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 United States

UNITED STATES, et ai.,

Petitioners,

Vv.

TEXAS, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR AMICI CURIAE

SAVE JOBS USAAND THE WASHINGTON

ALLIANCE OF TECHNOLOGY WORKERS

IN SUPPORT OF RESPONDENTS

JOHN M. MIANO*

IMMIGRATION REFORM LAW INSTITUTE

25 Massachusetts Ave., NW, Suite 335

Washington, DC 20001

(202) 232-5590

litigation@irli.org

*Counsel of Record

Attorney for Amici Curiae

_——$——

COCKLE LEGAL BRIEFS (800) 225-6964

WWW .COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

ey GE SHEF EI eekeictnicnceccetccececesdicntions iv

INTEREST OF AMICI CURIAE .....................00+. 1

SUMMARY OF THE ARGUMENT....................... 3

IT cnnisieavedaseicddantevcleniedeenendanaiteamedinetenic: 5

I. DHS makes the striking claim that it has

“dual authority” with Congress to author-

ize aliens to work in the United States..... 6

Il. If Congress conferred dual authority on

the Executive to grant employment au-

thorizations, no one can definitively point

to where that authority was created......... 8

Ill. If Congress provided the Executive dual

authority to grant employment to classes

of aliens, Congress hid that expansive

grant within a mousehole.......................... 10

A. Subsection 1103(a) could not have

provided the Executive unfettered

authority to grant alien employment

because the Secretary of Labor was

responsible for ensuring alien labor

did not adversely affect American

I suiccnsenacdsdnbsiteessnieniinsitbsdasitcaantibendty 11

B. Subsection 1324a(h)\(3) is merely a

definitional provision explicitly lim-

ited in scope to its section ................... 12

VI.

VII.

TABLE OF CONTENTS -— Continued

Page

C. Petitioners’ argument that § 1324a(h\3)

ratifies its claim of dual authority

with Congress to define classes of al-

iens who may work in the United

States 16 MOMSSRGISDE ...00000cccccsccescesceeees

D. The claim that § 1324a(h)(3) author-

izes the Executive to define classes of

aliens eligible for employment is

largely a new invention........................

There is no connection between enforce-

ment discretion and work authorizations...

Adopting the Petitioners’ claim of author-

ity to grant work permits to any alien

will allow the Executive to wipe out all

protections for American workers in the

immigration system and reverse past ju-

GRCIEE TBST BTOEREIOR 600.0000 cccecccccceccesceceseseses

If the Court holds the Executive has the

authority to define classes of aliens who

may work in the United States the coun-

try no longer has a viable immigration

The States’ standing to challenge DAPA

i ikcericnsectbigenitdiapeneetcsegides

A. Texas’s injury of providing drivers’ li-

censes is not self-inflicted because it

tracks federal law...................ccccccceeeeee

TABLE OF CONTENTS -— Continued

Page

The states do not present a general-

ized grievance because they have pled

a cause of action explicitly authorized

I ca icsinianigchindanidiidinasbhilemninieieiios

An action that creates incidental

effects that are likely to cause harm

has routinely been an injury-in-fact

that confers standing on parties .........

The Federal courts serve the key role

as arbiter between the Executive and

Legislature under the Administrative

IID oo ichcainidetnieniisbhiencebhcpetiimeniabl

Se atcsatinnecesresactenssetionprrebinseinispnshinmmnnen

TABLE OF AUTHORITIES

Page

CASE Law:

Allen v. Wright, 468 U.S. 737 (1984) .........ccccccccceeeeeees 27

Ariz. DREAM Act Coal. v. Brewer, 757 F.3d

1063 (Oth Cir. Ariz. 3014)..............00cccccss000e 25, 26, 27

Arizona v. United States, 132 S. Ct. 2492 (2012).....23, 31

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015).....30, 32

Ass'n of Data Processing Serv. Orgs. v. Camp,

Oe ny I aii 29

Chevron, U.S.A. v. NRDC, 467 U.S. 837 (1984)........... 6

Clark v. Martinez, 543 U.S. 371 (2005)...................... 13

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

PENT scien cnlinainiagndinimabeuimabsianensibgnisiesiibaetakinibiaionhs 30

Devlin v. Scardelletti, 536 U.S. 1 (2002).................... 27

Fairchild v. Hughes, 258 U.S. 126 (1922).................. 28

og eS lS a) ee 28

Fed’n for Am. Immigration Reform v. Reno, 93

ee i ee 31

Int'l Longshoremen’s & Warehousemen’s Union

v. Meese, 891 F.2d 1374 (9th Cir. 1989).................. 22

Int'l Union of Bricklayers & Allied Craftsmen v.

Meese, 761 F.2d 798 (D.C. Cir. 1985)................ 22, 32

Int'l Union of Bricklayers & Allied Craftsmen v.

Meese, 616 F. Supp. 1387 (N.D. Cal. 1985) ...... 22, 32

King v. Burwell, 135 S. Ct. 2480 (2015)...........0..ccee 9

TABLE OF AUTHORITIES — Continued

Page

La. Energy & Power Auth. v. FERC, 141 F.3d

I I 29

Lance v. Coffman, 549 U.S. 437 (2007)...................04. 28

Massachusetts v. EPA, 549 U.S. 497 (2007)............... 25

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

United States, 562 U.S. 44 (2011)................... ee. 6

NCUA vy. First Nat'l Bank & Trust, 522 U.S.

SPT Tl acin\ssctentclanddinaiinehiaceaulbidbidiinobedediideientagaenstines 29

Platt v. Union P. R., 99 U.S. 48 (1879)..................0060. 16

Programmers Guild v. Chertoff, 338 Fed. Appx.

ESR See i ae 32

Pub. Interest Research Group v. Powell Duffryn

Terminals, 913 F.2d 64 (3d Cir. 1990) .................... 25

Raines v. Byrd, 521 U.S. 811 (1997)...................0.c.00e 31

Salazar v. Buono, 559 U.S. 700 (2010) ................00006. 24

Sale v. Haitian Ctrs. Council, 509 U.S. 155

(RETREAT SORA EE Coes Pe emp me ROSE 24

Simon v. E. Ky. Welfare Rights Org., 426 U.S.

ee aiheacinnicssseciesieninaittnesintusidndesicaetactlebisondinadabidipiiedbimsechiont 24

Sure-Tan v. NLRB, 467 U.S. 883 (1984)...........00...0... 10

Tax Analysts & Advocates v. Blumenthal, 566

Pe SEs EAE ITO Piiniisciecenondsitanidintninnsnaniiecononst 25

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

SEIT snseanbenbitinepnclonnincediceabesansdislegsiacnndadiniaigidoniasaies 6, 26

Texas v. United States, 86 F. Supp. 3d 591 (S.D.

a a a a ee 27

TABLE OF AUTHORITIES — Continued

Page

Truax v. Raich, 239 U.S. 33 (1915)..............00ccccccoossese 19

United Transp. Union v. ICC, 891 F.2d 908

Fees CREE CI citercsnasanndntimenbitecidiabiadeneteeradutousnckuminebies 29

Warth v. Seldin, 422 U.S. 490 (1975) ..........ccccccceeeeeee 28

Wash. Alliance of Tech. Workers v. U.S. Dep’t of

Homeland Sec., 74 F. Supp. 3d 247 (D.D.C.

eile icicskincsnastnesaih cisasaidieciiclps agadanouaiiaiantipmmigtabacbiadan cuiads 32

Wash. Alliance of Technology Workers v. U.S.

