Nos. 18-587, 18-588, and 18-589
`
`
`IN THE
`
`___________
`
`
`
` DEPARTMENT OF HOMELAND SECURITY, ET AL.,
`PETITIONERS,
`
`V.
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
`RESPONDENTS.
`
`
`
`
`On Writ of Certiorari to the
`United States Court of Appeals for the Ninth Circuit
`
`__________
`
`BRIEF FOR THE CATO INSTITUTE AND
`PROFESSOR JEREMY RABKIN
`AS AMICI CURIAE SUPPORTING DACA AS A
`MATTER OF POLICY BUT PETITIONERS AS A
`MATTER OF LAW
`
`__________
`
`Josh Blackman
`1303 San Jacinto St.
`Houston, TX 77079
`(713) 646-1829
`jblackman@stcl.edu
`
`
`August 26, 2019
`
`Ilya Shapiro
` Counsel of Record
`CATO INSTITUTE
`1000 Mass. Ave. N.W.
`Washington, D.C. 20001
`(202) 842-0200
`ishapiro@cato.org
`
`
`Additional Captions Listed on Inside Cover
`
`
`
`
`IN THE
`
`___________
`
`
`
` DEPARTMENT OF HOMELAND SECURITY, ET AL.,
`PETITIONERS,
`
`V.
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
`RESPONDENTS.
`
`
`
`
`On Writ of Certiorari to the
`United States Court of Appeals for the Ninth Circuit
`
`__________
`
`BRIEF FOR THE CATO INSTITUTE AND
`PROFESSOR JEREMY RABKIN
`AS AMICI CURIAE SUPPORTING DACA AS A
`MATTER OF POLICY BUT PETITIONERS AS A
`MATTER OF LAW
`
`__________
`
`Josh Blackman
`1303 San Jacinto St.
`Houston, TX 77079
`(713) 646-1829
`jblackman@stcl.edu
`
`
`August 26, 2019
`
`Ilya Shapiro
` Counsel of Record
`CATO INSTITUTE
`1000 Mass. Ave. N.W.
`Washington, D.C. 20001
`(202) 842-0200
`ishapiro@cato.org
`
`
`Additional Captions Listed on Inside Cover
`
`
`
`
`
`
`
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
`DONALD J. TRUMP, PRESlDENT OF THE UNITED STATES,
`ii
`ET AL., PETITIONERS
`ET AL., PETITIONERS
`
`U.
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`COLORED PEOPLE, ET AL.
`COLORED PEOPLE, ET AL.
`__________
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE
`ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE
`UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
`UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
`COLUMBIA CIRCUIT
`COLUMBIA CIRCUIT
`__________
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF
`KEVIN K. MCALEENAN, ACTING SECRETARY OF
`HOMELAND SECURITY, ET AL., PETITIONERS
`HOMELAND SECURITY, ET AL., PETITIONERS
`U.
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`__________
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE
`ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE
`UNITED STATES COURT OF APPEALS FOR THE SECOND
`UNITED STATES COURT OF APPEALS FOR THE SECOND
`CIRCUIT
`CIRCUIT
`__________
`
`
`
`
`
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`
`
`iii
`
`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 Fifth Circuit rul-
`ing 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 (per curiam). In September 2017, DHS
`determined that the original DACA policy was unlaw-
`ful and would likely be struck down by the courts on
`the same grounds as the related policies. DHS thus in-
`stituted an orderly wind-down of the DACA policy. The
`questions presented 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.
