.

State Challenges to Federal Enforcement of
Immigration Law: Historical Precedents and
Pending Litigation in Texas v. United States

Kate M. Manuel
Legislative Attorney
May 12, 2015
Congressional Research Service
7-5700
www.crs.gov
R43839

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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. Depending upon the jurisdiction’s specific concerns, this
interest can be expressed in various ways, from the adoption of “sanctuary” policies limiting the
jurisdiction’s cooperation in federal enforcement efforts to the enactment of measures to deter
unauthorized aliens from entering or remaining within the jurisdiction. In some cases, states or
localities have also sued to compel federal officials to enforce the INA and other relevant laws.
In the mid-1990s, six states which were then home to over half the unauthorized aliens in the
United States—Arizona, California, Florida, New Jersey, New York, and Texas—each filed suit
alleging that federal officials’ failure to check unauthorized migration violated the Guarantee and
Invasion Clauses of the Constitution, the Tenth Amendment, and provisions of the INA. Concerns
regarding standing—or who is a proper party to seek relief from a federal court—were sometimes
noted. However, even when standing was assumed, the constitutional claims were seen to involve
nonjusticiable “political questions,” or failed on their merits. The states’ statutory claims were
similarly seen to involve matters 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 reviewable “abdication” of their statutory duties.
Over a decade later, in 2011, Arizona asserted counterclaims challenging the federal
government’s alleged failure to stop unauthorized migration in the litigation over Arizona’s S.B.
1070 measure. Although the court presumed that Arizona had standing, it rejected Arizona’s
claims regarding violations of the Invasion and Domestic Violence Clauses, Tenth Amendment,
and immigration laws. Some claims were seen as precluded or otherwise settled by the earlier
litigation. Others were found to involve nonjusticiable political questions, or otherwise failed.
The court also rejected the argument that federal officials had abdicated their statutory duties.
Subsequently, in 2012, Mississippi, along with some U.S. Immigration and Customs Enforcement
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 initially prevailed in their claim that
DACA is contrary to the INA, although their case was ultimately dismissed on other grounds (a
decision affirmed on appeal). However, Mississippi was found to lack standing because it could
not show that aliens granted deferred action would have been removed but for DACA.
Most recently, in December 2014, 27 states or their representatives filed suit challenging the
Administration’s expansion of DACA and the creation of another DACA-like program for aliens
who are parents of U.S. citizens or lawful permanent residents (commonly known as DAPA). The
states allege that these programs run afoul of the Take Care Clause and separation of powers
principles of the Constitution, the INA, and substantive and procedural requirements of the APA.
In February 2015, a federal district court found that Texas, at least, has standing to challenge
DAPA and the DACA expansion, and that the challenged programs are judicially reviewable. The
district court also enjoined implementation of these programs after finding that the states are
likely to prevail on the merits of their argument that the memorandum establishing these
initiatives constitutes a substantive rule, but was issued without compliance with the notice-and-
comment procedures required for substantive rules under the APA. The Administration has
appealed that decision. The district court continues to hear arguments on the states’ other claims.
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Contents
Litigation in the Mid-1990s ............................................................................................................. 2
Naturalization Clause ................................................................................................................ 3
Guarantee Clause ....................................................................................................................... 4
Invasion Clause ......................................................................................................................... 4
Tenth Amendment...................................................................................................................... 5
Statutory Provisions ................................................................................................................... 6
Arizona’s Counterclaims in the S.B. 1070 Litigation ...................................................................... 8
Mississippi’s Claims in Crane v. Napolitano ................................................................................. 10
Texas v. United States and the Challenge to DAPA and the DACA Expansion ............................. 13
States’ Standing to Challenge DAPA and the DACA Expansion ............................................ 14
Reviewability under the APA .................................................................................................. 16
Failure to Engage in Rulemaking ............................................................................................ 18
Motion to Stay the Injunction, Appeal to the Fifth Circuit ...................................................... 19
Conclusion ..................................................................................................................................... 20

Contacts
Author Contact Information........................................................................................................... 22

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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 27 states or their representatives in December 2014 to the recently announced
expansion of DACA and the creation of a similar program for unauthorized aliens whose children
are U.S. citizens or lawful permanent resident aliens (LPRs) (commonly known as DAPA).5

1 Among other things, the INA provides that aliens who enter or remain in the United States without authorization are
subject to removal. See INA §212(a)(6), 8 U.S.C. §1182(a)(6) (prescribing the inadmissibility of illegal entrants and
immigration violators); INA §237(a)(1), 8 U.S.C. §1227(a)(1) (prescribing the deportability of aliens who violate their
immigration status or conditions of admission). The INA also provides for the initiation and conduct of removal
proceedings, addresses whether aliens are to be detained pending removal, and expressly authorizes several types of
relief from removal. See, e.g., INA §236, 8 U.S.C. §1226 (apprehension and detention of aliens); INA §239, 8 U.S.C.
§1229 (initiation of removal proceedings); INA §240, 8 U.S.C. §1229a (formal removal proceedings); INA §240a, 8
U.S.C. §1229b (cancellation of removal).
2 For further discussion of “sanctuary” policies and the legal issues that may be raised by them, see generally CRS
Report R43457, State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement, by Michael
John Garcia and Kate M. Manuel.
3 States and localities have generally been seen to be preempted or otherwise barred from adopting measures that would
deter unauthorized aliens from settling or remaining in their jurisdiction by “paralleling” federal immigration laws. See
generally
CRS Report R42719, Arizona v. United States: A Limited Role for States in Immigration Enforcement, by
Kate M. Manuel and Michael John Garcia. But see CRS Report R41991, State and Local Restrictions on Employing
Unauthorized Aliens
, by Kate M. Manuel (finding that states and localities are generally not preempted from revoking
the licenses of businesses that employ unauthorized aliens, or requiring employers within their jurisdiction to check
employees’ work authorization in the federal government’s E-Verify database).
4 States and localities are sometimes said to have been “forced” to bring such suits because they are seen to be
preempted from enforcing federal immigration law on their own behalf. See, e.g., Texas v. United States, No. 1:14-cv-
254, Plaintiffs’ Motion for Preliminary Injunction and Memorandum in Support, at 26 (S.D. Tex., filed Dec. 4, 2014).
5 Department of Homeland Security (DHS) Secretary Jeh Charles Johnson, Memorandum, Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain
Individuals Whose Children Are U.S. Citizens or Permanent Residents
, Nov. 20, 2014 (copy on file with the author).
Other states have filed amicus briefs supporting the programs to grant deferred action to certain unauthorized aliens
that the Obama Administration announced in November 2014. See, e.g., Texas v. United States, No. 1:14-cv-00254,
States’ Motion for Leave to Participate as Amici Curiae and Brief in Opposition to Plaintiffs’ Motion for Preliminary
Injunction (S.D. Tex., filed Jan. 12, 2015) (copy on file with the author). Briefs in support of these programs have also
been filed by some local governments, including local governments in states which are challenging the programs. See,
e.g.
, Texas v. United States, No. 1:14-cv-254, Brief for Amici Curiae the Mayors of New York and Lost Angeles, the
Mayors of Thirty-One Additional Cities, the United States Conference of Mayors, and the National League of Cities in
Opposition to Plaintiffs’ Motion for Preliminary Injunction (S.D. Tex., filed Jan. 27, 2015) (copy on file with the
author).
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The report does not address challenges to the federal government’s alleged failure to enforce the
immigration laws that have been made by other parties, including private individuals, municipal
officials, or, in one case, the people of a state (although not the state itself).6 But see CRS Legal
Sidebar WSLG1145, “Sheriff Joe” Found to Lack Standing to Challenge the Obama
Administration’s Immigration Enforcement Priorities and Deferred Action Initiatives, by Kate M.
Manuel.
Litigation in the Mid-1990s
In the mid-1990s, six states which were then home to over half the unauthorized aliens in the
United States7—Arizona, California, Florida, New Jersey, New York, and Texas—each
challenged the federal government’s “fail[ure] to control illegal immigration.”8 Each case raised
somewhat different issues.9 However, all resulted in losses for the states both before the
reviewing federal district court and on appeal. Limitations on standing—or who is a proper party
to seek judicial relief from a federal court—were noted in some cases.10 However, even when
standing was assumed,11 the states’ constitutional and statutory claims failed, as discussed below.

