State Challenges to Federal Enforcement of
Immigration Law: Historical Precedents and
Pending Litigation
Kate M. Manuel
Legislative Attorney
December 31, 2014
Congressional Research Service
7-5700
www.crs.gov
R43839
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
“sanctuary” policies limiting their 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 measures to deter unauthorized aliens
from entering or remaining within their 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—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 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 cases. However, even when standing was assumed, states’
constitutional claims were seen to involve nonjusticiable “political questions,” or to fail 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 responsibilities.
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 Arizona. 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 immigration laws. Some claims were seen to be
precluded or otherwise settled by the litigation in the 1990s. Others were seen to involve
nonjusticiable political questions, or to fail on their merits. The court also rejected the argument
that the federal officials had abdicated their statutory responsibilities.
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 on appeal). However, Mississippi was found to lack standing
because it could not show that those 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.
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State Challenges to Federal Enforcement of Immigration Law
Contents
Litigation in the Mid-1990s ............................................................................................................. 2
Naturalization Clause ................................................................................................................ 3
Guarantee Clause ....................................................................................................................... 3
Invasion Clause ......................................................................................................................... 4
Tenth Amendment...................................................................................................................... 4
Statutory Provisions ................................................................................................................... 5
Arizona’s Counterclaims in the S.B. 1070 Litigation ...................................................................... 7
Mississippi’s Claims in Crane v. Napolitano ................................................................................. 10
Challenge to the Obama Administration’s 2014 Actions ............................................................... 12
Pending Litigation as Compared to Earlier Litigation ................................................................... 13
Contacts
Author Contact Information........................................................................................................... 17
Congressional Research Service
State Challenges to Federal Enforcement of Immigration Law
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
Sexclusion 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 in 2014 to the recently announced expansion of DACA and the creation
of a similar program for unlawfully present 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 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-cv-
254, Plaintiffs’ Motion for Preliminary Injunction and Memorandum in Support, at 26 (filed S.D. Tex., 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...)
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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 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 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 Executive’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).
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State Challenges to Federal Enforcement of Immigration Law
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 present 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
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 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.
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State Challenges to Federal Enforcement of Immigration Law
government deprived them of a republican form of government by “forcing” them to spend
money on unlawfully present 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
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, 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.
23 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 28-
29; 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.
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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.
32 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.
33 California, 104 F.3d at 1092-93.
34 Id. at 1093. In Plyler, the Court found that Texas deprived unlawfully present alien children of equal protection by
denying them elementary and secondary education. The Court’s decision in Plyler is generally understood to reflect the
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 present 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 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...)
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State Challenges to Federal Enforcement of Immigration Law
• 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;37
• 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”;38
• INA §276, which establishes criminal penalties for “illegal reentry” (i.e.,
unlawfully re-entering the United States after having been removed);39 and
• 8 U.S.C. §1365, which provides for the reimbursement of costs incurred by the
states for the imprisonment of unlawfully present 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)
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.”
37 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.”).
38 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 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”).
40 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
State 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.
42 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”).
43 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.
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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 non-
enforcement] 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.”48
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”).49 Arizona had adopted S.B. 1070 in 2010 in an attempt to deter unlawfully present
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
thought to facilitate the presence of unauthorized aliens within the state.50 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 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 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.
50 S.B. 1070, as amended by H.B. 2162 (copy on file with the author).
51 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., Feb. 10, 2011) (copy on file with the author).
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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,” not “ordinary
crimes,”57 and implicates nonjusticiable political questions.58
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, 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 53, at 6-7 (quoting Hydranautics v. FilmTec Corp., 204 F.3d 880,
885 (9th Cir. 2000)).
56 Order, supra note 53, at 8-13.
57 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).
58 Order, supra note 53, 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.
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• 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
infrastructure developments or any required discrete action by a specified time.”63 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.”64 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 Executive’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.”65 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.
60 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...)
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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.67 This challenge arose from the Administration’s decision
to grant some unlawfully present 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)
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.
67 See Crane v. Napolitano, No. 3:12-cv-03247-O, Amended Complaint (filed N.D. Tex., Oct. 12, 2012) (copy on file
with the author). Subsequently, Arizona also alleged that the DACA initiative was beyond the Executive’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., 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 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 Luviano-
Rodriguez, 21 I. & N. December 235 (BIA 1996); Matter of Quintero, 18 I. & N. December 348 (BIA 1982). DHS
regulations further 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.
69 For further discussion of these INA provisions, see infra note 72 and accompanying text.
70 Amended Complaint, supra note 67, at 15-23.
71 Crane v. Napolitano, 920 F. Supp. 2d 724, 738-40 (N.D. Tex. 2013) [hereinafter “Crane I”].
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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 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 present aliens in removal proceedings, federal officials have historically
interpreted the relevant provisions of the INA in a somewhat different manner. Both federal officials and those who
claim immigration officers lack discretion construe the first two provisions of INA §235 noted above—aliens present
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 officials have construed the third provision—regarding detention of certain aliens seeking admission—as
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 that only arriving aliens at ports-of-entry can be said to be seeking admission. See, e.g., Immigration and
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 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.
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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.
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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.
88 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”).
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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...)
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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.”).
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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.
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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 employment-
authorization 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.
115 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.
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