The complaint was filed today in the Southern District of Texas, Brownsville. It was filed by the Attorneys General of Texas, Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, South Carolina, South Dakota, Utah, West Virginia, along with the Governors of Mississippi, Maine, North Carolina, and Idaho.

The complaint alleges that the new class of undocumented immigrants will harm the states:

61. The DHS Directive will substantially increase the number of undocumented immigrants in the Plaintiff States. At the most basic level, the Directive is a promise to openly tolerate entire classes of undocumented immigrants. In addition, the Directive offers affirmative legal inducements to stay, such as work authorization and the tolling of unlawful presence. White House officials also have stated that the beneficiaries of deferred action are eligible for Social Security and Medicare. The removal of the deportation threat, combined with the incentives to stay, will make remaining in the United States far more attractive for the affected classes of undocumented immigrants.

Moreover, this will “trigger a new wave” of immigrants, and increase human trafficking:

62. Moreover, the DHS Directive is certain to trigger a new wave of undocumented immigration. As explained above, DACA led directly to a flood of immigration across the Texas-Mexico border and a “humanitarian crisis” in Texas. The federal government itself recognized that its lax attitude toward the immigration laws caused this wave. See Vitiello Memorandum. The DHS Directive is a much larger step than DACA, and it will trigger a larger response.63. The DHS Directive will increase human trafficking in the Plaintiff States. Such trafficking is largely controlled by the Mexican drug cartels, which are the most significant organized crime threat to the State of Texas. See Texas Department of Public Safety, Texas Public Safety Threat Overview at 2, 23 (Feb. 2013). By boosting undocumented immigration, the DHS Directive will bolster the business of the cartels and greatly exacerbate the risks and dangers imposed on Plaintiffs by organized crime. See Nava-Martinez Order at 6 (explaining that human trafficking “help[s] fund the illegal drug cartels which are a very real danger for both citizens of this country and Mexico”). Plaintiffs by organized crime. See Nava-Martinez Order at 6 (explaining that human trafficking “help[s] fund the illegal drug cartels which are a very real danger for both citizens of this country and Mexico”).

Texas will be forced to spend money to deal with the immigrants.

64. The Plaintiff States will be forced to expend substantial resources on law enforcement, healthcare, and education. Some of these expenditures are required or coerced by federal law. For instance, the Supreme Court has held that States are constitutionally obligated to provide free education to children of undocumented immigrants. Plyler v. Doe, 457 U.S. 202 (1982). Similarly, both Medicare and Medicaid require provision of emergency services, regardless of documented immigration status, as a condition of participation. See 42 U.S.C. § 1395dd; 42 C.F.R. § 440.225.

65. Other expenditures are required by state law. For example, Texas law requires local governments to provide healthcare for the indigent. See Indigent Health Care and Treatment Act, TEX. HEALTH & SAFETY CODE §§ 61.001 et seq. In FY2014, Texas counties reported over $23 million in indigent health care expenditures. Texas law also requires nonprofit hospitals to provide unreimbursed care for the indigent as a condition of maintaining their nonprofit status. See TEX. HEALTH & SAFETY CODE § 311.043.

And to provide work authorization:

66. Other costs follow specifically from the extension of deferred action status. For instance, federal work authorization functions as a precondition for certain professional licenses in the Plaintiff States. See, e.g., 16 TEX. ADMIN. CODE §33.10 (requiring applicants for an alcoholic beverage license to be “legally authorized to work in the United States”); 37 TEX. ADMIN. CODE § 35.21 (requiring employees of private security companies to submit application, including a copy of a current work authorization card); TEX. RULES GOVERN. BAR ADM’N, R. II(a)(5)(d) (making individuals who are “authorized to work lawfully in the United States” eligible to apply for admission as licensed attorneys).

