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`i
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`Nos. 18-587, 18-588, 18-589
`
`
`
`IN THE
`Supreme Court of the United States
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`DEP’T OF HOMELAND SECURITY, et al., Petitioners
`v.
`REGENTS OF THE UNIV. OF CALIFORNIA, et al., Respondents
`------
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
`et al., Petitioners
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`COLORED PEOPLE, et al., Respondents
`------
`KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND
`SECURITY, et al., Petitioners
`v.
`MARTIN JONATHAN BATALLA VIDAL, et al., Respondents
`
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`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURTS OF APPEALS
`FOR THE NINTH, D.C., AND SECOND CIRCUITS
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`BRIEF OF AMICUS CURIAE CENTER FOR
`CONSTITUTIONAL JURISPRUDENCE
`IN SUPPORT OF PETITIONERS
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`JOHN C. EASTMAN
` Counsel of Record
`ANTHONY T. CASO
`The Claremont Institute’s
` Center for Constitutional
` Jurisprudence
`c/o Dale E. Fowler School of Law
`Chapman University
`One University Drive
`Orange, CA 92866
`(877) 855-3330
`jeastman@chapman.edu
`
`Counsel for Amicus Curiae
`Center for Constitutional Jurisprudence
`
`
`
`i
`
`QUESTIONS PRESENTED
`
`This dispute concerns the policy of immigration en-
`forcement discretion known as Deferred Action for
`Childhood Arrivals (DACA). In 2016, this Court af-
`firmed, by an equally divided vote, a decision of the
`Fifth Circuit holding that two related Department of
`Homeland Security (DHS) discretionary enforcement
`policies, including an expansion of the DACA policy,
`were likely unlawful and should be enjoined. See
`United States v. Texas, 136 S. Ct. 2271 (2016) (per cu-
`riam). In September 2017, DHS determined that the
`original DACA policy was unlawful and would likely
`be struck down by the courts on the same grounds as
`the related policies. DHS thus instituted an orderly
`wind-down of the DACA policy. The questions pre-
`sented are as follows:
`
`1. Whether DHS’s decision to wind down the
`DACA policy is judicially reviewable.
`
`2. Whether DHS’s decision to wind down the
`DACA policy is lawful.
`
`This amicus curiae brief addresses the second ques-
`tion presented.
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`QUESTIONS PRESENTED ..........................................i
`
`TABLE OF AUTHORITIES ........................................ iii
`
`INTEREST OF AMICUS CURIAE .............................. 1
`
`SUMMARY OF ARGUMENT ....................................... 1
`
`ARGUMENT ................................................................... 2
`
`I. The DACA Program That President Trump’s
`Administration Seeks to Rescind Was Itself
`Legally and Even Constitutionally Infirm. ........... 2
`
`A. The Immigration and Nationality Act
`mandates removal of unauthorized aliens....... 2
`
`B. DACA and DAPA are both categorical, and
`therefore unconstitutional, suspensions of the
`law......................................................................... 6
`
`C. The provision of benefits and a “lawful” status
`are beyond the scope of prosecutorial
`discretion............................................................ 13
`
`II. A Discretionary Decision Not To Enforce The Law
`Cannot Give Rise To A Reliance Interest In
`Continued (And Certainly Not In Perpetual) Non-
`Enforcement. ........................................................... 22
`
`CONCLUSION .............................................................24
`
`
`
`iii
`
`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Adams v. Richardson,
`480 F.2d 1159 (1973) .................................................. 7
`
`Blodgett v. Holden,
`275 U.S. 142 (1927) ..................................................20
`
`Chamber of Commerce of U.S. v. Whiting,
`131 S. Ct. 1968 (2011) ..............................................17
`
`Clinton v. New York,
`524 U.S. 417 (1998) ..................................................21
`
`Crane v. Napolitano, 3:12-CV-03247-O,
`2013 WL 1744422 (N.D. Tex. Apr. 23, 2013) ......5, 6
`
`Crowley Caribbean Transp., Inc. v. Pena,
`37 F.3d 671 (D.C. Cir. 1994)....................................11
`
`Fed. Express Corp. v. Holowecki,
