Texas v. U.S. Part VIII – The Dissent on the APA Procedural Claim

November 15th, 2015

Part I of my analysis focused on standing analysis in Texas v. U.S., and Part II focused on reviewability. Part III looked at the procedural APA claim. Part IV looked at the substantive APA claim. Part V analyzes how the dissent frames DAPA. Part VI analyzes the dissent’s standing analysis. Part VII looks at the justiciability issue. This part will look at the APA Procedural Claim.

Judge King places the burden of proving a likelihood of success on the merits to demonstrate that DAPA is “non-discretionary.”

As the majority admits, the Memorandum “facially purports to confer discretion.” Majority Op. at 44. But the district court ignored this clear language, concluding that agency officials implementing DAPA will defy the Memorandum and simply rubberstamp applications. In so doing, the district court disregarded a mountain of highly probative evidence from DHS officials charged with implementing DAPA, relying instead on selected excerpts of the President’s public statements, facts relating to a program materially distinguishable from the one at issue here, and improper burden-shifting. The majority now adopts the district court’s conclusions wholesale and without question.


The posture of this case on a preliminary injunction is such that the district court’s rulings on findings of fact are reviewed under a clearly erroneous standard. In any event, the majority found most (but not all) of Judge Hanen’s findings were not error, under any standard. At bottom, Judge King is correct that the majority found that extrapolating from DACA, that DAPA would offer true discretion–but they stopped short at adopting the district court’s finding of “pretext.” (See Part III). As I’ve noted in previous posts, a key inquiry is the depth of scrutiny the court affords the policy, and whether it looks only at the four corners of the document.

The majority recognizes that the plain language of Memorandum “facially purports to confer discretion” and does not argue that DAPA creates a substantive rule from its four corners alone. Majority Op. at 44. Nonetheless, the district court reached the opposite conclusion. And it bears identifying the errors committed by the district court in holding that DAPA was a substantive rule on its face.

Whether the Court confines its analysis to the “four corners” of the memorandum, or considers the history of DACA as well as the legislative defeats that occurred before DAPA, will determine the outcome of the case.

Beyond the memorandum issue, Judge King explains that reliance on DACA’s track record is not probative.

I am left with such a conviction for three independent reasons: (1) the record lacks any probative evidence of DAPA’s implementation; (2) the district court erroneously equated DAPA with DACA; and (3) even assuming DAPA and DACA can be equated, the evidence of DACA’s implementation fails to establish pretext. … Nor should pretext be found here absent such evidence. As noted at the outset, courts should not be quick to conclude that when a coordinate branch of government describes a policy as discretionary, it does not mean what it says. … With respect to the former, this single, nebulous statement does not specify how the DAPA and DACA processes would be similar; the phrase cannot be construed to mean that DAPA and DACA will be implemented identically. The latter is pure burden- shifting—the district court implies that the burden is on DHS to show that the two programs will be implemented differently. Of course, in the preliminary injunction context, Plaintiffs, “by a clear showing, carr[y] the burden of persuasion.” … But the burden of showing DAPA is non-discretionary was on Plaintiffs—the States—and Plaintiffs provided no evidence as to the number of these denials. Rather, the district court accepted as true Plaintiffs’ bare assertion that there were no such denials, concluding unequivocally that “[n]o DACA application that has met the criteria has been denied based on an exercise of individualized discretion.”