Tonight, Texas filed its appellee brief in the 5th Circuit in Texas v. United States. Here is the introduction:
The Executive Branch unilaterally created a program that will grant mil- lions of unauthorized aliens lawful presence and eligibility for work permits and a host of significant benefits. The district court did not abuse its discretion by preliminarily enjoining that program, known as DAPA.
The Executive does not dispute that DAPA would be one of the largest changes in immigration policy in our Nation’s history. The President himself described DAPA as “an action to change the law.” ROA.69. At a minimum, this change required notice and comment under the Administrative Procedure Act. The preliminary injunction maintains the longstanding status quo pend- ing trial, and this preserves an effective remedy: Once this program goes into effect, it will be practically impossible to unwind all of its derivative conse- quences.
The Executive pretends that DAPA is mere inaction amounting to unre- viewable “enforcement discretion.” But DAPA does not simply abandon re- moval proceedings. It explicitly grants aliens lawful presence in this country and eligibility for work permits. “Lawful presence” is not some empty label; it is a status used throughout the United States Code. It has significant legal consequences, such as creating eligibility for numerous benefits—including Social Security, Medicare, the Earned Income Tax Credit, and unemployment benefits. In contrast, the Executive’s decision not to remove someone does not change that person’s preexisting legal status or confer eligibility for new benefits. Indeed, the district court’s injunction does not touch—and this law- suit has never challenged—the Executive’s separate memorandum establish- ing three categories for removal prioritization, or any decision by the Execu- tive to forego a removal proceeding.
Courts act within the public interest by maintaining the separation of pow- ers. DAPA’s sweeping change in immigration policy must come from Con- gress—or at the very least, only after notice and comment. The preliminary injunction thus preserves the Judiciary’s ability to protect the separation of powers and the rule of law.