DEPARTMENT OF HOMELAND SECURITY, ET AL., Petitioners, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL., Respondents
Interviewer(s): Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Neil Gorsuch, Brett M. Kavanaugh, Sonia Sotomayor
Interviewee(s): Michael J. Mongan, Theodore B. Olson, Noel J. Francisco

John G. Roberts, Jr.: We'll hear argument first this morning in Case 18-587, the Department of Homeland Security versus Regents of the University of California, and the related cases. General Francisco.

Noel J. Francisco: Mr. Chief Justice, and may it please the Court: In 2017, the Fifth Circuit held that DAPA and the expansion of DACA 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 DACA policy based on its belief that the policy was illegal, its serious doubts about its illegality, and its general opposition to broad non-enforcement policies. That decision did not violate the APA for two reasons.

First, it's not subject to judicial review.

The rescission simply ended a previous non-enforcement policy whereby the Department agreed to not enforce the INA 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 INA requires the Department, a law enforcement agency, to not enforce the law. Second, the decision to end this non-enforcement policy was eminently reasonable. DACA was a temporary stopgap measure that, on its face, could be rescinded at any time.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 reviewability 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 a 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 because --

Ruth Bader Ginsburg: General Francisco, there's a strange element to your argument because you're arguing this is a discretionary matter; it's not reviewable because it's committed to agency discretion. But, on the other hand, you say the agency had no discretion because this program was illegal.

In other words, the law requires you to drop DACA.

So how can it be committed to your discretion when you're saying we have no discretion; this is an illegal program?

Noel J. Francisco: For two reasons, Your Honor.

First, we've put forward both legal and policy reasons for the rescission, so this case is on all fours with Chaney, where the FDA likewise put forth legal and policy reasons. Its principal argument was that it lacked jurisdiction to reg -- to regulate state use of drugs in carrying out the death penalty.

Its alternative argument was that even if it had the legal authority to do so, it wouldn't have exercised it. 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.

John G. Roberts, Jr.: What's your --

Noel J. Francisco: But, secondly --

John G. Roberts, Jr.: Oh, I'm sorry. Go ahead.

Noel J. Francisco: 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 in BLE. What the BLE 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.

And the specific example this Court provided in BLE was a prosecutor who decided not to indict for a purely legal reason. And the Court indicated that that was still unreviewable because the underlying action, the enforcement discretion, was committed to the agency's unreviewable discretion. So, here, we think we win under Chaney, and we also think we win under BLE.

John G. Roberts, Jr.: What if the Attorney General said he, in his exercise of prosecutorial discretion, was not going to enforce any of the immigration laws?

Noel J. Francisco: Uh --

John G. Roberts, Jr.: Would that still be non-reviewable?

Noel J. Francisco: Your Honor, then I think that you might run into Chaney'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 -- 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 the 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 Chaney presumption, that it's an exercise of enforcement discretion, and we don't fall within the Chaney exception, which would apply where Congress itself restricts the discretion or where there's a potential complete abdication of enforcement authority, as Chaney made clear might also be an exception.

Brett M. Kavanaugh: Was DACA --

Elena Kagan: Just to -- just to understand what you're saying, General, you -- that would suggest that the original DACA is reviewable, but the rescission of DACA is not. In other words, are you suggesting that there's an asymmetry in what's reviewable?

Noel J. Francisco: There --

Elena Kagan: That they don't stand and fall together?

Noel J. Francisco: Yeah, there is, because there's a difference in the two policies.

Both of them -- to be clear, both of them fall within Chaney'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 DAPA, the case that this Court had before it a couple of years ago, Texas argued that the INA 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 Fifth Circuit agreed.

So that fell within the Chaney 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 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 four square within the Chaney presumption, and the Chaney exception doesn't apply.

And that exception applies -- 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 Chaney reserved in that critical Footnote 4. But, here, we're not not enforcing the law.

We're enforcing the law.

And there is simply nothing in the INA that somehow says to the Department of Homeland Security you are restricted in any way or shape or form --

Ruth Bader Ginsburg: Can I go back --

Noel J. Francisco: -- from enforcing the laws we pass.

Ruth Bader Ginsburg: The response that you -- that you gave to me, I didn't see -- I thought that what you call it, the Duke Memorandum, Duke Memorandum said DACA is illegal.

I didn't see where it said, whether it's illegal or not, as a matter of administration policy, we are withdrawing.

Noel J. Francisco: Uh-huh.

So --

Ruth Bader Ginsburg: I didn't see that.

Noel J. Francisco: Yeah.

Ruth Bader Ginsburg: You said there were alternate arguments.

I saw only the first, we can't enforce DACA; we can't adhere to DACA because it's illegal.

Noel J. Francisco: So two responses, Your Honor.

First of all, Secretary Nielsen's memoranda clearly encompasses all of the different arguments.

It sets them forth in great detail.

And we think that the Nielsen 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 Nielsen 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 first place, the same mechanism that was issued -- used to issue the DACA memo, and the same mechanism used to issue the DAPA memo. So this isn't a post hoc rationalization of agency action.

It is agency action.

The whole point of the post hoc rationalization rule is to prevent courts from invading into executive branch decision-making.

Stephen G. Breyer: I thought the point -- I mean, this is an old argument.

Noel J. Francisco: Yeah.

Stephen G. Breyer: And there have been two bases.

The first base is a big argument between Ken Davis and Burger, you know, and is -- is it that you can't review an agency, does that little thing about you cannot -- commit it to agency discretion by law, does it mean that there's certain -- just mean that there are certain things an agency might do.

Don't review them even if they're totally wrong, like Panama Canal tolls.

Noel J. Francisco: Right.

Stephen G. Breyer: Okay? That isn't here, I don't think. The Chaney argument, I thought was the reason this is unreviewable, 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 my discretion, no, I don't want to prosecute them. There's a long history of that.

Noel J. Francisco: Uh-huh.

Stephen G. Breyer: And if that history, an understandable power to give to a prosecutor, is to be valid, courts, stay out of it.

Now that does not apply where what's at issue is not a prosecutor making an individualized decision but, rather, an agency's policies --

Noel J. Francisco: Right.

Stephen G. Breyer: -- generalized, written down, and I can't think of a reason why in such a case you wouldn't review it in a court.

Noel J. Francisco: So, respectfully, Honor, I strongly disagree because Chaney itself involved not a prosecutor but an agency and not a single shot enforcement action but a general policy. Here's what the FDA said in the letter denying the petition brought by the inmates to have it regulate the state exercise of the death penalty.

This is their principal conclusion.

Stephen G. Breyer: Yeah.

Noel J. Francisco: "For the reasons given below, we conclude that the use of lethal injection by state penal systems is a 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." It later provided as the alternative rationale a policy rationale, and it says later: "Thus, as a secondary and separate basis of denial, we decline as a matter of enforcement discretion to pursue supplies of drugs under state control that will be used for execution by lethal injection." So, in Chaney, the FDA clearly was announcing a categorical policy that it wasn't going to 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 Chaney. It doesn't fall with any -- within any of the exceptions to Chaney, where Congress either 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 Chaney because, again, we're talking about enforcement and not non-enforcement.

And Judge --

Brett M. Kavanaugh: Wouldn't what -- wouldn't what you just read also have made DACA itself unreviewable, to pick up on Justice Kagan's question from earlier?

Noel J. Francisco: No, Your Honor, and, again, because, critically, it falls within -- sure.

