State of Texas v. Biden

Case: 21-10806 Document: 00516140297 Page: 1 Date Filed: 12/21/2021
REVISED 12/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 13, 2021
No. 21-10806 Lyle W. Cayce
Clerk
State of Texas; State of Missouri,
Plaintiffs—Appellees,
versus
Joseph R. Biden, Jr., in his official capacity as
President of the United States of America; United
States of America; Alejandro Mayorkas, Secretary,
U.S. Department of Homeland Security; United States
Department of Homeland Security; Troy Miller,
Acting Commissioner, U.S. Customs and Border
Protection; United States Customs and Border
Protection; Tae D. Johnson, Acting Director, U.S.
Immigration and Customs Enforcement; United States
Immigration and Customs Enforcement; Ur M. Jaddou,
Director of U.S. Citizenship and Immigration Services;
United States Citizenship and Immigration Services,
Defendants—Appellants.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:21-cv-67
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Before Barksdale, Engelhardt, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
This case concerns the Migrant Protection Protocols (“MPP” or the
“Protocols”), which the Secretary of the Department of Homeland Security
(“DHS”) created on December 20, 2018. On January 20, 2021, DHS
suspended the MPP program (the “Suspension Decision”). On June 1, 2021,
DHS permanently terminated MPP (the “Termination Decision”). DHS
explained these two decisions in a series of increasingly lengthy memoranda;
the first contained just a few sentences, while the last spanned 39 single-
spaced pages. Texas and Missouri (the “States”) challenged both the
Suspension Decision and the Termination Decision in federal court.
After a full bench trial, the district court determined that the
Termination Decision violated both the Administrative Procedure Act (the
“APA”) and an immigration statute, 8 U.S.C. § 1225. The district court
therefore vacated the Termination Decision and ordered DHS to implement
the Protocols in good faith or to take a new agency action that complied with
the law.
DHS chose not to take a new agency action. It instead chose to notice
an appeal and defend its Termination Decision in our court. DHS also asked
us to stay the district court’s injunction while the appeal was pending. We
denied that motion, and the Supreme Court affirmed our denial. The
Government thereafter vigorously defended the Termination Decision
before our court.
Then, on the Friday before oral argument—October 29, 2021—DHS
issued two more memoranda (the “October 29 Memoranda” or
“Memoranda”) to explain the Termination Decision. These much longer
documents purported to “re-terminate” MPP—or at the very least,
promised to do so after the lifting of the district court’s injunction. A few
hours later, the Government informed our court that, in its view, the October
29 Memoranda had mooted this case. Never mind that a case is moot only
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when the controversy between the parties is dead and gone, and the
controversy between these parties is very much not dead and not gone. Never
mind that the new memoranda simply reaffirmed the Termination Decision
that the States had been challenging all along. And never mind that the
Government’s theory of mootness would allow an administrative agency to
permanently avoid judicial review by issuing an endless litany of new memos
to “moot” every adverse judicial ruling. The Government boldly proclaimed
that DHS’s unilateral decision to issue new memoranda required us to give
DHS the same relief it had previously hoped to win on appeal—namely,
vacatur of the district court’s injunction and termination of MPP.
DHS’s proposed approach is as unlawful as it is illogical. Under
Supreme Court and Fifth Circuit precedent, this case is nowhere near moot.
And in any event, the vacatur DHS requests is an equitable remedy, which is
unavailable to parties with unclean hands. The Government’s litigation
tactics disqualify it from such equitable relief.
The Government also raises a slew of reviewability arguments,
contending that no court may ever review the Termination Decision. DHS
claims the power to implement a massive policy reversal—affecting billions
of dollars and countless people—simply by typing out a new Word document
and posting it on the internet. No input from Congress, no ordinary
rulemaking procedures, and no judicial review. We address and reject each
of the Government’s reviewability arguments and determine that DHS has
come nowhere close to shouldering its heavy burden to show that it can make
law in a vacuum.
On the merits, the Termination Decision was arbitrary and capricious
under the APA. That Act, among other things, requires courts to set aside
agency actions that overlook relevant issues or inadequately explain their
conclusions. We anchor our analysis to a recent Supreme Court decision that
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applied this doctrine in the immigration context. Under that precedent, this
is not a close case.
The Termination Decision is independently unlawful because it
violates 8 U.S.C. § 1225. That statute (among other things) requires DHS to
detain aliens, pending removal proceedings, who unlawfully enter the United
States and seek permission to stay. It’s true that DHS lacks the capacity to
detain all such aliens. Congress, however, created a statutory safety valve to
address that problem. Another part of § 1225 allows DHS to return aliens to
contiguous territories, like Mexico, while removal proceedings are pending.
That safety valve was the statutory basis for the Protocols. DHS’s
Termination Decision was a refusal to use the statute’s safety valve. That
refusal, combined with DHS’s lack of detention capacity, means DHS is not
detaining the aliens that Congress required it to detain.
The Government insists that a third provision (in § 1182) lets DHS
parole aliens into the United States on a case-by-case basis. The idea seems
to be that DHS can simply parole every alien it lacks the capacity to detain.
But that solves nothing: The statute allows only case-by-case parole.
Deciding to parole aliens en masse is the opposite of case-by-case
decisionmaking.
* * *
This opinion has five parts. Part I.A, infra pages 6–10, addresses this
case’s factual background. Part I.B, infra pages 10–13, summarizes its
statutory background.
Part II addresses our jurisdiction. We start with final agency action.
Part II.A, infra pages 13–29, pinpoints the final agency action under review.
The final agency action is DHS’s June 1 Termination Decision. We have
jurisdiction to review that Termination Decision, rather than one or the other
of DHS’s ever-growing collection of MPP memos.
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Then we turn to mootness in Part II.B, infra pages 29–46. The
October 29 Memoranda have no present legal effect, so they can’t moot the
case. See Part II.B.1, infra pages 30–32. Independently, the Government has
not shown they do anything to cure the Termination Decision’s
unlawfulness, so again, they can’t moot the case. See Part II.B.2, infra pages
32–39. And they constitute (at most) voluntary cessation, so yet again, they
can’t moot the case. See Part II.B.3, infra pages 39–45. And ordinary appellate
principles bar our review of the merits of the October 29 Memoranda in any
event. See Part II.B.4, infra pages 45–46.
Part II.C, infra pages 46–63, addresses the States’ standing. The
district court based its standing analysis on factual findings that were not
clearly erroneous. See Part II.C.1, infra pages 46–52. Given those findings and
the States’ entitlement to special solicitude in the analysis, we hold the States
have standing. See Part II.C.2, infra pages 52–63.
Part III then addresses and rejects a host of non-jurisdictional
objections to the reviewability of the Termination Decision. Part III.A, infra
pages 63–65, holds the States have a cause of action. Part III.B, infra pages
65–88, holds the APA does not preclude our review of the Termination
Decision. Part III.B.1, infra pages 66–68, holds the immigration statutes
don’t insulate the Termination Decision from review. Part III.B.2, infra
pages 68–88, holds that Heckler v. Chaney, 470 U.S. 821 (1985), does not bar
review either. That’s largely because Heckler, far from forbidding judicial
review of agency rules, powerfully supports it. Background principles of
English and American law, the Supreme Court’s precedents, and our own
court’s precedents all point toward that same conclusion. See Part III.B.2.a,
infra pages 69–85. Even if Heckler applied to some rules, it wouldn’t apply to
the Termination Decision. See Part III.B.2.b, infra pages 85–87. And even if
Heckler were presumed to apply, that presumption would be rebutted by the
clear statutory text at play in this case. See Part III.B.2.c, infra pages 87–88.
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Part IV, infra pages 88–106, evaluates the merits. The Termination
Decision was arbitrary and capricious under the APA for all sorts of reasons,
and the Government’s arguments to the contrary are meritless. See Part
IV.A, infra pages 88–97. And the Decision was contrary to 8 U.S.C. § 1225.
See Part IV.B, infra pages 98–106.
Part V, infra pages 106–17, considers the remedy. Because the case is
not moot, we will deny the Government’s motion to vacate the district
court’s judgment. Even if the case were moot, the Government’s litigation
tactics would require the same result. See Part V.A, infra pages 106–09. And
the district court didn’t abuse its discretion by vacating the Termination
Decision. See Part V.B, infra pages 109–11. Nor did it abuse its discretion by
imposing a permanent injunction. See Part V.C, infra pages 111–17.
In sum, we hold that the Termination Decision violates both the
Administrative Procedure Act and the immigration statutes. The
Government’s motion to vacate the judgment and remand for further
proceedings is DENIED. The district court’s judgment is AFFIRMED.
I.
A.
This story began on December 20, 2018. On that day, DHS
implemented the MPP program in response to a surge of unlawful entries
along the Nation’s southern border. See Texas v. Biden (Biden I), __ F. Supp.
3d __, 2021 WL 3603341, at *4 (N.D. Tex. Aug. 13, 2021). Before MPP,
resource constraints forced DHS to release thousands of undocumented
aliens into the United States and to trust that those aliens would voluntarily
appear for their removal proceedings. Under MPP, DHS instead returned
certain undocumented aliens to Mexico for the duration of their removal
proceedings. MPP’s goal was “to ensure that certain aliens attempting to
enter the U.S. illegally or without documentation . . . will no longer be
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released into the country, where they often fail to file an asylum application
and/or disappear before an immigration judge can determine the merits of
any claim.” Id. at *5 (quotation omitted). Congress expressly authorized the
MPP program by statute. See 8 U.S.C. § 1225(b)(2)(C).
In December 2018, Mexico agreed to admit MPP enrollees so such
aliens could be held outside the United States pending their removal
proceedings. Biden I, 2021 WL 3603341, at *5. In January 2019, “DHS began
implementing MPP, initially in San Diego, California, then El Paso, Texas,
and Calexico, California, and then nationwide.” Ibid. In February 2019, U.S.
Immigration and Customs Enforcement issued guidance on MPP to its field
offices, anticipating the expansion of MPP across the border. Ibid. “By
December 31, 2020, DHS had enrolled 68,039 aliens in . . . MPP.” Ibid.On January 8, 2021, DHS and Texas finalized a Memorandum of
Understanding (the “Agreement”). Id. at *6–7. The Agreement required
Texas to provide information and assist DHS to “perform its border security,
legal immigration, immigration enforcement, and national security
missions.” Id. at *6 (quotation omitted). In return, DHS agreed to consult
Texas and consider its views before taking actions that could modify
immigration enforcement. See id. at *6–7. DHS also agreed to “provide
Texas with 180 days’ written notice of any proposed action subject to the
consultation requirement,” id. at *7 (quotation omitted), so that Texas
would have an opportunity to comment on the proposal. The Agreement
further required DHS to consider Texas’s input “in good faith” and, if it
decided to reject Texas’s input, to “provide a detailed written explanation”
of its reasons for doing so. Ibid. (emphasis omitted).
On Inauguration Day, the Biden Administration announced its
Suspension Decision. In it, DHS stated that it would suspend further
enrollments in MPP. DHS’s Acting Secretary wrote, “[e]ffective January 21,
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2021, the Department will suspend new enrollments in the Migrant
Protection Protocols (MPP), pending further review of the program. Aliens
who are not already enrolled in MPP should be processed under other
existing legal authorities.” Ibid. (quotation omitted).
On February 2, 2021, DHS sent a letter to Texas purporting to
terminate the Agreement “effective immediately.” Ibid. Because it believed
that the letter did not comply with the Agreement’s required consultation-
and-explanation procedures, Texas interpreted the February 2 letter “as a
notice of intent to terminate” the Agreement. Ibid.On April 13, 2021, the States sued, challenging DHS’s Suspension
Decision. Id. at *1. The States claimed that the Suspension Decision violated
the APA, the Immigration and Nationality Act (“INA”), the Constitution,
and the Agreement. See ibid. On May 14, the States moved for a preliminary
injunction that would enjoin DHS from enforcing and implementing the
Suspension Decision. Ibid.On June 1, 2021, before briefing on the preliminary injunction had
concluded, DHS announced its Termination Decision. The district court
concluded that the Termination Decision mooted the States’ complaint
about the Suspension Decision, and the court allowed the States to amend
their complaint and to file a new preliminary injunction motion. Ibid. The
parties agreed to consolidate the preliminary injunction hearing with the trial
on the merits under Federal Rule of Civil Procedure 65(a)(2). Id. at *2.
Following the bench trial, the district court issued a 53-page
memorandum opinion and order, concluding that the States were entitled to
relief on their APA and statutory claims. Biden I, 2021 WL 3603341. The
court made many findings of fact that will be relevant here. See Part II.C.1,
infra pages 46–52. Based on those findings, the court concluded that the
States had Article III standing, that the Termination Decision constituted
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final and reviewable agency action under the APA, and that the States were
within the INA’s zone of interests. Biden I, 2021 WL 3603341, at *11, 13, 17.
The court then concluded that DHS’s Termination Decision was arbitrary
and capricious, and therefore unlawful, under the APA. Id. at *17–18. It also
concluded terminating MPP, in circumstances where DHS lacked adequate
detention capacity, caused DHS to violate 8 U.S.C. § 1225(b). Id. at *22–23.
Based on those conclusions, the district court vacated the Termination
Decision, “permanently enjoined and restrained [DHS] from implementing
or enforcing” it, and ordered DHS “to enforce and implement MPP in good
faith until such a time as it has been lawfully rescinded in compliance with
the APA and until such a time as the federal government has sufficient
detention capacity to detain all aliens subject to mandatory detention under
Section [1225] without releasing any aliens because of a lack of detention
resources.” Id. at *27 (emphases omitted).
DHS appealed. On August 17, 2021, the Government requested an
emergency stay. See Fed. R. App. P. 8. A panel of our court denied that
request and expedited the appeal. Texas v. Biden (Biden II), 10 F.4th 538, 560–
61 (5th Cir. 2021) (per curiam). The Supreme Court affirmed that denial.
Biden v. Texas (Biden III), __ S. Ct. __, 2021 WL 3732667 (Aug. 24, 2021)
(mem.).
On September 29, DHS announced its intention “to issue [a] new
memo terminating MPP.” Dep’t of Homeland Sec., DHS
Announces Intention to Issue New Memo Terminating
MPP (2021), https://perma.cc/MM95-6KUD, screenshotted at infra page
25. On October 29, on the Friday before our court was set to hear oral
argument, DHS issued two new memoranda (collectively, the “October 29
Memoranda” or “Memoranda”). See Dep’t of Homeland Sec.,
Termination of the Migrant Protection Protocols (2021)
(“October 29 Cover Memorandum”), https://perma.cc/45CS-DRHR;
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Dep’t of Homeland Sec., Explanation of the Decision to
Terminate the Migrant Protection Protocols (2021)
(“October 29 Explanation Memorandum”), https://perma.cc/4KT6-
T82Z. The October 29 Memoranda did not purport to alter the Termination
Decision in any way; they merely offered additional reasons for it.
Hours after the release of the October 29 Memoranda, the
Government filed a 26-page Suggestion of Mootness and Opposed Motion to
Vacate the Judgment Below and Remand for Further Proceedings
(“Suggestion of Mootness”). It argued the October 29 Memoranda mooted
this appeal, and it moved our court to vacate the district court’s judgment
(and injunction) and remand for further proceedings. See United States v.
Munsingwear, Inc., 340 U.S. 36, 39–40 (1950) (explaining the propriety of this
remedy for certain cases mooted on appeal). In the alternative, the
Government asked us to hold this appeal in abeyance with respect to the
§ 1225 claim and remand the APA portion of the appeal to the district court,
with instructions to vacate and reconsider that part of the opinion. We carried
those motions with the case and gave each party additional time at oral
argument to address the issue. We deny the Government’s motions in Part
II.B, infra pages 29–46, and Part V.A, infra pages 106–109.
B.
The two statutory provisions at the heart of this case come from
8 U.S.C. § 1225(b)(2). Section 1225(b)(2)(A) provides:
Subject to subparagraphs (B) and (C), in the case of an alien
who is an applicant for admission, if the examining immigration
officer determines that an alien seeking admission is not clearly
and beyond a doubt entitled to be admitted, the alien shall be
detained for a proceeding under section 1229a of this title.
