throbber
Nos. 18-587, 18-588, and 18-589
`
`
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`
`
`
`
`
`
`
`
`
`
`
`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.,
`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
`___________
`BRIEF OF CURRENT MEMBERS OF CONGRESS AND
`BIPARTISAN FORMER MEMBERS OF CONGRESS AS
`AMICI CURIAE IN SUPPORT OF RESPONDENTS
`___________
`ELIZABETH B. WYDRA
`BRIANNE J. GOROD*
`BRIAN R. FRAZELLE
`DAYNA J. ZOLLE**
`CONSTITUTIONAL
` ACCOUNTABILITY CENTER
`1200 18th Street NW
` Suite 501
`Washington, D.C. 20036
`(202) 296-6889
`brianne@theusconstitution.org
`
`Counsel for Amici Curiae
`* Counsel of Record
`** Not admitted in D.C.; supervised by
`principals of the firm
`
`Petitioners,
`
`October 4, 2019
`
`
`
`

`

`
`TABLE OF CONTENTS
`
`5
`
`5
`
`2
`5
`
`Page
`TABLE OF AUTHORITIES .................................
`ii
`INTEREST OF AMICI CURIAE ..........................
`1
`INTRODUCTION AND SUMMARY OF
`ARGUMENT ......................................................
`ARGUMENT .........................................................
` DACA WAS A LAWFUL EXERCISE OF
`EXECUTIVE DISCRETION, AND ITS
`RESCISSION ON THE GROUND THAT IT
`WAS UNLAWFUL THEREFORE VIOLATED
`THE APA ...........................................................
`I. DACA WAS A VALID EXERCISE OF
`EXECUTIVE AUTHORITY ....................
`A. Congress Has Long Conferred
`Significant Discretion on the
`Executive Branch ..........................
`B. The Executive Branch Has Long
`Exercised This Broad Discretion
`with Congress’s Affirmative
`Approval ......................................... 11
`C. DACA Was a Valid Exercise of
`Executive Discretion .................... 17
`II. THE TERMINATION OF DACA ON
`THE GROUND THAT IT WAS
`UNLAWFUL VIOLATED THE APA ..... 23
`CONCLUSION ..................................................... 29
`APPENDIX ........................................................... 1A
`
`
`
`5
`
`(i)
`
`

`

`ii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Apex Hosiery Co. v. Leader,
`310 U.S. 469 (1940) ................................
`
`14
`
`Arizona v. United States,
`567 U.S. 387 (2012) ................................ passim
`
`Barnhart v. Peabody Coal Co.,
`537 U.S. 149 (2003) ................................
`
`Bob Jones Univ. v. United States,
`461 U.S. 574 (1983) ................................
`
`Burlington Truck Lines, Inc. v. United
`States,
`371 U.S. 156 (1962) ................................
`
`Dames & Moore v. Regan,
`453 U.S. 654 (1981) ................................
`
`Harisiades v. Shaughnessy,
`342 U.S. 580 (1952) ................................
`
`28
`
`17
`
`24
`
`13
`
`5
`
`Heckler v. Chaney,
`470 U.S. 821 (1985) ................................ 6, 10
`
`INS v. Chadha,
`462 U.S. 919 (1983) ................................
`
`Jama v. ICE,
`543 U.S. 335 (2005) ................................
`
`Lichter v. United States,
`334 U.S. 742 (1948) ................................
`
`Marx v. Gen. Revenue Corp.,
`568 U.S. 371 (2013) ................................
`
`6
`
`8
`
`10
`
`27
`
`