Brett M. Kavanaugh: What -- what's the distinction between DACA and the FDA policy?

Noel J. Francisco: Oh, the DACA and the FDA policy?

Brett M. Kavanaugh: Yeah.

Noel J. Francisco: Well, because, in the FDA policy, nobody was claiming that somehow a statute restricted the FDA's ability to not enforce the law.

Nobody made that argument. In the DAPA litigation, I think is maybe what you're referencing, Texas specifically argued that the INA did, in fact, restrict the agency's authority to exercise its enforcement discretion to not enforce the law.

Samuel A. Alito, Jr.: Well, one of the --

Noel J. Francisco: And, again --

Samuel A. Alito, Jr.: -- things that -- 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?

Noel J. Francisco: Right.

Samuel A. Alito, Jr.: And, if it does, would that make this reviewable?

Noel J. Francisco: I -- I -- I think the answer is no and no.

And the reason why is, first of all, the rescission of DACA doesn't rescind any benefits.

Those benefits are allowed to expire on their own terms. But, even putting that to the side, the work authorization and the other benefits are simply a collateral consequence of the exercise of prosecutorial discretion itself. So they don't recognize -- they don't make the prosecutorial discretion itself reviewable; otherwise, every grant or denial of deferred action would be subject to APA review because every grant and denial of 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 and a benefit that flows from the prosecutorial 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 offenses, that isn't reviewable either. But I do think that the challenge to DAPA in the prior litigation was reviewable -- to be clear, it was reviewable because it fell within the Chaney exception.

Texas argued, the Fifth Circuit agreed, that the INA, in fact, restricted the Department of Homeland Security's ability to not enforce the law.

And, frankly, we -- we -- 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 INA restricts the Department of Homeland Security's authority to enforce the law.

After all, Congress typically wants the executive branch to enforce the laws --

Neil Gorsuch: General --

Noel J. Francisco: -- that it passes.

Neil Gorsuch: -- are you -- is this an appropriate moment to move to, assuming reviewability, the merits?

Noel J. Francisco: Any time you want to move there, Your Honor --

Neil Gorsuch: All right.

Noel J. Francisco: -- I'll move there.

Neil Gorsuch: One -- one -- one argument that the other side makes along those lines is similar to this one we've just been considering, the reliance interests that have grown up around DACA. And what do -- what do you say to that and whether they've been adequately considered in this case?

Noel J. Francisco: Sure.

Two things, Your Honor.

First, I would say that to the extent there are any reliance interests, they're 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 two-year increments.

So I don't think anybody could have reasonably assumed that DACA was going to remain in effect in perpetuity. Even putting that to the side here, the agency considered the reliance interests. Secretary Nielsen 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 individuals.

Sonia Sotomayor: May I ask --

Neil Gorsuch: If I --

Sonia Sotomayor: I'm sorry.

Neil Gorsuch: I'm sorry.

Sonia Sotomayor: No, no, continue.

Neil Gorsuch: Thank you.

If I understand, though, your colleague's argument on the other side, it's not that Secretary Nielsen failed to consider reliance interests.

There's that paragraph, I believe, in the petition appendix around 125, somewhere in there. There's a -- there's a paragraph. But that -- but that given the extent of the reliance interests and 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 remand to -- to say more. What -- what -- what -- what do you say to that?

Noel J. Francisco: So --

Neil Gorsuch: So as I understand that, that's the nature of the argument.

Noel J. Francisco: Right.

And I guess I'd have a couple of responses to that. The first is that I -- I don't think it reflects an accurate understanding of APA 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 APA standard for -- for considering reliance interests.

She does so explicitly in -- in the portion of the memorandum that you referenced. And, in addition, what I'd 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, all of the district court decisions. And so then, 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 I think it's quite clear that she is fully taking into account the whole panoply of reliance interests that were discussed ad nauseam in the district court decisions and simply concluding that they didn't just -- justify maintaining the policy.

Stephen G. Breyer: If I could continue the same question because, look I -- the best statement of the law in my mind -- this is a very old principle -- again, was Justice Scalia's writing for the Court in Fox. He says, when an agency's "prior policy has engendered serious reliance interests, it must be taken into account." All right.

That's this case, I think.

Noel J. Francisco: Uh-huh.

Stephen G. Breyer: All right.

So I counted -- I had my law clerks count, actually, not just the people who came in, you know, the 700,000 --

Noel J. Francisco: Right.

Stephen G. Breyer: -- they've never been anywhere else.

They -- they never have to.

But there are all kinds of reliance interests. I counted briefs in this Court, as I'm sure you have, which state different kinds of reliance interests.

There are 66 healthcare organizations.

There are three labor unions. There are 210 educational associations.

There are six military organizations.

There are three home builders, five states plus those involved, 108, I think, municipalities and cities, 129 religious organizations, and 145 businesses.

Noel J. Francisco: Uh-huh.

Stephen G. Breyer: And they all list reliance interests, or most of them list interest reliance --

Noel J. Francisco: Right.

Stephen G. Breyer: -- interests applicable to them, which are not quite the same, they are not quite the same as those of the 700,000 who have never seen any other country.

And so then I did read what you just read to me.

Noel J. Francisco: Uh-huh.

Stephen G. Breyer: 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?

Noel J. Francisco: Yes, Your Honor, I do, because the first thing I want to say is that State Farm itself says, and, here, I've got the quote, you violate the APA only where you "entirely fail to consider an important aspect of the problem." Here, Secretary Nielsen explicitly considered the reliance interests, including all of the things that you just listed that were set forth in -- in excruciating detail in the numerous district court decisions that have ruled -- had ruled against us --

Elena Kagan: But -- but not --

Noel J. Francisco: -- which she says --

Elena Kagan: -- but not in her --

Noel J. Francisco: -- she specifically considered.

Elena Kagan: -- but not in her memo.

Noel J. Francisco: Well, Your Honor, I, frankly, think that she does.

But the other thing that I would say is that under this conception of APA review, DACA and DAPA likewise would have failed arbitrary and capricious 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 of the --

Brett M. Kavanaugh: Just -- just back --

Elena Kagan: If --

Noel J. Francisco: -- DACA program would have had.

Brett M. Kavanaugh: Go ahead.

Elena Kagan: Go ahead. (Laughter.)

Noel J. Francisco: I'll take either one, Your Honor. (Laughter.)

Elena Kagan: If -- if I understand Secretary Nielsen's memo correctly, Secretary Nielsen said that she -- she did have a -- a conclusory statement about weighing the reliance 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, 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?

Noel J. Francisco: Sure.

For a couple of reasons, Your Honor.

First, because she sets forth separate and independent bases justifying the rescission: first, her belief that it's illegal; second, her belief that there are serious doubts about its illegality; and, third, her conclusion that, as a matter of enforcement policy, the Department of Homeland Security is against these kinds of broad-based non-enforcement decisions. Any one of those, as her memo explicitly says --

Elena Kagan: But in her --

Noel J. Francisco: -- is a separate and independent basis.

Elena Kagan: -- in her statement about reliance, she particularly says it outweighs this questionably legal program.

Noel J. Francisco: I think what she is saying here is that it outweighs -- is that, given that there are extremely limited reliance interests in the first place, any limited reliance interests that exist are outweighed -- are -- are outweighed by all of the different reasons that she has articulated as separate and independent grounds for rescinding DACA. I think that's the only fair way --

Sonia Sotomayor: General --

Noel J. Francisco: -- that you can read that memorandum.

