Breaking: 5th Circuit Denies Stay in Texas v. United States

May 26th, 2015

The majority opinion by Judge Jerry E. Smith, joined by Judge Jennifer Walker Elrod, enjoins DAPA while it is on appeal. Judge Higginson issued a dissent. I will offer an analysis here as I digest the 68 page opinion.

Here is the introduction:

Twenty-six states (the “states”) are challenging the government’s1 Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”) as violative of the Administrative Procedure Act (“APA”) and the Take Care Clause of the Constitution. The district court determined that the states are likely to succeed on their procedural APA claim, so it tem- porarily enjoined implementation of the program. Texas v. United States, Civ. No. B-14-254, 2015 WL 648579 (S.D. Tex. Feb. 16, 2015). The United States appealed the preliminary injunction and moved for a stay of the injunction pending resolution of the merits of that appeal. Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.

With respect to standing, the court only reached the Driver’s License theory of standing, and not the abdication theory of standing.

The first requirement is likely satisfied by Texas’s proof of the costs of issuing driver’s licenses to DAPA beneficiaries.

The court did not finding that the Arizona Dream Act case was dispositive:

Although Arizona DREAM Act supports Texas’s position that it cannot legally deny licenses to DAPA beneficiaries, it is not dispositive. Even if we were bound by the decision of another circuit, that court said nothing about subsidiz- ing licenses, and Texas could avoid financial injury by raising its application fees to cover the full cost of issuing and administering a license.

Instead, the more important issue was forcing the states to choose between incurring costs and changing its laws:

But that does not resolve the matter. The flaw in the government’s reasoning is that Texas’s forced choice between incurring costs and changing its fee structure is itself an injury: A plaintiff suffers an injury even if it can avoid that injury by incurring other costs.29 And being pressured to change state law constitutes an injury. “[S]tates have a sovereign interest in ‘the power to create and enforce a legal code.’”30

The injury is forcing the state to change its laws.

Texas’s forced choice between incurring costs and changing its laws is an injury because those laws exist for the admin- istration of a state program, not to challenge federal law, and Texas did not enact them merely to create standing.34

Next on the topic of standing, the court finds that under Mass v. EPA, the causal link is not too attenuated.

As we have explained,37 it is undeniable that DAPA would enable beneficiaries to apply for licenses, but the United States asserts that DAPA’s incidental consequences are not cognizable injuries because the causal link is too attenuated. Massachusetts v. EPA establishes, much to the contrary, that Texas’s injury suffices.

Specifically, the court notes that being forced to change its laws is an even greater injury to the “special solicitude” of the sovereign state than erosion of a shoreline:

Moreover, Texas’s interest in not being pressured to change its law is more directly related to its sovereignty than was Massachusetts’s interest in preventing the erosion of its shoreline. See supra notes 30–33 and accompanying text. Because of Texas’s substantial interest, it is entitled to “special solicitude” here even though a state may not always be entitled to that presumption when seeking review under the APA—an issue we need not decide.

And Texas is protecting its quasi- sovereign interest in not being forced to choose between incurring costs and changing its driver’s license regime.

Therefore, it is entitled to the same “special solicitude” as was Massachusetts.40

The court notably does not explain where the special solicitude may not apply, but stressed in a footnote that the DOJ also had no answer:

This panel heard over two hours of oral argument on this motion for stay. Govern- ment counsel was specifically asked to explain how the United States avoids the “special solicitude” language in its effort to defeat standing. Counsel acknowledged that he had no explanation.

With respect to causation, the court finds at least as tight a link as in Mass v. EPA:

Although Texas would not be directly reg- ulated by DAPA, the program would have a direct and predictable effect on the state’s driver’s license regime, and the impact would be significant because at least 500,000 potential beneficiaries live in the state. Alternatively, Texas could change its law, but being pressured to do so is itself a substantial injury, as already discussed.

