Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 1 of 117
United States District Court
Southern District of Texas

ENTERED
August 31, 2018
David J. Bradley, Clerk

 Case Document 319 Filed in TXSD on 08/31/18 Page 2 of 117

Customs Enforcement Agency Thomas D. Homan,3 Director of the United States
Citizenship and Immigration Services L. Francis Cissna, and Chief of the United
States Border Patrol Carla L. Provost.4 After the case was ?led but before any substantive
activity had taken place, twenty?two DACA recipients intervened as Defendants. The State of
New Jersey also requested and received permission to intervene as a Defendant.5 Finally,
numerous other groups and entities have asked for and received this Court?s permission to act as
amicus curiae.

The Plaintiff States have asked this Court to preliminarily enjoin the Government from
issuing or renewing any DACA permits in the future. If this relief is granted, and ultimately if
this relief becomes permanent, it could have the effect of terminating the DACA program?a
result the Defendant?Intervenors vehemently oppose. The Plaintiff States also request a
declaratory judgment that DACA is contrary to the standards of the APA, as well as the Take
Care Clause of the United States Constitution, ?ndings which, if upheld, would also require the
termination of the DACA program.

I. What Is and Is Not Before the Court

The Court is not faced with questions about a duly enacted statute or a duly enacted
federal regulation or even an order by the President. DACA was a program instituted pursuant to
the orders of then-Secretary of Homeland Security, Janet Napolitano. Those instructions were set
forth in a memorandum dated June 15, 2012, and remained in force without amendment until

2014 when her successor, Secretary eh Johnson, attempted to create a sister program, Deferred

 

3 Thomas D. Homan was named as a Defendant when this lawsuit was ?led. He has since retired and Ronald D.
Vitiello now serves as the Deputy Director and Senior Of?cial Performing the Duties of Director.

4 These Defendants will be collectively referred to as ?the Government? or ?the Defendants.?

5 The DACA recipients and New Jersey will be collectively referred to as the ?Defendant?Intervenors." When
necessary to refer to one group speci?cally, the Court wiil use the terms ?individual Defendant-Intervenors? and
?New Jersey.?

Case Document 319 Filed in TXSD on 08/31/18 Page 3 of 117

Action for Parents of Americans and Lawful Permanent Residents At that time,
Secretary Johnson also attempted to put into place certain expansions of the DACA program
(?Expanded Both the implementation of the DAPA program and Expanded DACA
were enjoined by this Court in 2015. Texas v. United States, 86 F. Supp. 3d 591 (SD. Tex.
2015). This injunction was af?rmed by the Fifth Circuit Court of Appeals, Texas v. United
States, 809 F.3d 134 (5th Cir. 2015), and then later by a split vote in the Supreme Court of the
United States. United States v. Texas, 136 S. Ct. 2271 (2016) (this litigation will be referred to as
Texas 1)

Upon remand, the parties asked this Court to postpone entering a scheduling order that
would have otherwise governed the proceedings to a ?nal conclusion on the merits. Throughout
this time, the original 2012 DACA memorandum remained in force. Ultimately, the parties all
agreed to dismiss the case:

Plaintiffs? Stipulation of Voluntary Dismissal

On June 15, 2017, the US. Department of Homeland Security released a

memorandum entitled Rescission of November 20, 2014 Memorandum Providing

for Deferred Action for Parents of Americans and Lawful Permanent Residents

On September 5, 2017, the Department released a memorandum

entitled Rescission of the June 15, 2012 Memorandum Entitled ?Exercising

Prosecutorial Discretion with Respect to Individuals Who Came to the United

States as Children. Given these memoranda rescinding the DAPA program and

phasing out the DACA and Expanded DACA programs, Plaintiffs file this

stipulation of voluntary dismissal. See Fed. R. P. (allowing
plaintiffs to dismiss an action, without court order, by ?ling a stipulation of
dismissal by all parties who have appeared).

Texas 1, [Doc No. 473] (emphasis added).
This stipulation of dismissal was signed by the attorneys for the plaintiffs (a group that

included all of the Plaintiff States in this case), the United States and the federal government

defendants, and the putative DAPA recipients who had intervened. As is evident from its text,

Case Document 319 Filed in TXSD on 08/31/18 Page 4 of 117

the stipulation was clearly based in part upon the Government ?phasing out the DACA and
Expanded DACA programs.? It is also clear that all parties agreed to the stipulation, which
otherwise would have required court action. As per its very language, the stipulation was based
upon Fed. R. Civ. P. which requires the dismissal to be signed by counsel for all
parties who have appeared in order to be effective.

While this Court has no way of knowing the decision?making process exercised by the
parties in Texas I, it seems that at least the Plaintiff States here seek the same result they thought
they had achieved with the stipulation of dismissal. The Government has attempted to phase out
DACA, as it represented to the Plaintiff States it would, but it is prevented from doing so by
various orders of other courts around the nation that have enjoined or vacated the attempt to end
the program. The Government is thus thrust into the position of a somewhat reluctant warrior?
having to defend a program (in order to comply with court orders) that it had agreed to phase out
in order to rid itself of the 2014 lawsuit that was pending in this Court. As stated earlier, the
Defendant-Intervenors are DACA recipients who wish to prevent the abolition of this program
and who have been joined in this effort by the State of New Jersey. They are clearly not reluctant
warriors and are squarely pitted against the propositions argued by the Plaintiff States.

A. What Issues Are Before the Court

Thus, this Court is faced with only three primary issues involving the DACA program in
the context of a request for a preliminary injunction:

1) Did the creation of DACA, and its continued operation, violate the Take Care Clause
of the Constitution?

2) Does the DACA program violate the substantive standards of the 

3) Did the manner in which DACA was created violate the procedural requirements of
the 

Case Document 319 Filed in TXSD on 08/31/18 Page 5 of 117

While these three primary issues have many elements and ancillary questions that will be

addressed, the parties have raised many extraneous issues with their arguments, evidence, and

pleadings that will not be discussed.

B.

What Issues Are Not Before the Court

Consequently, all other issues, including the following, are not before the CourtThis Court is not commenting on or deciding the popularity of or the relative wisdom
of Secretary Napolitano?s decision to implement the DACA program or the 
decision to phase out the DACA program.

This order does not and should not be read to suggest or require the DHS or the
Department of Justice to prosecute or initiate immigration or deportation proceedings
against any individual or group of individuals.

This Court is not deciding whether the DACA recipients are ultimately bene?cial or
detrimental to the well-being of the States, nor is it deciding if they ultimately benefit
or burden the States? economies.

This opinion does not address, nor should be read as a comment upon, the relative
merits of immigration, legal or otherwise, except insofar as it must to decide whether
the DACA program itself (and the manner in which it was instituted) is legal.

The DACA program was not created as an asylum program, and nothing herein
should be read as affecting the rules and laws governing asylum. While there seem to
be differences of opinion as to what constitutes an ?amnesty? program, nothing herein
should be read as favoring or disfavoring the concept of asylum or amnesty.

The Court is not called upon to, nor will it, create or substitute its own notion of an

immigration policy, as Courts are not the vehicles to enact the legislative policies that

Case Document 319 Filed in TXSD on 08/31/18 Page 6 of 117

control immigration. That is the sole province of Congressf?

7) This Court cannot and will not weigh or critique the attributes and qualities of any of
the individual DACA recipients, including the Defendant?Intervenors herein. For
purposes of this order concerning injunctive relief, the Court accepts as true the
testimony and af?davits of the individual Defendant?Intervenors, assumes they are
individuals of sound character, and relies in toto on the representations made by their
counsel as to each one being a person of good repute.

8) Since the DACA program is one of non-enforcement of the laws enacted by Congress
and since it is one allegedly predicated on the Executive Branch?s historical right to
exercise prosecutorial discretion, this Court may necessarily need to discuss certain
aspects of law enforcement. Nevertheless, nothing herein should be interpreted as
representing this Court?s opinion either in favor of, or in opposition to, the means or
methods of law enforcement being utilized by this or any prior administration.
Further, nothing in this opinion should be read as ordering law-enforcement of?cials
how to prioritize objectives, deploy individuals, or marshal their resources. It is not
within this or any other court?s purview to dictate to the Executive Branch what
means or methods it should use to enforce the law?as long as the means and
methods are legal and the Executive Branch is actually enforcing the law.

II. Factual Background
For many years, Congress has considered granting legal status to the so~called

?Dreamers? (typically de?ned as aliens who came to or were brought to the United States as

 

6 See Arizona v. United States, 567 U.S. 387, 394?95 (2012) (citing U.S. Const. art. I, 8, cl. 4 [?The Congress . . .
shall have Power . . . To establish an uniform Rule of Naturalization?] and explaining that ?[t]he Government of the
United States has broad, undoubted power over the subject of immigration and the status of aliens?).

6

Case Document 319 Filed in TXSD on 08/31/18 Page 7 of 117

children). Nevertheless, for whatever reason, Congress has failed or refused to pass any such
legislation. In June of 2012, the DHS adopted such a program by means of a memorandum
issued by then-Secretary Janet Napolitano. Memorandum from Janet Napolitano, Exercising
Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children
(June 15, 2012) [Doc No. 5, Ex. An illegal alien7 applicant can qualify for the DACA
program if he or she:

0 came to the United States under the age of sixteen;

- has continuously resided in the United States for at least ?ve years preceding
[June 15, 2012] and is present in the United States on [June 15, 2012];

is currently in school, has graduated from high school, has obtained a general
education development certi?cate, or is an honorably discharged veteran of
the Coast Guard or Armed Forces of the United States;

a has not been convicted of a felony offense, a signi?cant misdemeanor offense,
multiple misdemeanor offenses, or otherwise poses a threat to national
security or public safety; and

is not above the age of thirty.

Id. Instead of just using its power of prosecutorial discretion not to enforce the national

immigration laws as to these qualifying individuals, the DHS, as an integral part of the DACA

 

7 The Court understands that some people ?nd 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 law. See Arizona v.
United States, 567 US. 387, 397 (2012). Furthermore, the Fifth Circuit in the Texas I opinion explains why ?illegal
alien? is a preferable label in a case like this:

?The usual and preferable term in [American English] is illegal alien. The other forms have arisen
as needless euphemisms, and should be avoided as nearwgobbledygook. The problem with
undocumented is that it is intended to mean, by those who use it in this phrase, ?not having the
requisite documents to enter or stay in the country legally.? But the word strongly suggests
?unaccounted for? to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the

meaning.
More than one writer has argued in favor of undocumented alien . . . [to] avoid[] the implication
that one?s unauthorized presence in the United States is a crime . . . . Moreover, it is wrong to

equate illegality with criminality, since many illegal acts are not criminal. Illegal alien is not an
opprobrious epithet: it describes one present in a country in Violation of the immigration laws
(hence 

(quoting Bryan A. Garner, Garner?s Dictionary of Legal Usage 912 (Oxford 3d ed. 2011)).
?[Il]legal alien has going for it both history and well?documented, generally accepted use.?
Matthew Salzwedel, The Lawyer ?s Struggle to Write, 16 Scribes Journal of Legal Writing 69, 76
(2015).

Texas I, 809 F.3d at 148 n.14.

Case Document 319 Filed in TXSD on 08/31/18 Page 8 of 117

program, went further and conferred ?lawful presence? on them. Not only does DACA
effectively exempt its recipients from prosecution and placement into immigration proceedings
for a renewable two-year period, but it also makes the recipients eligible for numerous federal
and state bene?ts, despite the general rule that unlawfully present aliens are ?not eligible
for any Federal public bene?t.? 8 U.S.C. 1611(a). For example, unlawfully present aliens
would normally be barred from receiving Social Security retirement bene?ts, Social Security
disability bene?ts, and health insurance under Part A of the Medicare program because these are
federal public bene?ts. DACA, however, by making its recipients lawfully present, removes an
otherwise insurmountable roadblock to their receipt of Social Security, Medicare, and other
bene?ts.8 Id. see also Texas I, 809 F.3d at 148?49.

Additionally, DACA not only allows, but requires its recipients to apply for work
authorization. [Doc No. 6, at 5] (instructing USCIS to consider DACA applicants for work
authorization); [Doc No 5, Ex. 20, at 23] (requiring DACA applicants to submit an application
for work authorization). Once a recipient has work authorization, he or she can become eligible
for a Social Security number, along with its attendant bene?ts.9 20 CPR. 
8 C.F.R. Further, DACA recipients are also eligible for certain state
bene?ts, such as a Texas driver?s license and access to Texas?s state-subsidized work?study
program. See Tex. Transp. Code Tex. Educ. Code 19 Tex. Admin.

Code id. 

 

8 DACA recipients must still meet the normal criteria to qualify for these bene?ts. Without lawful presence,
however, even an alien who met those criteria would still be ineligible for the bene?ts. Texas I, 809 F.3d at 148?49.
In addition to Social Security and Medicare bene?ts, DACA recipients also can become eligible for bene?ts under
the Railroad Retirement Act of 1974 and the Railroad Unemployment Insurance Act. 8 U.S.C. 1611(b)(4).

9 Among these bene?ts are earned income tax credits, which require a Social Security number. See 26 U.S.C.
see also Texas I, 809 F.3d at 149.

Case Document 319 Filed in TXSD on 08/31/18 Page 9 of 117

An estimated population of 1.5 million peoplelOW?greater than the populations of at least
ten states?potentially qualify for these bene?ts. The Napolitano memorandum, however,
speci?cally concluded by stating that:

This memorandum confers no substantive right, immigration status or pathway to

citizenship. Only the Congress, acting through its legislative authority, can confer

these rights.11

Over the years, more than 800,000 individuals have applied for and received ?lawful
presence? via DACA which, despite the Secretary?s statement, is a form of status, as it prevents
one from being put into removal proceedings and quali?es an individual for a variety of bene?ts
or privileges under state and federal law. This status and its exact parameters have led to

confusion even at the highest levels. For example, during the appeal of Texas I, the following

exchange took place during the Supreme Court argument:

 

'0 Evidence provided to the Court differs in its estimates of the total number of actual and potential DACA
recipients. See Decl. of Douglas S. Massey [Doc. No. 225, Ex. 73, at 7] (?According to the latest statistics from U.S.
Citizen and Immigrant Services (2018), there are 814,000 young people registered for Decl. of M. Ray
Perryman [Doc. No. 225, Ex. 74, at 6] (?As of March 31, 2018, there were 693,850 persons across the country
enrolled in DACA . . . see also Gustavo Lopez Jens Manuel Krogstad, Pew Research Center, Key Facts About
Unauthorized Immigrants Enrolled in DACA (Sept. 25, 2017), 
(?About 70,000 former DACA
participants did not renew their bene?ts or had their renewal applications denied. Another 40,000 have adjusted their
legal status and obtained green cards, which grant lawful permanent residence?). At oral argument, counsel for
Defendant-lntervenors suggested that the current total of individuals holding DACA status is approximately
702,000, down from a number exceeding 800,000 due to either the failure to renew or the adjustment of status.
Hearing Tr. 100:24 (Aug. 8, 2018) [Doc. No. 302]. These numbers do not include those people who have not yet
applied for DACA, which may bring the total number of eligible persons as high as 1.9 million, according to
evidence provided by Defendant-Intervenors. See Decl. of M. Ray Perryman [Doc. No. 225, Ex. 74, at 6] (estimating
?1.3 million people nationwide are eligible to apply for Ike Brannon, The Economic and Fiscal Impact of
Repealing DACA, Cato at Liberty (Jan. 18, 2017, 3:00 PM) [Doc. No. 225, Ex. 113] is estimated that there
could be another one million eligible residents who have not yet applied [in addition to an estimate of 750,000
current Roberto G. Gonzales et al., Ctr. for Am. Progress, Taking Giant Leaps Forward:
Experiences of a Range of DACA Bene?ciaries at the 5?Year Mark (2017) [Doc. No. 225, Ex. 125, at l] (describing
DACA as ?a policy that temporarily defers deportations . . . for up to an estimated 1.9 million eligible unauthorized
young adults?). Rather than relying on extrinsic sources or arguments of counsel, the Court instead will consider the
evidence presented in this case. Based on that evidence, the Court will use a midrange number of approximately 1.5
million eligible people.

1' Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came
to the United States as Children (June 15, 2012) [Doc. No. 5, Ex. 

9

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 10 of 117

Chief Justice John Roberts: Lawfully present does not mean you?re legally
present?

Solicitor General Verrilli: Correct.

Justice Samuel Alitolawful to work here but not
lawful to be here?12

The DACA program started with approximately 152,431 approvals in 2012, 427,616 in
2013, and 238,899 in 2014.13 In late November of 2014, then-Secretary of DHS, Jeh Johnson,
attempted to expand the DACA program and implement a new lawful presence program entitled
Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA.
Projections varied about the size of the population that would have been eligible under these
proposed amendments, but most projections for Expanded DACA and the DAPA program
estimated they would give an additional 4.3 million individuals law?Jl presence. Thus, the
possible population of illegal aliens with lawful presence due to DACA, Expanded DACA, and
DAPA would have been raised to just under 6 million (or more than 50% of the estimated 11.3
million illegal aliens in the country).14

Twenty-six states, including all of the Plaintiff States in this case, ?led the Texas I
lawsuit to stop the implementation of the DAPA program and the expansion of the DACA
program. In Texas I, all parties agreed that DAPA would be run like DACA and that the Court

could assume as much for purposes of considering the request for an injunction. After extensive

 

12 Transcript of Oral Argument at 28, United States v. Texas, 136 S. Ct. 2271 (No. 15-674).

?3 US. Citizenship and Immigration Services, Number of Form I-821D, Consideration of Deferred Action for
Childhood Arrivals, by FY, Quarter, Intake, Biometrics and Case Status FY 2012-2017 (March 31, 2018) [Doc No.
225, Ex. 23].

14 Most parties, many experts, and most governmental units rely on an estimate of 11.3 million illegal aliens. It
originates with a Study done by the Pew Research Center that estimated the illegal alien population as of March
2013. See Jeffrey S. Passel et al., Pew Research Center, As Growth Stalls, Unauthorized Immigrant Population
Becomes More Settled (Sept. 3, 2014) [Doc No. 225, Ex. 52, at Given the nature of being in the country
illegally, no person, entity, or governmental unit really knows how many aliens are illegally in the country.

10

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 11 of 117

brie?ng and a full hearing, this Court entered a preliminary injunction based upon the likelihood
that the DAPA and Expanded DACA programs should have, at the very least, undergone the
notice?and-comment procedures required by the APA.

After the order issued, the Government explained all of its known law-enforcement
objectives that to its mind undergirded the creation of the two deferred action programs. In a
later hearing, this Court pointed out that the injunction did not enjoin any of those functions. The
injunction only prohibited the DHS from giving lawful status (and many other bene?ts) to
millions whom Congress had categorized as illegal. The DHS then explained that the reason they
wanted to award lawful presence was not to support any direct law-enforcement goal, but was
instead to incentivize aliens to participate in the program.i5 After this Court ruled, the
Government chose to appeal in lieu of beginning the notice-and-comment procedures. The Fifth
Circuit af?rrned this Court?s ruling regarding DAPA and Expanded DACA and the procedural
APA violation, but it went further and ruled that the programs also violated the substantive
requirements of the APA. It stated in pertinent part:

The interpretation of those provisions that the Secretary advances would allow

him to grant lawful presence and work authorization to any illegal alien in the

United States?an untenable position in light of the intricate system of

immigration classi?cations and employment eligibility. Even with ?special

deference? to the Secretary, the INA ?atly does not permit the reclassi?cation of

millions of illegal aliens as lawfully present and thereby make them newly
eligible for a host of federal and state bene?ts, including work authorization.



Moreover, if deferred action meant only nonprosecution, it would not necessarily
result in lawful presence. Although prosecutorial discretion is broad, it is not
?unfettered.? Declining to prosecute does not transform presence deemed unlawful
by Congress into lawful presence and confer eligibility for otherwise unavailable
bene?ts based on that change. Regardless of whether the Secretary has the
authority to offer lawful presence and employment authorization in exchange for

 

'5 Texas 1 Hearing Tr. 28?30 (Mar. 19, 2015).
11

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 12 of 117

participation in DAPA, his doing so is not shielded from judicial review as an act
of prosecutorial discretion.



In summary, the states have established a substantial likelihood of success on the
merits of their procedural claim.16

The Supreme Court not only undertook to review Texas I on both APA grounds, but
actually entered an order expanding the appeal:

The petition for a writ of certiorari is granted. In addition to the questions

presented by the petition, the parties are directed to brief and argue the following

question: ?Whether the Guidance violates the Take Care Clause of the

Constitution, Art. 11 33??

Ultimately, after the death of Justice Antonin Scalia, which left the Supreme Court with
only eight justices, the Court af?rmed the Fifth Circuit with a one-sentence Opinion, indicating
that the eight remaining justices were deadlocked and that the judgment was affirmed by an
equally divided Court.18 Texas I was returned to this Court for a trial on the merits but was
ultimately dismissed with all parties signing the stipulation quoted above.

As is evident, the Plaintiff States in Texas I dismissed that case with the understanding
that DACA was to be dissolved. The Govemment?s attempt to phase out the program has been
blocked by two injunctions from district courts in California and New York. Those injunctions
only applied to people already enrolled in the DACA program. In late April, however, a District
of Columbia district court indicated that it intended to block the attempts to rescind any
aspect of DACA, which would effectively require the Government to accept even new DACA

applications. This order has since been stayed in part, but it seems to have prompted the Plaintiff

States to file this action.

 

'6 Texas 1,809 F.3d at 184, 167, 178.
17 Order Granting Certiorari, Texas 12. United States, 136 s. Ct. 906 (2016) (No. 15-674).
?8 Texas v. United States, 136 s.Ct. 2271 (2016).

12

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 13 of 117

The Other Recent DACA Decisions Do Not Suggest That This Court Should Refrain
From Ruling.

The Defendant-Intervenors moved for dismissal or alternatively asked this Court to defer
ruling in this case based upon other ongoing cases that deal with the decision of the DHS to
phase out DACA. Their primary argument was that those courts were the ?rst to address the
program and that this Court should therefore defer to their rulings as a matter of comity.

This Court denied the request for several reasons. First, this Court need not defer to the
rulings in the four cases discussed below because those decisions involve the legality of the
DACA rescission memorandum?wan issue this Court does not address. Second, the argument?s
primary premise is incorrect. This Court was the ?rst to address these issues?well before any of
the courts in question. This can be seen quite clearly when one reviews the transcript of one of
the very ?rst hearings of the earliest case in question, Batalla Vidal v. Trump, 279 F. Supp. 3d
401 (E.D.N.Y. 2018). As the following exchange indicates, the main thrust of the September 22,
2016 hearing was based upon this Court?s injunction in Texas I:

The Court: . . . So, tell me why are you here after my colleague down in the

Southern District of Texas, that erudite jurist, has issued nationwide preliminary

injunction and you want me to carve out what you might call the Second Circuit
exception to that, if you will?

The Court: That?s why you feel you can be here and that the preliminary
injunctive relief that was granted in the Southern District of Texas and af?rmed
by the Fifth Circuit would not reach his situation here in New York? Is that it?

Mr. Bloom: Yes.

The Court: I understand. I know you have a problem. Understood. But then,
again, I have a problem which is the rights of this individual, all right, and
whoever else comes along. So I understand that and maybe perhaps I?ll decide
whatever I decide. Someone will take it up to the Second Circuit and guess what?

13

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 14 of 117

There might be a circuit split or the circuit will say they agree with the Fifth

Circuit or we should give full faith and credit and comity, whatever you want to

call it, to the actions of the Fifth Circuit in order to avoid placing the government

in an untenable position.

By that time there will be a new president and there will be a new Congress and it

may be an issue in the political branches and we may not have anything to do

here. I have no idea. But right now the question is the plaintiff has brought this

problem to me and, as sympathetic as I am to the government?s predicament, the

plaintiff has brought the issue to the court and I should be dealing with the issue if

I can. Maybe I can?t, and we?re going to find out if I should. That?s all.

So I understand your problem. I sympathize with your problem, but I do not

sympathize with the idea that I am hamstrung in dealing with an issue involving

individual rights and including the right to go make a living and have a life as an
immigrant in the United States. So I don?t know what?s going on out there in

Texas on the border but I know what ?s going on in New York. And I?m very

concerned about it and have absolutely no intention of simply marching behind in

the parade that?s going on out there in Texas, if this person has rights here.19

This exchange is important for multiple reasons. First, it illustrates the point that those
cases involved some of the same issues as those involved in Texas I. The ?rst plaintiff in the ?rst
case was seeking an order to avoid this Court?s injunction. Second, it illustrates that neither
comity nor a nationwide injunction prevents a district court from hearing a case. Third, to a
casual reader, the New York court?s comments may seem off-hand, as the judge was just getting
into the case; however, the point the judge was making concerning circuit splits has gained more
and more interest among commentators and courts.

Justice Clarence Thomas recently questioned the advisability of a district court entering a
nationwide injunction. Trump v. Hawaii, 138 S. Ct. 2392, 2424 (2018) (Thomas, ., concurring).
Similar questions have been raised in the lay press as well. See, Jason, L. Riley, When
District Judges Try to Run the Country, Wall Street J. (July 18, 2018), at A17. This Court agrees

with the overall tenor of both Justice Thomas?s concurrence and Mr. Riley?s thoughtful opinion

piece. Moreover, several recent law review articles have addressed the pros and cons of

 

?9 [Doc. No. 188, Ex. 3, at 34?1, 12?13] (emphasis added).
14

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 15 of 117

nationwide injunctions. See Samuel Bray, Multiple Chancellors: Reforming the National
Injunction, 131 Harv. L. Rev. 417 (2017); Michael T. Morley, Nationwide Injunctions, Rule
23(b)(2) and the Remedial Powers of Lower Courts, 97 B.U. L. Rev. 611 (2017); Zayn Siddique,
Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017); Gretzel Burger, Note, Nationwide
Injunctions Against the Federal Government: A Structural Approach, 92 N.Y.U. L. Rev. 1068
(2017). Some of these authors have suggested that some of the advantages of nationwide
injunctions are uniformity, judicial ef?ciency, and the ability of a court to award complete relief.
They have also suggested that some of the disadvantages include a premature freezing of the law,
the weakening of the certiorari process by preventing circuit splits, territorial clashes between
courts, plaintiffs ?ling cases until they ?nd a court that will rule in their favor, and forum
shopping. Each of these reasons for and against such an injunction is not without some degree of
merit.

Most of those same authors have suggested a variety of remedies such as: limiting relief
to the physical limits of the court?s jurisdiction, limiting relief to highly signi?cant questions,
limiting relief to issues involving questions of general applicability, limiting relief to the circuit
in which each court sits, and giving the narrowest relief possible. All of these proposed solutions
merit consideration as well.