`

`iii
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`
`Mathews v. Diaz,
`426 U.S. 67 (1976) ..................................
`
`8
`
`Medellin v. Texas,
`554 U.S. 759 (2008) ................................ 6, 21
`
`Mistretta v. United States,
`488 U.S. 361 (1989) ................................
`
`Motor Vehicle Mfrs. Ass’n v. State Farm
`Mut. Auto. Ins. Co.,
`463 U.S. 29 (1983) ..................................
`
`9
`
`24
`
`Reno v. Am.-Arab Anti-Discrimination
`Comm.,
`525 U.S. 471 (1999) ....................... 2, 7, 8, 11, 17
`
`Scripps-Howard Radio v. F.C.C.,
`316 U.S. 4 (1942) ....................................
`
`SEC v. Chenery Corp.,
`332 U.S. 194 (1947) ................................
`
`Tex. Dep’t of Hous. & Cmty. Affairs v.
`Inclusive Cmtys. Project, Inc.,
`135 S. Ct. 2507 (2015) ............................
`
`Texas v. United States,
`136 S. Ct. 2271 (2016) ............................
`
`22
`
`24
`
`14
`
`5
`
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015) .......... 5, 25, 26, 27
`
`United States ex rel. Knauff v.
`Shaughnessy,
`338 U.S. 537 (1950) ................................
`
`10
`
`
`
`

`

`iv
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`
`United States v. Craft,
`535 U.S. 274 (2002) ................................
`
`United States v. Rutherford,
`442 U.S. 544 (1979) ................................
`
`United States v. Vonn,
`535 U.S. 55 (2002) ..................................
`
`21
`
`14
`
`28
`
`
`
`Constitutional Provisions and Legislative Materials
`
`5 U.S.C. § 551 et seq. .................................
`
`2
`
`5 U.S.C. § 706(2)(A) ................................... 4, 25
`
`6 U.S.C. § 202(5) ........................................ passim
`
`8 C.F.R. § 109.1(b)(7) (1984) .....................
`
`8 C.F.R. § 245a.2(a)(2)(iv)(5) (1989) .........
`
`11
`
`12
`
`8 C.F.R. § 274a.12(c)(14) (1989) ................ 11, 16
`
`8 U.S.C. § 1101 et seq. ...............................
`
`8 U.S.C. § 1103(a)(1) .................................
`
`1
`
`7
`
`8 U.S.C. § 1103(a)(3) ........................... 3, 7, 18, 19
`
`8 U.S.C. § 1151(b)(2)(A)(i) .........................
`
`25
`
`8 U.S.C. § 1154(a)(1)(D)(i)(II) ................... 15, 16
`
`8 U.S.C. § 1154(a)(1)(D)(i)(IV) .................. 15, 16
`
`8 U.S.C. § 1182(a)(9)(B) ............................
`
`26
`
`

`

`v
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`8 U.S.C. § 1182(a)(9)(B)(i)(II) ....................
`25
`
`8 U.S.C. § 1201(a) ......................................
`
`8 U.S.C. § 1227(d)(1) .................................
`
`8 U.S.C. § 1227(d)(2) .................................
`
`8 U.S.C. § 1255 ..........................................
`
`8 U.S.C. § 1324a(h)(3) ...............................
`
`49 U.S.C. § 30301 note ..............................
`
`52 F.R. 16222 (1987) .................................
`
`25
`
`14
`
`14
`
`25
`
`9
`
`15
`
`11
`
`158 Cong. Rec. (daily ed. July 19, 2012) ... 21, 23
`
`Battered Immigrant Women Protection Act
`of 1999: Hearing on H.R. 3083 Before the
`Subcomm. on Immigration & Claims of
`the H. Comm. on the Judiciary, 106th
`Cong. (2000)............................................
`
`Department of Homeland Security Appro-
`priations Act, Pub. L. No. 114-4, 129
`Stat. 39 (2015) ........................................
`
`Emergency Supplemental Appropriations
`Act for Defense, the Global War on Ter-
`ror, and Tsunami Relief, Pub. L. No. 109-
`13, 119 Stat. 231 (2005) .........................
`
`H.R. 5160, 113th Cong. (2014) ..................
`
`Immigration Reform and Control Act of
`1986, Pub. L. No. 99-603, 100 Stat.
`3359 ........................................................
`
`15
`
`10
`
`15
`
`22
`
`9
`
`

