State of Texas v. USA

Case: 15-40238 Document: 00513264640 Page: 1 Date Filed: 11/09/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

__________ Fifth Circuit

FILED

No. 15-40238 November 9, 2015

__________ Lyle W. Cayce

Clerk

STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA;

STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS;

STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA;

STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA;

STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN;

PAUL R. LEPAGE, Governor, State of Maine;

PATRICK L. MCCRORY, Governor, State of North Carolina;

C. L. “BUTCH” OTTER, Governor, State of Idaho;

PHIL BRYANT, Governor, State of Mississippi;

STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA;

STATE OF FLORIDA; STATE OF ARIZONA; STATE OF ARKANSAS;

ATTORNEY GENERAL BILL SCHUETTE; STATE OF NEVADA;

STATE OF TENNESSEE,

Plaintiffs−Appellees,

versus

UNITED STATES OF AMERICA;

JEH CHARLES JOHNSON, Secretary, Department of Homeland Security;

R. GIL KERLIKOWSKE,

Commissioner of U.S. Customs and Border Protection;

RONALD D. VITIELLO,

Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection;

SARAH R. SALDANA,

Director of U.S. Immigration and Customs Enforcement;

LEON RODRIGUEZ, Director of U.S. Citizenship and Immigration Services,

Defendants−Appellants.

_______________________

Appeal from the United States District Court

for the Southern District of Texas

_______________________

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No. 15-40238

Before KING, SMITH, and ELROD, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The United States1 appeals a preliminary injunction, pending trial, for-

bidding implementation of the Deferred Action for Parents of Americans and

Lawful Permanent Residents program (“DAPA”). Twenty-six states (the

“states”2) challenged DAPA under the Administrative Procedure Act (“APA”)

and the Take Care Clause of the Constitution;3 in an impressive and thorough

Memorandum Opinion and Order issued February 16, 2015, the district court

enjoined the program on the ground that the states are likely to succeed on

their claim that DAPA is subject to the APA’s procedural requirements. Texas

v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015).4

The government appealed and moved to stay the injunction pending

resolution of the merits. After extensive briefing and more than two hours of

oral argument, a motions panel denied the stay after determining that the

appeal was unlikely to succeed on its merits. Texas v. United States, 787 F.3d

733, 743 (5th Cir. 2015). Reviewing the district court’s order for abuse of dis-

cretion, we affirm the preliminary injunction because the states have standing;

they have established a substantial likelihood of success on the merits of their

procedural and substantive APA claims; and they have satisfied the other ele-

ments required for an injunction.5

This opinion refers to the defendants collectively as “the United States” or “the gov-

1

ernment” unless otherwise indicated.

2We refer to the plaintiffs collectively as “the states,” but as appropriate we refer only

to Texas because it is the only state that the district court determined to have standing.

3 We find it unnecessary, at this early stage of the proceedings, to address or decide

the challenge based on the Take Care Clause.

4 We cite the district court’s opinion as “Dist. Ct. Op., 86 F. Supp. 3d at ___.”

5 Our dedicated colleague has penned a careful dissent, with which we largely but

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I.

A.

In June 2012, the Department of Homeland Security (“DHS”) imple-

mented the Deferred Action for Childhood Arrivals program (“DACA”).6 In the

DACA Memo to agency heads, the DHS Secretary “set[] forth how, in the exer-

cise of . . . prosecutorial discretion, [DHS] should enforce the Nation’s immi-

gration laws against certain young people” and listed five “criteria [that]

should be satisfied before an individual is considered for an exercise of prose-

cutorial discretion.”7 The Secretary further instructed that “[n]o individual

should receive deferred action . . . unless they [sic] first pass a background

check and requests for relief . . . are to be decided on a case by case basis.” 8

Although stating that “[f]or individuals who are granted deferred action . . . ,

[U.S. Citizenship and Immigration Services (“USCIS”)] shall accept applica-

tions to determine whether these individuals qualify for work authorization,”

the DACA Memo purported to “confer[] no substantive right, immigration

status or pathway to citizenship.”9 At least 1.2 million persons qualify for

DACA, and approximately 636,000 applications were approved through 2014.

respectfully disagree. It is well-researched, however, and bears a careful read.

6 Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David Agui-

lar, Acting Comm’r, U.S. Customs and Border Prot., et al. 1 (June 15, 2012) (the “DACA

Memo”), http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-

individuals-who-came-to-us-as-children.pdf.

7 Id. (stating that an individual may be considered if he “[1] came to the United States

under the age of sixteen; [2] has continuously resided in the United States for a[t] least five

years preceding [June 15, 2012] and is present in the United States on [June 15]; [3] is cur-

rently in school, has graduated from high school, has obtained a general education develop-

ment certificate, or is an honorably discharged veteran of the [military]; [4] 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 [5] is not above

the age of thirty”).

8 Id. at 2.

9 Id. at 3.

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Dist. Ct. Op., 86 F. Supp. 3d at 609.

In November 2014, by what is termed the “DAPA Memo,” DHS expanded

DACA by making millions more persons eligible for the program10 and extend-

ing “[t]he period for which DACA and the accompanying employment authori-

zation is granted . . . to three-year increments, rather than the current two-

year increments.”11 The Secretary also “direct[ed] USCIS to establish a pro-

cess, similar to DACA,” known as DAPA, which applies to “individuals who . .

. have, [as of November 20, 2014], a son or daughter who is a U.S. citizen or

lawful permanent resident” and meet five additional criteria.12 The Secretary

stated that, although “[d]eferred action does not confer any form of legal status

in this country, much less citizenship[,] it [does] mean[] that, for a specified

period of time, an individual is permitted to be lawfully present in the United

States.”13 Of the approximately 11.3 million illegal aliens14 in the United

10Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Leon Rodriguez,

Dir., USCIS, et al. 3–4 (Nov. 20, 2014),

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.

11 Id. at 3. The district court enjoined implementation of the following three DACA

expansions, and they are included in the term “DAPA” in this opinion: (1) the “age restriction

exclud[ing] those who were older than 31 on the date of the [DACA] announcement . . . will

no longer apply,” id.; (2) “[t]he period for which DACA and the accompanying employment

authorization is granted will be extended to three-year increments, rather than the current

two-year increments,” id.; (3) “the eligibility cut-off date by which a DACA applicant must

have been in the United States should be adjusted from June 15, 2007 to January 1, 2010,”

id. at 4. Dist. Ct. Op., 86 F. Supp. 3d at 677–78 & n.111.

12 DAPA Memo at 4 (directing that individuals may be considered for deferred action

if they “[1] have, on [November 20, 2014], a son or daughter who is a U.S. citizen or lawful

permanent resident; [2] have continuously resided in the United States since before Janu-

ary 1, 2010; [3] are physically present in the United States on [November 20, 2014], and at

the time of making a request for consideration of deferred action with USCIS; [4] have no

lawful status on [November 20, 2014]; [5] are not an enforcement priority as reflected in the

November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented

Immigrants Memorandum; and [6] present no other factors that, in the exercise of discretion,

makes the grant of deferred action inappropriate”).

13 Id. at 2 (emphasis added).

14 Although “[a]s a general rule, it is not a crime for a removable alien to remain

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States, 4.3 million would be eligible for lawful presence pursuant to DAPA.

Dist. Ct. Op., 86 F. Supp. 3d at 612 n.11, 670.

“Lawful presence” is not an enforceable right to remain in the United

States and can be revoked at any time, but that classification nevertheless has

significant legal consequences. Unlawfully present aliens are generally not

eligible to receive federal public benefits, see 8 U.S.C. § 1611, or state and local

public benefits unless the state otherwise provides, see 8 U.S.C. § 1621.15 But

as the government admits in its opening brief, persons granted lawful presence

pursuant to DAPA are no longer “bar[red] . . . from receiving social security

present in the United States,” it is a civil offense. Arizona v. United States, 132 S. Ct. 2492,

2505 (2012); see 8 U.S.C. §§ 1182(a)(9)(B)(i), 1227(a)(1)(A)–(B). This opinion therefore refers

to such persons as “illegal aliens”:

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 a 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. Illegal alien is not an opprobrious epithet: it describes one present

in a country in violation of the immigration laws (hence “illegal”).

BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed. 2011) (cita-

tions omitted). And as the district court pointed out, “it is the term used by the Supreme

Court in its latest pronouncement pertaining to this area of the law.” Dist. Ct. Op.,

86 F. Supp. 3d at 605 n.2 (citing Arizona v. United States, 132 S. Ct. 2492, 2497 (2012)).

“[I]legal alien has going for it both history and well-documented, generally accepted use.”

Matthew Salzwedel, The Lawyer’s Struggle to Write, 16 SCRIBES JOURNAL OF LEGAL WRITING

69, 76 (2015).

15 Those provisions reflect Congress’s concern that “aliens have been applying for and

receiving public benefits from Federal, State, and local governments at increasing rates” and

that “[i]t is a compelling government interest to remove the incentive for illegal immigration

provided by the availability of public benefits.” 8 U.S.C. § 1601. Moreover, the provisions

incorporate a national policy that “aliens within the Nation’s borders not depend on public

resources to meet their needs” and that “[s]elf-sufficiency has been a basic principle of United

States immigration law since this country’s earliest immigration statutes.” Id.

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retirement benefits, social security disability benefits, or health insurance

under Part A of the Medicare program.”16 That follows from § 1611(b)(2)–(3),

which provides that the exclusion of benefits in § 1611(a) “shall not apply to

any benefit[s] payable under title[s] II [and XVIII] of the Social Security Act

. . . to an alien who is lawfully present in the United States as determined by

the Attorney General . . . .” (emphasis added). A lawfully present alien is still

required to satisfy independent qualification criteria before receiving those

benefits, but the grant of lawful presence removes the categorical bar and

thereby makes otherwise ineligible persons eligible to qualify.

“Each person who applies for deferred action pursuant to the [DAPA]

criteria . . . shall also be eligible to apply for work authorization for the [renew-

able three-year] period of deferred action.” DAPA Memo at 4. The United

States concedes that “[a]n alien with work authorization may obtain a Social

Security Number,” “accrue quarters of covered employment,” and “correct wage

records to add prior covered employment within approximately three years of

the year in which the wages were earned or in limited circumstances there-

after.”17 The district court determined―and the government does not

dispute―“that DAPA recipients would be eligible for earned income tax credits

once they received a Social Security number.”18

As for state benefits, although “[a] State may provide that an alien who

is not lawfully present in the United States is eligible for any State or local

public benefit for which such alien would otherwise be ineligible under

16 Brief for Appellants at 48–49 (citing 8 U.S.C. § 1611(b)(2)–(3)).

17 Brief for Appellants at 49 (citation omitted) (citing 42 U.S.C. § 405(c)(1)(B), (4),

(5)(A)–(J); 8 C.F.R. § 1.3(a)(4)(vi); 20 C.F.R. §§ 422.104(a)(2), 422.105(a)).

18 Dist. Ct. Op., 86 F. Supp. 3d at 654 n.64; see also 26 U.S.C. § 32(c)(1)(E), (m) (stating

that eligibility for earned income tax credit is limited to individuals with Social Security

numbers); 20 C.F.R. §§ 422.104(a)(2), 422.107(a), (e)(1).

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subsection (a),” § 1621(d), Texas has chosen not to issue driver’s licenses to

unlawfully present aliens.19 Texas maintains that documentation confirming

lawful presence pursuant to DAPA would allow otherwise ineligible aliens to

become eligible for state-subsidized driver’s licenses. Likewise, certain

unemployment compensation “[b]enefits are not payable based on services

performed by an alien unless the alien . . . was lawfully present for purposes of

performing the services . . . .”20 Texas contends that DAPA recipients would

also become eligible for unemployment insurance.

B.

The states sued to prevent DAPA’s implementation on three grounds.

First, they asserted that DAPA violated the procedural requirements of the

APA as a substantive rule that did not undergo the requisite notice-and-

comment rulemaking. See 5 U.S.C. § 553. Second, the states claimed that

DHS lacked the authority to implement the program even if it followed the

correct rulemaking process, such that DAPA was substantively unlawful under

the APA. See 5 U.S.C. § 706(2)(A)–(C). Third, the states urged that DAPA was

an abrogation of the President’s constitutional duty to “take Care that the

Laws be faithfully executed.” U.S. CONST. art. II, § 3.

The district court held that Texas has standing. It concluded that the

state would suffer a financial injury by having to issue driver’s licenses to

DAPA beneficiaries at a loss. Dist. Ct. Op., 86 F. Supp. 3d at 616–23.

19 TEX. TRANSP. CODE § 521.142(a) (“An applicant who is not a citizen of the United

States must present . . . documentation issued by the appropriate United States agency that

authorizes the applicant to be in the United States before the applicant may be issued a

driver’s license.” (emphasis added)).

20 TEX. LAB. CODE § 207.043(a)(2) (emphasis added); see also 26 U.S.C.

§ 3304(a)(14)(A) (approval of state laws making compensation not payable to aliens unless

they are “lawfully present for purposes of performing such services” (emphasis added)).

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Alternatively, the court relied on a new theory it called “abdication standing”:

Texas had standing because the United States has exclusive authority over

immigration but has refused to act in that area. Id. at 636–43. The court also

considered but ultimately did not accept the notions that Texas could sue as

parens patriae on behalf of citizens facing economic competition from DAPA

beneficiaries and that the state had standing based on the losses it suffers gen-

erally from illegal immigration. Id. at 625–36.

The court temporarily enjoined DAPA’s implementation after determin-

ing that Texas had shown a substantial likelihood of success on its claim that

the program must undergo notice and comment. Id. at 677. Despite full brief-

ing, the court did not rule on the “Plaintiffs’ likelihood of success on their sub-

stantive APA claim or their constitutional claims under the Take Care

Clause/separation of powers doctrine.” Id. On appeal, the United States main-

tains that the states do not have standing or a right to judicial review and,

alternatively, that DAPA is exempt from the notice-and-comment require-

ments. The government also contends that the injunction, including its nation-

wide scope, is improper as a matter of law.

II.

“We review a preliminary injunction for abuse of discretion.”21 A prelim-

inary injunction should issue only if the states, as movants, establish

(1) a substantial likelihood of success on the merits, (2) a substantial

threat of irreparable injury if the injunction is not issued, (3) that the

threatened injury if the injunction is denied outweighs any harm that

will result if the injunction is granted, and (4) that the grant of an

injunction will not disserve the public interest.[22]

“As to each element of the district court’s preliminary-injunction analysis

21 Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013).

22 Id. (quoting Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)).

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. . . findings of fact are subject to a clearly-erroneous standard of review, while

conclusions of law are subject to broad review and will be reversed if

incorrect.”23

III.

The government claims the states lack standing to challenge DAPA. As

we will analyze, however, their standing is plain, based on the driver’s-license

rationale,24 so we need not address the other possible grounds for standing.

As the parties invoking federal jurisdiction, the states have the burden

of establishing standing. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,

1148 (2013). They must show an injury that is “concrete, particularized, and

actual or imminent; fairly traceable to the challenged action; and redressable

by a favorable ruling.” Id. at 1147 (citation omitted). “When a litigant is vested

with a procedural right, that litigant has standing if there is some possibility

that the requested relief will prompt the injury-causing party to reconsider the

decision that allegedly harmed the litigant.” Massachusetts v. EPA, 549 U.S.

