Nos. 18-587, 18-588, and 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.
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`
`BRIEF OF AMICI CURIAE
`THE NATIONAL ASSOCIATION OF HOME
`BUILDERS, THE REAL ESTATE ROUNDTABLE,
`AND THE ESSENTIAL WORKER IMMIGRATION
`COALITION IN SUPPORT OF RESPONDENTS
`
`Gavin R. Villareal
`Counsel of Record
`BAKER BOTTS L.L.P.
`98 San Jacinto Blvd., Suite 1500
`Austin, Texas 78701
`(512) 322-2500
`gavin.villareal@bakerbotts.com
`
`Counsel for Amici Curiae
`[Additional Captions Listed on Inside Cover]
`
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
`
`
`
`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
`
`BRIEF OF AMICI CURIAE
`THE NATIONAL ASSOCIATION OF HOME
`BUILDERS, THE REAL ESTATE ROUNDTABLE,
`AND THE ESSENTIAL WORKER IMMIGRATION
`COALITION IN SUPPORT OF RESPONDENTS
`
`Gavin R. Villareal
`Counsel of Record
`BAKER BOTTS L.L.P.
`98 San Jacinto Blvd., Suite 1500
`Austin, Texas 78701
`(512) 322-2500
`gavin.villareal@bakerbotts.com
`
`Counsel for Amici Curiae
`[Additional Captions Listed on Inside Cover]
`
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
`
`
`
`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.
`MARTIN JONATHAN BATALLA VIDAL, et al.
`Respondents.
`
`On Writ of Certiorari Before Judgment
`to the United States Court of Appeals
`for the Second Circuit
`
`
`
`TABLE OF CONTENTS
`Table of Authorities ............................................................ iii
`Interest of Amici Curiae ..................................................... 1
`Introduction .......................................................................... 2
`Argument .............................................................................. 3
`I. DACA Provides Necessary Workers for the
`Struggling U.S. Construction Workforce ............. 3
`A. DACA recipients and other immigrants
`are a valuable part of the U.S. labor
`workforce. ......................................................... 3
`B. Threats to the immigrant workforce are
`threats to the U.S. economy, particularly
`the construction industry. ............................... 7
`C. Labor shortages hurt homebuilders and
`related service industries, and burden
`the availability of affordable housing. ............ 8
`II. The Decision to Terminate DACA is Subject
`to Judicial Review ................................................. 11
`A. Reviewability under the APA ....................... 11
`B. The DACA termination decision
`is
`reviewable. ...................................................... 16
`1. Chaney’s presumption does not
`extend to programmatic rescissions
`such as occurred here. ............................ 17
`2. Agency decisions not to act based on
`supposed lack of legal authority are
`subject to judicial review. ....................... 18
`3. Actions
`committed
`to
`agency
`discretion
`remain
`subject
`to
`constitutionality review. ......................... 21
`
`(i)
`
`
`
`ii
`ii
`Conclusion ........................................................................... 21
`Conclusion ........................................................................... 21
`
`
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`Abbott Laboratories v. Gardner,
`387 U.S. 136 (1967), abrogated on other
`grounds by Califano v. Sanders, 430 U.S. 99
`(1977) .............................................................................. 12
`Bowen v. Michigan Academy of Family
`Physicians,
`476 U.S. 667 (1986) ....................................................... 12
`Casa de Maryland v. U.S. Department of
`Homeland Security,
`284 F. Supp. 3d 758 (D. Md. 2018) ......................... 11, 19
`Citizens to Preserve Overton Park, Inc. v.
`Volpe,
`401 U.S. 402 (1971), abrogated on other
`grounds by Califano v. Sanders, 430 U.S.
