No. 15-674

IN THE
Supreme Court of the United States


UNITED STATES OF AMERICA, ET AL.,
Petitioners,
v.
STATES OF TEXAS, ALABAMA, ARIZONA, ARKANSAS, FLORIDA,
GEORGIA, IDAHO, INDIANA, KANSAS, LOUISIANA, MONTANA,
NEBRASKA, NEVADA, NORTH DAKOTA, OHIO, OKLAHOMA,
SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH,
WEST VIRGINIA, WISCONSIN; PAUL R. LEPAGE, GOVERNOR,
STATE OF MAINE; PATRICK L. MCCRORY, GOVERNOR, STATE OF
NORTH CAROLINA; C.L. “BUTCH” OTTER, GOVERNOR, STATE OF
IDAHO; PHIL BRYANT, GOVERNOR, STATE OF MISSISSIPPI;
BILL SCHUETTE, ATTORNEY GENERAL, STATE OF MICHIGAN,
Respondents.



On Writ of Certiorari to the
U.S. Court of Appeals for the Fifth Circuit



BRIEF FOR THE CATO INSTITUTE,
PROFESSOR RANDY E. BARNETT, AND
PROFESSOR JEREMY RABKIN
AS AMICI CURIAE SUPPORTING RESPONDENTS




Josh Blackman
SOUTH TEXAS COLLEGE OF LAW
1303 San Jacinto St
Houston, TX 77002
(713) 646-1829
jblackman@stcl.edu
Ilya Shapiro
Counsel of Record
Randal J. Meyer
CATO INSTITUTE
1000 Mass. Ave. NW
Washington, D.C. 20001
(202) 842-0200
ishapiro@cato.org

i

QUESTIONS PRESENTED
1. Whether at least one plaintiff state has a
stake in this case sufficient for standing, when
evidence shows that the “Deferred Action for
Parents of Americans and Lawful Permanent
Residents” program (DAPA) will cause states
to incur millions of dollars in costs.
2. Whether, as the lower courts held in enjoining
it, DAPA—a historic change in immigration
policy that grants lawful-presence status and
work-authorization eligibility—is subject to
notice-and-comment rulemaking under the
Administrative Procedure Act.
3. Whether DAPA violates immigration law and
related statutes, when it contravenes the
detailed criteria that Congress enacted to
determine which aliens may be lawfully
present, work, and receive benefits.
4. Whether DAPA violates the president’s duty to
“take care that the laws be faithfully
executed,”
otherwise
known
as
the
Constitution’s Take Care Clause, Art. II, § 3.
Amici focus on the fourth question, as well as posing
and answering an alternative question:
5. Whether the writ of certiorari should be
dismissed as improvidently granted.

ii

TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................ i
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................ 1
SUMMARY OF ARGUMENT .................................... 2
ARGUMENT ............................................................... 5
I. The Take Care Clause Emerged from
Opposition to the British Monarch’s
Suspension Power .................................................. 5
II. The Take Care Clause Imposes on the
President the Affirmative Duty to Faithfully
Execute the Laws .................................................. 9
A. The President “Shall” Faithfully Execute
the Law ........................................................ 10
B. The President’s Duty to “Take Care” .......... 12
C. The President Has Executive, Not
Legislative Powers ....................................... 15
D. The Execution Must Be Done in Good
Faith ............................................................. 16
III. DAPA Violates the President’s Duty to
Faithfully Execute the Laws ............................... 20
A. DAPA Was Announced after Congress
Rejected the President’s Immigration
Agenda ......................................................... 20
B. DAPA Is a Legislative Act that Is
Inconsistent with Congressional Policy ...... 23
1. DAPA is not consistent with
congressional policy. ................................ 24
iii

2. Congress has not acquiesced to DAPA’s
expansion of executive action.................. 26
IV. Alternatively, the Court Should Dismiss the
Writ of Certiorari as Improvidently Granted ..... 30
CONCLUSION .......................................................... 33
iv

TABLE OF AUTHORITIES
Cases
Ashwander v. TVA,
297 U.S. 288 (1936) ............................................... 32
Carter v. Boehm,

(1766) 3 Burr. 1905 (Mansfield, L.J.) ................... 18
Clinton v. City of New York,
524 U.S. 417 (1998) ............................................... 15
Dames & Moore v. Regan,
453 U.S. 654 (1981) ............................................... 28
Faustino v. INS,
302 F. Supp. 212 (S.D.N.Y. 1969) ......................... 24
Hamdan v. Rumsfeld,
548 U.S. 557 (2006) ............................................... 23
Kendall v. U.S. ex rel. Stokes,
37 U.S. (12 Pet.) 524 (1838) ................... 3, 12, 13-14
Little v. Barreme,
6 U.S. (2 Cranch) 170 (1804) ............................. 3, 16
Massachusetts v. Painten,
389 U.S. 560 (1968) ............................................... 31
Mississippi v. Johnson,
71 U.S. (4 Wall.) 475 (1867) .................................. 20
New York Times Co. v. United States,
403 U.S. 713 (1971) .......................................... 10-11
NLRB v. Noel Canning,
134 S. Ct. 2550 (2014) .................................... passim
Nw. Austin Mun. Util. Dist. No. One v. Holder,
557 U.S. 193 (2009) ............................................... 25

v

Perry v. Perez,
132 S.Ct. 934 (2012) .............................................. 31
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015) ........................................... 23
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ................................. 30
The Pocket Veto Case,
279 U.S. 655 (1929) ............................................... 11
U.S. ex rel. Goodrich v. Guthrie,
58 U.S. (17 How.) 284 (1854) ........................... 14-15
United States v. Curtiss-Wright Exp. Corp.,
299 U.S. 304 (1936) ............................................... 10
United States v. Midwest Oil Co.,
236 U.S. 459 (1915) ............................................... 15
Warafi v. Obama,
No. CV 09-2368, 2015 WL 4600420
(D.D.C. July 30, 2015) ........................................... 22
Whitman v. Am. Trucking Ass’ns, Inc.,
531 U.S. 457 (2001) ............................................... 25
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ........................................ passim


Statutes
6 U.S.C. § 202(5) ....................................................... 25
8 U.S.C. § 1103(a) ..................................................... 25
8 U.S.C. § 1103(a)(3) (2015) ...................................... 25


vi


Constitutional Provisions
N.Y. Const. of 1777, art. XIX ...................................... 6
Pa. Const. of 1776, § 20............................................... 6
Vt. Const. of 1777, ch. 2, § XVIII ................................ 6
U.S. Const. Art. II § 1 ............................................... 10
U.S. Const. Art. II § 3 ............................................... 10

