Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 1 of 50

United State: District 00m
"m
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS FEB 1 6 2015
BROWNSVILLE DIVISION
MMBradhy. neck of Court
STATE OF TEXAS, ET AL., 
Plaintiffs, 

v. CIVIL No. 3-14-254

UNITED STATES OF AMERICA, ET AL., 
Defendants. 

MEMORANDUM OPINION AND ORDER

This is a case in which twenty-six states or their representatives are seeking injunctive
relief against the United States and several of?cials of the Department of Homeland Security to
prevent them from implementing a program entitled ?Deferred Action for Parents of Americans
and Lawful Permanent Residents.? 1 This program is designed to provide legal presence to over
four million individuals who are currently in the country illegally, and would enable these
individuals to obtain a variety of both state and federal bene?ts.

The genesis of the problems presented by illegal immigration in this matter was described
by the United States Supreme Court decades ago:

Sheer incapability or lax enforcement of the laws barring entry into this country,

coupled with the failure to establish an effective bar to the employment of

undocumented aliens, has resulted in the creation of a substantial ?shadow
population? of illegal migrants?numbering in the millions?within our borders.

 

1 The Plaintiffs include: the State of Texas; State of Alabama; State of Arizona; State of Arkansas; State of Florida;
State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Louisiana; State of Montana; State of
Nebraska; State of North Dakota; State of Ohio; State of Oklahoma; State of South Carolina; State of South Dakota;
State of Utah; State of West Virginia; State Of Wisconsin; Attorney General Bill Schuette, PeOple of Michigan;
Governor Phil Bryant, State of Mississippi; Governor Paul R. LePage, State of Maine; Governor Patrick L.
McCrory, State of North Carolina; and Governor C. L. ?Butch? Otter, State of Idaho. The States of Tennessee and
Nevada were added in the latest Amended Complaint. All of these plaintiffs, both individuals and states, will be
referred to collectively as ?States? or ?Plaintiffs? unless there is a particular need for speci?city.

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 2 of 50

The Attorney General recently estimated the number of illegal
aliens within the United States at between 3 and 6 million. In
presenting to both the Senate and House of Representatives several
Presidential proposals for reform of the immigration
laws?including one to ?legalize? many of the illegal entrants
currently residing in the United States by creating for them a
special statute under the immigration laws?the Attorney General
noted that this subclass is largely composed of persons with a
permanent attachment to the Nation, and that they are unlikely to
be displaced from our territory.

?We have neither the resources, the capability, nor
the motivation to uproot and deport millions of
illegal aliens, many of whom have become, in
effect, members of the community. By granting
limited legal status to the productive and law-
abiding members of this shadow population, we will
recognize reality and devote our enforcement
resources to deterring future illegal arrivals.? Joint
Hearing before the Subcommittee on Immigration,
Refugees, and International Law of the House
Committee on the Judiciary and the Subcommittee
on Immigration and Refugee Policy of the Senate
Committee on the Judiciary, 97th Cong, Sess., 9
(1981) (testimony of William French Smith,
Attorney General).

This situation raises the specter of a permanent caste of undocumented resident

aliens, encouraged by some to remain here as a source of cheap labor, but

nevertheless denied the bene?ts that our society makes available to citizens and

lawful residents. The existence of such an underclass presents most dif?cult

problems for a Nation that prides itself on adherence to principles of equality

under law.
Plyler v. Doe, 457 US. 202, 218-19 n.17 (1982). Thus, even in 1982, the Supreme Court
noted in Plyler that the United States? problems with illegal immigration had existed for decades.
Obviously, these issues are still far from a ?nal resolution.

Since 1982, the population of illegal aliens in this country has more than tripled, but

today?s situation is clearly exacerbated by the specter of terrorism and the increased need for

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 3 of 50

security.2 Nevertheless, the Executive Branch?s position is the same as it was then. It is still
voicing concerns regarding its inability to enforce all immigration laws due to a lack of
resources. While Congress has not been idle, having passed a number of ever-increasing
appropriation bills and various acts that affect immigration over the last four decades (especially
in the wake of the terrorist attacks in 2001), it has not passed nor funded a long term,
comprehensive system that resolves this country?s issues regarding border security and
immigration. To be sure, Congress? and the Executive Branch?s focus on matters directly
affecting national security is understandable. This overriding focus, however, does not
necessarily comport with the interests of the states. While the States are obviously concerned
about national security, they are also concerned about their own resources being drained by the
constant in?ux of illegal immigrants into their respective territories, and that this continual ?ow
of illegal immigration has led and will lead to serious domestic security issues directly affecting
their citizenry. This in?ux, for example, is causing the States to experience severe law
enforcement problems.3 Regardless of the reasons behind the actions or inaction of the
Executive and Legislative Branches of the federal government, the result is that many states

ultimately bear the brunt of illegal immigration.

 

2 The Court uses the phrases ?illegal immigrant? and ?illegal alien? interchangeably. The word ?immigran is not
used in the manner in which it is de?ned in Title 8 of the United States Code unless it is so designated. The Court
also understands that there is a certain segment of the population that ?nds the phrase ?illegal alien? offensive. The
Court uses this term because it is the term used by the Supreme Court in its latest pronouncement pertaining to this
area of the law. See Arizona v. United States, 132 S. Ct. 2492, 2497 (2012).

3 See Arizona v. United States, as quoted on p. 58 of this opinion. For example, as the Court writes this opinion,
Brownsville police have been investigating the kidnapping of a local university student. The student was reportedly
kidnapped at gunpoint by a human traf?cker a few miles from this Courthouse and forced to transport the traf?cker
and an alien who had just crossed the border (the Rio Grande River) from the university campus to their destination.
See Tiffany Huertas, UT ?Brownsville Students an Alert Following Reported Gunpoint Kidnapping, Action 4 News,
Feb. 4, 2015, 

3

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 4 of 50

This case examines complex issues relating to immigration which necessarily involve
questions of federalism, separation of powers, and the ability and advisability, if any, of the
Judiciary to hear and resolve such a dispute.

Chief Justice Roberts wrote in National Federation of Independent Business v. Sebelius:

We [the judiciary] do not consider whether the [Patient Protection and Affordable

Care] Act embodies sound policies. That judgment is entrusted to the Nation?s

elected leaders. We ask only whether Congress has the power under the
Constitution to enact the challenged provisions.



Nearly two centuries ago, Chief Justice Marshall observed that ?the question

respecting the extent of the powers actually granted? to the Federal Government

?is perpetually arising, and will probably continue to arise, as long as our system

shall exist.? In this case, we must again determine whether the Constitution

grants Congress powers it now asserts, but which many States and individuals

believe it does not possess.
132 S. Ct. 2566, 2577 (2012) (quoting McCulloch v. Maryland, 17 US. 316, 404 (1819)).
I. THE ISSUES BEFORE AND NOT BEFORE THE COURT

Although this Court is not faced with either a Congressional Act or an Executive Order,
the sentiment expressed by these Chief Justices is nonetheless applicable. The ultimate question
before the Court is: Do the laws of the United States, including the Constitution, give the 
Secretary of Homeland Security the power to take the action at issue in this case? Nevertheless,
before the Court begins to address the issues raised in this injunctive action, it ?nds that the
issues can best be framed by emphasizing what is not involved in this case.

First, this case does not involve the wisdom, or the lack thereof, underlying the decision

by Department of Homeland Security Secretary Jeh Johnson to award legal presence

status to over four million illegal aliens through the Deferred Action for Parents of Americans

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 5 of 50

and Lawful Permanent Residents also referred to interchangeably as the 
Directive? and the Memorandum?) program. Although the Court will necessarily be
forced to address many factors surrounding this decision and review the relationship between the
Legislative and Executive Branches as it pertains to the DHS Secretary?s discretion to act in this
area, the actual merits of this program are not at issue.

Second, with three minor exceptions, this case does not involve the Deferred Action for
Childhood Arrivals program. In 2012, DACA was implemented by then DHS
Secretary Janet Napolitano. The program permits teenagers and young adults, who were born
outside the United States, but raised in this country, to apply for deferred action status and
employment authorizations. The Complaint in this matter does not include the actions taken by
Secretary Napolitano, which have to date formalized the status of approximately 700,000
teenagers and young adults. Therefore, those actions are not before the Court and will not be
addressed by this opinion. Having said that, DACA will necessarily be discussed in this opinion
as it is relevant to many legal issues in the present case. For example, the States maintain that
the DAPA applications will undergo a process identical to that used for DACA applications and,
therefore, policies and procedures will be instructive for the Court as to 
implementation.

Third, several of the briefs have expressed a general public perception that the President
has issued an executive order implementing a blanket amnesty program, and that it is this
amnesty program that is before the Court in this suit. Although what constitutes an amnesty
program is obviously a matter of opinion, these opinions do not impact the Court?s decision.

Amnesty or not, the issues before the Court do not require the Court to consider the public

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 6 of 50

popularity, public acceptance, public acquiescence, or public disdain for the DAPA program. As
Chief Justice Roberts alluded to above, public opinions and perceptions about the country?s
policies have no place in the resolution of ajudicial matter.

Finally, both sides agree that the President in his of?cial capacity has not directly
instituted any program at issue in this case. Regardless of the fact that the Executive Branch has
made public statements to the contrary, there are no executive orders or other presidential
proclamations or communique that exist regarding DAPA. The DAPA Memorandum issued by
Secretary Johnson is the focus in this suit.

That being said, the Court is presented with the following principle issues: 1) whether
the States have standing to bring this case; (2) whether the DHS has the necessary discretion to
institute the DAPA program; and (3) whether the DAPA program is constitutional, comports
with existing laws, and was legally adopted. A negative answer to the first question will negate
the need for the Court to address the latter two. The factual statements made hereinafter (except
where the Court is discussing a factual diSpute) should be considered as ?ndings of fact
regardless of any heading or lack thereof. Similarly, the legal conclusions, except where the
Court discusses the various competing legal theories and positions, should be taken as
conclusions of law regardless of any label or lack thereof. Furthermore, due to the overlap
between the standing issues and the merits, there is by necessity the need for a certain amount of
repetition.

II. HISTORY OF THIS LITIGATION
On November 20, 2014, Jeh Johnson, in his position as Secretary of the DHS, issued

multiple memoranda to Leon Rodriguez, Director of the United States Citizenship and

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 7 of 50

Immigration Services Thomas S. Winkowski, Acting Director of the United States
Immigration and Customs Enforcement and R. Gil Kerlikowske, Commissioner of the
United States Customs and Border Protection One of these memoranda contained an
order establishing a new program utilizing deferred action to stay deportation proceedings and
award certain bene?ts to approximately four to ?ve million individuals residing illegally in the
United States. The present case, ?led in an attempt to enjoin the rollout and implementation of
this program, was initiated by the State of Texas and twenty-?ve other states or their
representatives. Speci?cally, the States allege that the Secretary?s actions violate the Take Care
Clause of the Constitution and the Administrative Procedure Act See US Const. art.
II, 3; 5 U.S.C. 500 et seq.4 The States ?led this suit against DHS Secretary Johnson and the
individuals mentioned above, as well as Ronald D. Vitiello, the Deputy Chief of the United
States Border Patrol, and the United States of America.5 In response to Plaintiffs? suit, the
Defendants have asserted two main arguments: (1) the States lack standing to bring this suit; and
(2) the States? claims are not meritorious.

