throbber
Nos. 18-587, 18-588, 18-589
`
`In the Supreme Court of the United States
`__________________
`DEPARTMENT OF HOMELAND SECURITY, et al., Petitioners,
`v.
`REGENTS OF THE UNIVERSITY 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.
`__________________
`On Writs of Certiorari to the United States Courts of
`Appeals for the Ninth, District of Columbia, and
`Second Circuits
`__________________
`BRIEF AMICUS CURIAE OF CITIZENS UNITED,
`CITIZENS UNITED FOUNDATION, AND
`THE PRESIDENTIAL COALITION, LLC
`IN SUPPORT OF PETITIONERS
`__________________
`ROBERT J. OLSON*
`JEREMIAH L. MORGAN
`HERBERT W. TITUS
`WILLIAM J. OLSON
`WILLIAM J. OLSON, P.C.
`370 Maple Ave. W., Ste. 4
`Vienna, VA 22180
`(703) 356-5070
`wjo@mindspring.com
`*Counsel of Record
`Attorneys for Amici Curiae
`
`August 26, 2019
`
`

`

`ii
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . iv
`
`INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1
`
`STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`
`STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 6
`
`SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 7
`
`ARGUMENT
`
`I. DHS’ DECISION TO END DACA AND ENFORCE
`IMMIGRATION LAW IS NOT JUDICIALLY
`REVIEWABLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
`
`A. Revising Reviewability Precedents:
`From “No Opinion” to “May Be” to “Is” . . 10
`
`B. The Decision to End DACA Is Not a
`“Nonenforcement Decision” . . . . . . . . . . . 13
`
`II. DHS’ DECISION TO END DACA WAS LAWFUL
`UNDER SEC V. CHENERY . . . . . . . . . . . . . . . . . 16
`
`III. DACA HAS BEEN UNLAWFUL SINCE ITS
`INCEPTION, BUT EVEN IF FOUND LAWFUL, WAS
`LAWFULLY RESCINDED . . . . . . . . . . . . . . . . . . . 18
`
`

`

`iii
`A. The Ninth Circuit Clearly Erred by
`Failing to Consider the Constitutionality
`of DACA. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
`
`B. DACA Is an Unconstitutional Exercise of
`Legislative Power . . . . . . . . . . . . . . . . . . . 20
`
`C. DACA Violates Separation of Powers
`Principles. . . . . . . . . . . . . . . . . . . . . . . . . . 22
`
`D. DACA Violates the Take Care Clause . . . 24
`
`E. Even if DACA Was Lawful, It Can Be
`Lawfully Rescinded. . . . . . . . . . . . . . . . . . 26
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
`
`

`

`iv
`TABLE OF AUTHORITIES
`
`Page
`
`HOLY BIBLE
`Exodus 18:16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
`
`U.S. CONSTITUTION
`Art. I, Sect. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26
`Art. I, Sect. 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
`Art. II, Sect. 1, Cl. 8 . . . . . . . . . . . . . . . . . . . . . . . . 24
`Art. II, Sect. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
`
`STATUTES
`5 U.S.C. § 701, et seq. . . . . . . . . . . . . . . . . . . . . . 6, 16
`Immigration and Nationality Act . . . . . . . . 6, passim
`
`CASES
`Arizona v. United States, 567 U.S. 387
`(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 21
`City of Arlington v. FCC, 569 U.S. 290
`(2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
`Clinton v. New York, 524 U.S. 417 (1998) . . . . . . 25
`Cooper v. Aaron, 358 U.S. 1 (1958). . . . . . . . . . . . 27
`Dept. of Transportation v. Ass’n. of American
`R.R., 135 S. Ct. 1225 (2015). . . . . . . . . . . . 23, 26
`District of Columbia v. Heller, 554 U.S. 570
`(2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
`Franklin v. Massachusetts, 505 U.S. 768 (1992) . . 9
`Harper v. Va. Dep’t of Taxation, 509 U.S. 86
`(1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
`Heckler v. Chaney, 470 U.S. 821 (1985) . . 10, 11, 13
`IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017). . . . 10
`Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . 7, 28
`
`