The problem that a district court encounters is how to craft an order that gives the
apprOpriate relief to the prevailing party, but also makes sense in an immigration context.
Interestingly, after noting the recent concern over nationwide injunctions, the New York court
eventually entered one. The court encountered some of the same problematic and practical
factors this Court faced in Texas I. It wrote:

Nevertheless, the court ?nds that a nationwide injunction is warranted in these
cases. First, it is hard to conceive of how the court would craft a narrower

15

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 16 of 117

injunction that would adequately protect Plaintiffs? interests. Plaintiffs include not
only several individuals and a nonprofit organization, but also sixteen states and
the District of Columbia. To protect the State Plaintiffs? interests, the court would
presumably need to enjoin Defendants from rescinding the DACA program with
respect to the State Plaintiffs? residents and employees, including the employees
of any instrumentalities of the state, such as public hospitals, schools, and
universities. Such an injunction would be unworkable, partly in light of the simple
fact that people move from state to state and job to job, and would likely create
administrative problems for Defendants. Furthermore, there is a strong federal
interest in the uniformity of federal immigration law. See US. Const. art. I, 8,
cl. 4 (empowering Congress to ?establish a uniform Rule of Naturalization?);
Texas, 809 F.3d at 187?88. Because the decision to rescind the DACA program
had a ?systemwide impact,? the court will preliminarily impose a ?systemwide
remedy.? Lewis v. Casey, 518 US. 343, 359, 116 S. Ct. 2174, 135 L.Ed.2d 606
(1996) (quoting Dayton Bd. of Educ. v. Brinkman, 433 US 406, 420, 97 
2766, 53 L.Ed.2d 851 (1977)).20

These are many of the same factors pointed out in Texas I by this Court and the Fifth Circuit.
The court in New York could not envision any effective relief narrower than a nationwide
injunction in part because it had sixteen states as plaintiffs. Texas 1 involved twenty-six states
from eleven different circuits, so fashioning a circuit-based remedy was, for all practical
purposes, impossible. These states ranged from North Dakota to Texas and from North Carolina
to Nevada. Limiting an injunction to those twenty-six states or a geographic area was a virtual
impossibility when an individual can freely travel. Such an injunction would have been
ineffective. The DAPA and Expanded DACA programs would have gone into effect in less than
half of the country. Could a DAPA recipient with lawful presence in New York travel to Texas,
have an encounter with immigration of?cers in Texas, and be placed in immigration proceedings
because there was an injunction forbidding its rollout in Texas? The court in Batalla Vidal, like
this one in Texas I, Clearly gave consideration to limiting the relief it awarded, and it too could

not conceive of a narrower path to follow:

 

2" Batalla Vidal, 279 F. Supp. 3d at 437?38.
16

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 17 of 117

The court enjoins rescission of the DACA program on a universal or ?nationwide?
basis. Again, it does not do so As Defendants correctly note, equitable
principles provide that the court should not enter an injunction that is broader than
?necessary to provide complete relief to the plaintiffs.? (Defs. Opp?n at 50
(quoting Madsen v. Women ?s Health Ctr., Inc, 512 US. 753, 765, 114 
2516, 129 L.Ed.2d 593 See also Church Dwight Co. v. SPD Swiss
Precision Diagnostics, 843 F.3d 48, 72 (2d Cir. 2016) relief
should be no broader than necessary to cure the effects of the harm caused by the
violation. . (internal quotation marks and citations omitted) Moreover, several
academic commentators have insightfully observed various problems with the
practice of granting nationwide injunctions against the Government, including
that such injunctions thwart the development of law in different courts, encourage
forum-shopping, and create the possibility that different courts will issue
con?icting nationwide injunctions.21

While not referenced in Justice Thomas?s rump v. Hawaii concurrence, the broad grant of
standing articulated in Massachusetts v. EPA and its progeny further complicates the national
injunction issue, as does the imperative that immigration policy be uniform. Broad grants of
standing for states, municipalities, and groups combine with the requirement that immigration
policy be uniform, and together they create a perfect storm that results in remedies no one
prefers?not judges, not lawyers, not lay peeple.

The third reason this Court will not defer to the other courts is that it is not entering an
order that is contrary to any of the quartet of orders discussed below. While this opinion certainly
expresses views contrary to some of those expressed by the other courts, its ruling herein does
not leave the parties facing con?icting injunctions.

Finally, there are four decisions concerning the DACA phase out, and they did not reach

the same result on the issues they addressed.22 Their results are inconsistent; consequently, a

 

21 Batalla Vidal, 279 F. Supp. 3d at 437?38.

22 Actually, Defendant-Intervenors claim this Court is either bound by or should defer to Regents of Univ. of Cal. v.
US. Dept. ofHomeland Sea, 279 F.Supp.3d 1011 (NB. Cal. 2018), Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401
(E.D.N.Y. 2018), and/or NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018) that, of course, issued rulings
favorable to their positions. They did not argue that this Court should follow the ruling in Casa de Maiyland v. US.
Dept. ofHomeland Sea, 284 F. Supp. 3d 758 (D. Md. 2018), a case that ruled contrary to the continuation of the
DACA program. 

17

Case Document 319 Filed in TXSD on 08/31/18 Page 18 of 117

different result here certainly would not disrupt any sense of uniformity.

This Court has reviewed each of those opinions carefully and ?nds none to be
controlling. While various aspects of each opinion are informative, none were decided by a court
that is bound to follow Fifth Circuit precedent. Additionally, each court worked with records
different from the record in Texas I and the record now before this Court. As one would expect
given different records, each ultimate ruling could also be different. The Court will brie?y
recount each case in chronological order of their actual decisions.

The ?rst decision from the quartet was issued in January of this year in Regents of the
University of California 12. US. Department ofHomeland Security. 279 F. Supp. 3d 1011 (ND.
Cal. 2018). That court was asked whether the decision of the DHS to rescind DACA, as
articulated by the September 5, 2017 memorandum of Acting DHS Secretary Elaine C. Duke,
was effective. That court held that it was not, as the court found the memorandum?s reasoning to
be insuf?cient and ?awed, and therefore ineffective. Id. at 1037?43. It further ruled that the
additional reasons proffered by Government lawyers were ?post hoc rationalizations? and
refused to consider them. Id. at 1043?46. While conceding that ?at least some of the [Fifth
Circuit] majority reasons for holding DAPA illegal would apply [to in large part it

23 written about

found a memorandum from the Of?ce of Legal Counsel memorandum
DAPA two years after DACA was instituted, to be more persuasive. Regents, 279 F. Supp. 3d at

1042. The California court ultimately entered an order enjoining the rescission of any DACA

status already granted and any renewals for existing DACA recipients. Id. at 1048?49. It held

 

23 US. Department of Justice?s November 19, 2014, Memorandum Opinion for the Secretary of Homeland Security
and the Counsel to the President (Nov. 19, 2014) [Doc No. 5, Ex. 19]. In the OLC memorandum, DACA was
discussed as a blueprint for DAPA and Expanded DACA. Nevertheless, given the ruling in Regents and the other
cases discussed herein, this Court assumes those judges who relied on the OLC memorandum concerning DAPA did
so in part due to the OLC footnote that actually recounts advice given as to legality.

18

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 19 of 117

that new DACA applications need not be processed and that DHS could stop allotting advance
parole (which provides an easier pathway to legal status for some DACA recipients). Id.

One month later in the case discussed above, a district court in New York awarded
substantially the same relief in Batalla Vidal v. Trump. 279 F. Supp. 3d 401 (E.D.N.Y. 2018).
The court disagreed with the assertion that DACA might violate the APA, basing its decision on
many of the same factors discussed above. Id. at 420?29. While acknowledging that the Fifth
Circuit had ruled on DAPA, it did not mention or give any credence to the fact that the Fifth
Circuit had also ruled against Expanded DACA and the fact that both DAPA and those
amendments were instituted in the same manner as the original DACA program. Id. Ultimately,
the Batalla Vidal court concluded that DACA did not con?ict with the INA and, like the
California court, arrived at that conclusion by citing the OLC memorandum, as well as the briefs
?led by the Solicitor General in the Supreme Court and the Fifth Circuit dissent in Texas I. Id. at
426?27.

Next, a district court in Maryland reached a decision in Casa de Maryland v. US.
Department of Homeland Security. 284 F. Supp. 3d 758 (D. Md. 2018). It ruled that ?the
decision to rescind DACA was neither arbitrary nor capricious, but rather was a carefully crafted
decision supported by the Administrative Record.? Id. at 772.

The rescission of a policy relating to prosecutorial discretion does not shock the
conscience of this Court. Absent congressional action, the bene?ts given to
Dreamers by DACA were in potential violation of congressional immigration
laws; the only thing that has changed is that deferred status will expire, and
enforcement of immigration laws may recommence in the absence of action by
Congress, which the President has requested. There is nothing surprising or
unfair about policies, laws, or enforcement thereof changing with an election
cycle. Furthermore, the election process, and not federal litigation, is the
apprOpriate method for resolving any fairness implicated in DA CA ?s rescission.24

 

2? Id. at 777 (emphasis added).
19

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 20 of 117

Both the California and New York decisions were cited as authority by the plaintiffs in
the Maryland case, but the court rejected their conclusions:

All courts reviewing the DACA rescission would bene?t from a prior
generation?s wisdom regarding the separation of powers: sturdy judiciary
should not be swayed by the unpleasantness or unpopularity of necessary
executive action, but must independently determine for itself whether the
President was acting, as required by the Constitution, to ?take Care that the Laws
be faithfully executed.? Youngstown Sheet Tube Co. v. Sawyer, 343 US 579,
709, 72 863, 96 1153 (1952).

The decisions to date by courts in California and New York are premised on the
legal conclusion that DACA is lawful, and therefore, a decision to rescind DACA
on the basis of unlaw?ilness is necessarily arbitrary and capricious. Respectfully,
this Court disagrees. Regardless of the lawfulness of DACA, the appropriate
inquiry is whether or not DHS made a reasoned decision to rescind DACA based
on the Administrative Record. Any alternative inquiry would impermissibly
require a court to ?substitute its judgment for that of the agency.? See Motor
Vehicle Mfrs. Ass?n ofU.S. v. State Farm Mut. Auto. Ins. CoCt. 2856, 77 2d 443 (1983). Given the fate of DAPA, the legal advice
provided by the Attorney General, and the threat of imminent litigation, it was
reasonable for DHS to have concluded?right or wrong?that DACA was
unlawful and should be wound down in an orderly manner. Therefore its decision
to rescind DACA cannot be arbitrary and capricious.25

The Maryland court concluded that the Government was free to rescind DACA, but it
enjoined the Government from using any information provided by a DACA recipient during the
DACA application process against that recipient. Id. at 779.

Finally, a district court in Washington, DC. ruled in a fourth DACA-rescission case,
NAACP v. Trump. 298 F. Supp. 3d 209 (D.D.C. 2018). It originally indicated that it would vacate
the Government?s memorandum rescinding DACA (including all new applications and renewals)

but temporarily suspended that ruling to allow a supplementation of the record:

 

25 Id. at 767?68 (internal footnote omitted).

20

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 21 of 117

Here, the Department?s decision to rescind DACA was predicated primarily on its
legal judgment that the program was unlawful. That legal judgment was Virtually
unexplained, however, and so it cannot support the agency?s decision. And
although the government suggests that rescission was also predicated on
the Department?s assessment of litigation risk, this consideration is insuf?ciently
distinct from the agency?s legal judgment to alter the reviewability analysis. It
was also arbitrary and capricious in its own right, and thus likewise cannot
support the agency?s action. For these reasons, rescission was unlawful
and must be set aside.26

The court realized the DHS decision was based upon its review of the Fifth Circuit?s
decision on DAPA and Expanded DACA, but concluded:

The Department?s conclusion that DACA was implemented without statutory
authority?based only on an incongruous reference to the Fifth Circuit?s decision
on DAPA?therefore cannot support the program?s rescission.27

Thereafter, the DC. court analyzed a subsequent memorandum from DHS Secretary
Kirstjen Nielsen and found it equally de?cient. NAACP v. Trump, No. 17-1907, 2018 WL
3702588 (D.D.C. Aug. 3, 2018). The court, instead of refusing to consider the memorandum at
all, as urged by the plaintiffs, elected to treat part of the June 2018 memorandum as a ?further
explanation? of the original rescission memorandum. 1d. at It declined to consider the 
claim that DACA encourages more illegal immigration because it appeared ?for the ?rst time on
remand and is therefore imperrnissibly post 1106.? Id. at It analyzed the remaining portions of
the Nielsen memorandum and found that they were ?legal determination[s] dressed up as a
policy judgment.? Id. at It further rejected the Government?s concession that the DHS was

not using individualized discretion in the implementation of DACA because the court concluded,

 

26 Id. at 249.
27 Id. at 239.
21

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 22 of 117

quite reasonably, that this was a problem that Secretary Nielsen herself could ?x.28 Id.

On the actual merits of the second memorandum, the court found it to be a mere
rehashing of the original September 5, 2017 Duke memorandum with no ?meaningful
elaboration on the Duke Memo?s assertion that DACA is unlawful.? Id. at *11. Ultimately, the
second memorandum provided no convincing rationale to persuade the court to revise its prior
conclusion that rescission was ?arbitrary and capricious.? Id. at *12?13. The court
explained its decision in its closing paragraph:

Finally, a few words about the nature of the relief being granted by this Court.

The Court did not hold in its prior opinion, and it does not hold today, that DHS

lacks the statutory or constitutional authority to rescind the DACA program.

Rather, the Court simply holds that if DHS wishes to rescind the program?or to

take any other action, for that matter?it must give a rational explanation for its

decision. See 5 U.S.C. 706(2). A conclusory assertion that a prior policy is

illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions,

simply will not do. The Court therefore reaffirms its conclusion that 

rescission was unlawful and must be set aside.29

The NAACP court also relied upon the OLC memorandum as authority to dispute the
Attorney General?s conclusion that DACA might also violate the Constitution.30 NAACP, 2018
WL 3702588, at *11. The Government has appealed the DC. court?s order vacating the
rescission of DACA. In its most recent ruling, the DC. court stayed its earlier order in part and

will not require the Government to accept new initial applications or applications for advance

parole during the pendency of the appeal. It ordered that the DHS rescission decision as to

 

28 While this Court agrees with the conclusion that the DHS Secretary might be able to exert pressure to actually
effectuate individual discretion, it carries with it the basic assumption that no court will subsequently enjoin the
DACA processors from actually exercising that discretion.

29 Id. at *13.

30 The OLC memorandum analyzed the concepts of prosecutorial discretion and deferred action in the context of the
Take Care Clause. See US. Department of Justice?s November 19, 2014, Memorandum Opinion for the Secretary of
Homeland Security and the Counsel to the President (Nov. 19, 2014) [Doc. No. 5, Ex. 19]. The OLC memorandum
did not address potential procedural and substantive violations of the APA by name, although certain passages can
be read as referring to the APA.

22

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 23 of 117

current DACA recipients and renewals was vacated. Thus, its current orders effectively match
the rulings in California and New York. [Doc. No. 313, Exs. 

Overall, there is little to be gleaned from these prior DACA decisions that is applicable to
the questions posed in this case. Three courts found the DHS rescission ineffective and enjoined
or vacated it, and one found it legal and did not enjoin the rescission but did enjoin any use of
DACA recipient information. Only the Casa De Maryland court seemed to give any credence to
the fact that the original 2014 challenge to DAPA and Expanded DACA was only dismissed due
to the decision to rescind DACA, which seems at least relevant to the claim that it
considered the litigation risk prior to its decision:

analogous program, promulgated by the analogous means?mhad been
defeated less than a year prior. The litigation that stopped DAPA included
expansions of DACA itself. The same plaintiffs who defeated DAPA threatened
to challenge DACA imminently. The Attorney General of the United States?the
nation?s chief legal of?cer?provided legal advice that DACA was likewise
unlawful and likely ill-fated against a legal challenge. All of this is in the
Administrative Record?the remnants of the DAPA litigation, the threatened legal
challenge, and the Attorney General?s advisory letter.

Therefore, what did the Acting Secretary of DHS do? She opted for a six?month
wind?down period instead of the chaotic possibility of an immediate termination,
which would come at a time known only to the judge resolving a future challenge
to the DACA program. This decision took control of a pell-mell Situation and
provided Congress?the branch of government charged with determining
immigration policy?an opportunity to remedy it. Given the reasonable belief that
DA CA was unlawful, the decision to wind down DACA in an orderly manner was

. 31
raaonal

As stated above, it is important to note that these courts were primarily faced with the
issue of the Government?s rescission of its creation and implementation. Second,

one must note that none of these courts are bound by Fifth Circuit precedent. In fact, more than

 

31 Casa de Maryland, 284 F. Supp. 3d at 772~73 (emphasis added and internal footnotes omitted).
23

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 24 of 117

one judge referred to the dissent in the Fifth Circuit?s opinion with approval. Obviously, being a
court in the Fifth Circuit, this Court cannot adopt and follow a Fifth Circuit dissent. Third, some
courts seem to assume that use of program-wide discretion was suf?cient. For example,
both of the courts in Regents and Batalla Vidal took issue with the Fifth Circuit?s conclusion in
Texas I that the APA requires the actual personnel reviewing DACA applications to be the
individuals exercising discretion. Those courts felt that the agency exercised its discretion by
setting out the criteria in the 2012 memorandum and that ?exercise? was all that was necessary.
In other words, a ?programmatic? exercise of discretion would suf?ce. See Regents, 279 F. Supp.
3d at 1039; Batalla Vidal, 279 F. Supp. 3d at 424?25 (suggesting that discretion at the agency
level, as opposed to the individual of?cer level, would suf?ce to exempt DACA from notice and
comment).

This Court ruled differently for many reasons, but it will mention three. This approach is
contrary to the very essence of prosecutorial discretion. Under that approach, the Secretary could
have given lawful presence to every alien unlawfully in the country. Further, that procedure is
contrary to the very OLC memorandum upon which those courts rely. That memorandum
speci?cally recounted an oral warning the OLC gave the DHS regarding DACA:

Before DACA was announced, our Of?ce was consulted about whether such a

program would be legally permissible. As we orally advised, our preliminary view

was that such a program would be permissible, provided that immigration

o?icials retained discretion to evaluate each application on an individualized

basis. We noted that immigration of?cials typically consider factors such as

having been brought to the United States as a child in exercising their discretion

to grant deferred action in individual cases. We explained, however, that

extending deferred action to individuals who satis?ed these and other speci?ed

criteria on a class-wide basis would raise distinct questions not implicated by ad

hoc grants of deferred action. We advised that it was critical that, like past

policies that made deferred action available to certain classes of aliens, the DA CA
program require immigration oj?cials to evaluate each application for deferred

24

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 25 of 117

action on a case-by-case basis, rather than granting deferred action
automatically to all applicants who satis?ed the threshold eligibility criteria. 32

Thus, it advised that an exercise of program-wide discretion by the Secretary was problematic.
The record in Texas I compelled this Court?s ?nding that no individual discretion was being
exercised by those actually evaluating applications. Consequently, the DHS could ?nd no
support from the OLC memorandum. Finally, given the bene?ts DAPA was to confer, and the
binding programmatic protocols issued by the Secretary of the DHS, the conclusion that there
must be compliance with the notice-and?comment requirements of the APA was unassailable.

These decisions also gloss over the fact that the Fifth Circuit af?rrned an injunction not
just against DAPA, but also against Expanded DACA. Finally, all three courts that actually ruled
against the decision to rescind DACA seemed to put heavy reliance on the OLC
memorandum. That memorandum did not address the advice given concerning the legality of
except for the footnote quoted above. What was more important for this Court, and no
doubt for the Fifth Circuit in Texas I, was the fact that the OLC memorandum did not include an
in-depth APA analysis. The decisions enjoining DAPA and Expanded DACA were based on
those programs? failure to comply with the requirements of the APA, not on the other legal
challenges.

Perhaps the only common thread between all four of these decisions, at least as analyzed
by this Court, was aptly expressed by the court in Casa de Maryland:

The result of this case is not one that this Court would choose if it were a member

 

32 U.S. Department of Justice?s November 19, 2014, Memorandum Opinion for the Secretary of Homeland Security
and the Counsel to the President (Nov. 19, 2014) [Docn8] (emphasis added).

33 The OLC memorandum addressed an expansion of deferred action to include parents of United States citizens and
of lawful permanent residents and parents of DACA recipients, the latter of which it found impermissible because
?[t]he logic underlying such an expansion does not have a clear stopping point . . . Id. at 33. Ultimately, no
counsel defending the DAPA or Expanded DACA programs could articulate any reason that the criteria could not be
expanded to include the entire illegal alien population.

25

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 26 of 117

of a different branch of our government. An overwhelming percentage of
Americans support protections for ?Dreamers,? yet it is not the province of the
judiciary to provide legislative or executive actions when those entrusted with
those responsibilities fail to act. As Justice Gorsuch noted during his con?rmation
hearing, ?a judge who likes every outcome he reaches is probably a pretty bad
judge, stretching for the policy results he prefers rather than those the law
compels.?

This Court does not like the outcome of this case, but is constrained by its
constitutionally limited role to the result that it has reached. Hopefully, the
Congress and the President will finally get their job done.34

Although the other courts reached different conclusions, given the tenor of their
decisions, this Court feels safe assuming that each would agree with the hope for a legislative 
Having found that there is no reason to defer to the decisions governing the rescission of
DACA, this Court proceeds to address the merits.

IV. This Case Unquestionably Presents a Case or Controversy.

Separate from the preliminary injunction motion, the Defendant-Intervenors have ?led a
motion to dismiss this case for lack of subject matter jurisdiction. [Doc. No. 118]. In the motion,
they argue that this case does not meet Article case-or-controversy requirement and is
therefore not justiciable. See US. Const. art. 111, 2. As Defendant?Intervenors suggest the case
should be dismissed without reaching the merits of the preliminary injunction motion, the Court
addresses this issue ?rst.

To be justiciable under Article a case must present a genuine controversy between
adverse parties. See INS v. Chadha, 462 US. 919, 939 (1983). The Defendant-Intervenors argue
that this case does not present such a controversy, as the Plaintiff States and the Government

?take the same position? regarding legality and ?desire the same result?that it be

 

34 Casa de Maryland, 284 F. Supp. 3d at 779 (internal footnotes omitted).
26

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 27 of 117

rescinded.? [Doc. No. 188, Ex. 1, at 13]. Even under this framing, however, the Supreme Court?s
modern pronouncements on the case-and-controversy requirement indicate that this case presents
a justiciable controversy.

In United States 12. Windsor, 570 US. 744 (2013), the Supreme Court considered whether
a justiciable controversy existed where the Executive Branch continued to enforce a statute
against an individual despite agreeing with her that the statute was unconstitutional. Edith
Windsor and Thea Spyer married as a same-sex couple outside the United States.35 Windsor, 570
US. at 753. They lived in New York, which recognized their marriage. Id. After Spyer died and
left her estate to Windsor, Windsor paid federal estate taxes on the property she received. Id.
Windsor sought a refund of those taxes under the marital exemption from the estate tax, but the
lntemal Revenue Service denied her the refund because the Defense of Marriage Act 
prevented same-sex couples from being considered ?spouses? for purposes of the marital
exemption. Id. Windsor sued, arguing that DOMA violated the Fifth Amendment?s guarantee of
equal protection. Id.

During the pendency of the suit, the United States Attorney General noti?ed Congress
that the Department of Justice did not intend to defend the constitutionality of DOMA because
the President concluded the statute was unconstitutional. Id. Despite that conclusion, the
President instructed the Department of Justice to continue enforcing the statute, recognizing ?the
judiciary as the ?nal arbiter of the constitutional claims raised.? Id. at 754 (citation omitted). The
district court ultimately held that Windsor was entitled to a refund because DOMA was

unconstitutional, and the Second Circuit af?rmed that conclusion. Id. at 754?~55. The United

 

35 At the time, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which recognized a fundamental right to marry for
couples of the same sex, had not yet been decided.

27

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 28 of 117

States continued to withhold the tax refund, however, and the Supreme Court granted certiorari
to review the judgment. Id. at 755.

Due to the case?s posture, the Supreme Court appointed an amicus curiae to argue against
the Court?s jurisdiction over the case. The amicus argued that the suit was no longer adverse
after the district court had ordered payment and the United States and Windsor agreed on the
issue of the illegality of DOMA. Id. at 756. In that sense, both sides had prevailed in the lower
courts. Id. Granting certiorari and ruling on the merits was therefore inappropriate, according to
the argument, because neither party actually sought any true redress from the tax-refund
judgment. Id.

The Supreme Court, however, took a broader view of adverseness and controversy.
Under the majority?s reasoning, the United States ?retain[ed] a stake suf?cient to support Article
jurisdiction?:

The judgment in question orders the United States to pay Windsor the refund she

seeks. An order directing the Treasury to pay money is ?a real and immediate

economic injury,? Hem, 551 US, at 599, 127 2553, indeed as real and

immediate as an order directing an individual to pay a tax. That the Executive

may welcome this order to pay the refund if it is accompanied by the

constitutional ruling it wants does not eliminate the injury to the national Treasury

if payment is made, or to the taxpayer if it is not. The judgment orders the United

States to pay money that it would not disburse but for the court?s order. The

Government of the United States has a valid legal argument that it is injured even

if the Executive disagrees with 3 of DOMA, which results in Windsor?s liability

for the tax. Windsor?s ongoing claim for funds that the United States refuses to

pay thus establishes a controversy suf?cient for Article jurisdiction. It would

be a different case if the Executive had taken the further step of paying Windsor

the refund to which she was entitled under the District Court?s ruling.36

Thus, the Supreme Court found that even where ?the Government largely agree[s] with the

opposing party on the merits of the controversy,? the Government?s intent to enforce the

 

36 Id. at 757?58.
28

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 29 of 117

challenged law provided sufficient adverseness to maintain jurisdiction over the suit. Id. at 759
(quoting Chadha, 462 U.S. at 940 11.12).

The dispute between the Plaintiff States and the Government easily ?ts within the fact
pattern af?rmed by Windsor. Though they ?largely agree . . . on the merits? of legality,
the Government continues to administer the program to comply with the California, New York,
and DC. courts? injunctions/vacatur.37 The Government?s promulgation and continued operation
of the DACA program is the alleged source of the Plaintiff States? injuries, which is true
regardless of whether the Government agrees with the States on the merits. Due to the fact that
the Government continues to Operate the DACA program and indicates they will continue to
operate it in the future to the detriment of the Plaintiff States, this case presents an Article 
controversy between adverse parties under Windsor.

In addition to the jurisdictional requirements discussed above, the Court must also
consider the prudence of exercising its jurisdiction here. Windsor, 570 U.S. at 760. Situations
where opposing parties in a lawsuit take the same position on the primary legal issues in the case
present a great risk of judicial misstep, as the suit may ?lack the concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.? Id. (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Given
how the proceedings have unfolded to date, however, that risk does not exist here. The parties

have more than ably illuminated the challenging issues upon which this case turns. Though they

 

37 The fact that the Government continues DACA because of these injunctions does not change the Article 111 case-
or-controversy analysis. See INS v. Chadha, 462 U.S. 919, 940 n.12 (1983) (citing Bob Jones Univ. v. United States,
461 U.S. 574, 585 n.9 (1983)) Bob Jones University v. United States], the United States agreed with Bob Jones
University and Goldsboro Christian Schools that certain Revenue Rulings denying tax exempt status to schools that
discriminated on the basis of race were invalid. Despite its agreement with the schools, however, the United States
was complying with a court order enjoining it from granting tax-exempt Status to any school that discriminated on
the basis of race. Even though the government largely agreed with the opposing party on the merits of the
controversy, we found an adequate basis for jurisdiction in the fact that the government intended to enforce the
challenged law against that party.? (emphasis added)).

29

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 30 of 117

happen to agree on many of the legal aspects of the DACA program, it is clear that the
Govermnent is vigorously guarding its own interests rather than serving in a ?friendly, non-
adversary? role relative to the Plaintiff States. See, ag, [Doc. No. 305, at (Government
arguing?in contradiction to the Plaintiff States? position?that the DACA memorandum did not
modify substantive rights and bene?ts in a way that would require notice and comment).

Further, the presence of the Defendant?Intervenors and the State of New Jersey?each of
which vehemently opposes the legal positions taken by the Plaintiff States?adds additional
clarity to the Court?s consideration of the issues in this case. The Supreme Court in Windsor
noted that one consideration that may assist in determining the appropriateness of exercising
jurisdiction is ?the extent to which adversarial presentation of the issues is assured by the
participation of amici curiae prepared to defend with vigor? the legal issues at hand. Windsor,
570 US. at 760. The Defendant-lntervenors surely ?ll this role?perhaps even better than an
amicus as suggested by Windsor?due to their demonstrated, concrete interest in the outcome of
the litigation. Even if their participation was considered insufficient for some reason, this Court
has also been provided with numerous amicus curiae briefs that buoy their position.
Consequently, this case is much more adverse than Windsor.

For these reasons, the Court is assured that this case presents a justiciable, adverse
controversy and that there are minimal prudential concerns with its exercise of jurisdiction.38 The
Court turns next to consider whether the Plaintiff States have standing.

V. The Plaintiff States Have Standing.
Article of the Constitution limits the judicial power of the United States to ?Cases?

and ?Controversies.? US. Const. art. 111, 2. Though these terms are not self~de?ning, they have

 

33 In the same motion to dismiss, the Defendant-Intervenors present an additional jurisdictional the
Plaintiff States? injuries are not redressable. The Court discusses that argument in its standing analysis below.

