The justices are expected to hand out a decision next spring. [screams] you will hear argument first in 587, the department of Homeland Security versus legions of the university of california and the related cases. General francisco,. In 2017, the fifth circuit held a daca in the expansion of daca was likely unlawful. The judgment affirmed by equally divided courts. In the face of those decisions, the department of Homeland Security reasonably determined that it no longer wish to retain the daca policy. Based on his belief that the policy was illegal with serious doubts about the illegality and the general proposition abroad not efficient policy. That decision did not violate the apa for two reasons. First, it is not subject to judicial review. The rescission ended up nonenforcement policy whereby the department agreed to not enforce against hundreds of thousands of illegal aliens. But the decision whether or not to enforce the law is committed to the agency under fuel discussion unless it restricts it and nothing requires the department to allow enforcement agencies to not enforce the law. To him this was reasonable. Daca was a measure that could be resented anytime. In the departments reasonable concern about his locality and his general opposition to broad nonenforcement policies provided more than a reasonable basis surrounding it. After all, an agency is not required to push its dubious power to not enforce the law to its logical extreme. Since the underlying confidence in the rule of law itself and conflicts with the agencies Law Enforcement mission. Id like to begin with the question, if the attorney general what to say he would going to not seek Death Penalty prosecution because he thought it was unconstitutional, that would be immune from judicial review. And if a new attorney general cayman and reversed the policy because he believed that the Death Penalty was constitutional, that would likewise be immune from judicial review. General, this is a strange element to your argument. You are arguing this is a discretionary matter is not reviewable because of the committed to Agency Discretion. And on the other hand you say the agency had no discretion because this program was illegal in other words the law requires you to drop daca. So how can you be committed when youre saying we have no discretion this is an illegal program. For two reasons your honor. First, we put forward both legal and policy rescission. So this case is on all four. And it put forth the legal and policy reason. The principal argument that lacks jurisdiction to regulate state use of drugs in carrying out the Death Penalty. The alternative argument, even if it had an authority to do so it would not have exercised. In this court found that that decision was committed to the agency unreviewable discretion. We are likewise making alternative legal and policy arguments. Secondly even if we were making purely a legal argument and were not, even if we were review would be foreclosed by the courts decision and ble, with the ble case held was actions committed to an agency unreviewable discretion, then it does not matter what it gives for taking the action, it still unreviewable in the specific example this court provided mbl keep he was decided not to indict for a purely legal reason and that indicated it was still reviewable because the Enforcement Discretion was committed to the agencys unreviewable discretion. So here we think we went under cheney and under ble. What is the attorney general say, he was exercised prosecution so discretion was awkward enforce the immigration laws. Not reviewable. I think you might run into chains exception for an application of authority. Theres a critical difference between that and this. Here we are enforcing the law, you can understand why congress or the courts might say that you can review not to enforce the law. Congress in fact passes law to be enforced and you can understand why it might restrict the governments ability to not enforce the law. Here we are enforcing the law and is very difficult to see why the congress whatever pass a law to say that something is illegal and try to hamstring the governments ability to enforce it. Thats why we think we clearly fall within the presumption that is an exercise of Enforcement Discretion and we dont fall within the cheney exception which would apply where congress itself restrict the discretion or a potential complete evocation of Enforcement Authority and cheney made clear and might also be just to understand what youre saying. That was suggested that the original daca is reviewable but the rescission of daca is not in other words are you suggesting there is an asymmetry in what is reviewable doesnt stand and fall together. There is because theres a difference in the two policies. Both of them to be curren clearh fall within cheney presumption and reflect an exercise of Enforcement Discretion that are presumptively unreviewable. The question is whether congress has done anything to restrict that discretion. With respect that this case had before a couple of years ago texas argued that the ina restricted the agency ability not to enforce the law. And you can understand why Congress Might try to hamstring the governments ability not to enforce the law of the parent and the sister. That fell within the cheney exception to the presumption. Here is what nobody is arguing on either side that the ina somehow restricts our ability to enforce the law and would be quite surprising if congress were to pass a law that says something is illegal and tries to restrict the governments ability from enforcing the laws that it passes. I think we fall square within the cheney presumption in the cheney exception does not apply. That exception applies the statue itself which restricts the discussion. And it can also apply with a complete evocation of Law Enforcement responsibility. That was one of the areas that cheney reserved in the footnote. Here we are not not enforcing the law, were enforcing in sibley nothing in the ina that says that the Homeland Security you are restricted in any way shape or form from enforcing the law. The response that you gave to me, i did not see did you memorandum said daca is illegal, i didnt see where it said whether its illegal or not as a matter of administration policy. We are withdrawing i did not see that. You said there was arguments. I saw only we cannot enforce daca, we cannot hear to daca because its illegal. Two responses, first of all, secretary nielsens memorandum clearly encompasses all of the different arguments and sets them forth in great detail per we think they nielsen memorandum clearly properly before the court in the District Court in washington, d. C. Asked for and we provided it in the District Court reviewed it so the only question is what does it mean. Secretary nielsen in her memorandum ratified secretary dukes decision for the reasons given using precisely the same mechanism that she used herself to issue the memo in the first place in the same mechanism that was issued to daca memo in the same mechanism to issue the document. The whole point of the rationalization role is to prevent courts from invading into executive branch decision. This is an old argument. There have been two bases print the first base is between camp davis and burner. Is it that you cannot review an agency without little thing about you cannot commit Agency Discretion by law. It does not mean that they are certain things the agency might do, dont review them even if theyre totally wrong. The cheney argument i thought the reason this is unreviewable is because there is a long history and tradition of a prosecutor saying i know that guy over there or that woman here and they bee may be guiltyn my discretion, no. I do not want to prosecute them. Its a long history of that. And if that history understandable power to give to a prosecutor is to be valid, courts stay out of