6 See, e.g., Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014) (dismissing, for lack of standing, a challenge to the
Obama Administration’s deferred action initiatives brought by Sheriff Joe Arpaio of Maricopa County, Arizona, in
both his personal and official capacities); People of the State of Colorado ex rel. Suthers v. Gonzales, 558 F. Supp. 2d
1158 (D. Colo. 2007) (dismissing, in part, on standing grounds a challenge to the federal government’s alleged failure
to “secure the nation’s borders against illegal immigration and to implement all of the requirements of the Intelligence
Reform and Terrorism Prevention Act”); Sadowski v. Bush, 293 F. Supp. 2d 15 (D.D.C. 2003) (dismissing, in part, on
standing grounds a challenge to the 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
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The following sections discuss how the courts viewed the most notable arguments made in the
1990s litigation, including those based on the Naturalization, Guarantee, and Invasion Clauses of
the U.S. Constitution; the Tenth Amendment; and provisions of the INA.
Naturalization Clause
Several states claimed that the federal government’s alleged failure to enforce the immigration
laws imposed disproportionate costs upon them, which the federal government was obligated to
reimburse pursuant to the Naturalization Clause.12 This clause—which has been recognized as
one source of the federal government’s authority to regulate immigration13—expressly grants
Congress the “Power ... [t]o establish a uniform Rule of Naturalization.”14 The states’ reasoning
appears to have been that, insofar as the rule of naturalization is to be “uniform,” the effects of
immigration upon the states must also be uniform and, if they are not, the federal government has
an affirmative duty to compensate those states that can be seen as disproportionately affected by
immigration.15 However, ignoring the question of whether Congress’s power over immigration is,
in fact, co-extensive with its power over naturalization,16 the U.S. Courts of Appeals for the
Second, Third, and Ninth Circuits found that the Naturalization Clause imposes no obligation
upon the federal government to reimburse the states for any costs arising from an alleged
“invasion” by 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

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Florida’s claims).
12 See Texas, 106 F.3d at 664-65; New Jersey, 91 F.3d at 467; Padavan, 82 F.3d at 26-28.
13 See, e.g., Arizona v. United States,—U.S.—, 132 S. Ct. 2492, 2498 (2012) (viewing federal authority to regulate
immigration as deriving, in part, from Congress’s power to establish a uniform rule of naturalization).
14 U.S. Const., art. I, §8, cl. 3.
15 Cf. New Jersey, 91 F.3d at 467 (“[Because power over immigration matters has ... been delegated to the federal
government, ‘the State of New Jersey is powerless to effectively resolve the economic problems caused by the invasion
of illegal immigrants into the State,’ ... [and the] defendants, in failing to implement their laws and policies have
‘forced the State of New Jersey[] to bear the burden of a responsibility which is that of the Nation as a whole pursuant
to the Naturalization Clause.’”).
16 Naturalization refers to the process whereby aliens become U.S. citizens, and some have questioned whether
Congress’s power over naturalization is to be seen as the basis for federal regulation of immigration. See, e.g., The
Passenger Cases
, 48 U.S. 283, 526-27 (1849) (Taney, C.J., dissenting).
17 New Jersey, 91 F.3d at 467 (“[W]e see no ground on which we could read into the Naturalization Clause an
affirmative duty on the part of the federal government ...”). See also Texas, 106 F.3d at 665 (“[W]e perceive no basis
for reading into the [Naturalization] clause an affirmative duty ...”); Padavan, 82 F.3d at 26-27 (similar).
18 For further discussion as to plenary power over immigration, see CRS Report R42924, Prosecutorial Discretion in
Immigration Enforcement: Legal Issues
, by Kate M. Manuel and Todd Garvey, at 4-5.
19 Padavan, 82 F.3d at 26-27 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819) (“It is of the very
essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested
in subordinate governments, as to exempt its own operations from their own influence.”)).
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Guarantee Clause
The courts similarly rejected the states’ claims that the federal government violated the Guarantee
Clause by failing to compensate them for their “immigration-related expenditures.”20 The
Guarantee Clause provides that the “United States shall guarantee to every State in this Union a
Republican Form of Government,”21 and the states’ argument was essentially that the federal
government deprived them of a republican form of government by “forcing” them to spend
money on 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
Invasion Clause
Claims that the federal government’s alleged failure to enforce the immigration laws violated the
Invasion Clause—which requires the federal government to protect the states “against
Invasion”26—were similarly rejected by the Second, Third, Ninth, and Eleventh Circuits.27 Most
commonly, this was because the courts viewed the legislative and executive branches as having
been tasked with determining how the immigration laws are to be enforced,28 while the judicial

20 Texas, 106 F.3d at 664, 666-67. See also California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997); Arizona v.
United States, 104 F.3d 1095, 1096 (9th Cir. 1997) (adopting the reasoning set forth in the California decision,
previously cited); New York, 82 F.3d at 27-28; Chiles, 69 F.3d at 1097.
21 U.S. Const., art. IV, §4.
22 See, e.g., California, 106 F.3d at 1091.
23 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 Notably, in the mid-1990s litigation, the states described both the legislative and executive branches as responsible
for the federal government’s alleged failure to enforce the immigration laws. See, e.g., Texas, 106 F.3d at 665 (“We are
not aware of and have difficulty conceiving of any judicially discoverable standards for determining whether
immigration control efforts by Congress are constitutionally adequate.”); California, 104 F.3d at 1093 (“California
contends that the costs of educating alien children stems from the Federal Government’s ineffective policing of
national borders.”); New Jersey, 91 F.3d at 467 (“Neither the state’s incarceration of illegal aliens nor its obligation to
educate illegal aliens results from any command by Congress.”); Padavan, 82 F.3d at 26 (“[T]he plaintiffs plead seven
causes of action, claiming that the federal government had violated various statutory and constitutional provisions in
carrying out its immigration policy.”) (emphases added). It was not until the Crane litigation, discussed below, that the
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branch was seen to lack manageable standards for determining whether or when the entry of
unauthorized aliens constituted an “invasion.”29 Several courts also found, in the alternative, that
the Invasion Clause was inapplicable because the states were not threatened by incursions of
foreign or domestic states.30
Tenth Amendment
The states’ claims that the federal government violated the Tenth Amendment by “forcing” them
to provide public benefits and services to unauthorized aliens were also uniformly rejected by the
Second, Third, Fifth, Ninth, and Eleventh Circuits.31 Here, the courts relied upon somewhat
different reasoning as to each of the three main types of benefits and services which the states
alleged that the federal government had “commandeered.” First, as to Medicaid spending, the
courts found that the states had agreed to provide certain emergency medical services to
unauthorized aliens as a condition of states’ receipt of federal funds.32 Such conditions, in the
courts’ view, represented a permissible exercise of Congress’s spending power, rather than
impermissible commandeering.33 Second, as to the costs of incarcerating unauthorized aliens, the
courts noted that these aliens were jailed pursuant to state law, rather than any dictates of the
federal government and, thus, they found no commandeering.34 Third, and finally, as to
elementary and secondary education, the courts noted that the states were obligated to provide
such education to unauthorized alien children as a result of the Constitution, as construed by the
Supreme Court in Plyler v. Doe, and not as the result of a command of the federal government.35
Thus, in the courts’ view, this, too, did not represent commandeering.

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states began to frame the alleged failure to enforce the immigration laws in terms of the executive’s failure to execute
the statutes as they were written and intended by Congress and, thus, to make claims regarding violations of the Take
Care Clause. See supra “Mississippi’s Claims in Crane v. Napolitano.”
29 California, 104 F.3d at 1091; Padavan, 82 F.3d at 28; Chiles, 69 F.3d at 1097.
30 California, 104 F.3d at 1091 (basing this conclusion, in part, on James Madison’s statement in The Federalist No. 43
that the Invasion Clause serves to protect a state from “foreign hostility” and “ambitious or vindictive enterprises” on
the part of other states or foreign nations); New Jersey, 91 F.3d 468; Padavan, 82 F.3d at 28; Chiles, 69 F.3d at 1097.
31 Texas, 106 F.3d at 665-66; California, 104 F.3d at 1091-93; New Jersey, 91 F.3d at 466-67; Padavan, 82 F.3d at 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.
32 See, e.g., California, 104 F.3d at 1092.
33 Id. (citing South Dakota v. Dole, 483 U.S. 203, 207-08 (1987) (upholding a statute wherein Congress conditioned
access to highway funds on states establishing 21 years of age as the drinking age)). The Supreme Court’s 2012
decision in National Federation of Independent Business (NFIB) v. Sebelius elaborated upon the Court’s earlier holding
in South Dakota by finding that compelling the states to participate in a “new grant program” or else face the possible
loss of all federal funds under a current program was coercive and unconstitutional under the Tenth Amendment. See
generally
CRS Report R42367, Medicaid and Federal Grant Conditions After NFIB v. Sebelius: Constitutional Issues
and Analysis
, by Kenneth R. Thomas. However, the mid-1990s challenges did not claim that the federal government
threatened the states with the loss of existing funding if the states did not adopt a new program, and the most recent
state challenge, Texas v. United States, does not allege commandeering. See infra Texas v. United States and the
Challenge to DAPA and the DACA Expansion.”
34 California, 104 F.3d at 1092-93.
35 Id. at 1093. In Plyler, the Court found that Texas deprived unauthorized 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 unauthorized aliens constitute a “suspect classification” for
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Statutory Provisions
The states’ statutory claims—alleging that federal officials violated specific provisions of the INA
or other statutes by failing to exclude or remove unauthorized aliens, or compensate the states for
the costs associated with such aliens—were no more successful than their constitutional
arguments. The states cited a number of provisions in support of these claims, including
• INA §103(a)(5), which at that time tasked the Attorney General with the “duty to
control and guard the boundaries and borders of the United States against the
illegal entry of aliens”;36
• then-8 U.S.C. §1252(a)(2)(A), which called for the Attorney General to take any
alien convicted of an aggravated felony into custody upon the alien’s release
from state custody or supervision;37
• then-8 U.S.C. §1252(c), which established a six-month period following the
issuance of a final order of removal for federal officials to effectuate the alien’s
departure from the United States;38
• 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”;39
• INA §276, which establishes criminal penalties for “illegal reentry” (i.e.,
unlawfully re-entering the United States after having been removed);40 and
• 8 U.S.C. §1365, which provides for the reimbursement of costs incurred by the
states for the imprisonment of unauthorized aliens or Cuban nationals who have
been convicted of felonies.41

