Amicus Curiae Brief — United States, et al., Petitioners v. Texas, et al.

No. 22-58

In the

Supreme Court of the United States

UNITED STATES OF AMERICA, ET AL.

Petitioners,

v.

STATES OF TEXAS AND LOUISIANA,

Respondents.

On Writ of Certiorari Before Judgment to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE STATES OF ARIZONA, ALABAMA,

ARKANSAS, GEORGIA, INDIANA, KANSAS,

KENTUCKY, MISSISSIPPI, MISSOURI, MONTANA,

NEBRASKA, OHIO, OKLAHOMA, SOUTH

CAROLINA, UTAH, VIRGINIA, WEST VIRGINIA,

AND WYOMING AS AMICI CURIAE IN SUPPORT

OF RESPONDENTS

MARK BRNOVICH

Attorney General

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

DREW C. ENSIGN

Deputy Solicitor General

Counsel of Record

JAMES K. ROGERS

Senior Litigation Counsel

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

Drew.Ensign@azag.gov

Counsel for Arizona

(Additional Counsel Listed in Inside Cover)

STEVE MARSHALL

Alabama Attorney General

DOUGLAS J. PETERSON

Nebraska Attorney General

LESLIE RUTLEDGE

Arkansas Attorney General

DAVE YOST

Ohio Attorney General

CHRISTOPHER M. CARR

Georgia Attorney General

JOHN M. O’CONNOR

Oklahoma Attorney

General

THEODORE E. ROKITA

Indiana Attorney General

DEREK SCHMIDT

Kansas Attorney General

DANIEL CAMERON

Kentucky Attorney General

LYNN FITCH

Mississippi Attorney

General

ERIC S. SCHMITT

Missouri Attorney General

AUSTIN KNUDSON

Montana Attorney General

ALAN WILSON

South Carolina Attorney

General

SEAN D. REYES

Utah Attorney General

JASON MIYARES

Virginia Attorney General

PATRICK MORRISEY

West Virginia Attorney

General

BRIDGET HILL

Wyoming Attorney General

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................5

I. Texas And Louisiana Have Article III

Standing. ............................................................5

A. DHS’s Arguments Squarely Violate

Massachusetts and New York........................5

B. Standing Requirements Are Doubly Relaxed

Here................................................................8

C. DHS Ignores The Role Of Unfunded Federal

Mandates ..................................................... 12

D. State Standing Is Particularly Vital In The

Immigration Context ................................... 13

E. The States’ Harms Here Are Direct And

Include Sovereign Injury............................. 15

II. The Final Memorandum’s Predecessor

Inflicted Substantial Harms Upon The

States ................................................................ 20

III. The Border Is In Crisis. ................................... 28

IV. DHS’s Arguments Are Belied By Its

Litigation Conduct Elsewhere ......................... 33

CONCLUSION .......................................................... 37

ii

TABLE OF AUTHORITIES

CASES

Alfred L. Snapp & Son, Inc. v. Puerto Rico,

458 U.S. 592 (1982) ................................................ 14

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) ..................................................6

Arizona v. Biden,

40 F.4th 375 (6th Cir. 2022) ............................ 17, 18

Arizona v. DHS,

No. 21-16118 (9th Cir. 2021) ...................................3

Arizona v. DHS,

No. CV-21-186, 2021 WL 2787930 (D. Ariz. June

30, 2021) ......................................... 22, 24, 25, 26, 27

Arizona v. San Francisco,

142 S. Ct. 1926 (2022) ...................................... 33, 36

Arizona v. United States,

567 U.S. 387 (2012) ............................ 1, 2, 13, 14, 16

Biden v. Texas,

142 S. Ct. 2528 (2022) ............................................ 32

California v. Texas,

141 S. Ct. 2104 (2021) ...................................... 10, 11

Checkosky v. SEC,

23 F.3d 452 (D.C. Cir. 1994) .................................. 34

Cream Wipt Food Prods. Co. v. Fed. Sec. Adm’r,

187 F.2d 789 (3d Cir. 1951) ................................... 34

Department of Commerce v. New York,

139 S. Ct. 2551 (2019) ................ 2, 5, 6, 7, 10, 18, 21

DHS v. Regents of the Univ. of Calif.,

140 S. Ct. 1891 (2020) ............................................ 10

iii

TABLE OF AUTHORITIES (continued)

Gregory v. Ashcroft,

501 U.S. 452 (1991) ................................................ 20

Hecht Co. v. Bowles,

321 U.S. 321 (1944) ................................................ 35

Huisha-Huisha v. Gaynor,

No. 21-cv-100 (D.D.C. Aug. 6, 2021) ...................... 29

Johnson v. Guzman Chavez,

141 S. Ct. 2271 (2021) ............................................ 27

Lexmark Int’l, Inc. v. Static Control Components,

Inc.,

572 U.S. 118 (2014) ..................................................6

Louisiana v CDC,

__ F.Supp.3d __, 2022 WL 1604901 (W.D. La. May

20, 2022) ..................................................... 22, 31, 36

Louisiana v. CDC,

2022 WL 3010999 (5th Cir. filed July 25, 2022) ... 36

Louisiana v. CDC,

No. 22-30303, 2022 WL 3919681 (5th Cir. August

24, 2022) ................................................................. 36

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .................................................9

Marbury v. Madison,

5 U.S. 137 (1803) ......................................................4

Massachusetts v. EPA,

549 U.S. 497 (2007) .................... 2, 7, 8, 9, 10, 17, 18

Monsanto Co. v. Geertson Seed Farms,

130 S. Ct. 2743 (2010) ............................................ 35

National Parks Conservation Ass’n v. Semonite,

925 F.3d 500 (D.C. Cir. 2019) ................................ 34

iv

TABLE OF AUTHORITIES (continued)

Nebraska HHS v. HHS,

435 F.3d 326 (D.C. Cir. 2006) ................................ 35

Plyler v. Doe,

457 U.S. 202 (1982) ................................................ 12

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ..................................................9

Texas v. Biden,

40 F.4th 205 (5th Cir. 2022) .............................. 1, 32

Texas v. Biden,

No. 21-cv-67 (N.D. Tex.) ......................................... 32

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) .................................. 10

Trump v. New York,

141 S. Ct. 530 (2020) ........................................ 10, 11

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) .......................................... 14, 15

STATUTES

13 U.S.C. §221 .............................................................6

5 U.S.C. §553 ............................................................. 10

5 U.S.C. §706 ................................................... 4, 33, 35

5 U.S.C. §706(2) ......................................................... 10

8 U.S.C. §1182(d)(5) .................................................. 32

8 U.S.C. §1225(b) ....................................................... 31

8 U.S.C. §1231(a)(1)(A) ............................................. 27

REGULATIONS

42 C.F.R. §440.255 (c) ............................................... 12

v

TABLE OF AUTHORITIES (continued)

OTHER AUTHORITIES

National Institute of Justice, Measuring Recidivism

(Feb. 20, 2008),

https://nij.ojp.gov/topics/articles/measuringrecidivism#statistics .............................................. 28

U.S. Customs and Border Protection, Southwest

Land Border Encounters, available at

https://www.cbp.gov/newsroom/stats/southwestland-border-encounters .......................................... 30

1

INTEREST OF AMICI CURIAE 1

As this Court has previously observed, States “bear[]

many of the consequences of unlawful immigration.”

