`
`Nos. 18-587, 18-588, and 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.
`
`--------------------------------- ---------------------------------
`
`On Writ Of Certiorari To The
`United States Court Of Appeals
`For The Ninth Circuit
`
`--------------------------------- ---------------------------------
`
`BRIEF OF AMICUS CURIAE
`SOUTHEASTERN LEGAL FOUNDATION
`IN SUPPORT OF PETITIONERS
`
`--------------------------------- ---------------------------------
`
`KIMBERLY S. HERMANN
`SOUTHEASTERN LEGAL
` FOUNDATION
`560 W. Crossville Rd.,
` Ste. 104
`Roswell, GA 30075
`
`
`
`August 26, 2019
`
`KURT R. HILBERT
` Counsel of Record
`KELLY H. BROLLY
`THE HILBERT
` LAW FIRM, LLC
`205 Norcross St.
`Roswell, GA 30075
`(770) 551-9310
`khilbert@hilbertlaw.com
`Counsel for Amicus Curiae
`
`[Additional Captions Listed On Inside Cover]
`
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`
`
`DONALD J. TRUMP,
`President of the United States, et al.,
`Petitioners,
`
`v.
`NATIONAL ASSOCIATION FOR THE
`ADVANCEMENT OF COLORED PEOPLE, et al.,
`Respondents.
`
`--------------------------------- ---------------------------------
`
`On Writ Of Certiorari Before Judgment
`To The United States Court Of Appeals
`For The District Of Columbia Circuit
`
`--------------------------------- ---------------------------------
`
`KEVIN K. McALEENAN,
`Acting Secretary of Homeland Security, et al.,
`Petitioners,
`
`v.
`MARTIN JONATHAN BATALLA VIDAL, et al.,
`Respondents.
`
`--------------------------------- ---------------------------------
`
`On Writ Of Certiorari Before Judgment
`To The United States Court Of Appeals
`For The Second Circuit
`
`
`
`
`
`
`
`
`
`
`
`i
`
`QUESTIONS PRESENTED
`
`
`This dispute concerns the policy of immigration
`
`enforcement 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 (per curiam). 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 presented are as fol-
`lows:
`
`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.
`
`
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF AUTHORITIES .................................
`iii
`INTEREST OF AMICUS CURIAE ......................
`1
`SUMMARY OF ARGUMENT ..............................
`1
`ARGUMENT ........................................................
`3
`
`I. DACA’s rescission was not arbitrary and
`capricious because DACA is unlawful .......
`A. DACA violates the APA because it did
`not go through notice-and-comment ....
`B. DACA violates the INA, the Constitu-
`tion, and international treaty law ....... 12
` II. Courts cannot unilaterally expand the APA’s
`standard of review ..................................... 17
`CONCLUSION ..................................................... 20
`
`3
`
`7
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Arizona v. United States, 567 U.S. 387 (2012) ............. 2
`Block v. Cmty. Nutrition Inst., 467 U.S. 340
`(1984) ....................................................................... 19
`Chamber of Commerce of the United States v.
`Reich, 74 F.3d 1322 (D.C. Cir. 1996) ....................... 16
`Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .......... 7, 9
`City of Arlington, Tex. v. FCC, 133 S. Ct. 1863
`(2013) ..................................................................... 1, 7
`Consol. Edison Co. v. NLRB, 305 U.S. 197
`(1938) ................................................................... 16
`Dickinson v. Zurko, 527 U.S. 150 (1999)..................... 18
`FCC v. Fox Television Stations, Inc., 556 U.S. 502
`(2009) ............................................................... 6, 8, 18
`Finley v. United States, 490 U.S. 545 (1989) ................ 4
`Free Enter. Fund v. Pub. Co. Accounting Over-
`sight Bd., 130 S. Ct. 3138 (2010) .............................. 1
`Hearst Radio v. FCC, 167 F.2d 225 (D.C. Cir.