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equal protection purposes. See generally CRS Report R43447, Unlawfully Present Aliens, Higher Education, In-State
Tuition, and Financial Aid: Legal Analysis
, by Kate M. Manuel.
36 Texas, 106 F.3d at 667; Padavan, 82 F.3d at 29-30; Chiles, 69 F.3d at 1096. This responsibility has since been
transferred to the Secretary of Homeland Security. See INA §103(a)(5), 8 U.S.C. §1103(a)(5) (“[The Secretary] shall
have the power and duty to control and guard the boundaries and borders of the United States against the illegal entry
of aliens and shall, in his discretion, appoint for that purpose such number of employees of the Service as to him shall
appear necessary and proper.”).
37 California, 104 F.3d at 1094. INA §238, 8 U.S.C. §1228, currently makes similar provisions for the “expedited
removal” of aliens convicted of aggravated felonies, whose removal proceedings shall, among other things, be
conducted in a “manner which eliminates the need for additional detention at any [DHS] processing center ... and in a
manner which assures expeditious removal following the end of the alien’s incarceration for the underlying sentence.”
38 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.”).
39 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.”).
40 California, 104 F.3d at 1094. See, e.g., 8 U.S.C. §1326(b)(1) (prescribing that aliens who illegally re-enter the United
States after having been removed subsequent to a conviction for commission of three or more misdemeanors involving
drugs, crimes against the person, or both, or a felony (other than an aggravated felony) “shall be fined under title 18,
imprisoned not more than 10 years, or both”).
41 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
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However, all the states’ claims were seen to involve matters that were committed to agency
discretion as a matter of law and, thus, not reviewable by the courts.42 Notably, all the statutes
cited by the states in making these claims included the word “shall.”43 In no case, though, did an
appellate court specifically address the statute’s use of this word, or whether “shall” could be
construed to indicate mandatory agency action, in its published decision. This was so even when
the provision of immigration law in question did not, in itself, include language which clearly
evidenced that federal officials had some discretion in enforcing the law.44
It should also be noted that, in three of the six cases, the appellate court expressly rejected the
suggestion that federal officials’ alleged failure to enforce the immigration laws could be seen as
an “abdication” of their statutory responsibilities. The Supreme Court’s 1985 decision in Heckler
v. Chaney
expressly recognized an exception to the presumption that agency decisions not to
undertake enforcement actions are “committed to agency discretion by law” and, thus, immune
from judicial review under the Administrative Procedure Act (APA).45 This exception would
permit review when “the agency has ‘consciously and expressly adopted a general policy’ [of
nonenforcement] that is so extreme as to amount to an abdication of its statutory
responsibilities.”46 However, the federal courts of appeals found that the federal government’s
immigration enforcement policies in the mid-1990s did not constitute such an abdication,47
apparently because the states could not allege that the federal government was “doing nothing” to
enforce the immigration laws.48 Instead, in the courts’ view, the states’ questioned the
effectiveness of federal policies and practices, and “[r]eal or perceived inadequate enforcement of
immigration law does not constitute a reviewable abdication of duty.”49

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State for the imprisonment of any illegal alien or Cuban national who is convicted of a felony by such State.”).
42 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.
43 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”).
44 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 36.
45 Heckler, 470 U.S. at 838 (quoting and discussing 5 U.S.C. §701(a)(2)). Agency action is, in turn, generally seen as
committed to agency discretion where there are “no judicially manageable standards ... available for judging how and
when an agency should exercise its discretion.” Id. at 830.
46 Id., 470 U.S. at 833 n.4.
47 See Texas, 106 F.3d at 667 (“We reject out-of-hand the State’s contention that the federal defendants’ alleged
systemic failure to control immigration is so extreme as to constitute a reviewable abdication of duty.”); California,
104 F.3d at 1094 (“[T]he allegations asserted in the instant Complaint do not rise to a level that would indicate such an
abdication.”); Childs, 69 F.3d at 1096 n.5 (“The part of the statute relied on by Florida would not justify even an
allegation of complete abdication of statutory duties to go to trial.”).
48 Texas, 106 F.3d at 667.
49 Id.
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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”).50 Arizona had adopted S.B. 1070 in 2010 in an attempt to deter unauthorized aliens
from settling in the state by requiring that state and local police check the immigration status of
all persons whom they stop, arrest, or detain. S.B. 1070 also made it a state crime to engage in
certain conduct thought to facilitate the presence of unauthorized aliens within the state.51 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.”52
Arizona also alleged that federal officials had failed to comply with statutory mandates to achieve
and maintain “operational control” of the Arizona-Mexico border, pursue and effectuate the
removal of unauthorized aliens who are found within the interior of the United States, and
reimburse states for the costs of detaining “criminal aliens” pursuant to the State Criminal Alien
Assistance Program (SCAAP).53
The federal government challenged Arizona’s standing to raise all of these claims other than that
as to reimbursement pursuant to SCAAP.54 However, the reviewing federal district court
“presum[ed]” that Arizona had standing because (1) the federal government did not question
whether “illegal immigration” constituted an injury in fact; (2) Arizona had alleged facts
indicating that unauthorized aliens’ conduct and choices in crossing into Arizona were directly
influenced by federal policies and practices; and (3) ordering the federal government to “deploy
... temporary measures” to secure the border would provide Arizona “some relief.”55
Arizona did not fare as well on the merits of its arguments. The reviewing federal district court
first found that Arizona’s claims as to the Invasion Clause and the Tenth Amendment were

50 For further discussion of this litigation, see generally CRS Report R42719, Arizona v. United States: A Limited Role
for States in Immigration Enforcement
, by Kate M. Manuel and Michael John Garcia.
51 S.B. 1070, as amended by H.B. 2162 (copy on file with the author).
52 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 (D. Az., filed Feb. 10, 2011) (copy on file with the author).
53 Id. at 16-17. See especially id. at 17 (“The federal government is not enforcing the immigration laws within the
United States. The current policy of the executive branch of the United States government is to take no action regarding
the vast majority of aliens who are unlawfully present in the United States.”). For more on the meaning of the term
“criminal alien,” see CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by
Marc R. Rosenblum and William A. Kandel, at 2-3.
54 See United States v. Arizona, No. CV 10-1413-PHX-SRB, Order (D. Az., filed Oct. 21, 2011). The United States did
not dispute that “Arizona had alleged an injury in fact arising from illegal immigration,” given Arizona’s claims that it
faced increased costs as a “direct result” of unauthorized migration into the state. Id. at 3. However, the federal
government did contest whether Arizona’s alleged injury is fairly traceable to the challenged actions of federal
officials, and whether any remedy is available. Id. For further discussion of standing, see supra note 10.
55 See Order, supra note 54, at 4-5. For the specific types of injunctive relief requested by Arizona, see Answer and
Counterclaims, supra note 52, at 40-55.
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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 which
• direct the Secretary of Homeland Security to “take all actions the Secretary
determines necessary and appropriate to achieve and maintain operational
control” over the U.S. border within 18 months after the enactment of the Secure
Fence Act of 2006;60
• prioritize the incarceration of unauthorized “criminal aliens” and reimburse states
through SCAAP for the costs of incarcerating such aliens;61
• establish procedures for removing unauthorized aliens apprehended in the
interior of the United States; and
• bar federal, state, and local officials from restricting the sharing of information
regarding persons’ citizenship or immigration status.62
However, the court concluded that each provision involved actions that are committed to agency
discretion by law. 63 In some cases, the court reached this conclusion because the statute provided
no standard by which the court could judge the propriety of federal officials’ actions, as with the
construction of the border fence, where “no deadline mandates completion of the fencing and