`

`vi
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`
`National Defense Authorization Act for
`Fiscal Year 2004, Pub. L. No. 108-136,
`117 Stat. 1392 (2003) .............................
`
`S. 1615, 115th Cong. (2017) ......................
`
`S. 2631, 113th Cong. (2014) ......................
`
`Subcomm. on Immigration, Citizenship,
`Refugees, Border Security, & Int’l L., H.
`Comm. on the Judiciary, 111th Cong.,
`Rules of Procedure and Statement of
`Policy for Private Immigration Bills .....
`
`Uniting and Strengthening America by
`Providing Appropriate Tools Required to
`Intercept and Obstruct Terrorism Act of
`2001 (USA PATRIOT Act), Pub. L. No.
`107-56, 115 Stat. 272 .............................
`
`Victims of Trafficking and Violence Protec-
`tion Act of 2000, Pub. L. No. 106-386, 114
`Stat. 1464 ...............................................
`
`
`
`Books, Articles, and Other Authorities
`
`64 No. 41 Interpreter Releases 1191, app. I,
`(Oct. 26, 1987) ........................................
`
`67 No. 6 Interpreter Releases 153, app. I,
`(Feb. 5, 1990) ..........................................
`
`76 Interpreter Releases, app. I (Dec. 3,
`1999) .......................................................
`
`
`
`16
`
`22
`
`22
`
`16
`
`16
`
`15
`
`12
`
`13
`
`20
`
`

`

`vii
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`
`Am. Immigration Council, Executive
`Grants of Temporary Immigration Relief,
`1956-Present (Oct. 2014), https://
`www.americanimmigrationcoun-
`cil.org/sites/default/files/research/execu-
`tive_grants_of_temporary_immigration_
`relief_1956- present_final_0.pdf ............
`
`12
`
`Andorra Bruno et al., Cong. Research
`Serv., Analysis of June 15, 2012 DHS
`Memorandum, Exercising Prosecutorial
`Discretion with Respect to Individuals
`Who Came to the United States as Chil-
`dren (July 13, 2012) .............................. 6, 11, 12
`
`Adam B. Cox & Cristina M. Rodríguez, The
`President and Immigration Law, 119
`Yale L.J. 458 (2009) ...............................
`
`Charles Gordon & Harry N. Rosenfield, Im-
`migration Law and Procedure (1959) ....
`
`Ben Harrington, Cong. Research Serv.,
`R45158, An Overview of Discretionary
`Reprieves from Removal: Deferred Action,
`DACA, TPS, and Others (Apr. 10,
`2018) .......................................................
`
`ICYMI: Speaker Ryan, Senator Hatch Urge
`Trump to Keep DACA, fwd.us (Sept. 1,
`2017), https://www.fwd.us/news/speaker-
`ryan-senator-hatch-urge-trump-keep-
`daca/ ........................................................
`
`7, 8
`
`6
`
`11
`
`23
`
`
`
`

`

`viii
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`
`Letter from Rep. Lamar Smith et al., to
`Hon. Janet Reno, Att’y Gen., DOJ, and
`Hon. Doris M. Meissner, Comm’r, INS
`(Nov. 4, 1999) .........................................
`
`Bernadette Maguire, Immigration: Public
`Legislation and Private Bills (1997) ......
`
`Doris Meissner & Julia Gelatt, Migration
`Policy Inst., Eight Key U.S. Immigration
`Policy Issues: State of Play and Unan-
`swered Questions (May 2019) ................
`
`20
`
`16
`
`9
`
`Memorandum from Gene McNary, Comm’r,
`INS, to Reg’l Comm’rs, Family Fairness:
`Guidelines for Voluntary Departure Un-
`der 8 C.F.R. 242.5 for the Ineligible
`Spouses and Children of Legalized Aliens
`(Feb. 2, 1990) .......................................... 12, 13
`
`Memorandum from John Morton, Dir., Im-
`migration & Customs Enforcement, to
`All ICE Employees, Civil Immigration
`Enforcement: Priorities for the Apprehen-
`sion, Detention, and Removal of Aliens
`(Mar. 2, 2011) ........................................ 8, 18, 19
`
`Memorandum from John P. Torres, Acting
`Dir., ICE Office of Detention & Removal
`Operations, to Field Office Dirs., Deten-
`tion and Deportation Officer’s Field Man-
`ual Update (Mar. 27, 2006), https://
`www.ice.gov/doclib/foia/dro_pol-
`icy_memos/09684drofieldpolicyman-
`ual.pdf .....................................................
`
`13
`
`

