Transcripts For CSPAN Supreme Court DACA Oral Argument 20240712

Daca and the expansion of daca were likely unlawful. In the face of those decisions, the department of Homeland Security reasonably determined that it no longer wished to do wish to retain the policy, based on its belief the policy was illegal, and its general opposition to broad nonenforcement policies. The decision did not violate the apa for two reasons. First, it is not subject to judicial review. The decision is committed to the unreviewable discretion unless a statute restricts it, and nothing requires the department, a Law Enforcement agency, to not enforce the law. Second, the decision to end this nonenforcement policy was eminently reasonable. Was a temporary stopgap measure that on its face could be rescinded at any time, and the departments reasonable concerns about its legality in general opposition to broad nonenforcement policies provided more than a reasonable basis for ending it. After all, an agency is not required to push its legally dubious power to not enforce the law to its logical extreme since it undermines confidence in the rule of law itself and conflicts with the agencys Law Enforcement mission. I would like to begin with the review ability question. If the attorney general were to say he was not going to seek Death Penalty prosecutions because he thought the Death Penalty was unconstitutional, that would be immune from judicial review, and if a new attorney general came in and reversed the policy because he believed the Death Penalty was constitutional, that would likewise be immune from judicial review. Theres a strange element to your argument because you are arguing this is a discretionary ,atter that is not reviewable but on the other hand, you say the agency had no discretion because this program was illegal. In other words, the law requires you to drop daca, so how can it be committed to your discretion when you are saying we have no . Iscretion forth legal and policy reasons. The alternative argument was even if it has the Legal Authority to do so, it would not have the authority to do so. Are likewise making alternative legal and policy arguments. Secondly, even if we were making purely a legal argument, even if we were, review would be foreclosed by the court decision. What the ble case held was that anan action is committed to agencys discretion, it does not matter what reason it gives for taking that action, it is still unreviewable. The specific example this court divided was a prosecutor who decided not to indict for a purely legal reason, and the court indicated that that was still unreviewable because the underlying action, the Enforcement Discretion, was committed to the agencys unreviewable discretion, so we think we went under cheney and we also think we went under ble. What if the attorney general said his exercise of prosecutorial discretion was not to enforce any immigration laws . Would that still be unreviewable . I think you would run into cheneys exception for complete abdication of authority, but there is a difference between that and this. Here we are enforcing the law. You can understand why congress and the courts might say you can review a decision not to enforce the law. Congress in fact passes loss so they will be enforced and you can understand why it might sestrict the government ability to not enforce law. We think we clearly fall within the cheney perception that it is an exercise of Enforcement Discretion and we do not fall within the cheney exception which would apply where congress itself restricts discretion or where there is potential abdication of enforcement. Uthority s cheney made clear just to understand what youre saying, general, that would suggest that the original daca is reviewable, but the rescission is not. Are you suggesting there is an asymmetry of what is reviewable . There is because there is a difference in the two policies. Both, just to be clear, both fall within cheneys presumption. Both reflect and exercise of Enforcement Discretion that are presumptively unreviewable. The question is if congress has done anything to restrict that discretion. With respect to the case the court had before the couple of years ago, texas argued the ima actually restricted the agencys ability not to enforce the law, and you can certainly understand why Congress Might try to hamstring the governments ability not to enforce the laws that it passed and the fifth circuit agrees. It would be surprising if congress were to pass a law that says something were illegal and tries to restrict the governments ability from enforcing the laws, so i think we fall foursquare within the that was oneption of the areas cheney reserved in that critical footnote. Here, we are not not enforcing the law, we are enforcing the law, and theres nothing that somehow says to the department of Homeland Security or restricted in any way. Daca ismorandum says illegal. I did not see where it says if it is illegal or not, as a ,atter of Administration Policy we are withdrawing mmhmm. I did not see that. You said there were alternate arguments. I saw only the first. We cannot enforce daca, we cannot adhere to daca because it is illegal. Two responses. First of all, secretary nielsens memorandum clearly encompasses all of the different arguments and sets them forth in great detail and we think the nielsen memorandum is clearly properly before the court, the District Court court in washington, d. C. , specifically asked for it, we specifically provided it, the District Court reviewed it, so the only question is what does it mean, and secretary nielsen in her memorandum effectively ratified the decision for the reasons given, using precisely the same mechanism secretary duke use herself to issue the memorandum in this case. This is not a post hoc rationalization of Agency Action. It is Agency Action. The whole point of the post hoc rationalization rule was to prevent courts from invading into executive branch decisionmaking. Argument, andold the first basis of the argument between camp davis and berger, is it that you cannot review an agency, you cannot commit it to agency discussion by law, does theres certain things an agency might do dont review them even if they are totally wrong, like panama canal the cheney argument i thought was the reason this is unreviewable is because there is a long history and tradition of , i knowtor saying that guy over there or that woman here, and they may be nolty, but in my discretion, i dont want to prosecute them. Theres a long history of that, if that history, and understandable power to be given to a prosecutor, courts stay out of it, that does not apply. What does apply is a prosecutor making individualized decisions, but rather, an agencys policies, generalized, written down, and i cannot think of a case, you in such a would not review it in a court,. Respectfully, your honor, i strongly disagree because cheney itself involves not a single shot enforcement action. Ere is what fda said this is their principal conclusion. For the reasons given below, we conclude the use of lethal injection by state penal systems is a practice over which fda has no jurisdiction and therefore, the fda has no authority to take the actions your petition requests. According to your petition accordingly, your petition is denied. It later provided as a policy rationale and says as a secondary and separate basis of denial, we decline as a matter of Enforcement Discretion to pursue supplies of drugs under state control that will be used for execution by lethal injection, so in cheney, the fda clearly was announcing a categorical policy that it was not going to regulate the state use of drugs in carrying out the Death Penalty. I think it is in favor of us. We have an exercise of Enforcement Discretion that is committed to the agencys unreviewable discretion. It does not fall within any of the exceptions to cheney where congress either restricts the exercise of that discretion because here we are talking about enforcement, not nonenforcement, and it does not all under the complete abdication exception because again, we are talking about enforcement and not nonenforcement wouldnt what you just read also have made docket itself unreviewable, to pick up on Justice Kagans question from earlier . No, your honor, again because quickly what is the distention between dhaka and the fda policy . Fda policy,n the nobody was claiming that somehow a statute restricted the fdas ability to not enforce the law. Nobody made that argument. Texas specifically argued that the ina did restrict the agencys authority to exercise Enforcement Discretion to not enforce the law. One of the things texas apa case was d that the Agency Action in certain conferred relevance on the individuals affected. On dac awind down remove certain benefits that individuals would have, and if it does, would that make this review . I think the answer is no and no, and the reason why is first of