`552 U.S. 389 (2008) .................................................... 5
`
`Federal Radio Comm. v. Nelson Bros. Bond &
`Mortgage Co.,
`289 U.S. 266 (1933) ..................................................19
`
`Fiallo v. Bell,
`430 U.S. 787 (1977) ..................................................21
`
`FTC v. Gratz,
`253 U.S. 421 (1920) ..................................................19
`
`Galvin v. Press,
`347 U.S. 522 (1954) ..................................................21
`
`Heckler v. Chaney,
`470 U.S. 821 (1985) ..................................... 6, 7, 9, 10
`
`Hoffman Plastic Compounds, Inc. v. N.L.R.B.,
`535 U.S. 137 (2002) ..................................................17
`
`
`
`
`
`In re E-R-M & L-R-M,
`25 I. & N. Dec. 520 (BIA 2011) ................................. 6
`
`iv
`
`INS v. Chadha,
`462 U.S. 919 (1983) ..................................................20
`
`J.W. Hampton, Jr., & Co. v. United States,
`276 U.S. 394 (1928) ..................................................19
`
`Kendall, v. United States ex rel. Stokes,
`37 U.S. (12 Pet.) 524 (1838).....................................10
`
`Kleindienst v. Mandel,
`408 U.S. 753 (1972) ..................................................20
`
`Lopez v. Davis,
`531 U.S. 230 (2001) ................................................5, 6
`
`Lozano v. City of Hazleton,
`496 F. Supp. 2d 477 (M.D. Pa. 2007), aff’d in part,
`vacated in part, 620 F.3d 170 (3d Cir. 2010),
`judgment vacated sub nom. City of Hazleton, Pa. v.
`Lozano, 131 S. Ct. 2958 (2011), and aff’d in part,
`rev’d in part, 724 F.3d 297 (3d Cir. 2013)..............18
`
`Mistretta v. U.S.,
`488 U.S. 361 (1989) ..................................................19
`
`New York Central Securities Corp. v. United States,
`287 U.S. 12 (1932) ....................................................19
`
`Oceanic Steam Navigation Co. v. Stranahan,
`214 U.S. 320 (1909) ..................................................21
`
`Perales v. Casillas,
`903 F.2d 1043 (5th Cir. 1990) .................................12
`
`Perez v. Mortg. Bankers Ass’n,
`135 S.Ct. 1199 (2015) ................................................. 1
`
`Reno v. Am.-Arab Anti-Discrimination Comm.,
`525 U.S. 471 (1999) ..................................................12
`
`
`
`
`
`Sale v. Haitian Centers Council, Inc.,
`509 U.S. 155 (1993) ..................................................20
`
`v
`
`Tagg Bros. & Moorhead v. United States,
`280 U.S. 420 (1930) ..................................................19
`
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25,
`2015)...........................................................................18
`
`Town of Castle Rock, Colo. v. Gonzales,
`545 U.S. 748 (2005) .................................................... 4
`
`Trump v. Hawaii,
`138 S. Ct. 2392 (2018) ................................................ 1
`
`U.S. v. Juarez-Escobar,
`25 F. Supp. 3d 774 (W.D. Pa. 2014) .......................11
`
`United States v. Texas,
`136 S.Ct. 2271 (2016) ................................................. 1
`
`Whitman v. Am. Trucking Ass’ns,
`531 U.S. 457 (2001) ..................................................19
`
`
`
`Statutes
`
`5 U.S.C. § 701(a)(2) ........................................................ 7
`
`8 U.S.C. § 1101(a)(15)(V) .............................................16
`
`8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) .............................12
`
`8 U.S.C. § 1158(c)(1)(B) ...............................................16
`
`8 U.S.C. § 1182(a)(6)(C) ................................................. 3
`
`8 U.S.C. § 1182(a)(6)(E)(iii), (d)(11) ...........................13
`
`8 U.S.C. § 1182(a)(7) ...................................................... 3
`
`8 U.S.C. § 1182(d)(13), (14) .........................................13
`
`
`
`
`
`8 U.S.C. § 1225(a)(2) ...................................................... 3
`
`vi
`
`8 U.S.C. § 1225(a)(3) ...................................................... 3
`
`8 U.S.C. § 1225(b)(1)(A)(i) ............................................. 3
`
`8 U.S.C. § 1225(b)(2)(A) .............................................3, 5
`
`8 U.S.C. § 1226(a)(3) ....................................................16
`
`8 U.S.C. § 1229a(a)(1) .................................................... 3
`
