No. 18-587
`
`In the Supreme Court of the United States
`
`
`DEPARTMENT OF HOMELAND SECURITY, et al.,
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
`Respondents.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`BRIEF IN OPPOSITION FOR THE STATES OF CALIFORNIA,
`MAINE, MARYLAND, AND MINNESOTA
`
`
` MICHAEL J. MONGAN*
`Deputy Solicitor General
`SAMUEL P. SIEGEL
`Associate Deputy Solicitor
` General
`STATE OF CALIFORNIA
`DEPARTMENT OF JUSTICE
`455 Golden Gate Avenue
`San Francisco, CA 94102
`(415) 510-3920
`Michael.Mongan@doj.ca.gov
`*Counsel of Record
`
`(Additional counsel on signature page)
`
`
`
`
`
`
` XAVIER BECERRA
`Attorney General of California
`EDWARD C. DUMONT
`Solicitor General
`MICHAEL L. NEWMAN
`Senior Assistant Attorney
` General
`
`
`
`
`
`
`
`
`December 17, 2018
`
`
`
`In the Supreme Court of the United States
`
`
`DEPARTMENT OF HOMELAND SECURITY, et al.,
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
`Respondents.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`BRIEF IN OPPOSITION FOR THE STATES OF CALIFORNIA,
`MAINE, MARYLAND, AND MINNESOTA
`
`
` MICHAEL J. MONGAN*
`Deputy Solicitor General
`SAMUEL P. SIEGEL
`Associate Deputy Solicitor
` General
`STATE OF CALIFORNIA
`DEPARTMENT OF JUSTICE
`455 Golden Gate Avenue
`San Francisco, CA 94102
`(415) 510-3920
`Michael.Mongan@doj.ca.gov
`*Counsel of Record
`
`(Additional counsel on signature page)
`
`
`
`
`
`
` XAVIER BECERRA
`Attorney General of California
`EDWARD C. DUMONT
`Solicitor General
`MICHAEL L. NEWMAN
`Senior Assistant Attorney
` General
`
`
`
`
`
`
`
`
`December 17, 2018
`
`
`
` i
`
`
`QUESTION PRESENTED
`Whether the district court erred by (i) holding that
`respondents’ claims are subject to judicial review,
`(ii) entering a preliminary injunction partially sus-
`pending petitioners’ termination of the Deferred
`Action for Childhood Arrivals program, and (iii) deny-
`ing in part petitioners’ motion to dismiss.
`
`
`
`
`
`
`
`
`ii
`TABLE OF CONTENTS
`
`
`Page
`
`Introduction ................................................................ 1
`Statement ................................................................... 2
`Argument .................................................................. 13
`I. There is no need for “prompt intervention”
`by this Court ........................................................ 13
`II. Petitioners’ merits arguments provide no
`reason for review ................................................. 17
`A. Reviewability ................................................. 17
`B. The preliminary injunction ........................... 23
`C. The motion to dismiss .................................... 31
`Conclusion ................................................................. 33
`
`
`
`
`
`
`
`iii
`TABLE OF AUTHORITIES
`
`
`Page
`
`CASES
`Batalla Vidal v. Nielsen
`279 F. Supp. 3d 401 (E.D.N.Y. 2018) ........... passim
`Casa de Md. v. Dep’t of Homeland Sec.
`284 F. Supp. 3d 758 (D. Md. 2018) .......... 12, 17, 32
`City of Arlington v. FCC
`569 U.S. 290 (2013) .............................................. 20
`East Bay Sanctuary Covenant v. Trump
`___ F.3d. ____, 2018 WL 6428204
`(9th Cir. Dec. 7, 2018) .......................................... 16
`Encino Motorcars LLC v. Navarro
`136 S. Ct. 2117 (2016) .......................................... 25
`FCC v. Fox Television Stations, Inc.
