Amicus Curiae Brief — In Re United States, 138 S. Ct. 443 (2017) (No. 17-801)

No. 17-801

In the Supreme Court of the United States

IN RE UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF MANDAMUS

TO THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MOTION FOR LEAVE TO FILE AND BRIEF

FOR THE STATE OF TEXAS AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

Scott A. KELLER

Solicitor General

Counsel of Record

J. CAMPBELL BARKER

Deputy Solicitor General

ARI CUENIN

JOHN C. SULLIVAN

Assistant Solicitors General!

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@oag.texas.gov

(512) 936-1700

~

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

ED Sa BE OO Fi crnennenecceerscesessnitcennmemensmnenn V

Brief for the State of Texas as amicus curiae in

support of petitioners:

NID a nsecsserscnccescnsensnccenenesierenmneaneneanenntes 1

I Gr SR ccccccecnstsssesenesscnmenmniemnnes 2

RIE cccrcssmseeemseinesannemenemmnensenesmnes 4

I. Courts may order an agency to produce only

the record required by the APA or other law—

plaintiffs’ curiosity about internal agency

deliberation is not enough. wil

Il. Plaintiffs’ own position on the DACA-recission

memo shows that DACA was never lawful—it

modified rights without notice-and-comment

RG censesresserssnstemnnsensseensseenesnessenenensnensserssene 6

Ill. Texas’s threatened litigation to challenge

DACA would alone be enough of an admin-

istrative record to satisfy APA review. ............. 13

A. The record needs no expansion to

perform arbitrary-and-capricious

POUR > cecesscenssneasessemmamanesnensemmnnasnssnsnnesccesees 13

B. Texas has consistently, clearly, and

publicly explained for years how DACA

is unlawful. .. 16

IV. Mandamus is proper to stop burdensome,

disorderly litigation across the Nation.............. 18

PDT cintninmianinanitinnpenteintivesinenstnsindisineimiitpeincnaenites 19

Il

TABLE OF AUTHORITIES

Cases:

Bowman Transp., Inc. v. Ark.-Best Freight Sys.,

Feani., GRD TEE. BR CID wecccecnveenemnerneseessesnsesvescsnsnseneencess 5

Chrysler Corp. v. Brown,

GE Fa Be Ca cecetnttscncnncnenesnccteescnennssenssrvenemsennemess 6-7

Camp v. Pitts,

GS Te Fa ee cctcr ee renttitricsnmmnnennn 4

F.C.C. v. Fox Teievision Stations, Inc.,

EE Ba Go ccicscneececsnnessecccssevemnsczenscczsenscnssnnenees 5, 6

Fla. Power & Light Co. v. Lorion,

GD a Fe icesincecnscnsnessnnnnecscsnssscesssscenstnsssesesese 4

La Buy v. Howes Leather Co.,

gg FE, _, SER E een rerEE NEE TneD IEEE 18

Massachusetts v. EPA,

Oe UE, Ge Ge eriteternenccstesrerenemememnnnenen 10

McLouth Steel Prods. Corp. v. Thomas,

838 F.2d 1317 (D.C. Cir. 1988) ........ccccccceeseeesereeeeenennens 6

Morton v. Ruiz,

GB UB, BD CI eenceerettremnsereseserses ree ereeteeeeneneenens 7

Profls & Patients for Customized Care v.

Shalala, 56 F.3d 592 (Sth Cir. 1995) ........ccccccceeceeeeneeee 7

Safe Air for Everyone v. U.S. EPA,

488 F.3d 1088 (9th Cir. 2007)..........:ccccceecseeeeeeeeeennnenees 10

Syncor Int'l Corp. v. Shalala,

BT FG GD GG. Cr. TEED ccceerezernenensccenremnesnsseneeseenasse 7

III

Texas v. United States,

a ee V,2

809 F.3d 134 (5th Cir. 2015)................0:00000ee V, 1-2, 6, 16

Constitutional provision, statutes, and rules:

8 8 SE ne ee een S

Administrative Procedure Act:

I io inintiersidnislinntnerenensaneanentineadintnnedn 6

I io sans ntenccincniensignnnenininieiiatatetsanatiniin 5

a I sinictniissnasenesencinensetiineatctnenesnanienetiantets 5

Be hatithicceiatnesisdeieenichibinsatientactneticeitaatteiidasemniinsiatittn 5

a Oe eR cinnetrecicrhinnnicccerininncatinicintenmpercaneennes 4,5

Sup. Ct. R

isl iacinatacenctentnshadaniaasiamnecmananbeniinninndoaananeutigeids V,2

Pn ciicihenisticsidiiiebhiasstiniieenttsienibdinitimiaianmaaasiiaiiaie V, VI, VII

UTTIITTTI cicsbisinicinitsiinenioiitldgemmiaienieatenibbieeninansideiin 1

iid littiitincnndsectedeiensniciinteacigueemimnibentatesaimamiies VII

Siri scsicesasceetieechieenietetaiebeeiaipieguaiadaiuibehigisiaadiadbabatiats 1

Miscellaneous:

2d Am. Complaint, Batalla Vidal v. Nielsen, No.

