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

No. 15-674

In THE

Supreme Court of the United States

UNITED STATES OF AMERICA, et al.,

Petitioners,

V.

STATE OF TEXAS, et al.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

LYNN K. RHINEHART

HAROLD C. BECKER

MATTHEW J. GINSBURG

Counsel of Record

815 Sixteenth Street, NW

Washington, DC 20006

(202) 637-5397

Peake Delancey Printers, LLC - (301) 341-4600 - Cheverty MD

i

TABLE OF CONTENTS

25

ii

TABLE OF AUTHORITIES

CASES: Page

Air Courier Conf. of America v.

American Postal Workers Union,

2) gg ae 21

Arizona v. United States,

sie 5 ee 112,33

Association of Data Processing Service

Organizations, Inc. v. Camp,

Se ee eR icnessrnnccedbiicenenttintuninicansinss 21

Clapper v. Amnesty Int'l USA,

EN es te incitccitcensneninnsbibitbocibadaien 6

Clarke v. Securities Industries Assn.,

OU 21

DaimlerChrysler Corp. v. Cuno,

IE SII cei cecnteialacaitdciecs acipliee 14

Dep’t of Commerce v. U.S. House of

Representatives, 525 U.S. 316 (1999) ...... 14

Hoffman Plastic Compounds, Inc. v. NLRB,

it 8 eee l

Juidice v. Vail, 430 U.S. 327 (1977) .............. 14

Los Angeles v. Lyons, 461 U.S. 95 (1983) ..... 6

Lujan v. Defenders of Wildlife,

is 48, nee 6, 11

Massachusetts v. EPA,

J) 8}, eee 10, 11, 12, 13

Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians v. Patchak,

8 Bs > Eee 21

iii

TABLE OF AUTHORITIES—Continued

Page

Mountain States Legal Found. v. Glickman,

92 F.3d 1228 (D.C. Cir. 1996)..................... 22, 23

Pennsylvania v. Kleppe,

533 F.2d 668 (D.C. Cir. 1976) ..............00..... 7, 8, 9, 22

Renne v. Geary, 501 U.S. 312 (1991) ............ 14, 15, 20

Reno v. American-Arab Anti-

Discrimination Comm.,

Be i ae I initencsnssticbesbisnenbinitilenaionnee 13

State of lowa ex rel. Miller v. Block,

771 F.2d 347 (8th Cir. 1985)................ 7, 8,9, 10, 22

Steel Co. v. Citizens for a Better Env’t,

I CE I cen ccrccrnitcmiommectnonivaptnatitiiiniioes 23

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) l

Texas v. United States,

86 F. Supp. 3d 591 (S.D. Tex. 2015) .......... 15, 22

Texas v. United States,

809 F.3d 134 (5th Cir. 2015)...........00.... passim

Wyoming v. Oklahoma,

BE ty ET TI ssi criccetniniccsienenoasnitsisdctniatdenn 6, 7,9

CONSTITUTION, STATUTES AND REGULATIONS:

U.S. Const.:

(BRE og ETSIIE UBC NM eee re et Ie ADEN We passim

Administrative Procedure Act,

5 U.S.C. § 500 et seq.

UR 20

iv

TABLE OF AUTHORITIES—Continued

Page

Clean Air Act, 42 U.S.C. § 7401 et seq.

Oe WAR © PID vseitcscscasiniececsasscnsdsscs 11

Ge SIT, © FCI vvcevesiscccscvccnousssscoccesss 1]

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996,

Pub. L. No. 104-208, 110 Stat. 3009-546... 12

Immigration and Nationality Act,

8 U.S.C. § 1101 et seq.

i kL ee Coes 12

Sr I 13

i REE LEAR it l oe 13

REAL ID Act of 2005, Pub. L. No. 109-13,

Div. B, 119 Stat. 302

49 U.S.C. § 30301 mote... ccccccsssees if)

va 2 EERE OS WW Od SPO ERED 12

be 6 | SORES SCR ey a ae 12

a | eS eee ee ee 24

ct | SEC Pe een oer ae 25

OD a I lai cintsiccncarietnniecpniensnseianiaindi eens 24

ee i Miiercipnenesidinescedenibeaciniesiiae: 25

TEX. TRANSP. CODE ANN. § 521.421(a) ............. 17

Vv

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS:

Jeh Charles Johnson, Secretary, Dep't of

Homeland Security, Exercising

Prosecutorial Discretion with Respect

to Individuals 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 (Nov. 20, 2014)...........c0cccccccceee

Jeffrey S. Passel, Senior Demographer, Pew

Research Center, Securing the Border:

Defining the Current Population Living

in the Shadows and Addressing Future

Flows: Hearing Before the Senate

Committee on Homeland Security and

Governmental Affairs, 114th Cong.

(March 26, 2015) (Written Testimony) ....

Stephen M. Shapiro et al., Supreme Court

Procedure (10th ed. 2013) ...........c0cc eee

13A Charles Alan Wright & Arthur R. Miller

et al., Federal Practice and Procedure

RISENER a CRSP boo OO

N.C. Dep’t. of Transportation, Div. of Motor

Vehicles, Driver License Program

Continuation Review (March 2, 2012) ...