497, 518 (2007). “[T]he presence of one party with standing is sufficient to

satisfy Article III’s case-or-controversy requirement.” Rumsfeld v. Forum for

Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006).

23 Id. (quoting Janvey v. Alguire, 647 F.3d 585, 591–92 (5th Cir. 2011)).

We did not reach this issue in Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015). There,

24

we concluded that neither the State of Mississippi nor Immigration and Customs Enforce-

ment (“ICE”) agents and deportation officers had standing to challenge DACA. Id. at 255.

We explicitly determined that Mississippi had waived the theory that Texas now advances:

In a letter brief filed after oral argument, Mississippi put forward three new argu-

ments in support of its standing, [including] (1) the cost of issuing driver’s licenses

to DACA’s beneficiaries . . . . Because Mississippi failed to provide evidentiary sup-

port on these arguments and failed to make these arguments in their opening brief

on appeal and below, they have been waived.

Id. at 252 n.34.

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A.

We begin by considering whether the states are entitled to “special solici-

tude” in our standing inquiry under Massachusetts v. EPA. They are.

The Court held that Massachusetts had standing to contest the EPA’s

decision not to regulate greenhouse-gas emissions from new motor vehicles,

which allegedly contributed to a rise in sea levels and a loss of the state’s

coastal land. Massachusetts v. EPA, 549 U.S. at 526. “It is of considerable

relevance that the party seeking review here is a sovereign State and not . . . a

private individual” because “States are not normal litigants for the purposes of

invoking federal jurisdiction.” Id. at 518.25

The Court identified two additional considerations that entitled Massa-

chusetts “to special solicitude in [the Court’s] standing analysis.” Id. at 520.26

First, the Clean Air Act created a procedural right to challenge the EPA’s

decision:

The parties’ dispute turns on the proper construction of a congres-

sional statute, a question eminently suitable to resolution in federal

court. Congress has moreover authorized this type of challenge to EPA

action. That authorization is of critical importance to the standing

inquiry: “Congress has the power to define injuries and articulate

25 The dissent, throughout, cleverly refers to the states, more than forty times, as the

“plaintiffs,” obscuring the fact that they are sovereign states (while referring to the defen-

dants as the “government”). See Dissent, passim.

26 The dissent attempts to diminish the considerable significance of the “special

solicitude” language, which, to say the least, is inconvenient to the United States in its effort

to defeat standing. The dissent protests that it is “only a single, isolated phrase” that

“appears only once.” Dissent at 9.

The dissent, however, avoids mention of the Court’s explanation that “[i]t is of consid-

erable relevance that the party seeking review here is a sovereign State.” Massachusetts v.

EPA, 549 U.S. at 518. In light of that enlargement on the “special solicitude” phrase, it is

obvious that being a state greatly matters in the standing inquiry, and it makes no difference,

in the words of the dissent, “whether the majority means that states are afforded a relaxed

standing inquiry by virtue of their statehood or whether their statehood, in [and] of itself,

helps confer standing.” Dissent at 9.

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chains of causation that will give rise to a case or controversy where

none existed before.” “In exercising this power, however, Congress

must at the very least identify the injury it seeks to vindicate and relate

the injury to the class of persons entitled to bring suit.” We will not,

therefore, “entertain citizen suits to vindicate the public’s nonconcrete

interest in the proper administration of the laws.”[27]

Second, the EPA’s decision affected Massachusetts’s “quasi-sovereign”

interest in its territory:

When a State enters the Union, it surrenders certain sovereign pre-

rogatives. Massachusetts cannot invade Rhode Island to force reduc-

tions in greenhouse gas emissions, it cannot negotiate an emissions

treaty with China or India, and in some circumstances the exercise of

its police powers to reduce in-state motor-vehicle emissions might well

be pre-empted.

These sovereign prerogatives are now lodged in the Federal Govern-

ment, and Congress has ordered EPA to protect Massachusetts (among

others) by prescribing standards applicable to the “emission of any air

pollutant from any class or classes of new motor vehicle engines, which

in [the Administrator’s] judgment cause, or contribute to, air pollution

which may reasonably be anticipated to endanger public health or

welfare.”[28]

Like Massachusetts, the instant plaintiffs―the states―“are not normal

litigants for the purposes of invoking federal jurisdiction,” id. at 518, and the

same two additional factors are present. First, “[t]he parties’ dispute turns on

the proper construction of a congressional statute,”29 the APA, which author-

izes challenges to “final agency action for which there is no other adequate

remedy in a court.” 5 U.S.C. § 704. Similarly, the disagreement in Massachu-

setts v. EPA concerned the interpretation of the Clean Air Act, which provides

for judicial review of “final action taken[] by the Administrator.”

27 Massachusetts v. EPA, 549 U.S. at 516–17 (citations omitted).

28 Id. at 519–20 (alteration in original) (citation omitted) (quoting 42 U.S.C.

§ 7521(a)(1)).

29 Id. at 516.

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42 U.S.C. § 7607(b)(1). Further, as we will explain, the states are within the

zone of interests of the Immigration and Nationality Act (“INA”);30 they are not

asking us to “entertain citizen suits to vindicate the public’s nonconcrete inter-

est in the proper administration of the laws.”31

In enacting the APA, Congress intended for those “suffering legal wrong

because of agency action” to have judicial recourse,32 and the states fall well

within that definition.33 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.34 Texas, by contrast, challenges DHS’s affirmative deci-

sion 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. See 5 U.S.C. § 704.

As we will show, DAPA would have a major effect on the states’ fiscs,

causing millions of dollars of losses in Texas alone, and at least in Texas, the

30 See infra part IV.

31 Massachusetts v. EPA, 549 U.S. at 516–17 (citation omitted).

32 5 U.S.C. § 702.

33 See New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 694,

696 n.13 (10th Cir. 2009) (holding that New Mexico was entitled to “special solicitude” where

one of its claims was based on the APA); Wyoming ex rel. Crank v. United States, 539 F.3d

1236, 1241–42 (10th Cir. 2008) (holding that Wyoming was entitled to special solicitude

where its only claim was based on the APA).

34 See Heckler v. Chaney, 470 U.S. 821, 831 (observing that “refusals to take enforce-

ment steps” generally are subject to agency discretion, and the “presumption is that judicial

review is not available.”).

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causal chain is especially direct: DAPA would enable beneficiaries to apply for

driver’s licenses, and many would do so, resulting in Texas’s injury.

Second, DAPA affects the states’ “quasi-sovereign” interests by imposing

substantial pressure on them to change their laws, which provide for issuing

driver’s licenses to some aliens and subsidizing those licenses.35 “[S]tates have

a sovereign interest in ‘the power to create and enforce a legal code.’” 36

Pursuant to that interest, states may have standing based on (1) federal asser-

tions of authority to regulate matters they believe they control, 37 (2) federal

preemption of state law,38 and (3) federal interference with the enforcement of

state law,39 at least where “the state statute at issue regulate[s] behavior or

provide[s] for the administration of a state program”40 and does not “simply

purport[] to immunize [state] citizens from federal law.”41 Those intrusions

are analogous to pressure to change state law.42

Moreover, these plaintiff states’ interests are like Massachusetts’s in

35See, e.g., TEX. TRANSP. CODE § 521.142(a) (specifying the requirements for licenses),

.181 (providing for the issuance of licenses), .421(a) (setting the fees for licenses); Dist. Ct.

Op., 86 F. Supp. 3d at 616–17 (finding that Texas subsidizes its licenses).

36 Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982)).

37 See id.

38See, e.g., Crank, 539 F.3d at 1242; Alaska v. U.S. Dep’t of Transp., 868 F.2d 441,

443–44 (D.C. Cir. 1989); Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 232–

33 (6th Cir. 1985); cf. Diamond v. Charles, 476 U.S. 54, 62 (1986) (commenting that “a State

has standing to defend the constitutionality of its statute” but not relying on that principle).

39 See Crank, 539 F.3d at 1241–42; Celebrezze, 766 F.2d at 232–33; cf. Maine v. Taylor,

477 U.S. 131, 137 (1986) (observing in another context that “a State clearly has a legitimate

interest in the continued enforceability of its own statutes”).

40 Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011).

41 Id. at 270.

42 See Crank, 539 F.3d at 1241–42 (reasoning that Wyoming was entitled to “special

solicitude” where its asserted injury was interference with the enforcement of state law).

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ways that implicate the same sovereignty concerns. When the states joined

the union, they surrendered some of their sovereign prerogatives over immi-

gration.43 They cannot establish their own classifications of aliens,44 just as

“Massachusetts cannot invade Rhode Island to force reductions in greenhouse

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

India.”45 The states may not be able to discriminate against subsets of aliens

in their driver’s license programs without running afoul of preemption or the

Equal Protection Clause;46 similarly, “in some circumstances[, Massachu-

setts’s] exercise of its police powers to reduce in-state motor-vehicle emissions

might well be pre-empted.”47 Both these plaintiff states and Massachusetts

now rely on the federal government to protect their interests.48 These parallels

confirm that DAPA affects the states’ “quasi-sovereign” interests.

The significant opinion in Arizona State Legislature v. Arizona Indepen-

dent Redistricting Commission, 135 S. Ct. 2652 (2015), announced shortly

before oral argument herein, reinforces that conclusion. The Court held that

the Arizona Legislature had standing to sue in response to a ballot initiative

that removed its redistricting authority and vested it instead in an indepen-

dent commission. Id. at 2665–66. The Court emphasized that the legislature

was “an institutional plaintiff asserting an institutional injury” to what it

believed was its constitutional power to regulate elections. Id. at 2664. So too

43 See generally Arizona v. United States, 132 S. Ct. at 2498–2501.

44See Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 536 (5th

Cir. 2013) (en banc).

45 Massachusetts v. EPA, 549 U.S. at 519.

46The Ninth Circuit has suggested that, see Ariz. Dream Act Coal. v. Brewer, 757 F.3d

1053, 1061–67 (9th Cir. 2014), but we need not decide the issue.

47 Massachusetts v. EPA, 549 U.S. at 519.

48 See id.

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are the states asserting institutional injury to their lawmaking authority. The

Court also cited Massachusetts v. EPA as opining that the state in that case

was “entitled to special solicitude in our standing analysis.” Id. at 2664–65

n.10 (quoting Massachusetts v. EPA, 549 U.S. at 520).

The United States suggests that three presumptions against standing

apply here. The first is a presumption that a plaintiff lacks standing to chal-

lenge decisions to confer benefits on, or not to prosecute, a third party. But the

cases the government cites for that proposition either did not involve stand-

ing;49 concerned only nonprosecution (as distinguished from both nonprosecu-

tion and the conferral of benefits);50 or merely reaffirmed that a plaintiff must

satisfy the standing requirements.51

The second presumption is against justiciability in the immigration con-

text. None of the cases the government cites involved standing52 and include

only general language about the government’s authority over immigration;

without a specific discussion of standing, they are of limited relevance.53

The third presumption is that “[t]he [Supreme] Court’s standing analy-

sis . . . has been ‘especially rigorous when reaching the merits of the dispute

would force [the Court] to decide whether an action taken by one of the other

49See Chaney, 470 U.S. at 823; United States v. Cox, 342 F.2d 167, 170 (5th Cir. 1965)

(en banc).

50 See Linda R.S. v. Richard D., 410 U.S. 614, 615–16 (1973).

51 See Henderson v. Stalder, 287 F.3d 374, 384 (5th Cir. 2002) (Jones, J., concurring).

52See Arizona v. United States, 132 S. Ct. at 2497; Sure-Tan, Inc. v. NLRB, 467 U.S.

883, 886 (1984); Plyler v. Doe, 457 U.S. 202, 205 (1982); Fiallo v. Bell, 430 U.S. 787, 788

(1977); Mathews v. Diaz, 426 U.S. 67, 69 (1976). In the other case the government cites, “we

assume[d], without deciding, that the plaintiffs have standing.” Texas v. United States,

106 F.3d 661, 664 n.2 (5th Cir. 1997).

53 We address justiciability in part V.B, infra.

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two branches of the Federal Government was unconstitutional.’” 54 We decide

this appeal, however, without resolving the constitutional claim.

Therefore, the states are entitled to “special solicitude” in the standing

inquiry. We stress that our decision is limited to these facts. In particular, the

direct, substantial pressure directed at the states and the fact that they have

surrendered some of their control over immigration to the federal government

mean this case is sufficiently similar to Massachusetts v. EPA, but pressure to

change state law may not be enough―by itself―in other situations.

B.

At least one state—Texas—has satisfied the first standing requirement

by demonstrating that it would incur significant costs in issuing driver’s

licenses to DAPA beneficiaries. Under current state law, licenses issued to

beneficiaries would necessarily be at a financial loss. The Department of Pub-

lic Safety “shall issue” a license to a qualified applicant. TEX. TRANSP.

CODE § 521.181. A noncitizen “must present . . . documentation issued by the

appropriate United States agency that authorizes the applicant to be in the

United States.” Id. § 521.142(a).

If permitted to go into effect, DAPA would enable at least 500,000 illegal

aliens in Texas55 to satisfy that requirement with proof of lawful presence56 or

54Ariz. State Legislature, 135 S. Ct. at 2665 n.12 (final alteration in original) (quoting

Raines v. Byrd, 521 U.S. 811, 819–20 (1997)).

55 See Dist. Ct. Op., 86 F. Supp. 3d at 616.

56 See TEX. DEP’T OF PUB. SAFETY, VERIFYING LAWFUL PRESENCE 4 (2013),

https://www.txdps.state.tx.us/DriverLicense/documents/verifyingLawfulPresence.pdf (list-

ing an acceptable document for a “Person granted deferred action” as “Immigration documen-

tation with an alien number or I-94 number”); DAPA Memo at 2 (“Deferred action . . . means

that, for a specified period of time, an individual is permitted to be lawfully present in the

United States.”).

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employment authorization.57 Texas subsidizes its licenses and would lose a

minimum of $130.89 on each one it issued to a DAPA beneficiary. 58 Even a

modest estimate would put the loss at “several million dollars.” Dist. Ct. Op.,

86 F. Supp. 3d at 617.

Instead of disputing those figures, the United States claims that the

costs would be offset by other benefits to the state. It theorizes that, because

DAPA beneficiaries would be eligible for licenses, they would register their

vehicles, generating income for the state, and buy auto insurance, reducing the

expenses associated with uninsured motorists. The government suggests

employment authorization would lead to increased tax revenue and decreased

reliance on social services.

Even if the government is correct, that does not negate Texas’s injury,

because we consider only those offsetting benefits that are of the same type

and arise from the same transaction as the costs.59 “Once injury is shown, no

57 See TEX. DEP’T OF PUB. SAFETY, supra note 56, at 3 (stating that an “Employment

Authorization Document” is sufficient proof of lawful presence); Dist. Ct. Op., 86 F. Supp. 3d

at 616 n.14 (explaining that “[e]mployment authorization” is “a benefit that will be available

to recipients of DAPA”).

58 See Dist. Ct. Op., 86 F. Supp. 3d at 617. Some of those costs are directly attributable

to the United States. Under the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat.

302 (codified as amended in scattered sections of Titles 8 and 49 U.S.C.), Texas must verify

each applicant’s immigration status through DHS, see 6 C.F.R. § 37.11(g), .13(b)(1), or the

state’s licenses will no longer be valid for a number of purposes, including commercial air

travel without a secondary form of identification, REAL ID Enforcement in Brief, U.S.