30

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 31 of 117

long been understood to con?ne ?the business of the federal courts to questions presented in an
adversary context and in a form historically viewed as capable of resolution through the judicial
process.? Massachusetts 12. EPA, 549 U.S. 497, 516 (2007) (quoting Flast v. Cohen, 392 U.S. 83,
95 (1968)). Federal courts have deduced certain requirements from the text and structure of the
Constitution that ensure they act only within their proper adjudicatory role. Lexmark Int Inc. v.
Static Control Components, Inc, 134 S. Ct. 1377, 1386 (2014). Among those requirements is
standing.

Article standing has three elements. A plaintiff must show that he or she has suffered
(1) an injury in fact, (2) that is fairly traceable to the defendant?s challenged conduct, (3) which
is likely to be redressed by a favorable judicial decision. See Lujan v. Defs. of Wildlife, 504 U.S.
555, 560?61 (1992). An injury in fact must be ?concrete, particularized, and actual or imminent.?
Clapper v. Amnesty Int?l USA, 568 U.S. 398, 409 (2013).

Defendant-Intervenors contend that this case should be dismissed for lack of standing. As
the parties invoking federal jurisdiction, the States bear the burden of proving standing. Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). At the preliminary injunction stage, satisfying this
burden requires the States to make a ?clear showing that they have standing to maintain the
preliminary injunction.? Barber v. Bryant, 860 F.3d 345, 352 (5th Cir. 2017) (citations and
internal quotation marks omitted). A single plaintiff with standing satis?es the case-on
controversy requirement of Article Rumsfeld v. Forum for Acad. Institutional Rights, Inc,
547 U.S. 47, 52 n2 (2006). As the States have centered their standing arguments around
impact in Texas, the Court?s analysis focuses on whether Texas has standing to sue.

The States assert multiple independent theories of standing. Additionally, they claim they

are entitled to special solicitude when this Court makes its standing determination due to the

31

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 32 of 117

Supreme Court?s decision in Massachusetts v. EPA. This Court ?rst considers whether Texas is
entitled to special solicitude in the standing analysis, then considers whether any of the proffered
theories support standing.

A. Special Solicitude

The Court ?rst considers whether Texas is entitled to special solicitude. The Supreme
Court in Massachusetts did not precisely explain what effect special solicitude has on the
standing analysis,39 but at the very least, it appears to shore up weaknesses presented by
attenuated causation and redressability arguments. See Massachusetts, 549 US. at 523 (?nding
causation and redressability despite the agency?s arguments that ?its decision not to regulate
greenhouse gas emissions . . . contribute[d] so insigni?cantly to petitioners? injuries that [it could
not] be haled into federal court to answer for them? and that there was not ?any realistic
possibility . . . that the relief petitioners [sought] would mitigate global climate change and
remedy their injuries?). The Fifth Circuit interpreted special solicitude to lessen the certainty
needed in the traditional causation and redressability analysis, and this Court must give effect to
that interpretation, as it is binding precedent. See Texas I, 809 F.3d at 159 (?In addition to its
notion that Texas could avoid injury, the government theorizes that Texas?s injury is not fairly
traceable to DAPA because it is merely an incidental and attenuated consequence of the
program. But Massachusetts 12. EPA establishes that the causal connection is adequate. Texas is
entitled to the same ?special solicitude? as was Massachusetts, and the causal link is even closer
here?). Under the law set forth in Massachusetts v. EPA and Texas I, the Court ?nds that Texas

is entitled to special solicitude.

 

39 See Massachusetts, 549 US. at 540 (Roberts, C.J., dissenting) (?It is not at all clear how the Court?s ?special
solicitude? for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners
cannot establish standing on traditional terms?)

32

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 33 of 117

In Massachusetts v. EPA, the State of Massachusetts challenged the decision of the
Environmental Protection Agency not to regulate certain vehicle emissions. 549 U.S. at
505. The EPA sought dismissal of the case on the ground that Massachusetts lacked standing to
sue. Id. In deciding that Massachusetts did have standing, the Supreme Court?s analysis turned in
part on Massachusetts?s status as a state. Id. at 518?20. Unlike most private parties, the majority
reasoned, ?[s]tates are not normal litigants for the purposes of invoking federal jurisdiction.? Id.
at 518. Certain circumstances may entitle them to special solicitude in the Court?s standing
analysis because of their unique position in the federal system. Id. at 520.

The Court focused on two factors in its standing analysis before granting special
solicitude to Massachusetts. First, it noted that Congress had provided Massachusetts a
procedural right to challenge the action in question. Id. at 519?20. Through the Clean Air Act,
Congress had ordered the EPA to protect Massachusetts and others against air pollution by
prescribing emissions standards for motor vehicles. Id. Alongside this command came a
procedural right by which Massachusetts could challenge the rejection of its rulemaking petition
as arbitrary and capricious. Id. at 520. The Court suggested that this type of litigation, which
?turn[ed] on the proper construction of a congressional statute,? presented ?a question eminently
suitable to resolution in federal court.? Id. at 516.

Second, the Court focused on Massachusetts?s desire to protect its quasi-sovereign
interest in its territory. Id. at 518?19. According to the majority, early twentieth-century case law
recognized that a state?s ?independent interest ?in all the earth and air within its domain?? could
?support[] federal jurisdiction.? Id. (quoting Georgia v. Tenn. Copper C0., 206 U.S. 230, 237
(1907)). The Court recognized that Massachusetts similarly desired to preserve its sovereign

territory, speci?cally its coastline from the threat of rising sea levels. Id. at 518?19, 522. Due to

33

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 34 of 117

its status as a state in the union, however, Massachusetts had ?surrender[ed] certain sovereign
prerogatives? that would otherwise afford it the ability to protect its own interest. Id. at 519. As
stated by the Court:

Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas

emissions, it cannot negotiate an emissions treaty with China or India, and in

some circumstances the exercise of its police powers to reduce in?state motor~

vehicle emissions might well be pre-ernpted. See Alfred L. Snapp Son, Inc. v.

Puerto Rico ex rel. Barez, 458 US. 592, 607, 102 3260, 73 L.Ed.2d 995

(1982) (?One helpful indication in determining whether an alleged injury to the

health and welfare of its citizens suffices to give the State standing to sue parens

patriae is whether the injury is one that the State, if it could, would likely attempt

to address through its sovereign lawmaking 

Since those prerogatives ?are now lodged in the Federal Government,? rendering
Massachusetts unable to regulate the harms associated with air pollutants, the Court stressed
Congress?s command to the EPA to protect Massachusetts from those harms. Id. at 519?20. In
light of these two factors?Massachusetts?s procedural right to challenge the (in)action
and its quasi-sovereign interest in protecting its territory~the Court found that Massachusetts
was ?entitled to special solicitude? in the Court?s standing analysis. Id. at 520.

For purposes of this analysis, this Court does not write on a clean slate. The Fifth Circuit
in the DAPA litigation analyzed the special solicitude question on facts substantially similar to
the ones here. See Texas I, 809 F.3d at 151??55. First, it found Texas?s procedural right to
challenge the DAPA guidelines to be analogous to Massachusetts?s right to challenge the

decision not to promulgate emissions standards:

Like Massachusetts, the instant plaintiffs?the states??are not normal litigants
for the purposes of invoking federal jurisdiction,? id. at 518, 127 1438 and
the same two additional factors are present. First, ?[t]he parties? dispute turns on
the proper construction of a congressional statute,? the APA, which authorizes
challenges to ??nal agency action for which there is no other adequate remedy in
a court.? 5 U.S.C. 704. Similarly, the disagreement in Massachusetts v. EPA

 

4? 1d.
34

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 35 of 117

concerned the interpretation of the Clean Air Act, which provides for judicial
review of ??nal action taken[ by the Administrator.? 42 U.S.C. 

Additionally, though the Clean Air Act provided a more speci?c procedural right than the
the Fifth Circuit found that the difference did not change Massachusetts 12. 
applicability:

In enacting the APA, Congress intended for those ?suffering legal wrong because
of agency action? to have judicial recourse, and the states fall well within that
de?nition. The Clean Air Act?s review provision is more speci?c than the 
but the latter is easily adequate to justify ?special solicitude? here. The procedural
right to challenge EPA decisions created by the Clean Air Act provided important
support to Massachusetts because the challenge Massachusetts sought to bring?a
challenge to an agency?s decision not to act?is traditionally the type for which it
is most dif?cult to establish standing and a justiciable issue. Texas, by contrast,
challenges af?rmative decision to set guidelines for granting lawful
presence to a broad class of illegal aliens. Because the states here challenge
decision to act, rather than its decision to remain inactive, a procedural
right similar to that created by the Clean Air Act is not necessary to support
standing. See 5 use. 704.42

The Fifth Circuit?s analysis applies equally to Texas?s procedural right to challenge
DACA. As such, Texas satis?es the ?rst factor to qualify for special solicitude.

The Fifth Circuit?s analysis of the second factor?affecting the States? quasi?sovereign
interests?does not translate to this case as easily as the ?rst factor. The majority Opinion in the
DAPA litigation focused on ?imposing substantial pressure on [the plaintiff states] to
change their laws, which provide for issuing driver?s licenses to some aliens and subsidizing
those licenses.? Id. at 153. Texas in this litigation has not asserted standing on the basis of
driver?s-license costs. Nevertheless, as explained more fully in this Court?s parens patriae

standing analysis, Texas has demonstrated a quasi-sovereign interest in the economic well?being

 

4' Id. at 152.
42 1d.

35

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 36 of 117

of its citizens, which amply supports Texas?s entitlement to special solicitude in the standing
analysis.

The Supreme Court in Alfred L. Snapp Son, Inc. v. Puerto Rico ex rel. Barez
recognized that a state has a ?quasi-sovereign interest in the health and well-being??both
physical and economic??of its residents in general.? 458 US. 592, 607 (1982). The Court noted
that the challenged conduct or program, whether by its direct or indirect effects, must injure ?a
suf?ciently substantial segment of [the state?s] population.? Id. In other words, ?more must be
alleged than injury to an identi?able group of individual residents.? Id. A helpful indicator of
whether such an injury suf?ces, the Court remarked, is ?whether the injury is one that the State,
if it could, would likely attempt to address through its sovereign lawmaking powers.? Id.

Texas has certainly demonstrated such an interest. The States accurately allege that the
DACA program bypasses Congress?s comprehensive immigration framework to grant
unlawfully present individuals lawful presence and thereafter work authorizations. DACA
recipients in turn may compete with legally present individuals for available jobs, which can
result in DACA recipients being hired for jobs for which legally present individuals have applied
and otherwise would have been hired. The States further argue that the Patient Protection and
Affordable Care Act, 26 U.S.C. 4980H exacerbates this problem. As explained in the
Court?s parens patriae analysis, businesses are not required to provide health insurance to
DACA recipients like they are to legally present employees. This makes DACA recipients less
costly to employ, incentivizing employers to hire DACA recipients over similarly quali?ed
Texas residents. Taken together, these elements create a more competitive labor market in which
it is more dif?cult for legal residents of Texas to obtain jobs.

In its quasi?sovereign interest analysis in Texas I, the Fifth Circuit found that the States?

36

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 37 of 117

interests also implicated the same sorts of sovereignty concerns as Massachusetts?s interests did
in Massachusetts v. EPA:

When the states joined the union, they surrendered some of their sovereign

prerogatives over immigration. They cannot establish their own classi?cations of

aliens, just as ?Massachusetts cannot invade Rhode Island to force reductions in

greenhouse gas emissions [and] cannot negotiate an emissions treaty with China

or India.?

Texas I, 809 F.3d at 153 (quoting Massachusetts, 549 U.S. at 519); see also Arizona v. United
States, 567 U.S. 387 (2012) (discussing the ways in which federal law preempts state law in the
area of immigration).

As in Massachusetts v. EPA and Texas I, the States ?rely on the federal government to
protect their interests,? and Congress has provided them a procedural vehicle?the do
so. Texas I, 809 F.3d at 154.43 That being the case, the Plaintiff States have shown that Texas is
entitled to special solicitude in this Court?s standing analysis.

B. Parens Patriae Standing

The States assert their standing to sue on the basis of the parens patriae doctrine. Parens
patriae standing allows a state to sue a defendant to protect the interests of its citizens at large.
Alfred L. Snapp Son, 458 U.S. at 600?02. To do so, however, the state must have its own
Speci?c type of interest;separate from that of its citizens?wthat has been injured. In Supreme

Court parlance, this type of interest has been termed a ?quasi-sovereign? interest. Id. at 601.

The concept of a quasi-sovereign interest is ?a judicial construct that does not lend itself

 

43 In addition to its quasi-sovereign interest in preserving its sovereign territory, Massachusetts also directly owned
some of the coastal land it alleged would be harmed by rising sea levels. Massachusetts, 549 U.S. at 519. The
majority found this fact signi?cant to the special solicitude analysis, though apparently not dispositive. See id.
(?That Massachusetts does in fact own a great deal of the ?tenitory alleged to be affected? only reinforces the
conclusion that its stake in the outcome of this case is suf?ciently concrete to warrant the exercise of federal judicial
power.? (emphasis added)). To the extent direct injury to a State?s interests is relevant, the Court ?nds that DACA
causes direct ?nancial injuries to Texas in the form of increased social services costs. That ?nding is discussed in
detail below in Section V.C.

37

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 38 of 117

to a simple or exact definition.? Id. Recognizing the imprecision inherent in the term, the
Supreme Court in Alfred L. Snapp Son sought to explain what could qualify as a quasi-
sovereign interest. The Court ?rst de?ned quasi-sovereign interests by describing what they were
not. ?They are not sovereign interests,? such as the power to write and enforce a legal code or
maintain a border. Id. They are not a state?s ?proprietary interests, or private interests pursued by
the State as a nominal party.? Id. at 602. Instead, quasi?sovereign interests ?consist of a set of
interests that the State has in the well-being of its populace.? Id.

Not all such interests count, however. A quasi-sovereign interest must also be
?suf?ciently concrete to create an actual controversy between the State and the defendant,? a
concept that ?[could] only be ?lled in by turning to individual cases.? Id. After surveying the
case law, two general categories of quasi-sovereign interests emerge: a state?s interest ?in the
health and well-being?both physical and economic?of its residents in general? and a state?s
?interest in not being discriminatorily denied its rightful status within the federal system.? Id. at
607.

The States seek standing under the ?rst category. Under their theory, DACA injures the
economic well?being of their citizens because those citizens are forced to compete in distorted
labor markets in which it is more dif?cult to obtain a job. This is true for two reasons. First,
DACA recipients receive work authorization under the program, which Texas argues allows
them to compete with a state?s legal residents for jobs. See Memorandum from Janet Napolitano,
Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States
as Children (June 15, 2012) [Doc No. 6, Ex. 1, at Decl. of Donald Deere [Doc. No. 7, Ex. 11,
at 92] addition of some 683,000 work?eligible individuals nationwide, with 112,000 of

these in Texas . . . make it more dif?cult for some US. citizens to ?nd employment?). Second,

38

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 39 of 117

Texas alleges DACA recipients actually have a competitive advantage over those citizens
because they may cost less to employ. Under the ACA, employers with ?fty or more employees
are required to offer health insurance to each of their full?time employees, and employers who do
not offer insurance incur a monetary penalty. The additional cost of providing coverage (or
paying the penalty), however, does not apply when the employee is a DACA recipient. All else
being equal, an employer wishing to minimize costs may rationally prefer to hire a DACA
recipient as opposed to someone legally in the state because employing the DACA recipient
costs less.

Evidence in the preliminary injunction record supports this theory. For instance, in
reSponse to a question asking whether low-skilled DACA recipients ?would increase competition
with other people who are citizens who are also competing for those low skilled jobs,?
Defendant-Intervenors? expert, Dr. Ike Brannon, replied that they would. Dep. of Ike Brannon
[Doc. No. 289, Ex. 3, at 141]. Further, the record demonstrates that some DACA individuals
have been selected over other candidates for highly competitive positions.44

In addition to the arguments brought forth by the parties, many businesses appearing as
amici curiae in this case have indicated they would hire nonrDACA employees if the DACA
program ceased. See [Doc. No. 221, Ex. 1, at 20] Texas business community, including
many Amici and their members, stand to suffer substantial and irreparable injury if DACA is
enjoined because Texas businesses will . . . incur additional costs to ?ll positions now occupied

by Dreamers?); [Doc. No. 204, Ex. 1, at 18] (?If this Court were to enjoin DACA and thereby

 

44 Although not in Texas, one DACA recipient was selected over other applicants for positions in Harvard
University?s Financial Aid Initiative and its Of?ce of Equity, Diversity, and Inclusion. [Doc. No. 219, Ex. 19, at 52
Another was selected over other applicants for a competitive internship, and ultimately a ?ill-time position, as a
social worker in New Jersey?s Depaltment of Children and Families. [Doc. No. 40, at 170?72]; [Doc. No. 219, Ex.
20, at At this stage, the record does not indicate why these candidates were chosen. It could be they were better
quali?ed, cheaper to hire, or due to any number of other reasons. The Court does not need to resolve every factual
controversy to make a standing determination.

39

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 40 of 117

permit Dreamers? work authorizations to expire, companies will face an estimated $6.3 billion in
costs to replace [Doc. No. 192, Ex. 1, at 5] (explaining that New Jersey
businesses would incur substantial costs related to hiring and training new workers if DACA
were terminated). In other words, but for DACA, these businesses would need work?authorized
individuals to meet their business needs, and they would have to hire applicants from a pool
consisting of those legally in the United States. This market imbalance undoubtedly supports
Texas?s claim that an injury to the economic well-being of those legally in Texas exists and the
economic well-being of its residents is a quasi-sovereign interest sufficient to support standing.
Both courts in Regents of California and Batalla Vidal, which are cited favorably by the
Defendant?Intervenors, found that states or state agencies that were plaintiffs in their cases had
standing to protect their work force. Regents, 279 F. Supp. 3d at 1033?35 (finding two states and
two cities had standing); see also Batalla Vidal, 279 F. Supp. 3d at 437?38 (entering an
injunction in favor of sixteen plaintiff states).

Though the States have demonstrated a quasi-sovereign interest, Defendant-Intervenors
argue that parens patriae cannot apply here because the applicable case law states that State
does not have standing as parens patriae to bring an action against the Federal Government.?
[Doc. No. 224, at 35] (quoting Alfred L. Snapp Son, 458 US. at 610 n.16). As an initial
matter, the Court notes that the cited language is dictum, as the federal government was not a
defendant in the case. Nevertheless, there are undoubtedly limits on a state?s ability to sue the
federal government as parens patriae, as evidenced by case law from nearly a century ago. See
Massachusetts v. Mellon, 262 US. 447 (1923). The question this Court must answer is whether
those limits forbid parens patriae standing under the circumstances of this case. The Court ?nds

they do not.

40

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 41 of 117

The language cited from the Snapp case by the Defendant-Intervenors ?nds its origins in
Massachusetts v. Mellon. In Mellon, the Supreme Court considered the justiciability of an action
between the State of Massachusetts and the United States Secretary of the Treasury Andrew
Mellon. Id. at 479480. Massachusetts challenged the constitutionality of the Maternity Act,
which funded state agencies seeking to reduce maternal and infant mortality rates. Id. To
participate in the program, states were required to structure their programs according to federal
guidelines. Id. at 479. Failing to do so could result in the federal government withholding funds.
Id. Massachusetts sued, arguing (among other things) that the Act exceeded Congress?s
legislative authority prescribed by the Constitution?in other words, Congress acted
unconstitutionally by legislating ?for purposes not national, but local to the states.? Id. at 479?80.
The Supreme Court considered Massachusetts?s alleged bases for the invocation of judicial
power and, ?nding them unsatisfactory, dismissed the case. Id. at 480.

After canvassing its precedent on what types of cases were justiciable, the Court
considered Massachusetts?s arguments for justiciability, of which there were two. First,
Massachusetts sought to sue in its own behalf. The Court rejected the argument, on the basis that
Massachusetts had not called upon the Court to adjudicate concrete rights, such as those of
?person or property,? ?dominion over physical domain,? or ?quasi sovereign rights actually
invaded or threatened.? Id. at 484435. Rather, Massachusetts was seeking to invoke the power of
the judiciary for nothing more than an ?abstract question[] of political power.? Id. at 485. Since
rights of the state falling within the scope of the judicial power? were presented for
adjudication, Massachusetts could not invoke the power of the judiciary to pass judgment on the

Maternity Act. Id.

3

 

Massachusetts also argued that it could bring suit ?as the representative of its citizens?

41

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 42 of 117

in other words, as their parens patriae. Id. Under the facts of the case, the Supreme Court held
that Massachusetts could not ?institute judicial proceedings to protect citizens of the United
States ?om the operation of [federal statutes].? Id. (emphasis added). Since ?the citizens of
Massachusetts are also citizens of the United States,? it was not part of Massachusetts?s ?duty or
power to enforce their rights in reSpect of their relations with the federal government.? Id. at
485486. ?In that ?eld,? the Court declared, ?it is the United States, and not the state, which
represents them as parens patriae.? Id. at 486. In other words, because the United States was the
superior parens patriae to Massachusetts, the state could not sue on behalf of its citizens to
protect them from the operation of a federal statute.

It was against this backdrop that the Supreme Court in Alfred L. Snapp Son noted that
State does not have standing as parens patrtae to bring an action against the Federal
Government.? 458 US. at 610 n.16 (citing Mellon, 262 US. 485?86). That statement, however,
is dictum relegated to a closing footnote in the case, unnecessary to the Court?s holding that
Puerto Rico had parens patriae standing to sue private businesses in Virginia. Id. Furthermore,
subsequent development in the case law makes clear that states can sue the federal government
on a parens patriae theory, at least in some circumstances.

In Massachusetts v. EPA, the Court specifically rejected the argument that state parens
patriae standing is categorically barred in suits against the federal government. Justice John Paul
Stevens, writing for the majority, stated that Massachusetts v. Mellon had ?disavowed? a ?broad
reading? of the limits on parens patriae standing because the Court was not ?called upon to
adjudicate. . . quasi-sovereign rights actually invaded or threatened.? Massachusetts v. EPA,
549 US. at 520 n.17. Bolstering the argument, he added that the Court?s holding in Georgia v.

Railroad Co., 324 US. 439, 447 (1945), recognized a ?critical difference between

42

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 43 of 117

allowing a State ?to protect her citizens from the operation of federal statutes? (which is what
Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing
to Id. Relating those principles to the case at hand, the majority stated that ?Massachusetts
does not here dispute that the Clean Air Act applies to its citizens; it rather seeks to assert its
right under the Act.? Id. In a dissent accusing the Court of ?devis[ing] a new doctrine of state
standing,? Chief Justice Roberts wrote that the majority overlooked Supreme Court precedent??
Massachusetts v. Mellon and Alfred L. Snapp Son?that ?cast signi?cant doubt on a State?s
standing to assert a quasi?sovereign interest . . . against the Federal Government.? Id.
Nevertheless, in sum, after Massachusetts v. EPA, parens patriae standing is prohibited where a
state seeks to ?protect her citizens from the operation of federal statutes,? but permitted where a
state wishes ?to assert its rights under federal law.?

Applying that framework to the present lawsuit, Texas is asserting rights under federal
law rather than attempting to protect its citizens from the operation of federal statutes. Like
Massachusetts ?asserting its rights under [the Clean Air] Act,? Texas brings this APA action to
assert its right to comment on what it alleges to be a legislative rule, its right to challenge agency
action it alleges to be outside of the statutory authority, and its right to enforce the lNA?s
protections for American workers. Id. Texas has not submitted ?abstract questions of political
power? to this Court. Mellon, 262 U.S. at 485. It has demonstrated a concrete injury to its quasi-
sovereign interest in the economic well?being of its citizens, ?assur[ing] that the legal questions
presented to the court will be resolved, not in the rari?ed atmosphere of a debating society, but in
a concrete factual context conducive to a realistic appreciation of the consequences of judicial
action.? Valley Forge Christian Coll. v. Ams. United for Separation of Church State, Inc, 454

U.S. 464, 472 (1982). Texas has demonstrated a judicially cognizable injury.

43

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 44 of 117

It is also clear the alleged injuries were caused by DACA. Without the law?il presence
and work authorizations conferred by the program, DACA recipients would be unable to
compete with legally present Texas residents for many jobs in the state. Since the bene?ts
derived from the DACA program allow its recipients to compete with legally present residents,
the causation element is satis?ed.

The ?nal issue the Court must address is whether there is redressability??a likelihood

?45 Steel Co. v. Citizens for a Better Env?t,

that the requested relief will redress the alleged injury.
523 US. 83, 103 (1998). The redressability inquiry turns on whether the plaintiff ?personally
would bene?t in a tangible way from the court?s intervention.? Id. at 103 n.5 (quoting Wart/1 v.
Seldin, 422 US. 490, 508 (1975)). Since the States? quasi-sovereign interest in the economic
well-being of lawful residents is the injury under consideration, the Court considers whether the
requested relief is likely to redress that injury.

The States seek an order enjoining the Government from issuing or renewing all future
DACA permits, as well as a declaratory judgment that DACA violates the Take Care Clause and
the APA. If the Court were to declare that DACA violated law and enjoin or vacate the program,
DACA recipients would no longer be entitled to work authorization. Without work authorization,

they could not compete with the States? citizens and other legally present residents in the labor

market, thereby reducing the labor market distortions about which the States complain.

 

45 Typically, when a litigant seeks to vindicate a procedural right, ?that litigant has standing if there is some
possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly
harmed the litigant.? Texas I, 809 F.3d at 150?51 (citing Massachusetts v. EPA, 549 US. 497 (2007)). Under most
circumstances, a procedural right relaxes standing requirements, but that framework does not apply precisely here.
The ?injury-causing party,? the Government, continues administering the DACA program because they have been
ordered to, rather than by their own volition. It therefore seems inaccurate to say that judicial relief will cause the
Government to ?reconsider? their decision to continue has already reconsidered the decision by
attempting twice to rescind the program. Since it is in this posture, the Court will analyze redressability under the
traditional test.

44

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 45 of 117

Accordingly, the States ?personally would bene?t in a tangible way from the court?s
intervention.? Steel Ca, 523 US at 103 n.5 (quoting Wart/1, 422 US. at 508).

In their motion to dismiss for lack of subject matter jurisdiction, the Defendant-
Intervenors argue that the States cannot satisfy the redressability requirement. [Doc. No. 118].
They argue that any order by this Court would not be able to redress the States? injuries because
the Government is enjoined by other court orders from ending the DACA program and this
Court?s order could not relieve the Government of its obligation to comply with the other courts?
injunctions.

The Court is unpersuaded that other courts? injunctions deprive this Court of jurisdiction
for at least four reasons. First, those courts were not asked to determine the lawfulness of 
rather, they were asked to determine the law?ilness of its rescission. Second, as a general matter,
redressability does not turn on the likelihood that a defendant will comply with a court?s
injunction. In fact, courts typically assume as much, and with good reason: were that not the rule,
a defendant could thwart a court?s jurisdiction simply by announcing the intention to not follow
the court?s order. Courts properly do not engage in this inquiry and instead determine whether an
injunction would redress the plaintiff injury, assuming the defendant complies with the
injunction. Third, the injunctions do not bar this Court from awarding declaratory relief vacating
the 2012 DACA memorandum. Finally, the States seek relief from some injuries that are wholly
outside the activity enjoined by other courts. The States have asked this Court to enjoin both
DACA renewals and new DACA applications. See Pls.? First Am. Comp]. [Doc. No. 104, at 73].
As of the date of this opinion, the California, New York, and DC. courts? injunctions/vacatur
only require the Government to process DACA renewals, leaving the Government free to decide

whether to accept new DACA applications. Thus, were this Court to enjoin the Government from

45

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 46 of 117

processing new DACA applications, that relief would certainly redress some of the States?
injuries, without implicating any of the Defendant?Intervenors? concerns related to con?icting
injunctions.