`

`v
`Montana Air Chapter No. 29 v. Federal Labor
`Relations Authority, 898 F.2d 753
`(9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . 11, 12
`SEC v. Chenery Corp., 318 U.S. 80 (1943) 16, 17, 18
`Texas v. United States, 86 F. Supp. 3d 591
`(S.D. Tex. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 6
`Texas v. United States, 809 F.3d 134 (5th Cir.
`2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
`United States v. Texas, 136 S.Ct. 2271 (2016) . . . . 6
`Youngstown Sheet & Tube Co. v. Sawyer, 343
`U.S. 579 (1952). . . . . . . . . . . . . . . . . . . . . . 14, 22
`
`MISCELLANEOUS
`50 Core American Documents (C. Burkett, ed.:
`Ashbrook Press: 2016) . . . . . . . . . . . . . . . . . . . 29
`B. Adams, “Late to the party: CNN and
`MSNBC anchors discover there’s a crisis
`at the border,” Washington Examiner
`(June 26, 2019). . . . . . . . . . . . . . . . . . . . . . . . . . 4
`W. Blackstone, Commentaries on the Laws
`of England (Univ. Chi. Facsimile ed.:
`1765). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
`G. Carey & J. McClellan, The Federalist
`(Liberty Fund: 2001). . . . . . . . . . . . . . . . . 14, 29
`E. Chemerinsky, In Defense of Judicial
`Supremacy, 58 WM. & MARY L. REV.
`1459 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
`Customs and Border Protection, Southwest
`Border Migration FY 2019 . . . . . . . . . . . . . . . . 5
`S.A. Camarota and K. Zeigler, “63% of
`Non-Citizen Households Access Welfare
`Programs,” Center for Immigration Studies
`(Nov. 20, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 3
`
`

`

`vi
`R. Delahunty & J. Yoo, “Dream On: The
`Obama Administration’s Nonenforcement
`of Immigration Laws, the DREAM Act,
`and the Take Care Clause,” 91 TEX. L.
`REV. 781 (2013) . . . . . . . . . . . . . . . . . . . . . . . . 26
`P. Kurland & R. Lerner, The Founders’
`Constitution (Univ. of Chicago Press:
`1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
`Letter from Thomas Jefferson to William
`Charles Jarvis (Sept. 28, 1820) . . . . . . . . . 29, 30
`K. Pavlich, “His Own Words: Obama Said He
`Doesn't Have Authority For Executive
`Amnesty 22 Times,” TownHall.com
`(Nov. 19, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . 22
`K.R. Thompson, “The Department of Homeland
`Security’s Authority to Prioritize Removal of
`Certain Aliens Unlawfully Present in the
`United States and to Defer Removal of
`Others,” U.S. Department of Justice, Office
`of Legal Counsel (Nov. 19, 2014). . . . . . . . . . . 21
`U.S. Citizenship and Immigration Services,
`Approximate Active DACA Recipients:
`Country of Birth (July 31, 2018) . . . . . . . . . . . 21
`
`

`

`INTEREST OF THE AMICI CURIAE1
`
`Citizens United is a nonprofit social welfare
`organization exempt from federal income tax under
`Internal Revenue Code (“IRC”) section 501(c)(4).
`Citizens United Foundation is a nonprofit educational
`and legal organization exempt from federal income tax
`under IRC section 501(c)(3). These organizations were
`established, inter alia, for purposes related to
`participation in the public policy process, including
`conducting research, and informing and educating the
`public on the proper construction of state and federal
`constitutions, as well as statutes related to the rights
`of citizens, and questions related to human and civil
`rights secured by law.
`
`The Presidential Coalition, LLC is an IRC section
`527 political organization that was founded to educate
`the American public on the value of having principled
`conservative Republican leadership at all levels of
`government, and
`to support
`the election of
`conservative candidates to state and local government
`and the appointment of conservatives to leadership
`positions at the federal and state level in order to
`advance conservative public policy initiatives.
`
`These amici, along with several others, filed three
`amicus briefs in two of these consolidated cases last
`year:
`
`1 It is hereby certified that counsel for the parties have consented
`to the filing of this brief; that no counsel for a party authored this
`brief in whole or in part; and that no person other than these
`amici curiae, their members, or their counsel made a monetary
`contribution to its preparation or submission.
`
`