all, the rescission of dhaka not resend daca does any benefits. Even putting that aside, the Work Authorization and other benefits are simply a collateral consequent of the exercise of prosecutorial discretion itself, so they dont make the prosecutorial discretion itself reviewable. Otherwise, every grant or denial would be subject to apa review because every grant and denial of deferred action has consequences that impact work action. Suppose a prosecutor has a Drug Diversion program and says he wont prosecute this particular category of drug offenses if the individuals agree to enter into drug treatment. The drug treatment is a collateral consequence of an a benefit that flows from the prosecutorial decision, but it does not render the prosecutorial decision itself subject to review, and likewise, comes in andecutor says they want a zerotolerance policy for drug offenses, that is not reviewable, either, but i pa wasa challenge to daa reviewable because it fell within the cheney exception. Texas argued, the fifth circuit restricted the ina the department of Homeland Securitys ability to not enforce the law, and, frankly, we agree with that, but the problem here is there is no argument by anybody or any possible argument that could be made that somehow the ina restricts the department of Homeland Securitys authority to enforce the law. After all, Congress Typically wants the executive branch to enforce the laws. This an appropriate moment tomove to assuming relatability . When argument is similar to this one weve just been considering and the reliance interest that have grown up around daca. What do you say to that and if they have been adequately considered . Two things. First, i would say they are extremely limited. To be always meant temporary stopgap measure that could be rescinded at any time, which is why it was only granted in two year increment, so i dont think anyone could have reasonably assumed it would remain in effect in perpetuity. Even putting that to the side, the agency considered reliance interest, secretary nielsen did so quite clearly and exquisitely. The agency mitigated the reliance interest through the orderly wind down, and at sibley concluded that beyond that, it did not justify maintaining in perpetuity a program that actively silicate of violations of the law by hundreds of thousands of individuals my understand your colleagues argument on the others, it is not that secretary nielsen failed to consider interests. There is that paragraph, i that given the extent of the reliance interest, more needed to be said or could be huge and it would not be a burden to require the government to say more. As i understand, that is the nature of the argument. I guess i have a couple of responses to that. The first is i do not think it reflects an accurate understanding of apa review. This court has repeatedly made clear the only thing that matters is if the agency and i think im quoting from the case log completely failed to consider an important aspect of the question, and i do not think you can even remotely argue that we completely failed to consider an important aspect of the question. Secretary secondly, i think secretary dukes memorandum clearly satisfied satisfies apa standard. She does so explicitly in a portion of the memorandum that you reference. In addition to what i point out is that at the very beginning of her memorandum, page two, she specifically says that one of the things that she considered worthy judicial opinions reviewing the duke memorandum. All the District Court decisions so that when she gets to the specific discussion of reliance interest, she says she is keenly aware that people have ordered there reliance in honor of the daca decision. Simile concluding they did not maintain justify just justifying continuing the policy. The best estate under the law in my mind is a very old principle again, that Justice Scalia is writing for the court, he says when an agencys prior policy has engendered serious reliance interest, it must be taken into account, as in this case, i think. I had my law clerks count not just the people who came in you know the 700,000 they had never been anywhere else, but there are all kinds of reliance interests. I counted briefs in this court, which im not sure you have, which state different kinds of reliance interest. There are 66 health care organizations. There are three labor unions. There are 210 educational associations. There are six military organizations. There are three homebuilders, five states plus those involved. 108, i think, municipalities and cities, 100 29 religious organizations can 100 45 businesses, and they all list reliance interest or most of them list reliance business applicable to them, which are not quite the same. They are not quite the same as those of the 700,000 who i have never seen in any other country, so i did read what you just read to me. You want to say anything about the statement you just read to me being adequate to take into account that broad range . Yes, your honor, i do because the first thing i want to say is that state farm itself says and i have the quote you violate the apa only where you entirely failed to consider an important aspect of the problem. Explicit leelsen considered the reliance interest, including all the things you just listed that were set forth in excruciating detail in the numerous District Court decisions that had ruled against us, which she says she specifically considered but not in her memo . Your honor, i frankly think she does, but the other thing i would say is under this dapaderation, daca and would likely have failed judicial review because theres not a single word in the memos explaining any of the potential costs or benefits or impacts on other people that the implementation of the program would have had. Either one, your honor. If i understand secretary nielsens memo correctly, secretary nielsen said that she did have a conclusory statement about weighing the reliance interest, but she weighed them against what she called i think it is the questionable legality of the program. That assumes one of the things we are all here to discuss, which is that the program was of questionable legality. If the Program Turns out not to be of questionable legality, in other words, if some or many of us think the original program was legal, how does her memo that balancing . For a couple of reasons. First because she set forth separate and independent bases justifying the rescission. First, her belief that it is illegal, second, her belief that there are serious doubts about its illegality, and third, her conclusion that as a matter of enforcement policy, the department of Homeland Security is against these kind of broadbased nonenforcement decisions. Any of those explicitly says but in her statement, she particularly says it outweighs this questionably legal program. I think what she is saying is that given that they there are extremely limited reliance interest in the first place, any limited reliance interest that outweighed by all of the Different Reasons that she has articulated as a separate and independent grounds for resending daca. I think that is the only fair way you can read that memorandum. I have always had some difficulty in understanding the daca. Lity of dapa i put aside because there was actually a process for attaining a pathway to residency , and i saw the argument that what dapa did was directed contrary to that path, but i do thatee anything in the ina takes away the discretion of the agency ordering its enforcement policies. We all know it has limited resources. , even when it wants to, remove the vast majority of aliens we have here, so i have always had some difficulty in understanding what is wrong with an agency saying we are going to prioritize our removals, and for those people like the dac people, who have not committed crimes, who are lawfully employed, who are paying taxes, who pose no threat to our a whole, and theres list of prerequisites we are not going to exercise our limited resources to try to get rid of those people. I know you are going to argue contrary i guess i have responses, your honor. Let me just finish. Ok. , thetting aside that secretary, and giving these extra reasons because none of this was in the duke memo, and i thought basic Administrative Law is you look at what is given to you, not what you add later, but assuming you ignore that and even look at the nielsen memo, i think my colleagues have correctly pointed theres a lot of reliance interests that were not looked at, including the very president current telling daca eligible people that they were safe under him, and that he would find a way to keep them here. He has not. Instead, he has done this, and that, i think, has something to be considered before you resend the policy, not just saying i will give you six months to do it. Aside imf that going to get to my question. And maybe we would have an opportunity to hear the three answers. Really, where is all of this in the memo . Reallys all of this considered and weighed, and where is the political decision that this is not about the law, this is about our choice to destroy lives . 