`
`
`
`
`
`
`
`
`
`
`
`
`iv
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ....................................... vi
`
`INTEREST OF AMICI CURIAE ................................. 1
`
`INTRODUCTION AND
`SUMMARY OF ARGUMENT ............................... 2
`
`ARGUMENT ................................................................ 4
`
`I. DACA, WHICH LACKS “EXPRESS
`STATUTORY AUTHORIZATION,”
`CANNOT BE SUPPORTED BY “IMPLICIT
`CONGRESSIONAL ACQUIESCENCE” .............. 4
`
`A. CONGRESS DID NOT—AND COULD
`NOT—IMPLICITLY AUTHORIZE DACA
`BY ACQUIESCING TO PAST EXERCISES
`OF DEFERRED ACTION ................................. 5
`
`B. DACA IS NOT CONSONANT WITH PAST
`EXECUTIVE PRACTICE ................................. 6
`
`II. IF FEDERAL LAW AUTHORIZES DACA,
`IMPORTANT PROVISIONS OF THE INA
`IMPERMISSIBLY DELEGATE LEGISLATIVE
`POWER TO THE EXECUTIVE ......................... 10
`
`A. COURTS DO NOT DEFER TO EXECUTIVE
`ACTIONS THAT IMPLICATE “MAJOR
`QUESTIONS” OF “DEEP ‘ECONOMIC
`AND POLITICAL SIGNIFICANCE’” ............. 11
`
`B. “THE HYDRAULIC PRESSURE OF OUR
`CONSTITUTIONAL SYSTEM . . . SHIFT[ED]
`THE RESPONSIBILITY” FOR REVIEWING
`LEGISLATIVE DELEGATIONS FROM
`THE NONDELEGATION DOCTRINE TO
`THE MAJOR QUESTIONS DOCTRINE ....... 13
`
`
`
`
`
`
`
`
` v
`
`
`
`C. THE FIFTH CIRCUIT USED THE MAJOR
`QUESTIONS DOCTRINE “IN SERVICE OF
`THE CONSTITUTIONAL RULE” THAT
`CONGRESS CANNOT DELEGATE ITS
`LEGISLATIVE POWER ................................. 15
`
`D. THE ATTORNEY GENERAL’S LETTER
`MADE A REASONABLE
`CONSTITUTIONAL OBJECTION
`TO DACA ......................................................... 17
`
`E. THE SOLICITOR GENERAL’S BRIEF
`REAFFIRMS THE ATTORNEY
`GENERAL’S REASONABLE
`CONSTITUTIONAL OBJECTION ................ 21
`
`F. TO ELIMINATE NONDELEGATION
`CONCERNS, COURTS SHOULD DEFER
`TO REVERSALS OF NOVEL EXECUTIVE
`ACTIONS THAT EXPANDED
`EXECUTIVE POWER .................................... 24
`
`CONCLUSION........................................................... 27
`
`
`
`
`
`
`
`
`
`
`
`
`vi
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Chevron U.S.A. Inc. v. Natural Res. Def.
`Council, Inc., 467 U.S. 837 (1984) ......................... 11
`
`Dames & Moore v. Regan, 453 U.S. 654 (1981) .......... 6
`
`FDA v. Brown & Williamson Tobacco Corp.,
`529 U.S. 120 (2000) ........................................ passim
`
`Free Enter. Fund v. PCAOB, 561 U.S. 477 (2010) ...... 8
`
`Gundy v. United States,
`139 S. Ct. 2116 (2019) .................................... passim
`
`King v. Burwell, 135 S. Ct. 2480 (2015) ............ passim
`
`Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ...................... 25
`
`McDonald v. Chicago, 561 U.S. 742 (2010) .............. 15
`
`McPherson v. Blacker, 146 U.S. 1 (1892) .................... 6
`
`Medellin v. Texas, 552 U.S. 491 (2008) ....................... 6
`
`NAACP v. Trump,
`298 F. Supp. 3d 209 (D.D.C. 2018) .............. 8, 17, 24
`
`NLRB v. Noel Canning, 573 U.S. 513 (2014) .............. 5
`
`Reno v. Am.-Arab Anti-Discrim. Comm.,
`525 U.S. 471 (1999) .............................................. 2, 4
`
`Texas v. United States,
`328 F. Supp. 3d 662 (S.D. Tex. 2018) .................... 19
`
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015) .......................... passim
`
`Trump v. Hawaii, 138 S. Ct. 2392 (2018) ........... 22, 27
`
`Util. Air Regulatory Group v. EPA,
`573 U.S. 302 (2014) ........................................ passim
`
`
`
`
`
`
`
`
`vii
`
`
`Vidal v. Nielsen,
`279 F. Supp. 3d 401 (E.D.N.Y. 2018)............... 24, 26
`
`Whitman v. American Trucking Ass’ns,
`531 U.S. 457 (2001) .................................... 12, 14, 17
`
`Youngstown Sheet & Tube Co. v. Sawyer,
`343 U.S. 579 (1952) .................................................. 5
`
`Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) ............... 10
`
`Statutes and Regulations
`
`8 C.F.R. 274a.12(c)(14) .......................................... 4, 18
`
`6 U.S.C. § 202(5) ...................................................... 4, 5
`
`8 U.S.C § 1103(a) ..................................................... 4, 5
`
`8 U.S.C. § 1229c(a)(2)(A) ............................................. 8
`
`8 U.S.C. § 1254(e) ........................................................ 8
`
`8 U.S.C. § 1324a(h)(3) .................................................. 4
`
`Dep’t of Justice, Immig. & Naturalization Service,
`Employment Authorization; Classes of Aliens
`Eligible, 52 Fed. Reg. 46,092 (Dec. 4, 1987) ..... 18-19
`
`Other Authorities
`
`Adam B. Cox & Cristina M. Rodríguez,
`The President and Immigration Law,
`119 Yale L.J. 458 (2009) ........................................ 26
`
`Adam B. Cox & Cristina M. Rodríguez,
`The President and Immigration Law Redux,
`125 Yale L.J. 104 (2015) ........................................ 26
`
`Brief for the Cato Institute et al. as Amici Curiae
`Supporting Respondents, United States v. Texas,
`136 S. Ct. 2271 (2016) (No. 15-674) ........... 15, 27, 28
`
`
`
`
`
`
`
`
`viii
`
`Brief for the Petitioners, United States v. Texas,
`136 S. Ct. 2271 (2016) (No. 15-674) ..................... 4, 5
`
`Brief of Senate Majority Leader Mitch McConnell
`and 42 Other Members of the U.S. Senate as
`Amici Curiae as Amici Curiae Supporting
`Respondents, United States v. Texas,
`136 S. Ct. 2271 (2016) (No. 15-674) .................. 19-20
`
`Glenn Kessler, Obama’s Claim that George H.W.
