Transcripts For CSPAN3 Supreme Court DACA Oral Argument 20240713

Verses regents of the university of california and the related cases. General francisco . Mr. Chief justice and may it please the court, in 2017 the fifth circuit held the dapa and the expansion of daca were unlawful, a judge in this court affirmed and in the decisions the department of Homeland Security reasonably determined that it no longer wished to retain the daca policy based on its belief that the policy was illegal, its serious doubts about its illegality and its general opposition to broad, nonenforcement policies. That decision did not violate the apa for two reasons. First, its not subject to judicial review. The rescission simply ended a previous nonenforcement policy whereby the department agreed to not enforce the ina against hundreds of thousands of illegal ail epps, but the decision whether or not to enforce the law is committed to the agencys unreviewable discretion unless a statute restricts it, and nothing in the ina requires the department, a Law Enforcement agency to not enforce the law. Second, the decision to end this nonenforcement policy was eminently reasonable. Daca was a temporary stopgap measure that on its face could be rescinded at any time, and the departments reasonable concerns about its legality and its general opposition to broad, nonenforcement policies provided more than a reasonable basis for ending it. After all, an agency isnt 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 it conflicts with the agencys Law Enforcement mission. Id like to begin with the review ability question. If the attorney general were to say that he wasnt 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 that policy because he believed that the Death Penalty was constitutional and that would likewise be immune from review. A strange element to your argument because youre arguing this is a discretionary matter. Its not reviewable because its committed to Agency Discretion. 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 youre saying we have no discretion. This is an illegal program. For two reason, your honor. First, we put Forward Legal and policy reasons for the rescission. So this case is on all fours with cheney where the fda likewise put forth legal and policy reasons. Its principal argument was that it lacked jurisdiction to regulate state use of drugs and carrying out the debt penalty. Its alternative argument is even if it had the Legal Authority to do so it wouldnt have exercised it and this court found that that decision was found for the agencys unreviewable discretion and here were making alternative legal and alternative arguments. Im sorry. Go ahead. Even if we were making purely a legal argument and were not, but even if we were, review would be foreclosed by the courts decision in ble. What the ble case held was that if an action is committed to an agencys unreviewable discretion then it doesnt matter what reason it gives for taking that action and the specific example this provide this court provided was a prosecutor that decided not toic diet for a purely legal reason and the court indicated that was still unreviewable because the underlying action and the Enforcement Discretion was committed for the agencys unreviewable discretion. Here we think we win under cheney and we win under ble. What if the attorney general said in his exercise of prosecutorial discretion was not going to enforce any of the immigration laws. Would that still be nonreviewable . Your honor, then i think that you might run into cheneys exception for a complete abdication of authority and there is a critical difference between that and this. Here, we are enforcing the law. You can understand why kpgs or the courts can say you can review a decision not to enforce the law. Congress passes laws so it might be enforced and why you just restrict, here, it is very difficult to see and Say Something is illegal and hamstring the resumption that its Enforcement Discretion which would allow where congress himself restricts or an abdication as cheney made clear. Just to understand what youre saying, general, that would suggest that the original daca is reviewable, but the rescission of daca is not . Are you suggesting that theres an asymmetry in whats reviewable that they dont stand in full together . There is because theres a difference in both approximatpo. Both of them reflect an exercise of Enforcement Discretion that are presumptively unreviewable. The question then is whether congress has done anything to restrict that discretion. With respect to dapa, the case that this court had before it a couple of years ago, texas argued that the ina 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 passes and the fifth circuit agrees. That fell within the cheney exception to the presumption. Here, though, nobody is arguing. Nobody on either side is arguing that the ina somehow restricts our ability to enforce the law, and it would be quite surprising if congress were to pass a law and tries to somehow restrict the governments ability from enforcing the laws that it passes. So i think we fall four square within the cheney presumption and the cheney exemption doesnt apply and that exception covers both with the statute itself and restricts the discretion, and it could apply where there was a complete abdication of Law Enforcement and responsibility and that was one of the areas that cheney reserved in that critical footnote for it, but here, were not not enforcing the law. Were enforcing the law and theres simply nothing in the ina that somehow says through the department of Homeland Security you are in any way, shape or form from enforcing the law. The response that you that you gave to me. I didnt see on the duke memorandum, the duke memorandum said daca is illegal. I didnt see where it said whether its illegal or not as a matter of Administration Policy we are withdrawing. I didnt see that. You said there were alternate arguments. I saw only the first we cant enforce daca because its illegal. So two response e your honor. And sets them forth in great detail and we think the nielsen memorandum is properly before the court and the District Court in washington, d. C. , specifically asked for it and we specifically provided it and the District Court reviewed it so the only question is what does it mean and secretary nielsen in her memorandum effectively ratified secretary dukes decision for the reasons given using precisely the same mechanism to issue the memo in the first place and the same mechanism that was issued to use the daca memo. So this is not a posthoc action and the rules is to prevent courts from invading the executive Branch Decision making. Is that an argument between ken davis and burger. The little thing that you are committed to agency discussion by law doesnt mean that theyre certain just mean that there are certain things an agency might do, dont review them even if theyre totally wrong like panama canal told us. Right. That isnt here, i dont think. The cheney argument, i thought was the reason this is unreviewable is because theres a long history and tradition of a prosecutor saying i know that guy over there or that woman here, and they may be guilty, but in my discretion, no. I dont want to prosecute it. Theres a long history of that, and if that history and understandable power to give to a prosecutor is to be valid, the courts, stay out of it and that does not apply or whats at issue is not a prosecutor, making an individualized decision. But rather an agencys policies generalized, written down and i cant think of a reason why in such a case you wouldnt review it. Respectfully, your honor, i strongly disagree because cheney itself involved want a prosecutor, but an agency and not a singleshot enforcement action, but a general policy. Heres what