< Back to Current Version

State Challenges to Federal Enforcement of Immigration Law: From the Mid-1990s to the Present

Changes from December 31, 2014 to May 12, 2015

This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with red strikethrough and textual matter added in the later version is indicated with blue.


. State Challenges to Federal Enforcement of Immigration Law: Historical Precedents and Pending Litigation in Texas v. United States Kate M. Manuel Legislative Attorney December 31, 2014May 12, 2015 Congressional Research Service 7-5700 www.crs.gov R43839 c11173008 State Challenges to Federal Enforcement of Immigration Law . Summary States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. Some states and localities, concerned that federal enforcement disrupts families and communities, or infringes upon human rights, have adopted Depending upon the jurisdiction’s specific concerns, this interest can be expressed in various ways, from the adoption of “sanctuary” policies limiting theirthe jurisdiction’s cooperation in federal efforts. Other states and localities, in contrast, concerned about the costs of providing benefits or services to unauthorized aliens, or such aliens settling in their communities, have adopted enforcement efforts to the enactment of measures to deter unauthorized aliens from entering or remaining within theirthe jurisdiction. In some cases, such states or localities have also sued to compel federal officials to enforce the INA and other relevant laws. In the mid-1990s, suits were filed by six states—Arizona, California, Florida, New Jersey, New York, and Texas—six states which were then home to over half the unauthorized aliens in the United States. Although somewhat different claims were made in each suit, the states generally asserted that federal officials’ alleged United States—Arizona, California, Florida, New Jersey, New York, and Texas—each filed suit alleging that federal officials’ failure to check unauthorized migration violated the Guarantee and Invasion Clauses of the U.S. Constitution, the Tenth Amendment, and various provisions of the INA. Concerns regarding standing—or who is a proper party to seek judicial relief from a federal court—were noted in some casessometimes noted. However, even when standing was assumed, states’ the constitutional claims were seen to involve nonjusticiable “political questions,” or to failfailed on their merits. The states’ statutory claims were similarly seen to involve matters that were committed to agency discretion by law and, thus, not reviewable by the courts. In three cases, the courts also noted that federal officials’ alleged failure to control unauthorized migration did not constitute a judicially reviewable “abdication” of their statutory responsibilitiesduties. Over a decade later, in 2011, Arizona asserted counterclaims challenging the federal government’s alleged failure to stop unauthorized migration in the litigation over the S.B. 1070 measure enacted into law by ArizonaArizona’s S.B. 1070 measure. Although the court presumed that Arizona had standing, it rejected Arizona’s claims regarding purported violations of the Invasion and Domestic Violence Clauses, the Tenth Amendment, and federal and immigration laws. Some claims were seen to be as precluded or otherwise settled by the litigation in the 1990searlier litigation. Others were seenfound to involve nonjusticiable political questions, or to fail on their merits. otherwise failed. The court also rejected the argument that the that federal officials had abdicated their statutory responsibilitiesduties. Subsequently, in 2012, Mississippi, along with some U.S. Immigration and Customs Enforcement (ICE) agents, challenged the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) initiative on the grounds that it runs afoul of the Take Care Clause, separation of powers, INA, and Administrative Procedure Act (APA). The ICE agents, at least initially, prevailed in their claim that DACA is contrary to the INA, (although their case was ultimately dismissed on other grounds and is currently(a decision affirmed on appeal). However, Mississippi was found to lack standing because it could not show that thosealiens granted deferred action through DACA would have been removed but for the Administration’s actions. Most recently, in December 2014, over 20 states challenged the Obama Administration’s new initiatives to expand DACA and create another DACA-like program. The states allege that these actions violate the Take Care Clause and the APA. One federal district court has already opined that the actions are unconstitutional. However, the court considered the question sua sponte when sentencing an alien prosecuted for illegal reentry and did not cite legal precedent for its conclusion. Other challenges to the Administration’s 2014 actions have also been filed. Congressional Research Service State Challenges to Federal Enforcement of Immigration Law DACA. Most recently, in December 2014, 27 states or their representatives filed suit challenging the Administration’s expansion of DACA and the creation of another DACA-like program for aliens who are parents of U.S. citizens or lawful permanent residents (commonly known as DAPA). The states allege that these programs run afoul of the Take Care Clause and separation of powers principles of the Constitution, the INA, and substantive and procedural requirements of the APA. In February 2015, a federal district court found that Texas, at least, has standing to challenge DAPA and the DACA expansion, and that the challenged programs are judicially reviewable. The district court also enjoined implementation of these programs after finding that the states are likely to prevail on the merits of their argument that the memorandum establishing these initiatives constitutes a substantive rule, but was issued without compliance with the notice-andcomment procedures required for substantive rules under the APA. The Administration has appealed that decision. The district court continues to hear arguments on the states’ other claims. c11173008 Congressional Research Service State Challenges to Federal Enforcement of Immigration Law . Contents Litigation in the Mid-1990s ............................................................................................................. 2 Naturalization Clause ................................................................................................................ 3 Guarantee Clause ....................................................................................................................... 34 Invasion Clause ......................................................................................................................... 4 Tenth Amendment...................................................................................................................... 45 Statutory Provisions................................................................................................................... 56 Arizona’s Counterclaims in the S.B. 1070 Litigation ...................................................................... 78 Mississippi’s Claims in Crane v. Napolitano ................................................................................. 10 Challenge to the Obama Administration’s 2014 Actions ............................................................... 12 Pending Litigation as Compared to Earlier Litigation ................................................................... 13Texas v. United States and the Challenge to DAPA and the DACA Expansion ............................. 13 States’ Standing to Challenge DAPA and the DACA Expansion ............................................ 14 Reviewability under the APA .................................................................................................. 16 Failure to Engage in Rulemaking ............................................................................................ 18 Motion to Stay the Injunction, Appeal to the Fifth Circuit ...................................................... 19 Conclusion ..................................................................................................................................... 20 Contacts Author Contact Information........................................................................................................... 1722 c11173008 Congressional Research Service State Challenges to Federal Enforcement of Immigration Law . S tates and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens.1 Some states and localities, concerned that federal enforcement disrupts families and communities, or infringes upon human rights, have adopted “sanctuary” policies limiting their cooperation in federal efforts.2 Other states and localities, in contrast, concerned about the costs of providing benefits or services to unauthorized aliens, or such aliens settling in their communities, have adopted measures to deter unauthorized aliens from entering or remaining within their jurisdiction.3 In some cases, such states or localities have also sued to compel federal officials to enforce the immigration laws, or to compensate them for costs associated with unauthorized migration.4 This report provides an overview of prior and pending challenges by states to federal officials’ alleged failure to enforce the INA or other provisions of immigration law. It begins by discussing (1) the lawsuits filed by six states in the mid-1990s; (2) Arizona’s counterclaims to the federal government’s suit to enjoin enforcement of S.B. 1070; and (3) Mississippi’s challenge to the Deferred Action for Childhood Arrivals (DACA) initiative. It then describes the challenge brought by over 20 states in27 states or their representatives in December 2014 to the recently announced expansion of DACA and the creation of a similar program for unlawfully presentunauthorized aliens whose children are U.S. citizens or lawful permanent resident aliens (LPRs).5 The report concludes by exploring how the pending litigation resembles, and differs from, the prior litigation. The report does not address challenges to the federal government’s alleged failure to enforce the immigration laws that have been made by other parties, including private individuals, municipal officials, or, in one case, the people of a state (although not the state itself).6 1 permanent resident aliens (LPRs) (commonly known as DAPA).5 1 Among other things, the INA provides that aliens who enter or remain in the United States without authorization are subject to removal. See INA §212(a)(6), 8 U.S.C. §1182(a)(6) (prescribing the inadmissibility of illegal entrants and immigration violators); INA §237(a)(1), 8 U.S.C. §1227(a)(1) (prescribing the deportability of aliens who violate their immigration status or conditions of admission). The INA also provides for the initiation and conduct of removal proceedings, addresses whether aliens are to be detained pending removal, and expressly authorizes several types of relief from removal. See, e.g., INA §236, 8 U.S.C. §1226 (apprehension and detention of aliens); INA §239, 8 U.S.C. §1229 (initiation of removal proceedings); INA §240, 8 U.S.C. §1229a (formal removal proceedings); INA §240a, 8 U.S.C. §1229b (cancellation of removal). 2 For further discussion of “sanctuary” policies and the legal issues that may be raised by them, see generally CRS Report R43457, State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement, by Michael John Garcia and Kate M. Manuel. 3 States and localities have generally been seen to be preempted or otherwise barred from adopting measures that would deter unauthorized aliens from settling or remaining in their jurisdiction by “paralleling” federal immigration laws. See generally CRS Report R42719, Arizona v. United States: A Limited Role for States in Immigration Enforcement, by Kate M. Manuel and Michael John Garcia. But see CRS Report R41991, State and Local Restrictions on Employing Unauthorized Aliens, by Kate M. Manuel (finding that states and localities are generally not preempted from revoking the licenses of businesses that employ unauthorized aliens, or requiring employers within their jurisdiction to check employees’ work authorization in the federal government’s E-Verify database). 4 States and localities are sometimes said to have been “forced” to bring such suits because they are seen to be preempted from enforcing federal immigration law on their own behalf. See, e.g., Texas v. United States, No. 1:14-cv254, Plaintiffs’ Motion for Preliminary Injunction and Memorandum in Support, at 26 (filed S.D. Tex., filed Dec. 4, 2014). 5 Department of Homeland Security (DHS) Secretary Jeh Charles Johnson, Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Children Are U.S. Citizens or Permanent Residents, Nov. 20, 2014 (copy on file with the author). 6 See, e.g., Arpaio v. Obama, No. 14-01966, 2014 U.S. Dist. LEXIS 176758 (D.D.C., Dec. 23, 2014) (dismissing, for lack of standing, a challenge to the Obama Administration’s deferred action initiatives brought by Sheriff Joe Arpaio of Maricopa County, Arizona, in both his personal and official capacities); People of the State of Colorado ex rel. Suthers (continued...) Congressional Research Service 1 State Challenges to Federal Enforcement of Immigration Law Litigation in the Mid-1990s In the mid-1990s, six states which were then home to over half the unlawfully present aliens in the Other states have filed amicus briefs supporting the programs to grant deferred action to certain unauthorized aliens that the Obama Administration announced in November 2014. See, e.g., Texas v. United States, No. 1:14-cv-00254, States’ Motion for Leave to Participate as Amici Curiae and Brief in Opposition to Plaintiffs’ Motion for Preliminary Injunction (S.D. Tex., filed Jan. 12, 2015) (copy on file with the author). Briefs in support of these programs have also been filed by some local governments, including local governments in states which are challenging the programs. See, e.g., Texas v. United States, No. 1:14-cv-254, Brief for Amici Curiae the Mayors of New York and Lost Angeles, the Mayors of Thirty-One Additional Cities, the United States Conference of Mayors, and the National League of Cities in Opposition to Plaintiffs’ Motion for Preliminary Injunction (S.D. Tex., filed Jan. 27, 2015) (copy on file with the author). c11173008 Congressional Research Service 1 State Challenges to Federal Enforcement of Immigration Law . The report does not address challenges to the federal government’s alleged failure to enforce the immigration laws that have been made by other parties, including private individuals, municipal officials, or, in one case, the people of a state (although not the state itself).6 But see CRS Legal Sidebar WSLG1145, “Sheriff Joe” Found to Lack Standing to Challenge the Obama Administration’s Immigration Enforcement Priorities and Deferred Action Initiatives, by Kate M. Manuel. Litigation in the Mid-1990s In the mid-1990s, six states which were then home to over half the unauthorized aliens in the United States7—Arizona, California, Florida, New Jersey, New York, and Texas—each challenged the federal government’s “fail[ure] to control illegal immigration.”8 Each case raised somewhat different issues.9 However, all resulted in losses for the states both before the reviewing federal district court and on appeal. Limitations on standing—or who is a proper party to seek judicial relief from a federal court—were noted in some cases.10 However, even when standing was assumed,11 the states’ constitutional and statutory claims failed, as discussed below. The following sections discuss the most notable arguments made in the 1990s litigation, including those based on the Naturalization, Guarantee, and Invasion Clauses of the U.S. Constitution; the Tenth Amendment; and certain statutory provisions of the INA; as well as the response from the courts. (...continued) v. Gonzales, 558 F. Supp. 2d 6 See, e.g., Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014) (dismissing, for lack of standing, a challenge to the Obama Administration’s deferred action initiatives brought by Sheriff Joe Arpaio of Maricopa County, Arizona, in both his personal and official capacities); People of the State of Colorado ex rel. Suthers v. Gonzales, 558 F. Supp. 2d 1158 (D. Colo. 2007) (dismissing, in part, on standing grounds a challenge to the federal government’s alleged failure to “secure the nation’s borders against illegal immigration and to implement all of the requirements of the Intelligence Reform and Terrorism Prevention Act”); Sadowski v. Bush, 293 F. Supp. 2d 15 (D.D.C. 2003) (dismissing, in part, on standing grounds a challenge to the Executiveexecutive’s failure to “close” the U.S.-Mexico border and remove “suspected terrorists” from the country). 7 See, e.g., Rebecca L. Cook, et al., The Urban Institute, Fiscal Impacts of Undocumented Aliens: Selected Estimates for Seven States (1994). 8 Texas v. United States, 106 F.3d 661, 664 (5th Cir. 1997). 9 For example, New Jersey, alone among the states, maintained on appeal a claim that federal officials’ alleged failure to enforce the immigration laws constituted a “taking” of state property in violation of the Fifth Amendment to the U.S. Constitution. See State v. New Jersey, 91 F.3d 463, 468 (3d Cir. 1996) (finding that New Jersey’s alleged interests in tax revenues were not “sufficiently bound up with the reasonable expectations of the claimant to constitute ‘property’ for Fifth Amendment purposes”). 