State of Texas v. United States of America

□ Southern District of Texas

. ENTERED

July 16, 2021

IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

STATE OF TEXAS, ET AL., §

Plaintiffs, §

§

§

§

THE UNITED STATES OF AMERICA, ET AL., §

Defendants, § Civil Action No. 1:18-CV-00068

§ □

and §

§

KARLA PEREZ, ET AL.; §

§

STATE OF NEW JERSEY, §

Defendant-Intervenors. §

MEMORANDUM AND ORDER

Before the Court are the Motion for Summary Judgment filed by the Plaintiff States! (Doc.

No. 486) and the competing Motion for Summary Judgment filed by the individual Defendant- □

Intervenors.? (Doc. No. 503). The Defendant-Intervenors have filed responses in opposition to the

Plaintiff States’ motion (Doc. Nos. 502, 504) and the Defendants? have also responded. (Doc. No.

501). The Plaintiff States combined their reply to these responses with their response to the

individual Defendant-Intervenors’ motion. (Doc. No. 529). The Defendants have also responded

to the individual Defendant-Intervenors’ motion. (Doc. No. 527). Finally, the Defendant-

' While the roster changed somewhat over the history of the case, the Plaintiff States are comprised of Texas, Alabama,

Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina, and West Virginia.

The Defendant-Intervenors are 22 individual DACA recipients plus the State of New Jersey. The Court will refer to

them collectively as “Defendant-Intervenors” unless there is a need to refer to them separately. When that occurs, the

Court will refer to the DACA recipients as “individual Defendant-Intervenors” and the state as “New Jersey.”

3 The primary defendant is the United States of America, although the following individuals with some supervisory

role over DACA have also been named: L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M.

Nielsen, and Carla L. Provost. They may be referred to collectively as the “Government” or “Defendants.” (The

Government has not sought to substitute as parties the new Administration’s personnel.)

Intervenors have replied to both of the responses to the individual Defendant-Intervenors’ motion.

(Doc. Nos. 528, 532).

The Plaintiff States argue in their motion and briefs that the Deferred Action for Childhood

Arrivals (DACA) program is illegal because its creation violated, and its continued existence

violates, the procedural and substantive aspects of the Administrative Procedure Act (APA). 5

U.S.C. § 500 et seg. The Plaintiff States also claim that the Executive Branch violated the “Take

Care Clause” of the United States Constitution when it instituted DACA. U.S. ConsrT. art. II, § 3.

In the individual Defendant-Intervenors’ Motion for Summary Judgment, they argue that

they are entitled to summary judgment because the Plaintiff States have not carried their burden to

establish Article III standing. They emphasize that the Plaintiff States have not introduced

evidence sufficient to show that they have suffered any concrete injury or that the remedy they

seek would redress any such alleged injury. Defendant-Intervenors also contend that the Plaintiff

States have failed to establish parens patriae standing or that they should be afforded special

solicitude. Additionally, they claim that there is no actual case or controversy within the meaning

of Article III because this case lacks adverseness. For these reasons, Defendant-Intervenors

conclude that these threshold issues preclude this Court’s review on the merits.

I. Factual Background

A. Creation of DACA

In 2012, after multiple failed attempts by Congress to pass an act granting lawful status to

aliens who were illegally brought to this country as children, then-Department of Homeland

Security (DHS) Secretary Janet Napolitano announced a new program called DACA. Her

* The Court, while using initial caps for ease of readability, acknowledges that “Take Care Clause” more often appears

in print as “take Care Clause,” which uses a lowercase initial letter in the word “take.” This latter approach has been

adopted by many scholars and authors because that is how it appears in most copies of the Constitution.

instructions were set forth in a three-page memorandum dated June 15,2012 (the “DACA

Memorandum”).> The DACA Memorandum directed immigration enforcement officers not to

remove “certain young people who were brought to this country as children” who met specific

delineated criteria. For those who qualify, DACA allows them to remain in the country temporarily

through a renewable two-year period of “deferred action.”® An illegal alien’ is eligible for DACA

if he or she:

e came to the United States under the age of sixteen;

e has continuously resided in the United States for at least five years preceding

[June 15, 2012] and is present in the United States on [June 15, 2012];

e is currently in school, has graduated from high school, has obtained a general

education development certificate, or is an honorably discharged veteran of the

Coast Guard or Armed Forces of the United States;

5 Doc. No. 487, Ex. 1, Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to

Individuals Who Came to the United States as Children (June 15, 2012).

6 In at least one place in the Code of Federal Regulations, “deferred action” is characterized as “an act of administrative

convenience to the government which gives some cases lower priority.” 8 C.F.R § 274a.1(c)(14); see also Reno v.

AAADC, 525 U.S. 471, 483-84 (1999) (describing deferred action as the Executive abandoning the deportation

endeavor “for humanitarian reasons or simply for its own convenience”).

7 The Court understands that some may find the phrase “illegal alien” offensive. The Court uses this term because it

is used in official government documents as quoted by the Supreme Court in its seminal pronouncement pertaining to

this area of law. See Arizona v. United States, 567 U.S. 387, 397 (2012). Moreover, “alien” and “immigrant” are

defined statutory terms. See 8 U.S.C. §§ 1101(a)(3), (15). Furthermore, the Fifth Circuit explained why “illegal alien”

is a preferable (and not pejorative) term in a case like this:

“The usual and preferable term in [American English] is illegal alien. The other forms have arisen

as needless euphemisms, and should be avoided as near-gobbledygook. The problem with

undocumented is that it is intended to mean, by those who use it in this phrase, ‘not having the

requisite documents to enter or stay in the country legally.’ But the word strongly suggests

‘unaccounted for’ to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the

meaning.

More than one writer has argued in favor of undocumented alien . . . [to] avoid[] the implication that

one’s unauthorized presence in the United States is a crime . . . . Moreover, it is wrong to equate

illegality with criminality, since many illegal acts are not criminal. J//egal alien is not an opprobrious

epithet: it describes one present in a country in violation of the immigration laws (hence ‘illegal’).”

Texas v. United States, 809 F.3d 134, 148 n.14 (Sth Cir. 2015) (quoting Bryan A. Garner, Garner’s Dictionary of

Legal Usage 912 (Oxford 3d ed. 2011)); see also Matthew Salzwedel, The Lawyer's Struggle to Write, 16 Scribes

Journal of Legal Writing 69, 76 (2015) (“/I]llegal alien has going for it both history and well-documented, generally

accepted use.”).

e has not been convicted of a felony offense, a significant misdemeanor offense,

multiple misdemeanor offenses, or otherwise poses a threat to national security

or public safety; and

e ‘is not above the age of thirty.

In turn, having deferred action makes DACA recipients eligible for various benefits.

Generally, aliens are not eligible for any “Federal public benefit.” 8 U.S.C. § 1611(a). Aliens who

are “lawfully present in the United States,” however, are eligible to apply for Social Security and

Medicare, id. §§ 1611 (b)(2), (3), and a pre-existing regulation defining “lawfully present in the

United States” includes “alien currently in deferred action status.”® 8 C.F.R. § 1.3(a)(4)(vi).

Additionally, deferred action status makes recipients eligible to apply for work

authorization pursuant to a pre-existing regulation, see 8 C.F.R. § 274a.12(c)(14), and the DACA

Memorandum instructs U.S. Citizenship and Immigration Services (USCIS) to consider DACA

applicants for work authorization. DACA took the further step of requiring its recipients to apply

for work authorization. (Doc. No. 9, Ex. 20, USCIS, DACA Toolkit: Resources for Community

Partners). Once a recipient has work authorization, he or she is eligible for a Social Security

number, along with its attendant benefits.? 20 C.F.R. §§ 422.104(a)(2), 422.105(a); 8 C.F.R.

§ 1.3(a)(4)(vi). Further, DACA recipients are also eligible for certain state benefits, such as

Texas’s state-subsidized work-study program. See Tex. Educ. Code § 56.075(a)(1); 19 Tex.

Admin. Code § 21.24(d)(5).

DACA recipients must still meet the normal criteria to qualify for these benefits. Without lawful presence, however,

even an alien who met those criteria would still be ineligible for the benefits. See Texas I, 809 F.3d at 148-49. In

addition to Social Security and Medicare benefits, DACA recipients also can become eligible for benefits under the

Railroad Retirement Act of 1974 and the Railroad Unemployment Insurance Act. 8 U.S.C. § 1611(b)(4).

Among these benefits are earned income tax credits, which require a Social Security number, see 26 U.S.C.

§§ 32(c)(1)(E), (m); Texas J, 809 F.3d at 149, and perhaps even the recent stimulus payments under the American

Rescue Plan Act of 2021. See Kelly Anne Smith, Third Stimulus Check: Do Non-U.S. Citizens Qualify?, Forbes, Mar.

12, 2021.

Despite these benefits, the DACA Memorandum specifically concluded: “This

memorandum confers no substantive right, immigration status or pathway to citizenship. Only the

Congress, acting through its legislative authority, can confer these rights.” The DACA

Memorandum made up to 1.9 million otherwise removable aliens eligible for the program.!? The

DACA program started with approximately 152,431 applications in 2012, then DHS approved

370,521 applicants in 2013 and 158,397 in 2014.'! As of 2018, 814,000 individuals had applied

for and received “lawful presence” via DACA. (Doc. No. 225-3, Ex. 73 ¥ 16, Decl. of Dr. D.

Massey).

In 2014, the new DHS Secretary, Jeh Johnson, attempted to create a sister program,

Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and to expand

the DACA program (“Expanded DACA”). The total population of illegal aliens with lawful

presence due to DACA, Expanded DACA, and DAPA could have been 5.8 million’? (or over 50%

of the estimated 11.3 million illegal aliens in the country'’). Twenty-six states, including the

10 Estimates provided to the Court differ in the total number of DACA-eligible individuals. According to evidence

provided by the Defendant-Intervenors, this number could be as high as 1.9 million. (Doc. No. 225-4, Ex. 125 at 514,

R. Gonzales et al., Taking Giant Leaps Forward: Experiences of a Range of DACA Beneficiaries at the 5-Year Mark,

Ctr. for Am. Progress (June 22, 2017)) (describing DACA as “a policy that temporarily defers deportations . .. for up

to an estimated 1.9 million eligible unauthorized young adults”). Other estimates are more conservative. (See, □□□□

Doc. No. 225-3, Ex. 74 at 148, Decl. of M. Ray Perryman) (estimating “1.3 million people nationwide are eligible to

apply for DACA ....”); J. Passel & M. Lopez, Up to 1.7 Million Unauthorized Immigrant Youth May Benefit From

New Deportation Rules, Pew Research Center (Aug. 14, 2012). Rather than relying on extrinsic sources, arguments

of counsel, or government statistics that frequently change, the Court instead will use a midrange number of

approximately 1.5 million eligible individuals.

Doc. No. 224-2 at 450, USCIS, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals,

by FY, Quarter, Intake, Biometrics and Case Status FY 2012-2017 (March 31, 2018).

2 See Texas 1, 809 F.3d at 148.

3 Some parties, experts, and governmental units rely on an estimate that there are 11:3 million illegal aliens in the

United States. That number seems to have originated with a study done by the Pew Research Center that estimated

the illegal alien population as of March 2013. (See Doc. No. 225-2, Ex. 52, J. Passel et al., Pew Research Center, As

Growth Stalls, Unauthorized Immigrant Population Becomes More Settled (Sept. 3, 2014)). This study is now a

number of years old and it is arguable whether the number is accurate. A more recent study by Yale University and

the Massachusetts Institute of Technology pegs the number at closer to 22 million. M. Fazel-Zarandi et al., The

Number of Undocumented Immigrants in the United States: Estimates Based on Demographic Modeling with Data

Plaintiff States, sued to enjoin the implementation of DAPA and Expanded DACA, which this

Court preliminarily enjoined in 2015. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

That injunction was affirmed by the Fifth Circuit Court of Appeals, Texas v. United States, 809

F.3d 134 (Sth Cir. 2015), and then later by a split vote in the Supreme Court of the United States.

United States y. Texas, 136 §. Ct. 2271 (2016). This litigation will be referred to as Texas I.

Upon remand, the parties in Texas J asked this Court to postpone entering a scheduling

order that would have governed the proceedings to a final conclusion on the merits. Throughout

this time, the DACA Memorandum remained in force. Ultimately, the parties all agreed to dismiss

the case:

On June 15, 2017, the U.S. Department of Homeland Security released a

memorandum entitled Rescission of November 20, 2014 Memorandum Providing

for Deferred Action for Parents of Americans and Lawful Permanent Residents

(“DAPA”). On September 5, 2017, the Department released a memorandum

entitled Rescission of the June 15, 2012 Memorandum Entitled “Exercising

Prosecutorial Discretion with Respect to Individuals Who Came to the United

States as Children.” Given these memoranda rescinding the DAPA program and

phasing out the DACA and Expanded DACA programs, Plaintiffs file this

stipulation of voluntary dismissal. See Fed. R. Civ. P. 41(a)(1)(A)Gi) (allowing

plaintiffs to dismiss an action, without court order, by filing a stipulation of

dismissal by all parties who have appeared).

(Doc. No. 473, Texas J).

This stipulation of dismissal was signed by the attorneys for the plaintiffs (a group that

included all of the Plaintiff States in this case), the United States and the federal government

defendants, and the putative DAPA recipients who had intervened. As is evident from its text, the

stipulation was partly based upon the Government “phasing out the DACA .. . program[].” All

From 1990 to 2016, PLOS One (Sept. 21, 2018). Given the nature of individuals being in the country illegally, no

person, entity, or governmental unit can really know the number of illegal aliens.

parties agreed to the stipulation, otherwise such a dismissal would have required court action.

B. Rescission of DACA and Regents

_ After Texas I, the Government attempted to phase out DACA, as it represented to the

Plaintiff States it would, but other courts around the nation were asked to enjoin or vacate the

attempt to end the program. These lawsuits included: Batalla Vidal v. Trump, 279 F. Supp. 3d 401

(E.D.N.Y. 2018); NAACP v, Trump, 298 F. Supp. 3d 209 (D.D.C. 2018); Regents of Univ. of Cal.

v. United States Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018); and Casa de Mad.

v. United States, 284 F. Supp. 3d 758 (D. Md. 2018). The courts in the first three cases entered

injunctions against the attempted DACA rescission. These cases were eventually appealed to and

heard together by the Supreme Court in the case styled: Dep ’t of Homeland Sec. v. Regents of the

Univ. of Cal., 140 S. Ct. 1891 (2020) (hereinafter “Regents’’).

Meanwhile, in May 2018, the Plaintiff States filed the current case challenging the

lawfulness of DACA as it was enacted in 2012. The Plaintiff States now seek the same result they

thought they had achieved with the stipulation of dismissal in Texas /—that is, cessation of DACA.

While finding that they would likely succeed on the merits, this Court denied the Plaintiff States’

request for a preliminary injunction. (Doc. No. 319). Over the objections of the Plaintiff States,

the resolution of this case was stayed pending the ruling in Regents because it was important to

have the benefit of the Supreme Court’s analysis before proceeding, particularly as the decision

could have mooted this case.

Once the Supreme Court ruled, the parties were given adequate time to update their motions

and briefs to include any relevant analysis of the Regents opinion. The Court then held a hearing

at a time when it could be done safely, given the logistical complications presented by the COVID-

19 pandemic.

The Regents opinion, written by Chief Justice John Roberts, dealt with DACA’s attempted

recission, but it has some relevance here. In 2017, the Attorney General, based in part on the Texas

I litigation, concluded that DACA was unlawful and sent a letter to then-Acting DHS Secretary

Elaine Duke to that effect. Regents, 140 S. Ct. at 1903. Based on that letter, the Acting Secretary

issued a memorandum rescinding the DACA program. Jd. Various stakeholders sued to enjoin the

rescission. /d. The Chief Justice succinctly set out the exact questions the Regents Court needed to

address: “The issues raised here are (1) whether the APA claims are reviewable, (2) if so, whether

the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs

have stated an equal protection claim.” /d. at 1905.

In Regents, the Supreme Court found the Government’s decision to rescind DACA was

judicially reviewable. There is a general presumption of reviewability that can be rebutted by a

showing that the action is committed to “agency discretion by law.” 5 U.S.C. § 701(a)(2). An

argument in Regents, in Texas J, and at the preliminary injunction stage in this litigation, was that

DACA is an agency decision not to institute enforcement proceedings and as such neither its

creation nor rescission is reviewable.