1:16-cv-4756-N GG-JO (E.D.N.Y. filed Sept. 29,

ST, TI is BB ccscenenesnesicsccecsennnersnnitemncernenees 11

AG Paxton Leads 10-State Coalition Urging

Trump Administration to Phase Out Unlawful

Obama-Era DACA Program,

http://www.texasattorneygeneral.gov/news/relea

ses/ag-paxton-leads-10-state-coalition-urging-

IV

trump-administration-to-phase-out (June 29,

IG ieiictiisssinenicinicintitintsinsiittininiittimiinmaimemnaemnmmnneia 13

Br. for the States of Texas et al. as Amici

Curiae in Support of Petitioners, Brewer v.

Ariz. Dream Act Coal., No. 16-1180 (S. Ct.

| __,_ , RCO COE TET 4, 16, 17, 18

Complaint, New York v. Trump, No. 1:17-cv-5228-

NGG-JO (E.D.N.Y. filed Sept. 6, 2017),

BE Bete Cacinsdienememnsnsinieammnaneninnemnienneens 11, 12

Complaint, California v. Dep’t of Homeland Sec.,

No. 3:17-ev-5235-WHA (N.D. Cal. filed Sept. 8,

SR TE Ck Beccenretarieciinnneinninnen 7, 10

Complaint, Garcia v. United States, No. 3:17-cv-

5380-WHA (N.D. Cal. filed Sept. 18, 2017), ECF

Pe siccrectesitrenisscstnsctnnncteshiccdemnsienenenmmenamimenneneneneneguasecsnwnesens 10

Complaint, Regents of Univ. of Cal. v. Dep’t of

Homeland Sec., No. 3:17-ev-5211-WHA (N.D.

Cal. filed Sept. 8, 2017), ECF No. 1.......sccssessseeeeeees 7,8

Complaint, NAACP v. Trump, No. 1:17-cv-1907-

CRC (D.D.C. filed Sept. 18, 2017), ECF No. 1.......... 11

Complaint, Trustees of Princeton Univ. v. United

States, No. 1:17-ev-2325-CRC (D.D.C. filed Nov.

II NE Cicieetdeesichetechideiintstcianinamindiniiaitniiieansns 11

Orders of June 26, 2017, Brewer v. Ariz. Dream

ee i Se cticicaninittinccncitentintinitinemenes 4

Oral Argument Recording, Texas v. United

States, 787 F.3d 733 (5th Cir. 2015) (No. 15-

V

MOTION FOR LEAVE TO FILE

The State of Texas respectfully moves for any leave

needed to file the enclosed brief as amicus curiae in

support of the petition for a writ of mandamus, without

10 days’ advance notice to the parties of amicus’ intent

to file. Cf Sup. Ct. R. 37.2(a).

1. Statement of Movant's Interest. Plaintiffs’ goal

in this lawsuit is to revive a deferred-action program

(DACA) that is materially identical to two programs

(Expanded DACA and DAPA) invalidated by the Fifth

Circuit in a ruling affirmed by an equally divided vote in

this Court. See Texas v. United States, 809 F.3d 134,

172, 184-86 (5th Cir. 2015), affd by an equally divided

court, 136 8S. Ct. 2271 (2016) (per curiam).

Texas led the group of States challenging those two

deferred-action programs. Pet. App. 63a. And Texas led

the group of States notifying the federal government of

their intent to challenge DACA on the same grounds, if

DACA was not rescinded. Pet. App. 66a. Texas thus has

a keen interest in this case, and its views “may be of

considerable help to the Court.” Sup. Ct. R. 37.1.

Texas’s interest is made even stronger by the stag-

gering scope of discovery that plaintiffs seek. Plaintiffs’

incorrect view of judicial review under the Administra-

tive Procedure Act (APA) has led them to seek far more

than the federal government’s internal deliberative ma-

terial. Plaintiffs have also noticed a deposition of the

Attorney General of Texas and subpoenaed material

held by him. The propriety of the orders challenged

here thus substantially affects Texas’s interests.

VI

2. Statement Regarding Timing. The State of Tex-

as respectfully requests any leave needed to file the en-

closed brief without 10 days’ advance notice to the par-

ties of the State’s intent to file. This Court’s rules allow

the filing of an amicus brief in support of a petition for

an extraordinary writ (such as mandamus) “within 30

days after the case is placed on the docket.” Sup. Ct. R.

