` 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
`————————
`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.
`MARTÍN JONATHAN BATALLA VIDAL, et al., Respondents.
`————————
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`————————
`BRIEF OF RESPONDENTS THE STATES OF
`CALIFORNIA, MAINE, MARYLAND, AND MINNESOTA
`————————
`XAVIER BECERRA
`Attorney General of California
`MICHAEL J. MONGAN*
`Solicitor General
`MICHAEL L. NEWMAN
` Senior Assistant Attorney General
`SAMUEL P. SIEGEL
`JOSHUA PATASHNIK
` Deputy Solicitors General
`SHUBHRA SHIVPURI
`JAMES F. ZAHRADKA II
` Deputy Attorneys General
`455 Golden Gate Ave.
`San Francisco, CA 94102
`(415) 510-3920
`Michael.Mongan@doj.ca.gov
`September 27, 2019
`*Counsel of Record
`(Additional counsel listed on inside cover)
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`AARON M. FREY
` Attorney General of Maine
`SUSAN P. HERMAN
` Deputy Attorney General
`6 State House Station
`Augusta, ME 04333
`
`BRIAN E. FROSH
` Attorney General
` of Maryland
`STEVEN M. SULLIVAN
` Solicitor General
`LEAH J. TULIN
` Assistant Attorney General
`200 Saint Paul Place
`20th Floor
`Baltimore, MD 21202
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`KEITH ELLISON
` Attorney General
` of Minnesota
`LIZ KRAMER
` Solicitor General
`JACOB CAMPION
` Assistant Attorney General
`445 Minnesota Street
`Suite 1100
`St. Paul, MN 55101
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` i
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`QUESTIONS PRESENTED
`
`Whether the district courts in these consolidated
`cases properly held (i) that petitioners’ September
`2017 decision to terminate the Deferred Action for
`Childhood Arrivals policy is subject to judicial review
`under the Administrative Procedure Act, (ii) that the
`decision violated or likely violated the Act, and (iii)
`that petitioners’ motions to dismiss certain other
`claims that remain pending in the California and New
`York proceedings should be denied.
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`
`ii
`TABLE OF CONTENTS
`
`
`Page
`
`Introduction ................................................................. 1
`Statement .................................................................... 2
`A. Legal and factual background ........................ 2
`B. Procedural background................................... 7
`Summary of argument .............................................. 11
`Argument ................................................................... 13
`I. The decision to terminate DACA is subject
`to judicial review ................................................. 13
`A. The termination decision is not “com-
`mitted to agency discretion by law” ............. 13
`B. New rationales advanced by petition-
`ers after the termination decision do
`not make it unreviewable ............................. 21
`C. Section 1252 does not bar review ................. 23
`II. The termination decision is invalid under
`the APA ............................................................... 23
`A. The agency’s stated premise that
`DACA is unlawful is incorrect ...................... 25
`1. Deferred action is lawful ........................ 25
`2. Class-based deferred action poli-
`cies are a permissible policy tool ........... 27
`3. DACA is a permissible class-based
`deferred action policy ............................. 31
`4. The agency’s assertion that DACA
`is illegal rests on a mistaken legal
`premise ................................................... 34
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`iii
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`TABLE OF CONTENTS
`(continued)
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`Page
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`
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`B. The agency’s explanation for its deci-
`sion does not satisfy the APA’s require-
`ments for reasoned decisionmaking ............. 41
`
`C. Alternative rationales advanced by pe-
`titioners during this litigation cannot
`save the termination decision ...................... 45
`
`1. “Litigation risk” ...................................... 45
`
`1. Former Secretary Nielsen’s policy
`rationales ................................................ 47
`
`III. The judgments of the courts below should
`be affirmed........................................................... 52
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`Conclusion .................................................................. 55
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`
`
`iv
`
`TABLE OF AUTHORITIES
`
`
`Page
`
`
`CASES
`
`Arizona v. United States
`567 U.S. 387 (2012) .............................. 3, 31, 32, 34
`
`Arpaio v. Obama
`797 F.3d 11 (D.C. Cir. 2015) .................................. 4
`
`Burlington Truck Lines, Inc. v. United
`States
`371 U.S. 156 (1962) .............................................. 45
`
`Camp v. Pitts
`411 U.S. 138 (1973) (per curiam) ................. passim
`
`Casa de Md. v. DHS
`924 F.3d 684 (4th Cir. 2019) .................... 20, 41, 45
`
`Checkosky v. SEC
`23 F.3d 452 (D.C. Cir. 1994) (per curiam) ........... 48
`
`Cheng Fan Kwok v. INS
`392 U.S. 206 (1968) .............................................. 15
`
`Citizens to Preserve Overton Park, Inc. v.
