Cases. The justices are expected to hand out a decision next spring. [screams] you will hear argument first in 587, the department of Homeland Security versus legions of the university of california and the related cases. General francisco,. In 2017, the fifth circuit held a daca in the expansion of daca was likely unlawful. The judgment affirmed by equally divided courts. In the face of those decisions, the department of Homeland Security reasonably determined that it no longer wish to retain the daca policy. Based on his belief that the policy was illegal with serious doubts about the illegality and the general proposition abroad not efficient policy. That decision did not violate the apa for two reasons. First, it is not subject to judicial review. The rescission ended up nonenforcement policy whereby the department agreed to not enforce against hundreds of thousands of illegal aliens. But the decision whether or not to enforce the law is committed to the agency under fuel discussion unless it restricts it and nothing requires the department to allow enforcement agencies to not enforce the law. To him this was reasonable. Daca was a measure that could be resented anytime. In the departments reasonable concern about his locality and his general opposition to broad nonenforcement policies provided more than a reasonable basis surrounding it. After all, an agency is not required to push its dubious power to not enforce the law to its logical extreme. Since the underlying confidence in the rule of law itself and conflicts with the agencies Law Enforcement mission. Id like to begin with the question, if the attorney general what to say he would going to not seek Death Penalty prosecution because he thought it was unconstitutional, that would be immune from judicial review. And if a new attorney general cayman and reversed the policy because he believed that the Death Penalty was constitutional, that would likewise be immune from judicial review. General, this is a strange element to your argument. You are arguing this is a discretionary matter is not reviewable because of the committed to Agency Discretion. And 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 you be committed when youre saying we have no discretion this is an illegal program. For two reasons your honor. First, we put forward both legal and policy rescission. So this case is on all four. And it put forth the legal and policy reason. The principal argument that lacks jurisdiction to regulate state use of drugs in carrying out the Death Penalty. The alternative argument, even if it had an authority to do so it would not have exercised. In this court found that that decision was committed to the agency unreviewable discretion. We are likewise making alternative legal and policy arguments. Secondly even if we were making purely a legal argument and were not, even if we were review would be foreclosed by the courts decision and ble, with the ble case held was actions committed to an agency unreviewable discretion, then it does not matter what it gives for taking the action, it still unreviewable in the specific example this court provided mbl keep he was decided not to indict for a purely legal reason and that indicated it was still reviewable because the Enforcement Discretion was committed to the agencys unreviewable discretion. So here we think we went under cheney and under ble. What is the attorney general say, he was exercised prosecution so discretion was awkward enforce the immigration laws. Not reviewable. I think you might run into chains exception for an application of authority. Theres a critical difference between that and this. Here we are enforcing the law, you can understand why congress or the courts might say that you can review not to enforce the law. Congress in fact passes law to be enforced and you can understand why it might restrict the governments ability to not enforce the law. Here we are enforcing the law and is very difficult to see why the congress whatever pass a law to say that something is illegal and try to hamstring the governments ability to enforce it. Thats why we think we clearly fall within the presumption that is an exercise of Enforcement Discretion and we dont fall within the cheney exception which would apply where congress itself restrict the discretion or a potential complete evocation of Enforcement Authority and cheney made clear and might also be just to understand what youre saying. That was suggested that the original daca is reviewable but the rescission of daca is not in other words are you suggesting there is an asymmetry in what is reviewable doesnt stand and fall together. There is because theres a difference in the two policies. Both of them to be curren clearh fall within cheney presumption and reflect an exercise of Enforcement Discretion that are presumptively unreviewable. The question is whether congress has done anything to restrict that discretion. With respect that this case had before a couple of years ago texas argued that the ina restricted the agency ability not to enforce the law. And you can understand why Congress Might try to hamstring the governments ability not to enforce the law of the parent and the sister. That fell within the cheney exception to the presumption. Here is what nobody is arguing on either side that the ina somehow restricts our ability to enforce the law and would be quite surprising if congress were to pass a law that says something is illegal and tries to restrict the governments ability from enforcing the laws that it passes. I think we fall square within the cheney presumption in the cheney exception does not apply. That exception applies the statue itself which restricts the discussion. And it can also apply with a complete evocation of Law Enforcement