U.S. v. Texas: Summary of Merits Brief for Petitioner United States by Nicole Zanardi
On March 1, Petitioner United States filed its merits brief in the case of United States v. Texas. Law student Nicole Zanardi summarizes the arguments in the brief below.
The Secretary of the Department of Homeland Security (“DHS”), who is tasked by Congress with establishing national immigration enforcement policies and priorities, has long engaged in a practice known as deferred action, in which the Secretary exercises his discretion to refrain, for humanitarian reasons or his own convenience, from removing particular aliens from the United States. Most recently, in 2012 the Secretary implemented the Deferred Action for Childhood Arrivals (“DACA”) policy to accord deferred action to certain aliens who came to this country as children and have lived here since 2007.
On November 20, 2014, the Secretary issued a guidance document (“Guidance”), a non-legislative enforcement policy meant to guide DHS in implementing the Immigration and Nationality Act (“INA”). The guidance document contained two important memoranda. First, it directs DHS to focus its limited resources for removals to the greatest degree possible on serious criminals, terrorists, aliens who recently crossed the border, and aliens who have significantly abused the immigration system. Second, it directs U.S. Citizenship and Immigration Services (“USCIS”) to expand the coverage criteria under the 2012 DACA policy to encompass aliens with a wider range of ages and arrival dates, and to lengthen the period of deferred action from two years to three. The Guidance also directs USCIS to establish a process similar to DACA for exercising prosecutorial discretion for certain parents of U.S. citizens or lawful permanent residents. The Guidance lays out the proposed requirements and a timeline for this policy. The Guidance emphasizes that it does not establish any right to deferred action, and further that deferred action is not legal status and does not carry legal consequence, and may be terminated at any time at the agency’s discretion.
On December 3, 2014, 26 states challenged the Guidance in federal court, seeking declaratory and injunctive relief against its implementation. On February 16, 2015 the district court entered a nation-wide preliminary injunction against implementing the guidance. A divided panel of the U.S. Court of Appeals for the Fifth Circuit affirmed the preliminary injunction in November 2015, stating that at least one respondent state – Texas – had Article III standing and a justiciable cause of action under the APA. The petition for a writ of certiorari was filed on November 20, 2015, and was granted on January 19, 2016. The questions presented are:
- Whether a state who voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (“APA”) to challenge the guidance
- Whether the guidance is arbitrary and capricious or otherwise not in accordance with law
- Whether the guidance is invalid because it did not go through the APA’s notice-and-comment rule- making procedures
- Whether the guidance violates the Take Care Clause of the Constitution
In general, the government argues that in rejecting this federal immigration enforcement policy, the courts wrongly asserted jurisdiction over immigration policy. In doing so, the courts violated core limits of Article III and inevitably forced federal courts to resolve complex debates over immigration policy that the Constitution reserves to Congress and the Executive branch. The government maintains that the decision stripped the Secretary of its traditional discretion to provide deferred action to categories of aliens already living in the United States. Specifically, the government argues that the ruling below should be reversed for following reasons:
- Respondents’ challenge to the suit is not justiciable
In order for a suit to be justiciable, the plaintiff must have standing under both Article III and the APA. The government argues that respondents both lack Article III standing and do not have a valid cause of action under the APA. The government goes on to argue that even if respondents had standing under both Article III and the APA, the Guidance is not reviewable under the APA because it involves agency action committed to discretion by law.
To establish Article III standing, a plaintiff must show suffering from an individualized injury to a legally protected interest, and prove that the injury is fairly traceable to the defendant’s challenged conduct and redressable by a favorable decision. Arizona Christian School Tuition Org. v. Winn, 563 U.S. 125, 134 (2001). As such, a plaintiff who is not the object of the challenged government action faces a considerable burden to establish Article III standing. According to the government, respondents do not meet this burden. The Guidance is a federal immigration policy that does not regulate States, require States to do or refrain from doing anything, or restrict States in any way. Thus, the injury Texas claims is neither direct nor individualized – but based in incidental effects from the policies that would flow from the Guidance. Texas’s claimed injury of incurring increased costs of healthcare, education, etc. are inventible affects that arise from a wide range of federal immigration policy decisions, as well as all other sorts of federal policies. This type of attenuated indirect injury is not an invasion of any legally protected interest under the Constitution or the INA, and is not sufficient for Article III standing.