`Volpe
`401 U.S. 402 (1971) .................................. 14, 48, 51
`
`City of Arlington v. FCC
`569 U.S. 290 (2013) .............................................. 19
`
`Cooter & Gell v. Hartmarx Corp.
`496 U.S. 384 (1990) .............................................. 41
`
`
`
`
`
` v
`
`
`
`TABLE OF AUTHORITIES
`(continued)
`
`
`Crane v. Johnson
`783 F.3d 244 (5th Cir. 2015) .................................. 4
`
`Page
`
`Crawford v. Silette
`608 F.3d 275 (5th Cir. 2010) ................................ 47
`
`Dep’t of Commerce v. New York
`139 S. Ct. 2551 (2019) .................................. passim
`
`Encino Motorcars, LLC v. Navarro
`136 S. Ct. 2117 (2016) .......................................... 41
`
`Envtl. Def. Fund, Inc. v. Costle
`657 F.2d 275 (D.C. Cir. 1981) .............................. 49
`
`FCC v. Fox Television Stations, Inc.
`556 U.S. 502 (2009) ........................................ 41, 43
`
`FDA v. Brown & Williamson Tobacco Corp.
`529 U.S. 120 (2000) .............................................. 39
`
`Fla. Power & Light Co. v. Lorion
`470 U.S. 729 (1985) .............................................. 48
`
`Foti v. INS
`375 U.S. 217 (1963) .............................................. 15
`
`Franklin v. Massachusetts
`505 U.S. 788 (1992) ........................................ 14, 19
`
`Heckler v. Chaney
`470 U.S. 821 (1985) ...................................... passim
`
`
`
`
`
`
`vi
`
`TABLE OF AUTHORITIES
`(continued)
`
`
`Hotel & Rest. Emps. Union v. Smith
`846 F.2d 1499 (D.C. Cir. 1988) (en banc) ........ 3, 27
`
`Page
`
`ICC v. Bhd. of Locomotive Eng’rs
`482 U.S. 270 (1987) .................................. 15, 20, 21
`
`In re United States
`138 S. Ct. 443 (2017) (per curiam) ................... 7, 53
`
`In re United States
`875 F.3d 1200 (9th Cir. 2017) .............................. 54
`
`Kisor v. Wilkie
`139 S. Ct. 2400 (2019) .................................... 18, 19
`
`Lincoln v. Vigil
`508 U.S. 182 (1995) ........................................ 14, 15
`
`Local 814, Int’l Bhd. of Teamsters,
`Chauffeurs, Warehousemen v. NLRB
`546 F.2d 989 (D.C. Cir. 1976) .............................. 49
`
`Mont. Air Chapter No. 29, Ass’n of
`Civilian Technicians, Inc. v. FLRA
`898 F.2d 753 (1990) .............................................. 20
`
`Motor Vehicle Mfrs. Ass’n of the U.S.,
`Inc. v. State Farm Mut. Auto. Ins. Co.
`463 U.S. 29 (1983) .......................................... 25, 41
`
`NAACP v. Trump
`321 F. Supp. 3d 143 (D.D.C. 2018) ...................... 11
`
`
`
`
`
`
`vii
`
`TABLE OF AUTHORITIES
`(continued)
`
`
`Newman v. Apfel
`223 F.3d 937 (9th Cir. 2000) ................................ 44
`
`Page
`
`NLRB v. Bell Aerospace Co.
