Policies. That decision did not violate the apa for two reasons. First, it is not subject to judicial review. The decision ended a nonenforcement policy whereby the department agreed to not enforce it against hundreds of thousands of illegal aliens. But the decision whether or not to enforce the law is committed to the agencys discretion unless it restricts it and nothing requires the department , a Law Enforcement agency, to not enforce the law. Second, this was reasonable. Daca was a measure that could be rescinded at any time, and the departments reasonable concern about its legality and its general opposition to broad nonenforcement policies provided more than a reasonable basis for ending it. After all, an agency is not required to push its legally dubious power to not enforce the law to its logical extreme. Undermines competency in the rule of law itself and conflicts with the agencies Law Enforcement mission. I would like to begin with the review ability question. If the attorney general what to were to say he would not seek Death Penalty prosecution s because he thought it was unconstitutional, that would be immune from judicial review. And if a new attorney general came in and reversed the policy because he believed that the Death Penalty was constitutional, that would likewise be immune from judicial review. , you have a strange element to your argument. Because you are arguing this is a discretionary matter, it is not reviewable because it is committed to Agency Discretion. 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 reasons for the 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 was even if it had an authority to have hadt would not the means to exercise it. In this court, we found that that decision was committed to the agency unreviewable discretion. We are likewise making alternative legal and policy arguments. Sorry, go ahead. Secondly, even if we were making purely a legal argument , and we are not, even if we review it, it would be by the courts decision, and with the was committed to an agency unreviewable discretion, then it does not matter what it gives for taking that action because it is still unreviewable and the discretion was committed to the agencys unreviewable discretion, so we think we went under we win under cheney and under ble. What does the attorney general say, he was exercised discretion so of they would enforce immigration laws . Was it not reviewable . I think you might run into cheneys 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 so it cannot 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 it is very difficult to see why the congress would pass a law to Say Something was illegal and then try to hamstring the governments ability to enforce it. Thats why we think we clearly fall within the cheney presumption that it is an exercise of Enforcement Discretion, and we dont fall within the cheney exception which would apply where congress itself restricts the discretion or there is a potential complete evocation of Enforcement Authority and cheney made clear and might also be just understand what youre saying, general, that would suggest that the original daca is reviewable but the rescission of daca is not . In other words, you are suggesting there is an asymmetry in what is reviewable and does not stand and fall together . There is because theres a difference in the two policies. Both of them are clear and both 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 to the case you had 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 laws that it passes, and the fifth circuit agrees, so that fell within the cheney exception to the presumption. Here, though, nobody is arguing. Nobody on either side is arguing that the ina somehow restricts our ability to enforce the law , and it would be quite surprising if congress were to pass a law that says something is illegal and then tries to restrict the governments ability from enforcing the laws that it passes. Again, i think we fall foursquare within the cheney presumption in the cheney exception does not apply. That exception covers where the statute itself restricts the discussion, and it can also apply with a complete abdication of Law Enforcement responsibilities. That was one of the areas that cheney reserved in the footnote. Here we are not not enforcing the law, we are enforcing the law and there is 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 i thought that would bring to cause the duke memorandum that 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 were alternate arguments. I saw only the first, we cannot enforce daca, we cannot hear to daca because its illegal. Adhere to daca because its illegal. Two responses, your honor. First of all, secretary nielsens memorandum clearly encompasses all of the different arguments and sets them forth in great detail, and we think the nielsen memorandum clearly properly before the court in the District Court in washington, d. C. Specifically asked for it, and we provided it. 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 secretary duke used herself to issue the memo in the first place, the same mechanism that was used to issue the daca memo and 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. The first 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 not certain things, but it means there are certain things the agency might do and 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 may be guilty, but in my discretion, no, i do not want to prosecute them. There is a long history of that. History and understandable power to give to a prosecutor is to be valid, courts stay out of it. That does not apply. What is at issue is not a prosecutor making an individualized decision but rather an agencys policies generalized, written down and i cant think of a reason why in such a case you would not review it in a court. Slow, respectively, your honor, 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 of the Death Penalty. This is the conclusion. For the reason given below, we conclude the use of lethal injection by state penal system which fdactice over has no jurisdiction and therefore fda has no authority to take the actions your petition requests. Accordingly, your petition is denied. And later provided as the alternative rationale, policy rationale. And it says later, thus, as a secondary and separate basis of denial, we decline as a matter of Enforcement Discretion to pursue supplies of drugs under state control that will be used for execution by lethal injection. The fda clearly was announcing a categorical policy that it was not going to regulate the state use of