the fda said in the letter denying the petition brought by the inmates to regulate the Death Penalty. This is the print pell conclusion. For the reasons given below, we conclude that the lethal injection by state penal systems is the practice over which fda has no jurisdiction and therefore that fda has no authority to take the actions your petition requests. Accordingly, your petition is denied and later it provided as the alternative rationale, and the policy rationale and it says later 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 would be used for execution by lethal injection. In cheney, the fda was announcing a categorical policy that it wasnt going to regulate the state use of drugs in carrying out the Death Penalty and it wasnt a criminal prosecution, and i think it is on all fours, and here we have an exercise of Enforcement Discretion that is committed to the unreviewable discretion under cheney. It doesnt fall within any of the exceptions to cheney where congress either restricts the exercise of that discretion because here were talking about enforcement and it doesnt fall under the complete abdication to cheney because again, were talking about enforcement and not nonenforcement. Wouldnt what you just read also have made daca itself unreviewable to pick up on justice kagans question from earlier . No, your honor, and again, because critically, it falls within whats the distinction between daca and the fda policy. The daca and the fda policy . Well, because in the fda approximately s policy was that it was not restricting the ability, and nobody made that argument and in the dapa, which is maybe what youre referencing, texas specifically argued that the ina did, in fact, restrict the agencys authority to exercise its Enforcement Discretion to not enforce the law. One of the things that texas argued in the dapa case was that the Agency Action in question there conferred certain benefits on the individuals who were affected and if that was sufficient to make that reviewable, does the wind down of daca remove certain benefits that individuals would have and if it does, would that make this reviewable . I think the answer is no, and no, and the reason why is, first of all, the rescission of daca doesnt rescind any benefits. Those benefits are allowed to the expire on their own term, but even putting that aside and the Work Authorization and the other benefits are simply a collateral consequence of the exercise of prosecutorial discretion itself and they dont make the prosecutorial discretion itself. Otherwise every grant or denial would be subject to apa review and every grant or denial and deferred action has collateral consequences, and if i can give you a hypothetical that makes it more concrete. Suppose a prosecutor has a Drug Diversion program and he says that im not going to prosecute this particular category of drug offenses if the individuals agree to enter into drug treatment. The drug treatment is a collateral consequence of and a benefit that flows from the prosecutorial decision and it doesnt render the prosecutorial decision subject to review and likewise, if a new prosecutor comes and says i dont want a Drug Diversion program and i want a zerotolerance policy and i do think the challenge to dapa in the prior litigation was reviewable, to be clear. It was reviewable because it fell within the cheney exception. Texas argued the fifth circuit agreed that the ina, in fact, restricted the department of Homeland Securitys ability to not enforce the law and frankly, we agree with that, but the problem here is that theres 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 and it passes. Is this an appropriate moment to move to assuming review ability and the merits . Any time you want to move there, your honor, ill move there. One argument that the other side makes along those lines is similar to this when were considering it, and the reliance interests that have grown up around daca, and what do you say to that whether theyre adequately considered in this case. Two thing, your honor. First, to the extent there are any reliant interests theyre extremely limited. Daca was always meant to be a temporary stopgap measure that could be rescinded at any time which is why it was only granted in twoyear increments and i dont think that anybody could have assumed that daca would remain in effect in perpetuity. Even putting that to the side here the agency considered the rely, and the agency mitigated the reliance interests through the orderly winddown and it simply concluded that beyond that it didnt justify maintaining in perpetuity a program that actively facilitated violations of the law by hundreds of thousands of individuals. Im sorry. If i understand your colleagues argument on the other side, its not that secretary nielsen failed to consider the interests and theres that paragraph, i believe and the petition around 125, somewhere in there, but that given the extent of the reliance interest and the size of the class more needed to be said and more could be said and there wouldnt be a huge burden to say more. So as i understand that, thats the nature of the argument. And i guess i would have a couple of responses to that and the first is i dont think it reflects an accurate understanding as this court has repeatedly made clear really, the only thing that matters is whether the agency, and i think im quoting from the case law completely failed to be an aspect of the question and i dont think you can remotely offer, and, and dukes memorandum under the proper standard clearly satisfies the apa standard for considering reliance interest. She does so explicitly in the portion of the memorandum that you reference and in addition what i would point out is that at the very beginning of her memorandum, page 2, she specifically says that one of the things that she considered were the judicial opinions reviewing the duke memorandum and all of the District Court decisions and so when she gets to the specific discussion of reliance interests, she says that she is keenly aware that people have ordered their lives in light of the daca decision so it is quite clear that she is fully taking into account the whole panoply that was discussed ad nauseam and simply concluding that they didnt justify maintaining the policy. If i can continue the same question because look, the best statement of all, in my mind and its a very old principle is Justice Scalia writing. When an agencys, quote, prior policy has engendered serious reliance interest it must be taken into account, all right . Thats this case, i think. All right. So i counted. I had my law clerks count, actually. Not just the people who came in, you know, the 700,000, and theyd never been anywhere else. They never have to but there are all kinds of reliance interests and how this brief as im sure you have which state different kinds of reliance interest and there are 66 Health Care Organizations and there are three labor unions, and there are 210 educationals associatis and six military organizations and there are three homebuilders, five states, plus those involved. 