Texas v. United States

Decision Date16 July 2021
Docket NumberCivil Action No. 1:18-CV-00068
Citation549 F.Supp.3d 572
Parties State of TEXAS, et al., Plaintiffs, v. The UNITED STATES of America, et al., Defendants, and Karla Perez, et al.; State of New Jersey, Defendant-Intervenors.
CourtU.S. District Court — Southern District of Texas

William Thomas Thompson, Adam Arthur Biggs, Cristina Maria Moreno, Eric Alan Hudson, Philip Trent Peroyea, Ryan L. Bangert, Office of the Attorney General, Michael Christopher Toth, Office of the Texas Attorney General, Special Litigation Division, Todd Lawrence Disher, Lehotsky Keller LLP, Austin, TX, for Plaintiffs State of Texas, State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of West Virginia, State of Kansas.

Adam Arthur Biggs, Cristina Maria Moreno, Philip Trent Peroyea, Office of the Attorney General, Todd Lawrence Disher, Lehotsky Keller LLP, Austin, TX, for Plaintiff Governor Paul R. LePage.

William Thomas Thompson, Adam Arthur Biggs, Eric Alan Hudson, Philip Trent Peroyea, Office of the Attorney General, Todd Lawrence Disher, Lehotsky Keller LLP, Austin, TX, for Plaintiff State of Mississippi.

Paul R. LePage, Pro Se.

Jeffrey S. Robins, Pro Hac Vice, U.S. Department of Justice Office of Immigration Litigation, Aaron Steven Goldsmith, Pro Hac Vice, US Dept. of Justice, James Joseph Walker, U.S. Dept. of Justice, Civil Division, Washington, DC, Daniel David Hu, Office of the US Attorneys Office, Houston, TX, for Defendants United States of America, Kirstjen M. Nielsen.

Jeffrey S. Robins, Pro Hac Vice, U.S. Department of Justice Office of Immigration Litigation, John Coghlan, Aaron Steven Goldsmith, Pro Hac Vice, US Dept. of Justice, James Joseph Walker, U.S. Dept. of Justice, Civil Division, Washington, DC, Daniel David Hu, Office of the US Attorneys Office, Houston, TX, for Defendants Kevin K. McAleenan, Thomas D. Homan, L. Francis Cissna.

Jeffrey S. Robins, Pro Hac Vice, U.S. Department of Justice Office of Immigration Litigation, James Joseph Walker, U.S. Dept. of Justice, Civil Division, Washington, DC, John Coghlan, US Dept. of Justice, Daniel David Hu, Office of the US Attorneys Office, Houston, TX, for Defendant Carla L. Provost.

John Coghlan, US Dept. of Justice, for Defendants Houston Hispanic Chamber of Commerce, Texas Association of Business.

Nina Perales, Ernest I. Herrera, MALDEF, Ramon Andres Soto, Pro Hac Vice, Mexican American Legal Defense & Educational Fund, San Antonio, TX, Carlos Moctezuma Garcia, Garcia & Garcia Attorneys at Law, McAllen, TX, Denise Hulett, Mexican American Legal Defense & Educ. Fund, Sacremento, CA, Douglas H. Hallward-Driemeier, Pro Hac Vice, Ropes & Gray LLP, Washington, DC, for Defendant-Intervenor Karla Perez.

Nina Perales, Ernest I. Herrera, MALDEF, Ramon Andres Soto, Pro Hac Vice, Mexican American Legal Defense & Educational Fund, San Antonio, TX, Carlos Moctezuma Garcia, Garcia & Garcia Attorneys at Law, McAllen, TX, Douglas H. Hallward-Driemeier, Pro Hac Vice, Ropes & Gray LLP, Washington, DC, for Defendant-Intervenors Maria Rocha, Jose Magana-Salgado, Nanci J. Palacios Godinez, Elly Marisol Estrada, Karina Ruiz De Diaz, Carlos Aguilar Gonzalez, Karla Lopez, Darwin Velasquez, Jin Park, Oscar Alvarez, Nancy Adossi, Denise Romero, Angel Silva, Moses Kamau Chege, Hyo-Won Jeon, Elizabeth Diaz, Maria Diaz, Blanca Gonzalez.

Nina Perales, Ernest I. Herrera, MALDEF, San Antonio, TX, Carlos Moctezuma Garcia, Garcia & Garcia Attorneys at Law, McAllen, TX, Douglas H. Hallward-Driemeier, Pro Hac Vice, Ropes & Gray LLP, Washington, DC, for Defendant-Intervenors Luis A. Rafael, Pratishtha Khanna, Jung Woo Kim.

Andrew J. Pincus, Pro Hac Vice, Mayer Brown LLP, Washington, DC, Craig Dashiell, Pro Hac Vice, David Leit, Pro Hac Vice, Gavin J. Rooney, Pro Hac Vice, Lowenstein Sandler LLP, Roseland, NJ, Lauren Goldman, Pro Hac Vice, Mayer Brown LLP, New York, NY, for Defendant-Intervenor Proposed Amici New Jersey Businesses.