DEPARTMENT OF HOMELAND SECURITY (July 27, 2015), http://www.dhs.gov/real-id-

enforcement-brief. Texas pays an average of 75¢ per applicant to comply with that mandate.

See Dist. Ct. Op., 86 F. Supp. 3d at 617.

59 See, e.g., L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 656–59 (9th Cir. 2011)

(holding that a hospice had standing to challenge a regulation that allegedly increased its

costs in some ways even though the regulation may have saved it money in other ways or in

other fiscal years); Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 570–75 (6th Cir. 2005)

(concluding that a patient had standing to sue designers, manufacturers, and distributors of

a medical device implanted in his body because it allegedly increased risk of medical problems

even though it had not malfunctioned and had benefited him); Markva v. Haveman, 317 F.3d

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attempt is made to ask whether the injury is outweighed by benefits the plain-

tiff has enjoyed from the relationship with the defendant. Standing is recog-

nized to complain that some particular aspect of the relationship is unlawful

and has caused injury.”60 “Our standing analysis is not an accounting

exercise . . . .”61

The one case in which we concluded that the costs of a challenged pro-

gram were offset by the benefits involved a much tighter nexus. In Henderson,

287 F.3d at 379–81, we determined that taxpayers lacked standing to challenge

a Louisiana law authorizing a license plate bearing a pro-life message, reason-

ing that the plaintiffs had not shown that the program would use their tax

dollars, because the extra fees paid by drivers who purchased the plates could

have covered the associated expenses. The costs and benefits arose out of the

same transaction, so the plaintiffs had not demonstrated injury.

Here, none of the benefits the government identifies is sufficiently con-

nected to the costs to qualify as an offset. The only benefits that are conceiva-

bly relevant are the increase in vehicle registration and the decrease in unin-

sured motorists, but even those are based on the independent decisions of

DAPA beneficiaries and are not a direct result of the issuance of licenses. Anal-

ogously, the Third Circuit held that sports leagues had standing to challenge

New Jersey’s decision to license sports gambling, explaining that damage to

the leagues’ reputations was a cognizable injury despite evidence that more

people would have watched sports had betting been allowed. NCAA, 730 F.3d

547, 557–58 (6th Cir. 2003) (deciding that grandparents had standing to challenge a require-

ment that they pay more for Medicaid benefits than would similarly situated parents, even

though the grandparents may have received more of other types of welfare benefits).

6013A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3531.4,

at 147 (3d ed. 2015) (footnote omitted).

61 NCAA v. Governor of N.J., 730 F.3d 208, 223 (3d Cir. 2013).

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at 222–24. The diminished public perception of the leagues and the greater

interest in sports were attributable to the licensing plan but did not arise out

of the same transaction and so could not be compared.

In the instant case, the states have alleged an injury, and the govern-

ment predicts that the later decisions of DAPA beneficiaries would produce

offsetting benefits. Weighing those costs and benefits is precisely the type of

“accounting exercise,” id. at 223, in which we cannot engage. Texas has shown

injury.

C.

Texas has satisfied the second standing requirement by establishing

that its injury is “fairly traceable” to DAPA. It is undisputed that DAPA would

enable beneficiaries to apply for driver’s licenses, and there is little doubt that

many would do so because driving is a practical necessity in most of the state.

The United States urges that Texas’s injury is not cognizable, because

the state could avoid injury by not issuing licenses to illegal aliens or by not

subsidizing its licenses. Although Texas could avoid financial loss by requiring

applicants to pay the full costs of licenses, it could not avoid injury altogether.

“[S]tates have a sovereign interest in ‘the power to create and enforce a legal

code,’”62 and the possibility that a plaintiff could avoid injury by incurring other

costs does not negate standing.63

62 Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982)).

63 See Texas v. United States, 497 F.3d 491, 497 (5th Cir. 2007). The dissent theorizes

that if “forcing Texas to change its laws would be an injury because states have a ‘sovereign

interest in the “power to create and enforce a legal code,”’” then Pennsylvania v. New Jersey,

426 U.S. 660 (1976) (per curiam), must be wrongly decided. Dissent at 12 n.16. The dissent

posits that Pennsylvania (there) and Texas (here) faced pressure to change their laws, so

their Article III standing vel non must be the same. But the dissent ignores a key distinction

between Pennsylvania v. New Jersey and the instant case: As we explain below, the pressure

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Indeed, treating the availability of changing state law as a bar to stand-

ing would deprive states of judicial recourse for many bona fide harms. For

instance, under that theory, federal preemption of state law could never be an

injury, because a state could always change its law to avoid preemption. But

courts have often held that states have standing based on preemption. 64 And

states could offset almost any financial loss by raising taxes or fees. The exis-

tence of that alternative does not mean they lack standing.

Relying primarily on Pennsylvania v. New Jersey, 426 U.S. 660 (1976)

(per curiam), the United States maintains that Texas’s injury is self-inflicted

because the state voluntarily chose to base its driver’s license policies on

federal immigration law. In Pennsylvania v. New Jersey, id. at 664, 666, the

Court held that several states lacked standing to contest other states’ laws

taxing a portion of nonresidents’ incomes. The plaintiff states alleged that the

defendant states’ taxes injured them because the plaintiffs gave their residents

credits for taxes paid to other states, so the defendants’ taxes increased the

amount of those credits, causing the plaintiffs to lose revenue. Id. at 663. The

Court flatly rejected that theory of standing:

In neither of the suits at bar has the defendant State inflicted any

injury upon the plaintiff States through the imposition of the [chal-

lenged taxes]. The injuries to the plaintiffs’ fiscs were self-inflicted,

resulting from decisions by their respective state legislatures. Nothing

required Maine, Massachusetts, and Vermont to extend a tax credit to

their residents for income taxes paid to New Hampshire, and nothing

prevents Pennsylvania from withdrawing that credit for taxes paid to

New Jersey. No State can be heard to complain about damage inflicted

by its own hand.

Id. at 664.

that Pennsylvania faced to change its laws was self-inflicted; Texas’s is not.

See, e.g., Crank, 539 F.3d at 1242; Alaska, 868 F.2d at 443-44; Celebrezze, 766 F.2d

64

at 232–33.

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The more recent decision in Wyoming v. Oklahoma, 502 U.S. 437 (1992),

also informs our analysis. There, the Court held that Wyoming had standing

to challenge an Oklahoma law requiring some Oklahoma power plants to burn

at least 10% Oklahoma-mined coal. Id. at 447. The Court explained that Wyo-

ming taxed the extraction of coal in the state and that Oklahoma’s law reduced

demand for that coal and Wyoming’s corresponding revenue. Id. The Court

emphasized that the case involved an “undisputed” “direct injury in the form

of a loss of specific tax revenues.” Id. at 448. It rejected Oklahoma’s contention

“that Wyoming is not itself engaged in the commerce affected, is not affected

as a consumer, and thus has not suffered the type of direct injury cognizable

in a Commerce Clause action,” id., concluding that Wyoming’s loss of revenue

was sufficient, id. at 448–50. The Court did not cite Pennsylvania v. New Jer-

sey or discuss the theory that Wyoming’s injury was self-inflicted.

Both the Pennsylvania v. New Jersey plaintiffs and Wyoming structured

their laws in ways that meant their finances would have been affected by

changes in other states’ laws. Because the tax credits in Pennsylvania v. New

Jersey were based on taxes paid to other states, any tax increases in other

states would have decreased the plaintiffs’ revenues, and any tax cuts would

have had the opposite effect. Analogously, Wyoming’s tax was based on the

amount of coal extracted there, so any policies in other states that decreased

demand for that coal would have diminished Wyoming’s revenues, and any

policies that bolstered demand would have had the opposite effect.

In other words, the schemes in both cases made the plaintiff states’

finances dependent on those of third parties—either resident taxpayers or coal

companies—which in turn were affected by other states’ laws. The issues in

Pennsylvania v. New Jersey and Wyoming v. Oklahoma were thus similar to

the question here, but the Court announced different results. The two cases

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are readily distinguishable, however, and, based on two considerations, Wyom-

ing v. Oklahoma directs our decision.

First, Texas and Wyoming sued in response to major changes in the

defendant states’ policies. Texas sued after the United States had announced

DAPA, which could make at least 500,000 illegal aliens eligible for driver’s

licenses and cause millions of dollars of losses; Wyoming sued after Oklahoma

had enacted a law that cost Wyoming over $1 million in tax revenues. See id.

at 445–46 & n.6. Conversely, the Pennsylvania v. New Jersey plaintiffs sued

not because of a change in the defendant states’ laws but because they believed

that Austin v. New Hampshire, 420 U.S. 656 (1975), had rendered the defen-

dants’ laws unconstitutional. See Pennsylvania v. New Jersey, 426 U.S. at 661–

63. The fact that Texas sued in response to a significant change in the defen-

dants’ policies shows that its injury is not self-inflicted.

Second, the plaintiffs’ options for accomplishing their policy goals were

more limited in this case and in Wyoming v. Oklahoma than in Pennsylvania

v. New Jersey. Texas seeks to issue licenses only to those lawfully present in

the United States, and the state is required to use federal immigration classi-

fications to do so. See Villas at Parkside Partners, 726 F.3d at 536. Likewise,

Wyoming sought to tax the extraction of coal and had no way to avoid being

affected by other states’ laws that reduced demand for that coal.65

65 It follows that the dissent’s unsubstantiated claim that “Pennsylvania, like Texas,

tied its law to that of another sovereign, whereas Wyoming did not” (emphasis added), is

obvious error. Dissent at 12 n.16. The dissent ignores our explication of Texas’s and

Wyoming’s policy goals. We do not assert that those states cannot change their laws to avoid

injury from changes in the laws of another state. Rather, we demonstrate that Texas and

Wyoming cannot both change their laws to avoid injury from amendments to another

sovereign’s laws and achieve their policy goals.

For example, although, as we have said but the dissent overlooks, Wyoming easily

could have avoided injury from changes in Oklahoma’s laws by abandoning entirely its tax

on coal extraction, it would have surrendered its policy goal of taxing extraction in the first

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By way of contrast, the plaintiff states in Pennsylvania v. New Jersey

could have achieved their policy goal in myriad ways, such as basing their tax

credits on residents’ out-of-state incomes instead of on taxes actually paid to

other states. That alternative would have achieved those plaintiffs’ goal of

allowing their residents to avoid double taxation of their out-of-state incomes,

but it would not have tied the plaintiffs’ finances to other states’ laws. The fact

that Texas had no similar option means its injury is not self-inflicted.

The decision in Amnesty International supports this conclusion: The

Court held that the plaintiffs lacked standing to challenge a provision of the

Foreign Intelligence Surveillance Act authorizing the interception of certain

electronic communications. Amnesty Int’l, 133 S. Ct. at 1155. The plaintiffs

alleged that they had been forced to take costly steps to avoid surveillance,

such as traveling to meet in person and not discussing certain topics by email

or phone. Id. at 1150–51. The Court held that any such injuries were self-

inflicted, id. at 1152–53, reasoning that plaintiffs “cannot manufacture stand-

ing merely by inflicting harm on themselves based on their fears of hypotheti-

cal future harm that is not certainly impending.” Id. at 1151 (citing Pennsyl-

vania v. New Jersey, 426 U.S. at 664). “If the law were otherwise, an enter-

prising plaintiff would be able to secure a lower standard for Article III

place. Similarly, Texas could avoid financial loss by increasing fees, not subsidizing its

licenses, or perhaps not issuing licenses to lawfully present aliens, but the consequence would

be that by taking those actions Texas would have abandoned its fully permissible policy goal

of providing subsidized licenses only to those who are lawfully present in the United States―a

policy that, as we have repeatedly pointed out, Texas instituted well before the Secretary

designed DACA or DAPA.

In essence, the dissent would have us issue the following edict to Texas: “You may

avoid injury to the pursuit of your policy goals—injury resulting from a change in federal

immigration law—by changing your laws to pursue different goals or eliminating them

altogether. Therefore, your injuries are self-inflicted.” Presumably the dissent would have

liked for the Supreme Court to have issued a similar edict to Wyoming, which sought to tax

the extraction of coal and had no way both to continue taxing extraction and to avoid being

affected by Oklahoma’s laws that reduced demand for that coal. See Dissent at 12–13.

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standing simply by making an expenditure based on a nonparanoid fear.” Id.

By way of contrast, there is no allegation that Texas passed its driver’s

license law to manufacture standing. The legislature enacted the law one year

before DACA and three years before DAPA was announced,66 and there is no

hint that the state anticipated a change in immigration policy―much less a

change as sweeping and dramatic as DAPA. Despite the dissent’s bold sugges-

tion that Texas’s license-plate-cost injury “is entirely manufactured by Plain-

tiffs for this case,” Dissent at 12, the injury is not self-inflicted.

In addition to its notion that Texas could avoid injury, the 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 Massa-

chusetts 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.

For Texas to incur injury, DAPA beneficiaries would have to apply for

driver’s licenses as a consequence of DHS’s action, and it is apparent that many

would do so. For Massachusetts’s injury to have occurred, individuals would

have had to drive less fuel-efficient cars as a result of the EPA’s decision, and

that would have had to contribute meaningfully to a rise in sea levels, causing

the erosion of the state’s shoreline. See Massachusetts v. EPA, 549 U.S. at 523.

There was some uncertainty about whether the EPA’s inaction was a substan-

tial cause of the state’s harm, considering the many other emissions sources

involved.67 But the Court held that Massachusetts had satisfied the causation

66 See Certain State Fiscal Matters; Providing Penalties, ch. 4, sec. 72.03,

§ 521.101(f-2), 2011 Tex. Gen. Laws 5254, 5344 (codified at TEX. TRANSP. CODE § 521.142(a)).

67See Massachusetts v. EPA, 549 U.S. at 523–24; id. at 540–45 (Roberts, C.J., dissent-

ing) (questioning whether Massachusetts had lost land at all as a result of climate change

and whether the EPA’s decision had contributed meaningfully to any erosion).

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requirement because the possibility that the effect of the EPA’s decision was

minor did not negate standing, and the evidence showed that the effect was

significant in any event. Id. at 524–25.

This case raises even less doubt about causation, so the result is the

same. The matters in which the Supreme Court held that an injury was not

fairly traceable to the challenged law reinforce this conclusion. In some of

them, the independent act of a third party was a necessary condition of the

harm’s occurrence, and it was uncertain whether the third party would take

the required step.68 Not so here.

DAPA beneficiaries have strong incentives to obtain driver’s licenses,

and it is hardly speculative that many would do so if they became eligible. In

other cases, in which there was insufficient proof of causation, several factors

potentially contributed to the injury, and the challenged policy likely played a

minor role.69

68 See, e.g., Amnesty Int’l, 133 S. Ct. at 1147–50 (explaining that, for a provision of the

Foreign Intelligence Surveillance Act to have resulted in the monitoring of the plaintiffs’

communications, the Attorney General and the Director of National Intelligence would have

had to authorize the collection of the communications, the Foreign Intelligence Surveillance

Court would have had to approve the government’s request, and the government would have

had to intercept the communications successfully); Whitmore v. Arkansas, 495 U.S. 149, 156–

60 (1990) (reasoning that, for a death-row inmate’s decision not to appeal to have harmed the

plaintiff, who was another death row inmate, the court hearing any appeal would have had

to rule in a way favorable to the plaintiff).

