Nos. 18-587, 18-588, and 18-589
`In the Supreme Court of the United States
`
`DEPARTMENT OF HOMELAND SECURITY, ET AL.,
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
`Respondents.
`
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Ninth Circuit
`
`BRIEF OF 143 U.S. BUSINESS
`ASSOCIATIONS AND COMPANIES
`AS AMICI CURIAE
`IN SUPPORT OF RESPONDENTS
`
`ANDREW J. PINCUS
`Counsel of Record
`Mayer Brown LLP
`1999 K Street, NW
`Washington, DC 20006
`(202) 263-3000
`apincus@mayerbrown.com
`
`KAREN W. LIN
`Mayer Brown LLP
`1221 Avenue of the
`Americas
`New York, NY 10020
`(212) 506-2500
`
`Counsel for Amici Curiae
`
`Additional Captions Listed On Inside Cover
`
`
`In the Supreme Court of the United States
`
`DEPARTMENT OF HOMELAND SECURITY, ET AL.,
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
`Respondents.
`
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Ninth Circuit
`
`BRIEF OF 143 U.S. BUSINESS
`ASSOCIATIONS AND COMPANIES
`AS AMICI CURIAE
`IN SUPPORT OF RESPONDENTS
`
`ANDREW J. PINCUS
`Counsel of Record
`Mayer Brown LLP
`1999 K Street, NW
`Washington, DC 20006
`(202) 263-3000
`apincus@mayerbrown.com
`
`KAREN W. LIN
`Mayer Brown LLP
`1221 Avenue of the
`Americas
`New York, NY 10020
`(212) 506-2500
`
`Counsel for Amici Curiae
`
`Additional Captions Listed On Inside Cover
`
`
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
`ET AL.,
`
`Petitioners,
`
`v.
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`COLORED PEOPLE, ET AL.,
`
`Respondents.
`
`On Writ of Certiorari to the
`United States Court of Appeals
`for the District of Columbia Circuit
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF HOME-
`LAND SECURITY, ET AL.,
`
`Petitioners,
`
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.,
`Respondents.
`
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Second Circuit
`
`
`
`i
`TABLE OF CONTENTS
`
`Page
`
`INTEREST OF THE AMICI CURIAE ....................... 1
`INTRODUCTION AND SUMMARY OF
`ARGUMENT ............................................................... 2
`ARGUMENT ............................................................... 3
`I. RESCINDING DACA WILL HARM U.S.
`COMPANIES AND THE ENTIRE
`ECONOMY. ............................................................ 3
`A. Dreamers Contribute To The Success Of
`U.S. Companies And The Economy As A
`Whole................................................................. 5
`B. Dreamers Help Grow The Economy By
`Filling Jobs That Otherwise Would
`Remain Vacant Due To An Insufficient
`Supply Of Workers. .......................................... 9
`C. Rescinding DACA Will Inflict Enormous
`Harm On Individuals, Companies, And
`The Economy................................................... 15
`II. THE DACA RECISSION IS INVALID. .............. 20
`A. The Rescission Decision Is Subject To
`Judicial Review Under The APA. .................. 21
`B. The Rescission Decision Must Be Set
`Aside. ............................................................... 26
`CONCLUSION .......................................................... 31
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`Arizona v. United States,
`567 U.S. 387 (2012) .............................................. 28
`
`Barahona-Gomez v. Reno,
`236 F.3d 1115 (9th Cir. 2001) .............................. 25
`
`Bonilla v. Lynch,
`840 F.3d 575 (9th Cir. 2016) ................................ 22
`
`Bowrin v. INS,
`194 F.3d 483 (4th Cir. 1999) ................................ 25
`
`Edison Elec. Inst. v. EPA,
`996 F.2d 326 (D.C. Cir. 1993) .............................. 23
`
`Encino Motorcars, LLC v. Navarro,
`136 S. Ct. 2117 (2016) .......................................... 26
`
`Epic Sys. Corp. v. Lewis,
`138 S. Ct. 1612 (2018) .......................................... 22
`
`Fornalik v. Perryman,
`223 F.3d 523 (7th Cir. 2000) ................................ 25
`
`Heckler v. Chaney,
`470 U.S. 821 (1985) ........................................ 21, 23
`
`Hotel & Rest. Emps. Union, Local 25 v.