The Supreme Court disagreed with this argument and recognized that “DACA is not simply

a non-enforcement policy.” Regents, 140 S. Ct. at 1906. Instead, the DACA Memorandum created

standardized proceedings by which USCIS solicits and reviews applications from eligible aliens.

Id. The proceedings are effectively “adjudications,” and the result of the adjudications is an

affirmative act of approval. Jd. The Supreme Court concluded that the DACA Memorandum

therefore “created a program for conferring affirmative immigration relief. The creation of that

program—and its rescission—is an action that provides a focus for judicial review.” Jd. (cleaned

up).

Having determined that the rescission of DACA was subject to judicial review, the

Supreme Court found that “judicial review of agency actions is limited to ‘the grounds that the

agency invoked when it took the action.” /d. at 1907 (quoting Michigan v. EPA, 576 U.S. 743,

758 (2015)). It continued on to explain: “Considering only contemporaneous explanations for

agency action also instills confidence that the reasons given are not simply convenient litigating

positions.” Jd. at 1909 (quotations omitted). Additionally, the Regents Court emphasized that

procedural compliance, in the context of rescission, “promote[s] agency accountability, by

ensuring that parties and the public can respond fully and in a timely manner to an agency’s

exercise of authority.” /d. (citations and quotations omitted). It also noted that the APA procedural

requirement of notice and comment, a pivotal issue in the instant case, was not before it. Jd. at

1903 n.1.

Central to the Regents decision was whether the rescission of DACA, under the

circumstances presented, was arbitrary and capricious. The Court held that, in light of the Attorney

General’s reliance on the Texas J litigation, which did not question DHS’s authority to forbear

removal, the Acting Secretary’s explanation for rescinding all of DACA (benefits and

forbearance) was arbitrary and capricious under the APA. /d. at 1912-13. Additionally, the Acting

Secretary’s failure to consider the significant reliance interests that DACA had engendered was

another, independent, reason that the rescission was arbitrary and capricious. Jd. at 1913-14.

Justice Sonia Sotomayor (who disagreed with the majority’s rejection of the equal

protection challenge) and Justice Brett Kavanaugh (who opined that the Court should have

considered the agency’s later justifications) filed separate opinions. Jd. at 1917, 1933.

Finally, the dissent filed by Justice Clarence Thomas and joined by Justices Samuel Alito

and Neil Gorsuch addressed the ultimate issue that is before this Court—the legality of DACA’s

creation. According to the dissenters, DHS was “without any statutory authorization” to create

DACA, and, even if DHS did have such authority, the agency needed to go through “the requisite

rulemaking process” to create DACA. Jd. at 1918-19 (Thomas, J., dissenting). DACA was

therefore an “unlawful program” whose rescission could not have possibly been arbitrary or

capricious. Jd. While a dissenting opinion does not carry the full force and compelling nature of a

majority opinion, it is clear the dissenters found DACA to have been illegal ab initio.

Justice Thomas noted that the majority’s failure to address DACA’s creation was “an effort

to avoid a politically controversial but legally correct decision” that would result in future “battles

to be fought in this Court.” Jd. at 1919. While this controversial issue may ultimately return to the

Supreme Court, the battle Justice Thomas predicted currently resides here and it is not one this

Court can avoid.

C. DACA After Regents

After the Regents decision, DHS issued a series of letters and memoranda that attempted

to limit the DACA program (“New DACA”). New DACA consisted of Attorney General William

Barr’s June 30, 2020 letter, Acting Secretary of DHS Chad Wolf’s July 28, 2020 memorandum,

and USCIS Deputy Director for Policy Joseph Edlow’s August 21, 2020 memorandum.

New DACA spurred more litigation, which was addressed in Batalla Vidal v. Wolf, 16-

CV-4756, 2020 WL 7121849 (E.D.N.Y. Dec. 4, 2020). There, the district court held that New

DACA was unlawful because “Mr. Wolf was without lawful authority to serve as Acting Secretary

of DHS.” Jd. at, *1. As a result, the court vacated the memorandum and found that DACA is

currently governed by the same terms as it was in 2012, before any attempted rescission. In the

wake of Batalla Vidal’s resolution, New DACA has little bearing on the present litigation.

Il. Issues Before and Not Before the Court

The Court is faced with five primary issues to resolve these competing summary judgment

motions. Though this Court addressed many of these issues earlier in this litigation, they arose in

the context of a request for preliminary injunction and on a somewhat more limited record. The

five issues before the Court are:

1) Do the Plaintiff States have standing to challenge DACA?

2) Was DHS required by the APA to go through notice and comment

rulemaking to institute DACA?

3) Does DACA violate substantive immigration law in contravention of the

APA?

4) Did the Executive Branch violate the Take Care Clause of the Constitution

with the creation and continued operation of DACA?

5) If the Plaintiff States are correct, what relief should this Court grant?

While many of the amici curiae, and even the parties at times, have suggested or argued

that other issues are related and should be addressed, the rulings of the Court are confined to these

five issues.

YY. Legal Standard

Summary judgment is warranted “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “The movant bears the burden of identifying those portions of the record it believes

demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf Inc. v. Nike, Inc.,

485 F.3d 253, 261 (Sth Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)).

Once a movant submits a properly supported motion, the burden shifts to the non-movant to show

that the Court should not grant the motion. Celotex, 477 U.S. at 321-25. The non-movant then

must provide specific facts showing that there is a genuine dispute. Jd. at 324; Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A dispute about a material fact is

genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must draw all

reasonable inferences in the light most favorable to the nonmoving party in deciding a summary

judgment motion. Id. at 255. The key question on summary judgment is whether there is evidence

raising an issue of material fact upon which a hypothetical, reasonable factfinder could find in

favor of the nonmoving party. Jd. at 248.

IV. Analysis

A. This Case Presents a Case or Controversy

The Constitution limits the exercise of judicial power to “Cases” and “Controversies.” U.S.

Const. art. III, § 2. Under Article III, a case must present a genuine controversy between adverse

parties to be justiciable. See INS v. Chadha, 462 U.S. 919, 939 (1983). Defendant-Intervenors

initially argued that this case does not present an actual case or controversy because opposing sides

are aligned: “(Plaintiff States] and [the Government] agree—DACA is unlawful.” (Doc. No. 504

at 39). They also contended that under New DACA, the Government is no longer implementing

the challenged policy, 2012 DACA. (Doc. No. 504 at 40).

When the federal government is a party, the “case or controversy” requirement is satisfied

if the federal government continues to enforce the challenged policy. United States v. Windsor,

570 U.S. 744, 758-59 (2013). In Windsor, the Supreme Court considered whether a justiciable

controversy existed when the Executive Branch enforced a statute against an individual despite

agreeing with her that it was unconstitutional. The Supreme Court held that even where “the

Government largely agree[s] with the opposing party on the merits of the controversy,” the

Government’s intent to enforce the challenged law provides sufficient adverseness to maintain

jurisdiction over the suit. Jd. at 759.

The Government’s continued operation of DACA is analogous to the continued

enforcement of the statute in Windsor. The alleged source of the Plaintiff States’ injuries is the

Government’s enforcement of DACA, and this remains true whether or not the Government

originally agreed with the Plaintiff States on the merits. Thus, the Defendant-Intervenors’

contention that the Plaintiff States and the Government “are, in fact, aligned” is immaterial. (Doc.

No. 504 at 39).

Even more to the point, New DACA, which Defendant-Intervenors relied upon to suggest

that the Government has ceased to enforce 2012 DACA, is no longer in effect. See Batalla Vidal,

2020 WL 7121849, at *1 “Accordingly, because Mr. Wolf was without lawful authority to serve

as Acting Secretary of DHS, [New DACA] is VACATED.”). After ruling that New DACA was

unlawful, the court held that “all parties agree that the DACA program is currently governed by

its terms as they existed prior to the attempted rescission of September 2017.” Jd. In other words,

2012 DACA is the policy in effect now.

Moreover, President Joseph Biden has recently signed a memorandum entitled,

“Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA),” which directs the

DHS Secretary and the Attorney General to take actions consistent with applicable law “to preserve

and fortify DACA.” (Doc. No. 550-1). Consequently, the Government is enforcing and preserving

the challenged program, 2012 DACA. The Government’s latest filing also demonstrates that it

staunchly defends DACA and strongly opposes the position of the Plaintiff States. !* Its arguments

4 A quick review of the argument section of the Table of Contents from the Government's latest brief demonstrates

its positions are clearly opposed to those of the Plaintiff States. The headings read as follows: “1) Plaintiffs Lack

Standing or a Viable Cause of Action to Challenge DACA; 2) DACA Is Lawful; 2a) DACA Is Substantively Lawful

Under the INA; 2b) DACA Did Not Need to Go Through Notice-and-Comment Rulemaking; 3) DACA Does Not

are diametrically opposed to the Plaintiff States’ positions and are aligned with the Defendant-

Intervenors’ positions.

Finally, this Court allowed all the intervenors into this lawsuit in order that they could

challenge the Plaintiff States’ positions. They have done that vehemently and ably. There can be

no doubt that this case presents an Article III controversy. It has been fought hard and

professionally by the lawyers for all concerned.

B. The Plaintiff States Have Standing

The Constitution’s “Cases or Controversies” requirement gives rise to another doctrine to

maintain the proper bounds of judicial power—standing to sue. U.S. CoNnsT. art. II, § 2; see also

Spokeo, Inc. v. Robins, 136 8. Ct. 1540, 1547 (2016). The “irreducible constitutional minimum of

standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A

federal court can exercise judicial power only when a plaintiff has demonstrated that it “(1)

suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,

and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547

(citing Lujan, 504 U.S. at 560-61). □

Defendant-Intervenors contend that they are entitled to summary judgment because the

Plaintiff States lack standing to sue. The Plaintiff States have the burden of establishing that at

least one of the plaintiffs has Article III standing. Town of Chester v. Laroe Ests., Inc., 1378. Ct.

1645, 1651 (2017) (“At least one plaintiff must have standing to seek each form of relief requested

in the complaint.”). The Court’s analysis will concentrate on whether Texas has standing to sue

because all parties have focused their standing arguments on DACA’s impact in Texas.

Violate the Take Care Clause; 4) In the Alternative, the Court Should Craft a Narrow Remedy that Minimizes

Disruption to DACA Recipients; and 5) If This Court Grants Plaintiffs Immediate Relief, Then It Should Stay Its

Ruling.” (Doc. No. 569 at 2).

The Plaintiff States assert several independent theories of standing and contend that under

the Supreme Court’s ruling in Massachusetts v. EPA, 549 U.S. 497 (2007), they are entitled to

special solicitude when the Court makes its standing determination. An entitlement to special

solicitude would inform the Court’s standing analysis, so the Court first considers whether to

afford Texas special solicitude. It will then consider whether the Plaintiff States have standing.

1. Special Solicitude

The Supreme Court has explained that “States are not normal litigants for the purposes of

invoking federal jurisdiction.” Massachusetts, 549 U.S. at 518. Rather, a state is afforded “special

solicitude” when it alleges that a defendant “violated a congressionally accorded procedural right

which affected the State’s ‘quasi-sovereign’ interests in, for instance, its physical territory or

lawmaking function.” Texas v. United States, 6:21-CV-00003, 2021 WL 2096669, at *10 (S.D.

Tex. Feb. 23, 2021) (citing Massachusetts, 549 U.S. at 520-21 and Texas J, 809 F.3d at 151-55).

The Supreme Court has not been explicit about the consequences of having special solicitude in a

standing analysis, but it appears that recognition of this status would mitigate perceived

weaknesses in causation and redressability arguments. Massachusetts, 549 U.S. at 524 (finding

causation and redressability, and rejecting the premise that “a small incremental step, because it is

incremental, can never be attacked in a federal judicial forum”).

The Fifth Circuit has explicitly interpreted special solicitude to lower the level of certainty

required in the traditional causation and redressability analysis. See Texas J, 809 F.3d at 159

(“[T]he government theorizes that Texas’s injury is not fairly traceable to DAPA because it is

merely an incidental and attenuated consequence of the program. But Massachusetts v. EPA

establishes that the causal connection is adequate. Texas is entitled to the same ‘special solicitude’

as was Massachusetts, and the causal link is even closer here.”); see also Texas, 2021 WL 2096669,

at *20. Applying the law set out in Massachusetts v. EPA and Texas I, the Court finds that Texas

is entitled to special solicitude.

In Massachusetts v. EPA, Massachusetts sued to challenge the decision of the

Environmental Protection Agency (EPA) not to regulate certain vehicle emissions. The EPA

argued that Massachusetts lacked standing to sue and sought dismissal of the case. The Supreme

Court found that Massachusetts did have standing, based in part on the difference between a state

seeking relief on behalf of its citizens and a normal litigant. Massachusetts, 549 U.S. at 518.

The Court came to this conclusion after determining that Massachusetts was entitled to

special solicitude due to the presence of two factors: a procedural right to challenge the agency

action and a quasi-sovereign interest in the state’s territory. The Court first found that

Massachusetts had a procedural right to sue because the Clean Air Act—which Massachusetts

sued to enforce—provided a concomitant procedural right whereby Massachusetts could challenge

the rejection of its rulemaking petition as arbitrary and capricious. Jd. at 520.

The Supreme Court next emphasized Massachusetts’s desire to protect its quasi-sovereign

interest in its territory. Jd. at 519. Expanding on precedent from 1907, it found that Massachusetts’s

desire to preserve sovereign territory in its coastline from the threat of rising sea levels constituted

a quasi-sovereign interest. See id. (“Just as Georgia’s independent interest ‘in all the earth and air

within its domain’ supported federal jurisdiction a century ago, so too does Massachusetts’s well-

founded desire to preserve its sovereign territory today.”) (quoting Georgia v. Tenn. Copper Co.,

206 U.S. 230, 237 (1907)). The Court explained that Congress’s command to the EPA to protect

Massachusetts from the alleged harm took on a heightened significance because Massachusetts, in

exchange for entering the union, had relinquished its “sovereign prerogatives” to regulate for itself

the harms associated with air pollutants. Jd. Finding both factors met, a procedural right to

challenge the inaction of the EPA and a quasi-sovereign interest in protecting its territory, the

Supreme Court determined Massachusetts was entitled to special solicitude. Jd. at 520.

For purposes of this special solicitude analysis, this Court does not write on a clean state.

In Texas I, the Fifth Circuit ruled that Texas was entitled to special solicitude based upon facts

substantially similar to those here. 809 F.3d at 151-55. It held that states had special solicitude to

defend against DAPA and Expanded DACA’s “institutional injury to their lawmaking authority.”

Id. at 154.

Considering the first factor, the Circuit found that Texas’s procedural right under the APA

to challenge DAPA and Expanded DACA was analogous to Massachusetts’s procedural right to

challenge the EPA’s decisions not to promulgate emission standards. Jd. at 152. The Fifth Circuit

explained why the analysis from Massachusetts was applicable even though the Clean Air Act

provided a more specific procedural right than the APA:

The Clean Air Act’s review provision is more specific than the APA’s, but the latter

is easily adequate to justify “special solicitude” here. The procedural right to

challenge EPA decisions created by the Clean Air Act provided important support

to Massachusetts because the challenge Massachusetts sought to bring—a

challenge to an agency’s decision not to act—is traditionally the type for which it

is most difficult to establish standing and a justiciable issue. Texas, by contrast,

challenges DHS’s affirmative decision to set guidelines for granting lawful

presence to a broad class of illegal aliens. Because the states here challenge DHS’s

decision to act, rather than its decision to remain inactive, a procedural right similar

to that created by the Clean Air Act is not necessary to support standing.

Id. (second emphasis added). Just as in Texas J, the Plaintiff States here seek to challenge DHS’s

affirmative decision to set guidelines for granting lawful presence to a broad class of illegal aliens.

The Fifth Circuit’s analysis, as applied to DAPA and Expanded DACA in Texas J, is equally

applicable to Texas’s procedural right to challenge DACA in the instant case. Therefore, Texas

easily satisfies the first factor in the special solicitude analysis. Just like Massachusetts had a right

to demand that the EPA enforce the Clean Air Act as Congress had commanded, the Plaintiff States

have a right under the APA to demand that DHS administer the immigration laws in the manner

dictated by Congress.