Section 1225(b)(2)(C) provides:
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In the case of an alien described in subparagraph (A) who is
arriving on land (whether or not at a designated port of arrival)
from a foreign territory contiguous to the United States, the
Attorney General may return the alien to that territory pending
a proceeding under section 1229a of this title.
These provisions apply, by their terms, to “applicant[s] for admission”—
that is, to aliens who are seeking entry into the United States. The former
provides the default rule: Aliens who are “not clearly and beyond a doubt
entitled to be admitted . . . shall be detained” while removal proceedings are
pending. § 1225(b)(2)(A); see also Jennings v. Rodriguez, 138 S. Ct. 830, 842
(2018) (“Read most naturally, §§ 1225(b)(1) and (b)(2) thus mandate
detention of applicants for admission until certain proceedings have
concluded.”). And the latter explains one permissible alternative to
detention—return to a contiguous foreign territory. § 1225(b)(2)(C).
Parole is also relevant to this case. Section 1182(d)(5) both grants
discretion to parole certain aliens and limits that discretion in important
ways. See Jennings, 138 S. Ct. at 837 (explaining the connection between this
provision and § 1225(b) detention). Parole began as an administrative
invention that allowed aliens in certain circumstances to remain on U.S. soil
without formal admission. See T. Alexander Aleinikoff et al.,
Immigration and Citizenship: Process and Policy 299 (9th
ed. 2021). Congress codified the practice when it initially enacted the
Immigration and Nationality Act (the “INA”) in 1952, giving the Attorney
General discretion to “parole into the United States temporarily under such
conditions as he may prescribe . . . any alien applying for admission to the
United States.” Immigration and Nationality Act, Pub. L. No. 82-414, 66
Stat. 163, 188 (1952).
Throughout the mid-twentieth century, the executive branch on
multiple occasions purported to use the parole power to bring in large groups
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of immigrants. See Aleinikoff et al., supra, at 300. In response,
Congress twice amended 8 U.S.C. § 1182(d)(5) to limit the scope of the
parole power and prevent the executive branch from using it as a
programmatic policy tool. First, in the Refugee Act of 1980, Congress added
§ 1182(d)(5)(B), which prevents the executive branch from paroling refugees
unless “compelling reasons in the public interest with respect to that
particular alien require” parole. Pub. L. No. 96-212, 94 Stat. 102, 108.
Second, in the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”), Congress amended § 1182(d)(5)(A) by providing that
parole may be granted “only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit.” Pub. L. No. 104-208, 110 Stat. 3009,
3009–689 (emphasis added).
As it stands today, then, the § 1182(d)(5) parole power gives the
executive branch a limited authority to permit incoming aliens to stay in the
United States without formal authorization when their particular cases
demonstrate an urgent humanitarian need or that their presence will
significantly benefit the public. The power must be exercised on a case-by-
case basis. Quintessential modern uses of the parole power include, for
example, paroling aliens who do not qualify for an admission category but
have an urgent need for medical care in the United States and paroling aliens
who qualify for a visa but are waiting for it to become available. Aleinikoff
et al., supra, at 299. Parole terminates “when the purposes of . . . parole
shall, in the opinion of the Attorney General, have been served.” 8 U.S.C.
§ 1182(d)(5)(A). At that point, DHS must treat the former parolee “in the
same manner as . . . any other applicant for admission to the United States.”
Ibid.The second source of parole power is in § 1226(a). Section 1226(a)
provides its own detention-and-parole scheme that applies to aliens who have
already entered the United States—in contradistinction to the applicants for
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admission covered by § 1225(b)(2) and § 1182(d)(5). See Jennings, 138 S. Ct.
at 837 (explaining § 1226 “generally governs the process of arresting and
detaining” inadmissible aliens who are already “inside the United States”);
see also Part IV.B, infra pages 98–106 (explaining the distinction). This
provision generally requires DHS to obtain an administrative warrant before
arrest. See § 1226(a) (“On a warrant issued by the Attorney General, an alien
may be arrested and detained pending a decision on whether the alien is to be
removed from the United States.”). DHS may release such “arrested
alien[s]” on either bond (at least $1,500) or conditional parole (subject to
restrictions). § 1226(a)(2)–(3).
II.
We start, as always, with jurisdiction. First, we hold DHS’s June 1
Termination Decision constitutes “final agency action.” Second, we hold
DHS’s October 29 Memoranda did not moot this case. Third, we hold the
States have standing to sue.
A.
The APA allows judicial review of “final agency action for which there
is no other adequate remedy in a court.” 5 U.S.C. § 704. For an agency action
to qualify as final, the action must (1) “mark[] the consummation of the
agency’s decisionmaking process” and (2) either determine “rights or
obligations [or produce] legal consequences.” Texas v. EEOC, 933 F.3d 433,
441 (5th Cir. 2019) (quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)).
Our circuit considers this “a jurisdictional prerequisite of judicial review.”
Louisiana v. U.S. Army Corps of Eng’rs, 834 F.3d 574, 584 (5th Cir. 2016).
We begin by analyzing the June 1 Termination Decision on its own
terms. We conclude the Decision was final agency action. Then, we address
a new finality argument—based on the October 29 Memoranda—that the
Government raises for the first time in its Suggestion of Mootness.
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1.
The Government says the Termination Decision didn’t consummate
DHS’s decisionmaking process. That’s because a policy statement isn’t final
until the agency applies it “in a particular situation” to an affected person or
entity. Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 253 (D.C. Cir. 2014)
(quotation omitted). And the Government hints DHS has not yet made “the
return decision” in any “individual case.” It’s hard to tell what this means.
Perhaps the Government is suggesting that, somehow, DHS’s Termination
Decision has not affected a single undocumented alien. But that would be
absurd: DHS enrolled over 68,000 aliens in MPP when it was in effect and
returned more than 55,000 of those to Mexico. Biden I, 2021 WL 3603341, at
*5–6. As the district court found, MPP’s termination altered that status quo
and caused DHS to return fewer aliens to Mexico (and to instead release
and/or parole them into the United States). Id. at *8. If MPP’s termination
did nothing at all to change the outcome in any given case, one can only
imagine why the Government bothered to appeal a district court decision
about an entirely nugatory policy choice. We therefore conclude that the
Termination Decision was the consummation of the agency’s
decisionmaking process.
Likewise with the second finality prong. The Termination Decision is
final agency action under the principle that, “where agency action withdraws
an entity’s previously-held discretion, that action alters the legal regime,
binds the entity, and thus qualifies as final agency action” under the APA.
EEOC, 933 F.3d at 442 (quotation omitted). DHS withdrew its officers’
previously existing discretion on June 1 when it directed “DHS personnel,
effective immediately, to take all appropriate actions to terminate MPP,
including taking all steps necessary to rescind implementing guidance and
other directives issued to carry out MPP.” DHS also explicitly refused to
“maintain[] the status quo or [to resume] new enrollments in the program.”
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The Termination Decision thus bound DHS staff by forbidding them to
continue the program in any way from that moment on. See id. at 441
(reiterating that binding effect upon the agency is the key inquiry and
explaining that “[w]hether an action binds the agency is evident if it either
appears on its face to be binding[] or is applied by the agency in a way that
indicates it is binding” (quotation omitted)).
The Government again responds by wishing the law said otherwise.
On its view, terminating MPP can’t be final agency action because the
termination “did not end DHS’s statutory authority under Section
1225(b)(2)(C) to conduct returns.” So the Government doesn’t seem to
contest that the Termination Decision binds DHS staff. Instead, the idea
seems to be that agency action is never final in virtue of its binding effect on
agency staff—but instead is final only if the agency as a whole permanently
swears off the entirety of its statutory discretion. We are aware of no case
from any court that supports that sweeping proposition.
And our decision in EEOC forecloses it. That case explicitly centered
its finality analysis on whether “the agency’s action binds its staff.” 933 F.3d
at 442 (emphasis added). Thus, our court based its holding (“that the
Guidance binds EEOC”) largely on the fact that the “Guidance” in question,
despite its name, bound EEOC staff. See id. at 443. The court also discussed
the Guidance’s de facto creation of safe harbors for private parties. Ibid. What
it did not consider is whether the EEOC could revoke its Guidance in the
future. As we explained in the Heckler context in Texas v. United States
(DAPA), 809 F.3d 134 (5th Cir. 2015), “[r]evocability . . . is not the
touchstone for whether agency action is reviewable.” Id. at 167.
And for good reason. The Government’s rule would render any
agency action nonreviewable so long as the agency retained its power to undo
that action or otherwise alter it in the future. That accords with neither
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common sense nor the law. See Sackett v. EPA, 566 U.S. 120, 127–28 (2012)
(concluding the EPA’s issuance of a compliance order was final agency action
and noting, “[t]he mere possibility that an agency might reconsider in light
of ‘informal discussion’ and invited contentions of inaccuracy does not
suffice to make an otherwise final agency action nonfinal”); cf. FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 513–18 (2009) (reviewing an agency
action, without discussing finality, in precisely a situation where the agency
had taken the opposite stance in the past). Thus, the mere fact the
Termination Decision left intact DHS’s statutory authority to return aliens
to contiguous territories does not undercut its finality.
The Government also asserts the Termination Decision is a general
policy statement—and therefore can neither determine rights nor produce
obligations or legal consequences. Even if the Termination Decision is
merely a “policy statement,” this argument ignores our precedent
establishing that such statements can nonetheless constitute “final agency
action” under the APA. See Merchs. Fast Motor Lines, Inc. v. ICC, 5 F.3d 911,
919–20 (5th Cir. 1993). The Government counters that Fast Motor Lines was
a case about APA ripeness and “provided no analysis on this issue.” To the
contrary, however, Fast Motor Lines reached the ripeness issue precisely
because it had already concluded the agency action in question was final
(despite simultaneously being a statement of policy). Id. at 920 (concluding
the policy statement was final “within the meaning of 5 U.S.C. §§ 551(13) &
704” (emphasis added)). The inquiry in our circuit does not focus on labels,
and it does not rely on a sharp (and false) dichotomy between statements
announcing policies and final statements. The inquiry instead centers on
whether the action in question determines “rights or obligations” or creates
“legal consequences.” Bennett, 520 U.S. at 178 (quotation omitted). And one
way an agency can do that is by binding its own staff. That is exactly what
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DHS did in the Termination Decision by commanding staff to stop enrolling
aliens in MPP and to terminate the program immediately.
2.
In its Suggestion of Mootness, the Government now argues that the
October 29 Memoranda change the picture. Even if the June 1 Termination
Decision was final agency action at the time, says the Government, it lost that
status when DHS issued its new Memoranda.
To begin, we note that the Government could have, but did not, make
this argument in its brief. The briefing obviously concluded before October
29. But the Government’s brief includes an introductory footnote that reads:
“DHS has authorized us to report that the Secretary is reviewing the June 1
Memorandum and evaluating policy options regarding MPP. The result of
that review could have an impact on this appeal.” So the Government knew
DHS was considering a new memorandum. This would lend itself quite
naturally, one would think, to an argument of the same sort the Government
makes now. Yet the Government omitted the argument from its brief and
instead raises it for the first time in its Suggestion of Mootness. That gives us
pause. See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 27
(1994) (“To allow a party . . . to employ the secondary remedy of vacatur as
a refined form of collateral attack on the judgment would—quite apart from
any considerations of fairness to the parties—disturb the orderly operation
of the federal judicial system.”). 1
1
The Government also argues that the June 1 Termination Decision is no longer ripe
for judicial review. The Suggestion of Mootness devotes one sentence to this issue, which
was not in the Government’s brief. See La. Power & Light Co. v. Federal Power Comm’n, 526
F.2d 898, 910 (5th Cir. 1976) (the Government’s best case, holding that “matters still
pending” before the agency are not ripe for review). We reject this argument. If the States
were now attempting to challenge the October 29 Memoranda, then perhaps it would make
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Even so, we will consider the argument. That’s partly because the
finality of agency action is a jurisdictional issue. And it’s partly because the
October 29 Memoranda, which were merely possible at the briefing stage,
now actually exist.
First, we explain that the Government misunderstands the States’
challenge. The States are challenging DHS’s Termination Decision—not any
particular memo that DHS might have written in the past or might write in
the future. Second, we hold that DHS’s October 29 Memoranda did not
reopen the actionable Termination Decision and are therefore not
themselves final agency action. Third, we hold subsequent events can’t
render a final agency action retroactively nonfinal.
a.
Begin with the Government’s framing of the issue. The Government
treats the June 1 Memorandum as the challenged action. It then assumes that
the October 29 Memoranda are a final agency action of their own. Thus, it
says, the new Memoranda “demonstrate that the June 1 memorandum no
longer represents the consummation of the agency’s decisionmaking
process.” So even if the June 1 Memorandum was final at the moment of
issuance, the October 29 Memoranda have since supplanted it as DHS’s final
action under 5 U.S.C. § 704.
sense to argue about the ripeness of that new challenge. But the States are challenging the
same Termination Decision they have been challenging all along. Further, it’s nonsensical
to suggest, as the Government does, that the Termination Decision is at once moot (i.e.,
the time for review has come and gone) and unripe (i.e., the time for review has not yet
arrived).
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For one thing, that framing misunderstands the nature of the
challenged action. 2 The States are challenging the Termination Decision—not
the June 1 Memorandum, the October 29 Memoranda, or any other memo.
DHS’s Termination Decision is analogous to the judgment of a court, and its
memos are analogous to a court’s opinion explicating its judgment. A
judgment, not the opinion announcing that judgment, has a binding effect
that settles the dispute before the court. See William Baude, The Judgment
Power, 96 Geo. L.J. 1807, 1844 (2008) (describing the “historical answer”
to this question: “Judgments become binding law, not opinions. Opinions
merely explain the grounds for judgments, helping other people to plan and
order their affairs.”). In the same way, DHS’s June 1 decision to terminate
MPP had legal effect. The June 1 Memorandum—just like the October 29
Memoranda and any other subsequent memos—simply explained DHS’s
decision.
Thus, as common sense would indicate, the Termination Decision
itself (not a memo) consummated the agency’s decisionmaking process by
permanently terminating MPP. See Bennett, 520 U.S. at 177–78. The
Termination Decision (not a memo) created legal consequences by stripping
preexisting discretion from DHS’s own staff. See ibid.; EEOC, 933 F.3d at
443. And so the Termination Decision (not a memo) is the “final agency
action” reviewable in court. 5 U.S.C. § 704.
2
To be fair, both the States and the district court appear at times to fall into this same
trap. But final agency action is a jurisdictional inquiry. See Louisiana, 834 F.3d at 584. And
because we’re obligated to get jurisdiction right, we are not constrained by the parties’
misunderstanding of the issue. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
95 (1998) (noting we must decide jurisdiction first, even when the parties concede it). Nor
are we constrained by the district court’s misunderstanding. See, e.g., Cranor v. 5 Star
Nutrition, LLC, 998 F.3d 686, 689 (5th Cir. 2021) (review of a district court’s ruling on
subject-matter jurisdiction is de novo).
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b.
The October 29 Memoranda did not constitute a new and separately
reviewable “final agency action.” Our holding to that effect is dictated by the
well-established reopening doctrine.
The D.C. Circuit developed the reopening doctrine as a way to
pinpoint an agency’s final action in cases where the agency has addressed the
same issue multiple times. Suppose, for example, “an agency conducts a
rulemaking or adopts a policy on an issue at one time, and then in a later
rulemaking restates the policy or otherwise addresses the issue again without
altering the original decision.” Nat’l Ass’n of Reversionary Prop. Owners v.
