IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Transcription

1 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; PAUL R. LEPAGE, Governor, State of Maine; PATRICK L. MCCRORY, Governor, State of North Carolina; C. L. "BUTCH" OTTER, Governor, State of Idaho; PHIL BRYANT, Governor, State of Mississippi; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF FLORIDA; STATE OF ARIZONA; STATE OF ARKANSAS; ATTORNEY GENERAL BILL SCHUETTE; STATE OF NEVADA; STATE OF TENNESSEE, Plaintiffs - Appellees No v. UNITED STATES OF AMERICA; JEH CHARLES JOHNSON, SECRETARY, DEPARTMENT OF HOMELAND SECURITY; R. GIL KERLIKOWSKE, Commissioner of U.S. Customs and Border Protection; RONALD D. VITIELLO, Deputy Chief of U.S. Border Patrol, U.S. Customs and Border of Protection; SARAH R. SALDANA, Director of U.S. Immigration and Customs Enforcement; LEON RODRIGUEZ, Director of U.S. Citizenship and Immigration Services, Defendants Appellants APPELLANTS REPLY TO OPPOSITION TO EMERGENCY MOTION FOR STAY PENDING APPEAL

2 1. Plaintiffs Lack Standing. Plaintiffs have no chance of success because they lack standing, and the preliminary injunction thus should be stayed pending appeal. The district court relied on an abdication standing theory and on the cost of issuing driver s licenses. Plaintiffs make no attempt to defend the first of these standing theories and, by plaintiffs own account, no more than three of the twentysix plaintiff States have attempted to make the factual showing required by the second theory. That theory has no merit, and even if it did, an asserted injury to three States could not provide a basis for enjoining the federal government s implementation of the 2014 Guidance in all fifty States, many of which support implementation. A. The district court held that plaintiffs could establish Article III standing by showing that the federal government has abdicated its responsibilities for enforcing the Nation s immigration laws. Plaintiffs do not defend their standing on that theory, and instead only mention it briefly. See Opp. 9 n.21. Because the theory impermissibly dispenses with the basic Article III requirement of concrete and cognizable injury, it is not a defensible basis for standing. B. Instead, plaintiffs rely on the district court s holding that unreimbursed costs to Texas associated with issuing driver s licenses are an Article III injury. But they fail to establish that the Guidance which establishes criteria for federal officials considering whether to exercise enforcement discretion requires a State to issue licenses to aliens accorded deferred action. Nor do plaintiffs claim that the Guidance requires them to subsidize the costs of licenses rather than passing them on to drivers. States are free 1

3 to subsidize driver s licenses for aliens accorded deferred action, but they cannot establish standing by claiming that the federal government caused that subsidy. Plaintiffs argument that federal law obligates a State to provide driver s licenses to aliens accorded deferred action is based on a misunderstanding of the Ninth Circuit s holding in Arizona DREAM Act Coalition v. Brewer ( ADAC ), 757 3d 1053 (9th Cir. 2014). ADAC did not hold that States must grant driver s licenses to all aliens with deferred action. Rather, ADAC held only that Arizona may not deny licenses to similarly situated individuals without a rational basis for the distinction. ADAC, 2015 WL , at *9 (D. Ariz. Jan. 22, 2015). A State suffers no cognizable injury from the application of federal law by complying with a constitutional mandate to issue licenses rationally under state law. Nor do federal preemption principles require a State to issue driver s licenses to aliens accorded deferred action. The Arizona law was preempted only because it accepted federal employment authorization documents as proof of authorized presence for certain aliens but not for other similarly situated aliens, see ADAC, 757 F.3d at 1067, thus conflicting with the rule that States enjoy no power with respect to the classification of aliens. Plyler v. Doe, 457 U.S. 202, 225 (1982). Even if federal law did preempt a state law barring issuance of driver s licenses to aliens accorded deferred action, and even if that were a sufficient basis for standing, the district court only made a finding that one plaintiff (Texas) subsidizes driver s licenses. By plaintiffs own reckoning, only two more of the twenty-six plaintiff States 2