it. That does not apply and what the issue is not a prosecutor make an individualized decision but rather an Agency Policy generalized, written down and i cant think of a reason why in such a case you would not review it in a court. So respectably, i strongly disagree because cheney itself involves not a prosecutor but an agency and not an enforcement action but a general policy. Heres what the fda said denying the petition brought by the inmates to have it regulate the state exercise indefinitely. This is a printable conclusion. For the reason given below, we conclude the use of lethal injection by state penal system is a practice over fda has no jurisdiction and therefore fda has no authority to take the actions your position request. According to your petition is denied. And later provided as the alternative rationale policy rationale. This is later, as a secondary and separate basis of denial we declined the matter of Enforcement Discretion to pursue supplies of drugs under state control that will be used for execution lethal injection. The fda clearly was announcing a categorical appalle apology thal not regulate the state use of drugs in carrying out the Death Penalty and not a criminal prosecution. I think its on all fours in favor of us. Here we have an exercise of Enforcement Discretion that is committed to the agency unreviewable discretion under cheney, it does not fall with under where they restrict the exercise of that description because are talking about enforcement nonenforcement and it does not fall under the complete application to deception but were talking about enforcement and not nonenforcement. What it what you just read also have made daca unreviewable to pick up on justice kagans question from earlier. No because it falls whats the distinction between fda and daca. The fda policy nobody was claiming that a statute restricted the fda ability to not enforce the law. Nobody made that argument. In the daca litigation, texas specifically argues that the ina did in fact restrict the agencys authority to exercise this Enforcement Discretion to not enforce the law. One of the things that texas argued in the daca case was the Agency Action in question conferred certain benefits on the individuals who were affected and if that was sufficient to make that reviewable, does the wind down of daca remove certain benefits that individuals would have and whawould that make this reviewa . I think the answer is no and no. And the reason why, first of law the rescission of daca does not resend any benefit. Those benefits are allowed to expire on their own terms. But even putting that aside, the worth a realization and other benefits are collateral consequence of the exercise across discretion itself. So they do not make the prosecutorial discretion itself reviewable otherwise every grant or denial would be subject to apa review because every grant is denial different action has collateral consequences that impact authorization. Ill give you hypothetical that makes it more concrete. Suppose a prosecutor has a Conversion Program and he says im not going to prosecute this particular category of drug defenses if the individual agree to drug treatment. It is the collateral consequence of the benefit that flows from the decision but it does not render the prosecution subject to review and likewise if a new prosecutor comes in and says unlike Drug Diversion programs, i want to have a tolerance that is not viewable either. But i do think the challenge to daca in the prior litigation was reviewable to be clear. It was reviewable because it fell within the cheney exception texas argued the fifth circuit agreed that the ina in fact restricted the department of Homeland Security ability to not enforce the law and frankly we agree with that. But the problem here, there is no argument by anybody or any possible argument that can be made that somehow the ina restricts the department of Homeland Security authority and enforces the law, after all Congress Wants the executive branch to enforce the law to pass the law. Is this an appropriate moment to move to the review ability and the merits . Anytime you want to move there i will move there. What argument on the other side make along the lines is similar to this through alliance interest that have grown up around daca and what to say whether they been adequately considered. Two things. First i would say to the extent there any reliance interest, their extreme limited. Daca was meant to be a temporary measure that can be rescinded at any time which is why it was only granted into your increments. I dont think anybody couldve reasonably assumed that daca was going to remain in effect in perpetuity. Even putting out to the site, here the agency considered the lyons and secretary nielsen did so explicitly but critically mitigating the reliance and it concluded the on that it did not justify perpetuity that facilitated violation for law by hundreds of thousands of individuals. If i understand your colleagues argument its not that secretary nielsen failed to consider alliance interest. If the paragraph that i believe petition 125 somewhere in there, that given the extent of their routreliance interest, more coue been said and it would not be a huge burden to require the government to see more. As i understand, thats the nature of the argument. I get i have a couple of responses. The first, i dont think it reflects an accurate understanding of apa review as this court has repeatedly made clear the only thing that matters is whether the agency, i think him quoting from the case where theyve completely failed to consider an aspect of the question. I dont think you can remotely argue under state farm that we completely failed to consider an aspect of the question. Secondly i think the secretary under the proper standard clearly satisfied the apa standard for considering reliance interest. She does so explicitly in the purchase of the memorandum that you reference in addition to what i point out the very beginning of the memorandum page two she specifically says that one of the things she considered was a judicial opinion reviewing the memorandum. All the District Court decisions. And when she gets to the specific discussion of her reliance interest. She says she is aware that people have ordered and lives in light of the daca decision. Is quite clear she is fully taken into account a whole reliance interest that were discussed in the decision and concluding they did not justify maintaining the policy. Id like to continue the same question. The best statement of the law in my mind is the old principle again is Justice Scalia writing for the court he says when an agency prior policy has engendered serious reliance interest and must be taken into account with this case i think. I counted. I had my law clerks count, not just the people who came in, the 700,000, theyve never been anywhere else but there is all kinds of reliance interest in accounting briefs in the court which states different kinds of reliance interest, 66 healthcare organizations, there are three labor unions and there are 210 educational associations, there are six military organizations. There are three homebuilders, 108 municipalities and cities, 129 religious organizations and 145 businesses. And they all list reliance interest applicable to them which are not quite the same, they are not quite the same as those of the 700,000 who had never seen in any other country. So i did read what you just read to me, do want to say anything about the statement you just read to me being adequate to take into account the broad range . Yes, your honor i do. The first thing i want to say state farm itself says you violate the apa where you entirely failed to consider important aspect of the problem. Heres where secretary nielsen considered the alliance interest including all the things you intereslisted in extra shady den the District Court decision that