, 21 HASTINGS

Const. L.Q. at 873-74 (“The duty to execute the laws

faithfully means that the President may not — whether

by revocation, suspension, dispensation, inaction, or

otherwise — fail to honor and enforce statutes to

which he or his predecessors have assented, or which

may have been enacted over his objection.”).

illegal aliens. DAPA creates alternative criteria for granting

illegal aliens lawful status and thereby affirmatively grants

legal benefits, including work authorization, to aliens who

satisfy those criteria. States’ Brief at 45-50.

18

C. The Take Care Clause Is Justiciable.

Because the Take Care Clause imposes an af-

firmative duty on the President to execute the laws, it

necessarily provides a right of action when the Presi-

dent shirks such duty. See Kendall, 37 U.S. (12 Pet.)

at 526 (“It is a sound principle, that in every well-

organized government the judicial[ ] powers should be

co-extensive with the legislative; so far, at least, as

they are to be enforced by judicial proceedings.”);

Jonathan R. Siegel, A Theory of Justiciability, 86 TEx.

L. REv. 73, 100 (2007) (“The suggestion that the Take

Care Clause ... limits the role of courts . .. is diffi-

cult. to accept in light of the commonplace judicial role

in ensuring ‘that the Laws be faithfully executed.’ The

Judiciary performs this task every day . . . it spends

much of its time controlling the manner in which the

Executive Branch executes the laws.”). It is the ex-

clusive province of this Court to interpret the laws

pursuant to its function of judicial review.” Baker v.

The nature of the ever-growing administrative state high-

lights the importance of judicial review to place some limits on

the Executive Branch. See City of Arlington v. FC.C, _US._,

133 S. Ct. 1863, 1877-78 (2013) (Roberts, C.J., dissenting) (“Al-

though modern administrative agencies fit most comfortably

within the Executive Branch, as a practical matter they exercise

legislative power ... executive power ... and judicial pow-

er... . The accumulation of these powers in the same hands is

not an occasional or isolated exception to the constitutional plan;

it is a central feature of modern American government.”). The

only way to discourage agency lawlessness is to provide a right

of action to those injured by an agency's unlawful actions.

Marbury, 5 U.S. (1 Cranch) at 163 (“The very essence of civil

(Continued on following page)

19

Carr, 369 U.S. 186, 211 (1962) (“Deciding whether a

matter has in any measure been committed by the

Constitution to another branch of government, or

whether the action of that branch exceeds whatever

authority has been committed, is itself a delicate exer-

cise in constitutional interpretation, and is a respon-

sibility of this Court as ultimate interpreter of the

Constitution.” (emphasis added)). And “{olur system

of government ‘requires that federal courts on occa-

sion interpret the Constitution in a manner at vari-

ance with the construction given the document by

another branch.” United States v. Nixon, 418 U.S.

683, 704 (1974) (quoting Powell v. McCormack, 395

U.S. 486, 549 (1969)). As Thomas Jefferson recog-

nized in the process of writing Virginia’s constitution,

such checks and balances are the entire purpose of

the tripartite separation of powers:

[T]he government we fought for [is] one . . .

in which the powers of government should be

so divided and balanced, among several bod-

ies of magistracy, as that no one could trans-

cend their legal limits, without being

effectually checked and restrained by the

others. For this reason that convention,

which passed the ordinance of government,

laid its foundation on this basis, that the leg-

islative, executive and judiciary departments

should be separate and distinct, so that no

liberty certainly consists in the right of every individual to claim

the protection of the laws.”).

20

person should exercise the powers of more

than one of them at the same time.

Thomas Jefferson, NOTES ON THE STATE OF VIRGINIA

123-24 (Lilly & Wait ed. 1832).

Petitioners’ argument that the Take Care Clause

is not justiciable, Pet. Br. at 73-74, conflicts with the

Take Care Clause’s unmistakable intention to “subor-

dinate| ] the President to the law.” Cass R. Sunstein,

An Eighteenth Century Presidency in a Twenty-First

Century World, 48 Ark. L. Rev. 1, 12 (1994) (“For

purposes of judicial review, the President’s most

important constitutional duty is ‘to Take Care that

the Laws be faithfully executed.’” (emphasis added)).

Even where the President is exercising an enumerated

power — e.g., in granting recognition to a foreign sov-

ereign vis-A-vis the power to receive ambassadors —

the President “is not free from the ordinary controls

and checks of Congress” or the review of the courts.”

