Skip to content

Judicial Watch • US v. Texas 5th Circuit DAPA ruling 40238

US v. Texas 5th Circuit DAPA ruling 40238

US v. Texas 5th Circuit DAPA ruling 40238

Page 1: US v. Texas 5th Circuit DAPA ruling 40238

Category:

Number of Pages:135

Date Created:June 23, 2016

Date Uploaded to the Library:June 23, 2016

Tags:DAPA, discretion, Majority, WYOMING, Ruling, aliens, uscis, massachusetts, action, Memorandum, Amnesty, Deferred, immigration, Plaintiffs, Illegal Immigration, AGENCY, Congress, DHS, Circuit, Secretary, filed, Obama, White House, document, texas, Supreme Court, states, united, EPA, IRS, ICE, CIA


File Scanned for Malware

Donate now to keep these documents public!


See Generated Text   ∨

Autogenerated text from PDF

Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
REVISED November 25, 2015 THE UNITED STATES COURT APPEALS
United States Court Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
__________
No. 15-40238
__________
FILED
November 2015
Lyle Cayce
Clerk
STATE TEXAS; STATE ALABAMA; STATE GEORGIA;
STATE IDAHO; STATE INDIANA; STATE KANSAS;
STATE LOUISIANA; STATE MONTANA; STATE NEBRASKA;
STATE SOUTH CAROLINA; STATE SOUTH DAKOTA;
STATE UTAH; STATE WEST VIRGINIA; STATE WISCONSIN;
PAUL LEPAGE, Governor, State Maine;
PATRICK MCCRORY, Governor, State North Carolina; BUTCH OTTER, Governor, State Idaho;
PHIL BRYANT, Governor, State Mississippi;
STATE NORTH DAKOTA; STATE OHIO; STATE OKLAHOMA;
STATE FLORIDA; STATE ARIZONA; STATE ARKANSAS;
ATTORNEY GENERAL BILL SCHUETTE; STATE NEVADA;
STATE TENNESSEE,
Plaintiffs Appellees,
versus
UNITED STATES AMERICA;
JEH CHARLES JOHNSON, Secretary, Department Homeland Security; GIL KERLIKOWSKE,
Commissioner U.S. Customs and Border Protection;
RONALD VITIELLO,
Deputy Chief U.S. Border Patrol, U.S. Customs and Border Protection;
SARAH SALDANA,
Director U.S. Immigration and Customs Enforcement;
LEON RODRIGUEZ, Director U.S. Citizenship and Immigration Services,
Defendants Appellants.
_______________________
Appeal from the United States District Court
for the Southern District Texas
_______________________
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
Before KING, SMITH, and ELROD, Circuit Judges.
JERRY SMITH, Circuit Judge:
The United States appeals preliminary injunction, pending trial, forbidding implementation the Deferred Action for Parents Americans and
Lawful Permanent Residents program DAPA
Twenty-six states (the
states challenged DAPA under the Administrative Procedure Act APA
and the Take Care Clause the Constitution; impressive and thorough
Memorandum Opinion and Order issued February 16, 2015, the district court
enjoined the program the ground that the states are likely succeed
their claim that DAPA subject the APA procedural requirements. Texas United States, Supp. 591, 677 (S.D. Tex. 2015).
The government appealed and moved stay the injunction pending
resolution the merits. After extensive briefing and more than two hours
oral argument, motions panel denied the stay after determining that the
appeal was unlikely succeed its merits. Texas United States, 787 F.3d
733, 743 (5th Cir. 2015). Reviewing the district court order for abuse discretion, affirm the preliminary injunction because the states have standing;
they have established substantial likelihood success the merits their
procedural and substantive APA claims; and they have satisfied the other elements required for injunction.
This opinion refers the defendants collectively the United States the government unless otherwise indicated. refer the plaintiffs collectively the states, but appropriate refer only Texas because the only state that the district court determined have standing. find unnecessary, this early stage the proceedings, address decide
the challenge based the Take Care Clause. cite the district court opinion Dist. Ct. Op., Supp. ___.
Our dedicated colleague has penned careful dissent, with which largely but
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238 June 2012, the Department Homeland Security DHS implemented the Deferred Action for Childhood Arrivals program DACA the
DACA Memo agency heads, the DHS Secretary set[] forth how, the exercise prosecutorial discretion, [DHS] should enforce the Nation immigration laws against certain young people and listed five criteria [that]
should satisfied before individual considered for exercise prosecutorial discretion. The Secretary further instructed that [n]o individual
should receive deferred action unless they [sic] first pass background
check and requests for relief are decided case case basis.
Although stating that [f]or individuals who are granted deferred action
[U.S. Citizenship and Immigration Services USCIS shall accept applications determine whether these individuals qualify for work authorization,
the DACA Memo purported confer[] substantive right, immigration
status pathway citizenship. least 1.2 million persons qualify for
DACA, and approximately 636,000 applications were approved through 2014.
respectfully disagree. well-researched, however, and bears careful read.
Memorandum from Janet Napolitano, Sec Dep Homeland Sec., David Aguilar, Acting Comm U.S. Customs and Border Prot., al. (June 15, 2012) (the DACA
Memo
http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf.
Id. (stating that individual may considered [1] came the United States
under the age sixteen; [2] has continuously resided the United States for a[t] least five
years preceding [June 15, 2012] and present the United States [June 15]; [3] currently school, has graduated from high school, has obtained general education development certificate, honorably discharged veteran the [military]; [4] has not been
convicted felony offense, significant misdemeanor offense, multiple misdemeanor
offenses, otherwise poses threat national security public safety; and [5] not above
the age thirty
Id.
Id.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
Dist. Ct. Op., Supp. 609. November 2014, what termed the DAPA Memo, DHS expanded
DACA making millions more persons eligible for the program and extending [t]he period for which DACA and the accompanying employment authorization granted three-year increments, rather than the current twoyear increments. The Secretary also direct[ed] USCIS establish process, similar DACA, known DAPA, which applies individuals who have, [as November 20, 2014], son daughter who U.S. citizen
lawful permanent resident and meet five additional criteria. The Secretary
stated that, although [d]eferred action does not confer any form legal status this country, much less citizenship[,] [does] mean[] that, for specified
period time, individual permitted lawfully present the United
States. the approximately 11.3 million illegal aliens the United
Memorandum from Jeh Johnson, Sec Dep Homeland Sec., Leon Rodriguez,
Dir.,
USCIS,
al.
(Nov.
20,
2014),
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.
Id. The district court enjoined implementation the following three DACA
expansions, and they are included the term DAPA this opinion: (1) the age restriction
exclud[ing] those who were older than the date the [DACA] announcement will longer apply, id.; (2) [t]he period for which DACA and the accompanying employment
authorization granted will extended three-year increments, rather than the current
two-year increments, id.; (3) the eligibility cut-off date which DACA applicant must
have been the United States should adjusted from June 15, 2007 January 2010,
id. Dist. Ct. Op., Supp. 677 n.111.
DAPA Memo (directing that individuals may considered for deferred action they [1] have, [November 20, 2014], son daughter who U.S. citizen lawful
permanent resident; [2] have continuously resided the United States since before January 2010; [3] are physically present the United States [November 20, 2014], and
the time making request for consideration deferred action with USCIS; [4] have
lawful status [November 20, 2014]; [5] are not enforcement priority reflected the
November 20, 2014 Policies for the Apprehension, Detention and Removal Undocumented
Immigrants Memorandum; and [6] present other factors that, the exercise discretion,
makes the grant deferred action inappropriate
Id. (emphasis added).
Although [a]s general rule, not crime for removable alien remain
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
States, 4.3 million would eligible for lawful presence pursuant DAPA.
Dist. Ct. Op., Supp. 612 n.11, 670.
Lawful presence not enforceable right remain the United
States and can revoked any time, but that classification nevertheless has
significant legal consequences. Unlawfully present aliens are generally not
eligible receive federal public benefits, see U.S.C. 1611, state and local
public benefits unless the state otherwise provides, see U.S.C. 1621. But the government admits its opening brief, persons granted lawful presence
pursuant DAPA are longer bar[red] from receiving social security
present the United States, civil offense. Arizona United States, 132 Ct. 2492,
2505 (2012); see U.S.C. 1182(a)(9)(B)(i), 1227(a)(1)(A) (B). This opinion therefore refers such persons illegal aliens
The usual and preferable term [American English] illegal alien. The other
forms have arisen needless euphemisms, and should avoided neargobbledygook. The problem with undocumented that intended mean,
those who use this phrase, not having the requisite documents enter stay country legally. But the word strongly suggests unaccounted for those
unfamiliar with this quasi-legal jargon, and may therefore obscure the meaning.
More than one writer has argued favor undocumented alien [to] avoid[]
the implication that one unauthorized presence the United States crime
Moreover, wrong equate illegality with criminality, since many illegal acts
are not criminal. Illegal alien not opprobrious epithet: describes one present country violation the immigration laws (hence illegal
BRYAN GARNER, GARNER DICTIONARY LEGAL USAGE 912 (Oxford ed. 2011) (citations omitted). And the district court pointed out, the term used the Supreme
Court its latest pronouncement pertaining this area the law. Dist. Ct. Op., Supp. 605 n.2 (citing Arizona United States, 132 Ct. 2492, 2497 (2012)).
[I]legal alien has going for both history and well-documented, generally accepted use.
Matthew Salzwedel, The Lawyer Struggle Write, SCRIBES JOURNAL LEGAL WRITING
69, (2015).
Those provisions reflect Congress concern that aliens have been applying for and
receiving public benefits from Federal, State, and local governments increasing rates and
that [i]t compelling government interest remove the incentive for illegal immigration
provided the availability public benefits. U.S.C. 1601. Moreover, the provisions
incorporate national policy that aliens within the Nation borders not depend public
resources meet their needs and that [s]elf-sufficiency has been basic principle United
States immigration law since this country earliest immigration statutes. Id.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
retirement benefits, social security disability benefits, health insurance
under Part the Medicare program. That follows from 1611(b)(2) (3),
which provides that the exclusion benefits 1611(a) shall not apply
any benefit[s] payable under title[s] [and XVIII] the Social Security Act alien who lawfully present the United States determined
the Attorney General (emphasis added). lawfully present alien still
required satisfy independent qualification criteria before receiving those
benefits, but the grant lawful presence removes the categorical bar and
thereby makes otherwise ineligible persons eligible qualify.