69 See, e.g., Already, LLC v. Nike, Inc., 133 S. Ct. 721, 731 (2013) (rejecting the theory

“that a market participant is injured for Article III purposes whenever a competitor benefits

from something allegedly unlawful—whether a trademark, the awarding of a contract, a

landlord-tenant arrangement, or so on.”); McConnell v. FEC, 540 U.S. 93, 228 (2003) (com-

menting that the plaintiffs, candidates for public office, were unable to compete not because

of increased hard-money limits but instead because of their personal decisions not to accept

large contributions), overruled on other grounds by Citizens United v. FEC, 558 U.S. 310

(2010); Allen v. Wright, 468 U.S. 737, 756–59 (1984) (observing that any lack of opportunity

for the plaintiffs’ children to attend racially integrated public schools was attributable not

only to tax exemptions for discriminatory private schools but also to the decisions of private-

school administrators and other parents), abrogated on other grounds by Lexmark Int’l, Inc.

v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).

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Far from playing an insignificant role, DAPA would be the primary cause

and likely the only one. Without the program, there would be little risk of a

dramatic increase in the costs of the driver’s-license program. This case is far

removed from those in which the Supreme Court has held an injury to be too

incidental or attenuated. Texas’s injury is fairly traceable to DAPA.

D.

Texas has satisfied the third standing requirement, redressability.

Enjoining DAPA based on the procedural APA claim could prompt DHS to

reconsider the program, which is all a plaintiff must show when asserting a

procedural right. See id. at 518. And enjoining DAPA based on the substantive

APA claim would prevent Texas’s injury altogether.

E.

The United States submits that Texas’s theory of standing is flawed

because it has no principled limit. In the government’s view, if Texas can chal-

lenge DAPA, it could also sue to block a grant of asylum to a single alien or any

federal policy that adversely affects the state, such as an IRS revenue ruling

that decreases a corporation’s federal taxable income and corresponding state

franchise-tax liability.

The flaw in the government’s reasoning is that Massachusetts v. EPA

entailed similar risks, but the Court still held that Massachusetts had stand-

ing. Under that decision, Massachusetts conceivably could challenge the gov-

ernment’s decision to buy a car with poor fuel efficiency because the vehicle

could contribute to global warming. The state might be able to contest any

federal action that prompts more travel. Or it potentially could challenge any

change in federal policy that indirectly results in greenhouse-gas emissions,

such as a trade-promotion program that leads to more shipping. One of the

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dissenting Justices in Massachusetts v. EPA criticized the decision on that

ground,70 but the majority found those concerns unpersuasive, just as they are

here.

After Massachusetts v. EPA, the answer to those criticisms is that there

are other ways to cabin policy disagreements masquerading as legal claims. 71

First, a state that has standing still must have a cause of action. Even the

APA—potentially the most versatile tool available to an enterprising state—

imposes a number of limitations. A state must be defending concerns that are

“arguably within the zone of interests to be protected or regulated by the stat-

ute or constitutional guarantee in question.”72 It is unclear whether a state

dissatisfied with an IRS revenue ruling would be defending such an interest.

Moreover, judicial review is unavailable where the statute precludes it or the

matter is committed to agency discretion. 5 U.S.C. § 701(a). Because of those

restrictions, a state would have limited ability to challenge many asylum

determinations. See 8 U.S.C. § 1252(b)(4)(D). Further, numerous policies that

adversely affect states either are not rules at all or are exempt from the notice-

and-comment requirements. See generally 5 U.S.C. § 553.

Second, the standing requirements would preclude much of the litigation

the government describes. For example, it would be difficult to establish stand-

ing to challenge a grant of asylum to a single alien based on the driver’s-license

theory. The state must allege an injury that has already occurred or is

70See Massachusetts v. EPA, 549 U.S. at 546 (Roberts, C.J., dissenting) (“Every little

bit helps, so Massachusetts can sue over any little bit.”).

The dissent responds to this by asserting that “[t]he majority’s observation that this

71

suit involves ‘policy disagreements masquerading as legal claims’ is also telling.” Dissent

at 22. That of course is not what our sentence (which is not a description of the suit at hand)

says at all.

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396 (1987) (quoting Ass’n of Data Process-

72

ing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)).

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“certainly impending”;73 it is easier to demonstrate that some DAPA benefici-

aries would apply for licenses than it is to establish that a particular alien

would. And causation could be a substantial obstacle. Although the district

court’s calculation of Texas’s loss from DAPA was based largely on the need to

hire employees, purchase equipment, and obtain office space, 74 those steps

would be unnecessary to license one additional person.

Third, our determination that Texas has standing is based in part on the

“special solicitude” we afford it under Massachusetts v. EPA as reinforced by

Arizona State Legislature. To be entitled to that presumption, a state likely

must be exercising a procedural right created by Congress and protecting a

“quasi-sovereign” interest. See Massachusetts v. EPA, 549 U.S. at 520. Those

factors will seldom exist. For instance, a grant of asylum to a single alien

would impose little pressure to change state law. Without “special solicitude,”

it would be difficult for a state to establish standing, a heavy burden in many

of the government’s hypotheticals.

Fourth, as a practical matter, it is pure speculation that a state would

sue about matters such as an IRS revenue ruling. Though not dispositive of

the issue, the absence of any indication that such lawsuits will occur suggests

the government’s parade of horribles is unfounded,75 and its concerns about

the possible future effects of Texas’s theory of standing do not alter our conclu-

sion. The states have standing.

73Amnesty Int’l, 133 S. Ct. at 1147 (emphasis omitted) (quoting Defs. of Wildlife, 504

U.S. at 565 n.2).

74See Dist. Ct. Op., 86 F. Supp. 3d at 616–17 (discussing the potential loss and citing

a portion of a declaration addressing those expenses).

75See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694,

710 (2012) (stating, in response to an alleged “parade of horribles,” that “[t]here will be time

enough to address . . . other circumstances” in future cases without altering the Court’s

present conclusion).

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IV.

Because the states are suing under the APA, they “must satisfy not only

Article III’s standing requirements, but an additional test: The interest [they]

assert[] must be ‘arguably within the zone of interests to be protected or

regulated by the statute’ that [they] say[] was violated.”76 That “test . . . ‘is not

meant to be especially demanding’” and is applied “in keeping with Congress’s

‘evident intent’ when enacting the APA ‘to make agency action presumptively

reviewable.’”77

The Supreme Court “ha[s] always conspicuously included the word ‘argu-

ably’ in the test to indicate that the benefit of any doubt goes to the plaintiff,”

and “[w]e do not require any ‘indication of congressional purpose to benefit the

would-be plaintiff.’”78 “The test forecloses suit only when a plaintiff’s ‘interests

are so marginally related to or inconsistent with the purposes implicit in the

statute that it cannot reasonably be assumed that Congress intended to permit

the suit.’”79

The interests the states seek to protect fall within the zone of interests

of the INA.80 “The pervasiveness of federal regulation does not diminish the

importance of immigration policy to the States,” which “bear[] many of the con-

sequences of unlawful immigration.” Arizona v. United States, 132 S. Ct.

76Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct.

2199, 2210 (2012) (quoting Data Processing, 397 U.S. at 153).

77 Id. (quoting Sec. Indus. Ass’n, 479 U.S. at 399).

78 Id. (quoting Sec. Indus. Ass’n, 479 U.S. at 399–400).

79 Id. (quoting Sec. Indus. Ass’n, 479 U.S. at 399).

80The INA “established a ‘comprehensive federal statutory scheme for regulation of

immigration and naturalization’ and set ‘the terms and conditions of admission to the country

and the subsequent treatment of aliens lawfully in the country.’” Chamber of Commerce of

U.S. v. Whiting, 131 S. Ct. 1968, 1973 (2011) (quoting DeCanas v. Bica, 424 U.S. 351, 353,

359 (1976)).

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at 2500. Reflecting a concern that “aliens have been applying for and receiving

public benefits from Federal, State, and local governments at increasing rates,”

8 U.S.C. § 1601, “Congress deemed some unlawfully present aliens ineligible

for certain state and local public benefits unless the state explicitly provides

otherwise.”81 With limited exceptions, unlawfully present aliens are “not eligi-

ble for any State or local public benefit.” 8 U.S.C. § 1621(a).

Contrary to the government’s assertion, Texas satisfies the zone-of-

interests test not on account of a generalized grievance but instead as a result

of the same injury that gives it Article III standing—Congress has explicitly

allowed states to deny public benefits to illegal aliens. Relying on that guar-

antee, Texas seeks to participate in notice and comment before the Secretary

changes the immigration classification of millions of illegal aliens in a way that

forces the state to the Hobson’s choice of spending millions of dollars to subsi-

dize driver’s licenses or changing its statutes.

V.

The government maintains that judicial review is precluded even if the

states are proper plaintiffs. “Any person ‘adversely affected or aggrieved’ by

agency action . . . is entitled to ‘judicial review thereof,’ as long as the action is

a ‘final agency action for which there is no other adequate remedy in a court.’”82

“But before any review at all may be had, a party must first clear the hurdle of

5 U.S.C. § 701(a). That section provides that the chapter on judicial review

‘applies, according to the provisions thereof, except to the extent that—

(1) statutes preclude judicial review; or (2) agency action is committed to

81 United States v. Alabama, 691 F.3d 1269, 1298 (11th Cir. 2012) (emphasis added)

(citing 8 U.S.C. § 1621).

82Chaney, 470 U.S. at 828 (quoting 5 U.S.C. §§ 702, 704). The government does not

dispute that DAPA is a “final agency action.” See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

882 (1990).

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agency discretion by law.’” Chaney, 470 U.S. at 828.

“[T]here is a ‘well-settled presumption favoring interpretations of

statutes that allow judicial review of administrative action,’ and we will accord-

ingly find an intent to preclude such review only if presented with ‘clear and

convincing evidence.’”83 The “‘strong presumption’ favoring judicial review of

administrative action . . . is rebuttable: It fails when a statute’s language or

structure demonstrates that Congress wanted an agency to police its own

conduct.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015).

Establishing unreviewability is a “heavy burden,”84 and “where substan-

tial doubt about the congressional intent exists, the general presumption favor-

ing judicial review of administrative action is controlling.” Block v. Cmty.

Nutrition Inst., 467 U.S. 340, 351 (1984). “Whether and to what extent a par-

ticular statute precludes judicial review is determined not only from its express

language, but also from the structure of the statutory scheme, its objectives,

its legislative history, and the nature of the administrative action involved.”

Id. at 345.

The United States relies on 8 U.S.C. § 1252(g)85 for the proposition that

the INA expressly prohibits judicial review. But the government’s broad read-

ing is contrary to Reno v. American-Arab Anti-Discrimination Committee

(“AAADC”), 525 U.S. 471, 482 (1999), in which the Court rejected “the

83Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63–64 (1993) (quoting McNary v.

Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991); Abbott Labs. v. Gardner, 387 U.S. 136,

141 (1967)).

84 Mach Mining, 135 S. Ct. at 1651 (quoting Dunlop v. Bachowski, 421 U.S. 560, 567

(1975)).

85With limited exceptions, “no court shall have jurisdiction to hear any cause or claim

by or on behalf of any alien arising from the decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute removal orders against any alien under

this chapter.” 8 U.S.C. § 1252(g).

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unexamined assumption that § 1252(g) covers the universe of deportation

claims—that it is a sort of ‘zipper’ clause that says ‘no judicial review in

deportation cases unless this section provides judicial review.’” 86 The Court

emphasized that § 1252(g) is not “a general jurisdictional limitation,” but

rather “applies only to three discrete actions that the Attorney General may

take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or

execute removal orders.’”87

None of those actions is at issue here—the states’ claims do not arise

from the Secretary’s “decision or action . . . to commence proceedings, adjudi-

cate cases, or execute removal orders against any alien,” § 1252(g); instead,

they stem from his decision to grant lawful presence to millions of illegal aliens

on a class-wide basis. Further, the states are not bringing a “cause or claim by

or on behalf of any alien”—they assert their own right to the APA’s procedural

protections. Id. Congress has expressly limited or precluded judicial review of

many immigration decisions,88 including some that are made in the Secretary’s

“sole and unreviewable discretion,”89 but DAPA is not one of them.

Judicial review of DAPA is consistent with the protections Congress

affords to states that decline to provide public benefits to illegal aliens. “The

86AAADC, 525 U.S. at 482. “We are aware of no other instance in the United States

Code in which language such as this has been used to impose a general jurisdictional

limitation . . . .” Id.

87 Id. (quoting § 1252(g)).

88 See AAADC, 525 U.S. at 486–87 (listing “8 U.S.C. § 1252(a)(2)(A) (limiting review

of any claim arising from the inspection of aliens arriving in the United States), [(B)] (barring

review of denials of discretionary relief authorized by various statutory provisions), [(C)] (bar-

ring review of final removal orders against criminal aliens), [(b)(4)(D)] (limiting review of

asylum determinations)”); see also, e.g., 8 U.S.C. §§ 1182(a)(9)(B)(v) (barring review of waiver

of reentry restrictions); 1226a(b)(1) (limiting review of detention of terrorist aliens); 1229c(e)

(barring review of regulations limiting eligibility for voluntary departure), (f) (limiting review

of denial of voluntary departure).

89 E.g., 8 U.S.C. §§ 1613(c)(2)(G), 1621(b)(4), 1641.

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Government of the United States has broad, undoubted power over the subject

of immigration and the status of aliens,”90 but, through § 1621, Congress has

sought to protect states from “bear[ing] many of the consequences of unlawful

immigration.”91 Texas avails itself of some of those protections through Sec-

tion 521.142(a) of the Texas Transportation Code, which allows the state to

avoid the costs of issuing driver’s licenses to illegal aliens.

If 500,000 unlawfully present aliens residing in Texas were reclassified

as lawfully present pursuant to DAPA, they would become eligible for driver’s

licenses at a subsidized fee. Congress did not intend to make immune from

judicial review an agency action that reclassifies millions of illegal aliens in a

way that imposes substantial costs on states that have relied on the protections

conferred by § 1621.

The states contend that DAPA is being implemented without discretion

to deny applications that meet the objective criteria set forth in the DAPA

Memo, and under AAADC, judicial review could be available if there is an indi-

cation that deferred-action decisions are not made on a case-by-case basis. In

AAADC, a group of aliens “challenge[d] . . . the Attorney General’s decision to

‘commence [deportation] proceedings’ against them,” and the Court held that

§ 1252(g) squarely deprived it of jurisdiction. AAADC, 525 U.S. at 487. The

Court noted that § 1252(g) codified the Secretary’s discretion to decline “the

initiation or prosecution of various stages in the deportation process,” id. at

483, and the Court observed that “[p]rior to 1997, deferred-action decisions

were governed by internal [INS] guidelines which considered [a variety of fac-

tors],” id. at 484 n.8. Although those guidelines “were apparently rescinded,”

90 Arizona v. United States, 132 S. Ct. at 2498.

91 Id. at 2500.

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the Court observed that “there [was] no indication that the INS has ceased

making this sort of determination on a case-by-case basis.” Id. But the govern-

ment has not rebutted the strong presumption of reviewability with clear and

convincing evidence that, inter alia, it is making case-by-case decisions here.92

A.

Title 5 § 701(a)(2) “preclude[s] judicial review of certain categories of

administrative decisions that courts traditionally have regarded as “committed

to agency discretion.” Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (citation omit-

ted). For example, “an agency’s decision not to institute enforcement proceed-

ings [is] presumptively unreviewable under § 701(a)(2).” Id. (citation omitted).

