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

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No. 15-674

IN THE

Supreme Court of the Anited States

UNITED STATES OF AMERICA, et al.,

Petitioners,

vz.

STATE OF TEXAS, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF 186 MEMBERS OF THE U.S. HOUSE

OF REPRESENTATIVES AND 39 MEMBERS

OF THE U.S. SENATE AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

KENNETH L. SALAZAR SETH P. WAXMAN

WILMER CUTLERPICKERING Cownsel of Record

HALE AND DORR LLP JAMIE S. GORELICK

1225 Seventeenth St. PAUL R.Q. WOLFSON

Suite 1660 DAVID M. LEHN

Denver, CO 80202 SAURABH H. SANGHVI

RYAN McCARL

JOHN B. SPRANGERS*

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE, OF AUTHORITIES qnnneacexcecceccsccesessessesessessesensees ii

INTEREST OF AMICI CURIAE....0..0.0......-:sscscsssseeeeeeees 1

SUMMARY OF ARGUMENT ...........:ccco:csssesesseenesneeneens 3

So a eminiaadadaameinnginne 7

I. THE DAPA GUIDANCE IS A PERMISSIBLE

EXERCISE OF CONGRESSIONALLY GRANT-

ETE SADIE ES ESTOS TE enero 7

A. The Executive Needs Broad Discretion

To Adopt Rational Enforcement Prior-

ities And Effective Policies For Their

Implementation ...............-.-sescsescececsesesceesesessensseeses 7

B. Congress Has Directed The Executive

To Set Rational Enforcement Priorities

And To Adopt Policies To Implement

ee II «csinsciicnigrsietineenammineatibiaianiadions 10

C. The DAPA Guidance Is Statutorily

IIE. cicrantiiainiesstenbiniaabiesidaiitinianiininindundiiin 14

D. The Court of Appeals’ Decision And

The States’ Arguments Reflect A

Flawed Mode Of Analysis...................--.:-+s0+-++0+ 24

Il. THE DAPA GUIDANCE PRESENTS NO Is.

SUE UNDER THE TAKE CARE CLAUSE.............--..0+- 32

ee tieenhineiomemasiia 35

APPENDIX: List of Amici Curiae ....................cscssserees la

‘i

TABLE OF AUTHORITIES

CASES

Page(s)

Abuelhawa v. United States,

BEG U.S. 816 (2009) ......0c-c-cceecencscrssssesecssseneeesesccnsensense 10

Arizona Dream Act Coalition v. Brewer,

757 F.3d 1053 (9th Cir. 2014) ..........-ceeecesenennee 22, 31

Arizona v. United States,

132 S. Ct. 2492 (2012) ........cecceecereeneeeees 7, 10, 11, 17, 31

Bob Jones University v. United States,

461 U.S. 574 (1983) ......cccccccsecrecccssessersecceeserensessecsees 8, 21

Bond v. United States,

134 S. Ct. 2077 (2OIS) .........c.nceccereersercercerseesrneensnsneenee 33

Chaudhry v. Holder,

705 F.3d 289 (7th Cir. 2013) .........--cceseeeeneesnnnennenennes 26

City of Arlington v. FCC,

133 S. Ct. 1863 (2013) ............cecceereesercensesenrssnseesnsansens 28

Dalton v. Specter,

B11 U.S. 462 (1994) ......ceccecssccorsscssersenssnsenssrsssssssnneoses 33

Heckler v. Chaney,

470 U.S. 821 (1985) .........0..c.receccsecerseresesoees 8, 10, 33, 34

Jama v. Immigration & Customs Enforcement,

5AS U.S. B35 (2005) .........-ccecceccecescessenserssssenessssrssssnseosees 7

Jean v. Nelson,

T27 F 2d 957 (11th Cir. 1984) .........--.ccececceeennenenennees 10

King v. Burwell,

135 S. Ct. 2480 (2015) ...........c.ecsscseresseecenrenserersessnssnses 28

Lujan v. Defenders of Wildlife,

5O4 U.S. 555 (1992) .......csccccececsvenserereresensnsesssnsnnensanerene 33

TABLE OF AUTHORITIES—Continued

Page(s)

Marbury v. Madison,

fb Rete ) gd) ee 33

Massachusetts v. EPA,

I I aii lim neisipdinaitan 10, 28

Mathews v. Diaz,

EAS ce neve nee 7

Mistretta v. United States,

aisles 7

Mourning v. Family Publications Service,

iia hinctniclaahieasneiaitineninidinnian 15

New York v. United States,

HI si ieicietiercicniinctsieeuniiniesqundssitentiiniensstiinh 34

Reno v. American-Arab Anti-Discrimination

Committee,

REESE ERE 4, 11,18

Reno v. Flores,

caidas 11

United States ex rel. Knauff v. Shaughnessy,

I I ion ne erertiidanitiniecsiaeiciasiniianisaadoebens 9

United States v. Rutherford,

gs EE eee eee 18

Utility Air Regulatory Group v. EPA,

0 Re 8 wee 28

Zivotofsky v. Clinton,

ee 33

TABLE OF AUTHORITIES—Continued

Page(s)

CONSTITUTIONAL AND STATUTORY PROVISIONS

SP PIII: CITE: 0-00 ciesiicessscoreooslecnistningnaippntninaminiatieene ain 32

i SINE catidictstaieiececticeiarciinairetaas 4, 11, 14, 28, 30, 34

8 U.S.C

REE ies es oe Ae ee NNN, 3, 10, 14, 28, 30

| ARERR Een a ee 26

tat iat 8k ee 21

ILI asischonaiiesipiiesiitopininiaiaseiasheriaeisiatig api aa Gaeta 24

Scaled duitbihileensiteibceteaneenbideccaan ceca coal 21, 26, 27

EE eR ONSET PRI 24

I dnehccesistasensipopsidiunininateibashdnaeesatasscadiniigaiamimentddce idacihaal 26

sas chlciepuiiliecnigiee er a aa 22, 23, 30, 31

I iasasiesnsiusiieneccteeioailesiihahaseeaiiinaepluanbdenaclindadea Set 26

Se iaiisasndibdinniasenidaceehiinteaeice cei ee ad re 17, 18

26 U.S.C.

asics aaa Sa eT 18

pee insctciiiaiatiiatinmeatiiniigtiiaice cue 18

APU ce a al Rae 18

og a ee ee ee 18, 21

Department of Homeland Security

Appropriations Act, Pub. L. No. 114-4, 129

ee ED ncihianiionabeiiumenieiccnattenatiniibatnisheenmsbcaniiies 9

Emergency Supplemental Appropriations Act

for Defense, the Global War on Terror, and

Tsunami Relief, 2005, Pub. L. No. 109-13,

MIDE sahiinieciaiescrrcrittisindapitnenenaiaeciomstcicnri es 21

Immigration Act of 1990, Pub. L. No. 101-649,

RRS EE Se SMILE Neri NL 24

TABLE OF AUTHORITIES—Continued

Page(s)

National Defense Authorization Act for Fiscal

Year 2004, Pub. L. No. 108-136, 117 Stat.

Uniting and Strengthening America By

Providing Appropriate Tools Required to

Intercept and Obstruct Terrorism (USA

Patriot Act) Act of 2001, Pub. L. No. 107-

OE SS Mca 21

RULES AND REGULATIONS

8 C.F.R.

8 SEE a ne eee ee eae Te LOTT 17

| NEESER SPEER Se ee ete eee, tote ane 19

NEE One ene eRe oe 0, Mn 19

I vsicinhictipiccintetiinsicaiiniainaiin 15, 19, 22, 23, 30

Control of Employment of Aliens, 52 Fed. Reg.

tg SESS Rina ee 23

Employment Authorization to Aliens in the

United States, 46 Fed. Reg. 25,079 (May 5,

STII isso isibesiiiscnnihtieabtaidalandtaininiaibinebaibiaatuin natant 23

CONGRESSIONAL MATERIALS

Bruno, Andorra, et al., Analysis of June 15,

2012 DHS Memorandum, Ezercising

Prosecutorial Discretion with Respect to

Individuals Who Came to the United

States as Children, Congressional

Research Service (July 13, 2012) [J.A. 168-

ESE A EE OE LE 18, 19, 23

TABLE OF AUTHORITIES—Continued

Letter from Elliot Williams, Assistant

Director, Immigration and Customs

Enforcement, to Hon. Elton Gallegly,

Chairman, Subcommittee on Immigration

Policy and Enforcement, Committee on

Judiciary, U.S. House of Representatives

SE i SET vices deniermimnsenannieneinieiiaietbeteemsiineeaiaieestis

Stephan, Sharon, Extended Voluntary

Departure and Other Blanket Forms of

Relief from Deportation, Congressional

Research Service, 85-599 EPW (Feb. 23,

IIIT sdecesuenitacendzuhectinasenisnunieedideiieaninintmiguitiominiin

Subcommittee on Immigration and Border

Security of the House Committee on the

Judiciary, 114th Cong., Rules of Procedure

and Statement of Policy for Private

roan

EXECUTIVE MATERIALS

Department of Justice, Program for Non-

Prosecution Agreements or Non-Target

Letters for Swiss Banks (Aug. 29, 2013)........

Immigration and Customs Enforcement,

Detention and Deportation Field Officer’s

Manual, https://www.ice.gov/doclib/foia/dro

_policy_memos/09684drofieldpolicymanual.