10 See Texas, 106 F.3d at 664 (noting that the district court had dismissed Texas’s suit, in part, on standing grounds); Padavan v. United States, 82 F.3d 23, 25 (2d Cir. 1996) (noting questions as to standing); Chiles v. United States, 69 F.3d 1094, 1096 (11th Cir. 1995) (noting that the district court did not address the federal government’s argument that Florida lacked standing), aff’g 874 F. Supp. 1334 (S.D. Fla. 1994). Standing requirements derive from Article III of the Constitution, which confines the jurisdiction of federal courts to actual “Cases” and “Controversies.” U.S. Const., art. III, §2, cl. 1. The case-or-controversy requirement has long been construed to restrict Article III courts to the adjudication of real, live disputes involving parties who have “a personal stake in the outcome of the controversy.” Baker, 369 U.S. at 186. Parties seeking judicial relief from an Article III court must generally show three things in order to demonstrate standing: (1) they have suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) the injury is likely to be redressed by a favorable decision. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Additional requirements involving so-called “prudential standing” could also present issues. These requirements are reflected in the rule that plaintiffs must be “within the ‘zone of interests to be protected or regulated by the statute or constitutional guarantee’” that they allege to have been violated. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982); Assoc. of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150 (1970). 11 See Texas, 106 F.3d at 664 n.3 (“For purposes of today’s disposition we assume, without deciding, that the plaintiffs have standing.”); Padavan, 82 F.3d at 25 (“We assume, without deciding, that these plaintiffs have the requisite standing to bring this action ...”); Chiles, 69 F.3d at 1096 (court “[a]ssuming ... standing,” as well as the justiciability of Florida’s claims).(continued...) c11173008 Congressional Research Service 2 State Challenges to Federal Enforcement of Immigration Law . The following sections discuss how the courts viewed the most notable arguments made in the 1990s litigation, including those based on the Naturalization, Guarantee, and Invasion Clauses of the U.S. Constitution; the Tenth Amendment; and provisions of the INA. Naturalization Clause Several states claimed that the federal government’s alleged failure to enforce the immigration laws imposed disproportionate costs upon them, which the federal government was obligated to reimburse pursuant to the Naturalization Clause.12 This clause—which has been recognized as one source of the federal government’s authority to regulate immigration13—expressly grants Congress the “Power ... [t]o establish a uniform Rule of Naturalization.”14 The states’ reasoning appears to have been that, insofar as the rule of naturalization is to be “uniform,” the effects of immigration upon the states must also be uniform and, if they are not, the federal government has an affirmative duty to compensate those states that can be seen as disproportionately affected by immigration.15 However, ignoring the question of whether Congress’s power over immigration is, in fact, co-extensive with its power over naturalization,16 the U.S. Courts of Appeals for the Second, Third, and Ninth Circuits found that the Naturalization Clause imposes no obligation upon the federal government to reimburse the states for any costs arising from an alleged “invasion” by unlawfully presentunauthorized aliens, or to protect the states from harm by “non-governmental third third parties.”17 To the contrary, as the Second Circuit noted, the Supreme Court has upheld the federal federal government’s exercise of its “plenary powers”—which include immigration18—“even though the effects of such exercises of power may be onerous to the states.”19 Guarantee Clause The courts similarly rejected the states’ claims that the federal government violated the Guarantee Clause by failing to compensate them for their “immigration-related expenditures.”20 The Guarantee Clause provides that the “United States shall guarantee to every State in this Union a Republican Form of Government,”21 and the states’ argument was essentially that the federal 12 (...continued) Florida’s claims). 12 See Texas, 106 F.3d at 664-65; New Jersey, 91 F.3d at 467; Padavan, 82 F.3d at 26-28. 13 See, e.g., Arizona v. United States,—U.S.—, 132 S. Ct. 2492, 2498 (2012) (viewing federal authority to regulate immigration as deriving, in part, from Congress’s power to establish a uniform rule of naturalization). 14 U.S. Const., art. I, §8, cl. 3. 15 Cf. New Jersey, 91 F.3d at 467 (“[Because power over immigration matters has ... been delegated to the federal government, ‘the State of New Jersey is powerless to effectively resolve the economic problems caused by the invasion of illegal immigrants into the State,’ ... [and the] defendants, in failing to implement their laws and policies have ‘forced the State of New Jersey[] to bear the burden of a responsibility which is that of the Nation as a whole pursuant to the Naturalization Clause.’”). 16 Naturalization refers to the process whereby aliens become U.S. citizens, and some have questioned whether Congress’s power over naturalization is to be seen as the basis for federal regulation of immigration. See, e.g., The Passenger Cases, 48 U.S. 283, 526-27 (1849) (Taney, C.J., dissenting). 17 New Jersey, 91 F.3d at 467 (“[W]e see no ground on which we could read into the Naturalization Clause an affirmative duty on the part of the federal government ...”). See also Texas, 106 F.3d at 665 (“[W]e perceive no basis for reading into the [Naturalization] clause an affirmative duty ...”); Padavan, 82 F.3d at 26-27 (similar). 18 For further discussion as to plenary power over immigration, see CRS Report R42924, Prosecutorial Discretion in Immigration Enforcement: Legal Issues, by Kate M. Manuel and Todd Garvey, at 4-5. 19 Padavan, 82 F.3d at 26-27 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819) (“It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.”)). 20 Texas, 106 F.3d at 664, 666-67. See also California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997); Arizona v. United States, 104 F.3d 1095, 1096 (9th Cir. 1997) (adopting the reasoning set forth in the California decision, previously cited); New York, 82 F.3d at 27-28; Chiles, 69 F.3d at 1097. 21 U.S. Const., art. IV, §4. 13 Congressional Research Service 3 State Challenges to Federal Enforcement of Immigration Law c11173008 Congressional Research Service 3 State Challenges to Federal Enforcement of Immigration Law . Guarantee Clause The courts similarly rejected the states’ claims that the federal government violated the Guarantee Clause by failing to compensate them for their “immigration-related expenditures.”20 The Guarantee Clause provides that the “United States shall guarantee to every State in this Union a Republican Form of Government,”21 and the states’ argument was essentially that the federal government deprived them of a republican form of government by “forcing” them to spend money on unlawfully presentunauthorized aliens that they would not have had to spend if these aliens had been been excluded or removed from the United States.22 This argument was, however, uniformly rejected rejected by the Second, Third, Fifth, Ninth, and Eleventh Circuits. In some cases, the courts did so by noting that the Supreme Court has generally viewed alleged violations of the Guarantee Clause as involving nonjusticiable “political questions,”23 or questions which are committed to the the executive and/or legislative branches, and which lack judicially discoverable and manageable standards for resolving.24 In other cases, the courts noted that nothing in the state’s complaint suggested that the state had been deprived of a republican form of government because the state’s “form [and] method of functioning” remained unchanged, and the state’s electorate had not been “deprived of the opportunity to hold state and federal officials accountable at the polls for their respective policy choices.”25 Invasion Clause Claims that the federal government’s alleged failure to enforce the immigration laws violated the Invasion Clause—which requires the federal government to protect the states “against Invasion”26—were similarly rejected by the Second, Third, Ninth, and Eleventh Circuits.27 Most commonly, this was because the courts viewed the legislative and executive branches as having been tasked with determining how the immigration laws are to be enforced,28 while the judicial 20 Texas, 106 F.3d at 664, 666-67. See also California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997); Arizona v. United States, 104 F.3d 1095, 1096 (9th Cir. 1997) (adopting the reasoning set forth in the California decision, previously cited); New York, 82 F.3d at 27-28; Chiles, 69 F.3d at 1097. 21 U.S. Const., art. IV, §4. 22 See, e.g., California, 106 F.3d at 1091. 23 while the judicial branch was seen to lack manageable standards for determining whether or when the entry of unauthorized aliens constituted an “invasion.”28 Several courts also found, in the alternative, that the Invasion Clause was inapplicable because the states were not threatened by incursions of foreign or domestic states.29 Tenth Amendment The states’ claims that the federal government violated the Tenth Amendment by “forcing” them to provide public benefits and services to unlawfully present aliens were also uniformly rejected by the Second, Third, Fifth, Ninth, and Eleventh Circuits.30 Here, the courts relied upon 22 See, e.g., California, 106 F.3d at 1091. See Texas, 106 F.3d at 666 (“The State suggests no manageable standards by which a court could decide the type and degree of immigration law enforcement that would suffice to comply with [the Guarantee Clause’s] strictures.”); California, 104 F.3d at 1091; Padavan, 82 F.3d at 28; Chiles, 69 F.3d at 1097. 24 See Baker v. Carr, 369 U.S. 186, 217 (1962) (“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it [among other things].”). 25 Texas, 106 F.3d at 666. See also California, 104 F.3d at 1091; New Jersey, 91 F.3d at 468; Padavan, 82 F.3d at 28. 26 U.S. Const., art. IV, §4. 27 California, 104 F.3d at 1091; New Jersey, 91 F.3d at 468; Padavan, 82 F.3d at 28; Chiles, 69 F.3d at 1097. 28 California, 104 F.3d at 1091; Padavan, 82 F.3d at 28; Chiles, 69 F.3d at 1097. 29 California, 104 F.3d at 1091 (basing this conclusion, in part, on James Madison’s statement in The Federalist No. 43 that the Invasion Clause serves to protect a state from “foreign hostility” and “ambitious or vindictive enterprises” on the part of other states or foreign nations); New Jersey, 91 F.3d 468; Padavan, 82 F.3d at 28; Chiles, 69 F.3d at 1097. 30 Texas, 106 F.3d at 665-66; California, 104 F.3d at 1091-93; New Jersey, 91 F.3d at 466-67; Padavan, 82 F.3d at 2829; Chiles, 69 F.3d at 1097. The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., amend. X. 23 Congressional Research Service 4 State Challenges to Federal Enforcement of Immigration Law somewhat different reasoning as to each of the three main types of benefits and services which the states alleged that the federal government had “commandeered.” First, as to Medicaid spending, the courts found that the states had agreed to provide certain emergency medical services to unlawfully present aliens as a condition of states’ receipt of federal funds.31 Such conditions, in the courts’ view, represented a permissible exercise of Congress’s spending power, rather than impermissible commandeering.32 Second, as to the costs of incarcerating unlawfully present aliens, the courts noted that these aliens were jailed pursuant to state law, rather than any dictates of the federal government and, thus, they found no commandeering.33 Third, and finally, as to elementary and secondary education, the courts noted that the states were obligated to provide such education to unlawfully present children as a result of the Constitution, as construed by the Supreme Court in Plyler v. Doe, not a command of the federal government.34 Thus, in the courts’ view, this, too, did not represent commandeering. Statutory Provisions The states’ statutory claims—alleging that federal officials violated specific provisions of the INA or other statutes by failing to exclude or remove unlawfully present aliens, or compensate the states for the costs associated with such aliens—were no more successful than their constitutional arguments. The states cited a number of provisions in support of these claims, including • INA §103(a)(5), which at that time tasked the Attorney General with the “duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens”;35 • then-8 U.S.C. §1252(a)(2)(A), which called for the Attorney General to take any alien convicted of an aggravated felony into custody upon the alien’s release from state custody or supervision;36 31 See, e.g., California, 104 F.3d at 1092. Notably, in the mid-1990s litigation, the states described both the legislative and executive branches as responsible for the federal government’s alleged failure to enforce the immigration laws. See, e.g., Texas, 106 F.3d at 665 (“We are not aware of and have difficulty conceiving of any judicially discoverable standards for determining whether immigration control efforts by Congress are constitutionally adequate.”); California, 104 F.3d at 1093 (“California contends that the costs of educating alien children stems from the Federal Government’s ineffective policing of national borders.”); New Jersey, 91 F.3d at 467 (“Neither the state’s incarceration of illegal aliens nor its obligation to educate illegal aliens results from any command by Congress.”); Padavan, 82 F.3d at 26 (“[T]he plaintiffs plead seven causes of action, claiming that the federal government had violated various statutory and constitutional provisions in carrying out its immigration policy.”) (emphases added). It was not until the Crane litigation, discussed below, that the (continued...) c11173008 Congressional Research Service 4 State Challenges to Federal Enforcement of Immigration Law . branch was seen to lack manageable standards for determining whether or when the entry of unauthorized aliens constituted an “invasion.”29 Several courts also found, in the alternative, that the Invasion Clause was inapplicable because the states were not threatened by incursions of foreign or domestic states.30 Tenth Amendment The states’ claims that the federal government violated the Tenth Amendment by “forcing” them to provide public benefits and services to unauthorized aliens were also uniformly rejected by the Second, Third, Fifth, Ninth, and Eleventh Circuits.31 Here, the courts relied upon somewhat different reasoning as to each of the three main types of benefits and services which the states alleged that the federal government had “commandeered.” First, as to Medicaid spending, the courts found that the states had agreed to provide certain emergency medical services to unauthorized aliens as a condition of states’ receipt of federal funds.32 Such conditions, in the courts’ view, represented a permissible exercise of Congress’s spending power, rather than impermissible commandeering.33 Second, as to the costs of incarcerating unauthorized aliens, the courts noted that these aliens were jailed pursuant to state law, rather than any dictates of the federal government and, thus, they found no commandeering.34 Third, and finally, as to elementary and secondary education, the courts noted that the states were obligated to provide such education to unauthorized alien children as a result of the Constitution, as construed by the Supreme Court in Plyler v. Doe, and not as the result of a command of the federal government.35 Thus, in the courts’ view, this, too, did not represent commandeering. (...continued) states began to frame the alleged failure to enforce the immigration laws in terms of the executive’s failure to execute the statutes as they were written and intended by Congress and, thus, to make claims regarding violations of the Take Care Clause. See supra “Mississippi’s Claims in Crane v. Napolitano.” 29 California, 104 F.3d at 1091; Padavan, 82 F.3d at 28; Chiles, 69 F.3d at 1097. 30 California, 104 F.3d at 1091 (basing this conclusion, in part, on James Madison’s statement in The Federalist No. 43 that the Invasion Clause serves to protect a state from “foreign hostility” and “ambitious or vindictive enterprises” on the part of other states or foreign nations); New Jersey, 91 F.3d 468; Padavan, 82 F.3d at 28; Chiles, 69 F.3d at 1097. 31 Texas, 106 F.3d at 665-66; California, 104 F.3d at 1091-93; New Jersey, 91 F.3d at 466-67; Padavan, 82 F.3d at 2829; Chiles, 69 F.3d at 1097. The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., amend. X. 32 See, e.g., California, 104 F.3d at 1092. 