Texas v. United States (328 F. Supp. 3d 662, 2018)

Andrew S. Hanen, United States District Court Judge

Eight states and two governors are seeking declaratory and injunctive relief and ask this Court to hold that the Deferred Action for Childhood Arrivals ("DACA") program is illegal because its creation and continued existence violate the procedural and substantive aspects of the Administrative Procedure Act ("APA"). 5 U.S.C. § 500 et seq. Plaintiffs also seek relief based on their claim that DACA violates the Take Care Clause of the United States Constitution. U.S. Const. art. II, § 3. This order addresses the States' request for a preliminary injunction.

The Defendants in this matter are the United States, Secretary of the Department of Homeland Security ("DHS") Kirstjen M. Nielsen, Commissioner of the Customs and Border Protection ("CBP") Kevin K. McAleenan, Deputy Director of the United States Immigration and Customs Enforcement Agency ("ICE") Thomas D. Homan, Director of the United States Citizenship and Immigration Services ("USCIS") L. Francis Cissna, and Chief of the United States Border Patrol Carla L. Provost. After the case was filed but before any substantive activity had taken place, twenty-two DACA recipients intervened as Defendants. The State of New Jersey also requested and received permission to intervene as a Defendant. Finally, numerous other groups and entities have asked for and received this Court's permission to act as amicus curiae.

The Plaintiff States have asked this Court to preliminarily enjoin the Government from issuing or renewing any DACA permits in the future. If this relief is granted, and ultimately if this relief becomes permanent, it could have the effect of terminating the DACA program-a result the Defendant-Intervenors vehemently oppose. The Plaintiff States also request a declaratory judgment that DACA is contrary to the standards of the APA, as well as the Take Care Clause of the United States Constitution, findings which, if upheld, would also require the termination of the DACA program.

I. What Is and Is Not Before the Court

The Court is not faced with questions about a duly enacted statute or a duly enacted federal regulation or even an order by the President. DACA was a program instituted pursuant to the orders of then-Secretary of Homeland Security, Janet Napolitano. Those instructions were set forth in a memorandum dated June 15, 2012, and remained in force without amendment until 2014 when her successor, Secretary Jeh Johnson, attempted to create a sister program, Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA"). At that time, Secretary Johnson also attempted to put into place certain expansions of the DACA program ("Expanded DACA"). Both the implementation of the DAPA program and Expanded DACA were enjoined by this Court in 2015. Texas v. United States , 86 F.Supp.3d 591 (S.D. Tex. 2015). This injunction was affirmed by the Fifth Circuit Court of Appeals, Texas v. United States , 809 F.3d 134 (5th Cir. 2015), and then later by a split vote in the Supreme Court of the United States. United States v. Texas , --- U.S. ----, 136 S.Ct. 2271, 195 L.Ed.2d 638 (2016) (this litigation will be referred to as Texas I ).

Upon remand, the parties asked this Court to postpone entering a scheduling order that would have otherwise governed the proceedings to a final conclusion on the merits. Throughout this time, the original 2012 DACA memorandum remained in force. Ultimately, the parties all agreed to dismiss the case:

Plaintiffs' Stipulation of Voluntary Dismissal

On June 15, 2017, the U.S. Department of Homeland Security released a memorandum entitled Rescission of November 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA"). On September 5, 2017, the Department released a memorandum entitled Rescission of the June 15, 2012 Memorandum Entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children." Given these memoranda rescinding the DAPA program and phasing out the DACA and Expanded DACA programs, Plaintiffs file this stipulation of voluntary dismissal. See Fed. R. Civ. P. 41(a)(1)(A)(ii) (allowing plaintiffs to dismiss an action, without court order, by filing a stipulation of dismissal by all parties who have appeared).

Texas I , [Doc No. 473] (emphasis added).

This stipulation of dismissal was signed by the attorneys for the plaintiffs (a group that included all of the Plaintiff States in this case), the United States and the federal government defendants, and the putative DAPA recipients who had intervened. As is evident from its text, the stipulation was clearly based in part upon the Government "phasing out the DACA and Expanded DACA programs." It is also clear that all parties agreed to the stipulation, which otherwise would have required court action. As per its very language, the stipulation was based upon Fed. R. Civ. P. 41(a)(1)(A)(ii), which requires the dismissal to be signed by counsel for all parties who have appeared in order to be effective.

While this Court has no way of knowing the decision-making process exercised by the parties in Texas I , it seems that at least the Plaintiff States here seek the same result they thought they had achieved with the stipulation of dismissal. The Government has attempted to phase out DACA, as it represented to the Plaintiff States it would, but it is prevented from doing so by various orders of other courts around the nation that have enjoined or vacated the attempt to end the program. The Government is thus thrust into the position of a somewhat reluctant warrior- having to defend a program (in order to comply with court orders) that it had agreed to phase out in order to rid itself of the 2014 lawsuit that was pending in this Court. As stated earlier, the Defendant-Intervenors are DACA recipients who wish to prevent the abolition of this program and who have been joined in this effort by the State of New Jersey. They are clearly not reluctant warriors and are squarely pitted against the propositions argued by the Plaintiff States.

A. What Issues Are Before the Court

Thus, this Court is faced with only three primary issues involving the DACA program in the context of a request for a preliminary injunction:

1) Did the creation of DACA, and its continued operation, violate the Take Care Clause of the Constitution?

2) Does the DACA program violate the substantive standards of the APA?

3) Did the manner in which DACA was created violate the procedural requirements of the APA?

While these three primary issues have many elements and ancillary questions that will be addressed, the parties have raised many extraneous issues with their arguments, evidence, and pleadings that will not be discussed.

