DOJ Files Fifth Circuit Merits Brief in Texas v. United States

Yesterday, the U.S. Department of Justice filed a brief in the appeal of the preliminary injunction barring the implementation of President Obama's expanded deferred action program in Texas v. United States.  Oral argument on the motion to stay the injunction will be held on April 17.

The brief goes to the merits of the entry of the preliminary injunction and is not limited to the stay motion.  It challenges the standing of the states and argues that the plaintiffs are unlikely to prevail on the merits of the Administrative Procedure Act notice and comment claim.  The brief further claims that the balance of harms and the public interest weigh strongly against the preliminary injunction.  Lastly, the Department of Justice argues that the injunction is overbroad in light of the fact that 24 states, the District of Columbia, and U.S. territories are not party to the action. 

The opening paragraphs of the brief provide a sense of the DOJ's arguments:

"This case involves a challenge brought by Texas and other States to enjoin — nationwide— enforcement policies that the Secretary of Homeland Security adopted to manage the government’s limited immigration enforcement resources and prioritize the removal of aliens who threaten national security or public safety, have committed crimes, or recently crossed the border unlawfully. The challenged policies advance that critical national effort by, among other things, establishing guidelines for deferring action on the removal of other aliens who are not priorities, pose no such threats, and have longstanding and close family ties in the United States. The policies are a quintessential exercise of prosecutorial discretion, an executive function that is not subject to judicial review. And they are an exercise of authority that Congress expressly granted to the Secretary to establish policies for enforcement of the immigration laws, a uniquely federal domain into which States may not intrude. See Arizona v. United States, 132 S. Ct. 2492 (2012).

The plaintiff States disagree with the Secretary’s exercise of enforcement discretion and have invoked the judicial power to countermand it. But their claims are, at bottom, policy disagreements that must be resolved through the political process; they are not an Article III case or controversy."

KJ

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