Case: 15-40238

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Date Filed: 03/26/2015

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,

No. 15-40238

Plaintiffs - Appellees
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

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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 drivers 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 governments 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 Nations 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 courts holding that unreimbursed costs
to Texas associated with issuing drivers licenses are an Article III injury. But they fail
to establish that the Guidancewhich establishes criteria for federal officials considering
whether to exercise enforcement discretionrequires 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
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to subsidize drivers 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 drivers licenses
to aliens accorded deferred action is based on a misunderstanding of the Ninth
Circuits holding in Arizona DREAM Act Coalition v. Brewer (ADAC), 757 3d 1053
(9th Cir. 2014). ADAC did not hold that States must grant drivers 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 300376, 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 drivers 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 drivers 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 drivers
licenses. By plaintiffs own reckoning, only two more of the twenty-six plaintiff States
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(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 drivers licenses, the
district courts 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. 11-12. 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 Intl
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, 379-80 (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,
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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 Courts 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 States] 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, 485-86 (1923). Contrary to plaintiffs 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
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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. Profls & 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
DHSs 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, Profls &
Patients, 56 F.3d at 596-97 (emphasis added). Agency heads issue countless directions
to their subordinates about how to carry out their tasks; agencies could not function
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any other way. The fact that subordinates must carry out their duties according to
their employers 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 DHSs 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 Guidances 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, 193-94, 209-210 (D.D.C.
2014) (appeal pending) (discussing case-by-case review under DAPA). See Mot. 16.
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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. 43480 (1979); 45 Fed. Reg. 19563 (1980); 46 Fed. Reg. 25079 (1981); 46
Fed. Reg. 25081 (1981) (adding 8 C.F.R. 101.9(b)(6)). The courts have no authority to
require an additional round of notice-and-comment rulemaking. See Perez v. Mortgage
Bankers Assn, 135 S. Ct. 1199, 1206-1207 (2015).

See USCIS Frequently Asked Questions for DACA Requestors, FAQ 27 (http://www.uscis.gov/
humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions).
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Finally, federal law places limits on an aliens 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 Nations
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
countrys earliest immigration statutes. 8 U.S.C. 1601. 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
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the part of States over the Nations 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, 359-60 (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 drivers licenses to aliens
accorded deferred action. Although Indiana and Wisconsin claimed that they too
would incur costs in issuing drivers 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 drivers 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 drivers license
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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 governments deferred action policies, and
when another district court (Arpaio) has rejected a similar challenge.
Plaintiffs cite Natl Mining Assn 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. Harmons 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 1409-10. 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
courts 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.
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Respectfully submitted,
BENJAMIN C. MIZER
Acting Assistant Attorney General
BETH S. BRINKMANN
Deputy Assistant Attorney General
/s/ Scott R. McIntosh
SCOTT R. McINTOSH
Scott.McIntosh@usdoj.gov
(202) 514-4042
JEFFREY CLAIR
Jeffrey.Clair@usdoj.gov
(202) 514-4028
WILLIAM E. HAVEMANN
William.E.Havemann@usdoj.gov
(202) 514-8877
Attorneys, Civil Division
Room 7243, Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

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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, 2015. 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