Nos. 18-587 and 18-589
`444444444444444444444444444444444444444444
`IN THE
`Supreme Court of the United States
`____________________
`DEPARTMENT OF HOMELAND SECURITY, ET AL., Petitioners,
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`____________________
`KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND
`SECURITY, ET AL., Petitioners,
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`____________________
`On Petitions for Writs of Certiorari to the U.S.
`Courts of Appeals for the Ninth and Second Circuits
`____________________
`Brief Amicus Curiae of Citizens United, Citizens
`United Foundation, English First Foundation, Public
`Advocate of the U.S., The Senior Citizens League, 60
`Plus Foundation, Gun Owners of America, Gun
`Owners Foundation, Conservative Legal Defense
`and Education Fund, Patriotic Veterans, Policy
`Analysis Center, and Restoring Liberty Action
`Committee in Support of Petitioners
`____________________
`JOSEPH W. MILLER
`WILLIAM J. OLSON*
`RESTORING LIBERTY
`HERBERT W. TITUS
`ACTION COMMITTEE
`JEREMIAH L. MORGAN
`Fairbanks, AK 99708
`ROBERT J. OLSON
` WILLIAM J. OLSON, P.C.
`Attorney for Amicus Curiae
` 370 Maple Ave. W., Ste. 4
`RLAC
` Vienna, VA 22180
` (703) 356-5070
` wjo@mindspring.com
`Attorneys for Amici Curiae
`*Counsel of Record
`444444444444444444444444444444444444444444
`
`December 6, 2018
`
`
`444444444444444444444444444444444444444444
`IN THE
`Supreme Court of the United States
`____________________
`DEPARTMENT OF HOMELAND SECURITY, ET AL., Petitioners,
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
`____________________
`KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND
`SECURITY, ET AL., Petitioners,
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`____________________
`On Petitions for Writs of Certiorari to the U.S.
`Courts of Appeals for the Ninth and Second Circuits
`____________________
`Brief Amicus Curiae of Citizens United, Citizens
`United Foundation, English First Foundation, Public
`Advocate of the U.S., The Senior Citizens League, 60
`Plus Foundation, Gun Owners of America, Gun
`Owners Foundation, Conservative Legal Defense
`and Education Fund, Patriotic Veterans, Policy
`Analysis Center, and Restoring Liberty Action
`Committee in Support of Petitioners
`____________________
`JOSEPH W. MILLER
`WILLIAM J. OLSON*
`RESTORING LIBERTY
`HERBERT W. TITUS
`ACTION COMMITTEE
`JEREMIAH L. MORGAN
`Fairbanks, AK 99708
`ROBERT J. OLSON
` WILLIAM J. OLSON, P.C.
`Attorney for Amicus Curiae
` 370 Maple Ave. W., Ste. 4
`RLAC
` Vienna, VA 22180
` (703) 356-5070
` wjo@mindspring.com
`Attorneys for Amici Curiae
`*Counsel of Record
`444444444444444444444444444444444444444444
`
`December 6, 2018
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . iii
`
`INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1
`
`STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`
`SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 4
`
`ARGUMENT
`
`I. THE ACTION RESCINDING DACA IS
`JUDICIALLY UNREVIEWABLE. . . . . . . . . . . . . . . . 6
`
`A. The Attorney General’s Oath to Support
`the Constitution Is Equal to and
`Independent of the Judiciary . . . . . . . . . . . 7
`
`B. The Judicial Power “to Say what the
`Law Is” Is Neither Exclusive Nor Final. . 10
`
`C. The Executive’s Exercise of Power Is
`Politically Accountable to the People,
`Not the Courts. . . . . . . . . . . . . . . . . . . . . . 12
`
`II. THE SECRETARY’S DECISION TO RESCIND
`DACA WAS NOT ARBITRARY AND CAPRICIOUS
`BECAUSE THE ORIGINAL DECISION TO
`IMPLEMENT THE DACA POLICY WAS
`UNLAWFUL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
`
`III. THE NATIONWIDE INJUNCTIONS EXCEEDED
`THE DISTRICT COURTS’ AUTHORITY . . . . . . . . . 18
`
`
`
`ii
`
`IV. THE NEW YORK DISTRICT COURT
`
`ii
`IV. THE NEW YORK DISTRICT COURT
`ERRONEOUSLY CONCLUDED THAT ENDING
`DACA WOULD HARM THE SOCIAL SECURITY
`TRUST FUNDS.. . . . . . . . . . . . . . . . . . . . . . . . . . 23
`
`TRUST FUNDS ........................... 23
`
`ERRONEOUSLY CONCLUDED THAT ENDING
`
`DACA WOULD HARM THE SOCIAL SECURITY
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
`
`CONCLUSION .............................. 26
`
`
`
`iii
`TABLE OF AUTHORITIES
`
`Page
`
`U.S. CONSTITUTION
`Article II, Section 4 . . . . . . . . . . . . . . . . . . . . . . . . 12
`Article III, Section 2. . . . . . . . . . . . . . . . . . . . . . . 8, 9
`Article VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
`
`STATUTES
`5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
`8 U.S.C. § 1611(b)(2)-(3). . . . . . . . . . . . . . . . . . . . . 25
`
`CASES
`Janus v. AFSCME, Council 31, 138 S. Ct.
