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.
`
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`REPLY BRIEF FOR THE PETITIONERS
`
`
`
` NOEL J. FRANCISCO
`Solicitor General
`Counsel of Record
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`Additional Captions Listed on Inside Cover
`
`
`In the Supreme Court of the United States
`
`
`
`DEPARTMENT OF HOMELAND SECURITY, ET AL.,
`PETITIONERS
`
`v.
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`REPLY BRIEF FOR THE PETITIONERS
`
`
`
` NOEL J. FRANCISCO
`Solicitor General
`Counsel of Record
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`Additional Captions Listed on Inside Cover
`
`
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
`ET AL., PETITIONERS
`ET AL., PETITIONERS
`’1).
`v.
`
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT
`OF COLORED PEOPLE, ET AL.
`OF COLORED PEOPLE, ET AL.
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`TO THE UNITED STATES COURT OF APPEALS
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF
`KEVIN K. MCALEENAN, ACTING SECRETARY OF
`HOMELAND SECURITY, ET AL., PETITIONERS
`HOMELAND SECURITY, ET AL., PETITIONERS
`’U.
`v.
`
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`TO THE UNITED STATES COURT OF APPEALS
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`FOR THE SECOND CIRCUIT
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`A. The Nielsen Memorandum should be considered .......... 2
`B. DACA’s rescission is not reviewable ............................... 7
`C. DACA’s rescission is lawful ............................................ 13
`D. The judgments and orders should be reversed ............ 22
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`
`
`Burlington Truck Lines, Inc. v. United States,
`371 U.S. 156 (1962)................................................................ 3
`Camp v. Pitts, 411 U.S. 138 (1973) ......................................... 4
`Casa de Maryland v. DHS, 924 F.3d 684
`(4th Cir. 2019), petition for cert. pending,
`No. 18-1469 (filed May 24, 2019) ......................................... 8
`Citizens to Preserve Overton Park v. Volpe,
`401 U.S. 402 (1971)................................................................ 4
`Department of Commerce v. New York,
`139 S. Ct. 2551 (2019) ................................................. 3, 6, 23
`FCC v. Fox Television Stations, Inc.,
`556 U.S. 502 (2009).............................................................. 16
`FCC v. National Citizens Comm. for Broadcasting,
`436 U.S. 775 (1978).............................................................. 21
`Heckler v. Chaney, 470 U.S. 821 (1985) ................. 7, 9, 10, 12
`ICC v. Brotherhood of Locomotive Eng’rs,
`482 U.S. 270 (1987).......................................................... 9, 10
`INS v. St. Cyr, 533 U.S. 289 (2001) ...................................... 12
`Judulang v. Holder, 565 U.S. 42 (2011) .............................. 12
`Massachusetts v. EPA, 549 U.S. 497 (2007) ................... 8, 21
`Michigan v. EPA, 135 S. Ct. 2699 (2015) ............................ 17
`Morgan Stanley Capital Grp. Inc. v. Public Util.
