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`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 FOR THE STATES OF NEW YORK, MASSACHUSETTS,
`WASHINGTON, COLORADO, CONNECTICUT, DELAWARE,
`HAWAI‘I, ILLINOIS, IOWA, NEW MEXICO, NORTH CAROLINA,
`OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, AND
`VIRGINIA, AND THE DISTRICT OF COLUMBIA,
`RESPONDENTS IN NO. 18-589
`
`
`LETITIA JAMES
` Attorney General of New York
`BARBARA D. UNDERWOOD*
` Solicitor General
`ANISHA S. DASGUPTA
` Deputy Solicitor General
`ANDREW W. AMEND
` Assistant Deputy Solicitor General
`DAVID S. FRANKEL
` Assistant Solicitor General
`28 Liberty Street
`New York, New York 10005
`(212) 416-8020
`barbara.underwood@ag.ny.gov
`*Counsel of Record
`
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`
`
`(Additional counsel on signature pages)
`
`
`
`
`
`i
`
`COUNTERSTATEMENT OF
`QUESTIONS PRESENTED
`1. Whether petitioners’ September 2017 decision
`to terminate Deferred Action for Childhood Arrivals
`(DACA) is judicially reviewable.
`2. Whether petitioners’ decision to terminate
`DACA was lawful.
`
`
`
`
`
`
`
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`Page
`INTRODUCTION ........................................................ 1
`STATEMENT .............................................................. 3
`A. Factual Background .................................... 3
`1. Deferred Action for Childhood
`Arrivals (DACA) ..................................... 3
`2. Defendants’ Termination of DACA ....... 7
`B. Procedural Background ............................. 10
`1. This suit in the Eastern District
`of New York .......................................... 10
`2. Parallel proceedings in other federal
`courts .................................................... 11
`SUMMARY OF ARGUMENT ................................... 13
`ARGUMENT .............................................................. 16
`I. The Termination of DACA Is Judicially
`Reviewable. ....................................................... 16
`A. Petitioners Chose to Base the Termination
`Solely on a Legal Conclusion About Their
`Authority. ................................................... 17
`1. Petitioners expressly rested the
`termination on a conclusion that DACA
`was unlawful. ....................................... 17
`2. Petitioners cannot retroactively inject
`new considerations into their
`termination decision. ........................... 20
`B. The APA Permits Review of an Agency’s
`Conclusion that Its Authorizing Statutes
`Forbid a Particular Action. ....................... 22
`
`
`
`
`
`iii
`
`Page
`
`1. An agency’s determination about
`the limits of its authority is not a
`discretionary non-enforcement
`decision. ................................................ 23
`2. Petitioners misconstrue Brotherhood
`of Locomotive Engineers. ...................... 26
`3. 8 U.S.C. § 1252(g) does not bar
`review here. .......................................... 29
`II. Petitioners’ Termination of DACA Was
`Arbitrary and Capricious. ................................ 30
`A. Petitioners’ Asserted Conclusion That
`DACA Was Illegal Rested on
`Substantial Errors of Fact and Law. ........ 31
`1. Petitioners erroneously assumed that
`DACA prevented agency officials from
`exercising discretion. ........................... 31
`2. Petitioners purported to rely on
`the holding of a case that contained
`no such holding. ................................... 34
`B. Petitioners’ Evaluation of DACA
`Omitted Essential Factors. ....................... 35
`1. Petitioners failed to address
`significant differences between
`DACA and DAPA. ................................ 36
`2. Petitioners failed to explain their
`change in position or to consider the
`significant interests affected. .............. 39
`C. Petitioners’ Defective Legal Analysis
`Led to a Flawed Legal Conclusion. ........... 43
`
`
`
`
`
`iv
`
`Page
`D. This Court Cannot Uphold Petitioners’
`Justifications for the Termination
`Without a Full Administrative Record. .... 51
`III. The States Have Sufficiently Stated
`an Equal Protection Claim. ............................. 53
`CONCLUSION .......................................................... 57
`
`
`
`
`
`
`
`
`
`v
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Arizona Dream Act Coal. v. Brewer, 855 F.3d
`957 (9th Cir. 2017) ................................................. 4
`Arizona v. United States, 567 U.S. 387 (2012) ... 38,44,50
`Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) ......... 6
`AT&T Info. Sys., Inc. v. General Servs. Admin.,
`810 F.2d 1233 (D.C. Cir. 1987) ............................ 20
`Bowen v. Michigan Acad. of Family Physicians,
`476 U.S. 667 (1986) .............................................. 22
`Camp v. Pitts, 411 U.S. 138 (1973) ........................... 20
`Casa de Md. v. U.S. Dep’t of Homeland Security,
`924 F.3d 684 (4th Cir. 2019) ..................... 13,19,20
`Citizens to Preserve Overton Park, Inc. v. Volpe,
`401 U.S. 402 (1971) .............................................. 23
`Crowley Caribbean Transp., Inc. v. Pena, 37
`F.3d 671 (D.C. Cir. 1994) ..................................... 29
`Department of Commerce v. New York, 139 S.