Page(s)

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Letter from Mark M. Attar, Senior Special

Counsel, SEC Division of Trading and

Markets, to Christopher M. Salter, Allen &

Overy LLP (Mar. 12, 2015) ....-.--s--sssevsssserseensensnseneers 16

McNary, Gene, INS Commissioner, Family

Fairness: Guidelines for Voluntary

Departure under 8 CFR 242.5 for the

Ineligible Spouses and Children of

Legalized Aliens (Feb. 2, 1990) [J.A. 213-

DIB) cencceccscesesesescerescecssssnnseseessensnssncosensnenscnenssneasesensesseress 20

Memorandum from Doris Meissner,

Commissioner, Immigration and

Naturalization Service, to Regional

Directors et al., Exercising Prosecutorial

Discretion (Nov. 17, 2000) [J.A. 239-263 ].......-----++ 12

Memorandum from Earl E. Devaney, Director,

Office of Criminal Enforcement, U.S.

Environmental Protection Agency, to All

EPA Employees Working in or in Support

of the Criminal Enforcement Program, The

Exercise of Investigative Discretion (Jan.

12, 1994) ....cecoccsssosssssesseenscnsenessssnssnsnnssnsnsensenssnsenssessnsness 13

Memorandum from Eric H. Holder, Jr., to All

Federal Prosecutors, Department Policy

on Charging and Sentencing (May 19,

DOO) ..cececcescerceccsccessssersersecessoesssensesensenssseesarsnsensensensers 13

TABLE OF AUTHORITIES—Continued

Page(s)

Memorandum from Jeh Charles Johnson,

Secretary of Homeland Security, to Leén

Rodriguez, Director, U.S. Citizenship and

Immigration Services, Exercising

Prosecutorial Discretion with Respect to

Individuals Who Came to the United

States as Children and with Respect to

Certain Individuals Who Are the Parents

of U.S. Citizens or Permanent Residents

(Nov. 20, 2014) [Pet. App. 411la-419a] .... 4, 8, 15, 16, 26

Memorandum from Jeh Charles Johnson,

Secretary of Homeland Security, to

Thomas S. Winkowski, Acting Director,

US. Immigration and Customs

Enforcement, et al., Policies for the

Apprehension, Detention and Removal of

Undocumented Immigrants (Nov. 20,

2014) [Pet. App. 420a-420a).......0.ccccsccccscecssceseoescsseseee 15

Memorandum from Julie L. Myers, Assistant

Secretary of Homeland Security, to All

Field Office Directors and Special Agents

in Charge of U.S. Immigration and

Customs Enforcement, Prosecutorial and

Custody Discretion (Nov. 7, 2007) ........00sseseeeeees 12

Memorandum from William J. Howard,

Principal Legal Advisor, ICE, to All Office

of the Principal Legal Advisor Chief

Counsel, Prosecutorial Discretion (Oct. 24,

TABLE OF AUTHORITIES—Continued

Page(s)

Nelson, Alan C., INS Commissioner,

Legalization and Family Fairness—An

Analysis (Oct. 21, 1987), appended to 64

Interpreter Releases No. 41, at 1190 (Oct.

ee iss hdareduecalicipicis enssceibenibisibasaddaipmcaanabinddeininiieoniapie 19

Securities and Exchange Commission,

Enforcement Manual (2015)................c0cssssescseseeeeees 13

U.S. Attorneys’ Manual (2015) ................cccccccccsrssecsseseseee 13

U.S. Citizenship and Immigration Services,

Adjudicator’s Field Manual ................cscsseeseeseeeneeees 23

U.S. Citizenship and Immigration Services,

Public Laws Amending the INA (May

2013), https//www.uscis.gov/iframe/ilink/doc

View/PUBLAW/HTML/PUBLAW(0-0-0-1.

Sins seieinisedinhcenietiteiebeiehisluiiitetiiaiiasieaienabinignnndécuineennamsipiicouaes 21

OTHER AUTHORITIES

Maguire, Bernadette, /mmigration: Public

Legislation and Private Bills (1997) .........:.c00000« 22

Meissner, Doris, et al., /mmigration Enforce-

ment in the United States: The Rise of a

Formidable Machinery (Migration Policy

RRR LOREEN os CON &

Rodriguez, Cristina M., Constraint Through

Delegation: The Case of Executive Control

over Immigration Policy, 59 Duke LQ.

Re I islcinticomncisenneinesnnstaccinpctinsiiiiieniittelanieaiiaadinnions 7

TABLE OF AUTHORITIES—Continued

Page(s)

Wadhia, Shoba Sivaprasad, Sharing Secrets:

Examining Deferred Action’ and

Transparency in Immigration Law, 10

ok ene 19, 29

IN THE

Supreme Court of the Hnited States

No. 15-674

UNITED STATES OF AMERICA, et al.,

Petitioners,

Vv.

STATE OF TEXAS, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF 186 MEMBERS OF THE U.S. HOUSE

OF REPRESENTATIVES AND 39 MEMBERS

OF THE U.S. SENATE AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE!

Amici are 186 Members of the U.S. House of Rep-

resentatives and 39 Members of the U.S. Senate. A

complete list of amici is set forth in the Appendix.

Among them are:

' Letters consenting to the filing of this brief are on file with

the Clerk. No counsel for a party authored this brief in whole or in

part, and no person, other than amici or their counsel, made any

monetary contribution to the preparation or submission of this

brief.

U.S. House of Representatives:

Nancy Pelosi, Democratic Leader

Steny H. Hoyer, Democratic Whip

James E. Clyburn, Assistant Democratic Leader

Xavier Becerra, Democratic Caucus Chair

Joseph Crowley, Democratic Caucus Vice-Chair

John Conyers, Jr., Ranking Member, Commit-

tee on the Judiciary

Zoe Lofgren, Ranking Member, Subcommittee

on Immigration and Border Security of the

Committee on the Judiciary

US. Senate:

Harry Reid, Democratic Leader

Richard J. Durbin, Democratic Whip

Charles E. Schumer, Democratic Conference

Committee Vice Chair and Policy Committee

Chair, and Ranking Member, Subcommittee on

Immigration and the National Interest, Com-

mittee on the Judiciary

Patty Murray, Secretary, Democratic Confer-

ence

Patrick J. Leahy, Ranking Member, Committee

on the Judiciary

Robert Menendez, Democratic Hispanic Task

Force Chair

As Members of Congress responsible, under Article

I of the Constitution, for enacting legislation that will

then be enforced by the Executive Branch pursuant to

its authority and responsibility under Article .I, amici

have an obvious and distinct interest in ensuring that

the Executive enforces the laws in a manner that is ra-

tional, effective, and faithful to Congress’s intent. Giv-

en their institutional responsibility, amici would not

support executive efforts at odds with duly enacted

federal statutes. But where Congress has chosen to

vest in the Executive discretionary authority to deter-

mine how a law should be enforced and the Executive

has acted pursuant to that authority—as is the case

here—amici have a strong interest in ensuring that

federal courts honor Congress’s deliberate choice by

sustaining the Executive’s action.

SUMMARY OF ARGUMENT

Congress understands that the Executive is often

better positioned to determine how to adjust quickly to

changing circumstances in complex fields, particularly

ones involving law-enforcement and national-security

concerns. Congress therefore regularly gives the Ex-

ecutive broad discretion to determine how to enforce

such statutes. Rarely has it done so more clearly than

in the Nation’s immigration laws.

Recognizing the Executive’s institutional ad-

vantages in the immigration context, Congress has for

more than sixty years granted the Executive broad

discretionary authority to “establish such regulations;

... issue such instructions; and perform such other acts

as [the Secretary] deems necessary for carrying out his

authority” under the Immigration and Nationality Act

(“INA”). 8 U.S.C. § 1103(a)(3). And in 2002, in the face

of a yawning gap between the size of the unauthorized

immigrant population and the amount of resources rea-

sonably available for enforcement, Congress charged

the Secretary of Homeland Security’ with

“fe|stablishing national immigration enforcement poli-

cies and priorities.” 6 U.S.C. § 202(5). Congress there-

by encouraged the Executive to focus its resources in a

rational and effective manner on cases in which the Na-

tion’s interest in removal is strongest, to provide the

maximum return on Congress’s sizeable but necessarily

finite investment in immigration enforcement.

As representatives of diverse communities across

the United States, amici have witnessed how an ap-

proach to enforcement of the immigration laws that

does not focus on appropriate priorities undermines

confidence in those laws, wastes resources, and need-

lessly divides families, thereby exacting a severe hu-

man toll. Amici thus regard the DAPA Guidance as ex-

actly the kind of “enforcement polic[y]” that Congress

charged the Secretary with establishing.’ Building on

the Secretary’s decision to prioritize for enforcement

threats to national security, border security, and public

safety, the DAPA Guidance establishes a “polic[y]” that

certain nonpriority immigrants may be considered for

“deferred action,” i.e., memorialized temporary for-

bearance from removal, which triggers eligibility for

work authorization upon a showing of economic need.

This Court has observed that deferred action is a

“commendable exercise in administrative discretion.”