108, i think, municipalities and cities and 129 religious organizations and 145 businesses, and they all list reliance interests or most of them list reliance interests applicable to them which are not quite the same. Theyre not quite the same as those of the 700,000 who have never seen any other country, and i did read what you just read to me. Now you want to say anything about the statement you just read to me, being adequate to take into account that broad range of interests . Yes, your honor, i do because the first thing i want to say is that state farm itself says, and you violate the apa and where you consider an important aspect of the problem and here secretary nielsen experienced the interest and all of the things that we listed that were set forth in e krush yatixcrucil which ruled against us which she specifically detailed. Not in her memo. Under this conception of apa review, daca and dap alikewise would have failed arbitrating review because there is not a single word in the daca memo itself or the dapa memo itself explaining any of the potential costs or benefits or impacts on other people that the implementation to the daca program would have had. Ill take either one, your honor. If i understand, secretary nielsens memo correctly, secretary nielsen said that she did have a conclusive statement about weighing the reliance interests, and she weighs them against what she calls i think its the questionable legality of the program. Now that assumes one of the things that were 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 that the original program was legal, how does her memo suffice to do that balancing . For a couple of reasons, your honor. First, because she sets forth separate and independent basis justifying the rescission. First, that its illegal and second, her belief that there are serious doubts about her illegality and third, her conclusion that its a matter of enforcement policy and the department of Homeland Security is part of the broadbased nonenforcement decisions and any one of these is separate and independent in her statement about reliance, she particularly says it outweighs this questionably legal program. I think what she is saying is that given that they are extremely reliant interests in the first place, any limited reliance interests that exists are outweighed by all of the Different Reasons that she has articulated as separate and independent grounds for rescinding daca. That is the only fair way you can read that memorandum. I have always had some difficulty in understanding the illegality of daca. 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 contrary, directly contrary to that path, but there i dont see anything in the i, in a that take away the discretion of the agency in ordering its enforcement policies. Right. We all know it has limited resources. It cant, even when it wants to, remove the vast majority of aliens we have here, and so ive also had some difficulty in understanding whats wrong with an agency saying were going to prioritize our removals and for those people like the daca people. Right. Who havent committed crimes, who are lawfully employed, who are paying taxes, who pose no threat to our security and thera a whole list of prerequisites, were not going to exercise our limited resources to try to get rid of those people. I still have an impossible time. I know youre going to argue contrary. I guess i have three responses, your honor. Let me just finish my question, okay . Sure. So putting aside that, the secretary in giving these extra reasons because none of these were in the duke memo and in the basic Administrative Law, and you add later and assuming you ignore that and even look at the nielsen memo. I think my colleagues have rightly pointed that theres a whole lottie of reliance that were looked at including the very president , the current president telling dacaeligible people that they were safe under him and that he would find a way to keep them here. And so he hasnt and instead hes done this and that, i think, has something to be considered before you rescind the policy. Right. Not just saying ill give you six months to do it. Right. To destroy your lives. Putting all of that aside and im going to get to my question and maybe well have an opportunity to hear the three answers. I know you wont. But really, where is is aall this in the memo . Sure. Where is all of this really considered and weighed and where is the political decision made clearly that this is not about the law, this is about our choice to destroy lives. Yeah. So, your honor, four responses now. I think ive added one. The first one is that i think that the prior president didnt, couldnt and hasnt made any kind of promise that daca would remain in effect in perpetuity because it would have been impossible to make that promise. In fact, every one of my friends on the other side i think has agreed that we could rescind daca at any time if at least in their view, we did provide it a little bit more detail of an explanation and i think that is four square against the notion that there are significant reliance interests and all 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, i dont think my first point is i dont think you have to decide ultimately whether daca is legal or illegal because i think the other reasons weve givener more than sufficient to justify the decision and both the serious doubts about the legality as well as the opposition to broadbased nonenforcement policies and after all, it is a Law Enforcement agency and the Law Enforcement agency doesnt have to enforce the dube rouse power to not enforce the law to its logical extreme. Dont you have to set up some kind of categories . I mean, everybody agrees, what is it . 11 Million People . Right. They dont have the resources and you have to prioritize. Absolutely. How do you do it other than categorically . And thats my second point, your honor. My second point is daca goes far beyond simply diverting resources to higher priority target which is you are absolutely right. Every Law Enforcement agency has to divert resources and daca goes materially further than that because it actively facilitates violations of the law by providing advanced f forbearance like Work Authorization and significantly and this was may third point, it has no limiting principle. So the forbearance would be okay if there werent attendant benefits and this were not going to deport the dreamers, period. I think that would be, 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 theres no limiting principle and it effectively allows the government to have the category of aliens that it chooses a lowpriority do you means and you at the very least need to locate something that confers that broad and unfettered discretion and theres simply nothing there. But again 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 so are you saying that are you saying that daca violated any particular provision of the ina . What are you saying violated . Because there is a big delegation that says you get to make national policy, so what did daca violate . Im saying two thing, your honor. We think all of the others we think theyre more than sufficient. I got that. Secondly, were not saying that there is a second provision that it conflicts with and when you adopt this kind of broad and historically Unprecedented Program you need to at least locate the authority somewhere to do so in the ina. They located the authority in the inas grant of broad discretion over the enforcement approximately see. It gives you the authority to set pol sigicies and priorities there is a big leap in saying you can facilitate it by hundreds of thousands of individuals to whom congress has repeatedly declined a pathway to lawful status. Again, i dont think this is an issue that you need to ultimately resolve and the issues for rescinding daca are more than sufficient to justify it. Simply as a matter of Law Enforcement policy it is imminently reasonable for a Law Enforcement agency to say im not going to push this to its logical extreme when it does three things. It con flicks with the agencys Law Enforcement mission, and in a case like this it creates the serious possibility of a courtordered shutdown of the program rather than an orderly winddown. If daca was illegal, that means when the government was giving out these benefits it was acting illegally, right . Yes. Its not always the case when the government acts 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 the reliance interest, was she looking simply to the