No. 18-587
`
`In the Supreme Court of the United States
`
`UNITED STATES DEPARTMENT OF HOMELAND
`SECURITY, ET AL.,
`
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
`Respondents.
`
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Ninth Circuit
`
`BRIEF OF AMICUS CURIAE EAGLE FORUM
`EDUCATION & LEGAL DEFENSE FUND IN
`SUPPORT OF PETITIONERS
`
`ANDREW L. SCHLAFLY
`939 Old Chester Rd.
`Far Hills, NJ 07931
`(908) 719-8608
`aschlafly@aol.com
`Counsel for Amicus Curiae
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`UNITED STATES DEPARTMENT OF HOMELAND
`SECURITY, ET AL.,
`
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
`Respondents.
`
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Ninth Circuit
`
`BRIEF OF AMICUS CURIAE EAGLE FORUM
`EDUCATION & LEGAL DEFENSE FUND IN
`SUPPORT OF PETITIONERS
`
`ANDREW L. SCHLAFLY
`939 Old Chester Rd.
`Far Hills, NJ 07931
`(908) 719-8608
`aschlafly@aol.com
`Counsel for Amicus Curiae
`
`
`
`
`
`
`i
`
`QUESTIONS PRESENTED
`
`
`
`This dispute concerns the policy of immigration
`enforcement discretion known as Deferred Action for
`Childhood Arrivals (“DACA”). In 2016, this Court
`affirmed, by an equally divided Court, a decision of the
`Fifth Circuit holding that two related Department of
`Homeland
`Security
`(“DHS”)
`discretionary
`enforcement policies, including an expansion of the
`DACA policy, were likely unlawful and should be
`enjoined. See United States v. Texas, 136 S. Ct. 2271
`(2016) (per curiam). In September 2017, DHS
`determined that the original DACA policy was
`unlawful and would likely be struck down by the
`courts on the same grounds as the related policies.
`DHS thus instituted an orderly wind-down of the
`DACA policy.
`
`The questions presented are as follows:
`
`1. Whether DHS’s decision to wind down the
`DACA policy is judicially reviewable.
`
`
`2. Whether DHS’s decision to wind down the
`DACA policy is lawful.
`
`
`
`
`
`
`iii
`
`TABLE OF CONTENTS
`
`
`
`
`
`Pages
`
`
`Questions Presented .............................................. i
`Table of Contents ................................................ iii
`Table of Authorities ............................................. iv
`Interests of Amicus Curiae ................................... 1
`Summary of Argument ......................................... 2
`Argument .............................................................. 4
`I. THE PETITION SHOULD BE GRANTED TO
`ADDRESS AN ISSUE OF IMMENSE NATIONAL
`IMPORTANCE: NATIONWIDE INJUNCTIONS
`BY DISTRICT COURTS AGAINST THE
`PRESIDENT ON IMMIGRATION POLICY. ............... 4
`II. WHILE SOME “DREAMERS” DESERVE
`PRAISE, IT IS FOR CONGRESS ALONE TO
`GRANT THEM CITIZENSHIP, AND THE PETITION
`SHOULD BE GRANTED TO CLARIFY THIS. .......... 7
`Conclusion ............................................................. 9
`
`
`
`
`
`
`
`iv
`TABLE OF AUTHORITIES
`
`Pages
`
`Cases
`Alexander v. Sandoval, 532 U.S. 275 (2001) ........ 6
`Califano v. Yamasaki, 442 U.S. 682 (1979) ......... 7
`City & Cty. of S.F. v. Trump,
` 897 F.3d 1225 (9th Cir. 2018)........................... 7
`Comcast Corp. v. Behrend,
` 569 U.S. 27 (2013) .......................................... 4-5
`L.A. Haven Hospice, Inc. v. Sebelius,
` 638 F.3d 644 (9th Cir. 2011) ............................ 7
`Madsen v. Women’s Health Ctr., Inc.,
` 512 U.S. 753 (1994) ........................................... 6
`Regents of the Univ. of Cal. v. United States
` Dep’t of Homeland Sec., 2018 U.S. App.