4 (Wisconsin and Indiana) offered evidence that they will incur similar costs. See Opp. 7 n.14. None of those States is in the Ninth Circuit and thus covered by ADAC. The plaintiff States in the Ninth Circuit have not attempted to show that they will incur unreimbursed costs for licenses issued to aliens accorded deferred action. Thus, regardless of how ADAC is read, it does not force any plaintiff to bear such costs. Moreover, even in a State that has chosen to subsidize driver s licenses, the district court s standing theory fails because it disregards the substantial financial benefits that the States will gain from the implementation of the Guidance, such as increased tax revenues. See Mot Plaintiffs assert that it is speculation whether the benefits will outweigh the costs. Opp. at 9. But it is the plaintiffs burden under Article III to show a non-speculative injury. See Clapper v. Amnesty Int l USA, 133 S. Ct. 1138, 1148 (2013). Plaintiffs also insist that a concrete injury cannot be offset by some separate benefit for standing purposes. Opp. at 9. That assertion would allow a plaintiff to create an Article III injury by cherry-picking the costs of a program while ignoring its benefits, and this Court has squarely rejected that view. See Henderson v. Stalder, 287 F.3d 374, (5th Cir. 2002) (use of plaintiffs tax dollars to produce a license plate is insufficient to confer standing because motorists who choose the plate pay fees that offset the administrative costs of the plates). C. Finally, the plaintiffs resort to two standing theories that the district court rejected. The district court correctly dismissed as speculative and not legally persuasive (Op. 53) the plaintiffs claim that they will incur added medical, 3

5 educational, and law-enforcement costs due to the Guidance. There is no reason to believe that the Guidance will cause an increase in these costs, since it applies only to aliens already present in this country for several years. Moreover, as the district court noted, any such costs may be offset by the productivity of the DAPA recipients and the benefits states will reap by virtue of these individuals working, paying taxes, and contributing to the community. Id. at 54. And this Court s decision in Texas v. United States, 106 F.3d 661, 666 (5th Cir. 1997), squarely holds that costs associated with providing educational, medical, and penal services to unlawful aliens are attributable to States laws and their constitutional duties rather than to federal law. The plaintiffs parens patriae standing theory is equally misconceived. The Supreme Court has repeatedly emphasized that a State does not have standing as parens patriae to bring an action against the Federal Government on behalf of its citizens. Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982). [I]t is no part of [a State s] duty or power to enforce [its citizens ] rights in respect of their relations with the federal government, because it is the United States, and not the state, which represents [its citizens] as parens patriae. Massachusetts v. Mellon, 262 U.S. 447, (1923). Contrary to plaintiff s suggestion, Massachusetts v. EPA, 549 U.S. 497 (2007), did not hold that States may assert a parens patriae theory against the government as long as they seek the protection of federal law. Opp. at 10 n.22. Instead, it relied on the uncontroversial principle that a State may bring suit to assert its own rights under federal law. 549 U.S. 520 n.17. Moreover, even taken 4

6 on its own terms, plaintiffs parens patriae theory rests on the assumption that employers will discriminate against U.S. citizens who are receiving tax credits under the Affordable Care Act in favor of undocumented aliens who are not eligible for them. Such discrimination is illegal, see 29 U.S.C. 218c; 8 U.S.C. 1324b(a), and courts refuse to presume illegal activities on the part of actors not before the court to find standing. Tel. and Data Sys., Inc. v. FCC, 19 F.3d 42, 48 (D.C. Cir. 1994). 2. Even Assuming Standing, The Government Would Be Likely To Succeed On The Merits. Only substantive rules are subject to notice-andcomment rulemaking under the APA, and the touchstone of a substantive rule is that it establishes a binding norm. Prof ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 596 (5th Cir. 1995). A statement of policy, in contrast, advise[s] the public prospectively of the manner in which the agency proposes to exercise a discretionary power. Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (internal quotations omitted). That is precisely what the 2014 Guidance does, and Lincoln therefore controls. Ignoring Lincoln, plaintiffs argue that the Guidance is a substantive rule because DHS s immigration officers must abide by its terms. The key inquiry is not, however, whether agency superiors are directing subordinate officials in the conduct of their duties, but rather the extent to which the challenged policy leaves the agency free to exercise its discretion to follow or not follow that general policy, Prof ls & Patients, 56 F.3d at (emphasis added). Agency heads issue countless directions to their subordinates about how to carry out their tasks; agencies could not function 5