question of a winddown or was she looking more generally for example, to the application of the de facto officer. And officers acted illegally, but we dont go back and invalidate the buyer actions. I think both, your honor. The orderly winddown to a certain extent takes into account reliance interests and it doesnt fully account for everything and the whole idea is you are giving people an opportunity to order their lives in a time period to allow them to do that, but she also specifically states in the memorandum that in addition the notion of ad hocdeferred action will be able to take care interests in extraordinairy circumstances to address those types of scenarios. The basic hornbook rule. We have three hornbook rules in this case. As was mentioned, it is a foundational principle of Administrative Law that a court may uphold Agency Action only on the grounds that the agency invoked when it took the action. Right. In which case we look to mr. Dukes memo and not to miss nielsens. And if so, i want to hear you say no, it isnt so, and if so, why dont we just affirm the District Court which sends it back and if you have all these reasons and you want to consider the reliance and all these things should be considered carefully. You can do it. So whats wrong . For two related reason, your honor. Sending it back would make nor sense because the agency has already acted and secretary nielsen has ratified secretary dukes decision for the reasons set forth in the memorandum and its not a posthoc radicalization and its the official position of the agency set forth by the agency itself and secondly, there is no reason why the secretary would have had to reinstate daca not reinstate it. There are 50 cases on this. If its important what you do is you say theres good reason for holding the status quo until we can go back. We hold the status quo and we go back now and we look at their reasons beyond the contemporaneous reason which is the duke memo and we see. Thats precisely what secretary nielsens memo did. It did two things. First, it explained the basis for secretary nielsen that secretary dukes decision and secondly, it set forth her own independent judgment, and if i can point you and all of the 350 briefs with all of these Different Reasons and she had that in front of her. Your honor, that may go to whether you think that memo is sufficient and it will not go to whether it is an operative document in this litigation. I would like to point you to two places in her memorandum and first page is 121a and this is the second page of her memorandum. The explanation reflects the first thing, my understanding of the duke memorandum and second thing, yet decision to rescind the daca policy was and remains sound. If you look at the end of her memorandum she states in the very last sentence for the reasons for these reasons in setting in setting vhs enforcement policies and priority, i concur with and decline to disturb acting secretary dukes decisions to rescind the daca policy. Can i pick up on justice kagans earlier . Does the memo say even if daca was lawful i would still exercise my policy to discontinue. Yes, your. If you look at the memo. What sentence are you looking at . Page 123a and this is after she says its illegal. Second, regardless of whether the daca policy is ultimately illegal and it was rescinded by the dhs because there are at a minimum serious doubts about the legality and one more sentence and third, if you look further down the page, it says regardless whether these concerns render it illegal or legally questionable and they reskibd the daca policy. Thank you, counsel. Mr. Olson . Thank you, mr. Chief justice and may it please the court. The governments termination of daca triggered abrupt, tangible, adverse consequences and substantial disruptions in the lives of 700,000 individuals, their family, employers, communities and armed forces. That decision required the government to provide an accurate reason, rationale and legally sound explanation. It utterly failed to do so asserting only the attorney generals unexplained assertion that he had no discretion because daca was an unconstitutional exercise of authority by the executive branch. The decision overturned a approximately see of deferred action that had enabled Daca Recipients under other unchallenged laws and regulations to apply for employment authorization, and seek drivers licenses and other benefits. Its abrupt reversal removed a Condition Precedent to these rights and exposed Daca Recipients and their employers to immediate, potential, coercive government measures. It was impermissible to do so based on an unexplained, erroneous con krougs that the policy of two administration his supported and implemented for five years. It was unlawful and unconstitutional. The skinned to rescind daca was unreviewable. Several times in the past four years that we start with a strong presump gsz of review ability of Agency Provisions and this is what the court described in the weyerhaeuser case just one year ago unless Agency Discretion is limited by law and theres no citation to any limitation in the law. Limitations on review ability by the courts are quite narrowly construed and there are rare circumstances and these are the mock mining case and the judo lang case and these cases are three cases within the past eight years where this court has talked about the presumption of review ability of a strong presumption and 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 the cases that previously would not have been prosecuted may now be prosecuted . That is Agency Action that is subject to review under the apa . I would not say that, Justice Alito, but this is a very, very different circumstance and this is an Agency Decision initially and the attorney general refers to it as an illegal decision. It is an initial decision thats responsive to explicit, congressional direction to dhs to establish enforcement priorities. Thats what daca was all about. It said it did not establish any status. It did not provide any benefits. It articulated an enforcement priority which congress not only directed dhs to make, but in fact, required it to make because only 400,000 people im not sure that really responds to my question. Ill give you an example. Lets say that there is a policy that a certain category of drug cases will not be in federal court and its less than five kilos of cocaine. So cocaine cases with lesser amounts of drugs will not be prosecuted and federal court is a matter of enforcement priority and then that is changed. So the five kilos is reduced to three. Would that be reviewable . Well, whats the difference . The Justice Department through the attorney general, every new attorney general establishes new enforcement with respect to pornography, drug cases and things like that and it singled out a category of americans pursuant to congressional authorization and invited them into the program and provided other statutes which have not been challenged by the government and provided benefits that were associated with that decision and other people and individuals relied upon that for five years the administration when it does that kind of a decision with respect to the lives of hundreds of thousands of people which are engendered reliance which reverses not only a position of two administrations, but the office of Legal Counsel changes policy, then all were saying is that theres a presumption and a review ability of that decision. Youre saying its reviewable because daca conferred certain benefits. Beyond deferred prosecution. Is that what you just said . No. The benefits were triggered by the decision in daca, but those benefits are triggered by other statutes enacted by congress over this period of time and the government hasnt challenged those. So those benefits and the driver