The Defendant-Intervenors argue that any injunction granted by this Court would not
?unquestionably? redress the States? harm because the order of ?another court would continue to
stand between Plaintiffs and their desired outcome.? [Id at 16?17]; [Id. at 17 (quoting Texas I,
86 F. Supp. 3d 591, 624 (SD. Tex. 2015))]. First of all, that premise is incorrect?nothing
prevents this Court from granting a declaratory judgment giving them complete relief. Further, it
is not the States? burden to show that this Court?s order would ?unquestionably? redress the
States? harm; rather, the States must only show that the injury is ?likely? to be redressed by a
favorable decision. Simon v. E. Ky. Welfare Rights Org, 426 US. 26, 38 (1976). A declaratory
judgment that DACA was implemented illegally or that it was contrary to law could require the
Government to cease the program, the very result the Plaintiff States are seeking. Further, if this
Court were to grant an injunction, it could redress all of Texas?s concerns.

Fifth Circuit case law supports this result. In Hanson v. Veterans Administration, the
Fifth Circuit found redressability on facts less certain than those in this case. 800 F.2d 1381,
1385e~86 (5th Cir. 1986). Hanson concerned the Veterans Administration?s Home Loan
Guaranty Program, which allowed veterans to obtain home loans under favorable terms from
private lenders. Id. at 1383. Lenders were incentivized to issue such loans because, among other
things, the VA would guarantee up to sixty percent of each loan. Id. Before the VA would
guarantee a loan, however, it hired an appraiser to determine the value of the home. Id. The
appraisal was to be based in part on the value of recently sold comparable homes, which would

then be submitted to a VA review appraiser who could adopt, modify, or reject the appraisal. Id.

46

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 47 of 117

The VA would not guarantee any loan for more than the ?gure approved by the VA review
appraiser. Id.

The plaintiffs in the case were a number of individual veterans seeking home loans under
the program. Id. They alleged that the VA appraisers injured their ability to receive a guaranteed
loan by discriminatorily adjusting the appraisals of certain properties downwards because they
were in a racially mixed neighborhood. Id. at 1384. The Fifth Circuit found that one plaintiff,
Professor Otis King, had standing. Id. at 1385. King contracted to buy a house for $46,950, but
he was unable to complete the sale because the VA had issued an appraisal for only $40,000,
?thereby limiting the amount of the loan they would guarantee.? Id. King was unable to
personally ?nance the difference and therefore was unable to purchase the house due to the low
appraisal.

The court considered whether enjoining the discriminatory appraisal practices would
redress King?s injury. Id. The question to be asked, the court explained, is whether ?the prospect
of obtaining relief from the injury as a result of a favorable ruling is too Id.
(quoting Allen v. Wright, 468 US. 737, 752 (1984)). Despite the lack of certainty as to whether a
discrimination-free appraisal would have allowed King to purchase the house, the Fifth Circuit
found that he had shown redressability, as the injunction ?might permit [King] to purchase? the
house. Id. at 1386. Like in Hanson, an injunction of DACA or a favorable declaratory ruling
?might permit? the States to have redress of their injuries. This is particularly true in light of the

special solicitude this Court must afford Texas under Massachusetts v. EPA.46

 

46 As stated earlier, two of the four DACA rescission cases included states as plaintiffs. It is dif?cult to conceive
how states could have standing to challenge the rescission of the DACA program but not have standing to challenge
its enactment.

47

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 48 of 117

C. Standing for Healthcare, Education, and Law-Enforcement Costs

The States also assert standing on the basis of the costs they incur providing DACA
recipients with healthcare, education, and law-enforcement services. The award of lawful
presence triggers many state and federal bene?ts. Additionally, there are other costs implicated
by DACA. For example, by its own terms, the DACA memorandum does not require the States
to provide educational services, but other aspects of federal law do. The States are required under
Plyler v. Doe, 457 US. 202 (1982), to educate all children, regardless of their immigration
status. Similarly, as a condition to participate in federal Medicare and Medicaid, states must
provide emergency services to all individuals, also regardless of immigration status. See 42
U.S.C. ?1395dd; 42 C.F.R. ?440.255. The States argue that DACA increases these costs
because it ?incentivize[s] aliens?who would otherwise be unlawfully present and unauthorized
to work without these programs?to remain in the country, including in the Plaintiff States.?
[Doc. No. 218, at 42]. In other words, because DACA increases the total number of aliens in the
States by disincentivizing those already present from leaving, the States must provide more of
these social services, which cost more. The States have demonstrated both aspects of this causal
chain: they bear the costs of providing these social services required by federal law, and the
DACA program increases the volume of individuals to whom they must provide these services.

First, as explained above, federal law requires the States to provide certain social services
to individuals regardless of their immigration status. For example, Texas alleges it spent more
than $375,000,000 over the past eleven years providing emergency Medicaid services to illegal
aliens. Decl. of Monica Smoot [Doc. No. 7, at 28]. While that ?gure also captures the expenses
borne from aliens, DACA recipients certainly constitute some of those expenses,

too. This is corroborated by the Defendant?Intervenors? expert, who opined that Texas incurs

48

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 49 of 117

more than $250,000,000 in total direct costs from DACA recipients per year. [Doc. No. 219, Ex.
1, at 

Second, the DACA program increases the total number of individuals using Texas?s
social services. DACA relief has been conferred on approximately 115,000 individuals in Texas
as of September 2017. [Doc. No. l, at 82]; [Doc. No. 302, at 93]. Texas argues that some
percentage of these recipients would leave the country if DACA ends. The State Demographer of
Texas, Lloyd B. Potter, found that some DACA recipients ?could be expected to migrate out of
the if they did not have permission to work, and that it was ?reasonable to conclude that
some DACA participants would return to their country of origin if they lose or are not given
permission to work in the Decl. of Lloyd B. Potter [Doc. No. 7, at This claim is
supported by the empirical ?ndings of the Defendant-Intervenors? expert, who conducted a
survey of over 3,000 DACA recipients that found over twenty?two percent of survey respondents
were either likely or very likely to leave the United States if DACA ended. [Doc. No. 219, Ex. 2,
at 4] (survey of Tom K. Wong). Since enjoining DACA would invalidate DACA recipients?
deferred action status and work authorization, this study shows that a quanti?able percentage of
individuals would likely leave the United States. Under those circumstances, Texas would no
longer be obliged to pay for those DACA recipients? social services costs, thereby reducing some
of its ?nancial losses.

Speaking broadly, Defendant-Intervenors have three responses to this argument: ?rst, that
there is no evidence of injury to Texas nor evidence that DACA recipients would leave the
United States if DACA ended; second, that Texas?s purported injuries are not traceable to
and third, that the revenues generated by DACA recipients offset any purported injuries

to Texas.

49

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 50 of 117

The Defendant-Intervenors? ?rst argument?that there is no evidence of injury?focuses
on the fact that the States rely on cost estimates that the Defendant-Intervenors claim are
inaccurate or methodologically ?awed. First, for purposes of the Plaintiff States? standing vis-a-
vis their declaratory judgment action, the Court accepts the States? allegations from their
pleadings that invalidating DACA would reduce the number of DACA recipients using the
States? social services. Cf Venaz?or Grp. Specially, Inc. v. Matthew/Muniot Family, LLC, 322
F.3d 835, 841 (5th Cir. 2003) (assuming the truth of plaintiff?s pleaded allegations to review a
motion to dismiss plaintiff?s declaratory action for lack of justiciability). Second, even with
respect to the preliminary injunction, the Court ?nds that the States have carried their burden
regarding standing. Though the Defendant-Intervenors lodge attacks against the evidence
supporting each type of cost?education, healthcare, and law-enforcement services?the Court
need not address those arguments line?by?line because the States only must show some injury, as
opposed to a ?substantial? injury. See OCA-Greater Houston v. Texas, 867 F.3d 604, 612 (5th
Cir. 2017) (?To be sure, injury was not large. But the injury alleged as an Article 
injury?in?fact need not be substantial; ?it need not measure more than an ?identi?able tri?e.??
This is because ?the injury in fact requirement under Article is qualitative, not quantitative, in



nature. (internal citations omitted)).

The Court is satis?ed that Texas?s evidence demonstrates an injury. Texas has
established that it bears hundreds of millions of dollars in costs providing emergency Medicaid
services to illegal aliens. As discussed above, Texas?s estimates include the costs of providing
emergency services to both DACA recipients and those who do not have DACA status. The

Defendant?lntervenors argue that these costs cannot constitute any ?direct evidence that even a

single DACA recipient bene?tted from these programs? because the costs are estimated and

50

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 51 of 117

because Texas does not inquire about residency or citizenship when providing these services.
[Doc. No. 224, at 27]. For standing purposes, Texas need not plead damages from a particular
individual when it pleads and has proof that it is being damaged by the entire program. In the
scope of a program the size of DACA, with over 115,000 recipients in Texas alone, it is virtually
certain that at least some DACA recipients utilize the emergency Medicaid services Texas is
required to provide them. The Court is not deciding a motion on the merits, rather it is only
determining standing. Finally, and perhaps most importantly for this topic, Defendant-
Intervenors? own witness directly connected the dots for the Plaintiff States. See [Doc. No. 219,
Ex. 1, at 4] (estimate of M. Ray Perryman that DACA recipients impose over $250,000,000 in
costs to Texas annually).

The Defendant-Intervenors? own evidence not only cures any ?aws of which they
complain, it also supports the Plaintiff States? arguments in other ways as well. They cite a
national survey that found approximately ?fty-seven percent of DACA recipients have
employer-based, private health insurance. [Doc. No. 224, at 28]. Their same expert who
discusses that survey also notes that ?[w]ithout private health insurance, DACA recipients would
become more reliant on emergency Medicaid and community?based uncompensated care.? Decl.
of Leighton Ku [Doc. No. 225, Ex. 3, at 121] (emphasis added). Provided these are both true, the
forty-three percent of DACA recipients who do not have employer-based, private health
insurance are likely ?more reliant on emergency Medicaid.?47 see also Decl. of Leighton
Ku [Id at 124] (?2016 NHIS data indicates that DACA-type adults who are not working have a

19 percent probability of using emergency room care in the last 12 months?); Dep. of M. Ray

 

47 That is not to say that forty-three percent of DACA recipients rely on emergency Medicaid services. It is possible
that the DACA recipients without employer-based health insurance acquire their own insurance, rely on community-
based uncompensated care, or self-?nance their medical expenses. The point is not that every DACA recipient
contributes to these costs it is suf?cient that some do. OCA-Greater Houston, 867 F.3d at 612 injury in
fact requirement under Article is qualitative, not quantitative, in nature.? (citations omitted)).

51

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 52 of 117

Perryman [Doc. No. 219, Ex. 8, at 15] (Question: ?You don?t dispute that the State of Texas does

?6

indeed incur a cost to provide health care to DACA recipients?? Answer: . . . I assume there
would be some people in the DACA population who are likely to have some type of care that is
reimbursed in some way by the state?). This is a suf?cient showing of injury for purposes of
demonstrating standing at this stage.

The Defendant?Intervenors? second argument, that Texas?s purported injuries are not
traceable to DACA, is also unpersuasive. The States argue that DACA disincentivizes self-
deportation, thereby causing the States injury because more people use the States? social
services. The Defendant-Intervenors contest the factual basis of this theory, arguing that DACA
does not encourage DACA recipients to stay in the States. They do so primarily by attacking the
credibility of the States? expert on the subject. Even totally discounting the declaration of the
States? expert, however, the Defendant?Intervenors? own expert suf?ciently demonstrates the
causal link between DACA and Texas?s injuries; as mentioned above, Dr. Tom K. Wong?s
survey found that just over twenty-two percent of DACA recipients were either likely or very
likely to leave if the DACA program ended.48 [Doc. No. 219, Ex. 2, at The Defendant-

lntervenors? response to this ?nding is to challenge their own expert?s survey. They claim that

Dr. Wong?s question required DACA recipients to ?predict future behavior,? that it concerned

 

48 This evidence is also related to another argument made by the Defendant-lntervenors?that there is no
redressability (and thus no standing) when an injury stems from the independent actions of third parties rather than a
government policy. See [Doc. No. 224, at 28?29] (citing Texas 12. United States, No. B-94-228, at *7 (SD. Tex.
Aug. 7, 1995), for the proposition that ?the decision to cross the border without documented status results from the
?conscious actions of aliens,? rather than a policy decision of the US. government?). The Court rejects this argument
for two reasons. First, this is not a case where causation and redressability depend on the unmediated and untethered
wills of DACA recipients. Their decisions are, in fact, both mediated by and tethered to DACA, as many DACA
recipients have indicated that their decision to stay or leave the country turns on the continued existence of the
DACA program. In that sense, the injury Plaintiff States complain about is caused by the DACA program and would
be redressed, at least to some extent, if the program were to end. Second, the dissolution of DACA would void the
DACA recipients? deferred action, making them removable. Though not every individual would be removed, some
might, which would reduce the social services costs of which the Plaintiff States complain. Particularly under the
relaxed causation and redressability standards this Court must afford the Plaintiff States under Massachusetts v.
EPA, the Court ?nds that this argument does not undermine the Plaintiff States? case for standing.

52

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 53 of 117

complex decisions that are ?inherently Speculative,? and that the question order might have
?inaccurately bias[ed]? the survey takers, all leading to the conclusion that there are ?strong
reasons to doubt those answers are predictive? of whether former DACA recipients would leave.
[Doc. No. 288, at 16].

These arguments are unavailing at least for standing purposes. People routinely ?predict
[their] future behavior,? even in the face of considerable contingencies. [161.] Although it is
possible that some of the study?s participants might change their minds, that does not destroy
standing for Texas. Further, if some former recipients were to change their minds, more might
decide to leave than to stay. No one can know the answer to this question. What is evident,
however, is that it was the Defendant?Intervenors who decided to seek Dr. Wong?s expert
assistance and submitted his survey for consideration in this lawsuit. Had they taken issue with
the survey?s methodology or results, they could have expressed those concerns to Dr. Wong or
simply not introduced his survey into the preliminary injunction record. Instead, the Defendant-
Intervenors chose an expert with this opinion, knowing from the beginning of the suit that the
States were asserting this basis for standing. See [Doc. No. 5, at 10] Expanded DACA,
and DAPA cause those costs because these programs incentivize aliens?who would otherwise
be unlawfully present and unauthorized to work without these programs?to remain in the
country, including in the Plaintiff States?). While Defendant-Intervenors seem to complain
about the evidence which emanates from their own experts, which they are entitled to do, those

complaints do not change the facts established by those individuals.49

 

49 Defendant?Intervenors make three additional arguments attempting to undermine the results of their own expert?s
survey. They may be dispatched quickly.

First, the Defendant-Intervenors argue that even if that entire twenty-two percent?the 683 DACA recipients who

reported they would likely or very likely leave if DACA endedvlived in Texas, their impact on Texas?s social

services costs would be de minimis. [Doc. No. 288, at 16 Defendant-Intervenors do not cite a case supporting

the proposition that a de minimis injury is not an injury for Article purposes. In fact, the opposite is true. See
53

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 54 of 117

The Defendant-Intervenors? third argument is that ?any purported costs? borne by Texas
as a result of DACA ?would be more than offset by the positive impacts DACA recipients have
on the economy.? [Doc. No. 224, at 32]. The offsetting-bene?t theory to defeat standing was
rejected in Texas I by the Fifth Circuit. See Texas I, 809 F.3d at 155?56 (??Once injury is shown,
no attempt is made to ask whether the injury is out-weighed by bene?ts the plaintiff has enjoyed
from the relationship with the defendant.? . . . ?Our standing analysis is not an accounting
exercise.? (quoting 13A Charles Alan Wright et 211., Federal Practice and Procedure 3531.4;
NCAA 12. Governor of NJ, 730 F.3d 208, 223 (3d Cir. 2013)). Finding no material difference

between the argument there and the one made here, this Court similarly rejects the argument.50

 

OCA-Greai?er Houston, 867 F.3d at 612 injury in fact requirement under Article is qualitative, not
quantitative, in nature.? (citations omitted)). Even if a de minimis injury was insuf?cient for Article purposes,
however, Defendant-Intervenors? criticism misses the point: the States? reliance on the survey is not to Show that
683 speci?c individuals would leave, but rather that some of the people across the entire DACA population (115,000
of which live in Texas) would leave.

Second, the Defendant-Intervenors claim that they personally would not leave if DACA ended, which they argue
?rebuts Plaintiffs? inferences from the Wong survey.? [Doc. No. 288, at 17]. That fact only proves that some DACA
recipients would intend to stay. It does not ?rebut? the survey result that some would leave, which is the proposition
the States seek to establish here. It also assumes that these recipients who are illegal aliens can stay.

Third, the Defendant-Intervenors claim that ?Texas has not shown that any use of public bene?ts are traceable to the
DACA recipients whom Texas claims would leave the state.? [Doc. No. 288, at 15]. In response to a similar
traceability argument in the DAPA litigation, the Fifth Circuit invoked Texas?s special solicitude under
Massachusetts v. EPA. Texas I, 809 .3d at 159. ?For Texas to incur injury, DAPA bene?ciaries would have to
apply for driver?s licenses as a consequence of action, and it is apparent that many would do so. For
Massachusetts?s injury to have occurred, individuals would have had to drive less fuel-ef?cient cars as a result of the
decision, and that would have had to contribute meaningfully to a rise in sea levels, causing the erosion of the
state?s shoreline.? Id. at 159760. The Fifth Circuit concluded that DAPA would cause ?nancial harm to Texas,
which followed a fortiori from the Supreme Court?s conclusion that the decision would cause the erosion of
Massachusetts?s coast. Id. Since Texas is also entitled to special solicitude here, the same reasoning applies.

so The Defendant-Intervenors make two additional arguments, related to ?generalized injur[ies]? and ?generalized
grievances,? that warrant brief discussion. They ?rst claim that the Supreme Court?s decision in Gill v. Whitford, a
political gerrymandering case, stands for the proposition that ?a plaintiff may seek redress of a particularized harm,
but may not cite such narrow interest as grounds to seek redress for a generalized injury.? [Doc. No. 224, at 33]. In
Gill, the Supreme Court held that individual voters did not have standing to challenge ?the statewide harm to their
interests in their collective representation in state legislature, and in influencing legislature?s overall composition
and policymaking.? 138 S. Ct. 1916, 1931 (2018) (quotations omitted). Rather, because a person?s right to vote is
?individual and personal in nature,? the Court ruled that the alleged harm?dilution of the power of one?s vote?is a
?district speci?c? injury. Id. at 1930. Since those harms were district speci?c, the plaintiffs could only have standing
to seek revision of the boundaries of their own districts. Id. The Plaintiff States allege that DACA injures the
economic well?being of its citizens and presents direct, garden-variety ?nancial injuries to the States? treasuries.
Defendant-Intervenors do not explain nor cite authority discussing why either of these types of injury must be
54

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 55 of 117

The Court ?nds Texas has standing because DACA causes them to incur greater social services
costs.51 Since one party has standing, the Court may proceed to address the merits.
VI. DACA is Reviewable Under the APA.

In addition to Article requirements, the APA imposes several statutory52 standards
that must be met before a federal court can review agency action. First, the States must show
they are ?arguably within the zone of interests to be protected or regulated by the statute.?
Wish Band of Pottawatomi Indians v. Patchak, 567 US. 209, 224 (2012)
(quoting Ass ?n of Data Processing Serv. Orgs., Inc. v. Camp, 397 US. 150, 153 (1970)). Second,
the DACA memorandum must constitute ??nal agency action? to be reviewable. See Lujan v.
Nat?l Wildlife Fed 497 US. 871, 882 (1990). Third, the Court must determine whether a
statute precludes judicial review. 5 U.S.C. 701(a)(1). Finally, the Court must determine
whether the DACA memorandum is ?agency action . . . committed to agency discretion by law.?

Id. 701(a)(2). The ?rst three reviewability requirements are uncontested and discussed briefly

 

?district speci?c,? as in the instance of one?s right to vote. As such, the Court declines the opportunity to extend Gill
to this context.

The Defendant?Intervenors also argue that the Court should not review DACA because the Plaintiff States?
grievances would be better resolved by the political branches of the federal government. [Doc. No. 224, at 39]. The
Supreme Court has repeatedly ?rejected claims of standing predicated on the right, possessed by every citizen, to
require that the Government be administered according to law.? Valley Forge, 454 US. at 482?83 (citations and
quotations omitted). Such claims, the Court recognized, ?amount to little more than attempts to employ a federal
court as a forum in which to air . . . generalized grievances about the conduct of government.? Id. at 483 (citations
and quotations omitted). Here, the Plaintiff States do not seek to invoke federal court jurisdiction solely to ?require
that the Government be administered according to law.? They assert their own particularized interests in protecting
the economic well-being of their lawful residents and protecting their treasuries from excess social services costs.
These are not generalized interests in the Government adhering to the rule of law, where ?each person has suffered
the same, indistinct injury? that cannot support standing. 33 Charles Alan Wright et al., Federal Practice and
Procedure 8412. Since the Plaintiff States have demonstrated particularized injuries separate from the widely
shared interest all citizens have in the Government abiding by our laws, the generalized grievance bar does not
prevent the Court from hearing this case.

51 The Court notes that even without a ?nding of special solicitude under Massachusetts v. EPA, it still would have
found the Plaintiff States had standing.

52 The Supreme Court historically considered the zone-of?interests test discussed below to be a prudential standing
requirement. See, Bennett v. Spear, 520 US. 154, 162 (1997). Since Lexmark Int?l, Inc. v. Static Control
Components, Inc, 572 US. 118 (2014), however, the Supreme Court has begun to interpret the test as a statutory
question, rather than one dictated by Article of the Constitution. See Lexmark, 572 US. at 125428. Under either
classi?cation, the result in this case is the same.

55

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 56 of 117

below. The fourth requirement, whether the agency action is committed to agency discretion by
law, is contested and is therefore fully addressed.

A. Zone of Interests, Final Agency Action, and Preclusion by Statute

To proceed under the APA, a plaintiff?s asserted interest must be ?arguably within the
zone of interests to be protected or regulated by the statute? that allegedly was violated. Texas I,
809 F.3d at 162 (quoting Patchak, 567 US. at 224). The test is ?not meant to be especially
demanding,? a point emphasized by the Supreme Court?s consistent and conspicuous use of the
word ?arguably? in it. Id. (quoting Patchak, 567 US. at 225). The zone?of-interests test
?forecloses suit only when a 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.?? Id. (quoting Patchak, 567 US. at 225).

No party in this case appears to challenge that the States? interests are within the zone of
interests of the INA, and in Texas I the Fifth Circuit held as much. Texas I, 809 F.3d at 162?63.
The States meet the zone-of-interests test.

A challenged action must also be ??nal agency action? to be reviewable under the APA.
See Nat?l Wildlife Fed 497 US. at 882 (?When, as here, review is sought not pursuant to
speci?c authorization in the substantive statute, but only under the general review provisions of
the APA, the ?agency action? in question must be ??nal agency action.? (quoting 5 U.S.C.
704)). Like in Texas I regarding the DAPA memorandum, no party contests that the DACA
memorandum is ?nal agency action. See Texas I, 809 F.3d at 163 n.82. This Court ?nds only one
distinction between the DAPA and DACA memoranda on this point. Unlike DAPA, which had
not yet taken effect, DACA went into immediate effect in 2012 and has been in operation since

that time. Therefore, there is no question that the DACA memorandum constitutes ?nal agency

56

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 57 of 117

action.

Further, agency action is not reviewable if there is a statute that precludes judicial review.
5 U.S.C. 701(a)(1). In Texas I, the Government argued that a section of the INA expressly
prohibited judicial review. 809 F.3d at 164.53 The Fifth Circuit rejected the argument, based on
the Supreme Court?s decision in Reno v. American?Arab Anti?Discrimination Committee, 525
US. 471 (1999), which took a narrow view of the statute. That holding is binding on this Court,
and no parties argue to the contrary. As such, judicial review is not precluded by statute. See 5
U.S.C. 701(a)(1).

B. DACA Is Not Action Committed to Agency Discretion by Law.

The Defendant?Intervenors argue that the DACA memorandum is an exercise of
enforcement discretion that is unreviewable under the APA. [Doc. No. 224, at 41]. While
persons adversely affected or aggrieved by ?nal agency action are generally entitled to review of
that action,54 the APA excludes certain kinds of agency action from judicial review altogether.
The Defendant-Intervenors argue that DACA is unreviewable under the APA because it falls into
one of the categories of agency action that is ?committed to agency discretion by law.? 5 U.S.C.
701(a)(2).

Section 701(a)(2) ?preclude[s] judicial review of certain categories of administrative

333

decisions that courts traditionally have regarded as ?committed to agency discretion. Texas I,

809 F.3d at 165 (quoting Lincoln v. Vigil, 508 US. 182, 191 (1993)). Examples of decisions not

 

53 The section in question was 8 U.S.C. 1252(g), which states:

Except as provided in this section and notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and
sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by
or on behalf of any alien arising from the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

5? See 5 U.S.C. 702, 704.
57

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 58 of 117

subject to judicial review are ?an agency?s decision not to institute enforcement proceedings?
and agency action where the statute authorizing agency discretion is ?drawn in such broad terms
that in a given case there is no law to apply.? Id. (quoting Lincoln, 508 US. at 191; Perales v.
Casillas, 903 F.2d 1043, 1047 (5th Cir. 1990)). The Defendant?Intervenors assert that DACA is
an exercise of the Secretary?s enforcement discretion with respect to the removal of aliens and
that the INA does not ?set constraints on exercise? of that discretion. [Doc. No. 224, at
42]. As they recognize, however, the Fifth Circuit in Texas I held DAPA and Expanded DACA
to be reviewable. [Id. at 43]. The reasons stated by the Fifth Circuit are equally applicable to
DACA.

The Fifth Circuit rejected the argument that DAPA and Expanded grant of
deferred action constituted an unreviewable exercise of prosecutorial discretion. Texas I, 809
F.3d at 166. Though the bare decision not to prosecute may be presumptively unreviewable, the
Fifth Circuit found that deferred action under the program was ?much more than
nonenforcement? because the DAPA program ?would af?rmatively confer ?lawful presence? and
associated bene?ts on a class of unlawfully present aliens.? Id. By removing a categorical bar to
the receipt of federal bene?ts, DAPA made a class of individuals eligible for those bene?ts,
thereby ?providing a focus for judicial review.? Id. The majority found that this constituted
?af?rmative agency action? with ?meaningful standards against which to judge Id. at
168?69.

DAPA and Expanded DACA were thus reviewable under Section 701(a)(2). Id. at 169.
The same is true of the original DACA, which provides lawful presence and the exact same
bene?ts. Though the Defendant-Intervenors caution this Court not to extrapolate between DAPA

and DACA, they have not suggested any meaningful distinction between the two with respect to

58

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 59 of 117

Section 702(a)(2) reviewability. Like DAPA and Expanded DACA, DACA is not simply non-
enforcement; its grant of deferred action confers lawful status and the bene?ts that ?ow from it,
including work authorization.

The Defendant?Intervenors attempt to distinguish DACA from the Fifth Circuit?s analysis
of DAPA in two ways. First, they suggest that the analysis should be different because the
DACA?eligible population is a smaller proportion of the total undocumented population in the
United States compared to the DAPA?eligible population?approximately ten percent versus
thirty?eight percent, according to the Defendant-Intervenors. See [Doc No. 224, at 44] (citing
Texas I, 809 F.3d at 14748). This difference may be relevant for purposes of the Court?s
consideration of the merits, but it is immaterial to whether this Court may review an APA
challenge to DACA. See Texas I, 809 F.3d at 167 (?Regardless of whether the Secretary has the
authority to offer lawful presence and employment authorization in exchange for participation in
DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion?).
The Defendant-Intervenors? second argument is that the DACA memorandum ?did not
fundamentally shift the likelihood of DACA?eligible non?citizens remaining in the United States,
or create a change of ?economic and political magnitude? because DACA-eligible individuals
have backgrounds that make them unlikely to be prioritized for removal, even without the
DACA memorandum. [Doc. No. 224, at 45]. Even assuming the truth of this assertion, it has no
bearing on whether there are ?meaningful standards against which to judge? DACA. The
Expanded DACA and DAPA p0pulations may be different, but, like DACA, both programs

would have granted deferred action to confer lawful presence and numerous federal bene?ts55 to

 

55 The Defendant?Intervenors also argue that DACA does not confer bene?ts on DACA recipients. They assert

DACA recipients actually receive bene?ts from regulations independent of the program. DACA, however, grants

lawful presence, which is a prerequisite to eligibility for those benefits. The Fifth Circuit made clear that 

need not directly confer public bene?ts? to be reviewable; instead, ?removing a categorical bar on receipt of those
59

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 60 of 117

eligible individuals who would otherwise be ineligible. As such, this Court ?nds the programs
indistinguishable for purposes of determining their reviewability under the APA.