`416 U.S. 267 (1974) .............................................. 39
`
`Noel v. Chapman
`508 F.2d 1023 (2d Cir. 1975) ................................ 15
`
`OSG Bulk Ships, Inc. v. United States
`132 F.3d 808 (D.C. Cir 1998) ............................... 17
`
`Red Lion Broad. Co. v. FCC
`395 U.S. 367 (1969) .............................................. 36
`
`Reno v. Am.-Arab Anti-Discrimination Comm.
`525 U.S. 471 (1999) ........................ 3, 23, 25, 28, 35
`
`Republic of Argentina v. NML Capital, Ltd.
`573 U.S. 134 (2014) .............................................. 53
`
`SAS Inst., Inc. v. Iancu
`138 S. Ct. 1348 (2018) .......................................... 23
`
`Sea-Land Serv., Inc. v. Dep’t of Transp.
`137 F.3d 640 (D.C. Cir. 1998) .............................. 41
`
`SEC v. Chenery Corp.
`318 U.S. 80 (1943) (Chenery I ) ................ 24, 25, 41
`
`SEC v. Chenery Corp.
`332 U.S. 194 (1947) (Chenery II ) ............. 34, 46, 48
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`
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`viii
`
`TABLE OF AUTHORITIES
`(continued)
`
`
`Texas v. United States
`328 F. Supp. 3d 662 (S.D. Tex. 2018) ............ 33, 47
`
`Page
`
`Texas v. United States
`809 F.3d 134 (5th Cir. 2015) ........................ passim
`
`Texas v. United States
`86 F. Supp. 3d 591 (S.D. Tex. 2015) ...................... 5
`
`Trump v. Int’l Refugee Assistance Project
`137 S. Ct. 2080 (2017) .................................... 42, 49
`
`United States v. Texas
`136 S. Ct. 2271 (2016) (per curiam) ................... 5, 6
`
`United Steel v. Mine Safety & Health Admin.
`925 F.3d 1279 (D.C. Cir. 2019) ............................ 48
`
`Weyerhaeuser Co. v. U.S. Fish &
`Wildlife Serv.
`139 S. Ct. 361 (2018) ............................................ 14
`
`Wong Wing Hang v. INS
`360 F.2d 715 (2d Cir. 1966).................................. 15
`
`STATUTES
`
`5 U.S.C.
`§ 701(a)(1) ............................................................. 23
`§ 701(a)(2) ..................................................... passim
`§ 702 ...................................................................... 14
`§ 706 ...................................................................... 18
`§ 706(2)(A) .................................................... passim
`
`
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`
`ix
`
`TABLE OF AUTHORITIES
`(continued)
`
`
`6 U.S.C.
`
`§ 202(5) ............................................................. 3, 40
`
`Page
`
` U.S.C.
`§ 1101(a)(27)(J) ..................................................... 32
`§ 1103 .................................................................... 26
`§ 1103(a)(1) ................................................. 3, 17, 40
`§ 1103(a)(3) ....................................................... 3, 40
`§ 1154(a)(1)(D)(i)(II) ....................................... 29, 36
`§ 1154(a)(1)(D)(i)(IV) ...................................... 29, 36
`§ 1158(a)(2)(E) ...................................................... 32
`§ 1182(a)(9)(B)(ii) ................................................. 26
`§ 1182(a)(9)(B)(iii)(I) ............................................ 32
`§ 1182(d)(5)(A) ........................................................ 3
`§ 1227(d)(2) ..................................................... 26, 29
`§ 1229b(b)(1) ......................................................... 32
`§ 1252 ...................................................................... 9
`§ 1252(b)(9) ........................................................... 23
`§ 1252(g) ............................................................... 23
`§ 1254a .................................................................... 3
`§ 1324a(h)(3) ................................................... 26, 39
`§ 1439 .................................................................... 32
`§ 1611(b)(2)-(4) ..................................................... 27
`
` 8
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`
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`49 U.S.C.