`Bush Gave Relief to ‘40 Percent’ of Undocumented
`Immigrants, Wash. Post (Nov. 24, 2014) ................ 8
`
`Ilya Shapiro, I’m an Immigrant and a Reform
`Advocate. Obama’s Executive Actions Are a
`Disaster for the Cause,
`Wash. Post, Feb. 24, 2015 ..................................... 3-4
`
`Josh Blackman, Defiance and Surrender,
`59 S. Tex. L. Rev. 157 (2018) ................................... 6
`
`Josh Blackman, Gridlock,
`130 Harv. L. Rev. 241 (2016) ................................. 11
`
`Josh Blackman, Immigration Inside the Law,
`55 Washburn L.J. 31 (2016)................................... 26
`
`Josh Blackman, Presidential Maladministration,
`2018 Ill. L. Rev. 397 (2018) ............................... 25-26
`
`Josh Blackman, The Constitutionality of DAPA
`Part I: Congressional Acquiescence to Deferred
`Action, 3 Geo. L.J. Online 96 (2015) .................... 7, 9
`
`Josh Blackman, The Constitutionality of DAPA
`Part II: Faithfully Executing The Law,
`19 Tex. Rev. L. & Pol. 215 (2015) .......................... 15
`
`Josh Blackman, Understanding Sessions’s
`Justification to Rescind DACA, Lawfare
`(Jan. 16, 2018) ........................................................ 17
`
`
`
`
`
`
`
`
`ix
`
`Karl R. Thompson, OLC Memorandum Opinion,
`DHS’s Authority to Prioritize Removal of Certain
`Aliens Unlawfully Present in the United States
`and to Defer Removal of Others
`(Nov. 19, 2014).................................................. 5, 6, 9
`
`Letter from Attorney General Jeff Sessions to
`Acting Secretary Duke (Sept. 5, 2017) ............ 18, 20
`
`Peter Margulies, The Boundaries of Executive
`Discretion: Deferred Action, Unlawful Presence,
`and Immigration Law,
`64 Am. U. L. Rev. 1183 (2015) ................................. 8
`
`Presidential Authority to Decline to Execute
`Unconstitutional Statutes,
`18 Op. OLC 199 (Nov. 2, 1994) .............................. 10
`
`Stephen Breyer, Judicial Review of Questions of
`Law and Policy,
`38 Admin. L.Rev. 370 (1986) ............................ 11-12
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1
`
`
`INTEREST OF AMICI CURIAE1
`
` The Cato Institute is a nonpartisan think tank ded-
`icated to individual liberty, free markets, and limited
`government. Cato’s Robert A. Levy Center for Consti-
`tutional Studies promotes the principles of constitu-
`tionalism that are the foundation of liberty. To those
`ends, Cato conducts conferences and publishes books,
`studies, and the annual Cato Supreme Court Review.
`
`Jeremy A. Rabkin is a law professor at George Ma-
`son University’s Antonin Scalia Law School. Prof. Rab-
`kin’s fields of expertise include administrative law,
`constitutional history, and statutory interpretation.
`
`The interest of amici here lies in preserving the
`separation of powers that maintains the rule of law at
`the heart of the Constitution’s protections for individ-
`ual liberty. Amici generally support DACA-type poli-
`cies that would normalize the immigration status of
`individuals who were brought to this country as chil-
`dren and have no criminal records. But the president
`cannot unilaterally make fundamental changes to im-
`migration law—in conflict with the laws passed by
`Congress and in ways that go beyond constitutionally-
`authorized executive power. Nor does the president ac-
`quire more powers when Congress refuses to act, no
`matter how unjustified the congressional inaction is.