Other Authorities
Amos Kendall, Autobiography of Amos Kendall
(1872) ..................................................................... 13
Adam B. Cox & Cristina M. Rodríguez, The
President and Immigration Law Redux,
125 Yale L.J. 104 (2015) ............................ 24-25, 28
Address to Congress, July 4, 1861, in 2 Abraham
Lincoln: Speeches and Writings (1989) ................ 11
Bill of Rights, 1 W. & M., c. 2 (1689) ...................... 2, 5
Brett M. Kavanaugh, Our Anchor for 225 Years
and Counting: The Enduring Significance of the
Precise Text of the Constitution,
89 Notre Dame L. Rev. 1907 (2014) ..................... 11
Brief for the Petitioner, NLRB v. Noel Canning,
134 S. Ct. 2550 (2014) (No. 12-1281) .................... 11
Carrie Budoff Brown, How Obama Got Here,
Politico (Nov. 20, 2014), http://goo.gl/Xc4q56 .. 21-22
Charles Warren, The Supreme Court in United
States History: 1836-1918 (1926) .......................... 13
Charlie Savage, Power Wars (2015) ......................... 29
Declaration of Independence ...................................... 6
vii

E. Coke, Institutes ....................................................... 8
Eugene Gressman et al., Supreme Court
Practice (9th ed. 2007) ........................................... 31
Federalist No. 47 (Madison) ....................................... 6
Federalist No. 77 (Hamilton) ................................. 3, 9
Glenn Kessler, Obama’s Claim that George H.W.
Bush Gave Relief to ‘40 percent’ of
Undocumented Immigrants, Wash. Post
(Nov. 24, 2014) ....................................................... 27
H.Res. 639, 114th Cong. (2016) ................................ 29
House GOP panel: Defunding Immigration Order
'Impossible,' The Hill (Nov. 20, 2014),
http://goo.gl/97XxCq .............................................. 29
Immigration Ruling Stymies Obama and Those
Seeking His Job, N.Y. Times (May 28, 2015),
http://goo.gl/AVI7fb .......................................... 31-32
Josh Blackman, The Constitutionality of DAPA
Part I: Congressional Acquiescence to Deferred
Action, 103 Geo. L.J. Online 96 (2015). .......... 24, 26
Josh Blackman, The Constitutionality of DAPA
Part II: Faithfully Executing The Law,
19 Tex. Rev. L. & Pol. 215 (2015) ................. 7, 9, 22
Karl R. Thompson, OLC Memorandum Opinion
for the Secretary of Homeland Security and the
Counsel to the President, The Department of
Homeland Security’s Authority to Prioritize
Removal of Certain Aliens Unlawfully Present
in the United States and to Defer Removal of
Others (Nov. 19, 2014) ..................................... 25, 27
viii

Leonard Woods Labaree, Royal Government in
America: A Study of the British Colonial System
Before 1783 (1934) ................................................... 5
Letter to Alexander Hamilton (Sept. 7, 1792), in
10 Writings of George Washington 292 (1847) ..... 11
Michael D. Shear & Julia Preston, Obama Pushed
‘Fullest Extent’ of His Powers on Immigration
Plan, N.Y. Times (Nov. 28, 2014),
http://goo.gl/pgmfSK. ............................................. 21
Nicola W. Palmieri, Good Faith Disclosures
Required During Precontractual Negotiations,
24 Seton Hall L. Rev. 70 (1993) ...................... 17, 18
Noah Webster, American Dictionary of the
English Language (1828) ...................................... 12
Peter Ackroyd, Rebellion (2014) ................................. 5
Peter Margulies, The Boundaries of Executive
Discretion: Deferred Action, Unlawful Presence,
and Immigration Law,
64 Am. U. L. Rev. 1183, (2015) ........................ 27-28
Preventing Executive Overreach on Immigration
Act of 2015, H.R. 38, 114th Cong. (2016) ............. 28
Records of the Federal Convention of 1787
(Max Farrand, ed. 1911) ................................ passim
Remarks on Immigration (June 30, 2014),
http://goo.gl/5CeR2G ............................................. 21
Robert G. Natelson, The Original Meaning of the
Constitution’s “Executive Vesting Clause,”
31 Whitt. L. Rev. 1, (2009) .................................... 12
Robert H. Jerry, II, The Wrong Side of the
Mountain: A Comment on Bad Faith’s
Unnatural History, 72 Tex. L. Rev. 1317 (1994) .. 17
ix

Samuel Johnson, A Dictionary of the English
Language (1755) .................................................... 12
Statement of Administration Policy – H.R. 5759 –
Preventing Executive Overreach on
Immigration Act of 2014 (Dec. 4, 2014),
http://goo.gl/3GMTQo ............................................ 29
Steven Dennis, Immigration Bill Officially Dead,
Roll Call (June 30, 2014), http://goo.gl/fnMtSf ..... 21
Steven G. Calabresi, et. al., State Bills of Rights
in 1787 and 1791, 85 S. Cal. L. Rev. 1451 (2012) .. 7
Steven J. Burton, Breach of Contract and the
Common Law Duty to Perform in Good Faith,
94 Harv. L. Rev. 369 (1980) ............................ 18, 19
Univision News Transcript: Interview with
President Barack Obama, http://goo.gl/Nr2JJa ... 22
Va. Decl. of Rights § 7 (1776) ..................................... 6

1



INTEREST OF AMICI CURIAE1
The Cato Institute is a nonpartisan public policy
research foundation dedicated to advancing the
principles of individual liberty, free markets, and
limited government. Cato’s Center for Constitutional
Studies was established in 1989 to help restore the
principles of constitutional government that are the
foundation of liberty. Toward those ends, Cato
conducts conferences, publishes books and studies,
and issues the annual Cato Supreme Court Review.
Randy E. Barnett is the Carmack Waterhouse
Professor of Legal Theory at the Georgetown
University Law Center, where he directs the
Georgetown Center for the Constitution and teaches
constitutional law and contracts.
Jeremy A. Rabkin is a professor of law at George
Mason University School of Law. Prof. Rabkin’s
fields of expertise include administrative law,
constitutional history, and statutory interpretation.
Amici’s interest here lies in preserving the
separation of powers that maintain the rule of law at
the heart of the Constitution’s protections for
individual liberty. Amici agree that it is not for the
president alone to make foundational changes to
immigration law—in conflict with the laws passed by
Congress and in ways that go beyond constitutionally
authorized executive power.

1 Rule 37 statements: Petitioners and Intervenors-
Respondents filed blanket consents to the filing of amicus
briefs. Respondents consented to this filing in a separate letter.
No party’s counsel authored any part of this brief and no person
or entity other than amici funded its preparation or submission.
2