Zivotofsky ex rel. Zivotofsky v. Kerry, _ U.S. __, 135

S. Ct. 2076, 2090 (2015). Petitioners offer no expla-

nation why certain enumerated executive powers of

Article II are subject to judicial review, but the Presi-

dent’s abdication of his duty to take care that the

laws are faithfully executed is not.

Where the President takes executive action that threat-

ens the separation of powers, the importance of judicial review is

all the more important. See Buckley, 424 U.S. at 123 (“This

Court has not hesitated to enforce the principle of separation of

powers embodied in the Constitution when its application has

proved necessary .. .”).

21

Of course, Congress may empower executive

officers with certain duties by statute, as in the INA,

which outlines specific guidelines for the Secretary

to follow regarding removal proceedings, guidelines

for admission, and criteria for deportation. 8 U.S.C.

$§ 1125, 1182, 1227, 1229a. But when executive

officers act pursuant to a statute, their actions are

undisputedly subject to judicial review, as Chief Jus-

tice Marshall explained in Marbury:

[W]hen the legislature proceeds to impose on

[an executive] officer other duties; when he is

directed peremptorily to perform certain

acts, when the rights of individuals are de-

pendent on the performance of those acts; he

is so far the officer of the law; he is amenable

to the laws for his conduct; and cannot at his

discretion sport away the vested rights of

others.

5 U.S. (1 Cranch) at 166; see also Bowsher v. Synar,

478 U.S. 714, 778 (1986) (“Executive action under

legislatively delegated authority that might resemble

‘legislative’ action in some respects. ... [I]s always

subject to check by the terms of the legislation that

authorized it, and if that authority is exceeded it is

open to judicial review as well as the power of Con-

gress to modify or revoke the authority entirely.”

(emphasis added)).

By providing alternative criteria for legal status

and granting concomitant benefits, DAPA would

dispense with the INA for approximately four million

of the eleven million illegal aliens currently residing

22

in the United States. Pet. Br. at 3-4, 62. It is difficult

to see how such dispensation would not constitute an

abdication of the President’s duty to faithfully execute

the INA. See May, Presidential Defiance, 21 HASTINGS

Const. L. Q. at 881 (“In light of the Framers’ unbend-

ing opposition to an absolute veto [power] and their

concern that even a qualified veto might ‘put too

much in the power of the President,’ it is virtually

inconceivable that they intended the ‘executive power’

conferred by Article II to encompass a prerogative of

suspending the laws.”) (quoting 1 THE RECORDS OF

THE FEDERAL CONVENTION OF 1787, at 585 (Max Far-

rand ed. 1966))). While the President has concededly

not suspended the INA’s application to all! illegal

aliens, there is no logical end point to Petitioners’

argument that he has the discretion to dispense with

the INA for ever-larger groups of illegal aliens. Pet.

Br. at 48-50, 58-60. At some point, the INA will be

rendered ineffective. Kendall, 38 U.S. (12 Pet.) at 613

(“[VJesting in the President a dispensing power .. .

would be clothing the President with a power entirely

to control the legislation of Congress, and paralyze

the administration of justice.”). Judicial review of

DAPA — and any executive action whereby the Presi-

dent purports to dispense with a statute’s application

to a large portion of individuals to whom the statute

applies — is necessary to ensure the President’s com-

pliance with the Take Care Clause and give effect to

the laws duly enacted by Congress.

23

D. DAPA Violates The Take Care Clause

Because It Conflicts With The Statutory

Scheme Enacted By Congress To Ad-

dress Immigration.