`99 (1977) .............................................................. 12, 13, 14
`City of Arlington v. Federal Communications
`Commission,
`569 U.S. 290 (2013) .................................................. 15, 16
`Crowley Caribbean Transport, Inc. v. Pena,
`37 F.3d 671 (D.C. Cir. 1994) ................................... 17, 18
`Heckler v. Chaney,
`470 U.S. 821 (1985) ............................................... passim
`ICC v. Brotherhood of Locomotive Engineers,
`482 U.S. 270 (1987) .................................................. 20, 21
`International Longshoremen’s Association,
`AFL-CIO v. National Mediation Board,
`785 F.2d 1098 (D.C. Cir. 1986) .................................... 20
`
`(iii)
`
`
`
`iv
`
`Kenney v. Glickman,
`96 F.3d 1118 (8th Cir. 1996) ......................................... 17
`Lincoln v. Vigil,
`508 U.S. 182 (1993) ....................................................... 12
`Mach Mining, LLC v. Equal Employment
`Opportunity Commission,
`135 S. Ct. 1645 (2015) ................................................... 12
`Montana Air Chapter No. 29 v. Federal Labor
`Relations Authority,
`898 F.2d 753 (9th Cir. 1990) .............................. 14, 15, 20
`National Treasury Employees Union v.
`Horner,
`854 F.2d 490 (D.C. Cir. 1988) ...................................... 17
`OSG Bulk Ships, Inc. v. United States,
`132 F.3d 808 (D.C. Cir. 1998) ...................................... 17
`Robbins v. Reagan,
`780 F.2d 37 (D.C. Cir. 1985) ........................................ 18
`Texas v. United States,
`809 F.3d 134, 163-170 (5th Cir. 2015), cert.
`granted, 136 S. Ct. 906, and aff’d by an
`equally divided court, 136 S. Ct. 2271 (2016)
`(per curiam) .............................................................. 11, 19
`Webster v. Doe,
`486 U.S. 592 (1988) ....................................................... 21
`Weyerhauser Co. v. U.S. Fish & Wildlife
`Service,
`139 S. Ct. 361 (2018) ..................................................... 12
`
`STATUTES
`5 U.S.C. § 701 ...................................................................... 11
`5 U.S.C. § 701(a)(2) ..................................................... passim
`
`
`
`v
`5 U.S.C. § 702 ...................................................................... 11
`5 U.S.C. § 703 ...................................................................... 11
`5 U.S.C. § 704 ...................................................................... 11
`5 U.S.C. § 705 ...................................................................... 11
`5 U.S.C. § 706 ...................................................................... 11
`
`OTHER AUTHORITIES
`Ashok Chaluvadi, Top Challenges for Builders:
`Materials in 2018, Labor in 2019, NAHB: Eye
`on Housing (Mar. 18, 2019),
`http://eyeonhousing.org/2019/03/top-
`challenges-for-builders-materials-in-2018-
`labor-in-2019/ .................................................................. 7
`Deloitte, 2019 US Travel and Hospitality
`Outlook,
`https://www2.deloitte.com/content/dam/Deloitt
`e/us/Documents/consumer-business/us-
`consumer-2019-us-travel-and-hospitality-
`outlook.pdf ....................................................................... 5
`Exec. Order No. 13,878, 84 Fed. Reg. 30,853
`(June 25, 2019) .............................................................. 10
`Freddie Mac, The Major Challenge of Inadequate
`U.S. Housing Supply 1 (Dec. 2018),
`http://www.freddiemac.com/fmac-
`resources/research/pdf/201811-Insight-06.pdf ....... 9, 10
`Jie Zong, et al., A Profile of Current DACA
`Recipients by Education, Industry, and
`Occupation, Migration Policy Inst.: Fact
`Sheet 7 (Nov. 2017),
`https://www.migrationpolicy.org/sites/default/f
`iles/publications/DACA-Recipients-Work-
`Education-Nov2017-FS-FINAL.pdf ..................... 3, 6, 7
`
`
`
`vi
`Jie Zong, et al., A Profile of Current DACA
`Recipients by Education, Industry, and
`Occupation, Migration Policy Inst.: Fact
`Sheet 7 (Nov. 2017),
`https://www.migrationpolicy.org/sites/default/
`files/publications/DACA-Recipients-Work-
`Education-Nov2017-FS-FINAL.pdf ............................ 6
`NAHB, Housing Market Index: Special
`Questions on Labor and Subcontractors’
`Availability 16 (July 2019),
`http://eyeonhousing.org/wp-
`content/uploads/2019/08/July2019-SplQ-
`REPORT-EXTERNAL.pdf ......................................... 8