SUMMARY OF ARGUMENT
The question this Court has added to those
presented in the petition was well-founded. “Deferred
Action for Parents of Americans and Lawful
Permanent Residents”
(DAPA)—the president’s
euphemistically named policy of systematically
suspending and rewriting federal law, is not an act of
prosecutorial discretion. Instead, it is an effort, in the
face of direct congressional opposition, to nullify the
existing law because the president’s preferred law
was not enacted. Regardless of one’s views on
existing immigration law, DAPA conflicts with five
decades of congressional policy as embodied in the
Immigration and Naturalization Act (INA) and is
inconsistent with previous uses of deferred action.
Nor is it a good-faith effort to allocate prosecutorial
resources in a manner best suited to enforcing the
law. Instead, DAPA amounts to the president’s
refusal to enforce the law—in violation of his duty to
take care that the laws be faithfully executed.
The Take Care Clause originated in response to
the British monarch’s practice of suspending the law,
crossing the line between executive and legislative
functions. As the Constitution’s authors well knew,
the English Bill of Rights reasserted Parliament’s
legislative power in the wake of the Glorious
Revolution, eliminating “the pretended power of
suspending . . . or the execution of laws by regal
authority.” The Bill of Rights, 1 W. & M., c. 2 (1689).
Nevertheless, King George III routinely refused
his assent to laws enacted by colonial legislatures,
insisting that they contain a clause authorizing the
king to suspend their authority. This blurring of
legislative and executive power yielded the first two
3

grievances in the Declaration of Independence. Many
of the early state constitutions that predated the
federal Constitution also mandated that their
executives faithfully execute the laws—or prohibited
governors from suspending them.
In Philadelphia in 1787, early versions of the
Take Care Clause from the Committee of Detail
focused on the president’s “duly” executing the laws.
Later revisions from the Committee of Style and
Arrangement—staffed by James Madison and
Alexander Hamilton—shifted
the
focus
by
emphasizing the President’s obligation to “faithfully”
execute the laws. 3 The Records of the Federal
Convention of 1787, at 617, 624 (Max Farrand, ed.
1911); Federalist No. 77 (Hamilton).
A textualist examination of the Take Care Clause
reveals
that
its
fulcrum
is
the president’s
faithfulness to his enforcement duty. The Clause
specifies that the president “shall take care that the
laws be faithfully executed.” This duty entails four
distinct but interconnected components.
First, the president “shall” execute the law. The
duty is mandatory, not discretionary.
Second, he must act with “care” or “regard” for his
duty. Kendall v. U.S. ex rel Stokes, 37 U.S. (12 Pet.)
524, 612-13 (1838).
Third, the president must “execute” Congress’s
laws, not engage in a legislative act himself. Little v.
Barreme, 6 U.S. (2 Cranch) 170, 177-78 (1804).
Fourth, and most importantly, the clause requires
that the president act “faithfully”—literally, in good
faith. While no president can perfectly execute the
law, and he may have to prioritize his actions given
4

limited resources, he must nevertheless make a
faithful effort to execute the laws.
For two primary reasons, DAPA is inconsistent
with the president’s duty to take care that the laws
be faithfully executed. First, the circumstances that
gave rise to DAPA demonstrate that it is not a good-
faith exercise of prosecutorial discretion, but instead
a blatant effort to nullify a law that the president
sought unsuccessfully to repeal.
Second, DAPA is not an execution of the law, but
amounts to a legislative act: the granting of lawful
presence to a class of millions to whom Congress
expressly denied that status. Further, DAPA is not
consonant with congressional policy, nor has
Congress acquiesced in it. On the contrary, it is a
“measure[] incompatible with the expressed . . . will
of Congress.” Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
concurring). Ordinarily, this would mean that the
president
could
“rely
only upon his
own
constitutional powers minus any constitutional
powers of Congress over the matter.” Id. But as
Congress has virtually the entire power at issue
here—and there are no claims of inherent executive
power—that leaves the President with nothing.
Faced with a grave risk to the separation of
powers, the Court should affirm the judgment of the
Fifth Circuit and enjoin DAPA’s enforcement.
Alternatively, the Court should dismiss the writ of
certiorari as improvidently granted.


5

ARGUMENT
I. The Take Care Clause Emerged from
Opposition to the British Monarch’s
Suspension Power
One of the gravest abuses of the British monarch
in the 17th and 18th centuries was his assertion of a
“suspension” power. Most prominently, the Stuart
regents, King Charles II and King James II, issued
declarations suspending penal religious laws. At a
time when the French monarch had likewise
suspended enforcement of the Edict of Nantes—
ending toleration of Protestants and leading to their
mass emigration—Protestant Britons had great
reason to fear the use of a “suspension” power in the
hands of the abusive and Catholic Stuart monarchy.
See generally Peter Ackroyd, Rebellion 455-59 (2014).
Thus in the wake of the Glorious Revolution,
Parliament promulgated the English Bill of Rights of
1689, which repudiated “the pretended power of
suspending the laws or the execution of laws by regal
authority without consent of Parliament.” The Bill of
Rights, 1 W. & M., c. 2 (1689).
Despite this protection, the crown continued to
exercise lawmaking power in the Americas. King
George III insisted that no law enacted by colonial
legislatures was valid without his assent. See
Leonard Woods Labaree, Royal Government in
America: A Study of the British Colonial System
Before 1783, at 218-19, 266-67 (1934). Through his
governors, he often withheld assent from laws passed
by colonial legislatures unless the laws included a
suspension clause allowing him to halt their
execution. See id. at 224-27, 256-68. This insistence
allowed the king not only to dispense with the
6

implementation of statutes, but also to force changes
to their content—an essentially legislative power.
King George’s executive overreach served as the
basis for the first two grievances listed in the
Declaration of Independence:
He has refused his Assent to Laws, the most
wholesome and necessary for the public good;
He has forbidden his Governors to pass Laws
of immediate and pressing importance, unless
suspended in their operation till his Assent
should be obtained; and when so suspended,
he has utterly neglected to attend to them.
The Continental Congress was not merely concerned
with the king abusing his royal prerogatives, but
objected to his efforts to act as a lawmaker. See
Federalist No. 47 (Madison) (“The accumulation of
all powers, legislative, executive, and judiciary, in
the same hands . . . may justly be pronounced the
very definition of tyranny.”).
This cornerstone of the separation of powers was
a guiding principle for the new state governments.
The Virginia Declaration of Rights, authored by
George Mason in June 1776, declared that “all power
of suspending laws, or the execution of laws, by any
authority, without consent of the representatives of
the people, is injurious to their rights and ought not
to be exercised.” Va. Decl. of Rights § 7 (1776). The
post-revolutionary constitutions of New York,
Pennsylvania, and Vermont likewise imposed a duty
of faithful execution on their executives, separating
their role from the legislature’s lawmaking powers.2

2 N.Y. Const. of 1777, art. XIX; Vt. Const. of 1777, ch. 2, §
XVIII; Pa. Const. of 1776, § 20.
7

By 1787, six states “had constitutional clauses
restricting the power [of the executive] to suspend or
dispense with laws to the legislature.” Steven G.
Calabresi et al., State Bills of Rights in 1787 and
1791, 85 S. Cal. L. Rev. 1451, 1534 (2012) (citing
constitutions of Delaware, Maryland, Massachusetts,
North Carolina, New Hampshire, and Virginia).
This principle extended to the Constitutional
Convention. Josh Blackman, The Constitutionality of
DAPA Part II: Faithfully Executing The Law, 19 Tex.
Rev. L. & Pol. 215, 226-30 (2015). Pierce Butler of
South Carolina proposed “that
the National
Executive have a power to suspend any legislative
act.” 1 Records of the Federal Convention of 1787, at
103 (Max Farrand, ed. 1911). Elbridge Gerry of
Massachusetts retorted that “a power of suspending
might do all the mischief dreaded from the negative
[veto] of useful laws; without answering the salutary
purpose of checking unjust or unwise ones.” Id. at
104. On the question of “giving this suspending
power,” the states unanimously voted no. Id.
The Framers instead modeled the newly created
presidency on several of the state constitutions. The
president was denied any legislative powers of
suspension—other than a time-constrained veto that
could be overriden—and was required to exercise his
executive powers faithfully.
What ultimately became the Take Care Clause
went through several revisions that highlight the
importance the Framers placed on faithfulness. An
early version of the provision appeared in the
Virginia Plan. It vested the “National Executive”
with the “general authority to execute the National
laws.” Id. at 21. The Convention adopted a revised
8