had ruled against us. What she says she is considered. Not in her memo. In your honor i think she does. But under this conception of apa review, daca likewise would have failed the review because there is not a single word in the daca memo itself explaining any of the potential costs or benefits or impacts on other people that the implementation to the daca program wouldve had. Ill take either one your honor. [laughter] if i understand secretary nielsens memo correctly. Secretary nielsen said she did have a conclusive restatement about the reliance interest but she waves them against what she calls the questionable think audi of the program. That assumes one of the things that world here to discuss. Which is the program was questionable in legality. If the Program Turns out not to be of questionable legality and in other words if some or many of us think the original program werent legal, how does her memo suffice to do that balance. For a couple of reasons. First because she set forth a separate and independent case justifying the rescission. First her belief that its illegal and second her belief that there serious doubts about the legality and her conclusion about the enforcement policy and the Homeland Security against these broadbased nonenforcement decisions. Anyone of those explicitly says in her statement about reliance she particular he says it outweighs this questionably legal program. What she is saying is given there is extremely reliance interest in the first place, any limited reliance that exist are outweighed by all the Different Reasons that she has articulated a separate and independent ground for rescinding daca. Thats only fair way you can read that memorandum. I have always had some difficulty understanding legality of daca. In the daca there was actually a process for obtaining a pathway consider c. And i saw the argument that daca but i dont see anything in the ina. That takes away the discretion of the agency in ordering the enforcement policy. We all know it has limited resources, it cant even when it wants to remove the vast majority of aliens that would happen. I have always had some difficulty in understanding what is wrong with an agency saying were going to prioritize our removal and for those people like the daca people who have incremented clients are lawfully employed who are paying taxes who pose no threat to our security and theres a whole list of prerequisites and that point to exercise how limited resources to try to get rid of those people. I still have an impossible time, i know youre going to argue contrary. I have three responses. Let me finish. So putting aside that the secretary and giving these extra reasons because none of this was in the duke memo in the basic administrative and you look what was first given to you and not what you out later but assuming you ignore that and even look at the nielsen memo, i think my colleagues have pointed theres a whole lot of reliance interest looked at including the very current president telling daca eligible people that they were safe under him. And that he would find a way to keep them here. And he has not. Instead he has done this and i think that has something to be considered before you resend a policy. Not just saying ill give you six months to do it to destroy your life. Putting all of that aside, im going to get to my question. And maybe we have an opportunity to hear the three answers. I wont forget the three. I know you wont. Where is all of this. Where is all of this really considered in a way and where is the political decision made clearly that this is not about the law, this is about our choice to destroy lives. Your honor, for responses now. I think ive added one. The first one is, i think the prior president did not, could not and hasnt made any kind of promise that daca would remain in effect opportunity because wouldve been impossible to make that fact. Every one of my friends on the other side has agreed that we could resend daca at anytime if at least in their view we did provide a little more detail of an excellent nation. That is foursquare against the notion there is significant reliance interest because all they say is we have to write a few more words. Putting that entirely ultimately i dont think you have to decide whether daca is legal or illegal because the other reasons are more than sufficient to justify rescission with a serious doubts about legality and opposition to broadbased nonenforcement policy. After all the Homeland Security the Law Enforcement agency. The Law Enforcement agency does not have to put the dubious power to not enforce the law to its logical extreme. Matthew set up the categories, everybody agrees, they dont have the results and you have to prioritize. Absolutely. That is my second point, my second point is daca goes far beyond diverting resources to higher priority targets which are absolutely right. Every Law Enforcement agency has to divert resources to targets. Daca goes further than that because it actively facilitates violations of the law by providing advanced pro variance with affirmative benefits like Work Authorization and Social Security benefits doing it on a categorical basis and significantly this is my third point, it has no limited principle. So it would be okay if it werent getting benefits . Theyre not going to immediately deport. I think if you provided just the advanced forbearance i think that would be a lot closer of the question. But here your coupling that with Work Authorization in my final critical point there is no principle. The theory on which daca rest, it allows the government to create a shadow for any care to gory that it makes low priority targets. A very neat least needs to locate work confers the broad discretion and there is simply nothing there. The ina does give quite a lot of discretion to a ministry of officers as you yourself have a minute and argued on previous occasions and impart here. Are you saying that daca was violated with any particular vision of the ina . What are you saying it violated . Its a big delegation that says you get to make national policy. So what did daca violate . Im saying you know how to address this issue because were more than sufficient. But secondly, were not saying theres a specific provision that it conflicts with what were saying when you adopt this broad and historically Unprecedented Program you need to locate to the authority to do so somewhere in the ina. They located the authority in the ina grant a broad discretion over National Immigration enforcement policy. I think the most that does is gives you the authority to set policy and priorities. There is a big leap between that and saying you can facilitate violations by hundreds of thousands of individuals to whom congress has repeatedly defined a pathway to lawful status. I dont think this is an issue you ultimately need to resolve, the other issues for rescinding daca on more than sufficient to justify including our serious doubts about the quality alone. Simply Law Enforcement policy is intimately reasonable for a long first agency to say im not going to push this authority to a logical extreme when it does three things, and undermines confidence in the rule of law itself and conflicts with the agency Law Enforcement mission and in a case like this it creates the serious possibility of a Court Ordered shutdown of the program rather than orderly wind down of the agency controlled. If daca was illegal, that means when the government was giving out these benefits it was acting illegally. Yes. Thats not always the case where the government acts illegally and await it affects other people and we go back and untangle consequences of that. Did secretary nielsen when she was considering a reliance interest was she looking simply to the questionable wind down or more generally for example to the application of the date factor. I think officers acted illegally but we dont go back