Surface Transp. Bd., 158 F.3d 135, 141 (D.C. Cir. 1998). What happens if the
petitioner’s challenge to the agency’s action would be untimely if measured
from the first agency action but timely if measured from the second? 3
The reopening doctrine provides the answer. If “the agency opened
the issue up anew, and then reexamined and reaffirmed its prior decision,”
the agency’s second action (the reaffirmance) is reviewable. NRDC v. EPA,
571 F.3d 1245, 1265 (D.C. Cir. 2009) (per curiam) (quotation omitted); see
also Wash. All. of Tech. Workers v. DHS, 892 F.3d 332, 342 (D.C. Cir. 2018)
(tying reopening to final agency action); Impro Prods., Inc. v. Block, 722 F.2d
845, 850–51 (D.C. Cir. 1983) (similar). In that event, the reaffirmance, rather
than the original decision, starts the limitation period. See NRDC, 571 F.3d
3Challenges to agency actions are subject to various statutes of limitations. See, e.g., 28
U.S.C. § 2401 (six-year limit on “every civil action commenced against the United
States”); id. § 2344 (sixty-day limit on petitions for review of agency actions under the
Hobbs Act). Section 2401(a)’s six-year limit, for instance, starts ticking when “the right of
action first accrues.” And “[t]he right of action first accrues on the date of the final agency
action.” Wash. All. of Tech. Workers v. DHS, 892 F.3d 332, 342 (D.C. Cir. 2018) (quoting
Harris v. FAA, 353 F.3d 1006, 1010 (D.C. Cir. 2004)). Thus, the key step in the timeliness
inquiry is to determine when the agency took its “final action.”
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at 1265; Impro, 722 F.2d at 850–51. But if the agency merely reaffirmed its
decision without really opening the decision back up and reconsidering it, the
agency’s initial action is the only final agency action to review—so the
limitation period runs from the first decision by the agency. See, e.g., Growth
Energy v. EPA, 5 F.4th 1, 21–22 (D.C. Cir. 2021) (per curiam). A reopening
has occurred only if “the entire context demonstrates that the agency has
undertaken a serious, substantive reconsideration of the existing rule.” Id. at
21 (quotation omitted).
Reversionary Property Owners v. Surface Transportation Board, 158 F.3d
135 (D.C. Cir. 1998), is the seminal case. See, e.g., CTIA—The Wireless Ass’n
v. FCC, 466 F.3d 105, 110 (D.C. Cir. 2006) (treating it as such). Reversionary
Property Owners concerned the Interstate Commerce Commission (the
“ICC”) and its successor agency, the Surface Transportation Board (the
“STB”). 158 F.3d at 137–40. Rather than owning whole railroad corridors in
fee simple, railroads often hold mere rights-of-way that allow them to run
tracks over others’ property. Id. at 137–38. Sometimes, railroads abandon
those rights-of-way. Ibid. Before they can do so, they must get agency
permission and notify the public at large by filing a “Notice of Intent.” Ibid.Sometimes, abandonments cause reversionary property interests to vest in
third parties. Id. at 137, 139.
In 1986, after notice and comment, the ICC adopted a “rails to trails”
rule that allowed some otherwise-abandonable corridors to become public
trails instead. Id. at 139. Turning a right-of-way into a trail extinguishes third-
party reversionary interests in it. Ibid. (explaining this is a compensable
taking). Even so, the 1986 rule didn’t require anyone to notify the holders of
reversionary interests directly beforehand. Id. at 138–39. Instead, it simply
required railroads to publicize a generalized notice in the Federal Register.
See id. at 139.
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The National Association of Reversionary Property Owners
(“NARPO”) believed each owner of a reversionary interest should get
individualized notice before an abandonment or a rails-to-trails conversion.
So NARPO asked the ICC to reopen the 1986 notice-and-comment
rulemaking and reconsider that issue. Id. at 139–40. The ICC did so, but it
decided not to implement the change. Ibid. And in 1990, the ICC denied
NARPO’s petition for reconsideration. Ibid. All sides agreed: That was a final
agency action. See id. at 141.
But in 1996, after the ICC had denied NARPO’s request for a new
rulemaking on the individualized-notice issue, the STB took the reins from
the now-defunct ICC and issued a new Notice of Proposed Rulemaking
(“NPRM”) regarding abandonment procedures. See id. at 140–41. After
notice and comment, the STB’s Final Rule made some changes—but it
refused to implement an individualized-notice requirement. Id. at 145–46.
Thus, the D.C. Circuit had to determine whether the 1996 NPRM
reopened the individualized-notice issue. The court considered three factors
and held the 1996 NPRM was not a reopening. First, the court asked whether
the NPRM contained either “[a]n explicit invitation to comment on a
previously settled matter” or at least “[a]mbiguity” about whether the
individualized-notice issue was on the table. Id. at 142. The court
acknowledged the NPRM had proposed three changes to abandonment-
notice procedures—including one that would require railroads to directly
notify NARPO (and one other group) before abandoning a right-of-way. Id.at 141–44. It also noted the NPRM’s specific invitation for comments on
“improving notice to the public.” Id. at 145 (quotation omitted). And the
court acknowledged the NPRM’s broader invitation for “public comments
on these proposals, and on any other areas where changes might be made . . .
to streamline our abandonment regulations.” Ibid. (quotation omitted).
Despite all that, the court concluded the NPRM’s text unambiguously
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excluded the issue of individualized notice. See ibid.; see also Growth Energy, 5
F.4th at 21–22 (an NPRM inviting comments on “any aspect of [the]
rulemaking . . . did not suggest that the agency was undertaking a
reconsideration of the relevant matter” (quotation omitted)).
Second, the court considered the “agency’s response to comments
filed by parties during [the] rulemaking.” Reversionary Prop. Owners, 158 F.3d
at 142. When an agency’s “discussion of its policies and rules” regarding a
given topic comes “only in response to . . . unsolicited comments,” there has
likely been no reopening. Id. at 143 (quotations omitted). This is especially
true when the response “merely reiterate[s]” the agency’s “longstanding
policies.” Ibid. (quotation omitted) (discussing United Transp. Union-Ill.
Legis. Bd. v. Surface Transp. Bd., 132 F.3d 71 (D.C. Cir. 1998)). Accordingly,
the court noted that STB’s Final Rule offered “basically the same rationale”
the ICC and STB had given multiple times before. Id. at 145. For that reason,
the Final Rule’s response to NARPO’s comments did not “reflect a genuine
reconsideration” of the individualized-notice issue. Ibid.; see also CTIA, 466
F.3d at 112 (reaching the opposite conclusion because, among other things,
the final order in question offered “two new justifications” that “constituted
the [agency’s] first legal rationales for its action to date”).
The third factor, and arguably the court’s most important, was “the
entire context of the rulemaking.” Reversionary Prop. Owners, 158 F.3d at 144(quotation omitted) (explaining the preeminence of this consideration); see
also Growth Energy, 5 F.4th at 21 (“entire context” includes “all relevant
proposals and reactions of the agency” (quotation omitted)). Taken as a
whole, the context did not suggest the STB was genuinely reconsidering the
individualized-notice issue. Instead, the context “was one of making
incremental adjustments to existing regulations and updating in light of a
statute that did not call the STB’s notice provisions into question.”
Reversionary Prop. Owners, 158 F.3d at 145; see also Am. Rd. & Transp. Builders
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Ass’n v. EPA, 588 F.3d 1109, 1115 (D.C. Cir. 2009) (conducting a similarly
commonsense inquiry into “the entire context of the rulemaking” and
finding no reopening (quotation omitted)).
The conclusion: There was no reopening, the 1996 Final Rule wasn’t
a final agency action on the individualized-notice issue, and NARPO’s suit
was untimely. See Reversionary Prop. Owners, 158 F.3d at 146.
Under Reversionary Property Owners and the reopening doctrine, the
October 29 Memoranda did not come close to reopening DHS’s Termination
Decision. First, we look for “ambiguity” in the closest thing this case has to
an NPRM: DHS’s September 29 announcement of an intention to issue a
new memorandum. See id. at 141–45; P & V Enters. v. U.S. Army Corps of
Eng’rs, 516 F.3d 1021, 1023–27 (D.C. Cir. 2008) (demonstrating the
flexibility of the Reversionary Property Owners factors by adapting them to the
combination of an Advance Notice of Proposed Rulemaking and a press
release). Here is a screenshot for reference:
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This was DHS’s first public announcement since June 1 intimating an
intention to issue any new document about MPP. The title leaves nothing to
the imagination, and neither does the text: Rather than announcing an
intention to reconsider its Termination Decision, the announcement set forth
DHS’s conclusion in unmistakable terms. The Reversionary Property Owners
court found no ambiguity in an NPRM that both suggested open-mindedness
about issues closely related to the one at hand and contained an explicit,
broadly worded request for comments from the public. See 158 F.3d at 141–
45. So how could there be any ambiguity about DHS’s September 29
announcement, which did neither? See ibid.The outcome is the same even if, arguendo, we take into account the
Government’s brief. The brief notified our court on September 20 “that the
Secretary is reviewing the June 1 Memorandum and evaluating policy options
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regarding MPP.” That’s just the kind of broad language that does not suggest
a reopening. See Growth Energy, 5 F.4th at 21–22.
Second, if we could, we would consider the October 29 Memoranda’s
response to comments. See Reversionary Prop. Owners, 158 F.3d at 142. We
can’t do that because DHS never asked for comments. That alone is enough
to conclude this factor weighs against a finding of reopening. See ibid. True,
the new Memoranda did respond to the Biden I court’s criticisms. See
October 29 Explanation Memorandum 11–29, 36–38 (responding to the
district court’s reasoning). But even if we pretended those responses were
addressing comments rather than a judicial opinion, the first and third factors
would outweigh this one. Cf. Am. Rd. & Transp. Builders Ass’n, 588 F.3d at
1115 (agency response given “in answer to comments received pursuant to
the publication of petitioner’s own call for revisions . . . is not, without much
more, sufficient to trigger the reopener doctrine” (emphasis omitted)
(quotation omitted)).
Third, the overall context establishes beyond doubt that DHS didn’t
reopen the Termination Decision. The district court remanded to DHS “for
further consideration” and went on to hold that DHS must “enforce and
implement MPP . . . until such a time as it has been lawfully rescinded in
compliance with the APA,” among other things. Biden I, 2021 WL 3603341, at
*27 (emphasis added). In light of that decretal language, DHS announced its
unambiguous intention to re-terminate MPP—without a hint of an intention
to put the Termination Decision back on the chopping block and rethink
things. Then its October 29 Memoranda followed through. Thus, all of
DHS’s “proposals and reactions” in this case, see Growth Energy, 5 F.4th at
21–22, establish that DHS never reopened its Termination Decision—it just
further defended what it had previously decided, see Reversionary Prop.
Owners, 158 F.3d at 145–46.
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Because the October 29 Memoranda merely continued, rather than
reopened, the Termination Decision, they did not embody final agency action
as to that Decision. See Wash. All. of Tech. Workers, 892 F.3d at 342; Impro,
722 F.2d at 850–51. So DHS’s latest memos cannot render the June 1
Termination Decision nonfinal.
c.
Independently, subsequent events can’t un-finalize a final agency
action. An action is either final or not, and the mere fact that the agency
could—or actually does—reverse course in the future does not change that
fact. Were it otherwise, only irrevocable agency actions would be final. That
is exactly the rule we rejected, at the Supreme Court’s behest, just above. See
Part II.A.1, supra pages 14–17; Sackett, 566 U.S. at 127–28 (“The mere
possibility that an agency might reconsider in light of ‘informal discussion’
and invited contentions of inaccuracy does not suffice to make an otherwise
final agency action nonfinal.”); see also Wash. All. of Tech. Workers, 892 F.3d
at 342 (explaining that even if the agency’s reconsideration is a final action of
its own under the reopening doctrine, the agency’s original “[r]ule was
unquestionably final agency action”).
The Government’s contrary view would never allow a court to make
a final determination that any given agency action is final. We would be stuck
in eternal limbo, waiting for the agency to give some carved-in-stone sign that
the action in question is here to stay for good. That would have absurd
jurisdictional consequences: Because our court views finality as a prerequisite
of subject-matter jurisdiction, see Louisiana, 834 F.3d at 584, any post-
judgment agency action would retroactively deprive the district court of
subject-matter jurisdiction. No matter how final an agency action may
appear, and no matter how sure the court’s jurisdiction to review it, the
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slightest agency vicissitude could destroy both finality and jurisdiction at any
moment.
This case illustrates the absurdity of the Government’s position. As
we’ve already explained, the Termination Decision was final on June 1. See
Part II.A.1, supra pages 14–17. The Termination Decision remained final
when the district court reviewed it and held it unlawful on August 13. See
Biden I, 2021 WL 3603341. The Termination Decision remained final when
we refused to stay the district court’s decision on August 19. See Biden II, 10
F.4th 538. The Termination Decision remained final when the Supreme
Court likewise refused a stay. See Biden III, 2021 WL 3732667. This tripartite
judicial rebuke then prompted DHS to explain the Termination Decision
anew by way of the October 29 Memoranda. 4 And those October 29
Memoranda somehow retroactively unfinalized the Termination Decision,
the finality of which previously gave rise to the entire case (including the
October 29 Memoranda themselves). The upshot of it all, the Government
says, is that we should go back in time and hold that the district court did not
have jurisdiction to start this chain of events by invaliding the Termination
Decision in the first place because the future retroactively unfinalized that
decision. Cf. Back to the Future (Universal Pictures & Amblin Ent.
4
See, e.g., October 29 Cover Memorandum 2 (framing itself as issuing “[p]ursuant to
the District Court’s remand”); October 29 Explanation Memorandum 11 (noting that DHS
wrote the October 29 Memoranda in response to “the decisions of the Texas district court,
Fifth Circuit, and Supreme Court”); id. at 2, 4, 11–12 (similar); id. at 26–29 (responding
directly to the district court’s 8 U.S.C. § 1225 reasoning); id. at 11–29, 36–38 (addressing
considerations the district court had faulted DHS for failing to address in the June 1
Memorandum); Oral Argument at 6:34–6:55 (“There was one memorandum in June, and
that would have been the only memorandum, had the district court not identified issues it
had with that memorandum. . . . And so the . . . new memorandum is based entirely and
solely on the district court’s findings under the APA and its remand . . . to the agency.”).
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1985). We are aware of no case from any court that supports the
Government’s theory. Today we reject it. 5
B.
Our jurisdictional inquiry also requires us to consider whether this
case is moot. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477–78 (1990)
(holding mootness destroys subject-matter jurisdiction). It’s not.
The Government’s Suggestion of Mootness—operating on the
mistaken assumption that the agency action under review is the June 1
Memorandum rather than the underlying Termination Decision—argues as
follows. The States’ supposed harms were caused by the legal defects (if any)
of the June 1 Memorandum. The October 29 Memoranda superseded and
rescinded the June 1 Memorandum. Just as a legislature can moot a pending
appeal by amending a statute in a way that cures the statute’s defect, see id.at 478–82, so too did DHS’s October 29 Memoranda cure any legal defects
in the June 1 Memorandum. See United States v. Microsoft Corp., 138 S. Ct.
1186, 1187–88 (2018) (per curiam) (holding, like Lewis, that an intervening
change in a statute mooted a case). So any challenge to the June 1
5
The Government cites only one case in support of its understanding of retroactive
unfinalization: Shrimpers & Fishermen of the RGV v. U.S. Army Corps of Engineers, 849 F.
App’x 459 (5th Cir. 2021) (per curiam). There, the “Army Corps of Engineers issued a
permit for a natural gas pipeline.” Id. at 461. Some petitioners sought review of that permit
in our court. Ibid. But before we could consider it, the Corps suspended the permit to
reconsider it and then vitiate it. Ibid. We held the original permit no longer constituted
“final agency action.” Id. at 462. Shrimpers was an unpublished and non-precedential
decision. See, e.g., Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (“An
unpublished opinion issued after January 1, 1996 is not controlling precedent, but may be
persuasive authority.”). And we hold it was wrong because it conflicts with the authorities
discussed above. In any event, Shrimpers is easily distinguishable. The thing that rendered
the permit nonfinal was the Corps’s reconsideration and vitiation of it. See Shrimpers, 849
F. App’x at 462. As we’ve already explained above, DHS did not reconsider the
Termination Decision and certainly did not vitiate it.
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Memorandum must now be moot, and the appeals court has no choice but to
vacate the district court’s judgment.