B. What Issues Are Not Before the Court

Consequently, all other issues, including the following, are not before the Court:

1) This Court is not commenting on or deciding the popularity of or the relative wisdom of Secretary Napolitano's decision to implement the DACA program or the DHS's decision to phase out the DACA program.

2) This order does not and should not be read to suggest or require the DHS or the Department of Justice to prosecute or initiate immigration or deportation proceedings against any individual or group of individuals.

3) This Court is not deciding whether the DACA recipients are ultimately beneficial or detrimental to the well-being of the States, nor is it deciding if they ultimately benefit or burden the States' economies.

4) This opinion does not address, nor should be read as a comment upon, the relative merits of immigration, legal or otherwise, except insofar as it must to decide whether the DACA program itself (and the manner in which it was instituted) is legal.

5) The DACA program was not created as an asylum program, and nothing herein should be read as affecting the rules and laws governing asylum. While there seem to be differences of opinion as to what constitutes an "amnesty" program, nothing herein should be read as favoring or disfavoring the concept of asylum or amnesty.

6) The Court is not called upon to, nor will it, create or substitute its own notion of an immigration policy, as Courts are not the vehicles to enact the legislative policies that control immigration. That is the sole province of Congress.

7) This Court cannot and will not weigh or critique the attributes and qualities of any of the individual DACA recipients, including the Defendant-Intervenors herein. For purposes of this order concerning injunctive relief, the Court accepts as true the testimony and affidavits of the individual Defendant-Intervenors, assumes they are individuals of sound character, and relies in toto on the representations made by their counsel as to each one being a person of good repute.

8) Since the DACA program is one of non-enforcement of the laws enacted by Congress and since it is one allegedly predicated on the Executive Branch's historical right to exercise prosecutorial discretion, this Court may necessarily need to discuss certain aspects of law enforcement. Nevertheless, nothing herein should be interpreted as representing this Court's opinion either in favor of, or in opposition to, the means or methods of law enforcement being utilized by this or any prior administration. Further, nothing in this opinion should be read as ordering law-enforcement officials how to prioritize objectives, deploy individuals, or marshal their resources. It is not within this or any other court's purview to dictate to the Executive Branch what means or methods it should use to enforce the law-as long as the means and methods are legal and the Executive Branch is actually enforcing the law.

II. Factual Background

For many years, Congress has considered granting legal status to the so-called "Dreamers" (typically defined as aliens who came to or were brought to the United States as children). Nevertheless, for whatever reason, Congress has failed or refused to pass any such legislation. In June of 2012, the DHS adopted such a program by means of a memorandum issued by then-Secretary Janet Napolitano. Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children (June 15, 2012) [Doc. No. 5, Ex. 1]. An illegal alien applicant can qualify for the DACA program if he or she:

• came to the United States under the age of sixteen;

• has continuously resided in the United States for at least five years preceding [June 15, 2012] and is present in the United States on [June 15, 2012];

• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

• has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and

• is not above the age of thirty.

Id. Instead of just using its power of prosecutorial discretion not to enforce the national immigration laws as to these qualifying individuals, the DHS, as an integral part of the DACA program, went further and conferred "lawful presence" on them. Not only does DACA effectively exempt its recipients from prosecution and placement into immigration proceedings for a renewable two-year period, but it also makes the recipients eligible for numerous federal and state benefits, despite the INA's general rule that unlawfully present aliens are "not eligible for any Federal public benefit." 8 U.S.C. § 1611(a). For example, unlawfully present aliens would normally be barred from receiving Social Security retirement benefits, Social Security disability benefits, and health insurance under Part A of the Medicare program because these are federal public benefits. DACA, however, by making its recipients lawfully present, removes an otherwise insurmountable roadblock to their receipt of Social Security, Medicare, and other benefits. Id. § 1611 (b)(2)-(4) ; see also Texas I , 809 F.3d at 148-49.

Additionally, DACA not only allows, but requires its recipients to apply for work authorization. [Doc. No. 6, at 5] (instructing USCIS to consider DACA applicants for work authorization); [Doc. No 5, Ex. 20, at 23] (requiring DACA applicants to submit an application for work authorization). Once a recipient has work authorization, he or she can become eligible for a Social Security number, along with its attendant benefits. 20 C.F.R. §§ 422.104(a)(2), 422.105(a) ; 8 C.F.R. § 1.3(a)(4)(vi). Further, DACA recipients are also eligible for certain state benefits, such as a Texas driver's license and access to Texas's state-subsidized work-study program. See Tex. Transp. Code § 521.142(a) ; Tex. Educ. Code § 56.075(a)(1) ; 19 Tex. Admin. Code § 22.128(12) ; id. § 21.24(d)(5).

An estimated population of 1.5 million people -greater than the populations of at least ten states-potentially qualify for these benefits. The Napolitano memorandum, however, specifically concluded by stating that:

This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

Over the years, more than 800,000 individuals have applied for and received "lawful presence" via DACA which, despite the Secretary's statement, is a form of status, as it prevents one from being put into removal proceedings and qualifies an individual for a variety of benefits or privileges under state and federal law. This status and its exact parameters have led to confusion even at the highest levels. For example, during the appeal of Texas I , the following exchange took place during the Supreme Court argument:

Chief Justice John Roberts: Lawfully present does not mean you're legally present?

Solicitor General Verrilli: Correct.

* * *

Justice Samuel Alito: How can you - how can it be lawful to work here but not lawful to be here?