drugs in carrying out the Death Penalty, and it was not a criminal prosecution. I think it is all fours in favor of us. Here we have an exercise of Enforcement Discretion that is committed to the agency unreviewable discretion under cheney, and it does not fall with under where they restrict the exercise of that description discretion because here we are talking about nonenforcement and enforcement, and it does not fall under the complete exception of cheney because we are talking about enforcement and not nonenforcement. Wouldnt what you just read also have made daca unreviewable to pick up on justice kagans question from earlier . No, because it falls what is 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 dapa 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 dapa 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 if it does, would that make this reviewable . No and no. I think the answer is i think the answer is no and no. And the reason why, first of law first of all, 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 realization of other benefits are collateral consequence of the exercise across discretion itself. So they do not make the prosecutorial discretion itself reviewable because otherwise, every grant or denial would be subject to apa review because every grant is denial different action has collateral consequences that impact authorization. If i could give you a hypothetical that makes it more concrete, suppose a prosecutor has a drug Conversion Program and he says im not going to prosecute this particular category of drug defenses if the individuals agreed to enter drug treatment. Drug treatment is a 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 i do not like Drug Diversion programs, one to have a zerotolerance program, that is not reviewable 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 Securitys 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 enforce the law. After all, Congress Wants the executive branch to enforce the law so it would pass. Is this an appropriate moment assuming review ability and the merits . Anytime you want to move there, i will move there. What argument on the other lines aes along the similar to this through alliance interest that have grown up around daca and what to say say whether they have been adequately considered . Two things. First, i would say to the extent there are any reliance interest, they are extremely 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 that to the side, the, the agency considered and ite interest concluded that beyond that, it did not justify perpetuity that facilitated violation for law by hundreds of thousands of individuals. Im sorry. Continue. Your understand colleagues argument on the other side, it is not that secretary nielsen failed to consider alliance interest. If there is a paragraph, i believe petition 125 somewhere in there, but given the extent of their alliance interest and the past, more couldve been said and it would not be a huge burden to require the government to see more. As i understand, that is the nature of the argument. I get that. 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 i am quoting from the case law, where they have 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 important aspect of the question. Secondly, i think that secretary clearly israndum under the proper standard that satisfies 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, where 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 reliant interest, she says she is aware that people have in light of the daca decision. Quite clear she is fully taken it is it 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 laws. He says when an agency prior policy has engendered serious reliance interest, it must be , and that iscount with this case i think. I had my law clerks count, not just the people who came in, the 700,000, theyve never been anywhere else, but there are all kinds of reliance interests. I have counted briefs in this court, which im sure you have, which states different kinds of reliance interests. There are 66 healthcare organizations, there are three labor unions, there are 210 educational associations, there are six military organizations. There are three homebuilders, five states, plus those involved, 108 municipalities and cities, 129 religious organizations and 145 businesses. And they all list reliance interest, or most of them 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 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 that broad range . Yes, your honor, i do. The first thing i want to say is what state farm itself says, and i have the quote 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 just listed in extra shady detail in the District Court decision that had ruled against us. What she says she is considered. Not in her memo. 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 would have had. Go ahead. Take either one, your honor. If i understand secretary s memo correctly, secretary nielsen said she did have a conclusive restatement about weighing the reliance interests, but she weighs them against what she calls the questionable legality of the program. That assumes one of the things that we are all here to discuss, which is that the program was up questionable 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 was legal, how does her memo suffice to do that balancing . For a couple of reasons, your honor. First because she set forth a separate and independent case justifying the rescission. First, her belief that it is illegal. Second, her belief that there are serious doubts about the legality, and third, her conclusion about the matter of enforcement policy and that the Homeland Security is against these broadbased nonenforcement decisions. Anyone of those explicitly says, but in her statement about reliance, she particularly says it outweighs this questionably legal program. I think what she is saying here is that given there is extremely limited reliance interest in the first place, any limited reliance that exist are outweighed by all the Different Reasons that she has articulated as separate and independent grounds for rescinding daca. Thats only fair way you can read that memorandum. I have always had some difficulty in understanding the illegality of daca. Dapa i put aside because in dapa, there was actually a process for obtaining a pathway to consider residency. And i saw the argument that daca dapa did was directly contrary to that path, but i dont see anything in the ina that takes away the discretion of the agency in ordering the enforcement policies. We all know it has li