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

525 U.S. 471, 484 (1999) (“ADC”). Deferred action is

not just a humanitarian exercise. Like other uses of

? Pet. App. 411la-419a (Memorandum from Jeh Charles John-

son, Secretary of Homeland Security, to Leén Rodriguez, Director,

U.S. Citizenship and Immigration Services, Exercising Prosecuto-

rial Discretion with Respect to Individuals Who Came to the Unit-

ed States as Children and with Respect to Certain Individuals

Who Are the Parents of U.S. Citizens or Permanent Residents

(Nov. 20, 2014)). For purposes of this brief, the DAPA Guidance

includes the expansion of DACA.

deferred action, the DAPA Guidance facilitates the im-

plementation of the Secretary’s priorities and promotes

the efficient and effective execution of the immigration

laws consistent with the limited enforcement resources

available. The Guidance does this by encouraging eligi-

ble persons to submit to a background check so they

can be identified and classified according to removal

priority, and by enabling those with an economic need

to support themselves lawfully.

That the Secretary’s guidance is within his statuto-

ry authority should not be open to doubt. For half a

century, the Executive has used deferred action and

other forms of discretionary relief in a variety of cir-

cumstances, even when not specifically authorized by

statute. Congress has approved of those practices, re-

peatedly amending the immigration laws without fore-

closing the Executive’s broad discretion to use them—

and even enacting provisions that presume the Execu-

tive will continue its discretionary practice of deferred

action. Similarly, Congress has explicitly recognized

the Executive’s broad discretion to determine which

removable individuals qualify for work authorization

and has never disturbed the Executive’s decades-long

practice of providing work authorization to those

granted deferred action.

The court of appeals’ holding that the DAPA Guid-

ance is “manifestly contrary to the INA” reflects a mis-

reading of the INA and a faulty approach to interpret-

ing complex regulatory statutes like the immigration

laws. The court reasoned that the immigration laws’

specific references to discretionary relief from removal

and work authorization under certain circumstances

implicitly foreclosed discretionary relief and work au-

thorization under others. But deferred action is not a

substitute for specific statutory statuses and forms of

discretionary relief, as it grants none of the legal rights

that lawful status provides. Moreover, the court’s ex-

pressio unius analysis disregards the broad grants of

discretion that are explicit in the immigration laws and

the long history of undisturbed executive exercise of

that discretion. The court’s approach would make it

virtually impossible for Congress to grant the Execu-

tive the broad authority and discretion required to

tackle urgent and unforeseen immigration challenges,

while retaining the ability to direct specific enforce-

ment action it deems appropriate. More generally, it

would hamper Congress’s ability to allocate to the Ex-

ecutive the combination of broad discretion and specific

responsibilities so often needed to administer sprawling

statutory schemes effectively.

Finally, even if a claim under the Take Care Clause

is justiciable, and even if such a claim may be asserted

against an Executive officer other than the President,

the claim must fail here. The States’ challenge rises

and falls on the proper interpretation of the immigra-

tion laws, and thus should be viewed as presenting only

a statutory claim. In any event, the Take Care Clause

surely does not prevent an agency faced with the task

of removing hundreds of thousands of individuals each

year from pursuing such removals in a rational rather

than haphazard manner in light of its limited enforce-

ment resources.

ARGUMENT

lL. THE DAPA GUIDANCE Is A PERMISSIBLE EXERCISE

Or CONGRESSIONALLY GRANTED DISCRETION

A. The Executive Needs Broad Discretion To

Adopt Rational Enforcement Priorities And

Effective Policies For Their Implementation

Immigration is a complex and dynamic regulatory

field. Demographic, social, and political changes at

home and abroad can cause abrupt and substantial

changes in U.S. immigration patterns. Those changes

in turn often generate unforeseeable and urgent chal-

lenges for domestic policy, criminal law enforcement,

national security, and foreign relations. As this Court

recently observed, “{iJmmigration policy can affect

trade, investment, tourism, and diplomatic relations for

the entire Nation,” and immigration enforcement deci-

sions necessarily “embrace[] immediate human con-

cerns” and “involve policy choices that bear on this Na-

tion’s international relations.” Arizona v. United

States, 132 S. Ct. 2492, 2498-2499 (2012); see also Jama

v. Immigration & Customs Enft, 543 U.S. 335, 348

(2005); Mathews v. Diaz, 426 U.S. 67, 81 n.17 (1976).

Achieving rational and efficient immigration prac-

tices requires flexibility in setting and implementing

enforcement priorities. Congress has long recognized

the Executive’s advantage in adapting nimbly to exi-

gencies that may warrant shifts in how law enforce-

ment resources are deployed. E.g., Mistretta v. United

States, 488 U.S. 361, 372 (1989) (“in our increasingly

complex society, replete with ever changing and more

technical problems, Congress simply cannot do its job

absent an ability to delegate power under broad gen-

eral directives”); Rodriguez, Constraint Through Dele-

gation: The Case of Executive Control over Immigra-

tion Policy, 59 Duke L.J. 1787, 1810 (2010) (“An admin-

istrative agency, as a structural matter, is better

equipped than Congress to take into account factors

that require expertise and speed to discern.”); cf. Bob

Jones Univ. v. United States, 461 U.S. 574, 596 (1983)

(“in an area as complex as the tax system, the agency

Congress vests with administrative responsibility must

be able to exercise its authority to meet changing con-

ditions and new problems”).

Congress has also long recognized that “[aJn agen-

cy generally cannot act against each technical violation

of the statute it is charged with enforcing.” Heckler v.

Chaney, 470 U.S. 821, 831 (1985). That is especially

true in the field of immigration. Removal requires ex-

tensive resources, as it typically involves investigation,

charge, adjudication, and (if the person is found remov-

able) effectuation of the person’s departure; it may also

involve detention for certain categories of individuals.

Given the size of the unauthorized immigrant popu-

lation in the United States, the prospect of removing

them all is fanciful and far exceeds the resources that

might reasonably be available to enforce the Nation’s

immigration laws, even as appropriations for enforce-

ment have reached historically high levels (and “ex-

ceed[] funding for all the other principal federal crimi-

nal law enforcement agencies combined”). Meissner et

al., Immigration Enforcement in the United States: The

Rise of a Formidable Machinery 16-17, 20-22 (Migra-

tion Policy Institute Jan. 2013). As the government has

explained, “DHS has not been able to remove more

than four percent of the estimated removable popula-

tion in any year.” Pet. 4; see also U.S. Br. 4; Pet. App.

412a (DAPA Guidance) (“Due to limited resources,

DHS and its Components cannot respond to all immi-

gration violations or remove all persons illegally in the

United States.”). Inevitably, therefore, the Executive

will have to exercise discretion in enforcing the immi-

gration laws.

Congress can and sometimes does define enforce-

ment priorities itself. For example, Congress has di-

rected the Secretary of Homeland Security to “priori-

tize the identification and removal of aliens convicted of

a crime by the severity of that crime.” Department of

Homeland Security Appropriations Act, Pub. L. No.

114-4, tit. II, 129 Stat. 39, 43 (2015); see also H.R. Rep.

No. 111-157, at 8 (2009) (directing DHS to ensure “that

the government’s huge investments in immigration en-

forcement are producing the maximum return in actual-

ly making our country safer” rather than merely

“rounding up as many illegal immigrants as possible”).

And as discussed further below, Congress can and does

provide for the possibility of making certain accommo-

dations for noncitizens who are not priorities for en-

forcement, such as authorization to obtain lawful em-

ployment.

But it would be impracticable and imprudent for

Congress to define enforcement priorities in such de-

tailed fashion that the Executive could never exercise

forbearance based on its own judgment, or to prescribe

all of the particular circumstances in which a given ac-

commodation might be provided to a noncitizen. “It is

not necessary,” this Court has observed in the immi-

gration context, “that Congress supply administrative

officials with a specific formula for their guidance in a

field where flexibility and the adaptation of the con-

gressional policy to infinitely variable conditions consti-

tute the essence of the program.” United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950). Ra-

ther, as Congress recognizes, the Executive’s superior

ability to monitor and respond to changing conditions

better places it to ensure that Congress receives a

sound return on the investment it makes in immigra-

tion enforcement—to know “whether agency resources

are best spent on this violation or another, whether the

agency is likely to succeed if it acts, whether the par-

ticular enforcement action requested best fits the agen-

cy’s overall policies, and, indeed, whether the agency

has enough resources to undertake the action at all.”

Heckler, 470 U.S. at 831.

B. Congress Has Directed The Executive To Set

Rational Enforcement Priorities And To

Adopt Policies To Implement Those Priorities

Congress, of course, “legislates against a back-

ground assumption of prosecutorial discretion.” Abuel-

hawa v. United States, 556 U.S. 816, n.3 (2009). As

this Court has “repeated time and again,” an agency

“has broad discretion to choose how best to marshal its

limited resources and personnel to carry out its dele-

gated responsibilities.” Massachusetts v. EPA, 549

U.S. 497, 527 (2007). But in crafting the Nation’s immi-

gration laws, Congress has not relied on implicit execu-

tive authority. Rather, Congress has explicitly made

“broad grants of discretion” to the Executive. Jean v.

Nelson, 727 F.2d 957, 965 (11th Cir. 1984) (en banc),

aff'd, 472 U.S. 846 (1985). Congress expressly author-

ized the Secretary (previously the Attorney General) to

“establish such regulations; ... issue such instructions;

and perform such other acts as he deems necessary for

carrying out his authority” to execute the INA, includ-

ing removal. § 1103(a)(3). Thus, as this Court has rec-

ognized, a “principal feature of the removal system is

the broad discretion exercised by immigration offi-

cials.” Arizona, 132 S. Ct. at 2499.