The DACA program started with approximately 152,431 approvals in 2012, 427,616 in 2013, and 238,899 in 2014. In late November of 2014, then-Secretary of DHS, Jeh Johnson, attempted to expand the DACA program and implement a new lawful presence program entitled Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA. Projections varied about the size of the population that would have been eligible under these proposed amendments, but most projections for Expanded DACA and the DAPA program estimated they would give an additional 4.3 million individuals lawful presence. Thus, the possible population of illegal aliens with lawful presence due to DACA, Expanded DACA, and DAPA would have been raised to just under 6 million (or more than 50% of the estimated 11.3 million illegal aliens in the country).

Twenty-six states, including all of the Plaintiff States in this case, filed the Texas I lawsuit to stop the implementation of the DAPA program and the expansion of the DACA program. In Texas I , all parties agreed that DAPA would be run like DACA and that the Court could assume as much for purposes of considering the request for an injunction. After extensive briefing and a full hearing, this Court entered a preliminary injunction based upon the likelihood that the DAPA and Expanded DACA programs should have, at the very least, undergone the notice-and-comment procedures required by the APA.

After the order issued, the Government explained all of its known law-enforcement objectives that to its mind undergirded the creation of the two deferred action programs. In a later hearing, this Court pointed out that the injunction did not enjoin any of those functions. The injunction only prohibited the DHS from giving lawful status (and many other benefits) to millions whom Congress had categorized as illegal. The DHS then explained that the reason they wanted to award lawful presence was not to support any direct law-enforcement goal, but was instead to incentivize aliens to participate in the program. After this Court ruled, the Government chose to appeal in lieu of beginning the notice-and-comment procedures. The Fifth Circuit affirmed this Court's ruling regarding DAPA and Expanded DACA and the procedural APA violation, but it went further and ruled that the programs also violated the substantive requirements of the APA. It stated in pertinent part:

The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States-an untenable position in light of the INA's intricate system of immigration classifications and employment eligibility. Even with "special deference" to the Secretary, the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.

* * *

Moreover, if deferred action meant only nonprosecution, it would not necessarily result in lawful presence. Although prosecutorial discretion is broad, it is not 'unfettered.' Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change. Regardless of whether the Secretary has the authority to offer lawful presence and employment authorization in exchange for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.

* * *

In summary, the states have established a substantial likelihood of success on the merits of their procedural claim.

The Supreme Court not only undertook to review Texas I on both APA grounds, but actually entered an order expanding the appeal:

The petition for a writ of certiorari is granted. In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: "Whether the Guidance violates the Take Care Clause of the Constitution, Art. II § 3."

Ultimately, after the death of Justice Antonin Scalia, which left the Supreme Court with only eight justices, the Court affirmed the Fifth Circuit with a one-sentence opinion, indicating that the eight remaining justices were deadlocked and that the judgment was affirmed by an equally divided Court. Texas I was returned to this Court for a trial on the merits but was ultimately dismissed with all parties signing the stipulation quoted above.

As is evident, the Plaintiff States in Texas I dismissed that case with the understanding that DACA was to be dissolved. The Government's attempt to phase out the program has been blocked by two injunctions from district courts in California and New York. Those injunctions only applied to people already enrolled in the DACA program. In late April, however, a District of Columbia district court indicated that it intended to block the DHS's attempts to rescind any aspect of DACA, which would effectively require the Government to accept even new DACA applications. This order has since been stayed in part, but it seems to have prompted the Plaintiff States to file this action.

III. The Other Recent DACA Decisions Do Not Suggest That This Court Should Refrain From Ruling.

The Defendant-Intervenors moved for dismissal or alternatively asked this Court to defer ruling in this case based upon other ongoing cases that deal with the decision of the DHS to phase out DACA. Their primary argument was that those courts were the first to address the program and that this Court should therefore defer to their rulings as a matter of comity.

This Court denied the request for several reasons. First, this Court need not defer to the rulings in the four cases discussed below because those decisions involve the legality of the DACA rescission memorandum-an issue this Court does not address. Second, the argument's primary premise is incorrect. This Court was the first to address these issues-well before any of the courts in question. This can be seen quite clearly when one reviews the transcript of one of the very first hearings of the earliest case in question, Batalla Vidal v. Trump , 279 F.Supp.3d 401 (E.D.N.Y. 2018). As the following exchange indicates, the main thrust of the September 22, 2016 hearing was based upon this Court's injunction in Texas I :

The Court: ... So, tell me why are you here after my colleague down in the Southern District of Texas, that erudite jurist, has issued nationwide preliminary injunction and you want me to carve out what you might call the Second Circuit exception to that, if you will?

* * *

The Court: That's why you feel you can be here and that the preliminary injunctive relief that was granted in the Southern District of Texas and affirmed by the Fifth Circuit would not reach his situation here in New York? Is that it?

Mr. Bloom: Yes.

* * *

The Court: I understand. I know you have a problem. Understood. But then, again, I have a problem which is the rights of this individual, all right, and whoever else comes along. So I understand that and maybe perhaps I'll decide whatever I decide. Someone will take it up to the Second Circuit and guess what? There might be a circuit split or the circuit will say they agree with the Fifth Circuit or we should give full faith and credit and comity, whatever you want to call it, to the actions of the Fifth Circuit in order to avoid placing the government in an untenable position.

By that time there will be a new president and there will be a new Congress and it may be an issue in the political branches and we may not have anything to do here. I have no idea. But right now the question is the plaintiff has brought this problem to me and, as sympathetic as I am to the government's predicament, the plaintiff has brought the issue to the court and I should be dealing with the issue if I can. Maybe I can't, and we're going to find out if I should. That's all.

So I understand your problem. I sympathize with your problem, but I do not sympathize with the idea that I am hamstrung in dealing with an issue involving individual rights and including the right to go make a living and have a life as an immigrant in the United States. So I don't know what's going on out there in Texas on the border but I know what's going on in New York. And I'm very concerned about it and have absolutely no intention of simply marching behind in the parade that's going on out there in Texas , if this person has rights here.