Dep't of Homeland Security, No. 1:14-cv-529,

slip op. (D.D.C. Aug. 12, 2015)...............c.00000. 2, 7, 21

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

| SEE ES aa EE RE SEE SSSR ao oe eer 10

Zivotofsky v. Kerry, 135 8. Ct. 2076 (2015)................ 23

CONSTITUTION:

Eg ans Se Ee el ee 31

STATUTES:

American Competitiveness in the Twenty-First

Century Act of 2000, Pub. L. No. 106-313,

PIs SI iatsnichatienitiedlctegidlniae stein ciate es Saal 24

Immigration and Nationality Act of 1952, Pub.

L. No. 82-414, 66 Stat. 163 ..................... 4,11, 13,14

Immigration Act of 1965, Pub. L. No. 89-236,

RRR SAN eS A Aa Nae CEE OS S 11

Immigration Reform and Control Act of 1986, Pub.

L. No. 99-603, 100 Stat. 3445............. 12, 14, 16, 19, 20

vii

TABLE OF AUTHORITIES — Continued

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-

SO, Se, BI I, FI vsncesccceveszescscsesccscensccscsssees 14

I-Squared Act, S. 153, 114th Congress (Jan. 13,

SII” a5 cchaiat aeeacentmanehiemnasinuniasiliintaaasiaampestisiaeueasia 24

Haitian Refugee Immigration Fairness Act of

1998, Pub. L. No. 105-277, 112 Stat. 2681............. 15

Homeland Security Act of 2002, Pub. L. No.

I: I ty TRIE wecnccsesencesessnntesseuesintuns consenesns 13

Violence Against Women and Department of

Justice Reauthorization Act of 2005, Pub. L.

No. 109-162, 119 Stat. 2960 (2006) ................. 14, 15

PI ins thats dncitncissiesiainrasiinioabnigiahatnMinbatiads 28, 30, 31

I icici ccs canastiandacebebbisieussdehictaneetabemetesbnniiane 13

0 ED iuicsicinasesceviicintienactsiniounscnbhaieenkisin 20

ee ob chi ruven detnianietnabeninnannadeints passim

ee I os det pennldatcapamnadasenmniganemnahl 13, 21

Be os ccccsncccanscichinanionsnenidpeneamecsonsiniiealia 13

ee EE ensnsdeninsinsssntestnensascciivahesmnsciain 21, 23

es ie I Siinnesccvesssvenseniesnieentonis 12, 13, 14, 15, 20

ee ee ID Seversrccerentenisesdcteenetnnsevictinns passim

LEGISLATIVE HISTORY:

S. Rep. 82-1137 (Jan. 29, 1952).............essseeessererreees 11

S. Rep. 99-132 (Aug. 28, 1985)............cccccceeeeeereeneees 14

Vili

TABLE OF AUTHORITIES — Continued

Page

H.R. Rep. 83-1361 (Feb. 14, 1952) .............sssecssseereees 11

H.R. Rep. 99-682 (July 16, 1986) ..............:ccsccsseeeeeeees 19

4147 Cong. Rec. H5357 (daily ed. Sept. 5, 2001)....... 23

REGULATIONS:

Employment Authorization for Certain H-4

Dependent Spouses, 80 Fed. Reg. 10,284-312

(Feb. 25, 2015) (codified at 8 C.F.R. §§ 214,

ID cessiensnsinctvonnsinnsnatesscesnmnisinivenamates 2, 7, 9, 17, 24

Extending Period of Optional Practical Training

by 17-Months for F-1 nonimmigrant Students

with STEM (Science, Technology, Engineering,

and Mathematics) Degrees and Expanding

Cap-Gap Relief for All F-1 Students with

Pending H-1B Petitions, 73 Fed. Reg. 18,944-

56 (Apr. 8, 2008) (codified at 8 C.F.R. §§ 214

I iiatiata ecsicrciiiinniehiihintininbistiaeb ied hatdiaiieeepebiaiten 17, 18, 22

Improving and Expanding Training Opportuni-

ties for F-1 Nonimmigrant Students With

STEM Degrees and Cap-Gap Relief for All

Eligible F-1 Students, 81 Fed. Reg. 13,040-

122 (Mar. 11, 2016) (codified at 8 C.F.R.

ESSERE ary reer nermeeneeaeS 3. 7, 17

Retention of EB-1, EB-2, and EB-3 Immigrant

Workers and Program Improvements Affect-

ing High-Skilled Nonimmigrant Workers,

80 Fed. Reg. 81,900-45 (proposed Dec. 31,

a duamenelll 8, 17, 24

TABLE OF AUTHORITIES ~— Continued

Page

79 Fed. Reg. 26,887 (May 12, 2014) ........ccccccccccssesceseen 9

80 Fed. Reg. 63,379 (Oct. 19, 2015) ................cccsssesseees g

OTHER AUTHORITIES:

Julia Preston, Pink Slips at Disney. But First,

Training Foreign Replacements, New York

III wsccrndinsc sndeicinansiedadimieeceanniaaetieectantde 21

Livy, History of Rome, Book XXII ..................ccceceeeeees 23

Hugh Lofting, The Story of Doctor Doolittle

IIT ciscrs cis cae cna edict doueneanueniuniindsiadgudaasmnieanmaue 24

Star Trek II: The Wrath of Khan (Paramount

i earner ee 27

INTEREST OF AMICI CURIAE'

Amici submits this brief in support of their own

interests as plaintiffs in ongoing federal court cases

that share a key issue raised in the Brief for the

Petitioners. Amici are plaintiffs in separate lawsuits

against the United States Department of Homeland

Security (DHS) that are progressing in the District of

Columbia Circuit. Their cases involve the same issue

at the heart of Texas v. United States: Do 8 U.S.C.

§§ 1103(a) or 1324a(h)(3) confer unlimited authority

on the Executive to define classes of aliens who may

work in the United States? The answer to the ques-

tion has widespread ramifications for our immigra-

tion system and directly affects the cases brought by

Amici.

Amicus Save Jobs USA is a group of American

computer professionals who worked at Southern

California Edison until they were replaced by foreign

guestworkers possessing H-1B visas. Save Jobs USA

v. U.S. Dep't of Homeland Security is an Administrative

Procedure Act (APA) challenge to DHS regulations

granting work authorization to the spouses of certain

H-1B guestworkers. No. 1:15-cv-00615 (D.D.C.). In

‘ Pursuant to Supreme Court Rule 37.6, Amici Curiae state

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

part and that no entity or person, aside from Amici Curiae, its

members, and counsel, made any monetary contribution towards

the preparation and submission of this brief. Pursuant to Rule

37.2(a), the parties received timely notice of, and consented to,

Amici Curiae’s filing of this brief.

promulgating the 2015 regulations at issue in Save

Jobs USA, DHS claimed its authority to grant work

authorization to any alien of its choosing arose from 8

U.S.C. § 1324a(h\(3). Employment Authorization for

Certain H-4 Dependent Spouses, 80 Fed. Reg. 10,284-

312 (Feb. 25, 2015) (codified at 8 C.F.R. §§ 214, 274a).