4 responses now. I think ive added one. I thinkirst one is that the prior president did not, could not, and has not made any kind of promise that daca would remain in perpetuity because it would have been impossible. Every one of my friends on the other side has agreed we could resend at any time if at least in their view, we provide a little bit more detail of an explanation, so i think that is foursquare against the notion that there is some significant reliance interest because all that they seem to be saying is we have to write a few more words. Putting that entirely to the side and turning to the legality question, ultimately, my first point is i dont think you have to decide ultimately if it is legal or illegal because i think the other reasons we have given are more than sufficient to justify the rescission, though there are serious doubts about its legality, as well as our general opposition to broadbased nonenforcement policies. All, the department of Homeland Security is a Law Enforcement agency, and a Law Enforcement agency does not have to push its dubious power to not enforce the law to its logical extreme. You have to prioritize. How do you do it other than categorically . Mr. Francisco that is my second point. A goes farpoint is dac beyond simply diverting resources to highpriority targets, which you are absolutely right. Every lawenforcement agency has to divert resources to high priority targets. Goes materially further because it actively facilitates breaking the law, doing on a categorical basis, and significantly, it has no limiting principle. But the forbearance would be ok if there were not attendant benefits . Mr. Francisco i think that would be if if you provided just the advanced forbearance, i think that would be a lot closer of a question, but, here, its a lot easier because youre coupling that with Work Authorization. And my final and critical point is that theres no limiting principle. The theory on which daca rests effectively allows the government to create a shadow ina for any category of aliens that it chooses to make lowpriority targets, a shadow secondtier ina. And you, at the very least, need to locate something in the ina that confers that kind of broad and unfettered discretion. And there is simply nothing there. But, again Justice Kagan well well, if the ina does give quite a lot of discretion to administrative officers, as you yourself admit and have argued on previous occasions and, indeed, in part here. Mr. Francisco right. Justice kagan so are you saying that are you saying that daca was violated any particular provision of the ina . What are you saying it violated . Mr. Francisco sure. Justice kagan because mr. Francisco so im saying Justice Kagan because theres a big delegation, right, that says you get to make national policy. So what did daca violate . Mr. Francisco im saying two things, your honor. First, im saying you dont really have to address this issue because we think all of the other Justice Kagan i got that. Mr. Francisco reasons are more than sufficient. But, secondly, were not saying that theres a specific provision that it conflicts with. But what we are saying is that when you adopt this kind of broad and historically unprecedented program, you need to at least locate the authority to do so somewhere in the ina. Justice kagan well, they did mr. Francisco and this goes Justice Kagan you know, they located the authority in the inas grant of broad discretion over National Immigration enforcement policy. Mr. Francisco your honor, i think that the most that does is it gives you the authority to set policies and priorities, but theres a big leap between that and saying that you can affirmatively facilitate violations of the ina by hundreds of thousands of individuals to whom congress has repeatedly declined a pathway to lawful status. Justice kavanaugh what about Justice Kagan i guess mr. Francisco again, though, i i dont think this is an issue you need to ultimately resolve because i think the other reasons weve given for rescinding daca are more than sufficient to justify it, including our serious doubts about its legality alone. Simply as a matter of Law Enforcement policy, it is eminently reasonable for a Law Enforcement agency to say, im not going to push this doubtful authority to its logical extreme when it does three things it undermines confidence in the rule of law itself. Conflicts with other agencies Law Enforcement mission, and it creates the serious possibility of a Court Ordered shutdown of the program rather than an orderly wind down. Illegal, that means the government was giving out these benefits, it was acting illegally. When aot always the case Government Act illegally in a way that affects other people that we go back and untangle all of the consequences of that. Did secretary nielsen, when she was considering reliance interest, which you looking simply to the question of a wind down or was she looking more generally to the application of Something Like the de facto officer. Officers acted illegally, but we do not go back and invalidate their actions. I think both, your honor. The orderly wind down takes into account reliance interest. It does not fully account for everything, but the whole idea is that you were giving people an opportunity to order their lives in a time. To allow them to do that. She also specifically states in the memorandum that in addition, the notion of ad hoc deferred action will be able to take care of reliance Deferred Interest in truly extraordinary circumstances. Sporadically to address those scenarios. Ruleshave three wordbook in this case. It is a foundational rentable of Administrative Law that a court only onld Agency Action the grounds that the agency invoked when it took the action, in which case we look to miss dukes memo, not ms. Nielsen. If so, why do not just affirm the District Court, resend it back, and if you have all these reasons that you really want to consider the reliance and all of those things should be considered carefully, you can do it. What is wrong . Reasons, yourated honor. Sending a back would make no sense, because the agency has already acted. Secretary nielsen has already ratified secretary dukes decision for the reasons set forth in her memorandum. It is not opposed ad hoc there is no reason why secretary nielsen should have to reinstate dhaka and then resend it again. Not reinstated. They say there are 50 cases on this. If it is important, what you do is use a there is good reason for holding the status quo until we can go back, and affirm that. We hold the status quo, and we look at their reasons beyond the contemporaneous reasons, which is the duke memo. That is precisely what secretary nielsens memo dated. It did two things. Of the sec. Basis dukes decision. It set forth her own independent judgment. Of all of these different briefings, and she had that in front of her. That may go to whether you think her memo was sufficient but not whether her memo is an operative document in this investigation. I would like to point you to do places in her memorandum. This is the second page of her memorandum. , myexplanation reflects understanding of the duke memorandum and why the decision to rescind the dhaka policy was at remains sound. If you look at the end of her memorandum, she states in the very last sentence for these dhsons, in setting enforcement policies and priorities, i concur with and can and declined to disturb can i pick up on Justice Kagans question earlier . Is lawful,ka daca i would still exercise my apology policy discretion to discontinue. I am looking at two sentences. This is after she said it is illegal. Whetherregardless of the dhaka policy is ultimately illegal, it was appropriately rescinded by the dhs, because there are serious doubts about its legality. Third, if you look further down the page, regardless of whether these concerns about the daca policy render it illegal or questionable, there are sound reasons of enforcement policy to rescind the dock the daca policy. Thank you counsel. May it please the court. The governments termination of daca triggered abrupt, tangible adverse consequences and substantial disruption in the lives of several 100,000 families,s, their employers, communities, and armed forces. That decision to provide an rational,reasoned, and it sound explanation. It utterly failed to do so, asserting only the attorney generals unexplained assertion that he had no discretion, because daca wasnt unconstitutional exercise of authority by the executive branch. A fiveision overturned year policy of deferred action that had enabled Daca Recipients under other unchallenged laws and regulations to apply for employment authorization, seek drivers licenses, and other benefits. Its abrupt reversal