Each person who applies for deferred action pursuant the [DAPA]
criteria shall also eligible apply for work authorization for the [renewable three-year] period deferred action. DAPA Memo The United
States concedes that [a]n alien with work authorization may obtain Social
Security Number, accrue quarters covered employment, and correct wage
records add prior covered employment within approximately three years
the year which the wages were earned limited circumstances thereafter.
The district court determined and the government does not
dispute that DAPA recipients would eligible for earned income tax credits
once they received Social Security number. for state benefits, although [a] State may provide that alien who not lawfully present the United States eligible for any State local
public benefit for which such alien would otherwise ineligible under
Brief for Appellants (citing U.S.C. 1611(b)(2) (3)).
Brief for Appellants (citation omitted) (citing U.S.C. 405(c)(1)(B), (4),
(5)(A) (J); C.F.R. 1.3(a)(4)(vi); C.F.R. 422.104(a)(2), 422.105(a)).
Dist. Ct. Op., Supp. 654 n.64; see also U.S.C. 32(c)(1)(E), (m) (stating
that eligibility for earned income tax credit limited individuals with Social Security
numbers); C.F.R. 422.104(a)(2), 422.107(a), (e)(1).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
subsection (a), 1621(d), Texas has chosen not issue driver licenses
unlawfully present aliens. Texas maintains that documentation confirming
lawful presence pursuant DAPA would allow otherwise ineligible aliens
become eligible for state-subsidized driver licenses.
Likewise, certain
unemployment compensation [b]enefits are not payable based services
performed alien unless the alien was lawfully present for purposes
performing the services Texas contends that DAPA recipients would
also become eligible for unemployment insurance.
The states sued prevent DAPA implementation three grounds.
First, they asserted that DAPA violated the procedural requirements the
APA substantive rule that did not undergo the requisite notice-andcomment rulemaking. See U.S.C. 553. Second, the states claimed that
DHS lacked the authority implement the program even followed the
correct rulemaking process, such that DAPA was substantively unlawful under
the APA. See U.S.C. 706(2)(A) (C). Third, the states urged that DAPA was abrogation the President constitutional duty take Care that the
Laws faithfully executed. U.S. CONST. art. II,
The district court held that Texas has standing. concluded that the
state would suffer financial injury having issue driver licenses
DAPA beneficiaries loss.
Dist. Ct. Op., Supp. 616 23.
TEX. TRANSP. CODE 521.142(a) applicant who not citizen the United
States must present documentation issued the appropriate United States agency that
authorizes the applicant the United States before the applicant may issued
driver license. (emphasis added)).
TEX. LAB. CODE 207.043(a)(2) (emphasis added); see also U.S.C.
3304(a)(14)(A) (approval state laws making compensation not payable aliens unless
they are lawfully present for purposes performing such services (emphasis added)).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
Alternatively, the court relied new theory called abdication standing
Texas had standing because the United States has exclusive authority over
immigration but has refused act that area. Id. 636 43. The court also
considered but ultimately did not accept the notions that Texas could sue
parens patriae behalf citizens facing economic competition from DAPA
beneficiaries and that the state had standing based the losses suffers generally from illegal immigration. Id. 625 36.
The court temporarily enjoined DAPA implementation after determining that Texas had shown substantial likelihood success its claim that
the program must undergo notice and comment. Id. 677. Despite full briefing, the court did not rule the Plaintiffs likelihood success their substantive APA claim their constitutional claims under the Take Care
Clause/separation powers doctrine. Id. appeal, the United States maintains that the states not have standing right judicial review and,
alternatively, that DAPA exempt from the notice-and-comment requirements. The government also contends that the injunction, including its nationwide scope, improper matter law.
II. review preliminary injunction for abuse discretion. preliminary injunction should issue only the states, movants, establish
(1) substantial likelihood success the merits, (2) substantial
threat irreparable injury the injunction not issued, (3) that the
threatened injury the injunction denied outweighs any harm that
will result the injunction granted, and (4) that the grant
injunction will not disserve the public interest.[ 22] each element the district court preliminary-injunction analysis
Sepulvado Jindal, 729 F.3d 413, 417 (5th Cir. 2013).
Id. (quoting Byrum Landreth, 566 F.3d 442, 445 (5th Cir. 2009)).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238 findings fact are subject clearly-erroneous standard review, while
conclusions law are subject broad review and will reversed
incorrect.
III.
The government claims the states lack standing challenge DAPA. will analyze, however, their standing plain, based the driver s-license
rationale, need not address the other possible grounds for standing. the parties invoking federal jurisdiction, the states have the burden establishing standing. See Clapper Amnesty Int USA, 133 Ct. 1138,
1148 (2013). They must show injury that concrete, particularized, and
actual imminent; fairly traceable the challenged action; and redressable favorable ruling. Id. 1147 (citation omitted). When litigant vested
with procedural right, that litigant has standing there some possibility
that the requested relief will prompt the injury-causing party reconsider the
decision that allegedly harmed the litigant. Massachusetts EPA, 549 U.S.
497, 518 (2007). [T]he presence one party with standing sufficient
satisfy Article III case-or-controversy requirement. Rumsfeld Forum for
Acad. Institutional Rights, Inc., 547 U.S. 47, n.2 (2006).
Id. (quoting Janvey Alguire, 647 F.3d 585, 591 (5th Cir. 2011)). did not reach this issue Crane Johnson, 783 F.3d 244 (5th Cir. 2015). There, concluded that neither the State Mississippi nor Immigration and Customs Enforcement ICE agents and deportation officers had standing challenge DACA. Id. 255. explicitly determined that Mississippi had waived the theory that Texas now advances: letter brief filed after oral argument, Mississippi put forward three new arguments support its standing, [including] (1) the cost issuing driver licenses DACA beneficiaries Because Mississippi failed provide evidentiary support these arguments and failed make these arguments their opening brief appeal and below, they have been waived.
Id. 252 n.34.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238 begin considering whether the states are entitled special solicitude our standing inquiry under Massachusetts EPA. They are.
The Court held that Massachusetts had standing contest the EPA
decision not regulate greenhouse-gas emissions from new motor vehicles,
which allegedly contributed rise sea levels and loss the state
coastal land. Massachusetts EPA, 549 U.S. 526. considerable
relevance that the party seeking review here sovereign State and not
private individual because States are not normal litigants for the purposes
invoking federal jurisdiction. Id. 518.
The Court identified two additional considerations that entitled Massachusetts special solicitude [the Court standing analysis. Id. 520.
First, the Clean Air Act created procedural right challenge the EPA
decision:
The parties dispute turns the proper construction congressional statute, question eminently suitable resolution federal
court. Congress has moreover authorized this type challenge EPA
action. That authorization critical importance the standing
inquiry: Congress has the power define injuries and articulate
The dissent, throughout, cleverly refers the states, more than forty times, the
plaintiffs, obscuring the fact that they are sovereign states (while referring the defendants the government See Dissent, passim.
The dissent attempts diminish the considerable significance the special
solicitude language, which, say the least, inconvenient the United States its effort defeat standing. The dissent protests that only single, isolated phrase that
appears only once. Dissent
The dissent, however, avoids mention the Court explanation that [i]t considerable relevance that the party seeking review here sovereign State. Massachusetts
EPA, 549 U.S. 518. light that enlargement the special solicitude phrase,
obvious that being state greatly matters the standing inquiry, and makes difference, the words the dissent, whether the majority means that states are afforded relaxed
standing inquiry virtue their statehood whether their statehood, [and] itself,
helps confer standing. Dissent
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
chains causation that will give rise case controversy where
none existed before. exercising this power, however, Congress
must the very least identify the injury seeks vindicate and relate
the injury the class persons entitled bring suit. will not,
therefore, entertain citizen suits vindicate the public nonconcrete
interest the proper administration the laws. 27]
Second, the EPA decision affected Massachusetts quasi-sovereign
interest its territory:
When State enters the Union, surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island force reductions greenhouse gas emissions, cannot negotiate emissions
treaty with China India, and some circumstances the exercise
its police powers reduce in-state motor-vehicle emissions might well pre-empted.
These sovereign prerogatives are now lodged the Federal Government, and Congress has ordered EPA protect Massachusetts (among
others) prescribing standards applicable the emission any air
pollutant from any class classes new motor vehicle engines, which [the Administrator judgment cause, contribute to, air pollution
which may reasonably anticipated endanger public health
welfare. 28]
Like Massachusetts, the instant plaintiffs the states are not normal
litigants for the purposes invoking federal jurisdiction, id. 518, and the
same two additional factors are present. First, [t]he parties dispute turns
the proper construction congressional statute, the APA, which authorizes challenges final agency action for which there other adequate
remedy court. U.S.C. 704. Similarly, the disagreement Massachusetts EPA concerned the interpretation the Clean Air Act, which provides
for judicial review final action taken[] the Administrator.
Massachusetts EPA, 549 U.S. 516 (citations omitted).
Id. 519 (alteration original) (citation omitted) (quoting U.S.C.
7521(a)(1)).
Id. 516.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238 U.S.C. 7607(b)(1). Further, will explain, the states are within the
zone interests the Immigration and Nationality Act INA they are not
asking entertain citizen suits vindicate the public nonconcrete interest the proper administration the laws. enacting the APA, Congress intended for those suffering legal wrong
because agency action have judicial recourse, and the states fall well
within that definition. The Clean Air Act review provision more specific
than the APA but the latter easily adequate justify special solicitude
here. The procedural right challenge EPA decisions created the Clean Air
Act provided important support Massachusetts because the challenge
Massachusetts sought bring challenge agency decision not
act traditionally the type for which most difficult establish standing
and justiciable issue. Texas, contrast, challenges DHS affirmative
decision set guidelines for granting lawful presence broad class illegal
aliens. Because the states here challenge DHS decision act, rather than its
decision remain inactive, procedural right similar that created the
Clean Air Act not necessary support standing. See U.S.C. 704. will show, DAPA would have major effect the states fiscs,
causing millions dollars losses Texas alone, and least Texas, the
See infra part IV.
Massachusetts EPA, 549 U.S. 516 (citation omitted). U.S.C. 702.
See New Mexico rel. Richardson Bureau Land Mgmt., 565 F.3d 683, 694,
696 n.13 (10th Cir. 2009) (holding that New Mexico was entitled special solicitude where
one its claims was based the APA); Wyoming rel. Crank United States, 539 F.3d
1236, 1241 (10th Cir. 2008) (holding that Wyoming was entitled special solicitude
where its only claim was based the APA).
See Heckler Chaney, 470 U.S. 821, 831 (observing that refusals take enforcement steps generally are subject agency discretion, and the presumption that judicial
review not available.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
causal chain especially direct: DAPA would enable beneficiaries apply for
driver licenses, and many would so, resulting Texas injury.