version of the clause: the executive was “with power
to carry into execution the national laws.” Id. at 63.
There were no qualifications for faithfulness. A
proposal to give the president the power “to carry
into execution
the nationl.
[sic]
laws” was
unanimously agreed to. 2 id. at 32.
This provision was then sent to the Committee of
Detail, which considered two different formulations:
First: “He shall take Care to the best of his Ability.”
Id. at 137 n.6, 171. Second, John Rutledge of South
Carolina suggested an alternate: “It shall be his duty
to provide for the due & faithful exec[ution] of the
Laws.” Id. The final version reported out hewed
closer to Rutledge’s proposal: “He shall take care that
the laws of the United States be duly and faithfully
executed.” Id. at 185. The Committee of Detail
rejected the obligation that would have been linked
to the “best of” the President’s “ability,” and instead
focused on “due” and “faithful” execution.
Finally,
the
Committee
of
Style
and
Arrangement, which included James Madison and
Alexander Hamilton, received a draft requiring the
president to see that the laws be “duly and faithfully
executed.” 2 Id. at 554, 574. The Committee
eventually dropped the term “duly,” id. at 589–603,
so the final version read, “he shall take care that the
laws be faithfully executed,” id. at 600.3 This account

3 Although there is no record as to why “duly” was dropped,
and the focus placed solely on “faithfully,” it may have been an
effort to avoid the ambiguity created by the use of “due” in “due
process of law,” a common term of art which was later added in
the Fifth Amendment. See 2 E. Coke, Institutes *50. By
eliminating “duly,” the Framers directed attention to the
President’s faithfulness, rather than inviting dispute over what
9

is confirmed by the Hamilton Plan, which, though
“not formally before the Convention in any way,”
proved to be influential. 3 Records of the Federal
Convention of 1787, supra, at 617. Hamilton’s plan
eliminated the “duly” and focused on “faithfully”—
that “He shall take care that the laws be faithfully
executed.” Id. at 624. A year later, Hamilton echoed
this phrasing in Federalist No. 77, where he wrote
about the President “faithfully executing the laws.”
II. The Take Care Clause Imposes on the
President the Affirmative Duty to Faithfully
Execute the Laws
The text of the Take Care Clause imposes a duty
comprising four distinct but connected components:
First, the president may not decline to execute the
law, but “shall” execute it. Second, the president
must act with “care” to discharge this duty: he may
not act at whim, with favoritism, corruption, or
arbitrariness. Third, the president must “execute”
Congress’s laws, not engage in legislative. Fourth,
the president must execute the laws in good faith.
Only when the first three factors point toward a
constitutional violation should the president’s
motivations be questioned. But at this stage, good-
faith
or
bad-faith motivations
become
the
cornerstone of the Take Care Clause. See generally
Blackman, Faithfully Executing, supra, at 219-32.

sorts of legal actions are “due,” which is a question better suited
for courts. Consistently with the Constitution’s separation of
powers, therefore, executive enforcement must be faithful,
while judicial process of law must be due.
10

A. The President “Shall” Faithfully Execute
the Law
It bears emphasis how strong the language of the
Take Care Clause is. It is pitched at the highest
register of constitutional obligation. The president
shall—not may. He shall take care—not merely
attempt. He shall take care that the laws be
executed—not merely obeyed. And he shall take care
that they are executed
faithfully. No other
constitutional provision mandates that any branch
execute a power in a specific manner. Yet the
Constitution mandates that the president execute
the laws in a specific way: faithfully.
Most of the powers delegated by the Constitution
are granted to the discretion of the officeholders.
Congress, for example, has virtually no affirmative
duties. “Congress shall have Power” to make certain
laws, but need not do so. Likewise, Article II grants
the president powers, but imposes few mandates.
Even the duty to provide Congress with information
on the state of the union is left to his discretion
(“from time to time”). The Constitution imposes only
two unambiguous duties: he must take the Oath of
Office, U.S. Const. art. II § 1, and he “shall take Care
that the Laws be faithfully executed.” Id. art. II, § 3
(emphasis added).
These two provisions are closely parallel; the
president’s obligation and his authorization are
commensurate. However “vast” his authority, United
States v. Curtiss-Wright Exp. Corp., 299 U.S. 304,
319 (1936), however much “force . . . speed,” and
“efficiency” he may muster, Youngstown, 343 U.S. at
629 (Douglas, J., concurring), however “broad” his
“powers,” New York Times Co. v. United States, 403
11

U.S. 713, 741 (1971) (Marshall, J., concurring), his
obligation to execute the laws is equally vast,
forceful, and broad.
Presidents have long understood the Clause in
just this way. Cf. NLRB v. Noel Canning, 134 S. Ct.
2550, 2559 (2014) (“Long settled and established
practice is a consideration of great weight in a proper
interpretation of constitutional provisions’ regulating
the
relationship between Congress and
the
President.” (citing The Pocket Veto Case, 279 U.S.
655, 689 (1929)). In 1792, President Washington
wrote to Alexander Hamilton concerning the
enforcement of unpopular tax laws that it was his
“duty to see the Laws executed: to permit them to be
trampled upon with impunity would be repugnant to
it.” Letter to Alexander Hamilton (Sept. 7, 1792), in
10 Writings of George Washington 292 (1847).
Abraham Lincoln invoked the Clause as the basis of
his obligation to put down the Confederate rebellion.
Address to Congress, July 4, 1861, in 2 Abraham
Lincoln: Speeches and Writings 252 (1989). Recently,
the solicitor general acknowledged that the Take
Care Clause imposes a presidential “duty.” See Brief
for the Petitioner at 63, NLRB v. Noel Canning, 134
S. Ct. 2550 (2014) (No. 12-1281) (“That result would
directly undermine the President’s duty to ‘take Care
that the Laws be faithfully executed’ . . . .”).
The only possible exception is in cases where the
president finds a law to be unconstitutional. Brett M.
Kavanaugh, Our Anchor for 225 Years and Counting:
The Enduring Significance of the Precise Text of the
Constitution, 89 Notre Dame L. Rev. 1907, 1911
(2014). His oath, which requires that he preserve,
protect, and defend the Constitution—and the
Constitution’s specification that only laws made
12

pursuant to it are the supreme law of the land—
mandates that the president refuse enforcement to
unconstitutional laws. In all other cases, he must
take care that the laws be executed faithfully.
B. The President’s Duty to “Take Care”
The Constitution does not more than oblige the
president to act. It prescribes the manner in which
he must discharge his duty: the president shall “take
care.” Prof. Natelson explains that at the Framing,
“take care” was a term of art employed in “power-
conferring documents” in which officials assigned
tasks to agents. Robert G. Natelson, The Original
Meaning of the Constitution’s “Executive Vesting
Clause,” 31 Whitt. L. Rev. 1, 14 & n.59 (2009).
Today, “care” has a similar meaning to what it
bore two centuries ago. Dr. Johnson’s 1755 dictionary
provides
five definitions of
“care,”
including
“concern,” “caution,” “regard,” “attention,” and “object
of care.” 1 Samuel Johnson, A Dictionary of the
English Language 328 (1755). Noah Webster
similarly defined “care” to include “[c]aution; a
looking to; regard; attention, or heed, with a view to
safety or protection, as in the phrase, take care of
yourself.” 1 Noah Webster, American Dictionary of
the English Language (1828). Webster, like Johnson,
explained that the verb “care” could be prefaced by
“to,” as in “[t]o take care, to be careful; to be solicitous
for” and “[t]o take care of, to superintend or oversee;
to have the charge of keeping or securing.” Id.
(emphasis added).
Read against this background, the Constitution
imposes a presidential standard of care to supervise
his subordinates, ensuring that they enforce the law
with “caution” or “regard for the law.”
13