And Congress has gone further. It has explicitly

charged the Secretary of Homeland Security with re-

sponsibility for “{e)stablishing national immigration en-

forcement policies and priorities.” § 202(5). That

charge reflects Congress’s judgment that, given limited

resources, enforcement of the immigration laws should

not be willy-nilly, but should reflect rationai priorities.

At a minimum, those provisions authorize the Ex-

ecutive to define enforcement and removal priorities.

ADC, 525 U.S. at 483 (“At each stage” of removal, “the

Executive has discretion to abandon the endeavor.”);

Arizona, 132 S. Ct. at 2499 (“Federal officials, as an ini-

tial matter, must decide whether it makes sense to pur-

sue removal at all.”). But that is not the full ambit of

those provisions. They must also be understood to re-

flect Congress’s expectation that the Executive will set

enforcement priorities in a rational, consistent, and

measured way that focuses the limited enforcement re-

sources on the highest-priority cases. That may include

centralized guidance to channel line officers’ enforce-

ment decisions. The Executive need not “forswear use

of reasonable presumptions and generic rules’”’—even

where “some level of individualized determination” is

statutorily required. Reno v. Flores, 507 U.S. 292, 313

(1993).

Supplying guidance to line personnel is not only

permissible but desirable. Given the scale on which

immigration enforcement operates, centralized guid-

ance is needed to maintain coherence and rationality.

No one has an interest in haphazard enforcement of the

immigration laws, least of all the body that writes those

laws. Congress’s interest is for the Executive to allo-

cate limited enforcement resources in a non-arbitrary

and effective manner. That interest is served by cen-

tralized guidance that harmonizes and makes predicta-

ble the Executive’s enforcement policies and priorities.

That is not to say that the central office must or even

should direct how each case is to be decided; in properly

channeled immigration enforcement, there can be am-

ple room for case-by-case determinations and humani-

tarian judgment. But impairing the Executive’s ability

to define general criteria for the exercise of discretion

would undermine Congress’s ability to enact effective

legislation in the immigration context and elsewhere.

In fact, the promulgation of agency guidance chan-

neling the exercise of discretion in removal and other

immigration proceedings has become routine.’ Nor is

that practice limited to the immigration context; rather,

the heads of other agencies have promoted rational en-

forcement practice by providing clear guidance to the

field. The Department of Justice, for example, promul-

* See, ¢.g., J-A. 239-240, 247-248, 251 (Memorandum from Do-

ris Meissner, Commissioner, Immigration and Naturalization Ser-

vice, to Regional Directors et al., Exercising Prosecutorial Discre-

tion (Nov. 17, 2000)) (“Meissner Memorandum”) (directing INS

personnel to exercise discretion in enforcing the immigration laws,

describing the removal of “criminal and terrorist aliens” as a high

priority, and instructing personnel to “take into account the nature

and severity of’ an undocumented immigrant’s “criminal conduct”

in the exercise of their discretion); Memorandum from William J.

Howard, Principal Legal Advisor, ICE, to All Offices of the Prin-

cipal Legal Advisor Chief Counsel, Prosecutorial Discretion 8

(Oct. 24, 2005) (instructing ICE attorneys to exercise prosecutorial

discretion, and stating “DHS policy that national security viola-

tors, human rights abusers, spies, traffickers both in narcotics and

people, sexual predators and other criminals are removai priori-

ties”); Memorandum from Julie L. Myers, Assistant Secretary of

Homeland Security, to All Field Office Directors and Special

Agents in Charge of U.S. Immigration and Customs Enforcement,

Prosecutorial and Custody Discretion (Nov. 7, 2007) (directing

ICE personnel to comply with the Meissner Memorandum on

prosecutorial discretion).

gates extensive guidance regarding line prosecutors’

exercise of enforcement discretion.” The Justice De-

partment further channels the discretion of line prose-

cutors by directing them to “charge ... the most serious

offense that is consistent with the nature of the defend-

ant’s conduct, and that is likely to result in a sustaina-

ble conviction.”* Similarly, the Securities and Ex-

change Commission has prescribed factors a Director

should consider in ranking investigations by order of

priority and designating an investigation as a “National

Priority Matter.” And the Environmental Protection

Agency has similar guidance in place.’

The Secretary’s delegated authority to set en-

forcement priorities necessarily allows him to establish

mechanisms by which a noncitizen’s priority level can

be readily ascertained and to take due consideration of

* See, e.g., U.S. Attorneys’ Manual ch. 9-2.031 (2015) (setting

forth “guidelines for the exercise of discretion by appropriate of-

ficers of the Department of Justice in determining whether to

bring a federal prosecution based on substantially the same act(s)

or transactions involved in a prior state or federal proceeding’”’); id.

ch. 9-111.120 (setting value thresholds for the government to insti-

tute forfeiture proceedings for various types of assets).

> Id. ch. 9-27.300; see also Memorandum from Eric H. Holder,

Jr., to All Federal Prosecutors, Department Policy on Charging

and Sentencing (May 19, 2010).

° Securities and Exchange Commission, Enforcement Manual

§ 2.1.1 (2015).

’ Memorandum from Earl E. Devaney, Director, Office of

Criminal Enforcement, U.S. Environmental Protection Agency, to

All EPA Employees Working in or in Support of the Criminal En-

forcement Program, The Exercise of Investigative Discretion 2

(Jan. 12, 1994) (“establish{ing] the principles that will guide the

exercise of the [criminal] investigative discretion by EPA Special

Agents ... to maximize [EPA’s] limited criminal resources”).

the consequences of deciding not to remove a low-

priority person. Establishing priorities in immigration

enforcement inevitably means that some removable in-

dividuals will not be targeted for enforcement, at least

for a time. If the Secretary is to focus enforcement re-

sources on those persons who are deemed a priority for

removal—and, consequently, to defer enforcement

against those who are not—it is surely rational for the

agency to have some mechanism by which enforcement

personnel can verify whether someone is not a priority

for enforcement.

Congress also understands that forbearance from

removal has significant practical consequences for indi-

viduals. At its core, the forbearance decision involves a

judgment about whether a person should be allowed to

continue to live in the United States for the duration of

the Executive’s grace. If those persons are to be al-

lowed to remain here for a time, public safety and na-

tional security are better served by allowing them to

maintain stable familial and community ties and to

achieve economic self-sufficiency. Bringing them with-

in established regulatory structures rather than leav-

ing them in perpetual legal limbo not only serves hu-

manitarian goals; it also promotes the Nation’s inter-

ests in security and public safety that animate the im-

migration laws.

C. The DAPA Guidance Is Statutorily Authorized

1. The DAPA Guidance is fully authorized both as

an “enforcement polic[y]’ the Secretary is charged with

establishing under Section 202(5), and as an “act{]” the

Secretary has “deem[ed] necessary for carrying out”

his responsibilities pursuant to Section 1103(a)(3).

Building on the Secretary’s (unchallenged and

plainly valid) decision to prioritize for enforcement

“threats to national security, border security, and pub-

lic safety,” Pet. App. 423a,*° the DAPA Guidance estab-

lishes a policy that certain noncitizens who are not

within any of the categories the Secretary has priori-

tized for enforcement may be considered for “deferred

action.” Deferred action is not a formal immigration

status but rather is documented but revocable forbear-

ance from removal for a finite period that (under pre-

existing regulations) also permits an individual to seek

authorization to work lawfully during that period upon

a showing of economic need. Pet. App. 411a-419a; 8

C.F.R. § 274a.12(c)(14). Those features of the DAPA

Guidance are appropriate and reasonable means by

which the Secretary may implement enforcement prior-

ities and thereby further the efficient and effective re-

moval of noncitizens. Mourning v. Family Publ’ns

Serv., 411 U.S. 356, 369 (1973) (“Where the empowering

provision of a statute states simply that the agency

may ‘make ... such rules and regulations as may be

necessary to carry out the provisions of this Act, ... the

validity of a regulation promulgated thereunder will be

sustained so long as it is reasonably related to the pur-

poses of the enabling legislation.”).

First, deferred action and work authorization cre-

ate an incentive for low-priority noncitizens to identify

themselves to the Department of Homeland Security

and submit to a background check. Pet. App. 415a

* Memorandum from Jeh Charles Johnson, Secretary of Home-

land Security, to Thomas S. Winkowski, Acting Director, U.S.

Immigration and Customs Enforcement, et al., Policies for the

Apprehension, Detention and Removal of Undocumented Immi-

grants (Nov. 20, 2014).

(DAPA Guidance) (noting intent to encourage individu-

als “to come out of the shadows, submit to background

checks, pay fees, apply for work authorization (which

by separate authority [the Secretary] may grant), and

be counted”). That self-identification process enables

enforcement officials to confirm that applicants in fact

present low removal priority and to focus their atten-

tion and resources on investigating and processing

high-priority cases. Jd. 418a419a (instructing en-

forcement officials to “prevent the further expenditure

of enforcement resources” on individuals who may qual-

ify under DAPA, including by seeking administrative

closure of any pending removal proceedings); see also

U.S. Br. 45. The DAPA Guidance thus promotes public

safety and national security, for it ensures that millions

of individuals in the country without authorization can

be identified and screened.

There is certainly no statutory requirement that

the Secretary leave low-priority unauthorized persons

in the dark as to whether an enforcement action will be

brought against them. Widespread agency practice re-

flects the sensible judgment that persons who are not

facing enforcement in the near future should be allowed

to go about their lives without the constant fear and

anxiety of legal proceedings. In other contexts, for ex-

ample, the Justice Department and the SEC often pro-

vide letters to potential targets informing them of the

agency’s discretionary determination not to institute,

or to defer institution of, proceedings against them.