`NAHB, Housing Market Index: Special
`Questions on Significant Problems
`Builders Faced in 2018 and Expect to face
`in 2019 (Jan. 2019),
`http://eyeonhousing.org/wp-
`content/uploads/2019/03/HMI-Jan-2019-
`SplQ-REPORTEXTERNALFINAL.pdf ................... 8
`Natalia Siniavskaia, Immigrant Workers in the
`Construction Labor Force, NAHB (Jan. 2,
`2018),
`https://www.nahbclassic.org/generic.aspx?s
`ectionID=734&genericContentID=260375 .............3, 4
`New Am. Econ., Spotlight on the DACA-
`Eligible Population (Feb. 8, 2018),
`https://research.newamericaneconomy.org/r
`eport/spotlight-on-the-daca-eligible-
`population/ ....................................................................... 6
`
`
`
`vii
`Paul Emrath, Labor and Subcontractor Costs
`Outpacing Inflation, Raising Home Prices,
`NAHB: Eye on Housing (Sept. 10, 2018),
`http://eyeonhousing.org/2018/09/labor-and-
`subcontractor-costs-outpacing-inflation-
`raising-home-prices/ ....................................................... 9
`Paul Emrath, Labor Shortages Still Hurting
`Affordability, NAHB: Eye on Housing
`(Aug. 5, 2019),
`http://eyeonhousing.org/2019/08/labor-
`shortages-still-hurting-affordability/ ........................... 8
`PHI, U.S. Nursing Assistants Employed in
`Nursing Homes: Key Facts 3 (2019),
`https://phinational.org/wp-
`content/uploads/2019/08/US-Nursing-
`Assistants-2019-PHI.pdf ............................................4, 5
`PHI, Understanding the Direct Care
`Workforce: Key Facts & FAQ,
`https://phinational.org/policy-research/key-
`facts-faq/ (last visited Oct. 3, 2019) ............................... 5
`Robert Dietz, Construction Job Openings Up
`in July, NAHB: Eye on Housing (Sept. 10,
`2019),
`https://eyeonhousing.org/2019/09/constructi
`on-job-openings-up-in-july/ ........................................... 6
`Robert Dietz, Job Openings Slow, Still Higher
`Year-over-Year, NAHB: Eye on Housing
`(Aug. 6, 2019),
`http://eyeonhousing.org/2019/08/job-
`openings-slow-still-higher-year-over-year/ ................. 7
`
`
`
`viii
`Robert Espinoza, Immigrants and the Direct
`Care Workforce, PHI Research Br. (June
`2017), https://phinational.org/wp-
`content/uploads/2017/06/Immigrants-and-
`the-Direct-Care-Workforce-PHI-June-
`2017.pdf ............................................................................ 4
`Rose Quint, Housing Affordability Holds
`Steady at a 10-Year Low in the Fourth
`Quarter, NAHB: Eye on Housing (Feb. 14,
`2019),
`http://eyeonhousing.org/2019/02/housing-
`affordability-holds-steady-at-a-10-year-low-
`in-the-fourth-quarter/ .................................................. 10
`U.S. Travel Assocoation, U.S. Travel Answer
`Sheet,
`https://www.ustravel.org/answersheet (last
`visited Oct. 3, 2019) ......................................................... 5
`
`
`
`INTEREST OF AMICI CURIAE1
`The National Association of Home Builders (NAHB) is
`a trade federation of more than 700 state and local associ-
`ations whose mission is to enhance the climate for housing
`and the building industry. Chief among NAHB’s goals is
`providing and expanding opportunities for all people to
`have safe, decent, and affordable housing. About one-
`third of NAHB’s approximately 140,000 members are
`home builders or remodelers. NAHB members provide
`80% of all homes constructed in the United States.
`The Real Estate Roundtable (the Roundtable) brings
`together leaders of the nation’s top publicly-held and pri-
`vately-owned real estate ownership, development, lend-
`ing, and management firms with the leaders of major na-
`tional real estate trade associations to jointly address key
`national policy issues relating to real estate and the overall
`economy. By identifying, analyzing, and coordinating pol-
`icy positions, the Roundtable’s business and trade associ-
`ation leaders seek to ensure a cohesive industry voice is
`heard by government officials and the public about real es-
`tate and its important role in the global economy. Collec-
`tively, the Roundtable members’ portfolios contain over 12
`billion square feet of office, retail, and industrial proper-
`ties valued at more than $3 trillion; over two million apart-
`ment units; and more than three million hotel rooms. Par-
`ticipating trade associations represent more than two mil-
`lion people involved in virtually every aspect of the real
`estate business.