`

`2
`• U.S. Department of Homeland Security v.
`Regents of the University of California, Brief
`Amicus Curiae of Citizens United, et al., U.S.
`Supreme Court, on petition for certiorari
`before judgment (Feb. 2, 2018);
`
`• Vidal v. Nielsen, Brief Amicus Curiae of
`Citizens United, et al., U.S. Court of Appeals
`for the Second Circuit (Mar. 14, 2018); and
`
`• U.S. Department of Homeland Security v.
`Regents of the University of California, Brief
`Amicus Curiae of Citizens United, et al., U.S.
`Supreme Court, on petition for certiorari (Dec.
`6, 2018).
`
`STATEMENT
`
`The Brief for the Petitioners (“Pet. Br.”) addresses
`the need for a rescission of the Deferred Action for
`Childhood Arrivals (“DACA”) policy based on the
`findings made by Secretary Nielsen in her statement
`of July 22, 2018. Pet. Br. at 10, 40-41. These findings
`supplemented the reasons given by Acting Secretary
`Elaine C. Duke
`in her September 5, 2017
`memorandum determining that DACA was unlawful
`and would be wound down. In addition to agreeing
`that DACA was contrary to law, Secretary Nielsen
`asserted that “‘tens of thousands of minor aliens’ ...
`have made the dangerous trek — with or without their
`families — to and across our southern border without
`legitimate claims to lawfully enter the country.” Id. at
`40. Secretary Nielsen determined it necessary “that
`DHS should send a strong message that children who
`
`

`

`3
`are sent or taken on this perilous and illegal journey
`will not be accorded preferential treatment.” Id. at 41.
`
`lack of enforcement of our nation’s
`The
`immigration laws mandated by the courts below sends
`exactly the wrong signal — that the United States
`Government has lost the will to enforce its borders,
`and that anyone who enters the country illegally
`stands an excellent chance of being rewarded with
`permanent status as a lawful resident, and likely
`citizenship as well.
`
`Multiple nationwide federal court injunctions that
`have been in place for nearly two years send the
`message that federal judges are in charge of our
`borders — not Congress or the President of the United
`States — and judges are welcoming of illegal
`immigrants. Indeed, the Ninth Circuit did not try to
`hide its policy preferences, praising DACA as a
`response to “the cruelty and wastefulness of deporting
`productive young people to countries with which they
`have no ties.” Regents of the Univ. of Cal. v. U.S.
`Dep’t of Homeland Security, 908 F.3d 476, 486 (9th
`Cir. 2018) (“Regents”).2
`
`In their briefs urging that the injunctions be
`maintained, Respondents are unlikely to concede that
`
`2 Pairing lax and deferred enforcement with the range of welfare-
`type benefits, the lower court injunctions have exacerbated the
`current crisis at the border. Almost two-thirds of illegal aliens
`reportedly are receiving welfare benefits. See S.A. Camarota and
`K. Zeigler, “63% of Non-Citizen Households Access Welfare
`Programs,” Center for Immigration Studies (Nov. 20, 2018).
`
`

