Daca and the expansion of daca were likely unlawful. In the face of those decisions, the department of Homeland Security reasonably determined that it no longer wished to do wish to retain the policy, based on its belief the policy was illegal, and its general opposition to broad nonenforcement policies. The decision did not violate the apa for two reasons. First, it is not subject to judicial review. The decision is committed to the unreviewable discretion unless a statute restricts it, and nothing requires the department, a Law Enforcement agency, to not enforce the law. Second, the decision to end this nonenforcement policy was eminently reasonable. Was a temporary stopgap measure that on its face could be rescinded at any time, and the departments reasonable concerns about its legality in general opposition to broad nonenforcement policies provided more than a reasonable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 since it undermines confidence in the rule of law itself and conflicts with the agencys Law Enforcement mission. I would like to begin with the review ability question. If the attorney general were to say 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 and reversed the policy because he believed the Death Penalty was constitutional, that would likewise be immune from judicial review. Theres a strange element to your argument because you are arguing this is a discretionary ,atter that is not reviewable but on the other hand, you say the agency had no discretion because this program was illegal. In other words, the law requires you to drop daca, so how can it be committed to your discretion when you are saying we have no . Iscretion forth legal and policy reasons. The alternative argument was even if it has the Legal Authority to do so, it would not have the authority to do so. Are likewise making alternative legal and policy arguments. Secondly, even if we were making purely a legal argument, even if we were, review would be foreclosed by the court decision. What the ble case held was that anan action is committed to agencys discretion, it does not matter what reason it gives for taking that action, it is still unreviewable. The specific example this court divided was a prosecutor who decided not to indict for a purely legal reason, and the court indicated that that was still unreviewable because the underlying action, the Enforcement Discretion, was committed to the agencys unreviewable discretion, so we think we went under cheney and we also think we went under ble. What if the attorney general said his exercise of prosecutorial discretion was not to enforce any immigration laws . Would that still be unreviewable . I think you would run into cheneys exception for complete abdication of authority, but there is a difference between that and this. Here we are enforcing the law. You can understand why congress and the courts might say you can review a decision not to enforce the law. Congress in fact passes loss so they will be enforced and you can understand why it might sestrict the government ability to not enforce law. We think we clearly fall within the cheney perception that it is an exercise of Enforcement Discretion and we do not fall within the cheney exception which would apply where congress itself restricts discretion or where there is potential abdication of enforcement. Uthority s cheney made clear just to understand what youre saying, general, that would suggest that the original daca is reviewable, but the rescission is not. Are you suggesting there is an asymmetry of what is reviewable . There is because there is a difference in the two policies. Both, just to be clear, both fall within cheneys presumption. Both reflect and exercise of Enforcement Discretion that are presumptively unreviewable. The question is if congress has done anything to restrict that discretion. With respect to the case the court had before the couple of years ago, texas argued the ima actually restricted the agencys ability not to enforce the law, and you can certainly understand why Congress Might try to hamstring the governments ability not to enforce the laws that it passed and the fifth circuit agrees. It would be surprising if congress were to pass a law that says something were illegal and tries to restrict the governments ability from enforcing the laws, so i think we fall foursquare within the that was oneption of the areas cheney reserved in that critical footnote. Here, we are not not enforcing the law, we are enforcing the law, and theres nothing that somehow says to the department of Homeland Security or restricted in any way. Daca ismorandum says illegal. I did not see where it says if it is illegal or not, as a ,atter of Administration Policy we are withdrawing mmhmm. I did not see that. You said there were alternate arguments. I saw only the first. We cannot enforce daca, we cannot adhere to daca because it is illegal. Two responses. 