Arizona v. United States, 567 U.S. 387, 397 (2012). In

the last 20 months, the volume of unlawful

immigration has soared to levels unseen in the United

States in decades—and, quite likely, ever. So too have

the resulting burdens placed on the States.

But the federal government steadfastly refuses to

acknowledge those costs: both in its rulemakings and

its Article III standing arguments. DHS’s refusal to

enforce immigration laws as written—exemplified by

the challenged action here, which reads multiple

“shall”s as mere “may”s—continues to impose

significant costs on the States, including billions of

dollars in new expenses relating to law enforcement,

education, and healthcare programs. Those harms are

exacerbated by DHS’s increasingly brazen disrespect

for the requirements of our nation’s immigration laws

and the APA.

As sovereigns within our federal system of dual

sovereigns, the States also have an important interest

in ensuring that the federal government respects the

rule of law. Indeed, States have “quasi-sovereign

‘interest[s] in the enforcement of immigration law.’”

Texas v. Biden, 40 F.4th 205, 216 n.4 (5th Cir. 2022)

(emphasis added). DHS’s challenged policies here,

however, reflect a corrosive disrespect for both

federalism and the harms it is imposing on States.

Pursuant to Supreme Court Rule 37.6, the Amici States

state that no counsel for any party authored this brief in whole

or in part and that no entity or person, aside from amici curiae,

its members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief.

1

2

SUMMARY OF ARGUMENT

I. Texas and Louisiana easily established Article III

standing under this Court’s precedents, particularly

Department of Commerce v. New York, 139 S. Ct. 2551

(2019) and Massachusetts v. EPA, 549 U.S. 497 (2007).

Indeed, while Respondent States have standing under

ordinary standing standards, those standards are

doubly relaxed here: first because the States assert

procedural injuries and second because they enjoy

“special solicitude” in the standing analysis. And the

States’ harms are both exacerbated and underscored

by the role of unfunded federal mandates, which DHS

largely ignores.

State standing is particularly important in the

immigration context, where this Court has recognized

exceptionally broad preemption of state laws. Because

States cannot protect themselves by enacting laws of

their own, its vital that States at least be able to insist

that the federal Executive comply with federal law.

Otherwise, the States are not separate sovereigns

within our federal system but rather recourse-less

victims whose interests the Executive can lawlessly

harm with impunity.

Texas and Louisiana’s harms here include sovereign

injury, since the “defining characteristic of

sovereignty” is “the power to exclude from the

sovereign’s territory people who have no right to be

there.” Arizona, 567 U.S. at 417 (Scalia, J., concurring

in part and dissenting in part). That sovereign injury

renders untenable the Sixth Circuit’s reasoning that

the States are no different than private parties for

standing purposes, upon which DHS places inordinate

reliance.

3

II.

The effects of the Final Memorandum’s

predecessor, the Interim Guidance, provides powerful

evidence of the substantial reductions on removals

that the Final Memorandum will cause (and has

caused). And it further demonstrates the baseless

nature of DHS’s claim that the Final Memorandum

“does not necessarily mean that fewer noncitizens will

be removed overall.” U.S. Br.8.

The Interim Guidance also demonstrates the

untenable and pretextual nature of DHS’s “limited

resources” reasoning. As the District of Arizona

recognized, the enormous decreases in enforcement

actions had little, if anything, to do with reduced

resources. And DHS’s own official confirmed both that

(1) the “only factor” for the “big drop-off” both in

immigration detainers being issued and in removals

being carried out by DHS from before and after

February 2021 was DHS’s new anti-enforcement

priorities, and (2) that he “ha[d] enough resources to

effect [his] mission” and it was the new policies, rather

than lack of resources, preventing greater numbers of

removals. Excerpts of Record, Arizona v. DHS, No. 2116118 (9th Cir. filed Sept. 1, 2021) (hereinafter,

“Arizona Excerpts”) at 102.

III. The harms to Texas and Louisiana (and Amici

States) are underscored by the unmitigated disaster

that DHS’s new policies have produced at our

southwestern border. This crisis, which DHS’s

unlawful actions have caused, highlights the essential

role for courts to play in reviewing the legality of

DHS’s policies. Contrary to DHS’s suggestion, the

States are not asking federal courts to weigh in on

whether DHS’s actions are wise or unwise policy, but

rather whether they are legal or illegal actions: i.e.,

the Respondent States are asking for federal courts to

4

perform their core competency as it is “emphatically

the province and duty of the judicial department to

say what the law is.” Marbury v. Madison, 5 U.S. 137,

177 (1803).

IV. The weaknesses in DHS’s arguments are

underscored by DHS’s recent tactics in other cases.

While DHS now claims that vacatur is not even a

lawful remedy under the APA, it was perfectly happy

in the Public Charge Rule cases not only to acquiesce

in vacatur but further to exploit the availability of that

remedy to rid itself of an unwanted rule without

complying with notice-and-comment requirements.

DHS’s argument that the APA does not even

authorize vacatur is also utterly bereft of support in

any court of appeals. The circuit courts have been

perfectly clear that, under 5 U.S.C. §706, vacatur is

not only a permissible remedy, but in fact the default

one. Indeed, to the extent that the issue is

meaningfully debated at all, lower court judges have

long doubted whether vacatur can ever lawfully be

withheld, rather than granted. DHS’s contrary

arguments rest on little more than a single law review

article and bad statutory interpretation.

Similarly, DHS’s instant opposition to nationwide

relief is undermine by the fact that it quite recently

acquiesced in the nationwide scope of a preliminary

injunction entered against termination of the Title 42

system of immigration processing that DHS

implements.

5

ARGUMENT

I.

Texas And Louisiana Have Article III

Standing.

Texas and Louisiana plainly have Article III

standing under this Court’s precedents, which DHS’s

arguments contravene.

A.

DHS’s Arguments Squarely

Massachusetts and New York

Violate

As Texas and Louisiana have ably explained, DHS’s

standing arguments squarely violate the standing

precedents of this Court. See Tex. Br.12-23. It is

particularly useful to compare DHS’s instant

arguments with this Court’s most recent state

standing decisions in Massachusetts and New York,

which make plain the flaws in DHS’s arguments. In

both cases, this Court held that a state had

established Article III standing even where the

asserted harms were far more attenuated than here.

This Court could only reverse on standing grounds by

overturning those two decisions—which DHS has not

even asked this Court to do.

In New York, the plaintiff states based their Article

III standing on downstream costs resulting from

factors that “all … turn[ed] on [the states’] expectation

that reinstating a citizenship question will depress

the census response rate.” 139 S. Ct. at 2565. Federal

defendants objected that standing was lacking since

“such harm depends on the independent action of

third parties choosing to violate their legal duty to

respond to the census.” Id. To no avail.

Even though the plaintiff states’ injuries were both

downstream and dependent on third parties violating

the law, this Court unanimously concluded that the

6

states had Article III standing. It was sufficient “that

third parties w[ould] likely react in predictable ways”

and the states could thus rely upon the “predictable

effect of Government action on the decisions of third

parties.” Id. at 2566.

Here there is no need to predict whether Texas and

Louisiana would incur injuries because the district

court has specifically found that they have already

suffered harms, and would continue to suffer them.

J.A. 326-28. But New York’s “predictable effect”

standard is readily satisfied here as well. As the

district court found, and past evidence squarely

supports (infra §II), the “predictable effect” of the

Final Memorandum will be to significantly decrease

the number of enforcement actions, including

removals of deportable noncitizens.