`

`4
`there is a crisis at the border as Secretary Nielsen
`contended — although the mainstream media, which
`has supported Respondents’ litigation throughout, has
`changed its collective view on that point. On February
`14, 2019, CNN Anchor Don Lemon opposed President
`Trump’s attempt to declare a national emergency to
`secure border funding:
`
`Here is a really, really disgraceful thing. OK?
`You listening? All of this, this whole mess, is
`manufactured. It’s a manufactured crisis. A
`noncrisis at the border that’s really not fooling
`anybody. People go, ‘Oh, it’s a crisis, it’s a
`crisis.’ They know it’s not a crisis. That’s all
`for political expediency. [B. Adams, “Late to
`the party: CNN and MSNBC anchors discover
`there’s a crisis at the border,” Washington
`Examiner (June 26, 2019).]
`
`More recently, Lemon reversed ground, stating:
`
`that
`think
`“For anybody who doesn’t
`immigration is a crisis, a deadly serious crisis,
`a humanitarian crisis....” [Id.]
`
`CNN’s Chris Cuomo and MSNBC’s Brian Williams
`showed the same pattern and have agreed there is a
`crisis at the border. See id.
`
`Some years ago, this Court recognized the scope of
`the problems that border states face as a result of
`illegal immigration. In Arizona v. United States, 567
`U.S. 387 (2012), the Court noted that, in 2010, the
`federal government “apprehended almost half a
`
`

`

`5
`million” unlawful aliens. Arizona at 397. The Court
`added that “[s]tatistics alone do not capture the full
`extent of Arizona’s concerns” about
`illegal
`immigration, adding that the record in that case
`demonstrates “an ‘epidemic of crime, safety risks,
`serious property damage, and environmental problems’
`associated with the influx of illegal migration across
`private land near the Mexican border.” Id. at 398.
`Since last addressed by this Court, conditions have
`only worsened, and the nation’s border remains in
`crisis. Each year, from FY 2014 through FY 2018,
`Customs and Border Patrol has continued to
`apprehend an average of over half a million
`“inadmissibles.”
`
`Broad deferred enforcement programs such as
`DACA and Deferred Action for Parents of Americas
`(“DAPA”) create an incentive for migrants to enter the
`United States illegally, not waiting for proper
`immigration processes. This year has seen an
`explosion of
`illegal border
`crossings and
`apprehensions, with over 144,000 apprehensions in
`May 2019 alone.3 Through the first 10 months of FY
`2019, there have been 862,785 apprehensions on the
`Southwest border, but this number does not include
`illegal crossings, making it impossible to know how
`many total illegal immigrants are entering the United
`States each month. The Constitution did not invest in
`the federal judiciary the authority to protect the
`nation’s borders, and it should not continue to impede
`
`3 See Customs and Border Protection, Southwest Border
`Migration FY 2019, https://www.cbp.gov/newsroom/
`stats/sw-border-migration.
`
`

`

`6
`the President of the United States in his effort to do
`just that.
`
`It is in this context — the existence of a true crisis
`at the border — a border that the President of the
`United States has the duty to protect — that these
`cases come to this Court.
`
`STATEMENT OF THE CASE
`
`The original DACA policy, implemented by the
`Obama Administration in 2012, was a decision not to
`enforce existing law against a broad class of persons.
`The later and lawfully indistinguishable DAPA policy,
`which also expanded DACA, was determined to violate
`the notice-and-comment provision of
`the
`Administrative Procedure Act (“APA”) (5 U.S.C. § 701,
`et seq.) by the U.S. District Court for the Southern
`District of Texas. Texas v. United States, 86 F. Supp.
`3d 591 (S.D. Tex. 2015). That decision was affirmed by
`the U.S. Court of Appeals for the Fifth Circuit. The
`Fifth Circuit took the position that DAPA (and its
`expansion of DACA) judgment likely violated both the
`APA and the Immigration and Nationality Act. Texas
`v. United States, 809 F.3d 134, 136, 170-196 (5th Cir.
`2015). Lastly, the judgment of the Fifth Circuit was
`affirmed by this Court on an equally divided vote.
`United States v. Texas, 136 S.Ct. 2271, 2272 (2016)
`(per curiam).
`
`Once the Trump Administration’s Department of
`Homeland Security announced its decision to rescind
`the DACA policy on September 5, 2017, it was
`subjected to multiple challenges: (i) in the U.S.
`
`