Multiple amici curiae have made appearances arguing for one side of this controversy or
the other. Several separate attempts have been made by individuals?at least one attempt
seemingly in support of Plaintiffs, and one in support of Defendants?to intervene in this
lawsuit. Both the States and the Government opposed these interventions. Because the Court

had already implemented a schedule in this time-sensitive matter that was agreed to by all

 

4 Most authorities seem to indicate that the original Constitution the ?Take Care Clause" actually was the ?take Care
Clause? with the in ?take? being lowercase. The Court will use upper case for the sake of consistency.

5 All of these Defendants will be referred to collectively as the ?Government? or the ?Defendants? unless there is a
particular need for speci?city.

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 8 of 50

existing parties, it denied these attempts to intervene without prejudice. Permitting the
intervention of new parties would have been imprudent, as it would have unduly complicated
and delayed the orderly progression of this case. See Fed. R. Civ. P. Further,
this Court notes that the interests of all putative intervenors are more than adequately represented
by the Parties in this lawsuit.6 As suggested by Fifth Circuit authority, the Court has reviewed
their pleadings as if they were amici curiae. See Bush v. Viterna, 720 F.2d 350, 359 (5th Cir.
1984) (per curiam).
BACKGROUND

A. Factual Background

For some years now, the powers that be in Washington?namely, the Executive Branch
and Congress?have debated if and how to change the laws governing both legal and illegal
immigration into this country. This debate has necessarily included a wide-ranging number of
issues including, but not limited to, border security, law enforcement, budgetary concerns,
employment, social welfare, education, positive and negative societal aspects of immigration,
and humanitarian concerns. The national debate has also considered potential solutions to the
myriad of concerns stemming from the millions of individuals currently living in the country

illegally. To date, however, neither the President nor any member of Congress has proposed

 

6 While one set of the putative intervenors is allegedly covered by Secretary Johnson?s memorandum and may be
affected by this ruling, there was no intervention as a matter of right because there is no federal statute that gives
them an unconditional right to intervene nor does this lawsuit involve property or a transaction over which they
claim a property interest. See Fed. R. Civ. P. 24(3).

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 9 of 50

legislation capable of resolving these issues in a manner that could garner the necessary support
to be passed into law.7

On June 15, 2012, DHS Secretary Janet Napolitano issued a memorandum creating the
DACA program, which stands for ?Deferred Action for Childhood Arrivals.? Speci?cally,
Secretary Napolitano?s memorandum instructed her Department heads to give deferred action
status to all illegal immigrants who:

1. Came to the United States before age sixteen;

2. Continuously resided in the United States for at least ?ve years prior to
June 15, 2012 and were in the United States on June 15, 2012;

3. Were then attending school, or had graduated from high school, obtained a
GED, or were honorably discharged from the military;

4. Had not been convicted of a felony, signi?cant misdemeanor, multiple
misdemeanors, or otherwise pose a threat to national security; and

5. Were not above the age of thirty.
Doc. No. 38, Def. Ex. 19 (June 15, 2012 DACA Memorandum issued by Secretary Napolitano).
This Directive applies to all individuals over the age of ?fteen that met the criteria, including
those currently in removal proceedings as well as those who are newly-encountered by the DHS.
In addition, DHS employees were instructed to accept work authorization applications from
those individuals awarded deferred action status under DACA. While exact numbers regarding
the presence of illegal aliens in this country are not available, both sides seem to accept that at
least 1.2 million illegal immigrants could qualify for DACA by the end of 2014. Doc. No. 38,

Def. Ex. 21; Docthese individuals, approximately 636,000 have applied

 

7 Indeed this Court has received amict' curiae briefs from many members of Congress supporting the States? position
and at least one supporting the Government?s position. Additionally, many of?cials of local political units and
entities have also ?led amici curiae briefs supporting one side of this controversy or the other.

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 10 of 50

for and received legal presence status through DACA. Doc. No. 38, Def. Ex. 28. Both of these
?gures are expected to rise as children ?age in? and meet the program?s education requirements.
Doc. No. 38, Def. Ex. 6; Doc. No. 64, P1. Ex. 6. Estimates suggest that by the time all
individuals eligible for DACA ?age in? to the program, approximately 1.7 million individuals
will be eligible to receive deferred action. Doc. No. 38, Def. Ex. 21; Docreview of the DACA program, however, would not be complete without examining the
number of individuals who have applied for relief through the program but were denied legal
status: of the approximately 723,000 DACA applications accepted through the end of 2014, only
38,000?or about 5%??have been denied. Doc. No. 38, Def. Ex. 28. In response to a Senate
inquiry, the USCIS told the Senate that the top four reasons for denials were: (1) the applicant
used the wrong form; (2) the applicant failed to provide a valid signature; (3) the applicant failed
to ?le or complete Form I-765 or failed to enclose the fee; and (4) the applicant was below the
age of ?fteen and thus ineligible to participate in the program. DocApp. P.
0978. Despite a request by the Court, the Government?s counsel did not provide the number, if
any, of requests that were denied even though the applicant met the DACA criteria as set out in
Secretary Napolitano?s DACA memorandum. The Government?s exhibit, Doc. No. 130, Def.
Ex. 44, provides more information but not the level of detail that the Court requested.

The States contend and have supplied evidence that the DHS employees who process
DACA applications are required to issue deferred action status to any applicant who meets the

criteria outlined in Secretary Napolitano?s memorandum, and are not allowed to use any real

10

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 11 of 50

?discretion? when it comes to awarding deferred action status.8

Similarly, the President of the
National Citizenship and Immigration Services Council?the union that represents the
individuals processing the DACA applications?declared that the DHS management has taken
multiple steps to ensure that DACA applications are simply rubberstamped if the applicants meet
the necessary criteria. See Doc(Dec. of Kenneth Palinkas, President of
Nat?l Citizenship and Immigration Services Council) (hereinafter ?Palinkas Dec?). The States
also allege that the DHS has taken steps to ensure that applications for DAPA will likewise
receive only a proforma review.9

On November 20, 2014, following in his predecessor?s footsteps, Secretary Johnson
issued a memorandum to DHS of?cials instructing them to implement the DAPA program and

expand the DACA program in three areas. That memorandum, in pertinent part, states the

following:

 

8 In their latest ?ling with the Court, the Government repeated these four reasons given to Congress and added a
?fth: dishonesty or fraud in the application process, which of course is implied in any application process. Because
the Government could not produce evidence concerning applicants who met the program?s criteria but were denied
DACA status, this Court accepts the States? evidence as correct.

9 The own website states that, pursuant to the discretion granted to the DHS Secretary, its of?cers can use
their discretion to ?prevent qualifying individuals from being apprehended, placed into removal
proceedings, or removed.? Consideration of Deferred Action for Childhood Arrivals Process, Frequently Asked
Questions, Of?cial Website of the Dept. of Homeland Security, 
(last updated Feb. 11, 2015). Clearly the
discretion that exists belongs to the Secretary, who exercised it by delineating the DACA criteria; but if an applicant
meets the DACA criteria, he or she will not be removed. President Obama has stated that if the DAPA applicant
satis?es the delineated criteria, he or she will be permitted to remain in the United States. See Press Release,
Remarks by President Barack Obama in the President?s Address to the Nation on Immigration (N av. 11, 2014). The
DHS even provides a hotline number that individuals can call to make 'sure they can terminate removal proceedings
if they otherwise meet the criteria for relief under DACA. Consideration of Deferred Action for Childhood Arrivals
Process, Frequently Asked Questions, Of?cial Website of the Dept. of Homeland Security,

questions (last updated Feb. 11, 2015).

ll

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 12 of 50

A. Expanding DACA

DACA provides that those who were under the age of 31 on June 15, 2012, who
entered the United States before June 15, 2007 (5 years prior) as children under
the age of 16, and who meet speci?c educational and public safety criteria, are
eligible for deferred action on a case?by-case basis. The initial DACA
announcement of June 15, 2012 provided deferred action for a period of two
years. On June 5, 2014, U.S. Citizenship and Immigration Services (USCIS)
announced that DACA recipients could request to renew their deferred action for
an additional two years.

In order to further effectuate this program, I hereby direct USCIS to expand
DACA as follows:

Remove the age cap. DACA will apply to all otherwise eligible immigrants who
enter the United States by the requisite adjusted entry date before the age of
sixteen (16), regardless of how old they were in June 2012 or are today. The
current age restriction excludes those who were older than 31 on the date of the
announcement those who were born before June 15, 1981). That restriction
will no longer apply.

Extend DACA renewal and work authorization to three-years. The period for
which DACA and the accompanying employment authorization is granted will be
extended to three-year increments, rather than the current two-year increments.
This change shall apply to all ?rst-time applications as well as all applications for
renewal effective November 24, 2014. Beginning on that date, USCIS should
issue all work authorization documents valid for three years, including to those
individuals who have applied and are awaiting two-year work authorization
documents based on the renewal of their DACA grants. USCIS should also
consider means to extend those two-year renewals already issued to three years.

Adjust the date-of-entry requirement. In order to align the DACA program
more closely with the other deferred action authorization outlined below, the
eligibility cut-off date by which a DACA applicant must have been in the United
Sates should be adjusted from June 15, 2007 to January 1, 2010.

USCIS should begin accepting applications under the new criteria from applicants
no later than ninety (90) days from the date of this announcement.10

 

?0 The removal of the age cap, the program?s three-year extension, and the adjustment to the date of entry
requirement are the three exceptions mentioned above to the general proposition that the DACA program is not at
issue in this case.

12

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 13 of 50

B. Expanding Deferred Action

I hereby direct USCIS to establish a process, similar to DACA, for exercising
prosecutorial discretion through the use of deferred action, on a case-by-case
basis, to those individuals who:

- have, on the date of this memorandum, a son or daughter
who is a US. citizen or lawful permanent resident;

0 have continuously resided in the United States since before
January I, 2010;

- are physically present in the United States on the date of
this memorandum, and at the time of making a request for
consideration of deferred action with 

- have no lawful status on the date of this memorandum;

- are not an enforcement priority as re?ected in the
November 20, 2014 Policies for the Apprehension,
Detention and Removal of Undocumented Immigrants
Memorandum; and

- present no other factors that, in the exercise of discretion,
makes the grant of deferred action inappropriate.

Applicants must ?le the requisite applications for deferred action pursuant to the
new criteria described above. Applicants must also submit biometrics for USCIS
to conduct background checks similar to the background check that is required for
DACA applicants. Each person who applies for deferred action pursuant to the
criteria above shall also be eligible to apply for work authorization for the period
of deferred action, pursuant to my authority to grant such authorization re?ected
in section 274A(h)(3) of the Immigration and Nationality Act. Deferred action
granted pursuant to the program shall be for a period of three years. Applicants
will pay the work authorization and biometrics fees, which currently amount to
$465. There will be no fee waivers and, like DACA, very limited fee exemptions.