`Smith,
`846 F.2d 1499 (D.C. Cir. 1988) (en
`banc) ..................................................................... 29
`
`
`
`iii
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`I.C.C. v. Brotherhood of Locomotive
`Engineers,
`482 U.S. 270 (1987) ........................................ 23, 24
`
`INS v. St. Cyr,
`533 U.S. 289 ......................................................... 25
`
`Jennings v. Rodriguez,
`138 S. Ct. 830 (2018) ............................................ 25
`
`Kenney v. Glickman,
`96 F.3d 1118 (8th Cir. 1996) ................................ 23
`
`Kucana v. Holder,
`558 U.S. 233 (2010) .............................................. 26
`
`Mach Mining, LLC v. EEOC,
`135 S. Ct. 1645 (2015) .......................................... 26
`
`Marbury v. Madison,
`5 U.S. 137 (1803) .................................................. 22
`
`Montana Air Chapter No. 29 v. Fed.
`Labor Relations Auth.,
`898 F.2d 753 (9th Cir. 1990) ................................ 23
`
`Nat’l Wildlife Fed’n v. EPA,
`980 F.2d 765 (D.C. Cir. 1992) .............................. 23
`
`Reno v. American Arab Anti-
`Discrimination Committee,
`525 U.S. 471 (1999) ........................................ 25, 30
`
`
`
`iv
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`Safe Air For Everyone v. EPA,
`488 F.3d 1088 (9th Cir. 2007) .............................. 26
`
`SEC v. Chenery Corp.,
`318 U.S. 80 (1943) ................................................ 26
`
`Sharkey v. Quarantillo,
`541 F.3d 75 (2d Cir. 2008) ................................... 23
`
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015) ................................ 25
`
`Transitional Hosps. Corp. of La. v.
`Shalala,
`222 F.3d 1019 (D.C. Cir. 2000) ............................ 26
`
`Yale-New Haven Hosp. v. Leavitt,
`470 F.3d 71 (2d Cir. 2006) ................................... 26
`
`STATUTES, RULES AND REGULATIONS
`
`5 U.S.C. § 701 ............................................................ 21
`
`6 U.S.C. § 202 ............................................................ 27
`
`8 U.S.C. § 1103 .......................................................... 28
`
`8 U.S.C. § 1252 .......................................................... 24
`
`8 U.S.C. § 1324a ........................................................ 31
`
`49 U.S.C. § 30301 note .............................................. 30
`
`
`
`v
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`8 C.F.R. § 274a.12 ..................................................... 30
`
`MISCELLANEOUS
`
`44 Fed. Reg. 43,480 ................................................... 31
`
`51 Fed. Reg. 39,385 ................................................... 31
`
`Alan Nelson, Legalization and Family
`Fairness: An Analysis 64 No. 41 In-
`terpreter Releases 1191 (Oct. 21,
`1987) ..................................................................... 29
`
`American Immigration Council,
`Executive Grants of Temporary
`Immigration Relief, 1956-Present
`(Oct. 2014), https://goo.gl/Q87gqn ....................... 29
`
`Andorra Bruno et al., CRS, Analysis of
`June 15, 2012 DHS Memorandum,
`Exercising Prosecutorial Discretion
`with Respect to Individuals Who
`Came to the United States as
`Children App’x (July 13, 2012),
`https://goo.gl/deiGYz ............................................ 29
`
`Ben Gitis & Jacqueline Varas, Am.
`Action Forum, The Labor and
`Output Declines From Removing All
`Undocumented Immigrants (May 5,
`2016), https://goo.gl/UAt3dJ ................................ 19
`
`
`
`vi
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`Bob Davis, The Thorny Economics of
`Illegal Immigration, Wall St. J. (Feb.
`9, 2016) ................................................................. 18
`
`Buttonwood, Keep on Trucking, The
`Economist (Feb. 11, 2012) .................................... 10
`
`Ctr. for Am. Progress, Results of Tom K.
`Wong, United We Dream, National
`Immigration Law Center, and Center
`for American Progress National
`Survey (2016), https://goo.gl/pe2i17 .................... 13
`
`Dan Kosten, Nat’l Immigration Forum,
`Immigrants as Economic
`Contributors: Immigrant Tax
`Contributions and Spending Power
`(Sept. 6, 2018),
`https://tinyurl.com/ycohpups ................................. 4
`
`David Bier, Cato Inst., Ending DACA
`Will Impose Billions in Employer
`Compliance Costs (Sept. 1, 2017),
`https://goo.gl/1FMidk ........................................... 17
`
`David Bier, Cato Inst., Five Myths
`About DACA (Sept. 7, 2017),
`https://tinyurl.com/ydy2qx3q ............................... 10
`
`
`
`vii
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`David Dyssegaard Kalick, Americas
`Soc’y/Council of the Americas,
`Bringing Vitality to Main Street:
`How Immigrant Small Businesses
`Help Local Economies Grow (Jan.