This Court’s most definitive statement of the
president’s duty to oversee his principal officers
arose during the confrontational presidency of
Andrew Jackson. See Kendall v. U.S. ex rel. Stokes.
37 U.S. (12 Pet.) 524 (1838). During the John Quincy
Adams administration, the firm of Stockton & Stokes
received important carrier contracts to assist the
Postal Service. Upon taking office in 1829, President
Jackson refused any service from the firm, which
was loyal to Adams. Amos Kendall, appointed
postmaster general in 1835, found that Stockton &
Stokes had been overpaid in credits by the Adams
administration and sought
to correct
it by
eliminating the credits. Kendall wrote in his
autobiography that when he raised the issue with
the President, Old Hickory “remitted the matter to
[his] discretion.” Amos Kendall, Autobiography of
Amos Kendall 350 (1872). Kendall knew what had to
be done, and removed the credits from the ledgers.
Congress did not approve of the nonpayment, and
passed a law requiring the solicitor of the Treasury
Department to review the accounts, settle the
differences, and order the postmaster general to
apply the credits. Kendall, 37 U.S. (12 Pet.) at 605.
Upon receiving the solicitor’s judgment, Kendall paid
out most of the credits, but withheld some that he
believed to be outside the congressional edict. This
act of defiance was purportedly done “by President
Jackson’s order.” 2 Charles Warren, The Supreme
Court in United States History: 1836-1918, at 44
(1926), available at https://goo.gl/juNJRT.
Stockton & Stokes continued to press their claims
after Martin Van Buren became president in 1837,
and “called on the President, under his constitutional
power to take care that the laws were faithfully
14

executed, to require the postmaster general to
execute this law, by giving them the further credit”
to which they claimed entitlement. 37 U.S. (12 Pet.)
at 538. The D.C. Circuit issued a writ of mandamus
compelling the postmaster general to apply the
credits in full. This Court agreed, and held that the
postmaster general must comply with positive
congressional edicts, lest the duty to take care
become a “dispensing power.” Id. at 608. The Court’s
analysis is worth quoting at length:
It was urged at the bar, that the postmaster
general was alone subject to the direction and
control of the President . . . and this right of
the President is claimed, as growing out of the
obligation
imposed upon him by
the
constitution, to take care that the laws be
faithfully executed. This is a doctrine that
cannot receive the sanction of this court. It
would be vesting in the President a dispensing
power, which has no countenance for its
support in any part of the constitution; and is
asserting a principle, which . . . would be
clothing the President with a power entirely to
control the legislation of congress, and
paralyze the administration of justice. To
contend that the obligation imposed on the
President to see the laws faithfully executed,
implies a power to forbid their execution, is a
novel construction of the constitution, and
entirely inadmissible.
Id. at 612-13 (emphasis added).
This Court has reiterated Kendall’s reasoning,
calling its principles “fundamental and essential”
and noting that without them, “the administration of
15

the government would be impracticable.” U.S. ex rel.
Goodrich v. Guthrie, 58 U.S. (17 How.) 284, 304
(1854); United States v. Midwest Oil Co., 236 U.S.
459, 505 (1915) (“The Constitution does not confer
upon [the President] any power to enact laws or to
suspend or repeal such as the Congress enacts.”).
Inexplicably, the solicitor general does not even cite
Kendall in his brief here.
C. The President Has Executive—Not
Legislative—Powers
It is axiomatic that Congress enacts the laws, and
the president faithfully executes them. As the history
of the British monarchy demonstrates, when the
president crosses the line into lawmaking, he is no
longer merely executing the law—even where the
legislature purports to vest the president with such
lawmaking authority.4 This construction of the Take
Care Clause provides a strong textual basis for what
has become known as the non-delegation doctrine.5
Chief Justice Marshall provided one of the first
explanations of the scope of the president’s executive

4 The president’s sole involvement in the formal legislative
process involves the veto power. Clinton v. City of New York,
524 U.S. 417, 449 (1998) (“If there is to be a new procedure in
which the President will play a different role in determining the
final text of what may ‘become a law,’ such change must come
not by legislation but through the amendment procedures set
forth in Article V of the Constitution.”).
5 For this reason, the solicitor general is incorrect to state
that the Take Care Clause “has no independent content,” Reply
Brief for the Petitioners at 11, U.S. v. Texas (2016) (No. 15-674)
(cert. stage), and merely “collapses” into the statutory
argument, Brief for the Petitioners at 73, U.S. v. Texas (2016)
(No. 15-674) (merits stage).
16

power under the Take Care Clause in Little v.
Barreme, 6 U.S. (2 Cranch) 170 (1804). During the
1799 quasi-war with France, Congress enacted a
statute that permitted the seizure on the high seas of
any U.S. vessel bound for France or its dependencies.
President Adams, in transmitting a copy of the act to
his military officers, reinterpreted the statute to
permit the seizure of U.S. vessels bound both “to or
from French ports.” Id. at 178 (emphasis added). On
that basis, a U.S. naval vessel seized a Danish ship,
the Flying Fish, as it traveled to Danish St. Thomas
from French Jérémie (in present-day Haiti). This
Court affirmed the Circuit Court’s finding that the
seizure was
not
authorized
by Congress,
notwithstanding President Adams’s “guidance.”
While President Adams’s statutory revision may
have been motivated by the fact that “[i]t was so
obvious that if only vessels sailing to a French port
could be seized on the high seas, that the law would
be very often evaded,” Chief Justice Marshall
recognized that Congress was clear as to how the law
ought to be executed. Id. at 178. The Adams
appointee explained that a president’s “high duty . . .
is to ‘take care that the laws be faithfully executed,’”
and Congress has “prescribed that the manner in
which this law shall be carried into execution, was to
exclude a seizure of any vessel not bound to a French
port.” Id. at 177-78. President Adams lacked the
power to rewrite the law, for this would be a
legislative act that violated the Take Care Clause.
D. The Execution Must Be Done in Good
Faith
Most importantly, after imposing the duty to
execute and the appropriate standard of care, the
17