`1948) ........................................................................ 19
`Heckler v. Chaney, 470 U.S. 821 (1985) ...................... 17
`Hines v. Davidowitz, 312 U.S. 52 (1941) ....................... 2
`Morton v. Ruiz, 415 U.S. 199 (1974) ....................... 9, 11
`Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
`Auto. Ins. Co., 463 U.S. 29 (1983) ................ 16, 17, 19
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199
`(2015) ................................................................... 6, 18
`Plyler v. Doe, 457 U.S. 202 (1982) ................................. 2
`Regents of the Univ. of Cal. v. U.S. Dep’t of Home-
`land Sec., 908 F.3d 476 (9th Cir. 2018) ................... 18
`Safe Extensions, Inc. v. FAA, 509 F.3d 593 (D.C.
`Cir. 2007) ................................................................. 16
`Texas v. United States, 809 F.3d 134 (5th Cir.
`2015) .................................................... 4, 7, 12, 13, 14
`Texas v. United States, 328 F. Supp. 3d 662 (S.D.
`Tex. 2018) ................................................................ 15
`United States v. Mead, 533 U.S. 218 (2001) ............... 14
`Universal Camera Corp. v. NLRB, 340 U.S. 474
`(1951) ....................................................................... 16
`
`
`CONSTITUTIONAL PROVISIONS
`U.S. Const. art. I, § 8, cl. 4 ............................................. 2
`U.S. Const. art. II, § 3 ................................................... 2
`U.S. Const. art. IV, § 2, cl. 1 ........................................ 13
`U.S. Const. art. VI, cl. 2 ............................................... 15
`
`STATUTES
`5 U.S.C. § 551(4) .......................................................... 11
`5 U.S.C. § 551(5) ............................................................ 9
`5 U.S.C. § 551(13) ........................................................ 19
`
`
`
`v
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`5 U.S.C. § 553(b) ........................................................ 7, 8
`5 U.S.C. § 553(c) ........................................................ 7, 8
`5 U.S.C. § 706 .............................................................. 18
`5 U.S.C. § 706(2)(A) ................................. 4, 5, 12, 16, 18
`5 U.S.C. § 706(2)(D) ............................................. 4, 5, 18
`5 U.S.C. § 706(2)(E) ..................................................... 16
`8 U.S.C. § 1101 et seq. ................................................. 12
`8 U.S.C. § 1201 et seq. ................................................. 13
`
`REGULATIONS
`60 Fed. Reg. 13,023 (Mar. 10, 1995) ........................... 15
`
`RULES
`Sup. Ct. R. 37.3(a) ......................................................... 1
`Sup. Ct. R. 37.6 ............................................................. 1
`
`OTHER AUTHORITIES
`Extradition Treaty, Mexico-U.S., Jan. 25, 1980,
`31 U.S.T. 5059 .......................................................... 15
`Memorandum from Elaine C. Duke, Acting Sec’y
`on Rescission of Deferred Action For Child-
`hood Arrivals (DACA) (Sept. 5, 2017) ..................... 13
`Memorandum from Sec’y Kirstjen M. Nielsen
`(June 22, 2018) ........................................................ 13
`
`
`
`vi
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Oliver Wendell Holmes, The Theory of Legal In-
`terpretation, 12 Harv. L. Rev. 417 (1899) .................. 5
`Richard B. Stewart & Cass R. Sunstein, Public
`Programs and Private Rights, 95 Harv. L. Rev.
`1193 (1982) ................................................................ 8
`S. Doc. No. 77-8, Final Report of the Attorney
`General’s Committee on Administrative Pro-
`cedure in Government Agencies (1941) .................... 8
`The Federalist No. 45 (James Madison) (Clinton
`Rossiter ed., Signet Classics 2003) ........................... 2
`Thomas J. Miles & Cass R. Sunstein, The Real
`World of Arbitrariness Review, 75 U. Chi. L.
