Nos. 18-587, 18-588, & 18-589
`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.
`ON PETITION FOR A WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED
`STATES, ET AL., PETITIONERS
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`COLORED PEOPLE, ET AL.
`ON PETITION FOR A WRIT OF CERTIORARI BEF ORE
`JUDGMENT TO THE UNITED STATES COURT OF APPEALS
`FOR THE D.C. CIRCUIT
`
`
`
`
`KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND
`SECURITY, ET AL., PETITIONERS
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`ON PETITION FOR A WRIT OF CERTIORARI BEF ORE
`JUDGMENT TO THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`BRIEF FOR THE STATES OF TEXAS, ALABAMA,
`ARIZONA, ARKANSAS, FLORIDA, LOUISIANA,
`NEBRASKA, SOUTH CAROLINA, AND WEST
`VIRGINIA, AND GOVERNOR PHIL BRYANT OF
`THE STATE OF MISSISSIPPI, AS AMICI CURIAE
`IN SUPPORT OF PETITIONERS
`
`Counsel Listed on Inside Cover
`
`
`
`
`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.
`ON PETITION FOR A WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED
`STATES, ET AL., PETITIONERS
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`COLORED PEOPLE, ET AL.
`ON PETITION FOR A WRIT OF CERTIORARI BEF ORE
`JUDGMENT TO THE UNITED STATES COURT OF APPEALS
`FOR THE D.C. CIRCUIT
`
`
`
`
`KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND
`SECURITY, ET AL., PETITIONERS
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.
`ON PETITION FOR A WRIT OF CERTIORARI BEF ORE
`JUDGMENT TO THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`BRIEF FOR THE STATES OF TEXAS, ALABAMA,
`ARIZONA, ARKANSAS, FLORIDA, LOUISIANA,
`NEBRASKA, SOUTH CAROLINA, AND WEST
`VIRGINIA, AND GOVERNOR PHIL BRYANT OF
`THE STATE OF MISSISSIPPI, AS AMICI CURIAE
`IN SUPPORT OF PETITIONERS
`
`Counsel Listed on Inside Cover
`
`
`
`
`
`KEN PAXTON
`Attorney General of Texas
`
`JEFFREY C. MATEER
`First Assistant
` Attorney General
`
`
`
`
`
`
`
`
`
`
`KYLE D. HAWKINS
`Solicitor General
` Counsel of Record
`
`ARI CUENIN
`JOHN C. SULLIVAN
`Assistant Solicitors General
`
`OFFICE OF THE
` ATTORNEY GENERAL
`P.O. Box 12548 (MC 059)
`Austin, Texas 78711-2548
`kyle.hawkins@oag.texas.gov
`(512) 936-1700
`
`
`
`
`
`
`
`
`QUESTIONS PRESENTED
`1. Whether the decision of the Department of
`Homeland Security (DHS) to wind down the DACA pol-
`icy is judicially reviewable.
`2. Whether the DHS’s decision to wind down the
`DACA policy is lawful.
`
`
`
`
`(I)
`
`
`
`
`
`II
`II
`
`
`
`
`
`III
`
`TABLE OF CONTENTS
`
`Page
`Questions Presented ............................................................ I
`Table of Authorities ........................................................... IV
`Interest of Amici Curiae ...................................................... 1
`Summary of Argument ........................................................ 3
`Argument .............................................................................. 5
`I. Review Is Needed to Correct a Fundamental
`Misunderstanding of APA Review. ............................. 5
`A. A new administration’s decision to reverse
`its predecessor’s discretionary policies does
`not merit special scrutiny...................................... 5
`B. DACA’s wind-down satisfies APA review. .......... 8
`II. DACA’s Obvious Unlawfulness Is Further
`Reason to Grant Review. ............................................ 17
`A. DACA contravenes federal law. ......................... 17
`B. DACA is procedurally unlawful because it
`was promulgated contrary to the APA’s
`requirements. ....................................................... 18
`III. Granting Certiorari to Allow Resolution of All
`Three DACA-Rescission Challenges This Term Is
`Warranted. ................................................................... 23
`Conclusion ........................................................................... 24
`
`
`
`
`
`
`IV
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases:
`Ariz. Christian Sch. Tuition Org. v.