`2448 (2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
`Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . 11
`Texas v. United States, 809 F.3d 134 (5th Cir.
`2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
`Texas v. United States, 328 F.Supp.3d 662
`(S.D.TX. 2018) . . . . . . . . . . . . . . . . . . . . . . 17, 25
`Texas v. United States, 86 F. Supp. 3d 591
`(S.D.TX. 2015) . . . . . . . . . . . . . . . . . . . . . . 21, 22
`Trump v. Hawaii, 138 S.Ct. 2392 (2018). . . . . . . . 20
`Trump v. IRAP and Trump v. Hawaii, 582
`U.S. ____ 138 S. Ct. 34 (2017) . . . . . . . . . . . . . 19
`Washington v. Trump, 847 F.3d 1151 (9th Cir.
`2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
`
`MISCELLANEOUS
`A. Bickel, The Least Dangerous Branch
`(Yale Press: 1965) . . . . . . . . . . . . . . . . . . . . . . 10
`Blackstone’s Commentaries on the Laws of
`England (U. Chi. Press, Facsimile ed.:
`1765). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
`
`
`
`iv
`50 Core American Documents (C. Burkett,
`ed.: Ashbrook Press: 2016) . . . . . . . . . . . . . . . 11
`Congressional Research Service, “Social Security
`Benefits for Noncitizens” (Nov. 17, 2016) . . . . 25
`G. Gunther, Constitutional Law (12th ed.,
`Found. Press: 1991) . . . . . . . . . . . . . . . . . . . . . . 9
`Attorney General Jeff Sessions Remarks on
`Judicial Encroachment (Oct. 15, 2018). . . . . . 18
`J. Richwine, “Ninth Circuit Ruling on DACA
`Contains Several False or Misleading
`Statements,” Center for Immigration
`Studies (November 27, 2018) . . . . . . . . . . . . . . 3
`Social Security Administration, 2018 Annual
`Report of the Trustees (June 5, 2018). . . . 25, 26
`Social Security Administration, Office of the
`Chief Actuary, Actuarial Note No. 2017.9
`(July 2017), “Replacement Rates for
`Hypothetical Retired Workers”. . . . . . . . . . . . 24
`L. Tribe, American Constitutional Law
`(2d ed., Found. Press 1988) . . . . . . . . . . . . 12, 13
`
`
`
`INTEREST OF THE AMICI CURIAE1
`
`Citizens United, Public Advocate of the United
`States, The Senior Citizens League, Gun Owners of
`America, Inc., and Patriotic Veterans are nonprofit
`social welfare organizations, exempt from federal
`income tax under Internal Revenue Code (“IRC”)
`section 501(c)(4). Citizens United Foundation, English
`First Foundation, 60 Plus Foundation, Gun Owners
`Foundation, Conservative Legal Defense and
`Education Fund, and Policy Analysis Center are
`nonprofit educational and legal organizations, exempt
`from federal income tax under IRC section 501(c)(3).
`Restoring Liberty Action Committee is an educational
`organization. These organizations were established,
`inter alia, for purposes related to participation in the
`public policy process, including conducting research,
`and informing and educating the public on the proper
`construction of state and federal constitutions, as well
`as statutes related to the rights of citizens, and
`questions related to human and civil rights secured by
`law.
