Texas v. United States

Texas v. United States

86 F.Supp.3d 591 (S.D.Texas 2015)

ANDREW S. HANEN, District Judge.

This is a case in which twenty-six states or their representatives are seeking injunctive relief against the United States and several officials of the Department of Homeland Security to prevent them from implementing a program entitled “Deferred Action for Parents of Americans and Lawful Permanent Residents”  [...]

On November 20, 2014, Jeh Johnson, in his position as Secretary of the [U.S. Department of Homeland Security] DHS, issued multiple memoranda to Leon Rodriguez, Director of the United States Citizenship and Immigration Services (“USCIS”), Thomas S. Winkowski, Acting Director of the United States Immigration and Customs Enforcement (“ICE”), and R. Gil Kerlikowske, Commissioner of the United States Customs and Border Protection (“CBP”). One of these memoranda contained an order establishing a new program utilizing deferred action to stay deportation proceedings and award certain benefits to approximately four to five million [immigrants...] in the United States. The present case, filed in an attempt to enjoin the rollout and implementation of this program, was initiated by the State of Texas and twenty-five other states or their representatives. Specifically, the States allege that the Secretary’s actions violate the Administrative Procedure Act (“APA”). The States filed this suit against DHS Secretary Johnson [...] 

III. BACKGROUND

On June 15, 2012, DHS Secretary Janet Napolitano issued a memorandum creating the DACA program, which stands for “Deferred Action for Childhood Arrivals.” Specifically, Secretary Napolitano’s memorandum instructed her Department heads to give deferred action status to all [...] immigrants who:

1. Came to the United States before age sixteen;

2. Continuously resided in the United States for at least five years prior to June 15, 2012 and were in the United States on June 15, 2012;

3. Were then attending school, or had graduated from high school, obtained a GED, or were honorably discharged from the military;

4. Had not been convicted of a felony, significant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security; and

5. Were not above the age of thirty. Doc. No. 38, Def. Ex. 19 (June 15, 2012 DACA Memorandum issued by Secretary Napolitano) [...] 

On November 20, 2014, following in his predecessor’s footsteps, Secretary Johnson issued a memorandum to DHS officials instructing them to implement the DAPA program and expand the DACA program in three areas. That memorandum [expands DACA by removing the age cap, extending and expanding renewal and work authorization, and extending deferred action to parents. Doc. No. 1, Pl. Ex. A (November 20, 2014 DAPA Memorandum issued by Secretary Johnson).] 

Deferred action is not a status created or authorized by law or by Congress, nor has its properties been described in any relevant legislative act. Secretary Johnson’s DAPA Memorandum states that deferred action has existed since at least the 1960s, a statement with which no one has taken issue. Throughout the years, deferred action has been both utilized and rescinded by the Executive Branch [...] 

D. Factual Contentions

Secretary Johnson supported the implementation of DAPA with two main justifications. First, he wrote that the DHS has limited resources and it cannot perform all of the duties assigned to it, including locating and removing [immigrants]. Secretary Johnson claimed that the adoption of DAPA will enable the DHS to prioritize its enforcement of the immigration laws and focus its limited resources in areas where they are needed most. Second, the Secretary reasoned that humanitarian concerns also justify the program’s implementation.

Plaintiffs maintain that the Secretary's justifications are conditions caused by the DHS, are pretexts, or are simply inaccurate. Regarding resources, Plaintiffs argue that the DHS has continued to be funded at record levels and is currently spending millions to create the enormous bureaucracy necessary to implement this program. The States additionally maintain that the DAPA program was: politically motivated and implemented illegally. The first proposition is not the concern of the Court; the second is. To support the latter proposition, the States quote President Obama at length. First, they quote the President’s statements made prior to the implementation of DAPA stating that he, as President, did not have the power under the Constitution or the laws of this country to change the immigration laws. On these occasions, he asserted that only Congress could implement these changes in this area of the law. From these statements, the States reason that if the President does not have the necessary power to make these changes, then the DHS Secretary certainly does not [...]

E. Legal Contentions

[The States maintain that Secretary Johnson's DAPA Directive violates the Administrative Procedure Act (“APA”)] The Government claims that the DAPA program is merely general guidance issued to DHS employees, and that the delineated elements of eligibility are not requirements that DHS officials are bound to honor. The Government argues that this flexibility, among other factors, exempts DAPA from the requirements of the APA [...]