`Rev. 761 (2008) ........................................................ 17
`
`
`
`
`
`1
`
`INTEREST OF AMICUS CURIAE1
`Amicus Southeastern Legal Foundation (SLF),
`
`founded in 1976, is a national nonprofit, public interest
`law firm and policy center that advocates for constitu-
`tional individual liberties, limited government, and
`free enterprise. SLF drafts legislative models, educates
`the public on key policy issues, and litigates often be-
`fore both state and federal courts. As an organization
`interested in federalism, agency powers, and separa-
`tion of powers, SLF has a particular interest in sweep-
`ing non-statutory imposition of policies and programs
`that violate agency procedure, conflict with existing
`federal laws, and improperly seek to expand laws ab-
`sent congressional or constitutional authority.
`
`--------------------------------- ---------------------------------
`
`SUMMARY OF ARGUMENT
`It is no secret that “[t]he administrative state
`
`‘wields vast power and touches almost every aspect of
`daily life.’ ” City of Arlington, Tex. v. FCC, 133 S. Ct.
`1863, 1878 (2013) (Roberts, C.J., dissenting) (quoting
`Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,
`130 S. Ct. 3138, 3156 (2010)). “[T]he authority admin-
`istrative agencies now hold over our economic, social,
`and political activities[,]” id., contradicts the govern-
`ment of enumerated powers the Framers envisioned.
`
`1 Rule 37 statement: Amicus notified the parties to the filing
`
`of this brief and parties have consented by blanket consent on file
`with the Court. See Sup. Ct. R. 37.3(a). No party’s counsel au-
`thored any of this brief; amicus alone funded its preparation and
`submission. See Sup. Ct. R. 37.6.
`
`
`
`2
`
`Our Founding Fathers sought to create a limited gov-
`ernment structure. Addressing concerns that the pro-
`posed national government would usurp the people’s
`power to govern themselves, James Madison ex-
`plained: “The powers delegated by the proposed Con-
`stitution to the federal government are few and
`defined . . . [and] will be exercised principally on exter-
`nal objects, as war, peace, negotiation, and foreign
`commerce. . . .” The Federalist No. 45, at 292 (James
`Madison) (Clinton Rossiter ed., Signet Classics 2003).
`
`Despite the dangers posed by the growing admin-
`
`istrative state, it is within the province of the federal
`government to oversee immigration and to imple-
`ment congressional purposes and objectives. See U.S.
`Const. art. I, § 8, cl. 4; U.S. Const. art. II, § 3; Hines v.
`Davidowitz, 312 U.S. 52, 67 (1941); see also Arizona v.
`United States, 567 U.S. 387, 394 (2012) (“The Govern-
`ment of the United States has broad, undoubted power
`over the subject of immigration and the status of al-
`iens.”); Plyler v. Doe, 457 U.S. 202, 225 (1982) (the
`Constitution commits the power to classify aliens to
`the political branches of government). But that power
`is not without limits—both procedural and substan-
`tive.
`
`The Department of Homeland Security’s (DHS)
`
`decision to wind down and ultimately rescind the De-
`ferred Action for Childhood Arrivals program (DACA)
`is lawful because DACA is both procedurally and sub-
`stantively unlawful. Procedurally, DACA violates the
`Administrative Procedure Act (APA) because the pub-
`lic received neither notice nor a chance to comment
`
`
`
`3
`
`prior to the substantive rule’s announcement and en-
`forcement. And substantively, DACA conflicts with fed-
`eral law, the U.S. Constitution, and international
`treaty law. Because DACA is unlawful, no further judi-
`cial inquiry should be required, and thus its rescission
`is not arbitrary and capricious.
`
`Amicus writes to discuss not only the unlawful-
`
`ness of DACA, but to highlight confusion in the lower
`courts about when they should use the APA arbitrary
`and capricious standard and the tests about discretion.