When executive action conflicts with “the express

or implied will of Congress,” presidential power is

at its “lowest ebb.”” Youngstown, 343 U.S. at 637-38

(Jackson, J., concurring) (“Presidential claim to a

power at once so conclusive and preclusive must be

scrutinized with caution, for what is at stake is the

equilibrium established by our constitutional sys-

tem.”). And if the President violates the Take Care

Clause when he declines to enforce laws passed by

Congress, it follows a fortiorari that he certainly may

* But see Kevin M. Stack, The Statutory President, 90 Iowa

L. Rev. 539, 557-58 (2005) (arguing that Justice Jackson’s tiered

analysis in Youngstown applies only to analyses of the constitu-

tionality of the President’s actions, and “says nothing about

whether.. a president has statutory authorization.” (emphasis

added)). Professor Stack argues that this Court has yet to artic-

ulate a standard of judicial review of the President’s assertions

of statutory power, and that the inability of Congress to “actively

police] the president’s assertion of statutory authority” requires

searching judicial review that insists upon an identifiable

statutory authorization for the President’s action. Jd. at 558-61,

581-82 (“[A]ssessing the president’s claim of statutory authority

separately from whether the Constitution independently autho-

rizes the action . . . provides one way to take seriously Justice

Jackson’s view that the presence of statutory authorization

makes a difference to constitutional review.”); see also Black-

man, The Constitutionality of DAPA Part II, 19 Tex. Rev. L. &

POL. at 267 (“Justice Jackson’s framework for the separation of

powers has no place for unilateral executive action based solely

on Congress's resistance to presidential preferences. . . .”).

24

not make legislative policies that actively conflict

with laws passed by Congress. Jd. at 655 (Jackson, J.,

concurring) (“The Executive, except for recommenda-

tion and veto, has no legislative power.”).

In creating DAPA, the President did not legislate

in a vacuum. He purposely acted contrary to a com-

prehensive statutory scheme governing immigration.

DAPA conflicts with the INA because it affirmatively

mandates that immigration officials shall not insti-

tute removal proceedings against four million of the

eleven million illegal aliens in the United States if

those aliens demonstrate that they satisfy specific

criteria, and makes those aliens eligible for specific

benefits based on their now-legal presence. U.S. App.

417a. By contrast, the INA mandates that Petitioners

“shall” “inspect|[,|” “detain[,]” and institute “removal

proceedings” against illegal aliens not qualifying for

asylum or not in fear of persecution. 8 U.S.C. § 1225.

It also lists specific criteria that must be satisfied in

order for an alien to be granted lawful presence in the

United States. See 8 U.S.C. §§ 1151(b)(2)A)(i),

1182(aX9XByXiXID, 1201(a), 1255. In addition, Con-

gress has authorized Petitioners to grant deferred

action status only to specific groups. Under the

INA and other statutes, to be eligible for deferred

action status, an illegal alien must fit within one of

the following categories: (1) children who are self-

petitioning for immigrant status under the Violence

Against Women Act, 8 U.S.C. § 1154(a)(1)(D)i)(I)),

(IV); (2) victims of human-trafficking-related crimes who

assist law enforcement, id. § 1227(d)(1); (3) immediate

25

family members of lawful permanent residents killed

on September 11, 2001, Pub. L. No. 107-56, § 423(b),

115 Stat. 272, 361 (2001); and (4) immediate family

members of U.S. citizens killed in combat. Pub. L. No.

108-136, § 1703(c)-(d), 117 Stat. 1392, 1694-95 (2003).

In contrast, under DAPA, any illegal alien whose

child is a citizen or lawful permanent resident, has

been present since January 1, 2010, and is not an

enforcement priority for deportation is eligible for

deferred action status. Pet. App. 417a. And it is clear

that Congress has not authorized the President to

grant deferred action under the rubric set forth in

DAPA — the legislation that would have granted de-

ferred action to the very individuals to whom DAPA is

directed repeatedly failed to pass in Congress. See

Barron, The DREAM Act, 48 Harv. J. ON LEGIS. at

631-38.

DAPA not only suspends the laws’ application

to more than one-third of illegal aliens, it directly

conflicts with those laws’ narrow categories of indi-

viduals eligible for deferred action. Because DAPA

conflicts with the “express” will of Congress and the

President’s power is therefore at its “lowest ebb,”

Youngstown, 343 U.S. at 637-38, Petitioners’ claim of

“broad authority” that should be afforded “particular

deference” should be rejected. See Pet. Br. at 50-51;

* By the same token, Petitioners’ claim that DAPA falls

within its exercise of prosecutorial discretion rings hollow. Al-

though the President retains prosecutorial discretion, the exer-

cise of this discretion cannot invalidate his duty under the Take

(Continued on following page)

26

Blackman, The Constitutionality of DAPA Part II, 19

Tex. Rev. L. & Pou. at 266 (“These efforts to enact

substantive policies in the face of congressional in-

transigence must be viewed skeptically.”). Petitioners’

attempts to adopt alternative criteria for deferred

action status in DAPA conflict with the criteria pro-

vided by Congress. Thus, DAPA violates the Take

Care Clause.

Il. DAPA IS AGENCY ACTION SUBJECT TO

REVIEW UNDER THE APA.