`The separation of powers prevents the president from
`expanding his own authority. Those same dynamics
`ensure that a subsequent president can reverse his
`predecessor’s unlawful executive actions.
`
`
`1 Rule 37 statement: All parties issued blanket consents to the
`filing of amicus briefs. Nobody but amici and their counsel au-
`thored any of this brief or funded its preparation and submission.
`
`
`
`
`
`
`
`
`
`
` 2
`
`
`INTRODUCTION AND
`SUMMARY OF ARGUMENT
`
`Through the Deferred Action for Childhood Arri-
`vals program (DACA), the previous administration
`took the position that the Immigration and Nationality
`Act (INA) authorized the secretary of homeland secu-
`rity to confer lawful presence on roughly 1.5 million
`aliens. The current administration reversed course.
`The attorney general concluded that this reading of
`federal law had “constitutional defects.” He reached
`this decision in light of the Fifth Circuit’s injunction of
`the similar Deferred Action for Parents of Americans
`and Lawful Permanent Residents program (DAPA),
`which this Court affirmed by an equally divided vote.
`
`Several lower courts blocked the president from
`winding down DACA, however, holding that the exec-
`utive branch failed to justify the rescission. These rul-
`ings are wrong because DACA goes beyond executive
`power under the INA. But even if the Court declines to
`reach that holding, the attorney general offered rea-
`sonable constitutional objections such that if DACA
`somehow complies with the INA, then the INA itself
`violates the nondelegation doctrine as applied here.
`
`First, DACA, which lacks “express statutory au-
`thorization,” Reno v. Am.-Arab Anti-Discrim. Comm.,
`525 U.S. 471, 484 (1999), cannot be supported by any
`“implicit” congressional acquiescence. Two general
`provisions within the INA cannot bear the weight of
`this foundational transformation of immigration pol-
`icy. Moreover, it should not matter if Congress has
`stood by idly when previous presidents exercised ma-
`terially different deferred-action policies. The presi-
`
`
`
`
`
`
`
`
`
`
` 3
`
`
`dent cannot acquire new powers simply because Con-
`gress acquiesced to similar accretions in the past. In
`any event, DACA is not consonant with past practice.
`
`These arguments are sufficient to confirm the at-
`torney general’s conclusion that DACA is unlawful.
`But even if the Court disagrees—or declines to reach
`that issue—the executive branch has still provided ad-
`equate grounds to justify the rescission of DACA.
`
`That is, second, the attorney general reasonably de-
`termined that DACA is inconsistent with the presi-
`dent’s duty of faithful execution. Admittedly, the attor-
`ney general’s letter justifying the rescission is not a
`model of clarity. But it need not be. This executive-
`branch communication provides, at a minimum, a rea-
`sonable constitutional objection to justify DACA re-
`scission. Specifically, it invokes the “major questions”
`doctrine, which is used “in service of the constitutional
`rule” that Congress cannot delegate legislative power
`to the executive branch. Gundy v. United States, 139
`S. Ct. 2116, 2142 (2019) (Gorsuch, J., dissenting). In
`other words, if federal law in fact supported DACA,
`then important provisions of the INA would run afoul
`of the nondelegation doctrine. The attorney general, as
`well as the Fifth Circuit, rejected this reading of the
`INA. Here, the court should accept the executive’s de-
`termination of how to avoid a nondelegation problem:
`by winding down a discretionary policy.
`
`Amici support comprehensive immigration reform,
`of which a DACA-type policy is only one part. But the
`president can’t make the requisite legal changes by
`himself. Such unlawful executive actions both set back
`prospects for long-term reform and, more importantly
`here, weaken the rule of law. See, e.g., Ilya Shapiro,
`I’m an Immigrant and a Reform Advocate. Obama’s
`
`
`
`
`
`
`
`
`
`
` 4
`
`
`Executive Actions Are a Disaster for the Cause, Wash.
`Post, Feb. 24, 2015, https://wapo.st/30rnq5m. Revers-
`ing the courts below would restore the immigration de-
`bate to the political process—exactly where it belongs.
