. 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 c11173008 State Challenges to Federal Enforcement of Immigration Law . Summary States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. 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-andcomment procedures required for substantive rules under the APA. The Administration has appealed that decision. The district court continues to hear arguments on the states’ other claims. c11173008 Congressional Research Service State Challenges to Federal Enforcement of Immigration Law . Contents Litigation in the Mid-1990s ............................................................................................................. 2 Naturalization Clause ................................................................................................................ 3 Guarantee Clause ....................................................................................................................... 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 c11173008 Congressional Research Service State Challenges to Federal Enforcement of Immigration Law . S tates and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens.1 Some states and localities, concerned that federal enforcement disrupts families and communities, or infringes upon human rights, have adopted “sanctuary” policies limiting their cooperation in federal efforts.2 Other states and localities, in contrast, concerned about the costs of providing benefits or services to unauthorized aliens, or such aliens settling in their communities, have adopted measures to deter unauthorized aliens from entering or remaining within their jurisdiction.3 In some cases, such states or localities have also sued to compel federal officials to enforce the immigration laws, or to compensate them for costs associated with unauthorized migration.4 This report provides an overview of prior and pending challenges by states to federal officials’ alleged failure to enforce the INA or other provisions of immigration law. It begins by discussing (1) the lawsuits filed by six states in the mid-1990s; (2) Arizona’s counterclaims to the federal government’s suit to enjoin enforcement of S.B. 1070; and (3) Mississippi’s challenge to the Deferred Action for Childhood Arrivals (DACA) initiative. It then describes the challenge brought by 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-cv254, 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). c11173008 Congressional Research Service 1 State Challenges to Federal Enforcement of Immigration Law . The report does not address challenges to the federal government’s alleged failure to enforce the immigration laws that have been made by other parties, including private individuals, municipal officials, or, in one case, the people of a state (although not the state itself).6 But see CRS Legal Sidebar WSLG1145, “Sheriff Joe” Found to Lack Standing to Challenge the Obama Administration’s Immigration Enforcement Priorities and Deferred Action Initiatives, by Kate M. Manuel. Litigation in the Mid-1990s In the mid-1990s, six states which were then home to over half the unauthorized aliens in the United States7—Arizona, California, Florida, New Jersey, New York, and Texas—each challenged the federal government’s “fail[ure] to control illegal immigration.”8 Each case raised somewhat different issues.9 However, all resulted in losses for the states both before the reviewing federal district court and on appeal. Limitations on standing—or who is a proper party to seek judicial relief from a federal court—were noted in some cases.10 However, even when standing was assumed,11 the states’ constitutional and statutory claims failed, as discussed below. 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 (continued...) c11173008 Congressional Research Service 2 State Challenges to Federal Enforcement of Immigration Law . The following sections discuss how the courts viewed the most notable arguments made in the 1990s litigation, including those based on the Naturalization, Guarantee, and Invasion Clauses of the U.S. Constitution; the Tenth Amendment; and provisions of the INA. Naturalization Clause Several states claimed that the federal government’s alleged failure to enforce the immigration laws imposed disproportionate costs upon them, which the federal government was obligated to reimburse pursuant to the Naturalization Clause.12 This clause—which has been recognized as one source of the federal government’s authority to regulate immigration13—expressly grants Congress the “Power ... [t]o establish a uniform Rule of Naturalization.”14 The states’ reasoning appears to have been that, insofar as the rule of naturalization is to be “uniform,” the effects of immigration upon the states must also be uniform and, if they are not, the federal government has an affirmative duty to compensate those states that can be seen as disproportionately affected by immigration.15 However, ignoring the question of whether Congress’s power over immigration is, in fact, co-extensive with its power over naturalization,16 the U.S. Courts of Appeals for the Second, Third, and Ninth Circuits found that the Naturalization Clause imposes no obligation upon the federal government to reimburse the states for any costs arising from an alleged “invasion” by 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 (...continued) Florida’s claims). 12 See Texas, 106 F.3d at 664-65; New Jersey, 91 F.3d at 467; Padavan, 82 F.3d at 26-28. 13 See, e.g., Arizona v. United States,—U.S.—, 132 S. Ct. 2492, 2498 (2012) (viewing federal authority to regulate immigration as deriving, in part, from Congress’s power to establish a uniform rule of naturalization). 14 U.S. Const., art. I, §8, cl. 3. 15 Cf. New Jersey, 91 F.3d at 467 (“[Because power over immigration matters has ... been delegated to the federal government, ‘the State of New Jersey is powerless to effectively resolve the economic problems caused by the invasion of illegal immigrants into the State,’ ... [and the] defendants, in failing to implement their laws and policies have ‘forced the State of New Jersey[] to bear the burden of a responsibility which is that of the Nation as a whole pursuant to the Naturalization Clause.’”). 16 Naturalization refers to the process whereby aliens become U.S. citizens, and some have questioned whether Congress’s power over naturalization is to be seen as the basis for federal regulation of immigration. See, e.g., The Passenger Cases, 48 U.S. 283, 526-27 (1849) (Taney, C.J., dissenting). 17 New Jersey, 91 F.3d at 467 (“[W]e see no ground on which we could read into the Naturalization Clause an affirmative duty on the part of the federal government ...”). See also Texas, 106 F.3d at 665 (“[W]e perceive no basis for reading into the [Naturalization] clause an affirmative duty ...”); Padavan, 82 F.3d at 26-27 (similar). 18 For further discussion as to plenary power over immigration, see CRS Report R42924, Prosecutorial Discretion in Immigration Enforcement: Legal Issues, by Kate M. Manuel and Todd Garvey, at 4-5. 