drivers license benefits and the Work Authorization, if you apply for it and you come forward and put yourself into the program, take risks on. Mr. Olson. The whole thing was about the Work Authorization and these other benefits. Both administrations have said theyre not going to deport the 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 the memo. So i dont understand sort of putting what the approximatepol was about and putting it off to one side, thats really helpful. One has to focus on the fact that this was congress authorized the department of Homeland Security to identify enforcement priorities. Once it did because it was required to do so and it had no choice because of the funding and 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, and its triggered by other benefits and so forth, if the government is opposed to those benefit, given to individuals who are not in an unforcement priority category to support themselves, to go to work rather than put themselves in the hands of the government to support them and 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 and it should not be challenging a decision thats essentially required by congress and let there be no mistake about why this decision is made . The attorney general specifically said that daca was illegal and unconstitutional. I dont know where the unconstitutional kiem from because it didnt come from the 5th circuit. Say it was an illegal enforcement. In the srt petition or in the prove, the original daca see was unlawful and thus, it had to be terminated. So the duke memorandum was the attorney generals decision and opinion under statute is enforceable and binding on the government agency. Theres a statute the duke memorandum had no discretion, no choice i think you moved on to the merits, and im still struggling with Justice Alitos question on review ability. Can you help me understand what is the limiting principle . I hear a lot of facts, sympathetic facts that you put out there, and they speak to all of us, but what is the limiting principle between reviewability here for a classic prosecutorial discretion that one might have thought wouldve fallen under cheney, and the example Justice Alito gave . What is the limiting legal principle . In this case, it is a composite of principles and a determination that a categorical determination involving a substantial number of people. Let me stop you there because if it is categorical and a large number of people, i can think of a lot of prosecutorial decisions involving drug cases, the treatment of marijuana in our society under federal law and perhaps it would be cocaine at five kilograms, whatever is in the attorney generals memo, affects a lot of people on a categorical basis every day, and i think you would not have us review those decisions. No, but may i refer so it is not categorical and not a large number. What is the limiting principle . As i said, it is a combination of factors which include the government inviting people to rely upon and make decisions based upon the policy and the provision of benefits connected with it, individuals making choices and then dont people rely on the attorney general guidance memos and documents . There is an entire industry in a lot of states involving marijuana that would argue there relying on memos issued by the attorney general that we will not enforce marijuana laws for example. Do they now have a right no, that is completely different. Theyre not invited to participate in the program to reveal the business they are in, to come forward, but there is a lot of economic interest at state, and what we heard from Justice Breyer, that the economic interest is very real, and billions of dollars are at stake and we relied on their major. On their business. I would like to quote this one sentence from the heckler vs. Cheney decision itself. When the 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 a kind of decision that judicial review has intended. Does it affect individual liberty or property . I think the answer is yes. Prosecutorial decisions, yes, of course. This is not an announcement. This is a reversal of a policy that the government created that triggered to use the words of this court, engendered reliance interest, and all we are saying is it should be subject to review in the context of this big picture. It does not say that every decision by a prosecutor that im going to enforce, murder cases or kidnapping cases or child porn cases, it does not cause individuals to come forward to participate in a program, to make decisions, businesses, health, educational institutions, the armed forces, our all are all making decisions based upon this. No one is saying the policy cannot be changed. But if the government wishes to change a policy which affects so many people in so many serious ways so i will ask a question since we are talking about the merits, reliance interest of what we were talking about earlier, i think your friend on the other side would say we did address reliance interest in a paragraph, and we could do it in 15 pages, but we 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 continued stasis in the political branches because it would not have a baseline rule of decision from this court still on this issue. It is what this court has said. That is the line of argument as i understand it that is not what this quarter son in respect to administrative review of traditional review of administrative decision. You must have a rational explanation, it must make sense, it must be contemporaneous, the nielsen memorandum which was not contemporaneous, it was not a new decision. I understand that if you could just describe the merits, why was that insufficient i think is one of the questions and the other is what would another five years of litigation over the adequacy serve . We dont know what the administration would do, the administration did not want to own this decision, when the attorney general decided that i am making this decision. I guess im asking about the reliance interests. Im trying to get to that. I wish you would. The reliance interests were triggered to use the words of this court, in the fox case, and various other cases, those issues were engendered by the decision by the government that caused people to come forward 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 . What they could have said is that they understand all of these people, we understand what people are going through, provide a reason, 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 nelson memorandum came nine months later, based on a different individual, but it doesnt have an administrative record. Well go ahead and finish. It will take another sentence or two but there are a lot of things, the nielsen memorandum was not an independent decision, she was bound just as deep, an acting administrator was because the attorney general said this is illegal. But the nielsen memo then goes on to say, as you heard earlier, that regardless whether these concerns about the daca policy are legal or questionable, there are words in the daca policy and it goes on to explain the rationales, so what is your response . In the first place they were not independent, they were not accompanied by administrative records she says they are independent in that sense, at least thats what mr. Francisco says. Mr. Francisco side that and she said that but they werent independent because she was bound by the attorney generals decision and the government in itself in its brief i quote in a moment ago said, daca was unlawful thus we have to terminate it. And its not contemporaneous, and then basically the policy decisions are saying, we understand people may have relied on this but that is just too bad, thats basically all it was, and then, the litigation risk issue is like a rubber stamp that