responsibility. That was one of the areas that cheney reserved in the footnote. Here we are not not enforcing the law, were enforcing in sibley nothing in the ina that says that the Homeland Security you are restricted in any way shape or form from enforcing the law. The response that you gave to me, i did not see did you 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 did not see that. You said there was arguments. I saw only we cannot enforce daca, we cannot hear to daca because its illegal. Two responses, first of all, secretary nielsens memorandum clearly encompasses all of the different arguments and sets them forth in great detail per we think they nielsen memorandum clearly properly before the court in the District Court in washington, d. C. Asked for and we provided it in the District Court reviewed it so the only question is what does it mean. Secretary nielsen in her memorandum ratified secretary dukes decision for the reasons given using precisely the same mechanism that she used herself to issue the memo in the first place in the same mechanism that was issued to daca memo in the same mechanism to issue the document. The whole point of the rationalization role is to prevent courts from invading into executive branch decision. This is an old argument. There have been two bases print the first base is between camp davis and burner. Is it that you cannot review an agency without little thing about you cannot commit Agency Discretion by law. It does not mean that they are certain things the agency might do, dont review them even if theyre totally wrong. The cheney argument i thought the reason this is unreviewable is because there is a long history and tradition of a prosecutor saying i know that guy over there or that woman here and they bee may be guiltyn my discretion, no. I do not want to prosecute them. Its a long history of that. And if that history understandable power to give to a prosecutor is to be valid, courts stay out of it. That does not apply and what the issue is not a prosecutor make an individualized decision but rather an Agency Policy generalized, written down and i cant think of a reason why in such a case you would not review it in a court. So respectably, i strongly disagree because cheney itself involves not a prosecutor but an agency and not an enforcement action but a general policy. Heres what the fda said denying the petition brought by the inmates to have it regulate the state exercise indefinitely. This is a printable conclusion. For the reason given below, we conclude the use of lethal injection by state penal system is a practice over fda has no jurisdiction and therefore fda has no authority to take the actions your position request. According to your petition is denied. And later provided as the alternative rationale policy rationale. This is later, as a secondary and separate basis of denial we declined the matter of Enforcement Discretion to pursue supplies of drugs under state control that will be used for execution lethal injection. The fda clearly was announcing a categorical appalle apology thal not regulate the state use of drugs in carrying out the Death Penalty and not a criminal prosecution. I think its on all fours in favor of us. Here we have an exercise of Enforcement Discretion that is committed to the agency unreviewable discretion under cheney, it does not fall with under where they restrict the exercise of that description because are talking about enforcement nonenforcement and it does not fall under the complete application to deception but were talking about enforcement and not nonenforcement. What it what you just read also have made daca unreviewable to pick up on justice kagans question from earlier. No because it falls whats the distinction between fda and daca. The fda policy nobody was claiming that a statute restricted the fda ability to not enforce the law. Nobody made that argument. In the daca litigation, texas specifically argues that the ina did in fact restrict the agencys authority to exercise this Enforcement Discretion to not enforce the law. One of the things that texas argued in the daca case was the Agency Action in question 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 whawould that make this reviewa . I think the answer is no and no. And the reason why, first of law the rescission of daca does not resend any benefit. Those benefits are allowed to expire on their own terms. But even putting that aside, the worth a realization and other benefits are collateral consequence of the exercise across discretion itself. So they do not make the prosecutorial discretion itself reviewable otherwise every grant or denial would be subject to apa review because every grant is denial different action has collateral consequences that impact authorization. Ill give you hypothetical that makes it more concrete. Suppose a prosecutor has a Conversion Program and he says im not going to prosecute this particular category of drug defenses if the individual agree to drug treatment. It is the collateral consequence of the benefit that flows from the decision but it does not render the prosecution subject to review and likewise if a new prosecutor comes in and says unlike Drug Diversion programs, i want to have a tolerance that is not viewable either. But i do think the challenge to daca 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 Security ability to not enforce the law and frankly we agree with that. But the problem here, there is no argument by anybody or any possible argument that can be made that somehow the ina restricts the department of Homeland Security authority and enforces the law, after all Congress Wants the executive branch to enforce the law to pass the law. Is this an appropriate moment to move to the review