USCIS should begin accepting applications from eligible applicants no later than
one hundred and eighty (180) days after the date of this announcement. As with
DACA, the above criteria are to be considered for all individuals encountered by
US. Immigration and Customs Enforcement (ICE), US. Customs and Border
Protection (CBP), or USCIS, whether or not the individual is already in removal
proceedings or subject to a ?nal order of removal. Speci?cally:

13

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 14 of 50

- ICE and CBP are instructed to immediately begin
identifying persons in their custody, as well as newly
encountered individuals, who meet the above criteria and
may thus be eligible for deferred action to prevent the
further expenditure of enforcement resources with regard to
these individuals.

0 ICE is further instructed to review pending removal cases,
and seek administrative closure or termination of the cases
of individuals identi?ed who meet the above criteria, and to
refer such individuals to USCIS for case-by-case
determinations. ICE should also establish a process to
allow individuals in removal proceedings to identify
themselves as candidates for deferred action.

- USCIS is instructed to implement this memorandum
consistent with its existing guidance regarding the issuance
of notices to appear. The USCIS process shall also be
available to individuals subject to ?nal orders of removal
who otherwise meet the above criteria.

Under any of the proposals outlined above, immigration of?cers will be provided
with speci?c eligibility criteria for deferred action, but the ultimate judgment as to
whether an immigrant is granted deferred action will be determined on a case-by?
case basis.

This memorandum confers no substantive right, immigration status or pathway to
citizenship. Only an Act of Congress can confer these rights. It remains within
the authority of the Executive Branch, however, to set forth policy for the exercise
of prosecutorial discretion and deferred action within the framework of existing
law. This memorandum is an exercise of that authority.
Doc. No. 1, Pl. Ex. A (November 20, 2014 DAPA Memorandum issued by Secretary Johnson).
(emphasis in original). The Government relies on estimates suggesting that there are currently

11.3 million illegal aliens residing in the United States and that this new program will apply over four million Indivrduals.

 

?1 This 11.3 million ?gure is based upon a 2009 study from the Pew Research Center. The number appears to have
increased since then, with a 2013 study ?nding that 11.7 million illegal immigrants resided in the United States in
2012. Population Decline of Unauthorized Immigrants Stalls, May Have Reversed, Pew Research Center (Sept. 23,
2013). An estimated sixty percent of these illegal immigrants reside in California, Florida, Illinois, New Jersey,

14

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 15 of 50

Deferred action is not a status created or authorized by law or by Congress, nor has its
properties been described in any relevant legislative act. Secretary Johnson?s DAPA
Memorandum states that deferred action has existed since at least the 19605, a statement with
which no one has taken issue. Throughout the years, deferred action has been both utilized and
rescinded by the Executive Branch. 12 The practice has also been referenced by Congress in other
immigration contexts. See, e. 8 U.S.C. 227(d)(2). It was described by
the United States Supreme Court in Reno v. Arab-American Anti-Discrimination Committee as
follows:

To ameliorate a harsh and unjust outcome, the INS may decline to institute

proceedings, terminate proceedings, or decline to execute a ?nal order of

deportation. This commendable exercise in administrative discretion, developed
without express statutory authorization, originally was known as nonpriority and

is now designated as deferred action. A case may be selected for deferred action

treatment at any stage of the administrative process. Approval of deferred action

status means that, for the humanitarian reasons described below, no action will

thereafter be taken to proceed against an apparently deportable alien, even on

grounds normally regarded as aggravated.
525 U.S. 471, 484 (1999) (quoting 6 C. Gordon, S. Mailman S. Yale-Loehr, Immigration Law
and Procedure (1998)). It is similarly de?ned in 8 C.F.R. 

B. Factual Contentions

Secretary Johnson supported the implementation of DAPA with two main justi?cations.

First, he wrote that the DHS has limited resources and it cannot perform all of the duties assigned

to it, including locating and removing all illegal aliens in the country. Secretary Johnson claimed

 

New York, and Texas??with Texas being the only state whose illegal immigrant population increased between 2007
and 2011. Id. The Court will rely on the 11.3 million ?gure, however, since it is the one cited by the Parties.

12 The deferred action practice was apparently rescinded in 1979, and reinstituted in the 1981 INS Operating
Manual. The 1981 program was then rescinded in 1997. Nevertheless, after that date, the concept seems to have
been used by all subsequent administrations.

15

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 16 of 50

that the adoption of DAPA will enable the DHS to prioritize its enforcement of the immigration
laws and focus its limited resources in areas where they are needed most. Second, the Secretary
reasoned that humanitarian concerns also justify the program?s implementation.

Plaintiffs maintain that the Secretary?s justi?cations are conditions caused by the DHS,
are pretexts, or are simply inaccurate. Regarding resources, Plaintiffs argue that the DHS has
continued to be funded at record levels and is currently spending millions to create the enormous
bureaucracy necessary to implement this program.? The States additionally maintain that the
DAPA program was: politically motivated and implemented illegally. The ?rst pmposition is
not the concern of the Court; the second is. To support the latter proposition, the States quote
President Obama at length. First, they quote the President?s statements made prior to the
implementation of DAPA stating that he, as President, did not have the power under the
Constitution or the laws of this country to change the immigration laws. On these occasions, he
asserted that only Congress could implement these changes in this area of the law. From these
statements, the States reason that if the President does not have the necessary power to make
these changes, then the DHS Secretary certainly does not.

The States claim that following the announcement of the DAPA program, the President?s
rhetoric dramatically shifted. They cite statements made after the announcement of DAPA in

which the President is quoted as saying that because Congress did not change the law, he

 

?3 At oral argument, Defendants maintained that the fees charged to process DAPA applications will cover the cost
of the program, but had to concede that the DHS was already expending large sums of money to implement DAPA
and as of yet had not received any fees. According to the declaration of one INS employee, the DHS plans to begin
construction of a service center that will employ 700 DHS employees and 300 federal contract employees. See Doc(?Palinkas Dec?). His statement that the DHS is shifting resources away from other duties in
order to implement this program is certainly reasonable, especially since the USCIS admitted that it is shifting staff
to meet the DAPA demand. Executive Actions on Immigration: Key Questions and Answers, US. Customs 
Immigration Enforcement, (last updated Jan. 30, 2015). See id.

16

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 17 of 50

changed it unilaterally. The States argue that the DAPA program constitutes a signi?cant change
in immigration law that was not implemented by Congress. Agreeing with the President?s earlier
declarations, the States argue that only Congress can create or change laws, and that the creation
of the DAPA program violates the Take Care Clause of the Constitution and infringes upon any
notion of separation of powers. Further, they assert that the President has effectuated a change in
the law solely because he wanted the law changed and because Congress would not acquiesce in
his demands.

Obviously, the Government denies these assertions.

C. Legal Contentions

This case presents three discrete legal issues for the Court?s consideration. First, the
Government maintains that none of the Plaintiffs have standing to bring this injunctive action.
The States disagree, claiming that the Government cannot implement a substantive program and
then insulate itself from legal challenges by those who suffer from its negative effects. Further,
the States maintain that Secretary Johnson?s DAPA Directive violates the Take Care Clause of
the Constitution; as well as the Administrative Procedure Act and the Immigration and
Naturalization Act In opposition to the States? claims, the Government asserts that it
has complete prosecutorial discretion over illegal aliens and can give deferred action status to
anyone it chooses. Second, the Government argues that discretionary decisions, like the DAPA
program, are not subject to the APA. Finally, the Government claims that the DAPA program is
merely general guidance issued to DHS employees, and that the delineated elements of eligibility
are not requirements that DHS of?cials are bound to honor. The Government argues that this

?exibility, among other factors, exempts DAPA from the requirements of the APA.

17

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 18 of 50

IV. STANDING

A. Legal Standard

1. Article Standing

Article of the United States Constitution requires that parties seeking to resolve
disputes before a federal court present actual ?Cases? or ?Controversies.? US. Const. art. 111, 
2, cl. 1. This requirement limits ?the business of federal courts to questions presented in an
adversary context and in a form historically viewed as capable of resolution through the judicial
process.? Flast v. Cohen, 392 US. 83, 95 (1968). Plaintiffs, as the parties invoking the Court?s
jurisdiction, bear the burden of satisfying the Article requirement by demonstrating that they
have standing to adjudicate their claims in federal court. Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001). The ?irreducible constitutional minimum of standing contains three
elements.? Lujan v. Defenders of Wildlife, 504 US. 555, 560 (1992). First, a plaintiff must
demonstrate that they have ?suffered a concrete and particularized injury that is either actual or
imminent.? Massachusetts 12. E.P.A., 549 US. 497, 517 (2007). Second, a plaintiff must show
that there is a causal connection between the alleged injury and the complained-of conduct?
essentially, that ?the injury is fairly traceable to the defendant.? Id. Finally, standing requires
that it ?be ?likely,? as opposed to merely ?speculative,? that the injury will be ?redressed by a
favorable decision.?? Lujan, 504 US. at 560 (quoting Simon v. E. Ky. Welfare Rights Org, 426
US. 26, 41-42 (1976)).

2. Prudential Standing
In addition to these three constitutional requirements, ?the federal judiciary has also

adhered to a set of ?prudential? principles that bear on the question of standing.? Valley Forge

18

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 19 of 50

Christian Coll. v. Americans United for Separation of Church State, Inc, 454 US. 464, 474
(1982). Many opinions refer to these principles as being under the banner of ?prudential?
standing. See, e. Bennett v. Spear, 520 US. 154, 164 (1997). First, the Supreme Court has
held that when the ?asserted harm is a ?generalized grievance? shared in substantially equal
measure by all or a large class of citizens, that harm alone does not warrant exercise of
jurisdiction.? 1d. Rather, these ?abstract questions of wide public signi?cance? are more
appropriately left to the representative branches of the federal government. Warth v. Seldin, 422
US. 490, 500 (1975). Second, the plaintiffs must come within the ?zone of interests to be
protected or regulated by the statute or constitutional guarantee in question.? Valley Forge, 454
US. at 475 (quoting Ass ?n of Data Processing Serv. Organizations, Inc. 12. Camp, 397 US. 150,
153 (1970)). Finally, a plaintiff ?must assert his own legal rights and interests, and cannot rest
his claim to relief on the legal rights or interests of third parties.? Id. at 474 (quoting Warth, 422
US. at 499).
3. Standing Under the Administrative Procedure Act

The APA provides that a ?person suffering a legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant statute, is
entitled to judicial review thereof.? 5 U.S.C. 702. This right of judicial review extends to
agency actions ?for which there is no other adequate remedy in a court.? 5 U.S.C. 704. To
demonstrate standing under the APA, the plaintiff must Show that it has suffered or will suffer a
suf?cient injury in fact. Nat?l Credit Union Admin. v. First Nat ?1 Bank Trust Co., 522 US
479, 488 (1998). The plaintiff must also demonstrate prudential standing under the APA, which

requires showing that ?the interest sought to be protected by the complainant [is] arguably within

19

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 20 of 50

the zone of interests to be protected or regulated by the statute . . . in question.? Id. (quoting
Data Processing, 397 U.S. at 152). For this prudential standing inquiry, it is not necessary for a
court to ask ?whether there has been a congressional intent to bene?t the would-be plaintif 
Nat?l Credit Union Admin, 522 U.S. at 488-89. Rather, if the plaintiff?s interests are ?arguably
within the ?zone of interests? to be protected by a statute,? the prudential showing requirement is
satis?ed. 1d. at 492. This requisite showing is not made, however, if the plaintiff? interests are
?so marginally related to or inconsistent with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress intended to permit the suit.? Clarke v. Sec. Indus. Ass?n,
479 U.S. 388, 399 (1987).