`

`7
`District Court for the Northern District of California
`(by the Regents of the University of California, et al.);
`(ii) in the District of Columbia (by the National
`Association for the Advancement of Colored People, et
`al.); and (iii) in the Eastern District of New York (by
`Batalla Vidal). These three cases led to the issuance
`of three nationwide injunctions against DHS that
`remain in effect to this day, nearly two years later.
`
`SUMMARY OF ARGUMENT
`
`The Trump Administration’s decision to end the
`DACA non-enforcement policy — which has applied to
`a broad class of persons illegally in the United States
`— merely returns to the Department of Homeland
`Security (“DHS”) the ability to begin to enforce
`immigration law as it had been enforced prior to 2012.
`The decision to end DACA and begin enforcement itself
`did not constitute an adverse action against any
`person illegally in the country, and therefore, no one
`should have had standing even to challenge its
`rescission.
`
`The decision to end DACA was not a non-
`enforcement decision and should not have been
`evaluated as such. Rather, it was the opposite — a
`decision to revoke a non-enforcement policy. That
`decision to begin enforcement was unreviewable by the
`judiciary because it could have been made by DHS for
`any policy reason whatsoever. This Court’s decision in
`SEC v. Chenery presents no bar to rescission of the
`DACA non-enforcement decision. The decision to
`enforce
`the
`law was not
`just presumptively
`
`

`

`8
`unreviewable by federal courts, it was also completely
`unreviewable.
`
`The courts below have made the legality and
`constitutionality of DACA an issue in this case. The
`justification for the injunctions against the rescission
`of DACA was that it was predicated, in part, on an
`opinion by the Attorney General and Secretary of DHS
`that DACA was unlawful. Because the judges involved
`disagreed, believing that DACA was lawful, the courts
`felt empowered to enjoin DACA’s rescission on the
`theory that the government had made a mistake of law
`in viewing DACA to be unlawful, thereby rendering
`the rescission illegitimate.
`
`Actually, the courts had no basis to enjoin DHS,
`irrespective of whether DACA was lawful or unlawful.
`First, the judges were wrong in concluding that the
`original DACA policy was lawful, and if the Court
`agrees, the injunctions must be dissolved. However,
`even if this Court were to believe that the original
`DACA policy was lawful, the injunctions should still be
`dissolved. This case does not present a situation
`where there is a dispute of law between an agency and
`the courts, and the court must have the final say.
`There is no doctrine of judicial supremacy which
`requires the Executive to consult with and then bow to
`the opinion of the courts before determining and
`carrying out its executive functions. Nor are the
`Petitioners asking the courts to stand down from any
`role in reviewing individual immigration decisions.
`Rather, the courts have no role at this time in
`mandating what the nation’s immigration policies will
`be.
`
`

`

`9
`ARGUMENT
`
`I. DHS’ DECISION TO END DACA AND
`ENFORCE IMMIGRATION LAW IS NOT
`JUDICIALLY REVIEWABLE.
`
`Former Attorney General Sessions and the
`Secretary of the Department of Homeland Security
`determined that DACA should be phased out, inter
`alia, because “the Department lacked statutory
`authority to have created DACA in the first place,”
`having been
`“‘an unconstitutional exercise of
`authority’” with “the same legal and constitutional
`defects that the courts recognized as to DAPA.”4
`Regents at 491-92.5 The Ninth Circuit did not dispute
`— and indeed no one appears to have disputed — that
`the Trump Administration has the absolute discretion
`to end the DACA program based on a change in policy.6
`See Pet. Br. at 19-20; see also Regents at 510. And no
`one in this case has alleged that the executive branch
`has improperly enforced any immigration law that
`Congress enacted. See Pet. Br. at 19. Indeed,
`
`4 The legality of the DACA program is discussed in Section III,
`infra.
`
`5 The government argues that it also had provided additional
`reasons for reversing the DACA program, and that those reasons
`independently support its decision. Pet. Br. at 37.
`
`6 Presumably, President Trump could simply declare “I have
`chosen to end DACA because I believe it necessary to protect the
`border,” and that would moot this case, as APA does not apply to
`the President, absent express statement by Congress. See
`Franklin v. Massachusetts, 505 U.S. 768, 801 (1992).
`
`