`Ct. 2551 (2019) ............................................. passim
`Department of Transp. v. Association of Am.
`R.R., 135 S. Ct. 1225 (2015) ................................. 26
`Encino Motorcars, LLC v. Navarro, 136 S. Ct.
`2117 (2016) ...................................................... 40,41
`FCC v. Fox Television Stations, 556 U.S. 502
`(2009) ............................................................... 25,40
`Food Mktg. Inst. v. Interstate Commerce
`Comm’n, 587 F.2d 1285 (D.C. Cir. 1978) ............. 22
`Heckler v. Chaney, 470 U.S. 821 (1985) ............ passim
`In re United States, 138 S. Ct. 443 (2017) ................ 52
`INS v. St. Cyr, 533 U.S. 289 (2001) .......................... 22
`
`
`
`
`
`vi
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`Page(s)
`
`Cases
`Interstate Commerce Commission v.
`Brotherhood of Locomotive Engineers, 482
`U.S. 270 (1987) ................................................ 27,28
`Jama v. Immigration & Customs Enf’t, 543 U.S.
`335 (2005) ............................................................. 44
`Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ........... 30
`Judulang v. Holder, 565 U.S. 42 (2011) ................... 28
`United States ex rel. Knauff v. Shaughnessy, 338
`U.S. 537 (1950) ..................................................... 44
`Kucana v. Holder, 558 U.S. 233 (2010) ..................... 22
`Lennon v. INS, 527 F.2d 187 (1975) ......................... 46
`Mach Mining, LLC v. EEOC, 135 S. Ct. 1645
`(2015) .................................................................... 26
`Martin v. Occupational Safety & Health Review
`Commission, 499 U.S. 144 (1991) ........................ 21
`Massachusetts v. EPA, 549 U.S. 497 (2007) ............. 28
`Montana Air Chapter No. 29, Ass’n of Civilian
`Technicians, Inc. v. Federal Labor Relations
`Auth., 898 F.2d 753 (9th Cir. 1990) ..................... 29
`Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
`Auto. Ins. Co., 463 U.S. 29 (1983) ............... passim
`NAACP v. Trump, 321 F. Supp. 3d 143 (D.D.C.
`2018) ................................................................ 12,13
`Reno v. American-Arab Anti-Discrimination
`Comm. (AADC), 525 U.S. 471 (1999) ........... passim
`SEC v. Chenery Corp., 318 U.S. 80 (1943) ........... 21,35
`Staub v. Proctor Hosp., 562 U.S. 411 (2011) ............ 56
`Texas v. United States, 328 F. Supp. 3d 662
`(S.D. Tex. 2018) ............................................... 32,33
`
`
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`
`vii
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`Page(s)
`Cases
`Texas v. United States, 809 F.3d 134 (5th Cir.