Second, DAPA affects the states quasi-sovereign interests imposing
substantial pressure them change their laws, which provide for issuing
driver licenses some aliens and subsidizing those licenses. [S]tates have sovereign interest the power create and enforce legal code.
Pursuant that interest, states may have standing based (1) federal assertions authority regulate matters they believe they control, (2) federal
preemption state law, and (3) federal interference with the enforcement
state law, least where the state statute issue regulate[s] behavior
provide[s] for the administration state program and does not simply
purport[] immunize [state] citizens from federal law. Those intrusions
are analogous pressure change state law.
Moreover, these plaintiff states interests are like Massachusetts
See, e.g., TEX. TRANSP. CODE 521.142(a) (specifying the requirements for licenses),
.181 (providing for the issuance licenses), .421(a) (setting the fees for licenses); Dist. Ct.
Op., Supp. 616 (finding that Texas subsidizes its licenses).
Tex. Office Pub. Util. Counsel FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting
Alfred Snapp Son, Inc. Puerto Rico rel. Barez, 458 U.S. 592, 601 (1982)).
See id.
See, e.g., Crank, 539 F.3d 1242; Alaska U.S. Dep Transp., 868 F.2d 441,
443 (D.C. Cir. 1989); Ohio rel. Celebrezze U.S. Dep Transp., 766 F.2d 228, 232 (6th Cir. 1985); cf. Diamond Charles, 476 U.S. 54, (1986) (commenting that State
has standing defend the constitutionality its statute but not relying that principle).
See Crank, 539 F.3d 1241 42; Celebrezze, 766 F.2d 232 33; cf. Maine Taylor,
477 U.S. 131, 137 (1986) (observing another context that State clearly has legitimate
interest the continued enforceability its own statutes
Virginia rel. Cuccinelli Sebelius, 656 F.3d 253, 269 (4th Cir. 2011).
Id. 270.
See Crank, 539 F.3d 1241 (reasoning that Wyoming was entitled special
solicitude where its asserted injury was interference with the enforcement state law).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
ways that implicate the same sovereignty concerns. When the states joined
the union, they surrendered some their sovereign prerogatives over immigration. They cannot establish their own classifications aliens, just
Massachusetts cannot invade Rhode Island force reductions greenhouse
gas emissions [and] cannot negotiate emissions treaty with China
India. The states may not able discriminate against subsets aliens their driver license programs without running afoul preemption the
Equal Protection Clause; similarly, some circumstances[, Massachusetts exercise its police powers reduce in-state motor-vehicle emissions
might well pre-empted. Both these plaintiff states and Massachusetts
now rely the federal government protect their interests. These parallels
confirm that DAPA affects the states quasi-sovereign interests.
The significant opinion Arizona State Legislature Arizona Independent Redistricting Commission, 135 Ct. 2652 (2015), announced shortly
before oral argument herein, reinforces that conclusion. The Court held that
the Arizona Legislature had standing sue response ballot initiative
that removed its redistricting authority and vested instead independent commission. Id. 2665 66. The Court emphasized that the legislature
was institutional plaintiff asserting institutional injury what
believed was its constitutional power regulate elections. Id. 2664. too
See generally Arizona United States, 132 Ct. 2498 2501.
See Villas Parkside Partners City Farmers Branch, 726 F.3d 524, 536 (5th
Cir. 2013) (en banc).
Massachusetts EPA, 549 U.S. 519.
The Ninth Circuit has suggested that, see Ariz. Dream Act Coal. Brewer, 757 F.3d
1053, 1061 (9th Cir. 2014), but need not decide the issue.
Massachusetts EPA, 549 U.S. 519.
See id.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
are the states asserting institutional injury their lawmaking authority. The
Court also cited Massachusetts EPA opining that the state that case
was entitled special solicitude our standing analysis. Id. 2664
n.10 (quoting Massachusetts EPA, 549 U.S. 520).
The United States suggests that three presumptions against standing
apply here. The first presumption that plaintiff lacks standing challenge decisions confer benefits on, not prosecute, third party. But the
cases the government cites for that proposition either did not involve standing; concerned only nonprosecution (as distinguished from both nonprosecution and the conferral benefits); merely reaffirmed that plaintiff must
satisfy the standing requirements.
The second presumption against justiciability the immigration context. None the cases the government cites involved standing and include
only general language about the government authority over immigration;
without specific discussion standing, they are limited relevance.
The third presumption that [t]he [Supreme] Court standing analysis has been especially rigorous when reaching the merits the dispute
would force [the Court] decide whether action taken one the other
See Chaney, 470 U.S. 823; United States Cox, 342 F.2d 167, 170 (5th Cir. 1965)
(en banc).
See Linda R.S. Richard D., 410 U.S. 614, 615 (1973).
See Henderson Stalder, 287 F.3d 374, 384 (5th Cir. 2002) (Jones, J., concurring).
See Arizona United States, 132 Ct. 2497; Sure-Tan, Inc. NLRB, 467 U.S.
883, 886 (1984); Plyler Doe, 457 U.S. 202, 205 (1982); Fiallo Bell, 430 U.S. 787, 788
(1977); Mathews Diaz, 426 U.S. 67, (1976). the other case the government cites,
assume[d], without deciding, that the plaintiffs have standing. Texas United States,
106 F.3d 661, 664 n.2 (5th Cir. 1997). address justiciability part V.B, infra.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
two branches the Federal Government was unconstitutional. decide
this appeal, however, without resolving the constitutional claim.
Therefore, the states are entitled special solicitude the standing
inquiry. stress that our decision limited these facts. particular, the
direct, substantial pressure directed the states and the fact that they have
surrendered some their control over immigration the federal government
mean this case sufficiently similar Massachusetts EPA, but pressure
change state law may not enough itself other situations. least one state Texas has satisfied the first standing requirement demonstrating that would incur significant costs issuing driver
licenses DAPA beneficiaries. Under current state law, licenses issued
beneficiaries would necessarily financial loss. The Department Public Safety shall issue license qualified applicant.
TEX. TRANSP.
CODE 521.181. noncitizen must present documentation issued the
appropriate United States agency that authorizes the applicant the
United States. Id. 521.142(a). permitted into effect, DAPA would enable least 500,000 illegal
aliens Texas satisfy that requirement with proof lawful presence
Ariz. State Legislature, 135 Ct. 2665 n.12 (final alteration original) (quoting
Raines Byrd, 521 U.S. 811, 819 (1997)).
See Dist. Ct. Op., Supp. 616.
See TEX. DEP PUB. SAFETY, VERIFYING LAWFUL PRESENCE (2013),
https://www.txdps.state.tx.us/DriverLicense/documents/verifyingLawfulPresence.pdf (listing acceptable document for Person granted deferred action Immigration documentation with alien number I-94 number DAPA Memo Deferred action means
that, for specified period time, individual permitted lawfully present the
United States.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
employment authorization. Texas subsidizes its licenses and would lose
minimum $130.89 each one issued DAPA beneficiary. Even
modest estimate would put the loss several million dollars. Dist. Ct. Op., Supp. 617.
Instead disputing those figures, the United States claims that the
costs would offset other benefits the state. theorizes that, because
DAPA beneficiaries would eligible for licenses, they would register their
vehicles, generating income for the state, and buy auto insurance, reducing the
expenses associated with uninsured motorists.
The government suggests
employment authorization would lead increased tax revenue and decreased
reliance social services.
Even the government correct, that does not negate Texas injury,
because consider only those offsetting benefits that are the same type
and arise from the same transaction the costs. Once injury shown,
See TEX. DEP PUB. SAFETY, supra note 56, (stating that Employment
Authorization Document sufficient proof lawful presence); Dist. Ct. Op., Supp. 616 n.14 (explaining that [e]mployment authorization benefit that will available recipients DAPA
See Dist. Ct. Op., Supp. 617. Some those costs are directly attributable the United States. Under the REAL Act 2005, Pub. No. 109-13, div. 119 Stat.
302 (codified amended scattered sections Titles and U.S.C.), Texas must verify
each applicant immigration status through DHS, see C.F.R. 37.11(g), .13(b)(1), the
state licenses will longer valid for number purposes, including commercial air
travel without secondary form identification, REAL Enforcement Brief, U.S.
DEPARTMENT HOMELAND SECURITY (July 27, 2015), http://www.dhs.gov/real-idenforcement-brief. Texas pays average per applicant comply with that mandate.
See Dist. Ct. Op., Supp. 617.
See, e.g., L.A. Haven Hospice, Inc. Sebelius, 638 F.3d 644, 656 (9th Cir. 2011)
(holding that hospice had standing challenge regulation that allegedly increased its
costs some ways even though the regulation may have saved money other ways
other fiscal years); Sutton St. Jude Med. S.C., Inc., 419 F.3d 568, 570 (6th Cir. 2005)
(concluding that patient had standing sue designers, manufacturers, and distributors medical device implanted his body because allegedly increased risk medical problems
even though had not malfunctioned and had benefited him); Markva Haveman, 317 F.3d
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
attempt made ask whether the injury outweighed benefits the plaintiff has enjoyed from the relationship with the defendant. Standing recognized complain that some particular aspect the relationship unlawful
and has caused injury.
Our standing analysis not accounting
exercise
The one case which concluded that the costs challenged program were offset the benefits involved much tighter nexus. Henderson,
287 F.3d 379 81, determined that taxpayers lacked standing challenge Louisiana law authorizing license plate bearing pro-life message, reasoning that the plaintiffs had not shown that the program would use their tax
dollars, because the extra fees paid drivers who purchased the plates could
have covered the associated expenses. The costs and benefits arose out the
same transaction, the plaintiffs had not demonstrated injury.
Here, none the benefits the government identifies sufficiently connected the costs qualify offset. The only benefits that are conceivably relevant are the increase vehicle registration and the decrease uninsured motorists, but even those are based the independent decisions
DAPA beneficiaries and are not direct result the issuance licenses. Analogously, the Third Circuit held that sports leagues had standing challenge
New Jersey decision license sports gambling, explaining that damage
the leagues reputations was cognizable injury despite evidence that more
people would have watched sports had betting been allowed. NCAA, 730 F.3d
547, 557 (6th Cir. 2003) (deciding that grandparents had standing challenge requirement that they pay more for Medicaid benefits than would similarly situated parents, even
though the grandparents may have received more other types welfare benefits).
13A CHARLES ALAN WRIGHT AL., FEDERAL PRACTICE AND PROCEDURE 3531.4, 147 (3d ed. 2015) (footnote omitted).