`

`10
`revocation of DACA only signals an intent to enforce
`federal immigration law as it was enforced prior to
`2012. The only sticking point for the courts has been
`the reasons given for the decision to end DACA and to
`begin to enforce immigration law. In other words,
`DHS made a permissible decision
`
`for an
`impermissible reason.7 Due to this perceived error in
`reasoning (but not in judgment), the Ninth Circuit
`panel below claimed that the decision to end DACA is
`judicially reviewable.
`
`A. Revising Reviewability Precedents:
`From “No Opinion” to “May Be” to “Is.”
`
`On its way to determining that the DHS decision
`to revoke DACA was judicially reviewable, the panel
`below first cited Heckler v. Chaney, 470 U.S. 821, 832
`(1985), where this Court held that nonenforcement
`
`7 This is not the first time that the lower courts have invalidated
`this President’s policy agenda based on allegations of improper
`reasons for otherwise legitimate decisions. See, e.g., IRAP v.
`Trump, 857 F.3d 554, 572 (4th Cir. 2017) (claiming President
`Trump’s order “drips with religious intolerance, animus, and
`discrimination”). The lower courts have repeated these ad
`hominem attacks ad nauseam, claiming that hidden, secret
`motivations override the legality of otherwise perfectly acceptable
`policy choices with which federal judges personally disagree. In
`this case, the judges of the Ninth Circuit have made no secret of
`how they wanted the case to turn out. Claiming that President
`Obama’s policies “[r]ecogniz[ed] the cruelty and wastefulness of
`deporting productive young people,” the allegedly neutral and
`detached magistrates below decried the current administration’s
`decision to end this so-called “‘commendable exercise’” and to
`disappoint DACA recipients who were “trusting the government
`to honor its promises.” Regents at 486-87.
`
`

`

`11
`decisions by the executive branch are presumed to be
`nonreviewable by the judiciary. Regents at 495.
`However, as the Ninth Circuit noted, this Court had
`“express[ed] no opinion” as to whether an agency’s
`nonenforcement decision is judicially reviewable if
`based upon the belief that the agency lacked
`jurisdiction to institute proceedings. Chaney at 833
`n.4.8
`
`Undeterred, the Ninth Circuit filled in the alleged
`gap in Chaney with its own prior opinion in Montana
`Air Chapter No. 29 v. Federal Labor Relations
`Authority, 898 F.2d 753, 754 (9th Cir. 1990), finding
`that “the Supreme Court had nevertheless ‘suggested
`that’” such decisions “‘may be reviewable.’” Regents at
`496. Thus, the Ninth Circuit understood Montana Air
`as having established that the “presumption of
`nonreviewability ‘may be overcome if the refusal is
`based solely on the erroneous belief that the agency
`lacks jurisdiction.’” Id. (emphasis added).
`
`A page later, however, the Ninth Circuit took yet
`another leap, converting Montana Air’s “may be
`overcome” language into a hard-and-fast rule that “a
`nonenforcement decision is reviewable ... if the
`decision was based solely on the agency’s belief that it
`lacked jurisdiction to act.” Regents at 497 (emphasis
`
`8 This Court also discussed a situation where “the statute
`conferring authority on the agency might indicate that such
`decisions were not ‘committed to agency discretion’” (id.), but that
`situation is not present here.
`
`