Likewise, “[t]here is no judicial review of agency action ‘where statutes [grant-

ing agency discretion] are drawn in such broad terms that in a given case there

is no law to apply,’”93 such as “[t]he allocation of funds from a lump-sum appro-

priation.” Vigil, 508 U.S. at 192.

1.

The Secretary has broad discretion to “decide whether it makes sense to

pursue removal at all”94 and urges that deferred action—a grant of “lawful

presence” and subsequent eligibility for otherwise unavailable benefits—is a

92 See, e.g., Gulf Restoration Network v. McCarthy, 783 F.3d 227, 235 (5th Cir. 2015)

(Higginbotham, J.) (“[T]here is a ‘strong presumption,’ subject to Congressional language,

that ‘action taken by a federal agency is reviewable in federal court.’” (quoting RSR Corp. v.

Donovan, 747 F.2d 294, 299 n.23 (5th Cir. 1984))).

93Perales v. Casillas, 903 F.2d 1043, 1047 (5th Cir. 1990) (alteration in original) (cita-

tion omitted).

94Arizona v. United States, 132 S. Ct. at 2499 (“A principal feature of the removal

system is the broad discretion exercised by immigration officials. Federal officials, as an

initial matter, must decide whether it makes sense to pursue removal at all.” (citation

omitted)).

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presumptively unreviewable exercise of prosecutorial discretion.95 “The gen-

eral exception to reviewability provided by § 701(a)(2) for action ‘committed to

agency discretion’ remains a narrow one, but within that exception are

included agency refusals to institute investigative or enforcement proceedings,

unless Congress has indicated otherwise.”96 Where, however, “an agency does

act to enforce, that action itself provides a focus for judicial review, inasmuch

as the agency must have exercised its power in some manner. The action at

least can be reviewed to determine whether the agency exceeded its statutory

powers.”97

Part of DAPA involves the Secretary’s decision—at least temporarily—

not to enforce the immigration laws as to a class of what he deems to be low-

priority illegal aliens. But importantly, the states have not challenged the pri-

ority levels he has established,98 and neither the preliminary injunction nor

compliance with the APA requires the Secretary to remove any alien or to alter

his enforcement priorities.

Deferred action, however, is much more than nonenforcement: It would

affirmatively confer “lawful presence” and associated benefits on a class of

unlawfully present aliens. Though revocable, that change in designation

would trigger (as we have already explained) eligibility for federal benefits—

95 The dissent misleadingly declares, “In other words, deferred action itself is merely

a brand of ‘presumptively unreviewable’ prosecutorial discretion.” Dissent at 14. The dissent

attributes that statement to this panel majority when in fact, as shown above, we accurately

cite the statement as coming from the Secretary.

96 Chaney, 470 U.S. at 838 (citation omitted); see Vigil, 508 U.S. at 190–91.

97 Chaney, 470 U.S. at 832.

98See Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Thomas

Winkowski, Acting Dir., U.S. Immigration and Customs Enforcement, et al. (Nov. 20, 2014)

(the “Prioritization Memo”), http://www.dhs.gov/sites/default/files/publications/14_1120_

memo_prosecutorial_discretion.pdf.

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for example, under title II and XVIII of the Social Security Act 99—and state

benefits—for example, driver’s licenses and unemployment insurance100—that

would not otherwise be available to illegal aliens.101

The United States maintains that DAPA is presumptively unreviewable

prosecutorial discretion because “‘lawful presence’ is not a status and is not

something that the alien can legally enforce; the agency can alter or revoke it

at any time.”102 The government further contends that “[e]very decision under

[DAPA] to defer enforcement action against an alien necessarily entails allow-

ing the individual to be lawfully present . . . . Deferred action under DAPA and

‘lawful presence’ during that limited period are thus two sides of the same

coin.”103

99 See supra part I.A. DAPA would also toll the duration of the recipients’ unlawful

presence under the INA’s reentry bars, which would benefit aliens who receive lawful pres-

ence as minors because the unlawful-presence clock begins to run only at age eighteen. See

8 U.S.C. § 1182(a)(9)(B)(iii)(I). Most adult beneficiaries would be unlikely to benefit from

tolling because, to be eligible for DAPA, one must have continuously resided in the United

States since before January 1, 2010, and therefore would likely already be subject to the

reentry bar for aliens who have “been unlawfully present in the United States for one year

or more.” § 1182(a)(9)(B)(i)(II); see § 1182(a)(9)(C)(i)(I).

100 See supra part I.A.

101 Cf. Memorandum from James Cole, Deputy Att’y Gen., to All U.S. Attorneys

(Aug. 29, 2013) (the “Cole Memo”), http://www.justice.gov/iso/opa/resources/

3052013829132756857467.pdf. The Cole Memo establishes how prosecutorial discretion will

be used in relation to marihuana enforcement under the Controlled Substances Act. Unlike

the DAPA Memo, it does not direct an agency to grant eligibility for affirmative benefits to

anyone engaged in unlawful conduct. As we have explained, to receive public benefits, aliens

accorded lawful presence must satisfy additional criteria set forth in the various benefit

schemes, but they nevertheless become eligible to satisfy those criteria. That eligibility is

itself a cognizable benefit.

102Supplemental Brief for Appellants at 16. But see 8 U.S.C. § 1201(i) (“After the

issuance of a visa or other documentation to any alien, the consular officer or the Secretary

of State may at any time, in his discretion, revoke such visa or other documentation.”);

§ 1227(a)(1)(B) (providing that any alien “whose nonimmigrant visa . . . has been revoked

under section 1201(i) of this title, is deportable”).

103 Supplemental Brief for Appellants at 16 (emphasis omitted).

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Revocability, however, is not the touchstone for whether agency is action

is reviewable. Likewise, to be reviewable agency action, DAPA need not dir-

ectly confer public benefits—removing a categorical bar on receipt of those

benefits and thereby making a class of persons newly eligible for them

“provides a focus for judicial review.” Chaney, 470 U.S. at 832.

Moreover, if deferred action meant only nonprosecution, it would not

necessarily result in lawful presence. “[A]lthough prosecutorial discretion is

broad, it is not ‘unfettered.’”104 Declining to prosecute does not transform pres-

ence deemed unlawful by Congress into lawful presence and confer eligibility

for otherwise unavailable benefits based on that change. Regardless of

whether the Secretary has the authority to offer lawful presence and employ-

ment authorization in exchange for participation in DAPA, his doing so is not

shielded from judicial review as an act of prosecutorial discretion.

This evident conclusion is reinforced by the Supreme Court’s description,

in AAADC, of deferred action as a nonprosecution decision:

To ameliorate a harsh and unjust outcome, the INS may decline to insti-

tute proceedings, terminate proceedings, or decline to execute a final

order of deportation. This commendable exercise in administrative dis-

cretion, developed without express statutory authorization, originally

was known as nonpriority and is now designated as deferred action

. . . . Approval of deferred action status means that . . . no action will

thereafter be taken to proceed against an apparently deportable alien,

even on grounds normally regarded as aggravated.[105]

In their procedural claim, the states do not challenge the Secretary’s decision

104Wayte v. United States, 470 U.S. 598, 608 (1985) (quoting United States v. Batchel-

der, 442 U.S. 114, 125 (1979)).

105 AAADC, 525 U.S. at 484 (emphasis added) (quoting 6 CHARLES GORDON, STANLEY

MAILMAN & STEPHEN YALE-LOEHR, IMMIGRATION LAW AND PROCEDURE § 72.03[2][h]

(1998)); accord Johns v. Dep’t of Justice, 653 F.2d 884, 890 (5th Cir. Aug. 1981) (“The Attorney

General also determines whether (1) to refrain from (or, in administrative parlance, to defer

in) executing an outstanding order of deportation, or (2) to stay the order of deportation.”

(footnote omitted)); see also Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976) (per curiam).

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to “decline to institute proceedings, terminate proceedings, or decline to exe-

cute a final order of deportation,” nor does deferred action mean merely that

“no action will thereafter be taken to proceed against an apparently deportable

alien.”106

Under DAPA, “[d]eferred action . . . means that, for a specified period of

time, an individual is permitted to be lawfully present in the United States,”107

a change in designation that confers eligibility for substantial federal and state

benefits on a class of otherwise ineligible aliens. Thus, DAPA “provides a focus

for judicial review, inasmuch as the agency must have exercised its power in

some manner. The action at least can be reviewed to determine whether the

agency exceeded its statutory powers.”108

2.

“The mere fact that a statute grants broad discretion to an agency does

not render the agency’s decisions completely unreviewable under the ‘commit-

ted to agency discretion by law’ exception unless the statutory scheme, taken

together with other relevant materials, provides absolutely no guidance as to

how that discretion is to be exercised.”109 In Perales, 903 F.2d at 1051, we held

that the INS’s decision not to grant pre-hearing voluntary departures and work

authorizations to a group of aliens was committed to agency discretion because

“[t]here are no statutory standards for the court to apply . . . . There is nothing

106 AAADC, 525 U.S. at 484 (quoting GORDON, MAILMAN & YALE-LOEHR,

supra note 105).

107 DAPA Memo at 2 (emphasis added).

108Chaney, 470 U.S. at 832. Because the challenged portion of DAPA’s deferred-action

program is not an exercise of enforcement discretion, we do not reach the issue of whether

the presumption against review of such discretion is rebutted. See id. at 832–34; Adams v.

Richardson, 480 F.2d 1159, 1161–62 (D.C. Cir. 1973) (en banc) (per curiam).

109 Perales, 903 F.2d at 1051 (quoting Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir.

1985) (per curiam)).

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in the [INA] expressly providing for the grant of employment authorization or

pre-hearing voluntary departure to [the plaintiff class of aliens].” Although we

stated that “the agency’s decision to grant voluntary departure and work

authorization has been committed to agency discretion by law,” id. at 1045,

that case involved a challenge to the denial of voluntary departure and work

authorization.

Under those facts, Perales faithfully applied Chaney’s presumption

against judicial review of agency inaction “because there are no meaningful

standards against which to judge the agency’s exercise of discretion.” Id.

at 1047. But where there is affirmative agency action—as with DAPA’s issu-

ance of lawful presence and employment authorization—and in light of the

INA’s intricate regulatory scheme for changing immigration classifications and

issuing employment authorization,110 “[t]he action at least can be reviewed to

determine whether the agency exceeded its statutory powers.” Chaney,

470 U.S. at 832.

The United States asserts that 8 C.F.R. § 274a.12(c)(14),111 rather than

DAPA, makes aliens granted deferred action eligible for work authorizations.

But if DAPA’s deferred-action program must be subjected to notice-and-

comment, then work authorizations may not be validly issued pursuant to that

subsection until that process has been completed and aliens have been

“granted deferred action.” § 274a.12(c)(14).

Moreover, the government’s limitless reading of that subsection—

allowing for the issuance of employment authorizations to any class of illegal

110 See infra part VII.

111 “An alien who has been granted deferred action, an act of administrative conven-

ience to the government which gives some cases lower priority, [may be able to obtain work

authorization upon application] if the alien establishes an economic necessity for employ-

ment.” 8 C.F.R. § 274a.12(c)(14).

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aliens whom DHS declines to remove—is beyond the scope of what the INA can

reasonably be interpreted to authorize, as we will explain.112 And even

assuming, arguendo, that the government does have that power, Texas is also

injured by the grant of lawful presence itself, which makes DAPA recipients

newly eligible for state-subsidized driver’s licenses.113 As an affirmative

agency action with meaningful standards against which to judge it, DAPA is

not an unreviewable “agency action . . . committed to agency discretion by

law.” § 701(a)(2).

B.

The government urges that this case is not justiciable even though “‘a

federal court’s “obligation”’ to hear and decide cases within its jurisdiction is

‘virtually unflagging.’”114 We decline to depart from that well-established

principle.115 And in invoking our jurisdiction, the states do not demand that

the federal government “control immigration and . . . pay for the consequences

of federal immigration policy” or “prevent illegal immigration.”116

Neither the preliminary injunction nor compliance with the APA

requires the Secretary to enforce the immigration laws or change his priorities

The class of aliens eligible for DAPA is not among those classes of aliens identified

112

by Congress as eligible for deferred action and work authorization. See infra part VII.

113 See TEX. DEP’T OF PUB. SAFETY, VERIFYING LAWFUL PRESENCE, supra note 56.

114Lexmark, 134 S. Ct. at 1386 (quoting Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct.

584, 591 (2013)).

115See Sprint Commc’ns, 134 S. Ct. at 590 (“Federal courts, it was early and famously

said, have ‘no more right to decline the exercise of jurisdiction which is given, than to usurp

that which is not given.’” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821))).

116Texas v. United States, 106 F.3d at 664; see also Sure-Tan, 467 U.S. at 897 (“[P]ri-

vate persons . . . have no judicially cognizable interest in procuring enforcement of the immi-

gration laws . . . .”); Fiallo, 430 U.S. at 792 (“[T]he power to expel or exclude aliens [is] a

fundamental sovereign attribute exercised by the Government’s political departments largely

immune from judicial control.” (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S.

206, 210 (1953))).

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for removal, which have expressly not been challenged.117 Nor have the states

“merely invited us to substitute our judgment for that of Congress in deciding

which aliens shall be eligible to participate in [a benefits program].” Diaz,

426 U.S. at 84.118 DAPA was enjoined because the states seek an opportunity

117See Brief for Appellees at 2 (“[T]he district court’s injunction does not touch—and

this lawsuit has never challenged—the Executive’s separate memorandum establishing three

categories for removal prioritization, or any decision by the Executive to forego a removal

proceeding.”).

118 The main thrust of the dissent could be summarized as claiming that “[i]t’s Con-

gress’s fault.” The President apparently agrees: As explained by the district court, “it was

the failure of Congress to enact such a program that prompted [the President] . . . to ‘change

the law.’” See infra note 200. The dissent opens by blaming Congress for insufficient

funding―to-wit, “decades of congressional appropriations decisions, which require DHS . . .

to de-prioritize millions of removable each year due to these resource constraints.” Dissent

at 5–6 (footnote omitted).

The dissent’s insistent invocation of what it perceives as Congress’s inadequate fund-

ing is regrettable and exposes the weakness of the government’s legal position. See, e.g.,

Dissent at 1 (“unless and until more resources are made available by Congress”); id. (“if

Congress is able to make more resources for removal available”); id. at 4 (“given the resource

constraints faced by DHS”); id. (“to maximize the resources that can be devoted to such

ends”); id. at 5 (“decades of congressional appropriations decisions”); id. at 6 (“due to these

resource constraints”); id. at 7 n.9 (“”if Congress were to substantially increase the amount

of funding”); id at 14 (“DHS’s limited resources”); id. at 43 n.55 (“the decades-long failure of

Congress to fund”); id. at [50] (“Congress’s choices as to the level of funding for immigration

enforcement”).

The facts, not commentary on political decisions, are what should matter. Thus the

dissent’s notion that “this case essentially boils down to a policy dispute,” Dissent at 22, far

misses the mark and avoids having to tackle the hard reality―for the government―of existing

law. Similarly unimpressive is the dissent’s resort to hyperbole. E.g., Dissent at 10 (“[t]he

majority’s breathtaking expansion of state standing”); id. at 11 (“the majority’s sweeping

‘special solicitude’ analysis”); id. at 11 n.14 (“the sweeping language the majority uses

today”); id. at 42 n.54 (“this radical theory of standing”); id at 47 n.61 (“The majority’s ruling

. . . is potentially devastating.”).