removed a Condition Precedent of these rights and exposed Doctorate Recipients and their employers to immediate, potential, coercive government measures. It was impermissible to do so based on an unexplained, unsupported and erroneous legal conclusion that the policy that two administrations had enforced and implemented had supported and implemented for five years was unlawful and unconstitutional. Dhakacision to rescind was reviewable. This court has said several times in just in the past few years that we start with a strong presumption of reveal ability of Agency Decisions. This is the strong presumption that the court described in the wise in our case whys and hows her case limitations on review ability of the courts are quite narrowly construed and there are rare circumstances. These are the case and case. Are three cases within the past eight years where this court as talked about the presumption of review presumption,strong exceptions narrowly construed, and all three of those decisions were unanimous decisions by this court. Would you say that whenever a Law Enforcement agency has guidelines for the exercise of prosecutorial discretion and it then tightens those guidelines so that cases that previously would not have been prosecuted that is Agency Action this is a very different circumstance. Decision, andncy the attorney general refers to it as an illegal decision. It is an initial decision that it is responsive to explicit, congressional direction to dhs to establish enforcement priorities. That is what daca is all about. It did not establish any status, provide any benefits. An enforcement priority, which congress not only directed dhs to make but required it to make, because only 400,000 people i am not sure that is a response to my question, so i will give you an example. That say there is a policy a certain category of drug cases will not be prosecuted in federal court. Lets eight they are cases involving less than 5 kg of cocaine. Of lesser amounts of drugs will not be prosecuted. A matterl court, it is of enforcement priority, and that that is change. The 5 kg is reduced to three. Would that be revealed . The Justice Department or the attorney general, every new attorney general establishes new enforcement priorities with expect to pornography or drug cases and things like that. That is completely different than this, which singles out a category of persons pursuant to congressional authorization, and divided them into the program, provided other statutes which have not been challenged by the government, provided benefits that were associated with that decision and other people, individuals were light up on five years. Does that kind of a decision with respect to the lives of hundreds of thousands of people which has engendered reliance, which reverses not only a position of the of two administrations, but the office of legal counsel, changes policy, then all were saying is that theres a presumption of reviewability of that decision. Justice alito but youre youre saying its reviewable because daca conferred certain benefits. Mr. Olson daca did not confer Justice Alito beyond deferred prosecution. Mr. Olson daca Justice Alito is that is that what you just said . Mr. Olson daca no, i said the benefits were conferred were triggered by the decision of enforcement policy in daca, but those benefits are triggered by other statutes enacted by congress, funded by congress throughout all this entire period of time, and the government hasnt challenged those. So those benefits, the drivers license business and the and the Work Authorization, if you apply for it, if you come forward, identify yourself, put yourself into the program, take risks Justice Roberts but, mr. Olson, the whole thing was about Work Authorization and these other benefits. Both administrations have said theyre not going to deport people. So the deferred prosecution or deferred deportation, thats not what the focus of the policy was. Yes, the other statutes provided that, but it was triggered by by the memo. Mr. Olson yeah. Justice roberts so i dont understand sort of putting what the policy really was about, which is the Work Authorization and the other things, off to one side is very helpful. Mr. Olson well, i think that it you one has to focus on the fact that this was congress authorized the in the department of Homeland Security to identify enforcement priorities. Once it did because it it was required to do so and it had no choice because of the funding. Once it did so, and it identified the persons and this is helpful to the agents in the field to identify which individuals are going to be subject to enforcement and which individuals are not. Other statutes provided that benefit. Youre correct that it triggers that, but its triggered by other benefits and so forth. If the government is opposed to those benefits given to individuals who are not in an enforcement priority category to support themselves, to go to work, rather than put themselves in the hands of the government to support them, and to become a part since theyre not going to be deported, at least for the short period of time, those are the things that if the government wanted to get rid of, the government should be challenging those. It should not be challenging a decision thats essentially required by congress. And let there be no mistake about why this decision was made. The attorney general specifically said that daca was illegal and unconstitutional. I dont know where the unconstitutional came from because it didnt come from the fifth circuit. But lets say it was an un an illegal enforcement priority. And theres no doubt about why this happened. In the cert petition or in the governments brief that refers to the questions presented, it specifically says the original daca policy was unlawful and then goes on to say, thus, it had to be terminated. Theres no question about that. So the duke memorandum, which was the attorney generals decision and opinion under statute is enforceable and binding on the government agencies. Theres a statute that specifically says that. So the duke memorandum had no discretion, no choice. The attorney general of the United States Justice Gorsuch mr. Olson, i i think youve moved on to the merits, and i i guess im still struggling with Justice Alitos question on on reviewability. Can you help me understand what is the limiting principle . I i i hear a lot of facts, sympathetic facts, you put out there, and and they speak to all of us. But whats the limiting principle between, you say, reviewability here for an enforcement, a classic kind of prosecutorial discretion that one might have thought would have fallen under heckler versus chaney, and the example Justice Alito gave or heckler versus chaney itself . Whats mr. Olson heckler Justice Gorsuch whats the whats the limiting legal principle mr. Olson well, theres a Justice Gorsuch youd have this court adopt . Mr. Olson its a composite in this case, its a composite of principles, a determination that a categorical determination involving a substantial number of people Justice Gorsuch okay. But i i mr. Olson to make decisions Justice Gorsuch i think mr. Olson based upon that. Justice gorsuch all right. Let let let me just stop you there, though, because, if its categorical and a large number of people, i can think of a lot of prosecutorial decisions involving drug cases, the treatment of marijuana in in in our Society Today under federal law, perhaps it would be cocaine, five kilograms. Whatever is in the attorney general memo affects lots of people on a categorical basis every day. And mr. Olson yes. Justice gorsuch and youre not you you, i think, would not have us review those decisions. Mr. Olson thats no, but may i refer to Justice Gorsuch so, if its not categorical and its not a large number of people mr. Olson well Justice Gorsuch whats the limiting principle . Mr. Olson there as i said, its a combination of factors which include the government inviting people to rely upon and make decisions based upon that policy, the provision of benefits connected with it, individuals making choices, and and then and the heckler case Justice Gorsuch dont dont other mr. Olson mr. Olson specifically Justice Gorsuch people rely on the attorney general guidance memos and documents . Theres an entire industry in a lot of states involving marijuana that would argue theyre relying on memos issued by the attorney general that we will not enforce marijuana laws, for example. Do they now have a right to mr. Olson no, i think that is completely different. They are not invited to participate into a program, to reveal the business that theyre in, to come forward, to take advantage Justice Gorsuch well, they mr. Olson of benefits Justice Gorsuch have a lot of economic interests at stake that, i think, under fox and what we heard about earlier from Justice Breyer, they would say our economic interests are very real, billions of dollars are at stake, weve