Defendant-Intervenors make one additional argument that is not based on trying to
distinguish DACA from DAPA or Expanded DACA. Instead, their argument focuses on
subsequent Supreme Court precedent that arguably ?clari?e[s] the law in a way that undermines
the Fifth Circuit?s earlier reasoning.? [Doc. No. 224, at 45]. They claim that ramp v. Hawaii,
138 S. Ct. 2392 (2018), stands for the proposition that when ?the Executive addresses
enforcement discretion with respect to a class, such a decision is unreviewable under the 
[Id at 47]. Although both rump v. Hawaii and this case concern Executive Branch discretion
with respect to immigration, differences in the relevant law and facts make rump v. Hawaii
inapplicable to this case.

ramp v. Hawaii considered the interaction between the Establishment Clause and the
President?s statutory authority to restrict alien entry into the United States. Section 1182(t) of the
INA authorizes the President to ?suspend the entry of all aliens or any class of aliens? whenever
he ?nds that their entry ?would be detrimental to the interests of the United States.? 5 U.S.C. 
1182(f); ramp 12. Hawaii, 138 S. Ct. at 2407. Pursuant to that authority, the President issued a
proclamation deeming it necessary to restrict the entry of nationals from certain countries that
either posed a national security risk or did not adequately share information for an informed
entry decision. rump v. Hawaii, 138 S. Ct. at 2403. After ?nding that the proclamation had been
validly issued under the statute, the Court turned to the plaintiffs? claim that the proclamation

violated the Establishment Clause because most of the countries subject to entry restrictions had

 

7?

bene?ts and thereby making a class of persons newly eligible for them ?provides a focus for judicial review. Texas
I, 809 F.3d at 167 (quoting Heckler v. Chaney, 470 US. 821, 832 (1985)). In this regard, DACA is no different.
Furthermore, as discussed later in this opinion, many other courts have noted the bene?ts that DACA recipients
receive. This argument does not preclude the Court?s review of the program.

60

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 61 of 117

Muslim-majority populations and because it ?singl[ed] out Muslims for disfavored treatment.?
Id. at 2417. The Court noted that decisions admitting or excluding foreign nationals were more
appropriate for the political branches than the Judiciary, but it recognized that it had previously
engaged in ?a circumscribed judicial inquiry? of the Executive?s decision to exclude foreign
nationals when that exclusion allegedly burdened the constitutional rights of a US. citizen. Id. at
2418?19; see also Kleindienst v. Mandel, 408 US. 753 (1972). Without explaining the precise
contours of its inquiry, the Court assumed it could evaluate the proclamation using rational basis
review, and it ultimately found that the proclamation passed muster. Trump v. Hawaii, 138 S. Ct.
at 2420, 2423.

The Defendant-Intervenors excerpt certain passages from the opinion to support their
argument that DACA is not reviewable under the APA. They state the Supreme Court held that
?when the Executive exercises [its delegated] power negatively on the basis of a facially
legitimate and bona ?de reason, the courts will [not] look behind the exercise of that discretion.?
[Doc No. 224, at 46] (quoting rump v. Hawaii, 138 S. Ct. at 2419). That language, however,
addressed a fundamentally different inquiry. The Supreme Court was considering whether it
could look past a facially valid proclamation to determine whether the discretionary decision to
exclude some classes of aliens was a pretext for constitutional violations. There is no claim in
this case that the DACA program should be scrutinized to determine whether executive
discretion was used to violate an individual right guaranteed by the Constitution. rump v.
Hawaii only speaks to the circumstances under which a court may look behind the Executive?s
discretionary exclusion of certain aliens to determine whether the decision was motivated by
unconstitutional reasons. On the other hand, reviewability under Section 702(a)(2) turns on

whether Congress delegated to an agency the role of policing its own conduct and whether there

61

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 62 of 117

even are standards by which a court can meaningfully review agency action. See Heckler v.
Chaney, 470 US. 821, 831?32 (1985). Tellingly, Section 702(a)(2) makes no appearance in the
rump v. Hawaii case. These differences lead the Court to conclude that rump v. Hawaii did
not overrule the Fifth Circuit?s Section 702(a)(2) analysis. As such, Section 702(a)(2) does not
preclude this Court?s review of 
VII. Preliminary Injunction

A preliminary injunction is an ?extraordinary remedy? that should only be granted if the
movant has ?clearly carried the burden of persuasion? on all four factors. Lake Charles Diesel,
Inc. v. Gen. Motors Corp, 328 F.3d 192, 196 (5th Cir. 2003). The movant, however, ?need not
prove his case.? Lakedreams v. Taylor, 932 F.2d 1103, 1109 (5th Cir. 1991) (citing 
Indus. v. Formosa Plastics Corp, 860 F.2d 172, 179 (5th Cir. 1988)). Before a court will grant a
preliminary injunction, the movants must clearly Show a substantial likelihood that they will
prevail on the merits, (2) a substantial threat that they will suffer irreparable injury if the
injunction is not granted, (3) that their substantial injury outweighs the threatened harm to the
party whom they seek to enjoin, and (4) granting the preliminary injunction will not disserve the
public interest.? City of El Cenizo v. Texas, 890 F.3d 164, 176 (5th Cir. 2018) (quoting Tex. Med.
Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012)); see also
Winter v. NRDC, 555 US. 7, 20 (2008) plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest?). ?The purpose of a preliminary injunction is always to

prevent irreparable injury so as to preserve the court?s ability to render a meaningful decision on

 

56 Notably, the DC. court ruled on the second rescission memorandum after the Supreme Court decided Trump v.
Hawaii. Like this Court, the DC. court did not ?nd that the case affected the reviewability of DACA.

62

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 63 of 117

the merits.? CanalAuth. ofFla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974).

A. Preliminary Injunction Factor One: Likelihood of Success on the Merits

A plaintiff seeking a preliminary injunction must ?rst show a likelihood of succeeding on
the merits of his or her claim. The Fifth Circuit has previously stated ?[t]he importance of this
requirement varies with the relative balance of threatened hardships facing each of the parties.?
Callaway, 489 F.2d at 576. While some courts have questioned the continued validity of this
?sliding scale? approach in light of the Supreme Court?s Winter decision,57 this Court need not
resolve that issue here. There is at least agreement among courts that a ?plaintiff must present a
prima facie case but need not show a certainty of winning.? 11A Charles Alan Wright et al.,
Federal Practice and Procedure 2948.3.

The Plaintiff States argue that they will prevail on the merits because the DACA policy
runs afoul of the Take Care Clause of the Constitution, substantively violates the APA, and the
manner in which it was created failed to comply with the notice-and?comment
requirements. The Court addresses each argument in turn.

1. The Take Care Clause

The Court will not rule on whether the DACA program violates the Constitution?s Take
Care Clause. US. Const. art. 11, 3. The Court declines to address this claim for several reasons.
First, there is no need to rule on the Take Care Clause issue because the Court has reached a
conclusion on a non?constitutional basis. It is a long-standing precept, steeped in the traditions of
federal jurisprudence, that courts should avoid ruling on constitutional issues when a matter can

be resolved on non-constitutional grounds. See Escambia Cry. v. McMillan, 466 US. 48, 51

 

57 See, Sherley v. Sebelius, 644 F.3d 388, 393 (DC. Cir. 2011) (agreeing with another DC. Circuit opinion that
?the Winter Court seemed to treat the four factors as independent requirements and speci?cally to reject the Ninth
Circuit?s statement that a strong likelihood of success on the merits lessens the movant?s burden to showing merely
a possibility rather than a likelihood of irreparable harm?).

63

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 64 of 117

(1984) (per curiam).

Second, the Take Care Clause could actually be the basis for arguing that DACA is both
constitutionally permissible and constitutionally impermissible. While it is one of the least
understood clauses in the Constitution, and one of the clauses least explored by both
commentators and courts,58 the Supreme Court has held that the Take Care Clause is the source
of the President?s (and the Executive Branch?s) power of prosecutorial discretion. See United
States v. 504 U.S. 456, 464 (1996); Heckler, 470 U.S. at 832. DACA, at least
nominally, was instituted as an exercise of prosecutorial discretion. Conversely, the Supreme
Court has also held that the Take Care Clause directly commands the President to respect (and
enforce) the law as passed by Congress. See Youngstown Steel ube Co. v. Sawyer, 343 U.S.
579 (1952). ?[T]he President?s power to see that the laws are faithfully executed refutes the idea
that he is to be the lawmaker. The Constitution limits his functions in the lawmaking process to
the recommending of laws he thinks wise and the vetoing of laws he thinks bad.? Id. at 587. In
Kendall v. United States ex rel. Stokes, 37 U.S. 524 (1838), the Postmaster General (Kendall)
refused to pay a bill Congress had speci?cally appropriated funds to pay. The Court held that the
Postmaster General could be compelled by mandamus to ?execute? the law. The Court rejected
Kendall?s claim that only the President could compel him to act:

This is a doctrine that cannot receive the sanction of this court. It would be

vesting in the President a diSpensing power, which has no countenance for its

support in any part of the constitution; and is asserting a principle, which, if
carried out in its results, to all cases falling within it, would be clothing the

President with a power entirely to control the legislation of congress, and paralyze
the administration of justice.

 

58 See Lawrence Lessig Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 64?68
(1994) the founding the clause received relatively little consideration by practically everyone in the debate.
Hamilton devoted only a few lines in the Federalist Papers to discussion of this ?minor? executive power or
responsibility?).

64

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 65 of 117

To contend that the obligation imposed on the President to see the laws faithfully
executed, implies a power to forbid their execution, is a novel construction of the
constitution, and entirely inadmissible.59

Moreover, Supreme Court precedent seems to have pitted different interpretations of the
clause against each other.

The second striking element is that the functions that the Court ascribes to the

Take Care Clause are often in unacknowledged tension with one another. For

instance, deriving a strong prosecutorial discretion from the clause may collide

with the scruple against dispensation that the Court also reads into it. Similarly,

the Court has said that the Take Care Clause precludes presidential lawmaking

while also ?nding that the clause justi?es the exercise of a presidential

completion power?an implied presidential authority to prescribe extrastatutory

means when necessary to execute a statute. The internal tensions, moreover, often

give rise to doctrines that ask for judgments of degree?line drawing that does not

lend itself readily to judicially manageable standards.60

The instant case pits the concept of faithfully enforcing the law against the concept of
prosecutorial discretion. Given that the Court need not rule on the constitutional issues at play to
resolve this case and that the very clause at issue has been read as both an authorization and a
prohibition on executive action, this Court ?nds that question is best left to the Fifth Circuit or
the Supreme Court.

Even if these two reasons were not suf?cient to support a refusal to opine, there is a third
reason for avoiding the constitutional issue raised in this case. The number of cases that interpret
the Take Care Clause are relatively few, and those few cases rarely, if ever, set out discernable
guideposts for use by lower courts. In a non?scienti?c survey of Supreme Court jurisprudence,
this Court has located fewer than ten cases in which the Take Care Clause is actually discussed

1
by name.6

 

59 Id. at 613.
6? Jack Goldsmith John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1838 (2016).

A similar search for the text of the clause ?take care that the laws be faithfully executed,? yielded fewer than sixty
cases.

65

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 66 of 117

Nevertheless, even when one uses the entirety of Supreme Court jurisprudence as
guidance, the interpretation of the clause seems somewhat case-speci?c and fact-driven. In fact,
some commentators have described the Supreme Court?s interpretations of the clause as


Two things stand out about the Court?s reliance on the Take Care Clause to serve
so many ends simultaneously. The ?rst is that, in each of these contexts, the Court
treats the meaning of the clause as obvious when it is anything but that. The
Court?s decisions rely heavily on the Take Care Clause but almost never interpret
it, at least not in any conventional way. The Court does not typically parse the text
of the clause or try to situate it in the broader constitutional structure that gives it
context. Nor does the Court typically examine the clause?s historical provenance
(except to invoke an almost equally conclusory set of interpretations by members
of the First Congress in the Decision of 1789).



. . . the Court has [interpreted the clause] so casually and at a high level of
generality, without any attention to detailed interpretive questions about the
clause?s meaning or history. The Court has also failed to recognize the degree to
which its explication of Take Care Clause doctrine in distinct and sometimes
con?icting ways requires judgments of degree and line drawing that defy
judicially manageable standards.

A. (Non?nterpretation 0f the Take Care Clause

The most striking feature of the Court?s Take Care Clause jurisprudence is that
the Court almost never construes the clause, at least not in any conventional way.
It does not look at any of the evidence one would expect an interpreter to consider
in determining the clause?s relevance to the many uses to which the Court has put
it. The Court has never taken more than a glancing look at the text, its common
law meaning, the subsequent practical construction (?liquidation? of the clause?s
meaning), the clause?s place in the broader constitutional structure, or the political
context from which it emerged.



Nor has the Court sought to reconcile its various Take Care Clause doctrines with
one another or troubled itself about its own capacity to resolve the intractable
line?drawing problems that its doctrine has created. Instead, the Take Care Clause
has been a placeholder for broad judicial judgments about the appropriate

66

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 67 of 117

relations among the branches in our constitutional system?like the Court?s own
Key Number for freestanding separation-of?powers principles.62

This Court has no desire to use a discussion of the legality of DACA as a vehicle for
creating new, innovative separation-of?powers principles. More importantly, it has no need to do
so. Given the fact that federal courts strive to avoid constitutional issues when possible; given the
fact that the clause at issue seems to be a vehicle for both bestowing and restricting executive
authority; and given the fact that the Supreme Court?s analysis seems to be very case?specific
and somewhat devoid of useful, uniform guidance, this Court ?nds caution to be the better part
of wisdom and constitutional avoidance to be the best course of action at this preliminary stage.
This Court therefore defers judgment on the Take Care Clause until a full hearing on the merits
or until the appropriate court on appeal instructs it to decide the issue.

2. Substantive APA Claim

The Plaintiff States also argue that is contrary to law because it is ?not
authorized by statute,? and is ?foreclosed by Congress?s careful plan.? [Doc. No. 218, at 19]
(citing Texas I, 809 F.3d at 184, 186). The APA instructs a reviewing court to ?hold unlawful
and set aside agency action . . . found to be?(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law . . . [or] (C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right.? 5 U.S.C. 706(2). Here, the Court must consider the
legality of the 2012 memorandum that instituted DACA and its relationship to the Immigration

and Nationality Act 

 

62 Goldsmith Manning, supra note 60, at 1838, 1853454, 1867. While the Court does not necessarily adopt the
interpretations of Professors Goldsmith and Manning in toto, their article is certainly the best overview to be
published in recent years. Another helpful source is Zachary S. Price, Enforcement Discretion and Executive Duty,
67 Vand. L. Rev. 671 (2014).

67

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 68 of 117

a. DACA Does Not Pass Chevron?s First Step

As did the Fifth Circuit in Texas I, the Court will assume, arguendo, that the test
announced in Chevron Inc. v. NRDC applies in this case. Texas I, 809 F.3d at 178?79
(citing Chevron, 467 U.S. 837, 843 (1984)).63 This test requires a court to defer to an agency?s
interpretation of its own statute only if the text of the statute is ambiguous and the agency?s
interpretation is reasonable. Chevron, 467 U.S. at 844; Delek Re?ning v. Occupational Safety 
Health Comm 845 F.3d 170, 175 (5th Cir. 2016).

At Chevron?s first step, a court asks ?whether Congress has directly spoken to the precise
question at issue.? 467 U.S. at 84243; see also Mayo Found. for Med. Educ. Research v.
United States, 562 U.S. 44, 52 (2001). ?If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the unambiguously expressed
intent of Congress?; if so, the court owes no deference to the agency. Chevron, 467 U.S. at 844;
see also City of Arlington v. FCC, 569 U.S. 290, 306 (2013) (?Where Congress has established a
clear line, the agency cannot go beyond it . . . Lari v. Holder, 697 F.3d at 273, 278 (5th Cir.
2012)

i. The Agency Lacks Statutory Authority to Implement DACA.

DACA bene?ciaries primarily entered the country either by overstaying a visa or by

 

63 This Court follows the Fifth Circuit?s blueprint as set out in Texas I and concludes it is unnecessary to determine
whether Chevron or another standard applies because it has concluded that DACA cannot withstand review even
under Chevron. See Texas I, 809 F.3d at 179 n.160. It is therefore unnecessary to employ the test described in
Skidmore v. Swift Co., 323 U.S. 134 (1944) (the amount of deference to an agency interpretation depends on the
?thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements?) or to consider the factors described in Barnhart v. Walton, 535 U.S. 212 (2002), which sets out
how to determine the appropriate standard of review. The fact that the agency reached its judgment through informal
means also does not impact the Court?s determination. See Texas I, 809 .3d at 179 n.160 (citing Walton, 535 U.S.
at 221 (?Judicial deference is ordinarily given to agencies? interpretations of their own statutes, even if those
agencies reach their interpretations through means other than notice?and?comment 

68

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 69 of 117

entering without inspection,64 and the INA instructs that aliens in both classes are removable.
First, recipients who entered legally but overstayed their legal permission to be in the country are
deportable under section 1227(a)(1)(C): ?Any alien . . . who has failed to maintain the
nonimmigrant status in which the alien was admitted . . . is deportable.? An alien who is
?deportable? under section 1227 is ?removable.? Id. 1229a(e)(2).

Second, those who enter the country illegally are also removable. The INA de?nes 
alien present in the United States who has not been admitted? as an ?applicant for admission,? 8
U.S.C. 1225(a)(1), and requires all applicants for admission to ?be inspected by immigration
of?cers.? Id. 1225(a)(3). the examining immigration of?cer determines that an alien
seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be
detained for a proceeding under section 1229a [of the Id. 1225(b)(2)(A). In a section
1229a removal proceeding, the alien has the burden of proof to show that he or she is not
removable for one of two reasons: the alien may show that he or she is ?clearly and beyond
doubt entitled to be admitted and is not inadmissible under section 1182?65 of the INA, or the
alien may show ?by clear and convincing evidence? that he or she is ?lawfully present in the
United States pursuant to a prior admission.? Id. If the alien cannot carry
his or her burden of proof under one of these tests, he or she is deemed ?removable.? Id.
1229a(e)(2).

Thus, all DACA recipients fall into a category for removal regardless of their mode of

 

64 Approximately half of the DACA population is present in the United States because they entered the country
without inspection, and half are present because they have overstayed a visa. See Glenn Kessler, Did Obama Allow a
?Back Door? to Citizenship Through Wash. Post, Sept. 7, 2017 [Doc. No. 225, Ex. 4] (?Robert Warren, a
demographer and senior visiting fellow at the Center for Migration Studies, estimates that about 50 percent of the
1.258 million people eligible for DACA are visa 

65 Section 1182 describes various classi?cations of ?Inadmissible Aliens? who are ?ineligible to receive visas and
ineligible to be admitted to the United States.? Id. 1182(a).

69

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 70 of 117

entry. The DACA program prevents immigration of?cials from enforcing these parts of the INA,
regardless of whether the recipient has not yet entered removal proceedings, is ?[currently] in

5

removal proceedings,? or is ?subject to a ?nal order of removal.? Memorandum from Janet
Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals who Came to the
United States as Children (June 15, 2012) [Doc. No. 5, EX. 1] should establish a clear
and ef?cient process for exercising prosecutorial discretion . . . in order to prevent low priority
individuals from being placed into removal proceedings or removed from the United States?). In
other words, DACA prevents the removal of its recipients?whom Congress has deemed
removable.

Although no statute speci?cally grants the Government the authority to institute DACA,
Defendant?Intervenors argue that several general grants of authority give the agency the power to
defer prosecution for its recipients. [Doc. No. 225, at 47] (citing 6 U.S.C. 202(5)66 and 8
U.S.C. 110367). In Texas I, the Fifth Circuit held that neither of these sections (nor any other
section)68 provided the authority for the DHS to implement DAPA or Expanded DACA because
the agency?s interpretation of the statutes was overly broad, and the statutes did not convey the

claimed authority to institute the programs. See Texas I, 809 F.3d at 183?84. The DHS had

argued that those statutes allowed it to enact virtually any kind of deferred action program. The

 

66 ?The Secretary. . . shall be responsible for. .. [e]stablishing national immigration enforcement policies and
priorities.?

67 See 8 U.S.C. 1103(a)(3) (?[The Secretary] . . . shall establish such regulations; prescribe such forms of bond,
reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for
carrying out his authority under the provisions of this 1103(g)(2) (?The Attorney General shall
establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions,
review such administrative determinations in immigration proceedings, delegate such authority, and perform such
other acts as the Attorney General determines to be necessary for carrying out this section?).

68 The court also ruled that the agency could not rely on 8 U.S.C. 1324a(h)(3), a ??miscellaneous? de?nitional
provision? for the authority to implement a sweeping change in national immigration policy, and cited the common
refrain found in Whitman 12. Am. Trucking Ass ?ns: ?Congress . . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions??it does not, one might say, hide elephants in
mouseholes.? 531 U.S. 457, 468 (2001); see Texas I, 809 F.3d at 183784.

70

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 71 of 117

court reasoned that if it were to give force to the agency?s interpretation of those statutes, it
would allow the Secretary to grant lawful presence and work authorization to every illegal alien
in the United States. Texas I, 809 F.3d at 184. This possibility was, in fact, highlighted by Chief
Justice Roberts in the arguments before the Supreme Court.69 Given the intricate system
for allocating immigration status, the Fifth Circuit said that this limitless position was
?untenable.? Texas I, 809 F.3d at 184. The same problem exists in this case.70

This Court, guided by Fifth Circuit precedent, holds that none of the claimed statutory
provisions give the DHS the authority to implement DACA. While the provisions certainly grant
some authority to the agency, they do not extend to include the power to institute a program that
gives lawful presence, work authorization, and multiple other bene?ts to 1.5 million people.
These laws ?cannot reasonably be construed as assigning decisions of vast economic and

political signi?cance, such as to an agency.? Texas I, 809 F.3d at 184.

ii. The INA Provides a Comprehensive Statutory Scheme for the
Allocation of Lawful Presence.

As the Fifth Circuit ruled in Texas I, the INA describes several methods?detailed
systems, carefully planned and deliberately installed?by which immigrants may acquire lawful
presence in the United States. Texas I, 809 F.3d at 179; see also id. (?Federal governance of
immigration and alien status is extensive and complex?) (citing Arizona v. United States, 567
US. 387, 395 (2012)). The INA speci?es several particular groups of aliens for whom lawful

presence is available71 and groups of aliens eligible for ?discretionary relief allowing [aliens in

 

69 Transcript of Oral Argument at 19720, United States v. Texas, 136 s. Ct. 2271 (No. 15-674).
70 See infra Section 

8 U.S.C. 1101(a)(20), 1255 (lawful-permanent-resident status); 1101(a)(15), 1201(a)(1)
(nonimmigrant status); 1101(a)(42), 1157-69, 123l(b)(3) (refugee and asylum status); 1182(d)(5) (humanitarian
parole); 1254a (temporary protected status).

71

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 72 of 117

deportation proceedings] to remain in the country.?72 Congress has also passed a multitude of
statutes allocating lawful presence to persons who have served in the armed forces73 and persons
seeking or possessing a higher education.74 The Texas I court recognized that this statutory
scheme did not encompass the groups of persons described by the DAPA and Expanded DACA
programs at issue in that case. See Texas I, 809 F.3d at 179 (?Entirely absent from those speci?c
classes is the group of 4.3 million illegal aliens who would be eligible for lawful presence under
It also does not encompass the group of persons given law?il status by DACA.

Where Congress has explicitly described a statutory scheme with the detail present in
these instances, an agency may not supplant the scheme with its own methods. See Hearth, Patio
Barbecue Ass ?n v. US. Dep ?t of Energy, 706 F.3d 499, 507 (DC. Cir. 2013) (where Congress
?employed speci?c statutory mechanisms? to delineate agency authority, the agency cannot
?Simply cho[o]se to ignore? the statutory scheme); Cent. United Life Ins. Co. v. Burwell, 827
F.3d 70, 73 (DC. Cir. 2016) (?Disagreeing with Congress?s expressly codi?ed policy choices
isn?t a luxury administrative agencies enjoy?). In this instance, Congress?s care?il plan for the

allotment of lawful presence forecloses the possibility that the agency may designate a group of

 

72 Arizona, 567 US. at 396 (citing 8 U.S.C. 1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary
departure)); see also 8 U.S.C. 1227(d) (administrative stays of removal for T-and U?visa applicants (victims of
human traf?cking, or of various serious crimes, who assist law enforcement)).

73 E. g, 8 U.S.C. 1438(a) (persons who lost United States citizenship because they served in the armed forces of a
United States ally during World War 1439 (noncitizens who have served honorably in the United States armed
forces for at least one year); 1440 (noncitizens who served in the United States armed forces during World War I,
World War 11, Korean hostilities, Vietnam hostilities, or other periods of military hostilities); 1440?1 (posthumous
conferral of United Sates citizenship to noncitizens who died as a result of injuries incurred while serving in periods
of hostilities).

74 E. 8 U.S.C. 1101(a)(15)(F) (the visa for full?time Students) (the visa? for dependents of full-time
students) (the visa for students from Canada and Mexico who commute across the border); llOl(a)(15)(H)
(the visa for skilled workers) (the visa for dependents of visa holders); 1101(a)(15)(J) (the
visa for students, scholars, trainees, teachers, professors, research assistants, specialists, or leaders in a ?eld of
specialized knowledge or skill participating in cultural exchange); 1101(a)(15)(L) (the visa for foreign
employees of a corporation, executives or managers) (the visa for foreign employees of a corporation with
specialized knowledge of the company?s techniques or methodologies); 1101(a)(15)(M) (the visa for
vocational or technical students) (the visa? for dependents of vocational or technical students).

72

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 73 of 117

814,000 persons who have already enrolled in DACA to be lawfully present, in addition to
another group of approximately the same size who either have not yet applied or who will soon
become eligible. While Congress has allowed the Executive Branch to create regulations and to
selectively grant deferred action in some speci?c instances,75 nothing in this scheme of laws can
be read to encompass an undertaking as broad as what has been attempted by the agency here.76
The speci?city of these statutes demonstrates that Congress has reserved for itself the authority
to determine the nation?s immigration laws.

Ultimately, ?the INA expressly and carefully provides legal designations allowing
de?ned classes of aliens to be lawfully present,? and Congress has not granted the Executive
Branch free rein to grant lawful presence to such a large class of persons outside the ambit of the
statutory scheme. Texas I, 809 F.3d at 179. Finally, it should be noted that the Fifth Circuit?s
judgment in Texas I not only covered DAPA but also Expanded DACA, and it found no legal
reason to distinguish between the two.

The INA Provides a Comprehensive Statutory Scheme for the
Allocation of Work Authorization.

In addition to its allocation of lawful presence, the INA also describes speci?c groups of
aliens for Whom Congress intended work authorization to be available. See Texas I, 809 F.3d at
180?81 (?The INA also speci?es classes of aliens eligible and ineligible for work authorization,
including those eligible for work authorization and deferred action?with no mention of the class

of persons whom DAPA would make eligible for work authorization.? (quotations omitted)).

 

75 See, Reno v. 525 US. 471, 483?84 (1999) (?At each stage [of the removal process] the Executive
has discretion to abandon the endeavor, [including by] engaging in a regular practice (which had come to be known
as ?deferred action?) of exercising that discretion for humanitarian reasons or simply for its own convenience?).

76 Equally compelling is the number of times Congress has rejected legislation that would accomplish what DACA
purports to, namely the DREAM Acts that have been repeatedly considered and rejected. See in?a section iv. It is
evident that Congress has spoken both af?rmatively and negatively in this area by what it has passed and what it has
not passed.

73

 

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 74 of 117

These statutory provisions also make no mention of the group of aliens described by DACA.