NCAA Governor N.J., 730 F.3d 208, 223 (3d Cir. 2013).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238 222 24. The diminished public perception the leagues and the greater
interest sports were attributable the licensing plan but did not arise out the same transaction and could not compared. the instant case, the states have alleged injury, and the government predicts that the later decisions DAPA beneficiaries would produce
offsetting benefits. Weighing those costs and benefits precisely the type
accounting exercise, id. 223, which cannot engage. Texas has shown
injury.
Texas has satisfied the second standing requirement establishing
that its injury fairly traceable DAPA. undisputed that DAPA would
enable beneficiaries apply for driver licenses, and there little doubt that
many would because driving practical necessity most the state.
The United States urges that Texas injury not cognizable, because
the state could avoid injury not issuing licenses illegal aliens not
subsidizing its licenses. Although Texas could avoid financial loss requiring
applicants pay the full costs licenses, could not avoid injury altogether.
[S]tates have sovereign interest the power create and enforce legal
code, and the possibility that plaintiff could avoid injury incurring other
costs does not negate standing.
Tex. Office Pub. Util. Counsel FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting
Alfred Snapp Son, Inc. Puerto Rico rel. Barez, 458 U.S. 592, 601 (1982)).
See Texas United States, 497 F.3d 491, 497 (5th Cir. 2007). The dissent theorizes
that forcing Texas change its laws would injury because states have sovereign
interest the power create and enforce legal code, then Pennsylvania New Jersey,
426 U.S. 660 (1976) (per curiam), must wrongly decided. Dissent n.16. The dissent
posits that Pennsylvania (there) and Texas (here) faced pressure change their laws,
their Article III standing vel non must the same. But the dissent ignores key distinction
between Pennsylvania New Jersey and the instant case: explain below, the pressure
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
Indeed, treating the availability changing state law bar standing would deprive states judicial recourse for many bona fide harms. For
instance, under that theory, federal preemption state law could never
injury, because state could always change its law avoid preemption. But
courts have often held that states have standing based preemption. And
states could offset almost any financial loss raising taxes fees. The existence that alternative does not mean they lack standing.
Relying primarily Pennsylvania New Jersey, 426 U.S. 660 (1976)
(per curiam), the United States maintains that Texas injury self-inflicted
because the state voluntarily chose base its driver license policies
federal immigration law. Pennsylvania New Jersey, id. 664, 666, the
Court held that several states lacked standing contest other states laws
taxing portion nonresidents incomes. The plaintiff states alleged that the
defendant states taxes injured them because the plaintiffs gave their residents
credits for taxes paid other states, the defendants taxes increased the
amount those credits, causing the plaintiffs lose revenue. Id. 663. The
Court flatly rejected that theory standing: neither the suits bar has the defendant State inflicted any
injury upon the plaintiff States through the imposition the [challenged taxes]. The injuries the plaintiffs fiscs were self-inflicted,
resulting from decisions their respective state legislatures. Nothing
required Maine, Massachusetts, and Vermont extend tax credit
their residents for income taxes paid New Hampshire, and nothing
prevents Pennsylvania from withdrawing that credit for taxes paid
New Jersey. State can heard complain about damage inflicted its own hand.
Id. 664.
that Pennsylvania faced change its laws was self-inflicted; Texas not.
See, e.g., Crank, 539 F.3d 1242; Alaska, 868 F.2d 443-44; Celebrezze, 766 F.2d 232 33.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
The more recent decision Wyoming Oklahoma, 502 U.S. 437 (1992),
also informs our analysis. There, the Court held that Wyoming had standing challenge Oklahoma law requiring some Oklahoma power plants burn least 10% Oklahoma-mined coal. Id. 447. The Court explained that Wyoming taxed the extraction coal the state and that Oklahoma law reduced
demand for that coal and Wyoming corresponding revenue. Id. The Court
emphasized that the case involved undisputed direct injury the form loss specific tax revenues. Id. 448. rejected Oklahoma contention
that Wyoming not itself engaged the commerce affected, not affected consumer, and thus has not suffered the type direct injury cognizable Commerce Clause action, id., concluding that Wyoming loss revenue
was sufficient, id. 448 50. The Court did not cite Pennsylvania New Jersey discuss the theory that Wyoming injury was self-inflicted.
Both the Pennsylvania New Jersey plaintiffs and Wyoming structured
their laws ways that meant their finances would have been affected
changes other states laws. Because the tax credits Pennsylvania New
Jersey were based taxes paid other states, any tax increases other
states would have decreased the plaintiffs revenues, and any tax cuts would
have had the opposite effect. Analogously, Wyoming tax was based the
amount coal extracted there, any policies other states that decreased
demand for that coal would have diminished Wyoming revenues, and any
policies that bolstered demand would have had the opposite effect. other words, the schemes both cases made the plaintiff states
finances dependent those third parties either resident taxpayers coal
companies which turn were affected other states laws. The issues
Pennsylvania New Jersey and Wyoming Oklahoma were thus similar
the question here, but the Court announced different results. The two cases
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
are readily distinguishable, however, and, based two considerations, Wyoming Oklahoma directs our decision.
First, Texas and Wyoming sued response major changes the
defendant states policies. Texas sued after the United States had announced
DAPA, which could make least 500,000 illegal aliens eligible for driver
licenses and cause millions dollars losses; Wyoming sued after Oklahoma
had enacted law that cost Wyoming over million tax revenues. See id. 445 n.6. Conversely, the Pennsylvania New Jersey plaintiffs sued
not because change the defendant states laws but because they believed
that Austin New Hampshire, 420 U.S. 656 (1975), had rendered the defendants laws unconstitutional. See Pennsylvania New Jersey, 426 U.S. 661
63. The fact that Texas sued response significant change the defendants policies shows that its injury not self-inflicted.
Second, the plaintiffs options for accomplishing their policy goals were
more limited this case and Wyoming Oklahoma than Pennsylvania New Jersey. Texas seeks issue licenses only those lawfully present
the United States, and the state required use federal immigration classifications so. See Villas Parkside Partners, 726 F.3d 536. Likewise,
Wyoming sought tax the extraction coal and had way avoid being
affected other states laws that reduced demand for that coal. follows that the dissent unsubstantiated claim that Pennsylvania, like Texas,
tied its law that another sovereign, whereas Wyoming did not (emphasis added),
obvious error. Dissent n.16. The dissent ignores our explication Texas and
Wyoming policy goals. not assert that those states cannot change their laws avoid
injury from changes the laws another state. Rather, demonstrate that Texas and
Wyoming cannot both change their laws avoid injury from amendments another
sovereign laws and achieve their policy goals.
For example, although, have said but the dissent overlooks, Wyoming easily
could have avoided injury from changes Oklahoma laws abandoning entirely its tax coal extraction, would have surrendered its policy goal taxing extraction the first
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238 way contrast, the plaintiff states Pennsylvania New Jersey
could have achieved their policy goal myriad ways, such basing their tax
credits residents out-of-state incomes instead taxes actually paid
other states. That alternative would have achieved those plaintiffs goal
allowing their residents avoid double taxation their out-of-state incomes,
but would not have tied the plaintiffs finances other states laws. The fact
that Texas had similar option means its injury not self-inflicted.
The decision Amnesty International supports this conclusion: The
Court held that the plaintiffs lacked standing challenge provision the
Foreign Intelligence Surveillance Act authorizing the interception certain
electronic communications. Amnesty Int 133 Ct. 1155. The plaintiffs
alleged that they had been forced take costly steps avoid surveillance,
such traveling meet person and not discussing certain topics email phone. Id. 1150 51. The Court held that any such injuries were selfinflicted, id. 1152 53, reasoning that plaintiffs cannot manufacture standing merely inflicting harm themselves based their fears hypothetical future harm that not certainly impending. Id. 1151 (citing Pennsylvania New Jersey, 426 U.S. 664). the law were otherwise, enterprising plaintiff would able secure lower standard for Article III
place. Similarly, Texas could avoid financial loss increasing fees, not subsidizing its
licenses, perhaps not issuing licenses lawfully present aliens, but the consequence would that taking those actions Texas would have abandoned its fully permissible policy goal providing subsidized licenses only those who are lawfully present the United States
policy that, have repeatedly pointed out, Texas instituted well before the Secretary
designed DACA DAPA. essence, the dissent would have issue the following edict Texas: You may
avoid injury the pursuit your policy goals injury resulting from change federal
immigration law changing your laws pursue different goals eliminating them
altogether. Therefore, your injuries are self-inflicted. Presumably the dissent would have
liked for the Supreme Court have issued similar edict Wyoming, which sought tax
the extraction coal and had way both continue taxing extraction and avoid being
affected Oklahoma laws that reduced demand for that coal. See Dissent 13.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
standing simply making expenditure based nonparanoid fear. Id. way contrast, there allegation that Texas passed its driver
license law manufacture standing. The legislature enacted the law one year
before DACA and three years before DAPA was announced, and there
hint that the state anticipated change immigration policy much less
change sweeping and dramatic DAPA. Despite the dissent bold suggestion that Texas license-plate-cost injury entirely manufactured Plaintiffs for this case, Dissent 12, the injury not self-inflicted. addition its notion that Texas could avoid injury, the government
theorizes that Texas injury not fairly traceable DAPA because
merely incidental and attenuated consequence the program. But Massachusetts EPA establishes that the causal connection adequate. Texas
entitled the same special solicitude was Massachusetts, and the causal
link even closer here.
For Texas incur injury, DAPA beneficiaries would have apply for
driver licenses consequence DHS action, and apparent that many
would so. For Massachusetts injury have occurred, individuals would
have had drive less fuel-efficient cars result the EPA decision, and
that would have had contribute meaningfully rise sea levels, causing
the erosion the state shoreline. See Massachusetts EPA, 549 U.S. 523.
There was some uncertainty about whether the EPA inaction was substantial cause the state harm, considering the many other emissions sources
involved. But the Court held that Massachusetts had satisfied the causation
See Certain State Fiscal Matters; Providing Penalties, ch. sec. 72.03,
521.101(f-2), 2011 Tex. Gen. Laws 5254, 5344 (codified TEX. TRANSP. CODE 521.142(a)).
See Massachusetts EPA, 549 U.S. 523 24; id. 540 (Roberts, C.J., dissenting) (questioning whether Massachusetts had lost land all result climate change
and whether the EPA decision had contributed meaningfully any erosion).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
requirement because the possibility that the effect the EPA decision was
minor did not negate standing, and the evidence showed that the effect was
significant any event. Id. 524 25.