`2015) ............................................................. passim
`Village of Arlington Heights v. Metropolitan
`Hous. Dev. Corp., 429 U.S. 252 (1977) ........... 53,54
`Walter O. Boswell Mem’l Hosp. v. Heckler, 749
`F.2d 788 (D.C. Cir. 1984) ..................................... 51
`Weyerhaeuser Co. v. United States Fish &
`Wildlife Serv., 139 S. Ct. 361 (2018) .......... 16,23,24
`Winter v. Natural Resources Def. Council, Inc.,
`555 U.S. 7 (2008) .................................................. 30
`Laws
`5 U.S.C. § 701(a)(2) ............................................ passim
`6 U.S.C. § 202(5) ................................................... 45,50
`8 U.S.C.
`§ 1103(a)(1) ................................................. 17,35,45
`§ 1154 ...................................................................... 4
`§ 1182(a)(9)(B)(iii)(I) ............................................ 38
`§ 1252 ............................................................... 10,30
`§ 1324a(h)(3) ................................................. 4,47,50
`§ 1611(b)(2) ........................................................... 47
`DHS Appropriations Act, 2010, Pub. L. No. 111-
`83, 123 Stat. 2142 (2009) ....................................... 5
`DHS Appropriations Act, 2015 Pub. L. No. 114-
`4, 129 Stat. 39 (2015) ............................................. 5
`Regulations
`8 C.F.R. § 1.3(a)(4)(vi) ............................................... 47
`8 C.F.R. § 274a.12(c)(14) ........................................ 3,46
`44 Fed. Reg. 10,369 (Feb. 20, 1979) .......................... 47
`46 Fed. Reg. 25,079 (May 5, 1981) ............................ 47
`
`
`
`
`
`viii
`
`Page(s)
`Miscellaneous Authorities
`David A. Graham, Trump Says Democrats Want
`Immigrants to Infest the U.S., The Atlantic
`(Jun. 19, 2018), https://tinyurl.com/yarcu95m .... 55
`H.R. Rep. No. 111-157 (2009) ...................................... 5
`Julie Hirschfeld Davis, Trump Calls Some
`Unauthorized Immigrants ‘Animals’ in Rant,
`N.Y. Times (May 16, 2018),
`https://tinyurl.com/ybl97zr6 ................................ 55
`New Oxford American Dictionary (3d ed. 2010) ...... 18
`Sam Bernsen, INS Gen. Counsel, Leave to
`Labor, 52 No. 35 Interpreter Releases 291
`(Sep. 1975) ............................................................ 47
`See U.S. Citizenship & Immigration Servs.,
`Number of Form I-821-D, Consideration of
`Deferred Action for Childhood Arrivals by
`Fiscal Year, Quarter, Intake and Case
`Status, Fiscal Year 2012-2017 (Sept. 30,
`2017), https://tinyurl.com/y87kbxrq ...................... 7
`U.S. Citizenship & Immigration Servs.,
`Approximate Active DACA Recipients (Aug.
`31, 2018), https://tinyurl.com/y2zd8odn ................ 6
`
`
`
`
`
`INTRODUCTION
`In September 2017, the Acting Secretary of the
`Department of Homeland Security (DHS) and the
`Attorney General (who are petitioners here) announced
`that Deferred Action for Childhood Arrivals (DACA)
`was unlawful and was being terminated. DACA is a
`framework for processing requests for deferred
`action—a form of discretionary forbearance from
`removal—for certain persons who arrived in the
`United States as children.
`The decision to terminate DACA was a dramatic
`policy reversal that threatened devastating conse-
`quences for hundreds of thousands of people, and
`serious harm to many thousands of employers and the
`economies and institutions of every State. Yet
`petitioners offered just one cursory paragraph to justify
`their legal conclusion. That paragraph contained a
`demonstrably incorrect factual assumption and a
`glaring misstatement of law. Moreover, the proffered
`administrative record, if taken at face value, reveals
`that petitioners did not undertake even a basic
`investigation of whether DACA operated in the way
`they assumed. At every turn, petitioners failed to meet
`the basic requirements of rational decisionmaking.