`
`§ 30301 note .................................................... 26, 29
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`Consolidated Appropriations Act, 2016,
`Pub. L. No. 114-113, 129 Stat. 2242 .................... 32
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`
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`
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` x
`
`
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`TABLE OF AUTHORITIES
`(continued)
`
`
`Dep’t of Homeland Sec. Appropriations
`Act, 2010, Pub. Law 111-83, 123
`Stat. 2142.............................................................. 30
`
`Page
`
`Dep’t of State Authorization Act, Pub. L.
`No. 98-164, 97 Stat. 1017 (1983) ......................... 29
`
`Immigration Act of 1990, Pub. L. No.
`101-649, 104 Stat. 4978 ................................. 29, 31
`
`REGULATIONS
`
`8 C.F.R.
`
`§ 1.3(a)(4)(vi) ..................................................... 4, 27
`
`§ 214.14(d)(3) .................................................... 4, 26
`
`§ 274a.12(c)(14) .......................................... 4, 26, 38
`
`28 C.F.R.
`
`§ 1100.35(b)(2) .................................................. 4, 26
`
`OTHER AUTHORITIES
`
`129 Cong. Rec. 25,324 (1983) .................................... 29
`
`46 Fed. Reg. 25,080 (May 5, 1981) ............................ 26
`
`55 Fed. Reg. 6058 (Feb. 21, 1990) ............................. 28
`
`84 No. 36 Interpreter Releases 2125
`(Sept. 17, 2007) ..................................................... 30
`
`96 No. 14 Interpreter Releases 14
`(April 1, 2019) ....................................................... 30
`
`
`
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`
`
`xi
`
`TABLE OF AUTHORITIES
`(continued)
`
`
`Bruno, et al., Cong. Research Serv.,
`Analysis of June 15, 2012 DHS
`Memorandum (July 13, 2012),
`https://tinyurl.com/y5muva2y .............................. 27
`
`Page
`
`DREAM Act of 2010, H.R. 5281, 111th
`Cong. (2010) .......................................................... 36
`
`Friendly, Chenery Revisited, 1969 Duke
`L.J. 199, 209 (1969) .............................................. 48
`
`H.R. 29, 114th Cong. (2015) ...................................... 36
`
`H.R. Rep. No. 100-627 (1988) .............................. 28, 30
`
`Immigration Act of 1989: Hearing Before
`the Subcomm. on Immigration,
`Refugees, and Int’l Law of the House
`Comm. on the Judiciary, 101st
`Cong., 2d Sess. pt. 2 (1990) .................................. 28
`
`Memorandum from Donald Neufeld,
`Acting Assoc. Dir., Office of Domestic
`Operations, USCIS to Field
`Leadership, Guidance Regarding
`Surviving Spouses of Deceased U.S.
`Citizens and their Children (June 15,
`2009....................................................................... 30
`
`Memorandum from Gene McNary,
`Commissioner, INS to Reg’l
`Comm’rs, Re: Family Fairness (Feb.
`2, 1990) ................................................................. 28
`
`
`
`
`
`
`xii
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page
`
`
`USCIS, Number of Form I-821D,
`Consideration of Deferred Action for
`Childhood Arrivals, by Fiscal Year,
`Quarter, Intake Biometrics and Case
`Status, Fiscal Year 2012-2017 (June
`30, 2017), https://tinyurl.com/
`y868mj7y .............................................................. 43
`
`USCIS, Number of Form I-821D,
`Consideration of Deferred Action for
`Childhood Arrivals, by Fiscal Year,
`Quarter, Intake and Case Status,
`Fiscal Year 2012-2019 (Apr. 30
`2019), https://tinyurl.com/y59zwrtd .............. 32, 33
`
`
`
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`
`
`
`
`
`
`
`
`
`1
`
`INTRODUCTION
`
`The Deferred Action for Childhood Arrivals policy
`enables certain young people to apply for deferred
`action, a form of discretionary immigration relief, on
`an individual basis. Those eligible for consideration
`under DACA arrived in the United States as children
`and many of them have never known any other home.
