`
`
`
`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 FOR AMICI CURIAE
`ASSOCIATION OF AMERICAN
`MEDICAL COLLEGES, ET AL.,
`IN SUPPORT OF RESPONDENTS
`_________
`JONATHAN S. FRANKLIN
`Counsel of Record
`DAVID KEARNS
`NORTON ROSE FULBRIGHT US LLP
`799 Ninth Street, N.W.
`Washington, D.C. 20001
`(202) 662-4663
`jonathan.franklin@
`nortonrosefulbright.com
`
`HEATHER J. ALARCON
`FRANK R. TRINITY
`ASSOCIATION OF
`AMERICAN MEDICAL
`COLLEGES
`655 K Street N.W.
`Suite 100
`Washington, D.C 20001
`(202) 478-9939
`
`
`
`
`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 Before Judgment
`to the United States Court of Appeals
`for the District of Columbia Circuit
`_________
`KEVIN K. MCALEENAN, ACTING SECRETARY OF
`HOMELAND SECURITY, ET AL.,
`Petitioners,
`v.
`MARTIN JONATHAN BATALLA VIDAL, ET AL.,
`Respondents.
`_________
`On Writ of Certiorari Before Judgment
`to the United States Court of Appeals
`for the Second Circuit
`_________
`
`
`
`
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF AUTHORITIES ..................................... iii
`INTEREST OF AMICI CURIAE ............................... 1
`SUMMARY OF THE ARGUMENT ........................... 2
`ARGUMENT .............................................................. 6
`I. AGENCIES CANNOT CHANGE
`POLICIES WITHOUT FAIRLY
`ADDRESSING RELIANCE
`INTERESTS..................................................... 6
`II. LOSS OF DACA STATUS FOR
`HEALTH CARE TRAINEES AND
`PROFESSIONALS WOULD NULLIFY
`SUBSTANTIAL INVESTMENTS
`MADE BY SCHOOLS, OTHER
`INSTITUTIONS, AND RECIPIENTS,
`TO THE PUBLIC’S SIGNIFICANT
`DETRIMENT ................................................... 8
`A.
`Recipients Depend On DACA For
`Their Work Eligibility. .......................... 8
`B. Medical Schools, Teaching
`Hospitals, And Other Educational
`And Health Care Institutions
`Expended Vast Amounts Of Time,
`Money, And Other Resources In
`Reliance On DACA .............................. 10
`DACA Recipients Relied On
`Their Eligibility To Work When
`They Decided To Invest Their
`Own Time, Effort, And Resources
`In A Health Care Career .................... 14
`
`C.
`
`
`
`
`
`ii
`TABLE OF CONTENTS—Continued
`
`Page
`
`D.
`
`Rescinding DACA Will Nullify
`These Investments And Worsen
`A Shortage Of Health Care
`Professionals In The United
`States ................................................... 16
`III. THE GOVERNMENT ACTED
`ARBITRARILY AND CAPRICIOUSLY
`IN FAILING TO TAKE ACCOUNT OF
`ANY OF THESE AND OTHER
`SERIOUS RELIANCE INTERESTS ........... 24
`CONCLUSION ......................................................... 27
`
`
`
`iii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES:
`Encino Motorcars, LLC v. Navarro, 136
`S. Ct. 2117 (2016) .................................... 7, 25, 26
`FCC v. Fox Television Stations, Inc., 556
`U.S. 502 (2009) .................................................... 7
`Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
`State Farm Mut. Auto. Ins. Co., 463
`U.S. 29 (1983) ...................................................... 6
`NAACP v. Trump, 315 F. Supp. 3d 457
`(D.D.C. 2018) ................................................. 8, 25
`Nat’l Lifeline Ass’n v. FCC, 921 F.3d
`1102 (D.C. Cir. 2019) .................................... 7, 26
`Plyler v. Doe, 457 U.S. 202 (1982) ....................... 10
`STATUTES AND REGULATIONS:
`5 U.S.C. § 706(2)(A) ............................................... 6
`8 U.S.C. § 1324a .................................................... 9
`8 C.F.R. § 274a.12 .................................................. 9
`LEGISLATIVE AND EXECUTIVE MATERIALS:
`A.B. 275, 80th Sess. (Nev. 2019) ......................... 21
`H.B. 1552, 92d Gen. Assemb., Reg. Sess.,
`(Ark. 2019) ........................................................ 21
`Ill. Fin. Auth., Board Book (July 9,
`2013), https://tinyurl.com/yxqa2cjw ................ 22
`Ill. Fin. Auth., Resolution 2013-0709-
`AD05 (July 9, 2013), https://
`tinyurl.com/y6o23j96 ........................................ 22
`L.B. 947 (Neb. 2016) ............................................ 22
`
`
`
`
`
`iv
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`S.E.A. 419, 120th Gen. Assemb., 2d Reg.