`Dist. No. 1, 554 U.S. 527 (2008) ........................................... 6
`
`(I)
`
`
`
`II
`
`Cases—Continued:
`
`Page
`
`Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
`Ins. Co., 463 U.S. 29 (1983) .......................................... 17, 20
`NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969) ............. 6
`National Treasury Emps. Union v. Von Raab,
`489 U.S. 656 (1989)................................................................ 5
`PDK Labs., Inc. v. DEA, 362 F.3d 786
`(D.C. Cir. 2004) ..................................................................... 6
`Reno v. American-Arab Anti-Discrimination
`Comm., 525 U.S. 471 (1999) ......................................... 10, 22
`United States v. Armstrong, 517 U.S. 456 (1996) .............. 10
`Utility Air Regulatory Grp. v. EPA, 573 U.S. 302
`(2014) .................................................................................... 19
`
`Constitution and statutes:
`U.S. Const. Art. II ................................................................. 19
`Administrative Procedure Act,
`5 U.S.C. 551 et seq., 5 U.S.C. 701 et seq.:
`5 U.S.C. 551(4) ................................................................... 4
`5 U.S.C. 551(13) ................................................................. 5
`5 U.S.C. 701(a)(2) ................................................... 9, 10, 12
`5 U.S.C. 706 ........................................................................ 6
`5 U.S.C. 706(2)(A) ............................................................ 12
`Department of Homeland Security Appropriations
`Act, 2010, Pub. L. No. 111-83, § 568(c),
`123 Stat. 2186 ...................................................................... 18
`Immigration and Nationality Act,
`8 U.S.C. 1101 et seq.:
`8 U.S.C. 1103(a)(1) ........................................................... 11
`8 U.S.C. 1182(d)(5)(A) ..................................................... 19
`8 U.S.C. 1252(b) (1988 & Supp. II 1990) ....................... 19
`8 U.S.C. 1324a .................................................................. 19
`8 U.S.C. 1324a(h)(3) ........................................................ 19
`
`
`
`
`
`III
`
`Miscellaneous:
`
`Page
`
`Dep’t of Homeland Sec., Memorandum from Secre-
`tary Kirstjen M. Nielsen on the Rescission of
`DACA (June 22, 2018), https://go.usa.gov/xp3BE ............. 5
`H.R. Rep. No. 911, 110th Cong., 2d Sess. (2008) ................ 18
`Memorandum from Donald Neufeld, Acting Assoc.
`Dir., Office of Domestic Operations, USCIS, to
`Field Leadership, USCIS, Guidance Regarding
`Surviving Spouses of Deceased U.S. Citizens and
`their Children (Sept. 4, 2009) ............................................ 18
`The White House, Remarks by the President on
`Immigration (June 15, 2012),
`https://go.usa.gov/xnZFY .................................................. 17
`U.S. Citizenship & Immigration Servs., Dep’t of
`Homeland Sec., Adjudicator’s Field Manual ................ 19
`
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
`No. 18-587
`
`DEPARTMENT OF HOMELAND SECURITY, ET AL.,
`PETITIONERS
`
`v.
`
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`
`
`
`ON WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`No. 18-588
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED
`STATES, ET AL., PETITIONERS
`
`v.
`
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT
`OF COLORED PEOPLE, ET AL.
`
`
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`No. 18-589
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF
`HOMELAND SECURITY, ET AL., PETITIONERS
`
`v.
`
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`
`ON WRIT OF CERTIORARI BEFORE JUDGMENT
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`
`
`REPLY BRIEF FOR THE PETITIONERS
`
`
`
`
`
`(1)
`
`
`
`2
`
`In 2012, the Department of Homeland Security
`(DHS) adopted DACA, a temporary policy of enforce-
`ment discretion that created a mechanism for up to 1.7
`million aliens to receive forbearance from removal and
`federal benefits, even though existing laws make it ille-
`gal for them to remain in the United States. That policy
`was itself illegal, and at a minimum legally questionable.
`For those reasons, and a host of policy concerns, DHS
`has been trying to rescind DACA for more than two
`years. Although respondents claim to accept DHS’s au-
`thority to do so, they ask this Court to review the
`change in policy under such rigorous requirements as
`to effectively preclude it. In their view, the “true cost-
`benefit analysis” that the Administrative Procedure Act
`(APA) purportedly requires “could not possibly justify
`this change.” Ind. Br. 59. Respondents’ approach to the
`APA bears no resemblance to this Court’s. DHS’s deci-
`sion to rescind a purely discretionary nonenforcement
`policy is not reviewable under the APA. And even if it
`were, the decision of a law-enforcement agency to re-
`scind this legally dubious policy not to enforce the law
`plainly satisfies any narrow review the APA provides.
`
`A. The Nielsen Memorandum Should Be Considered
`Although the Duke Memorandum provides ample
`basis to reverse the judgments below, the Court can and
`should also consider Secretary Nielsen’s explanation
`for DACA’s rescission, which confirms that it is both un-
`reviewable and lawful. U.S. Br. 28-31. No one argues
`that the Nielsen Memorandum is not properly before
`the Court at all. And although respondents argue that
`the Court should disregard the parts of it that doom
`their case, they are wrong for three related reasons.