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 is clearly properly before the court, the District Court court in washington, d. C. , specifically asked for it, we specifically provided it, the District Court reviewed it, so the only question is what does it mean, and secretary nielsen in her memorandum effectively ratified the decision for the reasons given, using precisely the same mechanism secretary duke use herself to issue the memorandum in this case. This is not a post hoc rationalization of Agency Action. It is Agency Action. The whole point of the post hoc rationalization rule was to prevent courts from invading into executive branch decisionmaking. Argument, andold the first basis of the argument between camp davis and berger, is it that you cannot review an agency, you cannot commit it to agency discussion by law, does theres certain things an agency might do dont review them even if they are totally wrong, like panama canal the cheney argument i thought was the reason this is unreviewable is because there is a long history and tradition of , i knowtor saying that guy over there or that woman here, and they may be nolty, but in my discretion, i dont want to prosecute them. Theres a long history of that, if that history, and understandable power to be given to a prosecutor, courts stay out of it, that does not apply. What does apply is a prosecutor making individualized decisions, but rather, an agencys policies, generalized, written down, and i cannot think of a case, you in such a would not review it in a court,. Respectfully, your honor, i strongly disagree because cheney itself involves not a single shot enforcement action. Ere is what fda said this is their principal conclusion. For the reasons given below, we conclude the use of lethal injection by state penal systems is a practice over which fda has no jurisdiction and therefore, the fda has no authority to take the actions your petition requests. According to your petition accordingly, your petition is denied. It later provided as a policy rationale and says as a secondary and separate basis of denial, we decline as a matter of Enforcement Discretion to pursue supplies of drugs under state control that will be used for execution by lethal injection, so in cheney, 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. I think it is in favor of us. We have an exercise of Enforcement Discretion that is committed to the agencys unreviewable discretion. It does not fall within any of the exceptions to cheney where congress either restricts the exercise of that discretion because here we are talking about enforcement, not nonenforcement, and it does not all under the complete abdication exception because again, we are talking about enforcement and not nonenforcement wouldnt what you just read also have made docket itself unreviewable, to pick up on Justice Kagans question from earlier . No, your honor, again because quickly what is the distention between dhaka and the fda policy . Fda policy,n the nobody was claiming that somehow a statute restricted the fdas ability to not enforce the law. Nobody made that argument. Texas specifically argued that the ina did restrict the agencys authority to exercise Enforcement Discretion to not enforce the law. One of the things texas apa case was d that the Agency Action in certain conferred relevance on the individuals affected. On dac awind down remove certain benefits that individuals would have, and if it does, would that make this review . I think the answer is no and no, and the reason why is first of all, the rescission of dhaka not resend daca does any benefits. Even putting that aside, the Work Authorization and other benefits are simply a collateral consequent of the exercise of prosecutorial discretion itself, so they dont make the prosecutorial discretion itself reviewable. Otherwise, every grant or denial would be subject to apa review because every grant and denial of deferred action has consequences that impact work action. Suppose a prosecutor has a Drug Diversion program and says he wont prosecute this particular category of drug offenses if the individuals agree to enter into drug treatment. The drug treatment is a collateral consequence of an a benefit that flows from the prosecutorial decision, but it does not render the prosecutorial decision itself subject to review, and likewise, comes in andecutor says they want a zerotolerance policy for drug offenses, that is not reviewable, either, but i pa wasa challenge to daa reviewable because it fell within the cheney exception. Texas argued, the fifth circuit restricted the ina the department of Homeland Securitys ability to not enforce the law, and, frankly, we agree with that, but the problem here is there is no argument by anybody or any possible argument that could be made that somehow the ina restricts the department of Homeland Securitys authority to enforce the law. After all, Congress Typically wants the executive branch to enforce the laws. This an appropriate moment tomove to assuming relatability . When argument is similar to this one weve just been considering and the reliance interest that have grown up around daca. What do you say to that and if they have been adequately considered . Two things. First, i would say they are extremely limited. To be always meant temporary stopgap measure that could be rescinded at any time, which is why it was only granted in two year increment, so i dont think anyone could have reasonably assumed it would remain in effect in perpetuity. Even putting that to the side, the agency considered reliance interest, secretary nielsen did so quite clearly and exquisitely. The agency mitigated the reliance interest through the orderly wind down, and at sibley concluded that beyond that, it did not justify maintaining in perpetuity a program that actively silicate of violations of the law by hundreds of thousands of individuals my understand your colleagues argument on the others, it is not that secretary nielsen failed to consider interests. There is that paragraph, i that given the extent of the reliance interest, more needed to be said or could be huge and it would not be a burden to require the government to say more. As i understand, that is the nature of the argument. I guess i have a couple of responses to that. The first is i do not think it reflects an accurate understanding of apa review. This court has repeatedly made clear the only thing that matters is if the agency and i think im quoting from the case log completely failed to consider an important