E.g., Pet. App. 117a (King, J., dissenting); Department

of Justice, Program for Non-Prosecution Agreements

or Non-Target Letters for Swiss Banks (Aug. 29, 2013);

Letter from Mark M. Attar, Senior Special Counsel,

SEC Division of Trading and Markets, to Christopher

M. Salter, Allen & Overy LLP (Mar. 12, 2015) (explain-

ing conditions under which SEC staff would not rec-

ommend enforcement against certain conduct by bro-

ker-dealers). Such letters ensure that agency person-

nel understand and adhere to the agency’s judgment,

and also play an important role in making discretionary

forbearance decisions transparent.

Second, by allowing those accorded deferred action

to obtain lawful work, the Secretary helps ensure that

his prioritization scheme is not self-defeating or other-

wise contrary to the public interest. Many individuals

permitted to remain in the United States, even tempo-

rarily, must work in order to survive. The Secretary

could properly determine that denying such people

work authorization during the period of forbearance

would undermine the incentive for them to report

themselves to the Department of Homeland Security,

impair the government’s ability to keep track of such

individuals, and perpetuate a situation in which millions

of individuals live “in the shadows.” Cf. Arizona, 132 S.

Ct. at 2504 (explaining that immigration law’s “frame-

work reflects a considered judgment that making crim-

inals out of aliens engaged in unauthorized work—

aliens who already face the possibility of employer ex-

ploitation because of their removable status—would be

inconsistent with federal policy and objectives”).’

” The States complain that receipt of deferred action or work

authorization makes the recipient eligible for various other federal

benefits, such as Social Security or Medicare. See Opp. 8-9. But it

is not the Secretary who decides that a particular individual should

weceive these particular federal benefits. Rather, eligibility for a

icular benefit reflects the judgment of Congress that, if a per-

son receives deferred action or work authorization, then that per-

son should also receive these benefits. See 8 U.S.C. § 1611(b)(2)

(Social Security benefits available to those who are “lawfully pre-

sent”); 8 C.F.R. § 1.3(a)(4)(vi) (“lawfully present” for purposes of

2. The Executive has long used deferred action

and similar practices to memorialize discretionary deci-

sions to refrain temporarily from removing a noncitizen

or class of noncitizens, and Congress has acquiesced in

those practices. “[O]nce an agency’s statutory con-

struction has been fully brought to the attention of the

public and the Congress, and the latter has not sought

to alter that interpretation although it has amended the

statute in other respects, then presumably the legisla-

tive intent has been correctly discerned.” United

States v. Rutherford, 442 U.S. 544, 554 n.10 (1979).

That is the case here.

Although deferred action began “without express

statutory authorization,” it long ago became a “regular

practice” and a “commendable exercise in administra-

tive discretion.” ADC, 525 U.S. at 484 (quotation

marks omitted). The Immigration and Naturalization

Service issued guidance on deferred action in 1975.

J.A. 184 (“CRS Analysis of June 15, 2012 DHS Memo-

randum”).'° Regulations recognizing deferred action

§ 1611(b)(2) includes those who have received “deferred action”);

§ 1611(b)(3) (Medicare benefits payable to noncitizen who is “law-

fully present” and “authorized to be employed”); 42 U.S.C.

§ 405(c\(2)(B\iXD (Social Security numbers assigned to nonciti-

zens when they become authorized to “engage in ... employment”);

26 U.S.C. § 32(c)(1(E) (Social Security number is condition of eli-

gibility for Earned Income Tax Credit); 26 U.S.C. § 3304(a)(14)(A)

(for federal funding purposes, States may pay unemployment com-

pensation to noncitizens who are “lawfully present”); 49 U.S.C.

§ 30301 note (state driver’s licenses are valid identification for fed-

eral purposes if issued only to certain classes of people, including

those with deferred action).

'° Bruno et al., Congressional Research Service, Analysis of

June 15, 2012 DHS Memorandum, Exercising Prosecutorial Dis-

cretion with Respect to Individuals Who Came to the United

States as Children (July 13, 2012).

have existed continuously since the 1980s. E.g., 8

C.F.R. § 109.1(b)(7) (1982) (stating that noncitizens

with deferred action are eligible to apply for work au-

thorization); id. § 274a.12(c)(14) (1988) (describing de-

ferred action as “an act of administrative convenience

to the government which gives some cases lower priori-

ty”); id. § 245a.2(b)(5) (1988) (providing that immi-

grants placed in deferred action before January 1, 1982

and meeting other criteria could apply for adjustment

to temporary residence status). As early as 1985, de-

ferred action and two similar forms of discretionary re-

lief from removal (stay of deportation and extended

voluntary departure) were “relatively routine.” Steph-

an, Extended Voluntary Departure and Other Blanket

Forms of Relief from Deportation, Congressional Re-

search Service, 85-599 EPW (Feb. 23, 1985).

Since the 1960s, administrations of both major po-

litical parties have continually used discretionary relief

from removal on both a case-by-case and a class-wide

basis. U.S. Br. 48; J.A. 209-212 (CRS Analysis of June

15, 2012 DHS Memorandum ); Wadhia, Sharing Secrets:

Examining Deferred Action and Transparency in

Immigration Law, 10 U.N.H. L. Rev. 1, 40-44 (2012)

(collecting data on uses of deferred action). In 1987, for

example, the Reagan Administration established the

Family Fairness Program, a policy by which district

directors in the Immigration and Naturalization Ser-

vice (“INS”) could choose not to remove some children

and spouses of immigrants whose status had become

lawful under the Immigration Reform and Control Act

of 1986. The Program provided that “INS district di-

rectors [could] exercise the Attorney General’s authori-

ty to indefinitely defer deportation of anyone for specif-

ic humanitarian reasons.” Nelson, INS Commissioner,

Legalization and Family Fairness—An Analysis (Oct.

21, 1987), appended to 64 Interpreter Releases No. 41,

1190, 1203 (Oct. 26, 1987).

President George H.W. Bush expanded the Family

Fairness Program in February 1990 to allow more

spouses of immigrants to qualify for deferral of depor-

tation (and to receive permission to work). The Admin-

istration issued policy guidance “to assure uniformity in

the granting of voluntary departure and work authori-

zation for the ineligible spouses and children of legal-

ized aliens.” J.A. 213."

In 2006, during the administration of President

George W. Bush, Immigration and Customs Enforce-

ment (“ICE”) reissued the Detention and Deportation

Field Officer’s Manual, chapter 20.8 of which set out the

procedures and standard for granting deferred action.’

Like the DAPA Guidance, the Manual stated clearly

that “deferred action is not an immigration status,” and

it enumerated “[flactors to be [cJonsidered ... as part of

a deferred action determination.” Ch. 20.8(a). The

Manual explained that, although deferred action “may,

on [its] face, look like a benefit grant,” it “really [is] just

[a] mechanism[] for formalizing an exercise of prosecu-

torial discretion.” Ch. 20.9.

Congress is well aware of that considerable record

of the Executive’s use of deferred action and other

forms of discretionary relief, and it has repeatedly

amended the immigration laws without barring de-

ferred action as a device for memorializing discretion-

'' McNary, INS Commissioner, Family Fairness: Guidelines

for Voluntary Departure under 8 CFR 242.5 for the Ineligible

Spouses and Children of Legalized Aliens (Feb. 2, 1990).

'? https//www.ice.gov/doclib/foia/dro_policy_memos/09684dro

fieldpolicymanual. pdf.

ary decisions to refrain from removal temporarily.

USCIS, Public Laws Amending the INA (May 2013)

isting dozens of public laws amending the INA since

1986).'’ Indeed, Congress has enacted laws explicitly

presupposing the Executive’s authority to use deferred

action. In doing so, it has gone “well beyond” a mere

failure to amend the law and has “manifested [congres-

sional] acquiescence” in that practice. Bob Jones Univ.,

461 US. at 601.

For example, Congress has provided that the “de-

nial of a request for an administrative stay of removal

under this subsection shall not preclude the alien from

applying for ... deferred action.” 8 U.S.C.

§ 1227(d)(2).'* Congress has even taken advantage of

the Executive’s practice of deferred action itself; for

decades, the very congressional committees that are

responsible for immigration have routinely asked the

Executive to grant unauthorized immigrants deferred

'? https//www.uscis.gov/iframe/ilink/docView/PUBLAW/HT™

L/PUBLAW/0-0-0-1 html.

'* See also 8 U.S.C. § 1154(aX\1XD)(iII) & (IV) (specifying

that certain victims of domestic violence are “eligible for deferred

action and work authorization”); Uniting and Strengthening Amer-

ica By Providing Appropriate Tools Required to Intercept and

Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. No.

107-56, § 423(b)(1) & (2), 115 Stat. 272, 361 (specifying that certain

relatives of certain individuals killed in the terrorist attacks of

Sept. 11, 2001, “may be eligible for deferred action and work au-

thorization”); National Defense Authorization Act for Fiscal Year

2004 (“NDAA”), Pub. L. No. 108-136, § 1703(c)(d), 117 Stat. 1392,

1694-1695 (2003) (specifying that certain relatives of certain indi-

viduals killed in combat “shall be eligible for deferred action, ad-

vance parole, and work authorization”); Emergency Supplemental

Appropriations Act for Defense, the Global War on Terror, and

Tsunami Relief, Pub. L. No. 109-13, § 202(cX2 BX viii), 119 Stat. 231,

313 (2005) (codified at 49 U.S.C. § 30301 note) (listing “approved

deferred action status” as a basis for issuing driving licenses).

action or stays of removal while the committee consid-

ered private bills for relief from enforcement of the

immigration laws.'° At this late date, there can be no

serious doubt that deferred action, with its attendant

legal consequences including work authorization, is a

valid form of discretionary forbearance available to the

Secretary in cases or classes of cases that he deems ap-

propriate.