`1. As the D.C. district court correctly concluded,
`most of Secretary Nielsen’s explanation is simply an
`
`
`
`
`
`3
`
`“amplified articulation” of Acting Secretary Duke’s ex-
`planation. NAACP Pet. App. 92a (citation omitted). No
`respondent meaningfully argues that the Court cannot
`consider Secretary Nielsen’s explanation of the unlaw-
`fulness rationale contained in the Duke Memorandum.
`And respondents offer (D.C. Br. 22) only one reason for
`disregarding her further explanation that, even if
`DACA ultimately might be found lawful, it should be re-
`scinded based on the costs of maintaining such a legally
`questionable nonenforcement policy—namely, that the
`Duke Memorandum purportedly did not sufficiently ar-
`ticulate those concerns. That is wrong. See p. 11, infra.
`Regardless, respondents acknowledge that, at a court’s
`invitation, an agency may offer a fuller explanation of a
`rationale that existed at the time of its decision but was
`too “curt[ly]” expressed. D.C. Br. 50 (citation omitted).
`That is precisely what Secretary Nielsen did when she
`explained that, “[l]ike Acting Secretary Duke,” she
`“lack[ed] sufficient confidence in the DACA policy’s le-
`gality” to maintain it. Regents Pet. App. 123a.
`2. More fundamentally, considering even new policy
`rationales offered by Secretary Nielsen would not vio-
`late the rule prohibiting a reviewing court from accept-
`ing “post hoc rationalizations for agency action.” Bur-
`lington Truck Lines, Inc. v. United States, 371 U.S. 156,
`168 (1962). That principle prevents thrusting courts
`“into the domain which Congress has set aside exclu-
`sively for the administrative agency,” id. at 169 (citation
`omitted), and generally precludes “judicial inquiry into
`‘executive motivation’ [that] represents ‘a substantial
`intrusion’ into the workings of another branch,” Depart-
`ment of Commerce v. New York, 139 S. Ct. 2551, 2573
`(2019) (citation omitted). It is not implicated when, as
`
`
`
`
`
`4
`
`here, the agency itself offers the explanation for agency
`action through proper agency procedures.
`Camp v. Pitts, 411 U.S. 138 (1973) (per curiam), is
`not to the contrary. There, the Court discussed the ap-
`propriate scope of “affidavits or testimony” that the
`agency could offer in defense of its action directly to the
`reviewing court, regardless of the required procedures
`for taking the action in the first place. Id. at 143. The
`Court, however, placed no limitations on the explana-
`tion an agency might offer if a court found the reasons
`initially offered were insufficient and the agency pro-
`vided additional ones in accordance with all relevant
`procedures. Ibid.; cf. Citizens to Preserve Overton Park
`v. Volpe, 401 U.S. 402, 420-421 (1971) (permitting con-
`sideration of the agency’s additional “formal findings,”
`even if considered “to some extent” “post hoc rationali-
`zation”). And, here, neither the Immigration and Na-
`tionality Act (INA) nor the APA requires any particular
`procedures at all for changes in enforcement policies.
`Respondents appear to acknowledge that Secretary
`Nielsen was free to offer entirely new rationales in a
`“new agency action.” D.C. Br. 52. But nothing in the
`APA required that the new action reinstate DACA and
`rescind it again, rather than ratify the rescission and
`state her reasons for doing so. And the latter is pre-
`cisely what Secretary Nielsen did, explicitly stating that
`the prior decision “remains” sound, that the DACA pol-
`icy “should be” rescinded, and that she both “decline[d]
`to disturb” the rescission and “concur[red] with” it for
`the reasons she articulated. Regents Pet. App. 121a,
`123a, 126a. Secretary Nielsen’s Memorandum is a
`“rule” setting forth “an agency statement of general
`* * *
` applicability and future effect designed to
`implement * * * policy.” 5 U.S.C. 551(4). It thus is
`
`
`
`
`
`5
`
`“agency action,” 5 U.S.C. 551(13), not solely an explana-
`tion of a past action.