`Winn,
`563 U.S. 125 (2011) ......................................................... 7
`Brewer v. Arizona Dream Act Coalition,
`No. 16-1180 (U.S. May 1, 2017) ................................... 11
`Chrysler Corp. v. Brown,
`441 U.S. 281 (1979) ....................................................... 18
`FERC v. Elec. Power Supply Ass’n,
`136 S. Ct. 760 (2016) ....................................................... 8
`FCC v. Fox Television Stations, Inc.,
`556 U.S. 502 (2009) ................................................. 6, 7, 8
`Heckler v. Chaney,
`470 U.S. 821 (1985) ......................................................... 8
`McLouth Steel Prods. Corp. v. Thomas,
`838 F.2d 1317 (D.C. Cir. 1988) .................................... 18
`Morton v. Ruiz,
`415 U.S. 199 (1974) ........................................... 18, 19, 22
`Motor Vehicles Manufacturers Ass’n v.
`State Farm Mutual Automobile
`Insurance Co.,
`103 S. Ct. 2856 (1983) ..................................................... 7
`Nat’l Ass’n of Home Builders v. EPA,
`682 F.3d 1032 (D.C. Cir. 2012) ...................................... 6
`Nielsen v. Batalla Vidal,
`No. 18-589 (U.S. filed Nov. 5, 2018) .............................. 5
`
`
`
`
`
`V
`
`Perez v. Mortgage Bankers Ass’n,
`135 S. Ct. 1199 (2015) ................................................. 6, 7
`Prof’ls & Patients for Customized Care
`v. Shalala,
`56 F.3d 592 (5th Cir. 1995) .......................................... 18
`Regents of the Univ. of Cal. v. U.S. Dep’t
`of Homeland Sec.,
`908 F.3d 476 (9th Cir. 2018) ...................................... 3, 5
`Texas v. United States,
`328 F. Supp. 3d 662 (S.D. Tex. 2018)
`(Texas II) ............................................................. passim
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015), aff’d by an
`equally divided court, 136 S. Ct. 2271
`(2016) (per curiam) (Texas I) ............................. passim
`Trump v. Nat’l Ass’n for the
`Advancement of Colored People,
`No. 18-588 (U.S. filed Nov. 5, 2018) .............................. 5
`U.S. Dep’t of Homeland Sec. v. Regents
`of Univ. of Cal.,
`No. 18-587 (U.S. filed Nov. 5, 2018) .............................. 3
`
`Constitutional Provisions, Statutes, and Rules:
`U.S. Const. art. II, § 3 ....................................................... 7
`5 U.S.C.
`§ 551(4) ........................................................................... 18
`§ 701(a)(2) ........................................................................ 8
`8 U.S.C.
`§ 1611(b)(2)-(3) ........................................................ 20, 22
`§ 1621(d) .................................................................. 20, 22
`
`
`
`
`
`VI
`
`Sup. Ct. R. 37 ..................................................................... 1
`
`Miscellaneous:
`3d Am. Complaint, Batalla Vidal v.
`Nielsen, No. 1:16-cv-4756 (E.D.N.Y.
`Dec. 11, 2017), ECF No. 113 ....................................... 21
`AG Paxton Leads 10-State Coalition
`Urging Trump Administration to
`Phase Out Unlawful Obama-Era
`DACA Program,
`https://www.texasattorneygeneral.gov/
`news/releases/ag-paxton-leads-10-
`state-coalition-urging-trump-
`administration-to-phase-out (June 29,
`2017) ................................................................................. 9
`Br. for the State Respondents,
`United States v. Texas, 136 S. Ct. 2271
`(2016) (No. 15-674), 2016 WL 1213267 ........... 11, 17, 18
`Br. for the States of Texas et al.,
`Brewer v. Ariz. Dream Act Coalition,
`No. 16-1180, 2017 WL 1629324 (U.S.
`May 1, 2017) .......................................................... 11, 12
`Complaint, Regents of Univ. of Cal. v.
`U.S. Dep’t of Homeland Sec., No. 3:17-
`cv-5211 (N.D. Cal. Sept. 8, 2017), ECF
`No. 1 ............................................................................... 19
`Complaint, California v. U.S. Dep’t of
`Homeland Sec., No. 3:17-cv-05235-
`WHA (N.D. Cal. Sept. 11, 2017), ECF
`No. 1 ............................................................................... 21
`
`
`
`
`
`VII
`
`Complaint, Garcia v. United States, No.