`

`12
`added).9 Of course, by the Ninth Circuit’s own
`admission, this Court has never reached that
`conclusion and neither had the Ninth Circuit — until
`its decision in this case.
`
`Then, as the icing on its cake, the Ninth Circuit
`relied on City of Arlington v. FCC, 569 U.S. 290 (2013),
`for the proposition that “there is no difference between
`an agency that lacks jurisdiction to take a certain
`action, and one that is barred by the substantive law
`from doing the same....” Id. at 497. But the facts in
`this case have nothing to do with the City of Arlington
`distinction between an agency “exceeding the scope
`of its authority ... and its exceeding authorized
`application of authority that it unquestionably has,”10
`or between agencies which “‘act improperly’” versus
`ones that act “‘beyond their jurisdiction.’” Regents at
`496 (emphasis added). Rather, in this case, DHS
`clearly has not acted in excess of or beyond its
`jurisdiction — but rather, it is the Ninth Circuit’s
`opinion that, in implementing DACA, the agency has
`acted well within any limit on its authority. Here, the
`Ninth Circuit takes the position that DHS has far
`more authority than the agency itself believes it has.
`City of Arlington has no application here.
`
`9 In Montana Air, the Ninth Circuit separately concluded that an
`agency’s nonenforcement decision might be reviewable if based
`“upon adoption of a general policy so extreme as to amount to an
`abdication of the agency’s statutory responsibilities.” Id. at 754.
`Unsurprisingly, the Ninth Circuit never mentioned this rule when
`it opined that the original DACA program — adopting a general
`policy not to enforce the law — was lawful.
`
`10 City of Arlington at 299 (emphasis added).
`
`

`

`13
`B. The Decision to End DACA Is Not a
`“Nonenforcement Decision.”
`
`As discussed above, neither this Court’s decisions
`nor the Ninth Circuit’s own precedents support its
`conclusion that the decision to end DACA is judicially
`reviewable. But there is an even more fundamental
`weakness in the Ninth Circuit’s decision. The decision
`to revoke DACA is not a “nonenforcement decision.”
`Regents at 497. Rather, it is the opposite — an
`enforcement decision — a “decision to rescind a
`nonenforcement policy....” Pet. Br. at 21. Therefore,
`this is not a case like Chaney where an agency decides
`not to enforce because it does not have the jurisdiction
`to bring enforcement proceedings. Rather, here an
`agency is deciding to enforce the statute as it is
`written, based on the court below’s theory that it does
`not have the authority to abdicate its responsibility
`to enforce the law.
`
`This means that none of the factors weighing in
`favor of judicial reviewability of nonenforcement
`decisions is applicable here. See Pet. Br. at 31-32.
`Certainly when, as here, an agency states its intent to
`enforce the law, there is no “danger that [the] agenc[y]
`may not carry out [its] delegated powers with
`sufficient vigor....” Chaney at 834. Indeed, unlike
`actual nonenforcement decisions, an enforcement
`decision presents no conflict between the legislature
`and the Executive. Rather, with the DHS decision to
`revoke DACA and enforce immigration law, Congress
`and the executive branch are once again in lockstep.
`Congress has determined that certain persons are
`unlawfully present in the United States, and the
`
`

`

`14
`Trump Administration has announced its intent to
`enforce that law. It is only the lower federal courts —
`part of the allegedly “weakest of the three departments
`of power”11 — which have stood in the way, forcing
`both other branches of government to bend to the
`judiciary’s will through the liberal application of
`nationwide injunctions.12
`
`Both Respondents and the courts below try to give
`the impression that the revocation of DACA will end
`all exercises of prosecutorial discretion, and that all
`DACA recipients immediately will be deported. On the
`contrary, there is no indication that the executive
`branch now will move generally to deport persons who
`are part of the DACA program. With DACA repealed,
`enforcement will simply revert to the way it was before
`— with real prosecutorial discretion being applied
`based on the facts and circumstances of actual
`individual cases. True prosecutorial discretion will
`replace the policy discretion, on a categorical basis,
`engaged in by the prior administration.
`
`11 A. Hamilton, Federalist No. 78, reprinted in G. Carey & J.
`McClellan, The Federalist at 402 (Liberty Fund: 2001).
`
`12 This Court has held that when the Executive and Congress act
`arm-in-arm on a matter, the President’s authority is at its
`maximum. Thus, a decision to enforce federal law, when
`“executed by the President pursuant to an Act of Congress would
`be supported by the strongest of presumptions and the widest
`latitude of judicial interpretation, and the burden of persuasion
`would rest heavily upon any who might attack it.” Youngstown
`Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).
`
`

