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`3Jn tbe �upretttt �ourt of tbe mlntteb �tates
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`UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS
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`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
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`v.
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`ON WRIT OF CERTIORARI
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`TO THE UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS
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`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.
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`v.
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`ON WRIT OF CERTIORARI BEFORE JUDGMENT
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`TO THE UNITED STATES COURT OF APPEALS
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`FOR THE D. C. CIRCUIT
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`KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND SECURITY, ET AL.,
`PETITIONERS
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`v.
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`MARTIN JONATHAN BATALLA VIDAL, ET AL.
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`ON WRIT OF CERTIORARI BEFORE JUDGMENT
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`TO THE UNITED STATES COURT OF APPEALS
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`FOR THE SECOND CIRCUIT
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`MOTION FOR LEAVE TOP ARTICIPATE IN ORAL ARGUMENT
`AND FOR EXPANDED ARGUMENT
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`1
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`Pursuant to Supreme Court Rules 28.4 and 28. 7, the State of Texas, on behalf of eleven
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`additional States and the Governor of Mississippi (collectively, the amici States), respect
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`fully requests that the Court expand the time allotted for oral argument to allow the under
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`signed ten minutes of argument time. This case implicates the amici States' interests in
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`bringing about an orderly end to DACA, an unlawful program that continues to inflict nu
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`merous harms on the amici States. As set out in the amici States' brief, those interests are
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`parallel to, yet distinct from, the interests of the United States. The amici States are
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`uniquely positioned to represent and defend their interests before this Court.
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`The United States neither consents to nor opposes the relief sought in this motion. Re
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`spondents declined to share their position with the amici States, indicating that they would
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`state their position in a separate motion.
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`*
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`*
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`*
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`As the parties admit, the cases now before the Court are a direct product of the amici
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`States' legal challenge against DACA. In 2017, a group of States led by Texas notified the
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`executive branch of the federal government that DACA is unlawful for the same reasons
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`that previously led the Fifth Circuit to declare (and this Court to affirm on an equally di
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`vided vote) that DAPA and Expanded DACA are unlawful. See Texas v. United States, 328
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`F. Supp. 3d 662, 685 (S.D. Tex. 2018). These States threatened to expand their existing
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`litigation to include DACA unless the Executive rescinded the program.
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`The Executive complied. It issued the September 2017 memorandum now before the
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`Court announcing DACA's rescission. The courts below enjoined DACA's rescission, forc
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`ing the States to file suit seeking a declaration that DACA was unlawful and an injunction
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`2
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`against its further application. The ongoing harms of DACA continue because of the orders
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`enjoining DACA's rescission presently before this Court.
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`The amici States' interests in the cases now before the Court are distinct from those of
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`the United States. The United States argues that DACA's rescission is both unreviewable
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`and, in any event, a permissible policy choice. The amici States, however, have established
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`through their own litigation that DACA is reviewable agency action, and that it is both pro
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`cedurally and substantively unlawful.
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`This case implicates vital questions about the separation of powers. The Court has re
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`peatedly recognized that the power to establish when aliens are lawfully present is "en
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`trusted exclusively to Congress," which has enacted "extensive and complex" statutes gov
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`erning (among other things) lawful presence. Arizona v. United States, 567 U.S. 387, 409
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`(2012) (quoting Galvan v. Press, 347 U.S. 522, 531 (1954)). Through DACA, the Executive
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`has attempted to skirt the bedrock requirements of bicameralism and presentment by
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`granting lawful presence, access to work authorization, and a host of other benefits to aliens
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`Congress has deemed ineligible. If the Court forces the Executive to maintain such a law
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`less program, it will have fundamentally and forever altered the manner in which immigra
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`tion policy is set in this country.
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`The effect of this Court's ruling will impact the amici States differently than the United
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`States. Respondents' arguments, if accepted, could mean that the Executive must maintain
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`DACA indefinitely if not in perpetuity. The States would continue to incur harm from
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`DACA by having to provide social services like healthcare, education, and law enforcement
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`to individuals whom Congress has declared unlawfully present, but to whom the Executive
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`3
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`has granted lawful presence. The States bear the costs of providing these services required
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`by federal law.
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`The Court has regularly allowed States to appear and present oral argument as amici
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`curiae when state-sovereignty issues are presented or when States have a valuable perspec
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`tive distinct from the petitioner or respondent. See, e.g., Gamble v. United States, 139 S. Ct.
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`1960 (2019) (granting leave to Texas); Sturgeon v. Frost, 136 S. Ct. 1061 (2019) (Alaska);
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`Tenn. Wine & Spirits Retailers Ass'n v. Byrd, 139 S. Ct. 2449 (2019) (Illinois); ONEOK,
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`Inc. v. Lear}et, Inc., 135 S. Ct. 1591 (2015) (Kansas); Kennedy v. Louisiana, 554 U.S. 407
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`(2008) (Texas); Leegin Creative Leather Prods. Inc. v. PSKS, Inc., 551 U.S. 877 (2007) (New
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`York); United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth. , 550 U.S. 330
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`(2007) (New York); Halbert v. Michigan, 125 S. Ct. 1822 (2005) (Louisiana); Clingman v.
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`Beaver, 125 S. Ct. 825 (2005) (South Dakota); Jackson v. Birmingham Bd. of Educ., 125 S.
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`Ct. 457 (2004) (Alabama); City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 901 (2004)
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`(Ohio); City of Burbank v. Lockheed Air Terminal, Inc. , 409 U.S. 1073 (1972) (California).
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`The Court should similarly allow the amici States to participate here.
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`The amici States respectfully submit that they can offer the Court a helpful perspective
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`that is distinct from that of the United States. They further submit that the Court's resolu
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`tion of this case would benefit from the amici States' participation at oral argument. See
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`Sup. Ct. R. 28.4. And no party would be prejudiced by the amici States' participation. N ei
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`ther the United States nor the respondents have expressed opposition or claimed that
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`Texas's participation would harm them. The amici States therefore respectfully request
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`that they be allotted ten minutes of argument time to advocate for the States' weighty in
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`terests in rescinding the unlawful DACA program.
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`4
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`CONCLUSION
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`The amici States respectfully request that the Court grant the motion to participate in
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`oral argument and allot ten minutes of argument time.
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`Respectfully submitted.
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`/44 /1 J/��:..J A�
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`E D. HAWKINS
`Solicitor General
`Counsel of Record
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`MATTHEW H. FREDERICK
`Deputy Solicitor General
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`ARI CUENIN
`LANORA C. PETTIT
`Assistant Solicitors General
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`Counsel for Amici Curiae
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`KEN PAXTON
`Attorney General of Texas
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`JEFFREY C. MATEER
`First Assistant
`Attorney General
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`OFFICE OF THE
`ATTORNEY GENERAL
`P.O. Box 12548 (MC 059)
`Austin, Texas 78711-2548
`[Tel.]: (512) 936-1700
`[Fax]: (512) 474-2697
`kyle.hawkins@oag. texas.gov
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`SEPTEMBER 2019
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`5
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