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Texas v. United States (5th Cir.)

Texas v. United States was a federal court challenge to President Obama’s 2014 executive action on immigration.  On November 20, 2014, the Secretary of the Department of Homeland Security (DHS) issued directives that both identified longstanding immigration enforcement priorities and directed federal officials to exercise their discretion on a case-by-case basis to defer removal of certain parents of U.S. citizens or lawful permanent residents in order to remain consistent with those priorities in light of limited enforcement resources.  Twenty-two states, four governors, and the Nevada Attorney General challenged the directives, collectively known as “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA), in the U.S. District Court for the Southern District of Texas.  They argued that DAPA amounts to a failure to enforce the nation’s immigration laws and violates the Constitution’s Take Care Clause as well as the requirement of the Administrative Procedure Act for notice-and-comment rulemaking.  District Judge Andrew Hanen agreed with the State parties that the directives violate the requirement for notice-and-comment rulemaking and issued an injunction temporarily enjoining DHS from implementing DAPA.  The United States appealed to the U.S. Court of Appeals for the Fifth Circuit and also filed a motion to stay the district court’s decision pending appeal.

On April 13, 2015, CAC filed a friend of the court brief in the Fifth Circuit on behalf of a bipartisan group of former members of Congress, urging the court of appeals to lift the injunction and allow DAPA to proceed.  The brief argued that amici, as former members of Congress, recognize that the DHS directives at issue reflect priorities that were developed by Administrations representing both political parties and have been consistently endorsed by Congress on a bipartisan basis.  They also know that Congress has delegated significant discretion to the President to enforce the nation’s immigration laws and that these DHS directives do not change current immigration law but instead implement existing laws over which the President has discretion.  Additionally, the DHS directives create no new legal rights and act as a “general policy” of enforcement priority and criteria for the exercise of case-by-case discretion, for which the Administrative Procedure Act does not require notice-and-comment rulemaking.

On May 26, 2015, following an unusual oral argument session on the issue on April 17, the Fifth Circuit, by a 2-1 vote, denied the government’s motion to stay the district court’s decision pending appeal.  The Fifth Circuit’s ruling, which meant that implementation of DAPA continued to be blocked, misunderstood the President’s immigration initiative and the role of the President in enforcing the nation’s immigration laws.  The Fifth Circuit heard oral argument on the merits of the case on July 10, 2015.

On November 9, 2015, the Fifth Circuit, again in a 2-1 decision, affirmed the district court order granting a preliminary injunction.  According to the majority (notably, the same two judges who denied the government’s earlier stay motion), there is a substantial likelihood that the plaintiffs will prevail on the merits of their procedural and substantive Administrative Procedure Act claims, and the potential injury caused by allowing implementation of DAPA outweighs the potential injury caused by blocking implementation.  This decision also misunderstood the President’s immigration initiative and the role of the President in enforcing the nation’s immigration laws.  The Administration appealed the Fifth Circuit’s decision, petitioning the Supreme Court for a writ of certiorari on November 20, 2015. For information on proceedings in the Supreme Court, please see our page on United States v. Texas.