`556 U.S. 502 (2009) .............................................. 23
`Franklin v. Massachusetts
`505 U.S. 788 (1992) .............................................. 25
`Heckler v. Chaney
`470 U.S. 821 (1985) ...................................... passim
`ICC v. Bhd. of Locomotive Eng’rs
`482 U.S. 270 (1987) .............................................. 21
`In re United States
`138 S. Ct. 443 (2017) (per curiam) ......................... 5
`
`
`
`
`
`
`
`
`iv
`TABLE OF AUTHORITIES
`(continued)
`
`Lincoln v. Vigil
`508 U.S. 182 (1993) .............................................. 19
`Montana Air Chapter No. 29 v. FLRA
`898 F.2d 753 (9th Cir. 1990) ................................ 20
`
`Page
`
`Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v.
`State Farm Mut. Auto. Ins. Co.
`463 U.S. 29 (1983) ................................................ 23
`NAACP v. Trump
`298 F. Supp. 3d 209 (2018) .......................... passim
`Negusie v. Holder
`555 U.S. 511 (2009) .............................................. 20
`Neil v. Biggers
`409 U.S. 188 (1972) .............................................. 26
`Newman v. Apfel
`223 F.3d 937 (9th Cir. 2000) ................................ 22
`Reno v. Am.-Arab Anti-Discrimination Comm.
`525 U.S. 471 (1999) ...................................... passim
`SEC v. Chenery Corp.
`318 U.S. 80 (1943) ............................................ 9, 23
`Texas v. United States
`328 F. Supp. 3d 662 (2018) ............................ 13, 29
`Texas v. United States
`809 F.3d 134 (5th Cir. 2015) ........................ passim
`
`
`
`
`
`Page
`
`v
`TABLE OF AUTHORITIES
`(continued)
`Trump v. Int’l Refugee Assistance Project
`137 S. Ct. 2080 (2017) ........................ 16, 23, 26, 30
`United States v. Texas
`136 S. Ct. 2271 (2016) (per curiam) ....................... 3
`Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.
`No. 17-71, slip op. (Nov. 27, 2018) ........... 18, 19, 23
`Winter v. Nat. Res. Def. Council, Inc.
`555 U.S. 7 (2008) ............................................ 23, 30
`
`STATUTES
`5 U.S.C.
`§ 701(a)(2) ..................................................... passim
`§ 702(a)(1) ............................................................. 10
`§ 706(2)(A) ........................................................ 4, 23
`6 U.S.C.
`§ 202(5) ........................................................... 14, 25
`8 U.S.C.
`§ 1227(d)(2) ............................................................. 2
`§ 1252(b)(9) ........................................................... 18
`§ 1252(g) ................................................. 5, 9, 17, 18
`
`REGULATIONS
`8 C.F.R.
`§ 214.14(d)(3) .......................................................... 2
`§ 274a.12(c)(14) ...................................................... 2
`
`
`
`
`
`
` 1
`
`
`INTRODUCTION
`This case involves hundreds of thousands of young
`people who were brought to this country as children.
`Many of them have never known any other home. All
`of them currently receive provisional protection from
`removal from the United States, authorization to work
`legally, and other benefits through the Deferred
`Action for Childhood Arrivals (DACA) program. In
`September 2017, petitioners announced that they
`were terminating that program on the ground that it
`would be unlawful to maintain it. Respondents chal-
`lenged that decision, and the district court entered a
`preliminary injunction partially preserving the status
`quo pending resolution of the litigation. The court of
`appeals has now affirmed the entry of that prelimi-
`nary injunction. Similar litigation is pending in other
`circuits.
`Petitioners argue that their decision to terminate
`DACA is not subject to judicial review at all, and in
`any event that they correctly concluded that the pro-
`gram is unlawful. As to the threshold reviewability
`issues, every court that has considered petitioners’
`arguments has rejected them. As to the merits, three
`district courts, and now the court of appeals in this
`case, have held that petitioners’ decision to terminate
`DACA cannot be sustained on the theory of illegality
`that they have proffered. Petitioners identify no good
`reason for this Court to reach out to review those con-
`clusions at this time—in an interlocutory posture,
`with no present circuit conflict, and before other courts
`of appeals have had the chance to consider the similar
`cases already pending before them.
