NOS. 18-587, 18-588, & 18-589
`
`3Jn tbe �upretttt �ourt of tbe mlntteb �tates
`
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`
`v.
`
`ON WRIT OF CERTIORARI
`
`TO THE UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS
`
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.
`
`v.
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`
`TO THE UNITED STATES COURT OF APPEALS
`
`FOR THE D. C. CIRCUIT
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND SECURITY, ET AL.,
`PETITIONERS
`
`v.
`
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`
`TO THE UNITED STATES COURT OF APPEALS
`
`FOR THE SECOND CIRCUIT
`
`MOTION FOR LEAVE TOP ARTICIPATE IN ORAL ARGUMENT
`AND FOR EXPANDED ARGUMENT
`
`1
`
`
`
`3Jn tbe �upretttt �ourt of tbe mlntteb �tates
`
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`
`v.
`
`ON WRIT OF CERTIORARI
`
`TO THE UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS
`
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.
`
`v.
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`
`TO THE UNITED STATES COURT OF APPEALS
`
`FOR THE D. C. CIRCUIT
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND SECURITY, ET AL.,
`PETITIONERS
`
`v.
`
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`
`TO THE UNITED STATES COURT OF APPEALS
`
`FOR THE SECOND CIRCUIT
`
`MOTION FOR LEAVE TOP ARTICIPATE IN ORAL ARGUMENT
`AND FOR EXPANDED ARGUMENT
`
`1
`
`
`
`Pursuant to Supreme Court Rules 28.4 and 28. 7, the State of Texas, on behalf of eleven
`
`additional States and the Governor of Mississippi (collectively, the amici States), respect
`
`fully requests that the Court expand the time allotted for oral argument to allow the under
`
`signed ten minutes of argument time. This case implicates the amici States' interests in
`
`bringing about an orderly end to DACA, an unlawful program that continues to inflict nu
`
`merous harms on the amici States. As set out in the amici States' brief, those interests are
`
`parallel to, yet distinct from, the interests of the United States. The amici States are
`
`uniquely positioned to represent and defend their interests before this Court.
`
`The United States neither consents to nor opposes the relief sought in this motion. Re
`
`spondents declined to share their position with the amici States, indicating that they would
`
`state their position in a separate motion.
`
`*
`
`*
`
`*
`
`As the parties admit, the cases now before the Court are a direct product of the amici
`
`States' legal challenge against DACA. In 2017, a group of States led by Texas notified the
`
`executive branch of the federal government that DACA is unlawful for the same reasons
`
`that previously led the Fifth Circuit to declare (and this Court to affirm on an equally di
`
`vided vote) that DAPA and Expanded DACA are unlawful. See Texas v. United States, 328
`
`F. Supp. 3d 662, 685 (S.D. Tex. 2018). These States threatened to expand their existing
`
`litigation to include DACA unless the Executive rescinded the program.
`
`The Executive complied. It issued the September 2017 memorandum now before the
`
`Court announcing DACA's rescission. The courts below enjoined DACA's rescission, forc
`
`ing the States to file suit seeking a declaration that DACA was unlawful and an injunction
`
`2
`
`
`
`against its further application. The ongoing harms of DACA continue because of the orders
`
`enjoining DACA's rescission presently before this Court.
`
`The amici States' interests in the cases now before the Court are distinct from those of
`
`the United States. The United States argues that DACA's rescission is both unreviewable
`
`and, in any event, a permissible policy choice. The amici States, however, have established
`
`through their own litigation that DACA is reviewable agency action, and that it is both pro
`
`cedurally and substantively unlawful.
`
`This case implicates vital questions about the separation of powers. The Court has re
`
`peatedly recognized that the power to establish when aliens are lawfully present is "en
`
`trusted exclusively to Congress," which has enacted "extensive and complex" statutes gov
`
`erning (among other things) lawful presence. Arizona v. United States, 567 U.S. 387, 409
`
`(2012) (quoting Galvan v. Press, 347 U.S. 522, 531 (1954)). Through DACA, the Executive
`
`has attempted to skirt the bedrock requirements of bicameralism and presentment by
`
`granting lawful presence, access to work authorization, and a host of other benefits to aliens
`
`Congress has deemed ineligible. If the Court forces the Executive to maintain such a law
`
`less program, it will have fundamentally and forever altered the manner in which immigra
`
`tion policy is set in this country.
`
`The effect of this Court's ruling will impact the amici States differently than the United
`
`States. Respondents' arguments, if accepted, could mean that the Executive must maintain
`
`DACA indefinitely if not in perpetuity. The States would continue to incur harm from
`
`DACA by having to provide social services like healthcare, education, and law enforcement
`
`to individuals whom Congress has declared unlawfully present, but to whom the Executive
`
`3
`
`
`
`has granted lawful presence. The States bear the costs of providing these services required
`
`by federal law.
`
`The Court has regularly allowed States to appear and present oral argument as amici
`
`curiae when state-sovereignty issues are presented or when States have a valuable perspec
`
`tive distinct from the petitioner or respondent. See, e.g., Gamble v. United States, 139 S. Ct.
`
`1960 (2019) (granting leave to Texas); Sturgeon v. Frost, 136 S. Ct. 1061 (2019) (Alaska);
`
`Tenn. Wine & Spirits Retailers Ass'n v. Byrd, 139 S. Ct. 2449 (2019) (Illinois); ONEOK,
`
`Inc. v. Lear}et, Inc., 135 S. Ct. 1591 (2015) (Kansas); Kennedy v. Louisiana, 554 U.S. 407
`
`(2008) (Texas); Leegin Creative Leather Prods. Inc. v. PSKS, Inc., 551 U.S. 877 (2007) (New
`
`York); United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth. , 550 U.S. 330
`
`(2007) (New York); Halbert v. Michigan, 125 S. Ct. 1822 (2005) (Louisiana); Clingman v.
`
`Beaver, 125 S. Ct. 825 (2005) (South Dakota); Jackson v. Birmingham Bd. of Educ., 125 S.
`
`Ct. 457 (2004) (Alabama); City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 901 (2004)
`
`(Ohio); City of Burbank v. Lockheed Air Terminal, Inc. , 409 U.S. 1073 (1972) (California).
`
`The Court should similarly allow the amici States to participate here.
`
`The amici States respectfully submit that they can offer the Court a helpful perspective
`
`that is distinct from that of the United States. They further submit that the Court's resolu
`
`tion of this case would benefit from the amici States' participation at oral argument. See
`
`Sup. Ct. R. 28.4. And no party would be prejudiced by the amici States' participation. N ei
`
`ther the United States nor the respondents have expressed opposition or claimed that
`
`Texas's participation would harm them. The amici States therefore respectfully request
`
`that they be allotted ten minutes of argument time to advocate for the States' weighty in
`
`terests in rescinding the unlawful DACA program.
`
`4
`
`
`
`CONCLUSION
`
`The amici States respectfully request that the Court grant the motion to participate in
`
`oral argument and allot ten minutes of argument time.
`
`Respectfully submitted.
`
`/44 /1 J/��:..J A�
`
`E D. HAWKINS
`Solicitor General
`Counsel of Record
`
`MATTHEW H. FREDERICK
`Deputy Solicitor General
`
`ARI CUENIN
`LANORA C. PETTIT
`Assistant Solicitors General
`
`Counsel for Amici Curiae
`
`KEN PAXTON
`Attorney General of Texas
`
`JEFFREY C. MATEER
`First Assistant
`Attorney General
`
`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
`
`SEPTEMBER 2019
`
`5
`
`
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