Constitution defines how the president’s duty should
be executed: “faithfully.” The clause’s evolution
during the Constitutional Convention speaks to the
centrality of faithfulness to the Framers. As detailed
above, the initial draft from the Virginia Plan
imposed no qualifications. The president was simply
to “execute the National laws.”1 Records of the
Federal Convention of 1787, supra, at 21. The
Committee of Detail considered proposals that
restricted the duty to either (1) “the best of his
Ability” or (2) “the due & faithful exec[ution] of the
Laws.” 2 Id. at 171. It chose the latter. Finally, the
Committee of Style chose “faithfully.” Id. at 574.
The term “faithfully” also appears in the Oath
Clause. But there it is modified by “to the best of my
ability,” a phrase notably absent from the Take Care
Clause. This decision emphasizes the strength of the
Take Care Clause’s mandate: the oath’s requirement
that the president “preserve, protect and defend the
Constitution of the United States” is phrased in less
mandatory language than the command to “take
Care that the Laws be faithfully executed.”
The word “faithfully” is best understood to impose
a standard of good faith, a legal principle that
stretches back to antiquity.6 The concept of good

6 Nicola W. Palmieri, Good Faith Disclosures Required
During Precontractual Negotiations, 24 Seton Hall L. Rev. 70,
80 & n.26 (1993) (“Good faith in dealings and negotiation
practices was the element of binding value in these ancestral
societies . . . .”); Robert H. Jerry, II, The Wrong Side of the
Mountain: A Comment on Bad Faith’s Unnatural History, 72
Tex. L. Rev. 1317, 1319 (1994) (“The essence of a duty of good
faith existed at least two thousand years ago in the law of the
Romans.”).
18

faith was well-known in the 17th- and 18th-century
English common law of contracts.7
Professor Burton’s canonical work on the
common-law
duty
of
good-faith
contractual
performance helps to explicate the design of the Take
Care Clause. Steven J. Burton, Breach of Contract
and the Common Law Duty to Perform in Good
Faith, 94 Harv. L. Rev. 369 (1980). Good faith
performance “occurs when a party’s discretion is
exercised for any purpose within the reasonable
contemplation of the parties at the time of
formation—to capture opportunities that were
preserved upon entering the contract.” Id. at 373.
Acting in good faith does not—indeed cannot—
require 100-percent compliance with all legal duties.
The issue for courts to consider is not whether a
party does or does not have discretion. The question
of good-faith performance arises precisely when a
party has discretion. The “same act will be a breach
of the contract if undertaken for an illegitimate (or
bad faith) reason.” Id. The focus, then, is placed on
the promisor’s motivation
for exercising
the
discretion, and whether the compact permits it. In
order to determine good faith, an inquiry must be
made into the motivations of the promisor’s actions.
When a contract allows one party some discretion
in its performance, it is bad faith for that party to

7 See e.g., Carter v. Boehm, (1766) 3 Burr. 1905, 1909
(Mansfield, L.J.) (“Good faith forbids either party by concealing
what he privately knows, to draw the other into a bargain, from
his ignorance of that fact, and his believing the contrary.”).
Palmieri, supra, at 84 (“[G]ood faith and fair dealing
increasingly became a part of the common law of contract.”).
19

use that discretion to get out of the commitment to
which he originally consented. Id. Likewise, a party
to a contract who deliberately refuses to make efforts
to discharge his contractual duties—where he is able
to do so—is not acting in good faith.
To put this in constitutional terms, courts should
ask whether the president is acting within the realm
of
prosecutorial
discretion
that
Congress
contemplated when it enacted the statute. If the
answer is yes, the deviation from the law is in good
faith, and is thus permissible. However, if the
departure from the law is “used to recapture
opportunities
forgone
upon
contracting”—to
accomplish ends rejected by Congress—then the
action is not in good faith. When the president
bypasses a statute by relying on a claim to authority
Congress withheld from him, this is evidence that
the president is violating his constitutional duty.
Under this theory, what “matters is the purpose
or motive for the exercise of discretion.” Id. Good
faith exercises of discretion—such as efforts to
prioritize
the
limited resources available
for
enforcement—are within the executive’s proper
authority. But the same action is unlawful when it is
intended to evade the law-making authority of
Congress, based on a disagreement with the law
being enforced. An official’s deliberate refusal to
abide by the law—even if he professes an implausible
fidelity to it—runs afoul of the Take Care Clause. It
is not that any deliberate deviation is presumptively
forbidden. Instead, the deviation must be done in bad
faith, as an intentional means to bypass the
legislature. Motivation is therefore the factor that
distinguishes genuine prosecutorial discretion from a
pretextual usurpation. The determination of whether
20

a party has acted in good or bad faith is the sort of
ordinary judicial function whereby courts employ a
totality-of-the circumstances analysis.
III. DAPA Violates the President’s Duty to
Faithfully Execute the Laws
DAPA is inconsistent with the president’s duty to
take care that the laws be faithfully executed for two
primary reasons.8 First, the circumstances that gave
rise to DAPA show that it is a blatant effort to
undermine a law that the president tried and failed
to repeal. Second, DAPA is not an execution of the
law, but a legislative act. It is not consonant with
congressional policy, nor has Congress acquiesced to
this unprecedented executive action. Instead the
executive branch has acted as a lawmaker, in
violation of its duty under the Take Care Clause.
A. DAPA Was Announced after Congress
Rejected the President’s Immigration
Agenda
Like the mythical phoenix, DAPA arose from the
ashes of congressional defeat. On June 30, 2014, the

8 The government’s citation to Mississippi v. Johnson, 71
U.S. (4 Wall.) 475, 499 (1867), for the proposition that the
president’s actions are “not subject to judicial direction,” is non-
responsive to the question presented in this case. Brief for the
Petitioners at 73-74, U.S. v. Texas (2016) (No. 15-674). The
Johnson Court, which approvingly cited Kendall, rightly noted
that the courts could not issue orders directing the president’s
“exercise of judgment,” 71 U.S. (4 Wall.) at 499. But the plaintiff
states here do not seek such an order—or any injunction
compelling the president to act in any way. They have sued the
principal officers responsible for administering DAPA and have
asked this Court to enjoin the policy. The executive branch’s
faithful execution is well within the Court’s purview.
21

Speaker of the House announced that he would not
bring to a vote the comprehensive immigration bill
that passed the Senate a year earlier. Steven Dennis,
Immigration Bill Officially Dead, Roll Call (June 30,
2014), http://goo.gl/fnMtSf. Within hours of learning
that the bill was dead, the president announced that
he would act unilaterally. He explained that “I take
executive action only when we have a serious
problem, a serious issue, and Congress chooses to do
nothing. . . . [I will] fix as much of our immigration
system as I can on my own, without Congress.”
Remarks on Immigration (June 30, 2014), available
at http://goo.gl/5CeR2G. Of course, Congress did not
“do nothing”; its decision to reject the president’s bill
was an exercise of its constitutional authority.9
That presidential declaration commenced an
eight-month process where the White House urged
its legal team to use its “legal authorities to the
fullest extent.” Michael D. Shear & Julia Preston,
Obama Pushed ‘Fullest Extent’ of His Powers on
Immigration Plan, N.Y. Times (Nov. 28, 2014),
http://goo.gl/pgmfSK. By one account, the president
reviewed “more than [60] iterations” of the proposed