Any increased costs that might incur to provide subsidized driver’s licenses to those who receive deferred action as a result of the guidance, which Texas argues is a direct injury, is one of the state’s own making and thus not a redressable injury. The Supreme Court has in fact rejected a state’s effort to claim standing on a such a self-generated basis. In Pennsylvania v. New Jersey, the Court held that a state that chooses to extend a tax credit on the basis of another sovereign’s actions does not have standing to challenge the other sovereign’s policies by claiming that the policies incidentally cost the state money. Pennsylvania v. New Jersey, 426 U.S. 660 (1976). The appeals court here concluded that the “substantial pressure” to eliminate its state law was adequate standing for Texas to bring suit. However, the government maintains that this pressure, like increased costs, is merely incidental and self-generating, especially because Texas can either get rid of the subsidy or alter the subsidy’s link to federal law in order to eliminate the alleged injury. According to the Court in Pennsylvania v. New Jersey, these available remedies render Texas unable to complain about the effects of the Guidance. Pennsylvania, 426 U.S. at 664.
Even if, the government says, respondents satisfied Article III standing, they would lack cause of action under the APA. In order to bring a cause of action under the APA, the plaintiff must be “adversely affected or aggrieved by agency action within the meaning of the relevant statute.” 5 U.S.C. 702. In other words, the cause of action must be within the “zone of interests” protected by the statute. Respondents do not meet this requirement because the INA does not protect states from bearing the costs of voluntary state-law subsidies from driver’s licenses, which is the injury alleged by Texas in an effort to satisfy Article III standing. Texas attempts to satisfy standing under the APA by claiming alternate interests to be protected, including the interest of the state in preserving jobs for its citizens and the state’s interests in commenting on administrative decision-making. However, the government asserts that a plaintiff cannot use one interest to satisfy Article III standing and another to satisfy APA standing. Mountain States Legal Fund v. Glickman, 92 F .3d 1228, 1232 (D.C. Cir. 1996).
The government continues that even if respondents satisfied Article III and APA standing, the APA precludes judicial review of certain categories of decisions that are committed to agency action by law. 5 U.S.C. 701(a)(2). Deferred action is an exercise of enforcement discretion, a matter regarded as unreviewable as a decision committed to agency action by law under 701(a)(2). Heckler v. Chaney, 470 U.S. 821 (1985). The court of appeals, while agreeing with this standard, held that it was not applicable in this case, because deferred action is not only enforcement discretion, but a decision to allow an individual to be in the country lawfully. However, respondents agree that DHS has unreviewable authority to notify an alien that DHS made a decision to not enforce removal for a period of time – and this is exactly what deferred action is.
- The Guidance is a lawful exercise of the Secretary’s authority to administer and enforce the INA
Enforcement discretion is one component of the Secretary’s broad statutory authority to establish national immigration enforcement policies within the laws of the INA. Enforcement discretion allows the Secretary to decide, given the limited resources available for enforcement operations, where to prioritize enforcement, that is, to decide which aliens will actually be the subjects of enforcement, and thus by design which ones will not. The government argues that the Guidance is, far from being arbitrary and capricious, a lawful, carefully designed exercise of this necessary enforcement discretion. The Guidance facilitates the Secretary’s ability to prioritize enforcement, taking into account the humanitarian and policy considerations that come with the reality that millions of aliens are and will remain the country. The Guidance is carefully designed to focus discretion on aliens with strong ties to the community or with children born in the United States, two considerations the Supreme Court has affirmed as appropriate elements of the Secretary’s discretion. In addition, the Guidance promotes self-sufficiency while protecting American workers, by allowing work authorization for aliens who demonstrate economic need.. Lastly, the Guidance guards against adverse incentives. By providing deferred action to those in the country since 2010 and those who already have a U.S. citizen child as of 2014, it avoids encouraging further migration as well as pregnancies for immigration benefits. In general, says the government, the Guidance is a legal and comprehensive policy guideline for responsibly exercising the Secretary’s authority of enforcement discretion under the INA to address the difficult realities of immigration in the U.S.