`

`ix
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`Alan C. Nelson, Comm’r, INS, Legalization
`and Family Fairness—An Analysis (Oct.
`21, 1987) .................................................
`
`12
`
`Pres. Barack Obama, Remarks by the Pres-
`ident on Immigration (June 15, 2012)...
`
`22
`
`Press Release, Durbin, Lugar Ask Secre-
`tary Napolitano to Stop Deportations of
`Dream Act Students (Apr. 21, 2010),
`https://www.durbin.senate.gov/news-
`room/press-releases/durbin-lugar-ask-
`secretary-napolitano-to-stop-deporta-
`tions-of-dream-act-students ...................
`
`U.S. Citizenship and Immigration Services,
`Number of Form I-821D, Consideration of
`Deferred Action for Childhood Arrivals
`(Nov. 30, 2018), https://www.uscis.gov/
`sites/default/files/USCIS/Resources/Re-
`ports%20and%20Studies/Immigra-
`tion%20Forms%20Data/All%20Form%20
`Types/DACA/DACA_FY19_Q1_Data
`.pdf ..........................................................
`
`20
`
`26
`
`
`
`
`
`

`

`1
`INTEREST OF AMICI CURIAE1
`Amici are a bipartisan group of current and former
`members of the U.S. Senate and House of Representa-
`tives, many of whom served when key components of
`the nation’s immigration laws, including provisions
`pertinent to these cases, were drafted, debated, and
`passed. Based on their experience serving in Con-
`gress, amici understand that the nation’s immigration
`laws, including the Immigration and Nationality Act
`(INA), 8 U.S.C. § 1101 et seq., delegate significant dis-
`cretion to the executive branch to interpret and admin-
`ister those
`laws,
`including by setting rational
`enforcement priorities and providing guidance to field
`officials to implement those priorities. Moreover,
`amici know that administrations of both major politi-
`cal parties have for decades exercised that discretion
`to grant undocumented immigrants deferred action,
`on both an ad hoc basis and by establishing categorical
`threshold criteria for deferral, and Congress has con-
`sistently approved of these exercises of executive dis-
`cretion. Where Congress has chosen to vest the
`executive with authority to determine how a law
`should be enforced, and the executive has acted pursu-
`ant to that authority—as was the case with the De-
`ferred Action for Childhood Arrivals (DACA) policy—
`amici have an interest in ensuring that courts honor
`Congress’s deliberate choice. Amici therefore have a
`substantial interest in ensuring that this Court
`
`
`1 The parties have consented to the filing of this brief, and
`their letters of consent have been filed with the Clerk. Under
`Rule 37.6 of the Rules of this Court, amici state that no counsel
`for a party authored this brief in whole or in part, and no counsel
`or party made a monetary contribution intended to fund the prep-
`aration or submission of this brief. No person other than amici
`or their counsel made a monetary contribution to its preparation
`or submission.
`
`
`
`

`

`2
`recognize that DACA was a permissible exercise of the
`broad discretion that Congress has accorded the exec-
`utive branch, and that the rescission of DACA on the
`ground that it was unlawful therefore violated the Ad-
`ministrative Procedure Act (APA), 5 U.S.C. § 551 et
`seq.
`
`INTRODUCTION AND
`SUMMARY OF ARGUMENT
`Because immigration is a complex and dynamic
`field, Congress has long conferred significant discre-
`tion on the executive branch to implement the nation’s
`immigration laws. Effectuating that discretion, ad-
`ministrations of both major political parties have for
`decades granted undocumented immigrants deferred
`action, both on an ad hoc basis and by establishing cat-
`egorical threshold criteria for deferral. This Court has
`recognized that such grants of deferred action are “a
`regular practice” that the executive branch engages in
`“for humanitarian reasons or simply for its own con-
`venience.” Reno v. Am.-Arab Anti-Discrimination
`Comm., 525 U.S. 471, 483-84 (1999) (AADC). Moreo-
`ver, Congress has repeatedly taken affirmative steps
`that demonstrate its ratification of, and reliance on,
`these exercises of executive discretion, including pass-
`ing legislation that presumes that the executive will
`continue to grant deferred action or that expressly di-
`rects the executive to continue doing so.
`Consistent with these past exercises of discretion,
`the Department of Homeland Security in 2012 estab-
`lished DACA, which authorized the temporary de-
`ferred removal of “certain young people who were
`brought to this country as children and know only this
`
`

