One of the major themes in the Texas v. United States litigation is the scope of the discretion, and whether DAPA entails a case-by-case exercise of judgment. In Part II, I argued that it does not.

In its sur-reply, the government offers its most authoritative discussion yet about how the program is structured. Although, by doing so, it becomes vulnerable to criticisms that its policy only discretion in name only.

First, the government explains that the “creation of a framework” is an exercise of discretion (pp. 30-31):

Contrary to Plaintiffs’ claim, the fact that the Secretary has established a framework for the exercise of DHS’s prosecutorial discretion, which nevertheless preserves ultimate decisionmaking on a case-by-case basis, does not remove that exercise of discretion from the rule of Chaney and the non-reviewability of exercised of enforcement discretion. As explained previously, the creation of a framework itself is an exercise of discretion.See Lopez v. Davis, 531 U.S. 230, 243-44 (2001).

In other words, the mere fact that the secretary created a framework (what became known as the DACA Denial Template) was an act of discretion. The government has taken this position internally, but I have not seen it stated publicly. For example, in this guidance slide, DHS explains that the “Secretary has determined how this discretion is to be applied.” It adds,”Although discretion to defer removal is applied on a case-by-case basis, according to the facts and circumstances of a particular case, discretion should be applied consistently.”

Let’s consider the support for this. Lopez v. Davis considers a Bureau of Prisons regulation “categorically denying early release to prisoners, based on completion of drug treatment program, if a prisoner’s current offense was a felony attended by the carrying, possession, or use of a firearm.” The Court held that the “BOP had discretion, under governing statute, to promulgate regulation categorically denying early release to prisoners whose felonies involved use a firearm.”

Justice Ginsburg’s majority opinion for the Court explained that the Bureau of Prisons can rely on categorical exclusions when determining whether to release a prisoner early.

We also reject Lopez’s argument, echoed in part by the dissent, post, at 726, that the agency must not make categorical exclusions, but may rely only on case-by-case assessments.5 “[E]ven if a statutory scheme requires individualized *244 determinations,” which this scheme does not, “the decisionmaker has the authority to rely on **724 rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority.” American Hospital Assn. v. NLRB, 499 U.S. 606, 612, 111 S.Ct. 1539, 113 L.Ed.2d 675 (1991); accord, Heckler v. Campbell, 461 U.S. 458, 467, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). The approach pressed by Lopez—case-by-case decisionmaking in thousands of cases each year, see supra, at 723, n. 4—could invite favoritism, disunity, and inconsistency. The Bureau is not required continually to revisit “issues that may be established fairly and efficiently in a single rulemaking proceeding.” Heckler, 461 U.S., at 467, 103 S.Ct. 1952.

In dissent, Justice Stevens, joined by the Chief and Justice Kennedy explained that individualized decisionmaking need not be “standardless.”

The majority’s worry that individualized decisionmaking might lead to “favoritism, disunity, and inconsistency” is similarly misplaced. Ante, at 724. To suggest that decisionmaking must be individualized is not to imply that it must also be standardless. If the Court today invalidated the regulation in question, its decision would not preclude the BOP from adopting a uniform set of criteria for consideration in evaluating applications for sentence reductions. Nor would it necessarily preclude the Bureau from giving dispositive weight to certain postconviction criteria or near-dispositive weight to preconviction criteria. Cf. Heckler v. Campbell, 461 U.S. 458, 467, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). The Bureau would remain free to structure its decisionmaking in any way it saw fit as long as in so doing it did not contravene policy decisions explicitly made by the statute’s drafters.

Lopez, which I had not seen the government mention before (not cited in opening brief), seems difficult to be the guiding precedent here. The OLC memo, which justifies the legality of DAPA, explains over and over and over again how officers exercise discretion on a case-by-case basis. Nowhere in that discussion is there any mention of the Secretary’s framework becoming the discretion. This is a different argument than that was advanced before. I’m not sure if it is better. Now DOJ has adopted an argument that fits with other precedents, but pushes DAPA away from the slim legal reed OLC balanced it on.

Further, the precedent Lopez relies on, American Hospital Association v. NLRB describes the Framework at a much higher level of generality, allowing the officers to exercise *some* discretion.

In resolving such a dispute, the Board’s decision is presumably to be guided not simply by the basic policy of the Act but also by the rules that the Board develops to circumscribe and *612 to guide its discretion either in the process of case-by-case adjudication or by the exercise of its rulemaking authority. The requirement that the Board exercise its discretion in every disputed case cannot fairly or logically be read to command the Board to exercise standardless discretion in each case. As a noted scholar on administrative law has observed: “[T]he mandate to decide ‘in each case’ does not prevent the Board from supplanting the original discretionary chaos with some degree of order, and the principal instruments for regularizing the system of deciding ‘in each case’ are classifications, rules, principles, and precedents. Sensible men could not refuse to use such instruments and a sensible Congress would not expect them to.” K. Davis, Administrative Law Text § 6.04, p. 145 (3d ed. 1972). … This reading of the “in each case” requirement comports with our past interpretations of similar provisions in other regulatory statutes. See United States v. Storer Broadcasting Co., 351 U.S. 192, 205, 76 S.Ct. 763, 771-772, 100 L.Ed. 1081 (1956); FPC v. Texaco, Inc.,377 U.S. 33, 41-44, 84 S.Ct. 1105, 1110-1112, 12 L.Ed.2d 112 (1964); Heckler v. Campbell, 461 U.S. 458, 467, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66 (1983). These decisions confirm that, even if a statutory scheme requires individualized determinations, the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority.

Texas is not asking for “standardless discretion,” but rather asking for any discretion for the officers, so it is in fact a case-by-case judgment. No such discretion is permissible here. If an alien meets the criteria of the secretary’s framework, the inquiry is effectively over. Even if this approach is consistent with the BOP policy, it is so out of whack with previous immigration decisions, which vested officers with substantial authority. Finally, the Lopez decision referenced whether “Congress clearly expresses an intent to withhold that authority.” Isn’t that the question for this case? Did Congress give the Secretary such discretion. If the answer is yes, the government wins. But if the answer is no, the fact that no additional case-by-case discretion exists severely weakens the United States’s case.