Tenn. Dep’t. of Safety & Homeland Security,

tg gee

Page

3

22, 23

18

18

vi

TABLE OF AUTHORITIES—Continued

Page

Tex. Dep't. of Public Safety, AY/6-17 DPS

Resource Book (Feb. 1, 2015)..............0006 17, 18

U.S. Citizenship and Immigration Services,

Data Set: Form I-821D Deferred Action

for Childhood Arrivals (Through Fiscal

Year 2015 4th Qtr) (Dec. 4, 2015) .......... 16

l

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The American Federation of Labor and Congress

of Industrial Organizations (AFL-CIO) is a federation

of 57 national and international labor organizations

with a total membership of approximately 12.2 million

working men and women.’ The AFL-CIO has long

been concerned with federal immigration law as it af-

fects the many members of its affiliated unions who

are immigrants to this nation as well as the rights of

immigrant workers more generally. For this reason,

the AFL-CIO has filed briefs as amicus curiae both in

cases involving state efforts to regulate immigration,

see Arizona v. United States, 132 S. Ct. 2492 (2012), as

well as cases involving the interplay of federal immi-

gration and labor law, see Hoffman Plastic Com-

pounds, Inc. v. NLRB, 535 U.S. 137 (2002); Sure-Tan,

Inc. v. NLRB, 467 U.S. 883 (1984).

The reason for the AFL-CIO’s interest in this partic-

ular case is straightforward. The current unautho-

rized immigrant population in the United States is

approximately 11.2 million. Jeffrey S. Passel, Senior

' Counsel for the petitioners and counsel for the intervenor-

respondents have each filed blanket consents to the filing of

amicus curiae briefs in support of either party or of neither

party with the Court. Counsel for the respondents has con-

sented to the filing of this amicus brief. No counsel for a party

authored this brief amicus curiae in whole or in part, and no

person or entity, other than the amicus, made a monetary con-

tribution to the preparation or submission of this brief.

2

Demographer, Pew Research Center, Securing the

Border: Defining the Current Population Living in

the Shadows and Addressing Future Flows: Hearing

Before the Senate Committee on Homeland Security

and Governmental Affairs, 114th Cong. (March 26,

2015) (Written Testimony, pp. 1-2). Of this total, ap-

proximately 8.1 million unauthorized immigrants are

employed, making up 5.1 percent of the total U.S.

labor force. /d. at 6. This population is concentrated

in several industries in which AFL-CIO-affiliated

unions have a strong presence, including meatpack-

ing, leisure and hospitality, construction, domestic

services, and agriculture. /d. at 7.

In order to adequately represent these employees

and their co-workers, AFL-CIO-affiliated unions — and,

it should be said, the employers with whom our affili-

ated unions bargain —require certainty regarding the

employment rights of unauthorized immigrant em-

ployees. When states are allowed to interfere with the

federal government's exclusive role in regulating im-

migration matters it becomes extremely difficult for

unions to undertake their representational duties on

behalf of these workers. If the court of appeals’ stand-

ing decision is sustained, individual states will be able

to routinely second-guess federal imumigration policies,

creating significant uncertainty for unions that repre-

sent immigrant workers as well as the employers who

employ them. For this reason, the AFL-CIO submits

this brief amicus curiae explaining why Texas lacks

standing to bring its challenge in this case.’

* For the reason stated, the AFL-CIO limits its arguments to

addressing why Texas lacks standing under Article III of the

United States Constitution and standing under the Administra-

3

SUMMARY OF ARGUMENT

The Court lacks jurisdiction over this case. The

court of appeals concluded that Texas had standing

to bring this case based on its finding that “Texas

subsidizes its [driver’s] licenses and would lose a

minimum of $130.89 on each one it issued to a

DAPA beneficiary.” Texas v. United States, 809

F.3d 134, 155 (5th Cir. 2015). See also ibid. (“licenses

issued to [DAPA] beneficiaries would necessarily

be at a financial loss”). Any cost to Texas from issu-

ing driver’s licenses to individuals who receive de-

ferred action as a result of the Deferred Action

Guidance’ is, however, an insufficiently direct injury

to constitute a basis for Article III standing. And, con-

trary to Texas’ claim, states are not entitled to special

solicitude in the standing analysis when they seek to

challenge decisions concerning federal immigration

law.

tive Procedure Act (APA), 5 U.S.C. § 500 et seq., to bring its chal-

lenge in this case. The AFL-CIO agrees fully with the arguments

presented by the United States concerning the lawfulness of the

Deferred Action Guidance under the APA and the Constitution.

‘ Jeh Charles Johnson, Secretary, Dep't of Homeland Secu-

rity, Exercising Prosecutorial Discretion with Respect to In-

dividuals 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 (Nov. 20, 2014) (“the De-

ferred Action Guidance” or “Guidance”). One of the policies set

forth in the Guidance, a deferred action policy relevant to cer-

tain parents of U.S. citizen or legal permanent resident children,

is commonly referred to as “DAPA.” The court of appeals re-

ferred to the Guidance as “DAPA” and to individuals who would

receive deferred action as a result of the guidance as “DAPA

beneficiaries.” See, e.g., Texas, 809 F.3d at 147 n.11, 155.

4

Moreover, the court’s conclusion that any “licenses

issued to [DAPA] beneficiaries would necessarily be

at a financial loss” to Texas, ibid. (emphasis added) —

i.e., that Texas’ alleged injury is concrete and actual —

is not adequately supported by the sole declaration

the state submitted in support of that claim. That dec-

laration does not state that Texas subsidizes the is-

suance of driver's licenses and notably does not set

forth any historical data about the actual cost of issu-

ing driver's licenses to deferred action recipients, even

though Texas has issued many driver’s licenses to

Texas residents who received deferred action as a re-

sult of the Secretary of Homeland Security s 2012 De-

ferred Action for Childhood Arrivals (DACA)

guidance. Instead, the declaration provides general

estimates about the expected future cost of issuing

driver's licenses to individuals who would receive de-

ferred action as a result of the Guidance. Those esti-

mates are insufficiently clear to serve as a basis for

standing, exaggerating the number of additional em-

ployees needed to process driver's license applica-

tions and, as a result of an arithmetic error, doubling

the estimated cost of those additional employees.