`And because petitioners asserted that the law gave
`them no discretion to retain DACA, they cannot now
`evade judicial review by arguing that the termination
`was committed to their discretion by law.
`
`
`
`
`
`2
`As governments themselves, the state respondents
`here (“States”)1 well understand that a new adminis-
`tration needs latitude to change discretionary policies.
`But the States also understand that there are
`consequences to how a new administration makes
`those changes. Although petitioners could have chosen
`to terminate DACA as a discretionary policy decision,
`they chose instead to declare that the law compelled
`the termination. Petitioners’ decision to proceed based
`on a pronouncement about what the law required
`takes their action out of the realm of unreviewable
`enforcement discretion and into the realm of judicial
`review. “[A]n official cannot claim that the law ties her
`hands while at the same time denying the courts’
`power to unbind her. She may escape political
`accountability or judicial review, but not both.”
`(NAACP Pet. App. 73a.)
`The States filed suit in the Eastern District of New
`York to hold petitioners accountable for the insuffi-
`ciently and incorrectly reasoned determination that
`DACA was unlawful, and to protect the States’
`residents, institutions, fiscs, and economies from the
`harm threatened by the federal government’s termi-
`nation decision. Since 2012, well over 150,000 residents
`of our States have used DACA to obtain deferred
`action. Those individuals have come out of the
`shadows and become productive members of their
`communities in the only country many have known as
`home. In deciding to terminate DACA, petitioners
`
`
`1 The state respondent coalition here includes the States of
`New York, Massachusetts, Washington, Colorado, Connecticut,
`Delaware, Hawai‘i, Illinois, Iowa, New Mexico, North Carolina,
`Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia, and
`the District of Columbia.
`
`
`
`
`
`3
`ignored the many ways in which individuals, families,
`institutions, and States have relied on the policy; and
`petitioners ignored the reasoning of a prior Secretary
`and Attorney General who concluded that DACA was
`lawful. Petitioners’ legal determination is reviewable,
`it is arbitrary and capricious, and it should be vacated.
`
` STATEMENT
`A. Factual Background
`1. Deferred Action for Childhood
`Arrivals (DACA)
`There are many more undocumented immigrants
`in the United States than federal immigration
`authorities have the means to remove. To focus
`enforcement resources, DHS and its predecessors have
`a longstanding practice of “giv[ing] some cases lower
`priority” by “grant[ing] deferred action.” 8 C.F.R.
`§ 274a.12(c)(14). A grant
`of deferred action
`memorializes the Executive’s decision not to proceed
`against a potentially removable person for a specified
`period of time. Reno v. American-Arab Anti-
`Discrimination Comm. (AADC), 525 U.S. 471, 484
`(1999). Under federal regulations that have been in
`place for decades, deferred action recipients may apply
`for privileges like work authorization. See 8 C.F.R.
`§ 274a.12(c)(14) (work authorization). (Joint App’x
`(J.A.) 797, 799 (memorandum of the U.S. Department
`of Justice, Office of Legal Counsel (OLC) (“OLC
`Mem.”).)
`Deferred action has been “a regular practice” of
`the Executive Branch for decades, “for humanitarian
`reasons or simply for its own convenience.” AADC,
`525 U.S. at 483-84. The Supreme Court has approved
`
`
`
`
`
`4
`the practice, id., and Congress has both recognized the
`existence of deferred action and confirmed the DHS
`Secretary’s authority to make deferred action recipi-
`ents eligible for work authorization, see 8 U.S.C.
`§ 1154 (deferred action); 8 U.S.C. § 1324a(h)(3) (work
`authorization).
`On various occasions since the 1950s, DHS and its
`predecessors have found it expedient to make deferred
`action and similar forms of discretionary relief from
`removal “available to certain classes of aliens.” (J.A.
`822 (OLC Mem.).) Past policies of this type include the
`1977 Silva Letterholders program, under which
`250,000 nationals of certain countries obtained stays
`of removal. Arizona Dream Act Coal. v. Brewer, 855
`F.3d 957, 968 n.2 (9th Cir. 2017), cert. denied, 138 S.