relied on the attorney generals guidance memos. Mr. Olson but theres but there but and i just would like to quote this one paragraph or one sentence from the heckler versus chaney decision itself. When an agency does act to enforce, the action itself provides a focus for judicial review because it imposes the coercive power of the government with respect to individual liberty and property, and that is the kind of decision that judicial review is intended to give. Justice gorsuch doesnt every prosecutorial decision affect individual liberty or property . Mr. Olson prosecution prosecutorial Justice Gorsuch i think the answer is yes, isnt it . Mr. Olson prosecutorial decisions, yes, of course. Justice gorsuch okay. Mr. Olson this is a an announcement of a policy this is a reversal of a policy that the government created that triggered to use the words of this court, engendered reliance interests. And all were saying is that it should be subject to review in the context of this big picture. It isnt to say that every decision by a prosecutor that im going to now enforce murder cases or kidnapping cases or child porn cases or serious drug cases. It doesnt cause individuals to come forward to participate in a program, to make decisions. Businesses, health, educational institutions, the armed forces, all are making decisions based upon this. No one was saying that the policy cant be changed. But when the policy does if the government wishes to change a broad policy like this which affects so many people in so many serious ways Justice Gorsuch well, if i might ask a question about that if were talking about the merits then, and then i ill pass off the baton. The reliance interests that weve weve talked about earlier, i i think your your friend on the other side would say we did address reliance interests in a paragraph and we could do it in 15 pages, but wed say pretty much the same thing at the end of the day, and it would take another six years, and it would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this court still on this issue. Mr. Olson its its what this court has said Justice Gorsuch what do you say to what do you say to that . And thats the line of argument, as i understand it, from the government. Mr. Olson yes, i know it is. And the government is saying all we needed was a few more words. That is not what this court has said with respect to administrative review of of judicial review of administrative decisions. You must have a rational explanation. It must make sense. It must be contemporaneous. The i will get to the nielsen memorandum which was not contemporaneous. It was not a new decision. Justice gorsuch i i understand that. If you could just address it, though, on the merits. Why was that insufficient, i think is one of the questions, and the other is what would what good would another five years of litigation over the adequacy of that mr. Olson we dont Justice Gorsuch explanation serve . Mr. Olson we dont know what the administration would do. The administration did not want to own this decision. When the attorney general decided that this im making this decision because the Justice Gorsuch i guess im asking about the reliance interests question. Mr. Olson i im trying to get to that. Justice gorsuch i i wish i wish you would. Mr. Olson the reliance interests were triggered, to use the words of this court in the fox case, the ltv case, and various other cases, those reliance interests were engendered by the decision by the government that caused people to come forward Justice Gorsuch i understand that. The question is what more would you have the government say about those reliance interests . If its a failure of adequacy of explaining, what more is left to be said . Mr. Olson what what they could have said is that we understand all of these people, working for all these people, we understand what people are going through, provide a reasoned, rational explanation, to use the words of this court just a few months ago in the census case, to explain those things, to explain why a policy is being changed and make a contemporaneous decision. The nielsen memorandum came along nine months later, was based upon a different individual by a different individual. Justice kavanaugh but mr. Olson it didnt have an administrative record. Justice kavanaugh assuming well, go ahead and finish. Mr. Olson well, well, itll take another sentence or two. But there were a lot of things wrong. The the nielsen memorandum was not an independent decision. She was bound just as the earlier administrator, acting administrator, was because the attorney general said this is illegal. Justice kavanaugh but the nielsen memo then goes on to say, as you heard mr. Francisco say to my question, that regardless of whether these concerns about the daca policy rendered it illegal or legally questionable, there are sound reasons of enforcement policy to rescind the daca policy. And it goes on to explain the policy rationales to rescind it. So what is your mr. Olson well Justice Kavanaugh response to mr. Francisco . Mr. Olson in the first place, they were not independent. They were not contemporaneous. They were not accompanied by an administrative record. Justice kavanaugh she mr. Olson they were not Justice Kavanaugh she says she says theyre independent in that sentence. Mr. Olson she says theyre independent. Justice kavanaugh at least thats what mr. Francisco says to you. Mr. Olson well, mr. Francisco said that and she said that, but they werent independent because she was bound by the attorney generals decision. And the government itself in its brief, and i quoted a moment ago, said daca was unlawful; thus, we had to terminate it. Now and it does and its not contemporaneous. And then, basically, the policy decisions are saying we understand people may have relied on this, but thats just too bad. Justice sotomayor mr. Olson mr. Olson thats basically all it was. There were not and then the litigation risk issue Justice Kavanaugh right. I got that. Mr. Olson is like a rubber stamp that the agencies can put on anything. Every decision an agency makes could involve Justice Kavanaugh do you do you agree that the executive has the Legal Authority to rescind daca . Mr. Olson yes. Justice kavanaugh okay. So the question then comes down to the explanation. And if its the nielsen memo paragraph on reliance that it comes down to, so which is the last mr. Olson well, it wasnt it first of all, it was not explained Justice Kavanaugh just can i just ask the question in this way, which is, assume the nielsen memo comes in and assume it comes down to whether the nielsen memo adequately explained the reliance interests. What was the shortfall in the nielsen memo in addressing reliance interests . Because she does acknowledge that a lot of people have relied. She does it mr. Olson and she Justice Kavanaugh briefly. Mr. Olson yeah, she says just too bad. People relied, so too bad. Too bad about that. Camp versus pitts specifically says, when an explanation for an Agency Decision is given, however curt, they must stand or fall on that explanation. Justice kavanaugh do you do you think mr. Olson this is a new Justice Kavanaugh do you think you could explain the reliance or the justifications for the policy in a way that would overcome the reliance interests . Mr. Olson they would yes, i i believe that thats possible. They could have they the analysis of costs and benefits explaining why an olc decision is being thrown out the window, why a policy is being changed that the administration is thats exactly what you have said. Justice sotomayor mr. Olson, can i go back to something Justice Gorsuch asked, which is whats the benefit of delaying this further . It has been at least looking at the deferred action decisions, the dozens that have gone on through the decades, congress has responded, sometimes changing the policy, sometimes limiting it, sometimes expanding it. It it has responded. But the dynamic is very different, isnt it, when an executive says, i dont have the power, and when it says, even if i had the power mr. Olson hypothetical. Justice sotomayor i choose not to do this. Arent the dynamics of what happens between congress and the president dramatically different in those circumstances . Mr. Olson exactly. This is what is called virtual reality. One said, i cant do i dont have the power to do it, but, if i did in the sky, i might have done it for this reason. The answer, the short answer to your question, Justice Sotomayor, and its a very good one, someone say i might have done it if id had the power to do it, but i have no discretion, i have no power to do it, it we dont know what the administration would do if it had to make this decision and take ownership and accountability of this decision. Justice sotomayor thats your point about given the attorney general decision and the law that says they have to change it. Thats a very different circumstance than saying, even if i dont have to, i