19 Padavan, 82 F.3d at 26-27 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819) (“It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.”)). c11173008 Congressional Research Service 3 State Challenges to Federal Enforcement of Immigration Law . Guarantee Clause The courts similarly rejected the states’ claims that the federal government violated the Guarantee Clause by failing to compensate them for their “immigration-related expenditures.”20 The Guarantee Clause provides that the “United States shall guarantee to every State in this Union a Republican Form of Government,”21 and the states’ argument was essentially that the federal government deprived them of a republican form of government by “forcing” them to spend money on 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 (continued...) c11173008 Congressional Research Service 4 State Challenges to Federal Enforcement of Immigration Law . branch was seen to lack manageable standards for determining whether or when the entry of unauthorized aliens constituted an “invasion.”29 Several courts also found, in the alternative, that the Invasion Clause was inapplicable because the states were not threatened by incursions of foreign or domestic states.30 Tenth Amendment The states’ claims that the federal government violated the Tenth Amendment by “forcing” them to provide public benefits and services to unauthorized aliens were also uniformly rejected by the Second, Third, Fifth, Ninth, and Eleventh Circuits.31 Here, the courts relied upon somewhat different reasoning as to each of the three main types of benefits and services which the states alleged that the federal government had “commandeered.” First, as to Medicaid spending, the courts found that the states had agreed to provide certain emergency medical services to unauthorized aliens as a condition of states’ receipt of federal funds.32 Such conditions, in the courts’ view, represented a permissible exercise of Congress’s spending power, rather than impermissible commandeering.33 Second, as to the costs of incarcerating unauthorized aliens, the courts noted that these aliens were jailed pursuant to state law, rather than any dictates of the federal government and, thus, they found no commandeering.34 Third, and finally, as to elementary and secondary education, the courts noted that the states were obligated to provide such education to unauthorized alien children as a result of the Constitution, as construed by the Supreme Court in Plyler v. Doe, and not as the result of a command of the federal government.35 Thus, in the courts’ view, this, too, did not represent commandeering. (...continued) states began to frame the alleged failure to enforce the immigration laws in terms of the executive’s failure to execute the statutes as they were written and intended by Congress and, thus, to make claims regarding violations of the Take Care Clause. See supra “Mississippi’s Claims in Crane v. Napolitano.” 29 California, 104 F.3d at 1091; Padavan, 82 F.3d at 28; Chiles, 69 F.3d at 1097. 30 California, 104 F.3d at 1091 (basing this conclusion, in part, on James Madison’s statement in The Federalist No. 43 that the Invasion Clause serves to protect a state from “foreign hostility” and “ambitious or vindictive enterprises” on the part of other states or foreign nations); New Jersey, 91 F.3d 468; Padavan, 82 F.3d at 28; Chiles, 69 F.3d at 1097. 31 Texas, 106 F.3d at 665-66; California, 104 F.3d at 1091-93; New Jersey, 91 F.3d at 466-67; Padavan, 82 F.3d at 2829; Chiles, 69 F.3d at 1097. The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., amend. X. 32 See, e.g., California, 104 F.3d at 1092. 33 Id. (citing South Dakota v. Dole, 483 U.S. 203, 207-08 (1987) (upholding a statute wherein Congress conditioned access to highway funds on states establishing 21 years of age as the drinking age)). The Supreme Court’s 2012 decision in National Federation of Independent Business (NFIB) v. Sebelius elaborated upon the Court’s earlier holding in South Dakota by finding that compelling the states to participate in a “new grant program” or else face the possible loss of all federal funds under a current program was coercive and unconstitutional under the Tenth Amendment. See generally CRS Report R42367, Medicaid and Federal Grant Conditions After NFIB v. Sebelius: Constitutional Issues and Analysis, by Kenneth R. Thomas. However, the mid-1990s challenges did not claim that the federal government threatened the states with the loss of existing funding if the states did not adopt a new program, and the 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 (continued...) c11173008 Congressional Research Service 5 State Challenges to Federal Enforcement of Immigration Law . Statutory Provisions The states’ statutory claims—alleging that federal officials violated specific provisions of the INA or other statutes by failing to exclude or remove unauthorized aliens, or compensate the states for the costs associated with such aliens—were no more successful than their constitutional arguments. The states cited a number of provisions in support of these claims, including • INA §103(a)(5), which at that time tasked the Attorney General with the “duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens”;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 (...continued) equal protection purposes. See generally CRS Report R43447, Unlawfully Present Aliens, Higher Education, In-State Tuition, and Financial Aid: Legal Analysis, by Kate M. Manuel. 36 Texas, 106 F.3d at 667; Padavan, 82 F.3d at 29-30; Chiles, 69 F.3d at 1096. This responsibility has since been transferred to the Secretary of Homeland Security. See INA §103(a)(5), 8 U.S.C. §1103(a)(5) (“[The Secretary] shall have the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens and shall, in his discretion, appoint for that purpose such number of employees of the Service as to him shall appear necessary and proper.”). 37 California, 104 F.3d at 1094. INA §238, 8 U.S.C. §1228, currently makes similar provisions for the “expedited removal” of aliens convicted of aggravated felonies, whose removal proceedings shall, among other things, be conducted in a “manner which eliminates the need for additional detention at any [DHS] processing center ... and in a manner which assures expeditious removal following the end of the alien’s incarceration for the underlying sentence.” 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 (continued...) c11173008 Congressional Research Service 6 State Challenges to Federal Enforcement of Immigration Law . However, all the states’ claims were seen to involve matters that were committed to agency discretion as a matter of law and, thus, not reviewable by the courts.42 Notably, all the statutes cited by the states in making these claims included the word “shall.”43 In no case, though, did an appellate court specifically address the statute’s use of this word, or whether “shall” could be construed to indicate mandatory agency action, in its published decision. This was so even when the provision of immigration law in question did not, in itself, include language which clearly evidenced that federal officials had some discretion in enforcing the law.44 It should also be noted that, in three of the six cases, the appellate court expressly rejected the suggestion that federal officials’ alleged failure to enforce the immigration laws could be seen as an “abdication” of their statutory responsibilities. The Supreme Court’s 1985 decision in Heckler v. Chaney expressly recognized an exception to the presumption that agency decisions not to undertake enforcement actions are “committed to agency discretion by law” and, thus, immune from judicial review under the Administrative Procedure Act (APA).45 This exception would permit review when “the agency has ‘consciously and expressly adopted a general policy’ [of nonenforcement] that is so extreme as to amount to an abdication of its statutory responsibilities.”46 However, the federal courts of appeals found that the federal government’s immigration enforcement policies in the mid-1990s did not constitute such an abdication,47 apparently because the states could not allege that the federal government was “doing nothing” to enforce the immigration laws.48 Instead, in the courts’ view, the states’ questioned the effectiveness of federal policies and practices, and “[r]eal or perceived inadequate enforcement of immigration law does not constitute a reviewable abdication of duty.”49 (...continued) State for the imprisonment of any illegal alien or Cuban national who is convicted of a felony by such State.”). 