`Ct. 1279 (2018). Similarly, the Family Fairness
`Program
`introduced
`under
`the
`Reagan
`administration—and expanded under the first Bush
`administration—“deferred the deportation of 1.5
`million family members of noncitizens who were
`legalized through the Immigration Reform and
`Control Act.” Id.
`In June 2012, DHS announced that it was creating
`DACA to provide a channel for processing deferred
`action requests from persons who arrived in the
`United States as children and met certain other
`threshold eligibility criteria. (Regents Pet. App. 97a-
`101a.) DHS explained that DACA was intended to
`help DHS “ensure that [its] enforcement resources”
`are expended on the serious criminals that Congress
`
`
`
`
`
`5
`directed DHS to prioritize for removal,2 rather than on
`“low priority cases.” (Regents Pet. App. 98a.)
`To be eligible for DACA, a person must have
`arrived in the United States under the age of sixteen,
`continuously resided here between 2007 and 2012, not
`yet attained the age of thirty, and satisfied certain
`educational or military service requirements. The
`person must not have been convicted of a felony, a
`significant misdemeanor, or multiple misdemeanors,
`and must not otherwise pose a threat to national
`security or public safety. (Regents Pet. App. 98a.) As
`DHS explained when announcing the DACA policy,
`“prosecutorial discretion” is “especially justified” with
`respect to such people, many of whom “have already
`contributed to our country in significant ways.”
`(Regents Pet. App. 99a.) The memorandum emphasized,
`however, that no individual could receive deferred
`action through DACA without first passing a back-
`ground check, and that all DACA requests “are to be
`decided on a case by case basis.” (Regents Pet. App.
`99a.) Individuals granted deferred action under DACA
`receive forbearance from removal for renewable two-
`year periods revocable at any time. Under pre-existing
`statutory and regulatory provisions, DACA recipients
`may apply for work authorization and for permission
`to travel outside the country (“advance parole”). (See
`Regents Pet. App. 100a-101a.)
`From June 2012 until September 2017, about
`800,000 individuals relied on DACA to obtain deferred
`
`2 See, e.g., DHS Appropriations Act 2010, Pub. L. No. 111-83,
`123 Stat. 2142 (2009); H.R. Rep. No. 111-157, at 8 (2009); see also
`DHS Appropriations Act, 2015, Pub. L. No. 114-4, 129 Stat. 39,
`43 (2015).
`
`
`
`
`
`6
`action and employment authorization; in September
`2017, there were about 700,000 active recipients,
`including over 150,000 residents of the States.3 DACA
`enabled these recipients to pursue higher education,
`secure employment, and create and run businesses.
`(Batalla Vidal CA2 J.A. 2129-2213.) It enabled the
`States to employ DACA recipients with special skills,
`tax the recipients’ income and purchases, and collect
`tuition from recipients enrolled at public colleges and
`universities. (Batalla Vidal CA2 J.A. 2239-2258, 2266-
`2298, 3754-3757, 3774-3794, 3956-3965.)
`Several legal challenges to DACA were brought
`before September 2017, and all failed. In each case,
`the federal government defended the legality of the
`policy, including through amicus curiae participation.
`See, e.g., Arpaio v. Obama, 797 F.3d 11 (D.C. Cir.
`2015); Br. for United States as Amicus Curiae,
`Arizona Dream Act Coal. v. Brewer, No. 15-15307 (9th
`Cir. Aug. 28, 2015), ECF No. 62. OLC likewise
`explained in a published opinion that DACA was
`legally sound so
`long as
`immigration officials
`“retained discretion to evaluate each application on an
`individualized basis.” (J.A. 827 n.8.)
`In 2015, Texas and several other States brought a
`suit challenging DHS’s decision to create a new
`deferred action policy (Deferred Action for Parents of
`Americans and Lawful Permanent Residents (DAPA))
`and to make certain changes to DACA. See Texas v.