The Government’s stance, in more colloquial terms, is this: DHS can
write a memo, litigate a case to final judgment, lose, and then immediately
moot the dispute by writing a new memo overnight. Never mind that Lewis
and Microsoft involved statutes instead of memos: In the Government’s view,
posting a new PDF document on the internet can moot a case as easily as a
statute that’s undergone bicameralism and presentment. Even better, that
mootness requires this court to vacate the district court’s judgment, thus
giving DHS the same relief it would have received if it had won on the
merits—without the inconvenience of having to actually do so. To describe
the Government’s position is to demonstrate its absurdity.
We nonetheless address each of the Government’s mootness
arguments in turn. We first explain that the October 29 Memoranda, on their
own terms, have no present legal effect. It necessarily follows that they
cannot have the legal effect of mooting this case. Second, even if the October
29 Memoranda had legal effect, the Government has not shown they cure the
unlawfulness of the Termination Decision. Third, even if the October 29
Memoranda did have legal effect and did cure that unlawfulness, the new
memos would constitute (at very most) voluntary cessation that does not
moot the dispute. Fourth and finally, our review of the October 29
Memoranda is barred by several independent appellate principles.
1.
The October 29 Memoranda cannot have the legal effect of mooting
this case because those memos presently have zero legal effect. Perhaps more
precisely, the memos’ legal effect is one part nullity and one part impending.
The Memoranda purported to do two things: (1) “immediately supersede[]
and rescind[] the June 1 Memorandum,” and (2) terminate MPP, with that
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termination “to be implemented as soon as practicable after a final judicial
decision to vacate the . . . injunction that currently requires good faith
implementation and enforcement of MPP.” October 29 Cover
Memorandum 4; see also October 29 Explanation Memorandum 4–5.
The October 29 Memoranda’s supposed rescission of the June 1
Termination Decision was a nullity. The district court had already vacated
the Termination Decision under 5 U.S.C. § 706, which empowers and
commands courts to “set aside” unlawful agency actions. See Biden I, 2021
WL 3603341, at *23–24 & n.12. That statutory empowerment means that,
unlike a court’s decision to hold a statute unconstitutional, the district
court’s vacatur rendered the June 1 Termination Decision void. See Jonathan
F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1014–16
(2018) (explaining this point); see also Driftless Area Land Conservancy v.
Valcq, 16 F.4th 508, 522 (7th Cir. 2021) (“Vacatur [of an agency action]
retroactively undoes or expunges a past [agency] action.”). So the October
29 Memoranda may have attempted to rescind DHS’s rationale for the
Termination Decision, but that attempt had no effect because there was
nothing to rescind. A nullity can’t moot a case.
That leaves the Memoranda’s second purported effect: the re-
termination of MPP. The October 29 Memoranda expressly state that the re-
termination will have no effect until after the district court’s injunction has
been lifted. See October 29 Explanation Memorandum 4–5. The Government
offers no explanation for how a legal effect that has yet to occur could moot this
case now. True, the new memos use equivocal phrasing to describe their legal
effect, and sometimes this involves present-tense language. See, e.g., October
29 Cover Memorandum 4 (“I am hereby terminating MPP.”). But the fact
remains that the Memoranda don’t purport to actually do anything until the
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injunction ends. Just as a nullity can’t spring forth from the void to moot a
case, a prophesied legal effect can’t leap backward from the future to do so. 6
The Government objects that it would be strange to fault DHS for
postponing its re-termination until the future. How else, the Government
asks, could it have framed the October 29 Memoranda without risking
contempt of the district court’s injunction?
The answer, of course, is that the Government made the bed it’s
attempting to not sleep in. The Government chose to (a) appeal this case,
(b) act as though it’s returning to the district court under Federal Rule of
Civil Procedure 60(b) (even though the appeal means the case is not before
the district court), and (c) moot the very case it appeals, not by doing what
the district court ordered it to do, but by refusing to confess error—all at the
same time. The Government cannot use this have-its-cake-and-eat-it-too
strategy to moot the case. See Part V.A, infra pages 106–09 (discussing that
strategy in more detail).
2.
Let’s nonetheless assume that the October 29 Memoranda have
present legal effects. Even if such effects existed (they don’t), the
Government has not shown the effects would cure the unlawfulness of the
Termination Decision. Nor that they would eliminate the States’ ongoing
injuries from that decision. Nor that they would remove our judicial power to
6
Our approach is consistent with the venerable principle that, “if subsequent to the
judgment and before the decision of the appellate court, a law intervenes and positively
changes the rule which governs, the law must be obeyed, or its obligation denied.” United
States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801); accord Thorpe v. Housing Auth.
of Durham, 393 U.S. 268, 281 (1969) (“The general rule . . . is that an appellate court must
apply the law in effect at the time it renders its decision.”). This principle applies only to
changes in “the rule which governs.” Schooner Peggy, 5 U.S. at 110 (emphasis added). The
October 29 Memoranda do nothing to change the rule which governs.
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grant relief against DHS. That’s an independent basis for concluding the case
is not moot.
A case is moot if “it is impossible for a court to grant any effectual
relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, Local
1000, 567 U.S. 298, 307 (2012) (quotation omitted). For challenges to
governmental actions, that means “a case challenging a statute, executive
order, or local ordinance usually becomes moot if the challenged law has
expired or been repealed.” Spell v. Edwards, 962 F.3d 175, 179 (5th Cir.
2020). In Spell, we accordingly held moot a challenge to gubernatorial
COVID-19 stay-at-home orders after those orders “expired by their own
terms.” Ibid. With the orders expired, there was simply “nothing for us to
enjoin.” Id. at 177. Likewise, the Supreme Court held moot a challenge to
New York City gun rules after the City amended those rules in a way that
gave the petitioners “the precise relief [they had] requested in the prayer for
relief in their complaint.” N.Y. State Rifle & Pistol Ass’n v. City of New York,
140 S. Ct. 1525, 1526 (2020) (per curiam). But when a government repeals
the challenged action and replaces it with something substantially similar, the
injury remains. In such a case, the court can still “grant . . . effectual relief . . .
to the prevailing party,” Knox, 567 U.S. at 307 (quotation omitted), and the
case is not mooted.
Consider Northeastern Florida Chapter of Associated General
Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993). There,
Jacksonville adopted a “Minority Business Enterprise Participation”
ordinance that required 10% of the city’s contracting budget to be “set aside”
for deals with minority-owned contractors. Id. at 658–59. Non-minority
contractors brought a Fourteenth Amendment challenge. See id. at 658–60
(describing the case’s procedural history). After the Court granted certiorari,
the city “repealed its . . . ordinance and replaced it with an ordinance entitled
‘African–American and Women’s Business Enterprise Participation.’” Id. at
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660. That program was slightly narrower and more flexible than the original,
and it allowed for set-asides above or below 10%. Id. at 660–61. The city
argued it had mooted the case by repealing and replacing the original
ordinance. Id. at 661.
The Court saw right through the city’s gamesmanship. The Court
first explained that a defendant generally may not moot a case by voluntarily
ceasing the challenged conduct. Id. at 661–62. But then it explained that the
case at hand was even more obvious than that—because the defendant city
hadn’t really ceased anything:
This is an a fortiori case. There is no mere risk that Jacksonville
will repeat its allegedly wrongful conduct; it has already done
so. Nor does it matter that the new ordinance differs in certain
respects from the old one. [The relevant voluntary-cessation
precedent] does not stand for the proposition that it is only the
possibility that the selfsame statute will be enacted that prevents
a case from being moot; if that were the rule, a defendant could
moot a case by repealing the challenged statute and replacing it
with one that differs only in some insignificant respect. The
gravamen of petitioner’s complaint is that its members are
disadvantaged in their efforts to obtain city contracts. The new
ordinance may disadvantage them to a lesser degree than the
old one, but insofar as it accords preferential treatment to
black- and female-owned contractors—and, in particular,
insofar as its “Sheltered Market Plan” is a “set aside” by
another name—it disadvantages them in the same fundamental
way.
Id. at 662. 7
7
City of Jacksonville is probably best read as a corollary to the voluntary-cessation rule.
See Part II.B.3, infra pages 39–45. A defendant who merely modifies her injurious behavior
obviously can’t show “the allegedly wrongful behavior could not reasonably be expected to
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Our court first applied City of Jacksonville in Cooper v. McBeath, 11
F.3d 547 (5th Cir. 1994). Faced with a challenge to its three-year residency
requirement for liquor licenses, Texas repealed the relevant statute and
replaced it with a one-year requirement. Id. at 549–50. City of Jacksonville, we
held, was a perfect fit. Texas could not moot the case simply by tweaking its
challenged law. See id. at 550–51. (“[T]he new one-year
residency/citizenship requirement may lessen the burden placed on the
Plaintiffs, but . . . the amendments’ practical effect remains the same:
Plaintiffs, as non-Texans, are treated differently.”).
Likewise in Opulent Life Church v. City of Holly Springs, 697 F.3d 279(5th Cir. 2012). There, the city’s zoning ordinance allegedly “singled out
churches for unfavorable treatment.” Id. at 281–82 (quotation omitted). The
day before oral argument, the city repealed the challenged provision and
replaced it with one that banned churches from certain properties outright.
Id. at 284–85. We applied City of Jacksonville and held the case was not moot.
Id. at 285–86; see also Big Tyme Invs., LLC v. Edwards, 985 F.3d 456, 464–65
(5th Cir. 2021) (holding an Equal Protection challenge to a COVID-19 bar
closure not mooted even by the adoption of more lenient restrictions because
the new rules “continue[d] to differentiate between bars and restaurants”
(quotation omitted)).
The same principle governs here. The Government says DHS’s
October 29 Memoranda mooted this whole case by rescinding the June 1
Memorandum and replacing it with a new explanation for terminating MPP.
As we’ve explained, the Termination Decision is at issue here, not the June
1 Memorandum. And even aside from that, the Government’s purported line
recur.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quotation omitted). The
rationale is intuitive: If the injury perdures, the court can still grant relief. So the case cannot
be moot. See Knox, 567 U.S. at 307–08.
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between harms-caused-by-the-June-1-Memorandum and harms-caused-by-
the-October-29-Memoranda is a distinction without a difference. This kind
of faux-metaphysical quibbling ignores the “gravamen” of the States’
challenge to the Termination Decision. See City of Jacksonville, 508 U.S. at
662. DHS cannot moot this case by reaffirming and perpetuating the very
same injury that brought the States into court.
The Government offers two lines of response. First, it relies heavily
on the Supreme Court’s order in Mayorkas v. Innovation Law Lab, 141 S. Ct.
2842 (2021) (mem.). That order concerned the mirror image of this case—a
challenge to the creation of MPP rather than its termination. The district
court enjoined MPP, and the Ninth Circuit affirmed. Innovation Law Lab v.
Wolf, 951 F.3d 1073, 1095 (9th Cir. 2020). But on June 1, of course, DHS
terminated MPP. So the Court vacated the Ninth Circuit’s judgment and
remanded the case “with instructions to direct the District Court to vacate
as moot the . . . order granting a preliminary injunction.” Innovation Law Lab,
141 S. Ct. at 2842.
That reliance is very much misplaced. DHS’s policy change in
Innovation Law Lab obviously gave the plaintiffs “the precise relief [they had]
requested,” leaving the injunction with no work to do. See N.Y. State Rifle &
Pistol, 140 S. Ct. at 1526. So it made sense for the Supreme Court to hold the
case moot. See Innovation Law Lab, 141 S. Ct. at 2842. In this case, DHS’s
October 29 Memoranda did nothing less than vow faithful adherence to the
June 1 Termination Decision. Unlike the plaintiffs in Innovation Law Lab, the
States are left with none of the relief they requested. That leaves the
injunction with just as much work to do as ever.
Next, the Government focuses on each of the States’ two merits
challenges to the Termination Decision (based on 8 U.S.C. § 1225 and the
APA). See Biden I, 2021 WL 3603341, at *22–23 (district court’s discussion
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of § 1225); Part IV.B, infra pages 98–106 (our analysis of § 1225); see also
Biden I, 2021 WL 3603341, at *17–22 (district court’s discussion of the APA);
Part IV.A, infra pages 88–97 (our discussion of the APA). It argues the
October 29 Memoranda change the situation enough to moot the case.
As for § 1225, the Government points out that DHS’s new
Memoranda invoke deference under Chevron, USA, Inc. v. NRDC, 467 U.S.
837 (1984), to justify paroling any and every alien DHS lacks the capacity to
detain. See October 29 Explanation Memorandum 28 (citing Chevron). So
Chevron deference, which wasn’t at play before, is relevant now. And because
the district court’s § 1225 reasoning relied in part on the idea that paroling
all above-capacity aliens would be impermissible under § 1182(d)(5)(A), see
Biden I, 2021 WL 3603341, at *22 n.11, the Government argues, the § 1225
issue is now moot.
A creative move, but Chevron was as available before October 29 as it
is today. The Government’s own brief points out that “DHS has long
interpreted Section 1182(d)(5) to authorize parole of noncitizens who present
neither a security risk [n]or a risk of absconding and whose continued
detention is not in the public interest.” (Emphasis added and quotation
omitted.) In fact, the American Civil Liberties Union (the “ACLU”) raised
Chevron deference in an August 17 amicus curiae brief filed in our court. The
brief pointed to the longstanding DHS regulation in 8 C.F.R. § 212.5(b),
arguing that the regulation is a broad, deference-worthy interpretation of 8
U.S.C. § 1182(d)(5)’s parole power. And if the district court had properly
deferred to that interpretation, said the ACLU, it would have realized that
releasing all over-capacity aliens fits within the statutory “case-by-case
basis” limitation on parole.
The Government thus forfeited the Chevron issue by failing to
mention it in its brief. See HollyFrontier Cheyenne Refin., LLC v. Renewable
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Fuels Ass’n, 141 S. Ct. 2172, 2180 (2021) (“[T]he government is not invoking
Chevron. We therefore decline to consider whether any deference might be
due its regulation.” (quotation omitted)); Tiger Lily, LLC v. HUD, 5 F.4th
666, 669 (6th Cir. 2021) (“Notably, the government does not ask us to grant
Chevron deference to its interpretation of the relevant statute. ‘We therefore
decline to consider whether any deference might be due.’” (quoting
HollyFrontier, 141 S. Ct. at 2180)); cf. Ortiz v. McDonough, 6 F.4th 1267, 1275–
76 (Fed. Cir. 2021) (applying the same rule to deference under Auer v.
Robbins, 519 U.S. 452 (1997)). In fact, it did not even raise the issue before
the district court. See generally Biden I, 2021 WL 3603341. It now seeks to use
the Suggestion of Mootness as a back door to undo those omissions. It may
not do so. See Bancorp, 513 U.S. at 27 (concluding that a motion for
Munsingwear vacatur is not a means to “collateral[ly] attack” the judgment);
accord Hous. Chron. Publ’g Co. v. City of League City, 488 F.3d 613, 619 (5th
Cir. 2007); see also Part IV.B, infra pages 98–106 (analyzing the statutory
issue without regard to Chevron). And because Chevron was relevant to this
case, if at all, before the October 29 Memoranda, the doctrine has no bearing
at all on mootness.
As for the APA, the Government argues the October 29 Memoranda
alleviate the States’ injuries. The idea is that, even if the June 1 Termination
Decision was arbitrary and capricious, the October 29 Memoranda are not.
Thus, says the Government, DHS has fixed the problem the States complain
of.
Again, no. The Government has not shown the October 29
Memoranda actually cure the States’ APA-based injuries. For example, the
Suggestion of Mootness’s glowing description of the October 29 Memoranda
offers no analysis whatsoever on whether they are post hoc rationalizations
under the demanding standard announced by the Supreme Court. See DHS
v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1904–05, 1907–09 (2020)
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(describing a multiple-memorandum agency process strikingly similar to the
process here and concluding the later memorandum could “be viewed only
as impermissible post hoc rationalization[]”). Nor does the Government
explain how the October 29 Memoranda, which are not final agency action of
their own under the reopening doctrine, can be anything more than post hoc
rationalizations of the Termination Decision.