`Amicus suggests that a bright line rule could clarify
`that if an agency’s discretionary enforcement policy is
`unlawful, then no secondary inquiry is needed to de-
`termine whether that agency’s discretionary decision
`to rescind is arbitrary and capricious. Alternatively, if
`a reviewing court finds such a challenged policy lawful
`in the first instance, then it should apply the arbitrary
`and capricious standard to determine whether rescis-
`sion was proper and otherwise lawful.
`
`--------------------------------- ---------------------------------
`
`ARGUMENT
`I. DACA’s rescission was not arbitrary and
`capricious because DACA is unlawful.
`Amicus agrees with Petitioners that the lower courts
`
`erred in finding that rescission was arbitrary and ca-
`pricious. Pet’r. Br. at 32-57. An agency’s rescission of a
`prior administration’s discretionary enforcement pol-
`icy is not an arbitrary and capricious decision when,
`like here: 1) the policy violated the notice-and-comment
`
`
`
`4
`
`requirements of the APA, and 2) the policy is not re-
`quired by existing law, conflicts with both the Consti-
`tution and federal laws, and is a counterpart to a law
`already found to be unconstitutional (i.e., Deferred Ac-
`tion for Parents of Americans (DAPA)).2 The APA pro-
`vides that courts may “hold unlawful and set aside
`agency action, findings, and conclusions found to be ar-
`bitrary, capricious, an abuse of discretion, or otherwise
`not in accordance with law . . . or without observance
`of procedure required by law.” 5 U.S.C. §§ 706(2)(A), (D)
`(emphasis added). These standards are disjunctive and
`not mutually exclusive.
`
`From its inception, DACA was unlawful. And be-
`
`cause DACA is unlawful, DHS’s discretionary agency
`decision to rescind it was not arbitrary and capricious.
`Declaring DACA’s rescission arbitrary and capricious
`is illogical, cuts against the plain meaning of the APA
`and this Court’s precedent, and undermines the foun-
`dational pillars of our system of justice. Just as a bind-
`ing contract that is illegal at inception is judicially
`unenforceable, a court must find an unlawful policy in-
`valid and void.
`
`This Court has opined that it is imperative “that
`
`Congress be able to legislate against a background of
`clear interpretive rules, so that it may know the effect
`of the language it adopts.” Finley v. United States, 490
`U.S. 545, 556 (1989). Justice Oliver Wendell Holmes in
`
`
`2 Texas v. United States, 809 F.3d 134, 184-86 (5th Cir. 2015),
`
`aff ’d by an equally divided court, 136 S. Ct. 2271 (2016) (per cu-
`riam) (Texas I) (holding DAPA unlawful and unconstitutional).
`
`
`
`5
`
`an oft-quoted aphorism stated as well: “We do not in-
`quire what the legislature meant; we ask only what the
`statute means.” Oliver Wendell Holmes, The Theory of
`Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899).
`For these reasons, 5 U.S.C. §§ 706(2)(A) and (D) set
`forth separate and distinct legal standards, any one of
`which can declare the policy at issue void. The lower
`courts here wrongfully focused on and errantly inter-
`preted the arbitrary and capricious standard while giv-
`ing no moment to the fundamental concern of whether
`DACA was lawful at inception. Although this issue
`may be a matter of first impression in the context of
`rescission of a prior administration’s discretionary en-
`forcement policy in the immigration context, Amicus
`urges the Court to consider all standards, the entirety
`of the APA, and other applicable laws.
`
`It may also be helpful for this Court to clarify that
`
`when reviewing rescission of an agency’s discretionary
`enforcement policy, courts should use a two-step pro-
`cess: first considering the policy’s lawfulness and then
`scrutinizing the discretionary rescission. This would
`protect agency action from the improper imposition of
`both a higher standard and different levels of judicial
`scrutiny. A threshold analysis of whether the policy is
`lawful in the first instance would also be in the inter-
`ests of judicial economy and would preserve a true
`notion of constitutional separation of powers. This
`analysis is particularly important when an agency de-
`cision concerns an agency policy that not only directly
`violates the APA, but also conflicts with an existing
`
`
`
`6
`
`comprehensive congressionally approved statutory
`scheme, as well as other laws.