Nor were New York’s asserted injuries only mildly

downstream, but rather more akin to how New

Orleans is downstream of Minneapolis. In New York,

the plaintiff states asserted that the inclusion of a

citizenship ship question on the Census form would

lead to those states losing federal funds. Id. at 2565.

But several things would have to happen first for that

to occur. First, individuals would have to refuse to fill

out the Census—which is a federal crime. 13 U.S.C.

§221. And the criminal actions of third parties often

eliminate proximate cause, Anza v. Ideal Steel Supply

Corp., 547 U.S. 451, 457-58 (2006), but not standing.

Lexmark Int’l, Inc. v. Static Control Components, Inc.,

572 U.S. 118, 134 n.6 (2014) (“Proximate causation is

not a requirement of Article III standing[.]”).

But even non-completion would cause New York and

the other plaintiff states no harm on its own. Second,

Congress or federal agencies would need to adopt

7

funding formulas based on Census data. New York,

139 S. Ct. at 2565. And even then, third, New York

would likely only be harmed if the non-completion

rates were relatively higher in New York than the rest

of the U.S. If, for example, the challenged question

caused completion rates to go down nationally by 10%

but only down 5% in New York, New York would likely

receive more federal funds as a result of its relatively

greater population count. But despite being

downstream of all of those contingencies and

hypothesized third-party law breaking, this Court

still unanimously held that the State had Article III

standing. New York, 139 S. Ct. at 2565.

In contrast, the States’ harms here are far closer to

DHS’s actions, and the illegal actions are those of the

federal government itself, rather relying on those of

third parties allegedly resulting from the federal

government’s legal violations. New York all-but

compels a conclusion that Texas and Louisiana have

standing here.

Similarly, Massachusetts is irreconcilable with

DHS’s arguments. There, Massachusetts had

standing premised on EPA’s non-regulation of carbon

emissions in the transportation sector over the course

of a century, which would allegedly affect

Massachusetts’s coastline in unknowable amounts

and places, in the teeth of international carbon

emissions beyond the scope of any conceivable federal

regulation; moreover, the regulations that EPA would

issue if Massachusetts won were completely unknown

and unknowable (and still not all that clear 15 years

later); but all of that uncertainty did not preclude

Article III standing. 549 U.S. at 521-26.

8

Massachusetts’s injuries were thus not just

downstream of innumerable third parties (e.g.,

drivers’ decisions and preferences, foreign nations’

and corporations’ decisions) and unknown federal

regulations, but also of immense amounts of time. But

Massachusetts’s injuries were nonetheless cognizable

because “U.S. motor-vehicle emissions [would] make a

meaningful

contribution

to

greenhouse

gas

concentrations.” Id. at 525 (emphasis added).

The proposition that vacatur of the Final

Memorandum would not be a “meaningful

contribution” to reducing number of noncitizens

unlawfully present in Texas and Louisiana is fanciful

and directly contrary to the district court’s

unchallenged factual findings. It is also impossible to

reconcile with the overwhelming evidence from the

Final Memorandum’s predecessor policy, whose

provisions were either substantively equivalent or

legally less offensive. See infra §II.

There is thus no defensible way to reconcile DHS’s

standing arguments here with either New York or

Massachusetts. DHS is effectively asking this Court to

overturn those cases, but without even attempting to

argue that they were wrongly decided or addressing

any of the relevant stare decisis factors. DHS’s

standing arguments thus necessarily fail under this

Court’s unchallenged precedents.

B.

Standing Requirements

Relaxed Here

Are

Doubly

Although Texas and Louisiana readily satisfied this

Court’s ordinary Article III standards for standing,

they need not have done so. Instead, those standards

are doubly relaxed here under this Court’s precedents.

9

First Relaxation: Procedural Injuries

Standing is relaxed a first time because the States

are asserting “procedural right[s] to protect [their]

concrete interests.” Lujan v. Defenders of Wildlife, 504

U.S. 555, 572 n.7 (1992). The States can thus assert

their procedural rights under the APA “‘without

meeting all the normal standards for redressability

and immediacy.’” Massachusetts, 549 U.S. at 498

(quoting Lujan, 504 U.S. at 572 n.7).

The example provided in Lujan is particularly

instructive. 504 U.S. at 572 n.7. Just as the damadjacent resident need not actually trace his damconstruction-caused harms through the deficient

environmental analysis, the Respondent States

similarly need not demonstrate that, if DHS

conducted notice-and-comment rulemaking and

promulgated an APA-compliant rule, the result would

be any different. They need only show that the agency

could reach a different result post-compliance. They

have easily done that and more.

Notably, this sharp relaxation as to traceability and

redressability stands in stark contrast to “the

requirement of injury in fact[, which] is a hard floor of

Article III jurisdiction.” Summers v. Earth Island

Inst., 555 U.S. 488, 497 (2009). But the States’

satisfaction of that “hard floor” is not genuinely

disputed here.

DHS appears to deny (at 23) that Texas and

Louisiana have any relevant procedural rights as it

contends that “the INA creates no procedural right for

any third party to challenge immigrationenforcement and related policies.” But that ignores

that the Final Memorandum is a rule subject to the

APA, which very much “creates … procedural rights,”

10

including for Respondents. In particular, the APA

creates rights (1) to notice and comment, 5 U.S.C.

§553, (2) to have their reliance interests considered,

DHS v. Regents of the Univ. of Calif., 140 S. Ct. 1891,

1913 (2020), and (3) not to be subjected to harms

based on reasoning that is arbitrary and capricious. 5

U.S.C. §706(2).

Because the States are asserting their procedural

rights under the APA, the standing requirements of

traceability and redressability are relaxed here.

Second Relaxation: Special Solicitude For

States

Standing requirements are relaxed a second time

because the States are “entitled to special solicitude”

in standing analysis. Massachusetts, 549 U.S. at 520;

accord Texas v. United States, 809 F.3d 134, 159 (5th

Cir. 2015) aff’d by an equally divided court 579 U.S.

547 (2016) (applying Massachusetts’s relaxed “special

solicitude” to conclude that the States’ “causal

connection [wa]s adequate”).

Although unwilling to request that Massachusetts

be overruled, DHS implies (at 24) that it is

nonetheless dead letter because this Court did not

discuss it in California v. Texas, 141 S. Ct. 2104, 21162120 (2021), Trump v. New York, 141 S. Ct. 530, 534537 (2020) (per curiam), and New York, 139 S. Ct. at

2565.

But in the New York, this Court concluded that the

State(s) had standing under ordinary standing

principles, so there was no need to analyze whether

they satisfied the relaxed special-solicitude standard.

139 S. Ct. at 2565-66. And in California, this Court

concluded that the States were without cognizable

11

injury at all. 141 S. Ct. at 2120. Presumably no

amount of relaxation could fix that, as the bar can be

lowered but never reaches the floor itself (which

would be elimination, rather than relaxation, of

standards). And unlike here, California was a purely

substantive challenge in any event. 141 S. Ct. at 2112.