Finally, even if the cost of issuing driver's licenses to

individuals who receive deferred action as a result of

the Guidance were a sufficient basis for Article II]

standing, that injury would not bring Texas within the

zone of interests of the Immigration and Nationality

Act (INA), 8 U.S.C. § 1001 et seq., as is required to have

standing to challenge the Guidance under the APA.

Texas’ interest in licensing drivers on its roads simply

bears no relation to federal immigration law. And, as

a matter of law, Texas cannot rely on other alleged in-

juries, which are clearly insufficient for Article III

5

standing purposes, to bring its claims within the zone

of interests of the INA.

ARGUMENT

1. The court of appeals’ conclusion that because

“Texas subsidizes its [driver’s] licenses,” Texas, 809

F.3d at 155, it has standing to challenge the Deferred

Action Guidance was error because such an injury is

not directly related enough to the Guidance to consti-

tute a basis for Article II] standing. Contrary to Texas’

claim, states are also not entitled to any special solic-

itude when they seek standing to challenge decisions

concerning federal immigration law. And, the court's

conclusion that any “licenses issued to [DAPA] bene-

ficiaries would necessarily be at a financial loss” to

Texas, ibid. (emphasis added) — i.e., that Texas’ al-

leged injury is concrete and actual — is not adequately

supported by the sole declaration the state submitted

in support of that claim.

a. Any cost to Texas from issuing driver's licenses

to individuals who receive deferred action as a result

of the Guidance is not directly related enough to the

Guidance to constitute a basis for Article III standing.

Texas’ sovereign decision to issue driver's licenses to

state residents who receive deferred action is entirely

unrelated to the federal government's decision to

issue the Guidance. And, the Guidance expresses no

view or concern about whether the state issues dri-

ver'’s licenses to individuals who receive deferred ac-

tion.

This Court has repeatedly admonished that, to have

standing, a “plaintiff must show that he ‘has sustained

or is immediately in danger of sustaining some direct

6

injury’ as the result of the challenged official conduct.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 579

(1992) (Kennedy, J., concurring in part and concurring

in the judgment) (quoting Los Angeles v. Lyons, 461

U.S. 95, 101-02 (1983)) (emphasis added). This re-

quirement is a key safeguard to “confin[ing] the Judi-

cial Branch to its proper, limited role in the

constitutional framework of Government.” Jd. at 581.

See also Clapper v. Amnesty Int'l USA, 133 S. Ct.

1138, 1146 (2013) (“The law of Article III standing,

which is built on separation-of-powers principles,

serves to prevent the judicial process from being used

to usurp the powers of the political branches.”). By al-

lowing Texas to use the incidental cost associated

with issuing driver's licenses to individuals who re-

ceive deferred action as an entry ticket into federal

court, the court of appeals’ standing decision improp-

erly draws the Judiciary into evaluating federal immi-

gration policy decisions that lie properly within “the

powers of the political branches,” Clapper, 133 S. Ct.

at 1146.

The court of appeals’ heavy reliance on Wyoming v.

Oklahoma, 502 U.S. 437 (1992), as a basis for its stand-

ing analysis, see Texas, 809 F.3d at 157-58, makes plain

the court’s error in disregarding the essential require-

ment that a plaintiff show that “he ‘has sustained or is

immediately in danger of sustaining some direct in-

jury’ as the result of the challenged official conduct.”

Lujan, 504 U.S. at 579, 581 (Kennedy, J., concurring in

part and concurring in the judgment) (quoting Lyons,

461 U.S. at 101-02) (emphasis added).

In finding that Wyoming had standing to challenge

an Oklahoma law requiring public utilities within the

i

state to use Oklahoma coal — and thus depriving

Wyoming of tax revenue from coal extracted in

Wyoming for sale in Oklahoma — this Court explained

that the key fact was that the Oklahoma law caused “a

direct injury in the form of a loss of specific tax rev-

enues” to Wyoming. Wyoming, 502 U.S. at 448 (em-

phasis added). The Court contrasted that

circumstance with cases “den|ying] standing to States

where the claim was that actions taken by United

States Government agencies had injured a State's

economy and thereby caused a decline in general tax

revenues.” Ibid. (citing Pennsylvania v. Kleppe, 533

F.2d 668 (D.C. Cir. 1976), cert. denied, 429 U.S. 977,

and State of Iowa ex rel. Miller v. Block, 771 F.2d 347

(8th Cir. 1985), cert. denied, 478 U.S. 1012 (1986)) (em-

phasis added).

The cases relied upon by the Court for the proposi-

tion that “actions taken by United States Government

agencies .. . [that] injure[] a State’s economy and

thereby caused a decline in general tax revenues,”

ibid., are an insufficient basis for standing illustrate

why the cost to Texas of issuing driver's licenses to in-

dividuals who receive deferred action as a result of

the Guidance is an entirely insufficient basis for stand-

ing as well.

Kleppe involved a claim by the State of Pennsylva-

nia against the federal Small Business Administration

(SBA) seeking to enjoin discontinuance of disaster re-

lief in the wake of a hurricane. 533 F:2d at 670. Penn-

sylvania argued that it had standing to bring its claim

on the basis that termination of federal relief would

harm its economy and lead to a reduction in state tax

revenues. /d. at 671. The court of appeals rejected

8

that argument, concluding that “that this is the sort of

generalized grievance about the conduct of govern-

ment, so distantly related to the wrong for which relief

is sought, as not to be cognizable for purposes of

standing.” Id. at 672.