The States complain that the implementation of DAPA violates the APA. 5 U.S.C. §§ 501 et seq. Specifically, the States assert that DAPA constitutes a “substantive” or “legislative” rule that was promulgated without the requisite notice and comment process required under Section 553 of the APA. Defendants concede that DAPA was not subjected to the APA’s formal notice-and-comment procedure. Instead, they argue that DAPA is not subject to judicial review and, even if reviewable, is exempt from the APA’s procedural requirements.

i. Judicial Review Under the Administrative Procedure Act

[...] The APA provides an avenue for judicial review of challenges to “agency action.” See 5 U.S.C. §§ 701-706. Under Section 702, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702 [...] 

i. Rulemaking Under the APA [...]

Section 553 of Title 5, United States Code, dictates the formal rulemaking procedures by which an agency must abide when promulgating a rule. Under Section 553(b), “[g]eneral notice of proposed rule making shall be published in the Federal Register.” 5 U.S.C. § 553(b). The required notice must include “(1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.” Id. Upon providing the requisite notice, the agency must give interested parties the opportunity to participate and comment and the right to petition for or against the rule. See id. § 553(c)-(e).

There are two express exceptions to this notice-and-comment requirement, one of which Defendants argue applies in this case. Pursuant to Section 553(b)(3)(A), the APA’s formal rulemaking procedures do not apply to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” On the other hand, if a rule is “substantive,” this exception does not apply, and all notice-and-comment requirements “must be adhered to scrupulously.” Shalala, 56 F.3d at 595. The Fifth Circuit has stressed that the “‘APA’s notice and comment exemptions must be narrowly construed.’”

The APA does not define “general statements of policy” or “substantive rules”; however, the Case law in this area is fairly well-developed and provides helpful guidelines in characterizing a rule. With that said, the analysis substantially relies on the specific facts of a given case and, thus, the results are not always consistent. Here, Plaintiffs’ procedural APA claim turns on whether the DAPA Directive is a substantive rule or a general statement of policy. If it is substantive, it is “unlawful, for it was promulgated without the requisite notice-and-comment.” Id.

This Circuit, following guidelines laid out in various cases by the D.C. Circuit, utilizes two criteria to distinguish substantive rules from nonsubstantive rules:

First, courts have said that, unless a pronouncement acts prospectively, it is a binding norm. Thus ... a statement of policy may not have a present effect: “a ‘general statement of policy’ is one that does not impose any rights and obligations”.... The second criterion is whether a purported policy statement genuinely leaves the agency and its decisionmakers free to exercise discretion.

The court [in Community Nutrition Institute v. Young, 818 F.2d 943 (D.C.Cir. 1987)] further explained that “binding effect, not the timing, ... is the essence of criterion one” In analyzing these criteria, we are to give some deference, “albeit ‘not overwhelming,’” to the agency's characterization of its own rule.

The rule’s effect on agency discretion is the primary determinant in characterizing a rule as substantive or nonsubstantive. For instance, rules that award rights, impose obligations, or have other significant effects on private interests have been found to have a binding effect on agency discretion and are thus considered substantive. A rule, while not binding per se, is still considered substantive if it “severely restricts” agency discretion. Put another way, any rule that “narrowly constrict[s] the discretion of agency officials by largely determining the issue addressed” is substantive. Lastly, a substantive rule is generally characterized as one that “establishes a standard of conduct which has the force of law.”

In sharp contrast to a substantive rule, a general statement of policy does not establish a binding norm, nor is it “finally determinative of the issues or rights to which it is addressed.” Shalala, 56 F.3d at 596. A general statement of policy is best characterized as announcing the agency’s “tentative intentions for the future.” Thus, it cannot be applied or relied upon as law because a statement of policy merely proclaims what an agency seeks to establish as policy [...]

Defendants insist that the Directive is “a policy that ‘supplements and amends ... guidance’ for the use of deferred action.” In their briefings before the Court, Defendants label DAPA “Deferred Action Guidance.” The Court finds Defendants’ labeling disingenuous and, as discussed below, contrary to the substance of DAPA. Although Defendants refer to DAPA as a “guidance” in their briefings and in the DAPA Memorandum, elsewhere, it is given contradictory labels. For instance, on the official website of the DHS, DAPA is referred to as “a new Deferred Action for Parents of Americans and Lawful Permanent Residents program.”

The DHS website does use the term “guidelines” in describing DAPA’s criteria; however, this is only in the context of a “list” of guidelines that candidates must satisfy in order to qualify for DAPA (or the newly expanded DACA). Thus, not only does this usage of the term “guidelines” not refer to the DAPA program itself, but it is also a misnomer because these “guidelines” are in fact requirements to be accepted under these programs [...]

What is perhaps most perplexing about the Defendants’ claim that DAPA is merely “guidance” is the President’s own labeling of the program. In formally announcing DAPA to the nation for the first time, President Obama stated, “I just took an action to change the law.” He then made a “deal” with potential candidates of DAPA: “if you have children who are American citizens ... if you’ve taken responsibility, you’ve registered, undergone a background check, you’re paying taxes, you’ve been here for five years, you’ve got roots in the community—you’re not going to be deported.... If you meet the criteria, you can come out of the shadows....”

