Appendix — United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674)

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wi the Supreme Court of the Gnited States

UNITED STATES 0¥ AMERICA, ET AL., PETITIONERS

vz.

STATE OF TEXAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

BENJAMIN C. MIZER

Principal D Assistant

Attorney

EDWIN S. KNEEDLER

Deputy Solicitor General

BETH S. BRINKMANN

— Assistant Attorney

eneral

ZACHARY D. TRIPP

Assistant to the Solicitor

General

DOUGLAS N. LETTER

Scott R. McINTOSH

JEFFREY CLAIR

WILLIAM E. HAVEMANN

E. BUNNELL Attorneys

Department of Justice

of Washington, D.C. 20530-0001

Security SupremeCtB riefs@usdoj.gov

D.C. 20528 (202) 514-2217

TABLE OF CONTENTS

Page

Appendix A — Court of appeals decision

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Appendix B — Court of appeals decision denying

motion for stay (May 26, 2015) ................ 16a

Appendix C — District court decision

I accent dintiadnccinnsin 244a

Appendix D — District Court preliminary injunction

order (Feb. 16, 2015)..........0......sccessseseeeees 407a

Appendix E — Memorandum from the Secretary of

Homeland Security, Exercising Prose-

cutorial Discretion with Respect to Indi-

viduals Who Came to the United States

as Children and with Respect to Certain

Individuals Who Are the Parents of U.S.

Citizens or Permanent Residents

REESE a 4ila

Appendix F —- Memorandum from the Secretary of

Homeland Security, Policies for the

Apprehension, Detention and Removal

of Undocumented Immigrants

8 EES Ae 420a

Appendix G — Pertinent statutory and regulatory

I cnenitrcenenetiinenccnacitiattnttantaiiinneteenrtets 430a

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40238

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 NEVDA;

STATE OF TENNESSEE, PLAINTIFFS-APPELLEES

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

[Filed: Nov. 9, 2015)

Appeal from the United States District Court for the

Southern District of Texas

(la)

Before: KING, SMITH, and ELROD, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The United States’ appeals a preliminary injunction,

pending trial, forbidding implementation of the Deferred

Action for Parents of Americans and Lawful Permanent

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

“states”*) challenged DAPA under the Administrative

Procedure Act (“APA”) and the Take Care Clause of the

Constitution;’® in an impressive and thorough Memoran-

dum 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).*

The government appealed and moved to stay the in-

junction pending resolution of the merits. After exten-

sive 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). Re-

viewing the district court’s order for abuse of discretion,

' This opinion refers to the defendants collectively as “the United

States” or “the government” unless otherwise indicated.

* We refer to the plaintiffs collectively as “the states,” but as ap-

propriate we refer only to Texas because it is the only state that the

district court determined to have standing.

* We find it unnecessary, at this early stage of the proceedings, to

address or decide the challenge based on the Take Care Clause.

* We cite the district court's opinion as “Dist. Ct. Op., 86 F. Supp.

3dat__—.”

we affirm the preliminary injunction because the states

have standing; they have established a substantial likeli-

hood of success on the merits of their procedural and

substantive APA claims; and they have satisfied the other

elements required for an injunction.°

In June 2012, the Department of Homeland Security

(“DHS”) implemented the Deferred Action for Childhood

Arrivals program (“DACA”).° In the DACA Memo to

agency heads, the DHS Secretary “set{] forth how, in the

exercise of ... prosecutorial discretion, [DHS] should

enforce the Nation’s immigration laws against certain

young people” and listed five “criteria [that] should be sa-

tisfied before an individual is considered for an exercise of

prosecutorial discretion.”’ The Secretary further in-

° Our dedicated colleague has penned a careful dissent, with which

we largely but respectfully disagree. It is well-researched, how-

ever, and bears a careful read.

® Memorandum from Janet Napolitano, Sec'y, Dep’t of Home-

land Sec., to David Aguilar, Acting Comm’r, U.S. Customs and

Border Prot., et al. 1 (June 15, 2012) (the “DACA Memo”), http://

wv w.dhs.gov/xlibrary/assets/s 1-exercising-prosecutorial-discretion-

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

’ Jd. (stating that an individual may be considered ‘f 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

currently in school, has graduated from high school, has obtained a

general education development certificate, or is an honorably dis-

charged veteran of the [military]; [4] has not been convicted of a

felony offense, a significant misdemeanor offense, rnultiple misde-

structed that “[nJo 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.”” Although stating that “[flor indi-

viduals who are granted deferred action ... , [U.S.

Citizenship and Immigration Services (“USCIS”)] shall

accept applications to determine whether these individu-

als qualify for work authorization,” the DACA Memo

purported to “confer[] no substantive right, immigration

status or pathway to citizenship.”” At least 1.2 million

persons qualify for DACA, and approximately 636,000

applications were approved through 2014. 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 program” and extending “(t]he

period for which DACA and the accompanying employ-

ment authorization is granted ... to three-year incre-

ments, rather than the current two-year increments.”

meanor offenses, or otherwise poses a threat to national security or

public safety; and [5) is not above the age of thirty”).

* Id. at 2.

* Id. at 3.

'’ Memorandum 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.

'"' Jd. 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

The Secretary also “direct(ed) USCIS to establish a

process, similar to DACA,” known as DAPA, which ap-

plies 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.’

The Secretary stated that, although “[djeferred action

does not confer any form of legal status in this country,

much less citizenship[,] it [does] mean[] that, for a speci-

fied period of time, an individual is permitted to be law-

fully present in the United States.”” Of the approxi-

mately 11.3 million illegal aliens‘ in the United States,

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.

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

January 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 Memoran-

dum; and [6] present no other factors that, in the exercise of dis-

cretion, makes the grant of deferred action inappropriate”).

> Id. at 2 (emphasis added).

“ Although “[a]s a general rule, it is not a crime for a removable

alien to remain 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

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 re-

main 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." But as the

alien. The other forms have arisen as needless euphemisms, and

should be avoided as near-gobbledygook. The problem with un-

documented 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 “unac-

counted 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. /llegal 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) (citations 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)). “/IJlegal 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).

‘6 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 “[iJt is a com-

government admits in its opening brief, persons granted

lawful presence pursuant to DAPA are no longer

“bar[red) ... from receiving social security retirement

benefits, social -security disability benefits, or health

insurance under Part A of the Medicare program.” “

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 At-

torney General ... .” (emphasis added). A lawfully

present alien is still required to satisfy independent qual-

ification 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 pursu-

ant to the [DAPA] criteria ... shall also be eligible to

apply for work authorization for the [renewable 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

pelling government interest to remove the incentive for illegal im-

migration 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 “[sJelf-sufficiency has been a basic

principle of United States immigration law since this country’s ear-

liest immigration statutes.” /d.

'6 Brief for Appellants at 48-49 (citing 8 U.S.C. § 1611(b)(2)-(3)).

approximately three years of the year in which the wages

were earned or in limited circumstances thereafter.”"’

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.””

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

subsection (a),” § 1621(d), Texas has chosen not to issue

driver’s licenses to unlawfully present aliens.’ 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 “{bJene-

fits are not payable based on services performed by an

alien unless the alien ... was lawfully present for

purposes of performing the services ... .”” Texas

' 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)).

* 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).

'’ TEX. TRANSP. CODE § 521.142(a) (“An applicant who is not a ci-

tizen of the United States must present ... documentation issued

by the appropriate United States agency that authorizes the appli-

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

driver’s license.” (emphasis added)).

” TEX. LAB. CODE § 207.043(a)(2) (emphasis added); see also 26

U.S.C. § 3304(a)(14)(A) (approval of state laws making compensa-

contends that DAPA recipients would also become eligi-

ble for unemployment insurance.

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 imple-

ment the program even if it followed the correct rule-

making process, such that DAPA was substantively un-

lawful 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. Alterna-

tively, the court relied on a new theory it called “abdica-

tion standing”: Texas had standing because the United

States has exclusive authority over immigration but has

refused to act in that area. /d. 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 suf-

fers generally from illegal immigration. /d. at 625-36.

tion not payable to aliens unless they are “lawfully present for pur-

poses of performing such services” (emphasis added)).

10a

The court temporarily enjoined DAPA’s implementa-

tion after determining that Texas had shown a substantial

likelihood of success on its claim that the program must

undergo notice and comment. /d. at 677. Despite full

briefing, the court did not rule on the “Plaintiffs’ like-

lihood of success on their substantive APA claim or

their constitutional claims under the Take Care Clause/

separation of powers doctrine.” Jd. On appeal, the

United States maintains that the states do not have

standing or a right to judicial review and, alternatively,

that DAPA is exempt from the notice-and-comment re-

quirements. The government also contends that the in-

junction, including its nationwide scope, is improper as a

matter of law.

“We review a preliminary injunction for abuse of

discretion.”” A preliminary 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 in-

junction 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 in-

terest.[™]

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

injunction analysis ... findings of fact are subject to a

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

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

2009)).

lla

clearly-erroneous standard of review, while conclusions of

law are subject to broad review and will be reversed if

incorrect.”

ITI.

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,”

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.” /d. at

1147 (citation omitted). “When a litigant is vested with a

procedural right, that litigant has standing if there is

*% 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, we concluded that neither the State of

Mississippi nor Immigration and Customs Enforcement (“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 for-

ward three new arguments in support of its standing, [including]

(1) the cost of issuing driver’s licenses to DACA'’s beneficiaries

... « Because Mississippi failed to provide evidentiary support

on these arguments and failed to make these arguments in their

opening brief on appeal and below, they have been waived.

Td. at 252 n.34.

12a

some possibility that the requested relief will prompt the

injury-causing party to reconsider the decision that al-

legedly harmed the litigant.” Massachusetts v. EPA, 549

U.S. 497, 518 (2007). “(T]Jhe 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).

We begin by considering whether the states are enti-

tled to “special solicitude” 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.” Jd. at 518.”

The Court identified two additional considerations

that entitled Massachusetts “to special solicitude in [the

Court’s] standing analysis.” Jd. at 520.” First, the

*” 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 defendants as the “gov-

ernment”). See Dissent, passim.