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. c11173008 Congressional Research Service 7 State Challenges to Federal Enforcement of Immigration Law . Arizona’s Counterclaims in the S.B. 1070 Litigation In 2011, over a decade after the mid-1990s litigation, Arizona asserted counterclaims challenging the federal government’s alleged failure to enforce the immigration laws in the litigation over Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (commonly known as “S.B. 1070”).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. c11173008 Congressional Research Service 8 State Challenges to Federal Enforcement of Immigration Law . precluded by the litigation in the mid-1990s,56 or, alternatively, settled in the federal government’s favor by Ninth Circuit precedent.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.”). c11173008 Congressional Research Service 9 State Challenges to Federal Enforcement of Immigration Law . 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. 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.” 65 c11173008 Congressional Research Service 10 State Challenges to Federal Enforcement of Immigration Law . authorization.69 The ICE agents and Mississippi asserted that this initiative violates the Take Care Clause, impinges upon Congress’s legislative powers, and contradicts certain provisions in INA §235 which some assert require that unauthorized aliens be placed in removal proceedings.70 They also alleged that it runs afoul of the Administrative Procedure Act (APA) because the Administration did not promulgate regulations before making deferred action—which the plaintiffs viewed as a benefit, not an exercise of prosecutorial discretion—available to unauthorized aliens who had been brought to the United States as children.71 The ICE agents were found to have standing to raise these challenges72 and, at least initially, prevailed before the reviewing federal district court on their claim that DACA runs afoul of three purportedly “interlocking” provisions in INA §235 which state that 1. any alien present in the United States who has not been admitted shall be deemed an applicant for admission; 2. applicants for admission shall be inspected by immigration officers; and 3. in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for removal proceedings.73 69 DHS Secretary Janet Napolitano, Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, June 15, 2012 (copy on file with the author). The determination as to whether to grant deferred action to individual aliens has historically been seen as within immigration officials’ prosecutorial or enforcement discretion. See, e.g., Hotel & Rest. Employees Union Local 25 v. Smith, 846 F.2d 1499, 1510-11 (D.C. Cir. 1988); Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n.3 (9th Cir. 2001); Johnson v. INS, 962 F.2d 574, 579 (7th Cir. 1992); Carmona Martinez v. Ashcroft, 118 Fed. App’x 238, 239 (9th Cir. 2004); Matter of Yauri, 25 I. & N. December 103 (BIA 2009); Matter of Singh, 21 I. & N. December 427 (BIA 1996); Matter of LuvianoRodriguez, 21 I. & N. December 235 (BIA 1996); Matter of Quintero, 18 I. & N. December 348 (BIA 1982). 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, (continued...) c11173008 Congressional Research Service 11 State Challenges to Federal Enforcement of Immigration Law . In particular, the court noted that each of the three provisions includes the word “shall,” and took the view that “shall” indicates mandatory agency action.74 However, this same court later found that it lacked jurisdiction over the ICE agents’ claims.75 This finding was affirmed on appeal by the Fifth Circuit in a decision which suggests—but does not directly hold—that the Fifth Circuit may not view INA §235 as barring the executive from granting deferred action to unauthorized aliens.76 Mississippi, in contrast, was found not to have standing because the reviewing court viewed its alleged injury as “conjectural and based on speculation” and, thus, insufficiently concrete to satisfy the constitutional requirements of standing.77 This injury consisted of the fiscal costs associated with unauthorized aliens residing in the state who were allegedly enabled to remain there as a result of DACA and Obama Administration guidance regarding the exercise of prosecutorial discretion in civil immigration enforcement.78 The federal government did not contest that the expenditure of state funds could qualify as an invasion of a legally protected interest sufficient to establish standing under the “proper circumstances.”79 Rather, the federal government argued that such circumstances were not present in the instant case because Mississippi relied upon a 2006 report—which pre-dated DACA—to show the costs it incurred as the result of the Obama Administration’s actions.80 The district court agreed, and also noted that Mississippi had offered only “conclusory allegations” that the unauthorized aliens granted (...continued) rejected federal officials’ interpretation, in part, because the court viewed it as contrary to the statutory language. Crane II, 2013 U.S. Dist. LEXIS 57788, at *21-*27. 74 Crane II, 2013 U.S. Dist. LEXIS 57788, at *27-*39. 75 The district court found that the Merit Systems Protection Board (MSPB), rather than the court, has jurisdiction over the ICE agents’ claims that they face adverse employment consequences if they fail to comply with the Administration’s DACA program. Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 U.S. Dist. LEXIS 187005 (July 31, 2013) [hereinafter “Crane III”]. For a summary of this decision, see CRS Legal Sidebar WSLG1223, Appeals Court Affirms Dismissal of Challenge to 2012 Deferred Action Program, by Kate M. Manuel. 76 See Crane v. Johnson, No. 14-10049, 2015 U.S. App. LEXIS 5573 (5th Cir., Apr. 7, 2015) [hereinafter Crane IV], aff’g, on other grounds, Crane III, U.S. Dist. LEXIS 187005. In this decision, the Fifth Circuit opines that INA §235, at most, “directs” immigration agents to “detain” aliens for the purpose of placing them in removal proceedings. Crane, 2015 U.S. App. LEXIS 5573 at *8. “It does not limit the authority of [the Department of Homeland Security] to determine whether to pursue the removal” of aliens once they have been so detained, according to the Fifth Circuit. Id. The court’s language here comes from its “background” discussion of the immigration laws, and is not the subject of specific holdings or findings. However, this language—coupled with the Fifth Circuit’s citations to Supreme Court precedents which, among other things, describe “the broad discretion exercised by immigration officials” as a “principal feature of the removal system”—suggests it may be unlikely to find that INA §235 bars immigration officials from granting deferred action. Id. at *4-*5 (quoting Arizona v. United States,—U.S.—, 132 S. Ct. 2492, 2499 (2012)). 77 Crane I, 920 F. Supp. 3d at 743, 746. 78 Id. at 743. The guidance regarding civil enforcement priorities challenged in Crane was that given by then-ICE Director John Morton in two memoranda issued in 2011, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, and Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens. These memoranda were rescinded and superseded by new guidance issued by the Obama Administration on November 20, 2014. See DHS Secretary Jeh Charles Johnson, Memorandum, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, Nov. 20, 2014 (copies on file with the author). 