`2015) https://tinyurl.com/lzuglue .......................... 7
`
`David Kenny, Kenny: One Dreamer,
`Weathering Two Storms, Houston
`Chronicle (Dec. 3, 2017),
`https://goo.gl/562Pme ........................................... 14
`
`Deloitte, Waiter, Is That Inclusion in
`My Soup? A New Recipe to Improve
`Business Performance (2013),
`https://tinyurl.com/jnnszk4 .................................... 6
`
`Economics A-Z Terms Beginning with L,
`The Economist,
`https://goo.gl/BvRwKU......................................... 10
`
`Francesc Ortega et al., The Economic
`Effects of Providing Legal Status to
`DREAMers, IZA Discussion Paper
`No. 11281 (Jan. 2018),
`https://tinyurl.com/y9kx52bz ......................... 11, 17
`
`Giovanni Peri, The Effect of Immigrants
`on U.S. Employment and
`Productivity, Fed. Reserve Bank of
`San Francisco Econ. Letter (Aug. 30,
`2010), https://goo.gl/jK17fc ............................ 10, 15
`
`
`
`viii
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`Gretchen Frazee, 4 Myths About How
`Immigrants Affect the U.S. Economy,
`PBS NewsHour (Nov. 2, 2018),
`https://tinyurl.com/yxlwzkth ............................... 11
`
`H.R. Rep. No. 111-157 (2009) .................................... 28
`
`Heather Boushey & Sarah Jane Glynn,
`Ctr. for Am. Progress, There Are
`Significant Business Costs to
`Replacing Employees (Nov. 16,
`2012), https://goo.gl/ZSmRLq .............................. 18
`
`Ike Brannon & Logan Albright, The
`Cato Inst., The Economic and Fiscal
`Impact of Repealing DACA 1 (Jan.
`18, 2017), https://goo.gl/jFXw4g .......................... 16
`
`Interim Relief for Certain Foreign
`Academic Students Adversely
`Affected by Hurricane Katrina:
`Frequently Asked Questions (FAQ)
`(Nov. 25, 2005),
`https://tinyurl.com/y68s86cy ................................ 30
`
`Jacqueline Varas, Am. Action Forum,
`How Immigration Helps U.S.
`Workers and the Economy (Mar. 20,
`2017), https://goo.gl/ovHQEh; .............................. 11
`
`
`
`ix
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`Jacqueline Varas, Am. Action Forum,
`The Fiscal Implications of the DACA
`Program (Jan. 18, 2018), https://ti-
`nyurl.com/y36tlgh9 .............................................. 16
`
`Jose Magaña-Salgado, Immigrant Legal
`Res. Ctr., Money on the Table: The
`Economic Cost of Ending DACA 4
`(2016), https://goo.gl/3ZwGVJ ....................... 16, 17
`
`Jose Magaña-Salgado & Tom K. Wong,
`Immigration Legal Res. Cntr.,
`Draining the Trust Funds (Oct.
`2017), https://tinyurl.com/y6y65jvy ..................... 16
`
`Julia Gelatt, Migration Pol’y Inst., All
`Eyes Turn to Congress, Following
`Trump Decision to Terminate DACA
`Program (Sept. 2017),
`https://tinyurl.com/yyv89mjb ............................... 22
`
`Katherine W. Phillips, How Diversity
`Makes Us Smarter, Scientific
`American (Oct. 1, 2014)
`https://tinyurl.com/zo3asdr .................................... 6
`
`Kenneth Megan, Bipartisan Policy Ctr.,
`Immigration and the Labor Force
`(Aug. 25, 2015),
`https://goo.gl/8p3SP8 ........................................... 10
`
`
`
`x
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`ManpowerGroup, 2018 Talent Shortage
`Survey: Solving the Talent Shortage
`(ManpowerGroup 2018),
`https://tinyurl.com/y8vxvvf7 ................................ 12
`
`Maria E. Enchautegui, Immigrant and
`Native Workers Compete for Different
`Low-Skilled Jobs, The Urban
`Institute: Urban Wire (Oct. 13,
`2015), https://tinyurl.com/ycayp6ky .................... 11
`
`Martin Crutsinger, Thanks to
`Consumers, the US Economy Is Still
`Rising Steadily, USA Today (Aug.
`29, 2019), https://ti-
`nyurl.com/y2ngbkch ............................................... 8
`
`Matthew Denhart, George W. Bush
`Institute, America’s Advantage: A
`Handbook on Immigration and
`Economic Growth (3d ed., Sept.