When seeking review of agency action under the procedural provisions, Plaintiffs
are also operating under a favorable presumption. They are presumed to satisfy the necessary
requirements for standing. See Mendoza v. Perez, 754 F.3d 1002, 1012 (DC. Cir. 2014).
Speci?cally, as stated by the DC. Circuit, ?[p]laintiffs asserting a procedural rights challenge
need not show the agency action would have been different had it been consummated in a
procedurally valid mannermthe courts will assume this portion of the causal link.? Id.

B. Resolution of Standing Questions

Questions regarding constitutional and prudential standing implicate the court?s subject-
matter jurisdiction; thus challenges to standing are evaluated as a Rule 12(b)(1) motion to
dismiss for lack of subject-matter jurisdiction. See Fed. R. Civ. P. When evaluating
subject?matter jurisdiction, the court may consider: the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by

undisputed facts plus the court?s resolution of disputed facts.? Ramming, 281 F.3d at 161. The

20

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 21 of 50

court?s analysis also depends on whether the challenging party has made a ?facial? or ?factual?
attack on jurisdiction. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A facial
challenge consists of only a Rule motion without any accompanying evidence; for this
challenge, the court ?is required merely to look to the suf?ciency of the allegations in the
complaint because they are presumed to be true.? Id.

Conversely, when making a factual attack on the court?s jurisdiction, the challenging
party submits af?davits, testimony, or other evidentiary materials to support its claims. Id. A
factual attack requires the responding plaintiff ?to submit facts through some evidentiary
method? and prove ?by a preponderance of the evidence that the trial court does have subject
matter jurisdiction.? Id. Here, Defendants submitted a number of exhibits in support of their
attack on Plaintiffs? standing to bring this suit in federal court. Therefore, for the purposes of
ruling on Defendants? challenge, the Plaintiffs bear the burden to prove by a preponderance of
the evidence that they possess the requisite standing required by Article 111. It is not necessary,
however, for all Plaintiffs to demonstrate standing; rather, ?one party with standing is suf?cient
to satisfy Article case-or-controversy requirement.? Rumsfeld v. Forum for Academic and
Institutional Rights, Inc, 547 US. 47, 52 n.2 (2006). Thus Plaintiffs? suit may proceed as long
as one Plaintiff can show by a preponderance of the evidence that it ful?lls the necessary

requirements to show standing.

2]

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 22 of 50

C. Analysis
1. Article Standing
a. Injury

The States allege that the DHS Directive will directly cause signi?cant economic injury
to their ?scal interests. Speci?cally, Texas argues that the DHS Directive will create a new class
of individuals eligible to apply for driver?s licenses,14 the processing of which will impose
substantial costs on its budget. Plaintiffs rely on Texas? driver?s license program to demonstrate
how the costs associated with processing a wave of additional driver?s licenses will impact a
state?s budget. Texas? undocumented population is approximately 1.6 million, and Plaintiffs?
evidence suggests that at least 500,000 of these individuals will be eligible for deferred action
through DAPA. DocUnder current Texas law,
applicants pay $24.00 to obtain a driver?s license, leaving any remaining costs to be absorbed by
the state. See Tex. Transp. Code Ann. 521.421. If the majority of DAPA bene?ciaries
currently residing in Texas apply for a driver?s license, it will cost the state $198.73 to process
and issue each license, for a net loss of $174.73 per license. DocEven if
only 25,000 of these individuals apply for a driver?s license?approximately 5% of the
population estimated to bene?t from the DHS Directive in Texas?Texas will still bear a net loss

of $130.89 per license, with total losses in excess of several million dollars. Id. These costs,

 

?4 Some driver?s license programs, like that in Arkansas, provide that individuals with deferred action status will be
eligible to apply for a driver?s license. See, Ark. Code Ann. 27-16-1105. Other programs, like the one in
Texas, provide that a license will be issued to individuals who can show they are authorized to be in the country.
See, Tex. Transp. Code. Ann. 521.142. Employment authorization?a bene?t that will be available to
recipients of suf?cient to ful?ll this requirement. Thus under either statutory scheme, DAPA will make
its recipients eligible to apply for state driver?s licenses.

22

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 23 of 50

Plaintiffs argue, are not unique to Texas; rather, they will be similarly incurred in all Plaintiff
States where DAPA bene?ciaries will be eligible to apply for driver?s licenses.

In addition to these increased costs associated with processing a wave of additional
driver?s licenses, a portion of the States? alleged injury is directly traceable to fees mandated by
federal law. See REAL ID Act of 2005, PL 109-13, 119 Stat. 231 (2005). Following the passage
of the REAL ID Act in 2005, states are now required to determine the immigration status of
applicants prior to issuing a driver?s license or an identi?cation card. Id. To verify immigration
status, states must submit queries to the federal Systematic Alien Veri?cation for Entitlements
(SAVE) program and pay $050-$150 for each applicant processed. SAVE Access Methods 
Transaction Charges, USCIS. In Texas, estimates suggest that the state pays the federal
government on average $0.75 per driver?s license applicant for SAVE veri?cation purposes.
DocThus by creating a new group of individuals that are eligible to
apply for driver?s licenses, the DHS Directive will increase the costs incurred by states to verify
applicants? immigration statuses as required by federal law.15

As Defendants concede, ?a direct and genuine injury to a State?s own proprietary
interests may give rise to standing.? Doc. No. 38 at 23; see also, e. g, Clinton v. City of N. Y., 524
US. 417, 430-31 (1998) (negative effects on the ?borrowing power, ?nancial strength, and ?scal
planning? of a government entity are suf?cient injuries to establish standing); Sch. Dist. of City
of Pontiac ofEduc., 584 F.3d 253, 261 (6th Cir. 2009) (school districts
had standing ?based on their allegation that they must spend state and local funds? to comply

with federal law). Defendants in this case argue, however, that the projected costs to Plaintiffs?

 

15 In a procedural rights case, the size of the injury is not important for de?ning standing; rather it is the fact of the
injury. ?The litigant has standing if there is some possibility that the requested relief will prompt the injury causing
party to reconsider the decision.? Massachusetts v. E.P.A., 549 US. at 518, 525-26.

23

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 24 of 50

driver?s license programs are ?self-in?icted? because the DHS Directive does not directly require
states to provide any state bene?ts to deferred action recipients, and because states can adjust
their bene?t programs to avoid incurring these costs. Doc. No. 38 at 21-22. This assertion,
however, evaluates the DHS Directive in a vacuum. Further, this claim is, at best, disingenuous.
Although the terms of DAPA do not compel states to provide any bene?ts to deferred action
recipients, it is clear that the DHS Directive will nonetheless affect state programs. Speci?cally,
in the wake of the Ninth Circuit?s decision in Arizona Dream Act Coalition v. Brewer, it is
apparent that the federal government will compel compliance by all states regarding the issuance
of driver?s licenses to recipients of deferred action. 757 F.3d 1053 (9th Cir. 2014).

In Arizona Dream Act Coalition v. Brewer, the plaintiffs, DACA bene?ciaries, sought an
injunction to prevent the defendants from enforcing an Arizona policy that denied driver?s
licenses to recipients of deferred action. Id. at 1060. Necessary for the imposition of an
injunction, the Ninth Circuit examined whether the plaintiffs were likely to succeed on the merits
of their case, and focused on the fact that Arizona?s driver?s license program permitted other
non-citizens to use employment authorization documents to obtain driver?s licenses?the same
documentation that would be conferred upon DAPA recipients. Id. at 1064. Finding that this
policy likely discriminated against similarly-situated parties in violation of the Equal Protection
Clause, the court enjoined the defendants from denying driver?s licenses to deferred action
beneficiaries. Id. at 1069.

More importantly, the Ninth Circuit in Arizona also considered whether the denial of
driver?s licenses to deferred action recipients was preempted by the Executive Branch?s

determination that deferred action recipients were also authorized to work in the United States.

24

 

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 25 of 50

Id. at 1063. Stating that ?the ability to drive may be a virtual necessity for people who want to
work in Arizona,? the court noted that more than 87% of Arizona?s workforce depended on
personal vehicles to commute to work. Id. at 1062. Although not the basis for its ?nding, the
court addressed preemption at length. It reasoned that the defendants? policy of denying driver?s
licenses to deferred action recipients ?interferes with Congress?s intention that the Executive
determine when noncitizens may work in the United States? and would be preempted by federal
law. Id. at 1063. Reinforcing this position, the concurring opinion argued that the majority
should have not merely discussed it, but should have included this reasoning as part of its
holding since there was no question that federal law required the issuance of driver?s licenses to
deferred action recipients. Id. at 1069-75. The Government ?led briefs in that case arguing that
all of Arizona?s attempts to avoid these expenses were preempted. Doc. No. 54, Pl. Ex. 3.
Although the Ninth Circuit?s opinion in Arizona is not necessarily binding on the
majority of Plaintiffs in this case, it nonetheless suggests that Plaintiffs? options to avoid the
injuries associated with the DHS Directive are virtually non-existent and, if attempted, will be
met with signi?cant challenges from the federal government.16 The federal government made it
clear in Arizona (and would not retreat from that stance in this case) that any move by a plaintiff
state to limit the issuance of driver?s licenses would be viewed as illegal. As held by the Ninth
Circuit in Arizona, denying driver?s licenses to certain recipients of deferred action violated the
Equal Protection clause, and would likely be preempted by DAPA, as well. See id. at 1067.
This conclusion would be particularly persuasive in Texas since its driver?s license program?

like Arizona?s?permits applicants to rely on federal employment authorization documentation

 

?6 The Ninth Circuit opinion is binding on Arizona, Idaho, and Montana, the Plaintiff States located in the Ninth
Circuit. Therefore, the Govemment?s argument with respect to these states is totally meritless.

25

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 26 of 50

to show legal status in the United States. If Texas denied driver?s licenses to bene?ciaries of the
DHS Directive, as suggested by the Government here, it would immediately be sued for
impermissiny discriminating against similarly-situated parties that rely on employment
authorization documentation to apply for driver?s licenses. See id. at 1064. Even if Texas could
structure its driver?s license program to avoid these impermissible classi?cations, the court in
Arizona strongly suggested that the denial of driver?s licenses to deferred action recipients would
be preempted by the Executive Branch?s intent that deferred action recipients work while they
remain in the United States. Therefore, if Texas or any of the other non-Ninth Circuit States
sought to avoid an Equal Protection challenge and instead denied driver?s licenses to all
individuals that rely on employment authorization documentation, they would be subjecting
themselves to a different but signi?cant challenge on federal preemption grounds. As stated
above, Arizona, Idaho, and Montana?the Plaintiff States that fall within the Ninth Circuit?s
jurisdiction?do not even have the option of trying to protect themselves.?