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.”). c11173008 Congressional Research Service 12 State Challenges to Federal Enforcement of Immigration Law . deferred action would have been removed but for the DACA initiative, or that DACA had resulted in a decrease in the total number of aliens removed by the federal government.81 The district court’s decision as to Mississippi’s standing was affirmed by the Fifth Circuit on appeal.82 In so doing, the Fifth Circuit noted that it viewed Mississippi’s alleged injury as “purely speculative” because it “is not supported by any facts” showing that Mississippi’s costs increased, or will increase, as a result of DACA.83 One judge did, however, issue a concurring opinion which emphasized that concrete evidence that an injury has occurred or will occur is not necessary for standing for certain claims, but did not view Mississippi as making such claims.84 Texas v. United States and the Challenge to DAPA and the DACA Expansion Most recently, in December 2014, 27 states or their representatives85 filed suit challenging the Obama Administration’s announcement that it is expanding the DACA program to cover more unauthorized aliens who were brought to the United States as children, and creating a DACA-like program for unauthorized aliens who are the parents of U.S. citizens or LPRs (commonly known as DAPA).86 In particular, the states assert that these new programs violate the Take Care Clause and separation of powers principles of the Constitution, federal immigration law, and substantive and procedural requirements of the APA.87 The federal government disputes these assertions. It 81 Id. at 745. Crane IV, 2015 U.S. App. LEXIS 5573, at *15-*18. 83 Id. at *17 (“Article III standing, however, mandates that Mississippi show a ‘concrete and particularized’ injury that is ‘fairly traceable’ to DACA. To do that, Mississippi was required to demonstrate that the state will incur costs because of the DACA program.”). 84 Id. at *25-*26 (Owen, J., concurring) (citing Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160-61 (1981) (finding that California had standing to challenge the Secretary of the Interior’s refusal to experiment with noncash-bonus bidding systems, in part, because the Court “share[d] California’s confidence that, after experimentation, the Secretary would use the most successful bidding system on all suitable ... lease tracts, including those off the California coast”). 85 Other states and local governments have supported the Obama Administration’s most recent deferred action programs. See supra note 5. 86 Texas v. United States, No. 1:14-cv-00254, Complaint for Declaratory and Injunctive Relief, at 11-15 (S.D. Tex., filed Dec. 3, 2014) (copy on file with the author) (alleging that the deferred actions programs and other Administration policies as to immigration enforcement “have had and continue to have dire consequences” for the plaintiff states by “substantially increas[ing]” the number of unauthorized aliens in the state, “triggering” unauthorized migration, increasing human trafficking, and “requiring” states to provide various public benefits and services). Other challenges to the Obama Administration’s November 20, 2014, actions have also been made. See, e.g., Arpaio, 27 F. Supp. 3d 185 (finding that the plaintiff lacked standing). This decision has been appealed to the U.S. Court of Appeals for the District of Columbia Circuit. See also United States v. Juarez-Escobar, 2014 U.S. Dist. LEXIS 173350, at *33 (W.D. Pa., Dec. 16, 2014) (opining that DAPA and the DACA expansion “violate[] the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore, [are] unconstitutional.”). However, the reasoning that supports this conclusion by the Juarez-Escobar court appears to be primarily concerned with separation of powers issues (i.e., the executive is “legislating,” rather than exercising prosecutorial discretion, by (1) providing a “systematic and rigid process by which a broad group of individuals will be treated differently than others based on arbitrary classifications,” and (2) allowing unauthorized aliens who fall within these categories “to obtain substantive rights”). 87 Complaint, supra note 86, at 26-28. The states further note that they are essentially barred from taking action to avoid the adverse consequences of DAPA and the DACA expansion because “the Supreme Court has held that authority over immigration is largely lodged in the federal government.” Id. at 24-26 (citing Arizona v. United States,— U.S.—, 132 S. Ct. 2492 (2012)). In other words, in the states’ view, they are generally preempted from taking actions (continued...) 82 c11173008 Congressional Research Service 13 State Challenges to Federal Enforcement of Immigration Law . also maintains that the plaintiffs lack standing, and that the challenged programs represent an exercise of enforcement discretion and, as such, are immune from judicial review.88 In a decision issued on February 16, 2015, the U.S. District Court for the Southern District of Texas found that the states have standing to challenge DAPA and the DACA expansion, and that the challenged programs are judicially reviewable.89 It also enjoined implementation of these programs after finding that the states are likely to prevail on the merits of their argument that the memorandum establishing the programs constitutes a substantive rule, but was issued without compliance with the notice-and-comment procedures required for such rules under the APA. The federal government filed an emergency expedited motion to stay the injunction with the district court, which was denied.90 It also appealed the district court’s decision regarding standing, reviewability, and the procedural requirements of the APA to the Fifth Circuit, which heard oral arguments on April 17, 2015, but has not issued a ruling to date. The district court continues to hear arguments on the states’ substantive (as opposed to procedural) claims. The following sections provide an overview of the district court’s initial February 16, 2015, decision. They also note the district court’s subsequent decision denying the federal government’s motion to stay the injunction, as well as the federal government’s appeal to the Fifth Circuit. States’ Standing to Challenge DAPA and the DACA Expansion Before reaching the question of whether the states are likely to succeed on the merits of their claim that the Administration did not comply with the procedural requirements of the APA when implementing DAPA and the DACA expansion, the federal district court first found that the states satisfy the requirements for Article III, prudential, and APA standing. Article III standing, in particular, generally requires that plaintiffs show that (1) they have suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) the injury is likely to be redressed by a favorable decision from the court.91 All three conditions were found to be satisfied here, given the specific claims that Texas made about the “substantial costs” associated with processing applications for driver’s licenses for DAPA beneficiaries.92 Previous state challenges to the federal government’s alleged failure to enforce the immigration laws had similarly noted the costs of providing emergency medical care and public elementary and secondary education to aliens who had entered or remained in the United States in violation (...continued) that would deter unauthorized aliens from entering or remaining within their jurisdiction, while the federal government declines to take action to remove such aliens. 