* The dissent attempts to diminish the considerable significance

of the “special solicitude” language, which, to say the least, is incon-

venient to the United States in its effort to defeat standing. The

13a

Clean Air Act created a procedural right to challenge the

EPA’s decision:

The parties’ dispute turns on the proper construc-

tion of a congressional statute, a question eminently

suitable to resolution in federal court. Congress has

moreover authorized this type of challenge to EPA ac-

tion. That authorization is of critical importance to

the standing inquiry: “Congress has the power to de-

fine injuries and articulate chains of causation that will

give rise to a case or controversy where none existed

before.” “In exercising this power, however, Con-

gress must at the very least identify the injury it seeks

to vindicate and relate the injury to the class of per-

sons entitled to bring suit.” We will not, therefore,

“entertain citizen suits to vindicate the public’s non-

concrete interest in the proper administration of the

laws.”[*"]

Second, the EPA’s decision affected Massachusetts’s

“quasi-sovereign” interest in its territory:

When a State enters the Union, it surrenders cer-

dissent protests that it is “only a single, isolated phrase” that “ap-

pears only once.” Dissent at 9.

The dissent, however, avoids mention of the Court’s explanation

that “[i}t is of considerable 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 jand} of

itself, helps confer standing.” Dissent at 9.

™! Massachusetts v. EPA, 549 U.S. at 516-17 (citations omitted).

l4a

tain sovereign prerogatives. Massachusetts cannot

invade Rhode Island to force reductions 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 Government, 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 mo-

tor 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.”[”]

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 addi-

tional factors are present. First, “(t]he parties’ dispute

turns on the proper construction of a congressional stat-

ute,”” the APA, which authorizes challenges to “final

agency action for which there is no other adequate rem-

edy in a court.” 5 U.S.C. § 704. Similarly, the disagree-

ment in Massachusetts v. EPA concerned the interpreta-

tion of the Clean Air Act, which provides for judicial re-

view of “final action taken[] by the Administrator.” 42

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

states are within the zone of interests of the Immigration

* Jd. at 519-20 (alteration in original) (citation omitted) (quoting

42 U.S.C. § 7521(a)(1)).

” Id. at 516.

15a

and Nationality Act (“INA”);” they are not asking us to

“entertain citizen suits to vindicate the public’s noncon-

crete interest in the proper administration of the laws.”

In enacting the APA, Congress intended for those

“suffering legal wrong because of agency action” to have

judicial recourse,” and the states fall well within that

definition.“ 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 pro-

cedural right to challenge EPA decisions created by the

Clean Air Act provided important support to Massachu-

setts because the challenge Massachusetts sought to

bring—a challenge to an agency’s decision not to act-—is

traditionally the type for which it is most difficult to

establish standing and a justiciable issue.“ Texas, by

contrast, challenges DHS’s affirmative decision to set

guidelines for granting lawful presence to a broad class of

illegal aliens. Because the states here challenge DHS’s

decision to act, rather than its decision to remain inactive,

*® See infra part IV.

" Massachusetts v. EPA, 549 U.S. at 516-17 (citation omitted).

® 5 U.S.C. § 702.

*® See New Mezico ex rel. Richardson v. Bureau of Land Mgmt.,

565 F.3d 683, 694, 696 n.13 (10th Cir. 2009) (holding that New Mex-

ico 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 en-

titled to special solicitude where its only claim was based on the

APA).

“ See Heckler v. Chaney, 470 U.S. 821, 831 (observing that “re-

fusals to take enforcement steps” generally are subject to agency

discretion, and the “presumption is that judicial review is not

available.”).

l6a

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 causal chain is es-

pecially direct: DAPA would enable beneficiaries to

apply for driver’s licenses, and many would do so, result-

ing 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.”

“(States have a sovereign interest in ‘the power to create

and enforce a legal code.’”™ Pursuant to that interest,

states may have standing based on (1) federal assertions

of authority to regulate matters they believe they con-

trol,” (2) federal preemption of state law,” and (3) fed-

® See, e.g., TEX. TRANSP. CODE § 521.142(a) (specifying the re-

quirements for licenses), .181 (providing for the issuance of licens-

es), .421(a) (setting the fees for licenses); Dist. Ct. Op., 86 F. Supp.

3d at 616-17 (finding that Texas subsidizes its licenses).

* 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)).

See id.

* See, e.g., Crank, 589 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. Cele-

brezze 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).

17a

eral interference with the enforcement of state law,” at

least where “the state statute at issue regulate[s} behav-

ior or provide[s} for the administration of a state pro-

gram” “’ and does not “simply purport{) to immunize

[state] citizens from federal law.”*' Those intrusions are

analogous to pressure to change state law.“

Moreover, these plaintiff states’ interests are like

Massachusetts’s in ways that implicate the same sover-

eignty concerns. When the states joined the union, they

surrendered some of their sovereign prerogatives over

immigration.“ They cannot establish their own classifi-

cations of aliens,“ just as “Massachusetts cannot invade

Rhode Island to force reductions in greenhouse gas

emissions [and] cannot negotiate an emissions treaty with

China or India.”* The states may not be able to dis-

criminate against subsets of aliens in their driver’s license

programs without running afoul of preemption or the

*® 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 contin-

ued enforceability of its own statutes”).

® Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th

Cir. 2011).

" Jd. at 270.

entitled to “special solicitude” where its asserted injury was inter-

ference with the enforcement of state law).

“ See Villas at Parkside Partners v. City of Farmers Branch, 726

F.3d 524, 536 (5th Cir. 2013) (en banc).

18a

Equal Protection Clause;“ similarly, “in some circum-

stances[, Massachusetts’s] exercise of its police powers to

reduce in-state motor-vehicle emissions might well be

pre-empted.”*’ Both these plaintiff states and Massa-

chusetts now rely on the federal government to protect

their interests.“ These parallels confirm that DAPA

* affects the states’ “quasi-sovereign” interests.

The significant opinion in Arizona State Legislature

v. Arizona Independent Redistricting Commission, 135

S. Ct. 2652 (2015), announced shortly before oral argu-

ment herein, reinforces that conclusion. The Court held

that the Arizona Legislature had standing to sue in re-

sponse to a ballot initiative that removed its redistricting

authority and vested it instead in an independent com-

mission. /d. at 2665-66. The Court emphasized that the

legislature was “an institutional plaintiff asserting an

institutional injury” to what it believed was its constitu-

tional power to regulate elections. Jd. at 2664. So too

are the states asserting institutional injury to their law-

making 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.” /d. 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 challenge decisions to

“ The 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.

‘7 Massachusetts v. EPA, 549 U.S. at 519.

* See id.

19a

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

the cases the government cites for that proposition either

did not involve standing;*”’ concerned only nonprosecution

(as distinguished- from both nonprosecution and the con-

ferral of benefits);” or merely reaffirmed that a plaintiff

must satisfy the standing requirements.”

The second presumption is against justiciability in the

immigration context. None of the cases the government

cites involved standing™ and include only general lan-

guage about the government’s authority over immigra-

tion; without a specific discussion of standing, they are of

limited relevance.”

The third presumption is that “(t]he [Supreme]

Court’s standing analysis ... has been ‘especially rig-

orous when reaching the merits of the dispute would force

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

the other two branches of the Federal Government was

® See Chaney, 470 U.S. at 823; United States v. Cox, 342 F.2d 167,

170 (5th Cir. 1965) (en banc).

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

" See Henderson v. Stalder, 287 F.3d 374, 384 (5th Cir. 2002)

(Jones, J., concurring).

® See 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).

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

20a

unconstitutional.’”™ We decide this appeal, however,

without resolving the constitutional claim.

Therefore, the states are entitled to “special solici-

tude” in the standing inquiry. We stress that our deci-

sion 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 pres-

sure to change state law may not be enough—by itself—in

other situations.

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 Public 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.” Jd. § 521.142(a).

If permitted to go into effect, DAPA would enable at

least 500,000 illegal aliens in ‘f[exas™ to satisfy that re-

quirement with proof of lawful presence” or employment

“ Ariz. State Legislature, 135 S. Ct. at 2665 n.12 (final alteration

in original) (quoting Raines v. Byrd, 521 U.S. 811, 819-20 (1997)).

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

* See TEX. DEP’T OF PUB. SAFETY, VERIFYING LAWFUL

PRESENCE 4 (2013), https://www.txdps.state.tx.us/DriverLicense/

Z2la

authorization.”’ Texas subsidizes its licenses and would

lose a minimum of $130.89 on each one it issued to a

DAPA beneficiary.” 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 unin-

documents/verifying LawfulPresence.pdf (listing an acceptable doc-

ument for a “Person granted deferred action” as “Immigration Gvc-

umentation 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.”).

" 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 (ex-

plaining that “[e}mployment authorization” is “a benefit that will be

available to recipients of DAPA”).

® 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 1D Enforcement

in Brief, US. 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.

22a

sured motorists. The government suggests employment

authorization would lead to increased tax revenue and de-

creased reliance on social services.

Even if the government is correct, that does not ne-

gate Texas’s injury, because we consider only those off-

setting benefits that are of the same type and arise from

the same transaction as the costs.” “Once injury is

shown, no attempt is made to ask whether the injury is

outweighed by benefits the plaintiff has enjoyed from the

relationship with the defendant. Standing is recognized

to complain that some particular aspect of the relationship

is unlawful and has caused injury.” “Our standing

analysis is not an accounting exercise Sei,

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

challenged program were offset by the benefits involved a

much tighter nexus. In Henderson, 287 F.3d at 379-81,

® 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 chal-

lenge 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 547, 557-58 (6th Cir. 2003) (de-

ciding that grandparents had standing to challenge a requirement

that they pay more for Medicaid benefits than would similarly situ-

ated parents, even though the grandparents may have received

more of other types of welfare benefits).

® 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE

AND PROCEDURE § 3531.4, at 147 (3d ed. 2015) (footnote omitted).

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

23a

we determined that taxpayers lacked standing to chal-

lenge a Louisiana law authorizing a license plate bearing a

pro-life message, reasoning 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 connected to the costs to qualify as an offset.

The only benefits that are conceivably relevant are the

increase in vehicle registration and the decrease in unin-

sured motorists, but even those are based on the inde-

pendent decisions of DAPA beneficiaries and are not a

direct result of the issuance of licenses. Analogously, the

Third Circuit held that sports leagues had standing to

challenge New Jersey’s decision to license sports gam-

bling, 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 at 222-24. The diminished public per-

ception 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 government predicts that the later decisions of

DAPA beneficiaries would produce offsetting benefits.

Weighing those costs and benefits is precisely the type of

“aecounting exercise,” id. at 223, in which we cannot

engage. Texas has shown injury.