33 Id. (citing South Dakota v. Dole, 483 U.S. 203, 207-08 (1987) (upholding a statute wherein Congress conditioned access to highway funds on states establishing 21 years of age as the drinking age)). The Supreme Court’s 2012 decision in National Federation of Independent Business (NFIB) v. Sebelius elaborated upon the Court’s earlier holding in South Dakota by finding that compelling the states to participate in a “new grant program” or else face the possible loss of all federal funds under a current program was coercive and unconstitutional under the Tenth Amendment. See generally CRS Report R42367, Medicaid and Federal Grant Conditions After NFIB v. Sebelius: Constitutional Issues and Analysis, by Kenneth R. Thomas. However, the mid-1990s challenges did not claim that the federal government threatened the states with the loss of existing funding if the states did not adopt a new program, and the 2014 challenge does not allege commandeering at all. 33most recent state challenge, Texas v. United States, does not allege commandeering. See infra “Texas v. United States and the Challenge to DAPA and the DACA Expansion.” 34 California, 104 F.3d at 1092-93. 3435 Id. at 1093. In Plyler, the Court found that Texas deprived unlawfully presentunauthorized alien children of equal protection by denying denying them elementary and secondary education. The Court’s decision in Plyler is generally understood to reflect the unique unique facts of the case (i.e., denying “basic education” to minor children who were seen to be lawfully present as a result of their parents’ actions, not their own), rather than a view that unlawfully presentunauthorized aliens constitute a “suspect classification” for equal protection purposes. See generally CRS Report R43447, Unlawfully Present Aliens, Higher Education, In-State Tuition, and Financial Aid: Legal Analysis, by Kate M. Manuel. 35 Texas, 106 F.3d at 667; Padavan, 82 F.3d at 29-30; Chiles, 69 F.3d at 1096. This responsibility has since been transferred to the Secretary of Homeland Security. See INA §103(a)(5), 8 U.S.C. §1103(a)(5) (“[The Secretary] shall have the power and duty to classification” for (continued...) c11173008 Congressional Research Service 5 State Challenges to Federal Enforcement of Immigration Law . Statutory Provisions The states’ statutory claims—alleging that federal officials violated specific provisions of the INA or other statutes by failing to exclude or remove unauthorized aliens, or compensate the states for the costs associated with such aliens—were no more successful than their constitutional arguments. The states cited a number of provisions in support of these claims, including • INA §103(a)(5), which at that time tasked the Attorney General with the “duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens and shall, in his discretion, appoint for that purpose such number of employees of the Service as to him shall appear necessary and proper.”) 36 California, 104 F.3d at 1094. INA §238, 8 U.S.C. §1228, currently makes similar provisions for the “expedited removal” of aliens convicted of aggravated felonies, whose removal proceedings shall, among other things, be (continued...) 32 Congressional Research Service 5 State Challenges to Federal Enforcement of Immigration Law illegal entry of aliens”;36 • then-8 U.S.C. §1252(a)(2)(A), which called for the Attorney General to take any alien convicted of an aggravated felony into custody upon the alien’s release from state custody or supervision;37 • then-8 U.S.C. §1252(c), which established a six-month period following the issuance of a final order of removal for federal officials to effectuate the alien’s departure from the United States;3738 • then-8 U.S.C. §1252(l), which directed the Attorney General to begin deportation proceedings for aliens convicted of deportable offenses “as expeditiously as possible after the date of conviction”;3839 • INA §276, which establishes criminal penalties for “illegal reentry” (i.e., unlawfully re-entering the United States after having been removed);3940 and • 8 U.S.C. §1365, which provides for the reimbursement of costs incurred by the states for the imprisonment of unlawfully presentunauthorized aliens or Cuban nationals who have been convicted of felonies.40 However, all the states’ claims were seen to involve matters that were committed to agency discretion as a matter of law and, thus, not reviewable by the courts.41 Interestingly, all the statutes cited by the states in making these claims included the word “shall.”42 In no case, though, did an appellate court specifically address the statute’s use of this word, or whether “shall” could be construed to indicate mandatory agency action, in its published decision. This was so even when the provision of immigration law in question did not, in itself, include language which clearly evidenced that federal officials had some discretion in enforcing the law.43 It should also be noted that, in three of the six cases, the appellate court expressly rejected the suggestion that federal officials’ alleged failure to enforce the immigration laws could be seen as (...continued) have been convicted of felonies.41 (...continued) equal protection purposes. See generally CRS Report R43447, Unlawfully Present Aliens, Higher Education, In-State Tuition, and Financial Aid: Legal Analysis, by Kate M. Manuel. 36 Texas, 106 F.3d at 667; Padavan, 82 F.3d at 29-30; Chiles, 69 F.3d at 1096. This responsibility has since been transferred to the Secretary of Homeland Security. See INA §103(a)(5), 8 U.S.C. §1103(a)(5) (“[The Secretary] shall have the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens and shall, in his discretion, appoint for that purpose such number of employees of the Service as to him shall appear necessary and proper.”). 37 California, 104 F.3d at 1094. INA §238, 8 U.S.C. §1228, currently makes similar provisions for the “expedited removal” of aliens convicted of aggravated felonies, whose removal proceedings shall, among other things, be conducted in a “manner which eliminates the need for additional detention at any [DHS] processing center ... and in a manner which assures expeditious removal following the end of the alien’s incarceration for the underlying sentence.” 3738 California, 104 F.3d at 1094-95. INA §241(a)(1)(A), 8 U.S.C. §1231(a)(1)(A) currently states that “[e]xcept as otherwise provided in this section, when an alien is ordered removed, the [Secretary of Homeland Security] shall remove the alien from the United States within a period of 90 days.”). 3839 California, 104 F.3d at 1094. Similar language is currently codified in INA §239(d)(1), 8 U.S.C. §1229(d)(1) (“In the case of an alien who is convicted of an offense which makes the alien deportable, the [Secretary of Homeland Security] shall begin any removal proceeding as expeditiously as possible after the date of the conviction.”) 39. 40 California, 104 F.3d at 1094. See, e.g., 8 U.S.C. §1326(b)(1) (prescribing that aliens who illegally re-enter the United States after having been removed subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony) “shall be fined under title 18, imprisoned not more than 10 years, or both”). 4041 California, 104 F.3d at 1093-94; New Jersey, 91 F.3d at 470. See also U.S.C. §1365(a) (“Subject to the amounts provided in advance in appropriation Acts, the Attorney General shall reimburse a State for the costs incurred by the (continued...) c11173008 Congressional Research Service 6 State Challenges to Federal Enforcement of Immigration Law . However, all the states’ claims were seen to involve matters that were committed to agency discretion as a matter of law and, thus, not reviewable by the courts.42 Notably, all the statutes cited by the states in making these claims included the word “shall.”43 In no case, though, did an appellate court specifically address the statute’s use of this word, or whether “shall” could be construed to indicate mandatory agency action, in its published decision. This was so even when the provision of immigration law in question did not, in itself, include language which clearly evidenced that federal officials had some discretion in enforcing the law.44 It should also be noted that, in three of the six cases, the appellate court expressly rejected the suggestion that federal officials’ alleged failure to enforce the immigration laws could be seen as an “abdication” of their statutory responsibilities. The Supreme Court’s 1985 decision in Heckler v. Chaney expressly recognized an exception to the presumption that agency decisions not to undertake enforcement actions are “committed to agency discretion by law” and, thus, immune from judicial review under the Administrative Procedure Act (APA).45 This exception would permit review when “the agency has ‘consciously and expressly adopted a general policy’ [of nonenforcement] that is so extreme as to amount to an abdication of its statutory responsibilities.”46 However, the federal courts of appeals found that the federal government’s immigration enforcement policies in the mid-1990s did not constitute such an abdication,47 apparently because the states could not allege that the federal government was “doing nothing” to enforce the immigration laws.48 Instead, in the courts’ view, the states’ questioned the effectiveness of federal policies and practices, and “[r]eal or perceived inadequate enforcement of immigration law does not constitute a reviewable abdication of duty.”49 (...continued) State for the imprisonment of any illegal alien or Cuban national who is convicted of a felony by such State.”). 42State for the imprisonment of any illegal alien or Cuban national who is convicted of a felony by such State.”). 41 See Texas, 106 F.3d at 667; California, 104 F.3d at 1094-95; New Jersey, 91 F.3d at 470; Padavan, 82 F.3d at 29-30; Chiles, 69 F.3d at 1096. 4243 As discussed later in this report (see “Mississippi’s Claims in Crane v. Napolitano”), shall has been construed to indicate mandatory agency action in some cases. See, e.g., Lopez v. Davis, 531 U.S. 230, 241 (2001) (“Congress’ use of the permissive ‘may’ in §3621(e)(2)(B) contrasts with the legislators’ use of a mandatory ‘shall’ in the very same section.”). However, in other cases, agencies have been seen to have discretion in determining whether to enforce particular statutes that use the word shall. See, e.g., Heckler v. Chaney, 470 U.S. 821, 835 (1985) (describing a statute which stated that certain food, drugs, or cosmetics “shall be liable to be proceeded against” as “framed in the permissive”). 4344 For example, INA §103(a) expressly provides that the appointment of employees for purposes of controlling and guarding U.S. borders is at the Secretary of Homeland Security’s discretion. See supra note 35. Congressional Research Service 6 State Challenges to Federal Enforcement of Immigration Law an “abdication” of their statutory responsibilities. The Supreme Court’s 1985 decision in Heckler v. Chaney recognized an exception to the presumption that agency decisions not to undertake enforcement actions are “committed to agency discretion by law” and, thus, immune from judicial review under the Administrative Procedure Act (APA).44 This exception would permit review when “the agency has ‘consciously and expressly adopted a general policy’ [of nonenforcement] that is so extreme as to amount to an abdication of its statutory responsibilities.”45 However, the federal courts of appeals found that the federal government’s immigration enforcement policies in the mid-1990s did not constitute such an abdication,46 apparently because the states could not allege that the federal government was “doing nothing” to enforce the immigration laws.47 Instead, in the courts’ view, the states’ questioned the effectiveness of federal policies and practices, and “[r]eal or perceived inadequate enforcement of immigration law does not constitute a reviewable abdication of duty.”4836. 45 Heckler, 470 U.S. at 838 (quoting and discussing 5 U.S.C. §701(a)(2)). Agency action is, in turn, generally seen as committed to agency discretion where there are “no judicially manageable standards ... available for judging how and when an agency should exercise its discretion.” Id. at 830. 46 Id., 470 U.S. at 833 n.4. 47 See Texas, 106 F.3d at 667 (“We reject out-of-hand the State’s contention that the federal defendants’ alleged systemic failure to control immigration is so extreme as to constitute a reviewable abdication of duty.”); California, 104 F.3d at 1094 (“[T]he allegations asserted in the instant Complaint do not rise to a level that would indicate such an abdication.”); Childs, 69 F.3d at 1096 n.5 (“The part of the statute relied on by Florida would not justify even an allegation of complete abdication of statutory duties to go to trial.”). 48 Texas, 106 F.3d at 667. 49 Id. c11173008 Congressional Research Service 7 State Challenges to Federal Enforcement of Immigration Law . Arizona’s Counterclaims in the S.B. 1070 Litigation In 2011, over a decade after the mid-1990s litigation, Arizona asserted counterclaims challenging the federal government’s alleged failure to enforce the immigration laws in the litigation over Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (commonly known as “S.B. 1070”).4950 Arizona had adopted S.B. 1070 in 2010 in an attempt to deter unlawfully present aliens unauthorized aliens from settling in the state by requiring that state and local police check the immigration status of all persons whom they stop, arrest, or detain, and by criminalizing certain conduct . S.B. 1070 also made it a state crime to engage in certain conduct thought to facilitate the presence of unauthorized aliens within the state.5051 The federal government sought to enjoin enforcement of S.B. 1070 on the grounds that it was preempted by federal law. Arizona responded, in part, by alleging that federal policies and practices as to immigration enforcement ran afoul of various provisions of the Constitution and federal statute. In particular, Arizona alleged that federal officials had violated the Invasion and Domestic Violence Clauses, as well as the Tenth Amendment, by, respectively, failing to protect Arizona from “invasion” by aliens unlawfully entering the United States and “refusing” to reimburse the state for the “costs and damages associated with illegal immigration in Arizona.”51 52 Arizona also alleged that federal officials had failed to comply with statutory mandates to achieve and maintain “operational control” of the Arizona-Mexico border, pursue and effectuate the removal of unlawfully present 44 Heckler, 470 U.S. at 838 (quoting and discussing 5 U.S.C. §701(a)(2)). Agency action is, in turn, generally seen as committed to agency discretion where there are “no judicially manageable standards ... available for judging how and when an agency should exercise its discretion.” Id. at 830. 45 Id., 470 U.S. at 833 n.4. 46 See Texas, 106 F.3d at 667 (“We reject out-of-hand the State’s contention that the federal defendants’ alleged systemic failure to control immigration is so extreme as to constitute a reviewable abdication of duty.”); California, 104 F.3d at 1094 (“[T]he allegations asserted in the instant Complaint do not rise to a level that would indicate such an abdication.”); Childs, 69 F.3d at 1096 n.5 (“The part of the statute relied on by Florida would not justify even an allegation of complete abdication of statutory duties to go to trial.”). 47 Texas, 106 F.3d at 667. 48 Id. 49 removal of unauthorized aliens who are found within the interior of the United States, and reimburse states for the costs of detaining “criminal aliens” pursuant to the State Criminal Alien Assistance Program (SCAAP).53 The federal government challenged Arizona’s standing to raise all of these claims other than that as to reimbursement pursuant to SCAAP.54 However, the reviewing federal district court “presum[ed]” that Arizona had standing because (1) the federal government did not question whether “illegal immigration” constituted an injury in fact; (2) Arizona had alleged facts indicating that unauthorized aliens’ conduct and choices in crossing into Arizona were directly influenced by federal policies and practices; and (3) ordering the federal government to “deploy ... temporary measures” to secure the border would provide Arizona “some relief.”55 Arizona did not fare as well on the merits of its arguments. The reviewing federal district court first found that Arizona’s claims as to the Invasion Clause and the Tenth Amendment were 50 For further discussion of this litigation, see generally CRS Report R42719, Arizona v. United States: A Limited Role for States in Immigration Enforcement, by Kate M. Manuel and Michael John Garcia. 5051 S.B. 1070, as amended by H.B. 2162 (copy on file with the author). 5152 See United States v. Arizona, No. 2:10-cv-01413-SRB, The State of Arizona and Governor Janice K. Brewer’s Answer and Counterclaims, at 16-17 (filed D. Az., filed Feb. 10, 2011) (copy on file with the author). 53 Id. at 16-17. See especially id. at 17 (“The federal government is not enforcing the immigration laws within the United States. The current policy of the executive branch of the United States government is to take no action regarding the vast majority of aliens who are unlawfully present in the United States.”). For more on the meaning of the term “criminal alien,” see CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by Marc R. Rosenblum and William A. Kandel, at 2-3. 