`2017), https://tinyurl.com/y4ykokn9 ......... 4, 11, 12
`
`Mem. from Donald Neufeld, USCIS,
`Guidance Regarding Surviving
`Spouses of Deceased U.S. Citizens
`and Their Children (June 15, 2009),
`https://goo.gl/SHaCVZ.......................................... 30
`
`
`
`xi
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`Mem. from Elaine C. Duke, “Exercising
`Prosecutorial Discretion With
`Respect to Individuals Who Came to
`the United States as Children”
`(Sept. 5, 2017) ...................................................... 20
`
`Mem. from Gene McNary, Comm’r, INS,
`to Reg’l Comm’rs, Family Fairness:
`Guidelines for Voluntary Departure
`under 8 CFR 242.5 for the Ineligible
`Spouses and Children of Legalized
`Aliens (Feb. 2, 1990), 67 No. 6
`Interpreter Releases 153, app. I
`(Feb. 5, 1990) ........................................................ 29
`
`Mem. from Janet Napolitano to David
`V. Aguilar (June 15, 2012),
`https://tinyurl.com/zzxfoue .................................... 2
`
`Mem. from Michael D. Croning, INS, for
`Michael A. Perason, INS, VTVPA
`Policy Memorandum #2—“T” and
`“U” Nonimmigrant Visas (Aug. 30,
`2001), https://tinyurl.com/yxpztydf .................... 30
`
`Mem. from Paul Virtue, INS, Supple-
`mental Guidance on Battered Alien
`Self-Petitioning Process and Related
`Issues (May 6, 1997), 74 No. 41 In-
`terpreter Releases 962 ......................................... 30
`
`
`
`xii
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`Michael A. Clemens, Does Kicking Out
`Mexicans Create Jobs?, Politico Mag-
`azine (Feb. 15, 2017),
`https://goo.gl/XwLj1x ........................................... 19
`
`Nat’l Fed’n of Indep. Bus., Small
`Business Jobs Report: Small
`Business Owners’ Difficulty Finding
`Qualified Workers Reaches Survey
`High in August (Aug. 2019),
`https://tinyurl.com/y4l4kn9w ........................ 12, 15
`
`Nat’l Fedn. Of Indep. Bus., Small
`Business Optimism Index (Aug.
`2019), https://tinyurl.com/y72v3t69 .................... 12
`
`New Am. Economy, Sizing Up the Gap
`in our Supply of STEM Workers:
`Data & Analysis (Mar. 29, 2017),
`https://tinyurl.com/y6275mgb .............................. 13
`
`New Am. Economy, Spotlight on the
`DACA-Eligible Population (Feb. 8,
`2018), https://tinyurl.com/y2fyhf9a ............. 5, 7, 15
`
`Nicole Prchal Svajlenka et al., A New
`Threat to DACA Could Cost States
`Billions of Dollars, Ctr. for Am.
`Progress (July 21, 2017),
`https://goo.gl/7udtFu ............................................ 16
`
`
`
`xiii
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`Nicole Prchal Svajlenka, What We Know
`About DACA Recipients in the
`United States, Ctr. for Am. Progress
`(Sept. 5, 2019),
`https://tinyurl.com/y4xc6sf4 .................. 8, 9, 13, 15
`
`Nicole Prchal Svajlenka, What We Know
`About DACA Recipients, By State,
`Ctr. for Am. Progress (Sept. 12,
`2019), https://tinyurl.com/yxttwcm9 ..................... 9
`
`Nicole Prchal Svajlenka, Without
`Action, More Dreamers Than Ever
`Before Could See Their DACA Expire
`in October, Ctr. for Am. Progress,
`Aug. 15, 2019,
`https://tinyurl.com/y38uvt4s .................................. 4
`
`I Felt Like a Normal American Kid . . .