24a

Texas has satisfied the second standing requirement

by establishing that its injury is “fairly traceable” to

DAPA. It is undisputed that DAPA would enable bene-

ficiaries 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 sov-

ereign interest in ‘the power to create and enforce a legal

code,’”™ and the possibility that a plaintiff could avoid

injury by incurring other costs does not negate standing.™

Indeed, treating the availability of changing state law

as a bar to standing would deprive states of judicial re-

@ 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)).

® 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 Ar-

ticle III standing vel non must be the same. But the dissent ig-

nores a key distinction between Pennsylvania v. New Jersey and

the instant case: As we explain below, the pressure that Pennsyl-

vania faced to change its laws was self-inflicted; Texas's is not.

25a

course 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.“ And states

could offset almost any financial loss by raising taxes or

fees. The existence 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 main-

tains 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 Jer-

sey, id. at 664, 666, the Court held that several states

lacked standing to contest other states’ laws taxing a por-

tion of nonresidents’ incomes. The plaintiff states al-

leged that the defendant states’ taxes injured them be-

cause 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. /d. 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 [challenged taxes]. The

injuries to the plaintiffs’ fiscs were self-inflicted, re-

sulting from decisions by their respective state legis-

latures. Nothing required Maine, Massachusetts, and

Vermont to extend a tax credit to their residents for

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

Celebrezze, 766 F.2d at 232-33.

26a

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.

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. /d. at447. The

Court explained that Wyoming taxed the extraction of

coal in the state and that Oklahoma’s law reduced demand

for that coal and Wyoming’s corresponding revenue. /d.

The Court emphasized that the case involved an “undis-

puted” “direct injury in the form of a loss of specific tax

revenues.” /d. at 448. It rejected Oklahoma's conten-

tion “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 Com-

merce Clause action,” id., concluding that Wyoming’s loss

of revenue was sufficient, id. at 448-50. The Court did

not cite Pennsylvania v. New Jersey 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

27a

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 are

readily distinguishable, however, and, based on two con-

siderations, Wyoming v. Oklahoma directs our decision.

First, Texas and Wyoming sued in response to major

changes in the defendant states’ policies. Texas sued af-

ter 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 Wyo-

ming over $1 million in tax revenues. See id. at 445-46 &

n.6. Conversely, the Pennsylvania v. New Jersey plain-

tiffs 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 de-

fendants’ 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 defendants’

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 Wyo-

ming v. Oklahoma than in Pennsylvania v. New Jersey.

28a

Texas seeks to issue licenses only to those lawfully pre-

sent in the United States, and the state is required to use

federal immigration classifications 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.”

™ It follows that the dissent’s unsubstantiated claim that “Penn-

sylvania, 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 over-

looks, 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 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.” Presum-

ably the dissent would have liked for the Supreme Court to have

issued a similar edict to Wyoming, which sought to tax the extrac-

29a

By way of contrast, the plaintiff states in Pennsylva-

nia 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 Intelli-

gence 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. /d. at 1150-51. The Court

held that any such injuries were self-inflicted, id. at

1152-53, reasoning that plaintiffs “cannot manufacture

standing merely by inflicting harm on themselves based

on their fears of hypothetical future harm that is not

certainly impending.” /d. at 1151 (citing Pennsylvania

v. New Jersey, 426 U.S. at 664). “Ifthe law were other-

wise, an enterprising plaintiff would be able to secure a

lower standard for Article III standing simply by making

an expenditure based on a nonparanoid fear.” /d.

tion 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.

30a

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,” 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 Plaintiffs 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 solici-

tude” 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

DH9’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 con-

tribute 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 substantial cause of the

% 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)).

3la

state’s harm, considering the many other emissions

sources involved.” But the Court held that Massachu-

setts had satisfied the causation 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. /d. at 524-25.

This case raises even less doubt about causation, so

the result is the same. The matters in which the Su-

preme 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 nec-

essary condition of the harm’s occurrence, and it was

uncertain whether the third party would take the re-

quired step.” 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

® See Massachusetts v. EPA, 549 U.S. at 523-24; id. at 540-45

(Roberts, C.J., dissenting) (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).

® 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,

45 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).

32a

which there was insufficient proof of causation, several

factors potentially contributed to the injury, and the

challenged policy likely played a minor role.”

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 attenuat-

ed. Texas’s injury is fairly traceable to DAPA.

Texas has satisfied the third standing requirement,

redressability. EEnjoining DAPA based on the procedur-

al APA claim could prompt DHS to reconsider the pro-

gram, which is all a plaintiff must show when asserting a

procedural right. See id. at 518. And enjoining DAPA

™ See, e.g., Already, LLC v. Nike, Inc., 133 S. Ct. 721, 731 (2013)

(rejecting the theory “that a market participant is injured for Ar-

ticle III purposes whenever a competitor benefits from something

allegedly unlawful—whether a trademark, the awarding of a con-

tract, a landlord-tenant arrangement, or so on.”); McConnell v.

FEC, 540 U.S. 93, 228 (2003) (commenting that the plaintiffs, candi-

dates for public office, were unable to compete not because of in-

creased 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 dis-

criminatory private schools but also to the decisions of private

school administrators and other parents), abrogated on other

grounds by Lermark Int'l, Inc. v. Static Control Components, Inc.,

134 S. Ct. 1377 (2014).

33a

based on the substantive APA claim would prevent Tex-

as’s injury altogether.

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 challenge 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 fran-

chise-tax liability.

The flaw in the government’s reasoning is that Mas-

sachusetts v. EPA entailed similar risks, but the Court

still held that Massachusetts had standing. Under that

decision, Massachusetts conceivably could challenge the

government’s decision to buy a car with poor fuel effi-

ciency because the vehicle could contribute to global

warming. The state might be able to contest any

federal action that prompts more travel. Or it poten-

tially 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 dissenting Justices in Massachusetts v. EPA

criticized the decision on that ground,” 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

™ See Massachusetts v. EPA, 549 U.S. at 546 (Roberts, C.J., dis-

senting) (“Every little bit helps, so Massachusetts can sue over any

little bit.”).

34a

disagreements masquerading as legal claims.’ First, a

state that has standing still must have a cause of action.

Even the APA—potentially the most versatile tool avail-

able to an enterprising state—imposes a number of limi-

tations. A state must be defending concerns that are

“arguably within the zone of interests to be protected or

regulated by the statute or constitutional guarantee in

question.”” 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 ad-

versely affect states either are not rules at all or are ex-

empt 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 standing to

challenge a grant of asylum to a single alien based on the

driver’s-license theory. The state must allege an injury

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

observation that this suit involves ‘policy disagreements masquer-

ading as legal claims’ is also telling.” Dissent at22. 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 Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,

153 (1970)).

35a

that has already occurred or is “certainly impending”;” it

is easier to demonstrate that some DAPA beneficiaries

would apply for licenses than it is to establish that a

particular alien would. And causation could be a sub-

stantial obstacle. Although the district court’s calcula-

tion of Texas’s loss from DAPA was based largely on the

need to hire employees, purchase equipment, and obtain

office space,” those steps would be unnecessary to li-

cense 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. Sce

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 un-

™ Amnesty Int'l, 133 S. Ct. at 1147 (emphasis omitted) (quoting

Defs. of Wildlife, 504 U.S. at 565 n.2).

™ See Dist. Ct. Op., 86 F. Supp. 3d at 616-17 (discussing the po-

tential loss and citing a portion of a declaration addressing those

expenses).

36a

founded,” and its concerns about the possible future ef-

fects of Texas’s theory of standing do not alter our con-

clusion. The states have standing.

IV.

Because the states are suing under the APA, they

“must satisfy not only Article III’s standing require-

ments, but an additional test: The interest [they] as-

sert[] must be ‘arguably within the zone of interests to be

protected or regulated by the statute’ that [they] say]

was violated.”” That “test ... ‘is not meant to be es-

pecially demanding’” and is applied “in keeping with

Congress’s ‘evident intent’ when enacting the APA ‘to

make agency action presumptively reviewable.’””

The Supreme Court “ha[s} always conspicuously in-

cluded the word ‘arguably’ in the test to indicate that the

benefit of any doubt goes to the plaintiff,” and “[wle do

not require any ‘indication of congressional purpose to

benefit the would-be plaintiff.’”™ “The test forecloses

suit only when a plaintiff's ‘interests are so marginally

related to or inconsistent with the purposes implicit in the

™ See Hosanna-Tgbor Evangelical Lutheran Church & Sch. v.

EEOC, 132 S. Ct. 694, 710 (2012) (stating, in response to an alleged

“parade of horribles,” that “[tJhere will be time enough to address

other circumstances” in future cases without altering the

Court’s present conclusion).

® Match-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).

7 Id. (quoting Sec. Indus. Ass'n, 479 U.S. at 399).

™ Id. (quoting Sec. Indus. Ass'n, 479 U.S. at 399-400).

37a

statute that it cannot reasonably be assumed that Con-

gress intended to permit the suit.’””

The interests the states seek to protect fall within the

zone of interests of the INA.” “The pervasiveness of

federal regulation does not diminish the importance of

immigration policy to the States,” which “bear{}] many of

the consequences of unlawful immigration.” Arizona v.

United States, 132 S. Ct. 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 pro-

vides otherwise.”" With limited exceptions, unlawfully

present aliens are “not eligible for any State or local

public benefit.” 8 U.S.C. § 1621(a).

Contrary to the government’s assertion, Texas satis-

fies the zone-of-interests test not on account of a gener-

alized 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 guarantee, Texas seeks to participate in

notice and comment before the Secretary changes the

® Id. (quoting Sec. Indus. Ass'n, 479 U.S. at 399).

" The 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) (quot-

ing DeCanas v. Bica, 424 U.S. 351, 353, 359 (1976)).

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

(emphasis added) (citing 8 U.S.C. § 1621).

38a

immigration classification of millions of illegal aliens in a

way that forces the state to the Hobson’s choice of spend-

ing millions of dollars to subsidize driver’s licenses or

changing its statutes.

The government maintains that judicial review is pre-

cluded 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.’”"~ “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 agen-

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

“{T]here is a ‘well-settled presumption favoring in-

terpretations of statutes that allow judicial review of

administrative action,’ and we will accordingly find an

intent to preclude such review only if presented with

‘clear and convincing evidence.’"”“ The “strong pre-

sumption’ favoring judicial review of administrative action

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

structure demonstrates that Congress wanted an agency

= Chaney, 470 U.S. at (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).