56 Order, supra note 54, at 5-8. The doctrine of issue preclusion, also known as collateral estoppel, bars relitigation “‘of
an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’
even if the issue recurs in the context of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New
Hampshire v. Maine
, 532 U.S. 742, 748-49 (2011)). While issue preclusion may not apply to bar relitigation where
“controlling facts or legal principles have changed significantly since the prior judgment,” or where “other special
circumstances warrant an exception,” the federal district court reviewing Arizona’s counterclaims found no such
changes or special circumstances. Order, supra note 54, at 6-7 (quoting Hydranautics v. FilmTec Corp., 204 F.3d 880,
885 (9th Cir. 2000)).
57 Order, supra note 54, at 8-13.
58 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).
59 Order, supra note 54, 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.
60 Order, supra note 54, at 14-17.
61 Id. at 19-33.
62 Id. at 17-19.
63 See, e.g., id. at 16 (“[T]he Acts [regarding border fencing] do not mandate any discrete agency action with the clarity
to support a judicial order compelling agency action ...”); id. at 18 (“The Court cannot properly review the enforcement
decisions challenged by Arizona in [its claims regarding interior immigration enforcement].”); id. at 20 (“Under
SCAAP, the calculation of the average cost of incarceration is explicitly committed to the discretion of the Attorney
General.”).
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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 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.”66 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.”67
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.68 This challenge arose from the Administration’s decision
to grant some unauthorized 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

64 Id. at 16.
65 Id.
66 Id. at 19. The court also noted, in discussing the allegations of abdication, that it “cannot properly review the
enforcement decisions challenged by Arizona” because these decisions are committed to immigration officials’
discretion by law. This perhaps suggests that this court, at least, would be disinclined to find abdication where an
agency’s actions—however “extreme” they might be said to be—could be seen as within the agency’s discretion.
67 Id. Arizona also appears to have asserted that federal enforcement policies were reviewable because they had been
modified. However, the reviewing district court took the view that this change in policy, per se, did not permit review
where agency enforcement decisions—“including the decisions to prioritize agency resources and act on agency
determined priorities”—are committed to agency discretion as a matter of law. Id. at 19 n.6.
68 See Crane v. Napolitano, No. 3:12-cv-03247-O, Amended Complaint (N.D. Tex., filed 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 (S. Ct., filed Dec. 11, 2014). The Supreme Court denied this application for a stay, in an order which
did not address the Obama Administration’s deferred action initiatives. See Brewer v. Az. Dream Act Coalition, No.
14A625, Order in Pending Case (S. Ct., Dec. 17, 2014) (copy on file with the author). The federal government’s
arguments in support of the DACA beneficiaries seeking Arizona driver’s licenses in this case played a role in a federal
district court finding that Texas, in particular, has standing to challenge DAPA and the DACA expansion, as discussed
below. See infra “States’ Standing to Challenge DAPA and the DACA Expansion.”
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authorization.69 The ICE agents and Mississippi asserted that this initiative violates the Take Care
Clause, impinges upon Congress’s legislative powers, and contradicts certain provisions in INA
§235 which some assert require that unauthorized aliens be placed in removal proceedings.70
They also alleged that it runs afoul of the Administrative Procedure Act (APA) because the
Administration did not promulgate regulations before making deferred action—which the
plaintiffs viewed as a benefit, not an exercise of prosecutorial discretion—available to
unauthorized aliens who had been brought to the United States as children.71
The ICE agents were found to have standing to raise these challenges72 and, at least initially,
prevailed before the reviewing federal district court on their claim that DACA runs afoul of three
purportedly “interlocking” provisions in INA §235 which state that
1. any alien present in the United States who has not been admitted shall be deemed
an applicant for admission;
2. applicants for admission shall be inspected by immigration officers; and
3. in the case of an alien who is an applicant for admission, if the examining
immigration officer determines that an alien seeking admission is not clearly and
beyond a doubt entitled to be admitted, the alien shall be detained for removal
proceedings.73

69 DHS Secretary Janet Napolitano, Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals
Who Came to the United States as Children
, June 15, 2012 (copy on file with the author). The determination as to
whether to grant deferred action to individual aliens has historically been seen as within immigration officials’
prosecutorial or enforcement discretion. See, e.g., Hotel & Rest. Employees Union Local 25 v. Smith, 846 F.2d 1499,
1510-11 (D.C. Cir. 1988); Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n.3 (9th Cir. 2001); Johnson v. INS, 962
F.2d 574, 579 (7th Cir. 1992); Carmona Martinez v. Ashcroft, 118 Fed. App’x 238, 239 (9th Cir. 2004); Matter of Yauri,
25 I. & N. December 103 (BIA 2009); Matter of Singh, 21 I. & N. December 427 (BIA 1996); Matter of Luviano-
Rodriguez, 21 I. & N. December 235 (BIA 1996); Matter of Quintero, 18 I. & N. December 348 (BIA 1982). However,
in none of these cases had the federal government expressly adopted a practice of granting deferred action to most, if
not all, aliens who meet prescribed requirements. DHS regulations provide that aliens granted deferred action may be
granted work authorization upon showing an “economic necessity for employment.” 8 C.F.R. §274a.12(c)(14). The
INA bars employers from knowingly hiring or continuing to employ an alien who lacks such authorization. INA
§274A, 8 U.S.C. §1324a.
70 For further discussion of these INA provisions, see infra note 73 and accompanying text.
71 Amended Complaint, supra note 68, at 15-23.
72 Crane v. Napolitano, 920 F. Supp. 2d 724, 738-40 (N.D. Tex. 2013) [hereinafter “Crane I”].
73 Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 U.S. Dist. LEXIS 57788 (N.D. Tex., Apr. 23, 2013) [hereinafter
Crane II”] (citing INA §235(a)(1), (a)(3), & (b)(2)(A), 8 U.S.C. §1225(a)(1), (a)(3), & (b)(2)(A)). It is important to
note that, while the ICE agents and the reviewing federal district court interpreted these provisions as requiring
immigration officials to place unauthorized 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,
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In particular, the court noted that each of the three provisions includes the word “shall,” and took
the view that “shall” indicates mandatory agency action.74 However, this same court later found
that it lacked jurisdiction over the ICE agents’ claims.75 This finding was affirmed on appeal by
the Fifth Circuit in a decision which suggests—but does not directly hold—that the Fifth Circuit
may not view INA §235 as barring the executive from granting deferred action to unauthorized
aliens.76
Mississippi, in contrast, was found not to have standing because the reviewing court viewed its
alleged injury as “conjectural and based on speculation” and, thus, insufficiently concrete to
satisfy the constitutional requirements of standing.77 This injury consisted of the fiscal costs
associated with unauthorized aliens residing in the state who were allegedly enabled to remain
there as a result of DACA and Obama Administration guidance regarding the exercise of
prosecutorial discretion in civil immigration enforcement.78 The federal government did not
contest that the expenditure of state funds could qualify as an invasion of a legally protected
interest sufficient to establish standing under the “proper circumstances.”79 Rather, the federal
government argued that such circumstances were not present in the instant case because
Mississippi relied upon a 2006 report—which pre-dated DACA—to show the costs it incurred as
the result of the Obama Administration’s actions.80 The district court agreed, and also noted that
Mississippi had offered only “conclusory allegations” that the unauthorized aliens granted