`
`1 No counsel for any party authored this brief in whole or in part and
`no entity or person, aside from amici curiae, their members, and their
`counsel, made any monetary contribution intended to fund the prepa-
`ration or submission of this brief. The parties have consented to the
`filing of this brief by blanket consent on file with the Court.
`(1)
`
`
`
`2
`The Essential Worker Immigration Coalition (EWIC)
`is a coalition of businesses, trade associations, and other
`organizations from across the industry spectrum con-
`cerned with the shortage of both lesser skilled and un-
`skilled labor. EWIC supports policies that facilitate the
`employment of essential workers by U.S. companies and
`organizations, as well as reform of U.S. immigration policy
`to facilitate a sustainable workforce for the American
`economy while ensuring our national security and pros-
`perity.
`In addition to their respective interests in ensuring the
`vitality of the nation’s construction workforce, the availa-
`bility of affordable housing, and the existence of equal em-
`ployment opportunities, amici each have a particular in-
`terest in ensuring appropriate judicial review of state and
`federal government decisions and actions.
`INTRODUCTION
`The U.S. construction industry, and the industries that
`provide related services to the real estate sector, are suf-
`fering from a prolonged labor shortage. Among other con-
`sequences, the labor shortage is increasingly hampering
`the construction and affordability of new homes. The
`country is not building enough new homes to keep pace
`with demand and maintain a healthy housing stock. Build-
`ers nationwide recognize the problem and report that the
`labor shortages are getting worse, creating a cascading
`impact on the pace of home construction and the price of
`new homes. The labor shortage is having similar negative
`effects in multiple support service industries, such as food
`preparation and serving, hotel and hospitality, health and
`elder care, and building and grounds cleaning and mainte-
`nance.
`It is undisputed that immigrants provide a valuable
`source of construction labor and play a significant role in
`the workforce that services buildings once constructed.
`
`
`
`3
`Taken together, about 41% of DACA recipients work in
`industries represented by amici.2 The decision to rescind
`the Deferred Action for Childhood Arrivals (DACA) policy
`threatens to further exacerbate the ongoing labor short-
`age and harm the U.S. economy, and make the American
`dream of homeownership harder than ever to achieve.
`Courts can and should play a role in such agency deci-
`sions, as every court below in these consolidated cases ap-
`propriately concluded (and as many of the amici States
`otherwise supporting respondents agree). The Court’s
`decision in Heckler v. Chaney, 470 U.S. 821 (1985), which
`established a presumption of nonreviewability of certain
`agency decisions, does not apply to the DACA rescission
`decision. To the contrary, that decision, based upon an
`agency’s presumption that it lacked legal authority to act
`otherwise, is precisely the type of agency determination
`that courts are well equipped to review.
`ARGUMENT
`I. DACA PROVIDES NECESSARY WORKERS FOR THE
`STRUGGLING U.S. CONSTRUCTION WORKFORCE
`A. DACA recipients and other immigrants are a
`valuable part of the U.S. labor workforce.
`Immigrants comprise an essential part of the U.S. la-
`bor workforce. For example, immigrant workers now ac-
`count for close to one in four workers in the construction
`industry, a percentage that has been rising since the Great
`Recession.3 The share of immigrants is even higher in
`
`2 Jie Zong, et al., A Profile of Current DACA Recipients by Educa-
`tion, Industry, and Occupation, Migration Policy Inst.: Fact Sheet 7
`(Nov. 2017), https://www.migrationpolicy.org/sites/default/files/pub-
`lications/DACA-Recipients-Work-Education-Nov2017-FS-
`FINAL.pdf.
`3 Natalia Siniavskaia, Immigrant Workers in the Construction La-
`bor Force, NAHB (Jan. 2, 2018), https://www.nahbclassic.org/ge-
`neric.aspx?sectionID=734&genericContentID=260375.