If the October 29 Memoranda are post hoc rationalizations, they are
powerless to cure the June 1 Termination Decision’s problems. See Part
IV.A, infra pages 88–97 (explaining the Termination Decision was arbitrary
and capricious under Regents); Regents, 140 S. Ct. at 1907–09 (explaining
“post hoc rationalizations . . . are not properly before us”). We need not
decide that issue here. We hold only that the Government has not carried its
“formidable burden” of showing that the October 29 Memoranda remove
the States’ injuries by curing the Termination Decision’s APA defects. See
Already, LLC v. Nike, Inc., 568 U.S. 85, 90–91 (2013) (quotation omitted)
(laying out the burden for a party attempting to show its injurious conduct
will not recur); City of Jacksonville, 508 U.S. at 662 (explaining that a showing
that the injury is no longer occurring is a prerequisite to showing injurious
conduct will not recur).
3.
Even if the October 29 Memoranda had legal effects, and even if those
legal effects cured the unlawfulness of the Termination Decision, the new
memos would constitute at most a voluntary cessation of unlawfulness.
Again, that’s an independent basis for holding the case is not moot.
The voluntary-cessation rule is well settled: “[A] defendant cannot
automatically moot a case simply by ending its allegedly unlawful conduct
once sued.” Spell, 962 F.3d at 179 (quotation omitted). Were it otherwise,
the Supreme Court has explained, “a defendant could engage in unlawful
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conduct, stop when sued to have the case declared moot, then pick up where
he left off, repeating this cycle until he achieves all his unlawful ends.” Nike,
568 U.S. at 91. And “a defendant claiming that its voluntary compliance
moots a case bears the formidable burden of showing that it is absolutely clear
the allegedly wrongful behavior could not reasonably be expected to recur.”
Ibid. (quotation omitted). The inquiry centers on “whether the defendant’s
actions are ‘litigation posturing’ or whether the controversy is actually
extinguished.” Yarls v. Bunton, 905 F.3d 905, 910 (5th Cir. 2018).
Our court applies this same test in a slightly modified way when the
defendant is a governmental entity. In such cases, “[w]ithout evidence to the
contrary, we assume that formally announced changes to official
governmental policy are not mere litigation posturing.” Sossamon v. Lone
Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009), aff’d on other grounds sub
nom. Sossamon v. Texas, 563 U.S. 277 (2011). In Speech First, Inc. v. Fenves, we
explained three factors that can overcome the presumption. 979 F.3d 319 (5th
Cir. 2020); see also id. at 328–29 (assuming “arguendo” that the presumption
applies to public universities and analyzing accordingly). They are: “(1) the
absence of a controlling statement of future intention [not to repeat the
challenged policy]; (2) the suspicious timing of the change; and (3) the
[governmental entity’s] continued defense of the challenged polic[y]” after
the supposedly mooting event. Id. at 328. If all three factors obtain, the case
isn’t moot. See id. at 328–29 (declining to decide whether fewer than three
will suffice).
This case fits Fenves like a glove. DHS has repeatedly exhibited
gamesmanship in its decisionmaking. DHS first announced it was suspending
MPP on Inauguration Day 2021. See Biden I, 2021 WL 3603341, at *7 (noting
the suspension went into effect the next day, on January 21). As the district
court pointed out:
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Since that day, DHS has not offered a single justification for
suspending new enrollments in the program during the period
of [its review of MPP]. Indeed, when the original
administrative record was filed [in district court] prior to the
June 1 Memorandum’s issuance, it contained only a single
document — the January 20 Memorandum. There was no cost-
benefit analysis or any sort of reasoned decisionmaking for a
court to review.
Id. at *8 (citation omitted) (emphasis added). The States challenged that
Suspension Decision on April 13. They “alleged that DHS’s two-sentence,
three-line memorandum” violated the APA and § 1225, among other things.
Id. at *1 (quotation omitted). On May 14, the States moved for a preliminary
injunction against the Suspension Decision. Ibid.
In the midst of briefing, DHS tried—successfully—to moot that
challenge. This by way of its June 1 Termination Decision, which
permanently ended MPP. See ibid. The district court held this mooted the
States’ challenge to the Suspension Decision, thus allowing the Government
to avoid any responsibility for its completely unreasoned, two-sentence
decision that started this whole case. Ibid.
After the district court allowed the States to replead a challenge to the
Termination Decision, DHS threw another last-minute wrench into the
bench trial. See id. at *2. At least three weeks before the trial was scheduled
to begin, DHS became aware the administrative record was missing a key
document: DHS’s own 2019 assessment of MPP, which judged the policy to
be a success. Ibid.; id. at *5 (describing the assessment). Despite the advance
notice, DHS waited until two days before the one-day bench trial to add it to
the record. Id. at *2.
The States claimed unfair surprise and moved to have the addition
excluded, see ECF No. 80, but the district court denied that motion, see ECF
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No. 85. It pointed out: “Defendants even waited until 3:27pm two days
before the [trial] to file the corrected Administrative Record, despite the
declaration of the custodian [explaining that DHS had noticed the omission]
being electronically signed at 5:14 p.m. Eastern time the day before.” Id. at 2.
This behavior, said the district court, came “perilously close to undermining
the presumption of administrative regularity” courts normally accord to
agency procedures. Biden I, 2021 WL 3603341, at *2 (quoting ECF No. 85 at
3). In the end, despite the States’ limited opportunity to tailor their case to
the inclusion of the 2019 assessment, the assessment played a significant role
in the district court’s analysis. See id. at *19 (“By ignoring its own previous
assessment on the importance of deterring meritless asylum applications
without a reasoned analysis for the change, [DHS] acted arbitrarily and
capriciously.” (quotation omitted)).
DHS continued its tactics on appeal. After we denied its motion for a
stay, DHS announced its intention to issue a new memorandum. See Biden
II, 10 F.4th 538 (decided August 19); DHS Announces Intention to
Issue New Memo Terminating MPP (posted September 29),
screenshotted at supra page 25. On the Friday before oral argument—
October 29—DHS issued its new Memoranda. Around 4:30 p.m. that
Friday, the Government filed its 26-page Suggestion of Mootness.
Those facts easily satisfy all three Fenves factors. First, DHS “has not
issued a controlling statement of future intention” to refrain from repeating
MPP’s termination. Fenves, 979 F.3d at 328–29. In Fenves, the University
president, “in his official capacity, represent[ed] in his brief that the
University has no plans to, and will not, reenact the [challenged] policies.”
Id. at 328 (quotation omitted). The court held that wasn’t enough: Only
“sworn testimony” from someone with “control” over the relevant policy
choice would suffice. Id. at 328–29 (quotation omitted). This case is even
more clear-cut. The Government’s Suggestion of Mootness doesn’t even
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claim that DHS has forsworn further memos on this topic. And there’s
certainly nothing close to “sworn testimony” establishing such a
commitment.
Second, “the timing of [DHS’s] policy amendments is at least as
suspicious as was the timing of the changes in” Fenves. Id. at 329. In Fenves,
the timing was “suspicious” because the University only began reviewing its
policies after it lost in district court. Ibid. And the “changes were first
announced only in the University’s appellate brief.” Ibid. Here, as in Fenves,
DHS started reviewing its policy only after losing in district court. And unlike
Fenves, DHS made the change the Friday before oral argument—long after
briefing had concluded. That timing, combined with DHS’s pattern of
belated shifts and its eleventh-hour mooting of the States’ original challenge,
is more than a little “suspicious.” Ibid.
Third, DHS “continues to defend the original policies . . . as it did in
the district court.” Ibid. DHS’s original stance, expressed in its briefing, was
that the June 1 Termination Decision was entirely defensible and legal. In no
way does the Suggestion of Mootness alter that stance. Nor do the October
29 Memoranda themselves. And if any doubt remained on this score, oral
argument would remove it. When asked whether “the Government
believe[s] that the June 1 Memo was a lawful exercise of government power,”
the Government’s counsel responded: “Yes, your honor.” Oral Argument
at 55:46–55:54.
Even after giving DHS “some solicitude” in the voluntary-cessation
analysis, Sossamon, 560 F.3d at 325, we hold this case is not moot. Each of the
three Fenves factors is at least as obvious here as in Fenves itself. DHS has
therefore not borne its “formidable burden of showing that it is absolutely
clear the allegedly wrongful behavior could not reasonably be expected to
recur.” Nike, 568 U.S. at 91 (quotation omitted).
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Instead of trying to shoulder that burden, the Government asserts the
Memoranda can’t possibly fit into the voluntary-cessation doctrine because
DHS issued them in response to the district court’s remand order. That’s
incorrect because it ignores the fundamental one-court-at-a-time rule. “The
general rule is that a case can exist only in one court at a time, and a notice of
appeal permanently transfers the case to us until we send it back.” United
States v. Lucero, 755 F. App’x 384, 386 (5th Cir. 2018) (per curiam); see also
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam)
(“The filing of a notice of appeal is an event of jurisdictional significance—it
confers jurisdiction on the court of appeals and divests the district court of
its control over those aspects of the case involved in the appeal.”).
That same principle applies when an agency notices an appeal instead
of accepting a remand order. Thus, if the Government wanted the October
29 Memoranda to be assessed as a response to the district court’s remand, it
should have voluntarily dismissed this appeal and asked the district court for
relief from the judgment. See Fed. R. App. P. 42(b) (allowing for voluntary
dismissal); Fed. R. Civ. P. 60(b) (providing a mechanism for a party to
seek relief from a judgment); Part V.A, infra pages 106–09 (discussing
DHS’s attempt to have it both ways at once in this case). That court’s
disposition of such a motion, of course, would have been an appealable final
decision. See, e.g., Brumfield v. La. State Bd. of Educ., 806 F.3d 289, 296 (5th
Cir. 2015) (“[T]he district court’s denial of the 60(b)(4) motion amounts to
a refusal to dissolve an injunction, making the denial appealable under this
court’s precedent.”). Such an approach would have run parallel to DHS’s
path in Regents itself, where a post-remand DHS returned to the district court
with its second memorandum, waited for the district court’s ruling, and
appealed that ruling. 140 S. Ct. at 1904–05 (explaining that, before appealing,
“[t]he Government asked the D. C. District Court to revise its prior order in
light of [the new memorandum], but the court declined”). That’s what
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allowed the appeals courts in the Regents litigation to proceed with the benefit
of full, first-instance review from the district court on the merits of both sets
of agency documents.
The Government was entirely free, of course, to appeal when it did.
But it may not invoke the timing of its own appeal to avoid the voluntary-
cessation doctrine. Just as a litigant cannot notice an appeal and then
continue litigating the case in the district court, an agency cannot notice an
appeal and then act as if it had accepted the remand order.
4.
Finally, and in any event, independent principles of appellate law
prohibit the Government’s efforts to inject the October 29 Memoranda into
this case at the eleventh hour. Three bear emphasis.
First and foremost is the record rule. Immediately after empowering
courts to review agency action, the APA commands: “In making the
foregoing determinations, the court shall review the whole record or those
parts of it cited by a party.” 5 U.S.C. § 706; SEC v. Chenery Corp., 318 U.S.
80, 87 (1943) (“The grounds upon which an administrative order must be
judged are those upon which the record discloses that its action was based.”).
That rule applies not only to arbitrary-and-capricious review, see
§ 706(2)(A), but also to review for compliance with statutes, see § 706(2)(C).
Thus, we will apply the law to the facts based on the agency record as it stood
on the date of the Termination Decision—June 1.
Second, the States challenged the June 1 Termination Decision in
district court. They did not challenge the October 29 Memoranda, which
obviously did not exist at the time of the district court proceedings. This is
an appeal from the district court’s disposition of the States’ challenge, and
the merits of DHS’s actions on October 29 are not before us. Indeed, because
the reopening doctrine establishes that the October 29 Memoranda
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embodied no final agency action, see Part II.A.2.b, supra pages 20–27, we do
not have jurisdiction to decide those merits.
Third, the general rule is that “we are a court of review, not of first
view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005); see also Landry’s,
Inc. v. Ins. Co. of the State of Pa., 4 F.4th 366, 372 n.4 (5th Cir. 2021). That
rule counsels against considering the merits of the October 29 Memoranda
before a district court has done so. Cf. Planned Parenthood of Greater Wash. &
N. Idaho v. HHS, 946 F.3d 1100, 1110–15 (9th Cir. 2020) (holding a 2019
agency funding allocation didn’t moot a challenge to the 2018 version of the
same allocation, deciding the merits without regard to the 2019 allocation,
and declining to address most issues not considered by the district court). 8
C.
Now, standing. Several factual findings were central to the district
court’s standing analysis, and they will be central to ours as well. So we begin
by reviewing those findings for clear error, and we find none. Then we
conclude the States have standing to bring this suit.
1.
Under clear-error review, “[i]f the district court’s view of the
evidence is plausible in light of the entire record, an appellate court may not
reverse even if it is convinced that it would have weighed the evidence
differently in the first instance.” Brnovich v. Democratic Nat’l Comm., 141 S.
8
While we cannot and will not consider the merits of the October 29 Memoranda, we
obviously can, must, and already have addressed the memos’ effect on our jurisdiction
(which is none, as it turns out). “This court necessarily has the inherent jurisdiction to
determine its own jurisdiction.” Camsoft Data Sys., Inc. v. S. Elecs. Supply, Inc., 756 F.3d
327, 333 (5th Cir. 2014) (quotation omitted). As explained above in Part II.A.2, supra pages
17–29, and in Part II.B.1–3, supra pages 30–45, the October 29 Memoranda do nothing to
destroy our jurisdiction.
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Ct. 2321, 2349 (2021). That same standard applies to facts that underlie
jurisdictional issues like standing. See Env’t Tex. Citizen Lobby, Inc. v.
ExxonMobil Corp., 968 F.3d 357, 367 (5th Cir. 2020) (“Because this case was
tried, Plaintiffs needed to prove standing by a preponderance of the evidence.
A factual finding that a plaintiff met that burden is reviewed for clear error.”
(citation omitted)); DeJoria v. Maghreb Petroleum Expl., S.A., 935 F.3d 381,
390 (5th Cir. 2019) (“[J]urisdiction is a legal question. But the facts that
underlie a jurisdictional determination are still reviewed only for clear
error.”).
a.
The district court’s most important finding was that MPP’s
termination has increased the number of aliens released on parole into the
United States, including Texas and Missouri. See Biden I, 2021 WL 3603341,
at *8 (“Without MPP, Defendants are forced to release and parole aliens into
the United States because Defendants simply do not have the resources to
detain aliens as mandated by statute.”); see also 8 U.S.C. § 1182(d)(5) (laying
out parole procedures).
The court rooted that finding firmly in the evidence before it. The
court noted DHS’s inadequate detention capacity, citing both a record
declaration and some of DHS’s own publications on the matter. Biden I, 2021
WL 3603341, at *8–9. So it’s unsurprising that on appeal, even the
Government admits DHS is “detaining at or near its capacity limits.” Next,
the court pointed to evidence that “the termination of MPP has contributed
to the current border surge.” Biden I, 2021 WL 3603341, at *9 (citing DHS’s
own previous determinations that MPP had curbed the rate of illegal entries).
And it pointed out that the number of “enforcement encounters”—that is,
instances where immigration officials encounter immigrants attempting to
cross the southern border without documentation—had “skyrocketed”
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since MPP’s termination. Ibid.; see also id. at *9 n.7 (noting a sworn statement
of David Shahoulian, then the Assistant Secretary for Border and
Immigration Policy at DHS, who predicted that “total [border] encounters
this fiscal year [2021] are likely to be the highest ever recorded” (emphasis
omitted)). Those pieces of record evidence make it eminently “plausible”
that DHS’s termination of MPP has increased the total number of aliens
paroled into the United States. Brnovich, 141 S. Ct. at 2349.
The Government contests this fact in several ways—none of which
persuades us the district court committed clear error. Broadly, the
Government insists that “[t]he court cited no record evidence demonstrating
that terminating MPP in fact led to an increase in the number of noncitizens
released.” The district court’s record citations belie this claim. See Biden I,
2021 WL 3603341, at *8–9. So does the Government’s own brief. As
discussed below, that brief faults the district court for giving DHS only two
options: either detain aliens (8 U.S.C. § 1225(b)(2)(A)) or return them to
Mexico (8 U.S.C. § 1225(b)(2)(C)). See Part IV.B, infra pages 98–106.