7 any other way. The fact that subordinates must carry out their duties according to their employer s instructions does not subject this universe of internal directives to notice and comment rulemaking. Rather, the courts have long recognized that agency instructions to agency officers are not legislative rules. U.S. Dept. of Labor v. Kast, 744 F.2d 1145, 1152 n.13 (5th Cir. 1984) (collecting cases). Contrary to plaintiffs contentions, the Guidance does not impose binding limits on DHS s own discretion to remove aliens from the United States. The Guidance does not require that deferred action be accorded to an alien who meets the guidelines, nor does it prevent an alien who does not meet the guidelines from seeking deferred action. And the Secretary has the authority to change the policy. The Guidance explicitly states that the guidelines do not establish substantive rights or obligations, and that they create no entitlement to deferred action relief, even if an alien otherwise satisfies the Guidance s guidelines. See Stay Attach. 3 at 2, 5. There is no basis in the record for plaintiffs speculation that DHS does not mean what it says. Neither DAPA nor the revised DACA eligibility criteria have been put into effect, and there is thus no record of contrary administrative practice under the 2014 Guidance. As for plaintiffs suggestion that the high rate of deferred action approvals under the 2012 DACA guidelines disproves that enforcement discretion exists under the 2014 guidelines, that suggestion is unfounded, including for the reasons set forth in Arpaio v. Obama, 27 F. Supp. 3d 185, , (D.D.C. 2014) (appeal pending) (discussing case-by-case review under DAPA). See Mot

8 Plaintiff also err in arguing that the 2014 Guidance is a substantive rule because aliens accorded deferred action are entitled to a variety of federal and state benefits. To begin, deferred action does not give an alien a legal right to remain in the United States. DHS may revoke or terminate deferred action at any time, for any reason. 1 If DHS chooses to seek the removal of an alien accorded deferred action, the fact that the agency previously chose not to seek removal provides the alien with no legal defense to removal and no additional procedural rights. Indeed, this exercise of enforcement discretion is unreviewable. See 8 U.S.C. ' 1252(g). Nor does the Guidance establish a new substantive rule that provides work permits to aliens accorded deferred action. Aliens who are accorded deferred action may be authorized to work if they establish an economic necessity for employment. But as explained in the stay motion, all aliens accorded deferred action are eligible to apply for work authorization by virtue of a 1981 regulation that went through extended public comment prior to its adoption, in full compliance with the APA. See 44 Fed. Reg (1979); 45 Fed. Reg (1980); 46 Fed. Reg (1981); 46 Fed. Reg (1981) (adding 8 C.F.R (b)(6)). The courts have no authority to require an additional round of notice-and-comment rulemaking. See Perez v. Mortgage Bankers Ass n, 135 S. Ct. 1199, (2015). 1 See USCIS Frequently Asked Questions for DACA Requestors, FAQ 27 ( humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions). 7