`8 U.S.C. § 1229a(a)(3) .................................................... 4
`
`8 U.S.C. § 1229a(b)(5)(A) ............................................... 4
`
`8 U.S.C. § 1229a(c)(1)(A) ............................................... 4
`
`8 U.S.C. § 1229a(c)(2) .................................................... 4
`
`8 U.S.C. § 1229a(c)(3) .................................................... 4
`
`8 U.S.C. § 1229b ...........................................................13
`
`8 U.S.C. § 1229c ............................................................12
`
`8 U.S.C. § 1231(a)(7) ....................................................16
`
`8 U.S.C. § 1252(b) .........................................................12
`
`8 U.S.C. § 1254a ...........................................................12
`
`8 U.S.C. § 1324a(h)(3) ..................................... 15, 17, 20
`
`29 U.S.C. § 626(d) ........................................................... 5
`
`National Defense Authorization Act for Fiscal Year
`2004, Pub. L. No. 108-136, § 1703(c)-(d), 117 Stat.
`1392, 1694 .................................................................13
`
`USA PATRIOT ACT of 2001, Pub. L. No. 107-56, §
`423(b), 115 Stat. 272, 361 ........................................12
`
`
`
`
`
`
`
`
`
`
`Other Authorities
`
`vii
`
`ABA Standards for Criminal Justice 1–4.5,
`commentary (2d ed.1980) .......................................... 4
`
`Carrol, Lewis, Through the Looking Glass (1871) ..... 1
`
`Cooper, Bo, General Counsel, INS, INS Exercise of
`Prosecutorial Discretion, (July 11, 2000) ....... 14, 24
`
`Johnson, Jeh Charles, Memorandum for Leon
`Rodriguez, et al., Exercising Prosecutorial
`Discretion with Respect to Individuals Who Came
`to the United States as Children and with Respect
`to Certain Individuals Who Are the Parents of U.S.
`Citizens or Permanent Residents (Nov. 20, 2014) .. 9,
`13, 15
`
`Napolitano, Janet, Secretary of Homeland Security,
`Memo to David V. Aguilar, Acting Commissioner,
`U.S. Customs and Border Protection, et al.,
`Exercising Prosecutorial Discretion with Respect to
`Individuals Who Came to the United States as
`Children (June 15, 2012) ................................ 1, 8, 23
`
`Obama, Barack, Remarks by the President at
`Univision Town Hall (March 28, 2011)..................22
`
`Rotunda, R., and Nowak, J., 1 Treatise on Const.
`Law § 7.6 (March 2016) ............................................. 4
`
`S.B. 1291 (2001) ............................................................18
`
`Thompson, Karl R., Office of Le-gal Counsel, The
`Department of Homeland Security’s Authority to
`Prioritize Removal of Certain Aliens Un-lawfully
`Present in the United States and to Defer Re-moval
`of Others (Nov. 19, 2014) .................................. 10, 12
`
`Transcript, Hearing on President Obama’s Executive
`Overreach on Immigration, House of
`
`
`
`viii
`
`
`
`Representatives Judiciary Committee (Dec. 2,
`2014)............................................................................. 9
`
`U.S. Citizenship and Immigration Services,
`Frequently Asked Questions (June 15, 2015) ........15
`
`USCIS Form I-821D (06/25/13) ..................................23
`
`
`
`Rules
`
`Sup. Ct. R. 37.3(a) .......................................................... 1
`
`Sup. Ct. R. 37.6 ............................................................... 1
`
`
`
`Constitutional Provisions
`
`U.S. Const. art. I, § 1 ...................................................19
`
`U.S. Const. art. I, § 7 ...................................................21
`
`U.S. Const. art. I, § 9, cl. 7 ..........................................21
`
`U.S. Const. art. II, § 3 ............................................. 2, 10
`
`
`
`
`
`
`
`
`
`
`
`INTEREST OF AMICUS CURIAE1
`
`1
`
`The Center for Constitutional Jurisprudence is the
`public interest law arm of the Claremont Institute,
`whose stated mission is to restore the principles of the
`American founding to their rightful and preeminent
`authority in our national life, including the funda-
`mental separation of powers principles implicated by
`these cases. The Center has previously appeared be-
`fore this Court as amicus curiae in several cases ad-
`dressing similar separation of powers issues, includ-
`ing Trump v. Hawaii, 138 S. Ct. 2392 (2018); United
`States v. Texas, 136 S.Ct. 2271 (2016); and Perez v.