In Trump v. New York, the plaintiff states’ standing

theories were “riddled with contingencies and

speculation that impede judicial review.” 141 S. Ct. at

535. The States’ alleged harms thus rested on “‘no

more than conjecture.’” Id. (citation omitted). Not only

could special solicitude not help the Trump states

overcome all of that uncertainty, but there was also

little benefit to applying it since those uncertainties

would not last long: the parties agreed that “the

dispute w[ould] take a more concrete shape once the

Secretary delivers his [relevant] report,” which was

not far off. Id. And the plaintiff states’ further suffered

from insurmountable ripeness problems too, to which

the application of special solicitude is unsettled. Id. at

535-37.

Here, however, the Final Memorandum has

actually gone into effect, and there is hard data as to

how it actually operated in practice that readily

establishes Texas’s and Louisiana’s standing. That

standing is further supported by the overwhelming

evidence from the Final Memorandum’s predecessor,

which was substantively equivalent, and produced

enormous drops in enforcement actions that leave

nothing to conjecture. Infra §II.

Moreover, DHS does not genuinely deny that Texas

and Louisiana have actual injury. Instead, the United

States just denigrates those injuries with the DOJ’s

usual panoply of pejoratives: such harms are

12

putatively “indirect” (at 7, 13, 15, 23), “incidental” (at

11, 13, 14, 15, 17, 20 n.3), “downstream” (at 35), and

“derivative” (at 7, 12). But all of that could have

been—and was—said in Massachusetts and New York.

And did not carry the day either time.

Because Massachusetts and New York remain good

law, and DHS’s half-hearted attempts to distinguish

them lack merit, the standing requirements are

doubly relaxed here—removing any conceivable doubt

that Texas and Louisiana have established standing.

C.

DHS Ignores The Role Of Unfunded

Federal Mandates

DHS’s arguments also ignore the role of unfunded

federal mandates, which create an unbroken chain of

federal-government-caused injuries. Federal law

requires the States to provide educational and

healthcare services to immigrants regardless of

immigration status. Plyler v. Doe, 457 U.S. 202, 230

(1982); 42 C.F.R. §440.255 (c). Thus, when DHS takes

actions that necessarily and predictably result in

reduced removals, as the district court expressly

found, States are necessarily compelled to spend

additional moneys under unfunded federal mandates.

That easily establishes standing.

Ultimately, the federal government’s position boils

down to this:

(1) We can take actions that are alleged to

violate the APA and substantive

immigration law that will cause

substantial decreases in removals of

noncitizens unlawfully present in the

United

States,

as

reflected

in

13

unchallenged factual findings by the

district court.

(2) We further can mandate that the States

provide free education and healthcare

expenses to those deportable individuals

that otherwise would have been

removed.

(3) We also can—and do—refuse to

compensate the States for these

federally-mandated expenditures.

(4) Although we concede the existence of

these injuries-in-fact for which the Final

Memorandum is a but-for cause, none of

this injury is cognizable and the States

cannot even question whether those

injury-producing actions are lawful.

(5) Because Article III gives us legal

impunity to do this (and take

innumerable other blatantly unlawful

actions).

Thankfully, this is not the law since this Court’s

precedents, such as Massachusetts and New York, are

directly to the contrary. And the contempt for

federalism and the States underlying DHS’s

distortions of standing precedents amply merits this

Court’s decisive rejection.

D.

State Standing Is Particularly Vital In

The Immigration Context

State standing is particularly important in the

context of immigration law. As this Court has

recognized, States “bear[] many of the consequences

of unlawful immigration.” Arizona, 567 U.S. at 397.

14

But unlike many other fields, the States have far

less ability to exercise their traditional sovereign

powers to prevent or mitigate these harms. This Court

has recognized exceptionally broad preemption of

state laws that would otherwise serve to ameliorate

the crushing burdens that the federal government’s

enormous immigration policy failures and legal

abdications have inflicted upon the States. Id. at 416.

Through that broad preemption, the States have been

deprived of one of the most obvious ways that they

could exercise their residual sovereignty to address

the immigration-based harms being imposed upon

them: i.e., pass and enforce laws of their own. See, e.g.,

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.

592, 601 (1982) (recognizing that States have

“sovereign power” to “create and enforce a legal code”).

Because the States cannot enact state laws to protect

themselves from immigration-based harms, it is all

the more essential that the States at least be able to

insist that the federal Executive comply with federal

immigration law. If States can neither pass and

enforce their own laws nor require that the federal

government comply with federal law, the States will

be entirely at the mercy of the whims of the federal

Executive.

That is particularly troubling here as this is

effectively a Youngstown type 3 case: i.e., DHS has

“take[n] measures incompatible with the expressed …

will of Congress,” Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

concurring)—i.e. the “shalls” of 8 U.S.C. §§1226 and

1231. As such, the executive branch’s power is

supposed to be “at its lowest ebb, for then [it] can rely

only upon [the President’s] own constitutional powers

15

minus any constitutional powers of Congress over the

matter.” Id.

But DHS’s arguments turn this venerable

framework on its head: instead of being at its “lowest

ebb,” the President’s/DHS’s power here would

essentially be unbounded since the States would be

powerless to challenge their actions even though the

States have injuries whose factual existence DHS will

not even attempt to deny.

The unconstitutionality of President Truman’s

seizure of the steel mills would have done the owners’

little good if their acknowledged proprietary losses did

not confer Article III standing to challenge the

seizures. The same result should obtain here for

Texas’s and Louisiana’s uncontested pecuniary harms

(and also a fortiori because they are also suffering

sovereign injuries as well, infra §I.E.).

E.

The States’ Harms Here Are Direct And

Include Sovereign Injury

Contrary to DHS’s suggestion (at 7), the harms are

not merely “indirect, derivative effects.” Rather, they

flow directly from DHS’s actions that squarely violate

both the APA and immigration law.

For example, as discussed more below, DHS has

unlawfully refused to deport noncitizen felons with

final orders of removal, which has forced Arizona to

expend about $4,000 per felon per year to place those

convicted criminals on community supervision. Infra

at 24. If DHS had merely followed Congress’s

unequivocal, mandatory command to remove such

aliens with final orders of removal, such costs would

never have been incurred. Connecting the dots from

DHS’s illegal non-removals to the consequently

16

necessary

community

supervision

costs

is

straightforward and lacks any intermediate steps that

might break the causal chain.

DHS’s violations of the APA and immigration laws

are thus the but-for and proximate cause of these lawenforcement-based injuries, the harms are readily

traceable to DHS’s violations, and vacatur of the

DHS’s illegal policy will directly remedy the State’s

resulting harms. Put simply, Texas and Louisiana

readily established Article III standing under this

Court’s traditional precedents even if standing

requirements were not doubly relaxed here. Which

they are. Supra §I.B. Nor are law enforcement costs

the only proprietary harms here: DHS’s unlawful

refusals to enforce immigration laws has caused the

States to incur additional educational and healthcarebased costs, Tex. Br.9—much of which is the result of

unfunded federal mandates. Supra §I.C.

The States’ abundant proprietary harms are not the

only harms at issue, however. DHS’s actions inflict

sovereign injury too.

The “defining characteristic of sovereignty” is “the

power to exclude from the sovereign’s territory people

who have no right to be there.” Arizona, 567 U.S. at

417 (Scalia, J., concurring in part and dissenting in

part). Although federal preemption has prevented

States from enforcing their own laws in this field, that

hardly means that the States lack a sovereign interest

in ensuring that the federal government takes care to

enforce federal law in a manner that would

simultaneously protect their sovereign rights. Where

DHS does so, it vindicates the States’ sovereign

interest in excluding those individuals without any

lawful right to be present within the States’ respective

17

boundaries. Where DHS refuses to do so, however, the

States’ sovereign injury is exacerbated. And when a

State sustains a sovereign injury because of the

federal government’s refusal to act, it has standing to

sue. Massachusetts, 549 at 518-22.