wont. Mr. Olson thats exactly right. The administration would then have to explain we want to take responsibility for throwing these people out of work, removing people that came here when they were maybe two years old, who have not committed a crime, and who have and volunteered for this program, have have have conducted themselves properly and so forth. Justice alito mr. Olson, i i understand that litany. But do you seriously want to argue that if this case were to go back and the agency were to say, again, exactly what general francisco interprets the nielsen memo as saying, giving all of these reasons and saying that each one is an alternatively is an independently sufficient basis for the the action, would would that be unlawful . Lets say they they go into great length in explaining every mr. Olson well Justice Alito every every factor, every basis. Justice roberts certainly. Mr. Olson if they explained and provided a rational explanation instead of just pushing a button or putting a rubber stamp on it, thats what judicial review is all about. That means the agency would have taken responsibility for making the consequences of those decisions, explaining why it thought about it and why it decided what to do. Thats what your decisions require by judicial review. Justice roberts thank you, counsel. Mr. Mongan. Mr. Mongan mr. Chief justice, and may it please the court. It was up to petitioners to decide how to frame their decision to terminate daca. They could have taken responsibility for a discretionary decision, rescinding a policy that affects hundreds of thousands of lives. Instead, they chose to end the policy based on the ground that daca was unlawful. They told the public that the law deprived them of any discretion to continue it. And when judge bates invited them to make a new decision, they stood by the old one. Thats their prerogative, but it has the consequence that they have to defend that decision based on the legal rationale they originally offered, and the decision is reviewable and cannot be sustained on that basis. Now the problem with the rationale is, yes, they dont take serious account of the dramatic costs to Daca Recipients and the economy and their employers and families of terminating this policy, and also that it is founded on the incorrect legal premise that daca is unlawful. This court can review the lack of and affirm based on the lack of an adequate explanation for that ground or the fact that it is an incorrect conclusion and it is legal error. Now, if i can turn to the question of reviewability, the apa says that it commits Agency Actions that are committed to Agency Discretion by law are unreviewable. And the Central Point here is that when a agency founds a decision on a public announcement that it lacks any discretion to continue a policy, that cant fairly be described as committed to Agency Discretion in any meaningful sense. This is the concept that the court reserved in footnote 4 of chaney, because that is not a discretionary choice that the law has committed to Agency Discretion. I think that it is critical for us to consider on the merits what my friends position is with respect to daca and deferred action. My friend appears to agree that they can grant deferred action to compelling individuals, that they can grant Work Authorization to deferred action recipients, and they seem to agree that this is a very worthy class of individuals. So their position boils down to the assertion that the ina prohibits them from adopting a transparent framework that guides the exercise of individualized discretion with respect to this very compelling population of individuals. And thats not consistent with the Broad Authority that congress has granted the secretary under the ina and under 6 u. S. C. 202, and its not consistent with historical practice, where the agency, over the decades, has frequently adopted classbased discretionary relief policies that allow it to channel the exercise of recognized forms of discretion with respect to particular individuals in a defined class. Justice roberts well, that that history is not close to the number of people covered by daca. Mr. Mongan well, your honor, theres a history of classbased deferred action policies, and they are narrower, to be sure, but there are other classbased policies that have applied to hundreds of thousands of individuals. The family fairness policy, when announced, would have applied to up to 40 percent of Justice Roberts fifty 50,000 people, right . Thats the number that availed themselves of that policy . Mr. Mongan thats right, because it was shortlived. But, at the time it was announced, it was not clear that congress was going to act, and the executive told congress that this would apply to up to 40 percent of the undocumented population at the time. When congress did act in that statute, they signaled their approval of the executive policy. The statute didnt have an Effective Date for another year. And Congress Said that this is not intended to express disapproval of the existing executive policy. And thats one example, but there are more examples of Justice Sotomayor that sounds that percentage was 1. 5 Million People, very comparable to this decision. Mr. Mongan yes, and at a time when the total undocumented population was much smaller than it is today. Now it it is critical for the executive, in an area where it has broad discretionary authority, to be able to set policies that channel the exercise of that authority, and this is a transparent framework that has the benefit of allowing for some measure of consistency and an evenhanded approach in the exercise of deferred action. Justice kagan general, suppose that this administration had not relied on legal grounds to rescind the policy, which is very different from what they did, but lets just suppose otherwise, that they had immediately and only relied on policy considerations. Are you saying even then it would the the rescission would be reviewable . And why would that be . Mr. Mongan so, if it were a pure policy rationale, it would fall outside of chaney. It would be presumptively reviewable, as most Agency Actions are. I think it would be challenged, and the challengers would likely argue that theres sufficient general standards in this area to allow for a minimal level of rationality review. Justice kagan why would it fall outside of chaney, do you think . Mr. Mongan i think that chaney was very specific about the type of Agency Action that it addressed. It was a concrete decision by the agency not to enforce a statute with respect to particular actors. Now that is different from a broad policy that guides the exercise of deferred action decisions prospectively. And chaney was founded on a recognized tradition of nonreview. It pointed to cases going back to the 19th century. Justice alito well, when you say particular actors, did it not apply to anybody who was facing execution using using by by lethal injection . Mr. Mongan well, as general francisco has noted, there were broad policy considerations underlying the decision, but, as it was described by the court, it was a decision not to enforce with respect to particular prison administrators and drug companies. And i think a a different point here is that Justice Alito well, hasnt that been fda policy for all of the years since chaney . Mr. Mongan sure, your honor, but thats a Justice Alito well, thats a big class of people. Mr. Mongan but thats a flat determination not to enforce, as opposed to a policy guiding future decisions about whether to grant deferred action, which itself is not a flat or final nonenforcement decision. They have argued that deferred action is revocable at any time and could be and is not a defense to removal. So were dealing with a different type of policy here than the one that the agency dealt with in chaney. Justice breyer well, what is it exactly . I mean, look, i i ive always thought, well, it means the individualized kind of decision, but, quite rightly, the the solicitor general reads me the language, which is programmatic. But agency the United States has hundreds, thousands of agencies which do enforce all kinds of things, which make programmatic rules all the time. And so what it cant mean that heckler is interpreting this, committed to Agency Discretion, to make serious inroads in the principle of judicial review, but everybodys struggling, including me, whats the line . And whats the line generally . It cant be so broad of all programs. It cant be so narrow as an individualized decision. Just what is it . Mr. Mongan well, i think we can look to the language of the chaney decision. It describes a decision not to take enforcement action. So perhaps if there is a broad policy that is a flat categorical decision that we will not take enforcement action, that would be one thing. But the Justice Breyer imagine an sec rule or imagine an hhs rule and what it says is we are not going to take action to give a certain category