9 This is not the first time the Court has been confronted by
an unprecedented executive action that the administration has
justified based on congressional intransigence. See, e.g., Noel
Canning, 134 S.Ct. at 2599 (Scalia, J., concurring) (“The
majority protests that [the idea that the President gains no new
powers when Congress refuses to act] ‘should go without
saying—except that Justice SCALIA compels us to say it’; ibid.,
seemingly forgetting that the appointments at issue in this very
case were justified on those grounds and that the Solicitor
General has asked us to view the recess-appointment power as
a ‘safety valve’ against Senatorial ‘intransigence.’ Tr. of Oral
Arg. 21.”) (emphasis added).
22

executive action, expressing his disappointment
because they “did not go far enough.” Carrie Budoff
Brown, How Obama Got Here, Politico (Nov. 20,
2014), http://goo.gl/Xc4q56. Finally, on November 20,
2014—two weeks after mid-term elections—he
revealed DAPA.
Beyond the compelling political narrative, this
history resonates on a deeper constitutional plane.
From 2012 to 2014, while Congress considered the
legislation, the president consistently maintained
that he lacked the power to defer deportations of the
parents of U.S. citizens. He asserted that he had
already pushed the boundaries of his discretion to
the limit with Deferred Action for Child Arrivals
(DACA). His
comments
ranged
from broad
statements about executive power to a very specific
description of what would become DAPA. Faithfully
Executing, supra, at 267-280.
To quote one example, the president stated on
March 5, 2014, that “until Congress passes a new
law, then I am constrained in terms of what I am
able to do.” Univision News Transcript: Interview
with President Barack Obama, http://goo.gl/Nr2JJa.
Specifically, he conceded that the government could
not halt the deportation of non-citizen parents with
citizen-children. Citing congressional power to
distribute funding, he reiterated, “I cannot ignore
those laws any[]more than I could ignore, you know,
any of the other laws that are on the books.” Yet this
was precisely what DAPA accomplished.10

10 The president’s public statements, while not dispositive of
his constitutional obligations, are relevant to the Take Care
Clause calculus. See Warafi v. Obama, No. CV 09-2368, 2015
23

Such public statements were meant to indicate to
Congress that if it rejected the bill, the president
would comply with existing law (and not defer the
deportations of parents of citizens). But rather than
vindicating that expectation, the president suddenly
“discovered” authority to take precisely the action
Congress had refused to approve. In the face of
legislative defeat, the president decided to evade the
congressional commitment based on his own policy
differences. Cf. Youngstown, 343 U.S. at 583. At the
very least, this episode rebuts the presumption that
the president’s defense of DAPA was in good faith.
B. DAPA Is a Legislative Act that Is
Inconsistent with Congressional Policy
The administration would have this Court believe
that on November 20, 2014—two weeks after the
midterm election and four months after the House of
Representatives rejected the president’s preferred
reform bill—it suddenly determined that it was not
correctly prioritizing removals, and that it needed to
shake things up with new policy guidance. This
defies credulity, and “does not pass strict scrutiny, or
intermediate scrutiny, or even the laugh test.” Reed
v. Town of Gilbert, 135 S. Ct. 2218, 2239 (2015)
(Kagan, J., concurring). In fact, DAPA would have
the effect of granting lawful presence to some four

WL 4600420, at *5 (D.D.C. July 30, 2015) (“But war is not a
game of ‘Simon Says,’ and the President’s position, while
relevant, is not the only evidence that matters to this issue.”)
(emphasis added). Critically, these statements-against-interest
are not “self-serving press statements.” Youngstown, 343 U.S.
at 647 (Jackson, J., concurring); cf. Hamdan v. Rumsfeld, 548
U.S. 557, 623 n.52 (2006) (refusing the invitation to “defer[] to
comments made by [Executive] officials to the media”).
24

million aliens who are otherwise not lawfully present
in the United States, and grant them work
authorization. This policy is best viewed as a
legislative act because it is contrary to congressional
policy and inconsistent with past executive practice.
1. DAPA is not consistent with
congressional policy.
DAPA flouts congressional immigration policy,
embodied in the Immigration and Nationality Act
(INA), in two distinct ways. First, Congress has
singled out the potential beneficiaries of DAPA—
parents of citizens and lawful permanent residents—
for formidable obstacles to the receipt of legal status.
Josh Blackman, The Constitutionality of DAPA Part
I: Congressional Acquiescence to Deferred Action, 103
Geo. L.J. Online 96, 102-110 (2015). Congress
inserted these provisions specifically to allow the
United States to remove unlawful entrants with
post-entry U.S.-citizen children. See Faustino v. INS,
302 F. Supp. 212, 215–16 (S.D.N.Y. 1969). Congress
has provided only
limited avenues
for visa
availability and relief—and, for the most part, the
classes of alien contemplated by DAPA fall outside
the bounds of these provisions. DAPA is meant to
effectively nullify these statutory provisions with
which the Executive does not agree, thereby
rewriting the law in a way that better comports with
this Administration’s policy preferences.
Immigration scholars whom the government
favorably cites take the position that “the structure
of modern immigration law simply leaves us with no
discernable congressional enforcement priorities.”
Adam B. Cox & Cristina M. Rodríguez, The President
and Immigration Law Redux, 125 Yale L.J. 104, 155
25

(2015). If this is true—and nary an “intelligible
principle”
can be
found—then
the
relevant
immigration-law provisions constitute an invalid
delegation of legislative power to the executive.
The government has embraced a species of this
argument, finding a near-limitless font of authority
in 6 U.S.C. § 202(5) and 8 U.S.C § 1103(a). Critically,
the Office of Legal Counsel (OLC) did not rely on
such expansive interpretations of these provisions in
its initial defense of DAPA. Karl R. Thompson, OLC
Memorandum Opinion for the Secretary of Homeland
Security and the Counsel to the President, The
Department of Homeland Security’s Authority to
Prioritize Removal of Certain Aliens Unlawfully
Present in the United States and to Defer Removal of
Others, at 3-5 (Nov. 19, 2014) [hereinafter OLC
Opinion]. But the Justice Department changed its
tack during the course of litigation. Brief for the
Petitioners at 42, U.S. v. Texas (2016) (No. 15-674).
The Court should hesitate before reading these
provisions as granting
the government
the
unbounded authority it claims here. Such a
construction would render much of the INA
superfluous. Congress
“does
not
alter
the
fundamental details of a regulatory scheme in vague
terms or ancillary provisions,” Whitman v. Am.
Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001). The
source of the government’s purported statutory
authority could not hide an elephant, let alone the
Leviathan that is DAPA. To avoid constitutional
doubts, these provisions should be read as they are
written—to permit only authority within “the
provisions of this chapter.” 8 U.S.C. § 1103(a)(3)
(2015); see Nw. Austin Mun. Util. Dist. No. One v.
Holder, 557 U.S. 193, 205 (2009).
26