`
`
`
`
`
` 2
`
`
`STATEMENT
`1. Deferred action is a “regular practice” under fed-
`eral immigration law, involving a decision that “no ac-
`tion will thereafter be taken to proceed against an
`apparently deportable alien.” Reno v. Am.-Arab Anti-
`Discrimination Comm., 525 U.S. 471, 484 (1999)
`(AADC). It has been recognized by Congress and by
`this Court. See, e.g., 8 U.S.C. § 1227(d)(2); AADC, 525
`U.S. at 484. Recipients of deferred action may apply
`for work authorization and receive other benefits. See,
`e.g., 8 C.F.R. § 274a.12(c)(14) (work authorization); id.
`§ 214.14(d)(3) (no accrual of “unlawful presence” for
`purposes of re-entry bars).
`Established in 2012, the DACA program applies to
`“certain young people who were brought to this coun-
`try as children and know only this country as home.”
`Pet. App. 97a-98a; see id. at 98a (listing criteria). It
`recognizes that immigration laws are not “designed to
`remove productive young people to countries where
`they may not have lived or even speak the language.”
`Id. at 99a. DACA provides a channel and framework
`for individualized deferred action decisions for eligible
`individuals, who may receive provisional protection
`from removal for renewable two-year periods, obtain
`permission for foreign travel (“advance parole”), and
`enjoy other benefits associated with deferred action.
`Id. at 11a-12a. In September 2017 there were nearly
`700,000 active DACA beneficiaries, with an average
`age of just under 24 years old. Id. at 13a. More than
`90 percent of DACA recipients are employed, and 45
`percent are in school. Id.
`In 2014, the Office of Legal Counsel at the U.S.
`Department of Justice memorialized its advice that a
`general program such as DACA was legally sound so
`long as immigration officials “retained discretion to
`
`
`
`
`
` 3
`
`
`evaluate [its] application on an individualized basis.”
`D.Ct. Dkt. 64-1 at 21 n.8.1 Until recently, Executive
`Branch lawyers likewise argued consistently that
`DACA was “a valid exercise of the Secretary’s broad
`authority and discretion to set policies for enforcing
`the immigration laws, which includes according
`deferred action and work authorization to certain
`aliens who, in light of real-world resource constraints
`and weighty humanitarian concerns, warrant deferral
`rather than removal.” E.g., U.S. Br. 1, Ariz. Dream
`Act Coal. v. Brewer, 9th Cir. No. 15-15307, Dkt. 62
`(filed Aug. 28, 2015).
`In Texas v. United States, 809 F.3d 134 (5th Cir.
`2015), the Fifth Circuit affirmed a preliminary injunc-
`tion that forestalled the implementation of a different
`program, Deferred Action for Parents of Americans
`and Lawful Permanent Residents (DAPA), along with
`some intended expansions of the DACA program. This
`Court affirmed that decision by an equally divided
`vote. United States v. Texas, 136 S. Ct. 2271 (2016)
`(per curiam). But the preliminary injunction at issue
`in Texas did not affect the original DACA program.
`After the change in federal administrations in Jan-
`uary 2017, the new administration initially preserved
`the DACA program and continued to solicit and accept
`new and renewal applications for DACA status. See
`Pet. App. 16a. The President indicated that the “pol-
`icy of [his] administration [was] to allow the dreamers
`[i.e., DACA recipients] to stay.” D.Ct. Dkt. 121-1 at
`285. In June 2017, Attorneys General from Texas and
`other States threatened to amend their complaint in
`
`
`1 Citations to “D.Ct. Dkt.” are to the docket in N.D. Cal. Case No.
`17-cv-5211.
`
`
`
`
`
` 4
`
`
`the still-pending DAPA litigation to include a chal-
`lenge to the DACA program. Supp. App. 18a. On Sep-
`tember 4, 2017, then-Attorney General Jefferson
`Sessions sent a one-page letter advising then-Acting
`Secretary of Homeland Security Elaine Duke that her
`Department should terminate DACA because it “was
`an unconstitutional exercise of authority by the Exec-
`utive Branch.” D.Ct. Dkt. 64-1 at 251. The letter
`stated summarily that DACA “has the same legal and
`constitutional defects that . . . courts recognized as to”
`DAPA, and asserted that “it is likely that potentially
`imminent litigation would yield similar results with
`respect to DACA.” Id.