`
`Some of these amici filed amicus briefs in two of
`these cases earlier this year:
`
`• U.S. Department of Homeland Security v.
`Regents of the University of California, Brief
`
`1 It is hereby certified that counsel for the parties have consented
`to the filing of this brief; that counsel of record for all parties
`received notice of the intention to file this brief at least 10 days
`prior to the filing of it; that no counsel for a party authored this
`brief in whole or in part; and that no person other than these
`amici curiae, their members, or their counsel made a monetary
`contribution to its preparation or submission.
`
`
`
`2
`Amicus Curiae of Citizens United, et al., U.S.
`Supreme Court (Feb. 2, 2018); and
`
`• Vidal v. Nielsen, Brief Amicus Curiae of
`Citizens United, et al., U.S. Court of Appeals for
`the Second Circuit (Mar. 14, 2018).
`
`STATEMENT
`
`Even though the case below was initiated by the
`Regents of the University of California against Donald
`J. Trump, Ninth Circuit Judge Wardlaw would have
`the reader of her opinion believe that the sole plaintiff
`is Dulce Garcia. At the outset of her lengthy opinion,
`Judge Wardlaw devotes three detailed paragraphs to
`Garcia’s life, rising from a past of poverty and
`homelessness to a thriving “legal practice in San
`Diego,” all of which is now being put in jeopardy by “a
`change in presidential administrations.” Bd. of
`Regents, Univ. of California v. Trump, 2018 U.S. App.
`LEXIS 31688 at *18-*19 (9th Cir. 2018). It’s as if
`Garcia’s life story typifies the 689,800 noncitizens
`enrolled in Deferred Action for Childhood Arrivals
`(“DACA”) (id. at *34), each of whom is supposedly in
`imminent danger of deportation from this country,
`even though “the United States of America is the only
`home she has ever known,” having been brought here
`illegally at four years of age. Id. at *18. Judge
`Wardlaw’s broadside allegation seems better suited to
`having been made
`in opposition to Trump’s
`immigration policies on the campaign trail, rather
`than a recitation of facts in support of a judicial
`
`
`
`3
`
`opinion.2
`
`Her broad brush enables her to sweep into one
`group an entire class of DACA eligibles to speak with
`one voice that they, like Garcia, “trust[ed] the
`government to honor its promises,” and were entitled
`to “two-year renewable periods of deferred action,”
`even though DACA was a “revocable decision by the
`government not to deport an otherwise removable
`person from the country.” Regents at *19. And yet
`Judge Wardlaw contends that the Government would
`deny Garcia her day in court to contest the Trump
`administration’s decision to end DACA because of the
`Government’s “legal determination that DACA is
`unlawful is unreviewable by the judicial branch.” Id.
`at *20.
`
`However, as the Government points out in its
`Petition, its action rescinding the DACA program does
`not entail the “‘exercise [of] its coercive power over an
`individual’s liberty or property rights, and thus does
`not infringe upon areas that courts often are called
`upon to protect.’” Petition for Certiorari (“Pet.”) at 18.
`Furthermore, a person like Garcia is not likely to be
`deported given her present professional stature. And
`there is nothing in the record to indicate the likelihood
`of any adverse action, even after the repeal of DACA
`
`2 See J. Richwine, “Ninth Circuit Ruling on DACA Contains
`Several False or Misleading Statements,” Center for Immigration
`Studies (Nov. 27, 2018) (“In her ruling that the Trump
`Administration must continue [DACA], Ninth Circuit Judge Kim
`McLane Wardlaw makes several false or misleading statements
`intended to portray DACA recipients positively.”)
`
`
`
`4
`“‘for humanitarian reasons or simply for [the INS’s]
`own convenience.’” Regents at *22. Rescission of the
`DACA program, therefore, does not mean that the INS
`would no longer recognize what Judge Wardlaw terms
`“the cruelty and wastefulness of deporting productive
`young people to countries with which they have no
`ties,” or ignore “those noncitizens ... who have clean
`criminal records, and who meet various educational or
`military service requirements.” Id. at *18-*19. Thus,
`as Judge Wardlaw concedes, deferred action may be
`extended to individuals like Garcia under “the
`Executive’s inherent authority to allocate resources
`and prioritize cases.” Id. at *21-*22.