Houston Hispanic Chamber of Commerce, Pro Se.

Texas Association of Business, Pro Se.

MEMORANDUM AND ORDER

Andrew S. Hanen, United States District Judge Before the Court are the Motion for Summary Judgment filed by the Plaintiff States1 (Doc. No. 486) and the competing Motion for Summary Judgment filed by the individual Defendant-Intervenors.2 (Doc. No. 503). The Defendant-Intervenors have filed responses in opposition to the Plaintiff States' motion (Doc. Nos. 502, 504) and the Defendants3 have also responded. (Doc. No. 501). The Plaintiff States combined their reply to these responses with their response to the individual Defendant-Intervenors' motion. (Doc. No. 529). The Defendants have also responded to the individual Defendant-Intervenors' motion. (Doc. No. 527). Finally, the Defendant-Intervenors have replied to both of the responses to the individual Defendant-Intervenors' motion. (Doc. Nos. 528, 532).

The Plaintiff States argue in their motion and briefs that the Deferred Action for Childhood Arrivals (DACA) program is illegal because its creation violated, and its continued existence violates, the procedural and substantive aspects of the Administrative Procedure Act (APA). 5 U.S.C. § 500 et seq. The Plaintiff States also claim that the Executive Branch violated the "Take Care Clause"4 of the United States Constitution when it instituted DACA. U.S. CONST. art. II, § 3.

In the individual Defendant-Intervenors' Motion for Summary Judgment, they argue that they are entitled to summary judgment because the Plaintiff States have not carried their burden to establish Article III standing. They emphasize that the Plaintiff States have not introduced evidence sufficient to show that they have suffered any concrete injury or that the remedy they seek would redress any such alleged injury. Defendant-Intervenors also contend that the Plaintiff States have failed to establish parens patriae standing or that they should be afforded special solicitude. Additionally, they claim that there is no actual case or controversy within the meaning of Article III because this case lacks adverseness. For these reasons, Defendant-Intervenors conclude that these threshold issues preclude this Court's review on the merits.

I. Factual Background
A. Creation of DACA

In 2012, after multiple failed attempts by Congress to pass an act granting lawful status to aliens who were illegally brought to this country as children, then-Department of Homeland Security (DHS) Secretary Janet Napolitano announced a new program called DACA. Her instructions were set forth in a three-page memorandum dated June 15, 2012 (the "DACA Memorandum").5 The DACA Memorandum directed immigration enforcement officers not to remove "certain young people who were brought to this country as children" who met specific delineated criteria. For those who qualify, DACA allows them to remain in the country temporarily through a renewable two-year period of "deferred action."6 An illegal alien7 is eligible for DACA if he or she:

• came to the United States under the age of sixteen;
• has continuously resided in the United States for at least five years preceding [June 15, 2012] and is present in the United States on [June 15, 2012];
• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
• is not above the age of thirty.

In turn, having deferred action makes DACA recipients eligible for various benefits. Generally, aliens are not eligible for any "Federal public benefit." 8 U.S.C. § 1611(a). Aliens who are "lawfully present in the United States," however, are eligible to apply for Social Security and Medicare, id. §§ 1611 (b)(2), (3), and a pre-existing regulation defining "lawfully present in the United States" includes "alien currently in deferred action status."8 8 C.F.R. § 1.3(a)(4)(vi).

Additionally, deferred action status makes recipients eligible to apply for work authorization pursuant to a pre-existing regulation, see 8 C.F.R. § 274a.12(c)(14), and the DACA Memorandum instructs U.S. Citizenship and Immigration Services (USCIS) to consider DACA applicants for work authorization. DACA took the further step of requiring its recipients to apply for work authorization. (Doc. No. 9, Ex. 20, USCIS, DACA Toolkit: Resources for Community Partners ). Once a recipient has work authorization, he or she is eligible for a Social Security number, along with its attendant benefits.9 20 C.F.R. §§ 422.104(a)(2), 422.105(a) ; 8 C.F.R. § 1.3(a)(4)(vi). Further, DACA recipients are also eligible for certain state benefits, such as Texas's state-subsidized work-study program. See Tex. Educ. Code § 56.075(a)(1) ; 19 Tex. Admin. Code § 21.24(d)(5).

Despite these benefits, the DACA Memorandum specifically concluded: "This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights." The DACA Memorandum made up to 1.9 million otherwise removable aliens eligible for the program.10 The DACA program started with approximately 152, 431 applications in 2012, then DHS approved 370,521 applicants in 2013 and 158,397 in 2014.11 As of 2018, 814,000 individuals had applied for and received "lawful presence" via DACA. (Doc. No. 225-3, Ex. 73 ¶ 16, Decl. of Dr. D. Massey).

In 2014, the new DHS Secretary, Jeh Johnson, attempted to create a sister program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and to expand the DACA program ("Expanded DACA"). The total population of illegal aliens with lawful presence due to DACA, Expanded DACA, and DAPA could have been 5.8 million12 (or over 50% of the estimated 11.3 million illegal aliens in the country13 )....

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