aspect of the question, and i do not think you can even remotely argue that we completely failed to consider an important aspect of the question. Secretary secondly, i think secretary dukes memorandum clearly satisfied satisfies apa standard. She does so explicitly in a portion of the memorandum that you reference. In addition to what i point out is that at the very beginning of her memorandum, page two, she specifically says that one of the things that she considered worthy judicial opinions reviewing the duke memorandum. All the District Court decisions so that when she gets to the specific discussion of reliance interest, she says she is keenly aware that people have ordered there reliance in honor of the daca decision. Simile concluding they did not maintain justify just justifying continuing the policy. The best estate under the law in my mind is a very old principle again, that Justice Scalia is writing for the court, he says when an agencys prior policy has engendered serious reliance interest, it must be taken into account, as in this case, i think. I had my law clerks count not just the people who came in you know the 700,000 they had never been anywhere else, but there are all kinds of reliance interests. I counted briefs in this court, which im not sure you have, which state different kinds of reliance interest. There are 66 health care 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, i think, municipalities and cities, 100 29 religious organizations can 100 45 businesses, and they all list reliance interest or most of them list reliance business applicable to them, which are not quite the same. They are not quite the same as those of the 700,000 who i have never seen in any other country, so i did read what you just read to me. You 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 because the first thing i want to say is that state farm itself says and i have the quote you violate the apa only where you entirely failed to consider an important aspect of the problem. Explicit leelsen considered the reliance interest, including all the things you just listed that were set forth in excruciating detail in the numerous District Court decisions that had ruled against us, which she says she specifically considered but not in her memo . Your honor, i frankly think she does, but the other thing i would say is under this dapaderation, daca and would likely have failed judicial review because theres not a single word in the memos explaining any of the potential costs or benefits or impacts on other people that the implementation of the program would have had. Either one, your honor. If i understand secretary nielsens memo correctly, secretary nielsen said that she did have a conclusory statement about weighing the reliance interest, but she weighed them against what she called i think it is the questionable legality of the program. That assumes one of the things we are all here to discuss, which is that the program was of questionable legality. If the Program Turns out not to be of questionable legality, in other words, if some or many of us think the original program was legal, how does her memo that balancing . For a couple of reasons. First because she set forth separate and independent bases justifying the rescission. First, her belief that it is illegal, second, her belief that there are serious doubts about its illegality, and third, her conclusion that as a matter of enforcement policy, the department of Homeland Security is against these kind of broadbased nonenforcement decisions. Any of those explicitly says but in her statement, she particularly says it outweighs this questionably legal program. I think what she is saying is that given that they there are extremely limited reliance interest in the first place, any limited reliance interest that outweighed by all of the Different Reasons that she has articulated as a separate and independent grounds for resending daca. I think that is the only fair way you can read that memorandum. I have always had some difficulty in understanding the daca. Lity of dapa i put aside because there was actually a process for attaining a pathway to residency , and i saw the argument that what dapa did was directed contrary to that path, but i do thatee anything in the ina takes away the discretion of the agency ordering its enforcement policies. We all know it has limited resources. , even when it wants to, remove the vast majority of aliens we have here, so i have always had some difficulty in understanding what is wrong with an agency saying we are going to prioritize our removals, and for those people like the dac people, who have not committed crimes, who are lawfully employed, who are paying taxes, who pose no threat to our a whole, and theres list of prerequisites we are not going to exercise our limited resources to try to get rid of those people. I know you are going to argue contrary i guess i have responses, your honor. Let me just finish. Ok. , thetting aside that secretary, and giving these extra reasons because none of this was in the duke memo, and i thought basic Administrative Law is you look at what is given to you, not what you add later, but assuming you ignore that and even look at the nielsen memo, i think my colleagues have correctly pointed theres a lot of reliance interests that were not looked at, including the very president current telling daca eligible people that they were safe under him, and that he would find a way to keep them here. He has not. Instead, he has done this, and that, i think, has something to be considered before you resend the policy, not just saying i will give you six months to do it. Aside imf that going to get to my question. And maybe we would have an opport