“ Reno 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)).

39a

to police its own conduct.” Mach Mining, LLC v. EEOC,

135 S. Ct. 1645, 1651 (2015).

Establishing unreviewability is a “heavy burden,”™

and “where substantial doubt about the congressional

intent exists, the general presumption favoring judicial

review of administrative action is controlling.” Block v.

Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984).

“Whether and to what extent a particular statute pre-

cludes judicial review is determined not only from its ex-

press language, but also from the structure of the statu-

tory scheme, its objectives, its legislative history, and the

nature of the administrative action involved.” Jd. at 345.

The United States relies on 8 U.S.C. § 1252(g)* for

the proposition that the INA expressly prohibits judicial

review. But the government’s broad reading is contrary

to Reno v. American-Arab Anti-Discrimination Com-

mittee (“AAADC”), 525 U.S. 471, 482 (1999), in which

the Court rejected “the 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.””” The Court emphasized that § 1252(g) is not “a

™ Mach Mining, 135 S. Ct. at 1651 (quoting Dunlop v. Bachowski,

421 U.S. 560, 567 (1975)).

® With 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 proceed-

ings, adjudicate cases, or execute removal orders against any alien

‘ander this chapter.” 8 U.S.C. § 1252(g).

® AAADC, 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 ... ” /d.

40a

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.’””’

None of those actions is at issue here—the states’

claims do not arise from the Secretary’s “decision or ac-

tion ... to commence proceedings, adjudicate 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. /d Congress has

expressly limited or precluded judicial review of many

immigration decisions,” including some that are made in

the Secretary’s “sole and unreviewable discretion,” but

DAPA is not one of them.

Judicial review of DAPA is consistent with the pro-

tections Congress affords to states that decline to provide

* Jd. (quoting § 1252(g)).

™ 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 dis-

cretionary relief authorized by various statutory provisions), [(C)]

(barring 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(aX9B)v) (barring review of waiver of re-

entry 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).

4la

public benefits to illegal aliens. “The Government of the

United States has broad, undoubted power over the

subject of immigration and the status of aliens,” but,

through § 1621, Congress has sought to protect states

from “bear[ing] many of the consequences of unlawful!

immigration.”"” Texas avails itself of some of those pro-

tections through Section 521.142(a) of the Texas Trans-

portation 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 sub-

sidized 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 con-

ferred by § 1621.

The states contend that DAPA is being implemented

without discretion to deny applications that meet the ob-

jective criteria set forth in the DAPA Memo, and under

AAADC, judicial review could be available if there is an

indication 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 de-

cline “the initiation or prosecution of various stages in the

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

" Id. at 2500.

42a

deportation process,” id. at 483, and the Court observed

that “[p|rior to 1997, deferred-action decisions were gov-

erned by internal [INS] guidelines which considered [a

variety of factors],” id. at 484 n.8. Although those guide-

lines “were apparently rescinded,” the Court observed

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

making this sort of determination on a case-by-case ba-

sis.” /d. But the government has not rebutted the

strong presumption of reviewability with clear and con-

vincing evidence that, inter alia, it is making case-by-case

decisions here.”

Title 5 § 701(a)(2) “preclude[s] judicial review of cer-

tain categories of administrative decisions that courts

traditionally have regarded as “committed to agency

discretion.” Lincoln v. Vigil, 508 U.S. 182, 191 (1993)

(citation omitted). For example, “an agency’s decision

not to institute enforcement proceedings [is] presump-

tively unreviewable under § 701(a)(2).” Jd. (citation

omitted). Likewise, “([tJhere is no judicial review of

agency action ‘where statutes [granting agency discre-

tion] are drawn in such broad terms that in a given case

there is no law to apply,’”™ such as “{tJhe allocation of

* See, e.g., Gulf Restoration Network v. McCarthy, 783 F.3d 227,

235 (5th Cir. 2015) (Higginbotham, J.) (“(T)Jhere is a ‘strong pre-

sumption,’ 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))).

* Perales v. Casillas, 903 F.2d 1043, 1047 (5th Cir. 1990) (altera-

tion in original) (citation omitted).

43a

funds from a lump-sum appropriation.” Vigil, 508 U.S.

at 192.

The Secretary has broad discretion to “decide wheth-

er it makes sense to pursue removal at all” and urges

that deferred action—a grant of “lawful presence” and

subsequent eligibility for otherwise unavailable bene-

fits—is a presumptively unreviewable exercise of prose-

cutorial discretion.” “The general exception to reviewa-

bility 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 inves-

tigative or enforcement proceedings, unless Congress has

indicated otherwise.”” Where, however, “an agency

does act to enforce, that action itself provides a focus for

judicial review, inasmuch as the agency must have exer-

cised its power in some manner. The action at least can

be reviewed to determine whether the agency exceeded

its statutory powers.””

™“ Arizona v. United States, 132 S. Ct. at 2499 (“A principal feature

of the removal system is the broad discretion exercised by immi-

gration officials. Federal officials, as an initial matter, must decide

whether it makes sense to pursue removal) at all.” (citation omit-

ted)).

*® The dissent misleadingly declares, “In other words, deferred

action itself is merely a brand of ‘presumptively unreviewable’ pro-

secutorial 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.

* Chaney, 470 U.S. at 838 (citation omitted); see Vigil, 508 U.S. at

190-91.

” Chaney, 470 U.S. at 832.

44a

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 al-

iens. But importantly, the states have not challenged the

priority levels he has established,” and neither the pre-

liminary injunction nor compliance with the APA requires

the Secretary to remove any alien or to alter his en-

forcement priorities.

Deferred action, however, is much more than nonen-

forcement: It would affirmatively confer “lawful pres-

ence” and associated benefits on a class of unlawfully

present aliens. Though revocable, that change in desig-

nation would trigger (as we have already explained)

eligibility for federal benefits—for example, under title I1

and XVIII of the Social Security Act”—and state bene-

fits—for example, driver’s licenses and unemployment in-

* See 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.

” See supra part 1.A. DAPA would also toll the duration of the

recipients’ unlawful presence under the INA's reentry bars, which

would benefit aliens who receive |jawful presence as minors because

the unlawful-presence clock begins to run only at age eighteen. See

8 U.S.C. § 1182(aX9)(B)iii)1). 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)(I1); see

§ 1182(aX(9C)i)(1).

45a

surance ‘”—that would not otherwise be available to

illegal aliens."

The United States maintains that DAPA is presump-

tively 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.”"” The government further con-

tends that “[elvery decision under [DAPA] to defer en-

forcement action against an alien necessarily entails

allowing the individual to be lawfully present .. .

Deferred action under DAPA and ‘lawful presence’ dur-

ing that limited period are thus two sides of the same

coin.” '™

See supra part I.A.

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 wil! be used in

relation to marihuana enforcement under the Controlled Sub-

stances 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 cogniza-

ble benefit.

® Supplemental 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 deporta-

ble”).

'® Supplemental Brief for Appellants at 16 (emphasis omitted).

46a

Revocability, however, is not the touchstone for

whether agency is action is reviewable. Likewise, to be

reviewable agency action, DAPA need not directly 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 re-

view.” Chaney, 470 U.S. at 832.

Moreover, if deferred action meant only nonprosecu-

tion, it would not necessarily result in lawful presence.

“{Ajithough prosecutorial discretion is broad, it is not

‘unfettered.’”" Declining to prosecute does not trans-

form presence 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 employment authorization in exchange for participa-

tion 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 institute proceedings, terminate pro-

ceedings, or decline to execute a final order of depor-

tation. This commendable exercise in administrative

discretion, developed without express statutory au-

thorization, originally was known as nonpriority and is

now designated as deferred action ... . Approval

™ Wayte v. United States, 470 U.S. 598, 608 (1985) (quoting Uni-

ted States v. Batchelder, 442 U.S. 114, 125 (1979)).

47a

of deferred action status means that ... no action

will thereafter be taken to proceed against an appar-

ently deportable alien, even on grounds normally re-

garded as aggravated.['”’

In their procedural claim, the states do not challenge the

Secretary’s decision to “decline to institute proceedings,

terminate proceedings, or decline to execute 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.”

Under DAPA, “(djeferred action ... means that,

for a specified period of time, an individual is permitted to

be lawfully present in the United States,”’” 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, inas-

much as the agency must have exercised its power in

some manner. The action at least can be reviewed to de-

% AAADC, 525 U.S. at 484 (emphasis added) (quoting 6 CHARLES

GORDON, STANLEY MAILMAN & STEPHEN YALE-LOEHR, IMMI.

GRATION LAW AND PROCEDURE § 72.03[2)}[h) (1998)); accord Johns

0. 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

f deportation, or (2) to stay the order of deportation.” (footnote

omitted); see also Yoon v. 1NS, 538 F.2d 1211, 1213 (5th Cir. 1976)

ther curiam).

™ AAADC, 525 U.S. at 484 (quoting GORDON, MAILMAN &

YALE-LOEHR, supra note 105).

*M” DAPA Memo at 2 (emphasis added).

48a

termine whether the agency exceeded its statutory pow-

ers.”

“The mere fact that a statute grants broad discretion

to an agency does not render the agency’s decisions com-

pletely unreviewable under the ‘committed 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.”"” 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 in the [INA] expressly providing for the

grant of employment authorization or pre-hearing volun-

tary departure to [the plaintiff class of aliens].” Al-

though we stated that “the agency’s decision to grant vol-

untary departure and work authorization has been com-

mitted to agency discretion by law,” id. av 1045, that case

involved a challenge to the denial of voluntary departure

and work authorization.

'* Chaney, 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).

' Perales, 903 F.2d at 1051 (quoting Robbins v. Reagan, 780 F.2d

37, 45 (D.C. Cir. 1985) (per curiam)).

49a

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.” /d.

at 1047. But where there is affirmative agency action—

as with DAPA’s issuance of lawful presence and employ-

ment authorization—and in light of the INA’s intricate

regulatory scheme for changing immigration classifica-

tions and issuing employment authorization,'’’ “(t]he ac-

tion at least can be reviewed to determine whether the

agency exceeded its statutory powers.” Chaney, 470

US. at 832.

The United States asserts that 8 C.F.R.

§ 274a.12(c)(14),'"' rather than DAPA, makes aliens

granted deferred action eligible for work authorizations.