and validate. I think both of the orderly wind down to certain extent takes into account the reliance interest. It does not account for everything but the whole idea that your giving people an opportunity to order their lives in a time period to allow them to do that. But she also specifically states in the memorandum that in addition the notion of the deferred action will take care of reliance interest and truly the circumstances and the way it was sporadically to address the scenario. We have three rules in this case. As mentioned, it is a foundational principle of Administrative Law to uphold Agency Action only on the ground that the agency invoked when it took the action. In which we looked in the dukes memo, not ms. Nelsons. Isnt that when it took the action. If so, i want to hear you say no. If so, when we affirm the District Court who 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 lets run. For two reasons your honor. Sending him back would make no sense because the agency has already acted. Secretary nielsen has already ratified secretary dukes decision for the reason that set forth in the memorandum and is not a rationalization, its a position of agency set forth by the agency itself and secondly, there is no reason why secretary nielsen should had to reinstate daca and then resend it again. Its not reinstated. There are 50 cases on this. If it is important, what you do is you say its good reason for Holding Status quo until we can go back in the court has affirm that, we hold the status quo and we go back now and look at the reasons beyond the contemporaneous reason which is the duke memo and then we see. Thats basically what her mama did. It did to fix. It explained the basis for secretary dukes decision but secondly it set forth her own independent judgment. You said 350 briefs of all these reasons that may go to whether you think her mama was sufficient but it does not go to whether her mama is an operative document in the litigation. Id like to point you to two places in her memoranda. 121 a of the petitioner appendix. This is the second router memoranda. It reflects the first thing, my understanding of the duke memorandum and second, why the decision to resend the daca policy was found. If you look at the end of her memorandum she states for the reasons in setting dhs enforcement policies and priorities, i concur with and declined to disturb acting secretary dukes decision to resend the daca policy. Does a nielsen memo ever say even if daca was lawful, i would still exercise my policy discretion to discontinue . Yes your honor. What sentence are you looking at. Two sentences 123a, after she says its a legal. 123a. Second regardless of whether the daca policy is illegal and was appropriately rescinded by the dhs because there are minimum serious doubts and third if you look fo further on the page the concerns about the daca policy illegal or legally questionable, there are sound reasons of enforcement policy to resend the daca policy. Thank you counsel. Mr. Olson. Thank you chief justice i made please the court. The governments termination of daca triggered abrupt tangible adverse consequences and substantial disruption in the lives of 700,000 individuals, their families, employers, communities, armed forces. That decision required the government to provide an accurate reason, rational and legally sound explanation, it utterly failed to do so asserting only the attorney general unexplained assertion that he had no discretion because daca was an unconstitutional exercise of authority by the executive branch. The decision overturned a fiveyear enforcement policy of deferred action that had enabled Daca Recipients under other unchallenged laws and regulations to apply for employment authorization, seek drivers licenses and other benefits. Its abrupt reversal removed a Condition Precedent to these rights and expose Daca Recipients and their employers to immediate potential coercive government measures it was impermissible based on unexplained, unsupported and erroneous conclusion that the policy that to a ministrations had enforced and implemented, has supported and implemented for five years, was unlawful and unconstitutional. The decision to resend daca was reviewable in this court has said several times just in the past few years that we start with a strong presumption of review ability of Agency Decisions, this is the strong presumption that the court described in the case just one year ago and less Agency Discretion is limited by law and theres no citation to any limitation in the law and imitation with review ability by the courts are quite narrowly construed in their rare circumstances, these are the cases, these light house or mock mining and cases are three cases within the past eight years were this court has talked about the presumption, renewability as a strong presumption exceptions narrowly construed in all three of the decisions were in amethyst decisions by this court. Would you say whenever a Law Enforcement agency has guidelines for the exercise of discretion and then tightens those guidelines to the cases that previously were prosecuted may not be prosecuted, that is Agency Action subject to review under the apa . I would not say that. This is a very, very different circumstance. This is an Agency Decision initially and attorney general refers to it as a legal description in the decision that is responsive to explicit congressional direction to dhs to establish enforcement priorities thats what daca was all about. It did not establish any status, it did not provide any benefits, it articulated enforcement priority which congress not only directed dhs to make but in fact required it to make because only 400,000 people im not sure that response to my question. Ill give you an example. Lets say there is a policy that a category of drug cases will not be prosecuted. Lets say cases involving less kilos of cocaine, cocaine cases with lesser amounts of drugs will not be prosecuted. In federal court is a matter of enforcement priority and that has changed. So the 5 kilos would be reduced to three i think the Justice Department or the attorney general establishes new enforcement to pornography or drug cases or things like that. That is completely different than this which singled out a category of persons 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 individuals relied upon that for five years in the administration without decision to respected the lives of hundreds of thousands of people which is engendered reliance which reverses not only a position of to a ministrations but the office of Legal Counsel changes policy and all were saying there is a presumption of renewability to that decision. Its review will be because daca conferred certain benefits, beyond the first prosecution. Is that what you decide. No the benefits 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 the entire period of time and the government has not challenged those. Those benefits and drivers license in the Work Authorization if you apply for it and come forward and identify yourself, put yourself and take risks. The whole thing was about the Work Authorization in these other benefits. Both administrations have said they are not going to deport the people so the deferred prosecution or the deferred deportation, that is not what the focus of the policy was. The other statute provided that but it was triggered by the memo. I dont understand putting what the policy was really about which is the Work Authorization and the other things off to one side is very helpful. I think one has to focus on the fact that this was congress authorized by the department of Homeland Security to identify enforcement priorities. Once it did because it was required to do so and had no choice, once it did so and identify the person and this is helpful to the agents in the field to identify which individuals are going to be subject to enforcement