we'll hear argument st this morning in case eighty thousand five hundred and eighty seven the department of homeland security versus regents of the university of california and the related cases general francisco mr chief justice and may it please the court in two thousand and seventeen the th circuit held that and the expansion of dhaka were likely unlawful a judgment this court affirmed by an equally divided court in the face of those decisions the department of homeland security reasonably determined that it no longer wished to retain the dr policy based on its belief that the policy was illegal it's serious doubts about its illegality and its general opposition to broad non enforcement policies that decision did not violate the a p a for two reasons st it's not subject to judicial review the rescission simply ended a previous non enforcement 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's unreviewable discretion unless a statute restricts it and nothing in the eye in a requires  department a law enforcement agency to not enforce the law nd the decision to end this non enforcement policy was eminently reasonable doco was a temporary stopgap measure that face could be rescinded it any time and the department's reasonable concerns about its legality and its general opposition to broad non enforcement policies provided more than a reasonable basis for ending it after all an agency isn't 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 agency's law enforcement mission i'd like to begin with the review ability question if the attorney general were to say that he wasn't going to seek death penalty prosecutions because he thought the death penalty was unconstitutional that would be immune from judicial review and if new attorney general came in and reversed that policy because he believed that the death penalty was constitutional that would likewise be immune from judicial review  likewise put forth legal and policy reasons its principal argument was that it lacked jurisdiction to regs to regulate state use of drugs in carrying out the death penalty it's alternative argument was that even if it had the legal authority to do so it wouldn't have exercised and this court found that that decision was committed to the agency's unreviewable discretion here we are likewise making alternative legal and policy arguments but was adamantly sorry go ahead secondly even if we were making purely a legal argument and we're not but even if we were review would be foreclosed by this court's decision and b l e what the b l e case held was that if an action is committed to an agency's unreviewable discretion then it doesn't matter what reason it gives for taking that action it's still unreviewable in the specific example this court provided and b l e was a prosecutor who decided not to indict for a purely legal reason in the court indicated that that was still on reviewable because the underlying action the enfor discretion was committed to the agencies on reviewable discretion so here we think we went under cheney and we also think we went under b l e well if the attorney general said he in his exercise of prosecutorial discretion was not going enforce any of the immigration laws and still be non reviewable your honor then i think that you might run into cheney's exception for a complete abdication of authority but there's 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 a can do a decision not to enforce the law congress in fact passes laws so they'll be enforced and you can understand why it might restrict the government's ability to not enforce the law here we are enforcing law and it's very difficult to see why the congress would ever pass a law say that something is illegal and then try to hamstring the government's ability to enforce it that's why we think we clearly fall within the cheney presumption that it's an exercise of unfortunate discretion and we don't fall within the cheney exception which would apply were congress itself restricts the discretion or where there is a potential complete abdication of enforcement authority as cheney made clear might also be an except together there is because there's a difference in the two policies both of them to be clear both of them fall within cheney's presumption 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 dapat the case that this court had before the couple of years ago texas argued that the i n a actually restricted the agency's ability not to enforce the law and you can certainly understand why congress might try to hamstring the government's ability not to enforce the laws that it passes and the th circuit agrees so that fell within the chain the exception to the presumption here though nobody is arguing nobody on either side is arguing that the irony somehow restricts our ability to enforce the law and it would be quite surprising if congress were to pass a law that says something is illegal and then tries to somehow restrict the government's ability from enforcing the laws that it passes so again i think we fall foursquare within the cheney presumption and the cheney exception doesn't apply and that exceptional plies that exception covers both where the statute itself restricts the discretion and chief justice to your question it could also apply where there was a complete abdication of law enforcement responsibilities that was one of the areas that cheney reserved in that critical footnote for but here we're not not in force in the law we're enforcing the law and there is simply nothing in the eye in a way that somehow says to the department of so two responses your honor st of all secretary neal says memory memoranda clearly encompasses all of the different arguments that sets them forth in great detail and we think that the nielson memorandum is clearly properly before the court  the district court in washington d c specifically asked for it we specifically provided it the district court reviewed it so the only question really is what does it mean and secretary neilson in her memorandum effectively ratified secretary duke's decision for the reasons given using precisely the same mechanism that secretary duke used herself to issue the memo in the st place the same mechanism that was issued used to issue the dhaka memo and the same mechanism used to issue the dop and that most of this isn't a post h rationalization of decency action it is agency action the whole point of the post hoc rationalization rules to prevent courts from invading into executive branch decision making goes the point in this is an old argument there have been two bases the st bases of the argument between ken davis and berger you know and as is it that you can't review an agency just that little thing about you cannot do a committed to agency discussion by law does it mean that there are certain just mean that there are certain things the agency might do don't review them even if they're totally wrong like panama canal tolls right ok that isn't here