`

`3
`country as home.” Pet. App. 97a-98a.2 In 2017, the
`current Administration ended DACA, citing its sup-
`posed “legal and constitutional defects.” J.A. 878.
`Contrary to the Administration’s contentions when
`it rescinded the policy, DACA was a permissible exer-
`cise of the broad discretion that Congress conferred on
`the executive branch to implement the federal immi-
`gration laws. See, e.g., 8 U.S.C. § 1103(a)(3) (authoriz-
`ing the Secretary of Homeland Security to “establish
`such regulations; . . . issue such instructions; and per-
`form such other acts as he deems necessary for carry-
`ing out his authority” under the INA); 6 U.S.C.
`§ 202(5) (directing the Secretary to “[e]stablish[] na-
`tional immigration enforcement policies and priori-
`ties”). DACA was also consistent with the immigration
`enforcement priorities that the executive branch had
`established, and the Department of Justice’s Office of
`Legal Counsel (OLC) advised before DACA’s imple-
`mentation that it would be lawful, provided that it re-
`quired review on a case-by-case basis, J.A. 827 n.8—
`which it expressly did, Pet. App. 99a.
`DACA was also a sensible response to the impera-
`tives and realities of law enforcement: the immigration
`laws make a substantial number of noncitizens remov-
`able, but Congress has not provided sufficient re-
`sources to effectuate the removal of more than a small
`fraction of the nation’s undocumented immigrants. In-
`stead, Congress has reasonably permitted the execu-
`tive branch to determine the nation’s immigration
`enforcement priorities.
`Indeed, many members of Congress specifically
`
`2 “Pet. App.” and “Supp. Pet. App.” refer to the appendices ac-
`companying the original and supplemental petitions for certio-
`rari, respectively, in DHS v. Regents of the University of
`California, No. 18-587.
`
`

`

`4
`called for the executive to exercise discretion regarding
`certain young people who were brought to the United
`States as children, and many members of Congress
`subsequently praised DACA’s implementation. And
`although bipartisan efforts to enact new legislation ex-
`tending broader rights and protections to certain im-
`migrants who were brought to the United States as
`children have thus far failed, see Pet’rs Br. 5 & n.2, as
`have numerous congressional efforts to defund or ter-
`minate DACA, these facts have no bearing on the le-
`gality of DACA itself. The legislative proposals that
`Congress has considered were not remotely coexten-
`sive with DACA: Under DACA, grants of deferred ac-
`tion may be terminated at any time and confer no
`substantive rights or immigration status, J.A. 827,
`whereas the legislative proposals that Congress has
`considered would have provided more permanent and
`wide-ranging protections and benefits, and they would
`have extended these protections to a broader class of
`individuals. DACA was a valid exercise of the broad
`discretion that Congress has delegated to the execu-
`tive branch, regardless of whether Congress chooses to
`provide greater long-term protections for DACA recip-
`ients (or others) through new legislation.
`Accordingly, the Administration’s decision to re-
`scind DACA on the ground that it was unlawful was
`“arbitrary, capricious, an abuse of discretion, or other-
`wise not in accordance with law,” in violation of the
`APA. 5 U.S.C. § 706(2)(A). Although Petitioners now
`offer multiple explanations for DACA’s rescission, see,
`e.g., Pet’rs Br. 15, those post hoc explanations are ir-
`relevant. At the time that it terminated DACA, the
`Administration made clear that it was doing so be-
`cause it had concluded that the policy was unlawful.
`See J.A. 877. The Administration also asserted that,
`if challenged in court, DACA would meet the same fate
`
`