37.2(a). Here, that amicus-brief deadline is December

30, 2017; the case was placed on the docket on Decem-

ber 1, 2017, and this Court’s recent scheduling order

accelerated only the deadline for a response to the peti-

tion, not for amicus briefs. Because the enclosed amicus

brief is filed more than 10 days before this brief’s dead-

line, Rule 37.2(a) does not require advance notice to the

parties. Nonetheless, given the purpose of the Rule, the

State files this motion for any leave that is necessary to

file the enclosed amicus brief without 10 days’ advance

notice to the parties of the State’s intent to file. All par-

ties have consented to this requested relief.

This request is justified by the expedited considera-

tion of this matter of significant national interest. The

court of appeals heard oral argument on November 7,

2017, and entered its 2-1 order denying the petition for

a writ of mandamus on November 16, 2017. An emer-

gency motion for an administrative stay was filed in the

court of appeals on November 17, 2017, which was de-

nied by that court on November 21, 2017. An application

to this Court for a stay was filed on December 1, 2017,

and this Court entered a stay and accelerated the dead-

line for a response to the petition only three business

days ago, on December 8, 2017. Because that recent ac-

Vil

celeration of the response deadline implicates the pur-

pose of Rule 37.2(a)’s requirement of 10 days’ advance

notice—a requirement that otherwise would not be im-

plicated by filing the enclosed brief today—the State’s

request for any leave necessary to file the enclosed

brief is justified by the recent deadline acceleration.

Apart from any leave needed because of the absence

of 10 days’ advance notice, leave is not required because

this brief is presented on behalf of a State by its Attor-

ney General. See Sup. Ct. R. 37.4.

CONCLUSION

The State of Texas respectfully requests that the

Court grant any leave needed to file the enclosed brief

supporting the petition for a writ of mandamus.

Respectfully submitted.

KEN PAXTON Scott A. KELLER

Attorney General of Texas Solicitor General

JEFFREY C. MATEER Counsel of Record

First Assistant J. CAMPBELL BARKER

Attorney General Deputy Solicitor Genera!

OFFICE OF THE ARI CUENIN

ATTORNEY GENERAL JOHN C. SULLIVAN

P.O. Box 12548 (MC 059) Assistant Solicitors General

Austin, Texas 78711-2548

scott.keller@oag.texas.gov

(512) 936-1700

Counsel for Amicus Curiae

In the Supreme Court of the United States

No. 17-801

IN RE UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF MANDAMUS

TO THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF FOR THE STATE OF TEXAS AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

Amicus curiae is the State of Texas.’ Plaintiffs’ goal

in this lawsuit is to revive a deferred-action program

(DACA) that is materially identical to two programs

(Expanded DACA and DAPA) struck down by the Fifth

Circuit in a ruling affirmed by an equally divided vote in

this Court. See Texas v. United States, 809 F.3d 134,

' Pursuant to Supreme Court Rule 37.6, amicus states that no

counsel for any party authored this brief in whole or in part, and

no person or entity other than amicus contributed monetarily to

the preparation or submission of this brief. Due to the recent ac-

celeration of the deadline for a response to the petition for a writ

of mandamus, amicus is now unable to provide the parties with

notice of intent to file ten days before the deadline for a response,

which seems contemplated by the spirit, though not the text, of

this Court’s Rule 37.2. Accordingly, amicus also submits, as one

document with this brief, see Sup. Ct. R. 37.3(b), an aecompany-

ing motion for any leave necessary to file this brief. All parties

have consented to the filing of this brief.

(1)

2

172, 184-86 (5th Cir. 2015), aff'd by an equally divided

court, 136 S. Ct. 2271 (2016) (per curiam).

Texas led the group of States challenging those two

deferred-action programs. Pet. App. 68a. And Texas led

the group of States notifying the federal government of

their intent to challenge DACA on the same grounds, if

DACA were not rescinded. Pet. App. 66a. Texas thus

has a keen interest in this case, and its views “may be of

considerable help to the Court.” Sup. Ct. R. 37.1.

Texas’s interest is made even stronger by the stag-

gering scope of discovery that plaintiffs seek. Plaintiffs’

incorrect view of judicial review under the Administra-

tive Procedure Act (APA) has led them to seek far more

than the federal government’s internal deliberative ma-

terial. Plaintiffs have also noticed a deposition of the

Attorney General of Texas and subpoenaed material

held by him. The propriety of the orders challenged

here thus substantially affects Texas’s interests.