the cheney argument i thought was the reason this isn't reviewable is because there's 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 mind discretion no i don't want to prosecute there's a long history of that and if that history and understandable power to give to a prosecutor is to be valid court stay out of it now that does not apply here what's at issue is not a prosecutor making an individualized decision but rather an agency's policies right generalized written down and i can't think of a reason why in such a case you wouldn't review it in a court so respectfully honor i strongly disagree because cheney itself involved not a prosecutor but an agency and not a single shot in foresman action but a general policy and here's what the f d a said in the letter denying the petition brought by the inmates to have it regulate the state exercise of the death zone this is their principal conclusion for the reasons given below we conclude that the use of lethal injection by state penal systems is a practice over which f d a has no jurisdiction and therefore the f d a has no authority to take the actions your petition requests accordingly your petition is denied later provided as the alternative rationale policy rationale and it says later thought as a secondary and separate basis of denial we decline as a matter of enforcement discretion to pursue supplies of drugs state control that will be used for execution by lethal injection so in cheney the f d a clearly was announcing a categorical policy that it wasn't going to read regulate the state use of drugs in carrying out the death penalty and it wasn't a criminal prosecution so i think it's on all fours in favor of us here we have an exercise of enforcement discretion that is committed to the agency's unreviewable discretion under cheney it doesn't fall with any within any of the exceptions to cheney were congress eithe restricts the exercise of that discretion because here we're talking about enforcement not non enforcement and it doesn't fall under the complete abdication exception to cheney because again we're talking about enforcement and not non enforcement what i wouldn't what you just read also  because in the policy nobody was claiming that somehow a statute restricted the f b i s ability to not enforce the law nobody made that argument in the dop litigation i think is maybe what your reference in texas specifically agency action in question there conferred certain benefits on the individuals who were affected and if that was sufficient to make that review  rescission of dhaka doesn't rescind any benefits those benefits are allowed to expire on their own terms but even putting that that side the work authorization and the other benefits are simply a collateral consequence of the exercise of discretion itself so they don't reckon they don't make the prosecutorial discretion itself reviewable otherwise every grant or denial deferred action would be subject to a review because every granted denial deferred action has collateral consequences that impact work authorization if i could give you a hypothetical that i think makes it more concrete suppose a prosecutor has a drug diversion program and he says that i'm 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 an a benefit that flows from the prosecutor sort tauriel decision but it doesn't render the prosecutorial decision itself subject to review and likewise if a new prosecutor comes in and says i don't like drug diversion programs i want to have a zero tolerance policy for drug and says that isn't reviewable either but i do think that the challenge to darpa in the prior litigation was reviewable to be clear it was reviewable because it fell within the cheney exception texas argued the th circuit agreed that the i n a in fact restricted the department of homeland security's ability to not enforce the law and frankly we agree with that but the problem here is that there's no argument by anybody or any possible argument that could be made that somehow the ion a restricts the department of homeland security's authority to enforce the law after all congress typically wants the executive branch to all those lines is similar to this one we've just been considering and the reliance interests that have grown up around dhaka and what do you say to that and whether they've been adequately considered in this course to things  honor st i would say that to the extent there are any reliance interests they're extremely limited docket was always meant to be a temporary stopgap measure that could be rescinded at any time which is why it was only granted in two year increments so i don't think anybody could have reasonably assumed that docket was going to remain in effect in perpetuity even putting that to the side here the agency considered the reliance interest secretary nicholson did so quite clearly and explicitly the agency mitigated the reliance interests through the orderly wind down and it simply concluded that beyond that it didn't justify maintaining in perpetuity a program that actively facilitated violations of the law by hundreds of thousands of individual dollars somewhere in there there's a there's a good graphics but that but that given the extent of the reliance interest in the size of the class more needed to be said more could be said and it wouldn't be a huge burden to require the government on to to say more what what what is so so as i understand that that's the nature of the are right and i guess i'd have a couple of responses to that the st is that i don't think it reflects an accurate understanding of a p a review as this court has repeatedly made clear  really the only thing that matters is whether the agency and i think i'm quoting from the case law completely failed to consider an important aspect of the question and i don't think that you can even remotely argue here under state farm that we completely failed to consider an important aspect of the question secondly i think that secretary duke's memorandum under the proper standard clearly satisfies the a p a standard for it for considering reliance interests she does so explicitly in the portion of the memorandum that you reference and in addition 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 were the judicial opinions reviewing the duke memorandum all of the district court decisions and so then when she gets to that specific discussion of reliance interest she says that she is keenly aware that people have ordered their lives in light of the docket decision so i think it's quite clear that she is fully taking into account the whole panoply of reliance interests that were discuss nauseum in the district court decisions and simply concluding that they didn't just to justify maintaining the policy like you continue the same question because the best statement of the law in my mind is a very old principle again  counted i had my law clerks count actually not just the people who came in you know the seven hundred