Thursday, November 12, 2015

On-Line Symposium on Texas v. United States: Summary of the Fifth Circuit Opinion (Nov. 9, 2015) by Sadie Weller, Student, UC Davis School of Law

As part of the continuing on-line symposium on the Fifth Circuit ruling in Texas v. United States, UC Davis Law Student Sadie Weller prepared this summary of the opinion:

Summary of Texas v. United States, Fifth Circuit decision

On November 9, the Fifth Circuit handed down a lengthy opinion affirming the U.S. District Court for the Southern District of Texas’ grant of preliminary injunction against the United States, forbidding implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”). The Fifth Circuit, reviewing the order under abuse of discretion, decided that the district court’s decision must stand because 1) the states had standing to bring the complaint, 2) the states established a substantial likelihood of success on the merits of their procedural and substantive APA claims, and 3) the states satisfied the other elements required for an injunction (substantial threat of irreparable injury which outweighs any harm that would be caused if injunction were not issued, and the grant of the injunction would not disserve the public interest.)


First, the majority established the plaintiff states’ Article III standing. They agreed that DAPA would cause a significant economic injury of at least “several million dollars” because of the widened eligibility for state-subsidized driver’s licenses (which cannot be offset, as the government contended, by registration fees, auto insurance, and decreased reliance on social services resulting from employment authorization). In response to the government’s assertion that this injury is self-inflicted because Texas chose to use federal immigration classifications in deciding who to give licenses to (those lawfully present in the country), the court said that it was the federal government’s policy changes, not Texas’, that caused the injury. The court also found that DAPA affects the states’ “quasi-sovereign” interests by pressuring them to change their state laws. Without much discussion, the court concluded that DAPA was the proximate cause of these injuries, and enjoining DAPA would redress them.

The court rejected, or found unimportant, the government’s contentions that the states lacked jurisdiction because decisions not to prosecute cannot be challenged, that the states have no jurisdiction in the immigration context, and that the standing analysis ought to be more rigorous when the court, in deciding the merits of a case, would have to weigh on the constitutionality of an action of another branch of the federal government.

Next, the majority found that the states satisfied the “zone of interests” standing test in order to sue under the APA. This relatively undemanding test requires only that the plaintiffs’ interests are arguably protected by the statute; here, by the INA. Since prior legislation explicitly allows states to deny public benefits to illegal aliens, the DAPA provisions that change the immigration classification of millions of people affect the states’ immigration enforcement rights.


Though actions committed to agency discretion are generally unreviewable under APA §701(a)(2), the action can still be reviewed to determine whether the agency exceeded its statutory authority. Rejecting the government’s contention that DAPA is “presumptively unreviewable prosecutorial discretion,” the court found that “removing a categorical bar on receipt” of public benefits is not a prosecution or nonenforcement decision and thus is subject to judicial review.

Substantial Likelihood of Success:

In deciding whether Texas had established the substantial likelihood of success on its claim that DAPA must be subjected to notice-and-comment rulemaking, the court found that DAPA had a binding effect and modified substantive rights and interests, and was thus not exempt as a “policy statement.” The court thus found that the states established a substantial likelihood of success on this procedural claim.

As to the states’ substantive APA claim, the court found that, even if Chevron deference applied to the Department of Homeland Security (DHS)’s action, DAPA is still an “unreasonable interpretation that is ‘manifestly contrary’ to the INA.” Since DAPA grants lawful status to individuals who have never had legal status, and “may never receive one,” the majority found that it is unlike other programs such as the “Family Fairness” program, an “interstitial” part of a statutory legalization plan, or other programs that merely changed the status of individuals from one legal status to another. The majority classified DAPA as “affirmative agency action” and agreed with the states that the agency should have gone through notice-and-comment rulemaking.

The majority also found that Congress did not, in fact, leave a “gap” for the DHS to fill. The majority thus concluded that the DAPA Memorandum was not authorized by statute and substantively violated the APA, a holding which reached beyond the scope of the district court’s decision. As the last prong of the injunction requirement, the court found that “the public interest easily favors an injunction” because the states’ interests would not be easily restored if DAPA were implemented and then invalidated after trial.

Scope of Injunction

In response to the government’s contention that the nationwide scope of the injunction constituted an abuse of power, the court responded that the Constitution, Congress, and Supreme Court all call for uniform immigration policy.

The court concluded that the district court did not abuse its discretion and thus affirmed the order granting the preliminary injunction.


Judge King opens her thorough dissent by asserting that of DAPA’s three primary objectives, two explicitly further long-standing goals of U.S. immigration policy: to permit lawful employment and enhance immigrant’s ability to be self-sufficient, and to “come out of the shadows” and register their identity and location (which furthers DHS’s law enforcement objectives). Judge King argues that the DAPA Memorandum’s deferred action decisions are, in fact, exercises of prosecutorial discretion and thus unreviewable. Alternatively, she argues that since DAPA is to be implemented on a discretionary, case-by-case basis, then it is not subject to notice-and-comment rulemaking requirements.

Judge King contends that because the majority has no “legitimate basis” for concluding that DHS’s decisions to grant or deny DAPA requests would be cursory, the majority could not affirmatively rule, as it did, that these reviews were not truly exercises of discretion. Judge King asserts that DAPA is instead a general statement of policy and exempt from notice-and-comment. She argues that the “indirect economic effects of agency action” constitute insufficient injury to bestow standing upon the states. Judge King also refutes the majority’s conclusion that DAPA confers legal status upon its recipients, since the memorandum itself states that “deferred action does not confer any form of legal status in this country” and “may be terminated at any time at the agency’s discretion.”

Judge King also disagrees with the majority that, in determining whether Chevron deference applies, Congress has directly addressed the issue of deferred action provided for under DAPA. She instead argues that Congress has not spoken to the precise question at issue, so Chevron deference applies, and because DAPA was formulated under a reasonable interpretation of what the INA authorizes, it does not go beyond the agency’s statutory authority. Thus, it does not constitute a substantive APA violation.


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