That case has been fully briefed on cross motions for

summary judgment and submitted for decision to the

district court. An appeal to the United States Court of

Appeals for the D.C. Circuit is likely to be filed by the

losing party.

Amicus the Washington Alliance of Technology

Workers, Local 37083 of the Communication Workers

of America, the AFL-CIO (Washtech), is a union that

represents American technology workers throughout

the United States. In 2014 it brought an APA chal-

lenge to DHS regulations authorizing aliens to work

on student visas after graduation when they are no

longer students. Wash. Alliance of Technology Workers

v. U.S. Dep't of Homeland Security, No. 1:14-cv-529

(D.D.C.) (Washtech). The district court held the regu-

lations at issue were within DHS authority but

vacated them because DHS failed to give notice and

comment. Washtech, slip op. (D.D.C. Aug. 12, 2015).

Washtech appealed the holding that the regulations

were within DHS authority and the case is scheduled

for oral argument before the United States Court of

Appeals for the D.C. Circuit on May 4, 2016. Wash.

Alliance of Technology Workers v. U.S. Dep’t of Home-

land Security, No. 15-5239 (D.C. Cir.). In briefing to

the D.C. Circuit, DHS asserts that § 1324a(h)(3)

confers on the agency unlimited authority J allow

aliens to work in the United States except where

Congress explicitly prohibits it. Defendant-Appellee’s

Response Brief, Washington Alliance of Technology

Workers, at 18 (D.C. Cir. Feb. 25, 2016).

DHS has since promulgated a new rule to replace

the rule vacated by the district court that cites

§ 1324a(h\(3) as authority to allow nonstudents to

work in the United States on student visas. Improv-

ing and Expanding Training Opportunities for F-1

Nonimmigrant Students With STEM Degrees and

Cap-Gap Relief for All Eligible F-1 Students, 81 Fed.

Reg. 13,040-122 (Mar. 11, 2016) (codified at 8 C.F.R.

§§ 214 and 274a).

SUMMARY OF THE ARGUMENT

Amici address the granting of employment to

aliens under the Deferred Action for Parents of Amer-

icans and Lawful Permanent Residents (DAPA)

program and the Respondents’ standing because

these are common issues with Amici’s own cases. The

DAPA program grants aliens employment authoriza-

tion to work in the United States. DAPA is not a

lawful exercise of Executive power because there is no

authority for granting such work permits.

Under the Constitution, the Congress has plena-

ry power over immigration. Those powers may be

delegated to the Executive for administration. The

Executive makes the new claim that Congress has

delegated to it the power to authorize any alien to

engage in employment as long as Congress has not

explicitly prohibited it.

The Executive’s source of this alleged authority

is 8 U.S.C. §§ 1103(a) or 1324a(h)(3). The former

defines the duties of the Secretary of Homeland

Security and makes no mention of authority to grant

employment. The latter is the definition (limited in

scope to its own section) of the term unauthorized

alien (i.e., those aliens employers may not hire).

Congress could not have conferred on the Execu-

tive unlimited authority to grant aliens employment

when it created § 1103(a) in the Immigration and

Nationality Act of 1952 (INA) because the Act re-

quired all aliens entering the job market (with excep-

tions not relevant here) to not adversely affect

American workers.

Subsection 1324a(h)(3) is merely a definitional

provision that contains no authorization for anyone to

do anything. Petitioners’ interpretation of § 1324a(h\3)

as Congressional ratification of its claim of unlimited

authority to grant work authorizations to aliens is

nonsensical because it makes every explicit grant of

authority to the Executive to allow classes of aliens to

work surplusage.

The Petitioners’ claim of unlimited authority to

allow aliens to work creates an absurd situation where

both the Legislature and Executive are legislating in

the same area at cross-purposes. If the Court were to

adopt the Petitioners’ claim of unlimited authority,

the Executive can continue to erase statutory protec-

tions for American workers through regulation. Such

an interpretation would conflict with past judicial

precedent.

The States’ injuries from DAPA should be obvi-

ous. The tortured, hairsplitting analyses to show

otherwise makes a mockery of the standing require-

ments.

ARGUMENT

There are numerous hurdles the DAPA program

must clear to be a lawful exercise of executive author-

ity including the Take Care Clause; whether the

blanket refusal to enforce the law is, in fact, discre-

tion; and whether DAPA is merely an interpretive

rule.’ If DAPA survives those issues, there remains

one more: the question of whether the Executive has

the authority to grant work authorizations to DAPA

participants.

DAPA is just one of several administrative ac-

tions in recent years made under the claim that the

Executive has unlimited authority to grant work

authorizations to aliens and that this claim is so new

that it is being tested in the federal courts for the

first time in several cases simultaneously. Unless

* Amici do not address these other issues because they are

not common to their own cases.

there be statutory authority for granting work au-

thorizations to deferred action recipients, DAPA does

not survive a Chevron Step One analysis because of

its grant of work authorizations to aliens. Mayo

Found. for Med. Educ. & Research v. United States,

562 U.S. 44, 52 (2011) (citing Chevron, U.S.A. v.

NRDC, 467 U.S. 837, 842-43 (1984)).

I. DHS makes the striking claim that it has

“dual authority” with Congress to author-

ize aliens to work in the United States.

The issue before the Fifth Circuit in the opinion

on review here was whether the district court abused

its discretion in granting the State Plaintiffs’ motion

for preliminary injunction. Texas v. United States, 809

F.3d 134, 146 (5th Cir. 2015). Petitioners seek to have

the Court act as a trial court and decide the merits of

the case before all the issues have even been argued

below. Petition for Writ of Certiorari, at I. As such,

the record before the Court from the present case

does not demonstrate the full scope of the implica-

tions of the issues raised. Because their cases are

further advanced, Amici have already seen and

briefed the full range of the arguments Petitioners

raise here in regard to employment. In addition, the

cases of Amici illustrate the larger implications of the

Court adopting the Petitioners’ claim to unlimited

authority to authorize employment to classes in

parallel with Congress in less politically charged

circumstances.

To the Court, the Petitioners have stated the

scope of the Executive’s employment authorization

authority as, “Congress has [] accorded the Secretary

discretion to decide whether, as an attribute of en-

forcement discretion, aliens may be lawfully em-

ployed ... while their presence has_ been

countenanced.” Pet. Br. at 15. In fact, the Executive

claim of authority under §§ 1103(a) or 1324a(h\(3) is

much greater and not simply limited to instances of

prosecutorial discretion. In Wash. Alliance of Technoll-

ogy Workers, the Executive states the scope of its

authority is “Congress has separately delegated to

the Secretary broad discretion to determine when

nonimmigrants may work in the United States,

unless Congress itself has expressly prohibited grant-

ing nonimmigrants work authorization.” Defendant-

Appellee’s Response Brief, No. 15-5239, p. 18 (D.C.

Cir. Feb. 25, 2015). See also Defendant's Memoran-

dum in Support of its Motion for Summary Judgment

and Opposition to Plaintiff’s Motion for Summary

Judgment, Save Jobs USA v. U.S. Dep't of Homeland

Security, No. 1:15-cv-00615, at 37 (D.D.C. Oct. 2,

2015) (stating DHS and Congress share “dual author-

ity” to authorize aliens to work in the United States).