The Fifth Circuit’s analysis of the second factor, the quasi-sovereign interest, is not as easy

to apply here. In Texas J, the majority found that DAPA affected the state’s quasi-sovereign interest

by imposing “substantial pressure” on the states to “change their laws, which provide for issuing

driver’s licenses to some aliens and subsidizing those licenses.” Jd. at 153. Here, Texas does not

allege injury due to driver’s license costs. Nevertheless, Texas has demonstrated a quasi-sovereign

interest in its own economic well-being and that of its citizens to support its entitlement to special

solicitude in the standing analysis.

In Alfred L. Snapp & Son, Inc. v. P.R. ex rel. Barez, the Supreme Court recognized that a

state has a “quasi-sovereign interest in the health and well-being—both physical and economic—

of its residents in general.” 458 U.S. 592, 607 (1982). It also recalled that it had “long recognized

that [such interests] extend beyond mere physical interests to economic and commercial interests.”

Id. at 609 (emphasis added). The Supreme Court elaborated that any indirect effects of the

challenged conduct must be considered in the determination of whether the state has alleged injury

to “a sufficiently substantial segment of its population.” Jd. at 607. The Court remarked that a

helpful indicator of a quasi-sovereign interest is “whether the injury is one that the State, if it could,

would likely attempt to address through its sovereign lawmaking powers.” Jd.

Texas has successfully demonstrated a quasi-sovereign interest. Texas seeks to protect its

legal residents’ economic and commercial interests from labor market distortion caused by DACA.

(Doc. No. 486 at 32; Doc. No. 104 § 240). According to the Plaintiff States, DACA bypasses

Congress’s comprehensive immigration framework to grant lawful presence, and thereafter work

authorizations, to unlawfully present individuals. DACA recipients may then compete with legally

present individuals for available jobs. (See Doc. No. 487, Ex. 14 4 13, Decl. of D. Deere) (asserting

that rise in eligible workers due to DACA increases competition in available jobs); (id, Ex. 15 at

6-7, Depo. of I. Brannon) (stating presence of DACA recipients leads to increase in competition

among similarly skilled workers in the workplace and impacts wages). Even Defendant-

Intervenors’ own experts could not escape the reality that DACA congests the workforce: “[W]ork

authorizations and deferral from deportation provided by DACA allow recipients to better compete

with legally present workers. . . .” (Doc. No. 487, Ex. 24 § 6.a., Decl. of M. Wiehe & M. Hill).

The Plaintiff States further argue that the Patient Protection and Affordable Care Act

(ACA) exacerbates this problem. (Doc. No. 486 at 33-34). Under the ACA, certain large

employers are generally required to offer health insurance to their full-time employees that

provides “minimum essential coverage.” See 26 U.S.C. § 4980h. An employer who offers coverage

that does not provide minimum essential coverage will face a penalty if any of its employees

purchases coverage on the insurance exchange and receives a premium subsidy. See id) DACA

recipients, however, cannot receive a premium subsidy because, as aliens, they are generally

prohibited from receiving any federal public benefit. 8 U.S.C. § 1611(A). Accordingly, an

employer may offer to DACA-recipient employees coverage that does not provide minimum

essential coverage without risking a penalty. This facet of the ACA can make DACA recipients

less costly to employ for some employers, thereby incentivizing employers to hire DACA

recipients over similarly qualified legal Texas residents. (See Doc. No. 487, Ex. 14 | 24) (‘[A]s a

result of the interaction between the DHS Memorandum and the ACA, there will be relatively less

5 The Supreme Court suggested that a court consider “whether the injury is one that the State, if it could, would likely

attempt to address through its sovereign lawmaking powers.” Alfred L. Snapp, 458 U.S. at 607. Here the Plaintiff

States would clearly attempt to address this issue, but they cannot legislate around DACA, because immigration policy

falls within the sole ambit of the federal government. Arizona, 567 U.S. at 399 (“[T]he States are precluded from

regulating conduct in a field that Congress . . . has determined must be regulated by its exclusive governance.”).

Unable to pass their own laws regarding immigration status or policy, the states are hamstrung by the federal

government’s action or inaction.

hiring of U.S. citizens and relatively lower wages on average for those who are hired.”).

The very existence of a larger eligible workforce, even if one discounts the incentives

provided by the ACA, necessarily contributes to a more competitive labor market, which makes it

more difficult for legal residents of Texas to obtain work. Thus, Texas, on behalf of the Plaintiff

States, has sufficiently shown that DACA conflicts with its own quasi-sovereign interest in the

economic and commercial well-being of its legal residents.'®

Defendant-Intervenors argue that dicta in a recent Supreme Court decision, Murphy v.

NCAA, 138 S. Ct. 1461 (2018), which was decided after Texas I, undermines the validity of the

Fifth Circuit’s finding that DAPA implicated the quasi-sovereign interests of the states. (Doc. No.

504 at 38). In particular, Defendant-Intervenors emphasize that in Murphy the Supreme Court

explained that federal legislation that operates as “a direct command to the States” implicates

sovereign interests, whereas federal governmental action that directly regulates private individuals

does not. Murphy, 138 S. Ct. at 1479-81. According to Defendant-Intervenors, because “DACA

is the latter, a mere exercise of federal enforcement discretion that directly affects only private

parties (i.e., DACA recipients),” it neither strips the states of their powers nor intrudes on their

sovereignty in such a way that would support finding a quasi-sovereign interest. (Doc. No. 504 at

16 The Plaintiff States’ interest in protecting their residents is one of the hallmarks of special solicitude. In Batalla

Vidal y. Duke, 295 F. Supp. 3d 127 (E.D.N.Y. 2017), and the associated cases concerning DACA, 13 states and the

District of Columbia were all found to have standing under the concept of special solicitude as set out in Massachusetts

v. EPA. That court emphasized that this was especially true when the federal action in question was not enacted in

compliance with the requirements of APA notice and comment. It held:

Moreover, Washington has standing to challenge the procedures by which Defendants decided to

end the DACA program, because “there is some possibility” that, if DHS complied with notice-and-

comment... rulemaking procedures, it might “reconsider the decision.” See Massachusetts v. EPA,

549 U.S. at 518, 127 S. Ct. 1438. Because Washington has established its standing to assert

substantive and procedural APA .. . claims, the State Plaintiffs therefore have Article IT] standing

to bring these claims. See FAIR, 547 U.S. at 53 n.3, 126 S. Ct. 1297.

Duke, 295 F. Supp. 3d at 158-39. Certainly, if the Plaintiff States had been given the opportunity to express the

concerns raised here through a notice and comment procedure, “there is some possibility” that DHS might have taken

a different course of action.

38). Murphy, however, does not support this argument.

Murphy discussed federal legislation only in the context of anti-commandeering!’ and

preemption. Murphy never mentions special solicitude. In Murphy, sports leagues sued to enjoin

New Jersey from enforcing a state law that partially repealed the state’s prohibition on gambling.

138 S. Ct. at 1472. The Third Circuit affirmed a grant of summary judgment for the sports leagues

on the basis that the New Jersey state law violated federal law, the Professional and Amateur Sports

Protection Act (PASPA). Jd. The Circuit opined that PASPA did not violate anti-commandeering

principles because it did not force states to take any affirmative action. Jd. at 1473. The Supreme

Court reversed, finding that PASPA’s provision making it unlawful for states to authorize sports

gambling contravened the anti-commandeering doctrine because the “provision unequivocally

dictate[d] what a state legislature may and may not do.” Jd. at 1478.

In reaching its holding, the Supreme Court reviewed some of its prior cases that discuss

anti-commandeering and revisited federal laws that it had previously held do not violate the anti-

commandeering doctrine. It recognized that those specific federal laws did not infringe on certain

state “sovereign authorities” or “sovereign powers,” because they “applied equally to state and

private actors” and “did not regulate the States’ sovereign authority to regulate their own citizens.”

Id, at 1478-79 (quotations omitted).

Defendant-Intervenors try to extrapolate from this Supreme Court review of anti-

commandeering law the conclusion that DACA does not intrude upon Texas’s quasi-sovereign

interests because DACA applies only to private actors. (Doc. No. 504 at 38). First, the premise is

7 According to the Supreme Court, the doctrine of anti-commandeering stands for the proposition that “the Federal

Government may neither issue directives requiring the States to address particular problems, nor command the States’

officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz v. United

States, 521 U.S. 898, 935 (1997).

wrong: DACA does not apply only to private actors. It applies equally to public actors.'® Texas

has over 110,000 DACA recipients and it must treat them as having lawful presence. (See Doc.

No. 487, Ex. 22 4 13, Supp. Decl. of D. Deere). Their presence and the need for Texas to provide

services for them is certainly a public concern. As discussed below, the DACA recipients’ presence

also represents direct costs in the areas of healthcare, education, and social services.

Second, while the concept of federalism informs both the doctrines of anti-commandeering

and special solicitude, there is no precedent cited that relates the anti-commandeering doctrine to

special solicitude. Likewise, there is no authority that dictates a state must argue an anti-

commandeering violation to establish an entitlement to special solicitude. Here, Texas is not

arguing that DACA violates any anti-commandeering principle (nor is there an argument that

DACA would be illegal if passed by Congress). There is no clear link between a state’s “sovereign

interests” in the context of anti-commandeering and a state’s quasi-sovereign interests in the

context of special solicitude. Murphy does not mention special solicitude, quasi-sovereign

interests, or standing in this context.!? Accordingly, there is nothing in the decision that challenges

the soundness of the Fifth Circuit’s previous holding that Texas was entitled to special solicitude

or indicates that such a finding is not applicable here. See Texas I, 809 F.3d at 154.

When states must “rely on the federal government to protect their interests,” id, special

18 Tn reliance on Massachusetts v. EPA, various public actors have been held to have standing to challenge DACA’s

rescission, despite the fact that they are not DACA recipients, the only party the Defendant-Intervenors claim DACA

affects. In Regents of Univ. of California v. United States Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, these

included the University of California (because the school recruited DACA students who might withdraw if they lost

DACA status), California and Minnesota (because they employed DACA recipients whose loss would allegedly hurt

their workforce and they wanted to protect the diversity of their public institutions), and the City of San Jose and the

County of Santa Clara (due to concerns over the possible loss of employees and the cost to replace them). Even in this

case New Jersey intervened to protect its workforce. (Doc. No. 42). Texas’s interest in protecting its own workers is

no less important.

A concurring opinion in Murphy does mention standing in its discussion of the severability doctrine, that “often

requires courts to weigh in on statutory provisions that no party has standing to challenge.” 138 S. Ct. at 1487 (Thomas,

J., concurring). That reference, however, has no bearing here.

solicitude is especially relevant. States undoubtedly rely on the federal government in the area of

immigration because they cannot pass or enforce their own immigration laws: “Where Congress

occupies an entire field, as it has in the field of alien registration, even complementary state

regulation is impermissible. Field preemption reflects a congressional decision to foreclose any

state regulation in the area, even if it is parallel to federal standards.” Arizona, 567 U.S. at 401.

States are even prohibited from enforcing federal immigration laws:

Federal law makes a single sovereign responsible for maintaining a comprehensive

and unified system to keep track of aliens within the Nation’s borders. If § 3 of the

Arizona statute were valid, every State could give itself independent authority to

prosecute federal registration violations, “diminish[ing] the [Federal

Government]}’s control over enforcement” and “detract[ing] from the ‘integrated

scheme of regulation’ created by Congress.”

Id. at 402 (quoting Wis. Dept. of Industry v. Gould Inc., 475 U.S. 282, 288-89 (1986)). The Fifth

Circuit has already found that Texas’s interest in immigration regulation implicated the very same

types of sovereignty concerns as Massachusetts’s interest did in Massachusetts v. EPA:

When the states joined the union, they surrendered some of their sovereign

prerogatives over immigration. They cannot establish their own classifications of

aliens, just as “Massachusetts cannot invade Rhode Island to force reductions in

greenhouse gas emissions [and] cannot negotiate an emissions treaty with China or

India.”

Texas I, 809 F.3d at 153 (quoting Massachusetts, 549 U.S. at 519). When, as here, a state has ceded

its authority to regulate a certain area of the law, special solicitude is particularly warranted.

The primary avenue under our Constitution for a state to protect itself and its residents

from unwanted federal action is through its elected officials in Congress. Congress has passed

immigration laws, but, according to the Plaintiff States, the Executive Branch has refused to

enforce those laws. If the Government’s argument that a state lacks standing to complain about the

Executive Branch’s failure to enforce the law in court is accurate, then a state would have no

recourse. This is not how our system of federalism was designed to work. The states gave up

certain rights when they joined the union in return for the promise of the federal government to

abide by the Constitution and duly-enacted laws. If the Executive Branch refuses to do that, the

courts provide the only avenue for redress.

Just as in Massachusetts vy. EPA and Texas I, the Plaintiff States here must “rely on the

federal government to protect their interest,” Texas I, 809 F.3d at 154, and if the Executive Branch

attempts to establish policies contrary to statute, Congress has provided the states a procedural

vehicle in the APA to seek redress. Accordingly, the Plaintiff States have shown that Texas is

entitled to special solicitude in the Court’s standing analysis. To that end, the Plaintiff States are

afforded the benefit of a relaxed standard in the traditional causation and redressability analysis of

standing. See id. at 159.

2. Parens Patriae Standing

The Plaintiff States rely, in part, on the doctrine of parens patriae to establish an

independent basis for standing in their suit. (Doc. No. 486 at 34). Parens patriae permits a state to

bring suit to protect the interests of its citizens, even if it cannot demonstrate a direct injury to its

separate interests as a sovereign entity. See Alfred L. Snapp, 458 U.S. at 601. The Supreme Court

has explained: “[T]o have such [parens patriae| standing the State must assert an injury to what

has been characterized as a ‘quasi-sovereign’ interest.” Jd. The Plaintiff States argue that they may

sue under parens patriae because DACA injures the economic interests of their legal residents.

Defendant-Intervenors argue that Plaintiff States may not invoke parens patriae because

of the Mellon bar, which prohibits a state from acting in the role of parens patriae to sue the federal

government to protect its citizens from the operation of a federal statute. See Massachusetts v.

Mellon, 262 U.S. 447 (1923). According to Defendant-Intervenors, Plaintiff States are suing the

federal government to protect their citizens from the operation of DACA. (Doc. No. 504 at 31—

Defendant-Intervenors also argue that even if there were parens patriae standing available

to the Plaintiff States, the Plaintiff States’ evidence of their theory of harm—labor market

distortion—is inadequate. (/d. at 33-34). They further urge that any alleged harm is outweighed

by the economic benefits that DACA creates and that DACA, in fact, strengthens the Texas

economy. (/d.).

Even assuming the Mellon bar applies to agency action, it would not operate to bar the

Plaintiff States’ claims. In Massachusetts v. EPA, the Supreme Court, citing Georgia v. Pa. R.R.,

324 U.S. 439 (1945), rejected the argument that parens patriae standing is categorically barred in

suits against the federal government. 549 U.S. at 520 n.17. The majority noted that there is a

“critical difference between allowing a State to protect her citizens from the operation of federal

statutes (which is what Mellon prohibits) and allowing a State to assert its rights under federal law

(which it has standing to do).” Jd. (emphasis added) (quotations omitted). After Massachusetts v.

EPA, it is clear the Mellon bar prohibits a state’s use of parens patriae standing to shield its citizens

from the operation of federal statutes, but permits a state to assert its rights under federal law.

Here, the Plaintiff States have demonstrated that they wish to assert rights under federal

law, just as Massachusetts was asserting its rights under the Clean Air Act. The Plaintiff States

bring this APA action to assert their procedural right of notice and comment as it pertains to

DACA, to challenge the agency action as outside of DHS’s statutory authority, and to enforce the

statutory language of the Immigration and Nationality Act (INA) and other immigration

provisions. The Plaintiff States are not seeking protection from the operation of federal law; they

20 The Mellon bar applies to statutes. Throughout their argument, the Defendant-Intervenors attempt to gloss over the

fact that the DACA Memorandum is not a federal statute.

want the Executive Branch to enforce the law as Congress has written it.*! The Mellon bar is

inapplicable.

Regarding the Defendant-Intervenors’ challenge to the Plaintiff States’ theory of harm, as

summarized above in the special solicitude analysis, the Plaintiff States have demonstrated that

DACA arguably causes the injury to their quasi-sovereign interest in the economic well-being of

their legal residents. DACA causes that injury because it alone grants lawful presence and requires

that USCIS accept applications from DACA recipients for work authorization, which enables

recipients to compete with lawful workers for jobs. (See Doc. No. 487, Ex. 22 4 13) ([T]he

addition of . . . 114,000 [work-eligible individuals] in Texas, will, other things equal, put

downward pressure on wages and make it more difficult for some U.S. citizens to find

employment.”). Further, certain Texas employers are financially incentivized under the ACA to

hire a DACA recipient over a legal Texas resident. (See id, Ex. 14 J] 24-25). Without DACA,

there would be fewer eligible workers competing in the Texas workplace.