As the court explained further:

“{T]he unavoidable economic repercussions of vir-

tually all federal policies, and the nature of the fed-

eral union as embodying a division of national and

state powers, suggest to us that impairment of state

tax revenues should not, in general, be recognized

as sufficient injury in fact to support state standing.

By analogy to the taxpayer standing cases, it seems

appropriate to require some fairly direct link be-

tween the state’s status as a collector and recipient

of revenues and the legislative or administrative ac-

tion being challenged. This would prevent state

standing in cases like the present one, where

diminution of tax receipts is largely an incidental

result of the challenged action.” 533 F.2d at 672.

Similarly, in Block, the State of lowa sued the Sec-

retary of Agriculture seeking an order requiring the

Secretary to implement several discretionary agricul-

tural relief programs in response to a severe drought.

771 F.2d at 348. Like Pennsylvania in Kleppe, lowa

claimed that it had standing to bring its suit based on

the loss of state tax revenues that would result from

the drought’s impact on agricultural production in the

state. Id. at 353. As in Kleppe, the court of appeals re-

jected that argument, “conclud[ing] that the State's al-

leged injury is insufficiently proximate to the actions

at issue” to constitute a proper basis for standing. /d.

at 354.

9

In this case, the cost to Texas from issuing driver's

licenses to individuals who receive deferred action as

a result of the Guidance is an expense paid out of the

public fisc rather than a diminution of taxes paid into

state coffers. But that distinction is of no material sig-

nificance; increased expenditures and decreased in-

come are two sides of the same coin. The key point is

that, as in Kleppe and Block, the cost of issuing dri-

ver's licenses to individuals who receive deferred ac-

tion as a result of the Guidance is “an incidental result

of the challenged action” that is “so distantly related

to the wrong for which relief is sought, as not to be

cognizable for purposes of standing.” Kleppe, 533 F.2d

at 672.

Unlike Wyoming — in which Oklahoma's law

requiring the purchase of Oklahoma coal by utili-

ties within the state “involved a direct injury [to

Wyoming] in the form of a loss of specific tax rev-

enues” that Wyoming received from companies that

extracted coal within the state for sale in Oklahoma,

502 U.S. at 448 (emphasis added) — the Deferred Ac-

tion Guidance does not cause any direct injury to

Texas.

Texas’ sovereign decision to issue driver's licenses

to state residents who receive deferred action is

unrelated to the Guidance and nothing in the Guid-

ance expresses a view or concern about whether the

state issues driver's licenses to individuals who

receive deferred action.‘ Texas's policy of issuing dri-

* The REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119

Stat. 302, permits states, but does not require them, to issue dri-

ver's licenses to deferred action recipients. 49 U.S.C. § 30301

note.

10

ver’s licenses to deferred action recipients pre-dates

the issuance of the Guidance. Texas, 809 F.3d at

155 n.56. That policy may be entirely sensible as a

means of ensuring safety on the state’s roads, but

nothing in the Guidance requires it. Conversely, no

individual who receives deferred action as a result

of the Guidance is required to seek a driver's license;

undoubtedly, some will, but many others will not

desire or meet the qualifications to do so. Texas,

therefore, can no more challenge the Deferred

Action Guidance on the basis of an incidental

effect on the cost of issuing driver's licenses than it

could challenge the U.S. Department of Veteran's Af-

fairs decision to build a hospital in a suburban loca-

tion on the basis that lack of public transportation will

increase demand for driver’s licenses from employees

and patients who can only access the facility by car.

In either case, the asserted injury to the state is

“insufficiently proximate,” Block, 771 F.2d at 354, to

the challenged federal action to provide a basis for

standing.

b. Nor does Massachusetts v. EPA, 549 U.S. 497

(2007), provide Texas a basis for standing. The court

of appeals held that Texas is entitled to “special solic-

itude” in the standing analysis because it is a state.

Texas, 809 F.3d at 151 (quoting Massachusetts, 549

U.S. at 520). Massachusetts does not, however, stand

for that sweeping proposition.

Massachusetts involved the state’s challenge to an

Environmental Protection Agency (EPA) decision not

to regulate greenhouse gases under the federal

Clean Air Act. Jd. at 504-05. In concluding that Mass-

achusetts could bring its claim, the Court explained

il

that it was “of critical importance to the standing

inquiry” that “Congress . . . authorized this type of

challenge to EPA action,” id. at 516 (citing 42 U.S.C.

§ 7607(b)(1)), observing that “‘Congress has the

power to define injuries and articulate chains of

causation that will give rise to a case or controversy

where none existed before,” ibid. (quoting Lujan,

504 U.S. at 580 (Kennedy, J., concurring in part

and concurring in the judgment)). In particular, the

Clean Air Act permits petitions for review challeng-

ing EPA actions relating to “standards applicable

to the emission of any air pollutant from any class

or classes of new motor vehicles or new motor vehi-

cle engines,” id. at 506 (quoting 42 U.S.C. § 7521(a)

(1)) - precisely what Massachusetts did in its

challenge.