Instead, says the Government, DHS has the third option of paroling aliens
under 8 U.S.C. § 1182(d)(5)(A). Thus, for any given alien whose
nondetention would otherwise violate § 1225, DHS can comply with the law
(and was complying, before the district court’s injunction) simply by paroling
that alien under § 1182.
Put differently, the Government first denies DHS’s policy will
increase the number of paroled aliens. Then it argues DHS is complying with
the law precisely by paroling the aliens it lacks the capacity to detain rather
than returning them to Mexico. That litigating position confirms the district
court’s extensive record citations: MPP’s termination, combined with the
lack of detention capacity, has increased and (without an injunction) will
increase the total number of parolees. See Biden I, 2021 WL 3603341, at *9
(“Even if the termination of MPP played no role in the increasing number of
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migrants, the lack of MPP as a tool to manage the influx means that more
aliens will be released and paroled into the United States as the surge
continues to overwhelm DHS’s detainment capacity.”).
The Government nonetheless contests the district court’s statistics as
to capacity limits and offers its own statistics in their place. This is effectively
a request that we re-weigh the evidence that was before the district court, and
we will not do that. See Brnovich, 141 S. Ct. at 2349. The task of evaluating
competing statistics is precisely the kind of task a district court is best
situated to undertake. Cf. Woodfox v. Cain, 772 F.3d 358, 380 (5th Cir. 2014)
(“Again, given the fact-intensive nature of the statistical inquiry, we can find
no clear error in the district court’s opting to use the one-tailed and two-
tailed tests.”).
Third, the Government faults the district court for considering the
number of encounters between immigration officials and would-be entrants
at the border (called “border encounters”). The Government points out that
officials might be arresting the same would-be entrants multiple times. And
that could artificially inflate the number of encounters, even while the rate of
illegal entries itself remains constant. So, the argument goes, the district court
clearly erred by citing border encounters to conclude MPP’s termination has
contributed to the border surge. This misses the mark entirely. The district
court’s point was just that MPP’s termination has caused an increase in
attempted illegal crossings. And the court quite reasonably used the rate of
border encounters as a proxy for that rate. If illegal entry attempts increase,
it’s irrelevant how many times a given entrant has tried in the past. As in any
other context, a repeat offender is an offender just the same. And in all events,
the Government’s false-positive theory makes sense only if the incidence of
repeat entrants has increased since MPP’s termination. But it offers no such
evidence, and the June 1 Memorandum itself suggests DHS made the
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Termination Decision with the hope that doing so would decrease the rate of
repeat entry.
Fourth, the Government denies that DHS ever acknowledged MPP’s
effectiveness. The district court supported this proposition by reference to a
DHS document that said, “MPP implementation contributes to decreasing
the volume of inadmissible aliens arriving in the United States on land from
Mexico.” Biden I, 2021 WL 3603341, at *5, *9 (quotation omitted). The
Government points out that this quote came under the header “Metric,” and
says the document was therefore doing nothing more than proposing a metric
for measuring MPP’s effectiveness—not touting that effectiveness.
Yes, the quote comes from a sub-header labeled “Metric.” But the
prior page explains that “[t]he following are the intended goals of MPP and
measurements of how those goals are currently being met.” (Emphasis added.)
And just after the metric is a “Data measurement” sub-header, measuring
the “Number of Aliens Enrolled in MPP.” That suggests the document was
doing more than just proposing future measurements—and that instead, it
was actually carrying out measurements itself. So one “plausible” “view of
the evidence” is that DHS was not just proposing a metric but in fact
concluding MPP had already successfully reduced illegal entries. See
Brnovich, 141 S. Ct. at 2349. The district court did not clearly err by
interpreting the DHS document the way it did.
Last and related, the Government argues MPP was an ineffective
deterrent, and that its termination therefore could not have caused an
increase in illegal entries. But the district court made the contrary finding
after its own consideration of the record and weighing of the evidence. See
Biden I, 2021 WL 3603341, at *8–9. That finding is “plausible in light of the
entire record,” Brnovich, 141 S. Ct. at 2349, and we will not disturb it on
appeal. And even if the Government were correct that MPP was an
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ineffective deterrent, the fact remains that, according to both the record and
the Government’s own brief, MPP’s termination drastically increases the
proportion of incoming aliens who are paroled rather than returned to
Mexico. And it is precisely that increase in paroles that causes the States’
harms.
b.
The district court found that the increase in parolees causes the States
financial harm by way of driver’s license applications. Biden I, 2021 WL
3603341, at *9–10. More specifically, the court found both that “[a]s a result
of the termination of MPP, some aliens who would have otherwise been
enrolled in MPP are being released or paroled into the United States and will
obtain Texas driver’s licenses” at a cost to Texas, and that “[e]ach additional
customer seeking a Texas driver’s license imposes a cost on Texas.” Id. at
*9.
Neither finding was clearly erroneous. In DAPA, we observed that
“driving is a practical necessity in most of” Texas. 809 F.3d at 156. For that
reason, we explained, it was “hardly speculative” that individuals would
apply for driver’s licenses upon becoming eligible to do so. Id. at 160. This
case is indistinguishable. Among other things, eligibility for a Texas driver’s
license requires both residence in Texas and lawful status. And under Texas
law, immigration parole under § 1182(d)(5) suffices. See Part II.C.2.b, infra
pages 54–57 (explaining this). Thus, just as in DAPA, it is here “hardly
speculative” that many newly paroled individuals will apply for Texas
licenses. 809 F.3d at 160. Further, the district court found—with support
from the record—that Texas incurs a cost for each driver’s license
application it reviews. Biden I, 2021 WL 3603341, at *10 (citing a declaration
of the Chief of the Texas Department of Public Safety Driver License
Division, which explains, “DPS estimates that for an additional 10,000
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driver[’s] license customers seeking a limited term license, DPS would incur
a biennial cost of approximately $2,014,870.80”). And of course, the record
shows the State incurs a cost for actually granting licenses.
c.
Finally, the district court found that the increase in releases and
paroles will increase the States’ healthcare costs. See Ibid. (citing a record
deposition for the proposition that “[t]he total costs to the State will increase
as the number of aliens within the state increases”). 9 That’s because both
Texas and Missouri subsidize healthcare for immigrants, regardless of
immigration status. See ibid. Federal law affirmatively requires the States to
make some of those expenditures. See 42 C.F.R. § 440.255(c) (Emergency
Medicaid).
The Government appears to concede the obvious—that if the total
number of in-State aliens increases, the States will spend more on healthcare.
The Government’s objection, instead, boils down to repeating its claim that
MPP’s termination can’t have caused either an increase in entries or an
increase in parolees. Because those district court findings were not clearly
erroneous, this objection goes nowhere.
2.
To establish standing, the States “must show an injury that is
‘concrete, particularized, and actual or imminent; fairly traceable to the
challenged action; and redressable by a favorable ruling.’” DAPA, 809 F.3d
at 150 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). And
9
The district court also made findings about educational and criminal-justice costs.
Ibid. We do not address those findings here because nothing turns on them.
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because there was a trial, the States “needed to prove standing by a
preponderance of the evidence.” Env’t Tex. Citizen Lobby, 968 F.3d at 367.
Texas and Missouri each contend they have standing. But because
only one of the States must have standing, we focus on Texas. See
Massachusetts v. EPA, 549 U.S. 497, 518 (2007); accord NRA v. McCraw, 719
F.3d 338, 344 n.3 (5th Cir. 2013). We begin with (a) the special solicitude that
Texas is owed in the standing analysis. Then we hold Texas (b) incurred an
injury in fact that (c) was traceable to the Termination Decision, and that
(d) can be redressed by a favorable judicial decision. Finally, we hold (e) the
Government’s counterarguments are foreclosed by precedent.
a.
At the outset, we note that Texas is entitled to “special solicitude” in
the standing analysis. Massachusetts, 549 U.S. at 520; see also DAPA, 809 F.3d
at 151 (beginning with the special-solicitude question). Special solicitude has
two requirements: (1) the State must have a procedural right to challenge the
action in question, and (2) the challenged action must affect one of the State’s
quasi-sovereign interests. Id. at 151–52 (citing Massachusetts, 549 U.S. at 516–
20). In both Massachusetts and DAPA, the first prong was satisfied because a
State challenged an agency action as invalid under a statute. 549 U.S. at 516–
17 (Clean Air Act); 809 F.3d at 152–53 (APA). And in both cases, the second
prong was satisfied because a State’s challenge involved an agency’s alleged
failure to protect certain formerly “sovereign prerogatives [that] are now
lodged in the Federal Government.” Massachusetts, 549 U.S. at 519–20; see
also DAPA, 809 F.3d at 152–54. Particularly relevant here is DAPA, where
we held that DAPA, by authorizing the presence of many previously unlawful
aliens in the United States, affected “quasi-sovereign interests by imposing
substantial pressure on them to change their laws, which provide for issuing
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driver’s licenses to some aliens and subsidizing those licenses.” 809 F.3d at
153 (quotation omitted).
This case is no different. First, just as in the DAPA suit, Texas is
asserting a procedural right under the APA to challenge an agency action. See
id. at 152 (“In enacting the APA, Congress intended for those ‘suffering legal
wrong because of agency action’ to have judicial recourse, and the states fall
well within that definition.” (quoting 5 U.S.C. § 702)). And second, Texas
asserts precisely the same driver’s-license-based injury here that it did there.
See id. at 153–54 (explaining that DAPA, by greatly increasing the class of
people to whom existing Texas law would entitle a subsidized driver’s
license, pressured Texas to change its own law—thus affecting a quasi-
sovereign interest). Thus, Texas is entitled to special solicitude in the
standing inquiry. If nothing else, that means imminence and redressability are
easier to establish here than usual. See Massachusetts, 549 U.S. at 517–18
(holding a State “can assert [its] right[s] without meeting all the normal
standards for redressability and immediacy” (quotation omitted)). 10
b.
Texas has suffered actual injury already, and it faces additional costs
if the district court’s injunction ends. MPP’s termination has increased the
number of immigrants paroled into Texas under 8 U.S.C. § 1182(d)(5). And
as DAPA discussed at length, Texas law requires the issuance of a license to
any qualified person—including aliens who “present . . . documentation
10
The Government’s sole response is to assert that only a notice-and-comment claim
under 5 U.S.C. § 553—like the claim Texas asserted in DAPA—suffices for special
solicitude. And because the States are making an arbitrary-and-capricious claim under 5
U.S.C. § 706, they don’t qualify. Supreme Court precedent forecloses this argument:
Massachusetts itself recognized a procedural right to bring arbitrary-and-capricious
challenges. See 549 U.S. at 520 (recognizing “a . . . procedural right to challenge the
rejection of [a State’s] rulemaking petition as arbitrary and capricious”).
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issued by the appropriate United States agency that authorizes the applicant
to be in the United States.” 809 F.3d at 155 (alteration in original) (quoting
Tex. Transp. Code § 521.142(a)); see also Tex. Transp. Code
§ 521.181. Parole under 8 U.S.C. § 1182 satisfies that requirement. See Tex.
Dep’t of Pub. Safety, Verifying Lawful Presence 4 (2013),
https://perma.cc/Z55H-GHBH (listing an acceptable document for
“parolees” as “[i]mmigration documentation with an alien number or I-94
number,” and going on to explain that “[t]his can include but is not limited
to an I-94 with annotation ‘parole’ or ‘paroled pursuant to [8 U.S.C.
§ 1182(d)(5)]’”); see also Tex. Dep’t of Pub. Safety, U.S.
Citizenship or Lawful Presence Requirement (2021),
https://perma.cc/5AWR-HVPF (including a hyperlink to the Verifying
Lawful Presence document). Likewise, parole (or any other form of
release into the state, as opposed to return to Mexico) satisfies Texas’s
residency requirement for driver’s licenses. See Tex. Transp. Code
§ 521.1426(a) (“The department may not issue a driver’s license or a
personal identification certificate to a person who has not established a
domicile in this state.”).
Because driving is a “practical necessity in most of the state,” there’s
“little doubt” many newly paroled aliens have applied—and without the
district court’s injunction, will apply in the future—for Texas driver’s
licenses. See DAPA, 809 F.3d at 156. And the district court found, without a
hint of clear error, that each granted license (and each reviewed application for
a license, even if not granted) costs Texas money. It follows that Texas has
been actually injured—or at the least, that it faces imminent injury without
the district court’s injunction. Likewise with healthcare costs.
The Government says that’s not enough because Texas has not shown
it has already issued any licenses to immigrants who became eligible because
of MPP’s termination. Tellingly, however, it offers no hint as to how Texas
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could make that showing—nor why we should require it to do so. Imagine
Texas had produced copies of driver’s license applications from paroled
aliens. Would that have counted as evidence that Texas had, in the
Government’s words, “issued a single additional driver’s license as a result”
of MPP’s termination? Of course not: There would always remain some
possibility that any given parolee would have been paroled even under MPP.
MPP is precisely the sort of large-scale policy that’s amenable to challenge
using large-scale statistics and figures, rather than highly specific
individualized documents. And Texas’s standing is robustly supported by
just such big-picture evidence. There is nothing “conjectural” or
“hypothetical” about that. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
103 (1998) (quotation omitted); cf. DAPA, 809 F.3d at 161–62 (“The state
must allege an injury that has already occurred or is certainly impending; it is
easier to demonstrate that some DAPA beneficiaries would apply for licenses
than it is to establish that a particular alien would.” (quotation omitted)). To
the contrary, given both MPP’s effect of increasing the number of parolees
and the fact that many of those parolees will apply for Texas licenses, it’s
impossible to imagine how the Government could terminate MPP without
costing Texas any money. See Clapper, 568 U.S. at 409 (“[T]hreatened injury
must be certainly impending to constitute injury in fact.” (emphasis
omitted)). And in all events, Massachusetts countenanced a far less obvious
injury than this one. 549 U.S. at 522–23.
Second, the Government resorts to Crane v. Johnson, 783 F.3d 244(5th Cir. 2015), where this court held Mississippi lacked standing to
challenge the Deferred Action for Childhood Arrivals (“DACA”) program.
Id. at 252. Mississippi produced neither “evidence that any DACA eligible
immigrants resided in the state,” nor “evidence of costs it would incur if
some DACA-approved immigrants came to the state.” Ibid. Instead,
Mississippi cited nothing more than a nine-year-old study regarding the costs
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of illegal immigration as a whole (not the costs imposed by DACA in
particular). Id. at 249, 252. We concluded that “Mississippi’s claim of injury
[was] not supported by any facts.” Id. at 252. This case is worlds apart. Texas
has, of course, supported its claim of injury with facts. And that includes
precisely the kind of facts Mississippi was missing: “evidence of costs it
would incur” if MPP increased the number of parolees in the state. See ibid.;
Biden I, 2021 WL 3603341, at *9–10 (citing record evidence of projected costs
to issue additional driver’s licenses, projected costs to evaluate additional
driver’s license applications, and projected healthcare costs).
Third, the Government points out that there’s been a full bench trial
here, unlike the preliminary-injunction posture of DAPA. That is a
distinction, and it means Texas must show standing by a preponderance of
the evidence rather than that it’s merely “likely” to establish standing. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992) (concluding the standing
burden of proof varies with the stages of litigation); Fenves, 979 F.3d at 329
(explaining the standard at the preliminary-injunction stage). Yet the
distinction changes nothing. The district court’s factual findings are not
clearly erroneous. And as just explained, those findings do indeed suffice to
show Texas’s actual or imminent injury by a preponderance of the evidence.
Finally, the Government says Texas’s injuries are self-inflicted and
therefore entirely irrelevant to the standing inquiry. See Pennsylvania v. New
Jersey, 426 U.S. 660, 664 (1976) (per curiam). Our court addressed and
rejected precisely this argument in DAPA. See 809 F.3d at 157–60 (citing
Wyoming v. Oklahoma, 502 U.S. 437 (1992)). The Government does not
acknowledge that exhaustive, precedent-based treatment of the issue, and it
offers no reason at all for holding that Texas’s injury is self-inflicted in this
case when it was not in DAPA. Here, as there, Texas is injured by the
“Hobson’s choice of spending millions of dollars to subsidize driver’s
licenses or changing its statutes.” Id. at 163.