The Defendant-Intervenors argue that DACA’s alleged effect on employer’s decision-

making falls short of the causation requirement because DACA does not “inexorably” lead to

eligibility for certain benefits. (Doc. No. 504 at 35). Contrary to this argument, the Supreme Court

held in Regents that DACA confers the “benefits attendant to deferred action” and that its

rescission would revoke “a deferred action program with associated benefits.” 140 S. Ct. at 1906,

21 The laws the Plaintiff States seek to enforce include, for example, the “comprehensive framework” of laws to protect

American workers and combat “the employment of illegal aliens.” Arizona, 567 U.S. at 404. This framework includes

laws that make it illegal for employers to hire “unauthorized aliens” and laws that require employers to verify

employment authorization status. See 8 U.S.C. §§ 1324a(a)(1)(A), (a)(1)(B), (a)(2), (b); 8 C.F.R. § 2744.10. Congress

has also imposed sanctions on aliens who illegally accept employment, which include removal from the country, 8

§ 1227(a)(1)(C)G), 8 C.F.R. § 214.1(e), and loss of the ability to adjust status. 8 U.S.C. §§ 1255(c)(2), (8).

Finally, Congress made it a crime for an unauthorized alien to obtain employment through fraudulent means. 18 U.S.C.

§ 1546(b). The Supreme Court found Congress’s intent in passing these statutes was to protect state workers. INS v.

Nat’l Ctr. for Immigrants’ Rights, 502 U.S. 183 (1991). These are the laws currently in effect, and the Plaintiff States

may sue to enforce them.

1907. Moreover, Texas’s entitlement to special solicitude shores up any alleged weaknesses

presented by attenuated causation and redressability arguments. Lujan, 504 U.S. at 572 n.7 (“The

person who has been accorded a procedural right to protect his concrete interests can assert that

right without meeting all the normal standards for redressability and immediacy.”).

A recent decision of a federal district court in Florida supports Texas’s injury and causation

arguments. Rodriguez v. Procter & Gamble Co., 465 F. Supp. 3d 1301 (S.D. Fla. 2020), motion to

certify appeal denied, 499 F. Supp. 3d 1202 (S.D. Fla. 2020). In that case, the court considered

whether a private employer who rejected applicants based on their DACA status violated 42 U.S.C.

§ 1981. The Court found that § 1981’s protection against alienage discrimination extends to DACA

recipients, after determining that 1) DACA recipients as a group are protected under § 1981; and

2) there is no meaningful distinction between discrimination on the basis of immigration status as

opposed to alienage. Jd. at 1315.

This ruling reinforces Texas’s injury and causation arguments because it holds that

employers no longer have the option to categorically choose to hire those with legal status over a

DACA recipient. Under that district court’s interpretation of § 1981, the law prohibits both public

and private employers from facially discriminating against DACA recipients in the hiring process.

In other words, an employer would have to give the same consideration to a DACA recipient as it

would a citizen or legal resident. This interpretation of the law confirms the traceability of the

Plaintiff States’ alleged injuries back to DACA.

Finally, the Fifth Circuit has already rejected the Defendant-Intervenors’ argument that the

economic benefits that may stem from DACA outweigh any injuries caused by it, at least when it

comes to standing. See Texas I, 809 F.3d at 155—56 (“Once injury is shown, no attempt is made to

ask whether the injury is outweighed by benefits the plaintiff has enjoyed from the relationship

with the defendant.”). Thus, this Court need not and cannot engage in the type of “accounting

exercise” that Defendant-Intervenors suggest. Jd. at 156.

Having adequately addressed the concepts of injury and causation under parens patriae,

the Plaintiff States must finally establish redressability, or the “likelihood that the requested relief

will redress the alleged injury.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998).

Redressability turns on whether the plaintiff “personally would benefit in a tangible way from the

court’s intervention.” /d. at 103 n.5. The Plaintiff States ask the Court to enjoin and set aside

DACA. (Doc. No. 486 at 54-55). If this Court were to hold that DACA violated the law and then

immediately vacate or enjoin the program, DACA recipients would no longer be entitled to work

authorization under existing laws. Without this work authorization, DACA recipients would be far

less likely, and perhaps even unable, to compete with the Plaintiff States’ citizens and other legally

present residents in the labor market. This diminished workforce would relieve the labor market

distortion that creates the parens patriae injury. Thus, the Plaintiff States and their unemployed

“personally would benefit in a tangible way from the court’s intervention,” satisfying

redressability. Steel Co., 523 U.S. at 103 n.5. In conclusion, the Plaintiff States have parens patriae

standing.

3. Standing for Healthcare, Education, and Social Services Costs

Plaintiff States also assert that they have standing independent of parens patriae because

DACA has caused them to incur financial injuries “in the form of increased social services costs.”

(Doc. No. 486 at 36). The parties agree that DACA, by conferring lawful presence, makes

recipients eligible for a variety of other state and federal benefits. Ud. at 19; Doc. No. 504 at 12).

The Court finds the arguments set forth by the Plaintiff States have merit and finds that Texas has

standing to sue based on costs incurred as a result of DACA.

First, the Plaintiff States have adequately shown that they bear the costs of medical services

required by federal law. The Plaintiff States argue that DACA requires states to spend more money

on healthcare by incentivizing otherwise unlawfully present aliens to remain in the Plaintiff States.

(Doc. No. 486 at 36). For example, Texas spends tens of millions of dollars annually to provide

emergency Medicaid services to illegal aliens. (Doc. No. 487, Ex. 27 § 8, Decl. of M. Smoot)

(“The total estimated cost to the State for the provision of Emergency Medicaid services to

undocumented immigrants residing in Texas was approximately ... $90 million in SFY 2013; the

estimate for SFY 2015 is $73 million.”). That figure also encompasses the costs incurred due to

non-DACA recipients, but Texas’s over 110,000 DACA recipients in all probability make up some

of those expenses. (See Doc. No. 487, Ex. 22 § 13). Defendant-Intervenors’ own expert

corroborates that DACA recipients inevitably rely on emergency Medicaid services, part of which

are funded by the state. (Doc. No. 487, Ex. 25 at 8:21-24, Depo. of R. Perryman) (“I assume there

would be some people in the DACA population who are likely to have some type of care that is

reimbursed in some way by the state.”). Second, under Plyer v. Doe, 457 U.S. 202 (1982), every

state must educate all children, regardless of their immigration status. Texas has similarly

established for standing purposes that it bears the burden of increased education costs. (See Doc.

No. 487, Ex. 28 9 3, Decl. of L. Lopez) (speaking in terms of unaccompanied children but setting

out annual education costs per child and cost of bilingual education).

In fact, Defendant-Intervenors’ own expert estimated that DACA recipients overall impose

a cost of over $250,000,000 on Texas per year and another $533,000,000 annually in costs to local

Texas communities. (Doc. No. 487, Ex. 29, Estimated Annual Net Fiscal Benefits of DACA

Recipients in Texas). If DACA recipients leave, Texas would no longer be obligated to pay for

those costs associated with DACA recipients’ entitlement to social services. Necessarily, this

would reduce some of the state’s financial expenditures.

While the Defendant-Intervenors contest the calculations of the Plaintiff States’ alleged

injuries as “conjectural” or “overbroad,” (Doc. No. 504 at 26), plaintiffs must only show some

injury, not substantial injury, to establish standing. OCA-Greater Houston v. Texas, 867 F.3d 604,

612 (Sth Cir. 2017) (‘The injury alleged as an Article III injury-in-fact need not be substantial; it

need not measure more than an identifiable trifle. .. . The injury in fact requirement under Article

II] is qualitative, not quantitative, in nature.”) (cleaned up). Texas’s evidence demonstrates injury.

Though Texas has not demonstrated exactly what percentage of these costs is due to DACA

recipients, at this stage, Texas need not prove the exact amount of damages from a particular

individual when it otherwise shows it has been injured by the program.”

The Plaintiff States’ injury argument in this regard is much less attenuated than the injury

allegation in Pennsylvania v. President of United States, 930 F.3d 543 (3rd Cir. 2019). In that case,

the Third Circuit found Pennsylvania had standing to prevent an alleged harm that had not occurred

and might not ever occur—that some affected employees might not be able to afford contraceptives

and might therefore turn to state-funded sources to pay for their contraceptives. Pennsylvania, 930

F.3d at 561-65. That finding was implicitly affirmed by the Supreme Court in Little Sisters of the

Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020).”? In the instant case, the

costs incurred by the Plaintiff States are not contingent on two future events. They are incurring

costs right now.

Moreover, one of the district court cases giving rise to Regents (and likewise had standing

2 Even if the Plaintiff States’ experts did not provide exact numbers, the Defendant-Intervenors’ expert did and his

figures confirm the position of the Plaintiff States. (See Doc. No. 487, Ex. 29),

3 In a recent opinion, Justice Alito confirmed that the Supreme Court implicitly found standing by the fact that it had

ruled on the merits. See California v. Texas, 141 S. Ct. 2104, 2124 n.2 (Alito, J., dissenting) (“Although our opinion

did not address the issue, we are required to consider Article III standing in every case that comes before us.”).

implicitly affirmed by the Supreme Court), found that increasing healthcare costs to the state

constituted an injury for purposes of Article III. In Regents of the Univ. of Cal. v. Dep’t of

Homeland Sec., the district court determined that Maryland’s and Minnesota’s allegations that

“rescinding DACA will cause many DACA grantees to lose their employer-based health insurance,

imposing higher healthcare costs on the state” were “sufficient to confer Article III standing.” 279

F. Supp. 3d at 1034. As the Plaintiff States have pointed out, that analysis “acknowledges that

DACA recipients without employer-based health insurance are currently imposing healthcare costs

on Plaintiff States.” (Doc. No. 529 at 18 n.7). It certainly supports the Plaintiff States’ argument

that healthcare costs to a state are a valid injury for purposes of Article III standing.”4

Defendant-Intervenors attack the sufficiency of the Plaintiff States’ evidence to support the

traceability and redressability of the injury alleged to DACA. Some of that evidence includes

Texas State Demographer Lloyd B. Potter’s statement that “it is reasonable to conclude that some

DACA participants would return to their country of origin if they lose or are not given permission

to work in the U.S.” (id, Ex. 32 4 8, Decl. of Dr. L. Potter ).?° It also includes a survey of 3,063

DACA recipients that revealed 22.3% were likely to leave the United States should DACA end.

24 The Plaintiff States have also broadly argued that they have standing because the Supreme Court allowed states to

challenge the rescission of DACA in Regents: “If States had standing to challenge the 2017 DACA rescission, they

likewise have standing to challenge DACA.” (Doc. No. 486 at 31). Indeed, in this very case, New Jersey pleaded that

it had a right to intervene to protect its interests in its workforce (Doc. No. 42)—the very interest Texas is likewise

using as a basis for standing. While the states in Regents and New Jersey here made similar arguments as the Plaintiff

States, and while the rulings pertaining to those states are informative, those circumstances alone do not necessarily

require the conclusion that the Plaintiff States have standing to sue here, because the injury to states arising from the

rescission of DACA is arguably distinct from the injury to states arising from its enactment. Each case must rise or

fall on its own merits.

5 As explained in a separate order, Defendant-Intervenors have complained of Dr. Potter’s declarations, and even

filed a Motion to Strike (Doc. No. 390), which this Court has denied. Dr. Potter later conceded that that “he assumed

loss of work authorization meant that a DACA recipient could not work in any capacity,” and that he had not thought

through all the implications of DACA recipients losing status. (Id. at 18). Regardless, Defendant-Intervenors have not

rebutted the crux of his common-sense assertion—which is supported by other evidence—that without work

authorization, some DACA recipients may lose their jobs and/or leave the United States.

(Id., Ex. 31 at 4, Survey of T. K. Wong),”® In fact, DACA recipients have expressed the sentiment

that the key factor in their ability to remain in the United States is DACA. (See, e.g., Doc. No. 504-

2, Ex. 18 § 8, Decl. of J. Park) (“Receiving deferred action is critical to my ability to live, work,

and study in the United States.”); (see also id., Exs. 20, 21, 22).

To be sure, there is contrary evidence in the record that some DACA recipients would

remain in the United States if the DACA program were terminated. (See Doc. No. 288 at 12)

(addressing Defendant-Intervenors’ testimony about their desire to remain in the country even if

DACA ended); (Doc. No. 400-1, Ex. 2 §f§ 43-44, Decl. of B. Hines) (expert testifying that the

rescission of DACA would not cause DACA recipients to leave the country); (Doc. No. 400-2, Ex.

9 36, Decl. of R. Gonzales) (expert testifying that rather than self-deport, DACA recipients who

lose DACA status would “return to the shadows”); (Doc. No. 400-2, Ex. 8 ff 35-36) (citing studies

to show that DACA recipients do not return to countries of origin because of ties to the United

States).

Nevertheless, the Court does not resolve factual disputes when determining standing. See

Ass’n of Cmty. Orgs. for Reform Now y. Fowler, 178 F.3d 350, 357 (Sth Cir. 1999) (“When the

defendant moves for summary judgment because of lack of standing, however, the plaintiff must

submit affidavits and comparable evidence that indicate that a genuine issue of fact exists on the

standing issue.”’); see also Harding v. Cnty. of Dall., 3:15-CV-0131-D, 2018 WL 1157166, at *7

(N.D. Tex. Mar. 5, 2018), aff'd 948 F.3d 302 (5th Cir. 2020) (deciding case should not be

dismissed at summary judgment stage for lack of standing due to genuine disputes of fact, without

resolving fact issues). The Plaintiff States have adequately alleged and have evidence to support

26 That percentage would equate to over 20,000 individuals in Texas alone.

their claims. The fact that Defendant-Intervenors have contrary evidence at best creates a fact issue

as to whether the Plaintiff States have suffered damages.

Defendant-Intervenors have not argued, nor could they, that no DACA recipients would

leave the United States should DACA be terminated. Defendant-Intervenors themselves

recognized this: “[A]ny federal immigration policy[] is certain to have consequences for whether

there are more (or fewer) residents in a given state, with attendant changes in ‘healthcare,

education, and law enforcement costs.” (Doc. No. 224 at 41). A plaintiff need not demonstrate

that a defendant’s actions are “the very last step in the chain of causation.” Bennet v. Spear, 520

USS. 154, 169 (1997); see also Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019) (“Because

Article III requires no more than de facto causality, traceability is satisfied here.”) (cleaned up).

Especially considering the relaxed causation and redressability standards afforded to the Plaintiff

States by their entitlement to special solicitude, any infirmity in Texas’s demonstration that its

injuries are fairly traceable to DACA, or redressable by a favorable outcome in this Court, is easily

remedied. Texas has standing. Since one of the Plaintiff States has standing, this Court need not

analyze the standing of any other plaintiff. See Town of Chester, 137 S. Ct. at 1651.

C. DACA is Reviewable under the APA

In Regents, the Supreme Court squarely held that DACA is reviewable under the APA: “In

short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a

program for conferring affirmative immigration relief. The creation of that program—and its

rescission—is an ‘action [that] provides a focus for judicial review.’” 140 S. Ct. at 1906 (emphasis

added) (citations omitted). After Regents, there can be no dispute that DACA is reviewable under

the APA.

D. Procedural APA Claim

The Plaintiff States argue that they are entitled to summary judgment because DHS did not

undergo the notice and comment rulemaking procedure as prescribed by the APA. The APA

provides that courts may “hold unlawful and set aside agency action... found to be. . . without

observance of procedure required by law.” 5 U.S.C. § 706(2)(D). The APA imposes different

procedures that agencies must follow to promulgate rules.” At issue here is whether DHS was

required to comply with the notice and comment rulemaking procedure (or “informal rulemaking”

procedure”*) described in 5 U.S.C. §§ 553(b) and (c) when it promulgated the DACA

Memorandum. Those sections of the APA provide that agencies must publish “[g]eneral notice of

proposed rule making” in the Federal Register, give “interested persons an opportunity to

participate in the rule making through submission of written data, views, or arguments with or

without opportunity for oral presentation,” and, after consideration of such comments,

“incorporate in the rules adopted a concise general statement of their basis and purpose.” There is

no dispute that DHS implemented the DACA Memorandum without undergoing notice and

comment rulemaking.