`Mortgage Bankers Ass’n, 135 S.Ct. 1199, 1213 (2015).
`
`SUMMARY OF ARGUMENT
`
`Janet Napolitano, the former Secretary of Home-
`land Security who issued the DACA Memo at issue in
`these cases, brought suit against her successor in of-
`fice alleging, primarily, that her prior handiwork
`could not be undone without going through the Notice
`and Comment rulemaking procedures that she herself
`had not followed. Complaint ¶ 15, Joint Appendix Vol.
`2:561. These cases thus have a bizarre, through-the-
`looking-glass aspect to them. Cf. Lewis Carrol,
`Through the Looking Glass (1871). To understand the
`full scope of the incongruity, a review of the prior ac-
`
`
`1 Pursuant to this Court’s Rule 37.3(a), this amicus brief is
`filed with the consent of the parties. Pursuant to Rule 37.6,
`Amicus Curiae affirms that no counsel for any party au-
`thored this brief, and no person other than Amicus Curiae,
`its members, or its counsel made a monetary contribution
`to the preparation or submission of this brief.
`
`
`
`2
`
`
`
`tions, both of former Secretary Napolitano and her im-
`mediate successor, former Secretary Jeh Johnson
`(who issued the parallel DAPA Memo), is necessary.
`
`That assessment reveals that the prior DACA and
`DAPA memos were both illegal and even unconstitu-
`tional. They both pushed the idea of prosecutorial dis-
`cretion beyond the point where discretion becomes
`suspension of the law, in violation of the President’s
`duty to “take Care that the Laws be faithfully exe-
`cuted,” U.S. Const. art. II, § 3. And even were such a
`categorial refusal to enforce the law within the bounds
`of prosecutorial discretion (or, more to the point, not
`susceptible to judicially-manageable criteria), the ad-
`ditional benefits conveyed on DACA and DAPA recip-
`ients by the memos—including a “lawful presence” in
`the United States and eligibility for work authoriza-
`tion—cannot plausibly be subsumed under a prosecu-
`torial discretion umbrella.
`
`Given the patent infirmities of the DACA and
`DAPA programs, the notion that the current admin-
`istration could not exercise its own prosecutorial dis-
`cretion to actually enforce the laws on the books is,
`well, rather bizarre. The lower court decisions so
`holding simply must be reversed.
`
`
`
`ARGUMENT
`
`I. The DACA Program That President
`Trump’s Administration Seeks to Rescind
`Was Itself Legally and Even Constitution-
`ally Infirm.
`
`A. The Immigration and Nationality Act
`mandates removal of unauthorized al-
`iens.
`
`
`
`3
`
`
`
`Several provisions of the Immigration and Nation-
`ality Act mandate specific enforcement actions by im-
`migration officials. Section 1225(a)(3), for example,
`specifies that “All aliens (including alien crewmen)
`who are applicants for admission [defined as any alien
`who has not been admitted] or otherwise seeking ad-
`mission or readmission to or transit through the
`United States shall be inspected by immigration offic-
`ers.” 8 U.S.C. § 1225(a)(3) (emphasis added).2 Absent
`a credible claim for asylum, stowaways are not eligible
`for admission at all, and “shall be ordered removed
`upon
`inspection by an
`immigration officer.”
`§ 1225(a)(2) (emphasis added). And apart from a few
`exceptions not at issue here, once an immigration of-
`ficer “determines that an alien … is inadmissible un-
`der section 1182(a)(6)(C) or 1182(a)(7) of this title, the
`officer shall order the alien removed from the United
`States without
`further hearing or review….”