`There is no need to “reset” the litigation for any new
`reasons to be considered. D.C. Br. 53 (citation omitted).
`Secretary Nielsen expressly based her decision on an
`already available administrative record—namely, the
`Duke Memorandum, the administrative record prof-
`fered for that decision, Acting Secretary Duke’s accom-
`panying statement, and the then-existing judicial opin-
`ions reviewing the Duke Memorandum, see Regents
`Pet. App. 121a—and the questions before the Court are
`purely legal. In resolving them, the Court can and
`should consider new agency actions “to the extent they
`supplement or displace [DHS’s] original directive.” Na-
`tional Treasury Emps. Union v. Von Raab, 489 U.S.
`656, 661 n.1 (1989).
`Respondents offer no sound reason why it should
`matter for purposes of considering the Nielsen Memo-
`randum that the D.C. district court’s vacatur of the
`Duke Memorandum had not taken effect or that the
`government continues to defend the Duke Memoran-
`dum. Such a rule would not serve “principle[s] of
`agency accountability.” D.C. Br. 51 (citation omitted).
`Contrary to respondents’ suggestion (id. at 52), Secre-
`tary Nielsen did not offer her explanation only in court
`filings. She publicly issued it in the same manner as the
`Duke Memorandum (and the original DACA memoran-
`dum). DHS, Memorandum from Secretary Kirstjen M.
`Nielsen on the Rescission of DACA (June 22, 2018),
`https://go.usa.gov/xp3BE. There is no “reason to sus-
`pect” that it “does not reflect the agency’s fair and con-
`sidered judgment.” D.C. Br. 52-53 (citation omitted).
`And respondents’ assertion (Cal. Br. 51) that consid-
`ering Secretary Nielsen’s reasons for rescinding the
`
`
`
`
`
`6
`
`DACA policy would “reduce the agency’s incentives for
`offering a sustainable rationale in the first instance” is
`not realistic. Even if it were costless to redo agency ac-
`tion, it is implausible that an agency would risk delaying
`the implementation of new policy by intentionally with-
`holding a well-reasoned explanation in the first instance.
`That is particularly so where, as is often true, doing so
`would require the agency to undertake time-consuming
`and costly efforts such as notice-and-comment rulemak-
`ing or adjudicative procedures.
`3. At a minimum, if the Nielsen Memorandum pro-
`vides an adequate basis to uphold DACA’s rescission,
`remanding the matter based on an inadequacy in the
`Duke Memorandum “would be an idle and useless for-
`mality.” NLRB v. Wyman-Gordon Co., 394 U.S. 759,
`766 n.6 (1969) (plurality opinion). The APA “does not
`require” courts to “convert judicial review of agency ac-
`tion into a ping-pong game.” Morgan Stanley Capital
`Grp. Inc. v. Public Util. Dist. No. 1, 554 U.S. 527, 545
`(2008) (citation omitted); see PDK Labs., Inc. v. DEA,
`362 F.3d 786, 800, 808-809 (D.C. Cir. 2004) (Roberts, J.,
`concurring in part and in the judgment) (“No principle
`of administrative law or common sense requires us to
`remand a case in quest of a perfect opinion unless there
`is reason to believe that the remand might lead to a dif-
`ferent result.”) (citation omitted). To the contrary, the
`APA requires courts to take “due account * * * of the
`rule of prejudicial error.” 5 U.S.C. 706; see Department
`of Commerce, 139 S. Ct. at 2573;
`Respondents contend (D.C. Br. 56) that it is “impos-
`sible * * * to predict” how DHS would respond if the
`Court remanded the matter to it. But that is manifestly
`untrue. DHS already has determined that the rescis-
`sion of the DACA policy was “proper” and therefore
`
`
`
`
`
`7
`
`that the policy “should” be terminated. Regents Pet.
