Versus regions of the university of california and related cases. General francisco, general francisco. In 2017, the fifth circuit held that dhaka and expansion were likely unlawful. Face of those decisions, the department of Homeland Security determined that it no longer wish to retain the policy based on its belief that the policy was illegal, has doubt about its illegality, and its general opposition to broad, nonenforcement policies. That decision did not violate the apa for two reasons. First, it is not subject to judicial review. Previousion ended a nonenforcement policy by which the department agreed to not enforce the ima against hundreds of thousands of illegal aliens. The decision whether or not to enforce the law is committed to the unreviewable discretion, unless the statute restricts it. Nothing in the ina requires the department, a Law Enforcement agency, do not enforce the law. Decision to and this nonenforcement policy was reasonable. Dr. Was a temporary measure that on its face could be rescinded at any time at the departments concerns about its legality and it general opposition to broad, nonenforcement policies provided more than a reasonable basis for ending it. Notr all, an agency is required to push its dubious power to not enforce the law to its logical extreme since it undermines rule of law itself and conflicts with the Law Enforcement mission. I would like to begin with the revenue ability question. If the attorney general were to say that he was not going to seek Death Penalty prosecutions because he thought the Death Penalty was unconstitutional, that would be immune from judicial review and if a new attorney general came in at reverse that policy because he believed the Death Penalty was because the two snow, that would likewise be immune from judicial review. General, a strange element to your argument because you are arguing this is a discretionary matter, it is not reviewable because it is related to a discretion. On the other hand, you say that agency has no discretion because this program was illegal. In other words, the law requires you to drop daca. How can it be committed to discretion if you say there is no discretion, this is an Illegal Program . For two reasons. We put Forward Legal and policy reasons for the discretion. Put forth legal and policy reasons, its argument was it lacked jurisdiction to regulate state use of drugs and carrying out the Death Penalty. Its alternative argument was even if it had the Legal Authority to do so, it would not have exercised it and this court found that that decision was committed to the unrevealed discussions. We are likewise making alternative legal and policy arguments. Makingy, even if we were purely a legal argument and we are not, but if we were, review would be foreclosed by this courts decision. What the ble case health was actions committed to unreviewable discretion, it does not matter what reason it gives for taking that action, it is on a review board. The example this court provided in ble was a prosecutor who decided not to indict for a purely legal reason and the court indicated that that was still unreviewable because the underlying action, Enforcement Discretion, was committed to the unreviewable discretion. We think we went under cheney and also think we went under ble. What if the attorney general said in his exercise of prosecutorial discretion was not going to enforce any immigration laws . With that stillman not be reviewable . Would that still be not reviewable . Into exceptionn berkeley abdication. There is a difference between that and this. Here, we are enforcing the law. You can understand why congress or the courts might say you can review a decision not to enforce the law. Congress passes laws so they will be enforce and you can understand why it might restrict the government up to be as ability to not enforce the law. Here, we are enforcing the law and it is difficult to see why the congress would pass a law, Say Something is illegal, and try to hamstring the governments ability to enforce it. That is why we think we 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 discussion or a potential complete abdication of enforcement authorities, cheney made clear also might be an exception. Just to understand what you are saying, that would suggest that the original daca is reviewable by the rescission is not . Are you suggesting that there is an asymmetry in what is reviewable, that they dont stand together . There is because there is a different and that two policies. Both of them fall within cheneys presumption, both reflect and exercise of Enforcement Discretion that are presumptively unreviewable. The question is whether congress has done anything to restrict that discretion. With respect to daca, the case this court had a couple of years ago, texas argue the ina restricted the agencys 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. This circuit agrees. That falls within the cheney exception to the presumption. Here, nobody is arguing on either side that the ina somehow restricts our ability to enforce the law and it would be surprising if congress were to pace 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 within the cheney presumption and cheney exception does not apply. That exception covers with where the statute itself restricts the discretion into your question, it could apply where there was a complete abdication of Law Enforcement responsibilities. That was one of the areas that cheney reserved in that critical 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 department of Homeland Security, you are restricted in any way from enforcing the laws we pass. We cant enforce daca, because it is illegal. Two responses. First, secretary nielsens memorandum clearly encompasses all of the different arguments, it sets them forth in great detail and we think the nielsen memorandum is properly before the court, the district and washington, d. C. Specifically asked for it, we provided it, the District Court reviewed it. The only question is, what does it mean . Secretary nielsen, in her memorandum, ratified secretary due to decision for the reasons given given the same mechanism that secretary used herself in the first place, same mechanism issued in the document out, the same mechanism used to issue the daca memo. This is not a post hoc rationalization, it is Agency Action. The whole point of the post hoc rationalization will to prevent courts from invading into executive branch decisionmaking. Argument and old there have been two bases. The first between ken davis and berger, is it that you cant review an agency, nothing about you cannot commit to Agency Discretion, does not mean that they are certain, it just means there are certain things an agency might do dont revenue them even if they are totally wrong. Is not here, i dont think. 