The notice and comment procedure’s purpose is twofold: to encourage “public

participation and fairness to affected parties after governmental authority has been delegated to

27 The parties do not dispute that the DACA Memorandum constitutes a “rule” under the APA. See 5 U.S.C. § 551(4)

(“‘[R]ule’ means the whole or a part of an agency statement of general or particular applicability and future effect

designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice

requirements of an agency ....”); see also 5 U.S.C. § 551(5) C“‘[R]ule making’ means agency process for formulating,

amending, or repealing a rule.”).

?8 Notice and comment rulemaking is often referred to as “informal rulemaking” to distinguish it from “formal

rulemaking” described in sections 556 and 557. See 5 U.S.C. § 553(c) (“When rules are required by statute to be made

on the record after opportunity for an agency hearing [formal rulemaking], sections 556 and 557 of this title apply

instead of this subsection.”); see also Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 128 n.5 (2015) (Thomas, J.,

concurring) (“Although almost all rulemaking is today accomplished through informal notice and comment, the APA

actually contemplated a much more formal process for most rulemaking. To that end, it provided for elaborate trial-

like hearings in which proponents of particular rules would introduce evidence and bear the burden of proof in support

of those proposed rules. See 5 U.S.C. § 556.”).

unrepresentative agencies, and to assure that the agency will have before it the facts and

information relevant to a particular administrative problem, as well as suggestions for alternative

solutions.” Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987) (cleaned up). Still,

Congress has recognized that agencies need “flexibility in dealing with limited situations where

substantive rights are not at stake,” id at 1045, and has therefore provided two exceptions that

allow an agency to forgo notice and comment. The informal rulemaking procedures do not apply:

(A) to interpretative rules, general statements of policy, or rules of agency

organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and a brief

statement of reasons therefor in the rules issued) that notice and public

procedure thereon are impracticable, unnecessary, or contrary to the public

interest.”

5 U.S.C. § 553(b). The Government and the Defendant-Intervenors argue that the DACA

Memorandum is a “general statement of policy” as provided in subsection A such that its adoption

did not require notice and comment rulemaking.*° (See Doc. No. 502 at 29).

A general statement of policy is one “issued by an agency to advise the public prospectively

of the manner in which the agency proposes to exercise a discretionary power.” Lincoln v. Vigil,

508 U.S. 182, 197 (1993) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)). The

Fifth Circuit has articulated a two-factor test to determine whether an agency rule constitutes a

general statement of policy. First, a general statement of policy “acts prospectively”—that is, it

“may not have a present effect . . . [and] does not impose any rights and obligations.” Pros. &

2° None of the parties rely on subsection B.

3° Even if the DACA Memorandum is a “general statement of policy” that did not have to undergo notice and comment

rulemaking, it was still subject to the “publication” requirement of the APA—DHS was required to publish the DACA

Memorandum in the Federal Register. 5 U.S.C. § 552(a)(1)(D) (‘Each agency shall separately state and currently

publish in the Federal Register for the guidance of the public . . . substantive rules of general applicability adopted as

authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted

by the agency.”) (emphasis added). None of the parties have cited the Court to any evidence of compliance with this

publication requirement.

Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995). Put another way, the

policy “is not finally determinative of the issues or rights to which it is addressed.” Guardian Fed.

Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658, 666 (D.C. Cir. 1978). Next, the

policy statement “genuinely leaves the agency and its decisionmakers free to exercise discretion.”

Shalala, 56 F.3d at 595. The analysis of these two factors overlaps some “because ‘[i]f a statement

denies the decisionmaker discretion in the area of its coverage . . . then the statement is binding,

and creates rights or obligations.’” Texas J, 809 F.3d at 171 (quoting Gen. Elec. Co. v. EPA, 290

F.3d 377, 382 (D.C. Cir. 2002)).

In addition, the agency’s own characterization of the rule can be instructive in deciding

whether it is merely a general statement of policy. The Fifth Circuit accords “some deference” to

that characterization, but the focus is primarily “on the actual characteristics of the agency action.”

W & T Offshore, Inc. v. Bernhardt, 946 F.3d 227, 237 (5th Cir. 2019). “The label that the particular

agency puts upon its given exercise of administrative power is not, for our purposes, conclusive;

rather, it is what the agency does in fact.” Shalala, 56 F.3d at 596 (quoting Brown Express, Inc. v.

United States, 607 F.2d 695, 700 (Sth Cir. 1979) (alteration omitted)). The agency’s own

characterization is viewed with “suspicion,” Texas I, 809 F.3d at 171 (quoting Shalala, F.3d at

595) (alteration omitted), and it is what the agency and policy do in fact that matter more. See

Shalala, 56 F.3d at 596. In Texas J, the Fifth Circuit gave little consideration to the agency’s actual

label and proceeded to analyze the factors by which a court distinguished between general

statements of policy and rules that require informal rulemaking. This Court will follow that same

format.*!

31 The Fifth Circuit’s admonition to view an agency’s characterization with suspicion is particularly apt in this instance.

Here the agency argues DACA is a general statement of policy or, more specifically, an exercise of prosecutorial

discretion. While this Court will follow the Fifth Circuit’s guidance and proceed to determine whether it actually is a

general statement of policy, neither the DACA Memorandum nor its underlying record supports the award of a wide

1. Rights and Obligations

The Supreme Court’s Regents opinion provides guidance as to the first prong of the test to

determine whether an agency’s rule is a general statement of policy. In Regents, the Supreme Court

first had to determine whether the DACA Memorandum constituted a non-enforcement policy

whose rescission—and creation—was not reviewable by courts. 140 S. Ct. at 1905-06. The Court

found that the DACA Memorandum “did not merely ‘refus[e] to institute proceedings’ against a

particular entity or even a particular class.” Jd at 1906. Instead, it directed USCIS to establish

processes to identify individuals who met the DACA criteria and begin the proceedings for

deferred action. Jd The Supreme Court characterized these proceedings as “effectively

adjudications” and found that the DACA Memorandum “created a program for conferring

affirmative immigration relief.” Jd. Further, the Supreme Court recognized that “[t]he benefits

attendant to deferred action provide further confirmation that DACA is more than simply a non-

enforcement policy.” Id.

The question this Court must answer is: do the “benefits” that DACA confers, which make

it more than a non-enforcement policy, also make it more than a general statement of policy? The

Court is convinced that the benefits DACA confers also constitute rights. The Supreme Court

recognized that “DACA recipients may request work authorization and are eligible for Social

array of benefits as falling in the category of prosecutorial discretion. Additionally, if one views the DACA

Memorandum as a policy directed toward the conservation of DHS’s resources, there is likewise no supporting data

in the record. In fact, the most detailed discussion in the record is found in a letter from the House Judiciary Chair,

who questioned this justification:

Furthermore, we are concerned that DHS continues to use the excuse of ‘limited resources’ as a

justification for its flagrant disregard of the law. The Congress has consistently provided every dollar

requested since ICE’s creation for immigration enforcement efforts, particularly Enforcement and

Removal Operations . ...We request that ICE utilize the extensive resources available to rigorously

enforce the immigration laws of the United States and that ICE’s future budget requests include the _

funds necessary to effectively support the men and women of ICE in executing their critical mission.

(Doc. No. 472-3 at 169-70).

Security and Medicare.” Id. at 1906. DACA recipients have the “right” to these benefits. The

record shows that more than 800,000 individuals have already received these rights, and more

applicants are likely to come. (See Doc. No. 225-3, Ex. 73 { 16). The same “benefits” that made

DACA judicially reviewable in Regents constitute rights and obligations that distinguish it from a

“general statement of policy” using the analysis from the Fifth Circuit.°*

Additionally, another factor in determining whether a policy confers rights and obligations

is whether it “acts prospectively” or instead has a “present effect.” Shalala, 56 F.3d at 595. The

DACA Memorandum was not a statement of future policy; DACA immediately went into effect.

The DHS press release announcing the program, issued on the same date as the memorandum,

began as follows: “Secretary of Homeland Security Janet Napolitano today announced that

effective immediately ....” (Doc. No. 472-1 at 189) (emphasis added).

The DACA Memorandum was immediately applied to all who met the criteria, including

those individuals who were already in removal proceedings and those who were “encountered by

U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or

U.S. Citizenship and Immigration Services (USCIS).” The DACA Memorandum instructed DHS

agents to “immediately exercise” their discretion and to “implement this memorandum.” It also

mandated USCIS to accept applications for work authorizations for anyone granted deferred action.

For those not already in proceedings, USCIS was only given 60 days to get the program up and

running. In fact, even though the memorandum was not issued until mid-June, by year’s end 150,000

people had applied and more than 1,600 had been granted DACA status. (Doc. No. 224-2).

*° This Court has already noted that DACA recipients have successfully defeated summary judgment in an

employment rights class action case filed in Florida. That court’s opinion put special emphasis on the fact that rejection

by employers could undermine the DACA recipients’ “deferred action status” as well as their ability “to exist in their

community” because “DACA recipients are required to work.” See Rodriguez, 465 F. Supp. 3d at 1314-15. Clearly,

that court found DACA gave its recipients enforceable rights and imposed obligations on private employers.

Finally, the DACA Memorandum imposes obligations on private actors, individual states,

and on the federal government. As previously discussed in the section on standing, DACA defers

action against its recipients, which in turn gives them lawful presence, which then in turn obligates

the states to spend money in various areas, including social services, education, and healthcare. In

addition, it obligates the federal government to forebear from implementing immigration

enforcement proceedings and, because the recipients have deferred action, extends the “benefits”

that Regents described. The Court holds, therefore, that the DACA Memorandum imposes rights

and obligations.

2. Discretion

Next, the Court must consider whether the DACA Memorandum “genuinely leaves the

agency and its decisionmakers free to exercise discretion.” Shalala, 56 F.3d at 595. “An agency

pronouncement will be considered binding as a practical matter if it either appears on its face to

be binding, or is applied by the agency in a way that indicates it is binding.” Texas J, 809 F.3d at

171 (quoting Gen. Elec., 290 F.3d at 383) (alteration omitted). Accordingly, the Court must

consider both whether the DACA Memorandum “appears on its face to be binding” and whether

DHS applies DACA “in a way that indicates it is binding.” Jd.

The DACA Memorandum, in places, purports to confer discretion. It instructs agencies to

review applications on a case-by-case basis and exercise discretion. The DACA Memorandum

characterizes itself as an “exercise of prosecutorial discretion.” Therefore, “[t]he DACA...

Memo[] purport[s] to grant discretion.” Jd. at 173. Nevertheless, this does not end the analysis

because “a rule can be binding if it is ‘applied by the agency in a way that indicates it is binding.’”

Id. (quoting Gen. Elec., 290 F.3d at 383). □

Determining whether the DACA Memorandum has been applied by DHS in a way that

indicates it is binding depends in part on whether the Court looks outside the Memorandum and

its underlying record.?? The DACA Memorandum itself also includes mandatory language that

contradicts its purported conferral of discretion. It instructs agents as to what criteria to consider

when determining whether to grant DACA status, and it is compulsory for the agents to use only

those prescribed criteria. The Memorandum grants no discretion to the officers to vary from the

imposed criteria in any way. Further, the record similarly reveals that, in practice, agency officials

are not permitted to diverge from the DACA Memorandum’s criteria. Even the Supreme Court in

Regents found that DACA “instituted a standardized review process... .” 140 S. Ct. at 1906.

On the other hand, and assuming this Court is permitted to look beyond the administrative

record,** there is a factual dispute as to whether agents, in practice, have discretion when

determining whether an individual DACA applicant meets the prescribed criteria.

The Plaintiff States rely heavily on two different statements from DHS to argue that the

personnel reviewing DACA applications are not genuinely free to exercise discretion. First, in

Texas I, DHS could not find one example of anyone who had met all of the requirements in the

DACA Memorandum who was turned down for a discretionary reason. See Texas J, 809 F.3d at

172. Second, some years later, Acting DHS Secretary Duke confirmed that “USCIS has not been

able to identify specific denial cases where an applicant appeared to satisfy the programmatic

categorical criteria as outlined in the [DACA Memorandum], but still has his or her application

33 In response to various arguments made by the parties, the Court ordered the Government to file the complete

administrative record. (Doc. No. 467). It subsequently filed that record. (Doc. No. 472).

34 One could read the Regents opinion to indicate that the Court is confined in its examination to the DACA

Memorandum and its underlying record. The Supreme Court held that it would not consider later agency explanations

for its decision to rescind DACA. Regents, 140 S. Ct at 1907-10. The Court held, “[a]n agency must defend its actions

based on the reasons it gave when it acted.” Jd. at 1909 (quotations omitted). This analysis does not translate directly

to the posture of this case because in Regents, the Supreme Court was analyzing whether DACA’s rescission, a

decision that had not yet taken effect, was arbitrary and capricious. Still, the case may signify that the Court should

not look beyond the record when making its ruling. In any event, the Court holds, as explained below, that the DACA

Memorandum does not constitute a general statement of policy regardless of whether or not it looks beyond the

Memorandum and its record. Accordingly, the Court need not resolve this question.

denied based solely upon discretion.” (Doc. No. 6 at 23-24). The Government conceded this fact

in earlier oral arguments in this case. (Doc. No. 277 at 36).

The Plaintiff States have brought forth other evidence on this point as well. The USCIS

Texas Service Center, which handled DACA applications for many years, has never turned anyone

down who met the DACA Memorandum criteria. (Doc. No. 284, Ex. 4). The Plaintiff States have

also presented hundreds of pages of DHS manuals and procedures that instruct reviewers on each

step they should take and what they may consider as evidence that the DACA applicant has

satisfied each of the criteria. For example, in the DACA Toolkit, DHS states only those individuals

who can prove through “verifiable documentation” that they meet the DACA Memorandum

criteria will be eligible for deferred action. (Doc. No. 9, Ex. 20 at 70).

On the other hand, the Defendant-Intervenors point to an increase in the denial rate of

DACA applications in recent years to demonstrate that agents are exercising discretion when

determining whether individual applicants meet the set criteria. They also have provided this Court

with multiple emails from instructors who teach the DACA processors that suggest a shift may

have taken place following this Court’s opinion in Texas J in early 2015. (See, e.g., Doc. No. 215-

1, Exs. 36, 37, 38). After that decision, DHS began denying (even in the Texas Service Center)

more applications than it had in the first three years of the DACA program. Finally, Defendant-

Intervenors produced a post-Texas I email from one instructor who, while talking about applying

the established criteria, stated she liked to “jokingly say our standard is whether or not you would

want to live next door to the person.” (U/d., Ex. 38 at 405). While this Court will not opine on

whether the “good neighbor” standard is one capable of refined precision or even whether it would

be legally enforceable, if it were routinely being used, it would certainly be indicative of some

exercise of discretion.

This competing summary judgment evidence indicates there is a factual dispute concerning

whether agents reviewing DACA applications exercise discretion as to whether an applicant

satisfies the fixed criteria. In a summary judgment context, the existence of a disputed fact,

however, is only relevant if the fact is material. Here it is not. Even assuming that reviewing

officers have some discretion as to whether an applicant meets the criteria delineated by the DACA

Memorandum, they had no discretion to vary from the criteria: “If it appears that a so-called policy

statement is in purpose or likely one that narrowly limits administrative discretion, it will be taken

for what it is[—]a binding rule of substantive law.” Guardian, 589 F.2d at 666-67; see also Am.

Bus Ass'n v. United States, 627 F.2d 525, 530 (D.C. Cir. 1980) (policies at issue were “substantive

agency action, for they define[d] a fairly tight framework to circumscribe the Board’s statutorily

broad power”) (quotations omitted). The DACA Memorandum clearly “narrowly limits

administrative discretion” and establishes “a tight framework,” otherwise DHS agents could grant

DACA status to applicants who do not meet the prescribed criteria.

Thus, the Court finds it does not need to resolve this factual dispute to answer the

immediate question. Some agency orders are so impactful that the existence of some amount of

discretion is not determinative. That premise is especially appropriate here, where whatever

discretion exists must fit within the dictates of the DACA Memorandum.

Given the Fifth Circuit’s description of the factors to determine whether an agency action

constitutes a general statement of policy as “criteria” that “[w]e evaluate,” Texas I, 809 F.3d at

171, this Court previously held that the factors are not essential elements and instead that “the

Plaintiff States need not prove . . . both criteria; rather this Court evaluates each independently.”