`Sess. (Ind. 2018) ................................................ 21
`OTHER AUTHORITIES:
`Amy E. Thompson, MD, A Physician’s
`Education, J. Am. Med. Assoc. (Dec.
`10, 2014), https://jamanetwork.com
`/journals/jama/fullarticle/2020375 ................... 15
`Am. Med. Ass’n, 2018 American Medical
`Association Economic Impact Study,
`(last visited Sept. 24, 2019), https://
`www.physicianseconomicimpact.org/ ............... 24
`Andrea N. Garcia et al., Factors
`Associated with Medical School
`Graduates’ Intention to Work with
`Underserved Populations: Policy
`Implications for Advancing Workforce
`Diversity, Acad. Med. (Sept. 2017),
`https://www.ncbi.nlm.nih.gov/
`pmc/articles/PMC5743635/ ............................... 19
`Angela Chen, PhD et al., PreHealth
`Dreamers: Breaking More Barriers
`Survey Report (Sept. 2019),
`https://tinyurl.com/y436och3 ........................ 5, 19
`Ass’n of Am. Med. Colls., The
`Complexities of Physician Supply &
`Demand: Projections from 2017 to 2032
`(Apr. 2019), https://tinyurl.com/
`yxbh2nhv ....................................................... 5, 17
`Atheendar S. Venkataramani, M.D.,
`Ph.D. & Alexander C. Tsai, M.D.,
`Ph.D., Dreams Deferred—The Public
`
`
`
`v
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Health Consequences of Rescinding
`DACA, 377 New Eng. J. Med. 1707
`(Nov 2, 2017) ..................................................... 23
`Bureau of Labor Stat., U.S. Dep’t of
`Labor, Occupational Outlook
`Handbook: Healthcare Occupations
`(September 4, 2019), https://
`www.bls.gov/ooh/healthcare/home.htm ........... 17
`Ctr. For Health Workforce Studies,
`SUNY-Albany Sch. of Pub Health,
`Health Care Employment Projections,
`2016-2026: An Analysis of Bureau of
`Labor Statistics Projections by Setting
`and by Occupation (Feb. 2018),
`https://tinyurl.com/y58hfz6x ............................ 17
`Evelyn Valdez-Ward, The End of DACA
`Would Be a Blow to Science, Sci. Am.
`Blog Network (Dec. 12, 2018), https://
`blogs.scientificamerican.com/voices/the
`-end-of-daca-would-be-a-blow-to-
`science/ .............................................................. 14
`Fed. Student Aid, U.S. Dep’t of Educ.,
`Who Gets Aid: Non-U.S. Citizens (last
`visited Sept. 24, 2019), https://
`studentaid.ed.gov/sa/eligibility/non-us-
`citizens .............................................................. 15
`Gabrielle Redford, DACA Students Risk
`Everything to Become Doctors (Sept.
`17, 2018), https://www.aamc.org/news-
`insights/daca-students-risk-everything-
`become-doctors ............................................ 20, 21
`
`
`
`vi
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Health Res. & Servs. Admin., U.S. Dep’t
`of Health & Human Servs., Cost
`Estimates for Training Residents in a
`Teaching Health Center, (last visited
`Sept. 24, 2019) https://bhw.hrsa.gov/
`sites/default/files/bhw /grants/thc-
`costing-fact-sheet.pdf ........................................ 12
`Health Res. & Servs. Admin., U.S. Dep’t
`of Health & Human Servs., Health
`Professional Shortage Areas (last
`visited Sept. 4, 2019), https://bhw.