Sonia Sotomayor: -- I'm -- I have always had some difficulty in understanding the illegality of DACA.

DAPA I put aside because, in DAPA --

Noel J. Francisco: Right.

Sonia Sotomayor: -- 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.

Noel J. Francisco: Uh-huh.

Sonia Sotomayor: But there -- I don't see anything in the INA that takes away the discretion of the agency in ordering its enforcement policies.

Noel J. Francisco: Right.

Sonia Sotomayor: We all know it has limited resources.

It can't, even when it wants to --

Noel J. Francisco: Uh-huh.

Sonia Sotomayor: -- 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 removals, and for those people, like the DACA people --

Noel J. Francisco: Right.

Sonia Sotomayor: -- who haven't committed crimes, who are lawfully employed, who are paying taxes, who pose no threat to our security, and there's a whole list of prerequisites, we're not going to exercise our limited resources --

Noel J. Francisco: Yeah.

Sonia Sotomayor: -- to try to get rid of those people.

I -- I still have an impossible time.

I know you're going to argue contrary to what I just said.

Noel J. Francisco: Sure.

So I guess I have three responses, Your Honor.

Sonia Sotomayor: All right.

But let me just finish my question.

Noel J. Francisco: Oh, sure.

Sonia Sotomayor: Okay?

Noel J. Francisco: Yeah.

Sonia Sotomayor: So putting aside that, the Secretary, in giving these extra reasons, because none of this was in the Duke memo, and I thought basic administrative law is you look at what's first given to you, not what this -- you add later, but assuming you ignore that and even look at the Nielsen memo, I think my colleagues have rightly pointed there's a whole lot of reliance interests that weren't looked at, including the very President of -- current President telling 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 that, I think, has something to be considered before you rescind the policy.

Noel J. Francisco: Right.

Sonia Sotomayor: Not just say I'll give you six months to do it --

Noel J. Francisco: Right.

So -- so --

Sonia Sotomayor: -- to destroy your lives.

Noel J. Francisco: So --

Sonia Sotomayor: Putting all of that aside -- and I'm going to get to my question. (Laughter.)

John G. Roberts, Jr.: And maybe we'd have an opportunity to hear the three answers.

Sonia Sotomayor: But, don't forget the three.

I know you won't. But, really, where is all of this in the memo?

Noel J. Francisco: Sure, Your Honor.

Sonia Sotomayor: Where -- where is all of this really considered and weighed?

Noel J. Francisco: So --

Sonia Sotomayor: And where is the political decision made clearly?

Noel J. Francisco: So -- so I --

Sonia Sotomayor: That this is not about the law; this is about our choice to destroy lives?

Noel J. Francisco: Yeah.

So, Your Honor, four responses now.

I think I've added one. (Laughter.)

Noel J. Francisco: The first one is that I -- I think that the prior President didn't, couldn't, and hasn't 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 a little bit more detailed of an explanation. So I think that is four square against the notion that there are some significant reliance interests because all that they seem to be saying is we have to write a few more words. Putting that entirely to the side and turning to the legality question, ultimately, I don't think you -- my first 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 are more than sufficient to justify the rescission, both our serious doubts about its legality, as well as our general opposition to broad-based non-enforcement policies. After all, the 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 extreme.

So --

Ruth Bader Ginsburg: But don't you have to -- don't you have to set up some kind of categories? I mean, everybody agrees, what is that, how many, 11 million people?

Noel J. Francisco: Right.

Ruth Bader Ginsburg: They don't have the resources, so you have to prioritize.

Everybody agrees you have to prioritize.

Noel J. Francisco: Absolutely, Your Honor.

Ruth Bader Ginsburg: How do you -- how do you do it other than categorically?

Noel J. Francisco: Well, and that's my second point, Your Honor.

My second point is that DACA 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.

DACA goes materially further than that because it actively facilitates violations of the law by providing advance forbearance, coupling it with affirmative benefits like work authorization and Social Security benefits, doing it on a categorical basis. And, significantly -- and this was my third point -- it has no limiting principle.

On the --

Ruth Bader Ginsburg: So the -- the forbearance would be okay if it -- there weren't attendant benefits? This -- we're not going to -- we're not going to immediately deport the Dreamers, period?

Noel J. Francisco: I think that would be -- if -- if you provided just the advanced forbearance, I think that would be a lot closer of a question, but, here, it's a lot easier because you're coupling that with work authorization. And my final and critical point is that there's no limiting principle.

The theory on which DACA rests effectively allows the government to create a shadow INA for any category of aliens that it chooses to make low-priority targets, a shadow second-tier INA. And you, at the very least, need to locate something in the INA that confers that kind of broad and unfettered discretion.

And there is simply nothing there.

But, again --

Elena Kagan: Well -- well, if --

Noel J. Francisco: -- I don't think you --

Elena Kagan: You know, 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.

Noel J. Francisco: Right.

Elena Kagan: So are you saying that -- are you saying that DACA was -- violated any particular provision of the INA? What are you saying it violated?

Noel J. Francisco: Sure.

Elena Kagan: Because --

Noel J. Francisco: So I'm saying --

Elena Kagan: -- because there's a big delegation, right, that says you get to make national policy.

So what did DACA violate?

Noel J. Francisco: I'm saying two things, Your Honor.

First, I'm saying you don't really have to address this issue because we think all of the other --

Elena Kagan: I got that.

Noel J. Francisco: -- reasons 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 INA.

Elena Kagan: Well, they did --

Noel J. Francisco: And this goes --

Elena Kagan: -- you know, they located the authority in the INA's grant of broad discretion over national immigration enforcement policy.

Noel J. Francisco: Your Honor, I think that the most that does is it gives you the authority to set policies and priorities, but there's a big leap between that and saying that you can affirmatively facilitate violations of the INA by hundreds of thousands of individuals to whom Congress has repeatedly declined a pathway to lawful status.

Brett M. Kavanaugh: What about --

Elena Kagan: I guess --

Noel J. Francisco: Again, though, I -- I don't think this is an issue you need to ultimately resolve because I think the other reasons we've given for rescinding DACA are more than sufficient to justify it, including our serious doubts about its legality alone. Simply as a matter of law enforcement policy, it is eminently reasonable for a law enforcement agency to say, I'm not going to push this doubtful authority to its logical extreme when it does three things: It undermines confidence in the rule of law itself.

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 --

John G. Roberts, Jr.: Counsel, you --

Noel J. Francisco: -- the agency's control.

John G. Roberts, Jr.: -- if -- if DACA was illegal, that means that when the government was giving out these benefits it was acting illegally, right?

Noel J. Francisco: Yes.

John G. Roberts, Jr.: 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.

Noel J. Francisco: Right.

John G. Roberts, Jr.: Did Secretary Nielsen, when she was considering the reliance interests, was she looking simply to the question of a wind-down, or was she looking more generally, for example, to the application of something like the de facto officer doctrine --

Noel J. Francisco: Right.

I think -- yeah --

John G. Roberts, Jr.: -- when officers acted illegally, but we don't go back and invalidate their prior actions?

Noel J. Francisco: 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 -- to order their lives in -- in -- 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 of scenarios.

Stephen G. Breyer: So now the basic -- the basic hornbook rule -- we have three hornbook rules in this case, is -- is -- was mentioned, Chenery: "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."

Noel J. Francisco: Right.