The dissent also claims that despite limited funding, “DHS . . . has been removing

individuals from the United States in record numbers.” Dissent at 20. At the very least, the

statistics on which the dissent relies are highly misleading. Although DHS claims that a

record-high of 0.44 million aliens were deported in 2013, it arrives at that number by using

only “removals” (which are deportations by court order) per year and ignoring “returns”

(which are deportations achieved without court order). If, more accurately, one counts total

removals and returns by both ICE and the Border Patrol, deportations peaked at over 1.8

million in 2000 and plunged to less than half―about 0.6 million―in 2013. In that thirteen-

year interim, the number of aliens deported per court directive (that is, removed) roughly

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to be heard through notice and comment, not to have the judiciary formulate

or rewrite immigration policy. “Consultation between federal and state offi-

cials is an important feature of the immigration system,”119 and the notice-and-

comment process, which “is designed to ensure that affected parties have an

opportunity to participate in and influence agency decision making,” 120 facili-

tates that communication.

At its core, this case is about the Secretary’s decision to change the immi-

gration classification of millions of illegal aliens on a class-wide basis. The

states properly maintain that DAPA’s grant of lawful presence and accompany-

ing eligibility for benefits is a substantive rule that must go through notice and

comment, before it imposes substantial costs on them, and that DAPA is sub-

stantively contrary to law. The federal courts are fully capable of adjudicating

those disputes.

VI.

Because the interests that Texas seeks to protect are within the INA’s

zone of interests, and judicial review is available, we address whether Texas

has established a substantial likelihood of success on its claim that DAPA must

be submitted for notice and comment. The United States urges that DAPA is

exempt as an “interpretative rule[], general statement[] of policy, or rule[] of

agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A). “In con-

trast, if a rule is ‘substantive,’ the exemption is inapplicable, and the full pano-

ply of notice-and-comment requirements must be adhered to scrupulously. The

doubled from about 0.2 million to 0.44 million. The total number of deportations is at its

lowest level since the mid-1970’s. U.S. DEP’T OF HOMELAND SEC., 2013 YEARBOOK OF

IMMIGRATION STATISTICS 103tbl.39 (2014),

http://www.dhs.gov/sites/default/files/publications/ois_yb_2013_0.pdf.

119 Arizona v. United States, 132 S. Ct. at 2508.

120 U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir. 1979).

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‘APA’s notice and comment exemptions must be narrowly construed.’”121

A.

The government advances the notion that DAPA is exempt from notice

and comment as a policy statement.122 We evaluate two criteria to distinguish

policy statements from substantive rules: whether the rule (1) “impose[s] any

rights and obligations” and (2) “genuinely leaves the agency and its decision-

makers free to exercise discretion.”123 There is some overlap in the analysis of

those prongs “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.’”124 “While mindful but suspicious of the agency’s own charac-

terization, we . . . focus[] primarily on whether the rule has binding effect on

agency discretion or severely restricts it.”125 “[A]n agency pronouncement will

121 Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995)

(footnote omitted) (quoting United States v. Picciotto, 875 F.2d 345, 347 (D.C. Cir. 1989)).

122 The government does not dispute that DAPA is a “rule,” which is defined by the

APA as “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 and includes [various substantive agency functions] or

practices bearing on any of the foregoing.” 5 U.S.C. § 551(4).

123 Prof’ls & Patients, 56 F.3d at 595 (quoting Cmty. Nutrition Inst. v. Young, 818 F.2d

943, 946 (D.C. Cir. 1987) (per curiam)); see also Vigil, 508 U.S. at 197 (describing general

statements of policy “as ‘statements issued by an agency to advise the public prospectively of

the manner in which the agency proposes to exercise a discretionary power.’” (quoting Chrys-

ler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979))); Brown Express, Inc. v. United States,

607 F.2d 695, 701 (5th Cir. 1979) (“A general statement of policy is a statement by an admin-

istrative agency announcing motivating factors the agency will consider, or tentative goals

toward which it will aim, in determining the resolution of a [s]ubstantive question of

regulation.”).

124 Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002) (quoting McLouth Steel

Prods. Corp. v. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988)).

125 Prof’ls & Patients, 56 F.3d at 595 (footnote omitted); accord id. (“[W]e are to give

some deference, ‘albeit “not overwhelming,”’ to the agency’s characterization of its own rule.”

(quoting Cmty. Nutrition Inst., 818 F.2d at 946)); Phillips Petroleum Co. v. Johnson, 22 F.3d

616, 619 (5th Cir. 1994) (“This court, however, must determine the category into which the

rule falls: ‘[T]he label that the particular agency puts upon its given exercise of admin-

istrative power is not, for our purposes, conclusive; rather it is what the agency does in fact.’”

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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.” Gen.

Elec., 290 F.3d at 383 (citation omitted).

Although the DAPA Memo facially purports to confer discretion,126 the

district court determined that “[n]othing about DAPA ‘genuinely leaves the

agency and its [employees] free to exercise discretion,’”127 a factual finding that

we review for clear error. That finding was partly informed by analysis of the

implementation of DACA, the precursor to DAPA.128

Like the DAPA Memo, the DACA Memo instructed agencies to review

applications on a case-by-case basis and exercise discretion, but the district

court found that those statements were “merely pretext”129 because only

about 5% of the 723,000 applications accepted for evaluation had been

denied,130 and “[d]espite a request by the [district] [c]ourt, the [g]overnment’s

(alteration in original) (quoting Brown Express, 607 F.2d at 700)).

126 See Crane, 783 F.3d at 254–55. In Crane, we held that the plaintiff ICE agents and

deportation officers had not “demonstrated the concrete and particularized injury required

to give them standing” to challenge DACA, id. at 247, because, inter alia, they had not alleged

a sufficient factual basis for their claim that an employment action against them was “cer-

tainly impending” if they “exercise[d] [their] discretion to detain an illegal alien,” id. at 255.

That conclusion was informed by the express delegation of discretion on the face of the DACA

Memo and by the fact that no sanctions or warnings had yet been issued. Id. at 254–55. We

did not hold that DACA was an unreviewable exercise of prosecutorial discretion or that the

DACA criteria did not have binding or severely restrictive effect on agency discretion. See

id. at 254–55.

Dist. Ct. Op., 86 F. Supp. 3d at 670 (second alteration in original) (quoting Prof’ls

127

& Patients, 56 F.3d at 595).

128Id. at 579–60. See 3 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 15.05[3] (2014)

(“In general, the agency’s past treatment of a rule will often indicate its nature.”).

129 Dist. Ct. Op., 86 F. Supp. 3d at 669 n.101.

130 Id. at 609; see id. (noting that “[i]n response to a Senate inquiry, the USCIS told

the Senate that the top four reasons for denials were: (1) the applicant used the wrong form;

(2) the applicant failed to provide a valid signature; (3) the applicant failed to file or complete

Form I–765 or failed to enclose the fee; and (4) the applicant was below the age of fifteen and

thus ineligible to participate in the program”); id. at *669 n.101 (“[A]ll were denied for failure

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counsel did not provide the number, if any, of requests that were denied [for

discretionary reasons] even though the applicant met the DACA criteria

. . . .”131 The finding of pretext was also based on a declaration by Kenneth

Palinkas, the president of the union representing the USCIS employees pro-

cessing the DACA applications, that “DHS management has taken multiple

steps to ensure that DACA applications are simply rubberstamped if the appli-

cants meet the necessary criteria”;132 DACA’s Operating Procedures, which

“contain[] nearly 150 pages of specific instructions for granting or denying

to meet the criteria (or ‘rejected’ for technical filing errors, errors in filling out the form or

lying on the form, and failures to pay fees), or for fraud.”).

Relying on the Neufeld declaration, the dissent tries to make much of the distinction

between denials and rejections. Dissent at 37. The district court did in fact mistakenly write

“denials” (used to describe applications refused for failure to meet the criteria) in the above

quoted passage where the USCIS response actually said “rejections” (applications refused for

procedural defects). USCIS reported that approximately 6% of DACA applicants were

rejected and that an additional 4% were denied. USCIS does not draw a distinction between

denials of applicants who did not meet the criteria and denials of those who met the criteria

but were refused deferred action as a result of a discretionary choice.

USCIS could not produce any applications that satisfied all of the criteria but were

refused deferred action by an exercise of discretion. Id. at 669 n.101 (“[A]ll were denied for

failure to meet the criteria or ‘rejected’ for technical filing errors, errors in filling out the form

or lying on the form, and failures to pay fees), or for fraud.”).” Given that the government

offered no evidence as to the bases for other denials, it was not error―clear or otherwise―for

the district court to conclude that DHS issued DACA denials under mechanical formulae.

131 Dist. Ct. Op., 86 F. Supp. 3d at 609. The parties had ample opportunity to inform

the district court, submitting over 200 pages of briefing over a two-month period with more

than 80 exhibits. The court held a hearing on the motion for a preliminary injunction, heard

extensive argument from both sides, and “specifically asked for evidence of individuals who

had been denied for reasons other than not meeting the criteria or technical errors with the

form and/or filing.” Id. at 669 n.101.

132 Dist. Ct. Op., 86 F. Supp. 3d at 609–10.

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deferred action”;133 and some mandatory language in the DAPA Memo itself.134

In denying the government’s motion for a stay of the injunction, the district

court further noted that the President had made public statements suggesting

that in reviewing applications pursuant to DAPA, DHS officials who “don’t fol-

low the policy” will face “consequences,” and “they’ve got a problem.”135

Id. at 669 (footnote omitted). For example, the DACA National Standard Operating

133

Procedures (“SOP”) specifically directs officers on which evidence an applicant is required to

submit, what evidence is to be considered, “the weight to be given” to evidence, and the

standards of proof required to grant or deny an application. U.S. DEP’T OF HOMELAND SEC.,

NATIONAL STANDARD OPERATING PROCEDURES: DACA 42 (2012). To elaborate: An affidavit

alone may not support an application, and DACA applicants must prove education and age

criteria by documentary evidence. Id. at 8–10. The SOP also mandates, however, that “[o]ffi-

cers will NOT deny a DACA request solely because the DACA requestor failed to submit

sufficient evidence with the request . . . officers will issue a [Request for Evidence (RFE)]

. . . whenever possible.” Id. at 42.

DHS internal documents further provide that “a series of RFE [ ] templates have been

developed and must be used,” and those documents remind repeatedly that “[u]se of these

RFE templates is mandatory.” (Emphasis added.) And “[w]hen an RFE is issued, the

response time given shall be 87 days.” SOP at 42.

These specific evidentiary standards and RFE steps imposed by the SOP are just

examples the district court had before it when it concluded that DACA and DAPA “severely

restrict[ ]” agency discretion. Prof’ls & Patients, 56 F.3d at 595. Far from being clear error,

such a finding was no error whatsoever.

Dist. Ct. Op., 86 F. Supp. 3d at 648–49, 671 n.103. There the district court exhib-

134

ited its keen awareness of the DAPA Memo by quoting the following from it:

I [the Secretary] hereby direct USCIS to establish a process, similar to DACA . . . .

Applicants must file . . . . Applicants must also submit . . . . [Applicants] shall also

be eligible . . . . Deferred action granted pursuant to the program shall be for a period

of three years. . . . As with DACA, the above criteria are to be considered for all

individuals . . . . ICE and CBP are instructed to immediately begin identifying per-

sons in their custody, as well as newly encountered individuals, who meet the above

criteria . . . . ICE is further instructed to review pending removal cases . . . . The

USCIS process shall also be available to individuals subject to final orders of

removal.

Id. at 611–12 (paragraph breaks omitted.) This detailed explication of the DAPA Memo flies

in the face of the dissent’s unjustified critique that the district court “eschew[ed] the plain

language of the [DAPA] Memorandum.” Dissent at 31.

135 Texas v. United States, No. B-14-254, 2015 WL 1540022, at *3 (S.D. Tex. Apr. 7,

2015).

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The DACA and DAPA Memos purport to grant discretion, but a rule can

be binding if it is “applied by the agency in a way that indicates it is binding,”136

and there was evidence from DACA’s implementation that DAPA’s discretion-

ary language was pretextual. For a number of reasons, any extrapolation from

DACA must be done carefully.137

First, DACA involved issuing benefits to self-selecting applicants, and

persons who expected to be denied relief would seem unlikely to apply. But

the issue of self-selection is partially mitigated by the finding that “the [g]ov-

ernment has publicly declared that it will make no attempt to enforce the law

against even those who are denied deferred action (absent extraordinary

circumstances).” Dist. Ct. Op., 86 F. Supp. 3d at 663 (footnote omitted).

Second, DACA and DAPA are not identical: Eligibility for DACA was

136 Gen. Elec., 290 F.3d at 383; accord McLouth Steel, 838 F.2d at 1321–22 (reviewing

historical conformity as part of determination of whether rule was substantive or non-binding

policy, despite language indicating that it was policy statement); id. at 1321 (“More critically

than EPA’s language [,] . . . its later conduct applying it confirms its binding character.”).

137 The dissent, citing National Mining Ass’n v. McCarthy, 758 F.3d 243, 253 (D.C. Cir.

2014), criticizes the states and the district court for enjoining DAPA without “an early snap-

shot” of its implementation. Dissent at 32. First, the dissent overlooks a fundamental prin-

ciple of preliminary injunctions: An injunction is of no help if one must wait to suffer injury

before the court grants it. United States v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001) (“[T]he

injury need not have been inflicted when application [for the injunction] is made or be certain

to occur[.]”).

Second, the dissent assumes the conclusion of National Mining—that the agency

action in question is not subject to pre-enforcement review—is applicable here and asserts

that we need an “early snapshot” of DAPA enforcement. The two cases are easily distin-

guished. The court found EPA’s “Final Guidance” exempt from pre-enforcement review

because it had “no legal impact.” National Mining, 758 F.3d at 253; see id., at 252 (“The most

important factor concerns the actual legal effect (or lack thereof) of the agency action on

regulated entities. . . . As a legal matter, the Final Guidance is meaningless . . . [and] has

no legal impact.”

DAPA, by contrast, has an effect on regulated entities (i.e. illegal aliens). DAPA

removes a categorical bar to illegal aliens who are receiving state and federal benefits, so it

places a cost on the states. The states are not required to suffer the injury of that legal impact

before seeking an injunction. See id. 252.

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restricted to a younger and less numerous population,138 which suggests that

DACA applicants are less likely to have backgrounds that would warrant a

discretionary denial. Further, the DAPA Memo contains additional discretion-

ary criteria: Applicants must not be “an enforcement priority as reflected in

the [Prioritization Memo]; and [must] present no other factors that, in the exer-

cise of discretion, makes the grant of deferred action inappropriate.” DAPA

Memo at 4. But despite those differences, there are important similarities:

The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for

exercising prosecutorial discretion,” id. (emphasis added), and there was evi-

dence that the DACA application process itself did not allow for discretion,

regardless of the rates of approval and denial.139

Instead of relying solely on the lack of evidence that any DACA appli-

cation had been denied for discretionary reasons, the district court found pre-

text for additional reasons. It observed that “the ‘Operating Procedures’ for

implementation of DACA contains nearly 150 pages of specific instructions for

granting or denying deferred action to applicants” and that “[d]enials are

Approximately 1.2 million illegal aliens are eligible for DACA and 4.3 million for

138

DAPA. Dist. Ct. Op., 86 F. Supp. 3d at 609, 670.

