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

Summary

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 seeCRS Legal Sidebar WSLG1145, "Sheriff Joe" Found to Lack Standing to Challenge the Obama Administration's Immigration Enforcement Priorities and Deferred Action Initiatives, by [author name scrubbed].

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.

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 unauthorized aliens, or to protect the states from harm by "non-governmental third parties."¹⁷ To the contrary, as the Second Circuit noted, the Supreme Court has upheld the 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

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 unauthorized aliens that they would not have had to spend if these aliens had been excluded or removed from the United States.²² This argument was, however, uniformly 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 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

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 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

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.

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

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

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,⁵⁶ or, alternatively, settled in the federal government's favor by Ninth Circuit precedent.⁵⁷ 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."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 that

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 infrastructure developments or any required discrete action by a specified time."⁶⁴ 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."⁶⁵ 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 district court's decision as to Mississippi's standing was affirmed by the Fifth Circuit on appeal.⁸³ 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.⁸⁴ 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 types of claims, but did not view Mississippi as making such claims.⁸⁵

Most recently, in December 2014, over 25 states or state officials⁸⁶ filed suit challenging the Obama Administration's announcement that it is expanding the DACA program to cover additional aliens who had been 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).⁸⁷ 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.⁸⁸ The federal government disputes these assertions. It 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.⁸⁹

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.⁹⁰ 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 because the district court viewed its "original findings and rulings" as "correct."⁹¹ The federal government also appealed the district court's decision regarding standing, reviewability, and the procedural requirements of the APA to the Fifth Circuit. The government requested that the Fifth Circuit stay the injunction pending resolution of this appeal. On May 26, 2015, the Fifth Circuit issued a decision rejecting, by a vote of 2 to 1, the federal government's request for the stay because it viewed the federal government as failing to make the requisite showing that it was likely to succeed on the merits of its arguments that (1) the states lack standing; (2) DAPA and the DACA expansion are not subject to judicial review; and (3) the memorandum establishing the challenged programs constitutes an interpretative rule, not a substantive one.⁹² Subsequently, on November 9, 2015, the Fifth Circuit denied, again by a vote of 2 to 1, the government's appeal, in part, because it agreed with the district court's reasoning in finding that the states have standing to challenge DAPA and the DACA expansion, the programs are judicially reviewable, and their establishment represents a substantive rule that should have been subject to notice-and-comment rulemaking.⁹³ However, the Fifth Circuit also went beyond the district court's analysis in finding that DAPA and the DACA expansion are impermissible because they conflict with provisions of the INA or, alternatively, represent unreasonable interpretations of the INA.⁹⁴

The following sections provide an overview of the Fifth Circuit's decision on appeal, as well as the government's subsequent petition asking the Supreme Court to review the case, which the Court granted on January 19, 2016.⁹⁵

In affirming the district court on the questions of standing, reviewability, and the need for rulemaking, the majority of the Fifth Circuit did not significantly add to or alter the district court's analysis. In particular, as to standing, the majority noted that Texas satisfied the requirements for constitutional, Article III standing, as well as those for prudential standing—an additional hurdle for claims brought under the APA.⁹⁶ Relying on Massachusetts v. EPA, the majority first noted that the plaintiff-states are entitled to "special solicitude" in the court's standing inquiry.⁹⁷As for constitutional standing, the majority concluded, that if DAPA, in particular, were implemented, Texas would suffer a concrete injury because the state would incur "significant costs" by having to issue state-subsidized driver's licenses to DAPA beneficiaries.⁹⁸ With regard to prudential standing, the majority concluded that Texas's interest in denying public benefits to "illegal aliens"—something which Congress generally requires, absent the enactment of a state law that expressly provides for their eligibility⁹⁹—falls within the "zone of interests" regulated by the INA.¹⁰⁰ The dissent, however, characterized the majority's standing analysis as "deeply troublesome," noting, in particular, separation of powers concerns because, in the dissenting judge's view, the majority ruling would "inject courts into far more federal-state disputes and review of the political branches."¹⁰¹

Concerning the court's authority to review DAPA and the DACA expansion, the majority recognized that there are limitations to judicial review of specific decisions of the Secretary of Homeland Security, but concluded that none of those limitations pertains to the decision to grant "lawful presence" to millions of aliens.¹⁰² The majority also concluded that it can review DAPA and the DACA expansion to determine whether the Executive exceeded its statutory powers because these programs affirmatively confer lawful presence on aliens who entered or remained in the United States in violation of the immigration laws,¹⁰³ as well as permit them to receive authorization to work in the United States.¹⁰⁴ These programs are thus not tantamount to agency decisions not to take enforcement action, in the majority's view.¹⁰⁵ The dissent, though, disagreed that this was a basis for review, reasoning that the ability of deferred action beneficiaries to apply for work authorization is not a function of DAPA but of decades-old regulations whose permissibility was not challenged by the plaintiff-states.¹⁰⁶