That the harms here include sovereign injuries

renders unsound the reasoning of the Sixth Circuit in

Arizona v. Biden, 40 F.4th 375 (6th Cir. 2022). That

court denigrated other States’ parallel challenge as

involving nothing more than “humdrum” proprietary

injuries, and reasoned that for such injuries the

States were no different “than a person or a business.”

Id. at 386. In its view, the States thus had “no more,

and no less” rights than would a private business in

the same circumstances. Id.

That is untenable. Private businesses, by definition,

cannot suffer sovereign injury. And when private

corporations suffer proprietary injury, that typically

has no consequence beyond diminishing earnings per

share. Harmed though those private businesses might

be, the impact to the public interest will typically be

nil.

In contrast, “States are not normal litigants for the

purposes

of

invoking

federal

jurisdiction,”

Massachusetts, 549 U.S. at 518 (emphasis added).

Indeed, when States suffer financial injuries, those

harms necessarily divert resources away from other

State programs that could otherwise enhance the

welfare of their citizens. For example, lawenforcement resources diverted by DHS’s unlawful

refusals to enforce federal immigration law will

predictably reduce resources available to protect the

States’ citizens from other crimes. And those

diversions will lamentably—but quite predictably—

18

lead to more of the States’ citizens becoming victims

of crime. Likewise, healthcare and education

resources diverted on account of DHS’s legal

transgressions will not be available to educate and

treat the States’ lawful residents.

In a world of limited resources—i.e., ours—actions

that reduce the resources available to States

necessarily cause injuries that are far different in

character from the loss of profits by private

businesses. Such harms are not mere book entries on

a company’s profit-and-loss reports, but instead cause

resource diversions that inexorably harm the States’

residents by hindering one of their elected

government’s ability to serve their needs.

The Sixth Circuit reasoned that the States lacked

standing in Arizona because their injuries were

“‘capable of estimate in money.’” Arizona, 40 F.4th at

386 (quoting Massachusetts, 540 U.S. at 518-19). But

not even DHS appears to believe that. Instead, DHS

is clear that monetary injuries are perfectly sufficient

to establish Article III jurisdiction when States are

challenging “how much federal funding it receives.”

U.S. Br. at 11 (citing New York, 139 S. Ct. at 2565).

Money is fungible, however, and there is thus no

difference in economic substance between losing

federal funds and being forced to expend additional

state funds as a result of illegal federal government

action. Whether, for example, a State loses federal

funds by unlawful federal Executive action that it

would have spent on law enforcement or instead is

forced to spend state law enforcement funds on

actions that would be unnecessary but for unlawful

actions by the federal Executive is a distinction

without a difference. Either way, the State has less to

19

spend on law enforcement, and its citizens will

necessarily suffer the resulting consequences.

Nor did New York actually involve any direct loss of

federal funding. Instead, this Court unanimously held

the plaintiff states had standing, even though their

harms were multiple steps downstream of the

challenged conduct—including being predicated on

the predicted illegal actions of third parties. Supra at

5-7.

Nor can the Sixth Circuit’s “capable of estimate with

money” reasoning withstand scrutiny. Arizona, 40

F.4th at 386. Notably, the Bay State’s alleged injuries

in Massachusetts were the alleged loss of coastal

lands. But land is eminently “capable of estimate with

money”—appraisers literally do that every day. True,

there is also a sovereign component to Massachusetts’

injury in losing lands within its jurisdiction. But so too

is there in the States being compelled to retain within

their sovereign borders individuals with no lawful

right to be there (or anywhere in the U.S.).

On the flipside of the coin, the States’ harms here

are not so easily measurable in money either. If, for

example, the forced diversion of State healthcare

resources causes a diagnosis of treatable cancer in one

of the States’ citizens to be missed, is that resulting

avoidable cancer death readily “capable of estimate

with money”? The Sixth Circuit certainly thought so,

but only by abstracting the injuries and improperly

analogizing the States’ to mere private companies.

More fundamentally, the Sixth Circuit’s States-areno-different-than-private-companies reasoning would

likely be perfectly correct for a unitary state, such as

the United Kingdom or New Zealand. There,

provincial and local governments really are nothing

20

more than artificial legal entities chartered by the

national government and completely subject to that

government’s control.

But that is not our system. Instead, “our

Constitution establishes a system of dual sovereignty

between the States and the Federal Government.”

Gregory v. Ashcroft, 501 U.S. 452, 457

(1991) (emphasis added). For that reason, the States

are distinctly unlike mere “private businesses,” and

instead sovereign entities that are not subject to the

national government’s every whim.

The Sixth Circuit’s standing analysis wrongly

collapses our system of dual sovereignty into a single

sovereign with 50 subjects who lack any legal recourse

against it, at least insofar as Article III is concerned.

But that is neither our system nor this Court’s

jurisprudence.

II.

The Final Memorandum’s Predecessor

Inflicted Substantial Harms Upon The

States

Much of DHS’s arguments is premised on the Final

Memorandum lacking any genuine substantive teeth

and instead providing a set of mere innocuous

suggestions. In DHS’s telling, the Final Memorandum

“simply provide[s] for DHS to prioritize some

individuals over others when allocating its limited

enforcement resources.” U.S. Br.8.

It is nothing of the sort. In truth, the Final

Memorandum prioritizes non-enforcement over

enforcement—even in the teeth of mandatory duties

that divest DHS of the putative discretion that its

“Guidelines” purport to exercise.

21

Similarly, DHS’s suggestion (at 8) that the Final

Memorandum “does not necessarily mean that fewer

noncitizens will be removed overall” is, at best,

unserious. Accepting that proposition would require

this Court “to exhibit a naiveté from which ordinary

citizens are free.’” New York, 139 S. Ct. at 2575

(citation omitted)—as well as to reject specific factual

findings of the district court in the absence of any

argument that they are clearly erroneous. E.g.

J.A.327-28 (“It has also caused, and continues to

cause, increases in the number of criminal aliens and

aliens with final orders of removal released into

Texas.... At trial, the States proved by a

preponderance of the evidence that aliens with

criminal convictions have reacted in specific ways that

harm Texas.”).

The Final Memorandum’s predecessor, typically

known as the “Interim Guidance,” makes the

substantive bite of the Final Memorandum manifest

and removes any conceivable doubt as to the

directional arrow on removal numbers, and history is

repeating itself here.

The Interim Guidance was functionally identical to

the Final Memorandum on review here in most

respects. See JA.314 (“[T]here has been little practical

difference between ICE’s detention of aliens with

criminal

convictions

under

the

February

memorandum and under the Final Memorandum.”).

And the principal differences are likely to produce

even greater reductions in enforcement actions. For

example, unlike the Interim Guidance, aliens that are

“priorities are not presumptively subject to

enforcement action,” and “the Final Memorandum’s

public safety priority no longer presumptively

subjects aliens convicted of aggravated felonies to

22

enforcement action, including detention.” JA.306-07.

The Final Memorandum also creates “an entirely new

avenue of redress” for unauthorized aliens to

challenge enforcement decisions against them as

violating the Final Memorandum, J.A.454-55, which

the Interim Guidance lacked.