`All are either enrolled in school, have completed it, or
`have served honorably in our armed forces. DACA
`recipients contribute to their States and the Nation as
`employees, parents, and productive members of our
`communities. Deferred action affords them a measure
`of stability and reassurance as they go about their
`lives and careers here. As a policy, DACA has enjoyed
`widespread support. As a legal matter, it is grounded
`in the Executive Branch’s broad authority to set prior-
`ities and exercise discretion in enforcing the immigra-
`tion laws, and is consistent with similar class-based
`discretionary relief policies adopted over the last six
`decades.
`
`In September 2017, however, petitioners decided to
`terminate the DACA policy. The decision memoran-
`dum, signed by then-Acting Secretary of Homeland
`Security Duke, offered only one rationale: that DACA
`was unlawful. It cited a one-page letter from then-
`Attorney General Sessions asserting that the policy
`was unconstitutional and beyond the agency’s statu-
`tory authority.
`
`The respondents in the proceedings now before this
`Court filed suits challenging the termination decision
`in district courts in California, New York, and the Dis-
`trict of Columbia. All three courts held that the deci-
`sion was subject to review under the Administrative
`Procedure Act, in light of the legal rationale proffered
`for the action. The California and New York district
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`2
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`courts granted preliminary injunctions on the ground
`that the agency’s stated legal premise was incorrect,
`and the Ninth Circuit has since affirmed the grant of
`preliminary relief in the California proceeding. The
`D.C. district court vacated the agency’s decision on the
`ground that the legal premise was, at a minimum,
`inadequately explained. Those rulings are correct,
`and the termination decision may be vacated on either
`ground identified by the courts below.
`
`Petitioners complain that the lower courts “have
`forced DHS to maintain this entirely discretionary pol-
`icy for nearly two years.” U.S. Br. 16. In fact, no court
`has held that “DACA could not be rescinded as an
`exercise of Executive Branch discretion.” Regents
`Supp. App. 57a; see NAACP Pet. App. 108a-109a; Ba-
`talla Vidal Pet. App. 67a. On the contrary, the courts
`below have recognized and highlighted the Executive’s
`wide discretion in setting policies regarding immigra-
`tion enforcement. So far, however, petitioners have
`chosen to stand by their original decision, which is
`based not on policy grounds but on the assertion that
`DACA is unlawful. That decision must stand or fall
`on the contemporaneous rationale that the agency
`chose to offer as the public basis for its action. See,
`e.g., Camp v. Pitts, 411 U.S. 138, 142-143 (1973) (per
`curiam). It cannot be sustained on that basis.
`
`STATEMENT
`A. Legal and Factual Background
`1. Congress has granted the Executive Branch
`broad authority with respect to immigration enforce-
`ment. It has charged the Secretary of Homeland
`Security “with the administration and enforcement of ”
`the Immigration and Nationality Act “and all other
`laws relating to . . . immigration and naturalization,”
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`3
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`8 U.S.C. § 1103(a)(1); directed him to “establish such
`regulations; . . . issue such instructions; and perform
`such other acts as he deems necessary for carrying out
`his authority,” id. § 1103(a)(3); and made him respon-
`sible for “[e]stablishing national immigration enforce-
`ment policies and priorities,” 6 U.S.C. § 202(5).
`
`That responsibility carries with it an obligation to
`exercise “broad discretion” in enforcing the immigra-
`tion laws. Arizona v. United States, 567 U.S. 387, 396
`(2012). Such discretion is a “principal feature of the
`removal system.” Id. It is inherent in the fact that the
`federal government cannot realistically remove every
`undocumented immigrant, see Regents Supp. App.
`55a-56a—even if doing so were desirable as a policy
`matter. And it “embraces immediate human con-
`cerns” and the “equities of an individual case,” such as
`whether an immigrant has “long ties to the commu-
`nity, or a record of distinguished military service.” Ar-
`izona, 567 U.S. at 396.
`
`The authority to exercise discretion takes several
`forms. Some are specifically authorized by statute.
`See, e.g., 8 U.S.C. § 1182(d)(5)(A) (parole); id. § 1254a
`(temporary protected status). Others have been rec-
`ognized as inherent in the Executive’s authority in
`this area. See J.A. 817 n.5 (deferred enforced depar-
`ture); Hotel & Rest. Emps. Union v. Smith, 846 F.2d
`1499, 1519 (D.C. Cir. 1988) (en banc) (opinion of Sil-
`berman, J.) (extended voluntary departure).