`3:17-cv-5380 (N.D. Cal. Sept. 18, 2017),
`ECF No. 1 ..................................................................... 21
`Complaint, NAACP v. Trump, No. 1:17-
`cv-1907 (D.D.C. Sept. 18, 2017), ECF
`No. 1 ............................................................................... 21
`Complaint, New York v. Trump, No.
`1:17-cv-5228 (E.D.N.Y. Sept. 6, 2017),
`ECF. No. 1 .............................................................. 21, 22
`Complaint, Trs. of Princeton Univ. v.
`United States, No. 1:17-cv-2325 (D.D.C.
`Nov. 3, 2017), ECF No. 1 ............................................. 21
`H.R. Rep. No. 99-682(I), at 46, 51-52
`(1986), reprinted in 1986 U.S.C.C.A.N.
`5649, 5650, 5655-56 ....................................................... 12
`Josh Blackman, The Constitutionality of
`DAPA Part I: Congressional
`Acquiescence to Deferred Action, 103
`Geo. L.J. Online 96 (2015)............................................ 17
`Notice of Filing Administrative Record,
`Regents of Univ. of Cal. v. U.S. Dep’t of
`Homeland Sec.,
`No. 3:17-cv-05211 (N.D. Cal. Oct. 6,
`2017) ................................................................................. 2
`Oral Arg., Texas v. United States, 787
`F.3d 733 (5th Cir. 2015) (No. 15-40238),
`http://www.ca5.uscourts.gov
`/OralArgRecordings/15/15-40238_4-17-
`2015.mp3 ........................................................................ 11
`
`
`
`
`
`VIII
`
`Pls.’ Stip. Of Voluntary Dismissal,
`Texas v. United States,
`No. 1:14-cv-00254 (S.D. Tex. Sept. 12,
`2017) ................................................................................. 2
`
`
`
`
`
`
`
`
`
`INTEREST OF AMICI CURIAE
`Amici curiae are the States of Texas, Alabama,
`Arizona, Arkansas, Florida, Louisiana, Nebraska, South
`Carolina, and West Virginia, and Phil Bryant, Governor
`of Mississippi.1
`In these lawsuits, Plaintiffs asks courts to force the
`federal Executive Branch to retain a “deferred action”
`program (DACA) that the administration believes vio-
`lates the Constitution. The administration is correct:
`DACA affirmatively confers “lawful presence” status
`and work-authorization eligibility on over half a million
`aliens. DACA is thus materially identical to two pro-
`grams (Expanded DACA and DAPA) that were invali-
`dated by the Fifth Circuit in a ruling affirmed by an
`equally divided vote of this Court. See Texas v. United
`States, 809 F.3d 134, 172, 184-86 (5th Cir. 2015), aff’d by
`an equally divided court, 136 S. Ct. 2271 (2016) (per cu-
`riam) (Texas I). DACA is procedurally and substantive-
`ly unlawful for much of the same reasons this Court af-
`firmed in that case.
`Texas led the group of States successfully challeng-
`ing Expanded DACA and DAPA. Texas then led the
`group of States notifying the federal government that
`they would challenge DACA on the same grounds if
`
`
`1 No counsel for any party authored this brief, in whole or in
`part. No person or entity other than amici contributed mone-
`tarily to its preparation or submission. The parties received
`timely notice of filing, and consents have been provided to
`amici. See Sup. Ct. R. 37.
`
`
`(1)
`
`
`
`2
`
`
`DACA was not wound down. A.R. 238-40.2 It was be-
`cause of the Executive’s September 2017 DACA-wind-
`down memorandum that Texas and other States agreed
`to dismiss their pending lawsuit. Pls.’ Stip. of Voluntary
`Dismissal at 1, Texas v. United States, No. 1:14-cv-
`00254 (S.D. Tex. Sept. 12, 2017), ECF No. 473. And be-
`cause DACA’s rescission was enjoined, the Amici States
`ultimately filed suit seeking a declaration that DACA
`was unlawful. Texas v. United States, 328 F. Supp. 3d
`662 (S.D. Tex. 2018) (Texas II).
`The petition thus directly implicates the States’ ef-
`forts to bring about an orderly end to DACA.