The majority also affirmed the district court's ruling that DAPA and the DACA expansion should have been implemented through notice-and-comment rulemaking pursuant to the APA.¹⁰⁷ The majority did so, in part, because it viewed the programs as legally binding, not as a policy statement.¹⁰⁸ It found no error in the lower court's factual finding that, although the memorandum announcing DAPA and the DACA expansion "facially purports to confer discretion," that discretion is "merely pretext," given the low rate of rejection in the 2012 DACA program and the provisions made for handling DAPA applications (a conclusion which the dissenting judge would have found clearly erroneous).¹⁰⁹ The majority similarly found that DAPA is not a procedural rule, since it establishes substantive standards by which applications for deferred action are evaluated.¹¹⁰

The majority went beyond the district court's ruling, however, in finding that DAPA and the DACA expansion violate the APA substantively, as well as procedurally, because they are "not in accordance with the law" and "in excess of statutory ... authority."¹¹¹ In so doing, the majority noted Fifth Circuit precedent that it "may affirm a district court's judgment on any grounds supported by the record."¹¹² It further noted that it assumed that the permissibility of DAPA and the DACA expansion should be addressed under the precedent of Chevron USA, Inc. v. Natural Resources Defense Council, which calls for courts to defer to agency interpretations of their governing statutes where Congress has not "directly spoken to the precise question at issue," and the agency's interpretation of an ambiguous statute is a reasonable one.¹¹³

The majority found, however, that Congress has spoken to the precise questions at issue here in such a way as to preclude DAPA and the DACA expansion.¹¹⁴ In particular, it pointed to the INA's provisions regarding (1) which aliens may lawfully enter and remain in the United States, (2) discretionary relief from removal, and (3) work authorization.¹¹⁵ For example, it noted that DAPA would treat aliens who entered or remained in the United States in violation of federal immigration law and are the parents of U.S. citizen or LPRs as "lawfully present," while the INA permits "illegal aliens to derive a lawful immigration classification from their children's immigration status" only if the child is a U.S. citizen (not an LPR) who is at least 21 years of age, and the alien leaves the United States and waits at least 10 years before applying for one of a limited number of family-preference visas.¹¹⁶ Alternatively, the majority found that even if Congress is not seen to have spoken on the precise questions at issue, the Executive's interpretation is "unreasonable" because it is "manifestly contrary" to the INA provisions previously noted.¹¹⁷ The majority further noted the "major policy" exception to Chevron deference—which is based on the view that Congress does not intend to delegate policy decisions "of economic and political magnitude to an administrative agency" when enacting an ambiguous statute—in finding DAPA and the DACA expansion impermissible.¹¹⁸ It also rejected the view that DAPA and the DACA expansion are grounded in historical practices to which Congress can be seen to have acquiesced by not taking action to bar the practices.¹¹⁹

The dissenting judge, in contrast, would not have reached the question of whether DAPA and the DACA expansion substantially violate the APA, given that the district court had "expressly declined" to do so, and the Fifth Circuit had received what the dissenting judge viewed as "limited briefing" on the issue.¹²⁰

Following the Fifth Circuit's decision, the federal government petitioned the Supreme Court to grant certiorari in the case.¹²¹ This petition was granted on January 19, 2016.¹²² In accepting the petition, the Court indicated that it would hear arguments on the plaintiffs' Take Care Clause claims, as well as the questions addressed in the Fifth Circuit's decision.¹²³ The Court's decision seems likely to have significant implications not only for the proposed implementation of the DAPA program and the DAPA expansion, but also for the permissibility of the 2012 DACA program, because the provisions of the INA noted by the Fifth Circuit in Texas could be similarly construed to bar the granting of deferred action and work authorization to aliens brought to the United States as children and raised here. The 2012 DACA program was not at issue in Texas, but had previously been the subject of unsuccessful legal challenges, including one involving the State of Mississippi, previously noted.¹²⁴ See "Mississippi's Claims in Crane v. Napolitano.¹²⁵