In short, the injury of Texas is “fairly traceable” to DAPA:

The only intervening act of a third party is the beneficiaries’ decisions to apply for licenses, but it is hardly speculative that they will do so— driving is a practical necessity in most of Texas, especially to get and hold a job, so many beneficiaries will be eager to obtain licenses. Further, DAPA is the only substantial cause of Texas’s injury. In short, given the “special solici- tude” that the Supreme Court directs us to afford to Texas, the parallels between this case and Massachusetts, and the differences between this case and those in which the Supreme Court has not found standing, the states are likely to satisfy the “fairly traceable” requirement.

After going through some justiciability issues, the zone of interest test, and threshold questions about reviewability, the court turns to the heart of the matter–the scope of the Secretary’s “discretion.” Here is how the court describes DAPA:

Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision—at least temporarily— not to enforce the immigration laws as to a class of what he deems to be low-priority aliens.61 If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens.62 Though revocable, that new designation triggers eligibility for federal63 and state64 benefits that would not otherwise be available.65

This cogent paragraph summarizes the fact of the matter. DAPA is not merely about non-enforcement, but offers a benefit. Even if that benefit is in the abstract authorized by statute, as applied here, it cannot be subsumed under the discretion umbrella.

“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’”66 Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification. Regardless of whether the Secretary has the authority to offer those incentives for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.67 And as shown above,68 neither the preliminary injunction nor compliance with the APA requires the Secretary to prosecute deportable aliens or change his enforcement priorities.

Importantly, the court dismisses the “incentive” rationale–that is, work authorization is needed as an incentive for signing up for DAPA. I discuss this topic at length here.

Because DAPA goes beyond deferred action to offer “lawful presence,” it is subject to judicial review.

Under DAPA, “[d]eferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,”70 a change in desig- nation that confers eligibility for federal and state benefits on a class of aliens who would not otherwise qualify.71 Therefore, DAPA “provides a focus for judi- cial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.”72

But what about 8 C.F.R. 274a.12(c)(14) which gives DHS authority to grant deferred action? That authority, as applied to DAPA, cannot be relied on prior to notice and comment.

The government asserts that 8 C.F.R. § 274a.12(c)(14),94 rather than DAPA, makes aliens granted deferred action eligible for work authorizations. But if DAPA’s class-based deferred action program, on which work authoriza- tions are contingent, must be subjected to the notice-and-comment process, then work authorizations may not be validly issued pursuant to it until that process has been completed. And again, it is DAPA’s version of deferred action itself—the designation of “lawful presence”—that causes Texas’s injury.95

This reasoning is circular, as the government asserts that this provision means DAPA does not have to go through notice-and-comment because DHS already has this authority.

In a footnote, the court makes clear it does not reach whether there is in fact an “abdication” of enforcement.

Having concluded that DAPA’s version of deferred action—at least to the extent that it confers lawful presence—is not an exercise of enforce- ment discretion committed to agency action, we do not reach the issue of whether the pre- sumption against review of such discretion is rebutted. See id. at 832–34; Adams v. Richard- son, 480 F.2d 1159, 1161–62 (D.C. Cir. 1973) (en banc) (per curiam).

While the court does not reach the substantive APA claims, the court does note that the INA provisions cited by the government do not stretch nearly as far as the government argues:

The district court did not rule on the substantive APA claims, and we do not decide whether the Secretary has the authority to implement DAPA. We do note, however, that even granting “special deference,”75 the INA provisions cited by the government for that proposition cannot reasonably be construed, at least at this early stage of the case, to confer unreviewable discretion.

