Preliminary Injunction Against DAPA – USDC SD TX

Some excerpts from the 123 bloody paged opinion:
This case examines complex issues relating to immigration which necessarily involve questions of federalism, separation of powers, and the ability and advisability, if any, of the Judiciary to hear and resolve such a dispute.

Regardless of the fact that the Executive Branch has made public statements to the contrary, there are no executive orders or other presidential proclamations or communique that exist regarding DAPA. The DAPA Memorandum issued by Secretary Johnson is the focus in this suit.

Secretary Johnson supported the implementation of DAPA with two main justifications.  …limited resources …humanitarian concerns.

As Defendants concede, a direct and genuine injury to a State?s own proprietary interests may give rise to standing. Doc. No. 38 at 23; see also, e. g, Clinton v. City of N. Y., 524 US. 417, 430-31 (1998) (negative effects on the borrowing power, financial strength, and fiscal planning of a government entity are sufficient injuries to establish standing); Sch. Dist. of City of Pontiac, 584 F.3d 253, 261 (6th Cir. 2009) (school districts had standing based on their allegation that they must spend state and local funds to comply with federal law). Defendants in this case argue, however, that the projected costs to Plaintiffs drivers license programs are self-inflicted because the DHS Directive does not directly require states to provide any state benefits to deferred action recipients, and because states can adjust their benefit programs to avoid incurring these costs. Doc. No. 38 at 21-22. This assertion,
however, evaluates the DHS Directive in a vacuum. Further, this claim is, at best, disingenuous.  Although the terms of DAPA do not compel states to provide any benefits to deferred action recipients, it is clear that the DHS Directive will nonetheless affect state programs. Specifically,
in the wake of the Ninth Circuit’s decision in Arizona Dream Act Coalition v. Brewer, it is apparent that the federal government will compel compliance by all states regarding the issuance of drivers licenses to recipients of deferred action. 757 F.3d 1053 (9th Cir. 2014).

Also, it is not a defense to the Plaintiffs’ assertion of standing to argue that it is not the DAPA program causing the harm, but rather the Justice Department’s enforcement of the program.

…standing under Massachusetts v. E.P.A….

If the Court were to grant the requested relief, it would not change the presence of these individuals in this country, nor would it relieve the States of their obligations to pay for any associated costs. Thus, an injunction against DAPA would not redress the damages described above.

Three important factors separate those cases from the present one…Because of this announced policy of non-enforcement, the Plaintiffs’ claims are completely different from those based on mere ineffective enforcement. This
is abdication by any meaningful measure…Conversely, in the present case, Texas has shown that it will suffer millions of dollars in direct damages caused by the implementation of DAPA…Finally, … the above-cited cases pre-date the REAL ID Act of 2005.

To establish the second element necessary for abdication standing, the States assert that the Government has abandoned its duty to enforce the law. This assertion cannot be disputed…standing under a theory of abdication requires only that the Government declines to enforce the law. Here, it has.

… it is clear that Plaintiffs satisfy the standing requirements as prescribed by the APA.

Having concluded that at least one Plaintiff, the State of Texas, has standing, the Court now addresses the merits of the States’ claims regarding the DAPA program.

Absent abdication, decisions to not take enforcement action are rarely reviewable under the APA.

As there is no statute that authorizes the DHS to implement the DAPA program, there is certainly no statute that precludes judicial review under Section 701(a).

the Court finds that, in this case, to the extent that the DAPA Directive can be characterized as “non~enforcement”, it is actually affirmative action rather than inaction.  …the very statutes under which Defendants claim discretionary authority actually compel the opposite result. In particular, detailed and mandatory commands within the INA provisions applicable to Defendants’ action in this case circumscribe discretion.
After 123 pages of discussing “standing” under 3 theories and reviewability under APA, the trial court granted the Preliminary Injunction.
I do wonder about the discretion – abdication distinction.  I also wonder if a “non-enforcement” directive so sweeping and so rigidly constructed can avoid the strictures of APA.  I initially thought that DAPA and DACA before it were within the limits of executive authority and I still do as a constitutional matter, in a vacuum,  but as an Administrative Procedure Act violation, I can see this as an overreach based on the facts as recited in the Opinion.  Scott has pointed to the theory of abdication without calling it that, and I had not realized how iron bound the denial of individual discretion in DAPA was until I read all the footnotes in this case.  JNC – if you wade through the 123 pages I think you will be struck by the court’s stream of consciousness attempt to address the matter[s].

Be kind, show respect, and all will be right with the world.

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