The statutory scheme intricately and particularly describes groups to whom
Congress wished to grant work authorization, delineating precise categories of aliens for whom
work authorization is, may be, or is not available. Where Congress has expressed its intent to
provide certain groups of aliens with work authorization, it has promulgated speci?c laws
requiring the DHS to do so.77 These categories do not include the aliens encompassed by the
DACA memorandum. Further, Congress has speci?ed particular instances where the DHS
?may? issue work authorization, speci?cally delegating to the agency areas in which it may
exercise discretion.78 These parts of Congress?s statutory scheme also do not include the DACA
recipients.

As noted in Texas 1, Congress has in other places speci?ed groups of aliens to be
ineligible for work authorization. E. 8 U.S.C. 1226(a)(3) (limits work authorizations for
aliens with pending removal proceedings to those who are lawfully admitted for permanent
residency or otherwise authorized). DACA Speci?cally applies to individuals in removal
proceedings and contradicts Congress?s intent, as it enables those aliens to apply for work
authorizations.

The Supreme Court has ?often recognized that a primary purpose in restricting
immigration is to preserve jobs for American workers.? INS v. Nat?l Ctr. for Immigrants Rights,

502 US 183, 194 (1991) (citing Sure-Tan, Inc. v. NLRB, 467 us. 883, 889 (1984)). This is one

 

77 E. 8 U.S.C. 1101(i)(2) (human-traf?cking victims in lawful-temporary~resident status pursuant to a T?visa),
1158(c)(1)(B), (asylum applicants and grantees), ll60(a)(4) (certain agricultural workers in lawful-temporary
resident status), 1184(c)(2)(E), (spouses of and E-visa holders), (certain victims of criminal
activity in lawful-temporary?resident status pursuant to a U?visa), 1254a(a)(1)(B) status
holders), 1255a(b)(3)(B) (temporary-resident status holders).

78 8 U.S.C. 1158(d) (asylum applicants); 1105a(a) (certain battered spouses of nonimmigrants);
1154(a)(1)(K) (grantees of self-petitions under the Violence Against Women Act); 1160(d)(3)(A) (agricultural
worker preliminary applicants); 1184(p)(6) (deferred-action U?visa applicants).

74

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 75 of 117

of the exact claims made in this lawsuit by the Plaintiff States. In 1986, Congress enacted the
Immigration Reform and Control Act which provides ?a comprehensive framework
for combating the employment of illegal aliens? and ??forcefully? made combating the
employment of illegal aliens central to ?[t]he policy of immigration law.?? Arizona, 567 U.S. at
404 (citation omitted); Ho?man Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (citing
INS, 502 U.S. at 194). Through criminal and civil penalties for employers and civil penalties for
employees, the IRCA made it ?illegal for employers to knowingly hire, recruit, refer, or continue
to employ unauthorized workers.? See Arizona, 567 U.S. at 404~05 (citing 8 U.S.C. 1324a).
Thus, it is illegal for anyone to hire DACA recipients, but for DACA. DACA speci?cally avoids
this ban and adds up to 1.5 million individuals to the workforce. Congress?s careful delineation
in the realm of work authorization represents a speci?ed intent to closely guard jobs for
American workers.

DACA undermines this intent. The program goes so far as to require applicants to apply
for work authorization. See USCIS, DACA oolkit: Resources for Community Partners 4 [Doc.
No. 5, EX. 20, at 23] (?In addition to the renewal and application form], all individuals
must also submit a Form I-795, Application for Employment Authorization . . . Permitting
the agency to allow 1.5 million aliens to receive work authorization contradicts the clear
congressional purpose of preserving employment opportunities for those persons legally residing
in the United States. The DACA program is therefore contrary to the statute and to Congress?s
goal of ?closely guarding access to work authorization and preserving jobs for those lawfully in

the country.? Texas I, 809 F.3d at 181.79

 

79 Defendant?Intervenors also argue it is not the 2012 DACA memorandum, but a separate federal regulation that

permits DACA recipients to obtain work authorization. See 8 C.F.R. (?An alien who has been

granted deferred action, an act of administrative convenience to the government which gives some cases lower

priority, [may be able to obtain work authorization upon application] if the alien establishes an economic necessity
75

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 76 of 117

iv. For Some, DACA De?es the Statutory Scheme by Awarding
Advance Parole and a Clearer Path to Legal Status, Contrary to 8
U.S.C. 1182(a)(6)(A)(i) and 1182(a)(9)(B).

The Plaintiff States also complain that DACA contradicts the statutory scheme by
allowing recipients access to ?advance parole.? Advance parole is a program that allows aliens to
leave the United States and then to lawfully re-enter the country without being turned away at a
port of entry. Dep?t of Homeland Sec., DACA Nat ?1 Standard Operating Procedures (SOP) 135
(2013) [Doc. No. 224, BX. 153] (citing It is designed to be awarded only ?on a
case?by-case basis for urgent humanitarian reasons or signi?cant public benefit.? 8 U.S.C.
1182(d)(5)(A). DACA, however, makes the entire DACA population eligible to apply for
advance parole, and expands these two enumerated categories beyond recognition. Speci?cally,
the DACA program allows its recipients to travel outside the United States for a host of reasons,
including work?related conferences, semester?abroad programs, and job interviews.80

In addition to the incredible way that the DHS interprets the phrases ?urgent
humanitarian reasons? and ?signi?cant public bene?t? for DACA recipients,81 allocating
advance parole to some recipients subverts statutory law in two ways: 1) it lets certain
individuals adjust illegal status to lawful presence and then possibly to legal status by curing the

inadmissibility bar, and 2) it lets recipients avoid the statutory ?unlawful presence bars.? See

Lena Graber Jose Maga?a~Salgado, DACA, Advance Parole, and Family Petitions 5, 8 (2016)

 

for employment?). This argument was speci?cally diSpatched by the Fifth Circuit in Texas I, 809 F.3d at 168?69.
There, the court said that such a reading of the regulation?to allow the agency to issue employment authorization to
any class of illegal aliens whom the DHS declines to remove?would be outside the powers authorized by the INA. 1d.

80 See Dep?t of Homeland See, DACA Nat ?1 Standard Operating Procedures (SOP) 13942 (2013) [Doc. No. 224,
Ex. 153] (?Generally, USCIS will only grant advance parole if the applicant?s travel abroad will be in furtherance
of: humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family
member, or visiting an ailing relative; educational purposes, such as semester-abroad programs and academic
research, or; employment purposes such as overseas assignments, interviews, conferences or, training, or meetings
with clients overseas. Travel for vacation is not a valid basis for advance parole?).

81 It is hard to fathom why a semester in Paris, a conference, or a meeting with a client equates to either an urgent
humanitarian reason or a signi?cant public bene?t.

76

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 77 of 117

[Doc. No. 219, Ex. 23].82

First, DACA recipients? entitlement to apply for advance parole contradicts the statutory
scheme by curing the bar for unlawful entry. See id. at 8. Ordinarily, an alien present in the
United States may apply for an adjustment of status to change his or her legal immigration
classi?cation to that of an LPR (this is also known as receiving a ?Green Card?). See Maga?a-
Salgado, supra, at 7. There are several ways to do this, including an employment quali?cation or
a speci?ed family relationship (like marriage to a United States citizen), but applicants will be
deemed inadmissible??that is, they will be unable to adjust their status?if they are present
?without being admitted or paroled into the United States.? Id. (citing 8 U.S.C. 
8 U.S.C. 1255). Generally, immigrants who ?rst entered the United States
without inspection are ineligible to adjust their status because they were not ?admitted? legally
when they ?rst entered the country. Id. Approximately one half of the DACA population is in
this category. See Kessler, supra note 64 (stating half of DACA recipients overstayed a visa and
half entered the country illegally).

DACA, however, allows this latter segment to circumvent the requirement that aliens be
?admitted or paroled into the United States? by allowing its recipients who entered the country
illegally to be eligible for advance parole. See Maga?a-Salgado, supra, at 7; Dep?t of Homeland
Sec., DACA Nar?l Standard Operating Procedures (SOP) 139?42 (2013) [Doc. No. 224, EX.
153] (describing procedures for processing advance parole applications for DACA recipients).
Once a DACA recipient leaves the country and returns to the United States through advance
parole, that individual, who was an illegal alien subject to the inadmissibility bar because he or

she originally entered the country illegally, is no longer barred by the requirement that aliens be

 

82 This ten?page document, a veritable roadmap to DACA recipients? avoidance of statutory requirements, was co-
authored by one of the Defendant-Intervenors in this case.

77

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 78 of 117

?admitted or paroled into the United States? to adjust status because he or she now has been
paroled legally back into the United States. See Maga?a-Salgado, supra, at 8?9; see also A.
Molina, Immigration: Undocumented College Students Find a Way to Study Abroad, Return
Legally, Press-Enterprise, Riverside California (Feb. 14, 2016). He or she may then apply for
adjustment of status. Thus, grant of advance parole eligibility allows its recipients to
circumvent the IN A?s statutory requirement.83

Through 2015, over 20,000 DACA recipients had been approved for advance parole, and
of those, approximately 3,000 were subsequently granted an adjustment of status.84 Although this
number may seem small compared to the total DACA population of 1.5 million people, it is not
insigni?cant. Despite the fact that the instituting memorandum claims that it ?confers no
substantive right, immigration status or pathway to citizenship,? the DACA program does, in
fact, enable certain individuals to change their inadmissible status (due to unlawful entry) into an
admitted/paroled category and in some cases provides a clearer pathway to citizenship. [Doc. No.
5, at 3; Napolitano Memo, Doc. No. 6, Ex. 1].85 It directly undermines the intent and deterrent
effect intended by Congress, and contradicts the express wording of the DACA program?s

instituting memorandum.

 

83 This ?loophole? is not needed by those DACA recipients who overstayed their visas, as they were ?admitted?
when they ?rst entered the country. Also, all legal permanent resident applicants must still meet other requirements,
such as having a family relationship. Nevertheless, for a number of DACA recipients, the program?s grant of
eligibility for advance parole allows many DACA recipients to adjust status where they otherwise would be barred
by law.

84 According to a June 29, 2016 letter from USCIS Director Leon Rodriguez to Senator Charles Grassley, the agency
had granted advance parole to 22,340 DACA recipients through December 31, 2015. Of those, 2,994 had been
approved for adjustment of status. [Doc. No. 224, Ex. That letter did not specify how many applications for
adjustments through advance parole are pending.

85 See also Ben Harrington, Cong. Res. Serv., An Overview of Discretionary Reprieves from Removal: Deferred
Action, DA CA, TPS, and Others (2018) [Doc. No. 289, BX. 299, at 17?18] (?Advance parole, another exercise of the
executive parole authority directed toward physically present aliens, allows aliens to depart the United States with
parole already approved, so as to facilitate their re-entry. Upon being paroled back into the country, such aliens
receive the same advantages as recipients of parole in place and other parolees eligibility for work
authorization and a clearer path to adjustment of 

78

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 79 of 117

Second, advance parole for DACA recipients subverts the ?unlawful presence bars?
instituted by statute. See 8 U.S.C. Under these provisions, an alien who
entered the United States illegally or remained in the United States longer than allowed is
inadmissible to return to the United States upon leaving. Id. Individuals who have left the
country after having been illegally present for more than 180 days must remain out of the United
States for three years, and those illegally present for more than a year must remain out for ten
years before they may again become admissible to the United States. Id. By de?nition, the ten?
year bar would apply to most DACA recipients. grant of advance parole eligibility,
however, allows DACA recipients to travel abroad and then return to the United States without
complying with either the three- or ten-year bar. Through DACA, these recipients effectively
avoid the dictates of Congress while thousands of other individuals who have complied with the
law are waiting for their bar period to run. This, too, is contrary to the statutory scheme devised
by Congress.

In sum, DACA cannot withstand analysis under Chevron because Congress has directly
addressed many of the relevant issues. See Chevron, 467 US. at 842?43; see also Texas I, 809
F.3d at 179 (ruling that Congress has directly addressed the issues of lawful presence and work
authorization). Congress?s clear articulation of laws for the allocation of lawful presence and
work authorization illustrates a manifest intent to reserve for itself the authority to determine the
framework of the nation?s immigration system. Against the backdrop of Congress?s ?careful
plan,? the agency may not award law?il presence and work authorization to well over a million
aliens for whom Congress has made no provision. Texas I, 809 F.3d at 186. DACA is ?in excess
of statutory jurisdiction? and ?short of statutory right,? and therefore violates the APA. 5 U.S.C.

706(2).

79

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 80 of 117

Although the Court recognizes that the Government has long been allowed to grant
deferred action on a case-by?case basis, this fact alone does not make DACA lawful. See Reno,
525 US. at 483?84 (endorsing deferred action on an ad hoc basis). Under the interpretation of
those who instituted DACA, the entire illegal population could receive deferred action. During
the Supreme Court?s oral argument in Texas 1, Chief Justice Roberts questioned the Government
on precisely this point:

Chief Justice Roberts: Under your argument, could the President grant deferred

removal to every unlawful unlawfully present alien in the United States right

now?

General Verrilli: De?nitely not.

Chief Justice Roberts: Why not?

General Verrilli: Here are the limits. Because the deferred action has - over time,

there have been built up a set of administrative limits, which I?ll talk about, some

administrative policy limits, and then there?s substantive statutory limits. The

administrative policy limits are these: Deferred action has always been for the

lowest priorities for removal. And everybody agrees 

Chief Justice Roberts: I?m sorry. By ?administrative,? you mean by the Executive
branch?

General Verrilli: Correct. Yes. But 

Chief Justice Roberts: So that somehow binds the Executive branch now, the fact

that I mean, this hasn?t been approved by the Executive branch prior to this

point, either, and yet it?s a fairly signi?cant departure.86
In Texas I, counsel for the Government could not answer the Chief Justice?s question directly. It
was not an inconsequential question because this Court and the Fifth Circuit had asked it as well,
but as one can see, the Solicitor General?s response to Chief Justice Roberts was, in effect, ?the

Executive Branch just would never do that.? This response was less than reassuring, since at the

same time it was the Executive Branch that was attempting to give lawful presence to a

 

8?5 Transcript of Oral Argument at 19420, Texas 1, 136 s. Ct. 2271 (No. 15-674).
80

Case Document 319 Filed in TXSD on 08/31/18 Page 81 of 117

combined DACA, Expanded DACA, and DAPA population of approximately 5.8 million
individuals, over half of the country?s 11.3 million estimated illegal aliens. Utilizing the
Defendant?Intervenors? position in this case, the Executive Branch could still give every illegal
alien currently present in the United States lawful status, if only the DHS were to do it in smaller
numbers, group-by?group. This cannot be a correct interpretation of the law. The DACA
program, like DAPA, which attempts to give lawful presence and a wide variety of bene?ts to
upwards of a million individuals, is far from any program conducted in the past.

More importantly, unlike the DAPA situation, Congress has directly addressed DACA or
a DACA?like population, so one need not guess its position. Both houses of Congress have, time
after time, considered and rejected bills that would afford lawful immigration status to the same
or a similar group of individuals contemplated by DACA.87 These proposals, while not
necessarily covering identical populations or attempting to achieve the exact same goals, are
often labelled in the popular press as Acts.? Over a period of more than a decade, they
have been filed, considered, and have at times even been put to vote (both before and after the
implementation of As recently as June of this year, the House of Representatives
rejected a bill by an almost 3-to-l margin that would have legalized the DACA recipients.89
Congress?s consistent rejection of these bills cannot be read as a tacit approval of DACA. To the

contrary, its underlying concept has been rejected time and again.

 

87 See, DREAM Act of 2003, s. 1545, 108th Cong. (2003); DREAM Act of 2005, s. 2075, 109th Cong. (2005);
DREAM Act of 2007, S. 2205, 110th Cong. (2007); DREAM Act of 2009 S. 729, 111th Cong. (2009); American
Dream Act, HR. 1751, 111th Cong. (2009); DREAM Act of 2011 S. 952, 112th Cong. (2011); Border Security,
Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (2013); BRIDGE Act, S. 3542,
114th Cong. (2016); BRIDGE Act, HR. 496, 115th Cong. (2017).

88 The following bills were actually put to vote: DREAM Act of 2007, S. 2205, 1 10th Cong. (2007) (failed cloture in
Senate, 52?44); Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong.
(2013) (passed Senate 68?32, no House vote); Border Security and Immigration Reform Act of 2018, HR. 6136,
115th Cong. (2018) (failed House, 121?301).

89 Border Security and Immigration Reform Act of 201 8, HR. 6136, 115th Cong. (2018).
81

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 82 of 117

However attractive it might be as a matter of policy, the DACA program appears
to violate the proper respect for congressional primacy in lawmaking that should
guide executive action, even when substantial exercises of prosecutorial discretion
are inevitable. To the extent Congress has adopted overly broad and unduly harsh
immigration laws, Congress should remain accountable for its choice. The
executive branch [or in this case the judicial branch] should not presume the
authority to let Congress off the hook.
See Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 761
(2014).90

b. Even if DACA Did Pass Chevron?s First Step, It Would Not Pass the
Second.

This Court?s ruling at the ?rst step of Chevron alone provides a suf?cient ground to settle
the question presented, and it would ordinarily be unnecessary for the Court to conduct a further
analysis. Nevertheless, if the Court were to analyze the DACA program under the second step of
Chevron, the Court would hold that the agency?s interpretation fails that test as well.91

At the second Chevron step, a court asks ?whether the agency?s answer is based on a
permissible construction of the statute.? Chevron, 467 U.S. at 843. The court should uphold an
agency?s rule if it is ?a ?reasonable interpretation? of the enacted text,? but should overturn it if it
is ?arbitrary or capricious in substance, or manifestly contrary to the statute.? Mayo Found, 562

U.S. at 58; id. at 53. Stated differently, the Court must ask ?whether Congress would have

intended, and expected, courts to treat [the regulation] as within, or outside, its delegation to the

 

90 This Court recognizes that many of America?s states, municipalities, cities, civic groups, and individuals are very
sympathetic to and very supportive of the DACA recipients. Many of these groups have provided this Court with
amicus curiae briefs which, in addition to being helpful, are demonstrative displays of support. Indeed, this Court is
likewise enamored with the thought of young people overcoming many hardships and hurdles and becoming
productive members, if not leaders, of our communities. The Judiciary, however, is not the branch of government
that can make decisions based upon the popularity of an idea or because many are sympathetic toward or biased
against a particular group or program. Congress is the branch of government that weighs competing public
sentiments when it enacts or re?ises to enact legislation. Pointedly, if the Congressmen and women of New Jersey
and of the states that have appeared as friends of this Court had voted for the dreamer population in this latest bill, it
would have passed the House by a twoato?one margin. Instead, a majority of each delegation voted against it.

91 See Texas I, 809 F.3d at 183, n.191 even assuming the government had survived Chevron Step One, we
would strike down DAPA as manifestly contrary to the INA under Step Two?) (citing Chevron, 467 U.S. at 844;
Mayo Found, 562 U.S. at 53).

82

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 83 of 117

agency of ?gap-?lling? authority.? Id. at 58. (quoting Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158, 173 (2007)).

Assuming, arguendo, the Court were to apply this test, it still would not defer to the
agency?s interpretation. DACA is ?manifestly contrary? to the statutory scheme promulgated by
Congress. Texas I, 809 F.3d at 186. For the same reasons discussed in this Court?s analysis under
the ?rst step, the program would not pass the second step: DACA usurps the power of Congress
to dictate a national scheme of immigration laws, and it is therefore contrary to the INA and
unreasonable. Id.

As the Fifth Circuit explained in Texas 1, Congress has clearly implemented a detailed
statutory scheme for the adjudication of immigration laws, and the scheme has no room for the
program the DHS has instituted. 809 F.3d at 181. DACA would grant lawful presence and work
authorization to a million people or more for whom Congress has made no provision and has
refused to make such a provision time and time again. See id. Congress wished to assign
[a decision of such ?deep economic and political signi?cance?] to an agency, it surely would
have done so expressly.? (citing King 12. Burwell, 135 S. Ct. 2480, 2489 (2015)). The Court
?must be guided to a degree by common sense as to the manner in which Congress is likely to
delegate a policy decision of such economic and political magnitude to an administrative
agency.? Id. (quoting FDA v. Brown Williamson Tobacco Corp, 529 U.S. 120, 133 (2000)).
Common sense instructs that the creation of this program, as was true for the establishment of
DAPA and Expanded DACA, is too important to be delegated to an administrative agency. In the
end, the Fifth Circuit?s decision in Texas 1 controls this case; it is binding case law for this Court,

and the result here is inescapable.92

 

92 The Court has concentrated its Chevron analysis on the facts that surrounded origination. The current

DHS view, as expressed by Secretary Nielsen, is:
83

 

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 84 of 117

c. The Differences Between DAPA and DACA Do Not Compel a
Different Result.

Defendant?Intervenors argue the Fifth Circuit?s ruling in Texas I is not applicable here
because and DAPA are not identical.? [Doc No. 215, at 27] (citing Texas I, 809 F.3d at
173). They point to two salient differences: 1) there is arguably no analogous statutory provision
that DACA would displace; and 2) DACA affects fewer people than DAPA.

To distinguish DACA from DAPA and Expanded DACA, Defendant?Intervenors ?rst
point to a passage in the Texas I opinion citing a speci?c collection of INA provisions that
provides ?an intricate process for illegal aliens to derive a lawful immigration classi?cation from
their children?s immigration status.? Id. at 179?80 (citing 8 U.S.C. 
1201(a), 1255). The Texas I court held that DAPA was unlawful in part
because permitting DAPA would nullify the particular group of provisions and displace it with a
new method for alien parents to acquire citizenship through their children. The Defendant-

Intervenors argue that because no analogous set of provisions exists for DACA, the Fifth

 

[R]egardless of whether these concerns about the DACA policy render it illegal or legally
questionable, there are sound reasons of enforcement policy to rescind the DACA policy. To start,
DHS should enforce the policies re?ected in the laws adopted by Congress and should not adopt
public policies of non?enforcement of those laws for broad classes and categories of aliens under
the guise of prosecutorial discretion?particularly a class that Congress has repeatedly considered
but declined to protect. Even if a policy such as DACA could be implemented lawfully through
the exercise of prosecutorial discretion, it would necessarily lack the permanence and detail of
statutory law. DACA recipients continue to be illegally present, unless and until Congress gives
them permanent status.



Moreover, considering the fact that tens of thousands of minor aliens have illegally crossed or
been smuggled across our border in recent years and then have been released into the country
owing to loopholes in our laws?~and that pattern continues to occur at unacceptably high levels to
the detriment of the immigration systemAit is critically important for DHS to project a message
that leaves no doubt regarding the clear, consistent, and transparent enforcement of the
immigration laws against all classes and categories of aliens.

[Doc No. 100, Ex. 

Consequently, if this Court gave Chevron deference to the current agency position, the ultimate result would be the
same.

84

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 85 of 117

Circuit?s ruling does not apply.

This Court cannot agree. First, the Fifth Circuit?s ruling in Texas I did not rely
exclusively on the existence of the provisions allowing illegal aliens to derive a lawful
immigration classi?cation from their children?s immigration status. The court, in fact, relied at
least as much on incompatibility with the provisions for lawful presence and
work authorization, as discussed above. Moreover, the Fifth Circuit?s ruling in Texas I clearly
was not predicated solely on the existence of those provisions, as evidenced by the court?s
holding that Expanded DACA was also unlawful. That program had no overlap with the cited
provisions, and the court obviously did not rely on their existence in ruling against it.

Second, analogous provisions do exist regulating the lawful admission of children, as
well as for students and veterans. Congress has passed many acts relating to the immigration of
children, and at least two of them provide methods for attaining status that signi?cantly overlap
with the DACA age group: derivative citizenship and naturalization upon application. Congress
has allocated a method for children to derive citizenship from a parent, whereby a child born
outside of the United States may become a citizen if the child: 1) has an American citizen parent;
2) is under 18 years of age; 3) lives in the legal and physical custody of the American citizen
parent; and 4) is a lawful permanent resident. 8 U.S.C. 1431. Another provision provides for
the naturalization of a child born outside the United States upon application of the parent, if the
child: 1) has a US. citizen parent; 2) has a parent who has been physically present in the United
States for at least ?ve years, two after the age of fourteen; 3) is under eighteen years of age; 4) is
residing outside of the United States in the legal and physical custody of the applicant; and 5) is
temporarily present in the United States pursuant to a lawful admission. 8 U.S.C. 1433. This

Court earlier discussed the statutes that Congress has passed concerning students and veterans.

85

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 86 of 117

Suf?ce it to say DACA allows certain recipients to acquire lawful presence without complying
with any of Congress?s requirements. This is especially troubling when one considers that
Congress has consistently rejected any legislative effort to give the DACA recipients legal status.

Defendant-Intervenors also argue that DACA is different from DAPA because it affects
fewer people. [Doc. No. 215, at 19]. This contention, based solely on a numerical difference, is
factually accurate, but provides no legal distinction. The 1.5 million people DACA would permit
to receive lawful presence and work authorization are still too numerous to fit into the
individualized notion of deferred action that courts have found permissible in other contexts.
Over a million individuals is still an outsized number, and it remains outside the authority of the
agency to defer action for this many people. As were DAPA and Expanded DACA, DACA is
?foreclosed by Congress?s careful plan.? 16!. at 186.

The fact that DAPA was three times the size of DACA is of no legal significance. One of
Defendant-Intervenors? experts is an immigration law professor and was Chief Counsel to the
United States Customs and Immigration Service from 2011 to 2013, during which time DACA
was instituted. He ?nds only two differences between DACA and DAPA: 1) the size; and 2)
DACA is an active program at the time of litigation, whereas DAPA had yet to be instituted
when it was challenged. He testi?ed as follows:

Q: Okay. I forgot to ask you one additional question. So earlier we had talked

about the differences between DACA and right? And you can
think of two right now. One is the size of the population, which you said
doesn?t affect the merits of whether DACA and DAPA are legally the
same thing; correct?

A: In my opinion, it should not have that effect.

Q: Okay. And then the second thing you mentioned was the ongoing nature

of the DACA program as Opposed to the soon-to?be implemented nature
of the DAPA program; correct?

86

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 87 of 117

A: Correct.

Q: But, again, in your opinion, going to the underlying merits of whether
these two programs are legal, that shouldn?t make a difference; correct?

A: Correct.

Dep. of Stephen Legomsky [Doc. No. 284, Ex. 67, at 

Consequently, even one of the Defendant?Intervenors? own experts?one who was
involved in immigration policy at the time of the implementation of the DACA program??nds
that the difference in the possible number of participants between it (1.5 million) and Expanded
(4.3 million) is of no legal signi?cance. The most troubling aspect of the position
of the Defendant-lntervenors is that, using their logic, the DHS could just grant deferred action
to smaller groups of 750,000 to 1.5 million (DACA size) more frequently and still give the entire
illegal population lawful presence.

There may be one other signi?cant difference between DAPA and DACA, but it too has
no effect on legality. Many of the amici argue that DACA has garnered much national media
attention and clearly invokes the sympathetic nature of the nation?s populace. DACA affects a
younger population. Many came to this country unlawfully or stayed in this country without
permission through no fault of their own. Further, the DACA population is generally better
educated and, according to many of the amicus briefs, better situated to contribute to the well-
being of this nation than other immigrant populations. For many, these factors make the DACA
population a much more appealing group. Although the group of DACA recipients may be
smaller, more deserving of sympathy, and perhaps even more worthy than those who would have
been covered by DAPA, those facts do not alter the legal reasoning underpinning this Court?s

conclusion. The result here is compelled by law. ?The law?s function is understood to be to

87

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 88 of 117

neutralize the emotionality that legal disputes arouse in the participants and lay observers.?93

As much as this Court might agree with these arguments, and as popular as this program
might be, the proper origination point for the DACA program is Congress.94

(1. This Exercise of Deferred Action Is Not Supported by Historical
Precedent.

Defendant?Intervenors also argue historical precedent provides a source of authority for
the institution of DACA. They cite past examples in which the Executive has deferred
prosecution for particular groups of aliens95 and argue that those instances provide precedent for
the program at issue here.