Even if this Court determines the Take Care

Clause is not justiciable, the APA provides for judicial

review of agency actions claimed to be “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law{,]” or “in excess of statutory ju-

risdiction, authority, or limitations, or short of statu-

tory right... .” 5 U.S.C. § 706(2)(A), (C). The States

challenge DAPA as an unlawful agency action under

the APA. Specifically, the States allege that DAPA

conflicts with the INA and thus is “not in accordance

with law.” Pet. App. 338a. Petitioners unconvincingly

argue that one of the narrow exceptions to judicial re-

view of agency actions applies. Pet. Br. at 36-41. Both

Care Clause to enforce the law. Price, Enforcement Discretion, 67

VAND. L. Rev. at 675 (Because of the Take Care Clause’s enforce-

ment duty, “[e)xecutive officials . . . lack discretion to categori-

cally suspend enforcement or prospectively exclude defendants

from the scope of statutory prohibitions.”).

27

the district court and the Fifth Circuit properly re-

jected Petitioners’ attempts to avoid judicial review.

A. Congress Intended The APA To Provide

Generous Judicial Review Of Agency

Actions.

When Congress passed the APA, it understood

one of the main features of the bill to be its generous

provisions for judicial review of agency actions. The

very genesis of the APA was to address the problem of

administrative agencies acting as “miniature inde-

pendent governments.” S. Doc. No. 79-248, at 379

(1946) (statement of Rep. Doyle). There is ample

evidence in the legislative history of Congress’s intent

to provide judicial oversight in order to safeguard

against agency abuses of power. S. Doc. No. 79-248,

at 305 (1946) (Senator McCarran emphasizing that

judicial review is “something in which the American

public has been and is much concerned, harkening

back, if we may, to the Constitution of the United

States, which sets up the judicial branch of the Gov-

ernment for the redress of human wrongs and for the

enforcement of human rights.”); id. at 347 (Repre-

sentative Michener stating that “[t]he only aim and

purpose of this bill is to see that the rank and file of

American people receive the justice which our system

of jurisprudence attempts to guarantee to them.”).

In providing for broad judicial review of agency

actions, Congress intended the APA to impose signifi-

cant limitations on agency discretion to ensure that

28

agencies do not exceed the authority given them by

statute. Statutes are not “blank checks drawn to the

credit of some administrative office or board” but

rather are “judicially confined to the scope of author-

ity granted or to the objectives specified.” H.R. REp.

No. 79-1980, at 275 (1946) (emphasis added) (report

of Francis Walter, Member, H. Comm. on the Judici-

ary).

The facts of this case are an apt illustration of

the type of agency action Congress intended to pre-

vent in passing the APA. Congress sought to address

the significant separation-of-powers concerns pre-

sented if agencies were permitted to “not only become

the law makers but . . . interpret their own self-made

laws and execute them.” S. Doc. No. 79-248, at 383-

84 (1946) (“Our Government is based on the principle

of three branches: Congress makes the laws, and the

courts interpret them, and the executive branches

execute them, but in many of these agencies we find

all of these functions of the Government lodged in one

person or one board. . . . This bill gives the aggrieved

party the right to appeal to the courts... .”) (state-

ment of Rep. Robsion). In passing DAPA, Petitioners

arrogated upon themselves the authority to make,

interpret, and execute a legislative policy which they

now claim is immune from judicial review. DAPA is

exactly the evil at which the APA was directed. Jd. at

393 (“It was never contemplated or intended by the

founders of this Republic that the power to legislate

vested in Congress should be usurped by a bunch of

appointive officers here in Washington who were

29

never elected by any constituency and never could

be.”) (statement of Rep. Jennings). The legislative

history of the APA demonstrates the necessity of ju-

dicial review in cases where, as here, millions of tax-

payers and dozens of states are impacted by an

agency action that conflicts with the express will of

Congress.

B. Neither Of The APA’s Narrow Excep-

tions To Judicial Review Apply.

The only two exceptions to the broad presump-

tion of judicial review of agency action are: (1) where

the statute precludes review; and (2) where agency

action “is committed to agency discretion by law.” 5

U.S.C. § 701(a)(1), (2). These exceptions are to be

“narrowly construed[.|” Heckler v. Chaney, 470 U.S.

821, 825 (1985). For the first exception to apply, there

must be “clear and convincing evidence” of legislative

intent to preclude judicial review, and the gov-

ernment agency must demonstrate “explicit statutory

authority” for its position that judicial review is

precluded. Abbott Laboratories v. Gardner, 387 U.S.