SUMMARY OF ARGUMENT

Plaintiffs are trying to use the Administrative Pro-

cedure Act in an unprecedented way. Plaintiffs cloak

their expedition for internal deliberative material held

by the federal government as a mere request for a

“complete” administrative record. Judge Watford per-

suasively explained below why mandamus should be

granted to prevent that intrusion: “The order sweeps

far beyond materials related to the sole reason given for

rescinding DACA”—the Texas-led coalition’s successful

challenges to the legality of materially identical pro-

grams. Pet. App. 19a (Watford, J., dissenting).

3

What is more, the damage from plaintiffs’ novel view

of APA review does not end with the federal govern-

ment. The intrusion on deliberative functioning extends

to the State of Texas as well. Plaintiffs have tried to

subpoena documents from Texas’s counsel and depose

the Attorney General of Texas. But the Texas Attorney

General cannot possibly be a relevant actor for analyz-

ing whether the federal Executive Branch acted arbi-

trarily or capriciously in winding down DACA.

Beyond the fact that precedent prohibits plaintiffs’

irrelevant fishing expedition, the underlying lawsuit’s

APA claims are meritless. Texas and a group of States

successfully challenged the 2014 Expanded DACA and

DAPA programs, and Texas along with other States

publicly announced an intention to challenge the mate-

rially identical 2012 DACA program on the same legal

grounds if the federal government did not agree to wind

down DACA. There is nothing arbitrary or capricious

about the federal government responding to that

threatened litigation by withdrawing the policy that

would have been challenged. In fact, plaintiffs’ own

pleadings in this case confirm that DACA was unlawful

to begin with.

As Judge Watford recognized below in dissent, the

non-arbitrary basis for the agency’s action is plain from

the agency record as it is: Texas has argued for years

that the federal Executive Branch lacks the power to

unilaterally grant unlawfully-present aliens lawful

presence and work authorization—as DACA, Expanded

DACA, and DAPA did.

4

Texas made this argument while leading a challenge

to Expanded DACA and DAPA. Texas made the same

argument in announcing its intent to challenge DACA

in that lawsuit. And Texas made the same argument in

an amicus brief in this Court, on behalf of 13 States and

one Governor, detailing why DACA is substantively un-

lawful. Br. for the States of Texas et al. as Amici Curiae

in Support of Petitioners, Brewer v. Ariz. Dream Act

Coal., No. 16-1180 (May 1, 2017) (“Texas Amicus Br.”);

see also Orders of June 26, 2017, id. (calling for the view

of the Solicitor General of the United States on the cer-

tiorari petition).

The Court should grant mandamus relief reversing

the district court’s orders relating to discovery and the

administrative record.

ARGUMENT

I. Courts May Order an Agency to Produce Only the

Record Required by the APA or Other Law—

Plaintiffs’ Curiosity About Internal Agency De-

liberation Is Not Enough.

As Judge Watford’s dissent in the Ninth Circuit

persuasively explained, arbitrary-and-capricious review

under the APA, see 5 U.S.C. § 706(2)(A), must analyze

only the record compiled by the agency and presented

to the reviewing court. Pet. App. 16a (citing Fla. Power

& Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985);

Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam)).

When an agency acts without informal (notice-and-

comment) rulemaking and without formal rulemaking

5

or adjudication procedures,” as is true here, then the

only statute-based limits on what the “whole record”

must contain are the limits inherent in the agency’s de-

sire to have its action survive APA review, for example

as not arbitrary and capricious, 5 U.S.C. § 706(2)(A).

That arbitrary-and-capricious standard is narrow. As

Judge Watford explained below, the reviewing court

simply must be “able to discern the agency’s reasons for

taking the action that it did.” Pet. App. 18a; see F.C.C.

v. Fox Television Stations, Inc., 556 U.S. 502, 513-14

(2009) (noting that clarity can be “less than ideal,” so

long as “the agency’s path may reasonably be dis-

cerned”) (quoting Bowman Transp., Inc. v. Ark.-Best

Freight Sys. Inc., 419 U.S. 281, 286 (1974)). Thus,

where the agency here placed only 256 pages of infor-

mation into the record, judicial review asks whether on-

ly those 256 pages—and not other sources outside that

administrative record—confirm that the agency has

given a “reasoned explanation” for its decision. Fox, 556

U.S. at 515.

Plaintiffs cannot contend that the record here needs

anything more for couris to discern whether the agency

* The APA or other statutes may at times require certain doc-

uments to be placed in the administrative record—for example,

the “written data, views, or arguments” submitted through com-

ments when notice-and-comment rulemaking is used, 5 U.S.C.

§ 553(c), or material presented in hearings through formal rule-

making or adjudication, id. §§ 556(e), 557. But nowhere does the

APA or any other statute require internal deliberative materials

to be placed in the administrative reeord—even when notice-and-

comment or formal procedures are used.