Setting aside these legal questions, this all-or-nothing choice?that Texas either allow the

DAPA bene?ciaries to apply for driver?s licenses and suffer ?nancial losses or deny licenses to

 

?7 Also, it is not a defense to the Plaintiffs? assertion of standing to argue that it is not the DAPA program causing
the harm, but rather the Justice Department?s enforcement of the program. Both departments are a part of the United
States and work for the same branch of the federal government.

The Court additionally notes that while the Government claimed preemption on the one hand, it correctly notes
that the actual Circuit decision was based upon equal protection. Thus, it argues that the Government is not
ultimately causing the States? injuries; rather, it is the Constitution. This is not accurate. This distinction is not
convincing for several reasons. First, if the Government enforced the INA as written, these applicants would not be
in the states to apply. Second, the Government is still maintaining and asserting its right of preemption to prevent
the states from enforcing the INA provisions requiring removal of these individuals and instead is using that power
to force a state?s compliance with these applications. Third, whether or not the Constitution is involved, it is
ultimately the combination of the REAL ID Act and DAPA combined with the failure to enforce the INA that will
compel the complained-about result. It is the implementation of the DACA program that has been causing and the
implementation of the DAPA program that will cause these damages when they intersect with the REAL ID Act.
Stated another way, without DAPA there are no damages, and without the REAL ID Act, there are less damages.
Finally, the Government has also not indicated that it will refrain from litigation or aiding litigants to compel the
States to issues licenses and incur these expenses once DAPA is instituted.

26

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 27 of 50

all individuals that rely on employment authorization documentation?as an injury in and of
itself. An injury cannot be deemed ?self-in?icted? when a party faces only two options: full
compliance with a challenged action or a drastic restructure of a state program. See Texas. v.
United States, 497 F.3d 491, 496-98 (5th Cir. 2007) (?nding that Texas had standing on the basis
of a ?forced choice?: after federal regulations, Texas either had to comply with an administrative
procedure it thought was unlawful or forfeit the opportunity to comment on proposed gaming
regulations). Further, the necessary restructuring to ensure constitutional compliance would
require Texas to deny driver?s licenses to individuals it had previously decided should be eligible
for them?a signi?cant intrusion into an area traditionally reserved for a state?s judgment. This
illusion of choice??instead of protecting the state from anticipated injuries?merely places the
states between a rock and hard place.

Defendants also argue that the projected injuries to Plaintiffs? driver?s license programs
are merely generalized grievances that are shared by all the states? citizens, and as such are
insuf?cient to support standng in this case. The cases that Defendants cite for this contention,
though, are easily distinguishable. In these cases, the plaintiffs broadly alleged general harm to
state revenue or state spending. See Commonwealth of Pa. v. Kleppe, 533 F.2d 668, 672 (D.C.C.
1976) ?diminution of tax receipts [was] largely an incidental result of the
challenged action? and was not suf?cient to support standing); People ex rel. Hartigan v.
Cheney, 726 F. Supp. 219, 226 (CD. 111. 1989) (Illinois? alleged injury of ?decreased state tax
revenues and increased spending on social welfare programs? not suf?cient to support standing).
When, however, an action directly injures a state?s identi?able proprietary interests, it is more

likely that the state possesses the requisite standing to challenge the action in federal court. See

27

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 28 of 50

Wyo. v. Okla, 502 US. 437, 448 (1992) (Wyoming had standing to challenge a state statute for
direct and undisputed injuries to speci?c tax revenues); Sch. Dist. of City of Pontiac, 584 F.3d at
261-62 (school district had suf?cient injury to demonstrate standing when compliance with No
Child Left Behind forced plaintiffs to spend state and local funds). Here, Plaintiffs have shown
that their projected injuries are more than ?generalized grievances?; rather, Plaintiffs have
demonstrated that DAPA will directly injure the proprietary interests of their driver?s license
programs and cost the States badly needed funds. In Texas alone, the state is projected to absorb
signi?cant costs. If the majority of the DHS Directive bene?ciaries residing in the state apply
for driver?s licenses, Texas will bear directly a $174.73 per applicant expense, costing the state
millions of dollars.

On a ?nal note, it is important to reiterate the federal government?s position in front of
the Ninth Circuit in Arizona?a position that it has not retreated from in the present case: a state
may not impose its own rules considering the issuance of driver?s licenses due to claims of equal
protection and preemption. Although the federal government conceded that states enjoy
substantial leeway in setting policies for licensing drivers within their jurisdiction, it
simultaneously argued that the states could not tailor these laws to create ?new alien
classi?cations not supported by federal law.? Docother words, the
states cannot protect themselves from the costs in?icted by the Government when 4.3 million
individuals are granted legal presence with the resulting ability to compel state action. The irony
of this position cannot fully be appreciated unless it is contrasted with the DAPA Directive. The
DAPA Directive unilaterally allows individuals removable by law to legally remain in the United

States based upon a classi?cation that is not established by any federal law. It is this very lack of

28

 

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 29 of 50

law about which the States complain. The Government claims that it can act without a
supporting law, but the States cannot.

The contradictions in the Government?s position extend even further. First, driver?s
license programs are functions traditionally reserved to state governments. Even the DHS
recognizes this reservation. The DHS teaches naturalization applicants preparing for their civics
examination that driver?s license programs are clearly a state interest. See Study Materials for
the Civics Test, USCIS.18 Of the sample civics questions, the DHS provides the following
question and lists ?ve acceptable answers:

42. Under our Constitution, some powers belong to the states. What is one

power of the states?

 

I provide schooling and education
I provide protection (police)

I provide safety dire departments)
I give a driver?s license

I approve zoning and land use.

Id. (emphasis added).19
Nonetheless, the DHS through its DACA Directive directly caused a signi?cant increase
in driver?s license applications and the costs incurred by states to process them; DAPA, a much

larger program, will only exacerbate these damages. These injuries stand in stark contrast to the

 

18 This website can be accessed at 

?9 Id.

29

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 30 of 50

Government?s public assertion that driver?s license programs fall in the realm of ?powers [that]
belong to the states.? Id.

The Govemment?s position is further undermined by the fact that a portion of Plaintiffs?
alleged damages associated with the issuance of driver?s licenses are fees mandated by federal
law and are paid to the Government. As discussed above, the REAL ID Act requires states to
pay a fee to verify the immigration status of each driver?s license applicant through the federal
SAVE program. See REAL ID Act of 2005, PL 109-13, 119 Stat. 231 (2005); SAVE Access
Methods Transaction Charges, USCIS.20 The fees associated with this program, combined

with the federal government?s creation of the possibility of four to ?ve million new driver?s

 

2? The SAVE price structure chart may be accessed at 
methods-transaction-charges.

It was suggested that the original Real ID Act might have been subject to attack because of the burden it placed
upon the states. See Patrick R. Thiessen, The Real ID Act and Biometric Technology: A Nightmare for Citizens and
the States That Have to Implement It, 6 J. Telecomm. High Tech. L. 483 (2008) (hereinafter ID and
Biometric Technology?). These fees have always been a source of objections and opposed by both conservative and
liberal groups alike: 

The Act is also opposed by groups as diverse as the CATO Institute, a libertarian think tank, and
the American Civil Liberties Union an organization designed to defend and preserve
the individual liberties guaranteed under the Constitution, both of which testi?ed in opposition to
the Real ID Act in New Hampshire. The CATO Institute?s opposition is based on what it
characterizes as the federal government blackmailing the states. The CATO Institute has
highlighted the fact that the states are being forced to comply with the Real ID Act because a
noncompliant state?s citizens will be barred from air travel, entry to federal courthouses, and
other federal checkpoints.

ACLU opposition is based on the high cost of implementation being imposed on the states, its
belief that it will not actually prevent terrorism, and the diminished privacy Americans will
experience because of the compilation of personal information. Barry Steinhardt, Director of
Technology and Liberty Project, stated:

It?s likely the costs for Real ID will be billions more than today?s estimate [$11
billion]--but no matter what the real ?gure is, Real ID needs to be repealed. At a
time when many state budgets and services are alreaaj; stretched thin, it is clear
that this unfunded mandate amounts to no more than a tax increase in disguise.

Id. at 490-91 (emphasis added) (citations omitted). Under DAPA and DACA, the States are facing a new unfunded
matter?one which is levied by the DHS and enforced by the Justice Department.

30

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 31 of 50

license applicants, give rise to a situation where states must process an increased amount of
driver?s license applications and remit a signi?cant portion of their funds to the federal
government as required by the REAL ID Act. Further, the states have no choice but to pay these
fees. If they do not, their citizens will lose their rights to access federal facilities and to ?y on
commercial airlines.21

Another ironic aspect of the Government?s argument exists again at the intersection of
the DAPA Directive and the REAL ID Act. Those supporting the passage of the REAL ID Act
asserted that the Act would prevent illegal immigration by making it more dif?cult for
individuals with no legal status to get state driver?s licenses. See REAL ID and Biometric
Technology, at 492.22 While the REAL ID Act recognized that individuals with deferred action
status would be eligible to obtain driver?s licenses, it seems almost without argument that the
drafters of the Act did not foresee four to ?ve million individuals obtaining deferred action by
virtue of one DHS Directive, especially when the yearly average of deferred action grants prior

to DACA was less than 1,000. Therefore, DAPA arguably undercuts one of the very purposes of

 

21 REAL ID and Biometric Technology, at 486 n.14.
22 Defenders of the Real ID Act have been able to deflect some of the criticism from various groups
by arguing that the Act is necessary to prevent illegal immigration and to prevent terrorism. For
instance, Representative Sensenbrenner referenced the fact that Muhammad Atta, one of the 9/11
hijackers, came over to the United States on a six-month visa, but still was able to obtain a six-
year driver?s license in Florida. Supporters also argue that the Act will prevent illegal
immigration by making it more dif?cult for illegal immigrants to get state driver ?s licenses.
Moreover, supporters contend that asylum seekers should bear the burden of proving a valid cause
for asylum, which is required under the Real ID Act because a terrorist will not be able to easily
gain residency status by claiming asylum. Supporters also argue that a true national database,
which would be susceptible to hackers, is not required because the states will send electronic
queries to each other that will be answered with the individual state?s database.

REAL ID and Biometric Technology, at 497 (emphasis added) (citations omitted). Due to DAPA, the Real ID Act

will not be used to prevent illegal immigration, but rather, together, they form a basis to compel a reward for illegal
immigration.