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rejected federal officials’ interpretation, in part, because the court viewed it as contrary to the statutory language. Crane
II, 2013 U.S. Dist. LEXIS 57788, at *21-*27.
74 Crane II, 2013 U.S. Dist. LEXIS 57788, at *27-*39.
75 The district court found that the Merit Systems Protection Board (MSPB), rather than the court, has jurisdiction over
the ICE agents’ claims that they face adverse employment consequences if they fail to comply with the
Administration’s DACA program. Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 U.S. Dist. LEXIS 187005 (July
31, 2013) [hereinafter “Crane III”]. For a summary of this decision, see CRS Legal Sidebar WSLG1223, Appeals
Court Affirms Dismissal of Challenge to 2012 Deferred Action Program, by Kate M. Manuel.
76 See Crane v. Johnson, No. 14-10049, 2015 U.S. App. LEXIS 5573 (5th Cir., Apr. 7, 2015) [hereinafter Crane IV],
aff’g, on other grounds, Crane III, U.S. Dist. LEXIS 187005. In this decision, the Fifth Circuit opines that INA §235, at
most, “directs” immigration agents to “detain” aliens for the purpose of placing them in removal proceedings. Crane,
2015 U.S. App. LEXIS 5573 at *8. “It does not limit the authority of [the Department of Homeland Security] to
determine whether to pursue the removal” of aliens once they have been so detained, according to the Fifth Circuit. Id.
The court’s language here comes from its “background” discussion of the immigration laws, and is not the subject of
specific holdings or findings. However, this language—coupled with the Fifth Circuit’s citations to Supreme Court
precedents which, among other things, describe “the broad discretion exercised by immigration officials” as a
“principal feature of the removal system”—suggests it may be unlikely to find that INA §235 bars immigration
officials from granting deferred action. Id. at *4-*5 (quoting Arizona v. United States,—U.S.—, 132 S. Ct. 2492, 2499
(2012)).
77 Crane I, 920 F. Supp. 3d at 743, 746.
78 Id. at 743. The guidance regarding civil enforcement priorities challenged in Crane was that given by then-ICE
Director John Morton in two memoranda issued in 2011, Civil Immigration Enforcement: Priorities for the
Apprehension, Detention, and Removal of Aliens
, and Exercising Prosecutorial Discretion Consistent with the Civil
Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens
. These
memoranda were rescinded and superseded by new guidance issued by the Obama Administration on November 20,
2014. See DHS Secretary Jeh Charles Johnson, Memorandum, Policies for the Apprehension, Detention and Removal
of Undocumented Immigrants
, Nov. 20, 2014 (copies on file with the author).
79 Crane I, 920 F. Supp. 3d at 743.
80 Id. at 744-45 (“[B]ecause it was written six years prior to the issuance of the Morton Memorand[a] and the [DACA]
Directive, the report cannot provide any support for Mississippi’s contention that the Directive and the Morton
Memorand[a] result in an increased fiscal burden on the state.”).
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deferred action would have been removed but for the DACA initiative, or that DACA had resulted
in a decrease in the total number of aliens removed by the federal government.81
The district court’s decision as to Mississippi’s standing was affirmed by the Fifth Circuit on
appeal.82 In so doing, the Fifth Circuit noted that it viewed Mississippi’s alleged injury as “purely
speculative” because it “is not supported by any facts” showing that Mississippi’s costs increased,
or will increase, as a result of DACA.83 One judge did, however, issue a concurring opinion
which emphasized that concrete evidence that an injury has occurred or will occur is not
necessary for standing for certain claims, but did not view Mississippi as making such claims.84
Texas v. United States and the Challenge to DAPA
and the DACA Expansion

Most recently, in December 2014, 27 states or their representatives85 filed suit challenging the
Obama Administration’s announcement that it is expanding the DACA program to cover more
unauthorized aliens who were brought to the United States as children, and creating a DACA-like
program for unauthorized aliens who are the parents of U.S. citizens or LPRs (commonly known
as DAPA).86 In particular, the states assert that these new programs violate the Take Care Clause
and separation of powers principles of the Constitution, federal immigration law, and substantive
and procedural requirements of the APA.87 The federal government disputes these assertions. It

81 Id. at 745.
82 Crane IV, 2015 U.S. App. LEXIS 5573, at *15-*18.
83 Id. at *17 (“Article III standing, however, mandates that Mississippi show a ‘concrete and particularized’ injury that
is ‘fairly traceable’ to DACA. To do that, Mississippi was required to demonstrate that the state will incur costs
because of the DACA program.”).
84 Id. at *25-*26 (Owen, J., concurring) (citing Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160-61
(1981) (finding that California had standing to challenge the Secretary of the Interior’s refusal to experiment with non-
cash-bonus bidding systems, in part, because the Court “share[d] California’s confidence that, after experimentation,
the Secretary would use the most successful bidding system on all suitable ... lease tracts, including those off the
California coast”).
85 Other states and local governments have supported the Obama Administration’s most recent deferred action
programs. See supra note 5.
86 Texas v. United States, No. 1:14-cv-00254, Complaint for Declaratory and Injunctive Relief, at 11-15 (S.D. Tex.,
filed Dec. 3, 2014) (copy on file with the author) (alleging that the deferred actions programs and other Administration
policies as to immigration enforcement “have had and continue to have dire consequences” for the plaintiff states by
“substantially increas[ing]” the number of unauthorized aliens in the state, “triggering” unauthorized migration,
increasing human trafficking, and “requiring” states to provide various public benefits and services). Other challenges
to the Obama Administration’s November 20, 2014, actions have also been made. See, e.g., Arpaio, 27 F. Supp. 3d 185
(finding that the plaintiff lacked standing). This decision has been appealed to the U.S. Court of Appeals for the District
of Columbia Circuit. See also United States v. Juarez-Escobar, 2014 U.S. Dist. LEXIS 173350, at *33 (W.D. Pa., Dec.
16, 2014) (opining that DAPA and the DACA expansion “violate[] the separation of powers provided for in the United
States Constitution as well as the Take Care Clause, and therefore, [are] unconstitutional.”). However, the reasoning
that supports this conclusion by the Juarez-Escobar court appears to be primarily concerned with separation of powers
issues (i.e., the executive is “legislating,” rather than exercising prosecutorial discretion, by (1) providing a “systematic
and rigid process by which a broad group of individuals will be treated differently than others based on arbitrary
classifications,” and (2) allowing unauthorized aliens who fall within these categories “to obtain substantive rights”).
87 Complaint, supra note 86, at 26-28. The states further note that they are essentially barred from taking action to
avoid the adverse consequences of DAPA and the DACA expansion because “the Supreme Court has held that
authority over immigration is largely lodged in the federal government.” Id. at 24-26 (citing Arizona v. United States,—
U.S.—, 132 S. Ct. 2492 (2012)). In other words, in the states’ view, they are generally preempted from taking actions
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also maintains that the plaintiffs lack standing, and that the challenged programs represent an
exercise of enforcement discretion and, as such, are immune from judicial review.88
In a decision issued on February 16, 2015, the U.S. District Court for the Southern District of
Texas found that the states have standing to challenge DAPA and the DACA expansion, and that
the challenged programs are judicially reviewable.89 It also enjoined implementation of these
programs after finding that the states are likely to prevail on the merits of their argument that the
memorandum establishing the programs constitutes a substantive rule, but was issued without
compliance with the notice-and-comment procedures required for such rules under the APA. The
federal government filed an emergency expedited motion to stay the injunction with the district
court, which was denied.90 It also appealed the district court’s decision regarding standing,
reviewability, and the procedural requirements of the APA to the Fifth Circuit, which heard oral
arguments on April 17, 2015, but has not issued a ruling to date. The district court continues to
hear arguments on the states’ substantive (as opposed to procedural) claims.
The following sections provide an overview of the district court’s initial February 16, 2015,
decision. They also note the district court’s subsequent decision denying the federal government’s
motion to stay the injunction, as well as the federal government’s appeal to the Fifth Circuit.
States’ Standing to Challenge DAPA and the DACA Expansion
Before reaching the question of whether the states are likely to succeed on the merits of their
claim that the Administration did not comply with the procedural requirements of the APA when
implementing DAPA and the DACA expansion, the federal district court first found that the states
satisfy the requirements for Article III, prudential, and APA standing. Article III standing, in
particular, generally requires that plaintiffs show that (1) they have suffered an “injury in fact”
that is (a) concrete and particularized and (b) actual or imminent; (2) the injury is fairly traceable
to the challenged action of the defendant; and (3) the injury is likely to be redressed by a
favorable decision from the court.91 All three conditions were found to be satisfied here, given the
specific claims that Texas made about the “substantial costs” associated with processing
applications for driver’s licenses for DAPA beneficiaries.92
Previous state challenges to the federal government’s alleged failure to enforce the immigration
laws had similarly noted the costs of providing emergency medical care and public elementary
and secondary education to aliens who had entered or remained in the United States in violation