This exchange is important for multiple reasons. First, it illustrates the point that those cases involved some of the same issues as those involved in Texas I. The first plaintiff in the first case was seeking an order to avoid this Court's injunction. Second, it illustrates that neither comity nor a nationwide injunction prevents a district court from hearing a case. Third, to a casual reader, the New York court's comments may seem off-hand, as the judge was just getting into the case; however, the point the judge was making concerning circuit splits has gained more and more interest among commentators and courts.

Justice Clarence Thomas recently questioned the advisability of a district court entering a nationwide injunction. Trump v. Hawaii , --- U.S. ----, 138 S.Ct. 2392, 2424, --- L.Ed.2d ---- (2018) (Thomas, J., concurring). Similar questions have been raised in the lay press as well. See, e.g. , Jason, L. Riley, When District Judges Try to Run the Country , Wall Street J. (July 18, 2018), at A17. This Court agrees with the overall tenor of both Justice Thomas's concurrence and Mr. Riley's thoughtful opinion piece. Moreover, several recent law review articles have addressed the pros and cons of nationwide injunctions. See Samuel Bray, Multiple Chancellors: Reforming the National Injunction , 131 Harv. L. Rev. 417 (2017) ; Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2) and the Remedial Powers of Lower Courts , 97 B.U. L. Rev. 611 (2017); Zayn Siddique, Nationwide Injunctions , 117 Colum. L. Rev. 2095 (2017) ; Gretzel Burger, Note, Nationwide Injunctions Against the Federal Government: A Structural Approach , 92 N.Y.U. L. Rev. 1068 (2017). Some of these authors have suggested that some of the advantages of nationwide injunctions are uniformity, judicial efficiency, and the ability of a court to award complete relief. They have also suggested that some of the disadvantages include a premature freezing of the law, the weakening of the certiorari process by preventing circuit splits, territorial clashes between courts, plaintiffs filing cases until they find a court that will rule in their favor, and forum shopping. Each of these reasons for and against such an injunction is not without some degree of merit.

Most of those same authors have suggested a variety of remedies such as: limiting relief to the physical limits of the court's jurisdiction, limiting relief to highly significant questions, limiting relief to issues involving questions of general applicability, limiting relief to the circuit in which each court sits, and giving the narrowest relief possible. All of these proposed solutions merit consideration as well.

The problem that a district court encounters is how to craft an order that gives the appropriate relief to the prevailing party, but also makes sense in an immigration context. Interestingly, after noting the recent concern over nationwide injunctions, the New York court eventually entered one. The court encountered some of the same problematic and practical factors this Court faced in Texas I. It wrote:

Nevertheless, the court finds that a nationwide injunction is warranted in these cases. First, it is hard to conceive of how the court would craft a narrower injunction that would adequately protect Plaintiffs' interests. Plaintiffs include not only several individuals and a nonprofit organization, but also sixteen states and the District of Columbia. To protect the State Plaintiffs' interests, the court would presumably need to enjoin Defendants from rescinding the DACA program with respect to the State Plaintiffs' residents and employees, including the employees of any instrumentalities of the state, such as public hospitals, schools, and universities. Such an injunction would be unworkable, partly in light of the simple fact that people move from state to state and job to job, and would likely create administrative problems for Defendants. Furthermore, there is a strong federal interest in the uniformity of federal immigration law. See U.S. Const. art. I, § 8, cl. 4 (empowering Congress to "establish a uniform Rule of Naturalization"); Texas , 809 F.3d at 187-88. Because the decision to rescind the DACA program had a "systemwide impact," the court will preliminarily impose a "systemwide remedy."

Lewis v. Casey , 518 U.S. 343, 359, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (quoting Dayton Bd. of Educ. v. Brinkman , 433 U.S. 406, 420, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977) ).

These are many of the same factors pointed out in Texas I by this Court and the Fifth Circuit. The court in New York could not envision any effective relief narrower than a nationwide injunction in part because it had sixteen states as plaintiffs. Texas I involved twenty-six states from eleven different circuits, so fashioning a circuit-based remedy was, for all practical purposes, impossible. These states ranged from North Dakota to Texas and from North Carolina to Nevada. Limiting an injunction to those twenty-six states or a geographic area was a virtual impossibility when an individual can freely travel. Such an injunction would have been ineffective. The DAPA and Expanded DACA programs would have gone into effect in less than half of the country. Could a DAPA recipient with lawful presence in New York travel to Texas, have an encounter with immigration officers in Texas, and be placed in immigration proceedings because there was an injunction forbidding its rollout in Texas? The court in Batalla Vidal , like this one in Texas I , clearly gave consideration to limiting the relief it awarded, and it too could not conceive of a narrower path to follow:

The court enjoins rescission of the DACA program on a universal or "nationwide" basis. Again, it does not do so lightly. As Defendants correctly note, equitable principles provide that the court should not enter an injunction that is broader than "necessary to provide complete relief to the plaintiffs." (Defs. Opp'n at 50 (quoting Madsen v. Women's Health Ctr., Inc. , 512 U.S. 753, 765, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) ).) See also Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmBH , 843 F.3d 48, 72 (2d Cir. 2016) ("[I]njunctive relief should be no broader than necessary to cure the effects of the harm caused by the violation...." (internal quotation marks and citations omitted) ). Moreover, several academic commentators have insightfully observed various problems with the practice of granting nationwide injunctions against the Government, including that such injunctions thwart the development of law in different courts, encourage forum-shopping, and create the possibility that different courts will issue conflicting nationwide injunctions.