(Doc. No. 319 at 103). Again evaluating each independently, the Court concludes that, even

assuming the DACA Memorandum “genuinely leaves the agency and its decisionmakers free to

exercise discretion” as to whether the applicant meets the Secretary’s criteria, Shalala, 56 F.3d at

595, it cannot be considered a general] statement of policy under the APA because of the fixed

criteria and because of the significant rights and obligations that it confers. A program of such

magnitude, even if some discretion exists somewhere in the process, cannot fall within this

“narrow” exception to the APA’s notice and comment requirements. Bowen, 834 F.2d at 1044.

As recounted above, the purpose of the APA’s informal rulemaking procedure is twofold.

First, it encourages “public participation and fairness to affected parties after governmental

authority has been delegated to unrepresentative agencies.” Jd. Second, the procedure ensures that

“the agency will have before it the facts and information relevant to a particular administrative

problem, as well as suggestions for alternative solutions.” Jd. These policy rationales would have

undoubtedly been relevant here, confirming the conclusion that DACA cannot be considered a

general statement of policy.

In his Regents dissent, Justice Thomas agreed with the majority that DACA was more than

simply a non-enforcement policy. See Regents, 140 S. Ct. at 1918 (Thomas, J., dissenting). He

further characterized DACA as a “substantive or legislative rule” that required notice and comment

rulemaking, rather than a general statement of policy. Jd. at 1927. He then posited that the

“majority tacitly acknowledges as much, as it must... . Otherwise, the majority would have to

accept that DACA was nothing more than a policy of prosecutorial discretion, which would make

its rescission unreviewable.” Jd. at 1927 n.8 (citations omitted). Thus, according to Justice Thomas,

since Regents was decided on the merits, each member of the Regents Court implicitly or explicitly

acknowledged that DACA is not a general statement of policy. This Court agrees with that

conclusion.

Accordingly, the Court holds that DHS was required to undergo notice and comment

rulemaking in order to adopt DACA. DHS failed to engage in the statutorily mandated process, so

DACA never gained status as a legally binding policy that could impose duties or obligations.

E. Substantive APA Claim

In Texas I, this Court elected not to address the substantive APA attack against DAPA and

Expanded DACA because the entirety of the case was resolved on the procedural claims and courts

routinely rule only on those issues necessary to resolve the case. Manning v. Upjohn Co., 862 F.2d

547 (Sth Cir. 1989) (“Principles of judicial restraint dictate that if resolution of an issue

effectively disposes of a case, [the court] should resolve the case on that basis without reaching

any other issues that might be presented.”). This Court would be inclined to follow this principle

again, but for the latest filings submitted by the Government. The Government has notified the

Court that it “intends to issue Notice of Proposed Rulemaking proposing a new regulation

conceming Deferred Action for Childhood Arrivals (DACA) consistent with the President’s

Memorandum of January 20, 2021.” (Doc. No. 563 at 2). That action, if performed appropriately,

could resolve the procedural deficiencies discussed above.

The Government also expressed the position that rulemaking “could significantly affect the

Court’s analysis regarding DACA’s substantive legality.” (Doc. No. 569 at 19-20). It then asked

in an alternative plea for relief that DACA be remanded without vacatur because there is a

“likelihood that DHS’s rulemaking will resolve many of the Court’s concerns with DACA’s

lawfulness... .” Ud. at 24).

That being the case, the Court elects to address and rule on the alleged substantive flaws

so DHS has a better appreciation of what it must address on remand. Therefore, following the lead

of the Fifth Circuit in Texas J, the Court rules on these issues. See Texas I, 809 F.3d at 178

(affirming district court on procedural APA claim, but also analyzing substantive claim even

though district court had not).

“[A]n agency literally has no power to act... unless and until Congress confers power

upon it.” La. Pub. Serv. Comm’n vy. FCC, 476 US. 355, 374 (1986). To that end, the APA provides

that courts may “hold unlawful and set aside agency action... found to be... in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). The

Plaintiff States argue, based primarily upon Texas J, that they are entitled to summary judgment

that the DACA Memorandum was in excess of DHS’s statutory jurisdiction or right. (Doc. No.

486 at 43). In their view, DACA is invalid because it violates the comprehensive immigration

scheme that Congress has enacted.

In Texas J, the Fifth Circuit assumed without deciding that the Chevron deference rules

applied to the agency’s decision to enact DAPA and Expanded DACA. 809 F.3d at 178-79 (citing

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). This Court will

do the same here. Chevron entails a two-step approach. See City of Arlington v. FCC, 569 U.S.

290, 296 (2013).

1. Congress has directly spoken on the precise question at issue.

The first step when reviewing an agency’s interpretation of a statute that it administers is

to apply the ordinary tools of statutory construction and determine whether Congress has directly

spoken to the precise question at issue. See Chevron, 467 U.S. at 842. “If the intent of Congress is

clear, that is the end of the matter; for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Jd. at 842-43. The Plaintiff States contend that

Congress has directly spoken, through the INA and other immigration statutes, to the precise issue

of whether DHS has the authority to enact DACA. According to them, Congress has expressly

foreclosed DHS’s adoption of the DACA Memorandum.

In Texas J, the Fifth Circuit held that Congress had directly addressed the precise question

of whether DHS could adopt DAPA and Expanded DACA. 809 F.3d at 179-81. It held that the

comprehensive immigration framework that Congress had passed, with “limited ways in which

illegal aliens can lawfully reside in the United States,” showed that Congress had spoken on the .

issue and had precluded DHS from implementing DAPA and Expanded DACA. Id. at 179. The □

Court sees no reason that the Fifth Circuit’s holding in Texas J, to the extent it applies, does not

bind this Court in this case.

a. Congress has not granted DHS the statutory authority to adopt

DACA.

The Government and Defendant-Intervenors assert that statutes that broadly grant authority

to DHS authorize it to implement DACA. In Texas J, the Fifth Circuit rejected a similar argument.

It held that neither of the two statutes that grant DHS authority broadly, 6 U.S.C. § 202(5)** or 8

U.S.C. § 1103,3* nor any other statute,*” provided the authority for DHS to implement DAPA or

Expanded DACA. See Texas J, 809 F.3d at 183-84. The agency’s interpretation of the statutes was

overly broad, and the statutes did not convey the claimed authority to institute the programs. Id.

“The Secretary... shall be responsible for... [e]stablishing national immigration enforcement policies and

priorities.”

36 See 8 U.S.C. § 1103(a)(3) (“[The Secretary]... shall establish such regulations; prescribe such forms of bond,

reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for

carrying out his authority under the provisions of this chapter.”); § 1103(g)(2) (‘The Attorney General shall establish

such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such

administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the

Attorney General determines to be necessary for carrying out this section.”).

37 The court also held that the agency could not rely on 8 U.S.C. § 1324a(h)(3), a “miscellaneous definitional

provision” to enact sweeping changes to national immigration policy because “Congress . . . does not alter the

fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide

elephants in mouseholes.” Texas 809 F.3d at 183 n.186 (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,

468 (2001)).

DHS had argued that those statutes allowed it to enact virtually any kind of deferred action

program. The Fifth Circuit reasoned that the agency’s interpretation of those statutes would allow

the Secretary to grant lawful presence and work authorization to every illegal alien in the United

States. Id. at 184. This possibility was highlighted in questions by Chief Justice Roberts in the

arguments before the Supreme Court.*® Given the INA’s intricate system for allocating

immigration status, the Fifth Circuit said that this limitless position was “untenable.” Jd. The same

problem exists for DACA.

The Government and Defendant-Intervenors also argue that the authority “is inherent to

DHS’s prosecutorial rule in determining how to allocate its scarce resources to best enforce the

nation’s immigration laws.” (Doc. No. 502 at 41). In other words, the Government argues DHS’s

authority is found in its inherent right to exercise prosecutorial discretion. While the law certainly

grants some discretionary authority to the agency, it does not extend to include the power to

institute a program that gives deferred action and lawful presence, and in turn, work authorization

and multiple other benefits to 1.5 million individuals who are in the country illegally. The

delegations of power to DHS “cannot reasonably be construed as assigning decisions of vast

economic and political significance, such as [DACA], to an agency.” Texas I, 809 F.3d at 183.

Moreover, the claim that DHS has an inherent right to create DACA as an exercise of

prosecutorial discretion is unreasonable. “Although prosecutorial discretion is broad, it is not

‘unfettered.’ Declining to prosecute does not transform presence deemed unlawful by Congress

into lawful presence and confer eligibility for otherwise unavailable benefits based on that

change.” Jd. at 167.

Secretary Napolitano, when fielding questions from the Senate in April of 2012 Gust before

38 Transcript of Oral Argument at 19~20, United States v. Texas, 136 S. Ct. 2271 (No. 15-674), as quoted infra at 63-64.

the implementation of DACA), more or less admitted that DHS’s power was limited to true forms

of prosecutorial discretion, like administratively closing a case:

SEN. LEE: [G]iven the fact that the DREAM Act was not passed into law, what

assurances can you give us or what assurances can I give to my constituents when

they approach me and suggest that perhaps there might be an effort under way to

back-door these same factors in -- through regulatory channels that couldn’t be

passed through Congress?

SEC. NAPOLITANO: Senator, first, let me begin by saying, having worked in this

field for decades now, we strongly need overall reform. And we strongly support

the DREAM Act as a legislative enactment...

That being said, what we have the capacity or only jurisdiction to do is to

administratively close a case. That doesn’t give the person involved any kind of a

green card or anything of that sort. It simply means their case is effectively

suspended and they can remain the United States.

(Doc. No. 472-1 at 54, Hearing Testimony, Oversight of the Department of Homeland Security,

Apr. 25, 2012) (emphases added). This testimony indicates that the Secretary thought that DHS

only had authority to administratively close cases.*? Mere administrative closure, which according

to the administrative record is the “preferred mechanism” for exercising discretion on a case-by-

case basis (see Doc. No. 472-2 at 35-36), would have been within the purview of prosecutorial

discretion.

In the underlying administrative record, DHS employees carefully delineated the difference

between prosecutorial discretion (which inherently accompanies any prosecutorial role) and what

DHS called “adjudicative discretion” (which it said must be based in a statute or regulation):

3° Prior to the institution of DACA, President Barack Obama also agreed publicly that the Executive Branch could not

accomplish the goals of the DREAM Act administratively: “With respect to the notion that I can just suspend

deportation through executive order, that’s just not the case because there are laws on the books that Congress has

passed... .” Press Release, The White House Office of the Press Secretary, Remarks by the President at Univision

Townhall (Mar. 28, 2011); see also Press Release, The White House Office of the Press Secretary, Remarks by the

President in an Open for Questions Roundtable (Sept. 28, 2011) (answering a question about enacting the DREAM

Act administratively with: “You have to pass bills through the Legislature, and then I can sign it. And if all the attention

is focused away from the Legislative process, then that is going to lead to a constant dead-end.”).

There are significant limitations to prosecutorial discretion, however.

First, in order to be a nonreviewable exercise of prosecutorial discretion, the

decision must be a decision to enforce, or not to enforce, the law. An enforcement

decision must be distinguished from an affirmative act of approval, or grant of a

benefit, under a statute or other applicable law that sets guidelines for determining

when the approval should be given. Chaney, 470 U.S. at 831. An enforcement

decision is an exercise or nonexercise of an agency’s coercive power over an

individual’s liberty or property. Jd. at 832.

The doctrine of prosecutorial discretion applies to enforcement decisions, not

benefit decisions. For example, a decision to charge, or not to charge, an alien with

a ground of deportability is clearly a prosecutorial enforcement decision. By

contrast, a grant of an immigration benefit, such as naturalization or adjustment of

status, is a benefit decision that is not a subject for prosecutorial discretion. See

Chaney, 470 U.S. at 831 (distinguishing Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402 (1971)).

(Doc. No. 472-2 at 201). Thus, prior to the institution of DACA, DHS knew that only the decision

to enforce or not to enforce the law fell in the category of prosecutorial discretion. An award of

deferred action, lawful presence, work authorization, and the other benefits attendant to DACA

status “is not a subject for prosecutorial discretion.” (/d.).

The administrative record also includes a document that provides instructional examples

of the types of decisions that fall under prosecutorial discretion as opposed to those that fall in the

category of adjudicative discretion. To name a few, it characterized decisions about “whom to

arrest” and “whether to execute an order of removal” as exercises of prosecutorial discretion, but

it described “adjustment of status” and “cancellation of removal” as exercises of adjudicative

discretion. (Id. at 52-53). These examples strongly indicate that even DHS would have found

DACA to be more than an exercise of prosecutorial discretion at the time it was created. The

decision to award deferred action, with all of the associated benefits of DACA status, is outside

the purview of prosecutorial discretion.

While Congress has allowed the Executive Branch to create regulations and to selectively

grant deferred action in some specific instances, it has reserved for itself the broad authority to

regulate immigration. This is further evinced by the fact that Congress had already declined to give

a DACA-like population legal status multiple times before DACA’s creation:

Immigrant Children’s Educational Advancement and Dropout Prevention Act of

2001, H. R. 1582, 107th Cong., Ist Sess.; Student Adjustment Act of 2001, H. R.

1918, 107th Cong., Ist Sess.; DREAM Act, S. 1291, 107th Cong., Ist Sess. (2001);

DREAM Act, 8. 1545, 108th Cong., 1st Sess. (2003); Student Adjustment Act of

2003, H. R. 1684, 108th Cong., Ist Sess; DREAM Act, S. 2863, 108th Cong., 2d

Sess., Tit. XVIII (2003); DREAM Act of 2005, S. 2075, 109th Cong., 1st Sess.;

Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong., 2d Sess.,

Tit. VI, Subtitle C; American Dream Act, H. R. 5131, 109th Cong., 2d Sess. (2006);

DREAM Act of 2007, S. 774, 110th Cong., Ist Sess.; DREAM Act of 2007, S.

2205, 110th Cong., Ist Sess.; STRIVE Act of 2007, H. R. 1645, 110th Cong., Ist

Sess., Tit. VI, Subtitle B; Comprehensive Immigration Reform Act of 2007, S.

1348, 110th Cong., Ist Sess., Tit. VI, Subtitle C; DREAM Act of 2009, S. 729,

111th Cong., 1st Sess.; American Dream Act, H. R. 1751, 111th Cong., 1st Sess.;

Comprehensive Immigration Reform Act of 2010, 8. 3932, 111th Cong., 2d Sess.,

Tit. V, Subtitle D; DREAM Act of 2010, S. 3827, 111th Cong., 2d Sess.; DREAM

Act of 2010, S. 3962, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3963, 111th

Cong., 2d Sess.; DREAM Act of 2010, S. 3992, 111th Cong., 2d Sess.; DREAM

Act of 2010, H. R. 6497, 111th Cong., 2d Sess.; DREAM Act of 2011, S. 952,

112th Cong., 1st Sess.

Regents, 140 S. Ct. at 1919 n.2 (Thomas, J., dissenting). This consistent rejection shows

Congress’s clear intent not to take this action. In a related hearing, Secretary Napolitano testified

to Congress that she would not take agency action in lieu of legislation to address the issue of

aliens who had been brought to this country at a young age. She recognized that such action should

come from Congress: “[W]e believe that Congress should address this and provide a legislative

fix for this problem.” (Doc. No. 472-1 at 139, Hearing Testimony, DREAM Act Senate Hearing,

June 28, 2011). Nevertheless, less than a year later, DHS instituted DACA on its own.

On the same day the DACA Memorandum was issued, the President of the United States

addressed the reasoning behind the new program. He first chided Congress for not passing the

DREAM Act, then he said that DACA was being implemented due to “the absence of any

immigration action from Congress.” Press Release, Office of the White House Press Secretary,

Remarks by the President on Immigration (June 15, 2012).

Even after the implementation of the DACA Memorandum, Congress has continued to

consider and reject proposals to protect a DACA-like population.” The Executive Branch cannot

just enact its own legislative policy when it disagrees with Congress’s choice to reject proposed

legislation.

Congress has not given DHS the power to implement DACA, nor can DACA be

characterized as authorized by DHS’s inherent authority to exercise prosecutorial discretion.

b. The INA and related statutes provide a comprehensive statutory

scheme for removal and allocation of lawful presence.

Congress has already determined that the DACA-eligible population is removable through

a variety of provisions in the INA. DACA beneficiaries entered the country either by overstaying

a visa or by entering without inspection,*! and the INA instructs that aliens in both classes are

removable. Recipients who entered legally but overstayed their legal permission to be in the

country are deportable under 8 U.S.C. § 1227(a)(1)(C)@): “Any alien... who has failed to maintain

the nonimmigrant status in which the alien was admitted . . . is deportable.” An alien who is

“deportable” under § 1227 is “removable.” Jd. § 1229a(e)(2).