`
`ARGUMENT
`
`I. DACA, WHICH LACKS “EXPRESS
`STATUTORY AUTHORIZATION,” CANNOT
`BE SUPPORTED BY “IMPLICIT”
`CONGRESSIONAL ACQUIESCENCE TO
`PREVIOUS USES OF DEFERRED ACTION
`
`This Court has recognized that deferred action is a
`“regular practice” in the enforcement of immigration
`law. Reno, 525 U.S. at 484 (1999). However, it devel-
`oped “without express statutory authorization.” Id. (ci-
`tations omitted). In 2016, the government argued that
`three statutes vested the secretary of homeland secu-
`rity with the “broad statutory authority” necessary for
`DAPA—and by extension, DACA. Brief for the Peti-
`tioners at 42, United States v. Texas, 136 S. Ct. 2271
`(2016) (No. 15-674) [“Brief for DAPA Petitioners”].
`
`First, the government cited 6 U.S.C. § 202(5), which
`authorizes the secretary of homeland security to
`“[e]stablish[] national immigration enforcement poli-
`cies and priorities.” Second, the government invoked 8
`U.S.C § 1103(a), which charges the secretary “with the
`administration and enforcement of this chapter and all
`other laws relating to the immigration and naturaliza-
`tion of aliens.” Third, the government relied on the in-
`teraction between 8 U.S.C. § 1324a(h)(3) and 8 C.F.R.
`274a.12(c)(14). The former statute excludes from the
`definition of “unauthorized alien” an alien who is “au-
`thorized to be so employed by this chapter or by the
`Attorney General.” The latter regulation states that an
`
`
`
`
`
`
`
`
`
`
` 5
`
`
`alien who has been granted deferred action “must ap-
`ply for work authorization” if she “establishes an eco-
`nomic necessity for employment.” The solicitor general
`conceded that “Section 1324a(h)(3) did not create the
`Secretary’s authority to authorize work; that authority
`already existed in Section 1103(a), the vesting clause
`that gives the Secretary sweeping authority to admin-
`ister the INA and to exercise discretion in numerous
`respects.” Brief for DAPA Petitioners, at 63.
`
`In short, the case for DACA’s statutory legality
`hangs on only two provisions of the U.S. Code: 6 U.S.C.
`§ 202(5) and 8 U.S.C § 1103(a). Can the authority for
`DACA be found within the four corners of these stat-
`utes? No. Instead, the executive branch defended
`DACA on a broader understanding of delegation.
`
`A. CONGRESS DID NOT—AND COULD
`NOT—IMPLICITLY AUTHORIZE DACA
`BY ACQUIESCING TO PAST EXERCISES
`OF DEFERRED ACTION
`
` In 2014, the Office of Legal Counsel (OLC) opined
`that DAPA and DACA were lawful. Karl R. Thompson,
`OLC Memorandum Opinion, DHS’s Authority to Prior-
`itize Removal of Certain Aliens Unlawfully Present in
`the United States and to Defer Removal of Others at 29
`(Nov. 19, 2014) [hereinafter OLC Opinion]. OLC con-
`tended that these policies were legal, in part, because
`Congress “implicitly approved” past “permissible uses
`of deferred action.” Id. at 24.
`
`The Court has, at times, endorsed this sort of “ad-
`verse possession” approach to the separation of pow-
`ers. NLRB v. Noel Canning, 573 U.S. 513, 526 (2014)
`(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
`U.S. 579, 610 (1952) (Frankfurter, J., concurring); id.
`
`
`
`
`
`
`
`
`
`
` 6
`
`
`at 613 (Scalia, J., concurring). That is, the president
`can accumulate new constitutional powers “by engag-
`ing in a consistent and unchallenged practice over a
`long period of time.” Id. at 613–14. But see Medellin v.
`Texas, 552 U.S. 491, 532 (2008) (quoting Dames &
`Moore v. Regan, 453 U.S. 654, 686 (1981)) (“Past prac-
`tice does not, by itself, create power.”); Josh Blackman,
`Defiance and Surrender, 59 S. Tex. L. Rev. 157, 164
`(2018) (noting that “courts favor purported defiance
`over voluntary surrender”) (citing McPherson v.
`Blacker, 146 U.S. 1, 35–36 (1892)).
`
`But the Court has never sanctioned the extension
`of a Frankfurterian gloss to the statutory context. The
`president cannot accrete new legislation-based powers
`because Congress has acquiesced to similar accretions
`in the past. The legality of DACA must stand or fall by
`virtue of the authority delegated by 6 U.S.C. § 202(5)
`and 8 U.S.C § 1103(a), not based on whether Congress
`has acquiesced to past invocations of those authorities.