`
`SUMMARY OF ARGUMENT
`
`If, as the Ninth Circuit appears to believe, the
`continuation of DACA was an action within the
`judicially unreviewable discretion of the executive
`department of the Obama administration, then it
`would be only common sense that the action of the
`executive department of the Trump Administration
`rescinding DACA is similarly unreviewable. But the
`Ninth Circuit ruled otherwise, asserting that
`President Trump’s Attorney General transformed what
`would have been an exercise of discretion into a
`judicially reviewable act solely by his belief that DACA
`should be rescinded because it was initially an
`unconstitutional exercise of executive authority. The
`Ninth Circuit decision is erroneous.
`
`First, it is based upon the flawed assumption that
`the executive oath of office to support the Constitution
`is subject to review by the judiciary whereas the oaths
`
`
`
`5
`of office prescribed by Article VI of the Constitution
`apply separate and equally to officers of each of its
`three branches. Second, it is based upon the flawed
`assumption that judicial review of the constitutionality
`of the exercise of executive power is exclusive and
`final, measured only by court precedents, not by the
`constitutional text. And, third it is based on the
`flawed assumption that the federal judiciary is more
`accountable to the People, than the agencies of the
`executive department.
`
`The case before the court involves the lawfulness
`of the action by the Trump Administration to wind
`down and terminate the Obama Administration’s
`DACA policy. This was an issue on which President
`Trump campaigned, and which he was elected by the
`People to implement. The actions by the courts below
`assume the legality of DACA, rather than decide it.
`They have been seen by many as thwarting the
`expressed will of the People, not because DACA repeal
`violates a provision of the U.S. Constitution or a
`federal law, but because it violates the will of the
`Judges. If the American People do not believe they can
`change policy by changing Presidents, our nation will
`move into a dangerous time, that would resemble what
`France is now experiencing with the “Yellow Vest”
`riots.
`
`The issuance of nationwide, universal injunctions
`by courts proclaiming what the laws are for all rather
`than settling disputes between parties before it, is a
`new and troublesome development with serious
`repercussions for the rule of law. The ability of
`litigants to file challenges to Executive Branch action
`
`
`
`6
`in carefully selected jurisdictions to get rulings from
`judges thought to be predisposed to the plaintiffs’
`cause
`impairs
`the proper
`functioning of a
`constitutional republic. The Court should order
`briefing on the legality of universal injunctions in its
`order granting certiorari.
`
`The adverse effects on the nation from the DACA
`policy, including the financial drain from giving lawful
`status to hundreds of thousands of persons in the
`country illegally has been misrepresented in the courts
`below, demonstrating why
`judges with no
`responsibility for the public fisc should exercise great
`care in issuing orders imposing burdens on the People
`without responsibility or accountability to the
`electorate.
`
`ARGUMENT
`
`I. THE ACTION RESCINDING DACA IS
`JUDICIALLY UNREVIEWABLE.
`
`There can be little doubt that, had the DHS
`decided to continue DACA, its action would be
`judicially unreviewable as an exercise of executive
`discretionary power. As the Government points out in
`its petition, “[l]ike the decision to adopt a policy of
`selective non-enforcement, the decision whether to
`retain such a policy can ‘involve[] a complicated
`balancing’ of factors that are ‘peculiarly within [the]
`expertise’ of ... the agency’s overall policies.” Pet. in
`18-587 at 19. As the Government elaborated:
`
`a decision to abandon an existing non-
`
`
`
`7
`enforcement policy will not, in itself, bring to
`bear the agency’s coercive power over any
`individual. Indeed, an agency’s decision to
`reverse a prior policy of civil non-enforcement
`is akin to changes in policy as to criminal
`prosecutorial discretion, which regularly occur
`within the U.S. Department of Justice both
`within and between presidential
`administrations, and which have never been
`considered amenable to judicial review. [Id.]