But if DAPA’s deferred-action program must be sub-

jected 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 au-

thorizations to any class of illegal aliens whom DHS

declines to remove—is beyond the scope of what the INA

can reasonably be interpreted to authorize, as we will

"0 See infra part VII.

1 “An alien who has been granted deferred action, an act of ad-

ministrative convenience to the government which gives some cases

lower priority, [may be able to obtain work authorization upon

] if the alien establishes an economic necessity for

employment.” 8 C.F.R. § 274a.12(c)(14).

50a

explain.’ And even assuming, arguendo, that the gov-

ernment 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.’ As an affirmative agency action with mean-

ingful standards against which to judge it, DAPA is not an

unreviewable “agency action ... committed to agency

discretion by law.” § 701(a)(2).

The government urges that this case is not justi-

ciable even though “‘a federal court’s “obligation’” to hear

and decide cases within its jurisdiction is ‘virtually un-

flagging.” ''* We decline to depart from that well-

established principle." 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 immi-

grati on.””''6

'® The class of aliens eligible for DAPA is not among those classes

of aliens identified by Congress as eligible for deferred action and

work authorization. See infra part VII.

'"’ See TEX. DEP’T OF PUB. SAFETY, VERIFYING LAWFUL

PRESENCE, supra note 56.

'* Lexmark, 134 S. Ct. at 1386 (quoting Sprint Comme'ns, Inc. v.

Jacobs, 134 8. Ct. 584, 591 (2013)).

'® See 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))).

' Texas v. United States, 106 F.3d at 664; see also Sure-Tan, 467

U.S. at 897 (“[P]rivate persons ... have no judicially cognizable

interest in procuring enforcement of the immigration laws ... .”);

5la

Neither the preliminary injunction nor compliance

with the APA requires the Secretary to enforce the im-

migration laws or change his priorities for removal, which

have expressly not been challenged.''’ 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.'° DAPA was enjoined because the states seek an

Fiallo, 430 U.S. at 792 (“[TJhe power to expel or exclude aliens [is} a

fundamental sovereign attribute exercised by the Government's

political departments largely immune from judicial control.” (quot-

ing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210

(1953))).

" See Brief for Appellees at 2 (“(T}he district court's injunction

does not touch—and this lawsuit has never challenged—the Execu-

tive’s separate memorandum establishing three categories for re-

moval prioritization, or any decision by the Executive to forego a

removal proceeding.”).

"® The main thrust of the dissent could be summarized as claiming

that “[iJt’s Congress'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 funding is regrettable and exposes the

weakness of the government’s legal position. See, e.g., Dissent at |

(“unless and until more resources are made available by Congress”):

id. (“if Congress is able to make more resources for removal avail-

able”); id. at 4 (“given the resource constraints faced by DHS”); id.

(“to maximize the resources that can be devoted to such ends”); id.

at 6 (“decades of congressional appropriations decisions”); id. at 6

(“due to these resource constraints”); id. at 7 n.9 (“if Congress were

52a

opportunity to be heard through notice and comment, not

to have the judiciary formulate or rewrite immigration

policy. “Consultation between federal and state officials

to substantially increase the amount of funding”); id at 14 (“DHS's

limited resources”); id. at 43 n.55 (“the decades-long failure of Con-

gress 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. £.g., Dissent at 10 (“(t}he majority’s breathtaking ex-

pansion of state standing”); id. at 11 (“the majority’s sweeping ‘spe-

cial solicitude’ analysis”); id. at 11 n.14 (“the sweeping language the

majority uses today”); id. at 42 n.54 (“this radical theory of stand-

ing”); 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 deporta-

tions 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 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.

58a

wil

is an important feature of the immigration system,

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,”’”

facilitates that communication.

At its core, this case is about the Secretary’s decision

to change the immigration classification of millions of

illegal aliens on a class-wide basis. The states properly

maintain that DAPA’s grant of lawful presence and ac-

companying eligibility for benefits is a substantive rule

that must go through notice and comment, before it im-

poses 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 contrast, if a rule is ‘substantive,’ the

exemption is inapplicable, and the full panoply of notice-

and-comment requirements must be adhered to scrupu-

iW Arizona v. United States, 132 S. Ct. at 2508.

1 17S. Steel Corp. v. EPA, 595 F 2d 207, 214 (5th Cir. 1979).

5Aa

lously. The ‘APA’s notice and comment exemptions must

be narrowly construed.’”””

The government advances the notion that DAPA is

exempt from notice and comment as a policy statement.'”

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 decisionmakers free to exercise discre-

tion.”'*” There is some overlap in the analysis of those

prongs “because ‘iJf a statement denies the decision-

maker discretion in the area of its coverage ... then

'"" Prof'ls & Patients for Customized Care v. Shalala, 56 F.3d 592,

595 (5th Cir. 1995) (footnote omitted) (quoting U/nited States v. Pic-

ciotto, 875 F.2d 345, 347 (D.C. Cir. 1989)).

'2 The government does not dispute that DAPA is a “rule,” which

is defined by the APA as “an agency statement of general or par-

ticular applicability and future effect designed to implement, inter-

pret, or prescribe law or policy or describing the organization, pro-

cedure, 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).

'8 Prof'ils & 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 prospec-

tively of the manner in which the agency proposes to exercise a

discretionary power.’” (quoting Chrysler 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 administrative 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.”).

5ba

the statement is binding, and creates rights or obliga-

tions.” “While mindful but suspicious of the agency’s

own characterization, we ... focus{] primarily on

whether the rule has binding effect on agency discretion

or severely restricts it.”"” “[{A]n agency pronouncement

will be considered binding as a practical matter if it either

appears on its face to be binding, or is applied by the

agency in a way that indicates it is binding.” Gen. Elec.,

290 F.3d at 383 (citation omitted).

Although the DAPA Memo facially purports to confer

discretion,” the district court determined that “[nJothing

™ 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)).

%5 Profs & 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. John-

son, 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 administrative

power is not, for our purposes, conclusive; rather it is what the agen-

cy does in fact.’” (alteration in original) (quoting Brown Express,

607 F.2d at 700)).

1 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 stand-

ing” 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 “certainly impending” if they “exercise[d)

[their] discretion to detain an illegal alien,” id. at 255. That con-

clusion was informed by the express delegation of discretion on the

face of the DACA Memo and by the fact that no sanctions or warn-

ings had yet been issued. /d. at 254-55. We did not hold that

DACA was an unreviewable exercise of prosecutorial discretion or

56a

about DAPA ‘genuinely leaves the agency and its [em-

ployees] free to exercise discretion,’””’ 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.™

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” because only

about 5% of the 723,000 applications accepted for evalua-

tion had been denied, and “{dJespite a request by the

that the DACA criteria did not have binding or severely restrictive

effect on agency discretion. See id. at 254-55.

‘7 Dist. Ct. Op., 86 F. Supp. 3d at 670 (second alteration in origi-

nal) (quoting Profls & Patients, 56 F.3d at 595).

'* Jd. 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.”).

' Dist. Ct. Op., 86 F. Supp. 3d at 669 n.101.

'™ 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 appli-

cant was below the age of fifteen and thus ineligible to participate in

the program”); id. at *669 n.101 (“[AJll 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.”).

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

57a

[district] [cJourt, the [gjovernment’s counsel did not

provide the number, if any, of requests that were denied

[for discretionary reasons] even though the applicant met

the DACA criteria ... .”™' The finding of pretext was

also based on a declaration by Kenneth Palinkas, the

president of the union representing the USCIS employ-

ees processing the DACA applications, that “DHS man-

agement has taken multiple steps to ensure that DACA

applications are simply rubberstamped if the applicants

meet the necessary criteria”;““ DACA’s Operating Pro-

cedures, which “contain[] nearly 150 pages of specific

“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 dis-

tinction 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. /d. at 669 n.101 (“[AJll 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.

™ 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/

vor filing.” Jd. at 669 n.101.

@ Dist. Ct. Op., 86 F. Supp. 3d at 609-10.

58a

instructions for granting or denying deferred action”;'™

and some mandatory language in the DAPA Memo it-

self.“ In denying the government’s motion for a stay of

'% Jd. at 669 (footnote omitted). For example, the DACA Na-

tional Standard Operating 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’TOOF HOMELAND SEC., NATIONAL STANDARD OPER-

ATING PROCEDURES: DACA 42 (2012). To elaborate: An affi-

davit 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}fficers 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 possi-

ble.” Jd. 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 “(wjhen 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. Profls & 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 exhibited 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 ... . Appli-

cants 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

59a

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 follow the policy” will face “consequences,”

and “they’ve got a problem.”*”

The DACA and DAPA Memos purport to grant dis-

cretion, but a rule can be binding if it is “applied by the

agency in a way that indicates it is binding,” and there

was evidence from DACA’s implementation that DAPA’s

discretionary language was pretextual. For a number of

reasons, any extrapolation from DACA must be done

carefully.’

CBP are instructed to immediately begin identifying persons 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.

™ Texas v. United States, No. B-14-254, 2015 WL 1540022, at *3

(S.D. Tex. Apr. 7, 2015).

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 lan-

guage indicating that it was policy statement); id. at 1321 (“More

critically than EPA’s language [,) ... its later conduct applying it

confirms its binding character.”).

‘™ 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 snapshot” of its im-

plementation. Dissent at 32. First, the dissent overlooks a

fundamental principle of preliminary injunctions: An injunction is

60a

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

(gjovernment has publicly declared that it will make no

attempt to enforce the law against even those who are

denied deferred action (absent extraordinary circum-

stances).” Dist. Ct. Op., 86 F. Supp. 3d at 663 (footnote

omitted).

Second, DACA and DAPA are not identical: Eligi-

bility for DACA was restricted to a younger and less

numerous population,” which suggests that DACA ap-

plicants are less likely to have backgrounds that would

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) (“[TJhe

injury need not have been inflicted when application [for the in-

junction) 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

distinguished. 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 im-

portant factor concerns the actual legal effect (or lack thereof) of

the agency action on regulated entities ... . Asa legal matter,

the Final Guidance is meaningless ... [and] has no legal impact.”

DAPA, by contrast, has an effect on regulated entities (i.e. ille-

gal 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.

'* Approximately 1.2 million illegal aliens are eligible for DACA

and 4.3 million for DAPA. Dist. Ct. Op., 86 F. Supp. 3d at 609, 670.

Hla

warrant a discretionary denial. Further, the DAPA

Memo contains additional discretionary criteria: Appli-

cants must not be “an enforcement priority as reflected in

the [Prioritization Memo}; and [must] present no other

factors that, in the exercise of discretion, makes the grant

of deferred action inappropriate.” DAPA Memo at 4.