In distinguishing previous deferred action programs from DAPA, the Fifth Circuit
rejected precisely this argument: those programs, unlike DAPA, were ?[mostly] done on a
country?speci?c basis, usually in response to war, civil unrest, or natural disasters,? or ?were
bridges from one legal status to another.? Texas I, 809 F.3d at 184. The same shortfalls present in
Texas I are also present here, and DACA fares no better.

DACA, although closer in size, is no more analogous than DAPA to the cited historical

programs. The DACA program is by no means a ?bridge? to anywhere; in fact, the very

 

93 Richard A. Posner, Frontiers ofLegal Theory 226 (2001).

94 see Transcript of Oral Argument at 24, United States v. Texas, 136 s. Ct. 2271 (No. 15-674) (Justice Anthony
Kennedy: ?[T]he briefs go on for pages to the effect that the President has admitted a certain number of people and
then Congress approves it. That seems to me to have it backwards. It ?s as if that the President is setting the policy
and the Congress is executing it. hat ?3 just upside down?) (emphasis added).

95 See [Doc. No. 225, at 2 n.l (?250,000 Cuban nationals in 1977; 80,000 Chinese nationals in 1989; 190,000
Salvadoran nationals in 1992; 40,000 Haitian nationals in 1997; and 3,600 Liberian nationals in [Doc. No.
215, at 12 (?President Eisenhower?s parole of Hungarian refugees in 1956 . . . the parole of more than 600,000
Cubans in the United States through a series of discretionary programs that took place over the course of four
Presidential administrations . . . President Kennedy?s establishment of the Hong Kong Parole Program, which
provided extended voluntary departure to 15,000 Chinese 

88

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 89 of 117

memorandum that created it states it is not.96 DACA awards lawful presence to individuals who
have never before received or no longer possess lawful status, and it was not implemented in
response to any natural disaster or other similar crisis. Its closest analog is not any of the
programs cited by Defendant-Intervenors; DACA is most like DAPA and is directly analogous to
Expanded DACA. As was DAPA, the DACA program is not authorized by historical precedent.

Additionally, Defendant-Intervenors highlight a particular example of deferred action?
the ?Family Fairness? policies of 1987 and 1990+as allegedly analogous to the DACA program.
These policies are attractive candidates for comparison because of their size: they allegedly
provided deferred action for approximately 1.5 million individuals. [Doc. No. 215 at 12]. The
Fifth Circuit, however, already speci?cally rejected this analogy as well. Texas I, 809 F.3d at
185. Deeming the policies distinguishable from the DAPA and Expanded DACA programs, the
court called Family Fairness ?interstitial to a statutory legalization scheme,? because the
policies? purpose was to delay prosecution until Congress could enact legislation providing the
same bene?ts. Congress later passed the Immigration Act of 1990, which superseded the Family
Fairness Program. Pub. L. No. 101-649, 104 Stat. 4978 (enacted Nov. 29, 1990). The court said
that Family Fairness was unlike DAPA because Congress had consistently declined to enact a
DREAM Act, and DAPA was therefore not interstitial to any piece of legislation. See id.
is far from interstitial: Congress has repeatedly declined to enact the Development,
Relief, and Education for Alien Minors Act Act?), features of which closely resemble
DACA and 

The same conclusion applies here because DACA is not interstitial to an act of Congress.

 

96 Although, as noted above, it can under certain circumstances allow individuals to achieve a clearer pathway to
legal status by curing the bar for unlawful entry and allowing individuals to avoid mandatory wait periods through
advance parole eligibility.

89

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 90 of 117

In fact, just the opposite situation exists. Congress has repeatedly considered and declined to pass
a DREAM Act to provide bene?ts to the same or a similar class of aliens protected by DACA.
Although the Defendant-Intervenors would have the Court view DACA as a means of waiting
for congressional action, given the DREAM Act?s history in Congress, the Court is unable to
predict that Congress will pass such an act in the future. Although Congress may someday enact
such a DREAM Act, until it does, its continued rejection of bills coextensive with DACA
evinces a rejection of this policy. The Fifth Circuit found DAPA to be contrary to law because it
clearly was not ?a bridge[ from one legal status to another.? Texas I, 809 F.3d at 184. DACA
suffers from the same de?ciency. The very memorandum which creates it speci?cally states it is
not a pathway to citizenship and that it confers no immigration status.

For the reasons provided above, DACA violates the substantive provisions of the APA.

3. Procedural APA Claim

The Plaintiff States Claim that DACA violates the APA because it is a ?legislative? or
?substantive? rule that was effectuated without undergoing the required notice-and-comment
procedures.

The parties do not contest that the DACA program is a ?rule? as described by the 
nor that the ?rule making? requirements are applicable here.98 Section 553 of Title 5,
United States Code, outlines the requirements of formal rule making, which mandates that

?[g]eneral notice of prOposed rule making shall be published in the Federal Register? and that the

 

97 5 U.S.C. 551(4) means the whole or a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the
organization, procedure, or practice requirements of an agency and includes the approval or prescription for the
?iture of rates, wages, corporate or ?nancial structures or reorganizations thereof, prices, facilities, appliances,
services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the


98 5 U.S.C. 551(5) making? means agency process for formulating, amending, or repealing a see
also 5 U.S.C. 553 (describing the notice?and?comment procedures).

90

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 91 of 117

agency ?shall give interested persons an opportunity to participate in the rule making through
submission of written data, views, or arguments.? 5 U.S.C. The parties also agree
that the 2012 DACA memorandum was issued without such notice and comment. The dispute
between the parties is whether DACA is exempt from these requirements.

Section 553 provides two exceptions that allow a proposed rule to circumvent the notice-
and-comment requirements. The ?rst exempts rules that are ?interpretive rules, general
statements of policy, or rules of agency organization, procedure, or practice.? Id. 
The second, which allows an agency to ?nd notice and comment ?impractical, unnecessary, or
contrary to the public interest,? is clearly inapplicable and has not been argued in this case. Id.
A rule that is ?substantive? cannot fall within these exceptions, and the notice-
and-comment procedures must be adhered to ?scrupulously.? Prof ?ls Patients for Customized
Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995). The notice-and-comment exemptions must be
narrowly construed. Id. (citing United States v. Picciotto, 875 F.2d 345, 347 (DC. Cir. 1989)).99

a. DACA Is Not a Procedural Rule

A rule may avoid the notice-and-comment requirements if it is one of ?agency
organization, procedure or practice.? 5 U.S.C. 553(b)(A). DACA clearly has nothing to do with
the organization or practice of the DHS. The Defendant?Intervenors, however, claim that it is a
procedural rule. In Texas I, the Fifth Circuit applied two tests to determine whether DAPA and
Expanded DACA were ?procedural.? Texas I, 809 .3d at 176?77. First, it used the ?substantial
impact test? to ?look beyond the label ?procedural? to determine whether a rule is of the type

Congress thought appropriate for public participation.? Texas I, 809 F.3d at 176 (quoting U.S.

 

99 No party has argued that DACA should be exempt from notice~and-comment because it is an ?interpretive rule?
as described by section nor have they argued that it falls within the exemption in section 553(a)(2) for
?matter[s] relating to . . . public property, loans, grants, bene?ts, or contracts.? Consequently, the Court will not
address those provisions.

91

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 92 of 117

Dep ?t of Labor v. Kasr Metals Corp, 744 F.2d 1145, 1153 (5th Cir. 1984)). ?An agency rule that
modi?es substantive rights and interests can only be nominally procedural, and the exemption
for such rules of agency procedure cannot apply.? Id. (quoting Kast Metals, 744 F.2d at 1153).
The Circuit held that undoubtedly [met] that test? because it conferred law?il presence
on 500,000 aliens for whom Texas was required to provide driver?s licenses. Id. Here, the same
reasoning applies. DACA also undoubtedly meets this test because it has forced the states to
spend money on various social services costs, which are clearly ?modif[ications]? of
?substantive rights.? Id. (quoting Kast Metals, 744 F.2d at 1153). Over 800,000 individuals have
already received the bene?t of lawful presence. Most have received work authorization, and over
half a million more individuals are or will be eligible to apply. Moreover, the individual
Defendant-Intervenors, New Jersey, and the many states appearing through amicus curiae briefs
have without exception urged this Court to consider the substantial positive impact these
recipients have made. No matter which party?s briefs and exhibits one reviews, each stresses the
impact of the DACA program. DACA clearly has impacted the entire country. Although the
DACA program has conferred lawful presence on a smaller number of people than DAPA would
have, it has nonetheless impacted the Plaintiff States and affected individuals in an equally
important manner.

Next, the Fifth Circuit employed a test originating in the DC. Circuit. This test considers
the ?effect on those interests ultimately at stake in the agency proceeding,? and whether a rule
?impose[s] ?derivative,? ?incidental,? or ?mechanical? burdens upon regulated individuals.? Texas
I, 809 F.3d at 176 (quoting Nat?l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 107 (BBC.
2013)). The court elaborated on the test:

procedural rule generally may not encode a substantive value judgment or
put[ a stamp of approval or disapproval on a given type of behavior, but the fact

92

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 93 of 117

that the agency?s decision was based on a value judgment about procedural

ef?ciency does not convert the resulting rule into a substantive one. A corollary to

this principle is that rules are generally considered procedural so long as they do

not change the substantive standards by which the [agency] evaluates applications

which seek a bene?t that the agency has the power to provide.

Under this test, the Fifth Circuit reached the same conclusion as it had using the
substantial impact test: DAPA and Expanded DACA were not procedural rules. It looked to the
fact that DAPA established ?the substantive standards by which the [agency] evaluate[d]
applications which [sought] a bene?t that the agency [purportedly] ha[d] the power to provide.?
Id. at 177. The same is true in this case. The ?ve criteria by which DACA applicants are
evaluated are clearly substantive standards and are no different than the DAPA criteria at issue in
Texas I. What could be more of an inherent value judgment than requiring an individual to pass a
background check? The DACA memorandum changes the substantive standards signi?cantly by
creating a broad new category of aliens for whom lawful presence and work authorization are
available. It provides the criteria by which the agency allocates ?bene?t[s] that the agency has
the power to provide?: lawful presence and employability. Id. at 177 (citations omitted). Indeed,
it is an understatement to say that DACA changes the way the DHS and other agencies viewed
work authorizations and parole applications. Furthermore, it changes the way that other federal
agencies, such as the Social Security Administration, view applications from the DACA
recipients. This is, as it was in Texas I, a ?critical fact requiring notice and comment.? Id. The
June 2012 DHS memorandum is clearly not a procedural rule.

b. DACA Is Not a General Policy Statement

A general policy statement need not comply with the notice?and-comment

requirements. 5 U.S.C. 553(b)(A). While the Act de?nes neither the term ?substantive? nor the

 

100 Id. (citations and quotations omitted) (emphasis in original).

93

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 94 of 117

phrase ?general statement of policy,? the case law in this area has become fairly well-developed,
and courts consistently look to precedent for guidance. Shalala, 56 F.3d at 595. Even so, the
facts of each case are unique. If the DACA memorandum is a substantive rule, it is unlawful, for
a substantive rule may not be promulgated without notice and comment. 101

i. The Agency?s Characterization

In assessing whether a rule is substantive, courts begin by looking to the agency?s
characterization of its own rule. ?While mindful but suspicious of the agency?s own
characterization, [courts] . . . focus[] primarily on whether the rule has binding effect on agency
discretion or severely restricts it.? Texas I, 809 F.3d at 171 (quoting Shalala, 56 F.3d at 595).
However, the ?label that the . . . agency puts upon its given exercise of administrative power is
not . . . conclusive; rather it is what the agency does in fact.? Shalala, 56 F.3d at 596 (quoting
Brown Express, Inc. v. United States, 607 F.2d 695 (5th Cir. 1979)).

Thus, while labels are not unimportant, the true test is how the program is actually
administered and whether it affects rights and obligations. Secretary Napolitano describes a
program based upon individual acts of prosecutorial discretion. Memorandum from Janet
Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the
United States as Children (June 15, 2012) [Doc. No. 5, Ex. Acting DHS Secretary Duke
subsequently described DACA to be ?programmatic,? meaning that the June 15, 2012

memorandum dictated the qualifying factors and left the actual application processors little to no

 

101 Courts have struggled to de?ne the dividing line between rules that are substantive and rules that are not. See

Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (DC. Cir. 1987) (?The distinction between legislative rules and
interpretative rules or policy statements has been described at various times as ?tenuous,? Chisholm v. FCC, 538
F.2d 349, 393 (DC. Cir), cert. denied, 429 U.S. 890, 97 S. Ct. 247, 50 L.Ed.2d 173 (1976), ?fuzzy,? Pacific Gas 
Electric Co. v. FPC, 506 F.2d 33, 38 (DC. Cir. 1974), ?blurred,? Saunders, Interpretative Rules With Legislative
E??ect: An Analysis and a Proposal for Public Participation, 1986 Duke 346, 352, and, perhaps most
picturesquely, ?enshrouded in considerable smog.? Noel v. Chapman, 508 F.2d 1023, 1030 (2d Cir.), cert. denied,
423 US. 824, 96 S. Ct. 37, 46 L.Ed.2d 40 (1975), quoted in American Bus Association v. United States, 627 F.2d
525, 529 (DC. Cir. 

94

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 95 of 117

room to exercise discretion. Memorandum from Elaine C. Duke, Memorandum on Rescission of
Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017) [Doc. No. 6, Ex. 5, at Both
the Regents and Batalla Vidal courts echoed the Duke memorandum?s conclusion. Consequently,
the own characterization is of little or no help.

To distinguish policy statements from substantive rules, courts employ two primary
criteria. Texas I, 809 F.3d at 171. First, courts have said that ?unless a pronouncement acts
prospectively, it is a binding norm,? however, the ?binding effect, not the timing, . . . is the
essence of criterion one.? Shalala, 56 F.3d at 595. The June 15, 2012 memorandum instructed
the employees that and CBP should immediately apply DACA to eligible
individuals who have been encountered.? Memorandum from Janet Napolitano, Exercising
Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children
(June 15, 2012) [Doc. No. 5, Ex. The memorandum also immediately applied to individuals
already in removal proceedings. It clearly had an immediate binding effect because by the end of
2012 over 150,000 applicants had been approved. See US. Citizenship and Immigration
Services, Number of Form Consideration of Deferred Action for Childhood Arrivals, by
FY, Quarter, Intake, Biometrics and Case Status FY 2012-2017 (March 31, 2018) [Doc. 225, Ex.
23]. Six years later, it is still in operation. Clearly, this policy was instituted immediately after it
was announced, and it has been binding ever since.

A general statement of policy ?genuinely leaves the agency and its decision-makers free
to exercise discretion.? Texas I, 809 F.3d at 171 (quoting Cmty. Nutrition Inst. v. Young, 818
F.2d 943, 946 (DC. Cir. 1987)). Stated another way, ?a ?general statement of policy? is one that
does not impose any rights and obligations.? Shalala, 56 F.3d at 595. These two prongs

?overlap? to some extent ?because [i]f a statement denies the decisionmaker discretion in the

95

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 96 of 117

area of its coverage . . . then the statement is binding, and creates rights or obligations.? Texas I,
809 F.3d at 171 (quoting Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (DC. Cir. 2002)).

The Fifth Circuit in Texas I stated the criteria to distinguish policy statements from
substantive rules as follows: ?whether the rule (1) impose[s] any rights and obligations and (2)
genuinely leaves the agency and its decision-makers free to exercise discretion.? Texas I, 809
F.3d at 171 (internal quotations omitted). It cited multiple cases for the use of these criteria but
ultimately traced the concept back through Professionals Patients for Customized Care v.
Shalala, 56 F.3d 592, 595 (5th Cir. 1995), to Community Nutrition Institute v. Young, 818 F.2d
943, 946 (DC. Cir. 1987). Due to its location and resulting docket, the DC. Circuit has long
been looked to in the ?eld of administrative law. That circuit describes these two factors as
criteria that can be used to ?fathom the interpretive/legislative distinction.? Cmty. Nutrition, 818
F.2d at 946. These factors are not treated like different elements of a cause of action, both of
which must be proved; but instead a ?matter of judgment is involved in distinguishing between
rules however discretionary in form, that effectively circumscribe administrative choice.? Am.
Bus Ass ?11 v. United States, 627 F.2d 525, 530 (DC. Cir. 1980).

ii. Rights and Obligations

The Court ?rst considers whether the program ?imposes rights and obligations? such that
it is ?binding? in its effect. Shalala, 56 F.3d at 595. In this case, it is clear that the DACA
program confers rights and imposes obligations.

The Fifth Circuit in Texas I held that DAPA affected rights and obligations not only for
the illegal aliens who would bene?t from the program, but also for the states and the federal
government. See Texas I, 809 F.3d at 148 (?[Those] granted lawful presence pursuant to DAPA

are no longer bar[red] . . . from receiving social security retirement bene?ts, social security

96

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 97 of 117

disability bene?ts, or health insurance under Part A of the Medicare program?); id. at 149 (?The
district court deterrnined?and the Government does not dispute;that DAPA recipients would
be eligible for earned income tax credits once they received a Social Security number?); id. at
173 n.137 . . . has an effect on []illegal aliens[]. DAPA removes a categorical bar to
illegal aliens who are receiving state and federal bene?ts, so it places a cost on the states?).

DACA has exactly the same effect.102 The program affects the rights and obligations of
the DACA recipients because it gives them lawful presence, the right to apply for work
authorization, Social Security, Medicare, access to advance parole, and an array of other federal
and state bene?ts. In this case, as opposed to Texas I, the Court need not project into the future.
Over 800,000 individuals have received these rights with another large group of applicants yet to
come. DACA also impacts the obligations of the individual States. As described in the section on
standing, supra, the program requires states to spend money on various social services.
Moreover, the program affects the obligations of the United States Government. In addition to
the bene?ts described above, it obligates the Government to forebear from implementing
immigration enforcement proceedings. These are certainly the kinds of rights and obligations
that give a program ?binding effect? such that the notice?and-comment procedures are required.
Shalala, 56 F.3d at 595.

In Texas I, it was clear to this Court and the Fifth Circuit that DAPA and Expanded

 

?02 Some of the other cases that have considered the recent DHS rescission memorandum concluded that DACA
confers important bene?ts. In Regents, the Northern District of California court found so directly, noting its effect
on employment authorization, safety from detention and removal, advance parole eligibility, and avoidance of the
accrual of time for unlawful presence. See Regents, 279 F. Supp. 3d at 1023. Similarly, in Casa De Maryland, the
District of Maryland court implied that the program provided certain bene?ts to the actual recipients of DACA (as
opposed to various immigrant-rights groups), ?including the ability to (I) obtain employment authorization, (2)
travel internationally, (3) attend schools, (4) pay into and receive payment from Social Security and disability, (5)
secure other opportunities like obtaining bank accounts or credit cards, and (6) otherwise be considered ?lawfully
present? Casa De Maryland, 284 F. Supp. 3d at 776. While the Maryland court did not find these bene?ts were
rights that could not be withdrawn, it did ?nd that DACA imposed obligations on the government not to misuse
certain information provided by the recipients.

97

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 98 of 117

DACA conferred bene?ts, and that fact also became clear to at least one of the Justices in the
Supreme Court oral argument:

Justice Alito: If an employer took the position that the employer was not going to

hire a DAPA bene?ciary because the employer believes that they are not that

they are not lawfully authorized to work, would prefer someone else over them,

could that person sue on any theory of discrimination, for example, under Section

1981??

Mr. Saenz: They could, Your Honor. And and the outcome of that case, I think,

has not been clearly established by precedent so far, but it would be a clash

between folks with concrete interest, an employer who wants to hire someone, not

the individual who 

Justice Alito: If that?s true then, DAPA gives them a legal right. It?s more than
just putting them in a low?priority prosecution status.

DACA, of course, bestows the same bene?ts. Furthermore, as discussed above, employment is
only one of the plethora of rights and bene?ts conferred.
Do the Actual Decision?Makers Exercise Discretion?

Next, the Court asks Whether ?the agency and its decision?makers [are] free to exercise
discretion.? Cmty. Nutrition, 818 F.2d at 946. On the record before it, this Court does not ?nd the
evidence of discretion by the individuals processing DACA applications to be compelling either
way.

The Plaintiff States rely strongly on two different statements from the DHS to argue that
the personnel reviewing DACA applications do not exercise discretion. First, in Texas I, the
DHS could not ?nd one example of anyone who complied with all of the DACA requirements
and was turned down for a discretionary reason. Second, some years later, Acting DHS Secretary
Duke con?rmed that has not been able to identify speci?c denial cases where an

applicant appeared to satisfy the programmatic categorical criteria as outlined in the June 15,

 

Transcript of Oral Argument at 41, United States v. Texas I, 136 s. Ct. 2271 (No. 15?674) (emphasis added).
98

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 99 of 117

2012 memorandum, but still had his or her application denied based solely upon discretion.?
[Pls. Motion for Prelim. Inj., Ex. 5 n.1, App. 22?23].

The Plaintiff States have brought forth other evidence on this point as well. For instance,
the USCIS Texas Service Center, which no longer handles DACA applications but did for many
years, has never turned anyone down who met the June 15, 2012 criteria. [Doc. No. 284, Ex. 
The States have also presented hundreds of pages of DHS manuals and procedures that instruct,
in painful detail, each step a reviewer should take and what types of evidence each reviewer may
consider as evidence that the DACA applicant has satisfied each of the criteria. Further, the
States point to the fact that if DACA applicants satisfy the criteria, they are not interviewed, as
their applications are granted by the service centers sight unseen.

Finally, there is the June 15, 2012 memorandum itself, which states that the USCIS
should establish a clear and ef?cient process for exercising prosecutorial discretion on an
individual basis, but then instructs the agency on exactly what factors to use. For example:

3. With respect to the individuals who are lot currently in removal proceedings

and meet the above criteria, and pass a background check:

0 USCIS should establish a clear and efficient process for exercising
prosecutorial discretion, on an individual basis, by deferring action against
individuals who meet the above criteria and are at least 15 years old, for a
period of two years, subject to renewal, in order to prevent low priority

individuals from being placed into removal proceedings or removed from
the United States.

0 The USCIS process shall also be available to individuals subject to a ?nal
order of removal regardless of their age.

0 USCIS is directed to begin implementing this process within 60 days of
the date of this memorandum.10

Thus, while employing the words ?prosecutorial discretion,? the memorandum itself lays

out who is eligible??the individuals . . . who meet the above criteria and pass a background

 

104 Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who

Came to the United States as Children (June 15, 2012) [DocCase Document 319 Filed in TXSD on 08/31/18 Page 100 of 117

check?~and then instructs the reviewer to grant eligible applicants deferred action.105

The Defendant-Intervenors respond by pointing to the increase in the denial rate of
DACA applicants in recent years. They also have provided this Court with multiple emails from
instructors who teach the DACA processors that suggest that a shift may have taken place
following this Court?s opinion in Texas I in early 2015. [Doc. No. 215, Ex. After that
decision, DHS began denying (even in the Texas Service Center) more applications than it had in
the first three years of the DACA program. The Defendant?Intervenors claim this was due to an
exercise of discretion, as opposed to applicants not meeting the established criteria, but this
conclusion is not necessarily proven by facts. Finally, Defendant?Intervenors produced a post-
Texas I email from one instructor that, while talking about the established criteria, said that she
liked to ?jokingly say our standard is whether or not you would want to live next door to the
person.? [Doc. No. 215, Ex. 1, at 405]. While this Court will not opine on whether the
?neighbor? standard is one capable of re?ned precision or even whether it would be legally
enforceable, if it were routinely being used, it would certainly be indicative of a discretionary
standard.

The Court recognizes that one of two possibilities is more than likely true regarding the
current state of discretion in the DACA program. It could be that the June 15, 2012
memorandum still controls, and that any discretion being exercised is not based upon outside
factors, but rather solely on whether an applicant satis?es the June 15, 2012 ?programmatic?

criteria. It could also be that, following this Court?s opinion in 2015, the DHS may have begun to

 

105 The States also rely on the statements by Kenneth Palinkas to the effect that no discretion was being exercised by
the DHS personnel actually making the decisions. This Court did not ?nd either the deposition of Kenneth Palinkas,
or the deposition of Michael Knowles (apparently called by Defendant?Intervenors), to be compelling. On cross-
examination, both conceded that most of what they had to say was either opinion or based upon hearsay. This Court
earlier emphasized to all counsel in a hearing concerning discovery that the witnesses needed to have personal
knowledge. Hearing Tr. (June 28, 2018) [Doc. No. 111, at 15~16]. Neither of these witnesses has ever processed a
DACA application.

100

 

Case Document 319 Filed in TXSD on 08/31/18 Page 101 of 117

106

shift its process to allow its application processors more discretion. If the former scenario is

actually the case, then the only actual discretion in the DACA program was that exercised by the
Secretary in 2012, and her instructions have bound everyone since that time. This kind of
situation has been considered by the DC. Circuit, which found similar guidelines to be
substantive:

In applying the second criterion in Pickus v. U. S. Board of Parole, 507 F.2d 1107
(DC. Cir. 1974), we took into account the language, structure, and calculable
effect of the statement. The Parole Board claimed that guidelines specifying many
of the factors it used in deciding whether to parole prisoners were ?general
statements of policy.? The court disagreed, on the grounds that those guidelines
?were of a kind calculated to have a substantial effect on ultimate parole
decisions. . . . Although they provide no formula for parole determination, they
cannot help but focus the decisionmaker?s attention on the Board?approved
criteria. They thus narrow his ?eld of vision, minimizing the in?uence of other
factors and encouraging decisive reliance upon factors whose signi?cance might
have been di??erently articulated had Section 4 (now section 553 of the APA) been
followed.? In sum, the court held, the guidelines ?are substantive agency action,
for they define a fairly tight framework to circumscribe the Board?s statutorily
broad power.?

The evidence presented thus far has not convinced the Court which of these alternatives,
if either, is accurate. Some evidence suggests that individual decision-makers are not exercising,
and are not allowed to exercise, discretion. That evidence, however, is not convincing, either in
its quantity or quality, and there is at least some evidence presented by the Defendant-
Intervenors to the contrary?that the actual individuals screening the applications may have
some discretion.

That being the case, this Court looks to which party bears the burden of proof.

 

106 This Court ?nds that it is not bound by the facts as they existed when DACA was ?rst implemented, or even by
the facts as they existed when this Court issued the injunction in Texas I. This Court holds that it may consider later
evidence, including evidence as to how DACA is being operated today.

107 Am. Bus, 627 F.2d at 530 (emphasis added). See also, the OLC memorandum which advised that case?by-case
discretion needed to be given to the actual ?immigration officials,? otherwise the DHS could be viewed as having
?abdicated its statutory enforcement responsibilities? or the DAPA program might be viewed as having ?created a
categorical rule?like entitlement.? US. Department of Justice?s November 19, 2014, Memorandum Opinion for the
Secretary of Homeland Security and the Counsel to the President (Nov. 19, 2014) [Doc. No 5, Ex. 19, at 28?29].

101

Case Document 319 Filed in TXSD on 08/31/18 Page 102 of 117

Preliminary injunctions ?may only be awarded upon a clear showing that the plaintiff is entitled
to such relief.? Winter, 555 US. at 22 (citing Mazurek 12. 520 US. 968, 972 (1997)
(?It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy,
one that should not be granted unless the rnovant, by a clear showing, carries the burden of
Based on the evidence in the preliminary injunction record, the Court holds that
the Plaintiff States have not made a ?clear showing? that those processing DACA applications
are not free to exercise discretion.

iv. Weighing a Policy that Imposes Rights and Obligations but Allows
Discretion

Given this Court?s ?ndings?that DACA imposes rights and obligations, but that the
Plaintiff States have not clearly shown an absence of discretion?~the resolution of the ?policy
statement vs. substantive rule? test turns on whether the criteria set out in Texas I are factors to
consider or are like elements of a cause of action, where each must be proven. The Plaintiff
States argue that their evidence on the ?rst criterion?whether DACA confers rights and imposes
obligations?is so overwhelming that they need not prevail on the second?whether a lack of
discretion exists. In other words, they claim that the evidence in the ?rst category is so
persuasive that the Court can rule that DACA is not a statement of general policy as a matter of
law regardless of the eventual outcome concerning the issue of discretion. The Defendant-
lntervenors respond by arguing that an adverse finding (or a failure by the States to carry their
burden of proof) on the ?discretion? prong means the Plaintiff States have not made a clear
showing that DACA is a substantive rule. If the States have not proven DACA is a substantive
rule, then the States have failed to prove a violation of the procedural requirements of the APA.