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c.
Texas’s injury is also traceable to DHS’s termination of MPP. The
district court found that MPP’s termination has caused, and will continue to
cause, an increase in immigrants paroled into Texas. Many new parolees are
certain to apply for driver’s licenses—and evaluating each application will
impose costs on Texas. Cf. DAPA, 809 F.3d at 160 (noting that new
immigrants—in that case, DAPA recipients—“have strong incentives to
obtain driver’s licenses, and it is hardly speculative that many would do so if
they became eligible”). Not to mention actually granting licenses. Likewise,
at least some MPP-termination-caused immigrants will certainly seek
healthcare services from the State. The causal chain is easy to see. See
Massachusetts, 549 U.S. at 523 (finding traceability where the EPA’s
challenged action may have caused people to drive less fuel-efficient cars,
which may in turn contribute to a prospective rise in sea levels, which may in
turn cause the erosion of Massachusetts’s shoreline).
The Government nonetheless argues that, when “a causal relation
between injury and challenged action depends upon the decision of an
independent third party . . . standing is not precluded, but it is ordinarily
substantially more difficult to establish.” California v. Texas, 141 S. Ct. 2104,
2117 (2021) (quotation omitted). And the district court’s causal reasoning
relies on mere speculation about “complex decisions made by non-citizens
. . . before they risk[] life and limb to come here.” Arpaio v. Obama, 797 F.3d
11, 21 (D.C. Cir. 2015). Thus, says the Government, Texas’s injury (if any)
can be traced back to immigrants’ choices, not to MPP’s termination.
But the court was not speculating. It did not merely prognosticate that,
sometime in the future, MPP’s termination would influence aliens’ decisions
whether to immigrate illegally. Instead, the court surveyed the record and
found the relevant cause-and-effect had already been taking place (even if
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some of its impacts on Texas were still imminent rather than actual). See
Biden I, 2021 WL 3603341, at *9–10. In other words, MPP’s termination has
already increased the rate of illegal entries and the number of parolees. That
means the States have met their burden “to adduce facts showing that [the
choices of the relevant third parties] have been or will be made in such
manner as to produce causation.” Lujan, 504 U.S. at 562. Those same
findings of past and present facts differentiate this case from others where the
Supreme Court has refused to base standing on speculation about the future
choices of third parties. See, e.g., California, 141 S. Ct. at 2118–19 (“The state
plaintiffs have failed to show that the challenged minimum essential coverage
provision, without any prospect of penalty, will harm them by leading more
individuals to enroll in these programs.” (emphasis added)); Allen v. Wright,
468 U.S. 737, 758 (1984) (“[I]t is entirely speculative . . . whether withdrawal
of a tax exemption from any particular school would lead the school to change
its [racially discriminatory] policies. It is just as speculative whether any
given parent of a child attending such a private school would decide to
transfer the child to public school as a result of any changes in educational or
financial policy made by the private school once it was threatened with loss
of tax-exempt status.” (citation omitted)); Clapper, 568 U.S. at 413 (“[E]ven
if respondents could show that the Government will seek the Foreign
Intelligence Surveillance Court’s authorization to acquire the
communications of respondents’ foreign contacts . . . respondents can only
speculate as to whether that court will authorize such surveillance.”
(emphasis added)). Here, unlike in those cases, MPP’s termination has
already increased the rate of illegal entries into Texas. The only relevant
third-party choice that remains, then, is the alien’s choice to apply for a
license once in Texas.
And in that regard, this case fits comfortably within the reasoning of
Department of Commerce v. New York, 139 S. Ct. 2551 (2019). There, the Court
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concluded traceability was satisfied, even when it hinged on foreseeing “that
third parties will likely react in predictable ways to the citizenship question,
even if they do so unlawfully.” Id. at 2566. That’s because (a) the district
court found that noncitizens’ lower response rates to the census were “likely
attributable at least in part to noncitizens’ reluctance to answer a citizenship
question,” and (b) common sense showed that inference to be a reasonable
prediction rather than “mere speculation.” Ibid. In short, the Court held it’s
entirely permissible to rest traceability “on the predictable effect of
Government action on the decisions of third parties.” Ibid.Here, likewise, the district court found that many newly arrived aliens
will apply for licenses upon becoming eligible. See Biden I, 2021 WL 3603341,
at *9–10; DAPA, 809 F.3d at 160. That is a simple causal inference based on
a simple change in incentives. The district court was not speculating but
instead describing “the predictable effect of Government action on the
decisions of third parties.” Dep’t of Com., 139 S. Ct. at 2566; see also
Massachusetts, 549 U.S. at 523 (finding traceability where the EPA’s
challenged action may have caused people to drive less fuel-efficient cars,
which may in turn contribute to a prospective rise in sea levels, which may in
turn cause the erosion of Massachusetts’s shoreline).
d.
An injunction would redress Texas’s injury by requiring
reinstatement of MPP. And with MPP back in place, immigration officers
would once again have discretion to return certain aliens to Mexico. That
would help to alleviate Texas’s driver’s license- and healthcare-based
injuries. Cf. Massachusetts, 549 U.S. at 525 (“While it may be true that
regulating motor-vehicle emissions will not by itself reverse global warming,
it by no means follows that we lack jurisdiction to decide whether EPA has a
duty to take steps to slow or reduce it.”).
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The Government makes two arguments that it says undercut
redressability. First, it says an injunction would provide no redress because
immigration officers under MPP would have discretion not to return any
given immigrant to Mexico. This argument ignores the fact that DHS
“returned more than 55,000 aliens to Mexico under MPP.” Biden I, 2021
WL 3603341, at *5 (quotation omitted). True, those were exercises of
discretion—discretion the June 1 Termination Decision withdrew by
explicitly requiring “DHS personnel, effective immediately, to take all
appropriate actions to terminate MPP, including taking all steps necessary to
rescind implementing guidance and other directives issued to carry out
MPP.” The Government offers no basis to conclude that a renewed MPP, by
restoring that discretion, would do anything but increase the number of aliens
returned to Mexico. And that would decrease the number of aliens released
into Texas, thereby redressing Texas’s injuries.
Second, the Government argues there is no redressability because
aliens cannot be returned to Mexico without Mexico’s consent. This
argument fails because for at least some aliens, DHS can refuse admission at
ports of entry in the first place. See 8 U.S.C. § 1225(b)(2)(C) (allowing the
Attorney General to “return [an] alien” “who is arriving on land (whether
or not at a designated port of arrival) from a foreign territory contiguous to
the United States . . . to that territory pending a” removal proceeding). Part
of MPP’s function was to exercise that authority on a programmatic,
widespread basis. And DHS can do that unilaterally.
e.
The Government argues that this theory of standing lacks a limiting
principle. It says our reasoning would allow states to object whenever DHS
exercises its discretion not to remove even one noncitizen. See DAPA, 809
F.3d at 161 (explaining that its rationale would not allow standing in such a
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case). It also says our reasoning would let states challenge any federal policy
with an effect on state populations, since such a policy might have some effect
on a state’s fisc.
As we explained in DAPA, the Supreme Court considered precisely
these risks in Massachusetts and found them unpersuasive. DAPA, 809 F.3d
at 161; Massachusetts, 549 U.S. at 546 (Roberts, C.J., dissenting) (raising
similar concerns, evidently without persuading the majority). “After
Massachusetts v. EPA, the answer to those criticisms is that there are other
ways to cabin policy disagreements masquerading as legal claims.” DAPA,
809 F.3d at 161. And our reasoning leaves precisely the same safeguards in
effect as did DAPA. A litigant must have a cause of action to sue. Id. at 161
(citing Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396 (1987)). The litigant
must avoid the dual nonreviewability provisions in 5 U.S.C. § 701(a). Id. at
161–62. The litigant must show it has standing—a feasible task when a broad,
class-based policy makes it a practical certainty that some aliens will apply for
licenses (as in DAPA and here), but not so feasible if the litigant seeks to
challenge an individual immigration decision. See ibid. And most litigants will
not be entitled to special solicitude in the standing inquiry—not even states,
unless a “quasi-sovereign” interest is at stake. Id. at 162 (quoting
Massachusetts, 549 U.S. at 520). The Government’s “parade of horribles” is,
for that reason, purely speculative. Ibid. True, the States have managed to
clear every standing and reviewability hurdle in this case. But it does not
follow that those hurdles have suddenly ceased to exist.
The Government also seeks to differentiate this case from DAPA on
grounds of magnitude—it seems to suggest there’s no standing here because
the damages may not total to millions of dollars. Our court noted that Texas’s
injuries in that case largely depended on its “need to hire employees,
purchase equipment, and obtain office space”—“steps that would be
unnecessary” with smaller numbers of new applicants. DAPA, 809 F.3d at
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162. Regardless of what DAPA had to say on the magnitude of injury required
for standing, the Supreme Court has since clarified that “[f]or standing
purposes, a loss of even a small amount of money is ordinarily an injury.”
Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017) (quotation
omitted); see also Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801–02 (2021)
(nominal damages sufficient for standing’s redressability prong).
III.
We’ve arrived at page 63 of this opinion, but we’re still not ready for
the merits. Two more non-jurisdictional threshold questions remain. First,
do the States have a cause of action to bring this suit? Yes. Second, does the
APA nonetheless shield DHS’s Termination Decision from judicial review?
No.
A.
The States must have a cause of action to sue. And because this is an
APA case, the States’ claims must fall within the zone of interests of the INA.
See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567
U.S. 209, 224–25 (2012). The Supreme Court has repeatedly explained that
the zone-of-interests inquiry is “not especially demanding.” See, e.g.,
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 130 (2014)
(quotation omitted). To satisfy the test, the States must show only that their
asserted interest is “arguably within the zone of interests to be protected or
regulated by” the statutes they claim have been violated. Patchak, 567 U.S.
at 224–25 (quotation omitted) (going on to emphasize the word “arguably”
and the lenience it confers). And though the test is rooted in legislative intent,
the States need not point to “any indication of congressional purpose to
benefit” them. Id. at 225 (quotation omitted). Instead, “[t]he test forecloses
suit only when a plaintiff’s interests are so marginally related to or
inconsistent with the purposes implicit in the statute that it cannot reasonably
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be assumed that Congress intended to permit the suit.” Ibid. (quotation
omitted).
The States easily clear this low bar. As discussed above, MPP’s
termination poses imminent and actual harm to Texas’s fisc. See Part
II.C.2.b, supra pages 54–57. It’s clear that the INA aimed, at least in part, to
protect States from just those kinds of harms. Cf. Demore v. Kim, 538 U.S.
510, 517–22 (2003) (discussing the policy concerns animating Congress’s
1996 amendments to the INA). And that’s exactly what our court concluded
in DAPA, where we explained Texas was within the INA’s zone of interests
because “Texas seeks to participate in notice and comment before the
Secretary changes the immigration classification of millions of illegal aliens
in a way that forces the state to the Hobson’s choice of spending millions of
dollars to subsidize driver’s licenses or changing its statutes.” 809 F.3d at
163. Under the Supreme Court’s lenient test for APA cases, that is more than
enough. See Patchak, 567 U.S. at 224–25.
The Government nonetheless argues the States lack a cause of action
because their claims fall outside the zone of interest of § 1225(b)(2)(A) and
(C). Note the shift—the Government focuses on the zone of interests of two
subparagraphs in § 1225(b)(2) rather than that of the INA (or even
§ 1225(b)(2)) as a whole. That particular form of jiu-jitsu is at odds with both
Fifth Circuit and Supreme Court precedent. See DAPA, 809 F.3d at 163
(analyzing the INA’s zone of interests, not the zone of one particular
provision); Clarke, 479 U.S. at 401 (“In considering whether the ‘zone of
interest’ test provides or denies standing in these cases, we first observe that
the Comptroller’s argument focuses too narrowly on 12 U.S.C. § 36, and
does not adequately place § 36 in the overall context of the National Bank
Act.”).
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The Government also argues “Congress said nothing in Section 1225
about benefiting States or saving them from attenuated financial burdens.”
That argument likewise focuses too narrowly on § 1225, see Clarke, 479 U.S.
at 401, and in any event it’s nothing more than a rehash of the Government’s
failed standing arguments, rejected above. See Part II.C.2, supra pages 52–63.
And the Government’s cases to the contrary are entirely inapposite. See
Fed’n for Am. Immigr. Reform, Inc. v. Reno, 93 F.3d 897, 900–01 (D.C. Cir.
1996) (holding the test unsatisfied, but decided before Patchak and Lexmark
clarified the test’s leniency); INS v. Legalization Assistance Project, 510 U.S.
1301, 1302, 1305 (1993) (O’Connor, J., in chambers) (discussing a different
immigration statute in a suit that did not involve States).
We therefore hold the APA affords the States a cause of action.
B.
The next reviewability question is whether Congress gave with one
hand and took away with the other. The Government argues that, even if the
APA gives the plaintiff States a cause of action to review some agency actions,
it doesn’t extend to this particular one. Why? Because, in the Government’s
view, Congress’s enactment of 5 U.S.C. § 701(a) gave DHS the power to
make the Termination Decision without any review by any court, at any time,
in any way. This is perhaps the Government’s most ambitious claim in a case
that does not want for ambitious assertions of governmental power. And if
the Government were correct, it would have far-reaching implications for the
separation of powers and would herald a new era of lawmaking-by-PDF-
document. We hold the Government is wrong.
The APA creates a “basic presumption of judicial review”: Any
proper plaintiff aggrieved by final agency action may presumptively challenge
that action in federal court. Regents, 140 S. Ct. at 1905; see 5 U.S.C. § 702.
This presumption is “strong” and “well-settled.” DAPA, 809 F.3d at 163
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(going on to note that rebutting the presumption requires “clear and
convincing evidence”). The presumption can be rebutted “by a showing that
[1] the relevant statute precludes review, § 701(a)(1), or [2] that the agency
action is committed to agency discretion by law, § 701(a)(2).” Regents, 140
S. Ct. at 1905 (quotation omitted). We address each in turn.
1.
The Government halfheartedly suggests that the INA is a statute that
“preclude[s] judicial review.” 5 U.S.C. § 701(a)(1). In particular, the
Government points to this text in the INA:
[A]ny other decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is
specified under this subchapter to be in the discretion of the
Attorney General or the Secretary of Homeland Security, other
than the granting of relief under section 1158(a) of this title.
8 U.S.C. § 1252(a)(2)(B)(ii). This restriction, says the Government,
combines with § 1225(b)(2)(C) (which provides the Secretary “may return”
certain aliens to contiguous territories) to deny judicial review of the
Termination Decision.
We disagree for three reasons. For starters, this reviewability
argument succeeds only if the Government prevails on the statutory
interpretation argument itself, discussed below. Because we conclude § 1225
does indeed restrain DHS’s discretion, see Part IV.B, infra pages 98–106, this
reviewability argument must fail.
Second and more fundamentally, the Government misconstrues the
two relevant statutory provisions. Under § 1225(b)(2)(C), the Attorney
General “may return” “an alien”—that is, a certain specified person—to
Mexico pending her removal proceeding. Id. (emphasis added). So perhaps
the Government’s discretionary decision to return one specific person to
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Mexico is affected by the discretion-insulating, jurisdiction-stripping
provision in § 1252(a)(2)(B)(ii). But that’s not what this case is about. The
question here is whether DHS’s decision to terminate an entire program—
operating across an international border and affecting thousands or millions
of people and dollars—is rendered unreviewable by § 1252(a)(2)(B)(ii). And
there’s nothing in that clause to suggest Congress embraced the latter
proposition. To the contrary, the entirety of the text and structure of § 1252
indicates that it operates only on denials of relief for individual aliens. 11 The
Government’s reading of it would bury an awfully large elephant in a really
small mousehole. Cf. Am. Bar Ass’n v. FTC, 430 F.3d 457, 469 (D.C. Cir.
