Government’s Sur-Reply Part 11: Who Bears The Burden for An Injunction?

February 7th, 2015

In Texas v. United States (in which I filed a brief), Texas is seeking a preliminary injunction to enjoin DAPA. Usually, the party seeking an injunction will bear the burden with respect to the equities. But here the dynamics are somewhat flipped. Texas is asking to preserve the status quo. The United States seeks to disrupt the status quo, and begin offering work authorization to up to 5 million aliens. How do the equities cut here?

On p. 44 of its sur-reply the government places the burden on Texas:

And although Plaintiffs contend that Defendants “cannot claim any countervailing injury,” Pls.’ Reply at 65, it is Plaintiffs, not Defendants, who have the burden of showing that “the threatened harm to [Plaintiffs] will outweigh any potential injury the injunction may cause [to Defendants]” and that the injunction “will not be adverse to public interest.” Star Satellite, Inc. v. City of Biloxi, 779 F. 2d 1074, 1079 (5th Cir. 1986). Plaintiffs have failed to meet this burden.

Specifically, enjoining DAPA would have a negative impact on the States and other parties.

As demonstrated by the numerous amicus briefs submitted in opposition to Plaintiffs’ Motion, a preliminary injunction would have a significant negative impact on other States, and on municipalities and communities nationwide. See ECF Nos. 39-1, 49-2, 81, 121. Among other things, DACA and DAPA will have important public safety benefits, as leading law enforcement officials from a wide range of cities (including in the Plaintiff States) have explained, and an injunction will prevent communities from reaping those benefits. See ECF No. 83-1.

But wouldn’t enjoining DAPA merely preserve the “status quo”? The government sidesteps that issue.

Plaintiffs weakly contend that an injunction cannot harm the public because “the status quo has existed ‘for years.’” Pls.’ Reply at 65. But Plaintiffs ignore the need to address the challenges DHS confronts in enforcing our immigration laws. As Defendants explained in their Opposition, the need for the 2014 Deferred Action Guidance, which allows DHS to efficiently identify and temporarily set aside aliens who are low priorities for removal, and thus to focus on its top enforcement priorities (threats to public safety, national security risks, and recent border crossers), is especially acute in light of recent demographic shifts in the immigrant population, restrictions on ICE’s use of detainers, the backlog in the immigration courts, and DHS’s limited resources. Defs.’ Opp. at 51-54.

I will put aside for the moment whether the President’s immigration policies contributed to these “demographic shifts,” or whether the DOJ should sue states that are restricting “detainers.” If DAPA is unconstitutional, then none of these benefits are possible. In other words, any positive attributes that arise from DAPA, if unconstitutional, will have to be immediately clawed back. This will cause significant irreparable damages to people and municipalities that rely on them. This is to say nothing of aliens who receive work permits, only to have them yanked later.

If the same-sex marriage litigation taught us anything about injunctions, it is that failing to maintain the status quo will cause chaos and a race to the court. Even if ultimately DAPA is upheld, waiting a few months until the Supreme Court resolves it will at least let the case be decided on the merits, without lurking in the background the issue in the same-sex marriage cases–what to do about all the couples married in the interim. And while the SSM cases involved the deprivation of a constitutional right or equal protection of the laws, there is no constitutional right to deferred action. The equities cut in favor of a nationwide injunction.