6

has an “explanation for its action.” Jd. The agency’s

memo “explicitly states” the justification for its action:

“concern that the program would be invalidated in

threatened litigation.” Pet. App. 18a (Watford, J., dis-

senting). See infra Part III. Plaintiffs point to no stat-

ute requiring the agency to consider anything more.

Thus, plaintiffs are left with only their “desire for

greater insight into how DHS arrived at its decision.”

Pet. App. 16a (Watford, J., dissenting). But plaintiffs’

wishes are not legal authority; they do not allow plain-

tiffs to add material to the agency’s record. Plaintiffs

cannot commandeer the federal administrative appa-

ratus simply because they disagree with the agency’s

policy determinations.

Il. Plaintiffs’ Own Position on the DACA-Rescission

Memo Shows that DACA Was Never Lawful—It

Modified Rights Without Notice-and-Comment

Procedure.

Plaintiffs’ own pleadings confirm that DACA was

unlawful to begin with, because it was a substantive rule

that had to go through APA notice-and-comment pro-

cedure.

A. There is no dispute that DACA is a “rule” for

APA purposes. 5 U.S.C. § 551(4). Accordingly, DACA

had to be issued through notice-and-comment proce-

dure if it was a substantive rule, rather than a mere

“general statement] of policy.” Texas, 809 F.3d at 171

(alteration in original). The key distinction between pol-

icy statements and substantive rules is that policy

statements cannot be “binding.” Chrysler Corp. v.

7

Brown, 441 U.S. 281, 302 (1979); see Syncor Int’l Corp.

v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (“We thus

have said that policy statements are binding on neither

the public .. . nor the agency.”).

A rule is binding if it creates or modifies “rights and

obligations.” E.g., McLouth Steel Prods. Corp. v.

Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988); Profls &

Patients for Customized Care v. Shalala, 56 F.3d 592,

595 (5th Cir. 1995). In Morton v. Ruiz, 415 U.S. 199

(1974), this Court held that a vastly more modest rule

concerning benefits eligibility “affect/[ed] individual

rights and obligations” and therefore had to be treated

as a substantive rule. /d. at 231-37. The same is true of

DACA, under plaintiffs’ own pleadings.

B. This mandamus petition involves orders entered

in five consolidated actions and, therefore, multiple

plaintiffs. See Pet. App. 45a. The University of Califor-

nia plaintiffs here contend that the DACA rescission

memo “constitutes a substantive rule subject to APA’s

notice-and-comment requirements.” Complaint 14, Re-

gents of Univ. of Cal. v. Dep't of Homeland Sec., No.

3:17-ev-5211-WHA (N.D. Cal. filed Sept. 8, 2017), ECF

No. 1.

But that could be true only if DACA was itself a

substantive rule—one that modifies rights and obliga-

tions. After all, if DACA were not a substantive rule

that changed the rights of recipients, then winding

down this program also could not be a substantive rule

changing rights. Plaintiffs, though, allege that DACA is

just such a substantive rule. First, plaintiffs admit that

DACA purported to unilaterally confer lawful presence:

8

Individuals with DACA status were “not consid-

ered to be unlawfully present during the period

in which deferred action [was] in effect.” USCIS

FAQs.

Id. at 8. Moreover, plaintiffs admit that aliens who re-

ceived DACA status would not have been able—but for

DACA—to lawfully “obtain jobs and access to certain

Social Security and Medicare benefits.” /d. at 2. So the

unspoken premise of plaintiffs’ current complaint is that

DACA was unlawful the entire time, as issued without

required APA notice-and-comment procedure.

Plaintiffs point to no requirement that the govern-

ment must use notice-and-comment procedure to re-

scind a policy unlawfully issued without that procedure.

If the APA somehow required the federal Executive

Branch to continue enforcing an unlawful policy while

notice-and-comment procedure was used to rescind that

unlawful policy, then the APA would be unconstitutional

as applied to that unlawful policy. Congress cannot

command the Executive Branch to ignore its Take Care

Clause duty and enforce an unlawful rule.

C. The State of California plaintiffs here likewise af-

firmatively plead, in substance, that DACA’s features

meet the test for a substantive rule that required APA

notice-and-comment procedure. For instance, these

plaintiffs plead that “DACA Provides Numerous Bene-

fits,” which these plaintiffs describe in detail:

82. DACA grantees are provided with numerous

benefits. Most importantly, they are granted the

right not to be arrested or detained based solely

9

on their immigration status during the designat-

ed period of their deferred action. See id. at 2-3.

83. DACA grantees are granted eligibility to re-

ceive employment authorization.