While not referenced in Justice Thomas's Trump v. Hawaii concurrence, the broad grant of standing articulated in Massachusetts v. EPA and its progeny further complicates the national injunction issue, as does the imperative that immigration policy be uniform. Broad grants of standing for states, municipalities, and groups combine with the requirement that immigration policy be uniform, and together they create a perfect storm that results in remedies no one prefers-not judges, not lawyers, not lay people.

The third reason this Court will not defer to the other courts is that it is not entering an order that is contrary to any of the quartet of orders discussed below. While this opinion certainly expresses views contrary to some of those expressed by the other courts, its ruling herein does not leave the parties facing conflicting injunctions.

Finally, there are four decisions concerning the DACA phase out, and they did not reach the same result on the issues they addressed. Their results are inconsistent;

consequently, a different result here certainly would not disrupt any sense of uniformity.

This Court has reviewed each of those opinions carefully and finds none to be controlling. While various aspects of each opinion are informative, none were decided by a court that is bound to follow Fifth Circuit precedent. Additionally, each court worked with records different from the record in Texas I and the record now before this Court. As one would expect given different records, each ultimate ruling could also be different. The Court will briefly recount each case in chronological order of their actual decisions.

The first decision from the quartet was issued in January of this year in Regents of the University of California v. U.S. Department of Homeland Security. 279 F.Supp.3d 1011 (N.D. Cal. 2018). That court was asked whether the decision of the DHS to rescind DACA, as articulated by the September 5, 2017 memorandum of Acting DHS Secretary Elaine C. Duke, was effective. That court held that it was not, as the court found the memorandum's reasoning to be insufficient and flawed, and therefore ineffective. Id. at 1037-43. It further ruled that the additional reasons proffered by Government lawyers were "post hoc rationalizations" and refused to consider them. Id. at 1043-46. While conceding that "at least some of the [Fifth Circuit] majority reasons for holding DAPA illegal would apply [to DACA]," in large part it found a memorandum from the Office of Legal Counsel ("OLC memorandum"), written about DAPA two years after DACA was instituted, to be more persuasive. Regents , 279 F.Supp.3d at 1042. The California court ultimately entered an order enjoining the rescission of any DACA status already granted and any renewals for existing DACA recipients. Id. at 1048-49. It held that new DACA applications need not be processed and that DHS could stop allotting advance parole (which provides an easier pathway to legal status for some DACA recipients). Id.

One month later in the case discussed above, a district court in New York awarded substantially the same relief in Batalla Vidal v. Trump, 279 F.Supp.3d 401 (E.D.N.Y. 2018). The court disagreed with the assertion that DACA might violate the APA, basing its decision on many of the same factors discussed above. Id. at 420-29. While acknowledging that the Fifth Circuit had ruled on DAPA, it did not mention or give any credence to the fact that the Fifth Circuit had also ruled against Expanded DACA and the fact that both DAPA and those amendments were instituted in the same manner as the original DACA program. Id. Ultimately, the Batalla Vidal court concluded that DACA did not conflict with the INA and, like the California court, arrived at that conclusion by citing the OLC memorandum, as well as the briefs filed by the Solicitor General in the Supreme Court and the Fifth Circuit dissent in Texas I. Id. at 426-27,.

Next, a district court in Maryland reached a decision in Casa de Maryland v. U.S. Department of Homeland Security. 284 F.Supp.3d 758 (D. Md. 2018). It ruled that "the decision to rescind DACA was neither arbitrary nor capricious, but rather was a carefully crafted decision supported by the Administrative Record." Id. at 772.

The rescission of a policy relating to prosecutorial discretion does not shock the conscience of this Court. Absent congressional action, the benefits given to Dreamers by DACA were in potential violation of congressional immigration laws; the only thing that has changed is that deferred status will expire, and enforcement of immigration laws may recommence in the absence of action by Congress, which the President has requested. There is nothing surprising or unfair about policies, laws, or enforcement thereof changing with an election cycle. Furthermore, the election process, and not federal litigation, is the appropriate method for resolving any fairness implicated in DACA's rescission

Both the California and New York decisions were cited as authority by the plaintiffs in the Maryland case, but the court rejected their conclusions:

All courts reviewing the DACA rescission would benefit from a prior generation's wisdom regarding the separation of powers: "A sturdy judiciary should not be swayed by the unpleasantness or unpopularity of necessary executive action, but must independently determine for itself whether the President was acting, as required by the Constitution, to 'take Care that the Laws be faithfully executed.' " Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 709, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).

The decisions to date by courts in California and New York are premised on the legal conclusion that DACA is lawful, and therefore, a decision to rescind DACA on the basis of unlawfulness is necessarily arbitrary and capricious. Respectfully, this Court disagrees. Regardless of the lawfulness of DACA, the appropriate inquiry is whether or not DHS made a reasoned decision to rescind DACA based on the Administrative Record. Any alternative inquiry would impermissibly require a court to "substitute its judgment for that of the agency." See Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co ., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed. 2d 443 (1983). Given the fate of DAPA, the legal advice provided by the Attorney General, and the threat of imminent litigation, it was reasonable for DHS to have concluded-right or wrong-that DACA was unlawful and should be wound down in an orderly manner. Therefore its decision to rescind DACA cannot be arbitrary and capricious.

The Maryland court concluded that the Government was free to rescind DACA, but it enjoined the Government from using any information provided by a DACA recipient during the DACA application process against that recipient. Id. at 779.