thousand they've never been anywhere else like they never have to but there are all kinds of reliance interest i counted briefs in this court i'm sure you have which state different kinds of reliance interests there are sixty six health care organizations there are three labor unions there are two one hundred and ten dollars educational associations there are six military organizations there are three homebuilders five states plus those involved one hundred and eight dollars i think municipalities and cities a one hundred and twenty nine dollars religious organizations and one hundred and forty five dollars businesses and they all list reliance interests or most of them less reliant right interest applicable to them which are not quite the same they are not quite the same as those of the seven hundred thousand have never seen any other country and so then 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 entry yes your honor i do because the st thing i want to say is that state farm itself says and here i've got the quote you violate the only where you quote entirely failed to consider an important aspect of the problem here secretary nicholson explicitly consider the reliance interest including all of the things that you just listed work that were set forth in in excruciating detail in the numerous district court decisions that have ruled had ruled against us but but which she says she specifically target are but not in her m your honor i frankly think that she does but the other thing that i would say is that under this conception of a peer review dakar and da likewise would have failed arbitrary and capricious review because there is not a single word in the doc a memo itself or the itself explaining any of the potential costs or benefits or impacts on other people that the implementation of the dr program would have had  interests but she weighs them against what she calls i think it's the questionable legality of the program now that assumes one of the things that we're all here to discuss which is that the program was of questionable legality if the program turns out not to be of questionable legality and other words if as some or many of us think that the original program was legal h the st place any limited reliance interests that exist are out we are not are outweighed by all of the different reasons that she has articulated a separate independent grounds for rescinding doc i think that's the only fair way generally you can read that memorandum i'm have always had some difficulty in understanding the illegality saw the argument that what darpa did was contrary directly contrary to that path but there i don't see anything in the eye and say that takes away the discretion of the agency in ordering it's in foresman policies right we all know it has limited resources it can't even when it wants to remove the vast majority of aliens we have here and so i've always had some difficulty in understanding what's wrong with an agency saying we're going to prioritize our remove falls and for those people like t people right who haven't committed crimes who are lawfully employed who are paying taxes who pay pose no threat to our security and there's a whole the supreme requisites we're not going to exercise our limited resources to try to get rid of those people i am still have an impossible time i know you're going to come argue contrary horizontal yes i have three response but let me just finish my or question ok so putting aside that the secretary and giving these extra reasons because none of this was in the  daca eligible people that they were safe under him and that he would find a way to keep them here and so he hasn't and instead he's done this and think has something to be considered before you rescind the policy right now just saying i'll give you six months to do it right so you destroy your lives so putting all of that aside and i'm going to get to m honor for responses now i think i've added one of the st one is that i think that the prior president didn't couldn't and hasn't made any kind of promise that doc 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 it least in their view we did provide a little bit more detail an explanation so i think that is foursquare against the notion that there are some significant reliance interest because all that there 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 don't think you know my st point is i don't think you have to decide ultimately whether daca is legal or illegal because i think the other reasons we've given or more than sufficient to justify the rescission both are serious doubts about its legality as well as our general opposition to broad based non enforcement policies after all department of homeland security is a law enforcement agency and a law enforcement agency doesn't have to push its dubious power to not enforce the law to its logical it you do it other than canada or at least well and that's my nd point you're on my nd point is that docket goes far beyond simply diverting resources to higher priority targets which you are absolutely right every law enforcement agency has to divert resources to higher priority targets dockery goes materially further than that because it actively facilitates vial the law by providing advance forbearance coupling it with affirmative benefits like work authorization and social work authorization and my final one critical point is that there's no limiting principle the theory on which doctor rests effectively allows the government to create a shadow waianae for any category of aliens that it chooses to make low priority targets the shadow nd tier  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 was violated any particular provision of the i am a what are you saying that violated because all i'm saying is there's a big delegation right that says you get to make national policy so what did  seeing two things your honor st i'm saying you don't really have to address this issue because we think all of the arguments as we are more than sufficient but secondly we're not saying that there's 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 ins they they this go you know they located the authority in the iron is a grant of broad discretion over national immigration enforcement honor i think that the most that does that gives you the authority to set properly seize and priorities but there's a big leap between that and saying that you can affirmatively facilitate violations of the identity by hundreds of thousands of individuals to  it conflicts with the agency's law enforcement mission and in a case like this it creates the serious possibility of a court ordered shutdown of the program rather than an orderly wind down within the agency huge role and if if taco was illegal that means that when the government was giving out these men if it it was acting illegally right yes now it's 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 wind down or was she looking more generally