Arizona’s experience provides a useful illustration of

the harms that DHS’s anti-enforcement policies are

inflicting. Arizona v. DHS, No. CV-21-186, 2021 WL

2787930, at *6-8 (D. Ariz. June 30, 2021) (same);

accord Louisiana v CDC, __ F.Supp.3d __, 2022 WL

1604901, at *5-6 (W.D. La. May 20, 2022) (discussing

law enforcement, incarceration, and health costs to

Arizona caused by increased immigration). The Final

Memorandum has caused similar harms. See J.A.31820 (incarceration costs); J.A.320-21 (education cots);

J.A. 322-23 (healthcare costs).

The district court in Arizona explained, for example,

that “of 325 individuals who, before February 18th

[i.e., before the Interim Guidance], would have been

put into immigration detention and removed, only

seven have”—or roughly a 98% reduction in removals.

Arizona Excerpts at 89.

Removals also dropped dramatically under the

Interim Guidance (and its predecessor, the 100-day

moratorium). Discovery provided in Arizona showed

the dramatic reduction:

23

Table 1: Removals Before and After Interim

Guidance

Month

Removals

Nov. 2020

5,840

Dec. 2020

5,886

Jan. 2021

5,732

Feb. 2021

3,180

Mar. 2021

3,687

April 2021

1,448

7,000

6,000

Chart 1: Removals Pre- and

Post-Interim Guidance

5,840

5,732

5,886

5,000

3,687

4,000

3,000

3,180

2,000

1,448

1,000

0

Nov. 20

Dec. 20

Jan. 21

Feb. 21

Mar. 21

Apr. 21

The harms to the States that flow directly from

these reduced removals are readily traceable. The

24

district court, for example, specifically found that

“Arizona annually spends $4,163.60 per individual

placed on community supervision [equivalent to

federal supervised release] after they are released

from state prison.” Arizona, 2021 WL 2787930, at *7.

Nor did the district court have any trouble identifying

“individuals on community supervision because ICE

lifted detainers against them as a result of their

failure to meet ICE’s removal priorities under the

Interim Guidance.” Id.; accord J.A.318-19 (equivalent

findings for Respondent States under Final

Memorandum).

Each of those non-removed convicts thus costs

Arizona thousands of dollars a year. And the numbers

involved are substantial: “over 6% of Arizona’s prison

population—2,434 noncitizen inmates—currently

have ICE detainers lodged against them.” Id. But

under the Final Memorandum, most of those

detainers will go unenforced or be dropped entirely.

The district court also had little difficulty in

recognizing DHS’s “limited resources” rationale for

the naked pretext that it was. As Judge Bolton aptly

observed, for aliens who “are already in custody of the

State, then there’s not a lot of resources that have to

be focused on finding those individuals so they can be

removed. All ICE has to do is go pick them up and put

them in detention and then work on their removal if

it’s not a simple matter.” Arizona Excerpts at 87

(emphasis added). Indeed, for those aliens with final

orders of removal that are already in state prisons, it

hardly requires substantial resources to locate them:

they almost literally have no place to run or hide. If

DHS cannot locate detained criminal aliens in their

prison cells, it is not for lack of resources.

25

Nor does removal require much in the way of

resources either. As the Arizona court observed: “in

Arizona, we know that people … can be removed very

quickly and they literally put them on a bus, drive

them to the border, a gate opens on our side and a gate

opens on the other side and they are removed afoot is

what the removal paperwork says.” Arizona Excerpts

at 85 (emphasis added).

Past is prologue here, and the district court

similarly found that the Final Memorandum rests on

pretextual resource shortages; indeed, the district

court went so far as to hold expressly that DHS “has

not acted in good faith.” J.A.358-59. DHS has not

identified any clear error in that specific factual

finding—or acknowledged it at all. It instead

apparently regards acting in bad faith as one of its

sovereign prerogatives that carries no legal

consequence even where that bad faith is uncontested

(and apparently uncontestable). That at least clarifies

the stakes here, particularly as to standing: DHS

asserts the right to injure the States through

uncontested bad faith, and the States in its view lack

even the right to challenge the legal of its bad-faith

actions in federal court.

The district court went on to observe the harmful

effects of the Interim Guidance on removals: “[T]hese

people are not being removed right now [under the

Interim Guidance]. They’re being released into our

communities. And shouldn’t the State of Arizona be

rightfully concerned about removal of individuals who

are being released after being convicted of state

offenses?” Arizona Excerpts at 85. Texas and

Louisiana are also “rightly concerned” too. See, e.g.,

J.A.238 (detainers that DHS dropped “on account of

this new guidance from the Biden Administration”

26

included a criminal alien convicted of “sexual assault

of a child between 14 and 17 years of age”).

The testimony of senior ICE official Albert Carter

confirmed the direct causal effect between DHS’s antienforcement policies and the resulting decreases in

detainers and removals. He testified specifically that

the “only factor” for the “big drop-off” both in

immigration detainers being issued and in removals

being carried out from before and after February 2021

was the new enforcement priorities (there the Interim

Guidance). Arizona, 2021 WL 2787930, ECF No. 79-1

at 18-20 (Deposition of Albert Carter at 81:10-84:5;

87:1-89:11). 2

Director Carter further testified that ICE was

releasing detainers for aliens who did not fit Interim

Guidance priorities, and when detainers are released,

jails have to put felony aliens on supervisory release

or just release them into the community. Id. at 84:614. The same is true of the operation of the Final

Memorandum—whose provisions overwhelmingly

mirror the Interim Guidance (except to the extent that

they are even worse).

Director Carter further confirmed the pretextual

nature of the Interim Guidance’s “limited resources”

rationale: confirming that he “ha[d] enough resources

to effect [his] mission,” and that he “c[ould]n’t think of

anything else” besides “[t]he enforcement priorities

[that] came into effect roughly around the same time”

(i.e., the Interim Guidance) that caused the

Albert Carter is a career law enforcement officer who served as

the Acting ICE Phoenix Filed Office Director from December

2020 to early-May 2021. Arizona, 2021 WL 2787930, ECF No. 791 at 12-13 (Deposition of Albert Carter at 15:20-24; 18:15-19:19).

2

27

substantial decrease in removals. Id. at 74:15-20,

76:10-15.

In truth, what is lacking is not resources, but rather

desire to enforce federal law as actually written.

Indeed, for those aliens with final orders of removal,

Congress could not have been clearer: the federal

government “shall remove the alien from the United

States within a period of 90 days.” 8 U.S.C.

§1231(a)(1)(A) (emphasis added).

Even if the statutory text alone did not itself

eliminate any conceivable doubt that this duty was

mandatory, this Court did just that: “[o]nce an alien is

ordered removed, DHS must physically remove him

from the United States within a 90-day ‘removal

period.’” Johnson v. Guzman Chavez, 141 S. Ct. 2271,

2281 (2021) (emphasis added).

But in a remarkable display of lawlessness or legal

obtuseness, neither Section 1231’s unequivocal text,

nor this Court’s decision unambiguously construing it,

was sufficient to convince DHS of the mandatory

nature of its duties under that provision. It appears

that only a specific court order will do so, making the

district court’s vacatur on review here sadly—but also

badly—necessary.