`
`This case involves deferred action, a “regular prac-
`tice” in which the Executive decides that “no action
`will thereafter be taken to proceed against an appar-
`ently deportable alien.” Reno v. Am.-Arab Anti-Dis-
`crimination Comm., 525 U.S. 471, 484 (1999) (quoting
`6 Gordon et al., Immigration Law and Procedure
`
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`
`
`4
`
`§ 72.03[2][h] (1998)). Under longstanding federal reg-
`ulations, the validity of which is not disputed here,
`recipients of deferred action may seek work authoriza-
`tion and receive certain other limited benefits. See 8
`C.F.R. §§ 1.3(a)(4)(vi), 214.14(d)(3), 274a.12(c)(14); 28
`C.F.R. § 1100.35(b)(2). Like other forms of discretion-
`ary immigration relief, deferred action may be exer-
`cised on a purely ad hoc basis, or through policies that
`provide a framework to guide individualized decisions
`for applicants in a particular class. For nearly 60
`years, the Executive Branch has operated dozens of
`class-based discretionary relief policies, including sev-
`eral that involved deferred action. See J.A. 821-826.
`
`2. Established in 2012, DACA creates a framework
`guiding deferred action decisions regarding “certain
`young people who were brought to this country as chil-
`dren,” many of whom “know only this country as
`home.” Regents Pet. App. 97a-98a. Individuals who
`obtain deferred action under DACA receive a provi-
`sional grant of forbearance from removal for a two-
`year period, subject to renewal. Id. at 98a-101a. They
`do not gain any lawful immigration status, and immi-
`gration officials retain the ability to commence re-
`moval proceedings against them at any time. J.A. 819.
`
`Before the Secretary announced DACA, the Office
`of Legal Counsel at the Department of Justice advised
`that a policy such as DACA would be legally sound so
`long as immigration officials “retained discretion to
`evaluate [its] application on an individualized basis.”
`J.A. 827 n.8. After the Secretary implemented DACA,
`the federal government successfully defended the pol-
`icy against various legal challenges. See Arpaio v.
`Obama, 797 F.3d 11 (D.C. Cir. 2015); Crane v. John-
`son, 783 F.3d 244 (5th Cir. 2015).
`
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`
`5
`
`By September 2017 there were nearly 700,000
`active DACA recipients, with an average age of just
`under 24 years old. Regents Pet. App. 13a. More than
`400,000 of those individuals lived in the respondent
`States. J.A. 998. Over 90 percent of DACA recipients
`are employed, and 45 percent are in school. Regents
`Pet. App. 13a. They have bought homes, embarked on
`careers, and started families. See J.A. 879-980. They
`are employees at our state and local agencies, and stu-
`dents and staff at our public colleges and universities.
`See, e.g., J.A. 513, 515, 557, 756-765. They add value
`to the States and our local communities in many
`ways—including by contributing to our economies,
`paying billions of dollars in taxes, and parenting their
`children. See, e.g., J.A. 510-525, 733-753.
`
`3. In 2014, then-Secretary of Homeland Security
`Johnson announced the creation of a new program,
`Deferred Action for Parents of Americans and Lawful
`Permanent Residents (DAPA). DAPA would have
`applied to adults who, among other things, had been
`in the United States since 2010, were the parents of
`citizens or lawful permanent residents, and were not
`enforcement priorities. Regents Pet. App. 107a-110a.
`It also would have expanded the scope of DACA in sev-
`eral respects. Id. at 106a-107a.
`
`Before DAPA could be implemented, Texas and
`other States challenged its legality, and a district
`court granted a nationwide preliminary injunction
`temporarily barring its implementation. See Texas v.
`United States, 86 F. Supp. 3d 591, 677-678 (S.D. Tex.
`2015). A divided panel of the Fifth Circuit affirmed
`that interlocutory order, see Texas v. United States,
`809 F.3d 134, 146 (5th Cir. 2015), and this Court
`affirmed the Fifth Circuit’s judgment by an equally
`divided vote, see United States v. Texas, 136 S. Ct.