` LEXIS 31688 (9th Cir. Nov. 8, 2018) ................ 8
`Trump v. Hawaii, 138 S. Ct. 2392 (2018) ........ 3, 6
`United States v. Glaser,
` 14 F.3d 1213 (7th Cir. 1994) ............................ 4
`United States v. Mendoza,
` 464 U.S. 154 (1984) ........................................... 4
`United States v. Texas,
` 136 S.Ct. 2271 (2016) ......................................... i
`United States v. Truong Dinh Hung,
` 629 F.2d 908 (4th Cir. 1980) ............................ 8
`Wal-Mart Stores, Inc. v. Dukes,
` 564 U.S. 338 (2011) ........................................... 4
`
`
`Constitution, Statutes and Rules
`U.S. CONST. art. I, §8, cl. 4 .................................... 7
`
`
`
`v
`U.S. CONST. art. II, §3 ........................................... 7
`8 U.S.C. §§1101-1537 ............................................ 7
`8 U.S.C. §1252(g) .................................................. 5
`FED. R. CIV. P. 23 ................................................... 5
`S. Ct. R. 37.2(a) ..................................................... 1
`
`Other
`Angela Nagle, “The Left Case Against
`Open Borders,” American Affairs Vol. II,
`No. 4, 17-30 (Winter 2018)
`https://americanaffairsjournal.org/2018/11/
`the-left-case-against-open-borders/ .................. 8
`
`
`
`
`
`No. 18-587
`
`IN THE
`Supreme Court of the United States
`
`
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
`ET AL.,
`
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
`Respondents.
`
`
`On Petition for Writ of Certiorari to the United States
`Court of Appeals for the Ninth Circuit
`
`
`
`INTERESTS OF AMICUS CURIAE1
` Amicus curiae Eagle Forum Education & Legal
`Defense Fund (“EFELDF”) is a nonprofit corporation
`founded in 1981. For more than thirty-five years,
`EFELDF has defended American sovereignty and
`promoted adherence to federalism and the separation
`of powers under the U.S. Constitution. EFELDF has
`consistently opposed unlawful behavior, including
`illegal entry into and residence in the United States.
`
`1 No counsel for a party authored this brief in whole or in part.
`No person or entity other than Amicus, its members, or its counsel
`made a monetary contribution to the preparation or submission
`of this brief. Amicus files this brief after providing the requisite
`ten-day prior written notice to all parties, and obtaining written
`consent from all the parties to file this brief. See S. Ct. R. 37.2(a).
`
`
`
`
`2
`Phyllis Schlafly, the founder of EFELDF, was an
`outspoken defender of national sovereignty against
`open borders.
`For all these reasons, EFELDF has direct and vital
`interests in the issues before this Court.
`SUMMARY OF ARGUMENT
`This case presents yet another nationwide
`injunction issued by a federal court in California, as
`affirmed by the Ninth Circuit, which interferes with
`the clear authority by the Congress and the President
`to govern immigration. It is difficult to imagine a
`constitutional power for which judicial restraint is
`more important, and where nationwide injunctions by
`district courts are so unjustified. In light of the
`immense significance of this issue, and amid an
`epidemic of litigation over it, the Petition should be
`granted.
`As Justice Thomas wisely wrote in concurrence to
`a reversal last Term of another Ninth Circuit-related
`immigration decision:
`Injunctions that prohibit the Executive Branch
`from applying a law or policy against anyone —
`often called “universal” or “nationwide” injunctions
`— have become increasingly common. District
`courts,
`including the one here, have begun
`imposing
`universal
`injunctions
`without
`considering their authority to grant such sweeping
`relief. These injunctions are beginning to take a
`toll on the federal court system — preventing legal
`questions from percolating through the federal
`courts, encouraging forum shopping, and making
`every case a national emergency for the courts and
`for the Executive Branch.
`
`
`
`3
`Trump v. Hawaii, 138 S. Ct. 2392, 2424-25 (2018)
`(Thomas, J., concurring).
`These words of Justice Thomas have not yet been
`heeded, because here we are again having to deal with
`yet another overreaching nationwide injunction that
`undermines Congress and disrupts presidential
`authority. But it is even worse than that. Not only is
`the breadth of the injunction below unjustified, but the
`district
`court even
`lacked
`jurisdiction under
`Immigration and Naturalization Act and there was not
`any standing because mere agency action cannot
`create a federal right. The Ninth Circuit decision
`based its decision on anecdotal virtues of the
`“Dreamers” – the recipients of DACA benefits – but it
`is for Congress alone to decide whether to grant them
`American citizenship. Congress has chosen not to do
`so, and instead the judicial branch has conferred rights
`where none exists. This presents an urgent issue of
`national importance, which the Supreme Court should
`not defer or avoid.