Stephen G. Breyer: In which case we look to Ms. Duke's memo, not to Ms. Nielsen's.

Isn't that when it took the action? And, if so -- I want to hear you say no, it isn't so -- but -- but, if so, 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?

Noel J. Francisco: For two related --

Stephen G. Breyer: With very -- yeah, go ahead.

Noel J. Francisco: For two related reasons, Your Honor.

Stephen G. Breyer: Yeah.

Noel J. Francisco: First, sending it back would make no sense because the agency has already acted.

Secretary Nielsen has already ratified Secretary Duke's decision for the reasons set forth in her 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 Nielsen should have had to reinstate DACA and then rescind it again.

Stephen G. Breyer: Not reinstate it.

Noel J. Francisco: Well, but -- but --

Stephen G. Breyer: What you do is, there are 50 cases on this, if it's important, what you do is you say it is good reason for holding the status quo until we can go back, and courts have affirmed that, we hold the status quo, and we go back now and we look if there are reasons beyond the contemporaneous reason, which is the Duke memo.

Noel J. Francisco: Well, that's --

Stephen G. Breyer: And we see if there will -- yeah.

Noel J. Francisco: -- that's precisely what Secretary Nielsen's memo did.

It did two things. First, it explained the basis for Secretary Nielsen -- Secretary Duke's decision, but, secondly, it set forth her own independent judgment.

And if I could point you to --

Stephen G. Breyer: You mean we have all these 100 and 350 briefs with all these different reasons and she had that in front of her?

Noel J. Francisco: Your Honor, that may go 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 -- in this litigation.

I'd like to point you to two places in her memorandum. First, page 121A of the Regents Petitioners' appendix.

This is the second page of her memorandum: The explanation reflects, the first thing, my understanding of the Duke Memorandum, and, second thing, why the 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 in -- for these reasons in setting -- in setting DHS enforcement policies and priorities, I concur with and decline to disturb Acting Secretary Duke's decisions to rescind the DACA policy.

Brett M. Kavanaugh: Can I pick up on Justice Kagan's question earlier? Does the Nielsen memo ever say, even if DACA was lawful, I would still exercise my policy discretion to discontinue?

Noel J. Francisco: Yes, Your Honor. So, if you look at the memo --

Brett M. Kavanaugh: What -- what -- what sentence are you looking at?

Noel J. Francisco: Okay.

I'm looking at two sentences.

Page 123A -- this is after she says it's illegal -- page 123A. Second, regardless of whether the DACA policy is ultimately illegal, it was appropriately rescinded by the DHS because there are at a minimum serious doubts about its legality.

May I make one more sentence? And then, third, if you look further down the page, it says: Regardless of whether these concerns about the DACA policy render it illegal or legally questionable, there are sound reasons of enforcement policy to rescind the DACA policy.

John G. Roberts, Jr.: Thank you, counsel. Mr. Olson.

Theodore B. Olson: Thank you, Mr. Chief Justice, and may it please the Court: The government's termination of DACA triggered abrupt, tangible, adverse consequences and substantial disruptions in the lives of 700,000 individuals, their families, employers, communities, and Armed Forces. That decision required the government to provide an accurate, reasoned, 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 DACA was an unconstitutional exercise of authority by the executive branch. The decision overturned a five-year enforcement policy of deferred action that had enabled DACA recipients under other unchallenged laws and regulations to apply for employment authorization, seek driver's 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, unsupported, and erroneous legal conclusion that the policy that two administrations had enforced and implemented, had supported and implemented for five years, was unlawful and unconstitutional. The decision to rescind DACA was reviewable.

This Court has said several times in the -- just in the past few years that there's -- we start with a strong presumption of reviewability of agency decisions.

This is the strong presumption that the Court described in the Weyerhaeuser case just one year ago. Unless agency discretion is limited by law, and there's no citation to any limitation in the law, limitations on administration -- reviewability by the courts are quite narrowly construed, and there are rare circumstances. These are the Mach Mining case and the Judulang case. These Weyerhaeuser, Mach Mining and Judulang case are three cases within the past eight years where this Court has talked about the presumption of reviewability as a strong presumption, narrowly -- exceptions narrowly construed, and all three of those decisions were unanimous decisions by this Court.

Samuel A. Alito, Jr.: 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 APA?

Theodore B. Olson: I would not say that, Justice Alito.

But this is a very, very different circumstance.

This is an agency decision initially, and -- and the Attorney General refers to it as an illegal decision, but it's an initial decision that is responsive to explicit congressional direction to DHS to establish enforcement priorities. That's 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 --

Samuel A. Alito, Jr.: Well, I'm not sure --

Theodore B. Olson: -- out of 11 --

Samuel A. Alito, Jr.: -- I'm not sure that really responds 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 will not be prosecuted in federal court.

Let's say they 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 enforcement priority.

And then that is changed. So the five kilos is reduced to three. Would that be reviewable?

Theodore B. Olson: No, I don't think it would be.

Samuel A. Alito, Jr.: What is -- well, what's the difference?

Theodore B. Olson: Well, I think that the Justice Department, through the attorney general, every new attorney general establishes new enforcement priorities with respect to pornography or drug cases or things like that. Those -- this -- that's completely different than this, which singled out a category of persons and, pursuant to 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 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 has engendered reliance, which reverses not only a position of the -- of two administrations, but the Office of Legal Counsel, changes policy, then all we're saying is that there's a presumption of reviewability of that decision.

Samuel A. Alito, Jr.: But you're -- you're saying it's reviewable because DACA conferred certain benefits.

Theodore B. Olson: DACA did not confer --

Samuel A. Alito, Jr.: Beyond deferred prosecution.

Theodore B. Olson: DACA --

Samuel A. Alito, Jr.: Is that -- is that what you just said?

Theodore B. Olson: DACA -- no, I said the benefits were conferred -- were triggered by the decision of enforcement policy in DACA, but those benefits are triggered by other statutes enacted by Congress, funded by Congress throughout all this entire period of time, and the government hasn't challenged those. So those benefits, the driver's license business and the -- and the work authorization, if you apply for it, if you come forward, identify yourself, put yourself into the program, take risks --

John G. Roberts, Jr.: But, Mr. Olson, 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 or 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.

Theodore B. Olson: Yeah.

John G. Roberts, Jr.: So 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 is very helpful.

Theodore B. Olson: Well, I think that it -- you -- one has to focus on the fact that this was -- Congress authorized the IN -- the Department of Homeland Security to identify enforcement priorities.

Once it did -- because it -- it was required to do so and it had no choice because of the funding.

Once it did so, and it identified the persons -- and this is helpful to the agents in the field to identify which individuals are going to be subject to enforcement and which individuals are not. Other statutes provided that benefit. You're correct that it triggers that, but it's triggered by other benefits and so forth.

If the government is opposed to those benefits given to individuals who are not in an enforcement priority category to support themselves, to go to work, rather than put themselves in the hands of the government to support them, and to become a part -- since 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 those. It should not be challenging a decision that's essentially required by Congress.

And let there be no mistake about why this decision was made. The Attorney General specifically said that DACA was illegal and unconstitutional.

I don't know where the unconstitutional came from because it didn't come from the Fifth Circuit. But let's say it was an un- -- an illegal enforcement priority. And there's no doubt about why this happened.

In the cert petition or in the government's brief that refers to the questions presented, it specifically says the original DACA policy was unlawful and then goes on to say, thus, it had to be terminated. There's no question about that.