139 Despite these differences and the dissent’s protestations to the contrary (see, e.g.,

Dissent at 34–38), DACA is an apt comparator to DAPA. The district court considered the

DAPA Memo’s plain language, in which the Secretary equates the DACA and DAPA proce-

dure, background checks, fee exemptions, eligibility for work authorizations, durations of

lawful presence and work authorization, and orders DHS to establish, for DAPA, processes

similar to those for DACA:

In order to align the DACA program more closely with the other deferred action

authorization outlined below, . . . I hereby direct USCIS to establish a process,

similar to DACA . . . . There will be no fee waivers, and like DACA . . . . As with

DACA, the above criteria are to be considered for all individuals . . . .

DAPA Memo at 4–5. See Dist. Ct. Op., 86 F. Supp. 3d at 610–11. The district court’s conclu-

sion that DACA and DAPA would be applied similarly, based as it was in part on the mem-

orandum’s plain language, was not clearly erroneous and indeed was not error under any

standard of review.

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recorded in a ‘check the box’ standardized form, for which USCIS personnel are

provided templates. Certain denials of DAPA must be sent to a supervisor for

approval[, and] there is no option for granting DAPA to an individual who does

not meet each criterion.” Dist. Ct. Op., 86 F. Supp. 3d at 669 (footnotes omit-

ted). The finding was also based on the declaration from Palinkas that, as with

DACA, the DAPA application process itself would preclude discretion: “[R]out-

ing DAPA applications through service centers instead of field offices . . . cre-

ated an application process that bypasses traditional in-person investigatory

interviews with trained USCIS adjudications officers” and “prevents officers

from conducting case-by-case investigations, undermines officers’ abilities to

detect fraud and national-security risks, and ensures that applications will be

rubber-stamped.” See id. at 609–10 (citing that declaration).

As the government points out, there was conflicting evidence on the

degree to which DACA allowed for discretion. Donald Neufeld, the Associate

Director for Service Center Operations for USCIS, declared that “deferred

action under DACA is a . . . case-specific process” that “necessarily involves the

exercise of the agency’s discretion,” and he purported to identify several

instances of discretionary denials.140 Although Neufeld stated that approxi-

mately 200,000 requests for additional evidence had been made upon receipt

of DACA applications, the government does not know the number, if any, that

related to discretionary factors rather than the objective criteria. Similarly,

140 The states properly maintain that those denials were not discretionary but instead

were required because of failures to meet DACA’s objective criteria. For example, Neufeld

averred that some discretionary denials occurred because applicants “pose[d] a public safety

risk,” “[were] suspected of gang membership or gang-related activity, had a series of arrests

without convictions” or “ongoing criminal investigations.” As the district court aptly noted,

however, those allegedly discretionary grounds fell squarely within DACA’s objective criteria

because DACA explicitly incorporated the enforcement priorities articulated in the DACA

Operation Instructions and the memorandum styled Policies for Apprehension, Detention,

and Removal of Undocumented Immigrants. Dist. Ct. Op., 86 F. Supp. 3d at 669 n.101.

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the government did not provide the number of cases that service-center offi-

cials referred to field offices for interviews.141

Although the district court did not make a formal credibility determina-

tion or hold an evidentiary hearing on the conflicting statements by Neufeld

and Palinkas, the record indicates that it did not view the Neufeld declaration

as creating a material factual dispute.142 Further, the government did not seek

an evidentiary hearing, nor does it argue on appeal that it was error not to

conduct such a hearing. Reviewing for clear error, we conclude that the states

have established a substantial likelihood that DAPA would not genuinely leave

the agency and its employees free to exercise discretion.

B.

A binding rule is not required to undergo notice and comment if it is one

“of agency organization, procedure, or practice.” § 553(b)(A). “[T]he substan-

tial impact test is the primary means by which [we] look beyond the label ‘pro-

cedural’ to determine whether a rule is of the type Congress thought

appropriate for public participation.”143 “An agency rule that modifies

141 The United States was also given the chance to show that it planned to put DAPA

into effect in a manner different from how it implemented DACA; it failed to take advantage

of that opportunity. Further, after assuring the district court that “[USCIS] does not intend

to entertain requests for deferred action under the challenged policy until February 18, 2015,”

the government later admitted to having approved dozens of DAPA applications and three-

year employment authorization to more than 100,000 aliens satisfying the original DACA

criteria; the government could not demonstrate which applicants, if any, were rejected on

purely discretionary grounds, as distinguished from failure to meet the requirements set

forth in the memoranda.

142After a hearing on the preliminary injunction, the government filed a sur-reply

that included the Neufeld declaration. The government did not seek an evidentiary hearing,

but the states requested one if the “new declarations create a fact dispute of material

consequence to the motion.” No such hearing was held, and the court cited the Palinkas

declaration favorably, e.g., Dist. Ct. Op., 86 F. Supp. 3d at 609–10, 613 n.13, 669 n.101, yet

described other sources as providing insufficient detail, e.g., id. at 669 n.101.

143 U.S. Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984); accord

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substantive rights and interests can only be nominally procedural, and the

exemption for such rules of agency procedure cannot apply.”144 DAPA undoubt-

edly meets that test—conferring lawful presence on 500,000 illegal aliens

residing in Texas forces the state to choose between spending millions of

dollars to subsidize driver’s licenses and amending its statutes.145

The District of Columbia Circuit applies a more intricate test for distin-

guishing between procedural and substantive rules.146 The court first looks at

the “‘effect on those interests ultimately at stake in the agency proceeding.’

Hence, agency rules that impose ‘derivative,’ ‘incidental,’ or ‘mechanical’

burdens upon regulated individuals are considered procedural, rather than

substantive.”147

Further, “a procedural rule generally may not ‘encode [] a substantive

value judgment or put[] a stamp of approval or disapproval on a given type of

STEIN, supra, §15.05[5] (“Procedural and practice rules have been distinguished from sub-

stantive rules by applying the substantial impact test.”).

144 Kast Metals, 744 F.2d at 1153; accord Brown Express, 607 F.2d at 701–03.

145See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir. 1983)

(“[Substantive] rules . . . grant rights, impose obligations, or produce other significant effects

on private interests. They also narrowly constrict the discretion of agency officials by largely

determining the issue addressed.” (omission in original) (quoting Batterton v. Marshall,

648 F.2d 694 (D.C. Cir. 1980))).

146 Compare Kaspar Wire Works, Inc. v. Sec’y of Labor, 268 F.3d 1123, 1132 (D.C. Cir.

2001) (recognizing that the D.C. Circuit “has expressly rejected” “the Fifth Circuit’s ‘substan-

tial impact’ standard for notice and comment requirements”), with City of Arlington v. FCC,

668 F.3d 229, 245 (5th Cir. 2012) (“The purpose of notice-and-comment rulemaking is to

assure fairness and mature consideration of rules having a substantial impact on those reg-

ulated.” (quoting United States v. Johnson, 632 F.3d 912, 931 (5th Cir. 2011))), aff’d on other

grounds, 133 S. Ct. 1863 (2013), and Phillips Petroleum, 22 F.3d at 620 (reaffirming sub-

stantial-impact test announced in Brown Express).

147Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 107 (D.D.C. 2013) (citation omit-

ted) (quoting Neighborhood TV Co. v. FCC, 742 F.2d 629, 637 (D.C. Cir. 1984); Am. Hosp.

Ass’n v. Bowen, 834 F.2d 1037, 1051 (D.C. Cir. 1987)).

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behavior,’”148 but “the fact that the agency’s decision was based on a value

judgment about procedural efficiency does not convert the resulting rule into a

substantive one.”149 “A corollary to this principle is that rules are generally

considered procedural so long as they do not ‘change the substantive standards

by which the [agency] evaluates’ applications which seek a benefit that the

agency has the power to provide.”150

Applying those considerations to DAPA yields the same result as does

our substantial-impact test. Although the burden imposed on Texas is deriv-

ative of conferring lawful presence on beneficiaries, DAPA establishes “‘the

substantive standards by which the [agency] evaluates applications’ which

seek a benefit that the agency [purportedly] has the power to provide”—a criti-

cal fact requiring notice and comment.151

Thus, DAPA is analogous to “the rules [that] changed the substantive

criteria for [evaluating station allotment counter-proposals]” in Reeder v. FCC,

865 F.2d 1298, 1305 (D.C. Cir. 1989) (per curiam), holding that notice and com-

ment was required. In contrast, the court in JEM Broadcasting, 22 F.3d

at 327, observed that “[t]he critical fact here, however, is that the ‘hard look’

rules did not change the substantive standards by which the FCC evaluates

license applications,” such that the rules were procedural. Further, receipt of

DAPA benefits implies a “stamp of approval” from the government and

“encodes a substantive value judgment,” such that the program cannot be

Nat’l Sec. Counselors, 931 F. Supp. 2d at 107 (alterations in original) (quoting Am.

148

Hosp., 834 F.2d at 1047).

149 Id. (quoting James V. Hurson Assocs. v. Glickman, 229 F.3d 277, 282 (D.C. Cir.

2000)).

Id. (alteration in original) (quoting JEM Broad. Co. v. FCC, 22 F.3d 320, 327 (D.C.

150

Cir. 1994)).

151 Id. (first alteration in original) (quoting JEM Broad., 22 F.3d at 327).

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considered procedural. Am. Hosp., 834 F.2d at 1047.

C.

Section 553(a)(2) exempts rules from notice and comment “to the extent

that there is involved . . . a matter relating to . . . public property, loans, grants,

benefits, or contracts.” To avoid “carv[ing] the heart out of the notice provisions

of Section 553”,152 the courts construe the public-benefits exception very nar-

rowly as applying only to agency action that “clearly and directly relate[s] to

‘benefits’ as that word is used in section 553(a)(2).”153

DAPA does not “clearly and directly” relate to public benefits as that

term is used in § 553(a)(2). That subsection suggests that “rulemaking require-

ments for agencies managing benefit programs are . . . voluntarily imposed,”154

but USCIS—the agency tasked with evaluating DAPA applications—is not an

agency managing benefit programs. Persons who meet the DAPA criteria do

not directly receive the kind of public benefit that has been recognized, or was

likely to have been included, under this exception.155

152 Hous. Auth. of Omaha v. U.S. Hous. Auth., 468 F.2d 1, 9 (8th Cir. 1972) (“The

exemptions of matters under Section 553(a)(2) relating to ‘public benefits,’ could conceivably

include virtually every activity of government. However, since an expansive reading of the

exemption clause could easily carve the heart out of the notice provisions of Section 553, it is

fairly obvious that Congress did not intend for the exemptions to be interpreted that

broadly.”).

153 Baylor Univ. Med. Ctr. v. Heckler, 758 F.2d 1052, 1061 (5th Cir. 1985).

154 Alcaraz v. Block, 746 F.2d 593, 611 (9th Cir. 1984).

155 See e.g., Vigil, 508 U.S. at 184, 196 (clinical services provided by Indian Health

Service for handicapped children); Hoerner v. Veterans Admin., No. 88-3052, 1988 WL 97342,

at *1–2 & n.10 (4th Cir. July 8, 1988) (per curiam) (unpublished) (benefits for veterans);

Baylor Univ. Med. Ctr., 758 F.2d at 1058–59 (Medicare reimbursement regulations issued by

Secretary of Health and Human Services); Rodway v. U.S. Dep’t of Agric., 514 F.2d 809, 813

(D.C. Cir. 1975) (food stamp allotment regulations). The Departments of Agriculture, Health

and Human Services, and Labor have waived the exemption for matters relating to public

property, loans, grants, benefits, or contracts. See 29 C.F.R. § 2.7 (Department of Labor);

Public Participation in Rule Making, 36 Fed. Reg. 13,804, 13,804 (July 24, 1971) (Department

of Agriculture); Public Participation in Rule Making, 36 Fed. Reg. 2532, 2532 (Jan. 28, 1971)

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In summary, the states have established a substantial likelihood of suc-

cess on the merits of their procedural claim. We proceed to address whether,

in addition to that likelihood on the merits, the states make the same showing

on their substantive APA claim.156

VII.

A “reviewing court shall . . . hold unlawful and set aside agency action

. . . found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law . . . [or] (C) in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).

Although the district court enjoined DAPA solely on the basis of the procedural

APA claim, “it is an elementary proposition, and the supporting cases too

numerous to cite, that this court may affirm the district court’s judgment on

any grounds supported by the record.”157 Therefore, as an alternate and

additional ground for affirming the injunction, we address this substantive

issue, which was fully briefed in the district court.158

Assuming arguendo that Chevron159 applies,160 we first “ask whether

(Department of Health and Human Services, then known as Health, Education, and Welfare).

156We reiterate that DAPA is much more than a nonenforcement policy, which pre-

sumptively would be committed to agency discretion. Therefore, even where a party has

standing and is within the requisite zone of interests, a traditional nonenforcement policy

would not necessarily be subject to notice and comment just because DAPA must undergo

notice-and-comment review.

157 Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir.

2009) (citation and internal quotation marks omitted).

158 “This circuit follows the rule that alternative holdings are binding precedent and

not obiter dictum.” United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011) (citation and

internal quotation marks omitted). At oral argument, the parties agreed that no further

factual development is needed to resolve the substantive APA challenge.

159 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

160 “[T]he fact that the Agency previously reached its interpretation through means

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Congress has ‘directly addressed the precise question at issue.’” 161 It has.

“Federal governance of immigration and alien status is extensive and com-

plex.” Arizona v. United States, 132 S. Ct. at 2499. The limited ways in which

illegal aliens can lawfully reside in the United States reflect Congress’s con-

cern that “aliens have been applying for and receiving public benefits from

Federal, State, and local governments at increasing rates,” 8 U.S.C. § 1601(3),

and that “[i]t is a compelling government interest to enact new rules for eligi-

bility and sponsorship agreements in order to assure that aliens be self-reliant

in accordance with national immigration policy,” § 1601(5).

In specific and detailed provisions, the INA expressly and carefully pro-

vides legal designations allowing defined classes of aliens to be lawfully

present162 and confers eligibility for “discretionary relief allowing [aliens in

less formal than ‘notice and comment’ rulemaking does not automatically deprive that inter-

pretation of the judicial deference otherwise its due.” Barnhart v. Walton, 535 U.S. 212, 221

(2002) (citation omitted). Instead, we consider factors such as “the interstitial nature of the

legal question, the related expertise of the Agency, the importance of the question to admin-

istration of the statute, the complexity of that administration, and the careful consideration

the Agency has given the question over a long period of time . . . .” Id. We need not decide

whether DHS’s interpretation satisfies that test, however, because, as we explain, the agency

cannot prevail even under Chevron.

Chevron deference requires the courts to accept an agency’s reasonable construction

of a statute as long as it is “not patently inconsistent with the statutory scheme.” Am. Air-

lines, Inc. v. Dep’t of Transp., 202 F.3d 788, 813 (5th Cir. 2000). As explained below, we

decide that, assuming Chevron deference does apply, DAPA is not a reasonable construction

of the INA, because it is “manifestly contrary” to the INA statutory scheme. Mayo Found.

for Med. Educ. & Research v. United States, 562 U.S. 44, 53 (2011).

An agency construction that is manifestly contrary to a statutory scheme could not be

persuasive under the test in Skidmore v. Swift & Co., 323 U.S. 134 (1944), a test that affords

agency constructions less deference than does Chevron. See Gonzales v. Oregon, 546 U.S.