The breadth of the authority claimed is apparent

from recent regulations authorizing classes of aliens

to work and claiming § 1324a(h\(3) as a source of

authority. 80 Fed. Reg. 10,284-312 (Feb. 25, 2015)

(authorizing the spouses of H-1B guestworkers to be

employed); 81 Fed. Reg. 13,040-122 (Mar. 11, 2016)

(authorizing aliens to work on student visas after

graduation when they are no longer students); Reten-

tion of EB-1, EB-2, and EB-3 Immigrant Workers and

Program Improvements Affecting High-Skilled

Nonimmigrant Workers, 80 Fed. Reg. 81,900-45

(proposed Dec. 31, 2015) (authorizing aliens with

pending permanent residency petitions to engage in

employment). These are legislative regulations au-

thorizing employment to classes of aliens where

Congress has not authorized such employment. /d.

None of these work authorizations has anything to do

with deferred action Id.

Il. If Congress conferred dual authority on

the Executive to grant employment au-

thorizations, no one can definitively point

to where that authority was created.

Petitioners claim Congress has conferred “sweep-

ing authority” on the Executive that extends to

unlimited authority to authorize employment to

aliens. Pet. Br. at 63. Yet, there is no statute explicitly

granting such authority. Adding to the confusion,

there is no consensus where Congress implicitly

granted such power. For example, the 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 (Members of Congress Amici)

at 30 states that § 1324a(h)\(3) itself, “specifically

grants the Executive broad discretion to grant work

authorization.” In contrast, Petitioners argue “Section

1324a(h\(3) did not create the Secretary’s authority to

authorize work; that authority already existed in

Section 1103(a).” Arguing this case in the Fifth Cir-

cuit, Petitioners claimed § 1324a(h)(3) was the source

of authority to allow DAPA recipients to work and

made no mention of § 1103(a) conferring such author-

ity. Brief for the Appellants, No. 15-40238 at 8-9 (5th

Cir. Apr. 30, 2015) and Reply Brief for Appellants at

21, 31 (May 18, 2015) (describing § 1324a as the

“employment authorization statute”).

The various administrative actions unilaterally

granting employment to aliens have been just as

conflicted in their source of authority. Following the

argument of the Petitioners, 79 Fed. Reg. 26,887

(May 12, 2014) states that § 1324a(h)\(3) “refers to the

Secretary's authority to authorize employment of

noncitizens in the United States.” However, that

proposed regulation never states the source of author-

ity to which is being referred. Following the reason-

ing of the Members of Congress Amici, 80 Fed. Reg.

63,379 (Oct. 19, 2015) claims § 1324a(h)(3) is the

source for “broad authority to determine which indi-

viduals are ‘authorized’ for employment in the United

States.” Staking out territory between those two, 80

Fed. Reg. 10,285 (Feb. 25, 2015) states that, “8 U.S.C.

1324a(h)\(3)B), recognizes the Secretary's authority to

extend employment to noncitizens in the United

States.” If, in fact, Congress conferred such sweeping

authority on the Executive, it is striking that there

is no agreement where Congress actually did it.

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

(“[H]ad Congress wished to assign [‘a question of deep

economic and political significance’] to an agency, it

surely would have done so expressly.”).

Ill. If Congress provided the Executive dual

authority to grant employment to classes

of aliens, Congress hid that expansive

grant within a mousehole.

“A primary purpose in restricting immigration is

to preserve jobs for American workers; immigrant

aliens are therefore admitted to work in this country

only if they ‘will not adversely affect the wages and

working conditions of the workers in the United

States similarly employed.’” Sure-Tan v. NLRB, 467

U.S. 883, 893 (1984) (quoting 8 U.S.C. § 1184(a)(14)).

At the same time, “Congress [] does not alter the

fundamental details of a regulatory scheme in vague

terms or ancillary provisions — it does not, one might

say, hide elephants in mouseholes.” Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 468 (2001). One would

then expect a grant to the Executive of dual authority

with Congress to define classes of aliens who may

work in the United States to have a clear statement

somewhere; something like: The Secretary may

through regulation extend employment to aliens who

__. Yet, no such provision exists. Lacking

any such explicit authority, the courts are being

asked to use their imagination to find this sweeping

authority hidden in the mousehole of §§ 1103(a) and

1324a(h\3).

A. Subsection 1103(a) could not have

provided the Executive unfettered au-

thority to grant alien employment

because the Secretary of Labor was

responsible for ensuring alien labor

did not adversely affect American

workers.

Subsection 1103(a) currently defines the powers

and duties of the Secretary of Homeland Security.

This provision was originally created in the INA,

§ 103, 66 Stat. 173-74. That provision (both as origi-

nally created and as it reads now) makes no mention

of authorizing alien employment. Jd. and § 1103(a)

(2014). In fact, both the House and Senate reports on

the Act directly contradict the claim there was such a

grant of independent employment authority to the

Executive anywhere within the 1952 Act. S. Rep. 82-

1137 at 11 (Jan. 29, 1952) and H.R. Rep. 83-1361 at

51 (Feb. 14, 1952). Both reports state the INA ex-

cludes the admission of aliens to perform labor if the

Secretary of Labor determines American workers are

available or that such foreign workers will adversely

affect American workers. Jd.’ Both reports also state

the provision is applicable to “all aliens” except those

determined to be needed in the United States and

certain admissions for permanent residency. Jd. This

> The Immigration Act of 1965, changed this provision

making such a certification by the Secretary of Labor a precon-

dition for admitting foreign labor. Pub. L. No. 89-236, § 10, 79

Stat. 911, 917-18.

requirement that foreign labor may not be admitted if

the Secretary of Labor determines it would have an

adverse impact on American workers precludes the

interpretation that § 1103(a) conferred on the Execu-

tive unfettered authority to authorize alien employ-

ment to “deferred action” recipients (as well as aliens

working after graduation on student visas, spouses of

H-1B guestworkers, and aliens with pending green

card petitions).

B. Subsection 1324a(h)(3) is merely a def-

initional provision explicitly limited

in scope to its section.

Section 1324a was created by the Immigration

Reform and Control Act of 1986, Pub. L. No. 99-603,

§ 101, 100 Stat. 3445 (IRCA). It imposes civil and

criminal penalties on employers who employ unau-

thorized aliens — i.e., those not authorized to work in

the United States. Subsection 1324a(h)(3) defines the

term unauthorized alien solely for the purposes of its

section. While central to their argument, Petitioners

have not dared to quote the provision in full:

(3) Definition of unauthorized alien

As used in this section, the term “unau-

thorized alien” means, with respect to the

employment of an alien at a particular time,

that the alien is not at that time either (A)

an alien lawfully admitted for permanent

residence, or (B) authorized to be so em-

ployed by this chapter or by the Attorney

General.

§ 1324a(hX3).“ Clearly § 1324a(h\3) is merely a

definitional provision with its scope limited to a

single section of the code that does not confer authori-

ty on anyone to do anything.

C. Petitioners’ argument that § 1324a(h)(3)

ratifies its claim of dual authority

with Congress to define classes of al-

iens who may work in the United

States is nonsensical.

