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

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## Record

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

## Text

No. 15-674

in The
Supreme Court of the 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A53. Public record. Not legal advice.