(...continued)
that would deter unauthorized aliens from entering or remaining within their jurisdiction, while the federal government
declines to take action to remove such aliens.
88 See, e.g., Texas v. United States, No. 1:14-CV-254, Defendants’ Memorandum of Points and Authorities in
Opposition to Plaintiffs’ Motion for Preliminary Injunction (S. D. Tex., filed Dec. 24, 2014). For further discussion of
prosecutorial or enforcement discretion in the immigration context, see generally CRS Report R42924, Prosecutorial
Discretion in Immigration Enforcement: Legal Issues
, by Kate M. Manuel and Todd Garvey.
89 In a subsequent decision, the court clarified its view that the court may exercise jurisdiction so long as it finds that at
least one plaintiff state demonstrates standing. See Texas v. United States, No. B-14-254, 2015 U.S. Dist. LEXIS
45483, at *10-*13 (S.D. Tex., Apr. 7, 2015).
90 See infra “Motion to Stay the Injunction, Appeal to the Fifth Circuit.”
91 See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
92 Texas, 2015 U.S. Dist. LEXIS 18551, at *36.
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of the INA, as well as the costs of incarcerating such aliens for any state or local offenses they
commit.93 However, as previously noted, such earlier challenges had failed, in part, because these
specific costs were seen to arise from state law or the U.S. Constitution, not the dictates of the
federal government.94 However, the Texas court viewed the costs of issuing driver’s licenses to
DAPA beneficiaries as different because, in the court’s view, the federal government had
evidenced an intent to “compel ... all states” to issue driver’s licenses to deferred action
beneficiaries when supporting a successful challenge to Arizona’s denial of driver’s licenses to
those granted deferred action through the 2012 DACA initiative.95 The court further noted that,
pursuant to the REAL ID Act of 2005, states must verify the immigration status of aliens who
apply for driver’s licenses with the federal government in order for the license to be recognized
for “federal purposes,” and Texas estimates the costs of such verification at $0.50 to $1.50 per
applicant.96
Based upon these costs, the court found that the plaintiffs had shown the requisite “injury in fact”
for Article III standing because “DAPA will directly injure the[ir] proprietary interests [in] their
driver’s license programs and cost [them] badly needed funds.”97 The court also viewed this
injury as “directly caused” by DAPA since a grant of deferred action through DAPA would give
unauthorized aliens the “status or documents” necessary to apply for driver’s licenses, as well as
an “incentive” to do so (i.e., by enabling them to obtain work authorization).98 In addition, the
court viewed the states’ injury as likely to be redressed by a favorable court decision because the
unauthorized aliens eligible for DAPA would generally lack the “status or documents” needed to
obtain driver’s licenses in most states if implementation of DAPA were enjoined.99
The court further found that the states had satisfied the prudential standing requirements, in part,
because they asserted a “direct injury to their financial interests,” and not a “generalized
grievance.”100 The court similarly found APA standing, although it addressed such standing in its

93 See, e.g., Texas, 106 F.3d 661; California, 104 F.3d 1086; Arizona, 104 F.3d 1095; New Jersey, 91 F.3d 463;
Padavan, 82 F.3d 23; Chiles, 69 F.3d 1094.
94 See, e.g., Texas, 106 F.3d at 665-66; California, 104 F.3d at 1091-93; New Jersey, 91 F.3d at 466-67; Padavan, 82
F.3d at 28-29; Chiles, 69 F.3d at 1097. Standing concerns were specifically noted in several of these cases. See Texas,
106 F.3d at 664 (noting that the district court had dismissed Texas’s suit, in part, on standing grounds); Padavan, 82
F.3d at 25 (noting questions as to standing); Chiles, 69 F.3d at 1096 (noting that the district court did not address the
federal government’s argument that Florida lacked standing).
95 Texas, 2015 U.S. Dist. LEXIS 18551, at *39-*40. For more on this litigation as to driver’s licenses for DACA
beneficiaries, see CRS Legal Sidebar WSLG1057, 9th Circuit Decision Enables DACA Beneficiaries—and Other Aliens
Granted Deferred Action—to Get Arizona Driver’s Licenses
, by Kate M. Manuel; CRS Report R43452, Unlawfully
Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues
, by Kate M. Manuel and Michael
John Garcia.
96 Texas, 2015 U.S. Dist. LEXIS 18551, at *38-*39.
97 Id. at *47.
98 Id. at *53-*57.
99 Texas, 2015 U.S. Dist. LEXIS 18551, at *57. Some states do, however, make provision for unauthorized aliens who
have not been granted deferred action by the federal government to obtain driver’s licenses or similar state-issued
authorization to drivers. See generally CRS Report R43452, Unlawfully Present Aliens, Driver’s Licenses, and Other
State-Issued ID: Select Legal Issues
.
100 Id. at *58. The court also found that the states are within the “zone of interests” to be protected by the federal
immigration laws in question—as is generally required for prudential standing—because it construed these laws as
intended to protect the states from unauthorized migration. Id. at *59-*60. In so finding, the court specifically noted
that the federal government has historically been seen to have a “duty” to enforce the immigration laws, while states are
generally seen to be preempted from enforcing these laws on their own behalf. Id.
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discussion of the reviewability of DACA and the DAPA expansion, rather than separately (see
below, “Reviewability under the APA”).101 The court also viewed the states’ claim of “standing ...
based upon federal abdication” of its statutory duty to enforce the INA as cognizable.102 However,
its decision was not based solely on such standing, and it declined to adopt the states’ theories of
standing on parens patriae grounds generally,103 or under the precedent of Massachusetts v.
Environmental Protection Agency
specifically.104 The discussion of standing based on abdication
is perhaps most notable because the court distinguished the case at hand from Texas’s challenge
to the federal government’s alleged failure to enforce the immigration laws in the 1990s (see
“Litigation in the Mid-1990s”) on the grounds that the federal government in this case “has
required and will require states to take certain actions [to issue driver’s license] to DAPA
recipients.”105
Reviewability under the APA
Having found that the states have standing, the federal district court also found that DAPA and the
DACA expansion are reviewable under the APA. In so doing, the court expressed its view that (1)
the memorandum establishing DAPA and the DACA expansion constitutes a “final agency

101 Id. at *61.
102 Id. at *113-*114.
103 Id. at *62-*70. The parens patriae theory of standing is premised upon the state’s being a protector of the interests
of its citizens. But see Massachusetts v. Mellon, 262 U.S. 485-86 (1923) (“It cannot be conceded that a state, as parens
patriae
, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes
thereof. While the state, under some circumstances, may sue in that capacity for the protection of its citizens, it is no
part of its duty or power to enforce their rights in respect of their relations with the federal government. In that field it is
the United States, and not the state, which represents them as parens patriae, when such representation becomes
appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that
status.”) (internal citations omitted).
104 Texas, 2015 U.S. Dist. LEXIS 18551, at *72-*92. Some commentators have suggested that the Supreme Court, in
Massachusetts v. Environmental Protection Agency, recognized a “special form” of state standing based on
sovereignty. See, e.g., Ryke Longest, Massachusetts versus EPA: Parens Patriae Vindicated, 18 DUKE ENVIR. L. &
POL’Y FORUM 277 (2008); Bradford Mank, Should States Have Greater Standing Rights Than Ordinary Citizens?
Massachusett v. EPA’s New Standing Test for States, Univ. of Cincinnati College of Law Scholarship & Publications
No. 1-1-2008 (2008), available at http://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1137&context=fac_pubs.
For further discussion of this case, CRS Report RS22665, The Supreme Court’s First Climate Change Decision:
Massachusetts v. EPA
, by Robert Meltz.
105 Texas, 2015 U.S. Dist. LEXIS 18551, at *110-*112. The court also indicated that it viewed this case as akin to prior
cases wherein the executive adopted a general policy of not enforcing a statute in a way that benefited ineligible
recipients, and not as akin to those cases wherein the executive declined to enforce violations of a statute against
specific individuals. Id. at *112-*113. Questions have been raised about the court’s analysis of standing, in part,
because the federal district court for the District of Columbia found, in a December 23, 2014, decision, that Sheriff Joe
Arpaio of Maricopa County, Arizona, lacked standing to raise similar challenges to DAPA and the DACA expansion.
See Arpaio, 27 F. Supp. 3d 185. (This decision has been appealed). However, the court in Texas expressly rejected the
states’ claims based on harms like those noted by Sheriff Arpaio, such as DAPA allegedly promoting further unlawful
migration. See, e.g., Texas, 2015 U.S. Dist. LEXIS 18551, at *49-*50. The Fifth Circuit’s recent decision affirming the
dismissal of the challenge to the 2012 DACA initiative brought by the State of Mississippi, among others, is also
arguably distinguishable in that the Fifth Circuit found that Mississippi lacked standing to challenge the DACA
program because its alleged injury—a cost to the state of more than $25 million per year due to “illegal aliens” residing
there—was “purely speculative.” See Crane IV, 2015 U.S. App. LEXIS 5573.Mississippi had relied upon a 2006
study—which predated DACA—to demonstrate these costs but, according to the court, there was no “concrete
evidence” in the record that Mississippi’s costs increased, or would increase, as a result of DACA. Id.
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action”;106 (2) the states are within the “zone of interests” protected by federal immigration
laws;107 and (3) there are no applicable “exceptions” to review under the APA.108
The “finality” of the DAPA memorandum—that it “mark[s] the consummation of the agency’s
decision making process” and is an action “from which legal consequences will flow”—does not
appear to have been seriously questioned by the court given that the memorandum orders agency
personnel to take certain actions and establishes DHS’s obligations. The memorandum also, in the
court’s view, “confers upon its beneficiaries the right to stay in the country lawfully.”109 The court
similarly viewed the states as being within the “zone of interests” protected by the immigration
laws based, in part, on its finding that the “acts of Congress deeming [unauthorized aliens]
removable were passed ... to protect the States and their residents.”110
The question of whether any “exceptions to review” might apply, however, prompted more
extended discussion by the court, particularly given the Administration’s argument that DAPA
represents an exercise of enforcement discretion and, as such, is presumptively immune from
review under the precedent of Heckler v. Chaney.111 The court rejected this argument by first
noting that it views the presumption of reviewability as inapplicable here because DAPA involves
more than the executive not taking action to remove individual aliens.112 Rather, in the court’s
view, DAPA represents an “affirmative action” “that awards legal presence[] to individuals
Congress has deemed deportable or removable, as well as the ability to obtain Social Security
numbers, work authorization permits, and the ability of travel.”113 In drawing this contrast, the
court emphasized that the executive had not taken enforcement action as to potential DAPA
beneficiaries “for the last five years” (or more) prior to DAPA. Had the Administration continued
its prior practice of nonenforcement, its actions would, in the court’s view, have been immune
from judicial review because they involve the exercise of enforcement discretion.114 However, the
court took the position that creating a program whereby aliens who met specified criteria are
essentially assured of receiving deferred action—and thereby becoming eligible for other
benefits—is another matter.115
The court also found, in the alternative, that even if its characterization of DAPA were rejected
and a presumption of nonreviewability were found to apply, the presumption could be rebutted in
this case. The court did so because, in its view, the INA requires that unauthorized aliens be