for example to the application of something like the de facto office or done right i think officers have acted illegally but we don't go back and invalidate their actions i think both your honor both the orderly wind down to a certain extent takes into account reliance interests it doesn't fully account for everything but the whole idea was that you're giving people an opportunity to 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 hoc deferred action will be able to take care of reliance interests in truly extraordinary circumstances the way that it has been used sporadically in the past to address those types why don't we just affirm the district court which sends it back and if you have all these reasons and you really want to consider the reliance and all those things should be considered carefully you can do it so so what's wrong or t two related reasons your honor st sending it back would make no sense because the agency has already acted secretary nicholson has already ratified secretary duke's decision for the reasons set forth in your memorandum it's not a post hoc rationalization it's the official position of the agency set forth by the agency itself and secondly there is no reason why secretary neilson should have had to reinstate daca and then rescind it again not reinstated well but you do is there fifty cases on this if it's important what you do is you say there's good reason for holding the status quo until we can go back and court to firm that 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 well that and we see that if the rules what secretary nielsen's memo did it did two things st explain the basis to whether you think her memo is sufficient but it doesn't go to whether you think her memo is an operative document with this and in this litigation i'd like to point you to two places in her memorandum st page one hundred and twenty one a of the regents petitioners apart appendix this is the nd page of  memorandum the explanation reflects the st thing my understanding of the memorandum and nd thing why the decision to rescind the docket 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 and setting v h s and foresman policies and priorities i concur with and declined to disturb acting secretary duke's decisions to rescind the docket policy can i pick up on justice kagan is question earlier the nielson memo ever say even of home was lawful i would still exercise my policy discretion to discontinue yes your rescinded by the d h s because there are at a minimum serious doubts about its legality may make one more sentence and then rd if you look further down the page it says regardless of whether these concerns about the docket policy render it illegal or legally questionable you mr chief justice and may please the court the government's terminations of daca triggered abrupt tangible adverse consequences and substantial disruptions in the lives of seven hundred thousand individuals their families employers communities and armed forces that decision required the government to provide an accurate reason rational and legally sound explanation it utterly failed to do so asserting only the attorney general's unexplained assertion that he had no discretion because unconstitutional exercise of authority by the executive branch the decision overturned a five year and foresman policy of deferred action that had enabled dr recipients under other unchallenged laws and regulations to apply for employment authorization seek driver's licenses and other benefits it's abrupt reversal removed a condition precedent to these rights and expose daca recipients and their employers to immediate potential coercive government measures it was impermissible to do so based on an unexplained unsupported  conclusion that the policy that two administrations had enforced and implemented had supported and implemented for five years was unlawful and unconstitutional the decision to rescind d was reviewable this court has said several times in the just in the past few years that there is we start with a strong presumption of review ability of agency decisions this is the strong presumption that the court described in the wire i was your case just one year ago unless agency discretion is limited by law and there is no citation to any limitation in the law limitations on administrate a review ability by the chords are quite narrowly construed and there are rare circumstances these are the mock mining case and a jewel lange case these wire how's your mock mining and are three cases within the past eight years where this court has talked about the presumption of review ability as a strong presumption narrowly exceptions narrowly construed and all three of those decisions were  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 may now be prosecuted that is agency action that is subject to review under the a p i would not say that justice alito but this is a very very different circumstance this is an agency decision initially and the attorney general refers to it as an illegal decision what is that and then still decision that this response of two explicit congressional direction to d h as to estab enforcement priorities that's what docket was all about it said it did not establish any status it did not provide any benefits it articulated and enforcement priority which congress not only directed s to make but in fact required to make because only four hundred thousand people out i'm not sure the i'm not sure that really response to my question so i'll give you an example let's say that a that there is a policy that certain a certain category of drug cases one might be prosecuted in federal court let's say are cases involving less than five kilos of cocaine so case cocaine cases with lesser amounts of drugs will not be prosecuted in federal court as a matter of in force and priority and then that is changed so that five keyless is reduced to three would that be reviewable no i don't think that what's the what's the diff well i think that the justice department through the attorney general every new attorney general's staff which is new in force when priorities with respect to pornography or drug cases or things like that though that that's completely different than this which singled out a category congressional authorization invited 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 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 is in gendered reliance which reverses not only a position of the of to administration's but the office of legal counsel changes policy then all we're saying is that there is a presumption a review ability of that decision but you're saying it's reviewable because  daca did not going to be on deferred prosecution datos that which you just said docket no i said that the benefits were conferred were triggered by the decision of enforcement policy in dhaka but those benefits are triggered by other statutes and acted by congress funded by congress throughout all