`
`
`2 A.R. cites the Administrative Record, filed as Notice of Fil-
`ing Administrative Record, Regents of Univ. of Cal. v. U.S.
`Dep’t of Homeland Sec., No. 3:17-cv-05211 (N.D. Cal. Oct. 6,
`2017), ECF No. 64-1.
`
`
`
`
`
`3
`
`SUMMARY OF ARGUMENT
`I.A. When a new presidential administration de-
`cides to change—or even reverse—the discretionary
`policies of the previous one, its decision is not subject to
`any special scrutiny beyond that set out in the Adminis-
`trative Procedure Act (APA). The APA forbids the ad-
`ministration from acting in an arbitrary and capricious
`manner. That remains true both for the implementation
`of new policies and the rescission of old policies. The
`decision to terminate the previous administration’s poli-
`cy must meet that standard—and no other.
`B. The plaintiffs in these three cases join a litany of
`litigants around the nation who seek to upend that prin-
`ciple. They argue that rescinding DACA was not law-
`ful—and the Ninth Circuit has agreed. Regents of the
`Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d
`476, 510 (9th Cir. 2018). But that argument seeks to im-
`pose on the administration a burden the APA does not.
`The Executive does not act arbitrarily or capriciously
`by rescinding a prior administration’s policy that is not
`required by law and that the Executive concludes is
`substantively unlawful.
`That is especially so here. The Executive decided to
`wind down DACA after a new administration reex-
`amined its lawfulness and concluded that DACA would
`likely be held unlawful. Pet. App. 114a-18a.3 Nothing in
`the Immigration and Nationality Act (INA) or any oth-
`
`
`3 Pet. App. cites the Appendix to the Petition for a Writ of
`Certiorari Before Judgment in U.S. Dep’t of Homeland Sec.
`v. Regents of Univ. of Cal., No. 18-587 (S. Ct. filed Nov. 5,
`2018).
`
`
`
`4
`
`
`er federal law requires DACA, so its cancellation con-
`travenes no law. Moreover, in response to a lawsuit
`brought by Texas and a coalition of States, one district
`court already has concluded that DACA is likely unlaw-
`ful as both a substantive and procedural matter. Under
`these circumstances, the Executive’s decision satisfies
`APA review.
`This case thus presents an opportunity for the
`Court to clarify that the cancellation of DACA, like
`many other discretionary policy decisions, does not
`merit some special scrutiny beyond that set out in the
`APA. Applying the correct scrutiny, the plaintiffs’ chal-
`lenge fails.
`II.A. The Executive’s decision to wind down DACA
`is especially justified because DACA is substantively
`and procedurally unlawful. DACA is unlawful for the
`same reasons that Expanded DACA and DAPA were
`held unlawful in the previous Texas I litigation. See 809
`F.3d at 172, 184-86. It is substantively flawed because it
`goes further than mere “prosecutorial discretion” not to
`deport individuals. DACA confers legal status on indi-
`viduals, contravening congressional authority to make
`such determinations.
`B. DACA is also procedurally unlawful. The plead-
`ings in the DACA-rescission litigation confirm that it
`altered substantive rights, yet was issued without APA
`notice and comment. The Executive cannot be ordered
`to maintain such an unlawful program. Thus, even on
`plaintiffs’ view of notice-and-comment requirements,
`injunctions forcing the Executive Branch to continue
`with DACA cannot be justified.
`III. The Court should grant certiorari and reverse
`all orders enjoining the Executive from winding down
`
`
`
`5
`
`
`DACA. Although the Ninth Circuit ruled in Regents of
`the University of California after petitioners filed their
`petition for a writ of certiorari before judgment, 908
`F.3d 476, amici agree that granting certiorari in that
`case is appropriate, Supp. Pet. Br. 9-10. The Ninth Cir-
`cuit’s ruling strengthens the case for granting certiorari
`before judgment in Trump v. National Ass’n for the
`Advancement of Colored People, No. 18-588 (filed Nov.
`5, 2018), and Nielsen v. Batalla Vidal, No. 18-589 (filed
`Nov. 5, 2018), and consolidating the cases for considera-
`tion this Term. Only this Court can provide definitive
`resolution to the dispute over DACA’s rescission.