It remains to be seen how the Supreme Court may rule on the issues that will be argued before it in Texas v. United States. However, even assuming that the decisions of the lower courts in this case withstand 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. 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 reviewing courts 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.¹²⁶ 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 could counter the argument that these costs arose due to state law or the Constitution, and not the federal government's actions. Both factors were arguably significant, particularly to the district court.¹²⁷ Mississippi's alleged injury in Crane, for example, was seen as inadequate for standing because Mississippi did not show that the implementation of DACA had increased, or would increase, its costs.¹²⁸ Certain claims in the mid-1990s litigation similarly failed because the states were seen as incurring specific 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.¹²⁹

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 proposal 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).¹³⁰ In finding that this particular form of nonenforcement of the immigration laws is subject to judicial review, both the district court and the majority of the Fifth Circuit emphasized that they view the granting of deferred action as involving an "affirmative action" on the Executive's part,¹³¹ and not simply a matter of an agency's enforcement priorities,¹³² or nonenforcement of the laws as to individual aliens and groups of aliens.¹³³ Both of these (i.e., enforcement priorities, nonenforcement as to individuals) would appear to be within the Executive's discretion, in the courts' view, and thus not subject to judicial review.¹³⁴ 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.¹³⁵

Author Contact Information

Footnotes

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).

U.S. Const., art. IV, §4.

U.S. Const., art. IV, §4.

California, 104 F.3d at 1092-93.

Id. at 833 n.4.

Texas, 106 F.3d at 667.

Id.

Id. at 19-33.

Id. at 17-19.

Id. at 16. For further discussion of the requirements as to border fencing, see generally CRS Report R43975, Barriers Along the U.S. Borders: Key Authorities and Requirements, by [author name scrubbed].

Order, supra note 54, at 16.

As used here, the term "unauthorized alien" connotes an alien who either entered or remained in the United States in violation of federal immigration law and lacks a legal immigration status.

Id. at 745.

See generally id. at *10. The district court did, however, respond to arguments that it characterized as "either new or ... not necessarily emphasized during the prior hearing." Id. In so doing, 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, and (2) that immediate implementation of these programs is necessary to secure the border, among other things. Id. *11-*12, *26-*28, & *28-*29.

See Texas v. United States, No. 15-40238, 2015 U.S. App. LEXIS 8657 (5^th Cir., May 26, 2015). For further discussion of this decision, see generally CRS Legal Sidebar WSLG1273, Implementation of DAPA and the DACA Expansion Remain Barred After Fifth Circuit Decision, by [author name scrubbed].

Texas v. United States, No. 15-40238, 2015 U.S. App. LEXIS 19725, at *21-*95 (5^th Cir., November 9, 2015).

Id. at *95-*116.

United States v. Texas, 2016 U.S. LEXIS 841 (January 19, 2016).

Texas, 2015 U.S. App. LEXIS 19725, at *21-*53.

Id. at *22-*31 (discussing and applying the precedent of Massachusetts v. EPA, 549 U.S. 497 (2007)). In particular, the majority noted language in that case stating that "States are not normal litigants for the purposes of invoking federal jurisdiction," and found that the same considerations which had promoted the Court to afford "special solicitude" to Massachusetts in the standing analysis in that case were also present in Texas. Namely, (1) the parties' dispute "turns on the proper construction of a congressional statute," and Congress can be seen to have authorized this type of challenge in the APA; and (2) the executive agency's actions had affected states' "quasi-sovereign" interests "by imposing substantial pressure on them to change their laws, which provide for issuing driver's licenses to some aliens and subsidizing those licenses." Id. at *25.

Id. at *32-*36. In so doing, the majority noted the district court's finding that Texas would have to expend a minimum of $130.89 on each license it issued to a DAPA beneficiary, given its current subsidization of the costs of issuing driver's licenses. See generally Texas v. United States, 86 F. Supp. 3d 591, 617 (S.D. Tex. 2015).

See generally 8 U.S.C. §1621(d) ("A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible ... only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility."); CRS Report R43221, Noncitizen Eligibility for Public Benefits: Legal Issues, by [author name scrubbed].

Texas, 2015 U.S. App. LEXIS 19725, at *52-*54 (citing and quoting, among other things, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) ("[Plaintiffs suing under the APA] must satisfy not only Article III's standing requirements, but an additional test: The interest [they] assert[] must be 'arguably within the zone of interest to be protected or regulated by the statute' that [they] say[] was violated.").

Id. at *157, *160 (King, J., dissenting).