`United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an
`equally divided court, 136 S. Ct. 2271 (2016) (per
`curiam). The Texas district court entered a preliminary
`
`3 (See NAACP Pet. App. 5a; J.A. 996, 998.) See also U.S.
`Citizenship & Immigration Servs., Approximate Active DACA
`Recipients (Aug. 31, 2018).
`
`
`
`
`
`7
`injunction enjoining the implementation of DAPA and
`the changes to DACA—neither of which had yet gone
`into effect—based on its conclusion that the plaintiffs
`were likely to succeed on the procedural claim they
`brought under the Administrative Procedure Act
`(APA). A divided panel of the Fifth Circuit affirmed on
`both procedural and substantive APA grounds. 809
`F.3d at 146. Neither court addressed the Texas
`plaintiffs’
`constitutional
`claims. This Court
`summarily affirmed by an equally divided court. 136
`S. Ct. 2271.
`The federal government maintained DACA after
`the preliminary injunction against DAPA, and into the
`new administration, continuing to accept more than
`400,000 new and renewal DACA applications.4 In
`February 2017, DHS rescinded certain other
`immigration policies, but expressly left DAPA and
`DACA intact. (J.A. 857.) In mid-June 2017, DHS
`rescinded DAPA, which had never gone into effect due
`to the injunction; DHS again expressly declined to
`disturb DACA. (J.A. 868.)
`
`2. Defendants’ Termination of DACA
`In late June 2017, the Texas plaintiffs wrote to
`Attorney General Sessions stating that they would
`amend the complaint in their still-pending DAPA case
`to include a challenge to DACA unless the federal
`government agreed by September 5 to rescind DACA.
`(J.A. 872-874.) The agency officials tasked with
`determining the fate of DACA decided in an August
`
`4 See U.S. Citizenship & Immigration Servs., Number of
`Form I-821-D, Consideration of Deferred Action for Childhood
`Arrivals by Fiscal Year, Quarter, Intake and Case Status, Fiscal
`Year 2012-2017 (Sept. 30, 2017).
`
`
`
`
`
`8
`24, 2017 meeting that DACA “is unlawful and will be
`ended”; they agreed that “DOJ will send a memoran-
`dum to DHS outlining the legal reasons the DACA
`program is unlawful,” after which DHS would end the
`program. Principals Comm., Summary of Conclusions
`(filed in Make the Road N.Y. v. United States DHS, No.
`18-cv-2445 (E.D.N.Y. Aug. 14, 2019), ECF No. 63-1, at
`209).
`On September 4, Attorney General Sessions sent
`a four-paragraph letter to the Acting Secretary of
`DHS, Elaine Duke, advising that DHS “should
`rescind” DACA because DACA lacked “statutory
`authority,” was “unconstitutional,” and had been
`implemented “after Congress’ repeated rejection of
`proposed legislation that would have accomplished a
`similar result.” (J.A. 877.) The Attorney General’s
`legal analysis consisted of a single paragraph in which
`he asserted that DACA “has the same legal and consti-
`tutional defects that the courts recognized as to
`DAPA,” and would likely meet the same fate in the
`“potentially imminent litigation” threatened by the
`Texas plaintiffs. (J.A. 878.) The Attorney General
`advised that “[i]n light of the costs and burdens that
`will be imposed on DHS” in implementing a rescission,
`“DHS should consider an orderly and efficient wind-
`down process.” (J.A. 878.) The letter did not describe
`the basis for any of those conclusions beyond a general
`citation to the Texas opinions, which did not consider
`DAPA’s constitutionality and recognized significant
`distinctions between DAPA and DACA. See Texas, 809
`F.3d at 172-74.
`On September 5, Attorney General Sessions
`announced the termination of DACA at a press
`conference, and Acting Secretary Duke issued a
`memorandum formally terminating DACA. (J.A. 999-
`
`
`
`
`
`9
`1004; Regents Pet. App. 111a-119a.) The termination
`memorandum quoted
`the Attorney General’s
`September 4 letter and then stated that “[t]aking into
`consideration the Supreme Court’s and the Fifth
`Circuit’s rulings” and the Attorney General’s letter, “it
`is clear” that DACA should be terminated. (Regents
`Pet. App. 117a.) Like the Attorney General’s letter, the
`Acting Secretary’s memorandum did not address or
`acknowledge the reasons that DHS and the U.S.