This case raises even less doubt about causation, the result the
same. The matters which the Supreme Court held that injury was not
fairly traceable the challenged law reinforce this conclusion. some
them, the independent act third party was necessary condition the
harm occurrence, and was uncertain whether the third party would take
the required step. Not here.
DAPA beneficiaries have strong incentives obtain driver licenses,
and hardly speculative that many would they became eligible.
other cases, which there was insufficient proof causation, several factors
potentially contributed the injury, and the challenged policy likely played
minor role.
See, e.g., Amnesty Int 133 Ct. 1147 (explaining that, for provision the
Foreign Intelligence Surveillance Act have resulted the monitoring the plaintiffs
communications, the Attorney General and the Director National Intelligence would have
had authorize the collection the communications, the Foreign Intelligence Surveillance
Court would have had approve the government request, and the government would have
had intercept the communications successfully); Whitmore Arkansas, 495 U.S. 149, 156 (1990) (reasoning that, for death-row inmate decision not appeal have harmed the
plaintiff, who was another death row inmate, the court hearing any appeal would have had rule way favorable the plaintiff).
See, e.g., Already, LLC Nike, Inc., 133 Ct. 721, 731 (2013) (rejecting the theory
that market participant injured for Article III purposes whenever competitor benefits
from something allegedly unlawful whether trademark, the awarding contract,
landlord-tenant arrangement, on. McConnell FEC, 540 U.S. 93, 228 (2003) (commenting that the plaintiffs, candidates for public office, were unable compete not because increased hard-money limits but instead because their personal decisions not accept
large contributions), overruled other grounds Citizens United FEC, 558 U.S. 310
(2010); Allen Wright, 468 U.S. 737, 756 (1984) (observing that any lack opportunity
for the plaintiffs children attend racially integrated public schools was attributable not
only tax exemptions for discriminatory private schools but also the decisions privateschool administrators and other parents), abrogated other grounds Lexmark Int Inc. Static Control Components, Inc., 134 Ct. 1377 (2014).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
Far from playing insignificant role, DAPA would the primary cause
and likely the only one. Without the program, there would little risk
dramatic increase the costs the driver s-license program. This case far
removed from those which the Supreme Court has held injury too
incidental attenuated. Texas injury fairly traceable DAPA.
Texas has satisfied the third standing requirement, redressability.
Enjoining DAPA based the procedural APA claim could prompt DHS
reconsider the program, which all plaintiff must show when asserting
procedural right. See id. 518. And enjoining DAPA based the substantive
APA claim would prevent Texas injury altogether.
The United States submits that Texas theory standing flawed
because has principled limit. the government view, Texas can challenge DAPA, could also sue block grant asylum single alien any
federal policy that adversely affects the state, such IRS revenue ruling
that decreases corporation federal taxable income and corresponding state
franchise-tax liability.
The flaw the government reasoning that Massachusetts EPA
entailed similar risks, but the Court still held that Massachusetts had standing. Under that decision, Massachusetts conceivably could challenge the government decision buy car with poor fuel efficiency because the vehicle
could contribute global warming. The state might able contest any
federal action that prompts more travel. potentially could challenge any
change federal policy that indirectly results greenhouse-gas emissions,
such trade-promotion program that leads more shipping. One the
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
dissenting Justices Massachusetts EPA criticized the decision that
ground, but the majority found those concerns unpersuasive, just they are
here.
After Massachusetts EPA, the answer those criticisms that there
are other ways cabin policy disagreements masquerading legal claims.
First, state that has standing still must have cause action. Even the
APA potentially the most versatile tool available enterprising state
imposes number limitations. state must defending concerns that are
arguably within the zone interests protected regulated the statute constitutional guarantee question. unclear whether state
dissatisfied with IRS revenue ruling would defending such interest.
Moreover, judicial review unavailable where the statute precludes the
matter committed agency discretion. U.S.C. 701(a). Because those
restrictions, state would have limited ability challenge many asylum
determinations. See U.S.C. 1252(b)(4)(D). Further, numerous policies that
adversely affect states either are not rules all are exempt from the noticeand-comment requirements. See generally U.S.C. 553.
Second, the standing requirements would preclude much the litigation
the government describes. For example, would difficult establish standing challenge grant asylum single alien based the driver s-license
theory.
The state must allege injury that has already occurred
See Massachusetts EPA, 549 U.S. 546 (Roberts, C.J., dissenting) Every little
bit helps, Massachusetts can sue over any little bit.
The dissent responds this asserting that [t]he majority observation that this
suit involves policy disagreements masquerading legal claims also telling. Dissent 22. That course not what our sentence (which not description the suit hand)
says all.
Clarke Sec. Indus. Ass 479 U.S. 388, 396 (1987) (quoting Ass Data Processing Serv. Orgs., Inc. Camp, 397 U.S. 150, 153 (1970)).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
certainly impending easier demonstrate that some DAPA beneficiaries would apply for licenses than establish that particular alien
would. And causation could substantial obstacle. Although the district
court calculation Texas loss from DAPA was based largely the need
hire employees, purchase equipment, and obtain office space, those steps
would unnecessary license one additional person.
Third, our determination that Texas has standing based part the
special solicitude afford under Massachusetts EPA reinforced
Arizona State Legislature. entitled that presumption, state likely
must exercising procedural right created Congress and protecting
quasi-sovereign interest. See Massachusetts EPA, 549 U.S. 520. Those
factors will seldom exist. For instance, grant asylum single alien
would impose little pressure change state law. Without special solicitude, would difficult for state establish standing, heavy burden many the government hypotheticals.
Fourth, practical matter, pure speculation that state would
sue about matters such IRS revenue ruling. Though not dispositive
the issue, the absence any indication that such lawsuits will occur suggests
the government parade horribles unfounded, and its concerns about
the possible future effects Texas theory standing not alter our conclusion. The states have standing.
Amnesty Int 133 Ct. 1147 (emphasis omitted) (quoting Defs. Wildlife, 504
U.S. 565 n.2).
See Dist. Ct. Op., Supp. 616 (discussing the potential loss and citing portion declaration addressing those expenses).
See Hosanna-Tabor Evangelical Lutheran Church Sch. EEOC, 132 Ct. 694,
710 (2012) (stating, response alleged parade horribles, that [t]here will time
enough address other circumstances future cases without altering the Court
present conclusion).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
IV.
Because the states are suing under the APA, they must satisfy not only
Article III standing requirements, but additional test: The interest [they]
assert[] must arguably within the zone interests protected
regulated the statute that [they] say[] was violated. That test not
meant especially demanding and applied keeping with Congress
evident intent when enacting the APA make agency action presumptively
reviewable.
The Supreme Court ha[s] always conspicuously included the word arguably the test indicate that the benefit any doubt goes the plaintiff,
and [w]e not require any indication congressional purpose benefit the
would-be plaintiff. The test forecloses suit only when plaintiff interests
are marginally related inconsistent with the purposes implicit the
statute that cannot reasonably assumed that Congress intended permit
the suit.
The interests the states seek protect fall within the zone interests the INA. The pervasiveness federal regulation does not diminish the
importance immigration policy the States, which bear[] many the consequences unlawful immigration. Arizona United States, 132 Ct.
Match-E-Be-Nash-She-Wish Band Pottawatomi Indians Patchak, 132 Ct.
2199, 2210 (2012) (quoting Data Processing, 397 U.S. 153).
Id. (quoting Sec. Indus. Ass 479 U.S. 399).
Id. (quoting Sec. Indus. Ass 479 U.S. 399 400).
Id. (quoting Sec. Indus. Ass 479 U.S. 399).
The INA established comprehensive federal statutory scheme for regulation
immigration and naturalization and set the terms and conditions admission the country
and the subsequent treatment aliens lawfully the country. Chamber Commerce
U.S. Whiting, 131 Ct. 1968, 1973 (2011) (quoting DeCanas Bica, 424 U.S. 351, 353,
359 (1976)).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238 2500. Reflecting concern that aliens have been applying for and receiving
public benefits from Federal, State, and local governments increasing rates, U.S.C. 1601, Congress deemed some unlawfully present aliens ineligible
for certain state and local public benefits unless the state explicitly provides
otherwise. With limited exceptions, unlawfully present aliens are not eligible for any State local public benefit. U.S.C. 1621(a).
Contrary the government assertion, Texas satisfies the zone-ofinterests test not account generalized grievance but instead result the same injury that gives Article III standing Congress has explicitly
allowed states deny public benefits illegal aliens. Relying that guarantee, Texas seeks participate notice and comment before the Secretary
changes the immigration classification millions illegal aliens way that
forces the state the Hobson choice spending millions dollars subsidize driver licenses changing its statutes.
The government maintains that judicial review precluded even the
states are proper plaintiffs. Any person adversely affected aggrieved
agency action entitled judicial review thereof, long the action final agency action for which there other adequate remedy court.
But before any review all may had, party must first clear the hurdle U.S.C. 701(a). That section provides that the chapter judicial review
applies, according the provisions thereof, except the extent that
(1) statutes preclude judicial review; (2) agency action committed
United States Alabama, 691 F.3d 1269, 1298 (11th Cir. 2012) (emphasis added)
(citing U.S.C. 1621).
Chaney, 470 U.S. 828 (quoting U.S.C. 702, 704). The government does not
dispute that DAPA final agency action. See Lujan Nat Wildlife Fed 497 U.S. 871,
882 (1990).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
agency discretion law. Chaney, 470 U.S. 828.
[T]here well-settled presumption favoring interpretations
statutes that allow judicial review administrative action, and will accordingly find intent preclude such review only presented with clear and
convincing evidence. The strong presumption favoring judicial review
administrative action rebuttable: fails when statute language
structure demonstrates that Congress wanted agency police its own
conduct. Mach Mining, LLC EEOC, 135 Ct. 1645, 1651 (2015).
Establishing unreviewability heavy burden, and where substantial doubt about the congressional intent exists, the general presumption favoring judicial review administrative action controlling. Block Cmty.
Nutrition Inst., 467 U.S. 340, 351 (1984). Whether and what extent particular statute precludes judicial review determined not only from its express
language, but also from the structure the statutory scheme, its objectives,
its legislative history, and the nature the administrative action involved.
Id. 345.
The United States relies U.S.C. 1252(g) for the proposition that
the INA expressly prohibits judicial review. But the government broad reading contrary Reno American-Arab Anti-Discrimination Committee AAADC 525 U.S. 471, 482 (1999), which the Court rejected the
Reno Catholic Soc. Servs., Inc., 509 U.S. 43, (1993) (quoting McNary
Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991); Abbott Labs. Gardner, 387 U.S. 136,
141 (1967)).