136, 141 (1967), abrogated on other grounds, Califano

v. Sanders, 430 U.S. 99 (1977). Similarly, the discre-

tionary exception is “very narrow” and Congress in-

tended it to apply only in “‘those rare instances

where statutes are drawn in such broad terms that in

a given case there is no law to apply.’” Citizens to

Preserve Overland Park, Inc. v. Volpe, 401 U.S. 402,

410 (1971) (quoting S. Rep. No. 752, at 26 (1945)),

abrogated on other grounds, Califano, 430 U.S. at 99.

30

As demonstrated below, neither narrow exception in-

sulates DAPA from judicial review in this case.

1. No statute precludes judicial review

of DAPA.

There is a “strong presumption that Congress

intends judicial review of administrative action.”

Bowen v. Michigan Academy of Family Physicians,

476 U.S. 667, 670 (1986) (“From the beginning ‘our

cases [have established] that judicial review of a fina!

agency action by an aggrieved person will not be cut

off unless there is persuasive reason to believe that

such was the purpose of Congress.’” (quoting Abbott

Laboratories, 387 U.S. at 140) (alteration in origi-

nal)). The “mere failure to provide specially by statute

for judicial review is certainly no evidence of intent to

withhold review.” Jd. at 671. Instead, judicial review

is precluded only where it is expressly provided in the

statute or otherwise clear from the statutory scheme

as a whole. Sackett v. EPA, 132 S. Ct. 1867, 1373-74

(2012). An agency bears a “heavy burden” to overcome

the presumption of reviewability. Bowen, 476 U.S. at

672.

Here, Petitioners argue that 8 U.S.C. § 1252(g)"

exempts DAPA from judicial review and thus falls

This provision of the INA provides, “no court shall have

jurisdiction to hear any cause or claim by or on behalf of any

alien arising from the decision or action by the Attorney General

to commence proceedings, adjudicate cases, or execute removal

(Continued on following page)

31

within the APA’s first category of unreviewable cases,

5 U.S.C. §701(aX1). Pet. Br. at 41. Even though

§ 1252(g) undisputedly applies to individual aliens

challenging their deportation proceedings, Petitioners

suggest that, because aliens are those “most directly

affected” by individualized deportation decisions,

Congress must have intended to preclude all chal-

lenges of all agency actions concerning deportation.

Id. But it simply does not follow that, because the

INA bars challenges by an individual alien to depor-

tation proceedings instituted by the Attorney Gen-

eral, Congress also intended to shield from review

Petitioners’ multi-agency legislative policy adopting

standardized criteria for granting deferred action

status and legal benefits. This Court has previously

held that, where Congress precludes review only of a

specific factual scenario, it did not intend to preclude

review of broader claims under the statute — even

where those claims concern the same subject matter.

See Bowen, 476 U.S. at 676-78 (Congress’s express

preclusion of judicial review of the amount of benefits

under Medicare Part B did not function to insulate

from judicial review the method by which Part B

benefits were computed).

Moreover, this Court has already held that § 1252(g)

should be interpreted narrowly in accordance with

Congress's purpose to protect “three discrete actions

that the Attorney General may take: her ‘decision or

orders against any alien under this chapter.” 8 U.S.C. § 1252(g)

(emphasis added).

32

action’ to commence proceedings, adjudicate cases, or

execute removal orders” from second-guessing by the

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

525 U.S. 471, 482 (1999) (quoting 8 U.S.C. § 1252(g))

(emphasis in original) (rejecting the government's

contention that § 1252(g) “covers the universe of de-

portation claims” because “i]t is implausible that the

mention of three discrete events along the road to

deportation was a shorthand way of referring to all

claims arising from deportation proceedings. ... We

are aware of no other instance in the United States

Code in which language such as this has been used

to impose a general jurisdictional limitation... .”).

Here, none of the actions Congress sought to address

in including § 1252(g) in the INA are at issue, and

§ 1252(g) provides no “general jurisdictional limita-

tion” that would apply to the States’ challenge. /d.