Moreover, this Court found that Massachusetts

“alleged a particularized injury in its capacity as

a landowner” flowing directly from the EPA's failure

to regulate greenhouse gases that cause climate

change because “rising seas have already begun

to swallow Massachusetts’ coastal land” and

“[bjlecause the Commonwealth owns a substantial

portion of the state’s coastal property.” /d. at

522 (quotation marks omitted). It was only on the

basis of “th[e] procedural right [set forth in the Clean

Air Act] and Massachusetts’ stake in protecting its

quasi-sovereign interests” of avoiding the physical de-

struction of state-owned land that this Court deter-

mined that “the Commonwealth is entitled to special

solicitude in [this Court’s] standing analysis.” Jd. at

520.

Texas claims no analogous proprietary interest in

12

the enforcement of federal immigration law in this

case. And, unlike the Clean Air Act, nothing in the

INA “authorize[s] th[e] type of challenge to [DHS] ac-

tion,” Massachusetts, 549 U.S. at 516, brought by

Texas here. To the contrary, “[t]he Government of the

United States has broad, undoubted power over the

subject of immigration and the status of aliens.” Ari-

zona v. United States, 132 S. Ct. 2492, 2498 (2012). To

exercise this power, Congress has assigned the Sec-

retary of Homeland Security exclusive responsibility

to “[e]stablish[] national immigration enforcement

policies and priorities” and “[c]Jarry[] out. . . immigra-

tion enforcement functions.” 6 U.S.C. § 202(3) & (5).

See also 8 U.S.C. § 1103 (“The Secretary of Homeland

Security shall be charged with the administration and

enforcement of [the INA] and all other laws relating

to the immigration and naturalization of aliens.”). As

this Court has explained, “[i]t is fundamental that for-

eign countries concerned about the status, safety, and

security of their nationals in the United States must

be able to confer and communicate on this subject

with one national sovereign, not the 50 separate

states.” Arizona, 132 S. Ct. at 2498.

Further, in stark contrast to the judicial review pro-

vision of the Clean Air Act at issue in Massachusetts,

Congress has taken affirmative steps to shield the Sec-

retary of Homeland Security's “immigration enforce-

ment policies and priorities” and “immigration

enforcement functions,” 6 U.S.C. § 202(3) & (5), from

judicial review. Specifically, in the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub.

L. 104-208, 110 Stat. 3009-546, Congress added a new

provision to the INA titled “Limit on injunctive relief]:]”

13

“Regardless of the nature of the action or claim or

of the identity of the party or parties bringing the

action, no court (other than the Supreme Court)

shall have jurisdiction or authority to enjoin or re-

strain the operation of the provisions of chapter 4 of

title II, as amended by the Illegal Immigration Re-

form and Immigrant Responsibility Act of 1996 [8

U.S.C. §§ 1221-1231, concerning the removal of

aliens], other than with respect to the application

of such provisions to an individual alien against

whom proceedings under such chapter have been

initiated.” 8 USC § 1252(f)(1).

As this Court has explained, “[b]y its plain terms,

and even by its title, that provision is nothing more or

less than a limit on injunctive relief. It prohibits fed-

eral courts from granting classwide injunctive relief

against the operation of §§ 1221-1231, but specifies

that this ban does not extend to individual cases.”

Reno v. American-Arab Anti-Discrimination Comm.

(AADC), 525 U.S. 471, 481-82 (1999).

Congress has, in sum, expressed no “solicitude”

whatsoever to plaintiffs — “[rjegardless . . . of the iden-

tity of the party or parties bringing the action,” 8 USC

§ 1252(f)(1) — who seek “classwide injunctive relief

against the operation” of federal immigration policy,

AADC, 525 U.S. at 481-82, precisely the type of relief

Texas seeks here. And, this Court has made clear that

because “immigration policy” is a uniquely “federal

power” that “can affect trade, investment, tourism,

and diplomatic relations for the entire Nation,” Ari-

zona, 132 S. Ct. at 2498, states have no special au-

thority to challenge federal immigration decisions.

The court of appeals’ reliance on Massachusetts as a

14

basis for finding that Texas has standing to challenge

the Deferred Action Guidance was, therefore, mis-

placed.

c. In addition to the legal insufficiency of Texas’ ar-

gument in favor of standing, the evidence submitted

by Texas to the district court, and relied upon by the

court of appeals, does not support the court's finding

that if the Deferred Action Guidance were to take ef-

fect Texas would certainly suffer a financial loss as-

sociated with issuing driver's licenses to deferred

action recipients.°

“(T]he party asserting federal jurisdiction . . . has

the burden of establishing it.” DaimlerChrysler Corp.

v. Cuno, 547 U.S. 332, 342 n.3 (2006). To assure itself

of its own jurisdiction, this Court has not hesitated to

scrutinize declarations or affidavits relied upon by

lower courts as a basis for standing. See, e.g., Dep't of

Commerce v. U.S. House of Representatives, 525 U.S.

316, 330-33 (1999); Renne v. Geary, 501 U.S. 312, 316-

18 (1991). In this regard, “[i]t is the responsibility of

the complainant clearly to allege facts demonstrating

that he is a proper party to invoke judicial resolution

» Although the United States has not challenged the factual

basis on which the courts below found standing, this Court has

stated that even where the issue is “raised by neither of the par-

ties, we are first obliged to examine the standing of appellees,

as a matter of the case-or-controversy requirement associated

with Art. III, to seek injunctive relief in the District Court.”

Juidice v. Vail, 430 U.S. 327, 331 (1977). See generally Stephen

Shapiro et al., Supreme Court Procedure 948 (10th ed. 2013)

(“When a standing problem is present, the Court will give seri-

ous attention to the matter even if not raised by the parties or

passed upon by the courts below.”).

15

of the dispute and the exercise of the court's remedial

powers.” Renne, 501 U.S. at 316 (citation and quota-

tion marks omitted).