`App. 122a. That judgment did not depend on whether
`DACA was lawful. Ibid. And DHS continues to defend
`all of Secretary Nielsen’s reasons before this Court.
`There is no basis for concluding that the agency’s posi-
`tion might change if it were required to consider the
`question a third time.
`
`B. DACA’s Rescission Is Not Reviewable
`As reflected in both the Duke and Nielsen Memo-
`randa, DHS’s decision to rescind its nonenforcement
`policy is a quintessential enforcement decision of the
`sort traditionally “committed to an agency’s absolute
`discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985).
`It is therefore unreviewable absent a statute “circum-
`scribing [the] agency’s power to discriminate among is-
`sues or cases it will pursue.” Id. at 833; see U.S. Br. 17-
`32. Respondents do not claim that the INA restricted
`DHS’s authority to rescind DACA. Their arguments that
`the rescission nevertheless is reviewable—because of the
`type of decision or the reasons given—are all flawed.
`1. Respondents principally attempt to distinguish
`DACA’s rescission from the type of decision at issue in
`Chaney on the ground (Ind. Br. 18-21) that the rescis-
`sion concerned a general enforcement policy, rather
`than an enforcement decision in an individual case. But
`Chaney itself concerned a categorical enforcement
`policy. Although the Food and Drug Administration
`(FDA) reached its decision in response to a request by
`individual inmates, in rejecting that request, FDA cat-
`egorically stated that “the use of lethal injection by
`State penal systems is a practice over which FDA has
`no jurisdiction” and, regardless, it would “decline, as a
`matter of enforcement discretion, to pursue supplies of
`
`
`
`
`
`8
`
`drugs under State control that will be used for execu-
`tion by lethal injection.” Pet. App. at 82a, 85a, Chaney,
`supra (No. 83-1878). Indeed, none of the relief that the
`inmates sought was specific to their cases; they sought
`system-wide relief. See id. at 81a-82a; e.g., id. at 82a
`(requesting that FDA “[a]dopt a policy” for seizing
`lethal-injection drugs “from prisons or State depart-
`ments of correction”). That forecloses respondents’ im-
`plausible suggestion (Cal. Br. 16) that Chaney would
`have been decided differently if FDA had announced its
`nonenforcement policy, like DHS did here, as a general
`“framework” before applying it to specific individuals.
`Respondents cite lower-court decisions that distin-
`guish between single-shot enforcement decisions and
`general policies on the ground that the latter are more
`likely to contain “direct interpretations of the com-
`mands of the substantive statute.” D.C. Br. 32 (citation
`omitted). But the Duke and Nielsen Memoranda ad-
`dress only the scope of DHS’s enforcement discretion,
`not the INA’s substantive commands. U.S. Br. 25-26.
`To the extent that some lower-court decisions may be
`read to authorize review of an enforcement policy itself,
`rather than an otherwise-reviewable substantive inter-
`pretation contained within it, they “simply cannot be
`reconciled with Chaney.” Casa de Maryland v. DHS,
`924 F.3d 684, 713 (4th Cir. 2019) (Richardson, J., dis-
`senting in relevant part). As for respondents’ reliance
`(D.C. Br. 33) on Massachusetts v. EPA, 549 U.S. 497
`(2007), that case concerned an agency’s denial of a peti-
`tion for rulemaking, which the Court specifically distin-
`guished from the type of “nonenforcement decision[]”at
`issue in Chaney and here. Id. at 527.
`Finally, respondents are wrong to suggest (Ind. Br.
`19) that DACA’s rescission itself is coercive because it
`
`
`
`
`
`9
`
`denies “DACA recipients the ability to work.” The
`Duke Memorandum explained that the agency would
`not “revoke Employment Authorization Documents solely
`based on the” rescission. Regents Pet. App. 118a. And
`the inability to obtain new or renewed work authoriza-
`tion is simply a collateral consequence of the termina-
`tion of the deferred-action policy—no different than if a
`prosecutor ends a nonenforcement policy that diverts
`certain low-level offenders into job-training or drug-
`rehabilitation programs.