54 See United States v. Arizona, No. CV 10-1413-PHX-SRB, Order (D. Az., filed Oct. 21, 2011). The United States did not dispute that “Arizona had alleged an injury in fact arising from illegal immigration,” given Arizona’s claims that it faced increased costs as a “direct result” of unauthorized migration into the state. Id. at 3. However, the federal government did contest whether Arizona’s alleged injury is fairly traceable to the challenged actions of federal officials, and whether any remedy is available. Id. For further discussion of standing, see supra note 10. 55 See Order, supra note 54, at 4-5. For the specific types of injunctive relief requested by Arizona, see Answer and Counterclaims, supra note 52, at 40-55. c11173008 Congressional Research Service 8 State Challenges to Federal Enforcement of Immigration Law . precluded by the litigation in the mid-1990s,56 or, alternatively, settled in the federal government’s favor by Ninth Circuit precedent.57Feb. 10, 2011) (copy on file with the author). Congressional Research Service 7 State Challenges to Federal Enforcement of Immigration Law aliens who are found within the interior of the United States, and reimburse states for the costs of detaining “criminal aliens” pursuant to the State Criminal Alien Assistance Program (SCAAP).52 The federal government challenged Arizona’s standing to raise all of these claims other than that as to reimbursement pursuant to SCAAP.53 However, the reviewing federal district court “presum[ed]” that Arizona had standing because (1) the federal government did not question whether “illegal immigration” constituted an injury in fact; (2) Arizona had alleged facts indicating that unlawfully present aliens’ conduct and choices in crossing into Arizona were directly influenced by federal policies and practices; and (3) ordering the federal government to “deploy ... temporary measures” to secure the border would provide Arizona “some relief.”54 Arizona did not fare as well on the merits of its arguments. The reviewing federal district court first found that Arizona’s claims as to the Invasion Clause and the Tenth Amendment were precluded by the litigation in the mid-1990s,55 or, alternatively, settled in the federal government’s favor by Ninth Circuit precedent.56 The court similarly found that Arizona’s remaining constitutional claim—alleging a violation of the Domestic Violence Clause that had not been raised in the mid-1990s litigation—was also settled by Ninth Circuit precedent finding that the clause applies only to “insurrections, riots, and other forms of civil disorder,” and not “ordinary crimes,”57 and implicates nonjusticiable political questions.58.”58 The court also viewed the Domestic Violence Clause as implicating nonjusticiable political questions.59 The reviewing federal district court then found that Arizona’s various statutory claims involved actions that were committed to agency discretion by law and, thus, were not subject to review by the courts. In so finding, the court specifically looked at provisions of immigration law which 52 Id. at 16-17. See especially id. at 17 (“The federal government is not enforcing the immigration laws within the United States. The current policy of the Executive Branch of the United States government is to take no action regarding the vast majority of aliens who are unlawfully present in the United States.”). For more on the meaning of the term “criminal alien,” see CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by Marc R. Rosenblum and William A. Kandel, at 2-3. 53 See United States v. Arizona, No. CV 10-1413-PHX-SRB, Order (filed D. Az., Oct. 21, 2011). The United States did not dispute that “Arizona had alleged an injury in fact arising from illegal immigration,” given Arizona’s claims that it faced increased costs as a “direct result” of unauthorized migration into the state. Id. at 3. However, the federal government did contest whether Arizona’s alleged injury is fairly traceable to the challenged actions of federal officials, and whether any remedy is available. Id. For further discussion of the requirements for standing, see supra note 10. 54 See Order, supra note 53, at 4-5. For the specific types of injunctive relief requested by Arizona, see Answer and Counterclaims, supra note 51, at 40-55. 55 Order, supra note 53 • direct the Secretary of Homeland Security to “take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control” over the U.S. border within 18 months after the enactment of the Secure Fence Act of 2006;60 • prioritize the incarceration of unauthorized “criminal aliens” and reimburse states through SCAAP for the costs of incarcerating such aliens;61 • establish procedures for removing unauthorized aliens apprehended in the interior of the United States; and • bar federal, state, and local officials from restricting the sharing of information regarding persons’ citizenship or immigration status.62 However, the court concluded that each provision involved actions that are committed to agency discretion by law. 63 In some cases, the court reached this conclusion because the statute provided no standard by which the court could judge the propriety of federal officials’ actions, as with the construction of the border fence, where “no deadline mandates completion of the fencing and 56 Order, supra note 54, at 5-8. The doctrine of issue preclusion, also known as collateral estoppel, bars relitigation “‘of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New Hampshire v. Maine, 532 U.S. 742, 748-49 (2011)). While issue preclusion may not apply to bar relitigation where “controlling facts or legal principles have changed significantly since the prior judgment,” or where “other special circumstances warrant an exception,” the federal district court reviewing Arizona’s counterclaims found no such changes or special circumstances. Order, supra note 5354, at 6-7 (quoting Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir. 2000)). 5657 Order, supra note 5354, at 8-13. 5758 Under the INA, unlawful entry is a crime. INA §275, 8 U.S.C. §1325. Unlawful presence, absent additional factors, is not a crime, although it is a ground for removal. INA §212(a)(6)(A)(i), 8 U.S.C. §1182(a)(6)(A)(i). 5859 Order, supra note 5354, at 10. The Domestic Violence Clause provides that “The United States shall ... on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) [protect each State] against domestic Violence.” U.S. Const., art. IV, §4. Congressional Research Service 8 State Challenges to Federal Enforcement of Immigration Law • direct the Secretary of Homeland Security to “take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control” over the U.S. border within 18 months after the enactment of the Secure Fence Act of 2006;59 • prioritize the incarceration of unlawfully present “criminal aliens” and reimburse states through SCAAP for the costs of incarcerating such aliens;60 • establish procedures for removing unlawfully present aliens apprehended in the interior of the United States; and • bar federal, state, and local officials from restricting the sharing of information regarding persons’ citizenship or immigration status.61 However, the court concluded that each provision involved actions that are committed to agency discretion by law. 62 In some cases, the court reached this conclusion because the statute provided no standard by which the court could judge the propriety of federal officials’ actions, as with the construction of the border fence, where “no deadline mandates completion of the fencing and 60 Order, supra note 54, at 14-17. 61 Id. at 19-33. 62 Id. at 17-19. 63 See, e.g., id. at 16 (“[T]he Acts [regarding border fencing] do not mandate any discrete agency action with the clarity to support a judicial order compelling agency action ...”); id. at 18 (“The Court cannot properly review the enforcement decisions challenged by Arizona in [its claims regarding interior immigration enforcement].”); id. at 20 (“Under SCAAP, the calculation of the average cost of incarceration is explicitly committed to the discretion of the Attorney General.”). c11173008 Congressional Research Service 9 State Challenges to Federal Enforcement of Immigration Law . infrastructure developments or any required discrete action by a specified time.”6364 In other cases, the court noted that the statutes themselves grant federal officials “substantial discretion,” as was the case with “determining where to build fencing, where to use alternative infrastructure improvements rather than fencing, and how best to develop a comprehensive program to prevent illegal immigration.”6465 In no case did the court, in its published opinion, note the use of “shall” in any of these statutes, or discuss whether this word could be construed to indicate mandatory action. The court further found the specific actions challenged by Arizona—which included prioritizing certain enforcement efforts and “considering changes in the interpretation and enforcement of immigration laws that would ‘result in meaningful immigration reform absent legislative action’”—did not constitute an abdication of the Executiveexecutive’s statutory responsibilities. The court did so, in part, because Arizona conceded that federal officials “continue to enforce federal immigration laws in accordance with priorities established by the federal government.”6566 Thus, according to the court, while Arizona “disagrees” with federal enforcement priorities, its “allegations do not give rise to a claim that [federal officials] have abdicated their statutory responsibilities.”66 59 Order, supra note 53, at 14-17. Id. at 19-33. 61 Id. at 17-19. 62 See, e.g., id. at 16 (“[T]he Acts [regarding border fencing] do not mandate any discrete agency action with the clarity to support a judicial order compelling agency action ...”); id. at 18 (“The Court cannot properly review the enforcement decisions challenged by Arizona in [its claims regarding interior immigration enforcement].”); id. at 20 (“Under SCAAP, the calculation of the average cost of incarceration is explicitly committed to the discretion of the Attorney General.”). 63 Id. at 16. 64 Id. 65 Id. at 19. The court also noted, in discussing the allegations of abdication, that it “cannot properly review the enforcement decisions challenged by Arizona” because these decisions are committed to immigration officials’ discretion by law. This perhaps suggests that this court, at least, would be disinclined to find abdication where an agency’s actions—however “extreme” they might be said to be—could be seen as within the agency’s discretion. 66 Id. Arizona also appears to have asserted that federal enforcement policies were reviewable because they had been (continued...) 60 Congressional Research Service 9 State Challenges to Federal Enforcement of Immigration Law67 Mississippi’s Claims in Crane v. Napolitano One year later, in 2012, Mississippi raised similar claims about federal officials’ alleged failure to enforce the immigration laws when it joined a challenge brought by some U.S. Immigration and Customs Enforcement (ICE) agents to the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) initiative.6768 This challenge arose from the Administration’s decision to grant some unlawfully presentunauthorized aliens who had been brought to the United States as children and raised here deferred action—one type of relief from removal—and, in many cases, work authorization.68 The ICE agents and Mississippi asserted that this initiative violates the Take Care Clause, impinges upon Congress’s legislative powers, and contradicts certain provisions in INA §235 which some assert require that unlawfully present aliens be placed in removal proceedings.69 They also alleged that it runs afoul of the Administrative Procedure Act (APA) because the Administration did not promulgate regulations before making deferred action—which the plaintiffs view as a benefit, not an exercise of prosecutorial discretion—available to unlawfully present aliens who had been brought to the United States as children.70 The ICE agents were found to have standing to raise these challenges71 and, at least initially, prevailed before the reviewing federal district court on their claim that DACA runs afoul of three purportedly “interlocking” provisions in INA §235 which state that 1. any alien present in the United States who has not been admitted shall be deemed an applicant for admission; (...continued) and raised here deferred action—one type of relief from removal—and, in many cases, work 64 Id. at 16. Id. 66 Id. at 19. The court also noted, in discussing the allegations of abdication, that it “cannot properly review the enforcement decisions challenged by Arizona” because these decisions are committed to immigration officials’ discretion by law. This perhaps suggests that this court, at least, would be disinclined to find abdication where an agency’s actions—however “extreme” they might be said to be—could be seen as within the agency’s discretion. 67 Id. Arizona also appears to have asserted that federal enforcement policies were reviewable because they had been modified. However, the reviewing district court took the view that this change in policy, per se, did not permit review where agency enforcement decisions—“including the decisions to prioritize agency resources and act on agency determined priorities”—are committed to agency discretion as a matter of law. Id. at 19 n.6. 6768 See Crane v. Napolitano, No. 3:12-cv-03247-O, Amended Complaint (filed N.D. Tex., filed Oct. 12, 2012) (copy on file with the author). Subsequently, Arizona also alleged that the DACA initiative was beyond the Executiveexecutive’s authority in defending its own policy of denying driver’s licenses to aliens granted deferred action through DACA. See generally CRS Report R43452, Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues, by Kate M. Manuel and Michael John Garcia. The federal government was not a party to this litigation, although it did, at the Ninth Circuit’s request, file an amicus brief in which it supported the plaintiffs’ argument that Arizona may not deny driver’s licenses to DACA beneficiaries. See Brewer v. Az. Dream Act Coalition, No. 14A625, Application to Stay the Mandate of the United States Court of Appeals for the Ninth Circuit Pending Disposition of a Petition for Writ of Certiorari, at 13 (filed S. Ct., filed Dec. 11, 2014). The Supreme Court denied this application for a stay, in an order which did not address the Obama Administration’s deferred action initiatives. See Brewer v. Az. Dream Act Coalition, No. 14A625, Order in Pending Case (S. Ct., Dec. 17, 2014) (copy on file with the author). 68 The federal government’s arguments in support of the DACA beneficiaries seeking Arizona driver’s licenses in this case played a role in a federal district court finding that Texas, in particular, has standing to challenge DAPA and the DACA expansion, as discussed below. See infra “States’ Standing to Challenge DAPA and the DACA Expansion.” 65 c11173008 Congressional Research Service 10 State Challenges to Federal Enforcement of Immigration Law . authorization.69 The ICE agents and Mississippi asserted that this initiative violates the Take Care Clause, impinges upon Congress’s legislative powers, and contradicts certain provisions in INA §235 which some assert require that unauthorized aliens be placed in removal proceedings.70 They also alleged that it runs afoul of the Administrative Procedure Act (APA) because the Administration did not promulgate regulations before making deferred action—which the plaintiffs viewed as a benefit, not an exercise of prosecutorial discretion—available to unauthorized aliens who had been brought to the United States as children.71 The ICE agents were found to have standing to raise these challenges72 and, at least initially, prevailed before the reviewing federal district court on their claim that DACA runs afoul of three purportedly “interlocking” provisions in INA §235 which state that 1. any alien present in the United States who has not been admitted shall be deemed an applicant for admission; 2. applicants for admission shall be inspected by immigration officers; and 3. in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for removal proceedings.73 69 DHS Secretary Janet Napolitano, Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, June 15, 2012 (copy on file with the author). The determination as to whether to grant deferred action to individual aliens has historically been seen as within immigration officials’ prosecutorial or enforcement discretion. See, e.g., Hotel & Rest. Employees Union Local 25 v. Smith, 846 F.2d 1499, 1510-11 (D.C. Cir. 1988); Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n.3 (9th Cir. 2001); Johnson v. INS, 962 F.2d 574, 579 (7th Cir. 1992); Carmona Martinez v. Ashcroft, 118 Fed. App’x 238, 239 (9th Cir. 2004); Matter of Yauri, 25 I. & N. December 103 (BIA 2009); Matter of Singh, 21 I. & N. December 427 (BIA 1996); Matter of LuvianoRodriguez, 21 I. & N. December 235 (BIA 1996); Matter of Quintero, 18 I. & N. December 348 (BIA 1982). DHS regulations furtherHowever, in none of these cases had the federal government expressly adopted a practice of granting deferred action to most, if not all, aliens who meet prescribed requirements. DHS regulations provide that aliens granted deferred action may be granted work authorization upon showing an “economic necessity for employment.” 