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].

Bits & Pieces – Columbus Day Open Thread

Gov. Jerry Brown of CA has signed California’s own version of the Dream Act. It’s odd to compare this with what they’re doing in Alabama. I saw a photo of a sign in front of a local water department in AL over the weekend that said you could no longer have an account with the city for water without a picture ID.

Declaring the need to expand educational opportunity, Gov. Jerry Brown announced Saturday that he has signed legislation making illegal immigrants eligible to receive state financial aid to attend California universities and community colleges.

Brown said he signed the California Dream Act because it makes sense to allow high-achieving students access to college financial aid.

“Going to college is a dream that promises intellectual excitement and creative thinking,” Brown said in a statement. “The Dream Act benefits us all by giving top students a chance to improve their lives and the lives of all of us.”


I’ve been reading lots of negatives regarding the possibility of the Super Committee actually accomplishing much. Considering Obama’s Jobs Bill appears dead in the water and the Super Committee has pretty low expectations along with the debt ceiling battle, these guys are beginning to get a little worried.

This is from Gates, the other two are Bernanke and Geithner.

“I do believe that we are now in uncharted waters when it comes to the dysfunction in our political system–and it is no longer a joking matter,” former Defense Secretary Robert Gates told an audience two weeks ago at the Constitution Center in Philadelphia, where he received the Liberty Medal for national service. “It appears that as a result of several long-building, polarizing trends in American politics and culture, we have lost the ability to execute even the basic functions of government much less solve the most difficult and divisive problems facing the country. Thus, I am more concerned than I have ever been about the state of American governance.”


And I couldn’t resist another OWS link

As Gregory Djerejian writes, this was inevitable. A seemingly endless recession sparked by a financial meltdown was bound to create a backlash, one way or another. The President famously said in a meeting with 13 Bankers that he was the only thing standing between them and the pitchforks. He cannot hold them back any longer. Djerejian sums up the national mood:

“Speaking to several of these protesters today, I met MBA students who cannot find jobs (one even told me his GPA at business school, a respectable 3.2) and law students in a similar predicament. As money gets wasted in epic fashion overseas for desperately flawed ‘provincial reconstruction teams’ in Iraq and risible ‘Government-in-a-Box’ initiatives in Afghanistan, these kids are staring at mountains of debt and an equally daunting lack of viable employment prospects (the MBA student was underemployed working as a barista at Starbucks). So there are intelligent faces and voices in these crowds—not just aimless rabble-rousers out for a rise—and I can sense this movement becoming more contagious (for instance, I detected among several of the more junior police officers perhaps some degree of sympathy for the protesters). To some extent, after all, these are our young screaming out in need, meriting not kettling and reprimands, but job prospects and dignity […] They want accountability and dignity and prospects. Their leaders have failed them. So they have taken to the street to lead themselves.”

Former State Department official Anne-Marie Slaughter actually had some good thoughts as well. Whether the Democrats can get fuel from this movement or whether they become terrified of it, what is happening around the country is ultimately a statement of hope from a disaffected group of people who want to build something and will not let the constraints of politics or big money get in the way.


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