`Then Everything Changed,
`THINKPolicy Blog (Oct. 9, 2017),
`https://goo.gl/oV9P7h ........................................... 14
`
`My American Dream, Minus the Paper-
`work, THINKPolicy Blog (Oct. 3,
`2017), https://goo.gl/876JDm ............................... 14
`
`P’ship for a New Am. Econ., Open for
`Business: How Immigrants Are
`Driving Business Creation in the
`United States 12 (Aug. 2012),
`https://goo.gl/3mFkVz ............................................ 4
`
`
`
`xiv
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`Paul Krugman, Opinion, Lumps of
`Labor, N.Y. Times (Oct. 7, 2003),
`https://goo.gl/GyYTG5 .......................................... 10
`
`President’s Council of Advisors on Sci-
`ence and Technology, Report to the
`President: Engage to Excel:
`Producing One Million Additional
`College Graduates with Degrees in
`Science, Technology, Engineering,
`and Mathematics (Feb. 2012),
`https://goo.gl/v2YRVD .......................................... 13
`
`President Dwight Eisenhower,
`Statement Concerning the Entry Into
`the United States of Adopted
`Foreign-Born Orphans (Oct. 26,
`1956), https://goo.gl/BkztnZ ................................. 29
`
`Rachel Unruh & Amanda Bergson-
`Shilcock, Nat’l Skills Coalition,
`Missing in Action (Feb. 2015),
`https://goo.gl/gokfJW ............................................ 12
`
`Ryan Nunn, et al., A Dozen Facts about
`Immigration, Brookings, Inst. (Oct.
`2018), https://tinyurl.com/y5ra3r8l ..................... 15
`
`
`
`xv
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`Sara McElmurry, Ctr. for Am. Progress,
`Proactive and Patient: Managing
`Immigration and Demographic
`Change in 2 Rural Nebraska
`Communities, Nov. 14, 2018,
`https://tinyurl.com/y4lu3etx .................................. 7
`
`Sarah Bohn et al., Do E-Verify
`Mandates Improve Labor Market
`Outcomes of Low-Skilled Native and
`Legal Immigrant Workers? (May
`2014), https://goo.gl/7UihSE ................................ 18
`
`Sarah Elizabeth Richards, How Fear of
`Deportation Puts Stress on Families,
`The Atlantic (Mar. 22, 2017),
`https://goo.gl/qDgeRf ............................................ 17
`
`Tiziana Rinaldi & Angilee Shah, Immi-
`gration Limbo Is a ‘Tug of Emotions.’
`It’s Also a Mental Health Issue,
`Mental Health Issue, PRI’s The
`World (Aug. 22, 2017),
`https://goo.gl/WLXMZ4; ....................................... 17
`
`Tom K. Wong et al., Ctr. for Am.
`Progress, DACA Recipients’
`Economic and Educational Gains
`Continue to Grow (Aug. 28, 2017),
`https://tinyurl.com/y7dqgwd4 ................................ 5
`
`
`
`xvi
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`Tom K. Wong, et al., Ctr. for Am. Pro-
`gress, DACA Recipients’ Livelihoods,
`Families, and Sense of Security Are
`at Stake This November, (Sept. 19,
`2019), https://tinyurl.com/y3c742re ....... 6, 8, 13, 14
`
`Tom K. Wong et al., United We Dream,
`Ending DACA Would Have Wide-
`Ranging Effects but Immigrant
`Youth are Fired Up and Politically
`Engaged (Aug. 23, 2018),
`https://tinyurl.com/y49stg87 ................................ 17
`
`Tony Romm, IBM CEO Ginni Rometty
`Is in D.C. Urging Congress to Save
`DACA (Sept. 19, 2017),
`https://goo.gl/NQeJUc .......................................... 14
`
`U.S. Chamber of Commerce,
`Immigration Myths and Facts
`(Apr. 14, 2016),
`https://tinyurl.com/yay4xjm9 ............................... 11
`
`U.S. Citizenship & Immigration Serv.,
`Number of Form I-821D, Considera-
`tion of Deferred Action for Childhood
`Arrivals by Fiscal Year, Quarter, In-
`take and Case Status Fiscal Year
`2012-2019 (June 30, 2019), https://ti-
`nyurl.com/y5j36gyj ................................................. 2
`
`
`
`xvii
`
`TABLE OF AUTHORITIES—continued
`
`Page(s)
`
`U.S. Dep’t of Labor, Bureau of Labor
`Statistics, Employment Projections,
`https://tinyurl.com/y4lzn72u ............................... 15
`
`U.S. Dep’t of Labor, Bureau of Labor
`Statistics, Labor Force Statistics
`from the Current Population Survey,
`https://tinyurl.com/zyq5xlx (last
`visited Oct. 2, 2019) ............................................. 11
`
`U.S. Dep’t of Labor, Bureau of Labor
`Statistics, Job Openings and Labor
`Turnover Survey (Sept. 10, 2019)
`https://tinyurl.com/y57pxqrb ......................... 11, 12
`
`UndocuScholars Project, In the
`Shadows of the Ivory Tower:
`Undocumented Undergraduates and
`the Liminal State of Immigration
`Reform (2015),
`https://tinyurl.com/y7svqsxr ................................ 14
`
`World Health Org. & Int’l Labour Org.,
`Mental Health And Work: Impact,
`Issues and Good Practices (2000),
`https://goo.gl/ecH1Ut ........................................... 17
`
`
`
`INTEREST OF THE AMICI CURIAE1
`Amici include 143 individual companies that col-
`lectively contribute trillions of dollars in annual reve-
`nue to the American economy and have millions of em-
`ployees.