`The next day, the Acting Secretary issued a mem-
`orandum formally rescinding the program. Pet. App.
`111a-119a. Her stated reason was that “[t]aking into
`consideration the Supreme Court’s and the Fifth Cir-
`cuit’s rulings in the ongoing [DAPA] litigation, and the
`September 4, 2017 letter from the Attorney General,
`it is clear that the June 15, 2012 DACA program
`should be terminated.” Id. at 117a. She instructed
`her Department to stop accepting new DACA applica-
`tions immediately, and to stop accepting all renewal
`applications on October 5, 2017. See id. at 117a-118a.
`2. The complaints in the five cases addressed to-
`gether in the decision below allege, among other
`things, that petitioners’ termination of DACA was
`arbitrary, capricious, or otherwise not in accordance
`with law and thus invalid under the Administrative
`Procedure Act, 5 U.S.C. § 706(2)(A). On January 9,
`2018, the district court largely denied petitioners’
`
`
`
`
`
` 5
`
`
`motion to dismiss on threshold grounds and granted a
`limited preliminary injunction. Pet. App. 1a-70a.2
`The court first considered petitioners’ threshold
`reviewability defenses. Pet. App. 26a-33a. It rejected
`the argument that the decision to terminate DACA
`was “committed to agency discretion by law” under
`5 U.S.C. § 701(a)(2), id. at 26a-30a, and held that
`8 U.S.C. § 1252(g) did not strip it of jurisdiction to
`hear the case, id. at 30a-33a. It certified both rulings
`for interlocutory appeal. Id. at 70a.3
`Turning to the motion for a preliminary injunction,
`the district court held that respondents were likely to
`succeed on their APA claim that petitioners’ Septem-
`ber 2017 decision to rescind DACA must be set aside.
`Pet. App. 41a-62a. It found no support for petitioners’
`assertion that maintaining the program was beyond
`the authority of the Department of Homeland Security
`or the Executive Branch. Id. at 47a. In response to
`petitioners’ reliance on decisions in the Texas litiga-
`tion over the DAPA program (id. at 50a), the district
`court noted significant differences between the two
`programs (id. at 51a-54a) and concluded that the
`“DAPA litigation was not a death knell for DACA” (id.
`at 54a).
`
`
`2 As the Court is aware from prior proceedings, the parties have
`vigorously disputed both the adequacy of the putative adminis-
`trative record proffered by petitioners and certain discovery
`issues. See In re United States, 138 S. Ct. 443 (2017) (per curiam).
`Currently, the district court has stayed discovery and postponed
`petitioners’ obligation to complete the administrative record
`pending appellate review of petitioners’ threshold defenses.
`3 The district court likewise rejected most of petitioners’ argu-
`ments regarding Article III and prudential standing. Pet. App.
`33a-41a. Petitioners do not renew those arguments here.
`
`
`
`
`
` 6
`
`
`The court rejected petitioners’ alternative argu-
`ment that the decision to end DACA was “a reasonable
`judgment call involving management of litigation risk
`and agency resources,” Pet. App. 55a, as a post hoc jus-
`tification proffered by counsel, id. at 56a-57a. In any
`event, the court concluded that any such reasoning
`was unlikely to withstand APA review. See id. at 57a-
`62a. Among other things, the rescission memorandum
`and the administrative record revealed no considera-
`tion of “the differences between DAPA and DACA that
`might have led to a different result” (id. at 57a); no
`consideration of possible defenses to a suit challenging
`DACA (id. at 57a-58a); and no comparative assess-
`ment of the human and other costs of terminating or
`maintaining DACA (id. at 60a).
`The court held that the remaining factors of the
`preliminary injunction test also favored provisional
`relief. Pet. App. 62a-66a. Respondents were “likely to
`suffer serious irreparable harm absent an injunction,”
`with individual respondents losing their work author-
`ization and suffering other hardships and the States
`losing “valuable students and employees in whom they
`have invested.” Id. at 62a. For similar reasons, a pre-
`liminary injunction would serve the public interest.