In support of its argument that the Guidance is a lawful exercise of the Secretary’s authority, the government highlights the fact that since 1960, INS and, later, DHS have established more than 20 policies for using deferred action. These programs include a number of extended voluntary departure programs, which allowed otherwise deportable aliens to live temporarily in the U.S., as well as a deferred action program for battered spouses and victims of human trafficking, and aliens who came to the U.S. as children (DACA). The government also points out that INS and DHS have granted work authorization for aliens who remain in the U.S. under every deferred action or similar policy since the 1970s as a component of their exercise of discretion. In 1986 Congress enacted the Immigration Reform and Control Act (“IRCA”). The Supreme Court concluded that the language of the statute gives convincing support that Congress accepted and ratified the INS’s understanding that is could authorize aliens to work as an integral component of its exercise of discretion. Since the IRCA, legislation and policies such as the Family Fairness policy enacted by the INS and ratified by Congress and the Immigration Act of 1990, have provided an even broader group of aliens to receive deferred action, and hold in pace the provision of IRCA recognizing that INS, and now DHS, can authorize aliens to be lawfully employed. The government also points out that Congress has enacted a series of statutes recognizing that the Secretary may accord deferred action for aliens in defined categories, and has encouraged him to do so more often. This overview of the deferred action policies, the government contends, confirms that the Guidance is a valid, commonplace policy under the Secretary’s enforcement discretion as related to the INA.
- The Guidance is exempt from notice and comment rulemaking requirements
Under the APA, an agency is required to follow notice and comment procedure before promulgating rules. But, general statements of policy are exempt from such a requirement. Unlike rules, general statements of policy do not have the force and effect of law, and thus do not create legally enforceable rights or obligations for regulated parties. The government argues that, like every deferred action or similar policy before it, the Guidance is a general statement of policy. An agency typically uses a general policy statement to announce how they will pursue or forebear from enforcement in the exercise of its discretion – this is exactly what the Guidance does. The government offers language from the Guidance itself to highlight this non-binding purpose. For example, the Guidance “is intended to reflect new policies for the use of deferred action within the framework of existing law,” and deferred action “confers no substantive right or confer any form of legal status in this country.” The government goes on to clarify that the Guidance does not change the consequences of deferred action, such as work authorization, and is therefore not a policy regarding them. Even if it was, the rule that individuals with deferred action may request work authorization based on economic need has already been adopted though notice and comment rulemaking, and thus cannot be the basis of respondent’s argument that notice and comment is fatefully lacking.
The court of appeals held that notice and comment rulemaking was required here because the Guidance denies individual DHS agents the ability to reject deferred action for case specific reasons when the stated criteria are satisfied. The government argues that this contention is both legally irrelevant and, at best, premature. It is legally irrelevant because under the APA it is immaterial whether a statement of policy regarding the exercise of enforcement discretion allows lower ranked agents to be more aggressive in enforcement for case specific reasons – it is still a general policy, or method adopted by the governed, that doesn’t confer legal rights or obligations on regulated parties. Further, the government points out that the Guidance does in fact allow agents discretion to adopt a more aggressive stance for case specific reasons. The guidance provides that agents “cannot defer action under DAPA for an alien who otherwise meets the specific criteria, without determining that a request presents no other factors that, in the exercise of discretion, make the grant of deferred action inappropriate.” Regardless of the legality of the court of appeals’ contention, the government notes that DHS has never implemented DAPA and there is no sound basis for concluding it will in fact eliminate necessary discretion by DHS agents, and thus the proper time to bring such a challenge is not until after the policy goes into affect.
- The Take Care Clause provides no basis for relief.
Respondents assert that the Guidance violates the Take Care Clause, Art. II Section 3, because it is incompatible with the express or implied will of Congress. In response, the government, drawing on its analysis from section two of their argument, maintains that the Guidance is firmly supported by the text and structure of the INA, as well as a long history, ratified by Congress, of the Secretary using such discretion to enforce the immigration laws. Further, the exercise of discretion to take into account resource constraints, humanitarian concerns, and other equities as part of a broader enforcement strategy is not a violation of the Take Care Clause, rather it is a vital component of the faithful execution of the laws. Heckler, 470 U.S. at 822.
Moreover, the government argues that the Take Care Clause doesn’t provide a basis for relief in an Article III court, because allowing such a basis would allow the judiciary to usurp superintendence over the exercise of executive power that the clause itself reserves for the President. The Supreme Court affirmed that the power of the President to see that the laws are faithfully executed is purely executive and political and not subject to judicial direction. Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 499 (1867).
KJ