Those who enter the country illegally are also removable. The INA defines “[a]n alien

4° See, e.g., Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong., Ist

Sess.; BRIDGE Act, 8. 3542, 114th Cong., 2nd Sess.; BRIDGE ACT, H. R. 496, 115th Cong., Ist Sess.; Border

Security and Immigration Reform Act of 2018, H. R. 6136, 115th Cong., 1st Sess.; S. 166, 116th Cong., Ist Sess.;

American DREAM and Promise Act of 2019, H. R. 6, [16th Cong., Ist Sess; DREAM Act of 2019, S. 874, 116th

Cong., lst Sess.

“1 While the Government has provided no exact number, according to one of the exhibits approximately half of the

DACA population is present in the United States because they entered the country without inspection, and half are

present because they have overstayed a visa. (See Doc. No. 225, Ex. 4, Glenn Kessler, Did Obama Allow a ‘Back

Door’ to Citizenship Through DACA?, Wash. Post, Sept. 7, 2017) (“Robert Warren, a demographer and senior visiting

fellow at the Center for Migration Studies, estimates that about 50 percent of the 1.258 million people eligible for

DACA are visa overstays.”).

present in the United States who has not been admitted” as an “applicant for admission,” id.

§ 1225(a)(1), and further requires all applicants for admission to “be inspected by immigration

officers.” Id. § 1225(a)(3). “[I]f the examining immigration officer determines that an alien seeking

admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for

a proceeding under section 1229a [of Title 8].” Id § 1225(b)(2)(A). In a § 1229a removal

proceeding, the alien has the burden of proof to show that he or she is not removable for one of

two reasons: he or she is “clearly and beyond doubt entitled to be admitted and is not inadmissible

under section 1182” or “by clear and convincing evidence” he or she is “lawfully present in the

United States pursuant to a prior admission.” Jd. § 1229a(c)(2)(A)-(B). If the alien cannot carry

his or her burden of proof under one of these tests, he or she is deemed “removable.” Jd.

§ 1229a(e)(2).

Thus, all DACA applicants and recipients fall into a category for removal regardless of

their mode of entry. The DACA Memorandum prevents immigration officials from enforcing these

provisions of the INA, whether or not the recipient has entered removal proceedings, is “[currently]

in removal proceedings,” or is “subject to a final order of removal regardless of their age.” In other

words, DACA prevents the removal of its recipients, despite Congress having dictated their

eligibility for removal.”

Next, as the Fifth Circuit ruled in Texas J, the INA describes several detailed methods by

which immigrants may acquire lawful presence in the United States. See Texas I, 809 F.3d at 179

“ Section 1182 describes various classifications of “Inadmissible Aliens” who are “ineligible to receive visas and

ineligible to be admitted to the United States.” Jd. § 1182(a).

“3 President Obama, before DACA was implemented, agreed with this underlying premise: “If Congress has laws on

the books that says that people who are here who are not documented have to be deported, then I can exercise some

flexibility in terms of where we deploy our resources. .. . But there’s a limit to the discretion that I can show because

Iam obliged to execute the law. That’s what the Executive Branch means. I can’t just make the laws up by myself. So

the most important thing that we can do is focus on changing the underlying laws.” Transcript of President Barack

Obama with Univision, L.A. Times, Oct. 25, 2010.

(“Federal governance of immigration and alien status is extensive and complex.”) (citing Arizona,

567 U.S. at 395). The INA specifies several particular groups of aliens for whom lawful presence

is available** and groups of aliens eligible for “discretionary relief allowing [aliens in deportation

proceedings] to remain in the country.”*° Congress has also passed a multitude of statutes

allocating lawful presence to persons who have served in the armed forces*° and persons seeking

or possessing a higher education.*” The Texas J court recognized that this statutory scheme did not

encompass the groups of persons described by the DAPA and Expanded DACA programs at issue

in that case. See Texas I, 809 F.3d at 179 (“Entirely absent from those specific classes is the group

of 4.3 million illegal aliens who would be eligible for lawful presence under DAPA were it not

enjoined.”). Similarly, the statutory scheme does not encompass the population given lawful

presence by DACA.

Where Congress has explicitly described a statutory scheme with the detail present in these

circumstances, an agency may not supplant the scheme with its own methods. See Hearth, Patio

44 See, eg, 8 U.S.C. §§ 1101(a)(20), 1255 (lawful-permanent-resident (“LPR”) status); 1101(a)(15), 1201(a)(1)

(nonimmigrant status); 1101(a)(42), 1157-59, 1231(b)(3) (refugee and asylum status); 1182(d)(S) (humanitarian

parole); 1254a (temporary protected status).

4 Arizona, 567 U.S. at 396 (citing 8 U.S.C. §§ 1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary

departure)); see also 8 U.S.C. § 1227(d) (administrative stays of removal for T-and U-visa applicants (victims of

human trafficking, or of various serious crimes, who assist law enforcement)).

46 See, e.g., 8 U.S.C. §§ 1438(a) (persons who lost United States citizenship because they served in the armed forces

of a United States ally during World War ID; 1439 (noncitizens who have served honorably in the United States armed

forces for at least one year); 1440 (noncitizens who served in the United States armed forces during World War I,

World War II, Korean hostilities, Vietnam hostilities, or other periods of military hostilities); 1440-1 (posthumous

conferral of United Sates citizenship to noncitizens who died as a result of injuries incurred while serving in periods

of hostilities).

47 See, e.g., 8 U.S.C. §§ 1101(a)(15)(F) (the “F-1” visa for full-time students) (the “F-2 visa” for dependents of full-

time students) (the “F-3” visa for students from Canada and Mexico who commute across the border); 1101(a)(15)(H)

(the “H-1B” visa for skilled workers) (the “H-4” visa for dependents of “H-1B” visa holders); 1101(a)(15)(D (the “J-

1” visa for students, scholars, trainees, teachers, professors, research assistants, specialists, or leaders in a field of

specialized knowledge or skill participating in cultural exchange); 1101(a)(15)(L) (the “L-1A” visa for foreign

employees of a corporation, executives or managers) (the “L-1B” visa for foreign employees of a corporation with

specialized knowledge of the company’s techniques or methodologies); 1101(a)(15)(M) (the “M-1” visa for vocational

or technical students) (the “M-2 visa” for dependents of vocational or technical students).

& Barbecue Ass’n v. U.S. Dep’t of Energy, 706 F.3d 499, 507 (D.C. Cir. 2013) (where Congress

“employed specific statutory mechanisms” to delineate agency authority, the agency cannot

“simply cho[o]se to ignore” the statutory scheme); Cent. United Life Ins. Co. v. Burwell, 827 F.3d

70, 73 (D.C. Cir. 2016) (“Disagreeing with Congress’s expressly codified policy choices isn’t a

luxury administrative agencies enjoy.”). In this instance, Congress’s careful plan for the allotment

of lawful presence forecloses the possibility that DHS may designate up to 1.5 million people to

be lawfully present.

Ultimately, “the INA expressly and carefully provides legal designations allowing defined

classes of aliens to be lawfully present,” and Congress has not granted the Executive Branch free

rein to grant lawful presence to persons outside the ambit of the statutory scheme. Texas I, 809

F.3d at 179.

c. The INA provides a comprehensive statutory scheme for the allocation

of work authorization.

The INA’s statutory scheme intricately describes groups to whom Congress wishes to grant

work authorization, delineating precise categories of aliens for whom work authorization is

available. Where Congress has expressed its intent to provide certain groups of aliens with work

authorization, it has promulgated specific laws requiring DHS to do so.*® Further, Congress has

specified particular instances where DHS “may” issue work authorization, specifically delegating

to the agency areas in which it may exercise discretion.” Neither of these parts of Congress’s

8 See, e.g., 8 U.S.C. §§ 1101()(2) (human-trafficking victims in lawful-temporary-resident status pursuant to a T-

visa); 1158(c)(1)(B), (2) (asylum applicants and grantees); 1160(a)(4) (certain agricultural workers in lawful-

temporary resident status); 1184(c)(2)(E), (e)(6) (spouses of L- and E-visa holders), (p)(3)(B) (certain victims of

criminal activity in lawful-temporary-resident status pursuant to a U-visa); 1254a(a)(1)\(B) (temporary-protected status

holders); 1255a(b)(3)(B) (temporary-resident status holders).

” See, eg., 8 U.S.C. §§ 1158(d)(2) (asylum applicants); 1105a(a) (certain battered spouses of nonimmigrants);

1154(a)(1)(K) (grantees of self-petitions under the Violence Against Women Act); 1160(d)(3)(A) (agricultural worker

preliminary applicants); 1184(p)(6) (deferred-action U-visa applicants).

statutory scheme include the DACA recipients. Congress has also specified that aliens not lawfully

admitted for permanent residency with pending removal proceedings are ineligible for work

authorization. 8 U.S.C. § 1226(a)(3). DACA specifically applies to individuals in removal

proceedings and contradicts Congress’s intent, as it enables those aliens to apply for work

authorization.

DACA’s work authorization also undermines the Immigration Reform and Control Act

(IRCA). The Supreme Court has “often recognized that a ‘primary purpose in restricting

immigration is to preserve jobs for American workers.’” Nat’! Cir. for Immigrants’ Rights, 502

USS. at 194 (quoting Sure-Tan, Inc. v. NERB, 467 U.S. 883, 889 (1984)). In 1986, “Congress

enacted IRCA as a comprehensive framework for ‘combating the employment of illegal aliens.’”

Arizona, 567 U.S. at 404 (quoting Hoffman Plastic Compounds, Inc. v. NERB, 535 U.S. 137, 147

(2002)). Through criminal and civil penalties for employers and civil penalties for employees,

IRCA made it “illegal for employers to knowingly hire, recruit, refer, or continue to employ

unauthorized workers.” Jd. (citing 8 U.S.C. §§ 1324a(a)(1)(A), (a)(2)). Thus, it is illegal for

employers to hire illegal aliens, including those eligible for DACA, but for the fact DACA allows

its recipients to obtain work authorization.

DACA actually goes further to undermine Congress’s intent to protect American workers

as it requires applicants to apply for work authorization. (See Doc. No. 9, Ex. 20 at 23) (‘In

addition to the [DACA renewal and application form], all individuals must also submit a Form I-

795, Application for Employment Authorization ....”). Requiring up to 1.5 million aliens to apply

for work authorization contradicts the clear congressional purpose of preserving employment

opportunities for those persons legally residing in the United States. The DACA program is

therefore contrary to the immigration statutes and to Congress’s goal of “closely guarding access

to work authorization and preserving jobs for those lawfully in the country.” Texas I, 809 F.3d at

181.°°

One law professor, while noting how compelling the equities are for DACA recipients,

described the tension created by DACA’s grant of employment eligibility as follows:

Similarly, Congress has repeatedly warned that higher-than-specified levels of

immigration could roil the job market, impairing the employment prospects and

wage levels of U.S. citizens and lawful permanent residents. That deep-seated

legislative anxiety impelled the 1986 Congress to provide for sanctions on

employers hiring undocumented workers in a compromise that also provided

immigrants with a major victory by legalizing a substantial number of

undocumented persons living in the United States. In addition, Congress has

restricted the ability of noncitizens without a legal status to obtain relief such as a

reprieve from removal and a work permit. Sweeping awards of deferred action risk

eroding Congress’s limits.*!

The author also noted that, at the time IRCA was passed, the Justice Department assured Congress

that deferred action would be used sparingly:

Seeking to reassure Congress and other stakeholders that grants of deferred action,

typically including a work permit, outside IRCA would be small in number, the

Justice Department stated in 1987 that the “number of aliens authorized to accept

employment [pursuant to deferred action outside IRCA] is quite small and the

impact on the labor market is minimal.” See Classes of Aliens Eligible, 52 Fed.

Reg. 46,092 (Dec. 4, 1987) (codified at 8 C.F.R. § 109) (emphasis added). Indeed,

officials claimed that the number of work authorizations was so smail that it was

“previously considered to be not worth recording.” Id. at 46,093 (emphasis

added).>?

Adding approximately 1.5 million workers is not “quite small,” and, according to the parties and

°° Defendant-Intervenors argue it is not the DACA Memorandum, but a separate federal regulation that permits DACA

recipients to obtain work authorization. See 8 C.F.R. § 274a.12(c)(14) (“An alien who has been granted deferred

action, an act of administrative convenience to the government which gives some cases lower priority, [may be able

to obtain work authorization upon application] if the alien establishes an economic necessity for employment.”). In

Texas I, the Fifth Circuit specifically dispatched this argument by finding that such a reading—to allow the agency to

issue employment authorization to any class of illegal aliens whom DHS declines to remove—would be outside the

powers authorized by the INA. 809 F.3d at 168-69.

51 Peter Margulies, Rescinding Inclusion in the Administrative State: Adjudicating DACA, the Census, and the

Military’s Transgender Policy, 71 Fla. L. R. 1429, 1471-72 (2019) (footnotes omitted).

% Td. at 1471 0.227.

amici curiae, their impact on the labor market is significant. Finally, adding 1.5 million new

workers is certainly worth recording.»

DACA’s impact on employment issues is certainly magnified by the ruling in Rodriguez,

465 F. Supp. 3d at 1301. As noted above, the court in that case held that Procter & Gamble

(“P & G”) could not limit its applicant pool for its internship program to citizens, nationals, LPRs,

or other aliens admitted for residency. In other words, the court ruled P & G could be held liable

for restricting its application pool to those with legal status—a status that DACA recipients do not

share. The court held that P & G’s restriction against accepting applications by DACA recipients

violated § 1981 of the Civil Rights Act. 42 U.S.C. § 1981.

Thus, under the Rodriguez holding, an employer who might otherwise prefer to hire only

those with legal status in the United States, in line with Congress’s dictates, cannot do so. As a

result, not only is it sometimes cheaper to hire DACA recipients due to their exclusion from being

the source of ACA penalties, but it now may be illegal not to consider hiring DACA recipients.

Thus, DACA is not only a way around Congress’s provisions concerning residency and

employment, it has apparently created a legally enforceable status that is directly contrary to law

as designed by Congress.

d. For some, DACA defies the statutory scheme by awarding advance

parole and a clearer path to legal status.

The Plaintiff States also complain that DACA contradicts the statutory scheme by allowing

recipients access to “advance parole.” Advance parole is a privilege that allows aliens to leave the

*3 The DACA Memorandum and the entire underlying record as produced by the Government gave no consideration

to DACA’s possible effects on American workers despite the fact that, prior to the creation of DACA, the Chair of

the House Judiciary Committee wrote to the Secretary showing concern on this very issue:

Ultimately, these memos may allow millions of illegal immigrants to remain in the United States in

violation of existing law and regulations and compete with unemployed American and legal

immigrant workers for scarce jobs. In the current environment, this effect is unconscionable.

(Doc. No. 472-3 at 156, Letter from Chairman of House Judiciary Committee to Secretary Napolitano, Sept. 12,2011).

United States and then lawfully re-enter the country without being turned away at a port of entry.

(Doc. No. 487, Ex. 5, Dep’t of Homeland Sec., DACA Nat’l Standard Operation Procedures (SOP)

135 (2013)) (citing 8 U.S.C. § 1182(d)(5)(A)). It is designed to be awarded only “on a case-by-

case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A).

DACA, however, made the entire DACA population eligible to apply for advance parole, and

expanded these two enumerated categories beyond their intended scope. Due to their DACA status,

recipients are allowed to receive advance parole and then to travel outside the United States for a

host of reasons, including work-related conferences, semester-abroad programs, and job

interviews.°* Congress did not intend advance “parole authority to create an ad hoc immigration

policy or to supplement current immigration categories without Congressional approval.” (Doc.

No. 472-3 at 166-67).

In addition to DHS’s generous interpretation of the phrases “urgent humanitarian reasons”

and “significant public benefit” for DACA recipients, allocating advance parole to some DACA

recipients subverts statutory law in two other ways: 1) it lets certain individuals adjust illegal status

to lawful presence and then possibly to legal status by curing the “inadmissibility bar,” and 2) it

lets recipients avoid the statutory “unlawful presence bars.” (See Doc. No. 219, Ex. 3, Lena Graber

& Jose Magafia-Salgado, DACA, Advance Parole, and Family Petitions, Immigr. Legal Res. Ctr.