3. Congress has also long accorded the Executive

the discretion to determine that certain noncitizens—

including but not limited to those eligible for deferred

action—should be eligible to apply for work authoriza-

tion. Since 1986, the Nation’s immigration laws have

provided that an employer may hire a noncitizen if that

person is “authorized to be ... employed by this chapter

or by the Attorney General” (now the Secretary). 8

U.S.C. § 1324a(h\(3). (emphasis added). In enacting

that provision, Congress granted the Executive “broad

discretion to determine when noncitizens may work in

the United States.” Arizona Dream Act Coal. v. Brew-

er, 757 F.3d 1053, 1062 (9th Cir. 2014).

'> See, ¢.g., Maguire, Immigration: Public Legislation and

Private Bills 23-25, 253-255 (1997); Letter from Elliot Williams,

Assistant Director, Immigrations and Customs Enforcement, to

Hon. Elton Gallegly, Chairman, Subcommittee on Immigration

Policy and Enforcement, Committee on Judiciary, U.S. House of

Representatives (Nov. 9, 2011) (stating that “[pjursuant to the

agreement between DHS and Congress, ... [DHS] will temporarily

grant deferred action to the beneficiary” of a private bill for the

relief of an unauthorized immigrant, and noting that under 8

C.F.R. § 274a.12(c)(14), the beneficiary could “file for work author-

ization”); Subcommittee on Immigration and Border Security of

the House Committee on the Judiciary, 114th Cong., Rules of Pro-

cedure and Statement of Policy for Private Immigration Bills, R. 5

(“In the past, the Department of Homeland Security has honored

requests for departmental reports by staying deportation until

final action is taken on the private bill.”).

The Secretary's authority under Section

1324a(h)(3) encompasses the settled practice of accord-

ing eligibility for work authorization to noncitizens who

receive deferred action. In 1981, five years before

Congress enacted Section 1324a(h)(3), the Executive

promulgated a regulation (after notice and comment)

codifying decades of administrative practice permitting

any noncitizen who receives deferred action to apply

for work authorization upon a showing of economic ne-

cessity. Employment Authorization to Aliens in the

United States, 46 Fed. Reg. 25,079 (May 5, 1981); see 8

C.F.R. § 109.1 (1982); U.S. Citizenship and Immigration

Services, Adjudicator’s Field Manual, ch. 38.2. That

Congress enacted the broad discretionary language of

Section 1324a(h)(3) against that background confirms

that it intended to approve of the Executive’s pre-

existing practice of linking work authorization and de-

ferred action and to authorize that practice to continue.

And continue it has. Explicitly invoking Section

1324a(h)(3) the year after it was enacted, the Executive

promulgated 8 C.F.R. § 274a.12(c)(14) (1988), which re-

codified the practice of permitting noncitizens who are

granted deferred action to apply for work authorization

upon a showing of economic necessity. Control of Em-

ployment of Aliens, 52 Fed. Reg. 16,221, 16,228 (May 1,

1987). That regulation remains in force today. And the

Executive has repeatedly reaffirmed in other ways its

position that it is appropriate to extend eligibility for

work authorization to those who receive deferred ac-

tion. For example, in 2006 ICE directed all field offic-

ers that “[aJlthough deferred action is not an immigra-

tion status, an alien may be granted work authorization

based on deferred action in his or her case, pursuant to

8 CFR 274a.12(c)(14).” ICE, Detention and Deporta-

tion Field Officer’s Manual ch. 20.8(d); see also, e.g., J.A.

209-212 (CRS Analysis of June 15, 2012 DHS Memo-

randum).

Congress has enacted legislation confirming the

linkage of deferred action and work authorization. 8

U.S.C. § 1154(a)(1)(D)iX ID) & (IV); USA Patriot Act

§ 423(b)(1) & (2); 2004 NDAA § 1703(c)-(d). And it has,

on occasion, specifically decided that certain persons

should be ineligible for work authorization.'® Congress

has also amended Section 1324a(h)(3) in other respects.

Immigration Act of 1990, Pub. L. No. 101-649, §§ 521(a),

538, 104 Stat. 5053, 5056. But, as with deferred action,

Congress has never foreclosed the Executive’s authori-

ty to allow those persons who are permitted to remain

in the country temporarily to obtain lawful employment

so that they will not be relegated to illegal activity to

survive. Like the Executive’s discretionary authority

to extend deferred action in the first place, the Execu-

tive’s discretion to extend work authorization to recipi-

ents of deferred action is securely in place.

D. The Court of Appeals’ Decision And The

States’ Arguments Reflect A Flawed Mode Of

Analysis

The court of appeals nonetheless held that the

DAPA Guidance is “manifestly contrary to the INA”

because the INA “directly” and “precise[ly]” prohibited

the Secretary’s action. Pet. App. 70a-7la, 76a, 85a.

That conclusion was wrong, and reflects a flawed ap-

proach to broad, discretion-granting provisions like

those in the Nation’s immigration laws.

for noncitizens with pending removal proceedings); § 1231(a)7)

(restrictions on work authorization for noncitizens ordered re-

moved).

There is no provision anywhere in the Nation’s im-

migration laws that prohibits the Executive from tak-

ing an action like the DAPA Guidance. The court of

appeals’ analysis—which focused principally on differ-

ent forms of administrative relief available to different

classes of persons—cannot be squared with the broad

grants of discretionary authorities Congress has af-

forded the Executive in the immigration context. Re-

quiring Congress to specify every form of enforcement

forbearance and attendant accommodation that the Ex-

ecutive can undertake would seriously undermine Con-

gress’s fundamental objective that the Secretary im-

plement the Nation’s immigration laws in a rational and

effective manner consistent with resource constraints.

The court of appeals’ approach could frustrate Con-

gress’s ability to vest the Executive with flexibility, not

just in the immigration context but also in other com-

plex regulatory fields where enforcement needs shift

over time.

1. The crux of the court of appeals’ decision was

its conclusion that deferred action, as a form of relief

available in the Secretary’s discretion, would under-

mine Congress’s decision in the INA to make eligibility

to remain in this country available only to specific clas-

ses of persons and only under specific circumstances.

Thus, the court of appeals stated, “In specific and de-

tailed provisions, the INA expressly and carefully pro-

vides legal designations allowing defined classes of al-

iens to be lawfully present,” such as lawful permanent

resident status and refugee status, and “confers eligi-

bility for discretionary relief allowing [aliens in depor-

tation proceedings] to remain in the country,” such as

cancellation of removal. Pet. App. 71a (quotation marks

omitted). In the court of appeals’ view, the DAPA

Guidance “would allow illegal aliens to receive the ben-

efits of lawful presence ... without complying with any

of the requirements ... that Congress has deliberately

imposed” to obtain those various forms of status and

discretionary relief. Jd. 73a.

That approach to the INA is fundamentally flawed.

Deferred action is not a substitute for those specified

statutory statuses and forms of discretionary relief, nor

is it an end-run around the statutory requirements for

obtaining them. For example, lawful permanent resi-

dent status confers the right to remain in the United

States for life, to apply for citizenship after five years,

and to petition for the admission of close family mem-

bers, and can be rescinded only if certain limited condi-

tions occur. 8 U.S.C. §§ 1153(a)(2), 1227, 1256(a) &

1427(a). Deferred action confers none of those benefits.

Indeed, as the DAPA Guidance emphasizes, deferred

action does not confer “any form of legal status” or any

“substantive right, immigration status or pathway to

citizenship.” Pet. App. 413a, 419a. Nor does deferred

action confer immunity from the immigration laws. Ra-

ther, deferred action may be “terminated at any time at

the agency’s discretion.” Jd. 413a."’

By treating the immigration laws’ explicit provision

for certain kinds of status or relief as precluding discre-

tionary use of deferred action as contemplated by the

DAPA Guidance, the court of appeals in effect invoked

the canon of expressio unius est exclusio alterius (not-

withstanding the court’s disclaimer that it was not do-

ing so, Pet. App. 77a). That approach to statutory in-

'? Although deferred action may mean that a person is “law-

fully present” under certain narrow statutory provisions, lawful

“presence” and lawful “status” “are distinct concepts” in the INA

with substantially different implications. Chaudhry v. Holder, 705

F.3d 289, 292 (7th Cir. 2013).

terpretation is inapt here, for several reasons. First, as

Judge King explained in dissent below, Pet. App. 148a-

149a, reliance on that canon is perilous in interpreting a

sprawling statute like the INA, which Congress has

added to and amended many times and in piecemeal

fashion over decades. It is also an unreliable method

for construing a law that emphasizes wide-ranging ex-

ecutive discretion so that the agency can have maxi-

mum flexibility in carrying out Congress’s objectives.

The court of appeals’ interpretive approach could seri-

ously inhibit Congress’s ability to ensure that agencies

have the tools they need to respond to changing cir-

cumstances, especially where Congress may not be able

to foresee all the challenges that may emerge or to act

with dispatch when unanticipated ones arise.

