You can download it here. Here is the summary of the argument:
The Executive Branch unilaterally created a pro- gram that will grant “lawful presence” and eligibility for a host of benefits to over four million aliens present in this country unlawfully. This program, which is called DAPA, goes far beyond prioritizing which aliens to re- move.
The district court entered a preliminary injunction of DAPA under the Administrative Procedure Act, and the court of appeals affirmed. Both courts explained that the injunction does not require the Executive to remove any alien and does not impair the Executive’s ability to prioritize aliens for removal. Indeed, on the same day it announced DAPA, the Executive issued a separate memorandum defining categories of aliens prioritized for removal. This lawsuit has never chal- lenged that separate memorandum.
The questions presented are:
1.a. Whether at least one respondent has standing to challenge DAPA.
1.b. Whether DAPA is unreviewable under the Ad- ministrative Procedure Act.
2. Whether DAPA is contrary to law or violates the Constitution.
3. Whether DAPA was subject to the Administrative Procedure Act’s notice-and-comment requirement.
Here is Texas’s argument about why certiorari is unimportant. These echo themes that Ilya Shapiro and I address about why the Court need not rush the case:
Petitioners rely almost exclusively on DAPA’s “great and immediate significance.” Pet. 35; see Pet. 33- 34. This argument contradicts petitioners’ own charac- terization of DAPA as a general statement of policy, which merely advises the public of the Secretary of Homeland Security’s tentative intentions. Pet. 29. If that characterization were accurate, further review would be unwarranted: An interlocutory decision that creates no splits does not merit review simply because it temporarily halts the implementation of a tentative policy statement that has no legal significance.
In reality, of course, DAPA is a significant and im- mediate change in immigration law and policy. But this only highlights the breadth of petitioners’ theory of Ex- ecutive power. According to petitioners, this crucial pol- icy shift (1) does not affect respondents enough to cre- ate a case or controversy, (2) cannot be reviewed by any court, (3) falls within the Executive’s unbridled discre- tion, and (4) did not even require notice-and-comment procedure to implement. That is a remarkable claim.
This particular assertion of unilateral Executive power occurred in the immigration context. But if peti- tioners’ arguments are accepted, there is nothing stop- ping this Executive or future Executives from invoking resource constraints to declare conduct lawful in other areas—such as environmental, tax, criminal, campaign- finance, and civil-rights laws. Pet. App. 328a.
Petitioners urge a view of Executive power that is manifestly contrary to our separation of powers. Certi- orari is therefore unwarranted. But if the case merits review, it is to affirm the injunction of DAPA and thereby ensure the proper functioning of the adminis- trative state, maintain the separation of powers, and reject petitioners’ sweeping assertion of Executive au- thority.