in which individuals are not. Under statute provided that benefit. You are correct that it triggers that but its triggered by other benefits and so forth but the government is opposed to those benefits given the individuals who are not in an enforcement priority category to support themselves rather than put themselves in the hands of the government to support them and become a part since they are not going to be for the short period of time, those other things that the government wanted to get rid of, the government should be challenging those. It should not be challenging a decision that is required by congress and that there be no mistake about it. Why this decision was made, the attorney general specifically said that daca was illegal and unconstitutional. I dont know where the unconstitutional came from because it did not come from the fifth circuit. Lets say it was illegal enforcement priority and theres no doubt about why this happened that refers to the question presented, is specifically says the original daca policy was unlawful and goes on to say it had to be terminated. There is no question about that. So the duke memorandum which was the attorney general decision in opinion under statute is enforceable and binding on the government agencies. There is a statute where it specifically says that prior to the duke memorandum had no discretion, note choice i think you moved on to the merits and im still struggling with Justice Alitos question on review ability. Can you help me understand what is the limiting principle, i hear a lot of facts, sympathetic facts that you put out there and they speak to all of us. What is the limiting principle between review ability here for a discretion that one might have thought wouldve followe fallenr cheney in the example Justice Alito wouldve gave. What is the limiting legal principle. In this case is a composite of principles and a determination that a categorical determination involving substantial number of people let me stop you there. With categorical and a large number of people, i think of a lot of decisions involving drug cases in the treatment of marijuana in our society under federal law and perhaps it would be cocaine 5 kilograms, whatever is in the attorney general memo affects a lot of people on a categorical basis every day. And i think you would not have us review those decisions. No. But may i refer its not categorical and not a large number. What is the limiting principle. Is a combination of factors which include the government inviting people to rely upon and make decisions based upon the policy and the provision of benefits connected, individuals making choices dont people rely on the attorney general guidance memos and documents and theres an entire industry and a lot of states involving marijuana that would argue there relying on memos issued by the attorney general that we will not enforce marijuana laws for example. Do they have a right i could get completely different. Theyre not invited to participate in the program to reveal the prison is certain to come forward. Theres a lot of economic estate under fox from Justice Breyer that was her economic interest are very real and billions of dollars are at stake and we relied on their major. I would just like to quote this one sentence from the cheney decision itself. When the agency does act to enforce, the action provides a focus for judicial review because it imposes the power of the government with respect to individual liberty and property and that is a decision that judicial review is intended. Prosecution yes of course, this is an announcement, a reversal of a policy that the government created that triggered into use the words of this court engendered reliance and all were saying you should be subject to review in the context in the big picture. It does not say that every decision by a prosecutor that im going to enforce murder cases or kidnapping cases or child porn cases, it does not cause individuals to come forward to participate in a program to make decisions businesses help institutions, the armed forces are making decisions based upon this. No one is saying the policy cannot be changed. But when the policy the government wishes to change a policy which affects so many people in so many serious ways. Some might ask a question ever talking about the merits in reliance interest that we talked about earlier, i think your friend on the other side would say we did address the alliance interest and we could do it but we say pretty much the same thing at the end of the day. And it it would take another six years in the leave a continuing cloud of uncertainty and continuing spaces and the political branches because it would not have a rule of decision from this court still on this issue. Its what this court has said. Thats the line of argument that i understand. Asked the government is saying we need a few more words. That is not what this court has said with respect to administrative review and judicial review of the ministries of decisions pretty must have a rational explanation, and must make sense and must be contemporaneous. I will get to the nielsen memorandum which is not contemporaneous, it was not a new decision. If you could just address the merits. Why was the insufficient is one of the questions and the other is what another five years of litigation over the adequacy we dont know what the ministration would do. The ministration did not want to own this decision and when the attorney general decided i making this decision im asking about the reliance interest. From trying to get to that. I wish you would. The reliance interest was triggered to use this in the ltv case and other cases, those reliance were engendered by the decision by the government that cause people to come forward. I understand that. The question what more with the government say about those reliance interest. Is a failure of our casey of explaining what more is left to be said. What they could have said, we understand all these people working and we understand what people are going through and provide a reason a rational explanation to use the words of these court in the census case to explain those things and explain why a policy is being changed and make it a contemporaneous decision. The nielsen memorandum came along nine months later and based on different individual individuals you do not have administrative record i would take another sentence or two but theres a lot of things wrong, the memorandum was not an independent decision. She was bound just as earlier administrator because the attorney general said this is illegal. But the nielsen memo goes on to say as you heard mr. Francis said regardless of whether these concerns about the daca policy rendered illegal or questionable, their sound reasons of enforcement policy to resend the daca policy. It goes on to explain the policy rationales so what is your response . They were not independent. They were not contemporary and not accompanied by administrative record. She says that independent. She said thats what mr. Francisco says. Mr. Francisco said that and she said that but they were not independent because she was bound by the attorney general decision and the government itself i quoted a moment ago, said daca was unlawful and terminated. It is not contemporaneous and basically the policy decisions are saying we understand people may have relied on this but that is too bad. That is basically all it was. The litigation risk issue is a rubberstamp that every decision and agency makes do you agree they have the Legal Authority to rescind daca . Yes. So the question comes down to the explanation and if its the nielsen memo paragraph on reliance that it comes down to. First of all it was not can i ask a question when the memo comes in and assume it comes down to whether the nielsen memo adequately explained the reliance interest, what was the shortfall in the nielsen memo in addressing