The court of appeals based its finding that “Texas

subsidizes its [driver's] licenses” and that “licenses is-

sued to [DAPA] beneficiaries would necessarily be at

a financial loss,” on the district court’s factual finding

to that effect. See Texas, 809 F.3d at 155 & n.58 (cit-

ing Texas v. United States, 86 F. Supp. 3d 591, 617

(S.D. Tex. 2015)). That finding was based on a decla-

ration by Joe Peters, the Assistant Director of the

Texas Department of Public Safety (DPS) Driver Li-

cense Division (the “Peters declaration”), that Texas

submitted as an exhibit in support of its Reply in Sup-

port of Motion for Preliminary Injunction. 86 F. Supp.

3d at 617 (citing Doc. No. 64, Pl. Ex. 24 in the district

court docket). The facts alleged in that declaration

are insufficiently clear to “demonstrate[e] that [the

state] is a proper party to invoke judicial resolution of

this dispute.” Renne, 501 U.S. at 316.

As an initial matter, the Peters declaration does not

state that “Texas subsidizes its [driver's] licenses” or

that “licenses issued to [DAPA] beneficiaries would

necessarily be at a financial loss.” Texas, 809 F.3d at

155. And, although under current state law, Texas al-

ready issues driver's licenses to state residents with

deferred action, the state provided no historical data

regarding the specific costs it has experienced in this

regard. Notably, since 2012, the Secretary of Home-

land Security has granted deferred action to certain

individuals who were brought to this country as chil-

dren under the 2012 Deferred Action for Childhood

Arrivals (DACA) guidance, see Texas, 809 F.3d at 147

16

(discussing 2012 DACA guidance), including thou-

sands of individuals who reside in Texas, U.S. Citi-

zenship and Immigration Services, Data Set: Form

I-821D Deferred Action for Childhood Arrivals

( Through Fiscal Year S016 a Qtr) (ec. 4, wets),

Seihadiianaiaiinmaianteans Ges ocead thea

4, 2016). Yet, the Peters declaration conspicuously

makes no mention of the 2012 DACA guidance and

provides no information regarding the actual costs ex-

perienced by Texas to issue driver's licenses to mem-

bers of this large group of deferred action recipients.

Instead, the Peters declaration relies entirely on gen-

eral estimates of the additional costs that would be re-

quired in the future to issue driver's licenses to

individuals who would receive deferred action as a re-

sult of the Guidance. These estimates, reviewed care-

fully, do not clearly demonstrate that licenses issued to

individuals who receive deferred action as a result of

the Guidance will necessarily create additional costs for

Texas.

First, in a chart itemizing the component costs of

producing licenses, the declaration shows that the ac-

tual “[cjard [p]roduction [c]ost” for each driver's li-

cense is $1.72 per license, Peters Decl. J 8 Table,° plus

®° We arrive at that figure by dividing the total “Card Produc-

tion Cost” listed in column 7 by the “Customer Volume Sce-

nario” - i.e., the number of additional customers - listed in

column 1. Peters Decl. ¥ 8 Table. The unit cost of $1.72 per li-

cense remains constant at all customer volume levels listed in

the table.

17

an additional $.75 fee that Texas pays to the federal

government to verify each non-citizen license appli-

cant’s lawful presence in the United States, id. 4 5.

Taken together, these direct costs of producing a li-

cense are significantly less than the $24.00

fee that Texas charges to each license applicant to ob-

tain or renew a driver's license. Tex. TRANSP. CODE

ANN. § 521.421(a).

Texas claims in the declaration, however, that

additional employees, office space, and facilities

and technology would be needed to meet increased

demand for driver’s licenses if the Deferred Action

Guidance were to go into effect, with the cost of

additional employees making up the vast majority

of the added expense. See Peters Decl. § 8 &

Table. Texas’ estimates of the additional number

of employees required and the expense associated

with these employees, however, are greatly ex-

aggerated.

“DPS estimates that for each additional 1,750 driver

license customers seeking a limited term license, DPS

would have to hire 2.03 full time equivalent (FTE) em-

ployees to process those issuances,” Peters Decl. 4 7,

meaning that each full-time employee processes an

average of 862 driver's licenses per year or slightly

more than three driver's licenses per day. However,

DPS’s own public reporting shows that in 2013 — the

last year for which complete data is available — each

full time equivalent employee processed 2,349 dri-

ver's licenses per year or nine licenses per day. See

Tex. Dept. of Public Safety, AY16-17 DPS Resource

Book Appendix p. 2 (Feb. 1, 2015), available at

http://www. ite. tx.us/ /DPSResource-

18

Book.pdf (last checked March 4, 2016).' This figure

is consistent with the publicly-reported data on dri-

ver's license processing in other states.”

Even if Texas’ estimate of the number of dri-

ver’s licenses issued per employee is correct, the Pe-

ters declaration's calculation of the cost of additional

employees rests on a basic arithmetic error that al-

most doubles the estimated unit cost of issuing dri-

ver's licenses. The declaration calculates the number

of additional employees that would be needed based

on how many driver's licenses each employee can

For 2013, Texas reported that 2,209 full-time equivalent dri-

ver's license employees issued 5,189,231 driver's licenses, in-

cluding commercial driver's licenses, Tex. Dep't. of Public

Safety, AY16-17 DPS Resource Book at Appendix p. 2, or 2,349

driver's licenses per employee.

* In Tennessee, for example, employees issue an average of

about 15 driver's licenses and identification cards per day. Tenn.