`§ 1225(b)(1)(A)(i) (emphasis added). In other cases, “if
`the examining immigration officer determines that an
`alien seeking admission is not clearly and beyond a
`doubt entitled to be admitted, the alien shall be de-
`tained for a [removal] proceeding under section 1229a
`….” § 1225(b)(2)(A) (emphasis added).
`
`Once an alien has been detained under that statu-
`tory mandate, “[a]n immigration judge shall conduct
`proceedings for deciding the inadmissibility or deport-
`ability of an alien. § 1229a(a)(1) (emphasis added). An
`alien who fails to appear “shall be ordered removed in
`absentia” if the Immigration Service establishes that
`the alien was provided written notice of the hearing
`
`
`2 All code section references are to Title 8 of the U.S. Code
`unless otherwise noted.
`
`
`
`4
`
`
`
`and that the alien is removable. § 1229a(b)(5)(A) (em-
`phasis added). Finally, applying the burdens of proof
`set out in the statute, “[a]t the conclusion of the pro-
`ceeding the immigration judge shall decide whether
`an alien is removable from the United States.”
`§ 1229a(c)(1)(A) (emphasis added); §§ 1229a(c)(2), (3).
`
`In other words, the statutory scheme uses the
`mandatory “shall” rather than a discretionary “may”
`throughout, indicating Congress’s intent to treat
`these duties as ministerial mandates rather than dis-
`cretionary enforcement options.
`
`To be sure, this Court has recognized that a “well
`established tradition of police discretion has long co-
`existed with apparently mandatory arrest statutes.”
`Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748,
`760 (2005) (citing 1 ABA Standards for Criminal Jus-
`tice 1–4.5, commentary, pp. 1–124 to 1–125 (2d
`ed.1980). But removal proceedings are civil proceed-
`ings, not criminal ones, and as at least one prominent
`legal treatise has noted: “In contrast to criminal pros-
`ecution, the government has no free rein to refuse to
`enforce civil actions.” R. Rotunda and J. Nowak, 1
`Treatise on Const. Law § 7.6 (March 2016).
`
`Moreover, Congress’s statutory scheme here pro-
`vides the “stronger indication” of a true mandate that
`this Court found lacking in Gonzales. 545 U.S. at 761-
`62. Beyond the repeated use of the mandatory lan-
`guage, Congress specified that removal proceedings
`“shall be the sole and exclusive procedure for determin-
`ing whether an alien may be admitted to the United
`States or, if the alien has been so admitted, removed
`from the United States.” § 1229a(a)(3) (emphasis
`added). The claim that a President has discretion not
`
`
`
`5
`
`
`
`to commence removal proceedings against unauthor-
`ized aliens and thereby afford to them a “lawful pres-
`ence” in the United States cannot be squared with
`Congress’s language that a determination of admissi-
`bility by an immigration judge in a removal proceed-
`ing is the “sole and exclusive” means for determining
`whether an alien may be admitted.
`
`The U.S. District Court for the Northern District
`of Texas in Crane v. Napolitano, 3:12-CV-03247-O,
`2013 WL 1744422 (N.D. Tex. Apr. 23, 2013), reached
`precisely that conclusion. Although that action by bor-
`der patrol agents was ultimately dismissed for lack of
`subject matter jurisdiction because the Merit Systems
`Protection Board was the exclusive venue for their
`claims,3 the District Court’s analysis of the relevant
`statutory language was thorough and persuasive:
`“Congress’s use of the word
`‘shall’ in Section
`1255(b)(2)(A) imposes a mandatory obligation on im-
`migration officers to initiate removal proceedings
`against aliens they encounter who are not ‘clearly and
`beyond a doubt entitled to be admitted.’” Id. at *17.
`
`The court found compelling this Court’s decisions
`in Fed. Express Corp. v. Holowecki, 552 U.S. 389
`(2008), and Lopez v. Davis, 531 U.S. 230 (2001).