`

`5
`as the Deferred Action for Parents of Americans and
`Lawful Permanent Residents (DAPA) policy, which
`the Fifth Circuit enjoined in a decision this Court af-
`firmed by an equally divided vote. Id. at 878; 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 Administration reached this conclusion
`even though DACA is materially distinguishable from
`DAPA. Accordingly, this Court should hold that the
`decision to terminate DACA—a policy that lawfully
`and laudably deferred removal on a case-by-case basis
`of certain persons who were brought to the United
`States as children and who met other qualifications—
`on the ground that this effort was unlawful and con-
`travened the APA.
`
`ARGUMENT
`DACA WAS A LAWFUL EXERCISE OF EXECU-
`TIVE DISCRETION, AND ITS RESCISSION ON
`THE GROUND THAT IT WAS UNLAWFUL
`THEREFORE VIOLATED THE APA.
`I. DACA WAS A VALID EXERCISE OF EXECU-
`TIVE AUTHORITY.
`A. Congress Has Long Conferred Significant
`Discretion on the Executive Branch.
`As amici know from their time serving in Congress,
`it is impossible for Congress to anticipate every situa-
`tion to which legislation must apply. This fact is par-
`ticularly true in a complex and dynamic context like
`immigration, as demographic, social, and political
`changes at home and abroad can cause abrupt and
`substantial changes in immigration patterns. This
`Court has recognized that the field of immigration is
`“vitally and intricately interwoven with . . . the con-
`duct of foreign relations,” Harisiades v. Shaughnessy,
`342 U.S. 580, 588-89 (1952), a sphere that falls largely
`
`

`

`6
`within the executive branch’s purview. See INS v.
`Chadha, 462 U.S. 919, 954 (1983); Arizona v. United
`States, 567 U.S. 387, 394-95 (2012) (noting that the
`federal government’s authority over immigration
`“rests, in part, on the National Government’s . . . in-
`herent power as sovereign to control and conduct rela-
`tions with foreign nations”); Medellin v. Texas, 554
`U.S. 759, 765 (2008) (Breyer, J., dissenting) (acknowl-
`edging the “President’s responsibility for foreign af-
`fairs”).
`Reflecting these considerations, Congress has long
`recognized that the executive branch must have dis-
`cretion to determine how best to enforce the nation’s
`immigration laws by “balancing . . . factors which are
`peculiarly within its expertise,” Heckler v. Chaney, 470
`U.S. 821, 831 (1985), including foreign relations, hu-
`manitarian considerations, and national security con-
`cerns. Accordingly, Congress has repeatedly conferred
`authority on executive branch officials to exercise dis-
`cretion in enforcing the federal immigration laws. See
`Pet’rs Br. 16 (“Decisions about how the government
`will exercise enforcement discretion within the bounds
`of the law are uniquely entrusted to the Executive
`Branch.”). Indeed, as far back as 1959, a key immigra-
`tion law textbook reported that “Congress tradition-
`ally has entrusted the enforcement of its deportation
`policies to executive officers, and this arrangement has
`been approved by the courts.” Charles Gordon &
`Harry N. Rosenfield, Immigration Law and Procedure
`406 (1959); see Andorra Bruno et al., Cong. Research
`Serv., Analysis of June 15, 2012 DHS Memorandum,
`Exercising Prosecutorial Discretion with Respect to
`Individuals Who Came to the United States as Chil-
`dren 5 & n.18 (July 13, 2012) [hereinafter CRS Analy-
`sis of DHS Memorandum].
`
`

`

`7
`In particular, Congress has, for more than sixty
`years, authorized the Secretary of Homeland Security
`(previously the Attorney General) to “establish such
`regulations; . . . issue such instructions; and perform
`such other acts as he deems necessary for carrying out
`his authority” under the INA, 8 U.S.C. § 1103(a)(3),
`which charges him “with the administration and en-
`forcement” of the nation’s immigration laws, id.
`§ 1103(a)(1). Moreover, in recognizing a growing gap
`between the size of the unauthorized immigrant popu-
`lation and the resources reasonably available for en-
`forcement, Congress directed
`the Secretary of
`Homeland Security in the Homeland Security Act of
`2002 to “[e]stablish[] national immigration enforce-
`ment policies and priorities.” 6 U.S.C. § 202(5). These
`and other provisions in our federal immigration laws
`“delegat[e] tremendous authority to the President to
`set immigration screening policy.” Adam B. Cox &
`Cristina M. Rodríguez, The President and Immigra-
`tion Law, 119 Yale L.J. 458, 463 (2009). At a mini-
`mum, these provisions of federal immigration law
`authorize the executive to define enforcement and re-
`moval priorities. See J.A. 831 (“The practice of grant-
`ing deferred action, like the practice of setting
`enforcement priorities, is an exercise of enforcement
`discretion rooted in DHS’s authority to enforce the im-
`migration laws and the President’s duty to take care
`that the laws are faithfully executed.”).
`Indeed, this Court has repeatedly recognized that
`Congress has conferred broad discretion on the execu-
`tive branch in the immigration context, observing that
`“[a] principal feature of the removal system is the
`broad discretion exercised by immigration officials”
`and that “[f]ederal officials, as an initial matter, must
`decide whether it makes sense to pursue removal at
`all.” Arizona, 567 U.S. at 396; see AADC, 525 U.S. at
`
`