31

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 32 of 50

the REAL ID Act, and will certainly undermine any deterrent effect or security bene?t that may
have motivated passage of the Act.
b. Causation

Establishing causation can be dif?cult where the plaintiff?s alleged injury is caused by
?the government?s allegedly unlawful regulation (or lack of regulation) of someone else . . . 
Lujan, 504 US. at 562 (emphasis in original). In the cases cited by the Government, causation
depends on the decisions made by independent actors and ?it becomes the burden of the plaintiff
to adduce facts showing that those choices have been or will be made in such manner as to
produce causation . . . Id. Essentially, establishing causation requires the plaintiff to show
that the alleged injury is not merely ?remote and indirect? but is instead fairly traceable to the
actions of the defendant. Florida v. Mellon, 273 US. 12, 18 (1927).

The Supreme Court has declined to ?nd that a plaintiff had standing suf?cient to bring
suit in federal court when it merely speculates as to whether the defendant?s action would cause
the alleged harm. See id. at 17-18. In Florida v. Mellon, the plaintiff sought to enjoin the federal
government from collecting an inheritance tax in Florida, arguing that it would cause Florida
residents to remove property from the state, thereby ?diminishing the subjects upon which the
state power of taxation may operate.? 1d. The Supreme Court held that whether the defendants?
actions would cause individuals to act in such a way that would produce injury to the state was
?purely speculative, and, at most, only remote and indirect.? Id. at 18.

Here, unlike Florida?s injury in Mellon, the alleged harm to Plaintiffs? driver?s license
programs would be directly caused by the DHS Directive. Further, there is no speculation as to

the probability of its occurrence; rather, it is like watching the same play performed on a new

32

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 33 of 50

stage. The DACA Directive, implemented in 2012, permitted its recipients to receive the status
or documentation necessary to subsequently apply for driver?s licenses. See Access to Driver ?3
Licenses for Immigrant Youth Granted DACA, NILC (Dec. 2014) recipients who obtain
an employment authorization document and a Social Security number have been able to obtain a
license in almost every Similarly, the DAPA Directive also provides its recipients with
the status and the documentation necessary to apply for a driver?s license in most states. See
Ark. Code Ann. 27-16-1105 (proof of deferred status suf?cient to apply for driver?s license);
Tex. Transp. Code. Ann. 521.142 (employment authorization documentation suf?cient for
driver?s license application). Aside from furnishing the status or documents necessary to apply
for a driver?s license, the DAPA Directive will also provide an incentive for its applicants. The
Directive permits and encourages its bene?ciaries to apply for work authorization for the period
that they will be granted deferred status in the United States. For individuals in the United States
who commute to work, driving is the most common mode of tranSportation. In 2013, it was
estimated that 86.3% of the United States? workforce cormnuted to work in private vehicles.24
See Commuting in America 2013: The National Report on Commuting Patterns and Trends,
American Association of State Highway and Transportation Of?cials (Oct. 2013).25 This is
especially true in the states that are Plaintiffs in this case, as none of them have extensive mass
transit systems. In sum, the federal government?s actions in Arizona, and its refusal to disclaim

future such actions in this case, establish that it will seek to force Texas (and other similarly-

 

A PDF of this article may be accessed at 120.

24 The Ninth Circuit in Arizona Dream Act Coalition v. Brewer similarly noted that the majority of the workforce
relies on private vehicles to commute to work. 757 F.3d at 1062. Speci?cally, the court highlighted that
approximately 87% of Arizona?s workforce commuted to work by car. Id.

25 A PDF of this study may be accessed at 

33

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 34 of 50

situated states) into these changes. Further, some portion of Plaintiffs? alleged injuries are fees
mandated by federal law that are required to be paid by states directly to the federal
government?damages that are a virtual certainty. Plaintiffs?or at least Texas?have clearly
met their burden of showing that their alleged injuries have been and will be directly ?traceable?
to the actions of the Defendants. Far from a generalized injury or ?pie in the sky? guesswork,
Plaintiffs have demonstrated a direct, ?nite injury to the States that is caused by the
Government?s actions. Given that Plaintiffs have shown that they stand to suffer concrete and
particularized consequences from Defendants? actions, they have pled an injury suf?cient to
demonstrate standing in this Court.
c. Redressability

The redressability prong of the standing analysis examines whether the remedy a plaintiff
seeks will redress or prevent the alleged injury. Lujan, 504 US. at 560. Of this three-prong
standing analysis, the question of redressability is easiest for this Court to resolve. The remedy
Plaintiffs seek will undoubtedly prevent the harm they allege will stem from Defendants? DHS
Directive. DAPA provides its bene?ciaries with the necessary legal presence and documentation
to allow them to apply for driver?s licenses in most states; without this status or documentation,
these bene?ciaries would be foreclosed from seeking a driver?s license. Therefore enjoining the
implementation of the DHS Directive would unquestionably redress Plaintiffs? alleged harm.

Plaintiffs (or at least one Plaintiff) has clearly satis?ed the requirements for 

standing.

34

 

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 35 of 50

2. Prudential Standing
In addition to ful?lling the Article standing requirements, Plaintiffs have also satis?ed
the requirements of prudential standing. As discussed above, the States have not merely pled a
?generalized grievance? that is inappropriate for the Court?s resolution. Rather, the States have
shown that the DAPA program will directly injure their proprietary interests by creating a new
class of individuals that is eligible to apply for state driver?s licenses. When this class applies for
driver?s licenses, the States will incur signi?cant costs to process the applications and issue the
licenses?costs that the States cannot recoup or avoid. Instead of a ?generalized grievance,? the
States have pled a direct injury to their ?scal interests.
Second, Plaintiffs? claims come within the ?zone of interests? to be protected by the
immigration statutes at issue in this litigation. The Supreme Court has stated time and again that
it is the duty of the federal government to protect the border and enforce the immigration laws.26

The Government has sought and obtained rulings that preempt all but token participation by the

states in this area of the law. The basis for this preemption was that the states? participation was

 

26 For example, in Plyler v. Doe, all nine justices on the Supreme Court agreed that the United States was not doing
its job to protect the states. In his concurring opinion, Justice Powell stated that:

Illegal aliens are attracted by our employment opportunities, and perhaps by other bene?ts as well.
This is a problem of serious national proportions, as the Attorney General has recently recognized.
Perhaps because of the intractability of the problem, Congress?vested by the Constitution with
the responsibility of protecting our borders and legislating with respect to aliens??has not
provided effective leadership in dealing with this problem.

457 US. at 237-38 (Powell, J., concurring) (citations omitted). The dissenters in Plyler, while disagreeing with the
result, did not disagree about who is duty bound to protect the states:

A state has no power to prevent unlawful immigration, and no power to deport illegal aliens; those
powers are reserved exclusively to Congress and the Executive. If the Federal Government,
properly chargeable with deporting illegal aliens, fails to do so, it should bear the burdens of their
presence here.

Id. at 242 n.1 (Burger, ., dissenting).

35

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 36 of 50

not wanted or required because the federal government was to provide a uniform system of
protection to the states. The fact that DAPA undermines the INA statutes enacted to protect the
states puts the Plaintiffs squarely within the zone of interest of the immigration statutes at issue.

Further, Congress has entrusted the DHS with the duty to enforce these immigration
laws. 8 U.S.C. 1103(a)(i). The duties include guarding the border and removing illegal
aliens present in the country. 8 U.S.C. 1103(a)(5), 1227. DAPA, however, is certainly at
odds with these commands. These duties were enacted to protect the states because, under our
federal system, they are forbidden from protecting themselves.

Finally, Plaintiffs are not resting their claim for relief solely on the rights and interests of
third-parties. Rather, the States are seeking to protect their own proprietary interests, which they
allege will be directly harmed by the implementation of DAPA. Thus Plaintiffs have similarly
satis?ed their burden to show prudential standing.

3. Standing under the APA

Relying on the APA, Plaintiffs assert not only a basis for standing but also an argument
on the merits. Because these concepts are closely intertwined, the Court will address both in its
discussion of the merits. Nevertheless, for the reasons stated above and the reasons articulated
below, the States have APA standing as well.

D. Other Grounds for Standing

The States have asserted three additional bases for standing: (1) parens patriae standing;
(2) Massachusetts v. EPA. standing; and (3) abdication standing. Following the Supreme
Court?s decision in Massachusetts v. E. P.A, these theories seem at least indirectly related to the

parens patriae claim discussed below. There is, however, ample evidence to support standing

36

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 37 of 50

based upon the States? demonstration of direct injury ?owing from the Government?s
implementation of the DAPA program. Since the States have, or at least Texas has, shown a
direct injury, as well as for the reasons discussed below, this Court either rejects or refuses to
rely solely on either of the parens patriae or Massachusetts v. EPA. theories as the basis for
Plaintiffs? standing. Both the Parties and amici curiae, however, have briefed these theories in
depth; thus the Court is compelled to address them.

1. Parens Patriae

Plaintiffs also rely on the doctrine of parens patriae to establish an independent basis for
standing in their suit against Defendants. Parens patriae permits a state to bring suit to protect
the interests of its citizens, even if it cannot demonstrate a direct injury to its separate interests as
a sovereign entity. Alfred L. Snapp Son, Inc. v. P.R. ex rel. Barez, 458 U.S. 592, 601 (1982).
Meaning literally ?parent of the country,? parens patriae recognizes the interests ?that the State
has in the well-being of its populace? and allows it to bring suit when those interests are
threatened. Id. at 602', Black?s Law Dictionary 1287 (10th ed. 2014). Here, the States allege that
the DHS Directive will injure the economic interests of their residents, necessitating a parens
patriae suit to ensure that those interests are protected from the consequences of the
Government?s actions.

Defendants, relying primarily on the Supreme Court?s opinion in Massachusetts v.
Mellon, contend that the States? invocation of parens patriae is misplaced. They claim states
cannot maintain a parens patriae suit against the federal government since the federal
government is the ultimate protector of the citizens? interests. See 262 U.S. 447, 485-86 (1923).

In Massachusetts v. Mellon, Massachusetts brought a parens patriae suit to challenge the

37

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 38 of 50

constitutionality of the Maternity Act, arguing that the burden of funding the Act fell
disproportionately on industrial states like Massachusetts. Id. at 479. Holding that the federal
government is the supreme parens patriae, the Court stated that ?it is no part of [a state?s] duty
or power to enforce [its citizens?] rights in respect of their relations with the federal
government.? Id. Thus, Defendants argue that the States? suit should be similarly barred since
the federal govemment?s right to protect citizens? interests trumps that of the states.