Dep't. of Safety & Homeland Security, Safety FY 2012-2013 19,

available at https://www.tn.gov/assets/entities/ safetyattach-

ments/12-13AnnualReport.pdf (last checked March 4, 2016)

(stating that “daily average number of customers served per ex-

aminer statewide” was 26, and “[d]river licenses and identifica-

tion license transactions encompassed approximately 58.8

percent of all services provided at driver service centers”). In

North Carolina, 422 driver license examiners “complete an av-

erage of 10,000 driver license and identification card transac-

tions daily during peak periods and averages 8,500 outside peak

periods” for an average of 20 to 24 driver license and identifi-

cation card transactions per employee per day. N.C. Dep't. of

Transportation, Div. of Motor Vehicles, Driver License Program

Continuation movin 5, S (March 2, — onnee at

CR%20D0T%202012-03-02.paf (last shoched March 4, 2016).

19

process in a year, Peters Decl. § 7 (“for each addi-

tional 1,750 driver license customers seeking a limited

term license, DPS would have to hire 2.03 full time

equivalent (FTE) employees to process those is-

suances”), but calculates the cost of each additional

employee on a “[bjiennial” basis, id. § 8 Table (Col-

umn 4, “Biennial Costs for Additional Employees” )."

Obviously, in two years, a single employee can

process twice as many licenses as in one year. So, if

Texas wishes to calculate employee costs on a bien-

nial basis, it must also calculate the number of em-

ployees needed to process licenses on a biennial

basis, 7.e., half the number of employees would be re-

quired to process any given volume of licenses over

the course of two years as would be needed to do so

in one year. And, because the cost of additional em-

ployees makes up the vast majority of the added ex-

pense of issuing driver's licenses set forth in the

Peters declaration, this miscalculation almost doubles

Texas’ estimated cost of issuing each driver’s license.

In sum, the facts alleged in the sole declaration sub-

mitted by Texas as a basis for standing are insuffi-

* For example, at the “Customer Volume Scenario” of 25,000

additional applicants for driver's licenses, the declaration states

that 30.9 additional employees would be required, Peters Decl.

§ 8 Table, a figure that is consistent with the estimate that “for

each additional 1,750 driver license customers seeking a limited

term license, DPS would have to hire 2.03 full time equivalent

(FTE) employees,” id. ¥ 7. Yet, in calculating the cost of these

30.9 additional employees, the declaration uses the biennial cost

of employing each of these employees — approximately $124,000

per employee. See id. 4 8 Table (calculated by dividing the bi-

ennial cost for additional employees in Column 4 by the number

of additional employees listed in Column 2).

20

ciently clear to “demonstrat/e] that [the state] is a

proper party to invoke judicial resolution of this dis-

pute.” Renne, 501 U.S. at 316. Texas has failed to pro-

vide historical data describing the actual cost of

issuing driver's licenses to the many state residents

who have already received deferred action as a result

of the 2012 DACA guidance. And, Texas's estimate of

the future cost of issuing driver's licenses to individu-

als who receive deferred action as a result of the Guid-

ance are exaggerated and flawed. The court of

appeals’ conclusion that “Texas . .. would lose a min-

imum of $130.89 on each [driver’s license] it issued to

a DAPA beneficiary,” Texas, 809 F.3d at 155 - which

was entirely based on the Peters declaration — is

clearly incorrect.

2. Finally, Texas lacks standing under the APA to

challenge the Deferred Action Guidance because the

state's alleged injury — the cost of issuing driver's li-

censes to individuals who receive deferred action as a

result of the Guidance — does not fall within the zone

of interests protected by federal immigration law.

The APA's judicial review provision states that “[a]

person suffering legal wrong because of agency ac-

tion, or adversely affected or aggrieved by agency ac-

tion within the meaning of a relevant statute, is

entitled to judicial review thereof.” 5 U.S.C. § 702. “To

establish standing to sue under the APA,” therefore, a

plaintiff must “show[] that [he is] adversely affected,

i.e., ha[s] suffered an ‘injury in fact’” for purposes of

Article III, and “must establish that the injury he com-

plains of (his aggrievement, or the adverse effect

upon him) falls within the ‘zone of interests’ sought to

be protected by the statutory provision whose viola-

21

tion forms the legal basis for his complaint.” Air

Courier Conf. of America v. American Postal Work-

ers Union, 498 U.S. 517, 523-24 (1991) (quoting Lujan,

497 U.S. at 883) (emphasis in original). See also

Match-E-Be-Nash-She-Wish Band of Pottawatomi In-

dians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (an APA

plaintiff “must satisfy not only Article III's standing re-

quirements, but an additional test” of showing he is

“within the zone of interests” of the relevant statute)

(quotation marks omitted).

It is true, as the court of appeals recognized, that

statutory standing under the APA requires that the in-

terest asserted by the plaintiff only be “arguably

within the ‘zone of interests’ to be protected or regu-

lated by the statute’ that he says was violated.”

Match-E-Be-Nash-She-Wish Band, 132 S. Ct. at 2210

(quoting Association of Data Processing Service Or-

ganizations, Inc. v. Camp, 397 U.S. 150, 153 (1970)).

However, this relatively lenient test must nevertheless

be satisfied. The APA's judicial review provision “fore-

closes suit ... when a plaintiff's ‘interests are so mar-

ginally related to or inconsistent with the purposes

implicit in the statute that it cannot reasonably be as-

sumed that Congress intended to permit the suit.”