`

`15
`Respondents here are attempting to convince this
`Court to do on a wholesale level what instead should
`be done at the retail level. But as Petitioners note, “an
`alien subjected to removal proceedings may challenge
`the substantive validity of an adverse final order, but
`he may not raise a procedural claim that the
`government was arbitrary and capricious
`for
`commencing enforcement.” Pet. Br. at 23.
`
`In upholding the district court’s issuance of a
`nationwide injunction, the Ninth Circuit has declared
`that a duly enacted statute may not be enforced by the
`Executive.13 In other words, the judiciary has created
`a requirement that the federal government must
`continue to permit our immigration laws to be broken
`by hundreds of thousands of persons for a period now
`going on two years — unless permitted to do otherwise
`by the judicial branch. See Pet. Br. at 16. The
`injunction below was not issued because the decision
`to revoke DACA is unconstitutional, or because it
`conflicts with a statute or an international agreement
`
`13 The Ninth Circuit credits itself with “empowering the
`Executive” in this case by informing DHS that it has greater
`authority than it believes. Regents at 490. Of course, this is just
`whitewash, as the Ninth Circuit’s opinion upheld the district
`court’s
`injunction preventing
`the administration
`from
`implementing its policy agenda and forcing the DACA program on
`the American people for nearly an additional two years. Later,
`the Ninth Circuit outrageously claims that its opinion in this case
`“prevents [an] anti-democratic and untoward outcome,” allegedly
`because an accurate description of the law permits voters to
`properly allocate blame. Regents at 499. Of course, there is
`nothing democratic about four unelected and unaccountable
`judges below, all appointed by Democratic presidents, unilaterally
`impeding the political agenda of an elected Republican president.
`
`

`

`16
`or treaty. Rather, it was issued solely because an
`executive branch agency has taken the position that a
`law Congress enacted should be enforced, and that the
`prior administration’s political abdication of its
`responsibility to enforce the law was wrong.
`
`II. DHS’ DECISION TO END DACA WAS
`LAWFUL UNDER SEC V. CHENERY.
`
`Having determined that neither the APA nor the
`Immigration and Nationality Act imposes any bar to
`judicial review of the rescission of DACA, the Ninth
`Circuit examined the merits of the decision to end
`DACA, based on the “likelihood of success on the
`merits” prong of the preliminary injunction standard.
`Regents at 505, et seq.
`
`The court below relied on this Court’s decision in
`SEC v. Chenery Corp., 318 U.S. 80 (1943). There, the
`Court determined that it could not uphold an “order”
`by the Securities and Exchange Commission based on
`the record before the Court. The Court likened review
`of agency action to appellate review of lower court
`decisions: if a lower court reaches the right result but
`for the wrong reason, the appellate court nevertheless
`can sustain the decision if there is an alternative
`ground on which the lower court could have relied.
`However, in cases where a required showing, or factual
`or jury determination, was not made, the appellate
`court must remand
`the case
`to make
`that
`determination. Chenery at 88.
`
`In rejecting the Commission’s order in Chenery,
`the Court likened that case to the latter scenario — a
`
`

`

`17
`situation where “[t]he record is utterly barren of any
`such showing,” and where “findings might have been
`made and considerations disclosed which would justify
`its order,” but were not. Id. at 93-94. Specifically, the
`Court noted that the Commission had applied the
`wrong standard to the case but that, since “the
`Commission
`is not bound by settled
`judicial
`precedents,” it was impossible for the Court to weigh
`in on the issue, and thus remanded the case for further
`findings. Id. at 89, 95.
`
`This case involves precisely the opposite situation,
`and implicates the first scenario from Chenery —
`where a decision “must be affirmed if the result is
`correct ‘although the lower court relied upon a wrong
`ground or gave a wrong reason.’” Id. at 88. Here, the
`decision to end DACA was said to have been made
`because the program was believed to have been
`unlawful and unconstitutional at its inception. And

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