Do states have standing to challenge federal programs that grant temporary deportation protection to some undocumented immigrants, if the programs increase the states’ cost of providing voluntarily subsidized benefits? And is the deferred deportation program in this case lawful under the Administrative Procedure Act and Article II of the U.S. Constitution?
In 2014, the Department of Homeland Security (“DHS”) issued a guidance policy granting temporary deportation protection to 4.3 million undocumented immigrants, called the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program. In the same year, twenty-six states (the “states”) challenged the DAPA guidance. In this case, the Supreme Court will decide: (1) whether states have standing to challenge DAPA if it will increase the costs of state-subsidized benefits, such as driver’s licenses; and (2) whether DAPA is lawful under the Administrative Procedure Act and the Take Care Clause of the Constitution. The United States argues that the states do not have standing because the increased costs of state subsidized benefits are merely incidental effects of the guidance policy and are self-inflicted. Additionally, the United States argues that the Immigration and Nationality Act (“INA”) gives the executive branch power to choose which immigrants to deport—a power exercised through the DAPA guidance policy. But the states assert that the United States cannot defeat standing by claiming that the costs are self-inflicting. Moreover, the states claim that the INA does not explicitly give the executive power to provide temporary protection from deportation. The Court’s decision could affect the status of and benefits available to undocumented immigrants and the scope of the president’s discretion when executing immigration law.
Questions as Framed for the Court by the Parties
1. Does a State that voluntarily provides a subsidy to all aliens with deferred action have Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action?
2. Is the Guidance arbitrary and capricious or otherwise not in accordance with law?
3. Is the Guidance invalid because it did not go through the APA’s notice-and-comment rule-making procedures?
4. Does the Guidance violate the Take Care Clause of the Constitution, Art. II, § 3?
In 2012, the Department of Homeland Security (“DHS”) implemented the Deferred Action for Childhood Arrivals (“DACA”) program, which provides temporary protection from deportation (“deferred action”) for primarily young undocumented immigrants. Texas v. United States, 809 F.3d 134, 147 (5th Cir. 2015). At launch, about 1.2 million undocumented immigrants qualified for the program. Beneficiaries of the DACA program can renew their deferred action status every three years. Id. The DACA program is an exercise of DHS’ prosecutorial discretion. DHS examines DACA applications on a case-by-case basis according to guidance issued by the Secretary of DHS (the “guidance policy”). Id.
In 2014, DHS expanded DACA by creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program. Id. DAPA widened DACA’s eligibility criteria and also covered certain undocumented immigrants who have children who are U.S. citizens or lawful residents. Id. The DAPA program covered an additional 4.3 million undocumented immigrants. Id. at 148.
Soon thereafter, twenty-six states challenged the DAPA program in the U.S. District Court for the Southern District of Texas on three grounds. Id. at 149. They alleged that the DAPA program violated the requirements of the Administrative Procedure Act (“APA”) because DHS failed to undergo the notice-and-comment rulemaking process, which requires agencies to notify the public of new rules and allow the public to provide feedback. Id. They also argued that DHS lacked the substantive authority to implement the DAPA program under the APA. Id. Finally, the states argued that DAPA violated the president’s duty to “take Care that the Laws be faithfully executed” under Article II of the U.S. Constitution. Id.
Both the district court and U.S. Court of Appeals for the Fifth Circuit held that the states had standing to challenge the DAPA program because the states would suffer a financial injury. See id. at 149–50. For example, lead plaintiff Texas passed laws to prevent unlawful immigrants from obtaining driver’s licenses. Id. at 149. Texas claimed that DACA would allow otherwise illegal immigrants to become “lawful” immigrants and thus obtain driver’s licenses. Id. Texas claimed that these newly lawful immigrants would also be eligible for unemployment benefits that they would not otherwise be eligible for. Id. The district court temporarily enjoined DAPA’s implementation because the states had proven a likelihood of success on their claims that DHS had failed to satisfy the notice-and-comment rulemaking requirements. Id. at 150. The Fifth Circuit affirmed. Id. at 146.