(June 2016)).°°

54 See Doc. No. 487, Ex. 5 (“Generally, USCIS will only grant advance parole if the applicant’s travel abroad will be in

furtherance of: humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a

family member, or visiting an ailing relative; educational purposes, such as semester-abroad programs and academic

research, or; employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with

clients overseas. Travel for vacation is not a valid basis for advance parole.”). The Defendant-Intervenors have referred

the Court to a New DACA memorandum, which states: “USCIS has not granted advance parole based on the standards

associated with DACA since September 5, 2017.” (Doc. No. 504-2, Ex. 2 at 33 n.7). The Court has not been informed of

the standards USCIS is currently using. Regardless of what standards are being used, advance parole eligibility under

DACA contradicts Congress’s legislative scheme, at least for those recipients who originally entered the country illegally.

This ten-page document was co-authored by one of the individual Defendant-Intervenors in this case.

. First, DACA recipients’ entitlement to apply for advance parole contradicts the statutory

scheme by curing the bar for unlawful entry. (See id.). Ordinarily, an alien present in the United

States may apply for an adjustment of status to change his or her legal immigration classification

to that of an LPR (this is also known as receiving a “Green Card”). (See id.). There are several

possible ways to do this, including an employment qualification or a specified family relationship

(like marriage to a United States citizen), but applicants will be deemed inadmissible—that is, they

will be unable to adjust their status—if they are present “without being admitted or paroled into

the United States.” Ud.) (citing 8 U.S.C. §§ 1182(a)(6)(A)(@), 1255). Generally, immigrants who

first entered the United States without inspection are ineligible to adjust their status because they

were not “admitted” legally when they first entered the country. (/d.) Approximately one half of

the DACA population is in this category.*°

DACA, through its advance parole eligibility, allows this segment to circumvent the

“inadmissibility bar’— the requirement that aliens be “admitted or paroled into the United States”

to adjust status. (See id.); (Doc. No. 487, Ex. 5) (describing procedures for processing advance

parole applications for DACA recipients). Once a DACA recipient leaves the country and returns

to the United States through advance parole, that individual, who would otherwise be subject to

the inadmissibility bar, can now adjust status because he or she has been paroled legally back into

the United States. (See Doc. No. 219, Ex. 23).°7 Thus, DACA’s grant of advance parole eligibility

56 See Kessler, supra note 41 (stating approximately half of DACA recipients overstayed a visa and half entered the

country illegally).

57 See also A. Molina, Immigration: Undocumented College Students Find a Way to Study Abroad, Return Legally,

Press-Enterprise, Riverside California (Feb. 14, 2016); (Doc. No. 289, Ex. 299, Ben Harrington, Cong. Res. Serv., An

Overview of Discretionary Reprieves from Removal: Deferred Action, DACA, TPS, and Others (2018)) (“Advance

parole, another exercise of the executive parole authority directed toward physically present aliens, allows aliens to

depart the United States with parole already approved, so as to facilitate their re-entry. Upon being paroled back into

the country, such aliens receive the same advantages as recipients of parole in place and other parolees (e.g., eligibility

for work authorization and a clearer path to adjustment of status).”).

allows its recipients to directly circumvent the INA’s statutory requirements.*®

Through 2015, over 20,000 DACA recipients had been approved for advance parole, and

of those, approximately 3,000 were subsequently granted an adjustment of status. (Doc. No. 224-

2). Although this number may seem small compared to the possible DACA population of 1.5

million people, it is not insignificant. Despite the DACA Memorandum stating that it “confers no

substantive right, immigration status or pathway to citizenship,” DACA does, in fact, enable

certain individuals to change their inadmissible status (due to unlawful entry) into an

admitted/paroled category and in some cases then provides a clearer pathway to citizenship. This

process is another way DACA directly undermines the deterrent effect intended by Congress.

Second, advance parole for DACA recipients subverts the “unlawful presence bars”

instituted by statute. See 8 U.S.C. § 1182(a)(9)(B)(i). Under these provisions, an alien who entered

the United States illegally or remained in the United States longer than allowed is unable to return

to the United States upon leaving. Jd. Individuals who have left the country after having been

illegally present for more than 180 days must remain out of the United States for three years, and

those illegally present for more than a year must remain out for ten years before they may again

become admissible to the United States. Jd. All of the DACA recipients have been in the country

illegally for more than one year, so the ten-year bar would apply. DACA’s grant of advance parole

eligibility, however, allows DACA recipients to travel abroad and then return to the United States

without complying with either the three- or ten-year bar. Through DACA, all of these recipients

effectively avoid the dictates of Congress while thousands of other individuals who have complied

58 This “loophole” is not needed by many DACA recipients who overstayed their visas, as they were “admitted” when

they first entered the country. Also, all LPR applicants must still meet other requirements, such as having a family

relationship. Nevertheless, for a number of DACA recipients, the program’s grant of eligibility for advance parole

allows them to adjust status where they otherwise would be barred by law.

with the law are waiting for their bar period to run. Thus, DACA is contrary to the statutory scheme

devised by Congress. .

e. DACA fails Chevron’s first step.

In sum, DACA cannot withstand analysis under Chevron’s first step because Congress has

directly addressed the precise issue at hand. It has not delegated the authority to adopt DACA to

DHS. See Chevron, 467 U.S. at 842-43; see also Texas I, 809 F.3d at 179-81. Congress’s clear

articulation of laws for removal, lawful presence, and work authorization illustrates a manifest

intent to reserve for itself the authority to determine the framework of the nation’s immigration

system. Against the backdrop of Congress’s “careful plan,” DHS may not award lawful presence

and work authorization to approximately 1.5 million aliens for whom Congress has made no

provision. Texas I, 809 F.3d at 186. DACA is “in excess of statutory jurisdiction” and “short of

statutory right,” and therefore violates the APA. 5 U.S.C. § 706(2). An agency’s role is to

administer the laws Congress passes, not to enact its own new legislative policy:

However attractive it might be as a matter of policy, the DACA program appears

to violate the proper respect for congressional primacy in lawmaking that should

guide executive action, even when substantial exercises of prosecutorial discretion .

are inevitable. To the extent Congress has adopted overly broad and unduly harsh

immigration laws, Congress should remain accountable for its choice. The

executive branch should not presume the authority to let Congress off the hook.°?

2. Even if Congress had not spoken directly on the issue, DHS’s interpretation is

not a reasonable one.

This Court’s ruling at the first step of Chevron alone provides a sufficient ground to settle

the question presented, but the Court will proceed to analyze the DACA program under the second

step of Chevron. See Texas I, 809 F.3d at 183 n.191 (Now, even assuming the government had

survived Chevron Step One, we would strike down DAPA as manifestly contrary to the INA under

°° Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 761 (2014).

Step Two.”) (citing Chevron, 467 U.S. at 844; Mayo Found., 562 U.S. at 53).

At the second Chevron step, if the relevant statute is silent or ambiguous, the court asks

“whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467

USS. at 843. The court should uphold an agency’s rule if it is “a reasonable interpretation of the

enacted text,” but should overturn it if it is “arbitrary or capricious in substance, or manifestly

contrary to the statute.” Mayo Found., 562 U.S. at 58, 53 (quotations omitted). Stated differently,

the Court must ask “whether Congress would have intended, and expected, courts to treat [the

regulation] as within, or outside, its delegation to the agency of ‘gap-filling’ authority.” Jd. at 58

(quoting Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 173 (2007)).

DACA is not a reasonable interpretation of any statute and is “manifestly contrary” to the

statutory scheme promulgated by Congress. Texas J, 809 F.3d at 186. For the same reasons

discussed in this Court’s analysis under the first step of Chevron, the program would not pass the

second step: DACA is an unreasonable interpretation of the law because it usurps the power of

Congress to dictate a national scheme of immigration laws and is contrary to the INA. DACA

would grant lawful presence and work authorization to over a million people for whom Congress

has made no provision and has consistently refused to make such a provision. See King v. Burwell;

576 U.S. 473, 474 (2015) (“[H]ad Congress wished to assign [a question of ‘deep economic and

political significance’] to an agency, it surely would have done so expressly.”).

DHS’s interpretation of its authority is especially unreasonable given the Supreme Court’s

precedent finding Congress intended to completely preempt further regulation in the area of

immigration. The Supreme Court has found that state laws regulating the employment of aliens

are preempted when they stand “as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress,” because they would interfere with “the careful balance

struck by Congress with respect to unauthorized employment of aliens.” Arizona, 567 U.S. at 406

(quotations omitted). Like those state statutes, DACA not only interferes with the employer side

of this balancing act, which makes it illegal for employers to hire those who are here illegally, but

it interferes with the labor side as well.

In Arizona, the Supreme Court recounted the background as to why Congress did not

impose criminal penalties on aliens working illegally. The Court quoted the report of a

Commission set up by Congress that concluded such penalties would be “unnecessary and

unworkable.” Jd. at 405.© They were unnecessary, at least in part, because the aliens already faced

the loss of their ability to adjust status, 8 U.S.C. §§ 1255(c)(2), (8), and potential removal from the

country. 8 U.S.C. § 1227(a)(1)(C)@). DACA, of course, removes these consequences.

All of these measures enacted by Congress to protect American jobs for those legally in

the country are undermined by DACA. Just as states cannot set up obstacles to the purposes and

objectives of Congressional legislation, neither can an executive agency.

An exchange at the Supreme Court during Texas J further illustrates why DACA fails the

second step of Chevron as an unreasonable interpretation of a silent or ambiguous statute. Chief

Justice Roberts questioned whether there would be any limits to grants of deferred action if the

Supreme Court were to adopt the Government’s position:

Chief Justice Roberts: Under your argument, could the President grant deferred

removal to every unlawful — unlawfully present alien in the United States right

now?

General Verrilli: Definitely not.

Chief Justice Roberts: Why not?

The fact that Congress went so far as to set up a Commission to study immigration and employment policies and

make recommendations should not be discounted. It demonstrates how seriously Congress took its role in formulating

the resulting legislation.

General Verrilli: Here are the limits. Because the deferred action has - over time,

there have been built up a set of administrative limits, which I'll talk about, some

administrative policy limits, and then there’s substantive statutory limits. The

administrative policy limits are these: Deferred action has always been for the

lowest priorities for removal. And everybody agrees — □

Chief Justice Roberts: I’m sorry. By “administrative,” you mean by the Executive

branch?

General Verrilli: Correct. Yes. But —

Chief Justice Roberts: So that somehow binds the Executive branch now, the fact □

that — I mean, this hasn’t been approved by the Executive branch prior to this point,

either, and yet it’s a fairly significant departure.

Transcript of Oral Argument at 19-20, Texas I, 136 8S. Ct. 2271 (No. 15-674).

Counsel for the Government could not adequately answer the Chief Justice’s question. The

probing inquiry by the Chief Justice was not the first time this issue had been raised; this Court

and the Fifth Circuit had asked the same question as well. The Solicitor General’s response was,

in effect, “the Executive Branch just would never do that.” This response fell flat, since the

Executive Branch was simultaneously attempting to give lawful presence to a combined DACA,

Expanded DACA, and DAPA population of approximately 5.8 million individuals, over half of

the country’s 11.3 million estimated illegal aliens.°! Nevertheless, using the Government’s logic,

echoed by the Defendant-Intervenors in this case, the Executive Branch could theoretically still

give every illegal alien currently present in the United States lawful status, if DHS were to do it in

smaller numbers, group-by-group. This cannot be a correct interpretation of the law.

The Court “must be guided to a degree by common sense as to the manner in which

Congress is likely to delegate a policy decision of such economic and political magnitude to an

administrative agency.” Texas I, 809 F.3d at 181 (quoting FDA v. Brown & Williamson Tobacco

61 Obviously, the ambiguous limitations suggested by the Government, even if they do exist, would not bind any

subsequent administration. One need only look at the transitions from the Obama to Trump to Biden administrations

to see how rapidly the Executive Branch can alter its position on immigration matters.

Corp., 529 U.S. 120, 133 (2000)). Common sense instructs that the creation of this program, as

was true for the establishment of DAPA and Expanded DACA, is too important to be delegated to

an administrative agency. Consequently, DHS’s interpretation of its authority under the INA is

faulty. In the end, the Fifth Circuit’s reasoning in Texas J controls this case; it is binding case law

for this Court, and the result here is inescapable.

3. DACA is not supported by historical precedent.

Defendant-Intervenors also argue historical precedent provides a source of authority for

the institution of DACA. (See Doc. No. 502 at 44-45). They cite past examples in which the

Executive Branch has granted deferred action for particular groups of aliens and argue that those

instances provide precedent for the program at issue here. This argument was made in Texas I as

well.

In distinguishing previous deferred action programs from DAPA, in Texas J the Fifth

Circuit noted that DAPA was not a bridge from one legal status to another. 809 F.3d at 184.

Likewise, DACA is not a bridge from one legal status to another. By definition, the DACA

recipients did not have a legal status to begin with and do not have legal status now. They have

only lawful presence.

Next, the Fifth Circuit recognized that those programs, unlike DAPA, were “[mostly] done

ona country-specific basis, usually in response to war, civil unrest, or natural disasters.” Jd. at 184.

The same shortfalls present in Texas I are also present here, and DACA fares no better. It is not.

country- or area-specific and was not implemented in response to any natural disaster or other

similar crisis. Despite Defendant-Intervenors’ arguments, DACA is most similar to DAPA and

Expanded DACA. Like those programs, the DACA program is not authorized by historical

precedent.

Defendant-Intervenors highlight a particular example of deferred action—the “Family

Fairness” policies of 1987 and 1990—as arguably analogous to the DACA program. These policies

are attractive candidates for comparison because of their size: they provided deferred action for

approximately 1.5 million individuals. (Doc. No. 502 at 44). The Fifth Circuit, however, already

specifically rejected this analogy as well. Texas J, 809 F.3d at 185. Family Fairness was “interstitial

to a statutory legalization scheme,” because its purpose was to delay prosecution until Congress

could enact legislation providing the same benefits, which it did when it passed the Immigration

Act of 1990. Jd. The Fifth Circuit concluded that Family Fairness was unlike DAPA because

Congress had consistently declined to enact a DREAM Act, and DAPA was therefore not

interstitial to any piece of legislation. Jd. (“DAPA is far from interstitial: Congress has repeatedly

declined to enact the Development, Relief, and Education for Alien Minors Act (DREAM Act’),

features of which closely resemble DACA and DAPA.”).

In fact, the President essentially admitted that DACA was not interstitial to legislation:

Now, both parties wrote this legislation. And a year and a half ago, Democrats

passed the DREAM Act in the House, but Republicans walked away from it. It got

55 votes in the Senate, but Republicans blocked it. The bill hasn’t really changed.

The need hasn’t changed. It’s still the right thing to do. The only thing that has

changed, apparently, was the politics.

kok OF

In the absence of any immigration action from Congress to fix our broken

immigration system, what we’ve tried to do is focus our immigration enforcement

resources in the right places.

Press Release, Office of the White House Press Secretary, Remarks by the President on.

Immigration (June 15, 2012). Thus, the President acknowledged that DACA was not interstitial to

Congressional action. To the contrary, it was a program that the Executive Branch created because

Congress refused to pass legislation.

Thus, the conclusion reached in Texas J applies here because DACA was not and is not

interstitial to an act of Congress. In fact, just the opposite situation exists. Although the Defendant-

Intervenors argue that DACA is a means of waiting for congressional action, given the nine-year

history of failed legislation in Congress, it is an inescapable conclusion that DACA is not

interstitial to any congressional action. Although Congress may someday enact such a DREAM

Act, until it does, its continued failure to pass bills coextensive with the DACA population evinces

a rejection of this policy.

4, The differences between DAPA and DACA do not compel a different result.

Defendant-Intervenors argue “the decision in Texas J does not control resolution of this

case.” (Doc. No. 502 at 46). They argue three major points in support of this contention: 1) the

substantive APA analysis in Texas J focused exclusively on DAPA and not Expanded DACA or □

DACA; 2) while DAPA would have provided relief to a population already covered by specific

statutory provisions, DACA has no such analogous statutes; and 3) far fewer people are eligible

for DACA than were eligible for DAPA.

Initially, the Court agrees with the Defendant-Intervenors’ contention that the substantive

APA analysis in Texas I focused almost exclusively on DAPA, but the Fifth Circuit’s judgment

was not so limited; it applied to Expanded DACA as well.

Next, to

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