So the Duke Memorandum, which was -- the Attorney General's decision and opinion under statute is enforceable and binding on the government agencies.

There's a statute that specifically says that.

So the Duke Memorandum had no discretion, no choice.

The Attorney General of the United States --

Neil Gorsuch: Mr. Olson, I -- I think you've moved on to the merits, and I -- I guess I'm still struggling with Justice Alito's question on -- on reviewability.

Can you help me understand what is the limiting principle? I -- I -- I hear a lot of facts, sympathetic facts, you put out there, and -- and they speak to all of us.

But what's the limiting principle between, you say, reviewability here for an enforcement, a classic kind of prosecutorial discretion that one might have thought would have fallen under Heckler versus Chaney, and the example Justice Alito gave or Heckler versus Chaney itself? What's --

Theodore B. Olson: Heckler --

Neil Gorsuch: -- what's the -- what's the limiting legal principle --

Theodore B. Olson: Well, there's a --

Neil Gorsuch: -- you'd have this Court adopt?

Theodore B. Olson: -- it's a composite -- in this case, it's a composite of principles, a determination that -- a categorical determination involving a substantial number of people --

Neil Gorsuch: Okay.

But I -- I --

Theodore B. Olson: -- to make decisions --

Neil Gorsuch: -- I think --

Theodore B. Olson: -- based upon that.

Neil Gorsuch: All right.

Let -- let -- let me just stop you there, though, because, if it's categorical and a large number of people, I can think of a lot of prosecutorial decisions involving drug cases, the treatment of marijuana in -- in -- in our society today under federal law, perhaps it would be cocaine, five kilograms.

Whatever is in the attorney general memo affects lots of people on a categorical basis every day. And --

Theodore B. Olson: Yes.

Neil Gorsuch: -- and you're not -- you -- you, I think, would not have us review those decisions.

Theodore B. Olson: That's -- no, but may I refer to --

Neil Gorsuch: So, if it's not categorical and it's not a large number of people --

Theodore B. Olson: Well --

Neil Gorsuch: -- what's the limiting principle?

Theodore B. Olson: -- there -- as I said, it's a combination of factors which include the government inviting people to rely upon and make decisions based upon that policy, the provision of benefits connected with it, individuals making choices, and -- and then -- and the Heckler case --

Neil Gorsuch: Don't -- don't other --

Theodore B. Olson: -- specifically --

Neil Gorsuch: -- people rely on the attorney general guidance memos and documents? There's an entire industry in a lot of states involving 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 --

Theodore B. Olson: No, I think that is completely different.

They are not invited to participate into a program, to reveal the business that they're in, to come forward, to take advantage --

Neil Gorsuch: Well, they --

Theodore B. Olson: -- of benefits --

Neil Gorsuch: -- have a lot of economic interests at stake that, I think, under Fox and -- what we heard about earlier from Justice Breyer, they would say our economic interests are very real, billions of dollars are at stake, we've relied on the attorney general's guidance memos.

Theodore B. Olson: But there's -- but there -- but -- and I just would like to quote this one paragraph -- or one sentence from the Heckler versus Chaney decision itself.

"When an agency does act to enforce, the action itself provides a focus for judicial review because it imposes the coercive power of the government with respect to individual liberty and property," and that is the kind of decision that judicial review is intended to give.

Neil Gorsuch: Doesn't every prosecutorial decision affect individual liberty or property?

Theodore B. Olson: Prosecution -- prosecutorial --

Neil Gorsuch: I think the answer is yes, isn't it?

Theodore B. Olson: Prosecutorial decisions, yes, of course.

Neil Gorsuch: Okay.

Theodore B. Olson: This is a -- an announcement of a policy -- this is a reversal of a policy that the government created that triggered -- to use the words of this Court, engendered reliance interests.

And all we're saying 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 enforce murder cases or kidnapping cases or child porn cases or serious drug cases.

The -- it 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 -- if the government wishes to change a broad policy like this which affects so many people in so many serious ways --

Neil Gorsuch: Well, if I might ask a question about that if we're talking about the merits then, and then I -- I'll pass off the baton.

The reliance interests that we've -- we've talked about earlier, I -- I think your -- your friend on the other side would say we did address reliance interests in a paragraph and we could do it in 15 pages, but we'd say pretty much the same thing at the end of the day, and it would take another six years, and it would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this Court still on this issue.

Theodore B. Olson: It's -- it's what this Court has said --

Neil Gorsuch: What do you say to -- what do you say to that? And that's the line of argument, as I understand it, from the government.

Theodore B. Olson: Yes, I know it is.

And the government is saying all we needed was a few more words.

That is not what this Court has said with respect to administrative review of -- of -- judicial review of administrative decisions. You must have a rational explanation. It must make sense.

It must be contemporaneous. The -- I will get to the Nielsen memorandum which was not contemporaneous.

It was not a new decision.

Neil Gorsuch: I -- I understand that.

If you could just address it, though, on the merits.

Why was that insufficient, I think is one of the questions, and the other is what would -- what good would another five years of litigation over the adequacy of that --

Theodore B. Olson: We don't --

Neil Gorsuch: -- explanation serve?

Theodore B. Olson: -- we don't know what the administration would do.

The administration did not want to own this decision. When the Attorney General decided that this -- I'm making this decision because the

Neil Gorsuch: I guess I'm asking about the reliance interests question.

Theodore B. Olson: I -- I'm trying to get to that.

Neil Gorsuch: I -- if you -- I wish -- I wish you would.

Theodore B. Olson: Well the reliance interests were triggered, to use the words of this Court in the Fox case, the LTV case, and various other cases, those reliance interests were engendered by the decision by the government that caused people to come forward --

Neil Gorsuch: I understand that. The question is: What more would you have the government say about those reliance interests? If it's a failure of adequacy of explaining, what more is left to be said?

Theodore B. Olson: What -- what they could have said is that we understand all of these people, working for all these people, we understand what people are going through, provide a reasoned, rational explanation, to use the words of this Court just a few months ago in the Census case, to explain those things, to explain why a policy is being changed and make a contemporaneous decision. The Nielsen memorandum came along nine months later, was based upon a different individual -- by a different individual.

Brett M. Kavanaugh: But --

Theodore B. Olson: It didn't have an administrative record.

Brett M. Kavanaugh: Assuming -- well, go ahead and finish.

Theodore B. Olson: Well, well, it'll take another sentence or two.

But there were a lot of things wrong. The -- the Nielsen memorandum was not an independent decision.

She was bound just as the earlier administrator, acting administrator, was because the Attorney General said this is illegal.

Brett M. Kavanaugh: But the Nielsen memo then goes on to say, as you heard Mr. Francisco say to my question, that regardless of whether these concerns about the DACA policy rendered it illegal or legally questionable, there are sound reasons of enforcement policy to rescind the DACA policy. And it goes on to explain the policy rationales to rescind it.

So what is your --

Theodore B. Olson: Well --

Brett M. Kavanaugh: -- response to Mr. Francisco?

Theodore B. Olson: -- in the first place, they were not independent.

They were not contemporaneous.

They were not accompanied by an administrative record.

Brett M. Kavanaugh: She --

Theodore B. Olson: They were not --

Brett M. Kavanaugh: -- she says -- she says they're independent in that sentence.

Theodore B. Olson: She says they're independent.

Brett M. Kavanaugh: At least that's what Mr. Francisco says to you.