of people their benefits. Not reviewable . I mean, nobody would think that. Mr. Mongan well Justice Breyer so so so were struggling still. Mr. Mongan yes. Justice breyer and im saying honestly i am struggling to get the right rule. Mr. Mongan i i understand and there may be ambiguities at the margins here, but i do want to focus it on this case because, here, acting secretary duke identified one ground for terminating this policy. She said that she was she pointed to the attorney generals letter, which concluded that the policy was unconstitutional and beyond statutory authority. And whether or not this might conceivably fall under chaney, if it does, it still is subject to review. Justice breyer so youre saying at the minimum, one, an action to enforce is different from an action not to enforce. Here, we have one to enforce. And youre saying as well that the ground being purely legal, it is not a discretionary ground. He said it was illegal, and, therefore, it is not within discretion. Okay, have i got those two right . Mr. Mongan thats right, your honor. Justice breyer anything else . Mr. Mongan i think those are what we have focused on in this case and that Justice Gorsuch well, counsel, i im sorry to interrupt there, but i actually had understood your answer on the second one to be different when you were posed that question by Justice Kagan. And i thought you had indicated that whether it was based on policy grounds or on an illegal assessment wouldnt alter the reviewability analysis in your view. So i guess im just curious, which is it . Mr. Mongan so, to be more precise, if were operating in a world where we assume that chaney applies, our point is, regardless, this is reviewable because this is within a subcategory where the agency has disclaimed any discretionary choice. It has said we have no authority over the matter. And that cant Justice Gorsuch that wasnt my im sorry, that wasnt my question. So so if if assuming were living in a world in which the agency had alternative grounds and one of which was policy grounds, i had thought you told Justice Kagan that this would be reviewable. And now i thought i understood you to Say Something slightly different to to to Justice Breyer. Perhap perhaps im missing something. Mr. Mongan well, let me try and and clarify. We believe that a broad policy is not the type of action thats referred to by chaney, consistent with some of the d. C. Circuit authority thats been cited in the in the briefs that general Justice Gorsuch well, i think Justice Breyer that just takes us back to the beginning of the discussion with Justice Breyer, which is that cant be so necessarily because every prosecutorial discretion affects a lot of people. You had that discussion with Justice Alito as well. So i i i guess i ill let you go, but im still struggling with this line that youre asking us to draw. Mr. Mongan well, it may be a difficult line to draw in the general case, but, in this case, with respect, it is an easy line to draw because we know that this decision was founded on a Binding Legal determination by the attorney general that they could not continue this policy. Justice roberts what if it mr. Mongan and thats the Justice Roberts what if it were less, as you view, in categorical terms . What if the attorney general said, ive looked at this, its its its a close case, but, on balance, i dont think we have the authority . Or if he said, im pretty sure we dont have the authority, but a court might come out differently . Does your analysis change, or is it only when he says this is as far as im concerned, this is definite; its illegal . Mr. Mongan no, your honor, we would argue that its a type of action thats presumptively reviewable, and if the agency decides to base a decision on some discretionary choice but with an explanation or rationale thats founded on litigation risk or legal doubt, that that would be a rationale that courts Justice Roberts is it enough mr. Mongan would be equipped to review. Justice roberts for him to say, look, ive got a decision from the fifth circuit that tells me this is illegal, its been affirmed by the Supreme Court by an equally divided vote . Thats enough for me to say were not going to do it . Mr. Mongan its not enough to sustain the decision, your honor. I think that, under these circumstances, given the nature of this program and the interests at stake, we dont think that any genuine statement of legal doubt or litigation risk would be adequate. But thats not what we have here. Justice kagan well, even if you went through a legitimate balancing exercise, in other words, you talked about the law and what you were worried about, and then you talked about the reliance interests, and and then you said heres is what were weighing and heres our judgment, do you think that that would be sufficient . Mr. Mongan i think, as a general matter, an agency could base a discretionary decision on a a reasoned analysis like that. I suspect that if we saw that decision, we would challenge it under the particular circumstances here. But a court might agree that if there were some substantial and detailed consideration of the actual costs of this and the reasoned legal analysis, then maybe that would be, in a courts eyes, sufficient, but thats absolutely not what we have here. Justice roberts so mr. Mongan we have a Justice Roberts so if this if you prevail and the case goes back, is it enough to say, look, weve read the amicus briefs that Justice Breyer pointed out about the reliance interests; weve read, you know, the fifth circuits opinion in in the texas litigation, presumably, they would cite that as well, would that be enough . Mr. Mongan i think that it would have to begin with the deficiencies that judge bates identified, which is that the agency has not actually identified with any particularity the legal grounds that its concerned with. It does cite Justice Roberts well, its not mr. Mongan the dapa case. Justice roberts yeah, i mean, what do you need more than that . Youve got a court of appeals decision affirmed by an equally divided Supreme Court. Cant he just say thats the basis on which im making this decision . Mr. Mongan your honor, no, and i think judge bates is exactly right on this. The reasoned explanation requirement is meant to facilitate judicial review and inform the public. And, yes, they point to the dapa case, but theres four or five theories of illegality floating around there ranging from the notice and comment to the take care clause claim. And we dont know which ground the agency based its decision on. So that is a lack of a reasoned explanation, in addition to the fact that Justice Kagan well, what would an adequate explanation look like . I mean, what do you think they would have to do to be in the clear on this . Mr. Mongan well, i think that they would at least have to identify the particular grounds that theyre relying on to facilitate further judicial review of their underlying legal conclusion and explain why they believe it applies to the daca policy when they pointed to a case about a different policy, and then have some serious, and more serious than what we see in the nielsen memo, accounting of the very substantial Justice Breyer but suppose they say, yeah, well do that, well do that. And now the authorities are legion on that that you we should decide on the basis of that duke memo. That was the decision, rested on that. And weve heard that, okay. Theres another case where Justice Fortas wrote, you shouldnt play ping pong with the agency, okay . So theyre saying thats what the a lot of their argument was. Whats the point . Whats the point . I mean, youll send it back, and theyll say, okay, right, dapa was different; in dapa, the court said that, here, the dapa Program Makes 4. 