Finally, a district court in Washington, D.C. ruled in a fourth DACA-rescission case, NAACP v. Trump, 298 F.Supp.3d 209 (D.D.C. 2018). It originally indicated that it would vacate the Government's memorandum rescinding DACA (including all new applications and renewals) but temporarily suspended that ruling to allow a supplementation of the record:

Here, the Department's decision to rescind DACA was predicated primarily on its legal judgment that the program was unlawful. That legal judgment was virtually unexplained, however, and so it cannot support the agency's decision. And although the government suggests that DACA's rescission was also predicated on the Department's assessment of litigation risk, this consideration is insufficiently distinct from the agency's legal judgment to alter the reviewability analysis. It was also arbitrary and capricious in its own right, and thus likewise cannot support the agency's action. For these reasons, DACA's rescission was unlawful and must be set aside.

The court realized the DHS decision was based upon its review of the Fifth Circuit's decision on DAPA and Expanded DACA, but concluded:

The Department's conclusion that DACA was implemented without statutory authority-based only on an incongruous reference to the Fifth Circuit's decision on DAPA-therefore cannot support the program's rescission.

Thereafter, the D.C. court analyzed a subsequent memorandum from DHS Secretary Kirstjen Nielsen and found it equally deficient. NAACP v. Trump , 315 F.Supp.3d 457 (D.D.C. 2018). The court, instead of refusing to consider the memorandum at all, as urged by the plaintiffs, elected to treat part of the June 2018 memorandum as a "further explanation" of the original rescission memorandum. Id. at 464-65. It declined to consider the DHS's claim that DACA encourages more illegal immigration because it appeared "for the first time on remand and is therefore impermissibly post hoc." Id. at 467. It analyzed the remaining portions of the Nielsen memorandum and found that they were "legal determination[s] dressed up as a policy judgment." Id. at 469. It further rejected the Government's concession that the DHS was not using individualized discretion in the implementation of DACA because the court concluded, quite reasonably, that this was a problem that Secretary Nielsen herself could fix. Id.

On the actual merits of the second memorandum, the court found it to be a mere rehashing of the original September 5, 2017 Duke memorandum with no "meaningful elaboration on the Duke Memo's assertion that DACA is unlawful." Id. at 471. Ultimately, the second memorandum provided no convincing rationale to persuade the court to revise its prior conclusion that DACA's rescission was "arbitrary and capricious." Id. at 472-74. The court explained its decision in its closing paragraph:

Finally, a few words about the nature of the relief being granted by this Court. The Court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the Court simply holds that if DHS wishes to rescind the program-or to take any other action, for that matter-it must give a rational explanation for its decision. See 5 U.S.C. § 706(2). A Conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do. The Court therefore reaffirms its conclusion that DACA's rescission was unlawful and must be set aside.

The NAACP court also relied upon the OLC memorandum as authority to dispute the Attorney General's conclusion that DACA might also violate the Constitution. NAACP , at 471-72. The Government has appealed the D.C. court's order vacating the rescission of DACA. In its most recent ruling, the D.C. court stayed its earlier order in part and will not require the Government to accept new initial applications or applications for advance parole during the pendency of the appeal. It ordered that the DHS rescission decision as to current DACA recipients and renewals was vacated. Thus, its current orders effectively match the rulings in California and New York. [Doc. No. 313, Exs. 1-2.]

Overall, there is little to be gleaned from these prior DACA decisions that is applicable to the questions posed in this case. Three courts found the DHS rescission ineffective and enjoined or vacated it, and one found it legal and did not enjoin the rescission but did enjoin any use of DACA recipient information. Only the Casa De Maryland court seemed to give any credence to the fact that the original 2014 challenge to DAPA and Expanded DACA was only dismissed due to the DHS's decision to rescind DACA, which seems at least relevant to the DHS's claim that it considered the litigation risk prior to its decision:

DAPA-an analogous program, promulgated by the analogous means-had been defeated less than a year prior. The litigation that stopped DAPA included expansions of DACA itself. The same plaintiffs who defeated DAPA threatened to challenge DACA imminently. The Attorney General of the United States-the nation's chief legal officer-provided legal advice that DACA was likewise unlawful and likely ill-fated against a legal challenge. All of this is in the Administrative Record-the remnants of the DAPA litigation, the threatened legal challenge, and the Attorney General's advisory letter.

Therefore, what did the Acting Secretary of DHS do? She opted for a six-month wind-down period instead of the chaotic possibility of an immediate termination, which would come at a time known only to the judge resolving a future challenge to the DACA program. This decision took control of a pell-mell situation and provided Congress-the branch of government charged with determining immigration policy-an opportunity to remedy it. Given the reasonable belief that DACA was unlawful, the decision to wind down DACA in an orderly manner was rational.

As stated above, it is important to note that these courts were primarily faced with the issue of the Government's rescission of DACA-not its creation and implementation. Second, one must note that none of these courts are bound by Fifth Circuit precedent. In fact, more than one judge referred to the dissent in the Fifth Circuit's opinion with approval. Obviously, being a court in the Fifth Circuit, this Court cannot adopt and follow a Fifth Circuit dissent. Third, some courts seem to assume that DACA's use of program-wide discretion was sufficient. For example, both of the courts in Regents and Batalla Vidal took issue with the Fifth Circuit's conclusion in Texas I that the APA requires the actual personnel reviewing DACA applications to be the individuals exercising discretion. Those courts felt that the agency exercised its discretion by setting out the criteria in the 2012 memorandum and that "exercise" was all that was necessary. In other words, a "programmatic" exercise of discretion would suffice. See Regents , 279 F.Supp.3d at 1039 ; Batalla Vidal , 279 F.Supp.3d at 424-25 (suggesting that discretion at the agency level, as opposed to the individual officer level, would suffice to exempt DACA from notice and comment).

