# State of Texas v. United States of America

> District Court, S.D. Texas · July 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10674636

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** July 16, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10674636

## How later opinions describe it (automated extraction)

- affirming district court on procedural APA claim, but also analyzing substantive claim even though district court had not

## Opinion text

□ 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 sch

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10674636. Public record. Not legal advice.