Second, although the immigration laws do refer ex-

plicitly to some kinds of discretionary relief, they are

also not silent about deferred action. Rather, they ex-

plicitly recognize and take as a given the longstanding

administrative practice of deferred action. Supra pp.

20-22. Indeed, one of the “specific and detailed provi-

sions” cited by the court of appeals states that deferred

action may be available even if another form of relief,

administrative stay, is denied. § 1227(d)(2), cited in

Pet. App. 7la n.163. Yet the court of appeals viewed

those statutory references to deferred action as sup-

porting its conclusion that Congress prohibited the

DAPA Guidance’s use of deferred action. The court

said that those provisions “identified narrow classes of

aliens eligible for deferred action,” none of which in-

cluded the classes covered by the DAPA Guidance.

Pet. App. 7la-72a. But that is just another application

of expressio unius, and it is again inapt because it ig-

nores the immigration laws’ broad grants of discre-

tion—indeed responsibility—to the Secretary to set

appropriate priorities and policies for enforcement and

to take acts he deems necessary for carrying out his re-

sponsibilities. § 1103(a)(3); § 202(5).

The court of appeals dismissed those grants of dis-

cretionary authority, believing that they “cannot rea-

sonably be construed as assigning decisions of vast eco-

nomic and political significance ... to an agency.” Pet.

App. 79a (quoting Utility Air Regulatory Grp. v. EPA,

134 S. Ct. 2427, 2444 (2014)); see also Pet. App. 76a

(quoting King v. Burwell, 135 S. Ct. 2480, 2489 (2015)).

The precedents on which the court relied, however, do

not support its conclusion here. Unlike the DAPA

Guidance, the agency interpretations at issue in those

cases were not based on explicit broad grants of rele-

vant authority, but rather were “inconsistent with—in

fact, would [have] overthrow[n]—the [statute’s] struc-

ture and design,” and contradicted “unambiguous stat-

utory terms” by “purport[ing] ... to establish with the

force of law that otherwise-prohibited conduct will not

violate the Act.” Utility Air, 134 S. Ct. at 2442, 2445;

cf. King, 135 S. Ct. at 2488-2489.

No statutory text purports to limit the Secretary's

discretion to accord deferred action. Rather, as this

Court has observed, “Congress knows to speak in ...

capacious terms when it wishes to enlarge[] agency dis-

cretion,” City of Arlington v. FCC, 133 S. Ct. 1868,

1868 (2013), and in the Nation’s immigration laws, Con-

gress has done just that in a field where enforcement

discretion is paramount. See also Massachusetts, 549

U.S. at 532 (“The broad language of § 202(a)(1) [of the

Clean Air Act] reflects an intentional effort to confer

the flexibility necessary to forestall ... obsolescence.”).

Indeed, the Executive has on many occasions made

deferred action available to noncitizens who were not

covered by any of the explicit statutory provisions for

deferred action. See supra pp. 19-20. And as discussed

above, Congress has acquiesced in those uses of de-

ferred action. The court of appeals suggested that those

prior uses of deferred action “are not analogous to

DAPA” because they were “done on a country-specific

basis, usually in response to” a crisis, or “were bridges

from one legal status to another.” Pet. App. 8la-82a.

On the contrary, many prior uses of deferred action fit

neither of those categories. Wadhia, 10 U.N.H. L. Rev.

at 42-43 (collecting data on uses of deferred action). In

any event, there is no reason to conclude that Congress

intended the broad discretion it granted the Executive

to reach only those categories. Nor is DAPA’s antici-

pated scale aberrational. At the time the Family Fair-

ness Policy was issued in 1990, the Executive publicly

predicted that it would reach 1.5 million noncitizens,

which constituted “about 40% of the total removable

population at the time.” Pet. 7; see also U.S. Br. 64. An

estimated 38% of the total removable population would

be eligible for DAPA. Pet. App. 161a.'

2. The court of appeals took a similarly erroneous

approach to work authorization, remarking that the

INA “specifies classes of aliens eligible and ineligible

for work authorization ... with no mention of the class

of persons whom [the DAPA Memorandum] would

make eligible for work authorization.” Pet. App. 74a-

75a. But Congress has made clear that the Secretary’s

authority to grant work authorization is not limited to

—_—

'® Just as not all eligible noncitizens sought relief under the

Family Fairness Program, there is no guarantee that al) noncitizens

eligible for relief under the DAPA Guidance would apply for it.

30)

the categories specifically made eligible in various stat-

utory sections. As detailed above, not only do Sections

202(5) and 1103(a)(3) contain broad grants of authority

to establish policies and necessary implementing regu-

lations, but also Section 1324a(h)(3) specifically grants

the Executive broad discretion to grant work authori-

zation in addition to the authorization provided else-

where in the INA. Moreover, Congress enacted Sec-

tion 1324a(h)(3) long after the Executive had adopted a

practice of and regulations for providing work authori-

zation to many classes of noncitizens other than those

who are specifically identified in the INA, including

those who have received deferred action. 8 C.F.R.

§ 274a.12(a)(11), (c)(1)-(7), (9)-(12), (14), (16)-(17) & (21);

U.S. Br. 63-64. In short, Congress has granted the

right to apply for work authorization for certain classes

of noncitizens, prohibited it for certain others, and giv-

en the Secretary discretion to determine whether to

grant it to others, including those who have received

deferred action."

The court of appeals also suggested that Section

1324a(h\(3) would be “an exceedingly unlikely place” to

find the requisite authority to extend work authoriza-

tion to individuals granted deferred action. Pet. App.

79a. It reached that conclusion because that provision

“does not mention lawful presence or deferred action,

” The court of appeals suggested that “it would be reasonable

to construe § 274a.12(c)(14) as pertaining only to those classes of

aliens identified by Congress as eligible for deferred action and

work authorization.” Pet. App. 196a n.96 (emphasis added). The

regulation contains no such limitation, however, and such a reading

would not reflect congressional intent, given that Congress has

long been aware that the Executive has used its broad discretion

to grant deferred action and work authorization to persons outside

the categories specified in the INA.

and ... is listed as a ‘[mlJiscellaneous’ definitional provi-

sion expressly limited to § 1324a, a section concerning

the ‘Unlawful employment of aliens.” /d. 78a-79a. That

reasoning reflects a serious misunderstanding. Section

1324a(h)(3) is a component of the INA’s employment-

authorization provisions, which make it unlawful for

employers to hire any “unauthorized alien.”

§ 1324a(a)(1)(A). Compliance is assured principally

through enforcement against employers. Arizona, 132

S. Ct. at 2504. A section defining “unauthorized alien”

is thus a natural place for Congress to specify that the

Secretary may authorize noncitizens to seek employ-

ment. Arizona Dream Act Coal., 757 F.3d at 1062 (Sec-

tion 1324a(h)(3) vests Executive with “broad discretion

to determine when noncitizens may work in the United

States”).

The States contend that interpreting Section

1324a(h)(3) as a general grant of discretionary authori-

ty “would make surplusage of the numerous INA pro-

visions that empower the Executive to authorize work

for targeted classes of aliens.” Opp. 33. But the court

of appeals’ and the States’ approach would make sur-

plusage of the phrase “or by the Attorney General” in

Section 1324a(h)(3), since defining “unauthorized alien”

to exclude noncitizens “authorized to be so employed by

this chapter” would have sufficed to cover noncitizens

authorized to work pursuant to the INA’s more specific

grants. There is nothing inconsistent with Congress

providing the Executive general authority to deter-

mine eligibility for work authorization, while in particu-

lar cases making clear that a certain class of individuals

is or is not eligible for work authorization.

In the immigration laws, Congress reserved certain

policy decisions for itself—deciding that certain per-

sons should, or should not, be eligible for relief—and

empowered the agency to examine, as circumstances

might arise, whether other persons or categories of

persons should or should not be eligible. That is how

Congress has legislated in the immigration field and

other fields for decades, and Congress depends on that

administrative flexibility to ensure that its policies can

be implemented in a rational, efficient, and fair way.

ll. THE DAPA GUIDANCE PRESENTS NO ISSUE UNDER

THE TAKE CARE CLAUSE

The Court should not reach the States’ argument

that the DAPA Guidance violates the Take Care

Clause. That Clause, which provides that the President

“shall take Care that the Laws be faithfully executed,”

U.S. Const. art. II, § 3, is undoubtedly a critical part of

the constitutional design, and Congress does have a vi-

tal interest in ensuring that the President takes care

that the laws it enacts are faithfully executed. Con-

gress has at its disposal, and regularly uses, many

tools—including gathering information through agency

reports, hearings, and investigations, and controlling

appropriations—to ensure that the President does so.

The Nation’s long history reflects a continual and

vibrant dialogue between the Legislative and Execu-

tive Branches about the proper implementation of fed-

eral statutes. Perhaps the day may come when this

Court is called upon, as a matter of urgent necessity, to

decide whether the President has abandoned his consti-

tutional obligation to faithfully execute the laws, but

this is not that case. To the contrary, this is a straight-

forward statutory-interpretation case—to be sure, one

with significant consequences, but not one in which

there is any need to reach the Take Care Clause issue.