`The decision below committed errors on matters of
`enormous significance to our entire Nation, and thus
`the Petition for Writ of Certiorari should be granted.
`
`
`
`
`
`I.
`
`4
`ARGUMENT
`THE PETITION SHOULD BE GRANTED TO
`ADDRESS AN ISSUE OF IMMENSE NATIONAL
`IMPORTANCE: NATIONWIDE INJUNCTIONS
`BY DISTRICT COURTS AGAINST THE
`PRESIDENT ON IMMIGRATION POLICY.
`Justice Thomas’s alarm bells against nationwide
`injunctions have not yet been heeded. They need to be.
`Nationwide injunctions, like the one below, create
`havoc in all three branches of government, including
`the judiciary itself. The President has publicly
`expressed his frustration at these injunctions, which
`all-too-often emanate from within the same few
`circuits. Congress is paralyzed by these injunctions
`from taking up legislation to address perceived
`problem. Courts in other jurisdictions are being
`improperly bound by injunctions from other courts
`that lack legitimate authority over them. See, e.g.,
`United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir.
`1994) (courts should be bound only by their appellate
`courts).
`Nationwide injunctions “substantially thwart the
`development of important questions of law by freezing
`the first final decision rendered on a particular legal
`issue,” as this Court has observed. United States v.
`Mendoza, 464 U.S. 154, 160 (1984). Moreover,
`injunctions which extend beyond the parties before the
`court are inconsistent with due process and not within
`any exceptions to it, such as class action litigation.
`Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348
`(2011) (“The class action is an exception to the usual
`rule that litigation is conducted by and on behalf of the
`individual named parties only.”) (inner quotations
`omitted). See also Comcast Corp. v. Behrend, 569 U.S.
`
`
`
`5
`27, 33 (2013) (“To come within the exception, a party
`seeking to maintain a class action must affirmatively
`demonstrate his compliance with Rule 23.”) (inner
`quotations omitted). No such exception exists for
`sweeping injunctions by district courts that alter
`immigration rights across the entire country.
`The nationwide injunction below is in particular
`need for review by this Court because the district court
`also lacks jurisdiction under the preclusion-of-review
`provision of the Immigration and Naturalization Act.
`“[N]o court shall have jurisdiction to hear any cause or
`claim by or on behalf of any alien arising from the
`decision or action by the Attorney General to
`commence proceedings, adjudicate cases, or execute
`removal orders against any alien under this Act.” 8
`U.S.C. § 1252(g).
`Moreover, there was no standing to support the
`injunction below either, because mere agency action
`cannot create a federal right. In vintage writing by
`Justice Scalia for the Court:
`Language in a regulation may invoke a private
`right of action that Congress through statutory text
`created, but it may not create a right that Congress
`has not. Thus, when a statute has provided a
`general authorization for private enforcement of
`regulations, it may perhaps be correct that the
`intent displayed in each regulation can determine
`whether or not it is privately enforceable. But it is
`most certainly incorrect to say that language in a
`regulation can conjure up a private cause of action
`that has not been authorized by Congress.
`Agencies may play the sorcerer’s apprentice but not
`the sorcerer himself.
`
`
`
`6
`Alexander v. Sandoval, 532 U.S. 275, 291 (2001)
`(citation omitted).
`Even when this Court has upheld in part an
`injunction sought by abortion clinics,
`it has
`emphasized that such remedy “should be no more
`burdensome to the defendant than necessary to
`provide complete relief to the plaintiffs.” Madsen v.
`Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994)
`(Rehnquist, C.J.). Yet nearly 25 years later, sweeping
`nationwide injunctions issued by district courts, like
`the one at issue here, go far beyond the parties in the
`case and what is necessary to grant them relief.
`Rather,
`immigration
`policy
`is
`plainly
`and
`impermissibly being made by the federal judiciary
`rather than by Congress. Nothing in the Constitution
`remotely supports such overreach.
`As decried by Judge Fernandez in dissenting from
`yet another immigration-related injunction upheld by
`the Ninth Circuit, in words that ring equally true on
`this Petition:
`While it goes without saying that I would vacate
`the injunction in its entirety, even if it were
`otherwise proper, the district court erred when it
`granted a nationwide injunction. It could have
`granted relief to the Counties without so doing. In
`fact, the whole concept of issuing nationwide
`injunctions
`is
`somewhat
`dubious.