`Department of Justice (DOJ) had previously given to
`the public for concluding that DACA was lawful, the
`benefits of DACA, or the myriad costs and harms that
`terminating DACA would inflict on recipients and the
`public. The only potential costs that the Acting
`Secretary’s memorandum mentioned were
`the
`unspecified “administrative complexities” referenced
`by the Sessions letter. (Regents Pet. App. 116a.)
`Moreover, although Acting Secretary Duke stated that
`she had been unable to identify any instances of her
`agency denying a DACA application on discretionary
`grounds, petitioners now admit that DHS does exercise
`case-specific discretion in determining whether to
`grant a DACA request from an applicant who meets
`the threshold criteria. (Regents Pet. App. 112a-113a
`n.1; J.A. 1010.) (See infra at 32-33.)
`In the termination memorandum, the Acting
`Secretary announced that DHS would reject all new
`DACA applications “filed after the date of this
`memorandum,” and would accept renewal applications
`only until October 5, and only from individuals whose
`current deferred action status would expire on or
`before March 5, 2018. (Regents Pet. App. 117a-118a.)
`
`
`
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`B. Procedural Background
`1. This suit in the Eastern District
`of New York
`Sixteen States and the District of Columbia filed
`this suit in the United States District Court for the
`Eastern District of New York on September 7, 2017,
`alleging (among other things) that the termination of
`DACA was arbitrary and capricious under the APA,
`and violated equal protection under the Fifth
`Amendment’s Due Process Clause. (See J.A. 782, 784.)
`Petitioners proffered an extremely limited adminis-
`trative record to the district court, consisting solely of
`the “materials that [they] unilaterally decide[d] to
`present to the court, rather than the record upon
`which the agency made its decision.” Order at 2, In re
`Nielsen, No. 17-3345 (2d Cir. Dec. 27, 2017), ECF No.
`171. The district court found the record incomplete,
`but on petitioners’ request for a writ of mandamus, the
`court of appeals stayed petitioners’ document-
`production obligations pending the district court’s
`resolution of “issues of jurisdiction and justiciability.”
`Order, In re Duke, No. 17-3345 (2d Cir. Oct. 24, 2017),
`ECF No. 41.
`The district court then rejected petitioners’
`arguments that judicial review was barred by either
`the APA, 5 U.S.C. § 701(a)(2), or the Immigration and
`Nationality Act (INA), 8 U.S.C. § 1252(g). The court
`determined that the States had standing to challenge
`the termination of DACA based on their proprietary
`interests as employers of DACA recipients and as
`operators of state-run colleges and universities that
`employed and enrolled DACA recipients. (Batalla
`Vidal Pet. App. 46a-49a.)
`
`
`
`
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`11
`In February 2018, the district court entered a
`preliminary
`injunction requiring petitioners
`to
`continue processing DACA renewal applications based
`on its determination that petitioners’ decision to termi-
`nate DACA was likely arbitrary and capricious, and
`that the other preliminary injunction factors weighed
`strongly in respondents’ favor. (See Batalla Vidal Pet.
`App. 126a.) The district court concluded that the
`termination would irreparably harm the States as
`employers and providers of public benefits (Batalla
`Vidal Pet. App. 121a-122a), and that a nationwide
`injunction was warranted to fully protect the state
`parties, who employed and admitted persons across
`the country into their “public hospitals, schools, and
`universities” (Batalla Vidal Pet. App. 128a).
`2. Parallel proceedings in
`other federal courts
`Concurrently with this suit, three other plaintiff
`groups have been
`litigating challenges to the
`termination of DACA in other federal courts. In
`Regents of the University of California v. U.S.