But despite those differences, there are important simi-

larities: The Secretary “direct{ed) USCIS to establish a

process, similar to DACA, for exercising prosecutorial

discretion,” id. (emphasis added), and there was evidence

that the DACA application process itself did not allow for

discretion, regardless of the rates of approval and deni-

al.’

Instead of relying solely on the lack of evidence that

any DACA application had been denied for discretionary

'® 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

procedure, 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 di-

rect 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 al] indivi-

DAPA Memo at 4-5. See Dist. Ct. Op., 86 F. Supp. 3d at 610-11.

The district court’s conclusion that DACA and DAPA would be ap-

plied similarly, based as it was in part on the memorandum’s plain

language, was not clearly erroneous and indeed was not error under

any standard of review.

62a

reasons, the district court found pretext 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 “([dJjenials are recorded in a

‘check the box’ standardized form, for which USCIS per-

sonnel 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 omitted). The finding was also based on

the declaration from Palinkas that, as with DACA, the

DAPA application process itself would preclude discre-

tion: “[Rjouting DAPA applications through service

centers instead of field offices ... created an applica-

tion process that bypasses traditional in-person investi-

gatory interviews with trained USCIS adjudications of-

ficers” and “prevents officers from conducting case-by-

case investigations, undermines officers’ abilities to detect

fraud and national-security risks, and ensures that appli-

cations 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 dis-

cretion. Donald Neufeld, the Associate Director for Ser-

vice Center Operations for USCIS, declared that “de-

ferred action under DACA is a ... case-specific pro-

cess” that “necessarily involves the exercise of the agen-

cy’s discretion,” and he purported to identify several in-

63a

stances of discretionary denials.‘ Although Neufeld

stated that approximately 200,000 requests for additional

evidence had been made upon receipt of DACA applica-

tions, the government does not know the number, if any,

that related to discretionary factors rather than the ob-

jective criteria. Similarly, the government did not pro-

vide the number of cases that service-center officials

referred to field offices for interviews.'*’

Although the district court did not make a formal

credibility determination or hold an evidentiary hearing

‘” The states properly maintain that those denials were not dis-

cretionary 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 “on-

going 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 In-

structions and the memorandum styled Policies for Apprehension,

Detention, and Removal of Undocumented Immigrants. Dist. Ct.

Op., 86 F. Supp. 3d at 669 n.101.

. ™ 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 chal-

lenged policy unti] February 18, 2015,” the government later ad-

mitted to having approved dozens of DAPA applications and three-

year employment authorization to more than 100,000 aliens satis-

fying the original DACA criteria; the government could not demon-

‘strate which applicants, if any, were rejected on purely discretion-

ary grounds, as distinguished from failure to meet the requirements

set forth in the memoranda.

64a

on the conflicting statements by Neufeld and Palinkas,

the record indicates that it did not view the Neufeld dec-

laration as creating a material factual dispute.” Fur-

ther, the government did not seek an evidentiary hearing,

nor does it argue on appeal that it was error not to con-

duct such a hearing. Reviewing for clear error, we con-

clude that the states have established a substantial like-

lihood that DAPA would not genuinely leave the agency

and its employees free to exercise discretion.

A binding rule is not required to undergo notice and

comment if it is one “of agency organization, procedure,

or practice.” § 553(b)(A). “[TJhe substantial impact test

is the primary means by which [we] look beyond the label

‘procedural’ to determine whether a rule is of the type

Congress thought appropriate for public participation.”"”

“An agency rule that modifies substantive rights and

interests can only be nominally procedural, and the ex-

emption for such rules of agency procedure cannot ap-

'@ After a hearing on the preliminary injunction, the government

filed a sur-reply that included the Neufeld declaration. The gov-

ernment did not seek an evidentiary hearing, but the states re-

quested 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, ¢.g., id. at 669 n.101.

'* 11.8. Dep't of Labor v. Kast Metals Corp., 744 F.2d 1145, 11538

(5th Cir. 1984); accord STIEN, supra, § 15.05[5] (“Procedural and

practice rules have been distinguished from substantive rules by

applying the substantial impact test.”).

65a

ply.”"* DAPA undoubtedly 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.”

The District of Columbia Circuit applies a more intri-

cate test for distinguishing between procedural and sub-

stantive rules.“ The court first looks at the “‘effect on

those interests ultimately at stake in the agency pro-

ceeding.’ Hence, agency rules that impose ‘derivative,’

‘incidental,’ or ‘mechanical’ burdens upon regulated indi-

viduals are considered procedural, rather than substan-

tive.”'""

“4 Kast Metals, 744 F.2d at 1153; accord Brown Express, 607 F.2d

at 701-03.

See 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))).

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 ‘substantial impact’ stand-

ard 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 consid-

eration of rules having a substantial impact on those regulated.”

(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 (reaffirming substantial-impact test

announced in Brown Express).

“1 Nat'l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 107 (D.D.C.

2013) (citation omitted) (quoting Neighborhood TV Co. v. FCC, 742

66a

Further, “a procedural rule generally may not ‘encode

[] a substantive value judgment or put{] a stamp of ap-

proval or disapproval on a given type of behavior,’”’” 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.”’” “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.”"”

Applying those considerations to DAPA yields the

same result as does our substantial-impact test. Al-

though the burden imposed on Texas is derivative of

conferring lawful presence on beneficiaries, DAPA estab-

lishes “‘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.’

Thus, DAPA is analogous to “the rules [that] changed

the substantive criteria for [evaluating station allotment

F.2d 629, 637 (D.C. Cir. 1984); Am. Hosp. Ass'n v. Bowen, 834 F.2d

1037, 1051 (D.C. Cir. 1987)).

'* Nat'l Sec. Counselors, 931 F. Supp. 2d at 107 (alterations in

original) (quoting Am. Hosp., 834 F.2d at 1047).

'” 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. Cir. 1994)).

'* Jd. (first alteration in original) (quoting JEM Broad., 22 F.3d at

327).

67a

counter-proposals]” in Reeder v. FCC, 865 F.2d 1298, 1305

(D.C. Cir. 1989) (per curiam), holding that notice and

comment 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 can-

not be considered procedural. Am. Hosp., 834 F.2d at

1047.

Section 553(a)(2) exempts rules from notice and com-

ment “to the extent that there is involved ... a matter

relating to ... public property, loans, grants, benefits,

or contracts.” To avoid “carviing) the heart out of the

notice provisions of Section 553”,"” the courts construe

the public-benefits exception very narrowly as applying

only to agency action that “clearly and directly relate[s] to

‘benefits’ as that word is used in section 553(a)(2).”"™

™ Hous. Auth. of Omaha v. U.S. Hows. Auth., 468 F.2d 1, 9 (8th

Cir. 1972) (“The exemptions of matters under Section 553(a)(2) re-

lating 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

of Section 553, it is fairly obvious that Congress did not

intend for the exemptions to be interpreted that broadly.”).

™® Baylor Univ. Med. Ctr. v. Heckler, 758 F.2d 1052, 1061 (5th Cir.

1985).

68a

DAPA does not “clearly and directly” relate to public

benefits as that term is used in § 553(a)(2). That subsec-

tion suggests that “rulemaking requirements for agencies

managing benefit programs are ... voluntarily im-

posed,” but USCIS—the agency tasked with evaluat-

ing DAPA applications—is not an agency managing

benefit programs. Fersons 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.’”

In summary, the states have established a substantial

likelihood of success on the merits of their procedural

claim. We proceed to address whether, in addition to

'™ Alcaraz v. Block, 746 F.2d 593, 611 (9th Cir. 1984).

™ See e.g., Vigil, 508 U.S. at 184, 196 (clinical services provided by

Indian Health Service for handicapped children); Hoerner v. Vet-

erans 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 reimburse-

ment regulations issued by Secretary of Health and Human Ser-

vices); 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) (Department

of Health and Human Services, then known as Health, Education,

and Welfare).

69a

that likelihood on the merits, the states make the same

showing on their substantive APA claim.’”

VII.

A “reviewing court shall ... hold unlawful and set

aside agency action ... found to be—{A) arbitrary, ca-

pricious, an abuse of discretion, or otherwise not in ac-

cordance 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.”*” Therefore, as an alternate and additional

ground for affirming the injunction, we address this sub-

stantive issue, which was fully briefed in the district

court.'™

We reiterate that DAPA is much more than a nonenforcement

policy, which presumptively would be committed to agency discre-

tion. 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.

" Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579

F.3d 502, 506 (5th Cir. 2009) (citation and internal quotation marks

omitted).

-™ “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.

70a

Assuming arguendo that Chevron” applies,’ we

first “ask whether Congress has ‘directly addressed the

" Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837 (1984).

'” “(T]he fact that the Agency previously reached its interpreta-

tion through means less formal than ‘notice and comment’ rule-

making does not automatically deprive that interpretation 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 ... .” Jd 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. Airlines, 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 statu-

tory scheme could not be persuasive under the test in Skidmore v.

Swift & Co., 323 U.S. 134 (1944), a test that affords agency con-

structions 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 ap-

plies”).

7la

precise question at issue.’”’” It has. “Federal govern-

ance of immigration and alien status is extensive and

complex.” 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 concern that

“aliens have been applying for and receiving public bene-

fits from Federal, State, and local governments at in-

creasing rates,” 8 U.S.C. § 1601(3), and that “[iJt is a com-

pelling 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 immi-

gration policy,” § 1601(5).

In specific and detailed provisions, the INA expressly

and carefully provides legal designations allowing defined

classes of aliens to be lawfully present’™ and confers

eligibility for “discretionary relief allowing {aliens in

deportation proceedings} to remain in the coun-

try.”"* Congress has also identified narrow classes of

aliens eligible for deferred action, including certain peti-

tioners for immigration status under the Violence Against

Mayo Found., 562 U.S. at 52 (quoting Chevron, 467 U.S. at

842).

“® £9. lawful-permanent-resident (“LPR”) status, see 8 U.S.C.

§§ 1101(a)(20), 1255; 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).

® Arizona v. United States, 132 S. Ct. at 2499 (citing 8 U.S.C.

§§ 1158 (asylum), 1229b (cancellation of removal), 1229¢ (voluntary

| )); 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)).