`Some amici are business associations that to-
`gether represent millions of companies that fuel the
`American economy—including the National Associa-
`tion of Manufacturers, the National Retail Federa-
`tion, the Chamber of Commerce of the United States
`of America, the Retail Industry Leaders Association,
`the American Hotel & Lodging Association, BSA|The
`Software Alliance, the Information Technology Indus-
`try Council, TechNet, the National Association of
`State Latino Chambers of Commerce, the Software &
`Information Industry Association, the Semiconductor
`Industry Association, and the HR Policy Association.
`The list of the amici is set forth in Appendix A.
`Many amici and their members employ individu-
`als who participate in the Deferred Action for Child-
`hood Arrivals (DACA) program—young people who
`are now able to live and work in the country that has
`been their home for most of their lives. In addition,
`amici’s customers and end users are DACA recipients;
`and amici’s businesses benefit from DACA recipients’
`contributions to the overall economy through their tax
`payments, spending, and investments. Accordingly,
`
`1 No party or counsel for a party authored this brief in whole or
`in part, and no one other than amici, their members, or their
`counsel funded the preparation or submission of this brief. See
`Sup. Ct. R. 37.6. Counsel for petitioners and respondents have
`filed blanket consents to the filing of amicus briefs.
`
`
`
`2
`
`amici have a strong interest in DACA recipients’ con-
`tinued ability to work and participate in our country’s
`economy and in our society generally.
`INTRODUCTION AND
`SUMMARY OF ARGUMENT
`Since its inception, DACA has had an enormous
`impact on the lives of over 825,000 young people who
`“were brought to this country as children and know
`only this country as home.”2 DACA enabled those
`young individuals to participate fully for the first time
`in all aspects of our society without the constant and
`crippling
`fear of deportation.3 And, based on
`longstanding federal regulations ratified by Congress,
`the deferral of removal granted to DACA recipients
`made them eligible to apply for work authorization,
`thereby enabling them to obtain jobs commensurate
`with their skills and education.
`But the beneficial effects of DACA have not been
`limited to those individuals. By expanding the oppor-
`tunities available to DACA recipients, this program
`has benefitted America’s companies, our Nation’s
`economy, and all Americans. Indeed, employment of
`DACA recipients expands work opportunities for eve-
`ryone, because employment is not a zero-sum game.
`DACA recipients are filling vacancies at companies
`that otherwise would not be able to attract workers for
`
`2 Mem. from Janet Napolitano to David V. Aguilar (June 15,
`2012), https://tinyurl.com/zzxfoue; U.S. Citizenship & Immigra-
`tion Serv., Number of Form I-821D, Consideration of Deferred
`Action for Childhood Arrivals by Fiscal Year, Quarter, Intake
`and Case Status Fiscal Year 2012-2019 (June 30, 2019),
`https://tinyurl.com/y5j36gyj.
`3 Mem. from Janet Napolitano, supra n.2.
`
`
`
`3
`
`open positions. They are creating businesses that em-
`ploy other Americans. And their increased wages lead
`to higher tax revenues and expansion of our national
`GDP—producing new jobs and benefits for all Ameri-
`cans.
`Eliminating DACA will inflict serious harm on
`U.S. companies, all workers, and the American econ-
`omy as a whole. Companies will lose valued employ-
`ees. Workers will lose employers and co-workers. Our
`national GDP will lose up to $460.3 billion, and tax
`revenues will be reduced by approximately $90 billion,
`over the next decade.
`Those harms should not occur, however, because
`the rescission of DACA must be set aside under the
`Administrative Procedure Act (APA). The Depart-
`ment of Homeland Security (DHS) rescinded DACA
`based entirely on its legal conclusion that DACA ex-
`ceeds the agency’s authority. That legal determina-
`tion is subject to judicial review. Courts consistently
`review agencies’ broadly-applicable policies that rest
`on such legal determinations.
`And DHS’s legal determination is wrong. DACA
`closely resembles deferred action programs adopted in
`the past, and—given Congress’s express recognition of
`this deferred action authority and the Executive
`Branch’s substantial authority with respect to immi-
`gration matters—it does not exceed the Department’s
`statutory authority.