The provisions of § 1324a in conjunction with

the definition of the term unauthorized alien in

§ 1324a(h\(3) allow employers to hire without penalty

three groups of aliens: (1) permanent residents;

(2) those authorized to be employed by the INA (e.z.,

H and L guestworkers); or (3) those authorized by the

Attorney General (now the Secretary of Homeland

Security).’ The first two categories provide no difficulty

in interpretation, but Petitioners raise the question,

* Other definitions using similar language in regard to

employment include, 8 U.S.C. § 1182(n\5XE) (“or by the Attor-

ney General”) and 8 U.S.C. § 1182(t4\D) (“or by the Secretary

of Homeland Security”).

* In the Homeland Security Act of 2002, Pub. L. No. 107-

296, 116 Stat. 2135, Congress transferred most immigration-

related functions from the Attorney General to the DHS Secre-

tary. See 6 U.S.C. § 101 et seq.; see also Clark v. Martinez, 543

U.S. 371, 374 n.1 (2005) (noting that the immigration authority

previously exercised by the Attorney General and Immigration

and Naturalization Service (INS) “now reside” in the DHS

Secretary and DHS).

why would Congress have included the phrase “or by

the Attorney Genera!” in the definition? Pet. Br. at 54

That question has a very simple answer. That

phrase refers to situations where the INA authorizes

the Secretary of Homeland Security to grant work

permits to aliens who are not permanent residents

and who do not have a visa status that permits work.

IRCA itself contains seven specific grants of authority

to the Attorney General to authorize classes of aliens

without visas to engage in employment. § 201, 100

Stat. 3397, 3399 [two], § 301, 100 Stat. 3418, 3421

[two], 3428. The Senate report on IRCA illustrates

the intended operation of § 1324a(h)(3), stating that

such aliens shall “be considered to be authorized by

the Attorney General to be so employed during the

period of time indicated on such documentation.”

S. Rep. 99-132 at 43 (Aug. 28, 1985). Had Congress

omitted the phrase “or by the Attorney General” from

§ 1324a(h\(3), aliens could possess work permits

provided for by IRCA but they would be unemploya-

ble because those hiring them would be subject to the

civil and criminal penalties contained in § 1324a.

Subsequent enactments confirmed that the

phrase “or by the Attorney General” refers to specific

circumstances where the Executive branch has been

granted authority to authorize employment. The

Illegal Immigration Reform and Immigrant Respon-

sibility Act of 1996, granted discretion to the Execu-

tive to extend employment authorization to asylum

applicants through regulation. Pub. L. No. 104-208,

§ 604, 110 Stat. 3009, 3009-693. The Violence Against

Women and Department of Justice Reauthorization

Act of 2005, granted DHS discretion to provide em-

ployment authorization to Violence Against Women

Act petitioners. Pub. L. No. 109-162, § 814, 119 Stat.

2960, 3059 (2006). The same section also provided

that DHS “may authorize” battered spouses “to en-

gage in employment.” Jd. The Haitian Refugee Immi-

gration Fairness Act of 1998, Pub. L. No. 105-277,

§ 908, 112 Stat. 2681-538, provided that the Attorney

General, “may authorize” employment to certain

Haitian nationals. In the absence of the “or by the

Attorney General” language in § 1324a(h\(3), Con-

gress would have authorized the Executive to grant

work permits but such aliens would be unemployable

because of the penalties in § 1324a. Worse yet, under

the Petitioners’ interpretation, all discretionary

authority for the Executive to grant work permits to

aliens are all meaningless surplusage because, as the

Petitioners’ argument goes, the Executive already

had discretionary authority to authorize employment

to any alien under §§ 1103 and 1324a(h)\(3).

Petitioners assert, however, that the only logical

way to interpret the phrase “or by the Attorney

Genera!” in § 1324a(h)(3) is that Congress was aware

of and approved of the Executive authorizing em-

ployment of aliens through regulation. Pet. Br. at 54

(quoting 52 Fed. Reg. 46,093). That argument is

nonsensical because, as just shown, there is another,

more logical way to interpret the phrase “or by

the Attorney General” in § 1324a(h\(3). Petitioners’

argument is also illogical because its interpretation

cannot explain why Congress included provisions in

IRCA granting the Secretary of Homeland Security

authority to provide certain aliens with work permits

and cannot explain subsequent similar grants of

authority — all of which become surplusage under

Petitioners’ interpretation. This is an interpretation

that cannot stand because, “no words are to be treat-

ed as surplusage or as repetition.” Platt v. Union P.

R., 99 U.S. 48, 59 (1879).

D. The claim that § 1324a(h)(3) authorizes

the Executive to define classes of al-

iens eligible for employment is largely

a new invention.

Assuming Congress actually did confer on the

Executive dual authority to define classes of aliens

that may work in the United States in 1952 by creat-

ing § 1103(a) and ratified that expansive power in

1985 by creating § 1324a(h\3), how come no one

knew about this until recently? Why is there no case

law holding that the Executive has such power?

The answer to those questions is simple as well:

this claim of power is largely a very recent invention

of DHS. The Petitioners note that the INS used

§ 1324a(h\(3) as justification for rejecting a petition

for rulemaking made before the enactment of IRCA.

Pet. Br. at 54 (citing 51 Fed. Reg. 39,385-86 (Oct. 28,

1986) and 52 Fed. Reg. 46,093 (Dec. 4, 1987)). The

filers of the rulemaking petition never followed up on

that rejection with a court challenge, so the INS’s

interpretation was never subjected to judicial review.

After that rejection, § 1324a(h\(3) remained dormant

as a source of Executive authority for over a quarter

century.

The next time the Executive cited § 1324a(h)(3)

for the proposition that it conferred authority to

authorize aliens to work was in the DHS regulatory

agenda, 78 Fed. Reg. 1,317 (Jan. 8, 2013), describing

the intent to create a regulation authorizing employ-

ment for spouses of H-1B guestworkers that is the

subject of Amici Save Jobs USA's litigation in the

D.C. District. 80 Fed. Reg. 10,284 (Feb. 25, 2015).

Subsequently, DHS has published an additional rule

and a proposed rule citing § 1324a(h)(3) as a source of

authority for defining classes of aliens who may work

in the U.S. 81 Fed. Reg. 13,040-122 (Mar. 11, 2016)

and 80 Fed. Reg. 81,900-45 (Proposed Dec. 31, 2015).

The former is a replacement for the regulation

vacated in Amici Washington Alliance of Technology

Workers’ litigation. That rulemaking provides anoth-

er example of the newness of this claim of authority.

The new regulation cites § 1324a(h\3) for the propo-

sition that it confers on DHS, “broad authority to

determine which individuals are ‘authorized’ for

employment in the United States.” 81 Fed. Reg.

13,044. The vacated regulation (also authorizing the

same work program allowing non-student graduates

to work for extended periods of time on student visas)

made no mention of § 1324a(h\(3). Extending Period

of Optional Practical Training by 17-Months for F-1

nonimmigrant Students with STEM (Science, Tech-

nology, Engineering, and Mathematics) Degrees and

Expanding Cap-Gap Relief for All F-1 Students with

Pending H-1B Petitions, 73 Fed. Reg. 18,944-56 (Apr.

8, 2008) (codified at 8 C.F.R. §§ 214 and 274a). The

recent DAPA and DACA program have no comparable

paper trail because they were created without using

notice-and-comment rulemaking.