`See
`Trump, U.S. at , 138 S. Ct. at 2425-29 (Thomas,
`J., concurring); cf. id. at , 138 S. Ct. at 2423
`(majority opinion) (declining to decide “propriety of
`the nationwide scope of the injunction”). They
`should at the very least be used with a great deal
`of caution. In general, a court should not stretch to
`impose its will further than is necessary to grant
`
`
`
`7
`relief to those before it. See L.A. Haven Hospice,
`Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011);
`see also Califano v. Yamasaki, 442 U.S. 682, 701-
`03, 99 S. Ct. 2545, 2558, 61 L. Ed. 2d 176 (1979).
`City & Cty. of S.F. v. Trump, 897 F.3d 1225, 1250 n.16
`(9th Cir. 2018) (Fernandez, J., dissenting).
`Strong supervision by this Court of the lower courts
`is needed, and soon. The Petition should be granted
`for this Court to rein in the epidemic of national
`injunctions against the President, particularly in this
`field of immigration. When it comes to national
`sovereignty, courts should not play the “sorcerer
`himself,” and the Petition should be granted to correct
`that error below.
`“DREAMERS” DESERVE
`II. WHILE SOME
`PRAISE, IT IS FOR CONGRESS ALONE TO
`GRANT THEM CITIZENSHIP, AND PETITION
`SHOULD BE GRANTED TO CLARIFY THIS.
`It is hardly controversial to observe that Congress
`alone has the power to establish immigration law, U.S.
`CONST. art. I, §8, cl. 4. Accordingly, Congress enacted
`the Immigration and Naturalization Act, 8 U.S.C.
`§§1101-1537 (“INA”), and it is not for the courts to
`change it. The essential role of the President is to
`ensure that immigration laws are faithfully executed.
`U.S. CONST. art. II, §3. In addition, the Executive
`Branch possesses
`rulemaking authority
`over
`immigration, as in other fields of law.
`All this leaves the judiciary with precious little
`legitimate authority over immigration policy. But that
`is how it should be, and the Petition should be granted
`to rein in the lower courts as they run far afield on this
`issue. Immigration is fundamentally an issue of
`
`
`
`8
`national sovereignty and foreign policy, to which
`courts should defer to the President rather than
`interfere with him. “[T]he executive branch not only
`has superior expertise
`in the area of
`foreign
`intelligence, it is also constitutionally designated as
`the pre-eminent authority in foreign affairs.” United
`States v. Truong Dinh Hung, 629 F.2d 908, 914 (4th
`Cir. 1980) (deferring to the president on the issue of
`wiretapping, without a warrant, foreigners while in
`the United States).
`Sympathetic anecdotes can be powerful, and
`decision below makes the most of them. “She … was
`awarded a scholarship that, together with her
`mother’s life savings, enabled her to fulfill her
`longstanding dream of attending and graduating from
`law school. Today, Garcia maintains a thriving legal
`practice in San Diego, where she represents members
`of underserved communities ….” Regents of the Univ.
`of Cal. v. United States Dep’t of Homeland Sec., 2018
`U.S. App. LEXIS 31688, at *18 (9th Cir. Nov. 8, 2018).
`No one doubts that the hard work deserves praise.
`But few DACA recipients graduate from law school,
`and some DACA recipients base their claim to
`beneficiary status in having criminal records that do
`not quite rise to the level of felonies. Suppl. Pet. App.
`15a. Moreover, the high achievers would do much to
`improve their own families’ country of origin, and
`perhaps serve even greater needs there, if they were
`not given citizenship here. See Angela Nagle, “The
`Left Case Against Open Borders,” American Affairs
`Vol. II, No. 4, 17-30 (Winter 2018).2 Regardless, this
`
`
`https://americanaffairsjournal.org/2018/11/the-left-case-
`2
`against-open-borders/ (viewed Dec. 4, 2018).
`
`
`
`9
`is a decision for Congress to make, and citation to a
`few success stories cannot justify a far broader grant
`of entitlement than Congress has given.
` The
`President is correct in faithfully executing the
`immigration laws that Congress has enacted, and it
`was reversible error for the courts below to rule
`otherwise.
`
`
`CONCLUSION
`For the foregoing reasons, the Petition for Writ of
`Certiorari should be granted.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: December 4, 2018
`
` Respectfully submitted,
`
`ANDREW L. SCHLAFLY
`939 Old Chester Rd.
`Far Hills, NJ 07931
`(908) 719-8608
`aschlafly@aol.com
`
`Counsel for Amicus Curiae
`Eagle Forum Education
`& Legal Defense Fund
`
`
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