`Id. at 65a. The court reasoned that the threatened
`harms to respondents and the public substantially
`outweighed the only hardship asserted by petitioners,
`which was “interference with the agency’s judgment”
`on whether to keep DACA in place while the issues
`were litigated to final judgment. Id.
`Accordingly, the district court entered a prelimi-
`nary injunction partially preserving the status quo for
`individuals who had already received deferred action.
`As to those existing recipients, the court required
`petitioners “to maintain the DACA program on a
`
`
`
`
`
` 7
`
`
`nationwide basis on the same terms and conditions as
`were in effect before the rescission on September 5,
`2017, including allowing DACA enrollees to renew
`their enrollments.” Pet. App. 66a. It made clear, how-
`ever, that pending the completion of litigation and en-
`try of final judgment petitioners were not required to
`process new applications from individuals who had
`never before received deferred action; that the “ad-
`vance parole” feature of DACA “need not be continued
`for the time being for anyone”; and that petitioners
`could “take administrative steps to make sure fair dis-
`cretion is exercised on an individualized basis for each
`renewal application.” Id. at 66a. It also emphasized
`that the Department of Homeland Security may “pro-
`ceed[] to remove any individual, including any DACA
`enrollee, who it determines poses a risk to national
`security or public safety, or otherwise deserves, in its
`judgment, to be removed.” Id.
`In a separate order, the district court ruled on
`petitioners’ motion to dismiss various claims under
`Rule 12(b)(6). Pet. App. 71a-90a. The court dismissed
`claims that the rescission of DACA should have been
`accomplished through notice-and-comment rulemak-
`ing and related claims under the Regulatory Flexibil-
`ity Act (id. at 72a-75a); due process claims regarding
`the rescission of DACA (id. at 75a-79a); claims based
`on equitable estoppel (id. at 81a-83a); and certain
`equal protection claims (id. at 87a). It denied the
`motion to dismiss with respect to the claims that the
`rescission was arbitrary, capricious, or otherwise
`unlawful (id. at 72a); due process claims based on
`changes in DHS’s policies regarding the sharing of
`information provided by DACA recipients (id. at 79a-
`81a); and equal protection claims alleging discrimina-
`tory animus (id. at 83a-87a). The court again certified
`
`
`
`
`
` 8
`
`
`several of its rulings for interlocutory appeal. See id.
`at 89a.
`Petitioners did not seek a stay of any of these
`orders. They did file a petition for certiorari before
`judgment in this Court at the same time that they filed
`their regular appeals. This Court denied that petition
`on February 26, 2018. See 138 S. Ct. 1182 (No. 17-
`1003).
`3. The court of appeals affirmed. Supp. App. 1a-
`78a. It first addressed whether petitioners’ decision to
`terminate DACA was unreviewable as a matter “com-
`mitted to agency discretion by law.” 5 U.S.C.
`§ 701(a)(2). See Supp. App. 23a-42a. The court care-
`fully considered this Court’s decision in Heckler v.
`Chaney, 470 U.S. 821 (1985), which applied Section
`701(a)(2) to create a presumption of unreviewability
`for “‘agency refusals to institute investigative or
`enforcement proceedings.’”
` Id. at 25a (quoting
`Chaney, 470 U.S. at 838). Although the court noted
`that “a literal reading of Chaney’s language” relating
`to decisions not to undertake specific enforcement pro-
`ceedings “would not even encompass the decision to
`rescind DACA,” for purposes of this case it assumed
`that Chaney could be read more broadly. Id. at 34a-
`35a n.13. It concluded, however, that “an agency’s
`nonenforcement decision is outside the scope of the
`Chaney presumption—and is therefore presumptively
`reviewable—if it is based solely on a belief that the
`agency lacked the lawful authority to do otherwise.”
`Id. at 29a; see id. at 23a-34a. The court further agreed
`with the district court that, in light of the record in
`this case, “the Acting Secretary based the rescission of
`DACA solely on a belief that DACA was beyond the
`authority of DHS.” Id. at 41a. That proffered basis for
`
`
`
`
`
` 9
`
`
`the decision “brings [it] within the realm of agency
`actions reviewable under the APA.” Id. at 42a.