reliance interest. She does acknowledge that a lot of people have lied and she briefly people relied too bad about that. It specifically says when explanation for an Agency Decision is given, they must stand or fall on the explanation. Do you think you could explain the reliance or the justification for the policy in a way that would overcome the reliance interest . Yes, i believe that is possible. The analysis of costs and benefits explaining why a decision is being thrown out the window, why a policies being changed with the administration, thats exactly what you have said. Can i go back to something that they suggest which is what is the benefit of delaying this further . At least looking at the deferred action in decisions and the dozens that have gone on through the decades, congress has responded sometimes changing the policy, sometimes limiting it and sometimes expanding. It has responded. But the dynamic is very different. When an executive says i dont have the power and when it says even if i had the power i choose not to do this. The dynamics of what happens between congress and the president dramatically different in the circumstance . Exactly. This is Virtual Reality when tina dont have the power to do it but if i did in the sky am i have done it for this reason, the short answer to your question, someone say and might have done it if i had the power to do it. But i have no discretion and no power to do it, if we dont know what the administration would do if you had to make this decision and take ownership and accountability. That your point of giving the attorney general decision in the law that says they have to change it. Its a very different customs circumstance even if i dont have to i will. That is exactly right. The administration would have to explain we want to take responsibility for throwing these people out of work, removing people that came here when they were two years old who have not committed a crime and volunteered for this program and conducted themselves properly you seriously want to argue that if this case were to go back in the agency were to say again exactly what general francis interprets the nielsen memo as sane as giving all these reasons and saying each one is an alternatively independently sufficient basis without be unlawful . Lets say they going to great links and explaining every factor every basis. If they explained and provided a rational explanation instead of just pushing the button or putting a rubberstamp on it, thats what judicial review is all about, the agency wouldve taken responsibility for making the consequences of those decisions explaining why you thought about it and why decided what to do. That is what require by judicial review. Thank you counsel. Mr. Chief justice mayo please the court. It was up to the petitioner to decide how to frame the decision to terminate daca. They couldve taken responsibility for discretionary decision rescinding the policy that affects hundreds of thousands of lives. Instead they chose to in the policy based on the ground that daca was unlawful. They told the public that the law deprived them of any discretion to continue. And when they invited them to make a new decision they stood by the old one. That is their prerogative but has the consequence that they have to defend the decision based on the legal rationale they originally offered in the decision is reviewable and cannot be sustained on that basis. The problem with the rational, yes they dont take serious account of the dramatic cost in the daca recipient in the economy and their employers and families in terminated in the policy. This court can review the lack of and affirm of adequate explanation for the ground or the fact it is incorrect conclusion in legal error. If i turn to the question of review ability, the apa says that it commits Agency Actions that are committed to Agency Discretion by law unreviewable. A Central Point here, when agency found a decision on the public announcement that it lacks any discretion to continue a policy that cannot fairly be described as committed to Agency Discretion in a meaningful sense. This is the concept that the court reserved in Footnote Four of cheney. That is not a discretionary choice that the law has committed to Agency Discretion. I think it is critical for us to consider on the merit what my friends position is with respect to daca and deferred action. My friend appears to agree that they can grant deferred action to compelling individuals and they can grant Work Authorization to deferred action recipients and they agree 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. He. Allowed to channel the exercise of recognized forms of discussion with respect to particular individuals in a defined class. On the history has brought close to the number of people covered by daca. Your honor, there is a history of deferred action policies and there are narrower to be sure but there are other laissez policies that apply to hundreds of thousands of individuals and family. His policy when announced, one of apply to up to 40 percent. 50000 people that is the Number Available themselves to the policy. Suit that is right because it was shortlived but at the time it was announced it was not clear what congress was going to act in the executive told congress that this would apply to our up to 40 percent of the undocumented population of the time. When contrasted act in that statute, they signaled their approval of the executive policy in the statute did have an effective dave for another year and Congress Said that this has brought intended to express and such approval of the existing executive policy and this example but there are more examples. That percentage was 1. 5 Million People very comparable to this decision. Despite yes and an undocumented population was much smaller than it is today. It is critical for the executive in an area where it has Broad Discretionary Authority to be able to set policy to channel the exercise of that authority and this is the transparent framework that has the benefit of allowing for some measure of consistency and even ended approach in the exercise of production. Suppose that this administration had not relied on legal grounds to ascend the policy. Very different from what they did but this just suppose otherwise. They had immediately and only relied on policy considerations are you staying even then, the rescission would be reviewable. And why would that be. If it were a peer policy rationale, it would fall outside of cheney and it would be presumptively reviewable. As most Agency Actions are. I say would be challenged and the challenger would likely argue that there is sufficient general candidates in this area to allow for a minimal loophole of rationality. But why would a fall of cheney do you say. Because cheney was very specific about the dive boat Agency Actions that its addressed. It was a concrete decision by the agency not to enforce the statute with respect to particular actors. That is different from a broad policy that guides the exercise of the deferred action decision respectively. Continuous founded on an recognized tradition of non review appointed to cases going back to the 19th century. Believes that particular actors, did not apply to anybody who is facing execution using my lethal injection. As general francisco had noted, there broad considerations underlying the decision but as it was described by the court, it was a decision not to enforce that perspective to a particular prison administrators and Drug Companies and i say a differen different. Here, is that hasnt that been fda policy in all of the ears since it cheney. Sure your honor but that big class of people. That is if a determination not to enforce as opposed to a policy guiding mature decisions about whether to grant deferred action which itself has brought a flat or final enforcement decision they have argued that deferred action