`
`The Ninth Circuit panel opinion, however, appears to
`reject this claim of unreviewable discretion if the
`Government’s reason given in support of its decision
`not to retain DACA is that it was obliged by the
`Constitution to do so. Indeed, Circuit Judge Wardlaw
`goes to great lengths to establish that, on this record,
`the sole reason for the decision to jettison DACA was
`not a “pragmatic” assessment of “‘litigation risk[s],’”
`but the firm “belief that DACA was illegal.” Regents
`at *53-*57. In other words, Judge Wardlaw reached
`the conclusion that, because the DACA rescission was
`based on the Attorney General’s opinion that DACA
`was unconstitutional, it was a reviewable “act of
`discretion.” Id. at *57.
`
`A. The Attorney General’s Oath to Support
`the Constitution Is Equal to and
`Independent of the Judiciary.
`
`As an officer of the Executive Department of the
`United States, the Attorney General is bound by oath
`to support “this Constitution” of the United States.
`Pursuant to that oath of office, the Attorney General
`
`
`
`8
`determined that DACA “was an unconstitutional
`exercise of authority by the Executive Branch.”
`Regents at *32-*33. By his express reliance on the
`Constitution, Judge Wardlaw believed, the Attorney
`General’s action transformed what theretofore had
`been an exercise of executive discretion, unreviewable
`by the judicial branch, into a reviewable constitutional
`determination. Missing from the judge’s analysis is
`the fact that not only the judiciary is bound by oath to
`support “this Constitution” of the United States. The
`Attorney General, as an officer of the executive branch,
`must support the Constitution as he understands it.
`As such, the Attorney General is not akin to a junior
`member of the judicial branch, subject to oversight
`review by a higher judicial officer. Rather, Article VI
`of the Constitution treats officers in the executive and
`judicial branches of the federal government as equals,
`each independently bound by oath to support the
`Constitution in the exercise of his respective powers.
`
`Thus, the Attorney General is certainly not obliged
`by law or by his oath of office to submit his legal
`opinion for court review before he takes action on a
`constitutional matter before him. Indeed, had the
`Attorney General submitted his opinion for review by
`an Article III judge, he would have been rebuffed for
`having requested the courts for an “advisory opinion,”
`outside the jurisdiction of any federal court over cases
`and controversies. As all of the justices of the United
`States Supreme Court wrote to President Washington
`in 1793:
`
`[T]he three departments of the government
`
`
`
`9
`[being] in certain respects checks upon each
`other, and our being judges of a court in the
`last resort, are considerations which afford
`strong arguments against the propriety of our
`extrajudicially deciding questions alluded to,
`especially as the power given by the
`Constitution, of calling on the heads of
`departments for opinions, seems to have been
`purposely as well as expressly united to the
`[Quoted
`in G. Gunther,
`executive....
`Constitutional Law at 1393-94 (12th ed.,
`Found. Press: 1991).]
`
`Judge Wardlaw’s vision of the role of the judiciary
`appears to be at odds with the one envisioned by Chief
`Justice Jay.
`
`If an agency head is mistaken in her
`assessment that the law precludes one course
`of action, allowing the courts to disabuse her of
`that incorrect view of the law does not
`constrain discretion, but rather opens new
`vistas within which discretion can operate.
`[Regents at *47.]
`
`Elaborating, Judge Wardlaw hypothesized, “if an
`administrator chooses option A for the sole reason that
`she believes option B to be beyond her legal authority,
`a decision from the courts putting option B back on the
`table allows a reasoned, discretionary policy choice
`between the two courses of action.” Id. at *47-*48. In
`other words, why wait for an individual case or
`controversy to arise under Article III, Section 2, when
`the courts could step in and decide the legal questions
`
`
`
`10
`before anyone is injured by an erroneous legal decision
`by an administrative officer? Professor Alexander
`Bickel cautioned against such activist intervention:
`
`One of the chief faculties of the judiciary ... is
`that the judgment of courts can come later,
`after the hopes and prophecies expressed in
`legislation have been tested in the actual
`workings of our society; the judgment of courts
`may be had in concrete cases that exemplify
`the actual consequences of ... executive actions.
`[A. Bickel, The Least Dangerous Branch at
`115-16 (Yale Press: 1965).]
`
`
`B. The Judicial Power “to Say What the Law
`Is” Is Neither Exclusive Nor Final.