`2. Respondents are also wrong to contend (Cal. Br.
`17-21) that, even if DACA’s rescission fits within the
`tradition identified in Chaney, it is reviewable because
`it was based solely on the conclusion that DACA was
`unlawful. U.S. Br. 23-32.
`a. Legally, where “the type of agency decision in
`question ‘has traditionally been “committed to agency
`discretion,” ’ ” it does not “become[] reviewable” when-
`ever the agency “gives a ‘reviewable’ reason” for the ac-
`tion. ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S.
`270, 282-283 (1987) (BLE) (quoting Chaney, 470 U.S. at
`832). Particularly where, as here, the government has
`no legal obligation to give any public explanation for its
`otherwise-unreviewable decision, it would be perverse
`to subject the decision to years of litigation because the
`government volunteered one. In determining whether
`an action is committed to agency discretion, “it is the
`[agency]’s formal action, rather than its discussion, that
`is dispositive.” Id. at 281. Section 701(a)(2) precludes
`review of “agency action,” not agency “reasons.”
`Respondents observe (Cal. Br. 21) that the agency
`action at issue in BLE was not a “non-enforcement de-
`cision” and was not “based on any purported lack of au-
`
`
`
`
`
`10
`
`thority.” But the Court refused to review the legal anal-
`ysis in the agency’s reconsideration decision in BLE by
`analogizing to precisely such a nonenforcement deci-
`sion. It explained that “a common reason for failure to
`prosecute an alleged criminal violation is the prosecu-
`tor’s belief (sometimes publicly stated) that the law will
`not sustain a conviction. * * * [Y]et it is entirely clear
`that the refusal to prosecute cannot be the subject of
`judicial review.” BLE, 482 U.S. at 283.
`That was not because of any “longstanding rule
`against suits to compel criminal prosecutions.” D.C. Br.
`28. It was based on the longstanding tradition of not
`subjecting “decision[s] whether or not to prosecute” to
`judicial review, reflecting concerns about invading the
`“special province” of the Executive and the general un-
`suitability of that class of decisions for judicial review.
`United States v. Armstrong, 517 U.S. 456, 464 (1996)
`(emphasis added) (quoting Chaney, 470 U.S. at 832).
`The same concerns apply to decisions to enforce federal
`immigration laws and, indeed, are “greatly magnified”
`given that the consequence of review is to “prolong a
`continuing violation” of federal law. Reno v. American-
`Arab Anti-Discrimination Comm., 525 U.S. 471, 490
`(1999) (AADC).
`Moreover, while it is true that BLE identified dis-
`tinct reasons for the tradition of not reviewing requests
`to reopen for material error, Regents Br. 25-26, the sa-
`lient point is that, whatever the particular reason for a
`tradition of unreviewability, Section 701(a)(2) “was
`meant to preserve” it. BLE, 482 U.S. at 282. And while
`the BLE Court did note that some types of refusal to
`reopen are reviewable (D.C. Br. 27), that is not due to
`the reasons the agency chooses to provide, but rather
`the substantive basis of the petitioner’s request.
`
`
`
`
`
`11
`
`482 U.S. at 278 (distinguishing “petitions alleging ‘new
`evidence’ or ‘changed circumstances’ ”).
`b. In any event, as a factual matter, DACA’s rescis-
`sion was not based solely on a legal conclusion. Acting
`Secretary Duke emphasized the threat of impending lit-
`igation, the Attorney General’s conclusion that it was
`“likely” that such litigation “would yield similar results”
`to the earlier litigation, and her resulting decision that
`the DACA policy “should” be wound down. Regents
`Pet. App. 115a-117a. The Duke Memorandum alone
`thus demonstrates that the decision has always been
`based, in part, on the Secretary’s “exercise of [her] au-
`thority in establishing national immigration policy,” id.
`at 117a, not just the Attorney General’s authority to is-
`sue “controlling” determinations of relevant “questions
`of law,” 8 U.S.C. 1103(a)(1).