This Court ruled differently for many reasons, but it will mention three. This approach is contrary to the very essence of prosecutorial discretion. Under that approach, the Secretary could have given lawful presence to every alien unlawfully in the country. Further, that procedure is contrary to the very OLC memorandum upon which those courts rely. That memorandum specifically recounted an oral warning the OLC gave the DHS regarding DACA:

Before DACA was announced , our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant deferred action in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria.

Thus, it advised that an exercise of program-wide discretion by the Secretary was problematic. The record in Texas I compelled this Court's finding that no individual discretion was being exercised by those actually evaluating applications. Consequently, the DHS could find no support from the OLC memorandum. Finally, given the benefits DAPA was to confer, and the binding programmatic protocols issued by the Secretary of the DHS, the conclusion that there must be compliance with the notice-and-comment requirements of the APA was unassailable.

These decisions also gloss over the fact that the Fifth Circuit affirmed an injunction not just against DAPA, but also against Expanded DACA. Finally, all three courts that actually ruled against the DHS's decision to rescind DACA seemed to put heavy reliance on the OLC memorandum. That memorandum did not address the advice given concerning the legality of DACA, except for the footnote quoted above. What was more important for this Court, and no doubt for the Fifth Circuit in Texas I , was the fact that the OLC memorandum did not include an in-depth APA analysis. The decisions enjoining DAPA and Expanded DACA were based on those programs' failure to comply with the requirements of the APA, not on the other legal challenges.

Perhaps the only common thread between all four of these decisions, at least as analyzed by this Court, was aptly expressed by the court in Casa de Maryland :

The result of this case is not one that this Court would choose if it were a member of a different branch of our government. An overwhelming percentage of Americans support protections for "Dreamers," yet it is not the province of the judiciary to provide legislative or executive actions when those entrusted with those responsibilities fail to act. As Justice Gorsuch noted during his confirmation hearing, "a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels."

This Court does not like the outcome of this case, but is constrained by its constitutionally limited role to the result that it has reached. Hopefully, the Congress and the President will finally get their job done.

Although the other courts reached different conclusions, given the tenor of their decisions, this Court feels safe assuming that each would agree with the hope for a legislative fix. Having found that there is no reason to defer to the decisions governing the DHS's rescission of DACA, this Court proceeds to address the merits.

IV. This Case Unquestionably Presents a Case or Controversy.

Separate from the preliminary injunction motion, the Defendant-Intervenors have filed a motion to dismiss this case for lack of subject matter jurisdiction. [Doc. No. 118]. In the motion, they argue that this case does not meet Article Ill's case-or-controversy requirement and is therefore not justiciable. See U.S. Const. art. III, § 2. As Defendant-Intervenors suggest the case should be dismissed without reaching the merits of the preliminary injunction motion, the Court addresses this issue first.

To be justiciable under Article III, a case must present a genuine controversy between adverse parties. See INS v. Chadha , 462 U.S. 919, 939, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). The Defendant-Intervenors argue that this case does not present such a controversy, as the Plaintiff States and the Government "take the same position" regarding DACA's legality and "desire the same result-that it be rescinded." [Doc. No. 188, Ex. 1, at 13]. Even under this framing, however, the Supreme Court's modem pronouncements on the case-and-controversy requirement indicate that this case presents a justiciable controversy.

In United States v. Windsor , 570 U.S. 744, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), the Supreme Court considered whether a justiciable controversy existed where the Executive Branch continued to enforce a statute against an individual despite agreeing with her that the statute was unconstitutional. Edith Windsor and Thea Spyer married as a same-sex couple outside the United States.

Windsor , 570 U.S. at 753, 133 S.Ct. 2675. They lived in New York, which recognized their marriage. Id. After Spyer died and left her estate to Windsor, Windsor paid federal estate taxes on the property she received. Id. Windsor sought a refund of those taxes under the marital exemption from the estate tax, but the Internal Revenue Service denied her the refund because the Defense of Marriage Act ("DOMA") prevented same-sex couples from being considered "spouses" for purposes of the marital exemption. Id. Windsor sued, arguing that DOMA violated the Fifth Amendment's guarantee of equal protection. Id.

During the pendency of the suit, the United States Attorney General notified Congress that the Department of Justice did not intend to defend the constitutionality of DOMA because the President concluded the statute was unconstitutional. Id. Despite that conclusion, the President instructed the Department of Justice to continue enforcing the statute, recognizing "the judiciary as the final arbiter of the constitutional claims raised." Id. at 754, 133 S.Ct. 2675 (citation omitted). The district court ultimately held that Windsor was entitled to a refund because DOMA was unconstitutional, and the Second Circuit affirmed that conclusion. Id. at 754-55, 133 S.Ct. 2675. The United States continued to withhold the tax refund, however, and the Supreme Court granted certiorari to review the judgment. Id. at 755, 133 S.Ct. 2675.

Due to the case's posture, the Supreme Court appointed an amicus curiae to argue against the Court's jurisdiction over the case. The amicus argued that the suit was no longer adverse after the district court had ordered payment and the United States and Windsor agreed on the issue of the illegality of DOMA. Id. at 756, 133 S.Ct. 2675. In that sense, both sides had prevailed in the lower courts. Id. Granting certiorari and ruling on the merits was therefore inappropriate, according to the argument, because neither party actually sought any true redress from the tax-refund judgment. Id.

The Supreme Court, however, took a broader view of adverseness and controversy. Under the majority's reasoning, the United States "retain[ed] a stake sufficient to support Article III jurisdiction":

The judgment in question orders the United States to pay Windsor the refund she seeks. An order directing the Treasury to pay money is "a real and immediate economic injury," Hein , 551 U.S., at 599, 127 S.Ct. 2553, indeed as real and immediate as an order directing an individual to pay a tax. That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States to pay money that it would not disburse but for the court's order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with § 3 of DOMA, which results in Windsor's liability for the tax. Windsor's ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court's ruling.