`hrsa.gov/shortage-designation/hpsas ............... 18
`Health Res. & Servs. Admin., U.S. Dep’t
`of Health & Human Servs., Map Tool—
`Shortage Areas, (last visited Sept. 24,
`2019), https://data.hrsa.gov/hdw/tools/
`MapTool.aspx .................................................... 19
`Henry J. Kaiser Fam. Found., Dental
`Care Health Professional Shortage
`Areas (HPSAs) (last visited September
`24, 2019), https://tinyurl.com/
`yye44kpy ....................................................... 5, 18
`Henry J. Kaiser Fam. Found., Mental
`Health Care Health Professional
`Shortage Areas (HPSAs) (last visited
`September 24, 2019), https://
`tinyurl.com/y9u2g69b ................................... 5, 18
`Interview by Julie Pace with Donald
`Trump, Associated Press (Apr. 23,
`2017), https://tinyurl.com/lr7z7ye .................... 26
`Mark Murray et al., Panel Size: How
`Many Patients Can One Doctor
`
`
`
`vii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Manage?, Family Practice Mgmt. (April
`2007), https://www.aafp.org/fpm/
`2007/0400/p44.pdf ............................................... 3
`Nat’l Ctr. For Health Workforce
`Analysis, U.S. Dep’t of Health &
`Human Servs., State-Level Projections
`of Supply and Demand for Primary
`Care Practitioners: 2013-2025 (Nov.
`2016), https://bhw.hrsa.gov/sites/
`default/files/bhw/health-workforce-
`analysis/research/projections/primary-
`care-state-projections2013-2025.pdf ................ 18
`Nat’l Ctr. For Health Workforce
`Analysis, U.S. Dep’t of Health &
`Human Servs., Supply and Demand
`Projections of the Nursing Workforce:
`2014-2030 (July 21, 2017), https://
`bhw.hrsa.gov/sites/default/files/bhw/nc
`hwa/projections/NCHWA_HRSA_Nursi
`ng_Report.pdf .................................................... 18
`Nat’l Ctr. For Health Workforce
`Analysis, U.S. Dep’t of Health &
`Human Servs., National and Regional
`Projections of Supply and Demand for
`Internal Medicine Subspecialty
`Practitioners: 2013-2025 (Dec. 2016),
`https://bhw.hrsa.gov/sites/default/files/
`bhw/health-workforce-analysis/
`research/ projections/internal-
`medicine-subspecialty-report.pdf ..................... 18
`Nat’l Ctr. for Health Stat., Ctr. for
`Disease Control, National Ambulatory
`
`
`
`viii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Medical Care Survey: 2016 National
`Summary Tables (2016), https://
`www.cdc.gov/nchs/data/ahcd/namcs_su
`mmary/2016_namcs_web_tables.pdf .................. 3
`Nicole Prchal Svajlenka, What We Know
`About DACA Recipients in the United
`States, Ctr. for Am. Progress (Sept. 5,
`2019), https://www.american
`progress.org/issues/immigration/news/2
`019/09/05/474177/know-daca-
`recipients-united-states/ ..................................... 3
`Office of the Assistant Sec’y for
`Preparedness and Response, Dep’t of
`Health and Human Servs., National
`Health Security Strategy 2019-2002
`(last visited Sept. 24, 2019), https://
`www.phe.gov/Preparedness/planning/a
`uthority/nhss/Documents/NHSS-
`Strategy-508.pdf ................................................. 5
`Osea Giuntella & Jakub Lonsky, The
`Effect of DACA on Health Insurance,
`Access to Care, and Health Outcomes,
`IZA Inst. Labor Econ. Discussion Paper
`Series (Apr. 2018) ............................................. 23
`The Physicians Found., 2018 Survey of
`America’s Physicians (2018), https://
`physiciansfoundation.org/wp-content/
`uploads/2018/09/physicians-survey-
`results-final-2018.pdf ......................................... 3
`Pre-Health Dreamers, Frequently Asked
`Questions & Answers about Medical
`School for Pre-med Undocumented
`
`
`
`ix
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Students Across the Nation, (last
`visited Sept. 24, 2019), https://
`tinyurl.com/yyhcsqkt ........................................ 15
`Sarah Conway & Alex V. Hernandez,
`Loyola’s DACA Medical Students,
`Largest Group in the Country, Plagued
`with Uncertainty, Chicago Trib. (Sept.