`Immediate review is especially warranted here be-
`cause of the ongoing irreparable harm that DACA in-
`flicts on the States. “[B]ecause DACA increases the to-
`tal number of aliens in the States by disincentivizing
`those already present from leaving, the States must
`provide more . . . social services, which cost more.” Tex-
`as II, 328 F. Supp. 3d at 700. And DACA “allow[s] its
`recipients to compete with legally present residents”
`for jobs. Id.
`
`ARGUMENT
`I. Review Is Needed to Correct a Fundamental
`Misunderstanding of APA review.
`A. A new administration’s decision to reverse its
`predecessor’s discretionary policies does not
`merit special scrutiny.
`The arguments against DACA’s rescission reflect
`plaintiffs’ fundamental misunderstanding of APA re-
`view. Under their view, a court may rely on policy dif-
`ferences and supposed reliance interests to second-
`guess an agency determination that seeks to change a
`
`
`
`6
`
`
`policy from a prior administration. And all this even
`though the agency acts in the same manner to amend
`the policy as the agency did to enact it in the first in-
`stance.
`That is not the law. New presidential administra-
`tions bring changes in policy and agency priorities. So
`long as an agency acts within its realm of authority, its
`decision to alter a policy determination—or even re-
`verse course—is not subject to an enhanced standard of
`review. See FCC v. Fox Television Stations, Inc., 556
`U.S. 502, 513 (2009); Nat’l Ass’n of Home Builders v.
`EPA, 682 F.3d 1032, 1036-37 (D.C. Cir. 2012) (describ-
`ing the argument that agency reversal is subject to
`more searching review as “largely foreclosed” by Fox
`Television Stations). This flows from the APA’s narrow
`scope of review that limits the judicial inquiry. Fox Tel-
`evision Stations, Inc., 556 U.S. at 514. Critically, courts
`must not impose substantive judgments on the contest-
`ed issue and review those policy shifts only for fidelity
`to APA procedures—even when reliance interests are
`at issue. Perez v. Mortgage Bankers Ass’n, 135 S. Ct.
`1199, 1207 (2015).
`As this Court admonished in Mortgage Bankers,
`courts have no authority to impose procedural require-
`ments beyond those stated in the APA. Id. Procedural
`fairness does not prevent an agency from “unilaterally
`and unexpectedly” adopting a different interpretation
`of a regulation the agency is charged with implement-
`ing. Id. at 1209. Although agencies cannot simply ignore
`when the new policy “rests upon factual findings that
`contradict those which underlay its prior policy,” they
`need only provide a reasoned explanation and justify
`
`
`
`7
`
`
`the change. Id. The APA sets the maximum procedural
`obligations for which agencies must adhere. Id. at 1207.
`Fundamentally, an agency’s policy change need sat-
`isfy only the standard it would be held to in the first in-
`stance under the APA. Fox Television Stations, 556
`U.S. at 515. “This means that the agency need not al-
`ways provide a more detailed justification than what
`would suffice for a new policy created on a blank slate.”
`Id. There is “no basis . . . for a requirement that all
`agency change be subjected to more searching review.”
`Id. at 514. The Court made clear that Motor Vehicles
`Manufacturers Ass’n v. State Farm Mutual Automo-
`bile Insurance Co., 103 S. Ct. 2856 (1983), “neither held
`nor implied that every agency action representing a pol-
`icy change must be justified by reasons more substan-
`tial than those required to adopt a policy in the first in-
`stance.” Id.
`Applying the APA in a contrary manner would in-
`trude on the President’s Article II obligation to ensure
`“that the Laws be faithfully executed.” U.S. Const. art.
`II, § 3; see Ariz. Christian Sch. Tuition Org. v. Winn,
`563 U.S. 125, 133 (2011) (“The legislative and executive
`departments of the Federal Government, no less than
`the judicial department, have a duty to defend the Con-
`stitution.”). When the Executive determines that a prior
`unilateral executive action is unconstitutional and dis-
`continues it, judicial review cannot involve a free-
`ranging inquiry beyond the specific standard written
`into the APA.
`This is not to say an agency should act beyond the
`scope of its statutorily defined authority or that such
`actions can never be reviewed. If agency policy was “not
`in accordance with the law” in the first place, it is owed
`
`
`
`8
`
`
`no deference. Courts, however, are not permitted to ap-
`ply heightened standards of review to pass on agency
`policy decisions. In reviewing agency action, a court is
`prohibited from substituting its policy judgments for
`those of the agency, whose change in policy must be
`sustained when it passes muster under the same stand-
`ard it would have been held to in the first instance.
`FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760, 782
`(2016); Fox Television Stations, 556 U.S. at 513-14.
`B. DACA’s wind-down satisfies APA review.
`As explained above, DACA’s wind-down may be en-
`joined only if Plaintiffs can overcome APA review.4 The
`order winding down DACA satisfies that standard easi-
`ly, for the reasons the petition describes. The Executive
`has correctly concluded that DACA is unlawful. No law
`mandates the policy choices DACA embodies. That was
`why several States, led by Texas, threatened to sue
`(and then did sue) to enjoin its continuation. The courts
`below were thus wrong to block DACA’s rescission.
`1. The administration prudently decided to wind
`down DACA in part because of the multi-State legal
`challenge to DACA’s lawfulness. On June 29, 2017, the
`
`4 The Executive’s decisions to create and, later, to wind down
`DACA are reviewable agency actions under the APA. The APA
`contains a limited exception barring judicial review when an agen-
`cy decision is “committed to agency discretion by law.” 5 U.S.C.
`§ 701(a)(2). This exception is “very narrow.” Heckler v. Chaney,
`470 U.S. 821, 830 (1985). Unreviewability under Heckler applies
`only to “an agency’s refusal to take . . . action,” such as “an agen-
`cy’s decision not to take enforcement action.” Id. at 831, 832. In
`contrast, “when an agency does act,” the “action itself provides a
`focus for judicial review” and “can be reviewed to determine
`whether the agency exceeded its statutory powers.” Id. at 832.
`
`
`
`9
`
`
`Texas Attorney General, nine other State Attorneys
`General, and one Governor sent a letter to the federal
`Executive Branch proposing a DACA wind-down to end
`the Texas I litigation challenging the Executive’s ability
`to unilaterally confer lawful presence and work authori-
`zation. A.R. 238-40. The coalition promised to voluntari-
`ly dismiss the lawsuit challenging unlawful deferred-
`action programs if the Executive Branch agreed, by
`September 5, 2017, to rescind DACA and not renew or
`issue any new DACA permits in the future. A.R. 240.5
`The letter explained why DACA was unlawful, giv-
`en that “[c]ourts blocked DAPA and Expanded DACA
`from going into effect, holding that the Executive
`Branch does not have the unilateral power to confer
`lawful presence and work authorization on unlawfully
`present aliens simply because the Executive chooses
`not to remove them.” A.R. 238. Rather, “[i]n specific
`and detailed provisions, the [Immigration and National-
`ity Act] expressly and carefully provides legal designa-
`tions allowing defined classes of aliens to be lawfully
`present.” A.R. 238 (quoting Texas I, 809 F.3d at 179).
`“Entirely absent from those specific classes is the
`group of 4.3 million illegal aliens who would be eligible
`for lawful presence under DAPA.” A.R. 238 (quoting
`Texas I, 809 F.3d at 179). Likewise, “[t]he INA also
`
`5 On the same day that the Texas Attorney General sent the
`letter, he also issued a press release publicly announcing the
`letter. AG Paxton Leads 10-State Coalition Urging Trump
`Administration to Phase Out Unlawful Obama-Era DACA
`Program,
`https://www.texasattorneygeneral.gov/news/releases/ag-
`paxton-leads-10-state-coalition-urging-trump-administration-
`to-phase-out (June 29, 2017).
`
`
`
`10
`
`
`specifies classes of aliens eligible and ineligible for work
`authorization,” but makes “no mention of the class of
`persons whom DAPA would make eligible for work au-
`thorization.” A.R. 238-39 (quoting Texas I, 809 F.3d at
`180-81). DAPA was “foreclosed by Congress’s careful
`plan.” A.R. 238-39 (quoting Texas I, 809 F.3d at 186).
`Thus,
`
`For these same reasons that DAPA and
`Expanded DACA’s unilateral Executive Branch
`conferral of eligibility for lawful presence and
`work authorization was unlawful, the original
`June 15, 2012 DACA memorandum is also un-
`lawful. The original 2012 DACA program co-
`vers over one million otherwise unlawfully pre-
`sent aliens. Id. at 147. And just like DAPA,
`DACA unilaterally confers eligibility for work
`authorization, id., and lawful presence without
`any statutory authorization from Congress.