The Court ?nds the evidence concerning the exercise of discretion to be equivocal and

lacking the quality that one would require to ?nd that it equates to a clear showing. Conversely,

102

 

Case Document 319 Filed in TXSD on 08/31/18 Page 103 of 117

the evidence that DACA confers rights and imposes obligations is overwhelming. The program
confers lawful presence and an entire array of bene?ts on DACA recipients. Additionally, it
imposes upon the States and the Government multiple obligations, many of which ?ow
automatically from award of lawful presence.

While this Court need not decide the merits of the procedural aspects of the APA claims,
given its eventual ruling below, it may be in the best interests of all concerned and in the
interests of any subsequent appeal for this Court to indicate its holding on these issues. The Fifth
Circuit speci?cally described these factors as ?criteria? that evaluate.? Texas I, 809 F.3d at
171. If the criteria were to be considered as elements that must be proven, there would certainly
be clearer ways to express that concept. Consequently, this Court holds that the Plaintiff States
need not prove (or clearly show a likelihood of success) on both criteria; rather this Court
evaluates each independently. Despite the less-thannconvincing evidence regarding discretion
and given the overwhelming evidence concerning the rights conferred and the obligations
imposed, this Court holds that the Plaintiff States have shown DACA to be a substantive rule that
should have complied with the notice?and-comment procedures required by the APA.108

In conclusion, despite not ruling on the Take Care Clause issue, this Court ?nds that, as a
matter of law, the Plaintiff States have made a clear showing they are likely to succeed on the
merits at trial. For the purpose of a preliminary injunction, they have shown their substantive
APA claim is likely to be successful. The DACA program contradicts statutory law and violates
the APA because the INA directly addresses the issues of lawful presence and work

authorization for aliens in this country but does not include those designated by DACA.

 

108 If the Defendant?Intervenors are right and the States must prevail on both criteria, this Court would ?nd that the

Plaintiff States have not clearly shown that the actual decision?makers do not exercise discretion and consequently
their proof at this stage would not support a conclusion of a likelihood to succeed on the merits on the procedural
APA issue.

103

 

Case Document 319 Filed in TXSD on 08/31/18 Page 104 of 117

Furthermore, the award of lawful presence and an entire array of federal, state, and local rights
and bene?ts to aliens Congress has deemed inadmissible ?ies in the face of the goals of
deciding who comes to and stays in the United States, who works in the United States, and who
quali?es for government-funded bene?ts. This Court also holds that the States have shown a
likelihood to succeed on their procedural APA claim. As the Fifth Circuit stated in Texas I, and
as is basically true here, its core, this case is about the Secretary?s decision to change the
immigration classi?cation of millions of illegal aliens on a class-wide basis.? Texas I, 809 F.3d
at 170. This program, which allots lawful presence and its corresponding bene?ts to more than a
million aliens, must be committed to the decision-making power of Congress, not the Executive
alone. Nevertheless, if implemented by the Executive Branch, it must at least undergo the
formalities of notice and comment.

For these reasons, the Court holds that the Plaintiff States have clearly shown, as a matter
of law, that they are likely to succeed on the merits.

B. Preliminary Injunction Factor Two: Irreparable Harm

In addition to showing a likelihood of success on the merits on at least one of their
claims, the Plaintiff States must also demonstrate a ?likelihood of substantial and immediate
irreparable injury? if the injunction is not granted, and the ?inadequacy of remedies at law.?
O?Shea v. Lz'ttleton, 414 US. 488, 502 (1974).

Speculative injuries are not enough to satisfy this factor; ?there must be more than an
unfounded fear on the part of [Plaintiffs].? 11A Charles Alan Wright et al., Federal Practice and
Procedure 2948.1. Thus, courts will not issue a preliminary injunction ?simply to prevent the
possibility of some remote future injury.? Id. Instead, the Plaintiff States must show a ?presently

existing actual threat.? 1d,; see also Winter, 555 US. at 22 (?We agree . . . that the Ninth

104

Case Document 319 Filed in TXSD on 08/31/18 Page 105 of 117

Circuit?s ?possibility? standard is too lenient. Our frequently reiterated standard requires
plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence
of an injunction.? (internal citations omitted)). The Plaintiffs? injury need not have already been
in?icted or be certain to occur; a strong threat of irreparable injury before a trial on the merits is
adequate for a preliminary injunction to issue. See, e. 11A Charles Alan Wright et al., Federal
Practice and Procedure, 2948.1.

The Plaintiff States allege they will suffer injuries due to various causes should an
injunction be denied. First, they claim that they are paying millions of dollars annually to provide
for uncompensated healthcare expenses and other state-provided bene?ts. [Doc. No. 5, at 41].
Additionally, they will suffer increased law-enforcement and educational costs ?imposed by
aliens who would not remain in the country but for the removal of their unlawful-presence status
and work authorizations.? [Doc. No. 218, at 49]. Further, they claim the increased presence of
the DACA recipients causes injury to their legal residents, as the DACA recipients diminish the
chances for employment for legal residents.

The Plaintiff States maintain that these expenses are incurred on a daily basis and
accurately claim that they stand little or no chance of getting monetary compensation from the
federal government for these costs. See Texas v. United States, 106 F.3d 661, 662 (5th Cir.
1997). This category of damages was rejected by this Court in Texas I because the damages
claimed were actually projected costs and were not based on the actual policy being challenged
or the costs associated with the DAPA or Expanded DACA recipients. Instead, these damages
were allegedly being caused by other aliens, who, inspired by the existence of DACA and the
prospect of DAPA, chose to illegally come to the United States.

In the instant case, Texas has proven that it suffers some amount of costs associated with

105

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 106 of 117

increased social services expenses that are directly associated with the continued presence of its
over 100,000 DACA?recipient residents. The Defendant?Intervenors maintain that Texas, the
only state that attempted to prove damages, did not suffer any real loss on a net basis, and that
these costs are more than offset by the economic advantages that Texas derives from the DACA
recipients, a position on which they may ultimately be proven correct when this case is tried on
the merits. Despite the fact that Defendant-Intervenors purport to question the existence of these
damages, their own expert, Dr. M. Ray Perryman, estimated that DACA recipients cost the State
of Texas $250,007,800 annually. The States maintain, again based upon studies proffered to the
Court by Defendant-Intervenors, that if DACA was rescinded, at least twenty percent of DACA
recipients would return to their home country. [Doc No. 219, Ex. 22, at 13]. The Plaintiff States
reasonably conclude that they would save that same percentage of their annual DACA-related
expenditures if the program was enjoined.

Most of Texas?s own testimony and evidence concerning DACA recipients is
encompassed in much larger ?gures that relate to costs incurred by the State for all illegal aliens
or for unaccompanied alien children. Nevertheless, whatever holes were created by the de?cits in
the evidence offered by the States? experts were ?lled in by the testimony of the Defendant-
Intervenors? experts. The Plaintiff States presented evidence that these costs continuously accrue
as DACA continues, in addition to the argument that DACA continues to incentivize more illegal
immigration.109 Stated differently, Texas argues that continued existence allows its
recipients to stay legally in the United States, which continues to compel Texas to expend funds

that it would not otherwise be compelled to spend. Indeed, several of the Defendant?Intervenors

 

'09 This latter argument, concerning incentivizing more illegal immigration, was made in Texas I, and this Court
refused to consider this claim. While it may be valid in its premise to a certain extent, the Court found in Texas I and
still ?nds here that as a legal issue it was not one that was redressable as pleaded.

106

Case Document 319 Filed in TXSD on 08/31/18 Page 107 of 117

went to public school in Texas, each of which cost the State of Texas thousands of dollars per
year.

Defendant?Intervenors have gone to great to prove that, aside from these costs,
the overwhelming majority of DACA recipients provide a decidedly positive economic effect on
the states in which they reside. The Defendant-Intervenors claim that the States might actually
suffer more irreparable damage should the DACA recipients lose their lawful presence and have
produced multiple af?davits and studies which do indeed support that claim. That is certainly the
position voiced by New Jersey and a large number of amicus curiae states. Texas, however,
argues that the Fifth Circuit held that the ?standing analysis is not an accounting exercise.? Texas
I, 809 F.3d at 156. This Court quoted this language previously when it found that Texas has
standing; however, that does not necessarily mean that the Plaintiff States automatically have
proven that they will suffer irreparable harm?a necessary element for obtaining a preliminary
injunction.

The Court at this stage need not go through an extensive accounting exercise that
analyzes each of the Plaintiff States? economic arguments and each of the Defendant?
lntervenors? rebuttals. Initially, a plaintiff is not precluded from claiming damages in one area
just because there is a possibility that the damages might ultimately be offset in another.
Moreover, the States correctly argue that the law allows a lesser level of precision and proof in a
case where the proof of damages is clear and where the movant has clearly shown a likelihood of
success on the merits. Fla. Med. Ass?n. Inc. v. US. Dep?t ofHealth, Educ. Welfare, 601 F.2d
199, 203 n.2 (5th Cir. 1979). This Court has reviewed the evidence of ongoing damages and
?nds it suf?cient to support a ?nding of injury that is irreparable, as there is no source of

recompense .

107

Case Document 319 Filed in TXSD on 08/31/18 Page 108 of 117

Nevertheless, this does not resolve the issue. The Defendant?Intervenors claim the States?
delay in bringing this action forecloses any injunctive relief. All concede that Texas and the other
Plaintiff States dismissed Texas I after the DHS agreed to phase out DACA. The DHS attempted
to make good on this representation in September of 2017, and it would have but for the
injunctions and vacatur issued by district courts in California, New York, and the District of
Columbia. Texas ?led this lawsuit in May of 2018, less than a week after the district court in
Washington, DC. indicated in NAACP that it would order DACA continued inde?nitely into the
future. (California and New York had issued their respective injunctions as to current DACA
recipients and renewals in January and February of this year.) Why the ?rst two injunctions did
not provoke the ?ling of this case, but the DC. order did, is beyond the knowledge of this Court.
One would suspect it was because the order in NAACP indicated the DC. court would order the
DHS to process new DACA applications in addition to the renewal applications the other courts
had already mandated. This Court ?nds that Texas?s reaction to this group of injunctions was
timely, eSpecially when one takes into account the fact that it had just dismissed its 2014 lawsuit
based upon the Government?s promise to dissolve the DACA program. If these were the only
relevant considerations, the Court would stop here. This timeline, however, is not the only one
the Court ?nds important.

The DACA program was instituted in June of 2012. No pertinent congressional or agency
action regarding this program (except for the repeated refusal of Congress to enact a
corresponding DREAM Act and the 2014 attempt to expand DACA) has taken place in the
meantime; nor have there been any impediments suggested or convincing reasons given for the
fact that the Plaintiff States waited almost six years to ?le this suit. The Plaintiff States correctly

argue that the statute of limitations has not expired as to their claims and that they are still able to

108

Case Document 319 Filed in TXSD on 08/31/18 Page 109 of 117

assert their rights as sovereign states to protect their citizens from the ongoing damages that they
perceive ?ow from the DACA program. In fact, the Defendant?Intervenors more or less concede
the accuracy of this point.

The problem with this proposition, however, is that the issuance of a preliminary
injunction is a matter of equity. See 11A Charles Alan Wright et al., Federal Practice and
Procedure 2947 grant or denial of a preliminary injunction remains a matter for the
trial court?s discretion, which is exercised in conformity with historic federal equity practice?).
A delay in seeking an injunction has been viewed as a concession or an indication that the
alleged harm does not rise to a level that merits an injunction:

A long delay by plaintiff after learning of the threatened harm also may be taken
as an indication that the harm would not be serious enough to justify a preliminary
injunction.

11A Charles Alan Wright et al., Federal Practice and Procedure 2948.1 (and the many cases
cited therein).

Federal courts in Texas have long recognized this principle. For example, in Symetra Life
Insurance Co. v. Rapid Settlements Ltd, 612 F. Supp. 2d 759 (SD. Tex. 2007), Judge Rosenthal,
dealing with a thirteen-month delay, opined:

Rapid Settlements also waited more than one year after the state court con?rmed
the arbitration award in May 2005 before ?ling suit in August 2006, evidence that
it will not suffer irreparable injury. ?[D]e1ay in seeking a remedy is an important
factor bearing on the need for a preliminary injunction. Absent a good
explanation, a substantial period of delay militates against the issuance of a
preliminary injunction by demonstrating that there is no apparent urgency to the
request for injunctive relief. Evidence of an undue delay in bringing suit may be
su?icient to rebut the presumption of irreparable harm.? Wireless Agents, LL. C.
v. T?Mobile USA, Inc, No. 3:05?cv?0094?D, 2006 WL 1540587, at *3 (ND.
Tex. June 6, 2006); see also Tough Traveler, Ltd. v. Outbound Prod, 60 F.3d
964, 968 (2d Cir. 1985) (vacating a preliminary injunction Where the movant
waited four months to seek relief after ?ling suit); Citibank, NA. v. Citytrust, 756
F.2d 273, 276 (2d Cir. 1985) (?nding that a ten-week delay in seeking an
109

Case Document 319 Filed in TXSD on 08/31/18 Page 110 of 117

injunction for trademark infringement undercut the claim of irreparable harm);
Boire v. Pilot Freight Carriers, Inc, 515 F.2d 1185, 1193 (5th Cir. 1975)
(af?rming the district court?s denial of temporary injunctive relief where the
movant, among other things, delayed three months in making its request).
Injunctive relief is unavailable.

Id. at 774. (emphasis added); see also All Access Today LP v. Aderra Inc., 2009 WL 10669445
(W.D. Tex. 2009) (six?month delay provided independent reason for denial of preliminary
injunction), Amicus Commc ?ns 12. Hewlett?Packard Co., Inc, 1999 WL 495921 (W.D. Tex.
1999) (three-year?plus delay provided independent reason for denial of preliminary injunction).

Courts from other circuits have likewise found this concept to be especially compelling
when defendants (or in this case the Defendant-Intervenors) have relied upon the movant?s
inaction. See, Celebration Int?l, Inc. v. Chosun Int?l, 234 F. Supp. 2d 905 (SD. 1nd. 2002).
This proposition has been described in various ways. Some courts find a delay to be
?inconsistent? with a claim of irreparable injury, see, e. Taylor v. Biglari, 971 F. Supp. 2d 847
(SD. 1nd. 2013) (a three?month delay), while others ?nd a delay to ?destroy the presumption? of
irreparable harm. Silber v. Barbara ?s Bakery, Inc, 950 F. Supp. 2d 432 (E.D.N.Y. 2013).

Not all delays have been found to preclude preliminary injunctive relief, however. For
example, where a defendant was unable to pinpoint either the cause of a certain harm or discover
the harm itself, a reasonable delay did not undermine a determination of irreparable injury. 7?
Eleven, Inc. v. Khan, 977 F. Supp. 2d 214 (E.D.N.Y. 2013). Similarly, delays have been found to
be reasonable if the parties have been trying to reach an amicable resolution short of litigation.
Tex. Children?s Hosp. v. Burwell, 76 F. Supp. 3d 224 (BBC. 2014). This Court will assume, as
the Plaintiff States claim, that the resolution of the 2014 Texas I lawsuit accounted for some of
the delay in this matter, but even that does not explain the nearly six-year wait. For example, in

Texas I, the Plaintiff States sought and received extraordinary relief that enjoined certain

110

Case Document 319 Filed in TXSD on 08/31/18 Page 111 of 117

amendments intended to expand DACA?these amendments were adopted in the same manner
DACA was and were subjected to most of the same arguments being made in this lawsuit. The
Plaintiff States have not explained why DACA itself was not included in that 2014 suit and why
extraordinary interlocutory relief is warranted now, but could not have been sought in December
of 2014. After all, when Texas I was ?led in December of 2014, DACA had been in effect for
over two years, and almost all of the proof as to why DAPA and expansion were legally
defective was either based upon arguments equally applicable to the original DACA or based
upon facts derived from the implementation and operation of DACA. At oral argument in this
case, counsel for the States voiced what can best be described as ?strategic reasons? for not
including DACA in Texas I. It may have been an effective strategy, but one?s strategy in a prior
lawsuit does not legally justify delay in another.

One might argue that a ?nding of delay should not apply to those who have not yet
applied, to those who are just ?aging-in? to DACA eligibility, or to any future renewals. This
Court disagrees. The States could have brought a lawsuit against the entire program in 2012 or
anytime thereafter. Renewals occurred as early as 2014 and those claims could have been
included in Texas I but were not. The entire population that could ever be eligible for DACA
(absent the amendments that were enjoined in Texas I) was ?xed in 2012, and since that ?nite
population is not growing and since a determination as to legality is ongoing, this Court
does not consider the possibility of new applicants or renewals to be an emergent situation
demanding injunctive relief.

The Plaintiff States have put forth what would otherwise be suf?cient proof of irreparable
damage and have shown that they have no other viable legal remedy. Nevertheless, the Court

?nds that the Plaintiff States cannot prevail on the legal element of irreparable harm due to their

111

Case Document 319 Filed in TXSD on 08/31/18 Page 112 of 117

delay in pursuing the claims they now bring concerning DACA.

C. Preliminary Injunction Factors Three and Four: Hardship to Parties and the
Public Interestlw

Before issuing an injunction, courts must ?balance the competing claims of injury and . . .
consider the effect on each party of the granting or withholding of the requested relief? Amoco
Prod. Co. v. Vill. of Gambell, 480 US. 531, 542 (1987). Thus, in addition to demonstrating a
likelihood of success on the merits and irreparable harm, a movant must show that it would
suffer more harm without the injunction than the enjoined party would if it was granted. The
award of preliminary relief is never ?strictly a matter of right, even though irreparable injury may
otherwise result to the plaintiff,? but is rather ?a matter of sound judicial discretion? and careful
balancing of interests of?and possible injuries to?the respective parties. Yakus v. United
States, 321 US. 414, 440 (1944). If there is reason to believe that an injunction issued prior to a
trial on the merits would be burdensome, the balance tips toward denying preliminary relief. See
Winter, 555 US. at 27 (?The policy against the imposition of judicial restraints prior to an
adjudication of the merits becomes more significant when there is reason to believe that the
decree will be burdensome.? (quoting 11A Charles Alan Wright et al., Federal Practice and
Procedure 29482)).

The final factor in the preliminary injunction analysis focuses on policy considerations.
Plaintiffs have the burden to show that if granted, a preliminary injunction would not be adverse

to public interest. Star Satellite, Inc. v. Biloxi, 779 F.2d 1074, 1079 (5th Cir. 1986). If no public

 

?0 This opinion concentrates its analysis on the comparative damage to the Plaintiff States and the Defendant-
Intervenors, but the Federal Defendants would also be damaged by an injunction, as it would put them in between a
rock and a hard place. The DHS would be faced with dueling injunctions, and while this situation might be pleasing
to those in academia who find circuit splits to be healthy for the legal system, it would be dif?cult for the
Government to comply with each order. This Court would not hesitate to enter an injunction, even in the face of
opposing rulings from sister courts, if compelled by law, but the Court for the reasons discussed in the text does not
face this situation.

112

Case Document 319 Filed in TXSD on 08/31/18 Page 113 of 117

interest supports granting preliminary relief, such relief should ordinarily be denied, ?even if the
public interest would not be harmed by one.? llA Charles Alan Wright et al., Federal Practice
and Procedure 2948.4. ?Consequently, an evaluation of the public interest should be given
considerable weight in determining whether a motion for preliminary injunction should be
granted.? Id.

Unlike in Texas I, the Plaintiff States ask this Court to enjoin a program that has been
ongoing for more than six years. Instead of maintaining the status quo, they want this Court to
halt the operation of DACA. As noted in this Court?s opinion in Texas I, the existence of DACA
in its 2012 con?guration was and still is the status quo. See Texas v. United States, 86 F. Supp.
3d 591, 608 (SD. Tex. 2015).

In this case, the factor concerning signi?cant hardship to the parties has a particular
signi?cance. The dissolution or the enjoining of the ongoing DACA program would have
immediate effects?it would deprive the individual Defendant-Intervenors of their ongoing
lawful status and their ability to work. The proposed injunction could cause the DACA recipients
to lose their ability to travel within the United States and many other bene?ts that ?ow from
lawful presence. For many, this could, in theory, make them susceptible to immigration
proceedings and eventual removal where applicable.111 Further, New Jersey and those states,
cities, and employers who ?nd themselves in the shoes of New Jersey (a status which many of

the amicus curiae purport to hold), could lose residents whom they consider to be valuable

 

1? This Court speci?cally includes the phrase ?in theory.? Just as this Court indicated when it enjoined DAPA and

Expanded DACA in 2015, nothing in that order compelled the Government to take any action regarding either the
Expanded DACA or DAPA populations, nor did it enjoin any traditional concepts of prosecutorial discretion. This
Court did not order anyone arrested, prosecuted, or deported. It did not even prohibit the DHS from identifying each
recipient and giving each an ID card identifying them as a low enforcement priority?which was the stated purpose
of the program. It only enjoined the DHS from giving lawful status to individuals whom Congress declared to be
removable and from bestowing a wide variety of federal and state bene?ts~many of which damaged the Plaintiff
States?which follow from having lawful presence in the United States.

113

Case Document 319 Filed in TXSD on 08/31/18 Page 114 of 117

members of their communities or employees who are integral to various schools, municipalities,
and industries.

Conversely, if the court were to enter an injunction, Texas and the other Plaintiff States
would be able to escape the kinds of costs and damages that they have suffered and continue to
suffer as a consequence of DACA. Nevertheless, due to the continued presence of a large illegal
alien population (which would still include approximately eighty percent of the DACA recipients
even based on the most favorable evidence), many of the secondary costs about which they
complain would still remain. The Plaintiff States would still incur medical, education, and law-
enforcement expenses, albeit to a lesser extent. The Plaintiff States may also have some resident
workers who would gain job opportunities that they might otherwise not have, but others would
still lose opportunities to individuals who are illegally in the country and are hired because they
are less expensive than legal workers. According to the evidence, the number of illegal aliens
would decrease due to the approximately twenty percent of DACA recipients who said they
would leave the country, but the States, nonetheless, would still be forced to absorb the costs of
those who remained.

When this Court weighs the evidence produced by all parties, it is convinced that both the
third and the fourth factors favor maintaining the status quo and denying the injunction. This
Court does not necessarily agree with some of the reasoning (and the bases given for the
decisions made) by the other courts that have addressed the rescission of DACA. Nonetheless, in
each case in which an injunction or order of vacatur was issued and in this case in which an
injunction is not being issued, the purpose of the orders was to maintain the status quo until a
de?nitive decision could be reached. If this Court were to grant an injunction, it would upset that

balance.

114

Case Document 319 Filed in TXSD on 08/31/18 Page 115 of 117

Moreover, this Court used two time?worn sayings in Texas I and its associated hearings
when it ruled that an injunction was warranted to st0p the implementation of DAPA and
Expanded DACA: ?one cannot put the toothpaste back in the tube? and ?one cannot unscramble
the egg.? It enjoined those programs so that a decision could be reached on the front end, before
individuals and society had developed a reliance on a program that would later have to be set
aside. Here, the egg has been scrambled. To try to put it back in the shell with only a preliminary
injunction record, and perhaps at great risk to many, does not make sense nor serve the best
interests of this country. The States argue that any reliance on DACA was misplaced because
DACA status was always revocable and because it did not confer any permanent rights. This
Court does not dispute that premise based upon the language of the June 15, 2012 memorandum,
but the reality of the situation is that it conferred lawful presence and numerous other bene?ts,
and many DACA recipients and others nationwide have relied upon it for the last six years.

Some might engage in conjecture as to what this or any other court would have ruled if
the Plaintiff States had challenged DACA in 2014 when Texas I was ?led, but conjecture is all
that it would be. This case is taking place almost four years later, and throughout that time
individuals have continued to apply for and renew their DACA status. The Plaintiff States may
ultimately prevail and prove their right to declaratory relief, but given the delay in confronting
DACA, and given that the interests of the Defendant-Intervenors and the public outweigh those
of the Plaintiff States, the Court denies the request for preliminary relief.

Conclusion

In Casa de Maryland, the court expressed the sentiment that the question of the eligibility

of the DACA recipients to remain in the United States and to continue contributing their skills

and abilities to the betterment of this country is an issue crying out for a legislative solution. This

115

Case Document 319 Filed in TXSD on 08/31/18 Page 116 of 117

Court agrees. Nevertheless, the failure of Congress to act does not bestow legislative authority on
either the Executive or Judicial Branches, and the need for legislation cannot take precedence
over the application of the Constitution and the laws of the United States, which this and all other
federal courts are sworn to uphold.

Counsel for the defendants and intervenors in Texas I argued that DAPA and Expanded
DACA must be legal because Congress had not said otherwise?an argument that Justice
Kennedy described as ?upside?down? and ?backwards.? Transcript of Oral Argument at
24, United States v. Texas, 136 S. Ct. 2271 (No. 15-674). Justice Kennedy?s reaction that this
proposition is upside-down is unassailable. It turns the entire Constitution on its head. The
Defendant-Intervenors suggested at oral argument that oft times Congress rejected DREAM Act
legislation because the proposals either made the recipients citizens or guaranteed them a
pathway to some permanent status or because they included some other controversial provision.
This Court has no means to determine why each Representative or Senator voted against a
particular bill, but it is clear that someone in Congress could have introduced a bill that simply
authorized DACA?especially after the legal challenges to DAPA and Expanded DACA were
sustained?and if Congress so desired it could have become law. This Court cannot view
Congress?s repeated rejection of the concept as an indication that DACA complies with its
dictates.

That being the case, this Court is forced to View the DACA question just as one of the
Defendant-Intervenors? experts did when asked to comment on the plaintiffs? decision not to
challenge DACA in Texas 1:

It?s an interesting exclusion, given that the legal arguments for both DA CA and its

2014 spin?off for parents, DAPA, are basically identical . . . . It?s hard for me to

think of any ground striking DAPA that wouldn ?t apply to DACA . . . . So Why not
challenge They might have worried [that] the court wouldn?t want to

116

Case Document 319 Filed in TXSD on 08/31/18 Page 117 of 117

strike down such a popular program. So they think go after DAPA and if they
win, then they have a nice precedent to go after DACA.112

Both assumptions appear to be correct. DACA and DAPA are basically identical, and
there is no legal ground for ?striking DAPA that wouldn?t apply to (and certainly no
legal ground for striking Expanded DACA that does not apply to DACA itself). Further, DACA
is a popular program and one that Congress should consider saving. Unfortunately, the Judiciary
is not the branch of government designed to salvage a program that should have emanated from
Congress, or at the very least complied with the APA. The Casa de Maryland court cited a recent
dissent from a Fourth Circuit decision that aptly expressed the need for judicial restraint:

The public debate over the Administration?s foreign policy and, in particular, its

immigration policy, is indeed intense and thereby seductively tempts courts to

effect a politically preferred result when confronted with such issues. But public

respect for Article courts calls for heightened discipline and sharpened focus

on only the applicable legal principles to avoid substituting judicial judgment for

that of elected representatives.

Casa De Maryland, 284 F. Supp. 3d at 767 n.21 (citing Int?l Refugee Assistance Project v.
rump, 883 F.3d 233, 376?77 (4th Cir. 2018) (Niemeyer, J., dissenting)). This Court will not
succumb to the temptation to set aside legal principles and to substitute its judgment in lieu of
legislative action. If the nation truly wants to have a DACA program, it is up to Congress to say
so.

Nevertheless, for the reasons discussed above, this Court denies the request for

preliminary injunctive relief.

Signed this 31St day of August, 2018. 

 

Arid-Few S. Hanen
United States District Court Judge

 

?2 Lomi Kriel, DACA 's Fate in Court ?3 Hands, Houston Chronicle (Apr. 16, 2016) [Doo No. 284, Ex. 1, at 5]
(emphasis added and internal quotation marks omitted).

117