`Department of Homeland Security, a coalition
`including individuals, state and local governments,
`and the University of California challenged the
`termination of DACA in the Northern District of
`California. That district court reached conclusions
`similar to those of the district court in Batalla Vidal:
`it identified the same administrative record as
`deficient, rejected petitioners’ threshold arguments
`that would bar review, determined
`that
`the
`termination likely violated the APA, and issued a
`preliminary injunction that is coextensive with the
`New York court’s preliminary injunction. (Regents
`Pet. App. 25a-26a, 41a-42a, 66a.) On appeal, the Ninth
`
`
`
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`12
`Circuit affirmed that preliminary injunction, holding
`that petitioners violated the APA in terminating
`DACA based on “an erroneous view of what the law
`required.” (Regents Supp. Pet. App. 57a.)
`In NAACP v. Trump, a plaintiff coalition including
`NAACP, Microsoft, and Princeton University
`challenged the termination of DACA in the District of
`Columbia. Like the district court here, the D.C.
`district court determined that defendants’ September
`2017 termination of DACA was “reviewable and
`unlawful because it was based chiefly on a ‘virtually
`unexplained’ conclusion that DACA was unlawful.”
`NAACP, 321 F. Supp. 3d 143, 147 (D.D.C. 2018). (See
`NAACP Pet. App. 73a). Rather than immediately
`vacate the flawed action, the district court stayed the
`decision to allow DHS ninety days to “better explain
`its view that DACA is unlawful,” or to “issue[] a new
`decision rescinding DACA.” (NAACP Pet. App. 74a,
`76a). DHS chose to write an explanatory memoran-
`dum rather than to issue a new decision, and in June
`2018, Secretary Kirstjen Nielsen (Acting Secretary
`Duke’s successor) submitted to the court a short
`memorandum that “reflect[ed Nielsen’s] under-
`standing of the Duke memorandum.” (Regents Pet.
`App. 121a.) Noting that like her predecessor she was
`statutorily “bound by” the Attorney General’s earlier
`conclusion that DACA was unlawful, Secretary
`Nielsen declared that she “concur[red] with and
`decline[d] to disturb” Acting Secretary Duke’s decision.
`(Regents Pet. App. 122a, 123a, 126a.) The D.C. district
`court held that the new memorandum failed to cure
`the defects in the termination decision, because
`although Secretary Nielsen’s memorandum “purports
`to offer further explanation for DHS’s decision to
`rescind DACA, it fails to elaborate meaningfully on
`
`
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`13
`the agency’s primary rationale for its decision: the
`judgment that the policy was unlawful and unconsti-
`tutional.” (NAACP Pet. App. 81a.) The district court
`issued final judgment in plaintiffs’ favor on the APA
`claims, but stayed pending appeal the aspects of its
`decision mandating broader relief than the injunctions
`in New York and California. NAACP, 321 F. Supp. 3d
`at 147. The court did not reach the constitutional
`claims.
`Another plaintiff group challenged the termination
`of DACA in district court in Maryland. After the
`district court declined to enjoin the termination of
`DACA, the Fourth Circuit reversed, holding that the
`termination decision was reviewable and vacating it
`as unlawful under the APA. Casa de Md. v. U.S. Dep’t
`of Homeland Security, 924 F.3d 684, 706 (4th Cir.
`2019).
`On June 28, 2019, this Court granted certiorari in
`Regents, and granted certiorari before judgment in
`Batalla Vidal and NAACP, where the Second and D.C.
`Circuits had heard oral argument on petitioners’
`appeals, but had not yet ruled. The Court consolidated
`these three actions here. The federal government’s
`petition for certiorari in Casa de Maryland (No. 18-
`1469), filed well after the other three petitions, is still
`pending.
`
`SUMMARY OF ARGUMENT
`I. Petitioners’ September 2017 termination of
`DACA is judicially reviewable. Petitioners announced
`to the public that they lacked authority to maintain
`DACA and were therefore compelled to terminate it.
`They cannot avail themselves of the APA’s exception
`for decision
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