`13, 2017), https://tinyurl.com/
`y485wmxu ......................................................... 11
`Shoba Sivaprasad Wadhia, Demystifying
`Employment Authorization &
`Prosecutorial Discretion in
`Immigration Cases, 6 Colum. J. Race &
`L. 1 (2016) ........................................................... 9
`Hector Sanchez Perez, Student Blog: I’m
`a Mailman Dreamer (Feb 20, 2018),
`https://www.mailman.columbia.edu/pu
`blic-health-now/news/student-blog-im-
`mailman-dreamer ............................................. 20
`U.S. Census Bureau, Older People
`Projected to Outnumber Children for
`First Time in U.S. History (Sept. 6,
`2018) .................................................................. 17
`Wullianallur Raghupathi & Viju
`Raghupathi, An Empirical Study of
`Chronic Diseases in the United States:
`A Visual Analytics Approach to Public
`Health, 15 Int’l J. Envtl. Res. & Pub.
`Health 431 (Mar. 2018), https://
`www.ncbi.nlm.nih.gov/pmc/articles/PM
`C5876976/ .......................................................... 17
`
`
`
`
`
`
`INTEREST OF AMICI CURIAE
`The Association of American Medical Colleges
`(“AAMC”) is a non-profit educational association
`whose members include all 154 accredited U.S.
`medical schools, nearly 400 major teaching hospitals
`and health systems, and 80 academic and scientific
`societies.1 Through these institutions and organiza-
`tions, the AAMC represents 173,000 faculty members,
`89,000 medical students, and 129,000 resident
`physicians. Founded in 1876, the AAMC, through its
`many programs and services, strengthens the world’s
`most advanced medical care by supporting the entire
`spectrum of education, research, and patient care
`activities conducted by its member institutions.
`The AAMC is joined in this brief by thirty-two
`organizations whose members
`include schools,
`residency programs, and other institutions involved in
`educating and training health care providers and
`administrators:
`America’s Essential Hospitals, American
`Academy of Child and Adolescent Psychiatry,
`American Academy of Family Physicians,
`American Association of Colleges of Nursing,
`American Association of Colleges of Pharmacy,
`American College of Healthcare Executives,
`American College of Obstetricians and
`Gynecologists, American College of Physicians,
`American College of Preventive Medicine,
`American Dental Education Association,
`
`1 No counsel to a party authored this brief in whole or in part,
`no such counsel or a party made a monetary contribution
`intended to fund the preparation or submission of the brief, and
`no person other than the amici curiae made such a monetary con-
`tribution. The parties have consented to the filing of this brief.
`
`
`
`
`2
`American Medical Association, American
`Medical Student Association, American Nurses
`Association, American Psychiatric Association,
`American Public Health Association, American
`Society of Hematology, American Society of
`Nephrology, American Thoracic Society,
`Association of Academic Health Centers,
`Association of American Indian Physicians,
`Association of Schools and Programs of Public
`Health, Association of Schools of Allied Health
`Professions,
`Association
`of
`University
`Programs in Health Administration, California
`Medical Association, Council on Social Work
` Greater New York Hospital
`Education,
`Association, National Council of Asian Pacific
`Islander Physicians, National Hispanic Medical
`Association, National Medical Association,
`Physician Assistant Education Association, Pre-
`Health Dreamers, and Society of General
`Internal Medicine.
` Additional
`information
`regarding these organizations is provided in the
`Addendum to this brief.
