Late Friday night, the United States filed its Sur-Reply Brief in Texas v. United States. I will go through the brief in detail in several posts. For now, I will observe that the government has significantly upped its game from its previous filing, which was lackluster. The arguments are much more refined, and blow away the superficial analysis present in the OLC memo. I suspect some lawyers from the Solicitor General’s office may have gotten involved, though the signature line remains the same.
Also, the brief has a number of important appendixes, including an declaration from Donald Neufeld (Associate Director for Service Operations) who explains how DACA works in some detail (Exhibit 44, p. 120 of PDF), as well 10 previously unreleased memos from Secretary Johnson that were provided at the “Court’s request.” In these exhibits, the government makes a number of important concessions that both help, and hurt their argument.