(1975)).
Mach Mining, 135 Ct. 1651 (quoting Dunlop Bachowski, 421 U.S. 560, 567
With limited exceptions, court shall have jurisdiction hear any cause claim behalf any alien arising from the decision action the Attorney General
commence proceedings, adjudicate cases, execute removal orders against any alien under
this chapter. U.S.C. 1252(g).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
unexamined assumption that 1252(g) covers the universe deportation
claims that sort zipper clause that says judicial review
deportation cases unless this section provides judicial review. The Court
emphasized that 1252(g) not general jurisdictional limitation, but
rather applies only three discrete actions that the Attorney General may
take: her decision action commence proceedings, adjudicate cases,
execute removal orders.
None those actions issue here the states claims not arise
from the Secretary decision action commence proceedings, adjudicate cases, execute removal orders against any alien, 1252(g); instead,
they stem from his decision grant lawful presence millions illegal aliens class-wide basis. Further, the states are not bringing cause claim behalf any alien they assert their own right the APA procedural
protections. Id. Congress has expressly limited precluded judicial review
many immigration decisions, including some that are made the Secretary
sole and unreviewable discretion, but DAPA not one them.
Judicial review DAPA consistent with the protections Congress
affords states that decline provide public benefits illegal aliens. The
AAADC, 525 U.S. 482. are aware other instance the United States
Code which language such this has been used impose general jurisdictional
limitation Id.
Id. (quoting 1252(g)).
See AAADC, 525 U.S. 486 (listing U.S.C. 1252(a)(2)(A) (limiting review any claim arising from the inspection aliens arriving the United States), [(B)] (barring
review denials discretionary relief authorized various statutory provisions), [(C)] (barring review final removal orders against criminal aliens), [(b)(4)(D)] (limiting review
asylum determinations) see also, e.g., U.S.C. 1182(a)(9)(B)(v) (barring review waiver reentry restrictions); 1226a(b)(1) (limiting review detention terrorist aliens); 1229c(e)
(barring review regulations limiting eligibility for voluntary departure), (f) (limiting review denial voluntary departure).
E.g., U.S.C. 1613(c)(2)(G), 1621(b)(4), 1641.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
Government the United States has broad, undoubted power over the subject immigration and the status aliens, but, through 1621, Congress has
sought protect states from bear[ing] many the consequences unlawful
immigration. Texas avails itself some those protections through Section 521.142(a) the Texas Transportation Code, which allows the state
avoid the costs issuing driver licenses illegal aliens. 500,000 unlawfully present aliens residing Texas were reclassified lawfully present pursuant DAPA, they would become eligible for driver
licenses subsidized fee. Congress did not intend make immune from
judicial review agency action that reclassifies millions illegal aliens
way that imposes substantial costs states that have relied the protections
conferred 1621.
The states contend that DAPA being implemented without discretion deny applications that meet the objective criteria set forth the DAPA
Memo, and under AAADC, judicial review could available there indication that deferred-action decisions are not made case-by-case basis.
AAADC, group aliens challenge[d] the Attorney General decision
commence [deportation] proceedings against them, and the Court held that
1252(g) squarely deprived jurisdiction. AAADC, 525 U.S. 487. The
Court noted that 1252(g) codified the Secretary discretion decline the
initiation prosecution various stages the deportation process, id.
483, and the Court observed that [p]rior 1997, deferred-action decisions
were governed internal [INS] guidelines which considered variety factors], id. 484 n.8. Although those guidelines were apparently rescinded,
Arizona United States, 132 Ct. 2498.
Id. 2500.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
the Court observed that there [was] indication that the INS has ceased
making this sort determination case-by-case basis. Id. But the government has not rebutted the strong presumption reviewability with clear and
convincing evidence that, inter alia, making case-by-case decisions here.
Title 701(a)(2) preclude[s] judicial review certain categories
administrative decisions that courts traditionally have regarded committed agency discretion. Lincoln Vigil, 508 U.S. 182, 191 (1993) (citation omitted). For example, agency decision not institute enforcement proceedings [is] presumptively unreviewable under 701(a)(2). Id. (citation omitted).
Likewise, [t]here judicial review agency action where statutes [granting agency discretion] are drawn such broad terms that given case there law apply, such [t]he allocation funds from lump-sum appropriation. Vigil, 508 U.S. 192.
The Secretary has broad discretion decide whether makes sense
pursue removal all and urges that deferred action grant lawful
presence and subsequent eligibility for otherwise unavailable benefits
See, e.g., Gulf Restoration Network McCarthy, 783 F.3d 227, 235 (5th Cir. 2015)
(Higginbotham, J.) [T]here strong presumption, subject Congressional language,
that action taken federal agency reviewable federal court. (quoting RSR Corp.
Donovan, 747 F.2d 294, 299 n.23 (5th Cir. 1984))).
Perales Casillas, 903 F.2d 1043, 1047 (5th Cir. 1990) (alteration original) (citation omitted).
Arizona United States, 132 Ct. 2499 principal feature the removal
system the broad discretion exercised immigration officials. Federal officials,
initial matter, must decide whether makes sense pursue removal all. (citation
omitted)).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
presumptively unreviewable exercise prosecutorial discretion. The general exception reviewability provided 701(a)(2) for action committed
agency discretion remains narrow one, but within that exception are
included agency refusals institute investigative enforcement proceedings,
unless Congress has indicated otherwise. Where, however, agency does
act enforce, that action itself provides focus for judicial review, inasmuch the agency must have exercised its power some manner. The action
least can reviewed determine whether the agency exceeded its statutory
powers.
Part DAPA involves the Secretary decision least temporarily
not enforce the immigration laws class what deems lowpriority illegal aliens. But importantly, the states have not challenged the priority levels has established, and neither the preliminary injunction nor
compliance with the APA requires the Secretary remove any alien alter
his enforcement priorities.
Deferred action, however, much more than nonenforcement: would
affirmatively confer lawful presence and associated benefits class
unlawfully present aliens.
Though revocable, that change designation
would trigger (as have already explained) eligibility for federal benefits
The dissent misleadingly declares, other words, deferred action itself merely brand presumptively unreviewable prosecutorial discretion. Dissent 14. The dissent
attributes that statement this panel majority when fact, shown above, accurately
cite the statement coming from the Secretary.
Chaney, 470 U.S. 838 (citation omitted); see Vigil, 508 U.S. 190 91.
Chaney, 470 U.S. 832.
See Memorandum from Jeh Johnson, Sec Dep Homeland Sec., Thomas
Winkowski, Acting Dir., U.S. Immigration and Customs Enforcement, al. (Nov. 20, 2014)
(the Prioritization Memo http://www.dhs.gov/sites/default/files/publications/14_1120_
memo_prosecutorial_discretion.pdf.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
for example, under title and XVIII the Social Security Act and state
benefits for example, driver licenses and unemployment insurance 100 that
would not otherwise available illegal aliens. 101
The United States maintains that DAPA presumptively unreviewable
prosecutorial discretion because lawful presence not status and not
something that the alien can legally enforce; the agency can alter revoke any time. 102 The government further contends that [e]very decision under
[DAPA] defer enforcement action against alien necessarily entails allowing the individual lawfully present Deferred action under DAPA and
lawful presence during that limited period are thus two sides the same
coin. 103
See supra part I.A. DAPA would also toll the duration the recipients unlawful
presence under the INA reentry bars, which would benefit aliens who receive lawful presence minors because the unlawful-presence clock begins run only age eighteen. See U.S.C. 1182(a)(9)(B)(iii)(I). Most adult beneficiaries would unlikely benefit from
tolling because, eligible for DAPA, one must have continuously resided the United
States since before January 2010, and therefore would likely already subject the
reentry bar for aliens who have been unlawfully present the United States for one year more. 1182(a)(9)(B)(i)(II); see 1182(a)(9)(C)(i)(I).
100
See supra part I.A.
Cf. Memorandum from James Cole, Deputy Att Gen., All U.S. Attorneys
(Aug. 29,
2013)
(the
Cole
Memo
http://www.justice.gov/iso/opa/resources/
3052013829132756857467.pdf. The Cole Memo establishes how prosecutorial discretion will used relation marihuana enforcement under the Controlled Substances Act. Unlike
the DAPA Memo, does not direct agency grant eligibility for affirmative benefits
anyone engaged unlawful conduct. have explained, receive public benefits, aliens
accorded lawful presence must satisfy additional criteria set forth the various benefit
schemes, but they nevertheless become eligible satisfy those criteria. That eligibility
itself cognizable benefit.
101
Supplemental Brief for Appellants 16. But see U.S.C. 1201(i) After the
issuance visa other documentation any alien, the consular officer the Secretary State may any time, his discretion, revoke such visa other documentation.
1227(a)(1)(B) (providing that any alien whose nonimmigrant visa has been revoked
under section 1201(i) this title, deportable
102
103
Supplemental Brief for Appellants (emphasis omitted).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
Revocability, however, not the touchstone for whether agency action reviewable. Likewise, reviewable agency action, DAPA need not directly confer public benefits removing categorical bar receipt those
benefits and thereby making class persons newly eligible for them
provides focus for judicial review. Chaney, 470 U.S. 832.
Moreover, deferred action meant only nonprosecution, would not
necessarily result lawful presence. [A]lthough prosecutorial discretion
broad, not unfettered. 104 Declining prosecute does not transform presence deemed unlawful Congress into lawful presence and confer eligibility
for otherwise unavailable benefits based that change.
Regardless
whether the Secretary has the authority offer lawful presence and employment authorization exchange for participation DAPA, his doing not
shielded from judicial review act prosecutorial discretion.
This evident conclusion reinforced the Supreme Court description, AAADC, deferred action nonprosecution decision: ameliorate harsh and unjust outcome, the INS may decline institute proceedings, terminate proceedings, decline execute final
order deportation. This commendable exercise administrative discretion, developed without express statutory authorization, originally
was known nonpriority and now designated deferred action Approval deferred action status means that action will
thereafter taken proceed against apparently deportable alien,
even grounds normally regarded aggravated.[ 105] their procedural claim, the states not challenge the Secretary decision
Wayte United States, 470 U.S. 598, 608 (1985) (quoting United States Batchelder, 442 U.S. 114, 125 (1979)).
104
AAADC, 525 U.S. 484 (emphasis added) (quoting CHARLES GORDON, STANLEY
MAILMAN STEPHEN YALE-LOEHR, IMMIGRATION LAW AND PROCEDURE 72.03[2][h]
(1998)); accord Johns Dep Justice, 653 F.2d 884, 890 (5th Cir. Aug. 1981) The Attorney
General also determines whether (1) refrain from (or, administrative parlance, defer
in) executing outstanding order deportation, (2) stay the order deportation.