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`6
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`2271 (2016) (per curiam). Before that litigation pro-
`ceeded to final judgment, the current administration
`took office and rescinded the DAPA policy. DAPA and
`the intended expansion of DACA thus never went into
`effect. But the preliminary injunction entered and
`affirmed in Texas did not affect the original DACA pol-
`icy.
`
`4. The new administration initially retained
`DACA and continued to solicit and process applica-
`tions for deferred action under the policy. See Regents
`Pet. App. 16a. Indeed, the President and other senior
`officials expressed their commitment to the policy.
`See, e.g., J.A. 435, 720. In the summer of 2017, how-
`ever, officials at the Department of Justice began to
`discuss DACA with the plaintiffs in the Texas litiga-
`tion (which remained pending despite the rescission of
`DAPA). Regents D.Ct. Dkt. 124 at 79-82. On June 29,
`those plaintiffs publicly informed then-Attorney Gen-
`eral Sessions that if the administration did not “phase
`out the DACA program” by September 5, they would
`amend their complaint to challenge DACA. J.A. 874.
`
`On September 4, the Attorney General sent a one-
`page letter advising then-Acting Secretary of Home-
`land Security Duke that her Department “should
`rescind” DACA because it was “unconstitutional” and
`“effectuated . . . without proper statutory authority.”
`J.A. 877. He further asserted that DACA “has the
`same legal and constitutional defects that the courts
`recognized as to DAPA.” J.A. 878. The Attorney Gen-
`eral announced the termination of DACA at a press
`conference the next day. J.A. 999-1004.
`
`Also on September 5, Acting Secretary Duke issued
`a memorandum formally rescinding DACA. Regents
`Pet. App. 111a-119a. Her memorandum contained
`one sentence explaining the reason for the decision:
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`7
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`“Taking into consideration the Supreme Court’s and
`the Fifth Circuit’s rulings in the ongoing [DAPA] liti-
`gation, and the September 4, 2017 letter from the
`Attorney General, it is clear that the June 15, 2012
`DACA program should be terminated.” Id. at 117a.
`She instructed her Department to stop accepting new
`DACA applications immediately and to stop accepting
`all renewal applications after one month. See id. at
`117a-118a.
`B. Procedural Background
`These consolidated proceedings arise out of multi-
`ple suits challenging the decision to terminate DACA,
`which respondents filed in district courts in Califor-
`nia, New York, and the District of Columbia.
`
`1. The States of California, Maine, Maryland, and
`Minnesota, as well as the other respondents in No. 18-
`587, filed complaints in the Northern District of Cali-
`fornia. They alleged, among other things, that the ter-
`mination decision was arbitrary, capricious, or other-
`wise not in accordance with law and thus invalid
`under the Administrative Procedure Act, 5 U.S.C.
`§ 706(2)(A). See J.A. 376-579
`
`a. Petitioners proffered an administrative record
`consisting of 14 documents and “256 publicly available
`pages, roughly three-quarters of which are taken up
`by the three published judicial opinions from the
`Texas litigation.” Regents Supp. App. 21a. The parties
`disputed the adequacy of that putative administrative
`record, including in proceedings before this Court. See
`In re United States, 138 S. Ct. 443 (2017) (per curiam).
`Consistent with this Court’s instructions, see id. at
`445, the district court postponed petitioners’ obliga-
`tion to complete the record and stayed discovery pend-
`ing review of certain threshold defenses.
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`8
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`Thereafter, the district court rejected petitioners’
`arguments on reviewability, Regents Pet. App. 26a-
`41a, and granted a limited preliminary injunction, id.
`at 41a-70a. The court held that respondents were
`likely to succeed on their APA claim because, among
`other things, the agency’s decision was based on the
`incorrect premise that DACA was unlawful. Id. at
`41a-62a. The court also concluded that the equities
`favored provisional relief. Id. at 62a-66a. The prelim-
`inary injunction partially preserved the status quo for
`individuals who had already received deferred action
`under DACA. Id. at 66a. It allowed the agency to con-
`tinue exercising individualized discretion in reviewing
`renewal applications and to “proceed[] to remove any
`individual, including any DACA enrollee, who it deter-
`mines poses a risk to national security or public safety,
`or otherwise deserves, in its judgment, to be removed.”