Theodore B. Olson: Well, 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 brief, and I quoted a moment ago, said DACA was unlawful; thus, we had to terminate it. Now -- and it does -- and it's not contemporaneous.

And then, basically, the policy decisions are saying we understand people may have relied on this, but that's just too bad.

Sonia Sotomayor: Mr. Olson --

Theodore B. Olson: That's basically all it was.

There were not -- and then the litigation risk issue --

Brett M. Kavanaugh: Right.

I got that.

Theodore B. Olson: -- is like a rubber stamp that the agencies can put on anything.

Every decision an agency makes could involve --

Brett M. Kavanaugh: Do you -- do you agree that the executive has the legal authority to rescind DACA?

Theodore B. Olson: Yes.

Brett M. Kavanaugh: Okay.

So the question then comes down to the explanation. And if it's the Nielsen memo paragraph on reliance that it comes down to, so which is the last --

Theodore B. Olson: Well, it wasn't -- it -- first of all, it was not explained --

Brett M. Kavanaugh: Just -- can I just ask the question in this way, which is, assume the Nielsen memo comes in and assume it comes down to whether the Nielsen memo adequately explained the reliance interests. What was the shortfall in the Nielsen memo in addressing reliance interests? Because she does acknowledge that a lot of people have relied.

She does it --

Theodore B. Olson: And she --

Brett M. Kavanaugh: -- briefly.

Theodore B. Olson: Yeah, she says just too bad.

People relied, so too bad.

Too bad about that. Camp versus Pitts specifically says, when an explanation for an agency decision is given, however curt, they must stand or fall on that explanation.

Brett M. Kavanaugh: Do you -- do you think --

Theodore B. Olson: This is a new --

Brett M. Kavanaugh: -- do you think you could explain the reliance or the justifications for the policy in a way that would overcome the reliance interests?

Theodore B. Olson: They would -- yes, I -- I believe that that's possible.

They could have -- they -- the analysis of costs and benefits explaining why an OLC decision is being thrown out the window, why a policy is being changed that the administration is -- that's exactly what you have said.

Sonia Sotomayor: Mr. Olson, can I go back to something Justice Gorsuch asked, which is what's the benefit of delaying this further? It has been -- at least looking at the deferred action decisions, the dozens that have gone on through the decades, Congress has responded, sometimes changing the policy, sometimes limiting it, sometimes expanding it. It -- it has responded. But the dynamic is very different, isn't it, when an executive says, I don't have the power, and when it says, even if I had the power --

Theodore B. Olson: Hypothetical.

Sonia Sotomayor: -- I choose not to do this.

Aren't the dynamics of what happens between Congress and the President dramatically different in those circumstances?

Theodore B. Olson: Exactly.

This is what is called virtual reality.

One said, I can't do -- I 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, Justice Sotomayor, and it's a very good one, someone say I might have done it if I'd had the power to do it, but I have no discretion, I have no power to do it, it -- we don't know what the administration would do if it had to make this decision and take ownership and accountability of this decision.

Sonia Sotomayor: That's your point about given the Attorney General decision and the law that says they have to change it. That's a very different circumstance than saying, even if I don't have to, I won't.

Theodore B. Olson: That's exactly right.

The administration would then have to explain we want to take responsibility for throwing these people out of work, removing people that came here when they were maybe two years old, who have not committed a crime, and who have -- and volunteered for this program, have -- have -- have conducted themselves properly and so forth.

Samuel A. Alito, Jr.: Mr. Olson, I -- I understand that litany.

But do you seriously want to argue that if this case were to go back and the agency were to say, again, exactly what General Francisco interprets the Nielsen memo as saying, giving all of these reasons and saying that each one is an alternatively -- is an independently sufficient basis for the -- the action, would -- would that be unlawful? Let's say they -- they go into great length in explaining every --

Theodore B. Olson: Well --

Samuel A. Alito, Jr.: -- every -- every factor, every basis.

John G. Roberts, Jr.: Certainly.

Theodore B. Olson: 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 is all about. That means the agency would have taken responsibility for making the consequences of those decisions, explaining why it thought about it and why it decided what to do. That's what your decisions require by judicial review.

John G. Roberts, Jr.: Thank you, counsel. Mr. Mongan.

Michael J. Mongan: Mr. Chief Justice, and may it please the Court: It was up to Petitioners to decide how to frame their decision to terminate DACA.

They could have taken responsibility for a discretionary decision, rescinding a policy that affects hundreds of thousands of lives. Instead, they chose to end the policy based on the ground that DACA was unlawful.

They told the public that the law deprived them of any discretion to continue it.

And when Judge Bates invited them to make a new decision, they stood by the old one. 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 costs to DACA recipients and the economy and their employers and families of terminating this policy, and also that it is founded on the incorrect legal premise that DACA is unlawful. This Court can review the lack of -- and affirm based on the lack of an adequate explanation for that ground or the fact that it is an incorrect conclusion and it is legal error. Now, if I can turn to the question of reviewability, the APA says that it commits agency actions that are committed to agency discretion by law are unreviewable. And the central point here is that when a agency founds a decision on a public announcement that it lacks any discretion to continue a policy, that can't fairly be described as committed to agency discretion in any meaningful sense. This is the concept that the Court reserved in Footnote 4 of Chaney, because that is not a discretionary choice that the law has committed to agency discretion. I think that it is critical for us to consider on the merits what my friend's position is with respect to DACA and deferred action.

My friend appears to agree that they can grant deferred action to compelling individuals, that they can grant work authorization to deferred action recipients, and they seem to agree that this is a very worthy class of individuals. So their position boils down to the assertion that the INA prohibits them from adopting a transparent framework that guides the exercise of individualized discretion with respect to this very compelling population of individuals. And that's not consistent with the broad authority that Congress has granted the Secretary under the INA and under 6 U.S.C. 202, and it's not consistent with historical practice, where 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.

John G. Roberts, Jr.: Well, but that -- that history is not close to the number of people covered by DACA.

Michael J. Mongan: Well, Your Honor, there's a history of class-based deferred action policies, and they are narrower, to be sure, but there are other class-based policies that have applied to hundreds of thousands of individuals. The family fairness policy, when announced, would have applied to up to 40 percent of --

John G. Roberts, Jr.: Fifty -- 50,000 people, right? That's the number that availed themselves of that policy?

Michael J. Mongan: That's right, because it was short-lived.

But, at the time it was announced, it was not clear that Congress was going to act, and the executive told Congress that this would apply to up to 40 percent of the undocumented population at the time. When Congress did act in that statute, they signaled their approval of the executive policy.

The statute 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 --

Sonia Sotomayor: That sounds -- that percentage was 1.5 million people, very comparable to this decision.

Michael J. Mongan: Yes, and at a time when the total undocumented population was much smaller than it is today. Now it -- it is critical for the executive, in an area where it has broad discretionary authority, to be able to set policies that channel the exercise of that authority, and this is a transparent framework that has the benefit of allowing for some measure of consistency and an even-handed approach in the exercise of deferred action.

Elena Kagan: General, suppose that this administration had not relied on legal grounds to rescind the policy, which is very different from what they did, but let's just suppose otherwise, that they had immediately and only relied on policy considerations. Are you saying even then it would -- the -- the rescission would be reviewable? And why would that be?

Michael J. Mongan: So, if it were a pure policy rationale, it would fall outside of Chaney.

It would be presumptively reviewable, as most agency actions are.