243, 256 (2006) (providing that under Skidmore, an “interpretation is entitled to respect only

to the extent it has the power to persuade”). Therefore, our decision to forego discussion of

the Walton factors is sensible. See Griffon v. U.S. Dep’t of Health & Human Servs., 802 F.2d

146, 148 n.3 (5th Cir. 1986) (noting that where an interpretive rule is unreasonable, “there

is no need to decide whether Chevron or a less exacting standard applies”).

161 Mayo Found., 562 U.S. at 52 (quoting Chevron, 467 U.S. at 842).

162 E.g., lawful-permanent-resident (“LPR”) status, see 8 U.S.C. §§ 1101(a)(20), 1255;

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deportation proceedings] to remain in the country.”163 Congress has also iden-

tified narrow classes of aliens eligible for deferred action, including certain

petitioners for immigration status under the Violence Against Women Act of

1994,164 immediate family members of lawful permanent residents (“LPRs”)

killed by terrorism,165 and immediate family members of LPRs killed in combat

and granted posthumous citizenship.166 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. See DAPA Memo at 4.

Congress has enacted an intricate process for illegal aliens to derive a

lawful immigration classification from their children’s immigration status: In

general, an applicant must (i) have a U.S. citizen child who is at least twenty-

one years old, (ii) leave the United States, (iii) wait ten years, and then

(iv) obtain one of the limited number of family-preference visas from a United

States consulate.167 Although DAPA does not confer the full panoply of benefits

nonimmigrant status, see §§ 1101(a)(15), 1201(a)(1); refugee and asylum status, see

§§ 1101(a)(42), 1157–59, 1231(b)(3); humanitarian parole, see § 1182(d)(5); temporary pro-

tected status, see § 1254a. Cf. §§ 1182(a) (inadmissible aliens), 1227(a)–(b) (deportable

aliens).

163Arizona v. United States, 132 S. Ct. at 2499 (citing 8 U.S.C. §§ 1158 (asylum), 1229b

(cancellation of removal), 1229c (voluntary departure)); see also § 1227(d) (administrative

stays of removal for T- and U-visa applicants (victims of human trafficking, or of various

serious crimes, who assist law enforcement)).

164 Pub. L. No. 103-322, tit. IV, 108 Stat. 1902 (codified as amended in scattered sec-

tions of the U.S. Code). See 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV).

165 USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361.

166 National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136,

§ 1703(c)–(d), 117 Stat. 1392, 1694–95; see also 8 U.S.C. § 1227(d)(2) (specifying that “[t]he

denial of a request for an administrative stay of removal [for T- and U-visa applicants] shall

not preclude the alien from applying for . . . deferred action, or a continuance or abeyance of

removal proceedings under any other provision of the immigration laws . . . .”).

167See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255; see Scialabba v.

Cuellar de Osorio, 134 S. Ct. 2191, 2199 (2014) (recognizing that legal immigration “takes

time—and often a lot of it. . . . After a sponsoring petition is approved but before a visa

application can be filed, a family-sponsored immigrant may stand in line for years—or even

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that a visa gives, DAPA would allow illegal aliens to receive the benefits of

lawful presence solely on account of their children’s immigration status with-

out complying with any of the requirements, enumerated above, that Congress

has deliberately imposed. DAPA requires only that prospective beneficiaries

“have . . . a son or daughter who is a U.S. citizen or lawful permanent

resident”—without regard to the age of the child—and there is no need to leave

the United States or wait ten years168 or obtain a visa.169 Further, the INA

does not contain a family-sponsorship process for parents of an LPR child, 170

but DAPA allows a parent to derive lawful presence from his child’s LPR

status.

The INA authorizes cancellation of removal and adjustment of status if,

inter alia, “the alien has been physically present in the United States for a

continuous period of not less than 10 years immediately preceding the date of

such application” and if “removal would result in exceptional and extremely

unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the

United States or an alien lawfully admitted for permanent residence.”

8 U.S.C. § 1229b(b)(1)(A) (emphasis added). Although LPR status is more sub-

stantial than is lawful presence, § 1229b(b)(1) is the most specific delegation of

authority to the Secretary to change the immigration classification of remova-

ble aliens that meet only the DAPA criteria and do not fit within the specific

decades—just waiting for an immigrant visa to become available.”).

168 Although “[t]he Attorney General has sole discretion to waive [the ten-year reentry

bar] in the case of an immigrant who is the spouse or son or daughter of a United States

citizen or of an alien lawfully admitted for permanent residence, if it is established to the

satisfaction of the Attorney General that the refusal of admission to such immigrant alien

would result in extreme hardship to the citizen or lawfully resident spouse or parent of such

alien,” § 1182(a)(9)(B)(v) (emphasis added), there is no such provision for waiving the reentry

bar for parents of U.S. citizen or LPR children.

169 DAPA Memo at 4.

170 See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1152(a)(4), 1153(a).

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categories set forth in § 1229b(b)(2)–(6).

Instead of a ten-year physical-presence period, DAPA grants lawful pres-

ence to persons who “have continuously resided in the United States since

before January 1, 2010,” and there is no requirement that removal would result

in exceptional and extremely unusual hardship. DAPA Memo at 4. Although

the Secretary has discretion to make immigration decisions based on humani-

tarian grounds, that discretion is conferred only for particular family relation-

ships and specific forms of relief—none of which includes granting lawful pres-

ence, on the basis of a child’s immigration status, to the class of aliens that

would be eligible for DAPA.171

The INA also specifies classes of aliens eligible172 and ineligible173 for

work authorization, including those “eligible for work authorization and

deferred action”―with no mention of the class of persons whom DAPA would

make eligible for work authorization. Congress “‘forcefully’ made combating

the employment of illegal aliens central to ‘[t]he policy of immigration law,’”174

in part by “establishing an extensive ‘employment verification system,’

designed to deny employment to aliens who . . . are not lawfully present in the

171 See, e.g., 8 U.S.C. §§ 1182(a)(9)(B)(v), (C)(iii) (authorizing waiver of reentry bars for

particular classes of inadmissible aliens), 1227(a)(1)(E)(iii) (authorizing waiver of inadmissi-

bility for smuggling by particular classes of aliens).

172 E.g., 8 U.S.C. §§ 1101(i)(2) (human-trafficking victims in lawful-temporary-

resident status pursuant to a T-visa), 1105a(a) (nonimmigrant battered spouses),

1154(a)(1)(K) (grantees of self-petitions under the Violence Against Women Act),

1158(c)(1)(B), (d)(2) (asylum applicants and grantees), 1160(a)(4) (certain agricultural work-

ers in lawful-temporary-resident status), 1184(c)(2)(E), (e)(6) (spouses of L- and E-visa

holders), (p)(3)(B) (certain victims of criminal activity in lawful-temporary-resident status

pursuant to a U visa), 1254a(a)(1)(B) (temporary-protected status holders), 1255a(b)(3)(B)

(temporary-resident status holders).

E.g., 8 U.S.C. §§ 1226(a)(3) (limits on work authorizations for aliens with pending

173

removal proceedings), 1231(a)(7) (limits on work authorizations for aliens ordered removed).

174 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002) (alteration in

original) (quoting INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 194 n.8 (1991)).

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United States.”175

The INA’s careful employment-authorization scheme “protect[s] against

the displacement of workers in the United States,”176 and a “primary purpose

in restricting immigration is to preserve jobs for American workers.”177 DAPA

would dramatically increase the number of aliens eligible for work authoriza-

tion, thereby undermining Congress’s stated goal of closely guarding access to

work authorization and preserving jobs for those lawfully in the country.

DAPA would make 4.3 million otherwise removable aliens eligible for

lawful presence, employment authorization, and associated benefits, and “we

must be guided to a degree by common sense as to the manner in which Con-

gress is likely to delegate a policy decision of such economic and political

magnitude to an administrative agency.”178 DAPA undoubtedly implicates

“question[s] of deep ‘economic and political significance’ that [are] central to

this statutory scheme; had Congress wished to assign that decision to an

agency, it surely would have done so expressly.”179 But assuming arguendo

that Chevron applies and that Congress has not directly addressed the precise

175 Id. (emphasis added) (citation omitted) (quoting 8 U.S.C. § 1324a(a)(1)).

176Nat’l Ctr. for Immigrants’ Rights, 502 U.S. at 194 (quoting Powers and Duties of

Service Officers; Availability of Service Records; Employment Authorization; Excludable or

Deportable Aliens, 48 Fed. Reg. 51,142, 51,142 (Nov. 7, 1983)).

177Id. (quoting Sure-Tan, 467 U.S. at 893); see 8 U.S.C § 1182(a)(5)(A)(i) (listing among

the classes of excludable aliens those who “seek[] to enter the United States for the purpose

of performing skilled or unskilled labor . . . , unless the Secretary of Labor has determined

and certified to the Secretary of State and the Attorney General that—(I) there are not suf-

ficient workers who are able, willing, qualified (or equally qualified in the case of an alien

described in clause (ii)) and available at the time of application for a visa and admission to

the United States and at the place where the alien is to perform such skilled or unskilled

labor, and (II) the employment of such alien will not adversely affect the wages and working

conditions of workers in the United States similarly employed”).

178 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000).

King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quoting Util. Air Regulatory Grp. v.

179

EPA, 134 S. Ct. 2427, 2444 (2014)).

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question at hand, we would still strike down DAPA as an unreasonable inter-

pretation that is “manifestly contrary” to the INA. See Mayo Found.,

562 U.S. at 53.

The dissent, relying on Texas Rural Legal Aid v. Legal Services Corp.,

940 F.2d 685, 694 (D.C. Cir. 1991), theorizes that our analysis is nothing but

an application of the expressio unius est exclusio alterius180 canon of construc-

tion, which the dissent claims is of limited utility in administrative law. Dis-

sent at 46. The dissent’s observation is astray, however, because our statutory

analysis does not hinge on the expressio unius maxim.

Moreover, the Supreme Court and this court have relied on expressio

unius in deciding issues of administrative law. While noting “the limited use-

fulness of the expressio unius doctrine in the administrative context,”181 some

courts have declined to apply it mostly because they find it unhelpful for the

specific statute at issue.182 On other occasions, both our circuit and the

Supreme Court have employed the canon in addressing administrative law. 183

Nor has the District of Columbia Circuit expressly foreclosed use of the canon

on questions of statutory interpretation by agencies.184 Our distinguished

180“A canon of construction holding that to express or include one thing implies the

exclusion of the other, or of the alternative.” BLACK’S LAW DICTIONARY 701 (10th ed. 2014).

181 Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 443–44 (5th Cir. 1999).

182Id. at 444 (concluding, on the basis of other statutory provisions, that “Congress

intended to allow the FCC broad authority to implement this section”).

183 See, e.g., Christensen v. Harris Cnty., 529 U.S. 576, 582–83 (2000) (discussing

expressio unius, and concluding that it does not inform the result, without suggesting that it

has no applicability in administrative law); Rodriguez-Avalos v. Holder, 788 F.3d 444, 451

(5th Cir. 2015) (per curiam) (relying on the expression of a term in one section of the statute

to infer that its absence in another section suggests intent to foreclose its implication in the

latter, even though the statute was subject to interpretation by the Board of Immigration

Appeals).

184 See Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 644 (D.C. Cir. 2000)

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dissenting colleague, in fact, relied on expressio unius to uphold a decision of

the Board of Immigration Appeals, concluding that the Equal Access to Justice

Act did not provide for fee-shifting in proceedings before the Board. See Hodge

v. Dep’t of Justice, 929 F.2d 153, 157 n.11 (5th Cir. 1991) (King, J.).

For the authority to implement DAPA, the government relies in part on

8 U.S.C. § 1324a(h)(3),185 a provision that does not mention lawful presence or

deferred action, and that is listed as a “[m]iscellaneous” definitional provision

expressly limited to § 1324a, a section concerning the “Unlawful employment

of aliens”—an exceedingly unlikely place to find authorization for DAPA.186

Likewise, the broad grants of authority in 6 U.S.C. § 202(5),187 8 U.S.C.

§ 1103(a)(3),188 and 8 U.S.C. § 1103(g)(2)189 cannot reasonably be construed as

(“The Comptroller argues that the expressio unius maxim cannot preclude an otherwise rea-

sonable agency interpretation. This is not entirely correct. True, we have rejected the canon

in some administrative law cases, but only where the logic of the maxim . . . simply did not

hold up in the statutory context. . . . In this case, the two canons upon which we rely [expressio

unius and avoidance of surplusage] inarguably compel our holding that § 24 (Seventh)

unambiguously does not authorize national banks to engage in the general sale of insurance

as ‘incidental’ to ‘the business of banking.’”); see also Ronald M. Levin, The Anatomy of

Chevron: Step Two Reconsidered, 72 CHI.-KENT L. REV.1253, 1280 (1997) (“[P]ost-Chevron

cases have often set aside agency interpretations by drawing upon the full range of

conventional statutory construction techniques at step one. Arguments from statutory struc-

ture and purpose . . . are regularly examined at that step. So are canons of construction.”)

(footnotes omitted).

185“As used in this section, the term ‘unauthorized alien’ means, with respect to the

employment of an alien at a particular time, that the alien is not at that time either (A) an

alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this

chapter or by the Attorney General.”

186See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress, we have

held, 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.”).

“The Secretary . . . shall be responsible for . . . [e]stablishing national immigration

187

enforcement policies and priorities.”

188“[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.”

189 “The Attorney General shall establish such regulations, prescribe such forms of

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assigning “decisions of vast ‘economic and political significance,’”190 such as

DAPA, to an agency.191

The interpretation of those provisions that the Secretary advances would

allow him to grant lawful presence and work authorization to any illegal alien

in the United States—an untenable position in light of the INA’s intricate

system of immigration classifications and employment eligibility. Even with

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.”

190Util. Air, 134 S. Ct. at 2444 (quoting Brown & Williamson, 529 U.S. at 159); accord

id. (“When an agency claims to discover in a long-extant statute an unheralded power to

regulate ‘a significant portion of the American economy,’ we typically greet its announcement

with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to

an agency decisions of vast ‘economic and political significance.’” (citation omitted) (quoting

Brown & Williamson, 529 U.S. at 159)).

191The dissent urges the courts to give DHS leeway to craft rules regarding deferred

action because of the scope of the problem of illegal immigration and the insufficiency of con-

gressional funding. Dissent at 50. That is unpersuasive. “Regardless of how serious the

problem an administrative agency seeks to address, . . . it may not exercise its authority ‘in

a manner that is inconsistent with the administrative structure that Congress enacted into

law.’” Brown & Williamson, 529 U.S. at 125 (quoting ETSI Pipeline Project v. Missouri, 484

U.S. 495, 517 (1988)).

Because we conclude, at Chevron Step One, that Congress has directly addressed

lawful presence and work authorizations through the INA’s unambiguously specific and intri-

cate provisions, we find no reason to allow DHS such leeway. There is no room among those

specific and intricate provisions for the Secretary to “exercise discretion in selecting a differ-

ent threshold” for class-wide grants of lawful presence and work authorization under DAPA.

Util. Air, 134 S. Ct. at 2446 n.8.

We merely apply the ordinary tools of statutory construction to conclude that Con-

gress directly addressed, yet did not authorize, DAPA. See King, 135 S. Ct. at 2483 (noting

that to determine whether Congress has expressed its intent, we “must read the words in

their context and with a view to their place in the overall s

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