88 See, e.g., Texas v. United States, No. 1:14-CV-254, Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Preliminary Injunction (S. D. Tex., filed Dec. 24, 2014). For further discussion of prosecutorial or enforcement discretion in the immigration context, see generally CRS Report R42924, Prosecutorial Discretion in Immigration Enforcement: Legal Issues, by Kate M. Manuel and Todd Garvey. 89 In a subsequent decision, the court clarified its view that the court may exercise jurisdiction so long as it finds that at least one plaintiff state demonstrates standing. See Texas v. United States, No. B-14-254, 2015 U.S. Dist. LEXIS 45483, at *10-*13 (S.D. Tex., Apr. 7, 2015). 90 See infra “Motion to Stay the Injunction, Appeal to the Fifth Circuit.” 91 See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 92 Texas, 2015 U.S. Dist. LEXIS 18551, at *36. c11173008 Congressional Research Service 14 State Challenges to Federal Enforcement of Immigration Law . of the INA, as well as the costs of incarcerating such aliens for any state or local offenses they commit.93 However, as previously noted, such earlier challenges had failed, in part, because these specific costs were seen to arise from state law or the U.S. Constitution, not the dictates of the federal government.94 However, the Texas court viewed the costs of issuing driver’s licenses to DAPA beneficiaries as different because, in the court’s view, the federal government had evidenced an intent to “compel ... all states” to issue driver’s licenses to deferred action beneficiaries when supporting a successful challenge to Arizona’s denial of driver’s licenses to those granted deferred action through the 2012 DACA initiative.95 The court further noted that, pursuant to the REAL ID Act of 2005, states must verify the immigration status of aliens who apply for driver’s licenses with the federal government in order for the license to be recognized for “federal purposes,” and Texas estimates the costs of such verification at $0.50 to $1.50 per applicant.96 Based upon these costs, the court found that the plaintiffs had shown the requisite “injury in fact” for Article III standing because “DAPA will directly injure the[ir] proprietary interests [in] their driver’s license programs and cost [them] badly needed funds.”97 The court also viewed this injury as “directly caused” by DAPA since a grant of deferred action through DAPA would give unauthorized aliens the “status or documents” necessary to apply for driver’s licenses, as well as an “incentive” to do so (i.e., by enabling them to obtain work authorization).98 In addition, the court viewed the states’ injury as likely to be redressed by a favorable court decision because the unauthorized aliens eligible for DAPA would generally lack the “status or documents” needed to obtain driver’s licenses in most states if implementation of DAPA were enjoined.99 The court further found that the states had satisfied the prudential standing requirements, in part, because they asserted a “direct injury to their financial interests,” and not a “generalized grievance.”100 The court similarly found APA standing, although it addressed such standing in its 93 See, e.g., Texas, 106 F.3d 661; California, 104 F.3d 1086; Arizona, 104 F.3d 1095; New Jersey, 91 F.3d 463; Padavan, 82 F.3d 23; Chiles, 69 F.3d 1094. 94 See, e.g., Texas, 106 F.3d at 665-66; California, 104 F.3d at 1091-93; New Jersey, 91 F.3d at 466-67; Padavan, 82 F.3d at 28-29; Chiles, 69 F.3d at 1097. Standing concerns were specifically noted in several of these cases. See Texas, 106 F.3d at 664 (noting that the district court had dismissed Texas’s suit, in part, on standing grounds); Padavan, 82 F.3d at 25 (noting questions as to standing); Chiles, 69 F.3d at 1096 (noting that the district court did not address the federal government’s argument that Florida lacked standing). 95 Texas, 2015 U.S. Dist. LEXIS 18551, at *39-*40. For more on this litigation as to driver’s licenses for DACA beneficiaries, see CRS Legal Sidebar WSLG1057, 9th Circuit Decision Enables DACA Beneficiaries—and Other Aliens Granted Deferred Action—to Get Arizona Driver’s Licenses, by Kate M. Manuel; CRS Report R43452, Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues, by Kate M. Manuel and Michael John Garcia. 96 Texas, 2015 U.S. Dist. LEXIS 18551, at *38-*39. 97 Id. at *47. 98 Id. at *53-*57. 99 Texas, 2015 U.S. Dist. LEXIS 18551, at *57. Some states do, however, make provision for unauthorized aliens who have not been granted deferred action by the federal government to obtain driver’s licenses or similar state-issued authorization to drivers. See generally CRS Report R43452, Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues. 100 Id. at *58. The court also found that the states are within the “zone of interests” to be protected by the federal immigration laws in question—as is generally required for prudential standing—because it construed these laws as intended to protect the states from unauthorized migration. Id. at *59-*60. In so finding, the court specifically noted that the federal government has historically been seen to have a “duty” to enforce the immigration laws, while states are generally seen to be preempted from enforcing these laws on their own behalf. Id. c11173008 Congressional Research Service 15 State Challenges to Federal Enforcement of Immigration Law . discussion of the reviewability of DACA and the DAPA expansion, rather than separately (see below, “Reviewability under the APA”).101 The court also viewed the states’ claim of “standing ... based upon federal abdication” of its statutory duty to enforce the INA as cognizable.102 However, its decision was not based solely on such standing, and it declined to adopt the states’ theories of standing on parens patriae grounds generally,103 or under the precedent of Massachusetts v. Environmental Protection Agency specifically.104 The discussion of standing based on abdication is perhaps most notable because the court distinguished the case at hand from Texas’s challenge to the federal government’s alleged failure to enforce the immigration laws in the 1990s (see “Litigation in the Mid-1990s”) on the grounds that the federal government in this case “has required and will require states to take certain actions [to issue driver’s license] to DAPA recipients.”105 Reviewability under the APA Having found that the states have standing, the federal district court also found that DAPA and the DACA expansion are reviewable under the APA. In so doing, the court expressed its view that (1) the memorandum establishing DAPA and the DACA expansion constitutes a “final agency 101 Id. at *61. Id. at *113-*114. 103 Id. at *62-*70. The parens patriae theory of standing is premised upon the state’s being a protector of the interests of its citizens. But see Massachusetts v. Mellon, 262 U.S. 485-86 (1923) (“It cannot be conceded that a state, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the state, under some circumstances, may sue in that capacity for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the federal government. In that field it is the United States, and not the state, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.”) (internal citations omitted). 104 Texas, 2015 U.S. Dist. LEXIS 18551, at *72-*92. Some commentators have suggested that the Supreme Court, in Massachusetts v. Environmental Protection Agency, recognized a “special form” of state standing based on sovereignty. See, e.g., Ryke Longest, Massachusetts versus EPA: Parens Patriae Vindicated, 18 DUKE ENVIR. L. & POL’Y FORUM 277 (2008); Bradford Mank, Should States Have Greater Standing Rights Than Ordinary Citizens? Massachusett v. EPA’s New Standing Test for States, Univ. of Cincinnati College of Law Scholarship & Publications No. 1-1-2008 (2008), available at http://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1137&context=fac_pubs. For further discussion of this case, CRS Report RS22665, The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA, by Robert Meltz. 