its entire period of time and the government hasn't challenge those so those benefits the driver's license business and the work authorization if you apply for it if you come forward identify yourself put yourself into the program take risk literals and the whole thing was about the work authorization and these other benefits both administrations have said they're not going to deport the people so the deferred prosecution of her deferred deportation that's not what the focus of the policy was yes the other statutes provided that but it was triggered by by the memo i don't understand sort of putting what the policy really was about which is the work authorization and the other things off to one side it's very helpful well i think that one has to focus on the fact that this was congress authorized the ayat of the department homeland security to a den of fighting force when 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  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 you're correct that it triggers that but it's triggered by other benefits and so forth that the government is opposed to those benefits given to individuals who are not in a known force meant 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 partner since they're 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 knows it should not be challenging a decision  essentially required by congress and let there be no mistake about why this decision was made the attorney general specifically said that doco was illegal and unconstitutional i don't know where the unconstitutional came from because it didn't come from the th circuit but let's say it was on illegal enforcement priority and there's no doubt about why this happened in the search petition or in the government's grief the refers to the questions presented it specifically says the original doc a policy was unlawful and then goes on to say the bus had to be terminated there's no question about that so the duke memorandum which was the attorney general's decision and opinion under statute is in forcible and binding on the government agencies or it's a statute that specifically says that so the duke memorandum had no discretion no choice the attorney general  s i think you moved on to the merits and i guess i'm still struggling with justice alito is question on review ability can you help me understand what is the limiting principle i i hear a lot of facts sympathetic facts you put out there and they speak to all of us but what's the limiting principle between use a review ability here for an enforcement classic kind of prosecutorial discretion that one might have thought would have a determination that a categorical determination involving a substantial number of people to ok i think on that are and let me just stop you there though because of its categorical and a large number of people i can think of a lot of decisions involving drug cases that the treatment marijuana in our society the under federal law perhaps it would be cocaine five kilograms whatever is in the attorney general memo effects lots of people 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 that individuals making choices and then the have people rely on the attorney general guidance memos and documents there's an entire industry in a lot of states involved in marijuana that would argue they're relying on memos issued by the attorney general that we will not enforce marijuana laws for example do they now have a right to know i think it is completely different they are not invited to participate in the program to reveal the business that they're in to come forward to have a lot of economic interest to stake that i think under fox and what we heard about earlier from just as brierly would say our economic interests are very real billions of dollars are at stake we relied on the attorney general's guidance meditators but there and i just would like to quote this one parable or one sentence from the heckler versus jane the decision itself when an agency does act to enforce that 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 this is an every prosecutorial decision affect individual liberty or property tauriel decisions yes of course this is a as an announcement this is a reversal of a policy that the government created that triggered it to use the words of this court engendered reliance interests and all were the same is that it should be subject to review in the context of this big picture it isn't say that every decision by a prosecutor that i'm going to now in force murder cases are kidnapping cases or or serious drug cases the end of the doesn't 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 can't be changed but when the policy does that the government wishes to change a broad policy like this which affects so many people in so many serious way with a might ask a question about that if we're talking about the merits that and then pass off the baton the reliance interests that we've we've talked about earlier i think your friend on the other would say we did address for alliance interests in a paragraph and we could do it in fifteen pages  but we'd say pretty much the same thing at the end of the day and it take another six years and it would leave this class of persons under a continuing cloud of uncertainty and continue states this in the political branches because they would not have the peace line rule of decision from this court still on this issue it's what this court is that will say that it was that and that's the line of argument as i understand it from the government yes i know it is and the government saying all we needed was a few more words that is not what this court has said with respect to administrative review of judicial review of administrative decision you must have a rational explanation it must make sense it must be contemporaneous the i would get to the nielson memorandum which was contemporaneous it was not a new decision i understand that if you could just address of the 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 to come forward i understand that the question is what more would you have the government say about those reliance interests if well if it's a failure of adequacy of explaining what more is left to be said what they could have said is that we understand all of these people working for all these 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 assuming we'll go ahead and finish well well i would of did it take another century or two but there are a lot of things wrong the nielson memorandum was not an independent decision she was bound just as the earlier  we because the attorney general said this was illegal but the nielson memo then goes on to say as you heard mr francisco said in my question that regardless of whether these concerns about the dock a policy rendered a legal or legally questionable the sound reasons of enforcement policy to rescind the docket policy and the goes on to explain the policy rationales to rescind