67. Texas and other Plaintiff States also rely on Defendants’ evidence of lawful presence for certain benefits under their respective state laws. See, e.g., TEX. LAB. CODE § 207.043(a)(2) (extending unemployment benefits to individuals who were “lawfully present for purposes of performing the services”); TEX. FAM. CODE § 2.005(b)(4) (allowing an “Employment Authorization Card” to be used as proof of identity for the purposes of a marriage license application).

68. By authorizing a large class of undocumented immigrants to work in the United States, the DHS Directive will expose Texas to the cost of processing and issuing additional licenses and benefits. Moreover, it will cause Texas to issue such licenses and benefits to individuals who are not legally authorized to be in the country (or to take on the burdensome task of attempting to figure out which undocumented immigrants have bona fide deferred action status and which ones benefited from the unlawful DHS Directive).

 Citing Massachusetts v. EPA and Arizona v. United States the complaint concludes that litigation is the only avenue for relief:

69. If the Plaintiff States had the sovereign power to redress these problems, they would. See Massachusetts v. EPA, 549 U.S. 497, 519 (2007) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)). But the Supreme Court has held that authority over immigration is largely lodgedin the federal government. See, e.g., Arizona v. United States, 132 S. Ct. 2492 (2012). Accordingly, litigation against the federal government is the only way for the States to vindicate their interests and those of their citizens.

Count 1 asserts a violation of the Take Care Clause:

Violation Of The Take Care Clause, Art. II, § 3, Cl. 5

70. The allegations in paragraphs 1-69 are reincorporated herein.

71. The DHS Directive violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3, cl. 5.

72. The Supreme Court has made clear that the Take Care Clause is judicially enforceable against presidential invocations of the dispensing power. See, e.g., Kendall v. United States, 37 U.S. (12 Pet.) 524, 612-13 (1838); Angelus Milling Co. v. Comm’r of Internal Revenue, 325 U.S. 293, 296 (1945).

73. The Take Care Clause limits the President’s power and ensures that he will faithfully execute Congress’s laws — not rewrite them under the guise of executive “discretion.”

74. In this case, the President admitted that he “took an action to change the law.” The Defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100% is a de facto entitlement — one that even the President and OLC previously admitted would require a change to the law.

75. At least for the 4 million people who will benefit from the DHS Directive, Congress has taken several steps to curtail the reunification of undocumented immigrants and their documented family members. The undocumented parent of a U.S. citizen or legal permanent resident generally can stay in the United States only by (i) waiting until their child turns 21, (ii) leaving the country, (iii) waiting 10 more years, and then (iv) obtaining a family-preference visa from a U.S. consulate abroad. See 8 U.S.C. §§1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255. The Defendants cannot faithfully execute the law by directly contravening Congress’s objectives.

76. Accordingly, the Defendants’ actions violate the Take Care Clause.

The President’s statement that he “took an action to change the law,” will soon join his promise that Obamacare was “not a tax,” and “If you like your plan, you can keep your plan,” as among the biggest off-script blunders of recent memory.

The remaining counts focus on violations of the APA.

82. The Defendants promulgated and relied upon the DHS Directive without authority and without notice-and-comment rulemaking. It is therefore unlawful. …

84. The APA requires this Court to hold unlawful and set aside any agency  action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).

85. The DHS Directive purports to create legal rights for millions of undocumented immigrants. And it does so by rewriting the immigration laws and contradicting the priorities adopted by Congress. See, e.g., ¶ 75, supra.

86. As such, the DHS Directive violates the aforementioned provisions in 5 U.S.C. § 706, and it is therefore unlawful.

At this stage, the complaint only seeks declaratory relief, though I imagine injunctive relief will be forthcoming:

Plaintiffs respectfully request the following relief from the Court:

A declaratory judgment and injunction that the Defendants’ deferred action program violates the Take Care Clause;

A declaratory judgment that the Defendants’ deferred action program is procedurally unlawful under the APA;

A declaratory judgment that the Defendants’ deferred action program is substantively unlawful under the APA; and

All other relief to which the Plaintiffs may show themselves to be entitled.

Stay tuned.