`Respondents suggest (D.C. Br. 22-23) that Acting
`Secretary Duke must not have exercised such discretion
`because her memorandum does not contain an explicit
`“assessment of the costs of rescinding the policy
`weighed against the legal risk of maintaining it.” But
`such an exercise would serve little purpose where, as
`here, the relevant costs of maintaining the policy were
`not only monetary, but the damage to public confidence
`in DHS and in the rule of law, as well as the potential
`distraction from the agency’s important work. Regents
`Pet. App. 123a. And even if that criticism were relevant
`to whether the litigation-risk rationale was valid on the
`merits, it fails to show that the decision was not actually
`based on serious doubts about DACA’s legality.
`It is likewise irrelevant that the concerns about
`maintaining a legally questionable policy were paired
`with a conclusion that the DACA policy is, in fact, un-
`
`
`
`
`
`12
`
`lawful. It is not uncommon for courts or agencies to of-
`fer independent, alternative rationales for their deci-
`sions. Indeed, FDA in Chaney similarly concluded both
`that the agency “ha[d] no jurisdiction” over the States’
`“use of lethal injection,” and that, even if it did, “as a
`secondary and separate basis of denial,” the agency
`would not, “as a matter of enforcement discretion,” take
`the requested actions. Pet. App. at 82a, 85a, Chaney,
`supra (No. 83-1878). That fact provides no basis to call
`into question the sincerity of either ground.
`c. The Nielsen Memorandum, moreover, makes
`clear that DACA’s rescission is not based exclusively on
`legal rationales and thus is unreviewable. See Regents
`Pet. App. 123a-124a. Respondents are wrong that
`DACA’s rescission would still be reviewable to ensure
`that it was not “ ‘arbitrary’ and ‘capricious’ or an ‘abuse
`of discretion.’ ” Ind. Br. 26-27 (quoting 5 U.S.C.
`706(2)(A)). “[B]efore any review at all may be had, a
`party must first clear the hurdle of § 701(a),” and Sec-
`tion 701(a)(2) bars “abuse of discretion” review for ac-
`tions traditionally committed to agency discretion.
`Chaney, 470 U.S. at 828, 830.
`Judulang v. Holder, 565 U.S. 42 (2011), does not hold
`otherwise. That case did not involve enforcement dis-
`cretion. Instead, in an appeal from a final order of re-
`moval, the alien challenged the denial of a form of dis-
`cretionary relief that conferred lawful status. See INS
`v. St. Cyr, 533 U.S. 289, 295 (2001) (“If relief is granted,
`* * * the alien remains a permanent resident.”). The
`agency’s policy was reviewable because it did not fit
`within the tradition of unreviewability identified in
`Chaney, not because Section 706(2)(A) applies to all dis-
`cretionary decisions. Indeed, the case did not even ad-
`dress Section 701(a)(2).
`
`
`
`
`
`13
`
`C. DACA’s Rescission Is Lawful
`Even if judicially reviewable under the APA, DHS’s
`decision to rescind a nonenforcement policy that was at
`best legally uncertain—and, at worst, unlawful—was
`plainly rational. U.S. Br. 32-56.
`1. DACA’s rescission is justified by DHS’s concerns
`about maintaining the legally questionable nonenforce-
`ment policy, particularly in the face of impending litiga-
`tion. U.S. Br. 33-37.
`One set of respondents suggests that “litigation risk”
`can never be “an adequate, independent rationale for
`agency action.” Regents Br. 53-54. But not even the D.C.
`district court was willing to go that far. See NAACP Pet.
`App. 40a. And other respondents rightly disavow it. See
`Cal. Br. 21 (acknowledging that, in some contexts, a lit-
`igation-risk rationale “might” render the rescission un-
`reviewable). Indeed, it is commonplace for an agency to
`acquiesce in a federal court’s determination that a prior
`action is unlawful, even if it disagrees. After all, an
`agency is not required to push its questionable legal au-
`thority to its logical extreme.