`

`8
`483 (“At each stage” of removal, “the Executive has dis-
`cretion to abandon the endeavor.”). This Court has
`also recognized that the executive branch’s broad dis-
`cretion allows its officers to consider many factors in
`deciding when removal is appropriate, including both
`“immediate human concerns” and “foreign policy” mat-
`ters. Arizona, 567 U.S. at 396-97; Jama v. ICE, 543
`U.S. 335, 348 (2005) (“Removal decisions . . . ‘may im-
`plicate our relations with foreign powers’ and require
`consideration of ‘changing political and economic cir-
`cumstances.’” (quoting Mathews v. Diaz, 426 U.S. 67,
`81 (1976))). And this Court has noted that executive
`grants of deferred action in particular have become “a
`regular practice” and a “commendable exercise in ad-
`ministrative discretion.” AADC, 525 U.S. at 483-84 (ci-
`tation and internal quotation marks omitted).
`Congress’s delegation of this discretion to the exec-
`utive branch is, in fact, essential: while the immigra-
`tion laws make a substantial number of noncitizens
`removable, Congress has not appropriated the funds
`necessary to effectuate such a mass removal—indeed,
`it has never come close to providing such vast re-
`sources. See Cox & Rodríguez, supra, at 463 (explain-
`ing that Congress has made a “huge fraction of
`noncitizens deportable at the option of the Executive”);
`Memorandum from John Morton, Dir., Immigration &
`Customs Enforcement (ICE), to All ICE Employees,
`Civil Immigration Enforcement: Priorities for the Ap-
`prehension, Detention, and Removal of Aliens 1 (Mar.
`2, 2011) [hereinafter Morton Prioritization Memoran-
`dum] (estimating that ICE has enough resources to de-
`port less than 4 percent of the undocumented-
`immigrant population each year). In other words,
`given the large population of undocumented immi-
`grants in the United States and the limited resources
`available to enforce the nation’s immigration laws—
`
`

`

`9
`even as appropriations for enforcement have reached
`particularly high levels, see Doris Meissner & Julia
`Gelatt, Migration Policy Inst., Eight Key U.S. Immi-
`gration Policy Issues: State of Play and Unanswered
`Questions 1 (May 2019) (“[T]he United States is spend-
`ing 34 percent more on immigration enforcement than
`on all other principal federal criminal law enforcement
`agencies combined.”)—the government cannot possi-
`bly remove everyone who is eligible for removal.
`Accordingly, the executive branch necessarily must
`exercise substantial discretion in determining who
`should be removed consistent with the nation’s “immi-
`gration enforcement policies and priorities.” 6 U.S.C.
`§ 202(5); see Mistretta v. United States, 488 U.S. 361,
`372 (1989) (“[I]n our increasingly complex society,
`. . . Congress simply cannot do its job absent an ability
`to delegate power under broad general directives.”).
`Even Petitioners recognize that, “[a]s a practical mat-
`ter, . . . the Executive Branch lacks the resources to re-
`move every removable alien, and a ‘principal feature of
`the removal system is the broad discretion exercised
`by immigration officials.’” Pet’rs Br. 4 (quoting Ari-
`zona, 567 U.S. at 396).
`Moreover, the discretion Congress has conferred on
`the executive branch to implement the immigration
`laws is not limited to decisions related to removal. To
`the contrary, Congress has also specifically given the
`executive branch significant authority over which per-
`sons are entitled to work in the United States. For ex-
`ample, the Immigration Reform and Control Act of
`1986 (IRCA) defines an “unauthorized alien” not enti-
`tled to work in the United States as an alien who is
`neither a lawful permanent resident nor “authorized
`to be . . . employed by [the INA] or by the Attorney Gen-
`eral [now the Secretary of Homeland Security].” 8
`U.S.C. § 1324a(h)(3) (emphasis added); see Pub. L. No.
`
`