the agencies can put on anything, every decision an agency makes do you agree that the executive has the Legal Authority to rescind daca . Yes. So then the question comes down to the explanation and if it is the nielsen memo paragraph on reliance that it comes down to first of all, can i just ask the question in this way which is assumed the nielsen memo comes in, and assume it comes down to whether the nielsen memo adequately explains the reliance interest. What was the shortfall in the nielsen memo in addressing reliance interest . Because she does acknowledge that a lot of people have relied, and touch briefly. Yes she says to, broad people relied so too bad. Okay specifically says when a case for a decision is given, however court, they must stand or fall on that explanation. Do you think you could explain the reliance or the justification for the policy in a way that would overcome the reliance interest . Yes, i believe that that is possible. An analysis of costs and benefits explaining why a policy decision is being thrown out the window, why policy is being changed by the administration, that is exactly what you have said. Can i go back to something this Court Suggests which is what is 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 policies, sometimes eliminating it, sometimes expanding it, it has responded. But the dynamic is very different. Isnt it. When a executives says, i dont have the power and when it says, even if i had the power. I choose not to. Arent the dynamics of what happens between congress and the president dramatically different in those circumstances . Exactly. This is what is called virtual reality. When, they, say i dont have the power to do it. But, if i, did in the sky, i may have done it for this reason. The, answer the short, answer to your question, is a good one. Someone said i may have done it if i had the power. But i have no discretion. I have no power to do it. If we dont know what the administration would do, if it had to make this decision. And take ownership, and accountability, of this decision. That is your point about given the attorney generals, decision in the, law that says they have to change it. That is a very different circumstance, to saying, even if i dont have to. I wont. That is 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 volunteered for this program. Have conducted themselves properly. I understand that litany. But, you seriously want to argue that if this case, were to go back, in the agency were to, say, again exactly what general francisco interrupters the memo saying. Giving all these, reasons saying, each is and alternatively independent sufficient basis for the action. Would that be unlawful . Lets say they go into great lakes in explaining every fact and basis. If they explained, provided a rational explanation, instead of just pushing a, button or, putting a rubber stamp on, it that is what judicial review is 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 that. Is what youre decisions require, by judicial review. Thank you counsel. Mr. Moncton . They please the court. We have up to petitioners to decide how to frame their decisions terminate daca. It could have taken responsibility for a discretionary decision, rescinding the policy, that affects hundreds of thousands of lives. Instead, they chose to end the policy based on the, ground that daca was unlawful. He told the public, the law deprived him of any discretion to continue. , and when judge bates invited them to make a new decision, they stood by the old one. That is their prerogative. But, it has the consequences, that they have to defend that decision, based on the legal rationale they originally offered. And, that, decision is, reviewable and cannot be sustained on that basis. Now, the problem with the rationale, is, yes, they dont take a serious account of the dramatic costs to Daca Recipients on the economy and their employers and families of terminating this policy. And, also it is founded on the incorrect illegal premise, that dhaka is unlawful. This court can review the lack of an adequate explanation for that ground. Or, the, fact that it is sound incorrect conclusion. And, it is legal ever. Now, if i can turn to the question, of review ability. The ap a says that its commits Agency Actions that are committed to Agency Discretion bylaw, are on reviewable. And, the central, point is that when a agency finds a decision, on a public announcement, that it lacks any discretion to continue a policy, that cannot fairly be described as committed to Agency Discretion, in any sense. This is the concept, that the court reserved, unfortunate for of cheney. Because, that is not a discretionary tours. 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 to grant deferred action to compelling individuals. But that can grant Work Authorization to recipients. And, they seem to agree, that this is a worthy class of individuals. So, their position boils down to the assertion, that they are prohibited from adopting a transparent framework. And individualized discretion, with respect, to this very compelling population of individuals. That is not consistent with broad, authority that congress has granted it. Under the nineday and under this. It is not consistent with historical practice. But, the agency, over the, decades has frequently adopted discretionary will be policies. That allowed us to channel the exercise out recognized for discussion, with respect to particular individuals. In a defined class. , well that history, is not close to the number people covered by dhaka. Y youre owner, there is a, history of class space deferred action policies. And they are narrow, to be sure. But other class based policies have applied to hundreds of thousands of individuals. The family fairness policy, when, announcer would apply to 40 . 50,000 . That is the number of hail them selves of the policy. That is. Right because, it was shortlived. But, at the time it was, announced it was not, clear what congress would act. , and the executive, told, congress this would apply up to 40 of the undocumented population of the. Time when congress did act in that statute, they signal there approval of the policy. They did not have a day for another. And congress, said this is not expressing approval of existing policy. And that is one example. There are more examples of that. That percentage was 1. 5 Million People. Very comparable, to this decision. Yes, and at a, time when the total undocumented population was much smaller than it is today. Now, 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 even handed approach in the exercise a deferred action. Suppose that this administration had not relied on legal grounds to rescind the policy. It is very different from what they. Did, but lets suppose, otherwise. And that they immediately and only relied on policy, considerations. Are you saying that even then it would, be decision, would be reviewable . And why would that be . So if it were a peer policy rationale, it would fall outside of cheney. It would be presumptively reviewable. As most Agency Actions are. I think it would be challenged. And the challenges would likely argue, there is sufficient general standards, in this, area to allow for a minimal level of rationality. But, what a lot of fall outside of cheney, do you think . I think cheney 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 abroad policy guiding the exercise a deferred action decisions. Can he was founded on the international review. This is going back to the 19th century. When you say particular actors, did not apply to anybody who was facing using, lethal injection . As general francisco has noted, there were broad policy considerations. But, as it was described by the, court it is decision, not to describe the perspective of a prison administrators