ImmigrationProf Blog

Sunday, November 22, 2015

The U.S. Government's Arguments in the Petition for Certiorari in Texas v. United States

Donald Verrilli, Solicitor General of the United States

As reported last week on ImmigrationProf, the United States has petitioned for certiorari in Texas v. United States. Solicitor General Donald Verrilli is counsel of record on the petition. The petition is here. Lyle Denniston's report on the petition on SCOTUSBlog is here.

The "Questions Presented" by the United States are as follows:

The Department of Homeland Security has long engaged in “a regular practice * * * known as ‘de-ferred action,’ ” in which the Secretary “exercis[es] [his] discretion” to forbear, “for humanitarian reasons or simply for [his] own convenience,” from removing particular aliens from the United States. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484 (1999). On November 20, 2014, the Secretary issued a memorandum (Guidance) directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents.

The questions presented are:

Whether a State that voluntarily provides a sub-sidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action.
Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.
Whether the Guidance was subject to the APA’s notice-and-comment procedures

The United States argues that

I. Respondents do not have Article III standing or a cognizable claim under the APA.

A. A State’s voluntary decision to extend a subsidy to aliens accorded deferred action does not give it standing to challenge federal deferred-action policies.

B. Respondents lack a cognizable APA claim.

II. The Secretary had ample statutory authority to issue the Guidance.

III. The Guidance is exempt from notice-and-comment requirements.

In arguing for the Supreme Court to review the case, the petition argues that "The great and immediate significance of the Secretary’s Guidance, the irreparable injury to the many families affected by delay in its implementation, and the broad importance of the questions presented, counsel strongly in favor of certiorari now."

The ImmigrationProf blog has been publishing a symposium on the Fifth Circuit's ruling in Texas v. United States. Here is the latest installment. Stay tuned for more analysis.