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, they may be guilty, but in my discretion, no. I dont want to prosecute them. There is a long history of that. , understandable power to get to a prosecutor, is to be valid, courts, stay out of it. That does not apply for what is at issue is not a prosecutor making an individual decision. Policies, an agencys generalized, written down, and i cant think of a reason why in such a case you wouldnt review it in a court. Respectfully, i strongly disagree because cheney itself involved not a prosecutor, but an agency, and not a single shot enforcement action, but a general policy here is here is what the fda said in the petition brought by the inmates to exercise the Death Penalty. This is their principal conclusion. For the reasons given below, we conclude that use of lethal injections by state penal systems is a packet over which fda has no jurisdiction and therefore fda has no authority to take the actions your petition requests. According to your petition, your denied. Policy rationale and says later, as a secondary and separate bases 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 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 on all in favor of us. We have an exercise of Enforcement Discretion that is committed to the agency unreviewable discretion under cheney, it is not fall within any of the exceptions to cheney where congress either restricts the exercise of that discretion because we are talking about enforcement, not nonenforcement and it does not fall under the abdication exception to chain up because we are talking about enforcement. What it what you just read made it donggala itself unreviewable . Critically it falls what is the distinctive between daca and fda policy . The doctor and fda policy, because of the fda policy, nobody was claiming that somehow a statute restricted the fdas ability to not enforce the law. Nobody made that argument. In the the apa litigation is maybe what you are referencing, dids argued that the ina restrict the agencys authority to exercise Enforcement Discretion to not enforce the law. One of the things that texas argued in the dap a case was the Agency Action and question conferred certain benefits on individuals who were affected and if that was the decision 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 . I think the answer is no and no. The reason why is the rescission of daca does not resend any benefits. Those benefits are allowed to expire on their own terms. But even putting that aside, the Work Authorization and other benefits are a clerical 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 Work Authorization. If i could give you a hypothetical that makes it more concrete, suppose a prosecutor has a Drug Diversion program and he says im not going to prosecute this particular category of drug defenses if the individuals agreed to enter drug treatment. The drug treatment is a collateral consequence of the benefit that flows from the decision but it does not render the prosecutorial decision to review and likewise if a new prosecutor comes in and says i do not like Drug Diversion programs, i want a zerotolerance program, that is not reviewable either. But i do think the challenge to dapa in the prior litigation was reviewable. 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 Securitys authority to enforce the law. After all, Congress Wants the executive branch to enforce the law it passes. Is this an appropriate moment to move to assuming review ability and the merits . Anytime you want to move there, i will move there. One argument the other side makes along the lines a similar to this, the light interests that have grown up around daca. What you say to that and whether they have been adequately considered . Show less text 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 in two year increments. I dont think anybody couldve reasonably assumed that daca was going to remain in effect in perpetuity. Even putting that to the side, here, the agency considered the reliance interest, secretary nielsen did it, the agency mitigated the reliance interest through the wind down and concluded that beyond that it , did not justify maintaining in perpetuity that facilitated violation for law by hundreds of thousands of individuals. Im sorry. Continue. Thank you. If i understand your colleagues argument on the other side, it is not that secretary nielsen failed to consider alliance interests. If there is a paragraph, i believe petition 125 somewhere in there, 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 say more. As i understand, that is the nature of the argument. I get that, i have a couple of responses to that. 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, failed to consider an important 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 dukes memorandum clearly is clearly satisfies the proper standard that satisfies the apa standard for considering reliance interest. She does so explicitly in the portion 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 reliant interest, she says she is aware that people have ordered 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 taken into account, and that is 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 are all kinds of rolaids 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 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 a broad range of interests . Yes, 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. Here, secretary nielsen considered the alliance interest , including all the things you just listed in extra shady in excruciating detail in the District Court decision that had ruled against us, which she says 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. Ill take either one, your honor. If i understand secretary nielsens 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 was of 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 bases justifying the decision. 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. Any one 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 interests in the first place, any limited reliance tha