`ARGUMENT
`I. RESCINDING DACA WILL HARM U.S. COM-
`PANIES AND THE ENTIRE ECONOMY.
`Immigrants have long been essential to our Na-
`tion’s growth and prosperity. They have contributed
`
`
`
`4
`
`to important breakthroughs in science and innova-
`tion4; they have created businesses—including many
`Fortune 500 companies—that generate over $775 bil-
`lion in sales and provide numerous jobs to others5; and
`they pay over $300 billion in yearly state, local, and
`federal taxes.6
`Even though DACA is relatively new, DACA re-
`cipients—often referred to as “Dreamers”—have con-
`tributed significantly to America’s prosperity.
`DACA enabled more than 825,000 individuals7 to
`come out of the shadows, participate in the economy,
`and contribute to U.S. companies and the economy,
`which benefits us all. Rescinding DACA will harm not
`only individual recipients and their families, friends,
`and co-workers, but also the many U.S. businesses
`
`4 Matthew Denhart, George W. Bush Institute, America’s Ad-
`vantage: A Handbook on Immigration and Economic Growth 70,
`76 (3d ed., Sept. 2017), https://tinyurl.com/y4ykokn9.
`5 P’ship for a New Am. Econ., Open for Business: How Immi-
`grants Are Driving Business Creation in the United States 12, 14
`(Aug. 2012), https://goo.gl/3mFkVz; Denhart, supra n.4, at 84-
`100.
`6 Dan Kosten, Nat’l Immigration Forum, Immigrants as Eco-
`nomic Contributors: Immigrant Tax Contributions and Spending
`Power (Sept. 6, 2018), https://tinyurl.com/ycohpups.
`7 The number of DACA recipients has declined from over
`800,000 in 2017 to approximately 661,000 today because eligible
`individuals who never had DACA are no longer able to apply for
`it, and many of those who did have it have either adjusted to
`permanent resident status or another status or did not renew or
`otherwise lost their DACA status. Nicole Prchal Svajlenka, With-
`out Action, More Dreamers Than Ever Before Could See Their
`DACA Expire in October, Ctr. for Am. Progress, Aug. 15, 2019,
`https://tinyurl.com/y38uvt4s.
`
`
`
`5
`
`that count on them to help fuel continued innovation
`and economic growth.
`A. Dreamers Contribute To The Success Of
`U.S. Companies And The Economy As A
`Whole.
`Dreamers have become essential contributors to
`American companies and the American economy.
`Prior to DACA, these young people—who have ob-
`tained at least a high school degree and, in many
`cases, have finished college and graduate school—
`would have been unable to obtain work authorization,
`and therefore unable to put their education and skills
`to productive use.
`DACA changed that and, as a result, over 90 per-
`cent of Dreamers are employed in virtually every sec-
`tor of the economy—from construction workers to
`nurses to cooks to computer scientists.8 Their employ-
`ment supports the growth of U.S. companies and the
`economy in a number of ways.
`1. Dreamers Are Valued Employees.
`First, Dreamers contribute directly to the success
`of U.S. companies, including many amici. At least 72
`percent of the top 25 Fortune 500 companies employ
`DACA recipients—including IBM, Walmart, Apple,
`General Motors, Amazon, JPMorgan Chase, Home
`Depot, and Wells Fargo, among others—as do many
`others, including Uber and Lyft.9 Those companies
`
`8 New Am. Economy, Spotlight on the DACA-Eligible Popula-
`tion (Feb. 8, 2018), https://tinyurl.com/y2fyhf9a.
`9 Tom K. Wong et al., Ctr. for Am. Progress, DACA Recipients’
`Economic and Educational Gains Continue to Grow (Aug. 28,
`2017), https://tinyurl.com/y7dqgwd4.
`
`
`
`6
`
`represent every major sector of the U.S. economy and
`generate almost $3 trillion in annual revenue.
`Dreamers’ contributions are not limited to their
`work product alone. Immigrants like Dreamers bring
`diverse backgrounds and experiences to their work-
`places, which bolster their colleagues’ creativity and
`innovation.10 People with different backgrounds offer
`different perspectives when confronted with a prob-
`lem, and their different opinions and perspectives en-
`able colleagues to anticipate alternative possibilities
`and work harder to evaluate those possibilities.11
`2. Dreamers Are Business Owners.
`Second, many Dreamers are entrepreneurs, who
`have created companies themselves. Six percent of
`Dreamers (and nearly nine percent of Dreamers 25
`years and older) started their own businesses after re-
`ceiving DACA.12 Those businesses create jobs for
`other U.S. residents: Each DACA business owner with
`full-time employees employs on average 4.5 other
`workers.13 That is nearly 86,000 additional jobs that
`otherwise would not exist.