Citing Brown & Williamson’s admonition that Congress does not hide elephants in mouseholes, the court stresses the absence of such an expansive authority is an indication the authority does not exist:

Against that background, we would expect to find an explicit delegation of authority to implement DAPA—a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associ- ated benefits—but no such provision exists.84 Likewise, we do not construe the broad grants of authority in 6 U.S.C. § 202(5),87 8 U.S.C. § 1103(a)(3),88 or § 1103(g)(2)89 as assigning unreviewable “decisions of vast ‘economic and political significance’”90 to an agency. Presum- ably because there is no specific statutory basis for DAPA, the United States suggests that its authority is grounded in historical practice, but that “does not, by itself, create power.”91 …

Util. Air, 134 S. Ct. at 2444 (quoting Brown & Williamson); accord id. (“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” (citation omitted) (quoting Brown & Williamson, 529 U.S. at 159)); Perales, 903 F.2d at 1051 (“The mere fact that a statute grants broad discretion to an agency does not render the agency’s decisions completely unreviewable under the ‘committed to agency discretion by law’ exception unless the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised.” (quoting Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985) (per curiam)).

The court does not address the scope of historical practice (the subject of my article and Cato’s amicus brief) because the government has not fully fleshed out whether these programs amounted to deferred action or lawful presence.

Even assuming that an amalgamation of  historical practice,92 congressional acquiescence, the immigration context, and the INA provide authority for DAPA, it would be bold and premature for us to conclude that an as-yet-undefined delegation is beyond the scope of judicial review.

Many aspects of previous deferred-action programs have not been precisely explained at this early stage of the litigation, particularly whether they granted “lawful pres- ence” or were purely non-enforcement decisions, whether the beneficiaries were merely given a temporary reprieve while transitioning from one lawful status to another, whether the pro- grams were interstitial to a statutory legalization scheme, whether they are comparable in scale and scope to DAPA, and whether Congress’s failure to enact the DREAM Act bears on its acquiescence to DAPA. Because the district court has not yet resolved those factual issues, historical practice does not clarify our understanding of the reviewability of DAPA.

The discussion of “transitioning” is an analogy of the “bridge” metaphor I have used for the past few months. The court next turns to whether the rule was substantive. It first explains that DACA is a guide for DAPA–an important extrapolation, as the latter has not yet gone into effect.

Extrapolating from the implementation of DACA,101

101 See Gen. Elec., 290 F.3d at 383 (“[A]n agency pronouncement will be considered binding as a practical matter if it either appears on its face to be binding, or is applied by the agency in a way that indicates it is binding.”); 3 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 15.05[3] (2014) (“In general, the agency’s past treatment of a rule will often indicate its nature.”).

On the merits, the court only reviews the district court decision for “clear error.” This is very, very difficult to overcome.

The court next makes an important point–it is not enough for the Secretary to have discretion, but the decisionmakers must be “actually free to exercise discretion.”

An agency action is not exempt as a policy statement just because the agency purports to retain discretion; whether the agency in fact retains discretion is determined, at least in part, by whether its decisionmakers are actually free to exercise discretion. See supra notes 98―100 and accompanying text. Of course, as discussed infra part VI.B, a lack of dis- cretion by subordinates does not necessarily mean that a directive is subject to notice and comment; subordinates are expected to adhere to internal directives.

Specifically, the government was not able to identify any applicants who were denied for “discretionary reasons.”

“Despite a request by the [district] [c]ourt, the [g]overnment’s counsel did not provide the number, if any, of requests that were denied [for discretionary reasons] even though the applicant met the DACA criteria . . . .”104

104 Id. at *5. The parties submitted over 200 pages of briefing over a two-month period, supported by more than 80 exhibits. The district court held a hearing on the motion for a preliminary injunction and heard extensive argument from both sides and “specifically asked for evidence of individuals who had been denied for reasons other than not meeting the cri- teria or technical errors with the form and/or filing.” Id. at *55 n.101.

However, DAPA and DACA “are not completely analogous.”

The programs are not completely analogous, however: Many more persons are eligible for DAPA,107 and eligibility for DACA was restricted to a younger population—suggesting that DACA applicants are less likely to have back- grounds that would warrant a discretionary denial. The DAPA Memo also con- tains more discretionary criteria: Applicants must not be “an enforcement pri- ority as reflected in the [Prioritization Memo]; and [must] present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.”108

But there are similarities.