More generally, the Interim Guidance imposed

direct law enforcement costs and crime-based injuries

due to criminal recidivism committed by removable

criminal aliens that DHS refuses to remove. See, e.g.,

Arizona, 2021 WL 2787930, ECF No. 15-1 at 6-9.

Generally, among released prisoners, 68% are rearrested within 3 years, 79% within 6 years, and 83%

within 9 years. See National Institute of Justice,

Measuring

Recidivism

(Feb.

20,

2008),

28

https://nij.ojp.gov/topics/articles/measuringrecidivism#statistics.

Given those recidivism rates, the release of convicts

into the community resulting from non-removals

under the Final Memorandum makes it virtually

certain that the States will incur additional law

enforcement and incarceration costs, as well as direct

crime-based losses. And while DHS might prefer to

focus on the crime rates committed by migrants

generally, the true effect of the Final Memorandum is

overwhelmingly focused in reducing removals of a

small subset of aliens with felony convictions: those

that have committed serious crimes, such as the

noncitizen who was convicted of “sexual assault of a

child between 14 and 17 years of age,” whose detainer

was rescinded under the Interim Guidance. See

J.A.238. Such criminal aliens with felony convictions

obtain a disproportionate share of the benefits

conferred by the Interim Guidance and Final

Memorandum, and likewise cause a disproportionate

share of the harms to the States.

III.

The Border Is In Crisis.

The challenged Final Memorandum here is part of a

constellation of policies that have intentionally

hobbled immigration enforcement and led to

enormous increases in attempted (and successful)

illegal border crossings. This, in turn, has caused

States extensive harms through increased law

enforcement,

education,

and

health

care

expenditures. When evaluating those harms in

context, it is useful to consider the unprecedented

scale of the current border crisis.

DHS has itself admitted that it is “encountering

record numbers of noncitizens ... at the border,” which

29

“ha[s] strained DHS operations and caused border

facilities to be filled beyond their normal operating

capacity.” Declaration of David Shahoulian (DHS

Assistant Secretary for Border and Immigration

Policy) at 1-2, Huisha-Huisha v. Gaynor, No. 21-cv100, ECF No. 116 (D.D.C. Aug. 6, 2021).

DHS’s own statistics reveal the unprecedented

surge of unlawful migration and the corresponding

collapse of DHS’s operational control of the border. A

year ago, DHS admitted that July 2021 had the

highest number of monthly encounters in decades—

and, very likely, ever (up to that point). Id. at 7

(reporting “the highest monthly encounter number

since Fiscal Year 2000”). “Monthly family encounter

rates have generally been increasing since April 2020,

rising 100-fold from 738 encounters in April 2020 to

over 75,000 in July 2021.” Id. at 9. DHS itself

characterized these summer-2021 numbers as “an

historic surge” and an “influx.” Id. at 3, 6.

That “historic surge” has only gotten worse since

then. U.S. Border Patrol statistics for migrants

illegally crossing the southwestern border show that,

in each month in 2021, alien encounters were

significantly higher than encounters during the same

month in previous years. And, so far, monthly

encounters for all but two months in 2022 was higher

than the unprecedently high numbers of 2021 for the

same months (and for those two months the drop was

tiny).

The most recent DHS data, from September 2022

(reproduced below), illustrates the unprecedented

nature of the crisis. Notably, the number of

encounters in May 2022 with illegal border-crossers—

239,416—was more than ten times the May 2020

30

numbers, and more than 1.5 times the corresponding

number for May 2019.

Source: U.S. Customs and Border Protection,

Southwest Land Border Encounters, available at

https://www.cbp.gov/newsroom/stats/southwest-landborder-encounters.

31

As the Washington Post explained, “Immigration

arrests along the U.S. southern border rose in May to

the highest levels ever recorded.... CBP made 239,416

arrests along the Mexico border last month.... The

agency is on pace to exceed 2 million detentions

during fiscal 2022 ... after tallying a record 1.73

million in 2021.” 3 That prediction was conservative:

the actual number for FY 2022 was nearly 2.4

million—a number never-before-seen in the history of

the United States. If such unprecedented harms do

not confer Article III standing here, the federal

Executive essentially has impunity to inflict wanton

harms upon the States no matter what federal

statutory law commands.

Border encounters with DHS unfortunately only tell

a small part of the story, however. DHS fails to

encounter (i.e., apprehend) most illegal bordercrossers entirely. These so-called “gotaways” comprise

about three-fourths of all border crossers. See

Louisiana, 2022 WL 1604901 at *6 (“[O]nly 27.6% of

undocumented persons crossing the southern border

were apprehended by DHS personnel.”). Thus, the

actual number of crossers may be as much as four

times DHS’s reported encounter numbers (i.e.,

roughly three gotaways for every DHS encounter).

Many of those migrants encountered by DHS are

nonetheless permitted entry into the U.S. Although

most are supposed to be subject to mandatory

detention if they are not immediately removed, see,

e.g., 8 U.S.C. §1225(b), DHS has also circumvented

3 Nick Miroff, U.S. border arrests rose to record high in May, data

shows, THE WASHINGTON POST, June 16, 2022 (emphasis added),

https://www.washingtonpost.com/immigration/2022/06/16/unite

d-states-border-immigration-arrests/.

32

this mandate through abuse of its parole authority

under 8 U.S.C. §1182(d)(5).

As this Court recently observed, parole “authority is

not unbounded: DHS may exercise its discretion to

parole applicants ‘only on a case-by-case basis for

urgent humanitarian reasons or significant public

benefit.’” Biden v. Texas, 142 S. Ct. 2528, 2543 (2022)

(quoting 8 U.S.C. §1182(d)(5)(A)). But DHS has

instead unlawfully been “releas[ing] undocumented

immigrants into the United States en masse” under its

limited parole authority. Texas, 20 F.4th at 996 rev’d

in part 142 S. Ct. 2528 (2022).

Thus, from April to June 2022, DHS paroled

between 54,894 and 91,250 aliens per month. Texas v.

Biden, No. 21-cv-67, ECF Nos. 139 at 3, 140 at 3, and

143 at 3 (N.D. Tex.). These numbers are escalating

rapidly: in March 2022, DHS “only” paroled 36,777.

Id. ECF No. 136. (In contrast, in the prior

administration, the monthly numbers were typically

in the double digits.)

In a nutshell: aliens are unlawfully crossing the

southwestern border in historically unprecedented

numbers. Most—roughly ¾—elude DHS entirely. And

for that small portion that does not slip through

DHS’s fingers entirely, the agency unlawfully paroles

many of them into the U.S. rather than detaining

them. For the vast majority of migrants unlawfully

entering the United States, actual enforcement of U.S.

immigration laws by DHS is thus the rare exception,

rather than the rule.

33

IV.

DHS’s Arguments Are Belied

Litigation Conduct Elsewhere

By

Its

Finally, it is worth noting how irreconcilable many

of DHS’s instant contentions are with its recent

litigation tactics in other cases.

For example, DHS now argues (at 39-44) that

vacatur is not a lawful remedy for an APA violation—

notwithstanding section 706’s command that “review

court[s] shall … hold unlawful and set aside agency

action” that violates the APA. 5 U.S.C. §706. But in

the Public Charge Rule cases, DHS not only

acquiesced in a nationwide vacatur, but affirmatively

exploited it. Indeed, DHS did so “with military

precision to effect the removal of the issue from [this

Court’s] docket and to sidestep notice-and-comment

rulemaking” for repealing the unwanted rule.