106 Texas, 2015 U.S. Dist. LEXIS 18551, at *126-*130.
107 Id. at *130-*138.
108 Id. at *138-*149.
109 Id. at *126-*127.
110 Id. at *132.
111 Id. at *138-*139. In Heckler, the Supreme Court held that “an agency’s decision not to prosecute or enforce,
whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” 470
U.S. at 831. The Court noted that agency enforcement decisions, like prosecution decisions, involve a ”complicated
balancing”of agency interests and resources—a balancing that the agency is “better equipped” to evaluate than the
courts. Id. The Heckler opinion proceeded to establish the general rule that an “agency’s decision not to take
enforcement action should be presumed immune from judicial review.” Id. at 831. However, the Court indicated that
this presumption may be overcome “where the substantive statute has provided guidelines for the agency to follow in
exercising its enforcement powers.” Id. at 833.
112 Texas, 2015 U.S. Dist. LEXIS 18551, at *139-*149.
113 Id. at *144.
114 Id. at *145.
115 Id. at *148-*149.
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placed in removal proceedings,116 and Heckler recognizes an exception to the general
presumption of nonreviewability in cases where a “substantive statute has provided guidelines for
the agency to follow in exercising its enforcement powers.”117 In so finding, the court relied, in
part, upon the same provisions of INA §235 that another federal district court had relied upon in
finding that DACA is prohibited by the INA (see Mississippi’s Claims in Crane v. Napolitano),
although it did not expressly reference that court’s opinion.118 (The Crane court later found that it
lacked jurisdiction over the plaintiffs’ claims, a decision which was affirmed on appeal in an
opinion by the Fifth Circuit which arguably adopted (but did not directly rule on) an alternate
interpretation of INA §235.)119
The court expressly rejected the Administration’s argument that DAPA can be seen as within the
executive’s discretion under statutory provisions which authorize the Secretary of Homeland
Security to “establish such regulations ... as he deems necessary for carrying out his authority”
under the INA (8 U.S.C. §1103), as well as to “[e]stablish national immigration enforcement
policies and priorities” (6 U.S.C. §202). In so doing, the court noted that it viewed 6 U.S.C. §202,
in particular, as giving the executive discretion to determine its enforcement priorities.120
However, the court emphasized that these priorities are neither directly at issue here nor
unlawful.121 The court similarly rejected the view that the executive’s historical practice of
granting deferred action to unauthorized aliens can be seen to justify DAPA, or to reflect
congressional acquiescence to this practice.122
Failure to Engage in Rulemaking
Having found that DAPA is reviewable, the court then found that the memorandum establishing
DAPA and the DACA expansion (“the DAPA memorandum”) constitutes a substantive rule, but
was issued without compliance with the notice-and-comment rulemaking generally required for
such rules under the APA.123 In reaching this conclusion, the court first noted that it viewed
neither party as having seriously questioned whether the DAPA memorandum constitutes a “rule”
for purposes of the APA.124 It then rejected the Administration’s argument that the DAPA
memorandum represents an interpretative rule, not a substantive one, on the grounds that the
memorandum cabins agency discretion and effects a substantial change in existing law.125 The
court concluded that the DAPA memorandum cabins agency discretion by distinguishing between
the language in the memorandum, which provides that deferred action is to be granted on a case-

116 Id. at *150-*167.
117 Id. at *150 (quoting Heckler, 470 U.S. at 832-33).
118 Id. at *150-*151.
119 See supra note 76.
120 Texas, 2015 U.S. Dist. LEXIS 18551, at *154-*160.
121 Id. at *117-*118, *156-*157.
122 Id. at *171-*172.
123 The court’s focus upon what it viewed as procedural defects in the implementation of DAPA should not be taken to
mean that the Administration may simply implement DAPA, or the DACA expansion, by promulgating a regulation to
this effect. Rather, the question would then be whether the programs are within the Administration’s authority,
including as a matter of constitutional law, something which the court did not address in its February decision, but is
currently considering.
124 Id. at *173-*174.
125 Id. at *174-*195.
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by-case basis in the executive’s discretion, and the Administration’s past practice in implementing
DACA, which has generally been to grant deferred action to aliens who meet the eligibility
criteria.126 As to the DAPA memorandum’s effects on existing law, the court similarly noted that
DAPA represents a “massive change in immigration practice,” turning “illegal status” into “lawful
presence” for some 4.3 million aliens, whereas the executive had granted deferred action to only
approximately 1,000 aliens per year prior to the implementation of DACA in 2012.127 The court
further emphasized that it viewed the granting of deferred action to DAPA beneficiaries as
contrary to the immigration laws, which the court views as generally requiring their removal.128
Motion to Stay the Injunction, Appeal to the Fifth Circuit
The federal government filed an emergency expedited motion to stay the injunction with the
district court,129 and appealed the district court’s decision to the Fifth Circuit.130 The district court
rejected the motion to stay in a decision issued on April 7, 2015, which broadly indicated that the
court viewed its “original findings and rulings” as “correct.”131 The district court did, however,
respond to arguments that it characterized as “either new or ... not necessarily emphasized during
the prior hearing.”132 In particular, the court rejected the federal government’s arguments (1) that
implementation of DAPA and the DACA expansion should be enjoined only in Texas, and not in
other states,133 and (2) that immediate implementation of these programs is necessary to secure
the border, among other things.134 Subsequently, on April 17, 2015, the Fifth Circuit heard oral