`
`
`
`4
`construction trades, reaching 30%, and is particularly high
`in some of the trades needed to build a home and that con-
`sistently register high labor shortages, such as carpen-
`ters, painters, drywall/ceiling tile installers, brick masons,
`and construction laborers.4
`Reliance on foreign-born workers is pronounced in
`some states. In 2018, immigrants comprised almost 42%
`of the construction workforce in California; 41% in Texas;
`37% in New York and Nevada; and 35% in Florida.5
`The
`importance of
`immigrant
`laborers extends
`throughout the national workforce. The role of immi-
`grants in providing direct health care and working as
`nursing assistants, who work in our nation’s hospitals, el-
`der care facilities, and other health care properties, is il-
`lustrative. In 2017, one in four workers providing hands-
`on care to older people and people with disabilities nation-
`wide was an immigrant, and that number continues to
`grow.6 Including independent providers, about one million
`immigrants work in direct health care services.7 Similarly,
`21% of nursing assistants were born outside of the United
`States, compared to 17% of all U.S. workers.8 The need
`for such health care workers is growing dramatically.
`From 2015 to 2050, the population of adults aged 65 and
`over will almost double, from 47.8 million to 88 million, and
`the number of adults over 85 will more than triple over the
`
`4
`
`Ibid.
`5
`Ibid.
`6 Robert Espinoza, Immigrants and the Direct Care Workforce,
`PHI Research Br. (June 2017), https://phinational.org/wp-content/up-
`loads/2017/06/Immigrants-and-the-Direct-Care-Workforce-PHI-
`June-2017.pdf.
`7
`Ibid.
`8 PHI, U.S. Nursing Assistants Employed in Nursing Homes:
`Key Facts 3
`(2019), https://phinational.org/wp-content/up-
`loads/2019/08/US-Nursing-Assistants-2019-PHI.pdf.
`
`
`
`5
`same time period, from 6.3 million to 19 million.9 As a re-
`sult, nursing homes will have to fill nearly 680,000 nursing
`assistant job openings by 2026, primarily as workers leave
`the field.10 The elder care industry will continue to rely on
`immigrants to fill that need.
`Likewise, the sustainability and growth of the U.S.
`travel industry—estimated to generate $2.5 trillion in eco-
`nomic output, supporting a total of 15.7 million American
`jobs, and generating $170.9 billion in tax revenue to sup-
`port infrastructure and other critical government ser-
`vices11—depends on the availability of foreign-born talent
`at all skill levels. Hotel and other lodging real estate as-
`sets confront serious workforce shortages.12 “Even
`though immigrants comprise only 13 percent of the US
`population—they account for 31 percent of the workforce
`in the hotel and lodging industry and 22 percent in restau-
`rants.”13
`DACA-eligible immigrants are a crucial component of
`the workforce in amici’s industries. Among the top ten
`industries employing DACA recipients, construction
`
`9 PHI, Understanding the Direct Care Workforce: Key Facts &
`FAQ, https://phinational.org/policy-research/key-facts-faq/ (last vis-
`ited Oct. 3, 2019).
`10 PHI, U.S. Nursing Assistants Employed in Nursing Homes:
`Key Facts 2
`(2019), https://phinational.org/wp-content/up-
`loads/2019/08/US-Nursing-Assistants-2019-PHI.pdf.
`11 U.S. Travel Ass’n, U.S. Travel Answer Sheet, https://www.us-
`travel.org/answersheet (last visited Oct. 3, 2019).
`12 Deloitte,
`2019 US Travel
`and Hospitality Outlook,
`https://www2.deloitte.com/content/dam/Deloitte/us/Docu-
`ments/consumer-business/us-consumer-2019-us-travel-and-hospi-
`tality-outlook.pdf. “In 2009, the US Bureau of Labor Statistics esti-
`mated 353,000 job openings across the leisure and hospitality sector.
`As of 2018, * * * that number swelled to 1,139,000.” Id. at 3 (footnote
`omitted).
`13 Id. at 11.