Id. at *56-*74. Among other things, the majority noted the government's reliance on Section 1252(g) of Title 8 of the U.S. Code for "the proposition that the INA expressly prohibits judicial review." However, the majority rejected this argument on the grounds that this provision is not a "general jurisdictional limitation," but rather applies to immigration officials' "'decision or action' to 'commence proceedings, adjudicate cases, or execute removal orders'"—none of which the majority viewed as implicated in the instant case. Id. at *56-*57.

Id. at *62 ("Deferred action ... is much more than nonenforcement: It would affirmatively confer 'lawful presence' and associated benefits on a class of unlawfully present aliens."). Aliens granted deferred action have historically not been seen as accruing additional days of unlawful presence in the United States during the time in which they have deferred action status pursuant to the provisions of Section 212(a)(9)(B)(ii) of the INA, which provides aliens are to be deemed as unlawfully present for certain purposes under federal immigration law if they are present in the United States after the period of stay authorized by the Secretary of Homeland Security.

Id. ("Though revocable, that change in designation [from unlawfully present to lawfully present] would trigger ... eligibility for federal benefits—for example, under title II and XVIII of the Social Security Act—and state benefits—for example, driver's licenses and unemployment insurance—that would not otherwise be available to illegal aliens."). Since at least 1987, federal regulations implementing the INA have provided for the issuance of work authorization to aliens granted deferred action who can show an "economic necessity for employment." See Dep't of Justice, Immigr. & Naturalization Serv., Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg. 46092 (December 4, 1987) (codified at 8 C.F.R. §274a.12(c)(14)). The "basic criteria" for establishing economic necessity are the federal poverty guidelines. See generally 8 C.F.R. §274a.12(e).

Texas, 2015 U.S. App. LEXIS 19725, at *61-*62.

Id. at *171-*172.

Id. at *74-*95.

Id. at *76.

Compare id. at *89 ("Reviewing for clear error, we conclude that the states have established a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion.") with Texas, 2015 U.S. App. LEXIS 19725, at *184 (King, J., dissenting) ("I would hold that the Memorandum [establishing DAPA and the DACA expansion] is nothing more than a general statement of policy and that the district court's findings cannot stand, even under clear error review."). In particular, the majority and the dissent disagreed over what, if any, role the high rate at which applications for deferred action were approved under the 2012 DACA program should play in determining whether immigration officials would have discretion under the DAPA memorandum. The majority viewed the high rate of approvals with DACA as indicating that immigration officials were effectively required to grant deferred action to applicants who met the eligibility requirements. However, the dissenting justice argued that this high approval rate was misleading because only aliens who met DACA's eligibility requirements were likely to apply for relief, and the DAPA memorandum provided additional grounds for the exercise of discretion than were provided for in the 2012 DACA memorandum.

Id. at *90-*91.

Id. at *95.

Id. (citing Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5^th Cir. 2009).

Id.

Id. at *95-*96 ("Assuming arguendo that Chevron applies, we first ask whether Congress has directly addressed the precise question at issue. It has. ... The limited ways in which illegal aliens can lawfully reside in the United States reflect Congress's concern that aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates ...") (internal quotations omitted).

Id. at *97-*103.

Id. at *99.

Id. at *106 n.185 ("[E]ven assuming the government had survived Chevron Step One [in that Congress is not seen to have directly spoken on the precise question at issue], we would strike down DAPA as manifestly contrary to the INA under Step Two [because it constitutes an unreasonable interpretation of the governing statutes, insofar as these statutes are seen as ambiguous].").

Id. at *103-*104 (citing, among other sources, King v. Burwell, 135 S. Ct. 2480, 2489 (2015) and FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). The majority explained its reasoning here by noting that "DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and 'we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. DAPA undoubtedly implicates 'questions of deep "economic and political significance" that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.'"). Id.

Id. at *112-*115.The majority particularly took issue with the view that the "Family Fairness" programs of the Reagan and George H.W. Bush Administrations are to be seen as comparable to DAPA and the DACA expansion on the grounds that these programs were "interstitial to a statutory legalization scheme" that Congress had adopted. Id. at* 113.

Texas, 2015 U.S. App. LEXIS 19725, at *219-*220 (King, J., dissenting).

United States v. Texas, No. 15-674, Petition for a Writ of Certiorari, filed November 20, 2015, at pg. 2, available at http://www.scotusblog.com/wp-content/uploads/2015/11/us-v-texas-petition.pdf ("The questions presented are: 1. Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action. 2. Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law. 3. Whether the Guidance was subject to the APA's notice-and-comment procedures.").