ability and the merits . Anytime you want to move there i will move there. What argument on the other side make along the lines is similar to this through alliance interest that have grown up around daca and what to say whether they been adequately considered. Two things. First i would say to the extent there any reliance interest, their extreme limited. Daca was meant to be a temporary measure that can be rescinded at any time which is why it was only granted into your increments. I dont think anybody couldve reasonably assumed that daca was going to remain in effect in perpetuity. Even putting out to the site, here the agency considered the lyons and secretary nielsen did so explicitly but critically mitigating the reliance and it concluded the on that it did not justify perpetuity that facilitated violation for law by hundreds of thousands of individuals. If i understand your colleagues argument its not that secretary nielsen failed to consider alliance interest. If the paragraph that i believe petition 125 somewhere in there, that given the extent of their routreliance interest, more coue been said and it would not be a huge burden to require the government to see more. As i understand, thats the nature of the argument. I get i have a couple of responses. The first, i dont think it reflects an accurate understanding of apa review as this court has repeatedly made clear the only thing that matters is whether the agency, i think him quoting from the case where theyve completely failed to consider an aspect of the question. I dont think you can remotely argue under state farm that we completely failed to consider an aspect of the question. Secondly i think the secretary under the proper standard clearly satisfied the apa standard for considering reliance interest. She does so explicitly in the purchase of the memorandum that you reference in addition to what i point out the very beginning of the memorandum page two she specifically says that one of the things she considered was a judicial opinion reviewing the memorandum. All the District Court decisions. And when she gets to the specific discussion of her reliance interest. She says she is aware that people have ordered and lives in light of the daca decision. Is quite clear she is fully taken into account a whole reliance interest that were discussed in the decision and concluding they did not justify maintaining the policy. Id like to continue the same question. The best statement of the law in my mind is the old principle again is Justice Scalia writing for the court he says when an agency prior policy has engendered serious reliance interest and must be taken into account with this case i think. I counted. I had my law clerks count, not just the people who came in, the 700,000, theyve never been anywhere else but there is all kinds of reliance interest in accounting briefs in the court which states different kinds of reliance interest, 66 healthcare organizations, there are three labor unions and there are 210 educational associations, there are six military organizations. There are three homebuilders, 108 municipalities and cities, 129 religious organizations and 145 businesses. And they all list reliance interest applicable to them which are not quite the same, they are not quite the same as those of the 700,000 who had never seen in any other country. So i did read what you just read to me, do want to say anything about the statement you just read to me being adequate to take into account the broad range . Yes, your honor i do. The first thing i want to say state farm itself says you violate the apa where you entirely failed to consider important aspect of the problem. Heres where secretary nielsen considered the alliance interest including all the things you intereslisted in extra shady den the District Court decision that had ruled against us. What she says she is considered. Not in her memo. In your honor i think she does. But under this conception of apa review, daca likewise would have failed the review because there is not a single word in the daca memo itself explaining any of the potential costs or benefits or impacts on other people that the implementation to the daca program wouldve had. Ill take either one your honor. [laughter] if i understand secretary nielsens memo correctly. Secretary nielsen said she did have a conclusive restatement about the reliance interest but she waves them against what she calls the questionable think audi of the program. That assumes one of the things that world here to discuss. Which is the program was questionable in legality. If the Program Turns out not to be of questionable legality and in other words if some or many of us think the original program werent legal, how does her memo suffice to do that balance. For a couple of reasons. First because she set forth a separate and independent case justifying the rescission. First her belief that its illegal and second her belief that there serious doubts about the legality and her conclusion about the enforcement policy and the Homeland Security against these broadbased nonenforcement decisions. Anyone of those explicitly says in her statement about reliance she particular he says it outweighs this questionably legal program. What she is saying is given there is extremely reliance interest in the first place, any limited reliance that exist are outweighed by all the Different Reasons that she has articulated a separate and independent ground for rescinding daca. Thats only fair way you can read that memorandum. I have always had some difficulty understanding legality of daca. In the daca there was actually a process for obtaining a pathway consider c. And i saw the argument that daca but i dont see anything in the ina. That takes away the discretion of the agency in