105 Texas, 2015 U.S. Dist. LEXIS 18551, at *110-*112. The court also indicated that it viewed this case as akin to prior cases wherein the executive adopted a general policy of not enforcing a statute in a way that benefited ineligible recipients, and not as akin to those cases wherein the executive declined to enforce violations of a statute against specific individuals. Id. at *112-*113. Questions have been raised about the court’s analysis of standing, in part, because the federal district court for the District of Columbia found, in a December 23, 2014, decision, that Sheriff Joe Arpaio of Maricopa County, Arizona, lacked standing to raise similar challenges to DAPA and the DACA expansion. See Arpaio, 27 F. Supp. 3d 185. (This decision has been appealed). However, the court in Texas expressly rejected the states’ claims based on harms like those noted by Sheriff Arpaio, such as DAPA allegedly promoting further unlawful migration. See, e.g., Texas, 2015 U.S. Dist. LEXIS 18551, at *49-*50. The Fifth Circuit’s recent decision affirming the dismissal of the challenge to the 2012 DACA initiative brought by the State of Mississippi, among others, is also arguably distinguishable in that the Fifth Circuit found that Mississippi lacked standing to challenge the DACA program because its alleged injury—a cost to the state of more than $25 million per year due to “illegal aliens” residing there—was “purely speculative.” See Crane IV, 2015 U.S. App. LEXIS 5573.Mississippi had relied upon a 2006 study—which predated DACA—to demonstrate these costs but, according to the court, there was no “concrete evidence” in the record that Mississippi’s costs increased, or would increase, as a result of DACA. Id. 102 c11173008 Congressional Research Service 16 State Challenges to Federal Enforcement of Immigration Law . action”;106 (2) the states are within the “zone of interests” protected by federal immigration laws;107 and (3) there are no applicable “exceptions” to review under the APA.108 The “finality” of the DAPA memorandum—that it “mark[s] the consummation of the agency’s decision making process” and is an action “from which legal consequences will flow”—does not appear to have been seriously questioned by the court given that the memorandum orders agency personnel to take certain actions and establishes DHS’s obligations. The memorandum also, in the court’s view, “confers upon its beneficiaries the right to stay in the country lawfully.”109 The court similarly viewed the states as being within the “zone of interests” protected by the immigration laws based, in part, on its finding that the “acts of Congress deeming [unauthorized aliens] removable were passed ... to protect the States and their residents.”110 The question of whether any “exceptions to review” might apply, however, prompted more extended discussion by the court, particularly given the Administration’s argument that DAPA represents an exercise of enforcement discretion and, as such, is presumptively immune from review under the precedent of Heckler v. Chaney.111 The court rejected this argument by first noting that it views the presumption of reviewability as inapplicable here because DAPA involves more than the executive not taking action to remove individual aliens.112 Rather, in the court’s view, DAPA represents an “affirmative action” “that awards legal presence[] to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability of travel.”113 In drawing this contrast, the court emphasized that the executive had not taken enforcement action as to potential DAPA beneficiaries “for the last five years” (or more) prior to DAPA. Had the Administration continued its prior practice of nonenforcement, its actions would, in the court’s view, have been immune from judicial review because they involve the exercise of enforcement discretion.114 However, the court took the position that creating a program whereby aliens who met specified criteria are essentially assured of receiving deferred action—and thereby becoming eligible for other benefits—is another matter.115 The court also found, in the alternative, that even if its characterization of DAPA were rejected and a presumption of nonreviewability were found to apply, the presumption could be rebutted in this case. The court did so because, in its view, the INA requires that unauthorized aliens be 106 Texas, 2015 U.S. Dist. LEXIS 18551, at *126-*130. Id. at *130-*138. 108 Id. at *138-*149. 109 Id. at *126-*127. 110 Id. at *132. 111 Id. at *138-*139. In Heckler, the Supreme Court held that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” 470 U.S. at 831. The Court noted that agency enforcement decisions, like prosecution decisions, involve a ”complicated balancing”of agency interests and resources—a balancing that the agency is “better equipped” to evaluate than the courts. Id. The Heckler opinion proceeded to establish the general rule that an “agency’s decision not to take enforcement action should be presumed immune from judicial review.” Id. at 831. However, the Court indicated that this presumption may be overcome “where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 833. 112 Texas, 2015 U.S. Dist. LEXIS 18551, at *139-*149. 113 Id. at *144. 114 Id. at *145. 115 Id. at *148-*149. 107 c11173008 Congressional Research Service 17 State Challenges to Federal Enforcement of Immigration Law . placed in removal proceedings,116 and Heckler recognizes an exception to the general presumption of nonreviewability in cases where a “substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.”117 In so finding, the court relied, in part, upon the same provisions of INA §235 that another federal district court had relied upon in finding that DACA is prohibited by the INA (see Mississippi’s Claims in Crane v. Napolitano), although it did not expressly reference that court’s opinion.118 (The Crane court later found that it lacked jurisdiction over the plaintiffs’ claims, a decision which was affirmed on appeal in an opinion by the Fifth Circuit which arguably adopted (but did not directly rule on) an alternate interpretation of INA §235.)119 The court expressly rejected the Administration’s argument that DAPA can be seen as within the executive’s discretion under statutory provisions which authorize the Secretary of Homeland Security to “establish such regulations ... as he deems necessary for carrying out his authority” under the INA (8 U.S.C. §1103), as well as to “[e]stablish national immigration enforcement policies and priorities” (6 U.S.C. §202). In so doing, the court noted that it viewed 6 U.S.C. §202, in particular, as giving the executive discretion to determine its enforcement priorities.120 However, the court emphasized that these priorities are neither directly at issue here nor unlawful.121 The court similarly rejected the view that the executive’s historical practice of granting deferred action to unauthorized aliens can be seen to justify DAPA, or to reflect congressional acquiescence to this practice.122 Failure to Engage in Rulemaking Having found that DAPA is reviewable, the court then found that the memorandum establishing DAPA and the DACA expansion (“the DAPA memorandum”) constitutes a substantive rule, but was issued without compliance with the notice-and-comment rulemaking generally required for such rules under the APA.123 In reaching this conclusion, the court first noted that it viewed neither party as having seriously questioned whether the DAPA memorandum constitutes a “rule” for purposes of the APA.124 It then rejected the Administration’s argument that the DAPA memorandum represents an interpretative rule, not a substantive one, on the grounds that the memorandum cabins agency discretion and effects a substantial change in existing law.125 The court concluded that the DAPA memorandum cabins agency discretion by distinguishing between the language in the memorandum, which provides that deferred action is to be granted on a case116 Id. at *150-*167. Id. at *150 (quoting Heckler, 470 U.S. at 832-33). 