84. DACA also opened the door to allow travel

for DACA grantees. For example, DACA grant-

ees were allowed to briefly depart the U.S. and

legally return under certain circumstances, such

as to visit an ailing relative, attend funeral ser-

vices for a family member, seek medical treat-

ment, or further educational or employment

purposes. 8 U.S.C. § 1182(a)(9)(B)(i); see also Ex.

E, USCIS, Frequently Asked Questions, DHS

DACA FAQs (“DACA FAQs”) (Apr. 25, 2017)

Q57. Travel for vacation is not permitted.

85. Unlike other undocumented immigrants,

DACA grantees are not disqualified on the basis

of their immigration status from receiving cer-

tain public benefits. These include federal Social

Security, retirement, and disability benefits. See

8 U.S.C. §§ 1611(b)(2)-(3), 1621(d). As a result,

and in reliance on DHS’s oft-stated position that

DACA and similar programs are a lawful exer-

cise of the agency’s authority, Plaintiff States

have structured some schemes around DACA

which allow, for example, applicants to demon-

strate eligibility for state programs by producing

documentation that they have been approved

10

under DACA. The rescission of DACA under-

mines such regulatory frameworks.

86. DACA grantees are able to secure equal ac-

cess to other benefits and opportunities on which

Americans depend, including opening bank ac-

counts, obtaining credit cards, starting business-

es, purchasing homes and cars, and conducting

other aspects of daily life that are otherwise of-

ten unavailable for undocumented immigrants.

Complaint 17-18, California v. Dep’t of Homeland Sec.,

No. 3:17-ev-5235-WHA (N.D. Cal. filed Sept. 11, 2017),

ECF No. 1 (emphases added).

D. The Garcia plaintiffs here admit the same thing.

Complaint 9 1 27, Garcia v. United States, No. 3:17-cv-

5380-WHA (N.D. Cal. filed Sept. 18, 2017), ECF No. 1

(“DACA confers numerous important benefits on those

who apply for and are granted DACA status.”) (empha-

ses added).

Furthermore, the Garcia plaintiffs state that the

APA does not allow policies to remain in effect when

they are “predicated on an incorrect legal premise.” /d.

Complaint 22, California, No. 3:17-cv-5235-WHA, ECF

No. 1 (citing Massachusetts v. EPA, 549 U.S. 497, 532-

535 (2007); Safe Air for Everyone v. U.S. EPA, 488 F.3d

1088, 1101 (9th Cir. 2007)). In other words, these plain-

tiffs plead that the APA does not permit ultra vires ac-

tions—which means DACA could not have been en-

forced this entire time and could not be enforced in the

future. Plaintiffs thus necessarily acknowledge that

1]

they cannot obtain the relief they seek—DACA’s con-

tinued operation.

E. In addition to the five challenges pending in the

Northern District of California, at least four other

pending lawsuits challenge the DACA rescission memo.

Complaint, Trustees of Princeton Univ. v. United

States, No. 1:17-ev-2325-CRC (D.D.C. filed Nov. 3,

2017), ECF No. 1; Complaint, NAACP v. Trump, No.

1:17-ev-1907-CRC (D.D.C. filed Sept. 18, 2017), ECF

No. 1; 2d Am. Complaint, Batalla Vidal v. Nielsen, No.

1:16-cv-4756-NGG-JO (E.D.N.Y. filed Sept. 29, 2017),

ECF No. 29; Complaint, New York v. Trump, No. 1:17-

cv-5228-NGG-JO (E.D.N.Y. filed Sept. 6, 2017), ECF.

No. 1. Plaintiffs in those cases similarly have pleaded, in

substance, that DACA was unlawful this entire time.

Plaintiffs in the New York lawsuit plead that DACA

affirmatively confers benefits, i.e., that DACA alters

substantive rights:

{7} 218. DACA confers numerous benefits on

DACA grantees. Notably, DACA grantees are

granted the right not to be arrested or detained

based solely on their immigration status during

the time period their deferred action is in effect.

See Ex. 14, Question 9.

[%} 220. DACA grantees are eligible to receive

certain public benefits. These include Social Se-

curity, retirement, and disability benefits, and,

in certain states, benefits such as driver’s licens-

es or unemployment insurance. See 8 U.S.C.

12

§§ 1611(b)(2)-(3), 1621(d). In the State of Wash-

ington, DACA holders also are eligible for cer-

tain state financial aid programs and state-

funded food assistance. See Wash. Rev. Code

§ 28B.92.010; Wash. Admin. Code §§ 388-400-

0050, 388-424-0001, 388-424-0030. In the State of

New York, DACA holders are eligible for teach-

ing and nursing licenses. See Comm. of Educ.

Regs. §§ 59.4; 80-1.3; Ex. 78 (NYS Board of Re-

gents Press Release, Feb. 24, 2016).