`
`10 See Katherine W. Phillips, How Diversity Makes Us Smarter,
`Scientific American, Oct. 1, 2014, https://tinyurl.com/y4vrn8q2.
`11 Ibid.; see also Deloitte, Waiter, Is That Inclusion in My Soup?
`A New Recipe to Improve Business Performance 8 (2013),
`https://tinyurl.com/jnnszk4.
`12 Tom K. Wong, et al., Ctr. for Am. Progress, DACA Recipients’
`Livelihoods, Families, and Sense of Security Are at Stake This
`November (Sept. 19, 2019), https://tinyurl.com/y3c742re; see also
`New Am. Economy, Spotlight, supra n.8 (4.5 percent of DACA-
`eligible individuals are entrepreneurs).
`13 Wong, Livelihoods, supra n.12.
`
`
`
`7
`
`The businesses started by Dreamers also generate
`revenue: In 2015, DACA-eligible entrepreneurs had a
`total business income of $658.7 million.14 Those funds
`are spent on wages, or goods and services from other
`companies, or reinvested, producing more overall
`growth.
`This entrepreneurial activity is particularly fo-
`cused on the local, small business level. Immigrants
`make up an outsized proportion of Main Street busi-
`ness owners.15 Those businesses attract others in the
`community, which often helps to revitalize declining
`neighborhoods and reverse declining population
`trends.16 Immigrant-owned businesses have revived
`communities from Philadelphia to Lexington, Ne-
`braska to Minneapolis-St. Paul to Nashville.17
`3. Dreamers Are Consumers.
`Third, Dreamers also consume the goods pro-
`duced and services provided by U.S. companies—con-
`tributing to the growth of those companies and the
`economy as a whole.
`Not surprisingly, receiving a grant of deferred ac-
`tion under DACA—and the resulting eligibility to ap-
`
`14 New Am. Economy, Spotlight, supra n. 8.
`15 David Dyssegaard Kalick, Americas Soc’y/Council of the Amer-
`icas, Bringing Vitality to Main Street: How Immigrant Small
`Businesses Help Local Economies Grow at 2, 5, 8-9, Jan. 2015,
`https://tinyurl.com/lzuglue.
`16 Id. at 12.
`17 Id. at 14-34; Sara McElmurry, Ctr. for Am. Progress, Proactive
`and Patient: Managing Immigration and Demographic Change
`in 2 Rural Nebraska Communities, Nov. 14, 2018, https://ti-
`nyurl.com/y4lu3etx.
`
`
`
`8
`
`ply for work authorization—increases Dreamers’ in-
`comes. Fifty-eight percent of recently-surveyed
`Dreamers were able to obtain better-paying jobs; 53
`percent were able to move to a job that “better fits
`[their] education and training.”18 That, in turn, re-
`sulted in average wage increases for Dreamers of 86
`percent—128 percent for those 25 years and older—
`after receiving DACA.19 In total, Dreamers and their
`households exercise $24.1 billion in spending power
`(income remaining after paying taxes) each year.20
`This increased purchasing power—combined with
`the increased stability and security resulting from re-
`ceiving a grant of deferred action—has enabled
`Dreamers to make purchases and investments that
`grow our Nation’s economy.
`Consumer spending accounts for nearly 70 per-
`cent of all economic growth.21 Sixty percent of Dream-
`ers reported buying their first car after receiving
`DACA; fourteen percent reported purchasing their
`first home.22 Dreamers are responsible for $613.8 mil-
`lion in annual mortgage payments, on top of $2.3 bil-
`lion in rental payments to landlords.23
`
`18 Wong, Livelihoods, supra n.12.
`19 Id.
`20 Nicole Prchal Svajlenka, Ctr. for Am. Progress, What We Know
`About DACA Recipients in the United States (Sept. 5, 2019),
`https://tinyurl.com/y4xc6sf4.
`21 Martin Crutsinger, Thanks to Consumers, the US Economy Is
`Still Rising Steadily, USA Today (Aug. 29, 2019), https://ti-
`nyurl.com/y2ngbkch.
`22 Wong, Livelihoods, supra n.12.
`23 Svajlenka, supra n.20.
`
`
`
`9
`
`Dreamers’ higher wages also result in increased
`fiscal contributions in the form of taxes. Dreamers and
`their households pay $5.7 billion in federal taxes and
`$3.1 billion in state and local taxes annually.24 In 4
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