`Recognizing such a possibility does not permit an
`agency to evade judicial review (assuming such review
`is even available). It simply shifts the focus of any re-
`view from the agency’s legal determination to its evalu-
`ation of the costs of maintaining a policy in the face of
`legal uncertainty. Abandoning administrative efforts on
`that basis will not always survive scrutiny because the
`legal doubts must be rational. But in the face of the Fifth
`Circuit’s decision affirming a preliminary nationwide
`injunction against DAPA and expanded DACA, and this
`Court’s equally divided affirmance, DHS was (more
`than) reasonably concerned about the legality of DACA,
`the possibility of an immediate court-ordered shutdown,
`
`
`
`
`
`14
`
`and the intangible costs to this law-enforcement agency
`of maintaining a legally dubious policy not to enforce the
`law, regardless whether courts might ultimately uphold
`it. Regents Pet. App. 123a; accord id. at 117a.
`Like the lower courts, respondents fault DHS for
`failing to address possible distinctions between DAPA
`and DACA that might have led the Fifth Circuit to
`reach a different conclusion with respect to DACA.
`N.Y. Br. 36-39. But respondents do no better in identi-
`fying any material distinction. U.S. Br. 35-36. And in
`nearly 300 pages of briefing, none of the respondents
`meaningfully grapples with the fact that the Fifth Cir-
`cuit held that both DAPA and expanded DACA were
`substantively unlawful—a judgment this Court af-
`firmed by an equally divided court. That was not a ju-
`dicial oversight. Everyone in that case simply agreed
`that the policies stood or fell together. See, e.g., U.S.
`Br. at 10-11, 45, United States v. Texas, No. 15-674.
`Some respondents assert that, unlike DACA, DAPA
`“would have classified recipients as ‘lawfully present in
`the United States.’ ” Ind. Br. 51 (citation omitted). But
`as other respondents effectively recognize (Cal. Br. 26
`n.5, 35), DACA is no different with respect to “lawful
`presence” than DAPA: while neither policy in fact
`makes it lawful to remain in the country, deferred action
`under either policy is deemed to satisfy statutory “law-
`ful presence” requirements for purposes of certain fed-
`eral benefits (e.g., social security) and the INA’s re-
`entry bars. Indeed, the highlighted portion of the DAPA
`memorandum explained the consequences of “deferred
`action” generally, not DAPA specifically. Regents Pet.
`App. 104a.
`Respondents criticize (Ind. Br. 52) DHS for failing to
`consider whether the Texas district court would have
`
`
`
`
`
`15
`
`exercised its discretion not to order an immediate shut-
`down of the DACA policy based on a balancing of the
`equities. Even if so, that would not address the intan-
`gible costs of maintaining a legally questionable nonen-
`forcement policy. And in any event, as long as DHS rea-
`sonably determined that the court likely would declare
`DACA substantively unlawful (as it did), it cannot be ir-
`rational for DHS to have concluded that—one way or
`another—the policy likely would be brought to an end.
`The question was whether the policy’s termination
`would be pursuant to a court-ordered plan or one set by
`DHS. The fact that the Texas court recently declined
`on equitable grounds to enjoin the DACA policy at an
`interlocutory stage of the latest challenge does not un-
`dermine that judgment. Cf. Regents Br. 54. Indeed,
`the court’s conclusion that the Fifth Circuit’s prior de-
`cision controls the unlawfulness of DACA on the merits
`powerfully vindicates DHS’s legal concerns.
`2. The rescission is independently justified by Sec-
`retary Nielsen’s enforcement-policy concerns. U.S. Br.
`37-43.
`Respondents inaccurately characterize Secretary
`Nielsen’s policy concerns as “recapitulat[ing]” her legal
`concerns. Cal. Br. 50 (citation omitted). Secretary Niel-
`sen explicitly stated that her policy concerns apply “re-
`gardless of whether the[] concerns about the DACA policy
`render it illegal or legally questionable.” Regents Pet.
`App. 123a. There is nothing unusual in maintaining that,
`even if certain substantive valu
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