118 Id. at *150-*151. 119 See supra note 76. 120 Texas, 2015 U.S. Dist. LEXIS 18551, at *154-*160. 121 Id. at *117-*118, *156-*157. 122 Id. at *171-*172. 123 The court’s focus upon what it viewed as procedural defects in the implementation of DAPA should not be taken to mean that the Administration may simply implement DAPA, or the DACA expansion, by promulgating a regulation to this effect. Rather, the question would then be whether the programs are within the Administration’s authority, including as a matter of constitutional law, something which the court did not address in its February decision, but is currently considering. 124 Id. at *173-*174. 125 Id. at *174-*195. 117 c11173008 Congressional Research Service 18 State Challenges to Federal Enforcement of Immigration Law . by-case basis in the executive’s discretion, and the Administration’s past practice in implementing DACA, which has generally been to grant deferred action to aliens who meet the eligibility criteria.126 As to the DAPA memorandum’s effects on existing law, the court similarly noted that DAPA represents a “massive change in immigration practice,” turning “illegal status” into “lawful presence” for some 4.3 million aliens, whereas the executive had granted deferred action to only approximately 1,000 aliens per year prior to the implementation of DACA in 2012.127 The court further emphasized that it viewed the granting of deferred action to DAPA beneficiaries as contrary to the immigration laws, which the court views as generally requiring their removal.128 Motion to Stay the Injunction, Appeal to the Fifth Circuit The federal government filed an emergency expedited motion to stay the injunction with the district court,129 and appealed the district court’s decision to the Fifth Circuit.130 The district court rejected the motion to stay in a decision issued on April 7, 2015, which broadly indicated that the court viewed its “original findings and rulings” as “correct.”131 The district court did, however, respond to arguments that it characterized as “either new or ... not necessarily emphasized during the prior hearing.”132 In particular, the court rejected the federal government’s arguments (1) that implementation of DAPA and the DACA expansion should be enjoined only in Texas, and not in other states,133 and (2) that immediate implementation of these programs is necessary to secure the border, among other things.134 Subsequently, on April 17, 2015, the Fifth Circuit heard oral 126 Id. at *186-*187. Id. at *103 n.46. 128 Id. at *194-*185. 129 See, e.g., Texas v. United States, No. 1:14-cv-254, Defendants’ Supplement to Emergency Expedited Motion to Stay (S.D. Tex., filed Mar. 12, 2015) (copy on file with the author). The district court’s injunction applies only to the implementation of DAPA and the 2014 expansion of DACA. It does not apply to the 2012 DACA program, or to any of the other actions announced by the Obama Administration on November 20, 2014 (e.g., granting parole to certain inventors and entrepreneurs). 130 See, e.g., Texas v. United States, No. 15-40238, Appellants’ Emergency Motion for Stay Pending Appeal (5th Cir., filed Mar. 12, 2015) (copy on file with the author). 131 Texas, 2015 U.S. Dist. LEXIS 45483 at *10. 132 Id. 133 This argument was raised, in part, because the district court focused on Texas’s injuries as a result of DAPA when finding that the plaintiffs had standing to pursue their claims. Because the court made “no specific findings” as to the injuries of the other plaintiff states, the federal government asserted that the court lacked jurisdiction to enjoin the implementation of DAPA and the DACA expansion in states other than Texas. Id. at *11. The court disagreed, on the grounds that each and every plaintiff need not produce sufficient evidence of any injury caused by defendant’s actions at the preliminary injunction stage of proceedings. Id. at *11-*12. The court also rejected the federal government’s argument that the scope of the injunction should be limited to Texas, in part, because it viewed the nationwide scope of the injunction as consistent with the constitutional requirement that there be a “uniform rule of naturalization.” Id. at *26. It also noted that the Administration had, in its view, taken positions in prior litigation that are inconsistent with its current position that requests for deferred action should be treated differently in Texas. Id. at *26-*27. The court further noted that insofar as the government violated the procedural requirements of the APA when announcing DAPA and the DACA expansion, this violation affects the entire nation, not just one state. Id. at *28. 134 The federal government’s argument here was that, if DAPA and the DACA expansion were implemented, immigration agents would not have to spend time processing aliens whose deferred action status indicates they are “low priorities” for removal. Id. at *28-*29. Instead, immigration agents could concentrate on those unauthorized aliens who have committed criminal offenses or recently entered the United States. Id. The court, however, found this argument unpersuasive because it does not view the federal government as needing the specific documentation resulting from the implementation of DAPA and the DACA expansion to accomplish this goal. Instead, the court emphasized that the government could issue “documentation designating certain illegal immigrants as low-priority law enforcement targets (continued...) 127 c11173008 Congressional Research Service 19 State Challenges to Federal Enforcement of Immigration Law . arguments on the federal government’s appeal of the district court’s decision enjoining implementation of DAPA and the DACA expansion. Like the district court’s decision, this hearing centered upon whether Texas and the other plaintiff states (1) have standing; (2) challenge actions that are committed to agency discretion as a matter of law; and (3) are likely to prevail in their argument that the memorandum authorizing DAPA and the DACA expansion constitutes a “substantive rule,” but was issued without compliance with the notice-and-comment procedures required for such rules under the APA. The district court has not addressed the merits of the states’ other arguments, including the argument that DAPA and the DACA expansion run afoul of the Constitution and the INA, but is currently considering them.135 Conclusion It remains to be seen how the Fifth Circuit may rule on appeal, or how the district court may rule on the states’ substantive (as opposed to procedural) challenges to DAPA and the DACA expansion. However, even assuming that the district court’s February 2015 decision in Texas v. United States withstands appeal, states’ ability to challenge alleged federal “failures” to enforce the immigration laws in the future may be more limited than it might first appear.136 The 2015 Texas decision does mark the first time that a state has obtained a court order directing the federal government to take certain actions (i.e., delaying implementation of DAPA and the DACA expansion) in response to state allegations that the federal government is failing to enforce the INA. On