`
` When an agency concludes, based on the evidence
`before it that one of its discretionary policies is likely
`unlawful, it is improper for lower courts to impose a
`heightened standard to determine whether rescission
`of that policy was arbitrary and capricious. Perez v.
`Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1207 (2015)
`(finding courts have no authority to impose procedural
`requirements beyond those stated in the APA). And it
`is certainly judicial overreach to create new standards
`such as policy differences or reliance interests that
`have no foundation in the APA. Id. at 1209. Indeed, this
`Court already foreclosed applying such a heightened
`searching review standard to rescission. See FCC v. Fox
`Television Stations, Inc., 556 U.S. 502, 513-14 (2009)
`(holding there is “no basis . . . for a requirement that
`all agency change for a new policy be subjected to more
`searching review”).
`
`That said, if this Court finds that its prior opinions
`
`leave room for policy difference and reliance interests
`as a higher level of scrutiny of agency discretion, Ami-
`cus urges the Court to provide clarity on when courts
`should employ these added tests. In any case, the
`lower courts here avoid any real analysis of the ques-
`tion of lawfulness in the first instance, and fail to
`follow this Court’s precedent and limited judicial re-
`view standards.
`
`
`
`
`
`7
`
`A. DACA violates the APA because it did
`not go through notice-and-comment.
`Congress and the people are entitled to the bene-
`
`fits of the APA notice-and-comment procedures. The
`APA requires both notice and a chance to comment be-
`fore enforcement of any substantive rule or regulation.
`5 U.S.C. §§ 553(b)-(c); see Chrysler Corp. v. Brown, 441
`U.S. 281 (1979). In passing the APA, Congress recog-
`nized the hazards that agencies pose to the democratic
`process, separation of powers, and liberty. The APA re-
`quires that agencies issue substantive rules through
`the notice-and-comment procedure, while “general
`statement[s] of policy” do not. Texas I, 809 F.3d at 214.
`Ignoring these requirements, in 2012 DHS wrote and
`implemented DACA, a substantive rule, without giving
`the public notice or a chance to comment on the sub-
`stantive rule. This disregard of the APA’s requirements
`led to the very abuse of power and usurpation of con-
`gressional authority that Congress sought to curtail
`with the APA.
`
`As this Court is aware, federal agencies issue, in-
`
`terpret, and enforce rules that govern our lives. “[A]s a
`practical matter they exercise legislative power, by
`promulgating regulations with the force of law; execu-
`tive power, by policing compliance with those regula-
`tions; and judicial power, by adjudicating enforcement
`actions and imposing sanctions on those found to have
`violated their rules.” City of Arlington, 133 S. Ct. at
`1877-78 (Roberts, C.J., dissenting).
`
`
`
`8
`
`The APA’s chief procedural safeguard, Section 553,
`
`requires administrative agencies to provide “notice of
`proposed rulemaking” and “give interested persons an
`opportunity to participate in the rule making through
`submission of written verified data, views, or argu-
`ments with or without opportunity for oral presenta-
`tion.” 5 U.S.C. §§ 553(b)-(c). Congress understood that
`if agencies were going to wield quasi-legislative power,
`their procedures must “giv[e] adequate opportunity to
`all persons affected to present their views, the facts
`within their knowledge, and the dangers and benefits
`of alternative courses.” S. Doc. No. 77-8, Final Report
`of the Attorney General’s Committee on Administra-
`tive Procedure in Government Agencies, at 102 (1941).
`Public notice-and-comment is “essential in order to
`permit administrative agencies to inform themselves
`and to afford adequate safeguards in private interests.”
`Id. at 103.
`
`The APA must remain “a ‘working compromise, in
`
`which broad delegations of discretion were tolerated as
`long as they were checked by extensive procedural
`safeguards.’” Fox Television Stations, Inc., 556 U.S. at 537
`(Kennedy, J., concurring in part and concurring in the
`judgment) (quoting Richard B. Stewart & Cass R. Sun-
`stein, Public Programs and Private Rights, 95 Harv. L.