`
`B. DACA IS NOT CONSONANT WITH PAST
`EXECUTIVE PRACTICE
`
`Even accepting OLC’s framework, DACA is not
`“consonant with” past executive policy. See OLC Opin-
`ion at 24. OLC identified only “five occasions since the
`late 1990s” where the government “made discretionary
`relief available to certain classes of aliens through the
`use of deferred action”: deferred action for (1) “[b]at-
`tered [a]liens [u]nder the Violence Against Women
`Act”; (2) “T and U Visa [a]pplicants”; (3) “[f]oreign
`[s]tudents [a]ffected by Hurricane Katrina”; (4)
`“[w]idows and [w]idowers of U.S. [c]itizens”; and, as
`relevant here, (5) the 2012 “Deferred Action for Child-
`hood Arrivals” (DACA) policy. Id. at 15–20.
`
`
`
`
`
`
`
`
`
`
` 7
`
`
`The scope of Congress’s acquiescence for the first
`four policies was far more constrained than OLC sug-
`gested. Each instance of deferred action was sanc-
`tioned by Congress, and one of two qualifications ex-
`isted: (1) the alien already had an existing lawful pres-
`ence in the U.S., or (2) the alien had the immediate
`prospect of lawful residence or presence in the U.S. In
`either case, “deferred action acted as a temporary
`bridge from one status to another, where benefits were
`construed as arising immediately post-deferred ac-
`tion.” Josh Blackman, The Constitutionality of DAPA
`Part I: Congressional Acquiescence to Deferred Action,
`3 Geo. L.J. Online 96, 112 (2015) (emphasis in origi-
`nal). See also Texas v. United States, 809 F.3d 134, 184
`(5th Cir. 2015) (“[M]any of the previous programs were
`bridges from one legal status to another, whereas
`DAPA awards lawful presence to persons who have
`never had a legal status and may never receive one.”)
`(emphasis added).
`
`The solicitor general makes this same point now:
`these past practices “used deferred action to provide
`certain aliens temporary relief while the aliens sought
`or awaited permanent status afforded by Congress.”
`Brief for the Petitioners at 47, Dep’t of Homeland Se-
`curity v. Regents of the Univ. of California (2019) (Nos.
`18-587, 18-588, and 18-589) [SG Brief]. Unlike previ-
`ous recipients of deferred action, DACA beneficiaries
`have no prospect of a formal status adjustment unless
`they become eligible for some other statutory relief.
`
`Nor does President George H.W. Bush’s 1990
`“Family Fairness” policy, which OLC also cited, sup-
`port DACA’s legality. First, the Family Fairness policy
`served as a bridge to adjustment of status because it
`was “interstitial to a statutory legalization scheme.”
`
`
`
`
`
`
`
`
`
`
` 8
`
`
`Texas v. United States, 809 F.3d at 185; see also Peter
`Margulies, The Boundaries of Executive Discretion:
`Deferred Action, Unlawful Presence, and Immigration
`Law, 64 Am. U. L. Rev. 1183, 1217 (2015) (“Family
`Fairness was ancillary to Congress’s grant of legal sta-
`tus to millions of undocumented persons in IRCA.”).
`Second, the actual size of the program is significantly
`smaller than DACA. See SG Brief at 49; see also Glenn
`Kessler, Obama’s Claim that George H.W. Bush Gave
`Relief to ‘40 Percent’ of Undocumented Immigrants,
`Wash. Post (Nov. 24, 2014), https://perma.cc/J92E-
`C6M9. Third, the Family Fairness policy was premised
`on a different statutory authority, known as extended
`voluntary departure, 8 U.S.C. § 1254(e), which was se-
`verely curtailed in 1996. 8 U.S.C. § 1229c(a)(2)(A). The
`solicitor general now seems to endorse this argument.
`See SG Brief at 49 n. 10.2 As a result, all exercises of
`deferred action prior to 1996 are of limited relevance.
`
`Finally, OLC admitted that DACA stands on a
`more tenuous footing than did DAPA. A cryptic foot-
`note explained that OLC “orally advised” that DACA
`was still “permissible,” even though it “was predicated
`
`
`2 One of the courts below suggested that DACA rescission was
`“arbitrary and capricious” because the attorney general “fail[ed]
`to even consider OLC’s thorough analysis.” NAACP v. Trump, 298
`F. Supp. 3d 209, 240 n.23 (D.D.C. 2018). But one president cannot
`“choose to bind his successors by diminishing their powers.” Free
`Enter. Fund v. PCAOB, 561 U.S. 477, 497 (2010). Nor can one
`administration’s OLC bind a subsequent OLC. The attorney gen-
`eral’s decision to reverse course should be seen as an implicit re-
`pudiation of the 2014 OLC opinion. Moreover, declining to explain
`internal agency deliberations was in no sense “arbitrary and ca-
`pricious.” In any case, the solicitor general maintains that the
`OLC memo on DAPA “does not undermine the Secretary’s conclu-
`sion that DACA is unlawful.” SG Brief at 47.