`

`10
`99-603, 100 Stat. 3359, 3368 (1986). Thus, whether
`deferred action recipients can apply for work authori-
`zation “depend[s] on independent and more specific
`statutory authority rooted in the text of the INA,” J.A.
`833, and falls within the executive’s discretion.
`To be sure, executive discretion in the immigration
`context is not unlimited, and Congress remains free to
`“limit an agency’s exercise of enforcement power if it
`wishes, either by setting substantive priorities, or by
`otherwise circumscribing an agency’s power to dis-
`criminate among issues or cases it will pursue.”
`Chaney, 470 U.S. at 833. Congress has, for instance,
`directed the Secretary of Homeland Security to “prior-
`itize the identification and removal of aliens convicted
`of a crime by the severity of that crime.” Department
`of Homeland Security Appropriations Act, Pub. L. No.
`114-4, 129 Stat. 39, 43 (2015). But Congress has never
`sought to define enforcement priorities in such detail
`that the executive could not exercise its own judgment
`at all, nor has it sought to enumerate all the circum-
`stances in which a noncitizen may receive a given ac-
`commodation. Accordingly, this Court has observed
`that, when it comes to immigration, “[i]t is not neces-
`sary that Congress supply administrative officials
`with a specific formula for their guidance in a field
`where flexibility and the adaptation of the congres-
`sional policy to infinitely variable conditions constitute
`the essence of the program.” United States ex rel.
`Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (quot-
`ing Lichter v. United States, 334 U.S. 742, 785 (1948)).
`In short, through the INA and other legislation,
`Congress has intentionally given the executive branch
`broad discretion to rationally decide how best to imple-
`ment the nation’s immigration laws. See Supp. Pet.
`App. 8a-9a.
`
`

`

`11
`B. The Executive Branch Has Long Exercised
`This Broad Discretion with Congress’s
`Affirmative Approval.
`The executive has long exercised its broad discre-
`tion in the immigration context by implementing poli-
`cies involving deferred action and similar forms of
`discretionary relief, and Congress has affirmatively
`approved of, and relied on, those practices. “Since at
`least the 1970s, immigration authorities in the United
`States have sometimes exercised their discretion to
`grant temporary reprieves from removal to non-U.S.
`nationals . . . .” Ben Harrington, Cong. Research
`Serv., R45158, An Overview of Discretionary Reprieves
`from Removal: Deferred Action, DACA, TPS, and Oth-
`ers, at i (Apr. 10, 2018) [hereinafter CRS Overview].
`As this Court has recognized, “[t]his commendable ex-
`ercise in administrative discretion, developed without
`express statutory authorization, originally was known
`as nonpriority and is now designated as deferred ac-
`tion.” AADC, 525 U.S. at 484 (citation and internal
`quotation marks omitted); see CRS Overview at 15
`(noting that “[p]rior to 1975, immigration authorities
`used the term ‘nonpriority status’ to describe the type
`of reprieve now labeled deferred action”); Supp. Pet.
`App. 10a (tracing the practice of granting “nonpriority
`status” to at least the 1950s).
`In 1975, the Immigration and Naturalization Ser-
`vice (INS) issued its first formal guidance on deferred
`action. CRS Analysis of DHS Memorandum at 8. Fed-
`eral agencies have also promulgated regulations rec-
`ognizing deferred action since the 1980s. E.g., 8 C.F.R.
`§ 109.1(b)(7) (1984) (providing that recipients of de-
`ferred action are eligible to apply for work authoriza-
`tion)
`(reserved by 52 F.R. 16222
`(1987));
`id.
`§ 274a.12(c)(14) (1989) (describing deferred action as
`“an act of administrative convenience
`to
`the
`
`

`

`12
`government which gives some cases lower priority”);
`id. § 2

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