72a

Women Act of 1994,"* immediate family members of law-

ful permanent residents (“LPRs”) killed by terrorism,’

and immediate family members of LPRs killed in combat

and granted posthumous citizenship." 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 ap-

plicant 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 consu-

late."" Although DAPA does not confer the full panoply

™ Pub. L. No. 103-322, tit. ITV, 108 Stat. 1902 (codified as

amended in scattered sections of the U.S. Code). See 8 U.S.C.

§ 1154(a)(1)(D)(i)(1I), (TV).

'‘® USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115

Stat. 272, 361.

'® 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 ... .”).

'” See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(BiX IT), 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 decades—just waiting for an immigrant visa

to become available.”).

73a

of benefits 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 without

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

years’ or obtain a visa.” Further, the INA does not

contain a family-sponsorship process for parents of an

LPR child,’” but DAPA allows a parent to derive lawful

presence from his child’s LPR status.

The INA authorizes cancellation of removal and ad-

justment of status if, inter alia, “the alien has been phys-

ically 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 ex-

teptional and extremely unusual hardship to the alien’s

spouse, parent, or child, who is a citizen of the United

® Although “[tJhe 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 svch 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 provi-

sion for waiving the reentry bar for parents of U.S. citizen or LPR

children

™® DAPA Memo at 4.

™ See 8 U.S.C. $§ 1151(b)(2 AXi), 1152(a)(4), 1153(a).

74a

States or an alien lawfully admitted for permanent resi-

dence.” & U.S.C. § 1229b(b)(1)(A) (emphasis added).

Although LPR status is more substantial than is lawful

presence, § 1229b(b)(1) is the most specific delegation of

authority to the Secretary to change the immigration

classification of removable aliens that meet only the

DAPA criteria and do not fit within the specific categories

set forth in § 1229b(b)(2)-(6).

Instead of a ten-year physical-presence period, DAPA

grants lawful presence 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 discre-

tion to make immigration decisions based on humanitar-

ian grounds, that discretion is conferred only for particu-

lar family relationships and specific forms of relief—none

of which includes granting lawful presence, on the basis of

a child’s immigration status, to the class of aliens that

would be eligible for DAPA.*"”

The INA also specifies classes of aliens eligible’” and

ineligible'” for work authorization, including those “eli-

'" See, eg., 8 U.S.C. §§ 1182(aX9B)v), (C)iii) (authorizing

waiver of reentry bars for particular classes of inadmissible aliens),

1227(a)(1)(E iii) (authorizing waiver of inadmissibility for smug-

gling by particular classes of aliens).

'™ E.g.,8 U.S.C. §§ 1101(i)(2) (human-trafficking victims in lawful-

temporary-resident status pursuant to a T-visa), 1105a(a) (nonim-

migrant 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

workers in lawful-temporary-resident status), 1184(c\2)(E), (e)(6)

75a

gible for work authorization and deferred action”—with

no mention of the class of persons whom DAPA would

make eligible for work authorization. Congress “‘force-

fully’ made combating the employment of illegal aliens

central to ‘(tJhe policy of immigration law,’”'™ in part by

“establishing an extensive ‘employment verification sys-

tem,’ designed to deny employment to aliens who

are not lawfully present in the United States.”'”

The INA’s careful employment-authorization scheme

“protect[s] against the displacement of workers in the

United States,”’” and a “primary purpose in restricting

immigration is to preserve jobs for American workers.”'™

(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).

™ Eg., 8 U.S.C. §§ 1226(a)(3) (limits on work authorizations for

aliens with pending removal proceedings), 1231(a)(7) (limits on work

authorizations for aliens ordered removed).

'™ Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147

(2002) (alteration in original) (quoting /NS v. Nat'l Ctr. for Immi-

granis’ Rights, Inc., 502 U.S. 183, 194 n.8 (1991)).

™ Id. (emphasis added) (citation omitted) (quoting & U.S.C.

§ 1324a(a)(1)).

- ™ Natl Ctr. for Immigrants’ Rights, 502 U.S. at 194 (quoting

Powers and Duties of Service Officers; Availability of Service Rec-

otds; Employment Authorization; Excludable or Deportable Aliens,

48 Fed. Reg. 51,142, 51,142 (Nov. 7, 1983)).

“™ Jd (quoting Sure-Tan, 467 U.S. at 893); see 8 U.S.C

§ 1182(aX(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 sufficient workers who

76a

DAPA would dramatically increase the number of aliens

eligible for work authorization, 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 authori-

zation, and associated benefits, and “we must be guided to

a degree by common sense as to the manner in which

Congress is likely to delegate a policy decision of such

economic and political magnitude to an administrative

agency.”'” 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.”'” But assuming arguendo that

Chevron applies and that Congress has not directly ad-

dressed the precise question at hand, we would still strike

down DAPA as an unreasonable interpretation that is

“manifestly contrary” to the INA. See Mayo Found.,

562 U.S. at 53.

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 em-

ployed”).

"® 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. EPA, 134 S. Ct. 2427, 2444 (2014)).

Tia

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 uniue est exclusio alterius' canon of

construction, which the dissent claims is of limited utility

in administrative law. Dissent at 46. The dissent’s ob-

servation is astray, however, because our statutory anal-

ysis does not hinge on the expressio unius maxim.

Moreover, the Supreme Court and this court have

relied on expressio unius in deciding issues of adminis-

trative law. While noting “the limited usefulness of the

expressio unius doctrine in the administrative context,”"”

some courts have declined to apply it mostly because they

find it unhelpful for the specific statute at issue.’ On

other occasions, both our circuit and the Supreme Court

have employed the canon in addressing administrative

law.” Nor has the District of Columbia Circuit ex-

1 “A canon of construction holding that to express or include one

thing implies the exclusion of the other, or of the alternative.”

BLACK’sS LAW DICTIONARY 701 (10th ed. 2014).

_ Tez. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 443-44

(5th Cir. 1999).

@ Jd at 444 (concluding, on the basis of other statutory provi-

sions, that “Congress intended to allow the FCC broad authority to

implement this section”).

8 See, ¢.g., Christensen v. Harris Cnty., 529 U.S. 576, 582-88

(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

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

78a

pressly foreclosed use of the canon on questions of statu-

tory interpretation by agencies.“ Our distinguished

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 158, 157 n.11 (5th

Cir. 1991) (King, J.).

For the authority to implement DAPA, the govern-

ment relies in part on 8 U.S.C. § 1324a(h)(3), a provi-

the statute was subject to interpretation by the Board of Immigra-

tion Appeals).

'™ See Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 644

(D.C. Cir. 2000) (“The Comptroller argues that the expressio unius

maxim cannot preclude an otherwise reasonable agency int«rpreta-

tion. 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 [expression 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 busi-

ness of banking.’”); see also Ronald M. Levin, The Anatomy of

Chevron: Step Two Reconsidered, 72 CH1.-KENT L. REV. 1253,

1280 (1997) (“[P]ost-Chevron cases have often set aside agency in-

terpretations by drawing upon the full range of conventional statu-

tory construction techniques at step on Arguments from statutory

structure and purpose ... are regularly examined at that step.

So are canons of construction.”) (footnotes omitted).

“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.”

79a

sion that does not mention lawful presence or deferred

action, and that is listed as a “[mlJiscellaneous” definitional

provision expressly limited to § 1324a, a section concern-

ing the “Unlawful employment of aliens”—an exceedingly

unlikely place to find authorization for DAPA."™ Like-

wise, the broad grants of authority in 6 U.S.C. § 202(5),'”’

8 US.C. § 1103(a)(3),'"" and 8 U.S.C. § 1103(g)(2)'”

cannot reasonably be construed as assigning “decisions of

vast ‘economic and political significance,” '” such as

DAPA, to an agency.”

% See Whi’man 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 ... [ejstab-

lishing national immigration enforcement policies and priorities.”

™ “(The Secretary} ... shall establish such regulations; pre-

scribe such forms of bond, reports, entries, and other papers; issue

such instructions; and perform such other acts as he deems neces-

sary for carrying out his authority under the provisions of this

chapter.”

“The Attorney General shall establish such regulations, pre-

seribe such forms of bond, reports, entries, and other papers, issue

such instructions, review such administrative determinations in im-

migration proceedings, delegate such authority, and perform such

other acts as the Attorney General determines to be necessary for

carrying out this section.”

™ Util. 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 announce-

ment with a measure of skepticism. We expect Congress to speak

clearly if it wishes to assign to an agency decisions of vast ‘economic

80a

The interpretation of those provisions that the Secre-

tary advances would allow him to grant lawful presence

and political significance.’” (citation omitted) (quoting Brown &

Williamson, 529 U.S. at 159)).

' The 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 congressional 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 ETS! 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 intricate 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 different 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 Congress 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

statutory scheme”; City of Arlington v. F.C.C., 133 S. Ct. 1863, 1868

(2013) (“First, applying the ordinary tools of statutory construction,

the court must determine whether Congress has directly spoken to

the precise question at issue.”),; Util. Air, 134 S. Ct at 2441 (recog-

nizing the “fundamental canon of statutory construction that the

words of a statute must be read in their context and with a view to

their place in the overall statutory scheme”). Now, even assuming

the government had survived Chevron Step One, we would strike

down DAPA as manifestly contrary to the INA under Step Two.

See Chevron, 467 U.S. at 844; Mayo Found., 562 U.S. at 53.

Sla

and work authorization to any illegal alien in the United

States—an untenable position in light of the INA's intri-

cate system of immigration classifications and employ-

ment eligibility. Even with “special deference” to the

Secretary,'” the INA flatly does not permit the reclassi-

fication of millions of illegal aliens as lawfully present and

thereby make them newly eligible for a host of federal and

state benefits, including work authorization.

Presumably because DAPA is not authorized by

statute, the United States posits that its authority is

grounded in historical practice, but that “does not, by

itself, create power,” and in any event, previous de-

ferred-action programs are not analogous to DAPA.

“(Mjost ... discretionary deferrals have been done on a

country-specific basis, usually in response to war, civil

unrest, or natural disasters,” but DAPA is not such a

® Texas v. United States, 106 F.3d at 665 (“Courts must give

special deference to congressional and executive branch policy

choices pertaining to immigration.”).

™ Medellin v. Texas, 552 U.S. 491, 532 (2008) (quoting Dames &

Moore v. Regan, 453 U.S. 654, 686 (1981)). But see NLRB v. Noel

Canning, 134 S. Ct. 2550, 2560 (2014) (“[T Jhe longstanding ‘practice

of the government’ can inform our determination of ‘what the law

is.’” (citation omitted) (quoting McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316, 401 (1819); Marbury v. Madison, 5 U.S. (1 Cranch) 137,

177 (1803))).