The Executive branch’s claim of dual authority

with Congress to authorize classes of aliens to work

in the United States has come out of nowhere. Unless

one had been aware of the denial of a rulemaking

petition made over a quarter-century ago, one would

have had no notice whatsoever that DHS claimed

such broad reaching power to authorize classes of

aliens to work until the recent flurry of administra-

tive actions authorizing alien employment. That is

the reason for the equally sudden appearance of

lawsuits challenging the authority of DHS to grant

employment to different classes of aliens.

IV. There is no connection between enforce-

ment discretion and work authorizations.

Through the sleight of hand of cut and paste,

Petitioners argue that work authorizations under

DAPA flow naturally from enforcement discretion for

those unlawfully present in the United States, stat-

ing:

The connection between enforcement discre-

tion and work authorization is close and

natural: Exercising discretion means that al-

iens will live in the United States, and “in

ordinary cases [people] cannot live where

they cannot work.”

Pet. Br. at 40 (quoting 7ruax v. Raich, 239 U.S. 33, 42

(1915)). However, the full quote from Truax reads:

The assertion of an authority to deny to al-

iens the opportunity of earning a livelihood

when lawfully admitted to the State would be

tantamount to the assertion of the right to

deny them entrance and abode, for in ordi-

nary cases they cannot live where they can-

not work.

239 U.S. at 42 (emphasis added). TJruax has nothing

whatsoever to do with deferred action or discretion

for those unlawfully present in the United States.

In addition, the claim of authority to grant work

authorizations to those unlawfully present when

enforcement is deferred is incongruous with Con-

gress’s finding for IRCA that the “adverse impact of

illegal aliens was substantial and warranted legisla-

tion both to protect U.S. labor and the economy, and

to assure the orderly entry of immigrants into this

country” and that “the most reasonable approach to

this problem is to make unlawful the ‘knowing’ em-

ployment of illegal aliens, thereby removing the

economic incentive which draws such aliens to the

United States as well as the incentive for employers

to exploit this source of labor.” H.R. Rep. 99-682 at

52 (July 16, 1986) (quoting H.R. Rep. 94-506 at 3).

Through DAPA, the Executive seeks to provide the

very same incentive of employment that Congress

sought to eliminate in IRCA. See § 1324a.

Petitioners’ Truax example also illustrates the

utter inconsistency of their entire argument in sup-

port of DAPA. On one hand Petitioners state that

DAPA “confers no substantive right” and “does not

confer any form of legal status in this country.” Pet.

Br. at 66. Yet, on the other hand, Petitioners state,

“An alien with deferred action is considered ‘lawfully

present’ for these purposes [‘Social Security retire-

ment and disability, Medicare, and railroad-worker

programs.” Pet. Br. at 8. Surely, making aliens

“lawfully present” confers a “legal status” in this

country and making such aliens eligible for Social

Security, Medicare, and railroad programs (as well as

drivers’ licenses, workers’ compensation, and em-

ployment insurance) confers on such aliens “substan-

tive rightis],” the full scope of which are not yet

known (and are likely to generate much litigation if

DAPA be allowed to proceed) creating injury to the

States. Pet Br. at 8 and 66.

V. Adopting the Petitioners’ claim of author-

ity to grant work permits to any alien will

allow the Executive to wipe out all pro-

tections for American workers in the im-

migration system and _ reverse past

judicial interpretation.

Congress has set up an elaborate system of visas

under the INA, defining which categories of aliens

may work, e.g., 8 U.S.C. § 1101(a)(15), incorporating

protections for American workers, e.g., 8 U.S.C.

§§ 1182(n), 1184(g). If the Executive branch possesses

dual authority with Congress to independently au-

thorize classes of aliens to be employed, the Executive

can wipe out any protections for American workers

Congress enacts by simply defining a new class of

aliens that may work through regulation.

The Court should take note of the facts of Wash.

Alliance of Technology Workers, to better understand

the consequences for American workers, including

Amici, should this Court adopt the government’s

overbroad claim of authority to grant alien employ-

ment. The H-1B visa program is routinely used to

replace American workers in technology fields with

lower paid foreign workers. E.g., Julia Preston, Pink

Slips at Disney. But First, Training Foreign Replace-

ments, New York Times, June 3, 2015. To protect

American workers, Congress has put in place limits

on the number of H-1B visas, which in turn limit the

number of Americans that can be replaced by such

workers. § 1184(g).

In 2007 Microsoft concocted a scheme to get

around the H-1B quotas by using student visas

instead. Wash. Alliance of Technology Workers v.

United States Dep't of Homeland Security, No. 1:14-

cv-529 D.D.C.) (Administrative Record (A.R.) at 120-

23). By allowing aliens to work on student visas for

29 months after graduation, such labor could be used

in place of an H-1B visa. Jd. Microsoft presented its

scheme to the DHS secretary at a dinner party. /d.

From there DHS worked secretly with industry

lobbyists to prepare regulations implementing Mi-

crosoft’s scheme. A.R. 124-27, 130-34. The first notice

to the public that such regulations were even being

considered is when DHS put them in place, as a fait

accompli, without notice and comment. 73 Fed. Reg.

18,944-56 (Apr. 8, 2008).

DHS'’s predecessor, the INS, had more than once

attempted to subvert Congress’s intricate statutory

system of protections for American workers in the

same manner. See, e.g., Int'l Union of Bricklayers &

Allied Craftsmen v. Meese, 761 F.2d 798 (D.C. Cir.

1985) and Intl Union of Bricklayers & Allied Crafts-

men v. Meese, 616 F.Supp. 1387 (N.D. Cal. 1985)

(declaring unlawful INS practice of allowing foreign

bricklayers to work in the United States on B (visitor)

visas rather than the appropriate H-2 (guest worker)

visa); Int’l Longshoremen’s & Warehousemen’s Union

v. Meese, 891 F.2d 1374 (9th Cir. 1989) (declaring

unlawful INS practice of admitting foreign crane

operators to work in the United States on D (crew-

men) visas rather than the appropriate H visa). Here,

Petitioners seek to have the Court endorse this very

same kind of Executive overreach that the courts

have rebuffed in the past. Jd.

VI. If the Court holds the Executive has the

authority to define classes of aliens who

may work in the United States the country

no longer has a viable immigration system.

The Court has observed, “From the existence of

two sovereigns follows the possibility that laws can be

in conflict or at cross-purposes.” Arizona v. United

States, 132 S. Ct. 2492, 2500 (2012). “Under basic

separation-of-powers principles, it is for the Congress

to enact the laws, including ‘all Laws which shall be

necessary and proper for carrying into Execution’ the

powers of the Federal Government.” Zivotofsky v.

Kerry, 135 S. Ct. 2076, 2087 (2015) (quoting Art. I,

§ 8, cl. 18). History shows what happens when there

is more than one chef in the kitchen. During the

Second Punic War in 216 B.C., the Roman army

facing Hannibal had an absurd command structure.

The two consuls, L. Amilius Paullus and C. Terentius

Varro, shared command of the army with each being

in charge on alternate days. Livy, History of Rome,

Book XXII. The two consuls would countermand each

other’s orders when it became his day to lead. Jd. On

one of his leadership days, Varro took it upon himself

to engage Hannibal in battle without consulting

Paullus — and the Roman army was slaughtered at

Canne. Id.