`
`
`
`
`
`
`
`
`
`
` 9
`
`
`on humanitarian concerns that appeared less particu-
`larized and acute than those underlying certain prior
`class-wide deferred action programs.” OLC Opinion at
`18 n.8. In other words, DACA was less “consonant”
`with past executive practice than was DAPA. Even if
`this legal framework were correct, OLC once again
`erred with respect to the facts. “[T]he concerns animat-
`ing DACA were” not “consistent with the types of con-
`cerns that have customarily guided the exercise of im-
`migration enforcement discretion.” See id. Generally,
`the “humanitarian concern” behind past deferred ac-
`tion policies concerned family reunification. DAPA, at
`least, had this attribute: beneficiaries were required to
`have a close kinship with a citizen or lawful perma-
`nent resident child. In contrast, DACA beneficiaries
`need not have any familial relationship with any citi-
`zen or lawful resident. See Blackman, The Constitu-
`tionality of DAPA Part I, supra at 116–19. Amici agree
`with OLC that the legal basis for DAPA was stronger
`than the legal basis for DACA. Neither policy, how-
`ever, can be squared with federal immigration law.
`
`In sum, DACA lacks “express statutory authoriza-
`tion,” and is not supported by “implicit” congressional
`acquiescence. This conclusion provides adequate
`grounds to reverse the judgments below. The Admin-
`istrative Procedure Act (APA) cannot be read to force
`the executive branch to continue implementing a pol-
`icy that is contrary to law, regardless of how it chooses
`to rescind the policy. SG Brief at 51 (“[I]f DACA is un-
`lawful, even an inadequate explanation could not pro-
`vide a basis to overturn the agency’s decision to rescind
`the unlawful policy.”). But even if the Court disagrees
`on that point, or declines to resolve that question, the
`executive branch has still provided adequate grounds
`to justify the rescission of DACA.
`
`
`
`
`
`
`
`
`10
`
`II. IF FEDERAL LAW AUTHORIZES DACA,
`IMPORTANT PROVISIONS OF THE INA
`IMPERMISSIBLY DELEGATE
`LEGISLATIVE POWER TO THE EXECUTIVE
`
`The executive doesn’t need the judiciary’s permis-
`sion to stop enforcing a law it sees as unconstitutional.
`Presidential Authority to Decline to Execute Unconsti-
`tutional Statutes, 18 Op. Off. Legal Counsel 199 (Nov.
`2, 1994). For example, in 2002, President George W.
`Bush construed an obviously “mandatory” statute as
`“advisory,” so as not to “impermissibly interfere with
`[his] constitutional authority” concerning diplomatic
`recognition. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2082
`(2015). This decision was compelled by his duty to take
`care that the laws be faithfully executed. Const., art.
`II, § 3. Ultimately, the Court endorsed this exercise of
`departmentalism. See Zivotofsky, 135 S. Ct. at 2096.
`
`Likewise, the executive branch does not need the
`judiciary’s permission to cease enforcing a regulation
`it determines to be unconstitutional. Indeed, the APA
`would be unconstitutional, as applied, whenever its
`regulatory manacles required the executive to con-
`tinue enforcing an unconstitutional policy.
`
`Here, the attorney general determined that DACA
`had “constitutional defects,” in light of the Fifth Cir-
`cuit’s decision in Texas v. U.S, and the major questions
`doctrine. The Court should defer to this reasonable in-
`terpretation of the president’s duty to faithfully exe-
`cute the law because it avoids nondelegation problems.
`In other words, courts should allow reversals of novel
`execution actions that expand presidential power.
`
`
`
`
`
`
`
`
`
`
`11
`
`A. COURTS DO NOT DEFER TO
`EXECUTIVE ACTIONS THAT IMPLICATE
`“MAJOR QUESTIONS” OF “DEEP
`‘ECONOMIC AND POLITICAL
`SIGNIFICANCE’”
`
`Under the familiar rule established in Chevron
`U.S.A. Inc. v. Natural Res. Def. Council, Inc., courts
`will defer to an agency’s interpretation of an ambigu-
`ous statute so long as the interpretation is reasonable.
`467 U.S. 837, 845 (1984). In four cases from the past
`quarter-century, however, the Court carved out an im-
`portant exception to Chevron: when a regulation im-
`plicates a “major question,” the agency is owed no def-
`erence. See Josh Blackman, Gridlock, 130 Harv. L.Rev.