`
`Judge Wardlaw’s vision of an upfront, activist
`judiciary, intimately involved in the exercise of
`executive discretion, not only violates the separation of
`powers, but elevates the judiciary to new heights. Not
`only does she affirm the judiciary’s “province and duty
`... to say what the law is,” she assumes that its
`province and duty is both exclusive and final. It is
`neither.
`
`President Andrew Jackson, in his famous 1832
`message to the Senate explaining his veto of the bill
`rechartering the Bank of the United States, put the
`judiciary and its power of judicial review into its
`proper place in a government of separated powers:
`
`
`The Congress, the Executive, and the Court
`must each for itself be guided by its own
`
`
`
`11
`opinion of the Constitution. Each public
`officer who takes an oath to support the
`Constitution swears that he will support it as
`he understands it, and not as it is understood
`by others.... The opinion of the judges has no
`more authority over Congress than the opinion
`of Congress has over the judges, and on that
`point the President is independent of both.
`The authority of the Supreme Court must not,
`therefore, be permitted to control the Congress
`or the Executive when acting
`in their
`legislative capacities, but to have only such
`influence as the force of their reasoning may
`deserve. [Veto Message of the Bill on the Bank
`of the United States, reprinted in 50 Core
`American Documents at 166-67 (C. Burkett,
`ed.: Ashbrook Press: 2016).]
`
`In contrast, Judge Wardlaw believes that the
`judicial branch has the “ultimate responsibility” — or
`the final say — as to what the law is. Id. at *51. This
`is a serious misunderstanding of Marbury v. Madison
`which recognized that: “the very essence of judicial
`duty” is to decide the case “conformably” to the law or
`to the Constitution which ever one applies. Id., 5 U.S.
`137, 177-78 (1803). However, in Judge Wardlaw’s
`eyes, the judicial branch is apparently above the law,
`measuring the correctness of a judicial opinion of the
`law by its own precedents, not by any objective
`standard.3 In Blackstone’s day, “the laws of nature
`and of nature’s God” provided a universal standard by
`
`3 See, e.g., Janus v. AFSCME, Council 31, 138 S. Ct. 2448 at 2497-
`98 (2018) (Kagan, J., dissenting).
`
`
`
`12
`which law in a civil society could be measured. See I
`Blackstone’s Commentaries on the Laws of England
`38-43, 69-71 (U. Chi. Press, Facsimile ed.: 1765).
`Thus, Blackstone observed:
`
`“the law,” and the opinion of the judge are not
`always convertible terms, or one and the same
`thing; since it sometimes happens that the
`judge may mistake the law. [Id. at 71.]
`
`C. The Executive’s Exercise of Power Is
`Politically Accountable to the People, Not
`the Courts.
`
`Startlingly, Judge Wardlaw claims that, by
`expanding the power of the judicial branch, the federal
`government would “promote accountability within the
`Executive Branch — not accountability to the courts,
`but democratic accountability to the people.” Regents
`at *48. On its face, this claim is incredible. Of the
`three branches of the federal government, the judicial
`branch is the least accountable to the people. Both
`houses of Congress are directly elected by the people at
`fixed times and for limited terms of office. The
`President, although not directly elected by the people,
`must stand for election every four years, and may not
`stand for reelection after serving two of those four-year
`terms. In contrast, judges are appointed by the
`President with the advice and consent of the Senate,
`“hold[ing] their offices during good behavior.”
`
`Except for the remote threat of impeachment
`under Article II, Section 4, a federal judgeship has
`become a life-time appointment. As Harvard Professor
`
`
`
`13
`Lawrence Tribe has observed: “once appointed, they
`cease to be accountable even to the elected officials
`who nominated and confirmed them but rather are
`secured in their independence by life tenure and
`guaranteed salary.” L. Tribe, American Constitutional
`Law at 62 (2d ed., Found. Press 1988).
`
`That is not all. As Professor Tribe also points out:
`
`Perhaps even more significantly, judicial
`review is itself said to be antidemocratic since
`its result is the invalidation of government
`action, legislative or executive — action that,
`however indirectly, did have the sanction of
`the electorate. It is obvious, the critics argue,
`that if judicial review cuts against the grain of
`representative democracy,
`judges should
`invoke their power to strike down legislative
`and executive power only sparingly. [Id.]
`
`The decision to force the retention of DACA on the
`nation is nothing less than an unconscionable attempt
`to nullify the results of a presidential election.