2 Million People citizens with a runaround of the normal way to become citizens when you have a child whos a citizen. And, here, that has nothing to do with this case. Theyre not no runaround. Okay, you point that out, they point okay, were going to come out the same way. Its close enough. So should whats the argument against playing as there is a sentence for, against you, playing ping pong with the agency . Mr. Mongan i think that there is a very substantial meaning to a remand in this case, your honor. We dont truly know what the agency would do if confronted with a discretionary choice. If they knew that daca were lawful, theres a new secretary, and the administration has expressed broad sympathy for this population, and they very well might continue the policy or stop short of wholesale termination. And if we are remanding in light of the lack of a reasoned explanation, my friend has Justice Kavanaugh but it mr. Mongan said Justice Kavanaugh it was remanded by judge bates or or given time, and secretary nielsen did what you just said and said, even if daca was legal, you heard mr. Francisco on that, i would exercise my discretion to rescind, and then explained her consideration of the reliance interests. So why is theres already been, in effect, a remand. Mr. Mongan there there is a boilerplate assertion in that memo of independence, i will grant you that. I think if we look at the circumstances Justice Kavanaugh well, can i just stop you on boilerplate . Mr. Mongan yeah. Justice kavanaugh i mean, this is a serious decision. We all agree with that. And and it was for the secretary, presumably. And to say in writing, even if its lawful, i nonetheless am going to exercise my discretion, i assume that was a very considered decision. Now we can agree with it or disagree with the the merits of it, but it seems mr. Mongan yes, and i think its important to look to the penultimate paragraph in that memorandum, where she conducts her collective weighing and she considers those policy rationales along with the legal rationales and say that, together, they outweigh the purported costs of terminating daca. I also think its critical to understand the context of this in that Justice Kavanaugh so your point, just so i understand, i think this is your point, is that the legal considerations, while she said that, end up being intertwined in the subsequent paragraphs with the policy considerations . Mr. Mongan that thats absolutely right. And this was, after all, in a context of a memo that they submitted to the District Court in ongoing litigation intended to defend and explain the prior decision. And i do want to note here that to the extent that my friend has suggested this is a new decision or a new action and has been presented as such, thats not consistent with what they told the District Court. The District Court said quite plainly, please notify me if theres a new decision. They submitted this memo and said, this is a motion to revise your order with respect to the original duke decision; we want you to sustain the duke decision. And the District Court took them at their word and treated it accordingly. So i dont think that they can come to this court and suggest that it is a fresh decision and every rationale is before the court. Under camp Justice Kavanaugh in that penultimate paragraph, what is the shortfall in the discussion of reliance interests, in your view . Mr. Mongan well, im not sure that there are there is much of a discussion. She expresses some sympathy and then ultimately says that it is up to congress to consider and weigh the the reliance interests and the costs. Its not a detailed discussion of the dramatic harm to hundreds of thousands of young people, to their families, to their employers, to the states, to the economy that would arise from this decision. Justice kavanaugh well, she does say that in a sentence. If we remanded and it were detailed more fully, would it still fall short . Mr. Mongan i think the great value of a remand is that Justice Roberts please. Mr. Mongan to date, they have not made a decision that actually takes ownership of a discretionary choice to end this policy. And if they had a remand, if that is their intent, they could issue a new decision that actually does that so the public could hold them accountable for the choice theyve made. Justice roberts thank you, counsel. Five minutes, mr. Oh, im sorry, general francisco. Mr. Francisco thank you, mr. Chief justice. I think i want to focus on three basic points. First, Justice Kavanaugh, i want to make sure you have all of the relevant portions in the nielsen memorandum that i think make this all quite clear. Page 122a, and im at the regents petitioners appendix. In considering how dhss discretion to establish enforcement policies and priorities should be exercised, the daca policy properly was and should be rescinded for several separate and independently sufficient reasons. She then gives the first reason, the legality question. Then if you go to page 123a. Second, regardless of whether the daca policy is ultimately illegal, it was appropriately rescinded by dhs because there are at a minimum serious doubts about its legality. Further down the page, third, regardless of whether these concerns about the daca policy render it illegal or legally questionable, there are sound reasons of enforcement policy to rescind the daca policy. And then she sets out the enforcement policy. If you move to page 121 125a, where shes discussing reliance, i do not believe that the asserted reliance interests outweigh the questionable legality of the daca policy and the other reasons for ending the policy discussed above. And, finally, when you get to the conclusion on page 126a, for these reasons, in setting dhs enforcement policies and priorities, i concur with and decline to disturb acting secretary dukes decisions to rescind the daca policies. So, frankly Justice Bader ginsburg but we dont know from mr. Francisco i dont understand Justice Bader ginsburg from all of that, we dont know how she would respond if there were a clear recognition that there was nothing illegal about daca. Her whole memo is infected by the idea that this is, one, illegal. It leaves substantial doubt about its illegality. If we take that out, then the independent ground that youre asserting, then she would be saying, we stand up and say this is the policy of our administration. We dont like daca and were taking responsibility for that, instead of trying to put the blame on the law. Mr. Francisco respectfully, your honor, i very much disagree. She sets forth explicitly on page 121a several separate and independently sufficient reasons. We own this. We both own the policy rationale set forth in secretary nielsens memorandum. Also, because we think this is not subject to judicial review at all, we own the legal judgment set forth in secretary nielsens memoranda. So simply stated, the fact that weve got alternative and legal policy grounds for making this decision make two things clear. First, it is four square within chaney under the reviewability issue because chaney, likewise, was rested on alternative legal grounds. The fda believed it lacked jurisdiction and policy grounds. And, secondly, it shows how this was plainly and eminently reasonable rescission, even if you disagree with us on the legal issue, because weve set forth separate and independent policy issues for the decision. So that was basically my first point. Justice kagan but even what you just read, general, in that key paragraph where the secretary weighs the the the the reliance interests against the reasons in her memo, everythings wrapped up. And we really dont know how she would have conducted that balance, how she would have weighed those two, if the legal had been taken away from it. Mr. Francisco i i simply disagree with that. When she specifically says that shes setting forth separate separate and independent grounds justifying the rescission, i dont think that theres any fair way to read that but by saying that she would have rescinded it based on any of the independent grounds, which brings me Justice Breyer look at the independent grounds. Number one number one, we should not adopt a policy of nonenforcement of those laws for broad classes and categories. Okay. And congress she thinks agrees with us. Well, i dont know. Maybe they do; maybe they dont. But, aside from that, that thats a conclusion. Look at the second one we should do it on a truly individualized casebycase basis. Thats a conclusion. That isnt a reason. And the third one is a reason. The third one it is important to project the message that leaves no doubt regarding the clear, et cetera, enforcement of immigration against all class thats an independent reason. Mr. Francisco with respect, may i finish . May i finish . Justice roberts yes. Mr. Francisco im going to try to squeeze in two points in a single sentence. Justice breyer thats all right. Good luck. Im sorry. Mr. Francisco the first the the first point is that i very much disagree. All of those articulate the basic same policy rationale that this is a Law Enforcement agency. They are against general policies that actively facilitate violations of the law. And the last point i will make is, while we dont think you need to address the legality question if you agree with us on any of our other arguments, if you disagree with us on any of our other arguments, you absolutely must address the ultimate legality question because we simply cannot be forced to maintain a policy that this Court Concludes that is illegal. So, if you decide to get there, then we do think that daca is illegal and was justifiably was justifiably rescinded on that basis as well. Thank you, your honor. Justice roberts thank you, counsel. The case is submitted. That argument took place in november. Today, the High Court Ruled against Trump Administration efforts to remove the daca program, which allow noncitizens brought as children 60,000itted about noncitizens to stay and work in the u. S. While waiting for a decision on their legal status. The Supreme Court ruling was fivefour. 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