The States here do not seek to challenge the

basis of any individual removal proceedings or compel

prosecution of specific individuals, and they do not

seek to prolong removal proceedings in general. States’

Brief at 43-44; see Am.-Arab Anti-Discrimination

Comm., 525 U.S. at 487 (“[8 U.S.C § 1252(g)] is specif-

ically directed at the deconstruction, fragmentation,

and hence prolongation of removal proceedings.” (em-

phasis added)). Rather, the States challenge the Sec-

retary’s authority to issue the DAPA Directive in the

first place — to make legislative policy, rather than

interpret it. States’ Brief at 1. The States’ challenge

is materially different from an individual alien’s

33

attempt to reverse or prolong removal proceedings,

and thus is not precluded by § 1252(g).

2. DAPA is not an action committed to

agency discretion by law.

The APA’s second exception, whether an action is

“committed to agency discretion by law,” 5 U.S.C.

§ 701(aX(2), only applies where a statute is so broad

as to make judicial review meaningless because there

is no “meaningful standard against which to judge

the agency’s exercise of discretion.” Heckler, 470 U.S.

at 830. This Court has declined to second-guess

agencies when they undertake “a complicated balanc-

ing of a number of factors which are peculiarly within

its expertise.” Heckler, 470 U.S. at 831 (decision not

to undertake a specific enforcement action is not

subject to judicial review); Lincoln v. Virgil, 508 U.S.

182, 192-93 (19¥3) (allocation of funds from a lump-

sum appropriation is not subject to judicial review, so

long as such appropriation meets permissible statuto-

ry objectives); Webster v. Doe, 486 U.S. 592, 599-601

(1988) (CIA director’s decision to terminate an em-

ployee in the interests of national security is not

subject to judicial review). The very fact that this

Court can list on one hand the categories of cases

where it held an agency action insulated from judicial

review as discretionary demonstrates just how rarely

the § 701(a\(2) exception applies. See Lincoln, 508

U.S. at 191-92; see also McAlpine v. United States,

112 F.3d 1429, 1435 (10th Cir. 1997) (“These ‘rare

circumstances’ ... include agency decisions not to

34

institute enforcement proceedings, to grant recon-

sideration of acts based on material error, to termi-

nate employees for national security reasons, and to

allocate of funds from lump sum appropriations.”

(quoting Lincoln, 508 U.S. at 191-92)).

Petitioners argue that DAPA is analogous to a

run-of-the-mill decision not to deport an individual

alien. Pet. Br. at 36. However, the President’s ability

to “terminate an after-the-fact prosecution or grant a

pardon” is “very different from a power to dispense

with the law.” Price, Enforcement Discretion, 67

VAND. L. REV. at 695 (internal quotation omitted).”

Additionally, to the extent Petitioners have prosecu-

torial discretion over immigration, such discretion

* Professor Price discusses the unique challenges presented

in the immigration context, acknowledging that “a gross mis-

match between the scope of prohibitions and the resources avail-

able to enforce them makes substantial nonenforcement of those

laws inevitable.” Jd. at 761. Petitioners argue the resources

point, repeatedly, as a justification for DAPA. Pet. Br. at 15, 43-

47. But Price concludes that, “[elven so, just as in the criminal

context, executive officials should properly understand their role

in immigration enforcement to be a matter of priority setting

rather than policymaking.” Price, Enforcement Discretion, 67

VaAND. L. Rev. at 761. It is apparent where Petitioners over-

stepped that boundary. At the same time he announced DAPA,

the Secretary also issued a priorities memoranda. Pet. Br. at 9.

That memoranda directed Petitioners to “focus [your] limited

resources . on serious criminals, terrorists, aliens who re-

cently crossed the border, and aliens who have significantly

abused the immigration system.” Jd.; Pet. App. 423a-428a. The

differences between the priorities memoranda and DAPA illus-

trate the distinction between permissible priority setting, on one

hand, and unlawful policy making, on the other.

35

was granted by Congress and must be exercised con-

sistent with that delegation. See Lessig & Sunstein,

The President and the Administration, 94 COLUM. L.

Rev. at 70 (“Prosecution is not among the list of

enumerated executive powers. ... According to the

nineteenth century conception, prosecution is a power

incidental to Congress{ ], and Congress may vest such

authority wherever ‘proper.’”). Thus, Petitioners must

demonstrate that Congress intended, in the INA, to

grant them broad authority to suspend the INA’s ap-

plication to over one-third of the illegal aliens in this

country and affirmatively grant those aliens lawful

status. As Justice Marshall recognized in Heckler:

Discretion may well be necessary to carry out

a variety of important administrative func-

tions, but discretion can be a veil for lazi-

ness, corruption, incompetency, lack of will,

or other motives, and for that reason “the

presence of discretion should not bar a court

from considering a claim of illegal or arbi-

trary use of discretion.”