enjoy companies. , and i, think a different point, here is that. Hasnt been empty a policy . For all of the years since cheney . Short, your honor. But that is a class of people. But that is 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 Law Enforcement decision. They have argued that deferred action is revoke, will at any time. And, could be and is not a defense to remove. Oh so, we are dealing with a different type of policy here. Then the one that the agency dealt with in cheney. I, mean i have always thought it means individualized kind of decision. But, quite rightly, the solicitor general reads me the language a witches programmatic. But, the united states, has hundreds of thousands of agencies which do it for us all kinds of. Things are rich make program matted rules all the time. And so, what it cant mean, is, interpreting this committed to Agency Discretion. To make a serious inroads. In the principle of judicial review. But, everyone is struggling, including me, what is the line, and what is a generally, it cant be so, broad for all programs. It cant be so, narrow as an individual wise decision. Just, what is it . Well, i think we can look to the language, of the cheney decision. And 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 imagine, an sec rule. , or imagine, an hhs role. And, what it says, we are not going to take, action to give a certain category people their benefits. Not reviewable . I, mean nobody would think that. So, we are struggling still. Honestly, i am struggling. I understand. There might be ambiguities at the margins. But, i do want to focus in, on this. Case because, here, acting secretary duke indented fired one round for terminating the a policy. She said that she, pointed to the attorney generals letter. Which concluded that the policy was unconstitutional. And beyond statutory authority. And, whether, not this might conceivably fall under cheney, if it does, it still is subject to it. You are seeing at the, minimum what on action, to enforce, is different to redaction autumn force. , here we have one, to. Enforce, and you are, 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 their discretion. Okay. I got those to right . That is very. Honor anything . Its i think those are what we focused on in this. Case, and here. Sorry to interrupt, but, i have understood or answer on the second to be different when you are posed that question by kagan. And, i thought you indicated, it was based on policy grounds, or legal assessment, which not all through the analysis. So, i, guess im just curious, which is it . To be more precise. If youre operating in the world we assume cheney applies, appointees, regardless, this is reviewable because this is within a sub category where the agency has disclaimed any discretionary choice. It has said, we have no authority over the matter. And, that cant. Im, sorry that was not my question. So, if, assuming a world in which the agency had alternative, grounds 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 justice brian. Perhaps im missing. Something let me clarify. We believe a broad policy is not the type of action that is referred to by cheney. Consistent with the d. C. Circuit authority that has been cited. In the. Briefs , well i think Justice Breyer, that takes us back to the beginning of the discussion. Which, is that cant be so necessarily because, every prosecutor discretion, affects many people. You have the discussion, with justice, legal as well. , so i, guess i will let you go. But, i am still struggling, with this line. That you are asking us to draw. Well, it may be a difficult line huge drop in the general case. But in this, case with respect, it is an easy line to. Drop because we know, that this decision was founded on a Binding Legal determination by the attorney general, that they could not continue this policy. What if it were less . As you agree categorical terms. One of the attorney journal, said looked at, this it is a close, case, but on balance, i dont think we have the authority. But if he said im pretty sure we dont have the authority wouldnt court might come out differently . Does your analysis change or is it only when he says, as far as im concerned this is definite, its illegal. No your honor, we would argue that, its a type of action that is presumptively reviewable and if the agency decides to base a decision on some discretionary choice but with an explanation or rational that is founded on litigation, risk or legal doubt that that would be a rational is it enough for him to say look, i got a decision from the fifth circuit that says this is a legal, its been confirmed by the supreme court, that is enough for me to say im not going to do it. Its not enough to sustain the decision, your honor, i think under these circumstances given the nature of this program and the interests at stake, we dont think any genuine statement of legal doubt or litigation risk would be adequate, but that is not what we have here. Even if you went through a legitimate balancing exercise, in other words, you talked about law, and what you are worried about and then you talked about the reliance interests and then you said here is what we are weighing and here is our judgment, do you think that would be sufficient . Because a general matter, an agency could base have discretionary decision on a reasoned analysis like that, i suspect that if we saw that decision we would challenge it under the particular circumstances here, the court might agree that if there were some substantial and detailed consideration of the actual costs of this and the reason legal analysis then that would be in a court, sufficient, thats absolutely not what we have. If you prevail and the case goes back, is it enough to say look, weve read the briefs that Justice Breyer point out about the reliance interest, weve read the fifth circuits opinion in the texas litigation, presumably they would cite that as well, would not be enough . 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 it is concerned with. Do you need more than that . A court of appeals decision, confirmed by a uniquely divided supreme court, can you just say thats the basis on which im making this decision . Your honor, know, 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 this case but there are four or five theories of illegality floating around ranging from the notice in comment to the take care claus claim and we dont know which ground the agency based its decision on, so that is lack of reads and explanation what would inadequate explanation look like . What do you think they would have to do to be in the clear on this . I think they would at least have to identify the particular grounds they are relying on to facilitate further judicial review of their underlying legal conclusion, explain why they believe it applies to the daca policy when they pointed to a case about a different policy, and then how some serious and more serious than what we see on the nielsen memo, accounting of the very substantial i suppose they say yes, we will do that, we will do that, and now the authorities think we should decide on the base of that duke memo, that was the decision, rested on that, youve heard that, okay. There is another case, where its written you shouldnt play pingpong with the agency, okay . So they are saying that as what a lot of their argument was. What is the point . What is the point . I mean, you will send it back and they will say okay, dapa was, different in the courts they side the Program Makes 4. 