`SUMMARY OF THE ARGUMENT
`The law is clear that the government cannot rescind
`a longstanding policy without, at a minimum,
`seriously considering the reliance interests that would
`be disrupted by such a change in course. Yet in this
`case, the government failed to make any serious effort
`to consider any of the substantial reliance interests
`affected by the rescission of the Deferred Action for
`Childhood Arrivals (“DACA”) program.
`This is particularly true with respect to the health
`care sector, for which the avoidance of unnecessary
`harm is a guiding principle. At this moment, an
`estimated 27,000 health care workers and support
`
`
`
`3
`staff depend on DACA for their authorization to work
`in the United States.2 Among those 27,000 are
`nurses, dentists, pharmacists, physician assistants,
`home health aides, technicians, and others. Id.
`The number also includes nearly 200 medical
`students, medical residents, and physicians who
`depend on DACA for their eligibility to practice
`medicine. If those trainees and physicians retain
`their work eligibility, each will care for an average of
`between 1,533 and 4,600 patients a year.3 Together,
`over the course of their careers, they will touch the
`lives of 1.7 to 5.1 million U.S. patients.4
`
`
`2 Nicole Prchal Svajlenka, What We Know About DACA
`Recipients in the United States, Ctr. for Am. Progress (Sept. 5,
`2019),
`https://www.americanprogress.org/issues/immigration/
`news/2019/09/05/474177/know-daca-recipients-united-states/
`(estimates based upon occupations under health care
`practitioners and technical occupations and health care support
`from the University of Minnesota’s Integrated Public Use
`Microdata Series (IPUMS) USA 2017 American Community
`Survey occupational classification data).
`3 The Physicians Found., 2018 Survey of America’s
`Physicians at 57 (2018), https://physiciansfoundation.org/wp-
`content/uploads/2018/09/physicians-survey-results-final-
`2018.pdf (data indicating physicians see 20 patients per day on
`average, and work 230 days per year); Mark Murray et al., Panel
`Size: How Many Patients Can One Doctor Manage?, Family
`Practice Mgmt. at 47 (April 2007), https://www.aafp.org/fpm/
`2007/0400/p44.pdf (data indicates each patient is seen by their
`doctor one to three times a year).
`4 This calculation is based on 14.3% of patients being new
`patients during any given year, see Nat’l Ctr. for Health Stat.,
`Ctr. for Disease Control, National Ambulatory Medical Care
`Tables
`(2016),
`Survey:
`2016 National
`Summary
`https://www.cdc.gov/nchs/data/ahcd/namcs_summary/2016_nam
`cs_web_tables.pdf, and an average career length of 35 years,
`
`
`
`4
`If DACA is rescinded, however, almost none of these
`people will be able to serve the American public in
`their chosen fields. This action would therefore
`nullify the substantial and long-term investments
`that DACA recipients, educational institutions, and
`the public have made in educating and training those
`recipients to provide needed health care services to
`the Nation.
` Their
`loss will have potentially
`devastating effects. It can take a decade or more to
`educate and train a new physician. As health care
`professional institutions and organizations, amici
`know that the resources to competently train capable
`physicians, nurses, and other medical and public
`health professionals are subject to substantial
`limitations. Each year and each dollar that a school
`spends to train one future physician or other health
`care worker is a year or dollar not spent training
`another. The decision to expend vast amounts of time,
`money, and effort in educating and training DACA
`recipients in the health care sector was thus made in
`reliance on the expectation that such individuals
`would be able to serve the public once educated and
`trained. Rescinding the program negates all of that
`substantial time, money, and effort spent.
`Nor is the country prepared to fill the loss that
`would result if DACA recipients were excluded from
`the health care workforce. The number of physicians
`in the United States has not kept pace with our
`growing and aging population and a commensurate
`increase in patients needing care for a variety of
`chronic health conditions. It is estimated that in the
`next eleven years, the country will have between
`
`using data from the AAMC’s 2019 National Sample Survey of
`Physicians, (publication forthcoming; data on file with AAMC).