`The court also rejected petitioners’ second thresh-
`old argument, that 8 U.S.C. § 1252(g) stripped the dis-
`trict court of jurisdiction to hear this case. Supp. App.
`42a-45a. It relied on this Court’s holding in AADC
`that Section 1252(g) “applies only to three discrete
`actions that the Secretary may take: her decision or
`action to commence proceedings, adjudicate cases, or
`execute removal orders.” Id. at 42a (internal quotation
`marks and alteration omitted). Petitioners’ rescission
`of DACA does not fit into any of these categories of dis-
`crete actions. Id. at 43a-44a. Moreover, nothing in
`AADC suggests that Section 1252(g) would apply to a
`“programmatic shift” in a deferred-action policy, such
`as the DACA rescission. Id. at 43a.
`Turning to the preliminary injunction, the court of
`appeals noted that petitioners “take[] issue with the
`district court’s conclusion on only one of the prelimi-
`nary injunction factors: the likelihood of success on
`the merits.” Supp. App. 46a. Because an agency
`action “based solely on an erroneous legal premise . . .
`must be set aside,” id. at 47a (discussing SEC v.
`Chenery Corp., 318 U.S. 80 (1943) (Chenery I )), the
`court examined petitioners’ stated conclusion that
`DACA is unlawful. In view of the Executive Branch’s
`broad authority over immigration enforcement policy
`and priorities and the longstanding practice of using
`deferred action on a programmatic basis, the court
`concluded “that DACA was a permissible exercise of
`executive discretion.” Id. at 56a; see id. at 47a-57a.
`The court acknowledged petitioners’ heavy reliance
`on the Fifth Circuit’s preliminary assessment of the
`legality of DAPA in Texas v. United States, 809 F.3d
`134 (5th Cir. 2015). See Supp. App. 49a. Exploring
`
`
`
`
`
`
`10
`the reasoning in that case, however, the court con-
`cluded that “the analysis that seemingly compelled
`the result in Texas” was “inapposite” here. Id. at 57a.
`The court emphasized that it was “not hold[ing] that
`DACA could not be rescinded as an exercise of Execu-
`tive Branch discretion.” Id. But petitioners’ decision
`to rescind it “based on an erroneous view of what the
`law required” was “arbitrary and capricious under set-
`tled law.” Id.
`The court also held that the district court did not
`abuse its discretion by entering a nationwide injunc-
`tion in the circumstances of this case. Supp. App. 60a.
`In particular, nationwide “relief is commonplace in
`APA cases, promotes uniformity in immigration en-
`forcement, and is necessary to provide the plaintiffs
`here with complete redress.” Id.
`Finally, the court of appeals affirmed the district
`court’s ruling on petitioners’ motion to dismiss. Supp.
`App. 61a-77a. As relevant here, the court agreed that
`respondents had plausibly stated a due process claim
`with respect to petitioners’ changes to their policies
`governing the use of the sensitive information pro-
`vided by DACA recipients, id. at 68a-73a, and an equal
`protection claim alleging that the rescission of DACA
`“disproportionately affected Latinos and individuals of
`Mexican descent and was motivated by discriminatory
`animus,” id. at 73a.
`Judge Owens concurred in the judgment. Supp.
`App. 79a-87a. He would have held that petitioners’
`decision to terminate DACA was the sort of discretion-
`ary non-enforcement decision that is insulated from
`normal APA review under 5 U.S.C. § 702(a)(1) and
`Chaney. Id. at 79a-84a. But he agreed that the pre-
`liminary injunction should be affirmed, at least pend-
`ing further proceedings in the district court, because
`
`
`
`
`
`
`11
`the equal protection claim based on discriminatory an-
`imus had “some ‘likelihood of success on the merits,’”
`id. at 79a, and “the balance of equities here weighs
`heavily in favor of” provisional relief, id. at 86a.
`4. As this litigation has proceeded, courts in other
`jurisdictions have also considered the legality of peti-
`tioners’ decision to terminate DACA or the legality of
`the underlying program.
`a. In the Eastern District of New York, the district
`court entered a preliminary injunction that is co-ex-
`tensive with the one affirmed below. Batalla Vidal v.