2. Congress has not acquiesced to
DAPA’s expansion of executive action.
Contrary to the government’s assertion, Congress
has not acquiesced in the unprecedented usage of
deferred action with DAPA. The government has
identified four prior exercises of deferred action for
certain classes of aliens that had been supported by
Congress: deferred action for (1) self-petitioners
under the Violence Against Women Act, (2) T and U
visa applicants, (3) foreign students affected by
Hurricane Katrina, and (4) widows and widowers of
U.S. citizens. Blackman, The Constitutionality of
DAPA Part I, supra at 112-121. But these past
practices do not support DAPA’s legality.
The scope of Congress’s acquiescence in the
executive’s use of deferred action is far more
constrained than the government suggests. Each
instance of deferred action was sanctioned by
Congress—and in each of them, one of two
qualifications existed: (1) the alien had an existing
lawful presence in the U.S., or (2) the alien had the
immediate prospect of lawful residence or presence in
the U.S. In either case, deferred action acted as a
temporary bridge from one status to another, where
benefits were construed as arising after deferred
action. These conditions bring deferred action within
the scope of congressional policy.
Neither limiting principle exists for DAPA. While
deferred action historically served as a temporary
bridge from one status to another—where benefits
were construed as arising within a reasonable period
after deferred action—DAPA acts as a tunnel to dig
under and through the INA. Unlike previous uses of
deferred action, DAPA beneficiaries have no prospect
27

of a formal adjustment of status unless they become
eligible for some other statutory grant of relief.
For a fifth precedent, the government has placed
increasing weight throughout this litigation on the
1990 Family Fairness Program. However, the OLC
Opinion released contemporaneously with the
announcement of DAPA, demonstrated—perhaps
unwittingly—that Family Fairness fits within the
“bridge” construct. That opinion noted that Family
Fairness “authorized granting extended voluntary
departure and work authorization to the estimated
1.5 million spouses and children of aliens who had
been granted legal status under the Immigration
Reform and Control Act of 1986 [IRCA].” OLC
Opinion at 14 (emphasis added).11
Precisely! The temporary relief afforded by
Family Fairness was “ancillary to Congress’s grant of
legal status to millions of undocumented persons in
IRCA.” Peter Margulies, The Boundaries of Executive
Discretion: Deferred Action, Unlawful Presence, and

11 Repeating the 1.5 million figure, the solicitor general
notes that the “INS could only estimate how many people were
potentially eligible and how many would actually come
forward.” Brief for the Petitioners at 56, U.S. v. Texas, (No. 15-
674). The actual estimate was closer to 100,000. See Glenn
Kessler, Obama’s Claim that George H.W. Bush Gave Relief to
‘40 percent’ of Undocumented Immigrants, Wash. Post (Nov. 24,
2014), http://goo.gl/gBvcEC. The origin of the 1.5-million
estimate seems to be an error in congressional testimony. INS
Commissioner Gene McNary himself told the Post, “I was
surprised it was 1.5 million when I read that. I would take issue
with that. I don’t think that’s factual.” Id. Ultimately, INS had
received only 46,821 applications by October 1, 1990. Id. The
next month, President Bush signed the Immigration Act of
1990, ending the temporary Family Fairness program.
28

Immigration Law, 64 Am. U. L. Rev. 1183, 1217
(2015) (emphasis added). That is, “those legalized by
. . . IRCA would become eligible to petition for the
admission of their spouses and children through the
already existing immigration system.” Cox &
Rodríguez, supra, at 121 n. 39. But there is no
ancillary statutory relief awaiting beneficiaries of
DAPA after the three-year grant of deferred action.
Further, unlike the Family Fairness plan, which
could be viewed as being
consistent with
congressional policy in 1990,12 DAPA has been
expressly repudiated. After the president announced
the program, the House of Representatives resolved
that the executive action was “without any
constitutional or
statutory basis.” Preventing
Executive Overreach on Immigration Act of 2015,
H.R. 38, 114th Cong.
(2016),
available at
https://goo.gl/naJviy.13 Audaciously, the president

12 Regardless of what Congress may have acquiesced to in
1990, in 1996 Congress repudiated that prior position through
subsequent legislation which had the effect of eliminating most
federal benefits for unlawfully present aliens that the
government had not yet removed. Brief for the Respondents at
49-51, U.S. v. Texas (2016) (No. 15-674) (merits stage).
13 This Court has
recognized
that
congressional
disapprobation offered after the president’s assertion of
authority is relevant in the separation-of-powers inquiry.
Youngstown, 343 U.S. at 583 (noting that “Congress has taken
no action” after President Truman’s communications); Dames &
Moore v. Regan, 453 U.S. 654, 688 (1981) (“We are thus clearly
not confronted with a situation in which Congress has in some
way resisted the exercise of Presidential authority” after the
suspension of the claims); Noel Canning, 134 S. Ct. at 2563
(“[N]either the Senate considered as a body nor its committees,
despite opportunities to express opposition to the practice of
intra-session recess appointments, has done so”).
29

then threatened to veto this obvious denial of his
executive power. Statement of Administration Policy
– H.R. 5759 – Preventing Executive Overreach on
Immigration Act of 2014 (Dec. 4, 2014), available at
http://goo.gl/3GMTQo. This sequence of events could
not more clearly put us in Justice Jackson’s third
tier, where presidential power is at its nadir. It is as
if Congress in 1952 had passed a bill declaring that
the seizure of the steel mills was unconstitutional,
and President Truman vetoed it!
Finally,
with
“a
hardball
twist,
the
administration set up [DAPA] so that it was self-
funded through applicant fees . . . . That meant
Congress could not block it by refusing to appropriate
taxpayer dollars for it.” Charlie Savage, Power Wars
660 (2015). The administration even boasted about
how DAPA’s fiscal invulnerability clipped Congress’s
purse strings. OLC Opinion at 26 (“But DHS has
informed us that the costs of administering the
proposed program would be borne almost entirely by
USCIS through the collection of application fees.”)
(citations omitted). Not even shutting down the
federal government—or defunding the Department of
Homeland Security—could halt it. House GOP panel:
Defunding Immigration Order ‘Impossible,’ The Hill
(Nov. 20, 2014), http://goo.gl/97XxCq. This chutzpah
demonstrates the president’s intent to evade his duty
to enforce duly enacted laws. Not only has DAPA not
received congressional approval, it is expressly
designed to flout Congress! Indeed, the House of
Representatives recently voted to authorize an
amicus brief supporting plaintiff states here. H.Res.
639, 114th Cong. (2016), https://goo.gl/QKgQxv.

In light of this clear disjunction between the
executive and legislative branches, DAPA operates in
30

what Justice Jackson referred to as the president’s
“lowest ebb” of authority, which “must be scrutinized
with caution” by the courts. Youngstown, 343 U.S. at
637-38 (Jackson, J., concurring). Such scrutiny
reveals that while deferred action has been
authorized by Congress in the abstract, here the
president has employed the practice to bypass
Congress. DAPA is not a humdrum exercise of
prosecutorial discretion, based on modest new
guidance so DHS can prioritize resources. Instead it
is an unprecedented effort to bypass Congress, to
executively enact a policy the legislature rejected.
IV. Alternatively, the Court Should Dismiss the
Writ of Certiorari as Improvidently Granted
Were this a run-of-the-mill case, the government’s
petition for cer