Transcript, 4 Arizona v. San Francisco, 142 S. Ct.

1926, 45-46 (2022) (Alito, J.); see also id. at 48 (“The

real issue to me is the evasion of notice-and-comment.

And, I mean, basically, the government bought itself

a bunch of time [through the acquiesced-in vacatur]

where the rule was not in effect.”) (Kagan, J.).

But now that vacatur is no longer particularly useful

for dispensing with unwanted rules of the prior

administration, DHS has executed a 180-degree volte

face, again with “military precision.” The vacatur that

it happily accepted without protest or appeal in the

Public Charge Rule cases is now apparently

categorically unlawful—not merely disfavored, but

completely beyond the power of Article III courts.

If accepted, DHS’s position would effectuate a

revolution in administrative law. As far back as 1951,

4

Available at https://bit.ly/3VDDOfZ.

34

the courts of appeals have recognized that §706

“affirmatively provides for vacation of agency action.”

Cream Wipt Food Prods. Co. v. Fed. Sec. Adm’r, 187

F.2d 789, 790 (3d Cir. 1951).

Indeed, the lower courts have long held that vacatur

is not only a permissible remedy in APA cases, but in

fact “the default remedy to correct defective agency

action.” National Parks Conservation Ass’n v.

Semonite, 925 F.3d 500, 501 (D.C. Cir. 2019)

(emphasis added). 5 Indeed, debates in the lower

courts long centered on whether it is ever lawful to

withhold vacatur—not whether vacatur is itself

unlawful in all APA suits. See, e.g., Checkosky v. SEC,

23 F.3d 452, 490 (D.C. Cir. 1994) (Randolph, J.,

dissenting) (explaining that remand without vacatur

“rests on thin air” and that “the controlling statute—

5 U.S.C. §706(2)(A)—flatly prohibits it”).

Notably, DHS does not cite a single court of appeals

that has ever accepted its instant argument. See U.S.

Br.40-44. The consensus of the lower courts here is

thus overwhelming, and this splitless question does

not require or warrant this Court’s review now.

Resolution of that question can and should wait for at

least one circuit court to accept DHS’s instant

argument (should that day ever arrive).

In any event, there is a reason that seemingly every

court of appeals has held that vacatur is at least an

allowable remedy under the APA. Even without

looking to Section 706, federal courts have their

traditional equitable authority in shaping remedies in

APA cases. See, e.g., Monsanto Co. v. Geertson Seed

Accord Data Mktg. P’ship, LP v. U.S. Dep’t of Labor, 45 F.4th

846, 859 (5th Cir. 2022); Idaho Farm Bureau Fed’n v. Babbitt, 58

F.3d 1392, 1405 (9th Cir. 1995).

5

35

Farms, 130 S. Ct. 2743, 156-58 (2010) (explaining that

traditional equitable tests apply for case asserted

under APA); Hecht Co. v. Bowles, 321 U.S. 321, 322,

329-30 (1944) (holding that even mandatory language

providing that an “injunction … shall be granted”

upon finding of a violation was insufficient to

effectuate a “departure from traditional equity

practice”). And vacatur is one such equitable remedy.

See, e.g., Nebraska HHS v. HHS, 435 F.3d 326, 330

(D.C. Cir. 2006).

Section 706 confirms—and certainly does not

displace—district courts’ equitable authority to vacate

agency action that violates the APA. On its face it

commands—not just permits, but mandates—that

“reviewing court[s] shall … set aside agency action”

that violates the APA. 5 U.S.C. §706 (emphasis

added). That “shall” is the reason why the truly hard

question in the lower courts has been whether remand

without vacatur is ever permissible, rather than

whether vacatur is authorized. Supra at 34-35.

But whether “shall” in §706 actually means “must”

or “may,” the one thing it cannot possibly mean is

“shall never”—which is DHS’s position here. That is

simply untenable, both as a matter of text or equitable

tradition. Hecht, 321 U.S. at 329-30. Moreover, it is

difficult to understand what “set aside agency action”

could mean other than to “vacate” it. It certainly is not

the evisceration of federal courts’ remedial equitable

authority that DHS believes it to be.

DHS also rewrites recent history by contending that

the nationwide scope of the vacatur is unlawful. But

in a pending, quite-recent 24-state challenge to the

attempted termination of CDC’s Title 42 system, DHS

and CDC refused to dispute that the appropriate

36

scope of injunctive relief was nationwide, rather than

being limited to the plaintiff states. See Louisiana,

2022 WL 1604901 at *23 (DHS and CDC “do not

appear to contest the entry of a nation-wide

preliminary injunction”).

Indeed, DHS/CDC went so far as to oppose the

intervention of a party seeking a more limited

injunction, with an eye towards ensuring that, if any

injunction was affirmed against it, that injunction

would continue to be nationwide in scope. See

generally Brief for Federal Appellants, Louisiana v.

CDC, No. 22-30303, 2022 WL 3919681 (5th Cir.

August 24, 2022) (reiterating opposition, first made in

district court on May 12, to attempted intervention by

group that sought to argue that “the geographic scope

of any relief should not extend nationwide”). And DHS

did so just a few short months after the United States

expressly told this Court that it has “pretty

consistently” “argued that the district courts lack the

power to issue nationwide injunctions.” Transcript,

Arizona v. San Francisco, at 71.

“Pretty consistently” apparently does not include

one of the other biggest immigration cases in the

United States this year, in which the Solicitor General

authorized DHS’s/CDC’s appeal but apparently saw

no error or abuse of discretion in the nationwide

injunction worth raising. See generally Brief for

Federal Appellants, Louisiana v. CDC, 2022 WL

3010999 (5th Cir. filed July 25, 2022) (acknowledging

that district court entered “nationwide relief” and

advancing no challenge to nationwide scope). DHS’s

quite-recent willingness to acquiesce in the

nationwide scope of injunctive relief in Louisiana v.

CDC betrays the United States’ apparent lack of

conviction in its instant arguments.

37

CONCLUSION

This Court should hold that Texas and Louisiana

have standing to challenge the Final Memorandum

and affirm the district court’s judgment on the merits.

October 25, 2022

Respectfully submitted,

MARK BRNOVICH

Attorney General

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

DREW C. ENSIGN

Deputy Solicitor General

Counsel of Record

JAMES K. ROGERS

Senior Litigation Counsel

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

Drew.Ensign@azag.gov

Counsel for Arizona

STEVE MARSHALL

Alabama Attorney General

THEODORE E. ROKITA

Indiana Attorney General

LESLIE RUTLEDGE

Arkansas Attorney General

DEREK SCHMIDT

Kansas Attorney General

CHRISTOPHER M. CARR

Georgia Attorney General

DANIEL CAMERON

Kentucky Attorney General

LYNN FITCH

Mississippi Attorney

General

ERIC S. SCHMITT

Missouri Attorney General

38

AUSTIN KNUDSON

Montana Attorney General

SEAN D. REYES

Utah Attorney General

DOUGLAS J. PETERSON

JASON MIYARES

Nebraska Attorney General Virginia Attorney General

DAVE YOST

Ohio Attorney General

JOHN M. O’CONNOR

Oklahoma Attorney

General

ALAN WILSON

South Carolina Attorney

General

PATRICK MORRISEY

West Virginia Attorney

General

BRIDGET HILL

Wyoming Attorney General