`Holowecki held that the EEOC’s “duty to initiate in-
`formal dispute resolution processes upon receipt of a
`charge is mandatory in the ADEA context” because of
`statutory language in 29 U.S.C. § 626(d) providing
`that the EEOC “shall promptly seek to eliminate any
`
`
`3 Crane, No. 3:12-cv-03247-O, Order (N.D. Tex., July 31,
`2013), available at http://www.crs.gov/analysis/legalside-
`bar/Documents /Crane_DenialofMotionforReconsidera-
`tion.pdf.
`
`
`
`6
`
`
`
`alleged unlawful practice by informal methods of con-
`ciliation, conference, and persuasion.” 552 U.S. at 399
`(emphasis added). Similarly, Lopez noted that Con-
`gress’s “use of a mandatory ‘shall’ . . . impose[s] dis-
`cretionless obligations.” 531 U.S. at 241. The court
`also found this Court’s decision in, e.g., Heckler v.
`Chaney, 470 U.S. 821, 835 (1985), and the Board of
`Immigration Appeals decision in In re E-R-M & L-R-
`M, 25 I. & N. Dec. 520, 520 (BIA 2011), to be distin-
`guishable. The discretion recognized in the latter—
`an immigration case—was simply whether to refer an
`unauthorized alien to regular or expedited removal
`proceedings, the court noted, not “to refrain from ini-
`tiating removal proceedings at all.” Crane, 2013 WL
`1744422, at *10. And the court found the statutory
`language in the Food, Drug, and Cosmetic Act at issue
`in Chaney, which this Court held committed “complete
`discretion to the Secretary to decide how and when
`they should be exercised,” 470 U.S. at 835, to be in
`contrast with the Immigration and Nationalization
`Act, which “is not structured in such a way that DHS
`and ICE have complete discretion to decide when to
`initiate removal proceedings.” Crane, 2013 WL
`1744422, at *10.
`
`B. DACA and DAPA are both categorical,
`and therefore unconstitutional, suspen-
`sions of the law.
`
`Even if Congress’s use of the mandatory term
`“shall” is deemed not to foreclose prosecutorial discre-
`tion in individual cases, the DACA and DAPA pro-
`grams went much further than authorizing case by
`case discretion. Instead, they amounted to a categor-
`ical and therefore unconstitutional suspension of the
`law.
`
`
`
`7
`
`
`
`This Court’s decision in Chaney is instructive. Af-
`ter concluding “that an agency’s decision not to take
`enforcement action should be presumed immune from
`judicial review under § 701(a)(2)” of the Administra-
`tive Procedures Act, this Court “emphasize[d] that the
`decision is only presumptively unreviewable; the pre-
`sumption may be rebutted where the substantive stat-
`ute has provided guidelines for the agency to follow in
`exercising its enforcement powers.” Chaney, 470 U.S.
`at 832-33. This Court then cited, with apparent ap-
`proval, the D.C. Circuit’s en banc decision in Adams
`v. Richardson, 480 F.2d 1159 (1973) (en banc). The
`Court of Appeals in that case rejected the Govern-
`ment’s claim of discretion over how or even whether
`to enforce Title VI of the Civil Rights Act of 1964. “Ti-
`tle VI not only require[d] the agency to enforce the
`Act, but also set[] forth specific enforcement proce-
`dures,” id. at 1162, just as the Immigration and Nat-
`uralization Act does here. More significantly, the
`Court of Appeals recognized—in language cited by
`this Court—that prosecutorial discretion does not ap-
`ply when an agency “has consciously and expressly
`adopted a general policy which is in effect an abdica-
`tion of its statutory duty.” Id.; see also Chaney, 470
`U.S. at 833 n.4.