Petitioners urge the Court to establish an immi-

gration system that is as headless and dysfunctional

as the Roman Army at Canne. Pet. Br. at 63. In the

Petitioners’ proposed system, Congress creates pro-

tections for American workers by limiting the number

of guestworkers. § 1184(g). Then the Executive un-

dermines those statutory provisions by promulgating

regulations authorizing aliens to work on student

visas instead. 73 Fed. Reg. 18,944-56 (Apr. 8, 2008).

Congress debates the wisdom of allowing spouses of

H-1B guestworkers to work as well. 4147 Cong. Rec.

H5357 (daily ed. Sept. 5, 2001); I-Squared Act, § 102,

S. 153, 114th Congress (Jan. 13, 2015). When Con-

gress decides not to allow such spouses to work, the

Executive steps in and does the same through regula-

tion. 80 Fed. Reg. 10,284 (Feb. 25, 2015). Congress

addresses lengthy employment-based green card

adjudications by allowing such aliens to extend their

H-1B status. American Competitiveness in the Twen-

ty-First Century Act of 2000, Pub. L. No. 106-313,

§ 106, 114 Stat. 1251, 1253-55. Then the Executive

decided what Congress did was not good enough and

publishes regulations to grant such aliens work

permits of its own. 80 Fed. Reg. 81,900-45 (proposed

Dec. 31, 2015). Through its conflicting, unilateral

action, the Executive is transforming national alien

employment policy into Dr. Doolittle’s pushmi-pullyu.

Hugh Lofting, The Story of Doctor Doolittle, at 82

(1920). The Court should not countenance such a

dysfunctional, two-headed view of government as put

forth by the Petitioners. It is the Congress, “which

has plenary power over immigration matters.” Sale v.

Haitian Ctrs. Council, 509 U.S. 155, 201 (1993).

VIl. The States’ standing to challenge DAPA

should be obvious.

The Court has rejected the notion that the injury

required for standing be significant. Simon v. E. Ky.

Welfare Rights Org., 426 U.S. 26, 61 n.10 (1976)

(Stewart, J., concurring). Slight injuries have routine-

ly conferred standing. See, e.g., Salazar v. Buono, 559

U.S. 700, 711 (2010) (“offense at the presence of a

religious symbol on federal land”); Tax Analysts &

Advocates v. Blumenthal, 566 F.2d 130, 138 (D.C. Cir.

1977), cert. denied, 434 U.S. 1086 (standing based on

an injury that was “small in magnitude”); Pub. Inter-

est Research Group v. Powell Duffryn Terminals, 913

F.2d 64, 72 (3d Cir. 1990), cert. denied, 498 U.S. 1109

(“The size of the injury is not germane to standing

analysis.”). In this case the injuries to the Respon-

dents should be obvious. Under DAPA, the States

suffer direct injuries to their unemployment and

workers’ compensation systems as a result of being

forced to subsidize aliens allowed to enter the job

market. The entry of such aliens into these programs

inflicts a cost on the states and at the very least

requires the states to take actions that alone should

be sufficient injury-in-fact for standing. These are

plain vanilla injuries that do not even require invok-

ing the relaxed standard put forth in Massachusetts v.

EPA, 549 U.S. 497, 517 (2007).

Deferred action also subjects the states to law-

suits for claims of benefits, the full scope of which has

yet to be determined. In the recently filed case of

Georgia Latino Alliance for Human Rights v. Alford,

No. 1:16-mi-99999-UNA (N.D. Ga. Mar. 9, 2016), the

plaintiffs allege that the Respondent State of Georgia

must provide aliens receiving deferred action in-state

college tuition. In Ariz. DREAM Act Coal. v. Brewer,

757 F.3d 1053, 1069 (9th Cir. Ariz. 2014), the Ninth

Circuit held that the district court erred by denying

the plaintiffs’ motion for a preliminary injunction

against the State of Arizona’s policy of withholding

drivers’ licenses to Deferred Action for Childhood

Arrivals (DACA) program participants. These cases

demonstrate that the DAPA program, at the very

least, exposes the States to legal claims for benefits

from DAPA recipients, as in the case of Ariz. DREAM

Act Coal., exposing them to court mandated costs.

A. Texas’s injury of providing drivers’ li-

censes is not self-inflicted because it

tracks federal law.

The Fifth Circuit addressed only one of the many

injury theories that should confer standing on Re-

spondents: the requirement to provide drivers’ licens-

es to DAPA recipients. Texas, 809 F.3d at 150-62."

Petitioners argue to the Court that the injury of

having to provide drivers’ licenses to DAPA recipients

is self-inflicted because they have linked their drivers’

license eligibility to federal law. Pet. Br. at 27. Yet in

the United States’ Brief as Amicus Curiae in Opposi-

tion to Rehearing en Banc, Ariz. DREAM Act Coal. v.

Brewer, No. 13-16248 at 12 (9th Cir. Sept. 30, 2014),

the Executive argued to the court that Arizona’s

refusal to grant DACA recipients drivers’ licenses was

unlawful because it was not linked to Federal Law. By

* The Fifth Circuit’s standing analysis for this one injury

spans thirteen reporter pages. The States explicitly pled a

number of other injuries, including having to provide profes-

sional licenses and unemployment insurance. Amended Com-

plaint, Texas v. United States, No. 1:14-cv-254, 99 61-69 (S.D.

Tex. Dec. 9, 2014).

taking both sides of this question in different cases,

the Executive puts the Respondents in a Kobayashi

Maru no-win scenario.’

B. The states do not present a general-

ized grievance because they have pled

a cause of action explicitly authorized

by Congress.

The Petitioners categorize the States’ complaint

as a generalized grievance. Pet. Br. at 21-22.° The

prohibition upon the courts entertaining generalized

grievances is a judicially self-imposed prudential

restriction. Devlin v. Scardelletti, 536 U.S. 1, 7 (2002)

(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).

However, “Congress may grant an express right of

action to persons who otherwise would be barred by

" See Star Trek II: The Wrath of Khan (Paramount 1982).

In granting the preliminary injunction, the district court's

opinion addressed this very same no-win situation at length.

Texas v. United States, 86 F.Supp. 3d 591, 619-22 (S.D. Tex.

2015).

* Petitioners suggest that granting standing to the States

would unleash court challenges against immigration policy. Pet.

Br. at 19. There are two sides to that coin. Allowing DHS to

unilaterally grant ‘lawful presence’ to persons who are otherwise

unlawfully in the United States, Pet. Br. at 8, subjects the

States to lawsuits from such aliens claiming benefits. E.g., Ariz.

DREAM Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. Ariz. 2014)

(Plaintiffs alleged deferred action recipients are entitled to

drivers’ licenses.); Georgia Latino Alliance for Human Rights v.

Alford, No. 1:16-mi-99999-UNA (N.D. Ga.) (Plaintiffs alleged

deferred action recipients are entitled to in-state college tuition).

prudential standing rules.” Warth v. Seldin, 422 U.S.

490, 501 (1975). Congress has explicitly created such

an express cause of action under the APA that should

negate prudential considerations, including general-

ized grievances. 5 U.S.C. § 706.