`A.R. 238-39.
`This letter thus threatened litigation over DACA
`and provided legal arguments, based on precedent, ex-
`plaining why DACA was unlawful. Even if this letter
`were the only cited reason for the challenged Executive
`action, it would provide a non-arbitrary, non-capricious,
`and valid basis for ending DACA.
`2. Texas has explained for years how DACA is un-
`lawful. The June 2017 letter’s explanation of DACA’s
`illegality was based on Texas’s victory, leading a 27-
`State coalition, in challenging the materially identical
`Expanded DACA and DAPA programs. See, e.g., Texas
`I, 809 F.3d at 174 n.139 (“DACA is an apt comparator to
`DAPA.”). In that litigation, counsel of record told the
`
`
`
`11
`
`
`Fifth Circuit that DACA was required to go through
`APA notice-and-comment procedure. Oral Arg. at
`1:16:01-10, Texas v. United States, 787 F.3d 733 (5th
`Cir. 2015) (No. 15-40238), http://www.ca5.uscourts.gov
`/OralArgRecordings/15/15-40238_4-17-2015.mp3. DACA
`was instituted without that procedure.
`Texas also filed a brief for a 14-State coalition urg-
`ing the Court to grant certiorari in Brewer v. Arizona
`Dream Act Coalition, No. 16-1180 (U.S. May 1, 2017).
`See Br. for the States of Texas et al., Brewer v. Ariz.
`Dream Act Coalition, No. 16-1180, 2017 WL 1629324
`(U.S. May 1, 2017) (“Texas Brewer Br.”). Those amici
`States explained that DACA was unlawful—based on
`the same substantive and procedural arguments suc-
`cessfully made by the 27-State coalition in Texas I re-
`garding Expanded DACA and DAPA. See Br. for the
`State Respondents at 44-70, United States v. Texas, 136
`S. Ct. 2271 (2016) (No. 15-674), 2016 WL 1213267
`(“Texas DAPA Br.”).
`The Brewer amici explained that DACA is unlawful
`because “[d]eferred action under DACA is much more
`than just a decision not to pursue removal of the alien.”
`Texas Brewer Br. at 3. The Executive deems deferred
`action under DACA to confer “lawful presence.” Id.
`Conferring that legal status is more than mere inaction.
`As the States highlighted, Congress used “lawful pres-
`ence” status (or “unlawful presence”) as the predicate
`for numerous results, such as removability, id. at 9; a 3-
`year or 10-year reentry bar, id. at 10-11; eligibility for
`“advance parole,” id. at 11; and eligibility for numerous
`federal benefits, id. at 12-13. Those consequences turn
`on the “lawful presence” status conferred unilaterally
`
`
`
`12
`
`
`by the Executive under DACA and DAPA. And that
`conferral contravenes federal law. See id.
`Similarly, the States explained that DACA violated
`statutes governing which aliens are authorized to work
`in this country:
`[W]hen Congress wanted to provide work-
`authorization eligibility to four narrow classes
`of deferred-action recipients, it did so by stat-
`ute. Otherwise, the 1986 IRCA “prohibit[s] the
`employment of aliens who are unauthorized to
`work in the United States because they either
`entered the country illegally, or are in an im-
`migration status which does not permit em-
`ployment.” H.R. Rep. No. 99-682(I), at 46, 51-52
`(1986), reprinted in 1986 U.S.C.C.A.N. 5649,
`5650, 5655-56 (emphasis added).
`Id. at 15-16 (footnote omitted). And the States surveyed
`various historical practices, explaining how they could
`not support DACA’s unilateral conferral of lawful pres-
`ence and work authorization. Id. at 18-20.
`At a minimum, this substantial background merited
`legitimate doubts that DACA was lawful. The Executive
`properly deemed it “likely that potentially imminent
`litigation would yield similar results with respect to
`DACA” as with respect to Expanded DACA and DAPA,
`which were already enjoined. Pet. App. 116a.
`3. Ultimately, after their warnings went unheeded,
`Texas and several other States filed suit on May 1,
`2018, seeking a declaration that DACA was unlawful
`and a preliminary injunction. See Texas II, 328 F. Supp.
`3d 707.