`
`
`
`6
`ranks second, employing more than 84,000.14 Of that
`group, more than 27,000 identify as construction labor-
`ers.15 A loss of these 84,000 workers amounts to more than
`20% of the July 2019 job openings in construction.16
`DACA recipients also account for material percent-
`ages of workers in a broad range of professions critical to
`serve the nation’s building infrastructure, where Ameri-
`cans live, work, shop, recreate, and heal. In a 2017 study,
`a combined 41% of the DACA recipients worked as labor-
`ers in construction, food preparation and serving, office
`and administrative support, building grounds cleaning and
`maintenance, and transportation and material moving.17
`The study estimates that 23% of DACA recipients serve
`the “arts, entertainment, recreation, accommodations and
`food services” industries, and 14% are in the “retail
`trade,”18 including personnel who work in malls and brick-
`and-mortar stores—key sectors that are essential to a
`thriving U.S. real estate industry.
`According to one past estimate, if the DACA rescission
`proceeds, an average of 915 DACA recipients each day will
`lose their work authorization and protection from
`
`14 New Am. Econ., Spotlight on the DACA-Eligible Population (Feb.
`8, 2018), https://research.newamericaneconomy.org/report/spotlight-
`on-the-daca-eligible-population/.
`15 Ibid.
`16 Robert Dietz, Construction Job Openings Up in July, NAHB: Eye
`on Housing (Sept. 10, 2019), https://eyeonhousing.org/2019/09/con-
`struction-job-openings-up-in-july/.
`17 Jie Zong, et al., A Profile of Current DACA Recipients by Educa-
`tion, Industry, and Occupation, Migration Policy Inst.: Fact Sheet 7
`(Nov. 2017), https://www.migrationpolicy.org/sites/default/files/pub-
`lications/DACA-Recipients-Work-Education-Nov2017-FS-
`FINAL.pdf.
`18 Id. at 6.
`
`
`
`7
`deportation.19 Such losses will degrade an already strug-
`gling U.S. labor market.
`B. Threats to the immigrant workforce are threats
`to the U.S. economy, particularly the construc-
`tion industry.
`The labor shortages in industries in which immigrants
`and DACA recipients are a material percentage of the
`workforce represent a substantial threat to the nation’s
`economy. While such shortages are troubling for many in-
`dustries, the lack of available workers is reaching crisis
`levels for the U.S. construction industry in particular. The
`number of open construction jobs nationwide has been in-
`creasing since the end of the Great Recession and reached
`post-Great Recession highs in 2019.20 The overall trend in
`this metric signals the ongoing need for additional work-
`ers in the construction industry.21
`Given the industry’s labor shortage, it is unsurprising
`that cost and availability of labor has risen dramatically as
`an area of significant concern among builders over the
`past eight years. In 2011, for instance, only 13% of resi-
`dential builders reported labor as a significant problem
`that they were currently facing.22 That percentage in-
`creased in every subsequent year: to 30% in 2012; 53% in
`2013; 61% in 2014; 71% in 2015; 78% in 2016; 82% in both
`2017 and 2018.23 In a January 2019 survey, 82% of
`
`19 Id. at 3.
`20 Robert Dietz, Job Openings Slow, Still Higher Year-over-Year,
`NAHB: Eye on Housing
`(Aug. 6, 2019), http://eyeonhous-
`ing.org/2019/08/job-openings-slow-still-higher-year-over-year/.
`21 Ibid.
`22 Ashok Chaluvadi, Top Challenges for Builders: Materials in 2018,
`Labor in 2019, NAHB: Eye on Housing (Mar. 18, 2019), http://eyeon-
`housing.org/2019/03/top-challenges-for-builders-materials-in-2018-
`labor-in-2019/.
`23 Ibid.
`
`
`
`8
`NAHB’s builder members identified cost and availability
`of labor as an area of expected significant concern for 2019,
`making it the number one such concern for builders.24
`In a recent survey of home builders, shortages of labor
`directly employed by builders were widespread.25 Many
`of the shortage percentages were little changed from
`where they were as of the same time in 2018.26 Averaged
`across nine labor occupations that NAHB has been con-
`sistently covering since the 1990s, the incidence of labor
`shortages reached 69% in 2019—the highest number on
`record.27
`C. Labor shortages hurt homebuilders and related
`service industries, and burden the availability of
`affordable housing.
`The ongoing and worsening labor and subcontractor
`shortages continue to impact the homebuilding industry in
`a number of ways, including placing additional upward
`pressure on new home prices. In July 2019, more than
`87% of builders reported the need to pay higher wages and
`higher subcontractor bids as a result of labor issues, 81%
`reported that issues with available labor made it difficult
`to complete projects on time, and 75% reported having to
`raise home prices as a result.28 Since 2015, rising labor
`
`24 NAHB, Housing Market Index: Special Questions on Significant
`Problems Builders Faced in 2018 and Expect to face in 2019, at 2 (Jan.