8 C.F.R. §274a.12(c)(14). The INA bars employers from knowingly hiring or continuing to employ an alien who lacks such authorization. INA §274A, 8 U.S.C. §1324a. 6970 For further discussion of these INA provisions, see infra note 7273 and accompanying text. 7071 Amended Complaint, supra note 6768, at 15-23. 71 Crane v. Napolitano, 920 F. Supp. 2d 724, 738-40 (N.D. Tex. 2013) [hereinafter “Crane I”]. Congressional Research Service 10 State Challenges to Federal Enforcement of Immigration Law 2. applicants for admission shall be inspected by immigration officers; and 3. in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for removal proceedings.72 In particular, the court noted that each of the three provisions includes the word “shall,” and took the view that “shall” indicates mandatory agency action.73 (This same court later found that the Merit Systems Protection Board (MSPB), not the federal district court, has jurisdiction over the ICE agents’ claims.74 This decision, as well as the court’s earlier finding that DACA is contrary to INA §235, has been appealed to the Fifth Circuit.) Mississippi, in contrast, was found not to have standing because the reviewing court viewed its alleged injury as “conjectural and based on speculation” and, thus, insufficiently concrete to satisfy the constitutional requirements of standing.75 This injury consisted of the fiscal costs associated with unlawfully present aliens residing in the state who were allegedly enabled to remain there as a result of DACA and Obama Administration guidance regarding the exercise of prosecutorial discretion in civil immigration enforcement.76 The federal government did not contest that the expenditure of state funds could qualify as an invasion of a legally protected interest sufficient to establish standing under the “proper circumstances.”77 Rather, the federal government argued that such circumstances were not present in the instant case because 72 72 Crane v. Napolitano, 920 F. Supp. 2d 724, 738-40 (N.D. Tex. 2013) [hereinafter “Crane I”]. 73 Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 U.S. Dist. LEXIS 57788 (N.D. Tex., Apr. 23, 2013) [hereinafter “Crane II”] (citing INA §235(a)(1), (a)(3), & (b)(2)(A), 8 U.S.C. §1225(a)(1), (a)(3), & (b)(2)(A)). It is important to note that, while the ICE agents and the reviewing federal district court interpreted these provisions as requiring immigration officials to place unlawfully presentunauthorized aliens in removal proceedings, federal officials have historically interpreted interpreted the relevant provisions of the INA in a somewhat different manner. Both federal officials and those who claim claim immigration officers lack discretion construe the first two provisions of INA §235 noted above—aliens present without without admission being deemed applicants for admission, and applicants for admission being inspected—as applying to both (1) “arriving aliens” at a port-of-entry and (2) aliens who are present in the United States without inspection. However, federal officials have differed from proponents of the view that immigration officers lack discretion in that federal federal officials have construed the third provision—regarding detention of certain aliens seeking admission—as applicable applicable only to arriving aliens, not aliens who are present without inspection. This difference appears to have arisen, in part, because federal officials have emphasized the phrase “aliens seeking admission” in the third provision, and reasoned reasoned that only arriving aliens at ports-of-entry can be said to be seeking admission. See, e.g., Immigration and Naturalization Naturalization Service (INS), Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10357 (Mar. 6, 1997) (codified at 8 C.F.R. §235.3(c)); INS, Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 444-46 (Jan. 3, 1997). The reviewing federal district court in Crane, however, rejected federal officials’ interpretation, in part, because the court viewed it as contrary to the statutory language. Crane II, 2013 U.S. Dist. LEXIS 57788, at *21-*27. 73 Crane II, 2013 U.S. Dist. LEXIS 57788, at *27-*39. 74 Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 U.S. Dist. Lexis 187005 (N.D. Tex., July 31, 2013) [hereinafter “Crane III”]. 75 Crane I, 920 F. Supp. 3d at 743, 746. 76 (continued...) c11173008 Congressional Research Service 11 State Challenges to Federal Enforcement of Immigration Law . In particular, the court noted that each of the three provisions includes the word “shall,” and took the view that “shall” indicates mandatory agency action.74 However, this same court later found that it lacked jurisdiction over the ICE agents’ claims.75 This finding was affirmed on appeal by the Fifth Circuit in a decision which suggests—but does not directly hold—that the Fifth Circuit may not view INA §235 as barring the executive from granting deferred action to unauthorized aliens.76 Mississippi, in contrast, was found not to have standing because the reviewing court viewed its alleged injury as “conjectural and based on speculation” and, thus, insufficiently concrete to satisfy the constitutional requirements of standing.77 This injury consisted of the fiscal costs associated with unauthorized aliens residing in the state who were allegedly enabled to remain there as a result of DACA and Obama Administration guidance regarding the exercise of prosecutorial discretion in civil immigration enforcement.78 The federal government did not contest that the expenditure of state funds could qualify as an invasion of a legally protected interest sufficient to establish standing under the “proper circumstances.”79 Rather, the federal government argued that such circumstances were not present in the instant case because Mississippi relied upon a 2006 report—which pre-dated DACA—to show the costs it incurred as the result of the Obama Administration’s actions.80 The district court agreed, and also noted that Mississippi had offered only “conclusory allegations” that the unauthorized aliens granted (...continued) rejected federal officials’ interpretation, in part, because the court viewed it as contrary to the statutory language. Crane II, 2013 U.S. Dist. LEXIS 57788, at *21-*27. 74 Crane II, 2013 U.S. Dist. LEXIS 57788, at *27-*39. 75 The district court found that the Merit Systems Protection Board (MSPB), rather than the court, has jurisdiction over the ICE agents’ claims that they face adverse employment consequences if they fail to comply with the Administration’s DACA program. Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 U.S. Dist. LEXIS 187005 (July 31, 2013) [hereinafter “Crane III”]. For a summary of this decision, see CRS Legal Sidebar WSLG1223, Appeals Court Affirms Dismissal of Challenge to 2012 Deferred Action Program, by Kate M. Manuel. 76 See Crane v. Johnson, No. 14-10049, 2015 U.S. App. LEXIS 5573 (5th Cir., Apr. 7, 2015) [hereinafter Crane IV], aff’g, on other grounds, Crane III, U.S. Dist. LEXIS 187005. In this decision, the Fifth Circuit opines that INA §235, at most, “directs” immigration agents to “detain” aliens for the purpose of placing them in removal proceedings. Crane, 2015 U.S. App. LEXIS 5573 at *8. “It does not limit the authority of [the Department of Homeland Security] to determine whether to pursue the removal” of aliens once they have been so detained, according to the Fifth Circuit. Id. The court’s language here comes from its “background” discussion of the immigration laws, and is not the subject of specific holdings or findings. However, this language—coupled with the Fifth Circuit’s citations to Supreme Court precedents which, among other things, describe “the broad discretion exercised by immigration officials” as a “principal feature of the removal system”—suggests it may be unlikely to find that INA §235 bars immigration officials from granting deferred action. Id. at *4-*5 (quoting Arizona v. United States,—U.S.—, 132 S. Ct. 2492, 2499 (2012)). 77 Crane I, 920 F. Supp. 3d at 743, 746. 78 Id. at 743. The guidance regarding civil enforcement priorities challenged in Crane was that given by then-ICE Director John Morton in two memoranda issued in 2011, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, and Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens. These memoranda were rescinded and superseded by new guidance issued by the Obama Administration on November 20, 2014. See DHS Secretary Jeh Charles Johnson, Memorandum, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, Nov. 20, 2014 (copies on file with the author). 77 Crane I, 920 F. Supp. 3d at 743. Congressional Research Service 11 State Challenges to Federal Enforcement of Immigration Law Mississippi relied upon a 2006 report—which pre-dated DACA—to show the costs it incurred as the result of the Obama Administration’s actions.78 The court agreed, and also noted that Mississippi had offered only “conclusory allegations” that the unlawfully present aliens granted deferred action would have been removed but for the DACA initiative, or that DACA had resulted in a decrease in the total number of aliens removed by the federal government.79 Challenge to the Obama Administration’s 2014 Actions Most recently, in December 2014, over 20 states filed suit challenging the Obama Administration’s November 20, 2014, announcement that it is extending the DACA program to cover additional unlawfully present aliens who were brought to the United States as children, and creating a DACA-like program for unlawfully present aliens whose children are U.S. citizens or LPRs.80 In this case, the states allege that the deferred actions programs and other Administration policies as to immigration enforcement “have had and continue to have dire consequences” for the plaintiff states by “substantially increas[ing]” the number of unlawfully present aliens in the state, “triggering” unauthorized migration, increasing human trafficking, and “requiring” states to provide various public benefits and services.81 In particular, the states assert that the Administration’s actions violate the Take Care Clause and the APA.82 In the states’ complaint, the alleged Take Care Clause violation is specifically said to be based on the President’s “dispensing” with existing laws and “rewrit[ing] them under the guise of executive ‘discretion.’”83 In support of this allegation, the states assert that DACA represents a “legislative action” because over 99% of applicants are granted deferred action through DACA, making deferred action through DACA a “de facto entitlement,” not an exercise of prosecutorial discretion.84 The states also assert that the steps the Executive has taken to permit unlawfully present aliens whose children are U.S. citizens or LPRs to remain in the United States are contrary to the provisions that Congress has made for such aliens to remain in the United States, which, according to the states, call for these aliens to “(i) wait[] until their child turns 21, (ii) leav[e] the country, (iii) wait[] 10 more years, and then (iv) obtain[] a family-preference visa from a U.S. consulate abroad.”85 In addition, in their motion to enjoin the new deferred action initiatives, the states assert that the Executive’s purported exercise of discretion here is judicially reviewable because it represents an abdication of the Executive’s statutory responsibilities.86 78 Id. at 744-45 (“[B]ecause it was written six years prior to the issuance of the Morton Memorand[a] and the [DACA] Directive, the report cannot provide any support for Mississippi’s contention that the Directive and the Morton Memorand[a] result in an increased fiscal burden on the state.”). 79 Id. at 745. 80 Other challenges to the Obama Administration’s November 20, 2014, actions have also been filed. See, e.g., Arpaio v. Obama, No. 14-01966, 2014 U.S. Dist. LEXIS 176758 (D.D.C., Dec. 23, 2014). 81 Texas v. United States, No. 1:14-cv-00254, Complaint for Declaratory and Injunctive Relief, at 11-15 (filed S.D. Tex., Dec. 3, 2014) (copy on file with the author). 82 Id. at 26-28. 83 Id. at 26. 84 Id. 85 Id. at 26-27. 86 Plaintiffs’ Motion for Preliminary Injunction, supra note 4, at 9. Congressional Research Service 12 State Challenges to Federal Enforcement of Immigration Law The states’ complaint similarly alleges that the APA violations include both procedural ones, arising from the Executive’s provision of “benefits” without promulgating regulations, and substantive ones, arising from the Executive’s “rewriting [of] the immigration laws and contradicting the priorities adopted by Congress.”87 The states’ motion for a preliminary injunction clarifies that they view the intra-agency memorandum directing the establishment of the new deferred action initiatives as a “legislative rule” since it 1. “affect[s] individual rights and obligations” insofar as it establishes “eligibility ‘criteria’” for deferred action; 2. “is binding on [immigration] officials,” as applied, if not on its face; 3. “puts a stamp of approval or disapproval on a given type of behavior” by providing that unlawfully present aliens may avoid removal by participating in the deferred action initiatives; and 4. “cannot ... be construed as an interpretative rule” because it does not interpret anything.88 This motion also clarifies that the states view the Executive actions as not “in accordance with the law” because INA §235 requires, in their view, that unlawfully present aliens be placed in removal proceedings, as previously discussed (see “Mississippi’s Claims in Crane v. Napolitano”).89 Pending Litigation as Compared to Earlier Litigation It remains to be seen how the reviewing federal district court will view the claims raised by the states in their 2014 challenge to federal officials’ alleged failure to enforce the immigration laws. The prior litigation described in this report may provide some clues as to how a reviewing court could analyze these claims, although there are important distinctions between the current litigation and prior cases that could affect their outcomes. Accordingly, this report concludes by exploring certain similarities and dissimilarities between the current litigation and prior cases with respect to several issues that seem worth noting as threshold matters. Standing: The states’ standing to assert the claims raised in the 2014 litigation is likely to be contested by the federal government, which actively contested standing in prior challenges.90 The court’s decision as to Mississippi’s challenge in Crane further suggests that the states could face some difficulty in showing the requisite injury for standing.91 Many of the aliens granted deferred action as a result of the Obama Administration’s 2014 actions were arguably unlikely to have 87 Complaint for Declaratory and Injunctive Relief, supra note 81, at 27-28. Motion for Preliminary Injunction, supra note 86, at 21-22. 89 Id. at 23. The states also claim that the Executive’s decision to grant work authorization to all these deferred action beneficiaries is “arbitrary and capricious” because it exceeds any discretion to issue work authorization that the Executive has been granted by statute. Id. at 24. 90 See supra notes 10, 53, and 75 and accompanying text. 91 The redressibility component of standing could also present issues. See Chiles, 69 F.3d at 1096 (“supposing” that Florida has standing, but noting that “the level of illegal immigration is dependent on many factors outside the control of the Attorney General”). 88 Congressional Research Service 13 State Challenges to Federal Enforcement of Immigration Law been removed prior to the Administration’s actions,92 and the Crane court essentially required Mississippi to show that DACA resulted in aliens remaining in the state who would otherwise have been removed.93 Arizona’s counterclaims in the litigation over S.B. 1070, in contrast, fared differently in, part, because the federal government did not question whether “illegal immigration” constituted an injury in fact.94 Arizona’s counterclaims also generally involved federal policies and programs that could be seen as ongoing (e.g., an alleged failure to complete construction of the border fencing dating back to 2006), rather than changes in federal programs and policies like that marked by the initiation of DACA. Take Care Clause: The early state challenges to federal officials’ alleged failure to enforce the immigration laws asserted violations of other constitutional provisions (e.g., Naturalization Clause, Tenth Amendment), not the Take Care Clause.95 This seems to have been, at least in part, because, at that time, the states viewed both the legislative and executive branches as responsible for the federal government’s alleged failure to enforce the immigration laws.96 It was not until Crane that the states began to frame the alleged failure to enforce the immigration laws in terms of the Executive’s failure to execute the statutes as they were written and intended by Congress and, thus, make claims regarding violations of the Take Care Clause.97 It is also worth noting that the Crane court found for the ICE agent plaintiffs (if not for the state of Mississippi) only on their statutory claim, not on their claim regarding the Take Care Clause.98 In fact, the December 16, 2014, decision by the U.S. District Court for the Western District of Pennsylvania in United States v. Juarez-Escobar appears to be the first case in which a reviewing court invalidated a federal policy of not enforcing the immigration laws in certain cases, in part, on Take Care Clause grounds.99 However, this decision arose in the context of a criminal 92 See, e.g., Department of Justice, Office of Legal Counsel, The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, Nov. 20, 2014, at 9 (copy on file with the author) (“DHS has informed us that there are approximately 11.3 million undocumented aliens in the country, but that Congress has appropriated sufficient resources for ICE to remove fewer than 400,000 aliens each year, a significant percentage of whom are typically encountered at or near the border rather than in the interior of the country.”). 