Ibid. (quoting Clarke v. Securities Industries Assn.,

479 U.S. 388, 399 (1987)).

It hardly requires explanation that Texas's interest

in issuing driver's licenses to its residents is “so mar-

ginally related to . . . the purposes implicit in the [INA]

that it cannot reasonably be assumed that Congress

intended to permit [such a] suit,” ¢bid., when it en-

acted that law. As we have already explained, Texas's

interest in licensing drivers on its roads bears no re-

22

lation to federal immigration law. And, even if federal

immigration enforcement has some incidental effect

on the costs borne by Texas to license drivers within

the state, those costs are no more proximately related

to the Secretary of Homeland Security's immigration

policy decisions than was Pennsylvania's loss of state

tax revenues to the Small Business Administration's

decision to discontinue disaster relief in Kleppe, 533

F.2d at 672, or lowa’s decline in tax income to the Sec-

retary of Agriculture’s decision not to provide agri-

cultural relief in Block, 771 F.2d at 353-54, both of

which were found insufficient to sustain even Article

[II standing.

Not surprisingly, then, in issuing the injunction in

this case, the district court did not rely on the cost to

Texas of issuing driver’s licenses to individuals who

receive deferred action as an injury that could bring

the state within the zone of interests of the INA for

APA standing purposes. Instead, the court relied on

very general conclusions that federal immigration

laws “were passed in part to protect the States and

their residents” and that, therefore, in the court’s view,

“[t}he fact that DAPA undermines the INA statutes en-

acted to protect the states puts the Plaintiffs squarely

within the zone of interest of the immigration statutes

at issue.” Texas, 86 F. Supp. 3d at 624.

That conclusion was clear error. “{O]n any given

claim the injury that supplies constitutional standing

must be the same as the injury within the requisite

‘zone of interests’ for purposes of prudential stand-

ing.” Mountain States Legal Found. v. Glickman, 92

F.3d 1228, 1232 (D.C. Cir. 1996). See also 13A Wright

& Miller, Federal Practice and Procedure § 3531.7, at

23

513 (“[T]he same interest must satisfy both tests.”).

The reason for that rule is straightforward: “A plaintiff

may appear who can show Article III injury as to an in-

terest that is not within the zone of interests protected

by the underlying . . . statutory principle invoked,” or

“who... can show an interest that is within the pro-

tected zone of interests but is not affected in a way

that satisfies the Article III tests|,]” ibid.:

“For example, if plaintiffs established an interest

sufficiently aligned with the purposes of [a federal

statute] for prudential standing, but failed to show

(for example) an adequate causal relation between

the agency decision attacked and any injury to that

interest, we could not adjudicate the claim — even if

plaintiffs had constitutional standing with respect

to some other interest that was outside the requi-

site ‘zone."” Mountain States Legal Found. , 92 F.3d

at 1232.

In this case, even if the district court were correct

that “DAPA undermines the INA statutes enacted to

protect the states {and thus] puts the Plaintiffs

squarely within the zone of interest of the immigra-

tion statutes at issue,” Texas, 86 F. Supp. 3d at 624,

Texas clearly would not have Article III standing to

pursue that extremely “generalized grievance” of the

sort “that the Constitution leaves for resolution

through the political process.” Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, 97 n. 2 (1998) (citation

and quotation marks omitted). Conversely, even if

Texas could show that it “had constitutional standing

with respect to some other interest that was outside

the requisite ‘zone [of interest] of federal imumigra-

tion law, Mountain States Legal Found., 92 F.3d at

24

1232, it could not rely on that distinct injury as a basis

for satisfying APA standing.

The court of appeals appears to have recognized the

district court's error, explaining that Texas could not

“satisf[y} the zone-of-interests test ... on account of a

general grievance” and instead focusing on “the same

injury that gives it Article III standing|[,}” Texas, 809

F.3d at 163, i.e., the cost of issuing driver's licenses to

individuals who receive deferred action as a result of

the Guidance. The court then held that this injury

brought Texas within the zone of interests of the INA

on the ground that driver's licenses allegedly

constitute a state or local “public benefit[] to illegal

aliens” of the sort that “Congress has explicitly al-

lowed states to deny.” Texas, 809 F.3d at 163 (citing 8

U.S.C. § 1621).

The court of appeals’ alternative ground for APA

standing, however, fares no better than the district

court’s analysis. The court of appeals rested its hold-

ing on an incorrect assumption that driver’s licenses

constitute a “state or local public benefit[]"under 8

U.S.C. § 1621. That law defines “state or local public

benefit” to include “professional licenses” and “com-

mercial licenses,” as well as a variety of “retirement,

welfare, health, disability, ... housing, . . . education,

food assistance, [and] unemployment benefits,” 8

U.S.C. § 1621(c)(emphasis added), but not driver's li-

censes. In any case, an individual who receives de-

ferred action remains ineligible for even those

benefits that do constitute “state or local public ben-

efits” under 8 U.S.C. § 1621. That is because the only

categories of aliens entitled to benefits are nonimmi-

grants and certain parolees — neither of whom are at

25

issue in this case — and “qualified aliens.” 8 U.S.C.

§ 1621(a). And, the statute defines the term “qualified

alien” to exclude deferred action recipients.

8 U.S.C. § 1641(b).

The court of appeals’ conclusion that the cost of is-

suing driver's licenses to individuals who receive de-

ferred action as a result of the Guidance brings Texas

within the zone of interests of the INA for APA stand-

ing purposes was, therefore, incorrect.

CONCLUSION

The Court should reverse the judgment of the court

of appeals.

Respectfully submitted,

LYNN K. RHINEHART

HAROLD ©. BECKER

MATTHEW J. GINSBURG

Counsel of Record

815 Sixteenth Street, NW

Washington, DC 20006

(202) 637-5397

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