`2019), http://eyeonhousing.org/wp-content/uploads/2019/03/HMI-
`Jan-2019-SplQ-REPORTEXTERNALFINAL.pdf.
`25 Paul Emrath, Labor Shortages Still Hurting Affordability,
`NAHB: Eye on Housing
`(Aug. 5, 2019), http://eyeonhous-
`ing.org/2019/08/labor-shortages-still-hurting-affordability/.
`26 Ibid.
`27 Ibid.
`28 NAHB, Housing Market Index: Special Questions on Labor
`and Subcontractors’ Availability 16 (July 2019), http://eyeonhous-
`ing.org/wp-content/uploads/2019/08/July2019-SplQ-REPORT-
`
`
`
`9
`costs have outpaced inflationary effects. In 2018, for ex-
`ample, overall inflation was 2.9%, but labor costs increased
`by 5.2% over the same period.29
`Other effects of labor shortages are less common but
`nevertheless also on the rise. For example, the share of
`builders indicating that labor shortages have slowed the
`rate at which they accept incoming orders doubled be-
`tween 2015 and 2018 (from 16% to 32%).30 Even the least
`common of the effects—lost or cancelled sales—was up to
`26% in 2018, suggesting that the shortages are having a
`significant impact on production levels.31
`The labor shortages further complicate the unfortu-
`nate reality that the United States is not building enough
`housing to meet the country’s needs. According to a study
`by Freddie Mac, between 2011 and 2018, residential hous-
`ing construction has increased, but only gradually—and
`not enough to meet demand.32 Freddie Mac estimated that
`the annual rate of construction as of the end of 2018 was
`about 370,000 units below the level required by long-term
`housing demand.33 After years of low levels of building, a
`significant shortfall had developed, with between 0.9 and
`4.0 million too few housing units to accommodate long-
`term housing demand.34 Freddie Mac predicted that until
`
`EXTERNAL.pdf.
`29 Paul Emrath, Labor and Subcontractor Costs Outpacing Infla-
`tion, Raising Home Prices, NAHB: Eye on Housing (Sept. 10, 2018),
`http://eyeonhousing.org/2018/09/labor-and-subcontractor-costs-
`outpacing-inflation-raising-home-prices/.
`30 Ibid.
`31 Ibid.
`32 Freddie Mac, The Major Challenge of Inadequate U.S. Housing
`Supply 1 (Dec. 2018), http://www.freddiemac.com/fmac-resources/re-
`search/pdf/201811-Insight-06.pdf.
`33 Id. at 8.
`34 Id. at 2.
`
`
`
`10
`construction ramped up, housing costs would likely con-
`tinue rising above income, constricting household for-
`mation and preventing homeownership for millions of po-
`tential households.35 Indeed, housing affordability hov-
`ered at a ten-year low as of the end of 2018.36 In all, only
`56.6% of new and existing homes sold in the last quarter
`of 2018 were affordable to families earning the U.S. me-
`dian income of $71,900.37
`The current administration has expressed concern re-
`garding the issue of housing affordability. In establishing
`a White House Council on eliminating regulatory barriers
`to affordable housing, President Trump noted that “[f]or
`many Americans, access to affordable housing is becoming
`far too difficult.” Exec. Order No. 13,878, 84 Fed. Reg.
`30,853 (June 25, 2019). “Rising housing costs are forcing
`families to dedicate larger shares of their monthly incomes
`to housing. * * * These rising costs are leaving families
`with fewer resources for necessities such as food,
`healthcare, clothing, education, and transportation, nega-
`tively affecting their quality of life and hindering their ac-
`cess to economic opportunity.” Ibid.
`
`***
`The ongoing labor shortages in construction and re-
`lated services are negatively affecting the U.S. economy,
`causing among other problems a decrease in available af-
`fordable housing. Policy decisions that threaten the avail-
`ability of immigrant labor, such as the decision to rescind
`
`35 Id. at 8.