it so what is your response to her friends at st place they were not independent they were not contemporaneous they were not accompan was not as she says they're independent in that sense says they're in to the us that's what mr francisco says what mr francisco said that and she said that but they weren't independent because she was bound by the attorney general's decision and the government itself in its quartered a moment ago said dock what was on lawful thus we had to terminate it now and it does and it's not contemporaneous and then that is the basically the policy decisions are saying we understand people may have relied on this but that's just too bad that's basically all it was they were not gen then the litigation risk issue is like a rubber stamp that the agencies can put on anything every decision an agency makes but if you do agree that the executive has the legal authority to rescind aka yes ok so the question then comes down to the explanation and if it's the nielsen paragraph on reliance that it comes down to so which is that with us it wasn't st of all grow just ask the question in this way which is assume the nielsen memo comes in and assume it comes down to whether the nielsen met a memo adequately explain the reliance interest what was the shortfall in the nielsen memo addressing reliance interest because she does acknowledge that a lot of people have relied she does it and she briefly 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 kirk they must stand or fall on that explanation you does you think do you think you could explain the reliance or the justifications for the policy in a way that would overcome the reliance interests they would yes i believe that that's possible they could have that an adult says of costs and benefits explaining why no l c decision has been thrown out the window why a policy is being changed that the administration  what that's exactly what you have serial suited to something just to score suggest which is what's the benefit of delaying this further it has been at least looking at the deferred action a decision is the dozens that have gone through the decades congress has responded sometimes changing the policy sometimes limiting it it sometimes expanding it it has responded but the dynamic is very different isn't it when an executive says i don't have the power and when it says even if i had the power i don't choose not to do this aren't the dynamics of what happens between congress and the president dramatically different in those circles that exactly this is what is called virtual reality  i can't do like don't 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 just sort of mayor is a very good one someone say i might have done it if i had the power to do it but i have no discretion i have no power to do what it we don't know what the administration would do if it had to make this decision and take ownership and accountability of this defense you're twinked about given the attorney general decision and a law that says they have to change it that's a very different circumstance and saying even if i don't have to i want that's exactly right the of ministration 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 had not committed a crime and who were a volunteer for this program have have of conducted themselves properly understand that whitney 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 interprets the nielson as saying giving all of these reasons and saying that each one is an alternatively is an independently sufficient basis for the action would with that be unlawful and what i say they  go into great length in explaining every well every fact or every basis certain if they explained and provided a rational explanation instead of just pushing a button or putting a rubber stamp on it that's what judicial review was all about that means the agency would have taken responsibility for making the consequences of those decision explaining why i have thought about it and why i've decided what to do that's what your decisions require by judicial review thank you counsel mr chief justice and may it please the court it was up to petitioners to decide how to frame their decision to terminate doco they could have taken responsibility for a discretionary decision resending a policy that affects hundreds of thousands of lives instead they chose to end the policy based on the ground that doco 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 that's 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 don't take serious account of the dramatic cost to darker recipients and the economy and their employers and families of terminating this policy and also that it is founded on the incorrect legal premise th dhaka is unlawful this court can review the lack of in a firm based on the lack of an adequate explanation for that ground or the fact that it is an incorrect conclusion and it is legal air now if i can turn to the question of review ability the a p a says that it commits agency actions that are committed to agency discretion by law are on reviewable 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 can't fairly be described as committed to agency discretion in any meaningful sense  the concept that the court reserved in footnote four of cheney 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 what my friend's position is with respect to dhaka 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 eye in a prohibited stem from adopting a transparent framework that guides the exercise of individualized discretion with respect to this is a very compelling population of individuals and that's not consistent with the broad authority that congress has granted the secretary under the ins and under six u and two and it's not consistent with historical practice for the agency over the decades has frequently adopted class based discretionary relief policies that allow it to channel the exercise of recognized forms of discretion with respect to particular individuals in a defined class well that that history is not close to the number of people who covered by your honor there is a history of class based deferred action policies and they are narrower to be sure but there are other cost based policies that have applied to hundreds of thousands of individuals the family fairness policy when announced would have applied to up to forty percent  thousand people right that's the number the little themselves with that policy that's right because it was short lived but at the time it was announced it was not clear that congress is going to act and the executive told congress that this would apply to up to forty 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 didn't have an effective date for another year and congress said that this is not intended to express disapproval of the existing executive policy and that's one example but there are more examples of that percentage was one million five hundred thousand dollars 