9 Finally, federal law places limits on an alien s receipt of public benefits, and the Guidance does not alter those limits. Except for certain emergency services, aliens who are not lawfully present in the United States are, by statute, ineligible for most federal public benefits. See 8 U.S.C. 1611(c), 1641(b). Federal immigration law also specifies that they are not eligible for various state or local government benefits unless a State enacts a law specifically providing for their eligibility. 8 U.S.C. 1621; see Florida Bd. of Bar Examiners re: Question as to Whether Undocumented Immigrants are Eligible for Admission to the Florida Bar, 134 So. 3d 432, 437 (Fla. 2014). Congress has explained that these statutory provisions reflect a national policy that aliens within the Nation s borders not depend on public resources to meet their needs, and that [s]elfsufficiency has been a basic principle of United States immigration law since this country s earliest immigration statutes. 8 U.S.C Work authorization is consistent with these provisions because it does not give anyone a right to a job and, far from consuming public resources, may help such aliens provide for themselves. 3. The Balance of Harms And Public Interest Require A Stay. Contrary to the plaintiffs repeated claim, the preliminary injunction does not preserve the status quo. The injunction halted the ongoing preparation and anticipated implementation of a critically important, nationwide immigration policy designed to focus DHS removal resources on those aliens who threaten public safety, border security, and national security. The district court thus impinged on a core federal prerogative, at the behest of various States, notwithstanding the lack of authority on 8

10 the part of States over the Nation s immigration policy and plaintiffs lack of standing to bring this suit. This intrusion on separation-of-powers and federalism principles causes the government an ongoing constitutional injury. Moreover, the injunction sets back substantial preparatory work that DHS was undertaking, and threatens ultimate implementation of the policy. Plaintiffs, by contrast, suffer no cognizable injury as a result of the enjoined policy, and indeed will benefit from it in numerous respects. 4. There Is No Basis for a Nationwide Preliminary Injunction. The settled rule is that an injunction should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs. Califano v. Yamasaki, 442 U.S. 682, 702 (1979); accord Lewis v. Casey, 518 U.S. 343, (1996) (system-wide relief is appropriate only upon showing of system-wide injury). Even if injunctive relief were warranted, a nationwide preliminary injunction is far broader than necessary to protect Texas from the putative cost of issuing driver s licenses to aliens accorded deferred action. Although Indiana and Wisconsin claimed that they too would incur costs in issuing driver s licenses to aliens accorded deferred action, the district court made no such finding. And none of the other plaintiff States even attempted to make such a showing. Because the district court only found Texas to incur financial injury from issuing driver s licenses, the injunction should be stayed with respect to all aliens who do not reside in Texas, or at the very least, to all aliens who reside in non-plaintiff States. The hypothetical possibility that an alien accorded deferred action in another State might move to Texas and apply for a driver s license 9

11 does not justify barring implementation in all fifty States to accommodate one particularly when doing so tramples on the interests of more than a dozen non-party States that actively support the federal government s deferred action policies, and when another district court (Arpaio) has rejected a similar challenge. Plaintiffs cite Nat l Mining Ass n v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998) and Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989), for the proposition that a single district court must issue nationwide relief whenever it determines that a regulation is facially invalid. Harmon s discussion of the permissible scope of relief is dicta (see 878 F.2d at 496 n.23), however, and National Mining is readily distinguishable. It involved a suit by trade association plaintiffs representing many of the regulated parties, a final (rather than preliminary) determination that the challenged regulation was invalid, and the special considerations applicable to decisions in the D.C. Circuit, where any aggrieved person could bring suit to obtain the benefit of a prior circuit decision against the agency. See id. at None of these considerations applies here. A nationwide injunction preventing implementation by federal officials of immigration policies is not sustainable based on a single district court s finding of standing for a single plaintiff State. CONCLUSION For the foregoing reasons, the preliminary injunction should be stayed in its entirety or, at a minimum, with respect to implementation of the Guidance in: (1) States that are not parties to this suit; and (2) plaintiff States other than Texas. 10

12 Respectfully submitted, BENJAMIN C. MIZER Acting Assistant Attorney General BETH S. BRINKMANN Deputy Assistant Attorney General /s/ Scott R. McIntosh SCOTT R. McINTOSH (202) JEFFREY CLAIR (202) WILLIAM E. HAVEMANN (202) Attorneys, Civil Division Room 7243, Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C

13 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system on March 26, I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. /s/ William E. Havemann WILLIAM E. HAVEMANN Attorney, Civil Division