Defendants? succinct argument, however, ignores an established line of cases that have
held that states may rely on the doctrine ofparens patriae to maintain suits against the federal
government. See, Wash. Utilities and Transp. Comm ?n v. FC. C, 513 F.2d 1142 (9th Cir.
1975) (state regulatory agency relied on parens patriae to bring suit against FCC. and 
Kansas ex rel. Hayden v. United States, 748 F. Supp. 797 (D. Kan. 1990) (state brought suit
against US. under parens patriae theory); Abrams v. Heckler, 582 F. Supp. 1155 (S.D.N.Y.
1984) (state used parens patriae to maintain suit against the Secretary of Health and Human
Services). These cases rely on an important distinction. The plaintiff states in these cases are
not bringing suit to protect their citizens from the operation of a federal statute?actions that are
barred by the holding of Massachusetts v. Mellon. See, e. Wash. Utilities and ransp.
Comm 513 F.2d at 1153; Kansas ex rel. Hayden, 748 F. Supp. at 802; Abrams, 582 F. Supp. at
1159. Rather, these states are bringing suit to enforce the rights guaranteed by a federal statute.
Id. For example, in Kansas ex rel. Hayden v. United States, the governor of Kansas brought a
parens patriae suit to enforce the provisions of the Disaster Relief Act, which provided for the
disbursement of federal funds to aid areas deemed a ?major disaster.? Kansas ex rel. Hayden,

548 F. Supp. at 798. Speci?cally, the governor brought suit to enforce the statute after he

38

 

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 39 of 50

alleged that the area in question was wrongfully denied status as a ?major disaster area? when the
procedural mechanisms for making that decision were ignored. Id. at 799. Similarly, in Abrams
v. Heckler, New York?s attorney general brought a parens patriae suit to enforce the provisions
of a Medicare statute after a ?nal rule issued to implement the statute deprived New York
Medicare recipients of a signi?cant amount of funds. Abrams, 582 F. Supp. at 1157. Arguing
that the ?nal rule misinterpreted the provisions of the statute and thus exceeded statutory
authority, the attorney general sought to have the Medicare funds distributed in compliance with
the statute. 1d.

Consequently, Defendants? rebuttal to the States? parens patriae argument is not as
simple as they would suggest. States are not barred outright from suing the federal government
based on a parens patriae theory; rather, provided that the states are seeking to enforce?rather
than prevent the enforcement of?a federal statute, a parens patriae suit between these parties
may be maintained. In the instant case, the States are suing to compel the Government to
enforce the federal immigration statutes passed by Congress and to prevent the implementation
of a policy that undermines those laws. Though seeking adherence to a federal statute is a
necessary component for a state?s parens patriae suit against the federal government, it alone is
not enough; in addition, states must identify a quasi-sovereign interest that is harmed by the
alleged under-enforcement. See Alfred L. Snapp, 458 US. at 601 (?to have such [parens patriae]
standing the State must assert an injury to what has been characterized as a ?quasi-sovereign

?39

interest The de?ning characteristics of a quasi?sovereign interest are not explicitly laid out in
case law; rather, the meaning of the term has undergone a signi?cant expansion over time. See

Com. of Pa. v. Kleppe, 533 F.2d 669, 673 (DC. Cir. 1976). Although the earliest recognized

39

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 40 of 50

quasi-sovereign interests primarily concerned public nuisances, the doctrine expanded rapidly to
encompass two broad categories: (1) a state?s quasi-sovereign interest ?in the health and well-
beingh?both physical and economic?uof its residents?; and (2) a state?s quasi-sovereign interest
in ?not being discriminatorily denied its rightful status within the federal system.? Al?ed L.
Snapp, 458 US. at 607. In particular, courts have consistently recognized a state?s quasi-
sovereign interest in protecting the economic well-being of its citizens from a broad range of
injuries. See, Al?red L. Snapp, 458 US. at 609 (discrimination against Puerto Rican laborers
injured economic well-being of Puerto Rico); Wash. Utilities and Tramp. Comm 513 F.2d at
1152 (increased rates for intrastate phone service would injure the economic well-being of the
state); Abrams, 582 F. Supp. at 1160 (changes to Medicare that would decrease payments to New
York recipients is suf?cient injury to economic well-being); Alabama ex rel. Baxley v. Tenn.
Valley Auth, 467 F. Supp. 791, 794 (N .D. Ala. 1979) (relocation of executive and administrative
of?ces would damage the economic well-being of Alabama by decreasing available jobs and
injuring state economy).

Here, the States similarly seek to protect their residents? economic well?being.
Speci?cally, Plaintiffs allege that the DHS Directive will create a discriminatory employment
environment that will encourage employers to hire DAPA bene?ciaries instead of those with
lawful permanent status in the United States.27 To support this assertion, Plaintiffs focus on the

interplay between the DHS Directive and the Affordable Care Act passed in 2010. Beginning in

 

27 In addition to the injuries stemming from the alleged creation of a discriminatory employment environment,
certain portions of the States? briefs?as well as various amici briefs?detail a number of encumbrances suffered by
their residents due to the lack of immigration enforcement, such as increased costs to healthcare and public school
programs. Few?if any?of these allegations have actually been specifically pled by the Parties as a basis for
parens patriae standing.

40

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 41 of 50

2015, the Affordable Care Act requires employers with ?fty or more employees to
offer adequate, affordable healthcare coverage to their full-time employees. Patient Protection
and Affordable Care Act, 26 U.S.C. 4980H. If an employer with ?fty or more employees
chooses not to offer health insurance to its full-time employees, it instead incurs a monetary
penalty. Id. Currently, ACA requires that employers provide health insurance only to those
individuals that are ?legally present? in the United States. Id. at 5000A(d)(3). The de?nition of
?legally present,? however, speci?cally excludes bene?ciaries of the 2012 DACA Directive. If
an employer hires a DACA bene?ciary, it does not have to offer that individual healthcare nor
does it incur a monetary penalty for the failure to do so. See 45 C.F.R. The States
argue that the Obama Administration is expected to promulgate similar regulations that will also
bar bene?ciaries of the DAPA Directive from participating in the employer insurance
mandate. This exclusion, the States argue, will exacerbate unemployment for its citizens because
it will create an employment environment that will encourage employers to discriminate against
lawfully present citizens. Since the exclusion of DAPA bene?ciaries makes them more
affordable to employ, employers will be inclined to prefer them over those employees that are
covered by the terms of the ACA. Id.

The States? alleged injury to their citizens? economic well?being is within the quasi-
sovereign interests traditionally protected by parens patriae actions. See, e. Alfred L. Snapp,
458 US. at 609; Wash. Utilities ransp. Comm 513 F.2d at 1152; Kansas ex rel. Hayden,
548 F. Supp. at 802; Abrams, 582 F. Supp. at 1160; Alabama ex rel. Baxley, 467 F. Supp. at 794.
The States? challenge, however, is premature. Although some expect that the Obama

Administration will promulgate regulations barring DAPA bene?ciaries from participating in the

41

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 42 of 50

employer insurance mandateGuide to the Immigration
Accountability Executive Action, Immigration Policy Center (Dec. 22, 2014)28 Obama
Administration will promulgate regulations to exclude DAPA recipients from any bene?ts under
the Affordable Care Act, much as it did in the aftermath of the DACA announcement?)
(emphasis added); DACA and DAPA Access to Federal Health and Economic Support
Programs, NILC (Dec. 10, 2014)29 (the Obama Administration ?issued regulations that deny
access to health coverage under the ACA for DACA recipients and is expected to do the same for
DAPA recipients?) (emphasis added); Michael D. Shear Robert Pear, Obama?s Immigration
Plan Could Shield Five Million, NY. Times (Nov. 19, 2014)30 (quoting Stephen W. Yale-Loehr,
professor of immigration law at Cornell, for assertion that it ?appears? that these individuals will
be barred from health bene?ts under ACA) (emphasis added). Discouraging the resolution of
controversies that are not ripe, the Supreme Court has held that courts should avoid ?entangling
themselves in abstract disagreements . . . until an administrative decision has been formalized
and its effects felt in a concrete way . . . Not ?1 Park HOSpitality Ass ?n v. Dep ?t of Interior, 538
US. 803, 807-08 (2003). Here, the administrative decision from which the States? alleged
economic injury will ?ow has not been formalized. Thus, the States? parens patriae suit is not

ripe for adjudication.

 

28 This article may be accessed at 


29 A PDF of this article may be accessed at 


30 This article may be accessed at 
undo cumented- immigrants .

42

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 43 of 50

2. Massachusetts v. E.P.A. Claims

Clearly, in addition to the traditional Article standing, Plaintiffs can also pursue their
direct damage claims under the ambiguous standards set forth in Massachusetts v. EPA. In
Massachusetts, the Supreme Court held that Massachusetts had standing to seek redress for the
damages directly caused to its interests as a landowner. Similarly, the States have standing
because the Defendants? actions will allegedly cause direct damage to their proprietary interests.
Consequently, no matter how one reads Massachusetts v. E.P.A., it strengthens the conclusion
that the States do have standing to sue for direct damages.

Nevertheless, separate and apart from their direct damage claim (for which at least Texas
has standing) and somewhat related to the parens patrtae basis for standing, the States also assert
standing based upon the continual non?enforcement of the nation?s immigration laws, which
allegedly costs each Plaintiff State millions of dollars annually. The evidence in this case
supplies various examples of large, uncompensated losses stemming from the fact that federal
law mandates that states bear the burdens and costs of providing products and services to those
illegally in the country. These expenses are most clearly demonstrated in the areas of education
and medical care, but the record also contains examples of signi?cant law enforcement costs.

a. Argument of the States and Amici

The States and some amict briefs argue that the Supreme Court?s holding in
Massachusetts v. E.P.A. supports the States? assertion of standing based on their injuries caused
by the Government?s prolonged failure to secure the country?s borders. Whether negligently or
even with its best efforts, or sometimes, even purposefully, the Government has allowed a

situation to exist where illegal aliens move freely across the border, thus allowing-?at a

43

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 44 of 50

minimum?500,000 illegal aliens to enter and stay in the United States each year.31 The federal
government is unable or unwilling to police the border more thoroughly or apprehend those
illegal aliens residing within the United States; thus it is unsurprising that, according to
prevailing estimates, there are somewhere between 11,000,000 and 12,000,000 illegal aliens
currently living in the country, many of whom burden the limited resources in each state to one
extent or another. Indeed, in many instances, the Government intentionally allows known illegal
aliens to enter and remain in the country. When apprehending illegal aliens, the Government
often processes and releases them with only the promise that they will return for a hearing if and
when the Government decides to hold one.32 In the meantime, the states?with little or no help
from the Government?are required by law to provide various services to this population.33 Not
surprisingly, this problem is particularly acute in many border communities. According to the
States? argument, this situation is exacerbated every time the Government or one of its leading
of?cials makes a pro-amnesty statement or, as in the instant case, every time the DHS institutes a

program that grants status to individuals who have illegally entered the country.

 

3] Michael Hoefer, et al., Estimates of the Unauthorized Immigrant Population Residing in the United States:
January 2010, US. DHS, Feb. 2011.

32 The Court was not provided with the ?no-show? rates for adult illegal aliens who are released and later summoned
for an immigration hearing. It has been reported, however, that the immigration hearings for last year?s ?ood of
illegal immigrant children have been set for 2019. Further, reports also show that there is a 46% ?no-show? rate at
these immigration hearings for children that were released into the population. Challenges at the Border: Examining
the Causes, Consequences, and Responses to the Rise in Apprehensions at the Southern Border: Hearing Before the
S. Homeland Sec. Comm, 113th Cong. (July 9, 2014) (statement of Juan Osuna, Director of the Executive Of?ce for
Immigration Review). Thus, for these children that the Government released into the general population, despite a
lack of legal status, the States will have to bear the resulting costs for at least ?ve more years?~ if not forever, given
the rate of non-compliance with appearance notices.

