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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2016

## Text

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No

————
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

v.

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)

2a

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__—.”

3a

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.°

I.
A.

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-

4a

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

5a

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

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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-

Ta

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)).

8a

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-

9a

contends that DAPA recipients would also become eligi-
ble for unemployment insurance.

B.

The states sued to prevent DAPA’s implementation on
three grounds. First, they asserted that DAPA violated
the procedural requirements of the APA as a substantive
rule that did not undergo the requisite notice-and-
comment rulemaking. See 5 U.S.C. § 553. Second, the
states claimed that DHS lacked the authority to 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.

I.

“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).

A.

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.

© See Crank, 539 F.3d at 1241-42 (reasoning that Wyoming was
entitled to “special solicitude” where its asserted injury was inter-
ference with the enforcement of state law).

© See generally Arizona v. United States, 132 S. Ct. at 2498-2501.

“ See Villas at Parkside Partners v. City of Farmers Branch, 726
F.3d 524, 536 (5th Cir. 2013) (en banc).

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

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.

B.

At least one state—Texas—has satisfied the first
standing requirement by demonstrating that it would
incur significant costs in issuing driver’s licenses to DAPA
beneficiaries. Under current state law, licenses issued to
beneficiaries would necessarily be at a financial loss. The
Department of 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

C.

Texas has satisfied the second standing requirement
by establishing that its injury is “fairly traceable” to
DAPA. It is undisputed that DAPA would enable 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.

D.

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.
E.

The United States submits that Texas’s theory of
standing is flawed because it has no principled limit. In
the government’s view, if Texas can 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.

W,

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).

© E.g..8 U.S.C. §§ 1613(c2G), 1621(b)(4), 1641.

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.”

A.

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.

B

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.”

2.

“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).

B.

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.’”””

A.

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.

B.

A binding rule is not required to undergo notice and
comment if it is one “of agency organization, procedure,
or practice.” § 553(b)(A). “[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.

C.

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 publ

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A03. Public record. Not legal advice.