`
`
`
`5
`46,900 and 121,900 fewer primary and specialty care
`physicians than it needs.5 Shortages in other health
`professions, such as mental health, dentistry, and
`nursing, are worsening as well.6 These shortages will
`be felt most keenly in medically underserved areas,
`such as rural settings and poor neighborhoods—
`precisely the areas in which DACA recipients are
`likeliest to work.7
`The risk of a pandemic also continues to grow, since
`infectious diseases can spread around the globe in a
`matter of days due to increased urbanization and
`international travel.8 These conditions pose a threat
`to America’s health security—its preparedness for
`and ability to withstand incidents with public-health
`consequences. To ensure health security, the country
`needs a robust health workforce. Rescinding DACA,
`however, would deprive the public of domestically
`educated, well-trained, and otherwise qualified health
`
`5 Ass’n of Am. Med. Colls., The Complexities of Physician
`Supply & Demand: Projections from 2017 to 2032 at 2 (Apr.
`2019), https://tinyurl.com/yxbh2nhv.
`6 See Henry J. Kaiser Fam. Found., Mental Health Care
`Health Professional Shortage Areas (HPSAs) (last visited
`September 24, 2019), https://tinyurl.com/y9u2g69b; Henry J.
`Kaiser Fam. Found., Dental Care Health Professional Shortage
`(last
`visited September
`24,
`2019),
`Areas
`(HPSAs)
`https://tinyurl.com/yye44kpy.
`7 Angela Chen, PhD et al., PreHealth Dreamers: Breaking
`More Barriers Survey Report at 27
`(Sept. 2019),
`https://tinyurl.com/y436och3.
`8 Office of the Assistant Sec’y for Preparedness and Response,
`Dep’t of Health and Human Servs., National Health Security
`Strategy 2019-2002 at 5-6, (last visited Sept. 24, 2019),
`https://www.phe.gov/Preparedness/planning/authority/nhss/Doc
`uments/NHSS-Strategy-508.pdf.
`
`
`
`6
`care professionals who have been provided education
`in reliance on their ability to continue to work in the
`United States as health care professionals.
`As the courts below correctly recognized, the govern-
`ment failed to seriously consider these or any of the
`other substantial reliance interests engendered by
`DACA. By rescinding DACA on the basis of a cursory
`and conclusory analysis that failed to consider real-
`world effects, the government ignored the significant
`reliance interests of U.S. health professional schools,
`hospitals, other institutions, and U.S. patients, as
`well as those of DACA recipients themselves. The
`rescission was therefore arbitrary and capricious, and
`the decisions below should be affirmed.
`ARGUMENT
`I. AGENCIES CANNOT CHANGE POLICIES
`WITHOUT FAIRLY ADDRESSING
`RELIANCE INTERESTS.
`Under the Administrative Procedure Act (“APA”),
`courts must set aside agency actions that are
`“arbitrary, capricious, [or] an abuse of discretion.” 5
`U.S.C. § 706(2)(A). That standard requires an agency
`to “examine the relevant data and articulate a
`satisfactory explanation for its action.” Motor Vehicle
`Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
`Co., 463 U.S. 29, 43 (1983). An agency acts arbitrarily
`or capriciously if it “fail[s] to consider an important
`aspect of the problem” it is addressing. Id.
`Where—as here—an agency considers reversing or
`rescinding an existing policy, one “important aspect of
`the problem,” State Farm, 463 U.S. at 43, is the
`possibility that segments of the public may have
`ordered their affairs in reliance on existing rules.
`This Court has made clear that in such circumstances,
`
`
`
`7
`least—“display
`the very
`an agency must—at
`awareness that it is changing position” and “take[]
`into account” any “serious reliance interests” fostered
`by the prior policy. FCC v. Fox Television Stations,
`Inc., 556 U.S. 502, 515 (2009). The agency cannot act
`in spite of those interests without providing a
`“reasoned explanation * * * for disregarding facts and
`circumstances that * * * were engendered by the prior
`policy.” Id. at 516. To “ignore such matters” violates
`the APA. Id. at 515.