93 See Crane I, 920 F. Supp. 3d at 743-45. 94 See Order, supra note 53, at 4-5. 95 See supra “Litigation in the Mid-1990s” and “Arizona’s Counterclaims in the S.B. 1070 Litigation.” 96 See, e.g., Texas, 106 F.3d at 665 (“We are not aware of and have difficulty conceiving of any judicially discoverable standards for determining whether immigration control efforts by Congress are constitutionally adequate.”); California, 104 F.3d at 1093 (“California contends that the costs of educating alien children stems from the Federal Government’s ineffective policing of national borders.”); New Jersey, 91 F.3d at 467 (“Neither the state’s incarceration of illegal aliens nor its obligation to educate illegal aliens results from any command by Congress.”); Padavan, 82 F.3d at 26 (“[T]he plaintiffs plead seven causes of action, claiming that the federal government had violated various statutory and constitutional provisions in carrying out its immigration policy.”) (emphases added). 97 See supra “Mississippi’s Claims in Crane v. Napolitano.” 98 The Crane court did not directly address the merits of the ICE agents’ claims regarding the Take Care clause, instead “begin[ing] with analysis of what Section [235] of the Immigration and Nationality Act ... requires, because that statute is central to all of Plaintiffs’ cause of action.” Crane II, 2013 U.S. Dist. LEXIS 57788, at *15. The court did, however, suggest in a footnote that it was skeptical of the Executive’s argument that Congress might be unable, “as a constitutional matter,” to require that every immigration officer who encounters an unlawfully present alien put that alien in removal proceedings because doing so “might infringe on the Executive’s ability to use its discretion in the immigration law context to ‘take Care that the Laws be faithfully executed.’” Id. at *43 n.10. 99 2014 U.S. Dist. LEXIS 173350, at *33 (W.D. Pa., Dec. 16, 2014) (“President Obama’s unilateral legislative action (continued...) Congressional Research Service 14 State Challenges to Federal Enforcement of Immigration Law sentencing proceeding, where no party had raised the question of whether the federal policy is permissible, not a state challenge to federal actions. Moreover, the decision may have limited influence because it does not cite legal precedents for its holding. Abdication of statutory responsibilities: Allegations that federal officials have abdicated their statutory responsibilities, in contrast, have been raised and rejected in state challenges to federal immigration enforcement since the mid-1990s.100 To date, the courts have taken the view that federal officials cannot be said to have “consciously and expressly adopted a general policy [of nonenforcement] that is so extreme as to amount an abdication” as long as they are “doing something” to enforce the immigration laws. “Real or perceived inadequate enforcement of immigration law does not constitute a reviewable abdication of duty.” 101 Such views could make the argument that the Obama Administration’s November 2014 actions represent a reviewable abdication of the Executive’s statutory responsibilities difficult to maintain, given reports that the Administration is removing the maximum number of aliens it can per year, given the resources available to it.102 It could also be noted that the Obama Administration’s diminished focus upon the removal of “low priority” aliens from the interior of the United States is accompanied by an increased focus upon border security and the removal of “high priority” “criminal aliens” from the interior.103 On the other hand, some might note ways in which the Obama Administration’s initiatives could be said to differ from earlier policies and programs. For example, in no case prior to Crane had the Executive stated so openly its intention not to enforce the immigration laws against certain aliens. In the pre-Crane cases, while border enforcement was known to be limited, particularly in certain areas, federal officials did not announce they would be declining to patrol certain areas of (...continued) violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore, is unconstitutional.”). The reasoning that supports this conclusion appears, however, to be primarily concerned with separation of powers issues (i.e., the Executive is “legislating,” rather than exercising prosecutorial discretion, by (1) providing for a “systematic and rigid process by which a broad group of individuals will be treated differently than others based on arbitrary classifications” and (2) allowing undocumented immigrants who fall within these categories “to obtain substantive rights”). It is unclear, from this discussion, whether the court sees a violation of the separation of powers as tantamount to a violation of the Take Care Clause, or relied on other considerations. 100 See supra notes 45-48 and 65-66 and accompanying text. 101 Texas, 106 F.3d at 667. 102 See Department of Homeland Security’s Authority, supra note 92, at 9. See also Myers v. United States, 272 U.S. 52, 291-92 (1926) (Brandeis, J., dissenting) (“[T]he President cannot secure full execution of the laws, if Congress denies to him adequate means of doing so. ... The President performs his full constitutional duty, if, with the means and instruments provided by Congress and within the limitations prescribed by it, he uses his best endeavors to secure the faithful execution of the laws enacted.”). 103 The Executive could potentially also note a number of statutory enactments over the years wherein Congress has directed it to give priority to the removal of “criminal aliens.” See, e.g., Department of Homeland Security Appropriations Act, 2012, P.L. 112-74, Div. D., title ii, 125 Stat. 950 (Dec. 23, 2011) (“[T]he Secretary of Homeland Security shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”); Department of Homeland Security Appropriations Act, 2010, P.L. 111-83, Div. D., title iii, 123 Stat. 2142 (Oct. 28, 2009) (same); Department of Homeland Security Appropriations Act, P.L. 110-329, Div. D, title ii, 122 Stat. 3659 (Sept. 30, 2008) (same); Consolidated Appropriations Act, 2008, P.L. 110-161, 121 Stat. 2050-51 (Dec. 26, 2007) (funding to “improve and modernize efforts to identify aliens convicted of a crime, sentenced to imprisonment, and who may be deportable, and remove them from the United States”); H.REPT. 111-157, at 6 (2009) (“[R]ather than simply rounding up as many illegal immigrants as possible, which is sometimes achieved by targeting the easiest and least threatening among the undocumented population, DHS must ensure that the government’s huge investments in immigration enforcement are producing the maximum return in making our country safer.”). Congressional Research Service 15 State Challenges to Federal Enforcement of Immigration Law the border. Relatedly, in pre-Crane cases, the states were challenging alleged failures that could be said to have permitted unauthorized aliens to enter or remain in the United States, but were generally not characterized, at least by some, as permitting unlawfully present aliens to receive an array of benefits and services, potentially including work authorization, social security, and driver’s licenses.104 Some might also note the relatively high percentage of the unlawfully present population—4 to 5 million of the estimated 11.3 million unlawfully present aliens in the United States—affected by the Obama Administration’s initiatives.105 Statutory violations: Every state challenge to federal officials’ alleged failure to enforce the immigration laws to date has asserted that specific failures (e.g., not securing the border, not reimbursing the states) ran afoul of statutory provisions.106 These statutory provisions generally used the word “shall.” However, despite this language, states’ statutory claims were seen to involve matters that are committed to agency discretion by law and, thus, not reviewable by the courts in every case prior to Crane.107 There, in the ICE officers’ challenge to DACA, the reviewing federal district court found that three allegedly “interlocking” provisions in INA §235 require that immigration officials place unlawfully present aliens in removal proceedings,108 because each provision uses the word “shall,” and “shall” indicates mandatory agency action.109 Thus, the court concluded that granting deferred action to unlawfully present aliens who have not been placed in removal proceedings runs afoul of the INA.110 However, some have suggested that the Crane decision is inconsistent with the Supreme Court’s recognition of the “broad discretion exercised by immigration officials” in United States v. Arizona, 111 and the federal government has appealed. Failure to promulgate regulations: States did not allege that federal officials had violated the APA by providing “benefits” to unlawfully present aliens without promulgating regulations to this effect prior to the litigation in Crane.112 This is arguably because, as previously noted, granting aliens deferred action can also be seen, at least by some, as permitting them to obtain work authorization and certain public benefits and services,113 while not excluding inadmissible aliens at the border is generally not seen to have such collateral consequences. This apparent distinction would not, however, necessarily be dispositive in the states’ challenge, since the granting of deferred action to unlawfully present aliens has historically been seen as an exercise of 104 See, e.g., Complaint, supra note 81, at 21 (“[D]eferred action carries legal benefits beyond non-enforcement, such as the right to seek employment authorization.”); Plaintiffs’ Motion for Preliminary Injunction, supra note 4, at 5 (“Here, Defendants have created an enormous program that will guarantee open toleration and legal benefits to millions of undocumented immigrants ...”). 105 See, e.g., id. at 1. 106 See supra notes 35-40, 59-61, and 73 and accompanying text. 107 See supra “Litigation in the Mid-1990s: Statutory Provisions” and “Arizona’s Counterclaims in the S.B. 1070 Litigation.” 108 See supra notes 72-74 and accompanying text. 109 See Crane II, 2013 U.S. Dist. LEXIS 57788, at *27-*39. 110 The Crane plaintiffs are, however, generally seen to have conceded that INA §235 would not bar immigration officials from exercising prosecutorial discretion after removal proceedings have been initiated. Id. at *16-*17. 111 See, e.g., Department of Homeland Security’s Authority, supra note 92, at 11 n.4 (“The district court’s conclusion is, in our view, inconsistent with the Supreme Court’s reading of the INA as permitting immigration officials to exercise enforcement discretion at any stage of the removal process, including when deciding whether to initiate removal proceedings against a particular alien.”) (referencing Arizona, 132 S. Ct. at 2499). 112 See “Mississippi’s Claims in Crane v. Napolitano.” 113 See supra note 104. Congressional Research Service 16 State Challenges to Federal Enforcement of Immigration Law prosecutorial discretion, not requiring regulations,114 and the various benefits and services that are made available to aliens granted deferred action are already provided for in statutes or regulations.115 It is also worth noting that the court in Crane found that the plaintiff ICE agents lacked standing to challenge the Administration’s “conferring the legal benefit of employment authorization without any statutory basis and under the false pretense of ‘prosecutorial discretion’” on the grounds that the ICE agents have “no connection to the employmentauthorization process” and, thus, raise only a “generalized grievance.”116 Author Contact Information Kate M. Manuel Legislative Attorney kmanuel@crs.loc.gov, 7-4477 114 See supra note 68. See, e.g., 26 U.S.C. §3304(a)(14)(A) (including, among those eligible for employment compensation, aliens who are lawfully present for purposes of performing the services or permanently residing in the United States under color of law (PRUCOL) at the time the services were performed); 8 C.F.R. §274a.12(c)(14) (providing for the granting of employment authorization to aliens granted deferred action). 116 Crane I, 920 F. Supp. 2d at 730-31, 742-73. The ICE agents had been found to have standing, at least for certain claims, because they faced potentially adverse employment consequences if they declined to implement Obama Administration policies which they viewed as contrary to the INA. ICE has no role in processing applications for employment authorizations, however, and so the agents were found to lack standing for their claim as to work authorization. 115 Congressional Research Service 1779 Crane I, 920 F. Supp. 3d at 743. 80 Id. at 744-45 (“[B]ecause it was written six years prior to the issuance of the Morton Memorand[a] and the [DACA] Directive, the report cannot provide any support for Mississippi’s contention that the Directive and the Morton Memorand[a] result in an increased fiscal burden on the state.”). c11173008 Congressional Research Service 12 State Challenges to Federal Enforcement of Immigration Law . deferred action would have been removed but for the DACA initiative, or that DACA had resulted in a decrease in the total number of aliens removed by the federal government.81 The district court’s decision as to Mississippi’s standing was affirmed by the Fifth Circuit on appeal.82 In so doing, the Fifth Circuit noted that it viewed Mississippi’s alleged injury as “purely speculative” because it “is not supported by any facts” showing that Mississippi’s costs increased, or will increase, as a result of DACA.83 One judge did, however, issue a concurring opinion which emphasized that concrete evidence that an injury has occurred or will occur is not necessary for standing for certain claims, but did not view Mississippi as making such claims.84 Texas v. United States and the Challenge to DAPA and the DACA Expansion Most recently, in December 2014, 27 states or their representatives85 filed suit challenging the Obama Administration’s announcement that it is expanding the DACA program to cover more unauthorized aliens who were brought to the United States as children, and creating a DACA-like program for unauthorized aliens who are the parents of U.S. citizens or LPRs (commonly known as DAPA).86 In particular, the states assert that these new programs violate the Take Care Clause and separation of powers principles of the Constitution, federal immigration law, and substantive and procedural requirements of the APA.87 The federal government disputes these assertions. It 81 Id. at 745. Crane IV, 2015 U.S. App. LEXIS 5573, at *15-*18. 83 Id. at *17 (“Article III standing, however, mandates that Mississippi show a ‘concrete and particularized’ injury that is ‘fairly traceable’ to DACA. To do that, Mississippi was required to demonstrate that the state will incur costs because of the DACA program.”). 84 Id. at *25-*26 (Owen, J., concurring) (citing Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160-61 (1981) (finding that California had standing to challenge the Secretary of the Interior’s refusal to experiment with noncash-bonus bidding systems, in part, because the Court “share[d] California’s confidence that, after experimentation, the Secretary would use the most successful bidding system on all suitable ... lease tracts, including those off the California coast”). 85 Other states and local governments have supported the Obama Administration’s most recent deferred action programs. See supra note 5. 86 Texas v. United States, No. 1:14-cv-00254, Complaint for Declaratory and Injunctive Relief, at 11-15 (S.D. Tex., filed Dec. 3, 2014) (copy on file with the author) (alleging that the deferred actions programs and other Administration policies as to immigration enforcement “have had and continue to have dire consequences” for the plaintiff states by “substantially increas[ing]” the number of unauthorized aliens in the state, “triggering” unauthorized migration, increasing human trafficking, and “requiring” states to provide various public benefits and services). Other challenges to the Obama Administration’s November 20, 2014, actions have also been made. See, e.g., Arpaio, 27 F. Supp. 3d 185 (finding that the plaintiff lacked standing). This decision has been appealed to the U.S. Court of Appeals for the District of Columbia Circuit. See also United States v. Juarez-Escobar, 2014 U.S. Dist. LEXIS 173350, at *33 (W.D. Pa., Dec. 16, 2014) (opining that DAPA and the DACA expansion “violate[] the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore, [are] unconstitutional.”). However, the reasoning that supports this conclusion by the Juarez-Escobar court appears to be primarily concerned with separation of powers issues (i.e., the executive is “legislating,” rather than exercising prosecutorial discretion, by (1) providing a “systematic and rigid process by which a broad group of individuals will be treated differently than others based on arbitrary classifications,” and (2) allowing unauthorized aliens who fall within these categories “to obtain substantive rights”). 