Judicial enforcement of the Take Care Clause pre-

sents many difficulties.” Regardless, in this case the

States’ effort to invoke the Take Clare Clause must fail

at the threshold because “claims simply alleging that

the President has exceeded his statutory authority”—

which is the import of the States’ claim—“are not ‘con-

stitutional’ claims.” Dalton v. Specter, 511 U.S. 462, 473

(1994). This case “concern{s] only issues of statutory

interpretation,” id. at 474 n.6: if the DAPA Guidance is

within the Secretary’s statutory authority, then it by

definition reflects the faithful execution of the law; oth-

erwise, the DAPA Guidance is simply ultra vires, and

there would be no need to reach any constitutional is-

sue. Id. at 472 (“If all executive actions in excess of

statutory authority were ipso facto unconstitutional, ...

there would ... be[] little need ... for our specifying un-

constitutional and ultra vires conduct as separate cate-

gories.”); see also Bond v. United States, 134 S. Ct. 2077,

2087 (2014) (“it is a well-established principle governing

the prudent exercise of this Court’s jurisdiction that

normally the Court will not decide a constitutional ques-

2° A claim under the clause might not be justiciable. See

Lujan v. Defenders of Wildlife, 04 U.S. 555, 577 (1992) (suggest-

ing that suits under Take Care Clause violate separation of pow-

ers); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) (“The

province of the court is ... not to enquire how the executive, or

executive officers, perform duties in which they have a discre-

tion.”); Heckler, 470 U.S. at 832 (non-enforcement decisions have

“long been regarded as the special province of the Executive

Branch”); Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012) (“con

troversy involves a political question ... where there is a textually

demonstrable constitutional commitment of the issue to a coordi-

nate political department”). Also unclear is what role the clause

plays in a case like this, where the act challenged is not the Presi-

dent’s but rather an agency’s. See Lujan, 504 U.S. at 577 (“take

Care” duty is “the Chief Executive's”).

tion if there is some other ground upon which to dispose

of the case” (quotation marks omitted)).

Moreover, whatever the meaning or judicially en-

forceable scope of the Take Care Clause, the DAPA

Guidance does not contravene it. Cf. New York v.

United States, 505 U.S. 144, 185-186 (1992) (concluding

that federal statute did not violate Guarantee Clause of

Article IV, Section 4, “even if we assume that petition-

ers’ claim is justiciable”). As discussed above, the

DAPA Guidance reflects a decision by the Secretary,

acting within finite congressional appropriations insuf-

ficient to remove every removable noncitizen, to chan-

nel DHS’s enforcement efforts according to a set of re-

moval priorities and to make practical accommodations

for low-priority noncitizens during their temporarily

continued presence. That is not a deviation from the

obligation to faithfully execute the laws; it is its fulfill-

ment. Congress has expressly directed the Secretary

to set priorities and policies for carrying out his duties

under the immigration laws and to enforce those laws

in an efficient manner, and that is exactly what the Sec-

retary has done. § 202(5); supra pp. 11-17. Nor is there

any evidence that the Secretary has abdicated his en-

forcement responsibilities; to the contrary, DHS annu-

ally deports hundreds of thousands of noncitizens—a

number that, because of limited resources, is far fewer

than the estimated 1.4 million noncitizens who come

within the prioritized categories. U.S. Br. 9. Choosing

rational enforcement over haphazard enforcement

within the resource constraints that Congress itself has

set—as the DAPA Guidance does—is a “faithful[] ex-

ecutlion]}” of the law. See Heckler, 470 U.S. at 832.

CONCLUSION

The Court should reverse the court of appeals’

judgment and vacate the injunction.

Respectfully submitted.

KENNETH L. SALAZAR SETH P. WAXMAN

WILMER CUTLERPICKERING Counsel of Record

HALE AND DORR LLP JAMIE S. GORELICK

1225 Seventeenth St. PAUL R.Q. WOLFSON

Suite 1660 DAVID M. LEHN

Denver, CO 80202 SAURABH H. SANGHVI

RYAN MCCARL

JOHN B. SPRANGERS*

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com

MARCH 2016

* Admitted to practice in California. Supervised by

members of the firm who are members of the District of

Columbia Bar.

APPENDIX

LIST OF AMICI CURIAE

U.S. House of Representatives

Alma S. Adams

Pete Aguilar

Karen Bass

Joyce Beatty

Xavier Becerra

Ami Bera

Donald S. Beyer, Jr.

Sanford D. Bishop, Jr.

Earl Blumenauer

Suzanne Bonamici

Madeleine Z. Bordallo

Brendan F’. Boyle

Robert A. Brady

Corrine Brown

Julia Brownley

Cheri Bustos

G.K. Butterfield

Lois Capps

Michael E. Capuano

Tony Cardenas

John C. Carney, Jr.

André Carson

Matt Cartwright

Kathy Castor

Joaquin Castro

Judy Chu

David N. Cicilline

Katherine M. Clark

Yvette D. Clarke

Wm. Lacy Clay

Emanuel Cleaver

James E. Clyburn

Steve Cohen

Gerald E. Connolly

John Conyers, Jr.

Jim Cooper

Jim Costa

Joe Courtney

Joseph Crowley

Henry Cuellar

Elijah E. Cummings

Danny K. Davis

Susan A. Davis

Peter A. DeFazio

Diana DeGette

John K. Delaney

Rosa L. DeLauro

Suzan K. DelBene

Mark DeSaulnier

Theodore E. Deutch

Debbie Dingell

Lloyd Doggett

Michael F’. Doyle

Tammy Duckworth

Donna F.. Edwards

Keith Ellison

Eliot L. Engel

Anna G. Eshoo

Elizabeth H. Esty

Sam Farr

Chaka Fattah

Bill Foster

Lois Frankel

Marcia L. Fudge

Tulsi Gabbard

Ruben Gallego

John Garamendi

Gwen Graham

Alan Grayson

Al Green

Gene Green

Rail M. Grijalva

Luis V. Gutiérrez

Janice Hahn

Alcee L. Hastings

Denny Heck

Brian Higgins

James A. Himes

Rubén Hinojosa

Michael M. Honda

Steny H. Hoyer

Jared Huffman

Steve Israel

Sheila Jackson Lee

Hakeem S. Jeffries

Eddie Bernice Johnson

Henry C. “Hank” Johnson, Jr.

Marcy Kaptur

William R. Keating

Robin L. Kelly

Joseph P. Kennedy, III

Daniel T. Kildee

Derek Kilmer

Ron Kind

Ann Kirkpatrick

Ann M. Kuster

James R. Langevin

John B. Larson

Brenda L. Lawrence

Barbara Lee

Sander M. Levin

John Lewis

Ted Lieu

David Loebsack

Zoe Lofgren

Alan S. Lowenthal

Nita M. Lowey

Ben Ray Lujan

Michelle Lujan Grisham

Carolyn B. Maloney

Sean Patrick Maloney

Doris O. Matsui

Betty McCollum

Jim McDermott

James P. McGovern

Jerry McNerney

Gregory W. Meeks

Grace Meng

Gwen Moore

Seth Moulton

Patrick Murphy

Jerrold Nadler

Grace F’. Napolitano

Richard E. Neal

Richard M. Nolan

Donald Norcross

Eleanor Holmes Norton

Beto O’Rourke

Frank Pallone, Jr.

Bill Pascrell, Jr.

Donald M. Payne, Jr.

Nancy Pelosi

Ed Perlmutter

Scott H. Peters

Pedro R. Pierluisi

Chellie Pingree

Stacey E. Plaskett

Mark Pocan

Jared Polis

David E. Price

Mike Quigley

Charles B. Rangel

Kathleen M. Rice

Cedric L. Richmond

Lucille Roybal-Allard

Raul Ruiz

C.A. Dutch Ruppersberger

Bobby L. Rush

Tim Ryan

Gregorio Kilili Camacho Sablan

Linda T. Sanchez

Loretta Sanchez

John P. Sarbanes

Janice D. Schakowsky

Adam B. Schiff

Kurt Schrader

David Scott

Robert C. “Bobby” Scott

José E. Serrano

Terri A. Sewell

Brad Sherman

Albio Sires

Louise McIntosh Slaughter

Adam Smith

Jackie Speier

Eric Swalwell

Mark Takai

Mark Takano

Bennie G. Thompson

Mike Thompson

Dina Titus

Paul Tonko

Norma J. Torres

Niki Tsongas

Chris Van Hollen

Juan Vargas

Marc A. Veasey

Filemon Vela

Nydia M. Vel4zquez

Timothy J. Walz

Debbie Wasserman Schultz

Maxine Waters

Bonnie Watson Coleman

Peter Welch

Frederica S. Wilson

John A. Yarmuth

U.S. Senate

Tammy Baldwin

Michael F’. Bennet

Richard Blumenthal

Cory A. Booker

Barbara Boxer

Sherrod Brown

Maria Cantwell

Benjamin L. Cardin

Thomas R. Carper

Robert P. Casey, Jr.

Christopher A. Coons

Richard J. Durbin

Dianne Feinstein

Al Franken

Kirsten Gillibrand

Martin Heinrich

Mazie K. Hirono

Tim Kaine

Amy Klobuchar

Patrick J. Leahy

Edward J. Markey

Robert Menendez

Jeffrey A. Merkley

Barbara A. Mikulski

Christopher S. Murphy

Patty Murray

Bill Nelson

Gary C. Peters

Jack Reed

Harry Reid

Bernard Sanders

Brian Schatz

Charles E. Schumer

Jeanne Shaheen

Debbie Stabenow

10a

Mark R. Warner

Elizabeth Warren

Sheldon Whitehouse

Ron Wyden

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.