33 See, Plyler, 457 us. at 224-25; Toll v. Moreno, 458 us. 1, 16 (1982).

44

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 45 of 50

b. Analysis
The States? argument is certainly a simpli?cation of a more complex problem.
Regardless of how simple or layered the analysis is, there can be no doubt that the failure of the
federal government to secure the borders is costing the states?even those not immediately on
the border?wmillions of dollars in damages each year. While the Supreme Court has recognized
that states ?have an interest in mitigating the potentially harsh economic effects of sudden shifts

in population,?34

the federal government has effectively denied the states any means to protect
themselves from these effects. Further, states suffer these negative effects regardless of whether
the illegal aliens have any ties or family within the state, or whether they choose to assimilate
into the population of the United States.35 The record in this case provides many examples of
these costs. Evidence shows that Texas pays $9,473 annually to educate each illegal alien child
enrolled in public school.3?6 In Texas, 7,409 unaccompanied illegal immigrant children were
released to sponsors between October of 2013 and September of 2014. Thus, in that period
alone, Texas absorbed additional education costs of at least $58,531,100 stemming from illegal

immigration. Further, this ?gure addresses only the newly-admitted, unaccompanied children; it

by no means includes all costs expended during this period to educate all illegal immigrant

 

3? Plyler, 457 us. at 228.

35 Id. While most Americans ?nd the prospect of residing anywhere but the United States unthinkable, this is not a
universally-held principle. Many aliens are justly proud of their own native land and come to the United States
(both legally and illegally) because our economy provides opportunities that their home countries do not. Many of
these individuals would be satis?ed with working in the United States for part of the year and returning to their
homeland for the remainder. This arrangement is o?en unfeasible for illegal aliens, though, because of the risk of
apprehension by authorities when traveling back and forth across the border. Regardless, many illegal aliens have
no intention of permanently immigrating, but rather seek to be able to provide for their families. The Supreme Court
in Arizona noted that 476,405 aliens are returned to their home countries every year without a removal order. 132 S.
Ct. at 2500. Many others return outside of any formal process. See also, footnotes 41 and 42 and the text
accompanying footnote 42.

36 This ?gure presumes the provision of bilingual services. If bilingual services are not required, the cost is $7,903
annually per student.

45

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 46 of 50

children residing in the state. Evidence in the record also shows that in 2008, Texas incurred
$716,800,000 in uncompensated medical care provided to illegal aliens.

These costs are not unique to Texas, and other states are also affected. Wisconsin, for
example, paid $570,748 in unemployment bene?ts just to recipients of deferred action.
Arizona?s Maricopa County has similarly estimated the costs to its law enforcement stemming
from those individuals that received deferred action status through DACA. That estimate, which
covered a ten-month period and included only the law enforcement costs from the prior year,
exceeded $9,000,000.

To decrease these negative effects, the States assert that the federal government should do
two things: (1) secure the border; and (2) cease making statements or taking actions that either
explicitly or impliedly solicit immigrants to enter the United States illegally. In other words, the
Plaintiffs allege that the Government has created this problem, but is not taking any steps to
remedy it. Meanwhile, the States are burdened with ever-increasing costs caused by the
Government?s ineffectiveness. The frustration expressed by many States and/or amici curiae in
their brie?ng is palpable. It is the States? position that each new wave of illegal immigration
increases the financial burdens placed upon already-stretched State budgets.

It is indisputable that the States are harmed to some extent by the Govemment?s action
and inaction in the area of immigration. Nevertheless, the presence of an injury alone is
insuf?cient to demonstrate standing as required to bring suit in federal court. A plaintiff must
still be able to satisfy all of the elements of standing?including causation and redressability?to

pursue a remedy against the one who allegedly caused the harm.

46

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 47 of 50

Not surprisingly, the States rely, with much justi?cation, on the Supreme Court?s holding
in Massachusetts v. EPA. to support standing based on these damages. 549 US. 497 (2007). In
Massachusetts, the Supreme Court held that states have special standing to bring suit for the
protection of their sovereign or quasi-sovereign interests. Id at 520. Justice Stephens quoted a
prior decision from Justice Kennedy, stating to the effect that states ?are not relegated to the role
of mere provinces or political corporations but retain the dignity, though not the full authority, of
sovereignty.? Id. at 519 (quoting Alden v. Maine, 527 US. 706, 715 (1999)) The majority
concluded that Massachusetts, in its role as a landowner, suffered (or would suffer) direct
damages from the refusal to act under the Clean Air Act. Id. at 519, 526. Massachusetts?
status as a landowner, however, was only the icing on the cake. See id. at 519. This status
reinforced the Supreme Court?s conclusion that ?[Massachusetts?] stake in the outcome of this
case is suf?ciently concrete to warrant the exercise of federal jurisdiction.? Id. Without
explicitly delineating formal elements, the majority seemed to recognize a special form of
?sovereignty standing? if the litigant state could show: (1) a procedural right to challenge the act
or omission in question and (2) an area of special state interest. See id. at 518-26. With regard
to the latter, Justice Stephens concluded that states have standing to ?le suit to protect the health
and welfare of their citizens since our structure of government mandates that they surrender to
the federal government: (1) the power to raise a military force; (2) the power to negotiate
treatises; and (3) the supremacy of their state laws in areas of federal legislation. Id. at 519.

The States conclude that Justice Stephens? holding is equally applicable to their situation.
First, the States have no right to negotiate with Mexico or any other country from which large

numbers of illegal aliens immigrate; thus the States cannot rely on this avenue to resolve or

47

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 48 of 50

lessen the problem. Second, the States cannot unilaterally raise an army to combat invaders or
protect their own borders. Third, the federal government ardently defends against any attempt by
a state to intrude into immigration enforcement?even when the state seeks to enforce the very
laws passed by Congress. Therefore, the States reach the same conclusion as the Supreme Court
did in Massachusetts v. E.P.A. They have the power to sue the federal government in federal
court to protect their quasi-sovereign interests in the health, welfare, and natural resources of
their citizens.

The States lose badly needed tax dollars each year due to the presence of illegal aliens?a
clear drain upon their already-taxed resources. These damages, the States argue, are far greater
and more direct than the damages stemming from air pollution in Massachusetts. Thus, they
conclude that they should similarly have standing. This Court agrees to the actual existence of
the costs being asserted by Plaintiffs. Even the Government makes no serious attempt to counter
this argument, considering that the Government?s lack of border security combined with its
vigilant attempts to prevent any state from protecting itself have directly led to these damages.
Causation here is more direct than the attenuated causation chain patched together and accepted
by the Supreme Court in Massachusetts.

Nevertheless, standing in Massachusetts was not dependent solely on damages ?owing
from the lax enforcement of a federal law; the Supreme Court also emphasized the procedural
avenue available to the state to pursue its claims. See id. at 520. Speci?cally covering the
section under which Massachusetts? claim was brought, the Clean Air Act provided that 
petition for review of action of the Administrator in promulgating any . . . standard under section

7521 of this title . . . may be ?led only in the United States Court of Appeals for the District of

48

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 49 of 50

Columbia.? Clean Air Act, 42 U.S.C. 7607(b)(l). The States claim that the APA gives them a
similar procedural avenue. The APA states:

A person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof. An action in a court of the United States seeking relief
other than money damages and stating a claim that an agency or an of?cer or
employee thereof acted or failed to act in an of?cial capacity or under color of
legal authority shall not be dismissed nor relief therein be denied on the ground
that it is against the United States or that the United States is an indispensable
party. The United States may be named as a defendant in any such action, and a
judgment or decree may be entered against the United States: Provided, That any
mandatory or injunctive decree shall specify the Federal of?cer or of?cers (by
name or by title), and their successors in of?ce, personally responsible for
compliance. Nothing herein (1) affects other limitations on judicial review or the
power or duty of the court to dismiss any action or deny relief on any other
appropriate legal or equitable ground; or (2) confers authority to grant relief if any
other statute that grants consent to suit expressly or impliedly forbids the relief
which is sought.

5 U.S.C. 702 (emphasis in original). Section 703 of the APA speci?cally authorizes a suit like
this case where the States seek a mandatory injunction. 5 U.S.C. 703. Finally, Section 704
provides a cause of action for a ??nal agency action for which there is no other adequate remedy
in a court . . . 5 U.S.C. 704. It is appropriate to note that the Government has asserted that
there is absolutely no remedy, under any theory, for the Plaintiffs? suit?seemingly placing the
States? suit squarely within the purview of Section 704.

The Government counters this contention, however, by arguing that the DAPA program
is an exercise of discretion and merely informational guidance being provided to DHS
employees. Since it argues that discretion is inherent in the DAPA program, the Government

concludes that it not only prevails on the merits of any APA claim, but that this discretion also

49

 

 

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 50 of 50

closes the standing doorway that the States are attempting to enter.37 The Court will address
these assertions in a separate part of the opinion because they are not the key to the resolution of
the indirect damages contemplated in this section regarding standing under Massachusetts v.
E.P.A.

It has been recognized that the resources of states are drained by the presence of illegal
aliens?these damages unquestionably continue to grow. In 1982, the Attorney General
estimated that the country?s entire illegal immigrant population was as low as three million
individuals. See Plyler v. Doe, 457 US. at 218-19. Today, California alone is reported to have
at least that many illegal immigrants residing with its borders. Among the Plaintiff States, the

only difference with regard to the population of illegal immigrants residing within each is that

 

3'7 See 5 U.S.C. 701. There is some authority in the immigration context that a private immigration organization
cannot attack immigration decisions via the APA. See ed ?11 for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897
(DC Cir. 1996). These decisions are based primarily on a lack of ?prudential standing? rather than on the
requirements of the APA. However, for those directly affected by a federal agency action, these decisions are
inapplicable. In this context, the Government in places con?ates the issue of standing with that of reviewability.

Standing to seek review is a concept which must be distinguished from reviewability. In
Association of Data Processing Serv. Organizations, Inc. v. Camp, the Court de?ned ?standing? in
terms of a two-part test. First, the complainant must allege ?that the challenged action has caused
him injury in fact, economic or otherwise.? Second, ?the interest sought to be protected by the
complainant [must be] arguably within the zone of interests to be protected or regulated by the
statute or constitutional guarantee in question.?

Reviewability presumes that the standing prerequisite has been satis?ed and then adds the element
of the courts? power to judge a certain administrative decision. Correspondingly, ?unreviewable?
administrative actions are those which will not be judicially scrutinized, despite the ful?llment of
all prerequisites such as standing and ?nality, either because Congress has cut off the court?s
power to review or because the courts deem the issue ?inappropriate for judicial determination.?

Even ?unreviewable? administrative action may be judicially reviewed under exceptional
circumstances, such as whether there has been a clear departure from the agency?s statutory
authority.

Statutory Preclusion of Judicial Review, 1976 Duke L. J. 431, 432 11.4 (1976) (citations omitted). The States have

seemingly satis?ed these two standing requirements, but that alone does not allow the Court to review the 
actions.

50