`241, 260-265 (discussing doctrinal development).
`
`First, FDA v. Brown & Williamson Tobacco Corp.,
`held that the FDA could not expand its jurisdiction to
`regulate tobacco as a “drug.” 529 U.S. 120, 131–33
`(2000). This case introduced the concept of the “major
`questions” doctrine. The phrase came from a 1986 ar-
`ticle authored by then-Judge Stephen Breyer: “‘Con-
`gress is more likely to have focused upon, and an-
`swered, major questions,’” he wrote, “‘while leaving in-
`terstitial matters to answer themselves in the course
`of the statute’s daily administration.’” Id. at 159 (em-
`phasis added) (quoting Stephen Breyer, Judicial Re-
`view of Questions of Law and Policy, 38 Admin. L.Rev.
`363, 370 (1986)). Regulations that resolve such “major
`questions” in “extraordinary cases,” give courts “rea-
`son to hesitate before concluding that Congress has in-
`tended such an implicit delegation.” Id. As a result, the
`Court was “obliged to defer not to the agency’s expan-
`sive construction of the statute, but to Congress’ con-
`sistent judgment to deny the FDA” the authority to
`
`
`
`
`
`
`
`
`12
`
`regulate tobacco as a drug. Id. at 160. The Court was
`“confident that Congress could not have intended to
`delegate a decision of such economic and political sig-
`nificance to an agency in so cryptic a fashion.” Id.
`
`Second, Whitman v. American Trucking Ass’ns, 531
`U.S. 457 (2001) elaborated on the Brown & Williamson
`framework. The Court recognized that Congress “does
`not alter the fundamental details of a regulatory
`scheme in vague terms or ancillary provisions.” Id. at
`468. Justice Scalia explained in a memorable line that
`Congress “does not, one might say, hide elephants in
`mouseholes.” Id. (citations omitted).
`
`Third, in Util. Air Reg. Group v. EPA (UARG), the
`Court added a skeptical gloss to Brown & Williamson:
`“When an agency claims to discover in a long-extant
`statute an unheralded power to regulate ‘a significant
`portion of the American economy,’ we typically greet
`its announcement with a measure of skepticism.” 573
`U.S. 302, 324 (2014) (quoting Brown & Williamson,
`529 U.S. at 159). Congress will “speak clearly if it
`wishes to assign to an agency decisions of vast ‘eco-
`nomic and political significance.’” Id. ((quoting Brown
`& Williamson, 529 U.S. at 159).
`
`Fourth, the Court revisited the major questions
`doctrine in King v. Burwell. 135 S. Ct. 2480 (2015).
`This case considered whether the Affordable Care Act
`(ACA) permitted the payment of subsidies on ex-
`changes established by the federal government. Id. at
`2488. The Court declined to defer to the government’s
`reading of the ACA: “In extraordinary cases . . . there
`may be reason to hesitate before concluding that Con-
`gress has intended such an implicit delegation.” Id. at
`2488–89 (quoting Brown & Williamson, 529 U.S. at
`
`
`
`
`
`
`
`
`13
`
`159). Instead, it recognized that the payment of bil-
`lions of dollars of credits on the federal exchanges was
`a major question of “deep ‘economic and political sig-
`nificance’ that is central to this statutory scheme.” Id.
`at 2489 (quoting UARG, 573 U.S. at 324)) (emphasis
`added, to signal that the modifier “deep” was grafted
`onto the Brown & Williamson test). If Congress had
`intended for the IRS to have this authority to grant tax
`credits, “it surely would have done so expressly.” Id.
`
`A recent opinion from this Court sheds further light
`on the major questions doctrine and its constitutional
`foundation, the nondelegation doctrine.
`
`B. “THE HYDRAULIC PRESSURE OF OUR
`CONSTITUTIONAL SYSTEM . . .
`SHIFT[ED] THE RESPONSIBILITY” FOR
`REVIEWING LEGISLATIVE
`DELEGATIONS FROM THE
`NONDELEGATION DOCTRINE TO THE
`MAJOR QUESTIONS DOCTRINE
`
`Gundy v. United States considered the constitution-
`ality of a provision of the Sex Offender Registration
`and Notification Act (SORNA). 139 S. Ct. 2116 (2019).
`SORNA § 20913(d) gave the attorney general “the au-
`thority to specify the applicability of the requirements
`of this subchapter to sex offenders convicted before the
`enactment of this chapter . . . and to prescribe rules for
`the registration o
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