(footnote omitted)); see also Yoon INS, 538 F.2d 1211, 1213 (5th Cir. 1976) (per curiam).
105
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238 decline institute proceedings, terminate proceedings, decline execute final order deportation, nor does deferred action mean merely that action will thereafter taken proceed against apparently deportable
alien. 106
Under DAPA, [d]eferred action means that, for specified period
time, individual permitted lawfully present the United States, 107 change designation that confers eligibility for substantial federal and state
benefits class otherwise ineligible aliens. Thus, DAPA provides focus
for judicial review, inasmuch the agency must have exercised its power
some manner. The action least can reviewed determine whether the
agency exceeded its statutory powers. 108
The mere fact that statute grants broad discretion agency does
not render the agency decisions completely unreviewable under the committed agency discretion law exception unless the statutory scheme, taken
together with other relevant materials, provides absolutely guidance
how that discretion exercised. 109 Perales, 903 F.2d 1051, held
that the INS decision not grant pre-hearing voluntary departures and work
authorizations group aliens was committed agency discretion because
[t]here are statutory standards for the court apply There nothing
AAADC, 525 U.S. 484 (quoting GORDON, MAILMAN YALE-LOEHR,
supra note 105).
106
107
DAPA Memo (emphasis added).
Chaney, 470 U.S. 832. Because the challenged portion DAPA deferred-action
program not exercise enforcement discretion, not reach the issue whether
the presumption against review such discretion rebutted. See id. 832 34; Adams
Richardson, 480 F.2d 1159, 1161 (D.C. Cir. 1973) (en banc) (per curiam).
108
Perales, 903 F.2d 1051 (quoting Robbins Reagan, 780 F.2d 37, (D.C. Cir.
1985) (per curiam)).
109
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238 the [INA] expressly providing for the grant employment authorization
pre-hearing voluntary departure [the plaintiff class aliens]. Although
stated that the agency decision grant voluntary departure and work
authorization has been committed agency discretion law, id. 1045,
that case involved challenge the denial voluntary departure and work
authorization.
Under those facts, Perales faithfully applied Chaney presumption
against judicial review agency inaction because there are meaningful
standards against which judge the agency exercise discretion. Id. 1047. But where there affirmative agency action with DAPA issuance lawful presence and employment authorization and light the
INA intricate regulatory scheme for changing immigration classifications and
issuing employment authorization, 110 [t]he action least can reviewed
determine whether the agency exceeded its statutory powers.
Chaney,
470 U.S. 832.
The United States asserts that C.F.R. 274a.12(c)(14), 111 rather than
DAPA, makes aliens granted deferred action eligible for work authorizations.
But DAPA deferred-action program must subjected notice-andcomment, then work authorizations may not validly issued pursuant that
subsection until that process has been completed and aliens have been
granted deferred action. 274a.12(c)(14).
Moreover, the government limitless reading that subsection
allowing for the issuance employment authorizations any class illegal
110
See infra part VII. alien who has been granted deferred action, act administrative convenience the government which gives some cases lower priority, [may able obtain work
authorization upon application] the alien establishes economic necessity for employment. C.F.R. 274a.12(c)(14).
111
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
aliens whom DHS declines remove beyond the scope what the INA can
reasonably interpreted authorize, will explain. 112
And even
assuming, arguendo, that the government does have that power, Texas also
injured the grant lawful presence itself, which makes DAPA recipients
newly eligible for state-subsidized driver licenses. 113 affirmative
agency action with meaningful standards against which judge it, DAPA
not unreviewable agency action committed agency discretion
law. 701(a)(2).
The government urges that this case not justiciable even though
federal court obligation hear and decide cases within its jurisdiction
virtually unflagging. 114 decline depart from that well-established
principle. 115 And invoking our jurisdiction, the states not demand that
the federal government control immigration and pay for the consequences federal immigration policy prevent illegal immigration. 116
Neither the preliminary injunction nor compliance with the APA
requires the Secretary enforce the immigration laws change his priorities
The class aliens eligible for DAPA not among those classes aliens identified Congress eligible for deferred action and work authorization. See infra part VII.
112
113
See TEX. DEP PUB. SAFETY, VERIFYING LAWFUL PRESENCE, supra note 56.
Lexmark, 134 Ct. 1386 (quoting Sprint Commc ns, Inc. Jacobs, 134 Ct.
584, 591 (2013)).
114
See Sprint Commc ns, 134 Ct. 590 Federal courts, was early and famously
said, have more right decline the exercise jurisdiction which given, than usurp
that which not given. (quoting Cohens Virginia, U.S. Wheat.) 264, 404 (1821))).
115
Texas United States, 106 F.3d 664; see also Sure-Tan, 467 U.S. 897 [P]rivate persons have judicially cognizable interest procuring enforcement the immigration laws Fiallo, 430 U.S. 792 [T]he power expel exclude aliens [is]
fundamental sovereign attribute exercised the Government political departments largely
immune from judicial control. (quoting Shaughnessy United States rel. Mezei, 345 U.S.
206, 210 (1953))).
116
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
for removal, which have expressly not been challenged. 117 Nor have the states
merely invited substitute our judgment for that Congress deciding
which aliens shall eligible participate benefits program]. Diaz,
426 U.S. 84. 118 DAPA was enjoined because the states seek opportunity
See Brief for Appellees [T]he district court injunction does not touch and
this lawsuit has never challenged the Executive separate memorandum establishing three
categories for removal prioritization, any decision the Executive forego removal
proceeding.
117
The main thrust the dissent could summarized claiming that [i]t Congress fault. The President apparently agrees: explained the district court, was
the failure Congress enact such program that prompted [the President] change
the law. See infra note 200. The dissent opens blaming Congress for insufficient
funding to-wit, decades congressional appropriations decisions, which require DHS de-prioritize millions removable each year due these resource constraints. Dissent (footnote omitted).
118
The dissent insistent invocation what perceives Congress inadequate funding regrettable and exposes the weakness the government legal position. See, e.g.,
Dissent unless and until more resources are made available Congress id.
Congress able make more resources for removal available id. given the resource
constraints faced DHS id. maximize the resources that can devoted such
ends id. decades congressional appropriations decisions id. due these
resource constraints id. n.9 Congress were substantially increase the amount funding DHS limited resources id. n.55 the decades-long failure
Congress fund id. [50] Congress choices the level funding for immigration
enforcement
The facts, not commentary political decisions, are what should matter. Thus the
dissent notion that this case essentially boils down policy dispute, Dissent 22, far
misses the mark and avoids having tackle the hard reality for the government existing
law. Similarly unimpressive the dissent resort hyperbole. E.g., Dissent [t]he
majority breathtaking expansion state standing id. the majority sweeping
special solicitude analysis id. n.14 the sweeping language the majority uses
today id. n.54 this radical theory standing n.61 The majority ruling potentially devastating.
The dissent also claims that despite limited funding, DHS has been removing
individuals from the United States record numbers. Dissent 20. the very least, the
statistics which the dissent relies are highly misleading. Although DHS claims that
record-high 0.44 million aliens were deported 2013, arrives that number using
only removals (which are deportations court order) per year and ignoring returns
(which are deportations achieved without court order). If, more accurately, one counts total
removals and returns both ICE and the Border Patrol, deportations peaked over 1.8
million 2000 and plunged less than half about 0.6 million 2013. that thirteenyear interim, the number aliens deported per court directive (that is, removed) roughly
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238 heard through notice and comment, not have the judiciary formulate rewrite immigration policy. Consultation between federal and state officials important feature the immigration system, 119 and the notice-andcomment process, which designed ensure that affected parties have
opportunity participate and influence agency decision making, 120 facilitates that communication. its core, this case about the Secretary decision change the immigration classification millions illegal aliens class-wide basis. The
states properly maintain that DAPA grant lawful presence and accompanying eligibility for benefits substantive rule that must through notice and
comment, before imposes substantial costs them, and that DAPA substantively contrary law. The federal courts are fully capable adjudicating
those disputes.
VI.
Because the interests that Texas seeks protect are within the INA
zone interests, and judicial review available, address whether Texas
has established substantial likelihood success its claim that DAPA must submitted for notice and comment. The United States urges that DAPA
exempt interpretative rule[], general statement[] policy, rule[]
agency organization, procedure, practice. U.S.C. 553(b)(A). contrast, rule substantive, the exemption inapplicable, and the full panoply notice-and-comment requirements must adhered scrupulously. The
doubled from about 0.2 million 0.44 million. The total number deportations its
lowest level since the mid-1970 U.S. DEP HOMELAND SEC., 2013 YEARBOOK
IMMIGRATION
STATISTICS
103tbl.39
(2014),
http://www.dhs.gov/sites/default/files/publications/ois_yb_2013_0.pdf.
119
Arizona United States, 132 Ct. 2508.
120
U.S. Steel Corp. EPA, 595 F.2d 207, 214 (5th Cir. 1979).
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
APA notice and comment exemptions must narrowly construed. 121
The government advances the notion that DAPA exempt from notice
and comment policy statement. 122 evaluate two criteria distinguish
policy statements from substantive rules: whether the rule (1) impose[s] any
rights and obligations and (2) genuinely leaves the agency and its decisionmakers free exercise discretion. 123 There some overlap the analysis
those prongs because [i]f statement denies the decisionmaker discretion
the area its coverage then the statement binding, and creates rights obligations. 124 While mindful but suspicious the agency own characterization, focus[] primarily whether the rule has binding effect
agency discretion severely restricts it. 125 [A]n agency pronouncement will
Prof Patients for Customized Care Shalala, F.3d 592, 595 (5th Cir. 1995)
(footnote omitted) (quoting United States Picciotto, 875 F.2d 345, 347 (D.C. Cir. 1989)).
121
The government does not dispute that DAPA rule, which defined the
APA agency statement general particular applicability and future effect designed implement, interpret, prescribe law policy describing the organization, procedure, practice requirements agency and includes [various substantive agency functions]
practices bearing any the foregoing. U.S.C. 551(4).
122
Prof Patients, F.3d 595 (quoting Cmty. Nutrition Inst. Young, 818 F.2d
943, 946 (D.C. Cir. 1987) (per curiam)); see also Vigil, 508 U.S. 197 (describing general
statements policy statements issued agency advise the public prospectively
the manner which the agency proposes exercise discretionary power. (quoting Chrysler Corp. Brown, 441 U.S. 281, 302 n.31 (1979))); Brown Express, Inc. United States,
607 F.2d 695, 701 (5th Cir. 1979) general statement policy statement administrative agency announcing motivating factors the agency will consider, tentative goals
toward which will aim, determining the resolution [s]ubstantive question
regulation.