87 Complaint, supra note 86, at 26-28. The states further note that they are essentially barred from taking action to avoid the adverse consequences of DAPA and the DACA expansion because “the Supreme Court has held that authority over immigration is largely lodged in the federal government.” Id. at 24-26 (citing Arizona v. United States,— U.S.—, 132 S. Ct. 2492 (2012)). In other words, in the states’ view, they are generally preempted from taking actions (continued...) 82 c11173008 Congressional Research Service 13 State Challenges to Federal Enforcement of Immigration Law . also maintains that the plaintiffs lack standing, and that the challenged programs represent an exercise of enforcement discretion and, as such, are immune from judicial review.88 In a decision issued on February 16, 2015, the U.S. District Court for the Southern District of Texas found that the states have standing to challenge DAPA and the DACA expansion, and that the challenged programs are judicially reviewable.89 It also enjoined implementation of these programs after finding that the states are likely to prevail on the merits of their argument that the memorandum establishing the programs constitutes a substantive rule, but was issued without compliance with the notice-and-comment procedures required for such rules under the APA. The federal government filed an emergency expedited motion to stay the injunction with the district court, which was denied.90 It also appealed the district court’s decision regarding standing, reviewability, and the procedural requirements of the APA to the Fifth Circuit, which heard oral arguments on April 17, 2015, but has not issued a ruling to date. The district court continues to hear arguments on the states’ substantive (as opposed to procedural) claims. The following sections provide an overview of the district court’s initial February 16, 2015, decision. They also note the district court’s subsequent decision denying the federal government’s motion to stay the injunction, as well as the federal government’s appeal to the Fifth Circuit. States’ Standing to Challenge DAPA and the DACA Expansion Before reaching the question of whether the states are likely to succeed on the merits of their claim that the Administration did not comply with the procedural requirements of the APA when implementing DAPA and the DACA expansion, the federal district court first found that the states satisfy the requirements for Article III, prudential, and APA standing. Article III standing, in particular, generally requires that plaintiffs show that (1) they have suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) the injury is likely to be redressed by a favorable decision from the court.91 All three conditions were found to be satisfied here, given the specific claims that Texas made about the “substantial costs” associated with processing applications for driver’s licenses for DAPA beneficiaries.92 Previous state challenges to the federal government’s alleged failure to enforce the immigration laws had similarly noted the costs of providing emergency medical care and public elementary and secondary education to aliens who had entered or remained in the United States in violation (...continued) that would deter unauthorized aliens from entering or remaining within their jurisdiction, while the federal government declines to take action to remove such aliens. 88 See, e.g., Texas v. United States, No. 1:14-CV-254, Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Preliminary Injunction (S. D. Tex., filed Dec. 24, 2014). For further discussion of prosecutorial or enforcement discretion in the immigration context, see generally CRS Report R42924, Prosecutorial Discretion in Immigration Enforcement: Legal Issues, by Kate M. Manuel and Todd Garvey. 89 In a subsequent decision, the court clarified its view that the court may exercise jurisdiction so long as it finds that at least one plaintiff state demonstrates standing. See Texas v. United States, No. B-14-254, 2015 U.S. Dist. LEXIS 45483, at *10-*13 (S.D. Tex., Apr. 7, 2015). 90 See infra “Motion to Stay the Injunction, Appeal to the Fifth Circuit.” 91 See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 92 Texas, 2015 U.S. Dist. LEXIS 18551, at *36. c11173008 Congressional Research Service 14 State Challenges to Federal Enforcement of Immigration Law . of the INA, as well as the costs of incarcerating such aliens for any state or local offenses they commit.93 However, as previously noted, such earlier challenges had failed, in part, because these specific costs were seen to arise from state law or the U.S. Constitution, not the dictates of the federal government.94 However, the Texas court viewed the costs of issuing driver’s licenses to DAPA beneficiaries as different because, in the court’s view, the federal government had evidenced an intent to “compel ... all states” to issue driver’s licenses to deferred action beneficiaries when supporting a successful challenge to Arizona’s denial of driver’s licenses to those granted deferred action through the 2012 DACA initiative.95 The court further noted that, pursuant to the REAL ID Act of 2005, states must verify the immigration status of aliens who apply for driver’s licenses with the federal government in order for the license to be recognized for “federal purposes,” and Texas estimates the costs of such verification at $0.50 to $1.50 per applicant.96 Based upon these costs, the court found that the plaintiffs had shown the requisite “injury in fact” for Article III standing because “DAPA will directly injure the[ir] proprietary interests [in] their driver’s license programs and cost [them] badly needed funds.”97 The court also viewed this injury as “directly caused” by DAPA since a grant of deferred action through DAPA would give unauthorized aliens the “status or documents” necessary to apply for driver’s licenses, as well as an “incentive” to do so (i.e., by enabling them to obtain work authorization).98 In addition, the court viewed the states’ injury as likely to be redressed by a favorable court decision because the unauthorized aliens eligible for DAPA would generally lack the “status or documents” needed to obtain driver’s licenses in most states if implementation of DAPA were enjoined.99 The court further found that the states had satisfied the prudential standing requirements, in part, because they asserted a “direct injury to their financial interests,” and not a “generalized grievance.”100 The court similarly found APA standing, although it addressed such standing in its 93 See, e.g., Texas, 106 F.3d 661; California, 104 F.3d 1086; Arizona, 104 F.3d 1095; New Jersey, 91 F.3d 463; Padavan, 82 F.3d 23; Chiles, 69 F.3d 1094. 94 See, e.g., Texas, 106 F.3d at 665-66; California, 104 F.3d at 1091-93; New Jersey, 91 F.3d at 466-67; Padavan, 82 F.3d at 28-29; Chiles, 69 F.3d at 1097. Standing concerns were specifically noted in several of these cases. See Texas, 106 F.3d at 664 (noting that the district court had dismissed Texas’s suit, in part, on standing grounds); Padavan, 82 F.3d at 25 (noting questions as to standing); Chiles, 69 F.3d at 1096 (noting that the district court did not address the federal government’s argument that Florida lacked standing). 95 Texas, 2015 U.S. Dist. LEXIS 18551, at *39-*40. For more on this litigation as to driver’s licenses for DACA beneficiaries, see CRS Legal Sidebar WSLG1057, 9th Circuit Decision Enables DACA Beneficiaries—and Other Aliens Granted Deferred Action—to Get Arizona Driver’s Licenses, by Kate M. Manuel; CRS Report R43452, Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues, by Kate M. Manuel and Michael John Garcia. 96 Texas, 2015 U.S. Dist. LEXIS 18551, at *38-*39. 97 Id. at *47. 98 Id. at *53-*57. 99 Texas, 2015 U.S. Dist. LEXIS 18551, at *57. Some states do, however, make provision for unauthorized aliens who have not been granted deferred action by the federal government to obtain driver’s licenses or similar state-issued authorization to drivers. See generally CRS Report R43452, Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues. 100 Id. at *58. The court also found that the states are within the “zone of interests” to be protected by the federal immigration laws in question—as is generally required for prudential standing—because it construed these laws as intended to protect the states from unauthorized migration. Id. at *59-*60. In so finding, the court specifically noted that the federal government has historically been seen to have a “duty” to enforce the immigration laws, while states are generally seen to be preempted from enforcing these laws on their own behalf. Id. c11173008 Congressional Research Service 15 State Challenges to Federal Enforcement of Immigration Law . discussion of the reviewability of DACA and the DAPA expansion, rather than separately (see below, “Reviewability under the APA”).101 The court also viewed the states’ claim of “standing ... based upon federal abdication” of its statutory duty to enforce the INA as cognizable.102 However, its decision was not based solely on such standing, and it declined to adopt the states’ theories of standing on parens patriae grounds generally,103 or under the precedent of Massachusetts v. Environmental Protection Agency specifically.104 The discussion of standing based on abdication is perhaps most notable because the court distinguished the case at hand from Texas’s challenge to the federal government’s alleged failure to enforce the immigration laws in the 1990s (see “Litigation in the Mid-1990s”) on the grounds that the federal government in this case “has required and will require states to take certain actions [to issue driver’s license] to DAPA recipients.”105 Reviewability under the APA Having found that the states have standing, the federal district court also found that DAPA and the DACA expansion are reviewable under the APA. In so doing, the court expressed its view that (1) the memorandum establishing DAPA and the DACA expansion constitutes a “final agency 101 Id. at *61. Id. at *113-*114. 103 Id. at *62-*70. The parens patriae theory of standing is premised upon the state’s being a protector of the interests of its citizens. But see Massachusetts v. Mellon, 262 U.S. 485-86 (1923) (“It cannot be conceded that a state, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the state, under some circumstances, may sue in that capacity for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the federal government. In that field it is the United States, and not the state, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.”) (internal citations omitted). 104 Texas, 2015 U.S. Dist. LEXIS 18551, at *72-*92. Some commentators have suggested that the Supreme Court, in Massachusetts v. Environmental Protection Agency, recognized a “special form” of state standing based on sovereignty. See, e.g., Ryke Longest, Massachusetts versus EPA: Parens Patriae Vindicated, 18 DUKE ENVIR. L. & POL’Y FORUM 277 (2008); Bradford Mank, Should States Have Greater Standing Rights Than Ordinary Citizens? Massachusett v. EPA’s New Standing Test for States, Univ. of Cincinnati College of Law Scholarship & Publications No. 1-1-2008 (2008), available at http://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1137&context=fac_pubs. For further discussion of this case, CRS Report RS22665, The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA, by Robert Meltz. 105 Texas, 2015 U.S. Dist. LEXIS 18551, at *110-*112. The court also indicated that it viewed this case as akin to prior cases wherein the executive adopted a general policy of not enforcing a statute in a way that benefited ineligible recipients, and not as akin to those cases wherein the executive declined to enforce violations of a statute against specific individuals. Id. at *112-*113. Questions have been raised about the court’s analysis of standing, in part, because the federal district court for the District of Columbia found, in a December 23, 2014, decision, that Sheriff Joe Arpaio of Maricopa County, Arizona, lacked standing to raise similar challenges to DAPA and the DACA expansion. See Arpaio, 27 F. Supp. 3d 185. (This decision has been appealed). However, the court in Texas expressly rejected the states’ claims based on harms like those noted by Sheriff Arpaio, such as DAPA allegedly promoting further unlawful migration. See, e.g., Texas, 2015 U.S. Dist. LEXIS 18551, at *49-*50. The Fifth Circuit’s recent decision affirming the dismissal of the challenge to the 2012 DACA initiative brought by the State of Mississippi, among others, is also arguably distinguishable in that the Fifth Circuit found that Mississippi lacked standing to challenge the DACA program because its alleged injury—a cost to the state of more than $25 million per year due to “illegal aliens” residing there—was “purely speculative.” See Crane IV, 2015 U.S. App. LEXIS 5573.Mississippi had relied upon a 2006 study—which predated DACA—to demonstrate these costs but, according to the court, there was no “concrete evidence” in the record that Mississippi’s costs increased, or would increase, as a result of DACA. Id. 102 c11173008 Congressional Research Service 16 State Challenges to Federal Enforcement of Immigration Law . action”;106 (2) the states are within the “zone of interests” protected by federal immigration laws;107 and (3) there are no applicable “exceptions” to review under the APA.108 The “finality” of the DAPA memorandum—that it “mark[s] the consummation of the agency’s decision making process” and is an action “from which legal consequences will flow”—does not appear to have been seriously questioned by the court given that the memorandum orders agency personnel to take certain actions and establishes DHS’s obligations. The memorandum also, in the court’s view, “confers upon its beneficiaries the right to stay in the country lawfully.”109 The court similarly viewed the states as being within the “zone of interests” protected by the immigration laws based, in part, on its finding that the “acts of Congress deeming [unauthorized aliens] removable were passed ... to protect the States and their residents.”110 The question of whether any “exceptions to review” might apply, however, prompted more extended discussion by the court, particularly given the Administration’s argument that DAPA represents an exercise of enforcement discretion and, as such, is presumptively immune from review under the precedent of Heckler v. Chaney.111 The court rejected this argument by first noting that it views the presumption of reviewability as inapplicable here because DAPA involves more than the executive not taking action to remove individual aliens.112 Rather, in the court’s view, DAPA represents an “affirmative action” “that awards legal presence[] to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability of travel.”113 In drawing this contrast, the court emphasized that the executive had not taken enforcement action as to potential DAPA beneficiaries “for the last five years” (or more) prior to DAPA. Had the Administration continued its prior practice of nonenforcement, its actions would, in the court’s view, have been immune from judicial review because they involve the exercise of enforcement discretion.114 However, the court took the position that creating a program whereby aliens who met specified criteria are essentially assured of receiving deferred action—and thereby becoming eligible for other benefits—is another matter.115 The court also found, in the alternative, that even if its characterization of DAPA were rejected and a presumption of nonreviewability were found to apply, the presumption could be rebutted in this case. The court did so because, in its view, the INA requires that unauthorized aliens be 106 Texas, 2015 U.S. Dist. LEXIS 18551, at *126-*130. Id. at *130-*138. 108 Id. at *138-*149. 109 Id. at *126-*127. 110 Id. at *132. 111 Id. at *138-*139. In Heckler, the Supreme Court held that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” 470 U.S. at 831. The Court noted that agency enforcement decisions, like prosecution decisions, involve a ”complicated balancing”of agency interests and resources—a balancing that the agency is “better equipped” to evaluate than the courts. Id. The Heckler opinion proceeded to establish the general rule that an “agency’s decision not to take enforcement action should be presumed immune from judicial review.” Id. at 831. However, the Court indicated that this presumption may be overcome “where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 833. 112 Texas, 2015 U.S. Dist. LEXIS 18551, at *139-*149. 113 Id. at *144. 114 Id. at *145. 115 Id. at *148-*149. 