Sunday, January 24, 2021
On Friday, Texas sued the feds over DHS' Wednesday night memo: Review of an Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities. Texas characterizes this memo as a complete halt of deportations. You can read the complaint here, but let me summarize the key points:
At ¶5, Texas explains why it believes it has standing to sue: "When DHS fails to remove illegal aliens in compliance with federal law, Texas faces significant costs. A higher number of illegal aliens in Texas leads to budgetary harms, including higher education and healthcare costs." So that's the state's stated harm.
You might be asking how and why Texas thinks it has the right to change a federal policy. Well, it turns out that Texas has a written agreement with the U.S. And the agreement has some really interesting provisions.
As ¶18 of the Texas complaint describes this agreement as stating: "“Texas will provide information and assistance to help DHS perform its border security, legal immigration, immigration enforcement, and national security missions in exchange for DHS’s commitment to consult Texas and consider its views before taking” certain administrative actions."
And ¶19 of the complaint says that "DHS must “[c]onsult with Texas before taking any action or making any decision that could reduce immigration enforcement” or “increase the number of removable or inadmissible aliens in the United States.”"
¶20 states that the agreement requires DHS to “[p]rovide Texas with 180 days’ written notice of any proposed action.”
With all those facts, Texas goes on to set out six different causes of action, arguing that:
- the government has breached its obligation to provide notice and consult with Texas (Count 1)
- the DHS position is unlawful under 8 U.S.C. § 1231 (Count 2: Failure to Remove Illegal Aliens)
- the DHS direction is unconstitutional because it violates the obligation to "take care that the Laws be faithfully executed.” (Count 3)
- the DHS direction violates the APA as it is "arbitrary and capricious" (Count 4)
- the DHS direction violates the APA as it did not comply with notice and comment rulemaking (Count 5)
- the DHS direction is ultra vires (Count 6)