I think it would be challenged, and the challengers would likely argue that there's sufficient general standards in this area to allow for a minimal level of rationality review.

Elena Kagan: Why would it fall outside of Chaney, do you think?

Michael J. Mongan: I think that Chaney was very specific about the type of agency action that it addressed.

It was a concrete decision by the agency not to enforce a statute with respect to particular actors. Now that is different from a broad policy that guides the exercise of deferred action decisions prospectively.

And Chaney was founded on a recognized tradition of non-review. It pointed to cases going back to the 19th Century.

Samuel A. Alito, Jr.: But, when you say "particular actors," did it not apply to anybody who was facing execution using -- using -- by -- by lethal injection?

Michael J. Mongan: Well, as General Francisco has noted, there were broad policy considerations underlying the decision, but, as it was described by the Court, it was a decision not to enforce with respect to particular prison administrators and drug companies. And I think a -- a different point here is that --

Samuel A. Alito, Jr.: Well, hasn't that been FDA policy for all of the years since Chaney?

Michael J. Mongan: Sure, Your Honor, but that's a --

Samuel A. Alito, Jr.: Well, that's a big class of people.

Michael J. Mongan: 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 revocable 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 in Chaney.

Stephen G. Breyer: Well, what is it exactly? I mean, look, I -- I -- I've always thought, well, it means the individualized kind of decision, but, quite rightly, the -- the solicitor general reads me the language, which is programmatic.

But agency -- the United States has hundreds, thousands of agencies which do enforce all kinds of things, which make programmatic rules all the time. And so what -- it can't mean that Heckler is interpreting this, committed to agency discretion, to make serious inroads in the principle of judicial review, but everybody's struggling, including me, what's the line? And what's the line generally? It can't be so broad of all programs. It can't be so narrow as an individualized decision.

Just what is it?

Michael J. Mongan: Well, I think we can look to the language of the Chaney decision.

It describes a decision not to take enforcement action.

So perhaps if there is a broad policy that is a flat categorical decision that we will not take enforcement action, that would be one thing.

But the --

Stephen G. Breyer: Imagine an SEC rule or imagine an HHS rule and what it says is we are not going to take action to give a certain category of people their benefits.

Not reviewable? I mean, nobody would think that.

Michael J. Mongan: Well --

Stephen G. Breyer: So -- so -- so we're struggling still.

Michael J. Mongan: Yes.

Stephen G. Breyer: And I'm saying honestly I am struggling to get the right rule.

Michael J. Mongan: I -- I understand and there may be ambiguities at the margins here, but I do want to focus it on this case because, here, Acting Secretary Duke identified one ground for terminating this policy.

She said that she was -- she pointed to the Attorney General's letter, which concluded that the policy was unconstitutional and beyond statutory authority. And whether or not this might conceivably fall under Chaney, if it does, it still is subject to review.

Stephen G. Breyer: So you're saying at the minimum, one, an action to enforce is different from an action not to enforce.

Here, we have one to enforce.

And you're saying as well that the ground being purely legal, it is not a discretionary ground.

He said it was illegal, and, therefore, it is not within discretion.

Okay, have I got those two right?

Michael J. Mongan: That's right, Your Honor.

Stephen G. Breyer: Anything else?

Michael J. Mongan: I think those are what we have focused on in this case and that --

Neil Gorsuch: Well, counsel, I -- I'm sorry to interrupt there, but I actually had understood your answer on the second one to be different when you were posed that question by Justice Kagan.

And I thought you had indicated that whether it was based on policy grounds or on an illegal assessment wouldn't alter the reviewability analysis in your view. So I guess I'm just curious, which is it?

Michael J. Mongan: So, to be more precise, if we're operating in a world where we assume that Chaney applies, our point is, 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 can't --

Neil Gorsuch: That wasn't my -- I'm sorry, that wasn't my question. So -- so if -- 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 something slightly different to -- to -- to Justice Breyer.

Perhap -- perhaps I'm missing something.

Michael J. Mongan: Well, let me try and -- and clarify.

We believe that a broad policy is not the type of action that's referred to by Chaney, consistent with some of the D.C. Circuit authority that's been cited in the -- in the briefs that General --

Neil Gorsuch: Well, I think Justice Breyer -- that just takes us back to the beginning of the discussion with Justice Breyer, which is that can't be so necessarily because every prosecutorial discretion affects a lot of people.

You had that discussion with Justice Alito as well.

So I -- I -- I guess I -- I'll let you go, but I'm still struggling with this line that you're asking us to draw.

Michael J. Mongan: Well, it may be a difficult line to draw in the general case, but, in this case, with respect, it is an easy line to draw because we know that this decision was founded on a binding legal determination by the Attorney General that they could not continue this policy.

John G. Roberts, Jr.: What if it --

Michael J. Mongan: And that's the --

John G. Roberts, Jr.: -- what if it were less, as you view, in categorical terms? What if the Attorney General said, I've looked at this, it's -- it's -- it's a close case, but, on balance, I don't think we have the authority? Or if he said, 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?

Michael J. Mongan: No, Your Honor, we would argue that it's a type of action that's presumptively reviewable, 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 --

John G. Roberts, Jr.: Is it enough --

Michael J. Mongan: -- would be equipped to review.

John G. Roberts, Jr.: -- for him to say, look, I've got a decision from the Fifth Circuit that tells me this is illegal, it's been affirmed by the Supreme Court by an equally divided vote? That's enough for me to say we're not going to do it?

Michael J. Mongan: 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.

Elena Kagan: Well, even if you went through a legitimate balancing exercise, in other words, you talked about the law and what you were worried about, and then you talked about the reliance interests, and -- and then you said here's is what we're weighing and here's our judgment, do you think that that would be sufficient?

Michael J. Mongan: I think, as a general matter, an agency could base a discretionary decision on a -- a reasoned analysis like that. I suspect that if we saw that decision, we would challenge it under the particular circumstances here. But a court might agree that if there were some substantial and detailed consideration of the actual costs of this and the reasoned legal analysis, then maybe that would be, in a court's eyes, sufficient, but that's absolutely not what we have here.

John G. Roberts, Jr.: So --

Michael J. Mongan: We have a --

John G. Roberts, Jr.: -- so if this -- if you prevail and the case goes back, is it enough to say, look, we've read the amicus briefs that Justice Breyer pointed out about the reliance interests; we've read, you know, the Fifth Circuit's opinion in -- in the Texas litigation, presumably, they would cite that as well, would that be enough?

Michael J. Mongan: I think that it would have to begin with the deficiencies that Judge Bates identified, which is that the agency has not actually identified with any particularity the legal grounds that it's concerned with.

It does cite --

John G. Roberts, Jr.: Well, it's not --

Michael J. Mongan: -- the DAPA case.

John G. Roberts, Jr.: Yeah, I 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 say that's the basis on which I'm making this decision?

Michael J. Mongan: Your Honor, no, and I think Judge Bates is exactly right on this.

The reasoned explanation requirement is meant to facilitate judicial review and inform the public. And, yes, they point to the DAPA case, but 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 fact that --

Elena Kagan: Well, what would an adequate explanation look like? I mean, what do you think they would have to do to be in the clear on this?

Michael J. Mongan: Well, 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 DACA policy when they pointed to a case about a different policy, and then have some serious, and more serious than what we see in the Nielsen memo, accounting of the very substantial --

Stephen G. Breyer: But suppose they say, yeah, we'll do that, we'll do that.