`Rev. 1193, 1248 (1982)). The authority agencies have
`accumulated is startling. They have combined the once
`inviolate and separate characteristics of legislative, ex-
`ecutive, and judicial powers. If courts do not uphold
`and enforce required procedures such as APA notice-
`and-comment, bureaucracy as an independent force
`
`
`
`9
`
`will swallow the very framework and intent of checks
`and balances enshrined in our Constitution.
`
`Against this backdrop, neither agencies nor courts
`
`can ignore the APA’s notice-and-comment. Politics can
`shape policy, but politics must not overrun law and
`when it does, it is not harmless error. DACA can, has,
`and will continue to profoundly affect our nation’s im-
`migration landscape. Interested persons on both sides
`of the issue should have had a chance to present writ-
`ten verified data, differing views, and the dangers and
`benefits of alternative courses before DHS instituted
`DACA. Both the APA and our nation’s democratic pro-
`cess require that DACA, as a substantive rule for APA
`purposes, be subjected to notice-and-comment. 5 U.S.C.
`§ 551(5); Chrysler Corp., 441 U.S. at 302 (substantive
`rules can be legally binding, policy statements cannot);
`Morton v. Ruiz, 415 U.S. 199, 232 (1974) (finding a sub-
`stantive rule exists where benefits eligibility merely
`“affect[ed] individual rights and obligations”). This is
`especially true given the legally binding impact the
`policy will have on immigration law.
`
`DACA, as pleaded by plaintiffs in the consolidated
`
`and other related cases, provides that the grantees
`are granted substantive benefits. The California Plain-
`tiffs have pleaded, among other things, that they are
`“granted the right not to be arrested or detained
`based solely on their immigration status”; “granted el-
`igibility to receive employment authorization”; “al-
`low[ed] travel”; “not disqualified on the basis of their
`immigration status from receiving certain public ben-
`efits . . . includ[ing] federal Social Security, retirement,
`
`
`
`10
`
`and disability benefits”; and “other benefits and oppor-
`tunities.” Compl. at 17-18 ¶¶ 82-86, California v. U.S.
`Dep’t of Homeland Sec., No. 3:17-cv-05235-WHA (N.D.
`Cal. Sept. 11, 2017), ECF No. 1 (citations omitted). The
`Garcia Plaintiffs have also pleaded that “DACA con-
`fers numerous important benefits on those who apply
`for and are granted DACA status.” Compl. at 9 ¶ 27,
`Garcia v. United States, No. 3:17-cv-5380-WHA (N.D.
`Cal. Sept. 18, 2017), ECF No. 1.
`
`Likewise, the plaintiffs in the Second and D.C.
`
`Circuits challenging the memorandum winding-down
`DACA pleaded in substance that DACA conferred
`substantive rights but was wound-down without fol-
`lowing the notice-and-comment procedures of the
`APA. Compl., NAACP v. Trump, No. 1:17-cv-1907-CRC
`(D.D.C. Sept. 18, 2017), ECF No. 1; 3d Am. Compl.,
`Batalla Vidal v. Nielsen, No. 1:16-cv-4756-NGG-JO
`(E.D.N.Y. Dec. 11, 2017), ECF No. 113. And the New
`York Plaintiffs pleaded: “DACA confers numerous ben-
`efits on DACA grantees”; “DACA grantees are granted
`the right not to be arrested or detained based solely on
`their immigration status”; and “DACA grantees are el-
`igible to receive certain public benefits . . . includ[ing]
`Social Security, retirement, and disability benefits,
`and, in certain states, benefits such as driver’s licenses
`or unemployment insurance.” Compl. at 41 ¶¶ 218,
`220, New York v. Trump, No. 1:17-cv-5228-NGG-JO
`(E.D.N.Y. Sept. 6, 2017), ECF No. 1. The New York
`Plaintiffs further stated:
`
`In implementing the DHS Memorandum, fed-
`eral agencies have changed the substantive
`
`
`
`11
`
`criteria by which individual DACA grantees
`work, live, attend school, obtain credit, and
`travel in the United States. Federal agencies
`did not follow the procedures required by the
`APA before taking action impacting these sub-
`stantive rights.