1% ANDORRA BRUNO ET AL., CONG. RESEARCH SERV., ANALYSIS

OF JUNE 15, 2012 DHS MEMORANDUM, EXERCISING PROSECU-

TORIAL DISCRETION WITH RESPECT TO INDIVIDUALS WHO CAME

TO THE UNITED STATES AS CHILDREN 9 (July 13, 2012); see

CHARLOTTE J. MOORE, CONG. RESEARCH SERV., ED206779,

REVIEW OF U.S. REFUGEE RESETTLEMENT PROGRAMS AND

POLICIES 9, 12-14 (1980).

82a

program. Likewise, many of the previous programs

were bridges from one legal status to another,'” whereas

DAPA awards lawful presence to persons who have never

had a legal status” and may never receive one.’”

' See Voluntary Departure for Out-of-Status Nonimmigrant H-1

Nurses, 43 Fed. Reg. 2776, 2776 (Jan. 19, 1978) (deferring action on

the removal of nonimmigrant nurses whose temporary licenses

expired so that they could pass permanent licensure examinations);

Memorandum from Michael Cronin, Acting Exec. Assoc. Comm’r,

Office of Programs, INS, to Michael Pearson, Exec. Assoc. Comm’r,

Office of Field Operations, INS 2 (Aug. 30, 2001) (directing that

possible victims of the Victims of Trafficking and Violence Protec-

tion Act of 2000 (“VTVPA”), Pub. L. No. 106-386, 114 Stat. 1464,

“should not be removed from the United States until they have had

the opportunity to avail themselves of the ... VTVPA,” including

receipt of a T- or U-visa); Memorandum from Paul Virtue, Acting

Exec. Assoc. Comm’r, INS, to Reg’! Dirs., INS, et al. 3 (May 6, 1997)

(utilizing deferred action for VAWA self-petitioners “pending the

availability of a visa number”); Press Release, USCIS, USCIS An-

nounces Interim Relief for Foreign Students Adversely Impacted

by Hurricane Katrina 1 (Nov. 25, 2005) (deferring action on students

“based upon the fact that the failure to maintain status is directly

due to Hurricane Katrina”); see also United States ex rel. Parco v.

Morris, 426 F. Supp. 976, 980 (E.D. Pa. 1977) (discussing an INS

policy that allowed aliens to “await the availability of a [Third Pref-

erence} visa while remaining in this country” under “extended vol-

untary departure”).

' DAPA Memo at 4 (limiting DAPA to persons who “have no

lawful status”).

'" Jd. at 5 (specifying that DAPA “confers no ... immigration

status or pathway to citizenship”). Throughout the dissent is the

notion that DHS must pursue DAPA because Congress’s funding

decisions have left the agency unable to deport as many illegal aliens

as it would if funding were available. But the adequacy or insuffi-

ciency of legislative appropriations is not relevant to whether DHS

has statutory authority to implement DAPA. Neither our nor the

83a

Although the “Family Fairness” program did grant

voluntary departure to family members of legalized aliens

while they “waitj/ed] for a visa preference number to

become available for family members,” that program was

interstitial to a statutory legalization scheme.” DAPA

dissent’s reasoning hinges on the budgetary feasibility of a more

thorough enforcement of the immigration laws; instead, our conclu-

sion turns on whether the INA gives DHS the power to create and

implement a sweeping class-wide rule changing the immigration

status of the affected aliens without full notice-and-comment rule-

making, especially where—as here—the directive is flatly contrary

to the statutory text.

The dissent’s repeated references to DAPA as the appropriate

continuation of a longstanding practice, see, e.g., Dissent at 2, badly

mischaracterizes the nature of DAPA. Previous iterations of de-

ferred action were limited in time and extent, affecting only a few

thousand aliens for months or, at most, a few years. MEMORAN.

DUM ON THE DEP’T OF HOMELAND SEC.’S AUTH. TO PRIORITIZE

REMOVAL OF CERTAIN ALIENS UNLAWFULLY PRESENT IN THE

UNITED STATES AND TO DEFER REMOVAL OF OTHERS, Dep't of

Justice, Office of Legal Counsel, at *15-*17 (Nov. 19, 2014).

Nothing like DAPA, which alters the status of more than four

million aliens, has ever been contemplated absent direct statutory

authorization. In its OLC memorandum, the Department of Jus-

tice noted that “extending deferred action to individuals who satis-

fied these and other specified criteria on a class-wide basis would

raise distinct questions not implicated by ad hoc grants of deferred

action.” /d. at*18n.8. Deferred action may be a decades-old tool,

but it has never been used to affect so many aliens and to do so for so

expansive a period of time.

%® See Memorandum from Gene McNary, Comm’r, INS, to Reg’!

Comm'rs, INS 1 (Feb. 2, 1990) (authorizing extended voluntary

departure and work authorization for the spouses and children of

aliens who had been granted legal status under the Immigration

Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359);

see also Memorandum from Donald Neufeld, Acting Assoc. Dir.,

84a

is far from interstitial: Congress has repeatedly declined

to enact the Development, Relief, and Education for Alien

Minors Act (“DREAM Act”), features of which closely

resemble DACA and DAPA.

Historical practice that is so far afield from the chal-

lenged program sheds no light on the Secretary’s author-

ity to implement DAPA. Indeed, as the district court

recognized, the President explicitly stated that “it was the

failure of Congress to enact such a program that promp-

ted him ... to ‘change the law.’”™ At oral argument,

and despite being given several opportunities, the attor-

ney for the United States was unable to reconcile that

remark with the position that the government now takes.

And the dissent attempts to avoid the impact of the

President’s statement by accusing the district court and

this panel majority of “relying ... on selected excerpts

of the President’s public statements.” Dissent at 24, 33

n.4l.

USCIS, to Field Leadership, USCIS 1 (Sept. 4, 2009) (authorizing

deferred action for “the surviving spouse of a deceased U.S. citizen

if the surviving spouse and the U.S. citizen were married less than 2

years at the time of the citizen’s death” because “no avenue of

immigration relief exist(ed)” and “[tJhis issue has caused a split

among the circuit courts of appeal and is also the subject of pro-

posed legislation in ... Congress”).

'” “( A] bill that would have become the ‘DREAM’ Act never be-

came law(; it] passed the House of Representatives during the 111th

Congress and then stalled in the Senate.” Common Cause v.

Biden, 748 F.3d 1280, 1281 (D.C. Cir.) (citing H.R. 5281, 111th Cong.

(2010)), cert. denied, 135 S. Ct. 451 (2014)).

™ Dist. Ct. Op., 86 F. Supp. 3d at 657 & n.71 (quoting Press Re-

lease, Remarks by the President on Immigration—Chicago, I1]., The

White House Office of the Press Sec’y (Nov. 25, 2014)).

85a

The dissent repeatedly claims that congressional

silence has conferred on DHS the power to act. E.g.,

Dissent at 46-47. To the contrary, any such inaction

cannot create such-power:

“{DJeference is warranted only when Congress has left

a gap for the agency to fill pursuant to an express or

implied ‘delegation of authority to the agency.’”

Chevron[,] 467 U.S. at 843-44[]. To suggest, as the

[agency] effectively does, that Chevron step two is im-

plicated at any time a statute does not expressly ne-

gate the existence of a claimed administrative power

... 1s both flatly unfaithful to the principles of admin-

istrative law ... and refuted by precedent... .

Were courts to presume a delegation of power absent

an express withholding of such power, agencies would

enjoy virtually limitless hegemony, a result plainly out

of keeping with Chevron and quite likely with the

Constitution as well.

Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995).

Through the INA’s specific and intricate provisions,

“Congress has ‘directly addressed the precise question at

issue.” Mayo Found., 562 U.S. at 52. As we have indi-

cated, the INA prescribes how parents may derive an

immigration classification on the basis of their child’s

status and which classes of aliens can achieve deferred

action and eligibility for work authorization. DAPA is

foreclosed by Congress’s careful plan; the program is

86a

“manifestly contrary to the statute”™’ and therefore was

properly enjoined.”

VIII.

The states have satisfied the other requirements for

a preliminary injunction. They have demonstrated “a

substantial threat of irreparable injury if the injunction is

not issued.” Sepulvado, 729 F.3d at 417 (quoting Byrum,

566 F.3d at 445). DAPA beneficiaries would be eligible

for driver’s licenses and other benefits, and a substantial

number of the more than four million potential benefi-

ciaries—many of whom live in the plaintiff states—would

take advantage of that opportunity. The district court

found that retracting those benefits would be “substan-

tially difficult—if not impossible,” Dist. Ct. Op., 86

F’. Supp. 3d at 673, and the government has given us no

reason to doubt that finding.

The states have shown “that the threatened injury if

the injunction is denied outweighs any harm that will re-

sult if the injunction is granted.” Sepulvado, 729 F.3d at

417 (quoting Byrum, 566 F.3d at 445). The states have

alleged a concrete threatened injury in the form of mil-

lions of dollars of losses.

The harms the United States has identified are less

substantial. It claims that the injunction “obstructs a

” Mayo Found., 562 U.S. at 53 (quoting Household Credit Servs.,

Inc. v. Pfennig, 541 U.S. 232, 242 (2004)).

* We do not address whether single, ad hoc grants of deferred

action made on a genuinely case-by-case basis are consistent with

the INA; we conclude only that the INA does not grant the Secre-

tary discretion to grant deferred action and lawful presence on a

classwide basis to 4.3 million otherwise removable aliens.

87a

core Executive prerogative” and offends separation-of-

powers and federalism principles. Those alleged harms

are vague, and the principles the government cites are

more likely to be affected by the resolution of the case on

the merits than by the injunction.

Separately, the United States postulates that the in-

junction prevents DHS from effectively prioritizing illegal

aliens for removal. But the injunction “does not enjoin or

impair the Secretary’s ability to marshal his assets or de-

ploy the resources of the DHS [or] to set priorities,” in-

cluding selecting whom to remove first, see Dist. Ct. Op.,

86 F. Supp. 3d at 678, and any inefficiency is outweighed

by the major financial losses the states face.

The government also complains that the injunction

imposes administrative burdens because DHS has al-

ready leased office space and begun hiring employees to

implement DAPA. Such inconvenie

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