`Id. In a separate order, the court dismissed some
`additional claims, while allowing certain due process
`and equal protection claims to proceed. Id. at 71a-90a.
`
`b. The court of appeals affirmed. Regents Supp.
`App. 1a-78a. It first addressed whether petitioners’
`decision to terminate DACA was unreviewable as a
`matter “committed to agency discretion by law” within
`the meaning of 5 U.S.C. § 701(a)(2). The court as-
`sumed without deciding that the decision fell within
`the scope of Heckler v. Chaney, 470 U.S. 821 (1985),
`which applied Section 701(a)(2) to create a presump-
`tion of non-reviewability for “agency refusals to insti-
`tute investigative or enforcement proceedings.” Id. at
`838; see Regents Supp. App. 34a-35a n.13. The court
`concluded, however, that “an agency’s nonenforcement
`decision is outside the scope of the Chaney presump-
`tion—and is therefore presumptively reviewable—if it
`is based solely on a belief that the agency lacked the
`lawful authority to do otherwise.” Regents Supp.
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`9
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`App. 29a; see id. at 23a-34a. Here, the termination
`decision was reviewable because it was based “solely
`on a belief that DACA was beyond the authority of
`DHS.” Id. at 41a. The court also rejected petitioners’
`argument that 8 U.S.C. § 1252 stripped the district
`court of jurisdiction to hear this case. Id. at 42a-45a.
`
`On the merits, the court of appeals noted that the
`only preliminary injunction factor in dispute was re-
`spondents’ likelihood of success on the merits of their
`APA claim. Regents Supp. App. 45a-46a. Because an
`agency action “based solely on an erroneous legal
`premise . . . must be set aside,” id. at 47a, the court
`examined petitioners’ stated ground that DACA was
`unlawful. In view of the Executive Branch’s broad
`authority over immigration enforcement policy and
`priorities and its longstanding practice of using class-
`based discretionary relief policies, the court concluded
`“that DACA was a permissible exercise of executive
`discretion.” Id. at 56a; see id. at 47a-57a. It empha-
`sized that it was “not hold[ing] that DACA could not
`be rescinded as an exercise of Executive Branch dis-
`cretion.” Id. But petitioners’ decision to rescind the
`program “based on an erroneous view of what the law
`required” was subject to vacatur. Id. The court next
`held that the district court’s decision to make its pre-
`liminary injunction effective nationwide was not an
`abuse of discretion under the circumstances of this
`case. See id. at 58a-60a. It also affirmed the district
`court’s ruling on petitioners’ motion to dismiss. Id. at
`61a-77a.
`
`Judge Owens concurred in the judgment. Regents
`Supp. App. 79a-87a. Although he would have held
`that petitioners’ decision to terminate DACA was
`insulated from APA review under Section 701(a)(2)
`and Chaney, id. at 79a-84a, he would have affirmed
`
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`10
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`the preliminary injunction on the alternative basis of
`the equal protection claim advanced by certain re-
`spondents, id. at 79a, 86a.
`
`2. In No. 18-589, the Eastern District of New York
`entered a preliminary injunction co-extensive with the
`one affirmed in the California proceeding. Batalla Vi-
`dal Pet. App. 62a-129a. The court reasoned that the
`asserted basis for the termination decision was inade-
`quately explained and rested on a premise that was
`legally and factually flawed. See id. at 67a-69a, 90a-
`119a.
`
`3. In No. 18-588, the district court for the District
`of Columbia entered a final judgment vacating the ter-
`mination decision. See NAACP Pet. App. 1a-74a. It
`reasoned that the decision “was predicated primarily
`on [a] legal judgment that the program was unlawful.”
`Id. at 73a. But that legal judgment could not support
`the agency’s action because it was “virtually unex-
`plained.” Id. The court temporarily stayed its judg-
`m