`This Court has applied the Fox standard to informal
`policy statements. In Encino Motorcars, LLC v.
`Navarro, 136 S. Ct. 2117 (2016), the Court invalidated
`a regulation that classified certain employees as
`subject to federal wage-and-hour laws. Id. at 2123,
`2126. Because that regulation contravened a prior,
`informal policy statement excluding those same
`employees, the Court held that the agency needed to
`provide more than a “summary discussion” before
`issuing it. Id. at 2126. Indeed, in light of the “serious
`reliance
`interests * * * at stake,” any “reasoned
`explanation” had to justify not only the rule the
`agency adopted, but also the “decision to depart from
`its existing enforcement policy.” Id. at 2126-27
`(agency had “duty to explain why it deemed it
`necessary to overrule its previous position”). What
`might “suffice in other circumstances”—i.e., where an
`agency is writing on a blank slate—is inadequate
`where an agency decision reflects a departure from
`prior enforcement policy. Id. at 2126; see also, e.g.,
`Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102, 1114 (D.C.
`Cir. 2019)
`(agency action “was arbitrary and
`capricious”
`in
`“departing
`from” a prior non-
`enforcement policy while “failing to consider * * * the
`reliance interests” of regulated parties and others).
`
`
`
`8
`As the courts below recognized, the government’s
`decision to end DACA “demonstrates no true
`cognizance of the serious reliance interests at issue.”
`NAACP v. Trump, 315 F. Supp. 3d 457, 473 (D.D.C.
`2018). Respondents have raised this issue in broad
`terms. See Br. for Regents of Univ. of Cal., at 40-43.
`As further shown below, the issue is substantial and
`far-reaching: health professional schools, hospitals,
`and other institutions have made significant, long-
`term investments of time and money in the training
`of DACA recipients wholly in reliance on these
`individuals’ continued work authorization under
`DACA. These investments were made amidst severe
`shortages of trained health care workers, where the
`nation needs every single one available. Nothing in
`the record shows that the government considered
`these or any other disruptions of significant reliance
`interests at all, much less gave them the serious
`consideration that the law requires. And because the
`courts below correctly found that the government did
`not, this Court should affirm the judgments and hold
`that DACA’s rescission was arbitrary and capricious.
`II. LOSS OF DACA STATUS FOR HEALTH
`CARE TRAINEES AND PROFESSIONALS
`WOULD NULLIFY SUBSTANTIAL
`INVESTMENTS MADE BY SCHOOLS,
`OTHER INSTITUTIONS, AND
`RECIPIENTS, TO THE PUBLIC’S
`SIGNIFICANT DETRIMENT.
`A. Recipients Depend On DACA For Their
`Work Eligibility.
`The reliance interests in this case arise because
`DACA is the sole source of work authorization for
`
`
`
`9
`most of its recipients.9 Such authorization is critical
`to anyone seeking to practice medicine or otherwise
`work in the health care sector in the United States.
`Federal law prohibits anyone from hiring or from
`continuing to employ any person who
`is not
`authorized by the federal government to work. See 8
`U.S.C. §§ 1324a(a)(1)-(2), (h)(3).
`As relevant here, only three classes of noncitizens
`are eligible for work authorization: those who are
`lawfully admitted to the United States, those who
`have visas, and those eligible to apply for work
`authorization owing to specific circumstances. See 8
`C.F.R. § 274a.12. By definition, DACA recipients have
`entered the country without legal authorization, and
`thus are only eligible—if at all—for work
`authorization under the third category.
`DACA thus provides its recipients with a way to be
`self-sufficient and contribute to the U.S. workforce
`and economy. Any noncitizen “who has been granted
`deferred action” may apply
`for and receive
`authorization so long as “the alien establishes an
`economic necessity for employment.”
` 8 C.F.R.
`§ 274a.12(c)(14).
`
`
`9 See Shoba Sivaprasad Wadhia, Demystifying Employment
`Authorization & Prosecutorial Discretion in Immigration Cases,
`6 Colum. J. Race & L. 1, 3 (2016) (DACA provides a route to work
`authorization that the “vast majority” of its recipients would
`otherwise lack).