`
`Id. at 54 ¶ 289 (emphasis added). Thus, to the extent
`that DACA’s rescission “affect[ed] substantial individ-
`ual rights and obligations” as a substantive rule, then
`DACA’s creation must also have “affect[ed] individual
`rights and obligations[.]” Ruiz, 415 U.S. at 232. For
`these reasons, notice-and-comment was required at
`DACA’s inception.
`
` While the lower court decisions here confront the
`consolidated DACA cases from different procedural
`angles, one must return to the nub of the case—the
`threshold question of the legality of DACA as a sub-
`stantive rule at inception. If unlawful at inception, this
`finding is dispositive, and rescission was not arbitrary
`and capricious.
`
`However, in general, the lower courts wrongly
`
`overlooked the central issue of whether DACA is sub-
`ject to the APA’s notice-and-comment requirement as a
`substantive rule. For example, the Ninth Circuit’s reli-
`ance on policy ignored the APA’s definition of “rule” as
`“an agency statement of general or particular applica-
`bility and future effect designed to implement, inter-
`pret, or prescribe law or policy or describing the
`organization, procedure, or practice requirements of an
`agency. . . .” 5 U.S.C. § 551(4). Further, even if a court
`
`
`
`
`12
`
`found that DACA contains mere policy language, such
`a finding would not preclude categorizing DACA as a
`substantive rule under the APA definition requiring
`notice-and-comment. Any reliance on the purported
`discretion in DACA is more theoretical than based in
`reality. If statistics are to govern, there is a slippery
`slope that emerges. How is a court to draw any conceiv-
`able or meaningful line to preserve the voice of Con-
`gress and the people, against a president imposing
`legally binding “policy” rules through an unchecked
`fourth branch of government?
`
`
`
`B. DACA violates the INA, the Constitution,
`and international treaty law.
`On top of its procedural flaws, DACA violates the
`
`APA because it violates the Immigration and Nation-
`ality Act (INA), 8 U.S.C. § 1101 et seq., the Constitu-
`tion, and international treaty law. See 5 U.S.C.
`§ 706(2)(A) (agency action must be “otherwise not in
`accordance with law”).
`
`Before DACA’s announcement in 2012, Congress
`
`enacted a comprehensive legal scheme under the INA
`which neither requires DACA, contemplates DACA,
`nor gives DHS the authority to implement DACA or
`any other deferred action plan. DACA, like DAPA, is
`“foreclosed by Congress’s careful plan.” Texas I, 809
`F.3d at 186. It violates the congressionally approved
`immigration scheme because it is a discretionary en-
`forcement policy at its core, not part of any existing
`law. Thus, it involves agency decision, discretion, and
`
`
`
`13
`
`action to make substantive judgments about non-
`enforcement of a comprehensive congressional scheme
`already mandated by the INA to require deportation of
`illegal aliens. Id. at 186 n.202. In Texas I, the Fifth Cir-
`cuit held that similar DAPA and expanded DACA pol-
`icies were “manifestly contrary” to the INA. Id. at 186.
`
`As the DHS Secretaries concluded after consider-
`
`able analysis and reliance on well-reasoned decisions
`involving DAPA including analysis from the Attorney
`General, they lacked “sufficient confidence in the DACA
`policy’s legality to continue this non-enforcement pol-
`icy, whether the courts would ultimately uphold it or
`not.” Memorandum from Elaine C. Duke, Acting Sec’y
`on Rescission of Deferred Action For Childhood Arri-
`vals (DACA) (Sept. 5, 2017); see also Memorandum from
`Sec’y Kirstjen M. Nielsen (June 22, 2018). The Duke
`and Nielsen Memorandums further provided multiple
`reasons of “enforcement policy” to rescind DACA, includ-
`ing that Congress has “repeatedly considered but de-
`clined to protect” illegal aliens.3 Id. The analysis,
`before rescission, was enough to satisfy the APA.