Despite those differences, there are important similarities: The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,”109 and there was evidence that the DACA application process itself did not allow for discretion, regardless of the approval rate.

With respect to the self-selection problem, the court found important that the government will take no action against those denied deferred action. The only downside to applying is the application fee.

We are attentive to the difficulty of evaluating an agency’s discretion where the action involves issuing benefits to self-selecting applicants, as dis- tinguished from imposing obligations on a regulated industry. Although a person who expected to be denied DACA relief for discretionary reasons would be unlikely to apply, the self-selection issue is mitigated by the district court’s finding that “the [g]overnment has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action (absent extraordinary circumstances).” Texas, 2015 WL 648579 at *50.

The court notes that Texas requested an evidentiary hearing to resolve any possible conflicting evidence, but none was held:

Although the gov- ernment did not seek an evidentiary hearing, the states requested one if the “new declar- ations create a fact dispute of material consequence to the motion.” No such hearing was held, and the court cited the Palinkas declaration favorably, Texas, 2015 WL 648579 at *5, *8 n.13, *38 n.55, but described the Neufeld declaration as providing insufficient detail, id. at *5, 55 n.101.

Applying the clear error standard, the Court found that the federal government has not carried its burden:

The United States has not made a strong showing that it was clearly erroneous to find that DAPA would not genuinely leave the agency and its employees free to exercise discretion.112 In summary, the United States has not made a strong showing that it is  likely to succeed on the merits.

Finally, the court turns to whether the United States will be irreparably harmed absent a stay.

It claims that the injunction offends separation of powers and federalism, but it is the resolution of the case on the merits, not whether the injunction is stayed pending appeal, that will affect those principles.

Specifically, the court rejects the silly argument that DHS will be unable to quickly determine which aliens are enforcement priorities.

The government urges that DHS will not be able to determine quickly whether illegal aliens it encounters are enforcement priorities, but even under the injunction, DHS can choose whom to remove first; the only thing it cannot do is grant class-wide lawful presence and eligibility for accompanying benefits as incentives for low-priority aliens to self-identify in advance. … The public interest favors maintenance of the injunction, and even if that were not so, in light of the fact that the first three factors favor the states and that the injunction merely maintains the status quo while the court considers the issue,127 a stay pending appeal is far from justified.

That is it for the majority’s 43 page opinion. Judge Higginson issued a 25 page dissent. I love the collegial tone.

My colleagues conclude that the government has not made a “strong showing” of likelihood of success on the merits. Nken v. Holder, 556 U.S. 418, 434 (2009) (internal quotation marks and citation omitted). I am grateful to them for their analysis and collegiality, and our exchange has informed my views, although I dissent as follows.

Before reaching the topic of justiciability, the dissent notes that it does not reach standing. However, in a lengthy footnote, Higginson laments the fact that the Court has not explained the reach of Massachusetts v. EPA beyond “an injury based [a state’s] own property interests.” (This is the narrow construction the government applied).

Because I believe that Heckler compels the conclusion that the November 20 memorandum is non-justiciable, I would not reach the issue of standing. At this emergency- stay point, I would note only that there has been little developed guidance from lower courts on how far Massachusetts v. EPA’s logic extends for plaintiff-states beyond the facts of that case, which involved a state that asserted an injury based on its own property interests and the relevant statute provided an explicit right to challenge the denial of a rulemaking petition. See 549 U.S. 497, 518–20 (2007).

Sounds like a bit of sour graps that a doctrine used to compel enforcement of environmental laws now stops an executive to declines to enforce immgiration laws. Higginson also stresses that Texas offers no limiting principle for drivers’ license standing. (I offer one here).