`Nielsen, 279 F. Supp. 3d 401 (2018). The court rea-
`soned that the asserted basis for the decision to termi-
`nate DACA was inadequately explained and rested on
`a premise that was legally and factually flawed. See
`18-589 Pet. App. 62a, 67a-69a, 90a-119a (Batalla
`Vidal App.). Petitioners did not seek a stay of that
`order, which is currently on appeal before the Second
`Circuit, with oral argument scheduled for January
`2019. Petitioners seek certiorari before judgment in
`that case in No. 18-589.
`b. In the District of Columbia, the district court
`entered a final judgment vacating the decision to ter-
`minate DACA. NAACP v. Trump, 298 F. Supp. 3d 209
`(2018); see 18-588 Pet. App. 1a-74a (NAACP App.). It
`reasoned that the termination decision “was predi-
`cated primarily on [a] legal judgment that the pro-
`gram was unlawful.” NAACP App. 73a. But that legal
`judgment could not support the agency’s action be-
`cause it was “virtually unexplained.” Id. The district
`court temporarily stayed its final judgment to afford
`the agency an opportunity to “reissue a memorandum
`rescinding DACA, this time providing a fuller expla-
`nation for the determination that the program lacks
`statutory and constitutional authority.” Id. at 66a.
`
`
`
`
`
`
`12
`Two months later, petitioners submitted a new
`memorandum from the current Secretary of Home-
`land Security, Kirstjen Nielsen. Pet. App. 120a-126a.
`The Nielsen memorandum “decline[s] to disturb the
`Duke memorandum’s rescission of the DACA policy,”
`but offers Secretary Nielsen’s “understanding of the
`Duke memorandum and why the decision to rescind
`the DACA policy was, and remains, sound.” Id. at
`121a; see Pet. 13. After reviewing the Nielsen memo-
`randum, the D.C. district court held that the memo-
`randum “fails to elaborate meaningfully on the
`agency’s primary rationale for its decision.” NAACP
`App. 81a. As to “several additional ‘policy’ grounds for
`DACA’s rescission,” the court concluded that most
`“simply repackage legal arguments previously made,”
`while one was “articulated nowhere in DHS’s prior
`explanation for its decision, and therefore cannot sup-
`port that decision now.” Id. at 81a-82a; see id. at 95a-
`103a.
`The D.C. district court accordingly adhered to its
`original final judgment. NAACP App. 108a-109a. But
`it partially stayed its order vacating the rescission of
`DACA pending appeal, to the extent that the order
`would provide relief beyond that granted by the pre-
`liminary injunctions in place in this case and in Ba-
`talla Vidal. See NAACP Pet. 13. Petitioners’ appeal
`is pending in the D.C. Circuit and briefing is scheduled
`to be completed in January 2019. Petitioners seek cer-
`tiorari before judgment in that case in No. 18-588.
`c. In the District of Maryland, the district court
`held that a similar challenge to the termination of
`DACA was reviewable (rejecting petitioners’ threshold
`arguments to the contrary), but dismissed the claims
`in substantial part on the merits. Casa de Md. v. Dep’t
`of Homeland Sec., 284 F. Supp. 3d 758 (2018). The
`
`
`
`
`
`
`13
`plaintiffs’ appeal of that decision was argued before
`the Fourth Circuit on December 11. Petitioners have
`not sought certiorari before judgment in that case.
`d. In the Southern District of Texas, Texas and
`other States have challenged the legality of the DACA
`program. The district court denied the plaintiff States’
`motion for a preliminary injunction. Texas v. United
`States, 328 F. Supp. 3d 662, 743 (2018). It reasoned
`that the plaintiff States were likely to succeed on the
`merits, but that they could not establish a right to pre-
`liminary equitable relief under the circumstances of
`the case. Id. at 712-742. The plaintiff States did not
`appeal the denial of preliminary relief. The district
`court recently set a November 2019 deadline for dis-
`positive motions and scheduled a two-week trial for
`May 2020.