United States v. Texas, 2016 U.S. LEXIS 841 (January 19, 2016).

Id. ("The petition for a writ of certiorari is granted. In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: 'Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.'"). In their decisions in Texas, neither the district court nor the Fifth Circuit addressed the plaintiff-states' Take Care Clause claims. However, one federal district court has addressed this issue. See United States v. Juarez-Escobar, 2014 U.S. Dist. LEXIS 173350, at *33 (W.D. Pa., December 16, 2014) (federal district court judge opining, on his own initiative and without the request of the parties, 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").

At least two other suits challenging DACA were dismissed because the plaintiffs lacked standing. See Peterson v. President of the United States, No. 1:2012cv00257, Order Granting Motion to Dismiss (D.N.H., October 22, 2012); Dutkiewicz v. Napolitano, No. 8:2012cv01447, Order Granting Motion to Dismiss (M.D. Fla., November 9, 2012) (copies on file with the author).

The Court's decision could also have implications for the long-standing executive branch practice of granting work authorization to aliens not expressly authorized to work in the INA. Like its predecessors, the Obama Administration has relied on the reference to aliens "authorized to be ... employed ... by the Attorney General [currently, Secretary of Homeland Security]" in the INA's definition of "unauthorized alien" in claiming broad authority to grant work authorization to aliens whose employment is not directly addressed by the INA. See generally CRS Report R43782, Executive Discretion as to Immigration: Legal Overview, by [author name scrubbed] and [author name scrubbed], at "Work Authorization." The Fifth Circuit majority, in contrast, viewed this "miscellaneous definitional provision" as an inadequate basis for the Executive's granting of work authorization to large numbers of aliens given "Congress's stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country." Texas, 2015 U.S. App. LEXIS 19725, at *103. It also noted that Congress could not have intended the Executive to have discretion over such major policy decisions. Id. at *103-*104.

See Texas, 2015 U.S. Dist. LEXIS 18551, at *39-*40, aff'd, 2015 U.S. App. LEXIS 8657, at *21-*22.

See Texas, 2015 U.S. Dist. LEXIS 18551, at *39-*40. The Fifth Circuit placed less weight on this factor than the district court. See 2015 U.S. App. LEXIS 8657, at *23 ("Although Arizona DREAM Act supports Texas's position that it cannot legally deny licenses to DAPA beneficiaries, it is not dispositive. Even if we were bound by the decision of another circuit, that court said nothing about subsidizing licenses, and Texas could avoid financial injury by raising its application fees to cover the full cost of issuing and administering a license."). However, the Fifth Circuit noted that "that does not resolve the matter." Id. Note, however, that in its petition for certiorari, the federal government puts forth the view that "[n]othing in the Guidance [regarding DAPA and the DACA expansion affects Texas's freedom to alter or eliminate its [driver's license] subsidy at any time." See Petition for a Writ of Certiorari, supra note 121, at 16.

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, aff'd, 797 F.3d 11 (D.C. Cir. 2015).

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").

Texas, 2015 U.S. Dist. LEXIS 18551, at *144, aff'd, 2015 U.S. App. LEXIS, at *45 ("DAPA's version of deferred action ... is more than nonenforcement: it is the affirmative act of conferring 'lawful presence' on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available."). See also Texas, 2015 U.S. App. LEXIS 19725, at *62 ("Deferred action ... is much more than nonenforcement: It would affirmatively confer 'lawful presence' and associated benefits on a class of unlawfully present aliens.").

Texas, 2015 U.S. App. LEXIS 19725, at *61-*62 ("Part of DAPA involves the Secretary's decision—at least temporarily—not to enforce the immigration laws as to a class of what he deems to be low-priority aliens. But importantly, the states have not challenged the priority levels he has established, and neither the preliminary injunction nor compliance with the APA requires the Secretary ... to alter his enforcement priorities."); Texas, 2015 U.S. Dist. LEXIS 18551, at *118-*120 (similar).

Texas, 2015 U.S. App. LEXIS 19725, at *62 (noting that the preliminary injunction would not require DHS to "remove any alien"); Texas, 2015 U.S. Dist. LEXIS 18551, 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.'"), aff'd, 2015 U.S. App. LEXIS, at *45 ("Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary's decision—at least temporarily—not to enforce the immigration laws as to a class of what he deems to be low-priority aliens. If that were all DAPA involved, we would have a different case.").

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.

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.)").