`
`Their analysis shows that the INA does not give
`
`DHS the authority to implement or to enact DACA.
`This is because Congress did not give DHS authority
`to grant, through executive policy, lawful presence to
`large classes of people outside the INA (including
`visa requirements under 8 U.S.C. § 1201 et seq.), the
`
`3 A reason may also exist in the Privileges and Immunities
`
`Clause which only identifies “citizens” as having a right to such
`privileges and immunities as opposed to illegal aliens. U.S. Const.
`art. IV, § 2, cl. 1.
`
`
`
`14
`
`Constitution, or applicable international treaty law.
`As the Fifth Circuit held in Texas I: “In specific and
`detailed provisions, the INA expressly and carefully
`provides legal designations allowing defined classes
`of aliens to be lawfully present.” 809 F.3d at 179. The
`INA also specifies classes of aliens eligible and ineligi-
`ble for work authorization and visa issuance, requiring
`extensive inquiry and satisfaction of mandatory re-
`quirements. Id. at 180-81. Because the congressional
`scheme is comprehensive, DHS should not be allowed
`to sidestep or undermine it through unchecked poli-
`cies.
`
`The INA is also silent about the group of around
`
`4.3 million aliens identified under DACA and makes
`no mention or reference regarding deferred action with
`respect to this large group of otherwise removable al-
`iens. Deferred action under DACA amounts to much
`more than a mere decision not to pursue removal of an
`alien. Indeed, it is equivalent to declaring and confer-
`ring extra-constitutional and extra-statutory rights of
`lawful presence. The INA statutorily mandates bars
`for reentry based on unlawful presence, eligibility for
`advance parole, and eligibility for federal benefits.
`DACA disregards the statutory scheme. An agency
`cannot be left to legislate or create categories not con-
`templated by the legislation, especially when it fails to
`adhere to the required notice-and-comment proce-
`dures. United States v. Mead, 533 U.S. 218, 230 (2001)
`(“Congress contemplates administrative action with
`the effect of law when it provides for a relatively formal
`administrative procedure. . . .”).
`
`
`
`15
`
`Our Constitution also requires adherence to inter-
`
`national treaties and congressional approval of same
`as the “supreme Law of the Land.” U.S. Const. art. VI,
`cl. 2. DACA provides a clear mechanism to circumvent,
`obstruct, or inhibit removal and extradition under ap-
`plicable international treaties.4 DACA gives lawful
`status to illegal aliens and thus impedes statutorily
`mandated removal, extradition, and deportation. As
`found by the Fifth Circuit, “DACA prevents removal of
`its recipients—whom Congress has deemed remova-
`ble.” Texas v. United States, 328 F. Supp. 3d 662, 714
`(Texas II).
`
`Although not involving the APA, there is at least
`
`one example of a court invalidating an executive policy
`that conflicted with an existing comprehensive federal
`legal scheme. In 1995, President Bill Clinton issued
`Executive Order 12954 which prohibited the federal
`government from contracting with organizations that
`had strike-breakers on the payroll. 60 Fed. Reg. 13,023
`(Mar. 10, 1995). But because the policy conflicted with
`the express provisions of the National Labor Rela-
`tions Act, the reviewing court invalidated the policy.
`
`4 See, e.g., Extradition Treaty, Mexico-U.S., Jan. 25, 1980, 31
`
`U.S.T. 5059, art. 2; art. 9; art. 13 (“Extradition shall take place,
`subject to this Treaty, for willful acts which fall within any of the
`clauses of the Appendix and are punishable in accordance with
`the laws of both Contracting Parties. . . .
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