`
`Both DACA and DAPA fall on the “categorical sus-
`pension of the law” side of the Chaney line. In her
`June 15, 2012 memo establishing the DACA program,
`former Homeland Security Secretary Janet Napoli-
`tano set out specific, categorical criteria for DACA
`program eligibility. Memo from Janet Napolitano,
`Secretary of Homeland Security, to David V. Aguilar,
`Acting Commissioner, U.S. Customs and Border Pro-
`tection, et al., Exercising Prosecutorial Discretion with
`Respect to Individuals Who Came to the United States
`
`
`
`8
`
`
`
`as Children, p. 1 (June 15, 2012). Although the memo
`repeatedly asserts that eligibility decisions are to be
`made “on a case by case basis,” it is actually a directive
`to immigration officials to grant deferred action to an-
`yone meeting the criteria. “With respect to individu-
`als who meet the above criteria” and are not yet in re-
`moval proceedings, the memo orders that “ICE and
`CBP should immediately exercise their discretion, on
`an individual basis, in order to prevent low priority
`individuals from being placed into removal proceed-
`ings or removed from the United States.” Id. at 2 (em-
`phasis added). And “[w]ith respect to individuals who
`are in removal proceedings but not yet subject to a fi-
`nal order of removal, and who meet the above crite-
`ria,” “ICE should exercise prosecutorial discretion, on
`an individual basis, for individuals who meet the
`above criteria by deferring action for a period of two
`years, subject to renewal, in order to prevent low pri-
`ority individuals from being removed from the United
`States.” Id. (emphasis added). USCIS and ICE are
`directed to “establish a clear and efficient process” for
`implementing the directive, and that process “shall
`also be available to individuals subject to a final order
`of removal regardless of their age.” Id. (emphasis
`added).
`
`Homeland Security Secretary Jeh Johnson’s No-
`vember 2014 memo establishing the DAPA program
`did the same thing. Although sprinkled with the
`phrase, “case-by-case basis,” it also established eligi-
`bility criteria for the new program and directed immi-
`gration officials “to immediately begin identifying per-
`sons” who met the eligibility criteria, in order “to pre-
`vent the further expenditure of enforcement resources
`with regard to these individuals.” Jeh Charles John-
`
`
`
`9
`
`
`
`son, Memorandum for Leon Rodriguez, et al., Exercis-
`ing Prosecutorial Discretion with Respect to Individu-
`als Who Came to the United States as Children and
`with Respect to Certain Individuals Who Are the Par-
`ents of U.S. Citizens or Permanent Residents, p. 2
`(Nov. 20, 2014). The memo even announced that the
`process for terminating removal of eligible aliens
`“shall also be available to individuals” already “sub-
`ject to final orders of removal.” Id. (emphasis added).
`
`The notion that either memo allowed for a true in-
`dividualized determination rather than providing a
`categorical suspension of the law is simply not credi-
`ble. There is nothing in either memo to suggest that
`immigration officials could do anything other than
`grant deferred action to those meeting the defined el-
`igibility criteria. Indeed, the overpowering tone of the
`memos is one of woe to line immigration officers who
`did not act as the memo told them they “should,” a
`point that was admitted by Department of Homeland
`Security officials in testimony before the House of
`Representatives. See Transcript, Hearing on Presi-
`dent Obama’s Executive Overreach on Immigration,
`House of Representatives Judiciary Committee (Dec.
`2, 2014) (Represenative Goodblatt noting: “DHS has
`admitted to the Judiciary Committee that, if an alien
`applies and meets the DACA eligibility criteria, they
`will receive deferred action. In reality, immigration
`officials do not have discretion to deny DACA applica-
`tions if applicants fulfill the criteria.”).
`
`Nevertheless, by repeatedly regurgitating the
`phrase, “on a case by case basis,” Secretaries Napoli-
`tano and Johnson seemed to have recognized that
`prosecutorial discretion cannot be exercised categori-
`cally without crossing the line drawn in Chaney into
`
`
`
`10
`
`
`
`unconstitutional suspension of the law—without, that
`is, violating the President’s constitutional obligation
`to “take care that the laws be faithfully executed.”
`U.S. Const. art. II, § 3; Chaney, 470 U.S. at 833 n.4.
`But the memos’ directives to the immigration services
`not to enforce the immigration laws against anyone
`meeting the eligibility criteria set out in the memos,
`“in order to prevent low priority individuals from be-
`ing removed from the United States,” clearly falls on
`the unconstitutional side of the Chaney line. As this
`Court recognized nearly 180 years ago, “To contend
`that the obligation imposed on the President to see the
`laws faithfully executed, implies a power to forbid
`their execution, is a novel construction of the consti-
`tution, and entirely inadmissible.” Kendall, v. United
`States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838).