107 c11173008 Congressional Research Service 17 State Challenges to Federal Enforcement of Immigration Law . placed in removal proceedings,116 and Heckler recognizes an exception to the general presumption of nonreviewability in cases where a “substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.”117 In so finding, the court relied, in part, upon the same provisions of INA §235 that another federal district court had relied upon in finding that DACA is prohibited by the INA (see Mississippi’s Claims in Crane v. Napolitano), although it did not expressly reference that court’s opinion.118 (The Crane court later found that it lacked jurisdiction over the plaintiffs’ claims, a decision which was affirmed on appeal in an opinion by the Fifth Circuit which arguably adopted (but did not directly rule on) an alternate interpretation of INA §235.)119 The court expressly rejected the Administration’s argument that DAPA can be seen as within the executive’s discretion under statutory provisions which authorize the Secretary of Homeland Security to “establish such regulations ... as he deems necessary for carrying out his authority” under the INA (8 U.S.C. §1103), as well as to “[e]stablish national immigration enforcement policies and priorities” (6 U.S.C. §202). In so doing, the court noted that it viewed 6 U.S.C. §202, in particular, as giving the executive discretion to determine its enforcement priorities.120 However, the court emphasized that these priorities are neither directly at issue here nor unlawful.121 The court similarly rejected the view that the executive’s historical practice of granting deferred action to unauthorized aliens can be seen to justify DAPA, or to reflect congressional acquiescence to this practice.122 Failure to Engage in Rulemaking Having found that DAPA is reviewable, the court then found that the memorandum establishing DAPA and the DACA expansion (“the DAPA memorandum”) constitutes a substantive rule, but was issued without compliance with the notice-and-comment rulemaking generally required for such rules under the APA.123 In reaching this conclusion, the court first noted that it viewed neither party as having seriously questioned whether the DAPA memorandum constitutes a “rule” for purposes of the APA.124 It then rejected the Administration’s argument that the DAPA memorandum represents an interpretative rule, not a substantive one, on the grounds that the memorandum cabins agency discretion and effects a substantial change in existing law.125 The court concluded that the DAPA memorandum cabins agency discretion by distinguishing between the language in the memorandum, which provides that deferred action is to be granted on a case116 Id. at *150-*167. Id. at *150 (quoting Heckler, 470 U.S. at 832-33). 118 Id. at *150-*151. 119 See supra note 76. 120 Texas, 2015 U.S. Dist. LEXIS 18551, at *154-*160. 121 Id. at *117-*118, *156-*157. 122 Id. at *171-*172. 123 The court’s focus upon what it viewed as procedural defects in the implementation of DAPA should not be taken to mean that the Administration may simply implement DAPA, or the DACA expansion, by promulgating a regulation to this effect. Rather, the question would then be whether the programs are within the Administration’s authority, including as a matter of constitutional law, something which the court did not address in its February decision, but is currently considering. 124 Id. at *173-*174. 125 Id. at *174-*195. 117 c11173008 Congressional Research Service 18 State Challenges to Federal Enforcement of Immigration Law . by-case basis in the executive’s discretion, and the Administration’s past practice in implementing DACA, which has generally been to grant deferred action to aliens who meet the eligibility criteria.126 As to the DAPA memorandum’s effects on existing law, the court similarly noted that DAPA represents a “massive change in immigration practice,” turning “illegal status” into “lawful presence” for some 4.3 million aliens, whereas the executive had granted deferred action to only approximately 1,000 aliens per year prior to the implementation of DACA in 2012.127 The court further emphasized that it viewed the granting of deferred action to DAPA beneficiaries as contrary to the immigration laws, which the court views as generally requiring their removal.128 Motion to Stay the Injunction, Appeal to the Fifth Circuit The federal government filed an emergency expedited motion to stay the injunction with the district court,129 and appealed the district court’s decision to the Fifth Circuit.130 The district court rejected the motion to stay in a decision issued on April 7, 2015, which broadly indicated that the court viewed its “original findings and rulings” as “correct.”131 The district court did, however, respond to arguments that it characterized as “either new or ... not necessarily emphasized during the prior hearing.”132 In particular, the court rejected the federal government’s arguments (1) that implementation of DAPA and the DACA expansion should be enjoined only in Texas, and not in other states,133 and (2) that immediate implementation of these programs is necessary to secure the border, among other things.134 Subsequently, on April 17, 2015, the Fifth Circuit heard oral 126 Id. at *186-*187. Id. at *103 n.46. 128 Id. at *194-*185. 129 See, e.g., Texas v. United States, No. 1:14-cv-254, Defendants’ Supplement to Emergency Expedited Motion to Stay (S.D. Tex., filed Mar. 12, 2015) (copy on file with the author). The district court’s injunction applies only to the implementation of DAPA and the 2014 expansion of DACA. It does not apply to the 2012 DACA program, or to any of the other actions announced by the Obama Administration on November 20, 2014 (e.g., granting parole to certain inventors and entrepreneurs). 130 See, e.g., Texas v. United States, No. 15-40238, Appellants’ Emergency Motion for Stay Pending Appeal (5th Cir., filed Mar. 12, 2015) (copy on file with the author). 131 Texas, 2015 U.S. Dist. LEXIS 45483 at *10. 132 Id. 133 This argument was raised, in part, because the district court focused on Texas’s injuries as a result of DAPA when finding that the plaintiffs had standing to pursue their claims. Because the court made “no specific findings” as to the injuries of the other plaintiff states, the federal government asserted that the court lacked jurisdiction to enjoin the implementation of DAPA and the DACA expansion in states other than Texas. Id. at *11. The court disagreed, on the grounds that each and every plaintiff need not produce sufficient evidence of any injury caused by defendant’s actions at the preliminary injunction stage of proceedings. Id. at *11-*12. The court also rejected the federal government’s argument that the scope of the injunction should be limited to Texas, in part, because it viewed the nationwide scope of the injunction as consistent with the constitutional requirement that there be a “uniform rule of naturalization.” Id. at *26. It also noted that the Administration had, in its view, taken positions in prior litigation that are inconsistent with its current position that requests for deferred action should be treated differently in Texas. Id. at *26-*27. The court further noted that insofar as the government violated the procedural requirements of the APA when announcing DAPA and the DACA expansion, this violation affects the entire nation, not just one state. Id. at *28. 134 The federal government’s argument here was that, if DAPA and the DACA expansion were implemented, immigration agents would not have to spend time processing aliens whose deferred action status indicates they are “low priorities” for removal. Id. at *28-*29. Instead, immigration agents could concentrate on those unauthorized aliens who have committed criminal offenses or recently entered the United States. Id. The court, however, found this argument unpersuasive because it does not view the federal government as needing the specific documentation resulting from the implementation of DAPA and the DACA expansion to accomplish this goal. Instead, the court emphasized that the government could issue “documentation designating certain illegal immigrants as low-priority law enforcement targets (continued...) 127 c11173008 Congressional Research Service 19 State Challenges to Federal Enforcement of Immigration Law . arguments on the federal government’s appeal of the district court’s decision enjoining implementation of DAPA and the DACA expansion. Like the district court’s decision, this hearing centered upon whether Texas and the other plaintiff states (1) have standing; (2) challenge actions that are committed to agency discretion as a matter of law; and (3) are likely to prevail in their argument that the memorandum authorizing DAPA and the DACA expansion constitutes a “substantive rule,” but was issued without compliance with the notice-and-comment procedures required for such rules under the APA. The district court has not addressed the merits of the states’ other arguments, including the argument that DAPA and the DACA expansion run afoul of the Constitution and the INA, but is currently considering them.135 Conclusion It remains to be seen how the Fifth Circuit may rule on appeal, or how the district court may rule on the states’ substantive (as opposed to procedural) challenges to DAPA and the DACA expansion. However, even assuming that the district court’s February 2015 decision in Texas v. United States withstands appeal, states’ ability to challenge alleged federal “failures” to enforce the immigration laws in the future may be more limited than it might first appear.136 The 2015 Texas decision does mark the first time that a state has obtained a court order directing the federal government to take certain actions (i.e., delaying implementation of DAPA and the DACA expansion) in response to state allegations that the federal government is failing to enforce the INA. On the other hand, the facts and circumstances involved in the 2015 Texas decision are arguably distinguishable from those in earlier cases and, thus, potentially limit this decision’s relevance to any future state challenges to federal enforcement of the immigration laws. First, there are the specific facts and circumstances which prompted the district court to find that Texas, in particular, has Article III standing to challenge DAPA and the DACA expansion. This finding was based, in part, on Texas’s documentation of the costs it would incur in issuing driver’s licenses to DAPA beneficiaries.137 Moreover, because the federal government had advocated a position in prior litigation over the issuance of driver’s licenses to DACA beneficiaries that Texas asserted would result in the federal government requiring it to issue driver’s licenses to DAPA beneficiaries, Texas was also able to avoid any potential counterargument that these costs arose due to state law or the Constitution, and not the federal government’s actions. Both factors were arguably significant. Mississippi’s alleged injury in Crane, for example, was seen as inadequate for standing because Mississippi did not show that (...continued) without additionally awarding [the] legal status and other benefits” that flow from a grant of deferred action. According to the court, the federal government “has always had the ability” to designate certain aliens as low priorities for removal (separate and apart from granting them deferred action), and the “injunction does not affect this.” Id. at *29. 135 Several aspects of the district court’s discussion of the plaintiffs’ standing, the reviewability of DAPA and the DACA expansion, and the procedural requirements of the APA could, however, be taken to mean that the district court views these programs as running afoul of the INA. See supra notes 100 and 118 and accompanying text. 136 It is also worth noting that the district court found for the plaintiffs on their procedural challenge to DAPA and the DACA expansion (i.e., how these programs were implemented). It did not address the plaintiffs’ substantive challenge to the programs (i.e., whether they are within the executive’s authority). 137 See supra notes 95-99 and accompanying text. c11173008 Congressional Research Service 20 State Challenges to Federal Enforcement of Immigration Law . the implementation of DACA had increased, or will increase, its costs.138 Certain claims in the mid-1990s litigation similarly failed because the states were seen as incurring certain costs associated with unauthorized aliens because of grant conditions (to which the state had agreed), state laws, or constitutional requirements, and not the dictates of the federal government.139 Had either of these factors been lacking (i.e., had Texas not been able to cite specific costs, or argue that it is compelled to bear these costs by the federal government), it is unclear that the district court would have reached the same conclusions as to standing. Second, and relatedly, there is the specific form that the federal government’s alleged failure to enforce the immigration laws took in the 2015 Texas decision. Namely, the Obama Administration proposed to grant deferred action (one type of relief from removal) to certain unauthorized aliens, a proposal which could result in those aliens becoming eligible for certain “benefits” under existing law (e.g., work authorization, Social Security numbers).140 In finding that this particular form of nonenforcement of the immigration laws is subject to judicial review, the district court repeatedly emphasized that it views the granting of deferred action as involving an “affirmative action” on the executive’s part,141 and not simply a matter of an agency’s enforcement priorities142 or nonenforcement of the laws as to individual aliens and groups of aliens.143 Both of these (i.e., enforcement priorities, nonenforcement as to individuals) would appear to be within the executive’s discretion, in the court’s view, and thus not subject to judicial review.144 Indeed, the district court even suggested, in denying the federal government’s emergency expedited motion to stay the injunction, that immigration officials could achieve their purpose of designating potential DAPA beneficiaries as “low priorities” for removal by giving them written documentation to this effect, so long as this documentation does not involve a grant of deferred action.145 That the district court viewed certain provisions in INA §235 as requiring 138 See supra “Mississippi’s Claims in Crane v. Napolitano.” See supra “Litigation in the Mid-1990s” and “Tenth Amendment.” The states’ claims in the mid-1990s were based on federal commandeering. However, similar concerns about whether particular costs are due to federal actions in not removing unauthorized aliens have been raised in discussions of standing in other cases. See, e.g., Arpaio, 27 F. Supp. 3d at 201-205. 140 See generally 8 C.F.R. §274a.12(c)(14) (providing for the issuance of work authorization to aliens granted deferred action who can show an “economic necessity for employment”); 8 C.F.R. §1.3(a)(4)(vi) (providing that aliens granted deferred action are “lawfully present” “for purposes of applying for Social Security benefits”). 141 Texas, 2015 U.S. Dist. LEXIS 18551, at *144. 142 Id. at *118-*120. 143 Id. at *45 (“The DHS [Department of Homeland Security] has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of DAPA, that is what the DHS has been doing for these recipients for the last five years—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for ‘administrative convenience.’ Had the States complained only of the DHS’ mere failure to (or decision not to) prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have been based on the inaction of the agency in its refusal to enforce. In such a case, the Court may have been without any ‘focus for judicial review.’”). 144 In taking the view that the executive’s actions might not have been reviewable had it continued as it had as to the potential DAPA beneficiaries (i.e., not removing them, but not granting them deferred action), the court could be seen as taking the view that the number of aliens as to whom the INA is allegedly not enforced is not dispositive in determining whether the action is judicially reviewable or permissible. See supra note 144. 145 Texas, 2015 U.S. Dist. LEXIS 45483, at *29 (“The DHS could conduct the same investigation and provide ... documentation designating certain illegal immigrants as low-priority law enforcement targets without additionally awarding legal status and the other benefits previously described in detail. (In fact, the DHS has always had the ability to do this. This Court’s injunction does not affect this ability.)”). 139 c11173008 Congressional Research Service 21 State Challenges to Federal Enforcement of Immigration Law . that unauthorized aliens be removed is arguably also significant, since the court cited this purported requirement both in finding that the states have prudential standing and in finding that DAPA and the DACA expansion are judicially reviewable.146 A similar outcome might not have resulted had the states challenged the executive’s enforcement priorities per se; its decision not to pursue removal against some or all unauthorized aliens, separate and apart from the granting of deferred action; or its compliance with statutory provisions which the court did not see as imposing nondiscretionary requirements on the executive. Author Contact Information Kate M. Manuel Legislative Attorney kmanuel@crs.loc.gov, 7-4477 146 c11173008 See supra notes 100 and 118 and accompanying text. Congressional Research Service 22