The United States argues that the states do not have standing because their claimed injury is a result of self-inflicted policies and does not satisfy the Court’s zone of interest requirements. See Brief for Petitioner, United States at 13. Assuming the Court finds standing, the United States argues that the power to deport undocumented immigrants lies exclusively with the federal government, and that by virtue of the Immigration and Nationality Act (“INA”), the Secretary of Homeland Security (the “Secretary”) can take necessary actions to administer and enforce the INA. See id. at 2–4. Therefore, the United States argues, DHS’s guidance policy is a legitimate exercise of the Secretary’s power. See id. at 5–6. Texas argues that the concerned states have standing because DAPA imposes substantial costs on the states’ ability to issue driver’s licenses as well as administer other social and economic programs. See Brief for Respondents, State of Texas et al. at 18; Brief in Opposition, State of Texas et. al. at 10–11. Furthermore, Texas argues that DAPA rewrites immigration law without input from Congress and in violation of Congress’ legislative authority. See Brief in Opposition at 20–23.
DOES THE INCREASED COST OF A STATE’S ECONOMIC PROGRAM UNDER DAPA GRANT STANDING?
The United States contends that Texas lacks Article III standing to challenge the DHS’s guidance policy because Texas is not the object of the challenged governmental action, and is merely claiming to be injured by the incidental effects of federal policy. See Brief for Petitioner at 20. Furthermore, the United States asserts that Texas cannot claim standing on the basis of the increased cost of its voluntary driver’s license subsidy and that basing standing on self-generated injuries would result in a slippery slope of litigation against many federal policies. See id. at 31. Finally, the United States argues that Texas’ voluntary subsidy for driver’s licenses is not within the zone of interests of any provision of the INA. See id. at 34. The United States argues that the Court, under its zone of interest analysis, looks to whether the issues at hand are protected or regulated by the statute in question. See id. at 33–34. The United States argues that Texas’ alleged injury is not within the INA’s zone of interests, because the INA carefully preserves a cause of action only for plaintiffs that are adversely affected by agency action, not the incidental effects of federal policy. Id.
Texas maintains that the increased cost of administering its driver’s license subsidy and other government programs such as Medicaid and Social Security benefits—for which the undocumented immigrants granted deferred action status are eligible—creates standing. See Brief for Respondents at 18, 27–28; Brief in Opposition at 13–14. Texas maintains that the United States cannot defeat standing by asserting that Texas could avoid its allegedly self-inflicted injury by changing its policies. See Brief for Respondents at 22–24. Texas argues that fears of a slippery slope of litigation are unfounded, because the injury and causation requirements for standing are generally difficult to meet. See id. at 34–35. Therefore, Texas contends, fears of lawsuits by concerned states on issues of federal policy are purely speculative. See Brief in Opposition at 19.
DOES THE SECRETARY HAVE THE POWER TO ISSUE THE GUIDANCE POLICY?
The United States contends that Congress has given the Secretary broad discretion to administer and enforce immigration laws. See Brief for Petitioner at 42. As such, the United States argues, the issuance of the DAPA guidance policy was a lawful exercise of the Secretary’s authority. Id. According to the United States, the guidance policy accords with Congress’ delegation of power to the Secretary, by focusing on undocumented immigrants who may have abused the immigration system and committed crimes, and by establishing a priority system to remove these identified persons. See id. at 44. The United States notes that for over fifty years INS and DHS have implemented policies similar to the DAPA guidance policy and that Congress has consistently ratified these policies. See id. at 48. Finally, the United States argues that section 1103(a) of the vesting clause of the INA gives the Secretary authority to permit immigrants to be lawfully employed as a part of his discretion. See id. at 63–64.
Texas counters, however, that no statute gives the executive branch power to confer lawful presence to undocumented immigrants, and suggests that when Congress intends to give that authority to the executive, it would do so explicitly. See Brief for Respondents at 42–43; Brief in Opposition at 24. Furthermore, Texas argues that Congress has specifically made certain categories of immigrants ineligible to work in the United States, and as such, the executive cannot claim to have a broad, un-reviewable authority to issue work permits under the INA. Brief in Opposition at 24.
IS THE GUIDANCE POLICY VALID AND CONSTITUTIONAL?
The United States maintains that when a policy meets the requirements for classification under the APA’s “general statements of policy,” the DHS is not required to follow agency notice-and-comment procedures. See Brief for Petitioner at 65–66. The United States argues that because the DHS’s guidance policy is a general statement of policy on how the executive would enforce its discretion under the INA, DHS was not required to follow the APA’s notice and comment procedures. See id. Unlike rules that require notice and comment, the guidance policy is not impermissibly binding and does not prevent individual agents from rejecting the application for deferred action status from undocumented immigrants. See id. at 72.