And now the authorities are legion on -- that -- that you -- we should decide on the basis of that Duke memo. That was the decision, rested on that.

And we've heard that, okay. There's another case where Justice Fortas wrote, you shouldn't play ping pong with the agency, okay? 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, okay, right, DAPA was different; in DAPA, the court said that, here, the DAPA program makes 4.2 million people citizens with a run-around 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 run-around.

Okay, you point that out, they point -- okay, we're going to come out the same way.

It's close enough. So should -- what's the argument against playing -- as there is a sentence for, against you, playing ping pong with the agency?

Michael J. Mongan: I think that there is a very substantial meaning to a remand 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 DACA 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 termination. And if we are remanding in light of the lack of a reasoned explanation, my friend has --

Brett M. Kavanaugh: But it --

Michael J. Mongan: -- said --

Brett M. Kavanaugh: -- it was remanded by Judge Bates or -- or given time, and Secretary Nielsen did what you just said and said, even if DACA was legal, you heard Mr. Francisco on that, I would exercise my discretion to rescind, and then explained her consideration of the reliance interests. So why is -- there's already been, in effect, a remand.

Michael J. Mongan: There -- there is a boilerplate assertion in that memo of independence, I will grant you that.

I think if we look at the circumstances --

Brett M. Kavanaugh: Well, can I just stop you on boilerplate?

Michael J. Mongan: Yeah.

Brett M. Kavanaugh: I mean, this is a serious decision.

We all agree with that.

And -- and it was for the Secretary, presumably. And to say in writing, even if it's lawful, I nonetheless am going to exercise my discretion, I assume that was a very considered decision.

Now we can agree with it or disagree with the -- the merits of it, but it seems --

Michael J. Mongan: Yes, and I think it's important to look to the penultimate paragraph in that memorandum, where she conducts her collective weighing and she considers those policy rationales along with the legal rationales and say that, together, they outweigh the purported costs of terminating DACA. I also think it's critical to understand the context of this in that --

Brett M. Kavanaugh: So your point, just so I understand, I think this is your point, is that the legal considerations, while she said that, end up being intertwined in the subsequent paragraphs with the policy considerations?

Michael J. Mongan: That -- that's absolutely right.

And this was, after all, in a context of a memo that they submitted to the district court in ongoing litigation intended to defend and explain the prior decision. And I do want to note here that to the extent that my friend has suggested this is a new decision or a new action and has been presented as such, 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 said, this is a motion to revise your order with respect to the original Duke decision; we want you to sustain the Duke decision.

And the district court took them at their word and treated it accordingly. So I don't think that they can come to this Court and suggest that it is a fresh decision and every rationale is before the Court.

Under Camp --

Brett M. Kavanaugh: In that penultimate paragraph, what is the shortfall in the discussion of reliance interests, in your view?

Michael J. Mongan: 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 -- the reliance interests and the costs. 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 states, to the economy that would arise from this decision.

Brett M. Kavanaugh: Well, she does say that in a sentence.

If we remanded and it were detailed more fully, would it still fall short?

Michael J. Mongan: I think the great value of a remand is that --

John G. Roberts, Jr.: Please.

Michael J. Mongan: -- to date, they have not made a decision that actually takes ownership of a discretionary choice to end this policy.

And if they had a remand, if that is their intent, they could issue a new decision that actually does that so the public could hold them accountable for the choice they've made.

John G. Roberts, Jr.: Thank you, counsel. Five minutes, Mr. -- oh, I'm sorry, General Francisco.

Noel J. Francisco: Thank you, Mr. Chief Justice. I think I want to focus on three basic points.

First, Justice Kavanaugh, I want to make sure you have all of the relevant portions in the Nielsen Memorandum that I think make this all quite clear.

Page 122a, and I'm at the Regents Petitioners' appendix.

"In considering how DHS's discretion to establish enforcement policies and priorities should be exercised, the DACA policy properly was and should be rescinded for several separate and independently sufficient reasons." She then gives the first reason, the legality question. Then if you go to page 123a.

Second, "regardless of whether the DACA policy is ultimately illegal, it was appropriately rescinded by DHS because there are at a minimum serious doubts about its legality." Further down the page, third, "regardless of whether these concerns about the DACA policy render it illegal or legally questionable, there are sound reasons of enforcement policy to rescind the DACA policy." And then she sets out the enforcement policy. If you move to page 121 -- 125a, where she's discussing reliance, "I do not believe that the asserted reliance interests outweigh the questionable legality of the DACA policy and the other reasons for ending the policy discussed above." And, finally, when you get to the conclusion on page 126a, "for these reasons, in setting DHS enforcement policies and priorities, I concur with and decline to disturb Acting Secretary Duke's decisions to rescind the DACA policies." So, frankly --

Ruth Bader Ginsburg: But we don't know from --

Noel J. Francisco: -- I don't understand --

Ruth Bader Ginsburg: -- from all of that, we don't know how she would respond if there were a clear recognition that there was nothing illegal about DACA. Her whole memo is infected by the idea that this is, one, illegal.

It leaves substantial doubt about its illegality. If we take that out, then -- the independent ground that you're asserting, then she would be saying, we stand up and say this is the policy of our administration.

We don't like DACA and we're taking responsibility for that, instead of trying to put the blame on the law.

Noel J. Francisco: Respectfully, Your Honor, I very much disagree.

She sets forth explicitly on page 121a several separate and independently sufficient reasons. We own this.

We both own the policy rationale set forth in Secretary 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. First, it is four square within Chaney under the reviewability issue because Chaney, likewise, was -- rested on alternative legal grounds.

The FDA believed it lacked jurisdiction and policy grounds. And, secondly, it shows how this was plainly and eminently reasonable rescission, even if you disagree with us on the legal issue, because we've set forth separate and independent policy issues for the decision. So that was basically my first point. My --

Elena Kagan: But even what you just read, General, in that key paragraph where the Secretary weighs the -- the -- the -- the reliance interests against the reasons in her memo, everything's wrapped up.

And we really 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.

Noel J. Francisco: I -- 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 have rescinded it based on any of the independent grounds, which brings me --

Stephen G. Breyer: Look at the independent grounds.

Number one -- number one, "we should not adopt a policy of non-enforcement of those laws for broad classes and categories." Okay.

And Congress she thinks agrees with us. Well, I don't know.

Maybe they do; maybe they don't.

But, aside from that, that -- that's a conclusion. Look at the second one: "We should do it on a truly individualized case-by-case basis." That's a conclusion.

That isn't a reason. And the third one is a reason.

The third one: "It is important to project the message that leaves no doubt regarding the clear," et cetera, "enforcement of immigration against all class" -- that's an independent reason.

Noel J. Francisco: With respect, may I finish? May I finish?

John G. Roberts, Jr.: Yes.

Noel J. Francisco: I'm going to try to squeeze in two points in a single sentence.

Stephen G. Breyer: That's all right. Good luck.

I'm sorry.

Noel J. Francisco: The first -- the -- the first point is that I very much disagree. All of those articulate the basic same policy rationale that this is a law enforcement agency. They are against general policies that actively facilitate violations of the law. And the last point I will make is, while we 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 ultimate legality question because we simply cannot be forced to maintain a policy that this Court concludes that is illegal. So, if you decide to get there, then we do think that DACA is illegal and was justifiably -- was justifiably rescinded on that basis as well. Thank you, Your Honor.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.