`
`
`
`13
`
`
`
`Following extensive discovery and an extended
`hearing on the State’s motion for injunctive relief, the
`district court found that DACA was unlawful for sub-
`stantially the same reasons as described above. “DACA
`prevents the removal of its recipients—whom Congress
`has deemed removable.” Id. at 714. The court, “guided
`by Fifth Circuit precedent,” held that “none of the
`claimed statutory provisions [in the INA] give the DHS
`the authority to implement DACA.” Id. at 715. “Ulti-
`mately, ‘the INA expressly and carefully provides legal
`designations allowing defined classes of aliens to be
`lawfully present,’ and Congress has not granted the
`Executive Branch free rein to grant lawful presence to
`such a large class of persons outside the ambit of the
`statutory scheme.” Id. at 716.
`Regarding work authorization, the court also found
`that the INA “describes specific groups of aliens for
`whom Congress intended work authorization to be
`available,” but “make[s] no mention of the group of al-
`iens described by DACA.” Id. at 716-17 (citation omit-
`ted). “Congress has in other places specified groups of
`aliens to be ineligible for work authorization,” yet
`DACA “contradicts Congress’s intent, as it enables
`those aliens to apply for work authorizations.” Id. at 717
`(citation omitted). Thus, “[p]ermitting the [Executive]
`to allow 1.5 million aliens to receive work authorization
`contradicts the clear congressional purpose of preserv-
`ing employment opportunities for those persons legally
`residing in the United States.” Id. at 718.
`The court also noted the path to citizenship that
`DACA facilitates. DACA, through advance parole, “en-
`able[s] certain individuals to change their inadmissible
`status (due to unlawful entry) into an admitted/paroled
`
`
`
`14
`
`
`category and in some cases provide a clearer pathway
`to citizenship.” Id. at 720. DACA thus “directly under-
`mines the intent and deterrent effect intended by Con-
`gress, and contradicts the express wording of the
`DACA program’s instituting memorandum.” Id.
`Moreover, the court rejected various grounds on
`which DACA’s supporters have attempted to justify it.
`DACA, like DAPA, “is far from any program conducted
`in the past.” Id. at 721. “DACA is ‘manifestly contrary’
`to the statutory scheme promulgated by Congress,” and
`“usurps the power of Congress to dictate a national
`scheme of immigration laws, and it is therefore contrary
`to the INA and unreasonable.” Id. at 722-23. “As were
`DAPA and Expanded DACA, DACA is ‘foreclosed by
`Congress’s careful plan.’ The fact that DAPA was three
`times the size of DACA is of no legal significance.” Id.
`at 724 (citation omitted). Ultimately, DACA
`contradicts statutory law and violates the APA
`because the INA directly addresses the issues
`of lawful presence and work authorization for
`aliens in this country but does not include those
`designated by DACA. Furthermore, the award
`of lawful presence and an entire array of feder-
`al, state, and local rights and benefits to aliens
`Congress has deemed inadmissible flies in the
`face of the INA’s goals of deciding who comes
`to and stays in the United States, who works in
`the United States, and who qualifies for gov-
`ernment-funded benefits.
`Id. at 735.
`The court also explained that DACA was procedur-
`ally invalid under the APA. It rejected the premise that
`
`
`
`15
`
`
`DACA was a procedural rule based on the same reason-
`ing in Texas I. Id. at 728. “An agency rule that modifies
`substantive rights and interests can only be nominally
`procedural, and the exemption for such rules of agency
`procedure cannot apply.’’ Id. (quoting Texas I, 809 F.3d
`at 176). DACA failed that test because
`[o]ver 800,000 individuals have already received
`the benefit of lawful presence. Most have re-
`ceived work authorization, and over half a mil-
`lion more individuals are or will be eligible to
`apply. . . . No matter which party’s briefs and
`exhibits one reviews, each stresses the impact
`of the DACA program. . . . Although the DACA
`program has conferred lawful presence on a
`smaller number of people than DAPA would
`have, it has nonetheless impacted the Plaintiff
`States and affected individuals in an equally
`important manner.
`Id. at 728.
`Just as with DAPA and Expanded DACA in Texas
`I, DACA was not a procedural rule because DACA “es-
`tablished
`‘the substantive standards by which the
`[agency] evaluate[d] applications which [sought] a bene-
`fit that the agency [purportedly]
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