470 U.S. at 848 (Marshall, J., concurring) (emphasis

in original) (quoting L. Jaffe, JUDICIAL CONTROL OF

ADMINISTRATIVE ACTION 375 (1965)). These potentials

for abuse justify requiring Petitioners to make a “clear

and convincing demonstration” that Congress intended

to grant them discretion. Jd. at 848-49 (“For these and

other reasons, reliance on prosecutorial discretion,

itself a fading talisman, to justify the unreviewability

of agency action is inappropriate.” (Marshall, J., con-

curring)).

36

Heckler emphasized that an agency’s discretion

does not include instances where an agency has

“‘consciously and expressly adopted a general policy’

that is so extreme as to amount to an abdication of its

statutory responsibilities.” 470 U.S. at 833 n.4 (quot-

ing Adams v. Richardson, 480 F.2d 1159, 1162 (D.C.

Cir. 1973) (en banc)). In Adams, the D.C. Circuit re-

jected the agency’s attempt to adopt a “general policy”

of nonenforcement as inconsistent with the agency’s

statutory duty to enforce Title VI of the Civil Rights

Act of 1964. 480 F.2d at 1162. The court distinguished

between an action that would have challenged the

agency’s decisions “with regard to a few [school] dis-

tricts in the course of a generally effective enforce-

ment program” with the case before it alleging that

the agency had adopted a general policy of nonen-

forcement. Jd. The former was an exercise of agency

discretion, the latter was not. /d.

Following Heckler, the circuit courts maintained

Adams’ distinction in determining whether agency

discretion insulates agency action from judicial re-

view. See, e.g., Riverkeeper, Inc. v. Collins, 359 F.3d

156, 166-71 (2d Cir. 2004) (agency’s failure to enact

specific licensing requirements advocated by plaintiff

did not constitute an abdication of its “overall stat-

utory mandate to provide adequate protection to

nuclear plants| |”); Crowley Caribbean Transport, Inc.

v. Pefia, 37 F.3d 671, 676 (D.C. Cir. 1994) (Agency

decision not to waive Merchant Marine Act require-

ments for plaintiff’s cargo service was nonreviewable

as a “single-shot non-enforcement decision” rather

37

than “a general enforcement policy” expressed “as a

formal regulation” or “universal policy statement.”);

McAlpine, 112 F.3d at 1433-35 (Secretary of the In-

terior’s decision regarding trust land acquisition was

not exempt from judicial review because there was

“law to apply” in determining whether the Secretary’s

exercise of discretion was based on a consideration of

relevant factors.). The President has nonenforcement

discretion on an individual basis, but this authority

“extends neither to prospective licensing of prohibited

conduct nor to policy-based nonenforcement of federal

laws for entire categories of offenders.” Price, En-

forcement Discretion, 67 VAND. L. REv. at 671.

DAPA is quite clearly an abdication of Peti-

tioners’ statutory duty to implement the INA. DAPA

would exempt more than a third of the nation’s illegal

aliens from deportation under the INA, and is there-

fore far removed from the individualized enforcement

decisions entitled to prosecutorial discretion. Adams,

480 F.2d at 1163 (Agency’s consistent failure to en-

force statute is “a dereliction of duty reviewable in

the courts.”). Additionally, DAPA cites an alleged basis

for the Secretary’s authority to issue the directive un-

der the INA, and thus provides a statutory yardstick

by which to measure Petitioners’ compliance with

INA’s mandates regarding removal and deportation. 8

U.S.C. §§ 1125, 1182, 1227, 1229a; cf. Overland Park,

401 U.S. at 410 (judicial review is unavailable where

the statute is drawn in such broad terms that there is

no law to apply). Because DAPA is not a valid exercise

of prosecutorial discretion, this Court should hold

38

that DAPA is an unlawful agency action under the

APA.

.

CONCLUSION

For the foregoing reasons, the Court should af-

firm the judgment of the Court of Appeals and hold

that the States are entitled to a preliminary injunc-

tion.

Respectfully submitted,

STEVEN J. LECHNER

Counsel of Record

GINA M. CANNAN

MOUNTAIN STATES LEGAL FOUNDATION

y2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

lechner@mountainstateslegal.com

gina@mountainstateslegal.com

Counsel for Amicus Curiae