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 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 in an even handed approach and the exercise of deferred action general suppose that this administration had not relied on legal grounds to rescind the policy which is very different from what they did but let's just suppose otherwise that they had immediately and only relied on policy considerations are you saying even then it would be the rescission would be reviewable and why would that be so if it were a pure 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 challengers would likely argue that there is sufficient general standards in this area to allow for a minimal level of rationality but why would it fall outside of cheney do you think think that cheney was very specific about the type of agency action that it addressed it was a concrete decision by the agency not to enforce the statute with respect to particular actors now that is different from a broad policy that guides the exercise of deferred action decisions prospectively and cheney was founded on a recognized tradition of non review it pointed to cases going back to the th century  policy considerations underline 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 that and a different point here is that well hasn't that been f d a policy for all of the years since cheney sure your honor but that's a that's a big class of people but that's 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 non enforcement decision they have argued that deferred action is revokable at any time and could be and is not a defense to removal so we're dealing with a different type of policy here than the one that the agency dealt with cheney i mean well it means the individual laws kind of decision but quite rules all the current and so what it can't mean that heckler is interpreted this committed to agency discretion to make serious inroads in the principle of judicial review but everybody's struggling including me what the law in and what's the line generally it can't be so broad of all programs it can't be so narrow is an individualized decision just what is it well i think we can look to the language of the cheney 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 and imagine an s e c rule or imagine a h h s rule and what it says is we are not going to take action to give a certain category of people the 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 general's letter which concluded that the policy was unconstitutional and beyond statutory authority and whether or not this might conceivably fall under cheney if it does it still is subject you're saying at the minimum one an action to enforce is different from an action not to enforce your we have one to enforce and you are saying as well that the ground to being purely legal it is not a discretionary ground he said it was were posed that question by justice kagan and i thought you'd indicated that whether it was based on policy grounds or on a legal assessment wouldn't alter the review ability analysis in your view so i guess i'm just curious which is it so to be more precise if we are operating in a world where we assume that cheney applies our point is regardless this is reviewable because this is within a subcategory where the agency has disclaimed any discretionary choice that has  we have no authority over the matter and that he at that wasn't my i'm sorry that wasn't my question so so if assuming we're 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 so something slightly different to to justice prior and perhaps perhaps i'm missing something well let me try and clarify we believe that a broad policy is not the type of action that's referred to by cheney consistent with some of the d c circuit authority that's been cited in the bill in the briefs just as that just takes us back to the beginning of the discussion was barr which is that can't be so necessarily because every prosecutorial discretion affects a lot of people you have the discussion with justice alito as well so i guess i let you go but i'm still struggling with this line that you're asking us to draw 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 i'm pretty sure we don't 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 i'm concerned this is definite it's illegal now your honor we would argue that it's a type of action that's presumptively review of all and if the agency decides to base a decision on some discretionary choice but with an explanation or rationale that's founded on litigation risk or legal doubt that that would be a rationale that courts would use it enough for him to say look i've got a decision from the th circuit that tells me this is it legal it's been affirmed by the supreme court or an equally divided vote that's enough for me to say we're not going to do it it's 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 don't think that any genuine statement of legal doubt or litigation risk would be adequate but that's not what we have here 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 here is what we're weighing and here is our judgment do you think that that would be sufficient i think is a general matter an agency could base a discretionary decision on a reason like that i suspect that if we saw that decision we would challenge it under the particular circumstances here but the court might agree that if there were some substantial and detailed consideration of the actual cost of this and the justice prior pointed out about the reliance interest we've read you know the th circuit so pinion in in the texas litigation presumably they would cite that as well would that be enough i think that it would have mean what do you need more than that you've got a court of appeals decision affirmed by an equally divided supreme court can't he just said if that's the basis on which i'm making this decision your honor no and i think judge bates is exactly right on this the explanation requirement is meant to facilitate judicial review and inform the public and yes they point to the doppler case but there's four or five theories of illegality floating around there ranging from the notice and comment to the take care clause claim and we don't know which ground the agency based its decision on so that is a lack of a reasoned explanation in addition to the back would an adequate explanation look like i mean what do you think they would have to do to be in the clear on this i think that they would at least have to identify the particular grounds that they're relying on to facilitate further judicial review of their underlying legal conclusion and explain why they believe it applies to the doc the authorities are legion on that you we should decide on the basis of that duke memo that was the decision rested on that and heard that ok there's another case where justice fortis wrote you shouldn't play ping pong with the agency ok so they're saying that's what the a lot of their argument was