Thus, the Supreme Court found that even where "the Government largely agree[s] with the opposing party on the merits of the controversy," the Government's intent to enforce the challenged law provided sufficient adverseness to maintain jurisdiction over the suit. Id. at 759, 133 S.Ct. 2675 (quoting Chadha , 462 U.S. at 940 n.12, 103 S.Ct. 2764 ).

The dispute between the Plaintiff States and the Government easily fits within the fact pattern affirmed by Windsor. Though they "largely agree ... on the merits" of DACA's legality, the Government continues to administer the program to comply with the California, New York, and D.C. courts' injunctions/vacatur. The Government's promulgation and continued operation of the DACA program is the alleged source of the Plaintiff States' injuries, which is true regardless of whether the Government agrees with the States on the merits. Due to the fact that the Government continues to operate the DACA program and indicates they will continue to operate it in the future to the detriment of the Plaintiff States, this case presents an Article III controversy between adverse parties under Windsor.

In addition to the jurisdictional requirements discussed above, the Court must also consider the prudence of exercising its jurisdiction here. Windsor, 570 U.S. at 760, 133 S.Ct. 2675. Situations where opposing parties in a lawsuit take the same position on the primary legal issues in the case present a great risk of judicial misstep, as the suit may "lack the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Id. (quoting Baker v. Carr , 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ). Given how the proceedings have unfolded to date, however, that risk does not exist here. The parties have more than ably illuminated the challenging issues upon which this case turns. Though they happen to agree on many of the legal aspects of the DACA program, it is clear that the Government is vigorously guarding its own interests rather than serving in a "friendly, non-adversary" role relative to the Plaintiff States. See, e.g. , [Doc. No. 305, at 4-5] (Government arguing-in contradiction to the Plaintiff States' position-that the DACA memorandum did not modify substantive rights and benefits in a way that would require notice and comment).

Further, the presence of the Defendant-Intervenors and the State of New Jersey-each of which vehemently opposes the legal positions taken by the Plaintiff States-adds additional clarity to the Court's consideration of the issues in this case. The Supreme Court in Windsor noted that one consideration that may assist in determining the appropriateness of exercising jurisdiction is "the extent to which adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor" the legal issues at hand. Windsor , 570 U.S. at 760, 133 S.Ct. 2675. The Defendant-Intervenors surely fill this role-perhaps even better than an amicus as suggested by Windsor -due to their demonstrated, concrete interest in the outcome of the litigation. Even if their participation was considered insufficient for some reason, this Court has also been provided with numerous amicus curiae briefs that buoy their position. Consequently, this case is much more adverse than Windsor.

For these reasons, the Court is assured that this case presents a justiciable, adverse controversy and that there are minimal prudential concerns with its exercise of jurisdiction. The Court turns next to consider whether the Plaintiff States have standing.

V. The Plaintiff States Have Standing.

Article III of the Constitution limits the judicial power of the United States to "Cases" and "Controversies." U.S. Const. art. III, § 2. Though these terms are not self-defining, they have long been understood to confine "the business of the federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Massachusetts v. EPA , 549 U.S. 497, 516, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (quoting Flast v. Cohen , 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) ). Federal courts have deduced certain requirements from the text and structure of the Constitution that ensure they act only within their proper adjudicatory role. Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014). Among those requirements is standing.

Article III standing has three elements. A plaintiff must show that he or she has suffered (1) an injury in fact, (2) that is fairly traceable to the defendant's challenged conduct, (3) which is likely to be redressed by a favorable judicial decision. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An injury in fact must be "concrete, particularized, and actual or imminent." Clapper v. Amnesty Int'l USA , 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013).

Defendant-Intervenors contend that this case should be dismissed for lack of standing. As the parties invoking federal jurisdiction, the States bear the burden of proving standing. Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). At the preliminary injunction stage, satisfying this burden requires the States to make a "clear showing that they have standing to maintain the preliminary injunction." Barber v. Bryant , 860 F.3d 345, 352 (5th Cir. 2017) (citations and internal quotation marks omitted). A single plaintiff with standing satisfies the case-or-controversy requirement of Article III. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. , 547 U.S. 47, 52 n.2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). As the States have centered their standing arguments around DACA's impact in Texas, the Court's analysis focuses on whether Texas has standing to sue.

The States assert multiple independent theories of standing. Additionally, they claim they are entitled to special solicitude when this Court makes its standing determination due to the Supreme Court's decision in Massachusetts v. EPA. This Court first considers whether Texas is entitled to special solicitude in the standing analysis, then considers whether any of the proffered theories support standing.

A. Special Solicitude

The Court first considers whether Texas is entitled to special solicitude. The Supreme Court in Massachusetts did not precisely explain what effect special solicitude has on the standing analysis, but at the very least, it appears to shore up weaknesses presented by attenuated causation and redressability arguments. See Massachusetts , 549 U.S. at 523, 127 S.Ct. 1438 (finding causation and redressability despite the agency's arguments that "its decision not to regulate greenhouse gas emissions ... contribute[d] so insignificantly to petitioners' injuries that [it could not] be haled into federal court to answer for them" and that there was not "any realistic possibility ... that the relief petitioners [sought] would mitigate global climate change and remedy their injuries"). The Fifth Circuit interpreted special solicitude to lessen the certainty needed in the traditional causation and redressability analysis, and this Court must give effect to that interpretation, as it is binding precedent. See Texas I , 809 F.3d at 159 ("In addition to its notion that Texas could avoid injury, the government theorizes that Texas's injury is not fairly traceable to DAPA becaus