123
Gen. Elec. Co. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002) (quoting McLouth Steel
Prods. Corp. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988)).
125 Prof Patients, F.3d 595 (footnote omitted); accord id. [W]e are give
some deference, albeit not overwhelming, the agency characterization its own rule.
(quoting Cmty. Nutrition Inst., 818 F.2d 946)); Phillips Petroleum Co. Johnson, F.3d
616, 619 (5th Cir. 1994) This court, however, must determine the category into which the
rule falls: [T]he label that the particular agency puts upon its given exercise administrative power not, for our purposes, conclusive; rather what the agency does fact.
124
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238 considered binding practical matter either appears its face
binding, applied the agency way that indicates binding. Gen.
Elec., 290 F.3d 383 (citation omitted).
Although the DAPA Memo facially purports confer discretion, 126 the
district court determined that [n]othing about DAPA genuinely leaves the
agency and its [employees] free exercise discretion, 127 factual finding that review for clear error. That finding was partly informed analysis the
implementation DACA, the precursor DAPA. 128
Like the DAPA Memo, the DACA Memo instructed agencies review
applications case-by-case basis and exercise discretion, but the district
court found that those statements were merely pretext 129 because only
about the 723,000 applications accepted for evaluation had been
denied, 130 and [d]espite request the [district] [c]ourt, the [g]overnment
(alteration original) (quoting Brown Express, 607 F.2d 700)).
See Crane, 783 F.3d 254 55. Crane, held that the plaintiff ICE agents and
deportation officers had not demonstrated the concrete and particularized injury required give them standing challenge DACA, id. 247, because, inter alia, they had not alleged sufficient factual basis for their claim that employment action against them was certainly impending they exercise[d] [their] discretion detain illegal alien, id. 255.
That conclusion was informed the express delegation discretion the face the DACA
Memo and the fact that sanctions warnings had yet been issued. Id. 254 55.
did not hold that DACA was unreviewable exercise prosecutorial discretion that the
DACA criteria did not have binding severely restrictive effect agency discretion. See
id. 254 55.
126
Dist. Ct. Op., Supp. 670 (second alteration original) (quoting Prof Patients, F.3d 595).
127
Id. 579 60. See JACOB STEIN AL., ADMINISTRATIVE LAW 15.05[3] (2014) general, the agency past treatment rule will often indicate its nature.
128
129
Dist. Ct. Op., Supp. 669 n.101.
Id. 609; see id. (noting that [i]n response Senate inquiry, the USCIS told
the Senate that the top four reasons for denials were: (1) the applicant used the wrong form;
(2) the applicant failed provide valid signature; (3) the applicant failed file complete
Form 765 failed enclose the fee; and (4) the applicant was below the age fifteen and
thus ineligible participate the program id. *669 n.101 [A]ll were denied for failure
130
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
counsel did not provide the number, any, requests that were denied [for
discretionary reasons] even though the applicant met the DACA criteria 131 The finding pretext was also based declaration Kenneth
Palinkas, the president the union representing the USCIS employees processing the DACA applications, that DHS management has taken multiple
steps ensure that DACA applications are simply rubberstamped the applicants meet the necessary criteria 132 DACA Operating Procedures, which
contain[] nearly 150 pages specific instructions for granting denying meet the criteria (or rejected for technical filing errors, errors filling out the form
lying the form, and failures pay fees), for fraud.
Relying the Neufeld declaration, the dissent tries make much the distinction
between denials and rejections. Dissent 37. The district court did fact mistakenly write
denials (used describe applications refused for failure meet the criteria) the above
quoted passage where the USCIS response actually said rejections (applications refused for
procedural defects). USCIS reported that approximately DACA applicants were
rejected and that additional were denied. USCIS does not draw distinction between
denials applicants who did not meet the criteria and denials those who met the criteria
but were refused deferred action result discretionary choice.
USCIS could not produce any applications that satisfied all the criteria but were
refused deferred action exercise discretion. Id. 669 n.101 [A]ll were denied for
failure meet the criteria rejected for technical filing errors, errors filling out the form lying the form, and failures pay fees), for fraud. Given that the government
offered evidence the bases for other denials, was not error clear otherwise for
the district court conclude that DHS issued DACA denials under mechanical formulae.
Dist. Ct. Op., Supp. 609. The parties had ample opportunity inform
the district court, submitting over 200 pages briefing over two-month period with more
than exhibits. The court held hearing the motion for preliminary injunction, heard
extensive argument from both sides, and specifically asked for evidence individuals who
had been denied for reasons other than not meeting the criteria technical errors with the
form and/or filing. Id. 669 n.101.
131
132
Dist. Ct. Op., Supp. 609 10.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
deferred action 133 and some mandatory language the DAPA Memo itself. 134 denying the government motion for stay the injunction, the district
court further noted that the President had made public statements suggesting
that reviewing applications pursuant DAPA, DHS officials who don follow the policy will face consequences, and they got problem. 135
Id. 669 (footnote omitted). For example, the DACA National Standard Operating
Procedures SOP specifically directs officers which evidence applicant required
submit, what evidence considered, the weight given evidence, and the
standards proof required grant deny application. U.S. DEP HOMELAND SEC.,
NATIONAL STANDARD OPERATING PROCEDURES: DACA (2012). elaborate: affidavit
alone may not support application, and DACA applicants must prove education and age
criteria documentary evidence. Id. 10. The SOP also mandates, however, that [o]fficers will NOT deny DACA request solely because the DACA requestor failed submit
sufficient evidence with the request officers will issue [Request for Evidence (RFE)] whenever possible. Id. 42.
133
DHS internal documents further provide that series RFE templates have been
developed and must used, and those documents remind repeatedly that [u]se these
RFE templates mandatory. (Emphasis added.) And [w]hen RFE issued, the
response time given shall days. SOP 42.
These specific evidentiary standards and RFE steps imposed the SOP are just
examples the district court had before when concluded that DACA and DAPA severely
restrict[ agency discretion. Prof Patients, F.3d 595. Far from being clear error,
such finding was error whatsoever.
Dist. Ct. Op., Supp. 648 49, 671 n.103. There the district court exhibited its keen awareness the DAPA Memo quoting the following from it:
134 [the Secretary] hereby direct USCIS establish process, similar DACA
Applicants must file Applicants must also submit [Applicants] shall also eligible Deferred action granted pursuant the program shall for period three years. with DACA, the above criteria are considered for all
individuals ICE and CBP are instructed immediately begin identifying persons their custody, well newly encountered individuals, who meet the above
criteria ICE further instructed review pending removal cases The
USCIS process shall also available individuals subject final orders
removal.
Id. 611 (paragraph breaks omitted.) This detailed explication the DAPA Memo flies the face the dissent unjustified critique that the district court eschew[ed] the plain
language the [DAPA] Memorandum. Dissent 31.
135
2015).
Texas United States, No. B-14-254, 2015 1540022, (S.D. Tex. Apr.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
The DACA and DAPA Memos purport grant discretion, but rule can binding applied the agency way that indicates binding, 136
and there was evidence from DACA implementation that DAPA discretionary language was pretextual. For number reasons, any extrapolation from
DACA must done carefully. 137
First, DACA involved issuing benefits self-selecting applicants, and
persons who expected denied relief would seem unlikely apply. But
the issue self-selection partially mitigated the finding that the [g]overnment has publicly declared that will make attempt enforce the law
against even those who are denied deferred action (absent extraordinary
circumstances). Dist. Ct. Op., Supp. 663 (footnote omitted).
Second, DACA and DAPA are not identical: Eligibility for DACA was
Gen. Elec., 290 F.3d 383; accord McLouth Steel, 838 F.2d 1321 (reviewing
historical conformity part determination whether rule was substantive non-binding
policy, despite language indicating that was policy statement); id. 1321 More critically
than EPA language [,] its later conduct applying confirms its binding character.
136
The dissent, citing National Mining Ass McCarthy, 758 F.3d 243, 253 (D.C. Cir.
2014), criticizes the states and the district court for enjoining DAPA without early snapshot its implementation. Dissent 32. First, the dissent overlooks fundamental principle preliminary injunctions: injunction help one must wait suffer injury
before the court grants it. United States Emerson, 270 F.3d 203, 262 (5th Cir. 2001) [T]he
injury need not have been inflicted when application [for the injunction] made certain occur[.]
137
Second, the dissent assumes the conclusion National Mining that the agency
action question not subject pre-enforcement review applicable here and asserts
that need early snapshot DAPA enforcement. The two cases are easily distinguished. The court found EPA Final Guidance exempt from pre-enforcement review
because had legal impact. National Mining, 758 F.3d 253; see id., 252 The most
important factor concerns the actual legal effect (or lack thereof) the agency action
regulated entities. legal matter, the Final Guidance meaningless [and] has legal impact.
DAPA, contrast, has effect regulated entities (i.e. illegal aliens). DAPA
removes categorical bar illegal aliens who are receiving state and federal benefits,
places cost the states. The states are not required suffer the injury that legal impact
before seeking injunction. See id. 252.
Case: 15-40238
Document: 00513286295
Date Filed: 11/25/2015
No. 15-40238
restricted younger and less numerous population, 138 which suggests that
DACA applicants are less likely have backgrounds that would warrant
discretionary denial. Further, the DAPA Memo contains additional discretionary criteria: Applicants must not enforcement priority reflected
the [Prioritization Memo]; and [must] present other factors that, the exercise discretion, makes the grant deferred action inappropriate. DAPA
Memo But despite those differences, there are important similarities:
The Secretary direct[ed] USCIS establish process, similar DACA, for
exercising prosecutorial discretion, id. (emphasis added), and there was evidence that the DACA application process itself did not allow for discretion,
regardless the rates approval and denial. 139
Instead relying solely the lack evidence that any DACA application had been denied for discretionary reasons, the district court found pretext for additional reasons. observed that the Operating Procedures for
implementation DACA contains nearly 150 pages specific instructions for
granting denying deferred action applicants and that [d]enials are
Approximately 1.2 million illegal aliens are eligible for DACA and 4.3 million for
DAPA. Dist. Ct. Op., Supp. 609, 670.
138
Despite these differences and the dissent protestations the contrary (see, e.g.,
Dissent 38), DACA apt comparator DAPA. The district court considered the
DAPA Memo plain language, which the Secretary equates the DACA and DAPA procedure, backgr