2 Million People citizens with the runaway of a normal way to run away when you have a child of a citizen, here this has nothing to do with this case. There is no run around, you pointed that out. I think its gonna come at the same way, it is close enough. Should whats the argument against, as there is a sentence against playing pingpong with the agency . I think there is a very substantial meaning to walk in this case, your honor, we dont really know what the agency would do if confronted with a discretionary choice, if they knew that daca were awful, theres a new secretary and the administration has expressed broad sympathy for this population and theyre very well might continue the policy, or stop short of wholesale termination, and if we are remanding in light of the laps for reasoned explanation, my friend has said it was remanded by judge bates for given time and secretary nielsen dead what you just said inside even if dhaka was illegal, i would exercise my discretion to rescind and then explained her consideration of the reliance interest, so its already happened in a fact. There is a boiler plate assertion in the memo of independence, i will greatly that, i think if we look at the circumstances what can i just stop you on boiler plate, this is a serious decision, we all agree with that, and it was for the secretary, presumably, and to say in writing, even if it is lawful, nonetheless to exercise discretion, i assume that was a very considered just session, we can agree with her or disagree with the merits of it, but it seems yes and i think its important to look to the penultimate paragraph in that memorandum where she conducts her collective wayne and 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 your point, to, understand the legal considerations while she said that are now being intertwined in the subsequent paragraphs with the policy considerations . That is absolutely right, and this was after all in the context of a member 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 new action and has been presented a such, that is not consistent with what they told the District Court, the District Court said quite plainly, please notify me if there is 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 that 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 rational is before the court and that penultimate paragraph, what is the shortfall in the discussion of reliance interest in your view . Well, im not sure that there is much of a discussion. She expresses some sympathy and then ultimately says, that it is up to congress to consider and weigh their alliance interests and the cost, it is not a detailed discussion of the dramatic harm to hundreds of thousands of young people, to their families and employers, to the states, to the economy, that what a rise from this decision. But she does say that in a sentence, if we remanded, and it were detailed more fully, what its still fall short . I think the great value of a remand is that today 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 can issue a new decision that actually does that so the public could hold them accountable for it. Thank you counsel, five minutes, im sorry, general francisco. Thank you mister chief justice, i think i want to focus on three basis points. First, justice kavanaugh, i want to make sure you have all the relevant portions that make this whole clear. Page 1 22 a and im at the appendix, considering how the dhs has made discretion to enforce policies, the daca policy properly was, and should be, rescinded for several separate and independently sufficient reasons. She then gives the first reason, illegality question, then if you go to page 1 23 a, second, regardless of whether the daca policy is ultimately illegal, it was appropriately rescinded by dhs because they are at a minimum serious doubts about this. Further down the page, fired, regardless of whether these concerns about the daca policy are under illegal or illegally questionable there are sound reasons of enforcement policy to rescind the daca policy, and she sets out the enforcement policy. If you move to page 1 21, 1 25 a, where she is discussing reliance, quote, i do not believe the asserted reliance interests outweigh the questionable the galaxy of the daca policy and the other reasons for ending the policy discussed above and finally when you get to the conclusion on page 1 26 a, for these reasons in sending dhs enforcement policies and priorities i can karoun kerr and declined to disturb acting secretary dukes decision to rescind the daca policy. So frankly i dont understand more of that, you dont know, how she would respond. If there was a clear recognition, that there was nothing illegal about dhaka. Her whole memo is infected by the idea that this is one, illegal, at least substantial doubt, about its illegality. If we take that out, and the independent ground that you are asserting, then she would be saying, we stand up and say, this is the policy of our administration, where dont like daca and we are taking responsibility for that, instead of trying to put the blame on the law. Respectfully your honor, i very much disagree. She sets forth explicitly on page 1 21 a, several separate and independently sufficient reasons. We own this. We both on 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 memorandum. So simply stated, the fact that we have alternative and legal policy grounds for making this decision make to things clear, first, it is four square within the cheney issue, he likewise was rested an alternative legal grounds, and policy grounds and secondly, it shows how this was plainly an eminently reasonable decision, even if you disagree with some of the legal issues because weve set forth separate an independent policy issues for the decision, so that was basically my first point. But even what you just read, general, in that paragraph or the secretary ways the reliance interests against the reasons and her mom, everything is wrapped up, and we really dont know how she would have conducted that balance, how she wouldve weighed those two if the legal had been taken away from it. I simply disagree with that. When she specifically says that she is setting forth separate and independent grounds, justifying the recession shin, i dont think any fair way to read that other than saying that she wouldve rescinded it based on any of the independent grounds. The independent grounds, number one, we should not adopt a policy of non enforcement of those laws for both classes in categories. Okay . In congress, she agrees with us, maybe they, do maybe they dont, but aside from that, thats a conclusion. Look at the second one. We should do it on a truly individualized case by case basis, that is a conclusion. That isnt a reason. The third one is a reason, its important to protect the message that leaves no doubt dealing with the clear enforcement of immigration. Thats an independent reason. May i finish . Respectfully, all squeeze into points in the single sentence. Im sorry. The first point is i very much disagree, all of those articulate the same policy rationale that this is a Law Enforcement agency, they are against general policies that actively facilitating violations of the law and the last point i will make is well, 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 ultimately gallaudet 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, than we do think that dhaka is illegal and was justifiably rescinded on that basis as well, thank you your honor. Thank you counsel, cases submitted. Americans are coming out, and, getting engaged. , and, politics is feeling less like a spectator sport for people on the left and a lot of these team social issues, that the book covers, are still the ones, relevant today. People, in his, book were really outraged by issues like family separation, and like sexual assault, and, the devaluation of black lives. And, this period provides a crucial precursor, to our moment. As House Democrats began drafting articles of impeachment, the House Judiciary Committee meets for a hearing on evidence. Live, monday, 9 am eastern. Where