Complaint 41, New York, No. 1:17-cv-5228-NGG-JO,

ECF No. 1 (emphases added). These plaintiffs have

likewise tacitly admitted that DACA itself needed to go

through APA notice-and-comment procedure because it

was a substantive rule, one modifying rights:

[1] 289. In implementing the DHS Memorandum,

federal agencies have changed the substantive

criteria by which individuals DACA grantees

work, live, attend school, obtain credit, and trav-

el in the United States. Federal agencies did not

follow the procedures required by the APA be-

fore taking action impacting these substantive

rights.

Id. at 54. If DACA’s rescission affected substantial

rights, as these plaintiffs allege, then DACA did so too

and was unlawful in the first place.

13

Ill.Texas’s Threatened Litigation to Challenge

DACA Would Alone Be Enough of an Adminis-

trative Record to Satisfy APA Review.

A. The record needs no expansion to perform ar-

bitrary-and-capricious review.

As Judge Watford recognized in dissent below, Pet.

App. 18a, the non-capricious basis for the agency’s deci-

sion to rescind DACA is manifest: The State of Texas

made very clear, in a publicly available letter, that it

and a coalition of States would sue to challenge DACA if

the Executive Branch did not wind it down.

On June 29, 2017, the Texas Attorney General, nine

other State Attorneys General, and one Governor sent a

letter to the federal Executive Branch proposing a

DACA wind-down as a way to end the States’ existing

lawsuit challenging the Executive’s ability to unilateral-

ly confer lawful presence and work authorization; this

letter is in the administrative record. A.R. 238-40.*

This letter was immediately made publicly available

by the Texas Attorney General. That same day, the

Texas Attorney General issued a press release that

made the letter public.‘ It explained:

5 A.R. cites the Administrative Record, filed as ECF No. 64-1 in

Distriet Court No. 3:17-ev-05211 (N.D. Cal.).

* AG Pazton Leads 10-State Coalition Urging Trump Admin-

istration to Phase Out Unlawful Obama-Era DACA Program,

http://www.texasattorneygeneral.gov/news/releases/ag-paxton-

leads-10-state-coalition-urging-trump-administration-to-phase-

out (June 29, 2017).

14

In a letter sent today to the U.S. Attorney

General, Texas Attorney General Ken Paxton,

nine other state attorneys general and the gov-

ernor of Idaho urged the Trump Administration

to phase out the unlawful Obama-era Deferred

Action for Childhood Arrival (DACA) program,

which confers lawful presence and work permits

for nearly one million unlawfully present aliens

in the U.S.

Attorney General Paxton and the coalition

promised to voluntarily dismiss their lawsuit

challenging unlawful deferred-action programs

currently pending in district court if the Trump

Administration agrees by September 5 to rescind

DACA and not renew or issue any new DACA

permits in the future.°

The letter itself made crystal clear why DACA was un-

lawful:

As you know, this November 20, 2014 memo-

randum creating DAPA and Expanded DACA

would have grantec eligibility for lawful pres-

ence and work authorization to over four million

unlawfully present aliens. Courts blocked DAPA

and Expanded DACA from going into effect,

holding that the Executive Branch does not have

the unilateral power to confer lawful presence

and work authorization on unlawfully present al-

° Id.

15

iens simply because the Executive chooses not to

remove them. Rather, “[iJn specific and detailed

provisions, the [Immigration and Nationality

Act] expressly and carefully provides legal des-

ignations allowing defined classes of aliens to be

lawfully present.” Texas v. United States, 809

F.3d 134, 179 (5th Cir. 2015), affd by an equally

divided court, 136 S. Ct. 2271 (2016) (per curi-

am). “Entirely absent from those specific classes

is the group of 4.3 million illegal aliens who

would be eligible for lawful presence under

DAPA.” Id. Likewise, “(t]he INA also specifies

classes of aliens eligible and ineligible for work

authorization .. . with no mention of the class of

persons whom DAPA would make eligible for

work authorization.” Jd. at 180-81. Thus, “DAPA

is not authorized by statute,” id. at 184, and

“DAPA is foreclosed by Congress’s careful plan,”

id. at 186.

For these same reasons that DAPA and Ex-

panded DACA’s unilateral Executive Branch

conferral of eligibility for lawful presence and

work authorization was unlawful, the original

June 15, 2012 DACA memorandum is also unlaw-

ful. The original 2012 DACA program covers

over one million otherwise unlawfully present al-

iens. Jd. at 147. And just like DAPA, DACA uni-

laterally confers eligibility for work authoriza-

tion, id., and lawful presence without any statu-

tory authorization from Congress.

A.R. 238-39.