Even if Congress did not have the power to

negate prudential standing considerations, the very

fact that the States’ complaint alleges “a specific

executive action (DAPA)” is unlawful under the APA

invalidates the generalized grievance argument

against their standing. A generalized grievance has

two parts: (1) it must be widely shared; and (2) it

must be insufficiently concrete. FEC v. Akins, 524

U.S. 11, 24-25 (1998). The States’ injuries from DAPA

may be widely shared (satisfying the first prong of

the test) but the States present a simple, concrete

issue: is a specific agency action (the DAPA directive)

unlawful under the APA? THis is nothing like the

nebulous claims the Court has found to be general-

ized grievances, such as “to.require that the Govern-

ment be administered according to law and that the

public moneys be not wasted.” Lance v. Coffman, 549

U.S. 437, 440 (2007) (quoting Fairchild v. Hughes,

258 U.S. 126, 129-30 (1922)).

C. An action that creates incidental ef-

fects that are likely to cause harm has

routinely been an injury-in-fact that

confers standing on parties.

Petitioners argue that the injuries claimed by the

States (that is, providing benefits to DAPA recipients)

are incidental to allowing aliens into the job market

(making them eligible for government services) and

that such incidental effects cannot be an injury-in-

fact to serve as the basis for standing. Pet. Br. at 20-

24. In fact, such incidental effects routinely confer

standing on plaintiffs.

Since Ass’n of Data Processing Serv. Orgs. v.

Camp, the Court has recognized the competitor

standing doctrine whereby a party has standing to

challenge an agency action that allows competitors

into its market. 397 U.S. 150, 152-53 (1970). For

competitor standing, Plaintiffs have not had to prove

specific incidental effects (e.g., lost sales, lost custom-

ers, and reduced prices) to establish competitive

injury, only that the action allows additional competi-

tors into the market. E.g., NCUA v. First Nat'l Bank

& Trust, 522 U.S. 479, 488 n.4 (1998) (stating it was

“not disputed that respondents have suffered an

injury-in-fact” when the agency action allowed a

single competitor into its market). The specific harms

flowing from additional competitors are presumed

through the “application of basic economic iogic.”

United Transp. Union v. ICC, 891 F.2d 908, 913 (D.C.

Cir. 1989).

In an artful pleading, one of the injuries-in-fact

the States could have alleged is that DAPA allows

otherwise unauthorized aliens into the States’ job

markets. Cf., La. Energy & Power Auth. v. FERC, 141

F.3d 364, 367 (D.C. Cir. 1998) (stating a party suffers

an injury-in-fact when agencies “allow increased

competition”). Analogous to competitor standing, the

harms of providing drivers’ licenses, workers compen-

sation, and employment here flow directly from the

injury-in-fact caused by Petitioners allowing such

aliens into the job market. See Clinton v. City of New

York, 524 U.S. 417, 433 (1998) (stating any petitioner

who is likely to suffer economic injury as a result of

government action satisfies the injury-in-fact re-

quirement). It defies economic (or any other type of)

logic to reach the conclusion that the States and their

citizens do not suffer any kind of injury sufficient to

establish standing when the Executive branch adds

aliens to the job market through rulemaking.

D. The Federal courts serve the key role

as arbiter between the Executive and

Legislature under the Administrative

Procedure Act.

Under the Administrative Procedure Act, Con-

gress delegates authority to executive agencies and

the courts are the designated arbiters of the scope of

that authority. 5 U.S.C. § 706. Under the APA the

courts have an expansive role in balancing the powers

of the Executive and Legislative branches. Standing

should not be used as a means to “immunize govern-

ment officials from challenges to allegedly ultra vires

conduct.” Arpaio v. Obama, 797 F.3d 11, 29 (D.C. Cir.

2015) (Brown, J., concurring).

The Petitioners argue that this issue should be

resolved through “the political process, ‘informed by

searching, thoughtful, rational civic discourse.” Pet.

Br. at 33 (quoting Arizona v. United States, 132 S. Ct.

2492, 2510 (2012)). How is that discourse supposed to

take place when the Executive unilaterally acts on a

grand scale, relying on a questionable (if not dubious)

claim of statutory authority, without so much as

providing public notice-and-comment? Even Congress

has little power of redress on its own. While it takes a

majority vote to confer authority on the Executive, it

effectively takes a two-thirds majority vote in Con-

gress to reclaim authority because of the presidential

veto power. U.S. Const. art. I, § 7; see also Raines v.

Byrd, 521 U.S. 811, 812-29 (1997) (stating members

of Congress did not have standing over claims of

injury to institutional authority). As Petitioners point

out, the programs at issue were implemented through

agency action after Congress rejected similar legisla-

tion. Pet. Br. at 59. Under the APA, it is the job of the

Federal courts to resolve the very type of conflict the

States present. 5 U.S.C. § 706.

Petitioners cannot show any explicit statutory

authority granting them the power to authorize alien

employment. Instead, the Petitioners’ claim of author-

ity is that they have been granting work authoriza-

tions to aliens for a long time. Pet. Br. at 50-55. The

Court should take notice that such claims had never

(until recently) been subjected to judicial review

because, up to now, the courts have brushed aside

challenges to similar actions by inventing novel,

inconsistent standing rules out of thin air. E.g., Fed’n

for Am. Immigration Reform v. Reno, 93 F.3d 897,

903-04 (D.C. Cir. 1996), cert. denied, 521 U.S. 1119;

see also id. at 904-05 (Rogers, J., dissenting) (stating

the majority “ignores express instruction from the

Supreme Court and fashions a new standard without

any previous support”). Sadly, the current approach

to standing, “too often stifles constitutional challeng-

es, ultimately elevating the courts’ convenience over

constitutional efficacy and the needs of our citizenry.”

Arpaio, 797 F.3d at 32. The purpose of standing

should be to ensure that a plaintiff has a tangible

interest in the matter and that standing should not

be a vehicle for hairsplitting pettifoggery for arguing

that no one can challenge an Executive rulemaking

action — as Petitioners urge here and is too often the

norm in APA cases. See Pet. Br. at 31 (Petitioners

urge the court to protect administrative actions on

the basis of standing rather than the merits).”

* Amici fail to see how restricting standing is a better

means for limiting challenges under the APA than having clear

precedent on the merits for the scope of executive authority. The

current standing chaos results in multiple cases being brought

on the same merits issues. Compare Int'l Union of Bricklayers &

Allied Craftsmen v. Meese, 761 F.2d 798 (D.C. Cir. 1985) (appeal

of dismissal on standing) with Int’l Union of Bricklayers & Allied

Craftsmen v. Meese, 616 F. Supp. 1387 (N.D. Cal. 1985) (the

same plaintiffs had standing to challenge the same administra-

tive action in a different court); compare Programmers Guild v.

Chertoff, 338 Fed. Appx. 239 (3d Cir. 2009), cert. denied, 559

U.S. 1067 (holding American workers did not have standing to

challenge DHS regulations) with Wash. Alliance of Tech. Workers

v. U.S. Dep't of Homeland Sec., 74 F. Supp. 3d 247 (D.D.C. 2014)

(holding American workers had standing to challenge the very

same regulations).

CONCLUSION

The Court should affirm the decision of the Fifth

Circuit by holding that the Congress, possessing

plenary authority over immigration, has the exclusive

authority to define classes of aliens eligible to be

employed in the United States.

Respectfully submitted,

JOHN M. MIANO*

IMMIGRATION REFORM LAW INSTITUTE

25 Massachusetts Ave., NW, Suite 335

Washington, DC 20001

(202) 232-5590

litigation@irli.org

*Counsel of Record

Attorney for Amici Curiae

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.