the other hand, the facts and circumstances involved in the 2015 Texas decision are arguably distinguishable from those in earlier cases and, thus, potentially limit this decision’s relevance to any future state challenges to federal enforcement of the immigration laws. First, there are the specific facts and circumstances which prompted the district court to find that Texas, in particular, has Article III standing to challenge DAPA and the DACA expansion. This finding was based, in part, on Texas’s documentation of the costs it would incur in issuing driver’s licenses to DAPA beneficiaries.137 Moreover, because the federal government had advocated a position in prior litigation over the issuance of driver’s licenses to DACA beneficiaries that Texas asserted would result in the federal government requiring it to issue driver’s licenses to DAPA beneficiaries, Texas was also able to avoid any potential counterargument that these costs arose due to state law or the Constitution, and not the federal government’s actions. Both factors were arguably significant. Mississippi’s alleged injury in Crane, for example, was seen as inadequate for standing because Mississippi did not show that (...continued) without additionally awarding [the] legal status and other benefits” that flow from a grant of deferred action. According to the court, the federal government “has always had the ability” to designate certain aliens as low priorities for removal (separate and apart from granting them deferred action), and the “injunction does not affect this.” Id. at *29. 135 Several aspects of the district court’s discussion of the plaintiffs’ standing, the reviewability of DAPA and the DACA expansion, and the procedural requirements of the APA could, however, be taken to mean that the district court views these programs as running afoul of the INA. See supra notes 100 and 118 and accompanying text. 136 It is also worth noting that the district court found for the plaintiffs on their procedural challenge to DAPA and the DACA expansion (i.e., how these programs were implemented). It did not address the plaintiffs’ substantive challenge to the programs (i.e., whether they are within the executive’s authority). 137 See supra notes 95-99 and accompanying text. c11173008 Congressional Research Service 20 State Challenges to Federal Enforcement of Immigration Law . the implementation of DACA had increased, or will increase, its costs.138 Certain claims in the mid-1990s litigation similarly failed because the states were seen as incurring certain costs associated with unauthorized aliens because of grant conditions (to which the state had agreed), state laws, or constitutional requirements, and not the dictates of the federal government.139 Had either of these factors been lacking (i.e., had Texas not been able to cite specific costs, or argue that it is compelled to bear these costs by the federal government), it is unclear that the district court would have reached the same conclusions as to standing. Second, and relatedly, there is the specific form that the federal government’s alleged failure to enforce the immigration laws took in the 2015 Texas decision. Namely, the Obama Administration proposed to grant deferred action (one type of relief from removal) to certain unauthorized aliens, a proposal which could result in those aliens becoming eligible for certain “benefits” under existing law (e.g., work authorization, Social Security numbers).140 In finding that this particular form of nonenforcement of the immigration laws is subject to judicial review, the district court repeatedly emphasized that it views the granting of deferred action as involving an “affirmative action” on the executive’s part,141 and not simply a matter of an agency’s enforcement priorities142 or nonenforcement of the laws as to individual aliens and groups of aliens.143 Both of these (i.e., enforcement priorities, nonenforcement as to individuals) would appear to be within the executive’s discretion, in the court’s view, and thus not subject to judicial review.144 Indeed, the district court even suggested, in denying the federal government’s emergency expedited motion to stay the injunction, that immigration officials could achieve their purpose of designating potential DAPA beneficiaries as “low priorities” for removal by giving them written documentation to this effect, so long as this documentation does not involve a grant of deferred action.145 That the district court viewed certain provisions in INA §235 as requiring 138 See supra “Mississippi’s Claims in Crane v. Napolitano.” See supra “Litigation in the Mid-1990s” and “Tenth Amendment.” The states’ claims in the mid-1990s were based on federal commandeering. However, similar concerns about whether particular costs are due to federal actions in not removing unauthorized aliens have been raised in discussions of standing in other cases. See, e.g., Arpaio, 27 F. Supp. 3d at 201-205. 140 See generally 8 C.F.R. §274a.12(c)(14) (providing for the issuance of work authorization to aliens granted deferred action who can show an “economic necessity for employment”); 8 C.F.R. §1.3(a)(4)(vi) (providing that aliens granted deferred action are “lawfully present” “for purposes of applying for Social Security benefits”). 141 Texas, 2015 U.S. Dist. LEXIS 18551, at *144. 142 Id. at *118-*120. 143 Id. at *45 (“The DHS [Department of Homeland Security] has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of DAPA, that is what the DHS has been doing for these recipients for the last five years—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for ‘administrative convenience.’ Had the States complained only of the DHS’ mere failure to (or decision not to) prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have been based on the inaction of the agency in its refusal to enforce. In such a case, the Court may have been without any ‘focus for judicial review.’”). 144 In taking the view that the executive’s actions might not have been reviewable had it continued as it had as to the potential DAPA beneficiaries (i.e., not removing them, but not granting them deferred action), the court could be seen as taking the view that the number of aliens as to whom the INA is allegedly not enforced is not dispositive in determining whether the action is judicially reviewable or permissible. See supra note 144. 145 Texas, 2015 U.S. Dist. LEXIS 45483, at *29 (“The DHS could conduct the same investigation and provide ... documentation designating certain illegal immigrants as low-priority law enforcement targets without additionally awarding legal status and the other benefits previously described in detail. (In fact, the DHS has always had the ability to do this. This Court’s injunction does not affect this ability.)”). 139 c11173008 Congressional Research Service 21 State Challenges to Federal Enforcement of Immigration Law . that unauthorized aliens be removed is arguably also significant, since the court cited this purported requirement both in finding that the states have prudential standing and in finding that DAPA and the DACA expansion are judicially reviewable.146 A similar outcome might not have resulted had the states challenged the executive’s enforcement priorities per se; its decision not to pursue removal against some or all unauthorized aliens, separate and apart from the granting of deferred action; or its compliance with statutory provisions which the court did not see as imposing nondiscretionary requirements on the executive. Author Contact Information Kate M. Manuel Legislative Attorney kmanuel@crs.loc.gov, 7-4477 146 c11173008 See supra notes 100 and 118 and accompanying text. Congressional Research Service 22