Furthermore, Texas’s inability to articulate a limiting principle to its drivers’ license theory of standing—triggered, it appears, by any federal executive policy that leads to the grant of even one deferred action request—as well as countervailing developments in this court and others, suggest to me that Massachusetts v. EPA may not apply here. See Crane v. Johnson, 783 F.3d 244, 247 (5th Cir. 2015) (holding that the State of Mississippi had not “demonstrated the concrete and particularized injury required to give [it] standing to maintain [its] suit” against the precursor DHS memorandum); Arpaio v. Obama, 27 F. Supp. 3d 185, 207 (D.D.C. 2014) (holding that Sheriff Arpaio did not have standing to challenge the precursor DHS memorandum); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 346 (2006) (holding that plaintiffs do not have standing by virtue of their status as taxpayers to challenge the conferral of tax credits on third parties); Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (per curiam) (holding that Pennsylvania lacked standing to challenge a New Jersey tax that triggered a Pennsylvania tax credit because “nothing prevent[ed] Pennsylvania from withdrawing that credit for taxes paid to New Jersey” and explaining that “[n]o State can be heard to complain about damage inflicted by its own hand”); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (emphasizing that a third party “lacks a judicially cognizable interest in the prosecution or nonprosecution of another”); Henderson v. Stalder, 287 F.3d 374, 384 (5th Cir. 2002) (Jones, J., concurring) (“[A] plaintiff who complains merely that a benefit has been unconstitutionally granted to others is asserting only a ‘generalized grievance’ that does not allow the plaintiff standing to obtain judicial relief for the alleged wrong in federal court.”). Given the debatability of the plaintiff-states’ attenuated theory of standing, I would therefore resolve this matter on the threshold issue of non-justiciability.

The dissent chastises the district court for its reliance on the President’s statements and DACA:

The district court distinguished Heckler and Texas by drawing an inference of executive overreaching from two sources: first, public statements by the President, and second, the district court’s negative assessment of the earlier DACA 2012 memorandum, an assessment that our court has since rejected in Crane v. Johnson. The district court’s inferences from these two sources led it to characterize the November 20 memorandum as a presidentially “announced program” that thwarts Congress’s “goals” to remove all undocumented immigrants.

Much of the dissent’s analysis is premised on (what I see as) a strawman. That Congress ordered the President to remove *all* aliens here illegally. Judge Hanen made this point nowhere, and agreed that the Secretary has some discretion. The question is about the scope of that discretion. Further, neither Judge Hanen nor Texas takes exception with the Court’s holding in Arizona v. United States about the wide-ranging authority to not deport someone.

The dissent faults the district court for conflating “status” and “presence.”

The November 20 memorandum like its precursors, dating back to 1975, contemplates categorizing deferred action recipients as being present for a temporary period of time, but does not change the applicant’s lawful “status.” Congress, separately through 8 U.S.C. § 1255, has codified exact ways non- citizens may gain lawful “status,” but has left lawful “presence” broadly defined to include a discretionary “period of stay authorized by the Attorney General.” 8 U.S.C. § 1182(a)(9)(B)(ii); … When DHS exercises its discretion to grant a qualified and temporary reprieve from removal, the immigrants’ now-identified “presence” is thus consistent with, and furthers, Congressional enactments. See Chaudhry, 705 F.3d at 292. Non-citizens who only have lawful presence, but not lawful status, are not entitled to remain in the United States; their presence is revocable at any time. The non-citizen thus remains in the country at the discretion of DHS, who may remove the individual whenever it pleases.

With respect to the regulatory and statutory authorization for work authorization, the dissent argues that Congress should recalibrate it, not the courts.

Work authorization for deferred-action recipients is expressly authorized under a 1981 regulation that was promulgated through notice-and-comment rulemaking. See 8 C.F.R. § 274a.12(c)(14). That authorization has since been reinforced in the United States Code. See 8 U.S.C. § 1324a(h)(3). If an influx of applications makes the statutory availability of work authorization inadvisable, it is for Congress, not the courts, to recalibrate. See, e.g., 8 U.S.C. § 1158(c)(1)(B) (directing the Secretary to grant work authorization to certain categories of non-citizens); id. § 1226(a)(3) (directing the Secretary not to grant work authorization to a certain category of non-citizens).