Texas argues that the guidance policy establishes a major change in the country’s immigration law and should therefore be considered a substantive rule. See Brief for Respondents at 60. Additionally, Texas argues that in order to be considered a “general statement of policy,” the guidance must be voluntary. See id. at 61. Texas asserts, however, that the guidance policy here contains mandatory language and is subject to immediate implementation by immigration officials. See id. at 62–64. Texas remarks that DAPA eliminates agency discretion and that even the President has noted that DAPA is binding. See id. at 62.
The Court’s resolution of this case could affect the legal status of undocumented immigrants, the benefits available to undocumented immigrants, and the president’s discretionary powers.
WHAT HAPPENS IF DAPA IS IMPLEMENTED?
Immigrant’s rights organizations assert that the implementation of the DAPA program will benefit millions of undocumented immigrants who have close ties to the United States. See Brief of Amici Curiae American Immigration Council et al. (“Immigrant-rights organizations"), in Support of Petitioner at 6. DAPA will not only benefit undocumented immigrants who were brought to the United States as children, but also parents of U.S.-citizen children, family members, employers, and other community members. See id. at 6. According to immigrants' rights organizations, deportation protection and the ability to work lawfully allows immigrants to enjoy increased earning potential that will benefit the U.S. economy. The organizations contend that eligible immigrants will have better job opportunities, and by some estimates, their total labor income will increase by $7.1 billion. See id. at 7–8.
Members of Congress and the American Center for Law & Justice (the “Center”) argue, however, that creating a program that benefits millions does not render the action constitutional. See Brief of Amici Curiae Members of Congress et al., in Support of Respondent at 11–12. According to the Center, there is a dramatic difference between setting enforcement priorities and creating programs that benefit millions of people, because the former requires the discretionary assessment of each case while the latter does not. See id. at 13.
DOES THE EXECUTIVE BRANCH HAVE BROAD DISCRETION TO ADOPT IMMIGRATION ENFORCEMENT PRIORITIES?
Members of Congress contend that the executive branch needs broad discretion to address the complexities of immigration law, because immigration’s social and policy implications affect the entire nation. See Brief of Amici Curiae 186 Members of the U.S. House of Representatives and 39 Members of the U.S. Senate (“Members of Congress”), in Support of Petitioner at 7. Former federal immigration and homeland security officials assert that granting deferred action has been a part of the executive’s immigration enforcement power since the 1950s. See Brief of Amici Curiae Former Federal Immigration and Homeland Security Officials, in Support of Petitioner at 5. Members of Congress suggest that DACA and DAPA are responses to the executive’s limited resources to enforce the laws. See Brief of Members of Congress, in Support of Petitioner at 8. In other words, Members of Congress assert that because of limited resources, the executive branch cannot realistically deport all undocumented immigrants, so the executive branch must be able to make decisions about whom it choses to remove. See id. at 8.
But Immigration Reform Law Institute (“IRLI”) argues that the Constitution vests plenary powers to control immigration in Congress, not the executive branch. See Brief of Amicus Curiae Immigration Reform Law Institute, in Support of Respondents at 4. IRLI maintains that the executive branch cannot unilaterally enforce policies like DAPA without Congress’ express authorization, and in this case Congress did not authorize the executive branch’s action. See id. at 4. IRLI asserts that petitioners' interpretation of the executive branch power would result in overly broad prosecutorial discretion by the executive. See id.
The Supreme Court's decision in this case will determine whether states have standing to challenge the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program and, if so, whether DAPA is constitutional and lawful under the Administrative Procedure Act (“DAPA”). The United States argues that DAPA and the guidance policy issued by the DHS to implement the action are within the Secretary’s constitutional and congressionally ratified powers. See Brief for Petitioner at 42. Texas and the concerned states argue that the Secretary overstepped his constitutional and congressionally directed authority by issuing the guidance policy for the implementation of DAPA. See Brief in Opposition at 24. The Court’s decision could affect the status of millions undocumented immigrants and the president’s discretionary power.
- Erwin Cherminsky, Cherminsky: “Potential Blockbuster” Rulings Expected in June, ABA Journal (Feb. 3, 2016).
- Garrett Epps, Will the U.S. Supreme Court Tell Obama To Take Care?, The Atlantic (Jan. 21, 2016).