`
`II. THE SECRETARY’S DECISION TO RESCIND
`DACA WAS NOT ARBITRARY AND
`CAPRICIOUS BECAUSE THE ORIGINAL
`DECISION TO IMPLEMENT THE DACA
`POLICY WAS UNLAWFUL.
`
`This case comes to this Court in a somewhat
`unusual procedural posture — a petition to review
`three lower court injunctions blocking the Trump
`Administration’s decision to wind down the DACA
`
`
`
`14
`program. As such, the issue of the legality of the
`original DACA program, and as amended, is not front
`and center. However, should this Court determine
`that the rescission of DACA is judicially reviewable
`(which these amici believe it is not, see Section I,
`supra), then these amici would urge that the
`lawfulness of the original DACA order be identified as
`one of the questions to be briefed when the writ is
`issued, for several reasons.
`
`In issuing his injunction District Judge Garaufis
`directly and repeatedly addressed the issue of the
`legality of DACA to support his view that its rescission
`was illegal. Vidal v. Nielsen, 279 F. Supp. 3d 401, 420-
`27 (E.D.NY. 2018). That fact alone makes it almost
`impossible to review the legality of the rescission
`without deciding the legality of DACA.
`
`
`Moreover, in evaluating the likelihood of success
`on the merits, Judge Garaufis assumed that the Duke
`Memorandum was based exclusively on the September
`4, 2017, one-page letter of the Attorney General to
`Acting Secretary Duke.
` See Memorandum on
`Rescission of Deferred Action for Childhood Arrivals
`(DACA) (Sept. 5, 2017) App. 111a, et seq. The judge
`flatly disagreed with every sentence of the Attorney
`General’s Memorandum. In one section of his
`argument, he claims that “The Attorney General Erred
`in Concluding that DACA was unconstitutional”(Vidal
`at 422), then, “The Attorney General Erred in
`Concluding that DACA Has the ‘Same Legal and
`Constitutional Defects that the Courts Recognized as
`to DAPA” (id. at 423), and finally that the Duke
`Memorandum “Relies on a Factually Erroneous
`
`
`
`15
`Premise that Courts Have Determined that DACA is
`Unconstitutional”
`(id. at 427). Each of these
`foundations for his injunction are refutable and should
`be reviewed by this Court.
`
`In fact, the DACA wind-down Memorandum issued
`by Acting Secretary Duke referenced the Attorney
`General’s letter, but was by no means limited to it.
`The Duke Memorandum asserted several bases for its
`issuance:
`
`• that the original DACA memorandum of June
`15, 2012, was based on a “purported” act of
`prosecutorial discretion, which could only be
`applied on “an individualized case-by-case
`basis.” Id. at 112a.
`
`• that the DACA memorandum “confer[ed]
`certain benefits to illegal aliens that Congress
`had not otherwise acted to provide by law.” Id.
`
`• that the Feb. 16, 2015 order of the U.S. District
`Court for the Southern District of Texas
`enjoining DAPA concluded that the states “were
`likely to succeed on their claim that the DAPA
`program did not comply with relevant
`authorities.” Id. at 113a.
`
`• that the U.S. Court of Appeals for the Fifth
`Circuit agreed that the “DAPA policy conflicted
`with the discretion authorized by Congress” as
`the Immigration and Nationality Act “flatly
`does not permit the reclassification of millions
`of illegal aliens as lawfully present and thereby
`
`
`
`
`
`16
`make them newly eligible for a host of federal
`and state benefits,
`including work
`authorization.” Moreover “‘DAPA is foreclosed
`by Congress’ careful plan; the program is
`“manifestly contrary to the statute” and
`therefore was properly enjoined.’” Id.
`
`Then, turning to the Attorney General’s input, she
`added:
`
`• that she had consulted with the Attorney
`General as to risk of litigation pending in Texas.
`Id. at 116a.
`
`• that the Attorney General sent a letter to the
`Department
`... articulating his
`legal
`determination that DACA “was effectuated by
`the previous administration through executive
`action, without proper statutory authority and
`no established end-date after Congress’
`repeated rejection of proposed legislation.” Id.
`
`• that the Attorney General stated that “Such an
`open-ended circumvention of immigration laws
`was an unconstitutional exercise of authority by
`the Executive Branch.” Id.