what's the point what's the point i mean you'll send it back and they'll say ok right dop but it was different  court said that here the doppler program makes four million two hundred thousand people citizens with a runaround of the normal way to become citizens when you have a child who's a citizen and here that has nothing to do with this case they're not no runaround you point that out they want but we're going to come out the same way it's close enough so short what's the argument against playing as there is a sentence for against you playing ping pong with the agency i think that there is a very substantial meaning to a remain and in this case your honor we don't truly know what the agency would do if confronted with a discretionary choice if they knew that doco were lawful there's 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 terminations and if we are remaining in light of the lack of a reasoned explanation i would exercise my discretion to rescind and then explain to her consideration of the reliance interest so why is there's already been or in a factory remained there there is a boilerplate a even if it's lawful i nonetheless i'm going to exercise my discretion i assume that was a very considered decision now we can agree with it or just disagree with the the merits of it but it seems yes and i think it's in that memorandum where she conducts her collective wayne and she considers those policy rationales along with the legal rationales and say that together they outweigh the purported costs of terminating doc i also think it's critical to understand the context of this center point just to understand i think that your point is that the legal considerations while she said that end up being in are twined in the subsequent paragraphs with the policy consideration as that's absolutely right and this was after all in the 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 had suggested a new decision or a new action and has been presented as such that's not consistent with what they told the district court the district court said quite plainly please notify me if there's a new decision they submitted this memo and 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 don't think that they can come to this court and things asked that it is a fresh decision and every rationale is before the court underneath him in the tunnel to that paragraph what is the shortfall in the discussion of reliance interests in your view well i'm 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 reliance interest on the cost it's not a detailed discussion of the dramatic harm to hundreds of thousands of young people to their families to their employers to the state to the economy that would arise from this decision but she does say that in a sentence if we remain ended and it were detailed more fully would still fall short i think the great value of a remain and is that these to date they have not made a decision that actually takes ownership of  discretionary choice to end this policy and if they had every man and 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 they've made thank you council five minutes mr oh i'm sorry mr general francisco thank you mr chief justice i think i want to focus on three basic points st justice cap and i want to make sure you have all of the relevant portions in the nielson memorandum that i think make this all quite clear page one hundred and twenty two and i'm at the regents petitioner's appendix in considering how do you justice discretion to establish an foresman policies and priorities should be exercised the doctor policy properly was and should be rescinded for several separate and independently sufficient reasons she then gives the st reason the legality question then if you go to page one hundred and twenty three dollars a nd regardless of whether the docket policy is ultimately illegal it was appropriately rescinded by da just because there are at a minimum serious doubts about its legality further down the page rd regardless of whether these concerns about the doctor policy render it illegal or legal asserted reliance interests outweigh the questionable legality of the doctor policy and the other reasons for ending the policy discussed above and finally when you get to the conclusion on page one hundred and twenty six a for these reasons in setting v policies and priorities i concur with and declined to disturb acting secretary due to decisions to rescind the docket policy so frankly don't understand for more of that i don't know how he would respond respectfully on or i very much disagree she sets forth explicitly on page one hundred and twenty one dollars a several separate and independently sufficient reasons we own this we both on the policy rationale set forth  secretary nielsen's memorandum also because we think this is not subject to judicial review at all we own the legal judgment set forth in secretary nielsen's memoranda so simply stated the fact that we've got alternative and legal policy grounds for making this decision make two things clear st it is foursquare within cheney under the revealed building issue because cheney likewise was rested on alternative legal grounds the f d a believed that lack of jurisdiction and policy grounds and secondly it shows how this was plainly an eminently reasonable rescission even if you disagree with us on the legal issue because we've set forth a separate and independent policy issues for the decision so that was basically my st point but even like what  you just read general in that key paragraph where the secretary wave is the reliance interests against the reasons and her memo everything's wrapped up and we don't know how she would have conducted that balance how she would have weighed those two if the legal had been taken away from it i simply disagree with that when she specifically says that she's setting forth separate separate and independent grounds justifying the rescission i don't think that there's any fair way to read that but by saying that she would risk and did it based on any of the independent grounds which brings me independent ground number one number one we should not adopt a policy of non enforcement of those laws for board classes and categories ok in congress she thinks agrees with us well i don't know maybe they do maybe they don't but aside from that it's a conclusion look at the nd one we should do it on a truly individualized case by case basis that's a conclusion that isn't a reason and the rd one is a reason the rd one it is important to reject the message that leaves no doubt regarding the clear tritton foresman of immigration again two o'clock that's an 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 well we don't 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 galatea 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 dach is illegal and was justifiably group was justifiably rescinded on that basis as well thank you ana thank you counsel cases submitted