16

This letter thus (1) threatened litigation over DACA

and (2) gave a substantive explanation providing legal

arguments based on precedent as to why DACA was

unlawful. Even if this letter were the only document in

the administrative record, the federal Executive

Branch’s decision to wind down DACA would be wholly

rational and non-capricious under the APA.

B. Texas has consistently, clearly, and publicly

explained for years how DACA is unlawful.

1. Texas’s substantive explanation in its June 29,

2017 letter of DACA’s illegality did not come out of the

blue. It was based on Texas’s victory, leading a 26-State

coalition, in challenging the materially identical Ex-

panded DACA and DAPA programs. See, eg., Texas,

809 F.3d at 174 n.139 (“DACA is an apt comparator to

DAPA.”). As early as April 2015, counsel of record told

the Fifth Circuit that DACA was required to go

through notice-and-comment procedure. Oral Argu-

ment Recording at 1:16:01-10, Texas v. United States,

787 F.3d 733 (5th Cir. 2015) (No. 15-40238) (denying

stay pending appeal).

2. Even more recently, Texas led a 13-State coali-

tion urging this Court to grant certiorari in Brewer v.

Arizona Dream Act Coalition, No. 16-1180, where the

amici States explicitly argued that DACA was unlaw-

ful—based on the same arguments that the States suc-

cessfully made regarding Expanded DACA and DAPA.

For example, the States argued that DACA was un-

lawful because “Deferred action under DACA is much

more than just a decision not to pursue removal of the

17

alien. The Executive deems deferred action under

DACA to confer lawful presence and a host of attendant

benefits.” Texas Amicus Br. 3.

DACA’s conferral of lawful presence, the amici

States noted, “violates Congress’s extensive statutory

framework defining when aliens are authorized to be

present in the country.” /d. at 6. The States explained:

The Executive has no power to unilaterally “cre-

ate immigration classifications” that authorize al-

iens’ presence in this country because “the INA

expressly and carefully provides legal designa-

tions allowing defined classes of aliens to be law-

fully present,” Texas, 809 F.3d at 179. DACA vio-

lates the INA just like the materially identical

DAPA program.

Id. at 7 (citation omitted).

The States further explained that DACA violated

statutes governing which aliens are authorized to work

in this country:

[Wjhen Congress wanted to provide work-

authorization eligibility to four narrow classes of

deferred-action recipients, it did so by statute.

Otherwise, the 1986 IRCA “prohibiti/s] the em-

ployment of aliens who are unauthorized to work

in the United States because they either entered

the country illegally, or are in an immigration

status which does not permit employment.” H.R.

Rep. No. 99-682(1), at 46, 51-52 (1986), reprinted

in 1986 U.S.C.C.A.N. 5649, 5650, 5655-56 (em-

phasis added).

18

Id. at 15-16 (footnote omitted). And the States surveyed

various historical practices, explaining how they could

not support DACA’s unilateral conferral of lawful pres-

ence and work authorization. /d. at 18-20.

3. In sum, it is easily rational and not capricious to

wind down a program based on a controversial asser-

tion of unilateral Executive Branch authority, which

Texas and other States had been challenging for years.

No expansion of the administrative record or further

discovery is needed to perform APA arbitrary-and-

capricious review.

IV.Mandamus Is Proper to Stop Burdensome, Dis-

orderly Litigation Across the Nation.

The Court should exercise its supervisory manda-

mus authority here to ensure that the judicial system

operates in an orderly and efficient manner. See La

Buy v. Howes Leather Co., 352 U.S. 249, 259-60 (1957).

Across the Nation, no less than nine lawsuits challenge

DACA’s rescission. See supra pp. 11-12. A decision here

will provide nationwide direction, curtailing extraordi-

narily broad, resource-intensive discovery based on

clearly incorrect legal theories that threaten to work

irreparable harm to federal and state operations.

19

CONCLUSION

The Court should issue a writ of mandamus revers-

ing the district court’s orders relating to discovery and

the administrative record or, in the alternative, grant a

writ of certiorari to the Ninth Circuit and direct that

court to issue a writ of mandamus reversing the district

court orders.

Respectfully submitted.

KEN PAXTON Scott A. KELLER

Attorney General of Texas Solicitor General

Counsel of Record

JEFFREY C. MATEER ¥

First Assistant J. CAMPBELL BARKER

Attorney General Deputy Solicitor Genera!

OFFICE OF THE ARI CUENIN

ATTORNEY GENERAL JOHN C. SULLIVAN

P.O. Box 12548 (MC 059) Assistant Solicitors General

Austin, Texas 78711-2548 . ,

scott.keller@oag.texas.gov Counsel for Amicus Curiae

(512) 936-1700

DECEMBER 2017