While the DHS’ characterization of DAPA is taken into consideration by this Court in its analysis, the “label that the ... agency puts upon its given exercise of administrative power is not ... conclusive; rather, it is what the agency does in fact.” Shalala, 56 F.3d at 596. Thus, the Court turns its attention to the primary focus of its analysis: the substance of DAPA. Nevertheless, the President's description of the DHS Directive is that it changes the law.

(2) Binding Effect

The Fifth Circuit in Shalala propounded as a “touchstone of a substantive rule” the rule’s binding effect. Quoting the Eleventh Circuit, the Shalala Court emphasized:

The key inquiry ... is the extent to which the challenged policy leaves the agency free to exercise its discretion to follow or not to follow that general policy in an individual case, or on the other hand, whether the policy so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule’s criteria. As long as the agency remains free to consider the individual facts in the various cases that arise, then the agency action in question has not established a binding norm.

Despite the DAPA memorandum’s use of phrases such as “case-by-case basis” and “discretion,” it is clear from the record that the only discretion that has been or will be exercised is that already exercised by Secretary Johnson in enacting the DAPA program and establishing the criteria therein. That criteria is binding. At a minimum, the memorandum “severely restricts” any discretion that Defendants argue exists. It ensures that “officers will be provided with specific eligibility criteria for deferred action.” Indeed, the “Operating Procedures” for implementation of DACA contains nearly 150 pages  of specific instructions for granting or denying deferred action to applicants. Denials are recorded in a “check the box” standardized form, for which USCIS personnel are provided templates. Certain denials of DAPA must be sent to a supervisor for approval before issuing the denial. Further, there is no option for granting DAPA to an individual who does not meet each criterion. With that criteria set, from the President down to the individual USCIS employees actually processing the applications, discretion is virtually extinguished.

In stark contrast to a policy statement that "does not impose any rights and obligations" and that "genuinely leaves the agency and its decisionmakers free to exercise discretion," the DAPA Memorandum confers the right to be legally present in the United States and enables its beneficiaries to receive other benefits as laid out above. The Court finds that DAPA’s disclaimer that the “memorandum confers no substantive right, immigration status, or pathway to citizenship” may make these rights revocable, but not less valuable. While DAPA does not provide legal permanent residency, it certainly provides a legal benefit in the form of legal presence (plus all that it entails)—a benefit not otherwise available in immigration laws. The DAPA Memorandum additionally imposes specific, detailed and immediate obligations upon DHS personnel—both in its substantive instructions and in the manner in which those instructions are carried out. Nothing about DAPA “genuinely leaves the agency and its [employees] free to exercise discretion.” In this case, actions speak louder than words [...]

VI. CONCLUSION

This Court, for the reasons discussed above, hereby grants the Plaintiff States' request for a preliminary injunction. It hereby finds that [...] the Defendants have clearly legislated a substantive rule without complying with the procedural requirements under the Administration Procedure Act. The Injunction is contained in a separate order. Nonetheless, for the sake of clarity, this temporary injunction enjoins the implementation of the DAPA program that awards legal presence and additional benefits to the four million or more individuals potentially covered by the DAPA Memorandum and to the three expansions/additions to the DACA program also contained in the same DAPA Memorandum [...]

Epilogue for Texas v. United States

This case set off a chain of events: In November, 2015, the 5th Circuit upheld the District Court’s preliminary injunction blocking the implementation of DAPA. In 2016, the Supreme Court affirmed the Circuit Court decision. In 2017, Secretary of Homeland Security issued a memo formally rescinding DAPA. The decision that we just read (that started this chain of events) is considered erroneous by many administrative law scholars. 

Here is an article by a law professor named Eric Posner explaining why the Hanen Court erred. Posner writes, “If the DHS had said that everyone who satisfied the DAPA criteria must be given deferred-action status, then DAPA would be a rule, and so notice and comment would be required. But DHS told its employees that they should use their discretion when applying the DAPA criteria. The agents were given permission to refrain from granting deferred action to applicants who, for whatever reason, don’t seem to deserve it. DAPA was a policy statement, not a rule. For that reason, as Cass Sunstein explains, Judge Hanen erred… [Judge Hanen] cannot issue a preliminary injunction based on a prediction about how the government will act. He can only wait and allow the DHS to leap into action. If plaintiffs subsequently gather evidence that DHS agents actually do not use discretion but instead apply the DAPA criteria formulaically, only then can they seek an injunction. Hanen, in seeking to restrain the supposedly out-of-control executive branch, exceeded his own authority.”