is revocable at amy time and could be and its not a defense to removal so we are dealing with a different dive boat policy here. In the when the agency dealt with with cheney. I boys thought that it means the individualized kind of decision but quite rightly, the solicitor general reads in the language which is problematic. The agency of the united states, as hundreds and thousands of agencies which to report all kinds of things. Which makes problematic rules all of the time. And so what if you cant mean that, eckler is interpreting this committed to Agency Discretion to make serious inroads, in the principle of judicial review. But everybody struggling including me, what is the line. And what is the line generally. It can be so broad of all programs, it cant be so in a row as an individualized Decision Just was it. Sue and i say we can look to the language of the cheney news 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. Sit back and imagine an rule or imagine an hss rule, and what it says is we are not going to take action to give a certain category of people benefits. Not reviewable. Nobody would do that. So we are struggling still. Honestly i am struggling. I understand there may be ambiguities in the margins here but i do want to focus in on this case because here, acting secretary duke, identified one crown for terminating this policy. She said, that she pointed to the attorney general news letter which concluded that the policy was unconstitutional and beyond statutory authority. And whether or not this might conceivably fall on cheney, if it does, it still is subject using at the minimum, and action to enforce is different from an action not to enforce. Here we have one to enforce and you are staying as well that the ground mean to relieve legal, its not a discretionary ground. She said it was illegal. And therefore its not within discretion. I get this right. Though thats right. I say this will we had focus on this case. I am sorry to interrupt there but i actually understood your answered on seguin to be different when you are a pose that question by just asking. I thought youd indicated that when it was based on policy grounds or on illegal assessment, would it alter the reveal ability announces interview. So i guess im is it. To be more precise, if we are operating in a world where we assume that jeannie applied, our. Is regardless, this is reviewable because this is within an eight subcategory where the agency has exclaimed in a discretionary. It has said, we have no authority over the matter and that cant assuming im sorry that was my question. So if assuming, were leaving in a world which the agency had alternative grounds and one of which was policy grounds, i thought you told justice kagan, this would be reviewable. And now i thought i understood you just to see something slightly different to justice prior perhaps im missing something. Let me try and clarify. We believe that a broad policy has brought the dive boat action that is referred to cheney consistent with from the dc Circuit Authority in the brief, lets just take us back to the beginning of the discussion with Justice Program that cant be so necessarily because every proxy curl defects on people. I guess ill let you go but im still struggling with this line you are asking us to draw. You might be maybe difficult to draw the general case but in this case it is easy to drop because we know that this decision was founded on abiding legal determination by the attorney general that they could not continue this policy. One for less and categorical terms, the attorney general said, ive looked at this and its as close case but on balance, i dont say we have the authority or if he said i am pretty sure we dont have the authority but carmine, generally. Does your analysis change or is it only when he says as far as im concerned this is definite. Its illegal. To act we would argue your honor, there is a dive boat action that is presumptively reviewed mobile and the agency decides to basic decision on some discretionary choice but with an explanation or rationale was founded on litigation risk or legal doubt, that that would be rationale that is an offering to see look ive got a decision from the circuit it tells me that this is illegal is benefit by the Supreme Court and ate a divided vote. This enough for me to see were not going to do it. Its. Has brought enough to sustain the decision your honor in that on these circumstances given the nature of this program in the interest at stake, we dont say that amy genuine statement of legal doubt or litigation risk, would be adequate. But thats not what we have here. If you cant went through illegitimate balancing exercise, in other words, you talked about the law and what you are worried about in the talked about the reliance interest and then you said here is what we are weighing and heres a judgment. Do you say that that would be sufficient. Because a general Matter Agency good basic discretionary decision on reasoned analysis like that, i suspect that if we saw the decision, we would challenge it on the particular circumstances here in the court might agree that if there were some substantial and detailed consideration of the actual cost of this and the reason legal analysis and then maybe that would be in a Court Decision but that is absolutely not what we have here. Its neck so if you prevail in the case of back, is it enough to see, look we ran the Justice Breyer pointed out, about two reliance interest, we have read the fifth circuit news opinion in the texas litigation presumably they would cite that as well. Would that be enough. I say that it would have to begin with the deception and the deficiencies that judge dates are identified which is that the agency has not actually identified with amy particularities the legal ground and that is concerned with and it does we do need more than that. Youve got a court of appeals decision affirmed by Supreme Court. Cant you just see, that is the basis on which i am making this decision. Younger, no. And i say judge bates is exactly right in this, the reason that the explanation requirement is meant to facilitate judicial review and reform the public, and yet they. To the daca case. But there are or five theories of the legalities floating around writing to the notes and comments to the take care clause came claim and we dont know which grounds the agency based its decision on. So that is a lack of a recent bull explanation. Thats a net liquid exclusion looks like. We do say that they would have to do to be in the clear on this. I say they would have to at least identify the particular grounds they are relying on to facilitate further judicial review of their underlying legal conclusion and explain why they believe and applies to the dr. Policy when they pointed to a case about a different policy and then have some theory thats more serious than what we see in the nelson memo, accounting of the various substantial supposes a young will do that. And now, the authorities arent patient that you really should decide on the basis of that duke limo that that was the decision listed on the internet. Theres another case where justice fordyce road you shouldnt play pingpong with the agency. Okay. So they are staying this but a lot of their argument was. What is the point. Youll send it back, and the see okay, daca was different, and daca the court said that here are the Doctoral Program makes 4. 