`36 Rose Quint, Housing Affordability Holds Steady at a 10-Year Low
`in the Fourth Quarter, NAHB: Eye on Housing (Feb. 14, 2019),
`http://eyeonhousing.org/2019/02/housing-affordability-holds-steady-
`at-a-10-year-low-in-the-fourth-quarter/.
`37 Ibid.
`
`
`
`11
`DACA, are likely to further exacerbate the labor short-
`ages and the negative consequences those shortages are
`already causing.
`II. THE DECISION TO TERMINATE DACA IS SUBJECT TO
`JUDICIAL REVIEW
`In each of the consolidated cases, petitioners con-
`tended below and reiterate in this Court that the decision
`to terminate DACA is not subject to judicial review, in part
`based on the “committed to agency discretion” exemption
`under Section 701(a)(2) of the Administrative Procedure
`Act (APA). 5 U.S.C. § 701(a)(2). Five federal courts, in-
`cluding the Ninth Circuit, have now rejected that argu-
`ment, albeit for slightly different reasons. 18-587 Gov’t
`Supp. Br. App. 23a-45a (9th Cir.); 18-587 Pet. App. 26a-33a
`(N.D. Cal.); 18-589 Pet. App. 24a-39a (E.D.N.Y); 18-588
`Pet. App. 19a-21a, 25a-43a (D.D.C.); Casa de Md. v. U.S.
`Dep’t of Homeland Sec., 284 F. Supp. 3d 758, 769-770 (D.
`Md. 2018); cf. Texas v. United States, 809 F.3d 134, 163-
`170 (5th Cir. 2015), cert. granted, 136 S. Ct. 906, and aff’d
`by an equally divided court, 136 S. Ct. 2271 (2016) (per cu-
`riam). In addition, although supporting petitioners on the
`merits of rescinding DACA, amici the States of Texas, Al-
`abama, Alaska, Arizona, Arkansas, Florida, Kansas, Lou-
`isiana, Nebraska, South Carolina, South Dakota, and West
`Virginia, and Mississippi Governor Phil Bryant, all agree
`with respondents that the decision to terminate the DACA
`program is subject to judicial review. States of Texas et
`al. Amicus Br. 30-32. That is indeed the correct conclusion.
`A. Reviewability under the APA
`The APA provides for judicial review of “agency ac-
`tion.” 5 U.S.C. §§ 701-706. Any person “adversely af-
`fected or aggrieved” by agency action, including a
`“fail[ure] to act,” is entitled to “judicial review thereof,” as
`long as the action is a “final agency action for which there
`is no other adequate remedy in a court.” Id. §§ 702, 704.
`
`
`
`12
`This Court has consistently articulated “a ‘strong pre-
`sumption’ favoring judicial review of administrative ac-
`tion.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651
`(2015) (quoting Bowen v. Mich. Acad. of Family Physi-
`cians, 476 U.S. 667, 670 (1986)); see also, e.g., Weyerhau-
`ser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370
`(2018) (noting that this Court has “long applied a strong
`presumption favoring judicial review of an administrative
`action” (quoting Mach Mining, 135 S. Ct. at 1653)); Lin-
`coln v. Vigil, 508 U.S. 182, 190 (1993) (“[W]e have read the
`APA as embodying a ‘basic presumption of judicial re-
`view.’” (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140
`(1967), abrogated on other grounds by Califano v. Sand-
`ers, 430 U.S. 99 (1977))). This Court has indicated that the
`APA’s review provisions are “generous” and that courts
`“must” give them “a hospitable interpretation.” Abbott
`Labs., 387 U.S. at 140-141 (citations omitted). The govern-
`ment carries a “heavy burden” to overcome the presump-
`tion of judicial review. Mach Mining, 135 S. Ct. at 1651.
`Section 701(a)(2) of the APA provides an exception to
`judicial review when “agency action is committed to
`agency discretion by law.” 5 U.S.C. § 701(a)(2). This
`Court has instructed that this “is a very narrow excep-
`tion.” Citizens to Preserve Overton Park, Inc. v. Volpe,
`401 U.S. 402, 410 (1971), abrogated on other grounds by
`Califano v. Sanders, 430 U.S. 99 (1977); see also Weyer-
`haeuser, 139 S. Ct. at 3
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