The dissent finds that there was not an abdication (although it doesn’t address the clear error standard):

On this record, as well as focusing below on the four corners of the November 20 memorandum, I would say DHS is adhering to law, not derogating from it. The Supreme Court in Heckler noted that derogation and abdication occur rarely, where there is statutory language removing non- enforcement discretion yet still “a refusal by the agency to institute proceedings” or “‘consciously and expressly adopt[ing] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973)). Neither exists here. The DHS memorandum guides executive policy that has allowed enforcement and more removals per year than under any prior presidency. Although executive abdication, if renunciatory of Congress, extreme and diametric, must be checked, courts should not truncate the myriad political processes whereby most executive intention, good and bad, is ever balanced.

This should be a dispute for the political branches, the dissent argues:

In fact, if the Supreme Court has insisted on any one constant as it relates to immigration disputes, it is to redirect disputes from the multiplicity of state reactions back to dialogue between our coequal federal political branches so that nationwide concerns and practicalities are weighed, Congress’s purse dispensed as it chooses, and the Executive refines its enforcement priorities or is compelled by Congress to do so. If internal executive policy-setting authority—adjusting to limited resources and making critical offender severity determinations, all superintended by Congress—now instead becomes challengeable in courts and forced into “the often cumbersome and time-consuming mechanisms of public input,” Kast Metals, 744 F.2d at 1152, this case, as precedent, may well rise, swell, and burst with clutter beyond judicial control over immigration removal (in)action.

The dissent does acknowledge that the status quo should be maintained pending appeal, putting aside justiciability issues.

Absent non-justiciability, I would agree that there is a reason to maintain the status quo pending the government’s approaching appeal on the merits. Compare INS v. Legalization Assistance Project of the L.A. Cnty. Fed’n of Labor, 510 U.S. 1301, 1306 (1993) (O’Connor, Circuit Justice) (granting an application to stay the district court’s order that required enforcement of INS regulations when the district court’s order was “an improper intrusion by a federal court in the workings of a coordinate branch of the Government”), with Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 509 (2013) (Breyer, J., dissenting) (“[I]t is a mistake to disrupt the status quo so seriously before the Fifth Circuit has arrived at a considered decision on the merits.”), and Campaign for S. Equality v. Bryant, 773 F.3d 55, 58 (5th Cir. 2014) (granting a stay pending appeal in part because “a temporary maintenance of the status quo” prevents the “inevitable disruption that would arise from a lack of continuity and stability in [an] important area of law”). See generally Jill Wieber Lens, Stays Pending Appeal: Why the Merits Should Not Matter, Fla. St. U. L. Rev. (forthcoming) (manuscript at 35), available at (arguing that panels reviewing motions for stay pending appeal should consider “whether the circumstances would (irreparably change) in a way that would interfere with the appellate court’s ability to make a decision meaningful to the parties”).

With respect to the APA ruling, the dissent disregards reliance on DACA, as DAPA has not yet gone into effect. This effectively decides the issue, as it is now “guided by feeling.”

Because the November 20 memorandum has yet to go into effect, and no evidentiary hearing was held, the record is undeveloped and contains considerable conjecture, and conjecture is guided by feeling.

Because the dissent’s analysis is limited to the four corners of DAPA, it becomes facile to disregard how its antecedent has been implemented:

As a preliminary matter, it is undisputed that any “directing” here is internal only, not binding with respect to regulated entities. And to the extent that DHS directs internally, it directs immigration officers to “establish a process, similar to DACA [2012], for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” (emphasis added), containing features common to nonbinding statements of policy (exempt from notice and comment procedure), and dissimilar from binding substantive regulations (requiring APA rulemaking and public participation).

The dissent faults the district court for resolving the issue on the basis of DACA.

More significant, the district court discerned pretext—inferred intent to bind—from the fact that the majority of DACA 2012 deferred action applications have been granted. I disagree for factual and legal reasons.