126 Id. at *186-*187.
127 Id. at *103 n.46.
128 Id. at *194-*185.
129 See, e.g., Texas v. United States, No. 1:14-cv-254, Defendants’ Supplement to Emergency Expedited Motion to Stay
(S.D. Tex., filed Mar. 12, 2015) (copy on file with the author). The district court’s injunction applies only to the
implementation of DAPA and the 2014 expansion of DACA. It does not apply to the 2012 DACA program, or to any
of the other actions announced by the Obama Administration on November 20, 2014 (e.g., granting parole to certain
inventors and entrepreneurs).
130 See, e.g., Texas v. United States, No. 15-40238, Appellants’ Emergency Motion for Stay Pending Appeal (5th Cir.,
filed Mar. 12, 2015) (copy on file with the author).
131 Texas, 2015 U.S. Dist. LEXIS 45483 at *10.
132 Id.
133 This argument was raised, in part, because the district court focused on Texas’s injuries as a result of DAPA when
finding that the plaintiffs had standing to pursue their claims. Because the court made “no specific findings” as to the
injuries of the other plaintiff states, the federal government asserted that the court lacked jurisdiction to enjoin the
implementation of DAPA and the DACA expansion in states other than Texas. Id. at *11. The court disagreed, on the
grounds that each and every plaintiff need not produce sufficient evidence of any injury caused by defendant’s actions
at the preliminary injunction stage of proceedings. Id. at *11-*12. The court also rejected the federal government’s
argument that the scope of the injunction should be limited to Texas, in part, because it viewed the nationwide scope of
the injunction as consistent with the constitutional requirement that there be a “uniform rule of naturalization.” Id. at
*26. It also noted that the Administration had, in its view, taken positions in prior litigation that are inconsistent with its
current position that requests for deferred action should be treated differently in Texas. Id. at *26-*27. The court further
noted that insofar as the government violated the procedural requirements of the APA when announcing DAPA and the
DACA expansion, this violation affects the entire nation, not just one state. Id. at *28.
134 The federal government’s argument here was that, if DAPA and the DACA expansion were implemented,
immigration agents would not have to spend time processing aliens whose deferred action status indicates they are “low
priorities” for removal. Id. at *28-*29. Instead, immigration agents could concentrate on those unauthorized aliens who
have committed criminal offenses or recently entered the United States. Id. The court, however, found this argument
unpersuasive because it does not view the federal government as needing the specific documentation resulting from the
implementation of DAPA and the DACA expansion to accomplish this goal. Instead, the court emphasized that the
government could issue “documentation designating certain illegal immigrants as low-priority law enforcement targets
(continued...)
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arguments on the federal government’s appeal of the district court’s decision enjoining
implementation of DAPA and the DACA expansion. Like the district court’s decision, this hearing
centered upon whether Texas and the other plaintiff states (1) have standing; (2) challenge actions
that are committed to agency discretion as a matter of law; and (3) are likely to prevail in their
argument that the memorandum authorizing DAPA and the DACA expansion constitutes a
“substantive rule,” but was issued without compliance with the notice-and-comment procedures
required for such rules under the APA.
The district court has not addressed the merits of the states’ other arguments, including the
argument that DAPA and the DACA expansion run afoul of the Constitution and the INA, but is
currently considering them.135
Conclusion
It remains to be seen how the Fifth Circuit may rule on appeal, or how the district court may rule
on the states’ substantive (as opposed to procedural) challenges to DAPA and the DACA
expansion. However, even assuming that the district court’s February 2015 decision in Texas v.
United States
withstands appeal, states’ ability to challenge alleged federal “failures” to enforce
the immigration laws in the future may be more limited than it might first appear.136 The 2015
Texas decision does mark the first time that a state has obtained a court order directing the federal
government to take certain actions (i.e., delaying implementation of DAPA and the DACA
expansion) in response to state allegations that the federal government is failing to enforce the
INA. On the other hand, the facts and circumstances involved in the 2015 Texas decision are
arguably distinguishable from those in earlier cases and, thus, potentially limit this decision’s
relevance to any future state challenges to federal enforcement of the immigration laws.
First, there are the specific facts and circumstances which prompted the district court to find that
Texas, in particular, has Article III standing to challenge DAPA and the DACA expansion. This
finding was based, in part, on Texas’s documentation of the costs it would incur in issuing
driver’s licenses to DAPA beneficiaries.137 Moreover, because the federal government had
advocated a position in prior litigation over the issuance of driver’s licenses to DACA
beneficiaries
that Texas asserted would result in the federal government requiring it to issue
driver’s licenses to DAPA beneficiaries, Texas was also able to avoid any potential
counterargument that these costs arose due to state law or the Constitution, and not the federal
government’s actions. Both factors were arguably significant. Mississippi’s alleged injury in
Crane, for example, was seen as inadequate for standing because Mississippi did not show that

(...continued)
without additionally awarding [the] legal status and other benefits” that flow from a grant of deferred action. According
to the court, the federal government “has always had the ability” to designate certain aliens as low priorities for
removal (separate and apart from granting them deferred action), and the “injunction does not affect this.” Id. at *29.
135 Several aspects of the district court’s discussion of the plaintiffs’ standing, the reviewability of DAPA and the
DACA expansion, and the procedural requirements of the APA could, however, be taken to mean that the district court
views these programs as running afoul of the INA. See supra notes 100 and 118 and accompanying text.
136 It is also worth noting that the district court found for the plaintiffs on their procedural challenge to DAPA and the
DACA expansion (i.e., how these programs were implemented). It did not address the plaintiffs’ substantive challenge
to the programs (i.e., whether they are within the executive’s authority).
137 See supra notes 95-99 and accompanying text.
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the implementation of DACA had increased, or will increase, its costs.138 Certain claims in the
mid-1990s litigation similarly failed because the states were seen as incurring certain costs
associated with unauthorized aliens because of grant conditions (to which the state had agreed),
state laws, or constitutional requirements, and not the dictates of the federal government.139 Had
either of these factors been lacking (i.e., had Texas not been able to cite specific costs, or argue
that it is compelled to bear these costs by the federal government), it is unclear that the district
court would have reached the same conclusions as to standing.
Second, and relatedly, there is the specific form that the federal government’s alleged failure to
enforce the immigration laws took in the 2015 Texas decision. Namely, the Obama
Administration proposed to grant deferred action (one type of relief from removal) to certain
unauthorized aliens, a proposal which could result in those aliens becoming eligible for certain
“benefits” under existing law (e.g., work authorization, Social Security numbers).140 In finding
that this particular form of nonenforcement of the immigration laws is subject to judicial review,
the district court repeatedly emphasized that it views the granting of deferred action as involving
an “affirmative action” on the executive’s part,141 and not simply a matter of an agency’s
enforcement priorities142 or nonenforcement of the laws as to individual aliens and groups of
aliens.143 Both of these (i.e., enforcement priorities, nonenforcement as to individuals) would
appear to be within the executive’s discretion, in the court’s view, and thus not subject to judicial
review.144 Indeed, the district court even suggested, in denying the federal government’s
emergency expedited motion to stay the injunction, that immigration officials could achieve their
purpose of designating potential DAPA beneficiaries as “low priorities” for removal by giving
them written documentation to this effect, so long as this documentation does not involve a grant
of deferred action.145 That the district court viewed certain provisions in INA §235 as requiring

138 See supra “Mississippi’s Claims in Crane v. Napolitano.”
139 See supra “Litigation in the Mid-1990s” and “Tenth Amendment.” The states’ claims in the mid-1990s were based
on federal commandeering. However, similar concerns about whether particular costs are due to federal actions in not
removing unauthorized aliens have been raised in discussions of standing in other cases. See, e.g., Arpaio, 27 F. Supp.
3d at 201-205.
140 See generally 8 C.F.R. §274a.12(c)(14) (providing for the issuance of work authorization to aliens granted deferred
action who can show an “economic necessity for employment”); 8 C.F.R. §1.3(a)(4)(vi) (providing that aliens granted
deferred action are “lawfully present” “for purposes of applying for Social Security benefits”).
141 Texas, 2015 U.S. Dist. LEXIS 18551, at *144.
142 Id. at *118-*120.
143 Id. at *45 (“The DHS [Department of Homeland Security] has not instructed its officers to merely refrain from
arresting, ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of DAPA, that is
what the DHS has been doing for these recipients for the last five years—whether that was because the DHS could not
track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing
removals according to limited resources, applying humanitarian considerations, or just not removing these individuals
for ‘administrative convenience.’ Had the States complained only of the DHS’ mere failure to (or decision not to)
prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have
been based on the inaction of the agency in its refusal to enforce. In such a case, the Court may have been without any
‘focus for judicial review.’”).
144 In taking the view that the executive’s actions might not have been reviewable had it continued as it had as to the
potential DAPA beneficiaries (i.e., not removing them, but not granting them deferred action), the court could be seen
as taking the view that the number of aliens as to whom the INA is allegedly not enforced is not dispositive in
determining whether the action is judicially reviewable or permissible. See supra note 144.
145 Texas, 2015 U.S. Dist. LEXIS 45483, at *29 (“The DHS could conduct the same investigation and provide ...
documentation designating certain illegal immigrants as low-priority law enforcement targets without additionally
awarding legal status and the other benefits previously described in detail. (In fact, the DHS has always had the ability
to do this. This Court’s injunction does not affect this ability.)”).
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.
State Challenges to Federal Enforcement of Immigration Law

that unauthorized aliens be removed is arguably also significant, since the court cited this
purported requirement both in finding that the states have prudential standing and in finding that
DAPA and the DACA expansion are judicially reviewable.146 A similar outcome might not have
resulted had the states challenged the executive’s enforcement priorities per se; its decision not to
pursue removal against some or all unauthorized aliens, separate and apart from the granting of
deferred action; or its compliance with statutory provisions which the court did not see as
imposing nondiscretionary requirements on the executive.


Author Contact Information
Kate M. Manuel
Legislative Attorney
kmanuel@crs.loc.gov, 7-4477


146 See supra notes 100 and 118 and accompanying text.
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