2 Million People citizens but the runaround of a normal way to be home citizens we have a child thats a citizen. And he that that has nothing to do with this case. None runaround. You pointed out. Its going to come out the same way, it is close enough. So should what is the argument against as there is a sentence for against you, thank pingpong with the agency. I say that there is a very substantial meaning to every man in this case. Your honor we dont truly know with the agency would do if confronted with a discretionary choice. If they knew of the daca were lawful and new secretary and the ministration had expressed broad something for this population, and they very woa might continue the policy or stop short of full selfdetermination. And if we are remanding in live of the lack worries an explanation, my friend sue neck it was remanded by judge bates a given time and secretary nielsen, did what you just said and even if daca was legal, you heard mr. Francis on that, i would exercise my discretion to resend. And then explain her consideration of the reliance interest so why in effect, remit,. There is a boilerplate position in the memo of independent spirit of a grant to that. I say if you look at the circumstances. Sue mckenna just opulent boiler plate. This is the serious decision we all agree with that. And it was for the secretary presumably. To see in writing, even if it is lawful but nonetheless, with weve god exercise and i would assume there was a very considered decision that we can continue agree or disagree with the merits of it but it seems. I say its important to look at the ultimate paragraph in the memorandum where she conduct her elective wing and she considered those policy rationale along with the legal rationale and see that together they outweigh the reported cost of terminating daca and i also say it is critical to understand the context of this. I say your. Is that the legal considerations why she said that, and of being intertwined in the subsequent paragraphs. With the policy consideration. Is absolutely right. This was after all the context of a memo that they submitted to the District Court and ongoing litigation intended to defend and explain the prior decision. I do want to note here that to the extent of my friends at suggested this is the new decision our new action and has been presented as such, has brought consistent with what they told the District Court in the District Court said quite plainly we notify me if there is a new decision in they submitted this memo and said this is the motion to revise your order with respect of the original decision want you to sustain the duke decision and the District Court took them at their word and treated accordingly. I dont say they can come to this court and suggest that it is a fresh decision and every rationale understand. In the ultimate paragraph what is the shortfall in the discussion of reliance interest in your field. One assure that there is much of a discussion. She expresses some sympathy and then ultimately said, then it is up to congress to consider and weigh the reliance interest in the cost. Its not a detailed discussion of the dramatic arm to hundreds of thousands of young people to their families and their employers in those states, to the economy that would arise from this decision. She does see that in the sentence. If we remanded into detailed more fully, but is still full short. I say the great value of every man, is that today, they have not mayday decision that actually takes ownership of a discretionary choice to in this policy. And if they had a remand, if that is their intent, they could issue a new decision to actually does that for the public and hold them accountable for the choice they made. Thank you cancer, five minutes, im sorry general francisco. Acute mr. Chief justice. I say i want to focus on three basic points. First kavanaugh, i want to make sure that you have all of the relevant portions that make up this all quite clear. 8122122a. Im at the appendix in considering how dhs discretion to establish enforcement policies and prior should be exercised, the dr. Policy properly was and should be rescinded for several separate independently sufficient reasons that she gives the first reason. The legality question. Then if you go to page 123a, second regardless of whether the dr. Policy is ultimately illegal, it was appropriately rescinded by the dhs because there are at a minimum serious doubts about its reality. President page, first regardless of weather the concern about the daca policy on illegal or legally questionable, there are sound reasons of enforcement policies to resend the daca policies and then she sets out the enforcement policy. And if you need to page 121 and 125a, where she is discussing reliance, quote i do not believe that the asserted reliance interest outweigh the questionable began count legality of the dr. Policy and the other reasons for into the policies discussed above and finally, we do get to the conclusion on page 126a, for these reasons, and sending dhs enforcement policies and priorities, i concur with and declined to deserve acting secretary dukes decision to resend the daca policy. So frankly i dont understand. We now know how she would respond if there were a clear recognition that there was nothing illegal about a daca. Our home memo is affected by the ambience that this is one illegal and substantial doubt but it is the legality. If we take that out, and that pending yoke is asserting that she would be staying, we stay on up and see this is the policy of our indiscretions. We dont like daca, and we are taking responsibility that. Instead of trying to blame on the law. To act respectfully, i very much disagree. She sits work especially in page 121a, several separate and independently sufficient reasons. We hunted. We both on the policy rationale, set forth in secretary nielsen news memorandum and also because we say this has brought subject to judicial review at all, we are the legal judgment set forth in secretary elses memorandum. Simply stated, the fact that we have got alternative and legal policy grounds for making this decision make two things clear. First it is foursquare within cheney and the reveal ability issue because cheney likewise, was arrested on alternative legal grounds and the fda believes the lack of jurisdiction and policy grounds and secondly, it shows how this was plainly and admirably reasonable decision even if you disagree with some legal reason. Because separate individual policy issues for the decision. So that was basically my first. Even what you just read general, and in that case, the key paragraph where the secretary ways the reliance interest, against the reasons for memo, everything is wrapped up and we really dont know how she wouldve conducted a balance and how she wouldve weighed those two if the legal had been taken away from it. Ethically disagree with that when she specifically says that she is setting forth separate and independent grounds justifying the decision. I dont say theres amy fair way of reading that based on amy of the independent rails which brings me independent grounds. Number one, we should not adopt a policy of this clause and cadres. Okay, she disagrees with us. I dunno, maybe they do in mindanao. Hillside from that, thats a conclusion could look at the second one. We should do it on the truly individual at casebycase basis. Thats a conclusion. That is the reason. And the third one is the reason. The third one is this important project message that these no doubt regarding the clear etc. Enforcement integration against, that is an independent reason. Man finished. I may try squeezing two points in a single sentence. The first. Is the very much disagree. All those articulate the basic same policy rationales that this is a Law Enforcement agency and they are against general policies that actively facilitate violations of the law the last. I will make his we dont say you need to address these cut legality questions, if you agree with us on amy of our other arguments, if you disagree with us. Another other arguments going absolutely must address the ultimately legality questions because recently cannot be forced to maintain a policy that this Court Concludes that it is illegal. So if you decide to get there, that we do say that daca is illegal and with justifiable rescinded on that basisnorth cae 50th if it. [applause]