First, without evidence-taking and testing, I question the relevance of DACA 2012 implementation data. The DACA 2012 memorandum purports to guide the exercise of prosecutorial discretion “with respect to individuals who came to the United States as children,” a subset of undocumented immigrants who are particularly inculpable as they “were brought to this country as children” and, thus, “lacked the intent to violate the law.” That memorandum, in its original form, applies only to individuals who came to the United States under the age of sixteen, have not yet reached the age of thirty, and who have achieved a certain level of education. The November 20 memorandum being challenged here, and specifically its DAPA provisions, on the other hand, casts a much wider net, applying to a larger and broader group of individuals, but then narrows its deferred-action-availability reach through the use of more discretionary criteria than in DACA 2012. Despite these dissimilarities, the district court concluded that “[t]here is no reason to believe that DAPA will be implemented any differently than DACA [2012]” and there was no “suggestion that DAPA will be implemented in a fashion different from DACA [2012].”

The court did not explore, however, the government’s contention that a significant difference existed between the two programs, specifically, the catch-all discretionary exception that was added to the November 20 memorandum—“present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” The district court rejected this distinction because, the court contended, using circular reasoning, that the approval rate under the DACA 2012 program persuaded the Court that “this ‘factor’ is merely pretext.” Id. at *55 n.101.

In short, the record was not sufficient to grant the injunction:

Especially because this case touches on the sensitive issues of immigrant presence in the United States, as well as when one branch of government may invalidate internal guidelines of another branch, I do not think it should come resolved on inferences of disingenuousness made from press statements and untested inferences from a precursor program whose challenge on similar grounds our court has rejected.

One note–the dissent states that no evidentiary hearing was held:

No evidentiary hearing was held.

Texas wanted one, but the federal government did not.  So it is difficult to criticize the fact that Jeh Johnson was not heard from.

As a second example, Jeh Johnson, the author of what is held disingenuous, was not heard from. His ten instructions requiring individualized, case-by-case assessment were not tested as pretext. When a court assesses unlawful motive and declares executive action invalid nationwide, highest government officials whose veracity is entirely discredited should be heard.

The dissent highlights the so-called self-selection bias.

Fourth, and especially significant, placing determinative weight on the approval rate of applicants under DACA 2012 fails to take into account the crucial voluntary aspect of this memorandum, that applicants will not apply if they are ineligible—essentially self-reporting for removal—or, if eligible, when they have any other flaw they do not want revealed. In light of this manifest self-selection bias, it is unclear why the appropriate piece of data would be the approval rate of only applicants, crucially relied on by the district court to infer pretext, rather than the approval rate of all those who qualify. Again, the district court did not address at all this self-selection bias inherent in DACA

2012 and the November 20 memorandum.

To the contrary, as we discuss in our Cato brief, the self-selection point cuts in the exact opposite direction.

The trivially low denial rate is a function of the Secretary’s appli- cation of rote criteria and the stripping of any meaningful discretion from individual agents to actually assess aliens on a case-by-case basis. The administration selected and publicized the categories of people who would receive benefits, knowing that only those who would qualify would likely apply. Felons—the very people DAPA seeks to locate—will be the last aliens to apply, because registration will identify and prioritize them for removal. The government has never accounted for this glaring hole in its defense. At the margins, there will certainly be some aliens who may think they are eligible but do not meet the criteria— hence the miniscule denial rate. But these are outliers.

The dissent thus operates in a regulatory fantasyland, devoid of the reality of what DAPA is, where it came from, and how it will likely be implemented (contrary to its lofty aspirational goals of “discretion”). There is a palpable unwillingness to address the significance of the work authorization, which makes the allegations of pretext crumble easily.

Kudos to Judge Higginson for writing the most thoughtful defense of DAPA–far more cogent than DOJ’s brief. In the end, I can see Justice Breyer adopting this sort of formalistic, wool-over-the-eyes ode to the APA. But I don’t think it will carry day.