`
`
`
`Only after making all of those findings, does the
`Duke Memorandum make one passing reference to the
`Attorney General’s statement that DACA “has the
`same legal and constitutional defects that the courts
`recognized as to DAPA.” However, Judge Garaufis
`seized on that sentence to justify his injunction,
`stating “[t]his premise is flatly incorrect” as the Texas
`
`
`
`17
`courts’ findings were based on the Administrative
`Procedure Act, not the Constitution. Vidal at 427.
`Rather than finding a smoking gun, that statement is,
`at best, ambiguous as it could be read to reflect (i) the
`Attorney General’s misunderstanding of the holding of
`the court, or (ii) the Attorney General drawing a
`logical conclusion from findings and statements made
`by the courts, even though those courts did not
`ultimately decide the constitutional issues at that
`time. However, given all the other bases given for the
`decision,
`the Acting Secretary’s Memorandum
`certainly cannot simply be dismissed as having relied
`solely on the Attorney General’s statement about
`constitutionality.
`
`Lastly, Judge Garaufis seemed to find that the
`Sessions letter was “factually erroneous” because it
`concluded “that the Southern District of Texas and
`Fifth Circuit would enjoin the continued operation of
`the DACA program....” Id. at *61. However, in this
`case, it was Judge Garaufis who appears to have made
`the “erroneous” statement, not the Attorney General.
`In February 2018, District Judge Hanen issued a
`detailed explanation as to why DAPA and DACA were
`legally indistinguishable. See Texas v. United States,
`328 F.Supp.3d 662, 723-25 (S.D.TX. 2018).
`
`
`Thus, whether the prior administration’s DACA
`policy is lawful should be an important question on
`which this Court grants review. It would be entirely
`anomalous to say that one administrative action
`undoing another administrative action because it was
`unlawful
`is arbitrary and capricious without
`examining whether that initial administrative action
`
`
`
`18
`is lawful. Not to review the original DACA policy
`would only result in further delay and a waste of
`judicial resources, prolonging the controversy and
`effectively negating the vote of the American people in
`electing a new President to implement new policies
`different from a prior administration. Every year that
`DACA remains in place is another year of compelled
`adherence to the prior administration’s illegal DACA
`policy.
`
`INJUNCTIONS
`III. THE NATIONWIDE
`EXCEEDED THE DISTRICT COURTS’
`AUTHORITY.
`
`Former Attorney General Sessions recounted:
`
`In the first 175 years of this Republic, not a
`single judge issued one of these orders.
`But, they have been growing in frequency
`and, since President Trump took office less
`than two years ago, 27 district courts have
`issued such an order. [Attorney General Jeff
`Sessions Remarks on Judicial Encroachment
`(Oct. 15, 2018)4.]
`
`The cases below fall into that category. On January 9,
`2018, Judge William Alsup of the Northern District of
`California issued a preliminary injunction “to maintain
`the DACA program on a nationwide basis on the same
`terms and conditions as were in effect before the
`
` https://www.justice.gov/opa/speech/attorney-general-jeff-
`4
`sessions-delivers-remarks-heritage-foundation-judicial-encroac
`hment.
`
`
`
`19
`rescission on September 5, 2017,” with certain narrow
`exemptions. The district judge asserted “a nationwide
`injunction is appropriate” because:
`
`Our country has a strong interest in the
`uniform application of immigration law and
`policy. Plaintiffs have established injury that
`reaches beyond the geographical bounds of the
`Northern District of California. The problem
`affects every state and territory of the United
`States. [Regents of the Univ. of Cal. v. United
`States Dept. of Homeland Sec., 279 F.Supp.3d
`1011, 1048-49 (2018).]
`
`Judge Alsup cited two cases in support of his view,
`both of which have been substantially weakened by the
`passage of time.
`
`First, Judge Alsup relied on the Ninth Circuit’s
`
`opinion in Washington v. Trump, 847 F.3d 1151, 1167
`(9th Cir. 2017), enjoining President Trump’s Executive
`Orders and Proclamations to deny entry to aliens from
`certain countries, based on the need for uniformity in
`immigration law and policy.5 That reliance may not be
`well-founded, as revealed by the well-considered vie
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