`
`The Office of Legal Counsel at the Department of
`Justice has likewise recognized the need for individu-
`alized determinations for exercises of prosecutorial
`discretion to be constitutional. “[T]he Executive
`Branch ordinarily cannot … consciously and expressly
`adopt[] a general policy that is so extreme as to
`amount to an abdication of its statutory responsibili-
`ties,” it noted in the memo purporting to validate the
`DAPA program. Karl R. Thompson, Office of Legal
`Counsel, The Department of Homeland Security’s Au-
`thority to Prioritize Removal of Certain Aliens Un-law-
`fully Present in the United States and to Defer Re-
`moval of Others, p. 7 (Nov. 19, 2014) (quoting Chaney,
`470 U.S. at 833 n.4, internal quotation marks omit-
`ted). “[A] general policy of non-enforcement that fore-
`closes the exercise of case-by-case discretion poses
`‘special risks’ that the agency has exceeded the
`bounds of its enforcement discretion.” Id. (quoting
`Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671,
`
`
`
`11
`
`
`
`677 (D.C. Cir. 1994)). Yet that is exactly what DACA
`and DAPA did. As the district court for the Eastern
`District of Pennsylvania correctly recognized, the ex-
`ecutive actions at issue in those programs, establish-
`ing threshold eligibility criteria for aliens unlawfully
`present in the United States to obtain “deferred ac-
`tion,” constituted “legislation” rather than prosecuto-
`rial discretion, “and effectively change[d] the United
`States’ immigration policy.” U.S. v. Juarez-Escobar,
`25 F. Supp. 3d 774, 786 (W.D. Pa. 2014).
`
`Neither were the executive actions implemented in
`the DACA and DAPA programs simply an exercise of
`the kind of prosecutorial discretion that had been ex-
`ercised by previous administrations. Much was made
`at the time of the Family Fairness Program imple-
`mented by President George H.W. Bush’s administra-
`tion in February 1990. But that program, which dealt
`with delayed voluntary departure rather than DACA
`and DAPA’s deferred action, was specifically author-
`ized by statute. Section 242(b) of the Immigration and
`National Act at the time provided, in pertinent part:
`
`In the discretion of the Attorney General and un-
`der such regulations as he may prescribe, de-
`portation proceedings, including issuance of a
`warrant of arrest, and a finding of deportability
`under this section need not be required in the
`case of any alien who admits to belonging to a
`class of aliens who are deportable under section
`1251 of this title if such alien voluntarily de-
`parts from the United States at his own ex-
`pense, or is removed at Government expense as
`hereinafter authorized, unless the Attorney
`General has reason to believe that such alien is
`deportable under paragraphs (4) to (7), (11),
`
`
`
`12
`
`
`
`(12), (14) to (17), (18), or (19) of section 1251(a)
`of this title.
`
`8 U.S.C. § 1252(b), cited in Perales v. Casillas, 903
`F.2d 1043, 1048 (5th Cir. 1990) (emphasis added).
`
`That specific statutory authority was largely su-
`perseded by the Temporary Protected Status program
`established by the Immigration Act of 1990, which is
`available to nationals of designated foreign states af-
`fected by armed conflicts, environmental disasters,
`and other extraordinary conditions, 8 U.S.C. § 1254a,
`and subsequently limited to 120 days by the 1996 Il-
`legal Immigration Reform and Immigrant Responsi-
`bility Act (“IIRIRI”), see 8 U.S.C. § 1229c. In contrast,
`as even the OLC opinion defending DAPA acknowl-
`edged, “deferred action,” which is the asserted basis
`for the DACA and DAPA executive actions, “developed
`without statutory authorization.” OLC Memo, at 13;
`see also Reno v. Am.-Arab Anti-Discrimination
`Comm., 525 U.S. 471, 484 (1999) (noting that deferred
`action “developed without express statutory authori-
`zation,” apparently in the exercise of discretionary re-
`sponse to international humanitarian crises that trig-
`ger the President’s separate foreign affairs authority
`of the sort now covered by the Temporary Protected
`Status Program).
`
`There are now specific statutes that authorize de-
`ferred action. See, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II),
`(IV) (providing that certain individuals a
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