`
`ARGUMENT
`Petitioners filed their second petition for certiorari
`before judgment in this case on November 5. They
`have since proposed that the Court treat that petition
`as one seeking review of the decision entered by the
`court of appeals on November 8. See Supp. Br. 9. The
`State respondents have no objection to that proposal.
`There is, however, no reason for review at this time.
`I. THERE IS NO NEED FOR “PROMPT INTERVEN-
`TION” BY THIS COURT
`The preliminary injunction in this case partially
`preserves the status quo for a carefully defined group
`of young people who were brought to this country as
`children, are law-abiding and productive residents,
`and in many cases know no other home. See generally
`Supp. App. 14a-15a. The case is in an interlocutory
`posture; there is no present conflict on the questions
`petitioners seek to present; and three other courts of
`
`
`
`
`
`
`14
`appeals are already poised to consider the same ques-
`tions, including in one case on an appeal from a final
`judgment. In any ordinary case these circumstances
`would counsel strongly in favor of denying certiorari
`at this time.
`Petitioners argue that this case instead demands
`“prompt intervention” (Pet. 15), but they cannot
`explain why that is so. They do not need this Court to
`enable them to take any urgent action to protect the
`public. By its terms, the preliminary injunction here
`allows them to initiate removal proceedings against
`any individual DACA recipient in the unlikely event
`that they perceive a need to do so. Pet. App. 66a. And
`they have never identified any other pressing action
`that they are barred from taking while this litigation
`proceeds.
` For that matter, the President has
`expressed disbelief that “anybody [would] really want
`to throw out good, educated and accomplished young
`people who have jobs, some serving in the military[.]”
`Id. at 64a-65a.
`Although petitioners show no need to take any par-
`ticular blocked action, they allege a sort of dignitary
`injury in being temporarily forced to continue in part
`a program that they characterize as “sanctioning an
`ongoing violation of federal immigration law by nearly
`700,000 aliens.” Pet. 14; see id. at 33. They suggest
`that they need immediate review by this Court to pro-
`tect their ability to exercise discretion in “[e]stablish-
`ing national immigration enforcement policies and
`priorities.” 6 U.S.C. § 202(5); see, e.g., Pet. I, 3, 18-20.
`But these are curious arguments in the context of this
`case.
`For all their rhetorical emphasis on Executive
`Branch discretion, see, e.g., Pet. I, 14, 16-17, 19, 23, 33-
`
`
`
`
`
`
`15
`34, petitioners did not explain their decision to termi-
`nate DACA by saying that they had concluded, as a
`matter of policy discretion, that the program is a bad
`idea.4 Their memorandum rescinding DACA instead
`declared that petitioners could not continue the pro-
`gram because it was unlawful. Much of the decision
`below hinges on that point, both as to reviewability
`and on the merits. The court of appeals emphasized,
`for example, that it “d[id] not hold that DACA could
`not be rescinded as an exercise of Executive Branch
`discretion.” Supp. App. 57a. It held only that the
`rescission could not be sustained on the illegality the-
`ory that petitioners proffered to support it. Id. De-
`spite some hedging for purposes of litigation, the same
`assertion of illegality remains the core of petitioners’
`position in this Court. See, e.g., Pet. I, 14, 16, 24-26,
`28-30.
`Thus, petitioners do not actually seek a ruling from
`this Court to protect their ability to exercise discre-
`tion. What they seek is judicial endorsement of their
`argument that they lack discretion to continue the
`DACA program. It is not clear how that argument
`serves any long-term interest of the Executive Branch.
`What is clear is that there is no real need for “prompt
`intervention” (Pet. 15) by this Court to address it.
`
`
`4 On the contrary, even their present petition comes close to
`endorsing the policy underlying the program. See Pet. 16 (pro-
`fessing concern that this litigation will “impede efforts to enact
`legislation addressing the legitimate policy concerns underlying
`the DACA policy”); id. at 34 (complaining that petitioners have
`been required to maintain DACA during this litigation, “even
`while efforts by the President and others to provide a sound legal
`basis for the policy through the legislative process have failed”).
`
`
`
`
`
`
`16
`Indeed, petitioners’ own actions help make that
`point. They have never tried to make a case for emer-
`gency relief from the preliminary injunctions in this or
`related cases
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