`
`
`
`10
`B. Medical Schools, Teaching Hospitals,
`And Other Educational And Health
`Care Institutions Expended Vast
`Amounts Of Time, Money, And Other
`Resources In Reliance On DACA.
`Medical schools, teaching hospitals, and other
`health care institutions have invested heavily in
`DACA recipients, in reliance on the premise that they
`would be legally authorized to perform the jobs for
`which they have been, or are being, trained. Those
`investments, moreover, were made to serve the public
`interest, as the country faces an ever-increasing
`shortage in the number of health care professionals.
`Since 1982, students who arrived in the United
`States without legal authorization as children have
`been able to benefit from public K-12 education.
`Plyler v. Doe, 457 U.S. 202, 223 (1982). Some of these
`children have
`found ways to pay
`for college
`educations. However, prior to DACA, medical school
`was not a realistic option
`for undocumented
`immigrants who were brought to the U.S. as children.
`Without formal recognition of deferred action status
`from the government, undocumented immigrants
`were legally foreclosed from working as licensed
`physicians and thus could not meet the technical
`standards for admission into most medical schools.
`There are a limited number of seats in medical
`schools, and each medical school takes seriously its
`responsibility to the public to use every available seat
`to produce a physician capable of contributing to the
`health care workforce. Consequently, before 2013 no
`medical school had any published policy allowing
`undocumented immigrants to be accepted into their
`programs.
`
`
`
`11
`DACA changed this calculus. As related by one
`department chair, DACA provided the “missing link”
`for medical schools to accept qualified noncitizens
`because it offered a route to work permits for
`recipients.10 In the autumn of 2013, the first DACA
`recipients entered medical school, and in the ensuing
`years
`the number of DACA applicants and
`matriculants steadily grew.
` As of the 2019
`application cycle, 65 medical schools across the
`country have reported admissions policies that
`include DACA recipients. Those schools include
`Alpert Medical School at Brown University,
`Georgetown University School of Medicine, Harvard
`Medical School, Stritch School of Medicine at Loyola
`University (“Stritch”), Michigan State University
`College of Human Medicine, University of Minnesota
`Medical School, University of Nevada Reno School of
`Medicine, Medical College of Wisconsin, Yale School
`of Medicine, and others. According to AAMC data,
`nearly 200 DACA recipients have matriculated into
`medical school, and many of them have graduated and
`entered or completed their medical residencies.
`It was DACA that allowed medical schools to accept
`and train nearly all of these students. For example,
`Rosa Aramburo graduated college with degrees in
`biology and literature. Id. One of her college advisors
`wrote to the department chair of medical education at
`Stritch that “one of the brightest students he had ever
`encountered was about to slip through the cracks
`because of her undocumented status.”
`
`Id.
`
`10 Sarah Conway & Alex V. Hernandez, Loyola’s DACA
`Medical Students, Largest Group in the Country, Plagued with
`Uncertainty,
`Chicago
`Trib.
`(Sept.
`13,
`2017),
`https://tinyurl.com/y485wmxu.
`
`
`
`12
`Dr. Aramburo’s talent and drive, along with DACA’s
`extension of work authorization, inspired Stritch to
`admit her. She has since earned her M.D. and is now
`in the first year of her Obstetrics and Gynecology
`residency.
`More broadly, DACA recipients, like their citizen
`counterparts, were selected for admission to medical
`school because of their academic and personal
`achievements. Many were high school valedictorians.
`Most have undergraduate degrees in complex sci-
`ences, such as integrative biology, neurology, physics,
`and molecular and cellular biology. Many have
`impressive volunteer and leadership experiences. All
`scored
`competitively on
`the Medical College
`Admission Test. Moreover, the very fact of their
`having met the rigorous qualifications for admission
`to medical school
`is a
`testament
`to
`their
`determination and fortitude—precisely the attributes
`one looks for in a physician.
`Teaching hospitals have also invested substantial
`time and money in training residents with DACA-
`dependent work autho
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