11
At the risk of belaboring an obvious point, we note three features of § 1252 in support.
First, § 1252 is titled “[j]udicial review of orders of removal,” which indicates the section
applies to individual aliens (who are subject to orders of removal) rather than programmatic
decisions. Second, the provisions surrounding § 1252(a)(2)(B) apply to individual removal
decisions and not broad programmatic decisions. Section 1252(a)(2)(A) repeatedly refers
to an “individual determination,” § 1252(a)(2)(A)(i), “individual aliens,”
§ 1252(a)(2)(A)(iii), and to the provisions of § 1225(b)(1) that apply to inspection and
asylum for individual aliens. Obviously none of that contemplates DHS decisions to create
or terminate entire governmental programs outside of individualized removal proceedings.
Subparagraph (C) refers to “any final order of removal against an alien,” yet again
describing an individual removal order and not broad programmatic decisions like the
Termination Decision. Subparagraph (D) refers to a “petition for review” filed by, yet
again, an individual alien. Thus all of the subparagraphs surrounding § 1252(a)(2)(B)—and
hence the structure of the statute—suggest it applies to removal decisions affecting
individual aliens and not broad programmatic decisions made by the Secretary of DHS.
Third, there’s the text of § 1252(a)(2)(B) itself. It begins by stripping jurisdiction to review
“any judgment regarding the granting of relief” under five INA provisions—all of which
affect only individual aliens. § 1252(a)(2)(B)(i). And it preserves judicial review over
certain asylum decisions—again, affecting individual aliens. The text invoked by the
Government (“any other decision . . . the authority for which is specified under this
subchapter to be in the discretion of [DHS]”) is nestled into this litany of individualized
decisions affecting only single aliens. § 1252(a)(2)(B)(ii). The best reading of the “any
other decision” language, then, is that it “appl[ies] only to persons or things of the same
general kind or class specifically mentioned (ejusdem generis).” Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
199 (2012).
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2005) (Sentelle, J.) (“To find [the agency’s view] deference-worthy, we
would have to conclude that Congress not only had hidden a rather large
elephant in a rather obscure mousehole, but had buried the ambiguity in
which the pachyderm lurks beneath an incredibly deep mound of specificity,
none of which bears the footprints of the beast or any indication that
Congress even suspected its presence.”).
Third, the Government wrongly focuses on § 1225(b)(2)(C) in
isolation. When read in context, § 1225(b)(2) comes nowhere close to giving
the Government unreviewable discretion to terminate MPP and release
undocumented immigrants into the United States en masse. Section
1225(b)(2)(A) provides that, under certain circumstances, “the alien shall be
detained” during her removal proceeding. That’s obviously a mandatory
statutory command—not a commitment to agency discretion. Then
§ 1225(b)(2)(C) gives the Government the discretion to return certain
otherwise-detainable aliens to Mexico. Those provisions cannot be read
together to give the Government unreviewable discretion to release anyone.
Cf. Hawkins v. HUD, 16 F.4th 147, 155 (5th Cir. 2021) (“Whereas the first
sentence in the regulation employs discretionary language when the two
conditions are present (HUD ‘may’ undertake certain actions), the second
sentence uses quintessential mandatory language (HUD ‘shall’ provide
assistance) when a third condition is established in addition to the first
two.”).
2.
Next is 5 U.S.C. § 701(a)(2), which disallows judicial review of
“agency action . . . committed to agency discretion by law.” The Supreme
Court has held that “an agency’s decision not to institute enforcement
proceedings [is] presumptively unreviewable under § 701(a)(2).” Lincoln v.
Vigil, 508 U.S. 182, 191 (1993) (citing Heckler, 470 U.S. at 831). We conclude
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Heckler does not bar judicial review in this case. The first reason is that
Heckler does not apply to agency rules. Second, even if it did, it would not
apply to this agency rule. And third, even if the presumption applied to rules,
the clear statutory text would override it here.
Before we explain, take careful note of the APA’s presumption
structure. By default in APA cases, we presume reviewability. See, e.g.,
Regents, 140 S. Ct. at 1905. That presumption flips if Heckler applies, see, e.g.,
Lincoln, 508 U.S. at 191, but not before then. Thus, it’s perfectly correct to
presume nonreviewability once we know we’re in Heckler’s domain. But it’s
perfectly incorrect to presume we’re in Heckler’s domain at the outset. That
would be question-begging of the worst sort, and it would fly in the face of
Supreme Court precedent. See, e.g., Regents, 140 S. Ct. at 1905.
a.
Heckler does not apply to agency rules. To understand why, we must
start with the English constitutional tradition against which the Founders
framed our Constitution’s executive power and against which the Supreme
Court decided Heckler. We (i) explain the background principles of English
law. Then we (ii) explain our Constitution’s executive power. Next we
(iii) turn to Heckler and (iv) its progeny. Then (v) we apply these principles
to this case and hold that, far from barring our review, Heckler powerfully
supports it. And finally, (vi) we reject the Government’s counterarguments.
i.
We begin with English law’s struggle against royal prerogative. The
word “prerogative” refers to powers that are vested in the executive and not
governed by law. See John Locke, Two Treatises of
Government 375 (Peter Laslett ed. 1988) (“This power to act according
to discretion, for the public good, without the prescription of the law, and
sometimes even against it, is that which is called prerogative.”). It also
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connotes powers that inhere in the king by virtue of his kingship. See Michael
W. McConnell, Tradition and Constitutionalism Before the Constitution, 1998
U. Ill. L. Rev. 173, 178 (1998).
Most relevant here are the suspending and dispensing prerogatives
wielded by the Stuart Kings Charles II and James II. See Michael W.
McConnell, The President Who Would Not Be King:
Executive Power Under the Constitution 115–19 (2020)
(discussing the life and death of these powers). These prerogatives were
closely related to one another, but they were not identical. As one historian
put it, “[t]he power to suspend a law was the power to set aside the operation
of a statute for a time. It did not mean, technically, the power to repeal it. The
power to dispense with a law meant the power to grant permission to an
individual or a corporation to disobey a statute.” Lois G. Schwoerer,
The Declaration of Rights, 1689, at 59–60 (1981); see also Carolyn
A. Edie, Tactics and Strategies: Parliament’s Attack upon the Royal Dispensing
Power 1597–1689, 29 Am. J. Legal Hist. 197, 198–99 (1985) (similar
explanation, including distinguishing the dispensing power from the
pardoning power on the ground that the former “made the act or thing
prohibited lawful to be done by him who hath” the dispensation (quotation
omitted)).
As Catholic kings governing a Protestant nation, the Stuarts focused
their prerogatives most fiercely on laws that excluded Catholics from certain
offices and positions. See McConnell, supra, at 116 (discussing). For
instance, in 1661, Parliament required certain officials to swear an “Oath of
Allegiance and Supremacy” to profess faith in the Church of England and
renounce Catholicism. Corporation Act of 1661, 13 Car. II, st. 2 c. 1. Charles
II eventually responded by suspending all such laws. He said: “We do . . .
declare our will and pleasure to be, that the execution of all, and all manner
of penal laws in matters ecclesiastical, against whatsoever sort of
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nonconformists, or recusants, be immediately suspended, and they are
hereby suspended.” King Charles II, Declaration of Indulgence (Mar. 15,
1672). Thus, Charles purported to set aside the laws entirely—literally, to
suspend their operation. Parliament ended up forcing Charles II to rescind
that declaration. Parliament also enacted the Test Act of 1672, 25 Car. II c.
2, and the Test Act of 1678, 30 Car. II, st. 2. These Acts (together the “Test
Act”) excluded Catholics from public office. See 2 Henry Hallam,
Constitutional History of England from the Accession
of Henry VII to the Death of George II 149–50 (1827).
Charles II died in 1685, and his brother James II assumed the throne
that same year. “Not trusting Protestant militias and gentry to protect him
from rebellion, James II tried to create an enlarged standing army under the
control of Catholic officers, and to put Catholic peers in key positions in the
Privy Council and the government.” McConnell, supra, at 116. The Test
Act stood in his way, so he granted dispensations from it—thereby allowing
certain Catholics to hold high-ranking civil and military offices in defiance of
Parliament. After various political intrigues (all interesting but none relevant
here), a court sided with James II and held “that the King had a power to
dispense with any of the laws of Government as he saw necessity for it.”
Godden v. Hales, 2 Show. 475, 478 (K.B. 1686). Score one for prerogative.
Flush with victory, James II decided to go further, suspending the
Test Act in toto. He declared “that from henceforth the execution of all and
all manner of penal laws in matters ecclesiastical . . . be immediately
suspended; and the further execution of the said penal laws and every of them
is hereby suspended.” King James II, Declaration of Indulgence (Apr. 4,
1687). The following year, James II reissued that same Declaration, requiring
Anglican clergy to read it aloud from their pulpits. Seven bishops petitioned
the King to withdraw the order. So the King charged them with seditious libel
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on the theory that they had falsely denied his suspension and dispensation
powers.
This gave rise to the celebrated Case of the Seven Bishops, 12 How. St.
Tr. 183 (K.B. 1688). The King’s Bench split 2-2 and sent the case to a jury to
break the tie. 12 The jury acquitted the bishops, and all of London exploded
into celebration. Edie, 29 Am. J. Legal Hist. at 229. “The charge had
been one of libel, but the verdict was against the prerogative.” Ibid.; see also
McConnell, supra, at 116 (explaining the case’s impact).
After William of Orange deposed James II—in part because of James’s
abuse of the suspending and dispensing powers—Parliament drafted the
English Bill of Rights. Its very first declaration reads: “That the pretended
Power of Suspending of Laws, or the Execution of Laws, by regal Authority,
without Consent of Parliament, is illegal.” An Act Declaring the Rights and
Liberties of the Subject and Settling the Succession of the Crown (1689). Its
second declaration reads: “That the pretended power of dispensing with laws
or the execution of laws by regal authority, as it hath been assumed and
12
Justice John Powell, who voted against the King, explained his reasoning:
Gentlemen, I do not remember, in any case in all our law (and I have taken
some pains upon this occasion to look into it), that there is any such power
in the king, and the case must turn upon that. In short, if there be no such
dispensing power in the king, then that can be no libel which they
presented to the king, which says, that the declaration, being founded upon
such a pretended power, is illegal.
Now, gentlemen, this is a dispensation with a witness: it amounts to an
abrogation and utter repeal of all the laws; for I can see no difference, nor
know of none in law, between the king’s power to dispense with laws
ecclesiastical, and his power to dispense with any other laws whatever. If
this be once allowed of, there will need no parliament; all the legislature
will be in the king, which is a thing worth considering, and I leave the issue
to God and your consciences.
12 How. St. Tr. at 183.
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exercised of late, is illegal.” Thus, the English Bill of Rights codified the
celebrated verdict from the Case of the Seven Bishops.
This became a fundamental tenet of English law. McConnell,
supra, at 117. As Blackstone explained, “it was formerly held, that the king
might, in many cases, dispense with penal statutes.” 1 William
Blackstone, Commentaries on the Laws of England *186
(1753) [hereinafter Blackstone’s Commentaries]. But by
Blackstone’s time, he noted, the English Bill of Rights had “declared, that
the suspending or dispensing with laws by regal authority, without consent of
parliament, is illegal.” Ibid. Or as Lord Mansfield put it in 1766, “I can never
conceive the prerogative to include a power of any sort to suspend or
dispense with laws.” 16 The Parliamentary History of
England 267 (T.C. Hansard ed. 1813) (going on to explain that “the duty
of [the executive] is to see the execution of the laws, which can never be done
by dispensing with or suspending them”).
ii.
The Framers agreed that the executive should have neither
suspending nor dispensing powers. And they framed our Constitution against
the backdrop of that belief. The delegates to the Constitutional Convention
voted “[o]n question ‘for giving this suspending power’” to the President. 1
The Records of the Federal Convention of 1787 104 (Max
Farrand ed. 1911). Madison recorded that the vote was a unanimous no. Ibid.
Further, the amended Virginia Plan originally gave a “single person” the
“power to carry into execution the national laws.” Id. at 67. That text passed
through the Committee on Detail, which was chaired by John Rutledge—a
major critic of royal prerogatives. Id. at 65. The Committee changed the text
to read more or less as the Take Care Clause does now: “he shall take care
that the laws of the United States be duly and faithfully executed.” Id. at 185;
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see also McConnell, supra, at 118 (“[T]he significance [of the wording
change] is that the President has the duty, not just the authority, to carry the
laws of the nation into execution.”). Hence, George Nicholas could conclude
during Virginia’s ratification debate that “[t]he English Bill of Rights
provides that no laws shall be suspended. The Constitution provides that no
laws shall be suspended, except one, and that in time of rebellion or invasion,
which is the writ of habeas corpus.” 3 Jonathan Elliot, Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 246 (2d ed. 1881).
And since then, both courts and the executive branch itself have
recognized the president’s inability to suspend or dispense with the law.
Consider United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806). There,
the defendants claimed President Thomas Jefferson had authorized them to
violate the Neutrality Act. President Jefferson’s lawyers responded that such
an authorization would be either suspension or dispensation—and therefore
unconstitutional under the Take Care Clause. Id. at 1203 (explaining the
president “cannot suspend [a statute’s] operation, dispense with its
application, or prevent its effect . . . . If he could do so, he could repeal the
law, and would thus invade the province assigned to the legislature”).
Supreme Court Justice William Paterson, riding circuit, agreed and
concluded the Take Care Clause “explicitly” denies the president’s power
to dispense with laws. Id. at 1229.
Consider also President Andrew Jackson’s attempt to convince the
Supreme Court that he, and only he, got to decide whether the laws were
being faithfully executed. See Kendall v. United States ex rel. Stokes, 37 U.S.
(12 Pet.) 524, 612–13 (1838). The Court forcefully responded that presidents
have no power to suspend the law: “To contend that the obligation imposed
on the President to see the laws faithfully executed, implies a power to forbid
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their execution, is a novel construction of the constitution, and entirely
inadmissible.” Id. at 613 (emphasis added).
Scholars also broadly agree that the Constitution ruled out the
suspending and dispensing powers. As one professor explained it:
The duty to execute laws “faithfully” means that American
presidents may not—whether by revocation, suspension,
dispensation, inaction, or otherwise—refuse to honor and
enforce statutes that were enacted with their consent or over
their veto. Many scholars have agreed that the Take Care
Clause was meant to deny the president a suspending or
dispensing power.
Christopher N. May, Presidential Defiance of
“Unconstitutional” Laws 16 (1998); id. at 160 n.58 (collecting
sources); see also McConnell, supra, at 118 (“[I]t would be hard to
imagine language that would preclude those prerogatives more effectively”
than does the language in the Take Care Clause.); David Gray Adler, George
Bush and the Abuse of History: The Constitution and Presidential Power in
Foreign Affairs, 12 UCLA J. Int’l L. & Foreign Affs. 75, 99–100
(2007); Saikrishna Bangalore Prakash, The Great Suspender’s
Unconstitutional Suspension of the Great Writ, 3 Alb. Gov’t L. Rev. 575
(2010) (arguing Lincoln’s suspension of habeas corpus was
unconstitutional).
iii.
Heckler is best understood as a recognition of these principles. There,
death-row inmates had asked the Food and Drug Administration (the
“FDA”) to “take various enforcement actions” against states and drug
companies regarding lethal-injection drugs. 470 U.S. at 823. The FDA
refused, and the inmates sued under the APA. Ibid. The Court held the
FDA’s decision unreviewable under § 701(a)(2). It explained that “an
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agency’s decision not to prosecute or enforce, whether through civil or
criminal process, is a decision generally committed to an agency’s absolute
discretion.” Id. at 831–32 (“[A]n agency’s decision not to take enforcement
action should be presumed immune from judicial review under §
701(a)(2).”). In other words, a litigant may not waltz into court, point his
finger, and demand an agency investigate (or sue, or otherwise enforce
against) “that person over there.” Thus, Heckler recognized and carried
forward the executive’s longstanding, common-law-based discretion to do
nothing in a particular case. See id. at 831 (citing Confiscation Cases, 74 U.S.
(7 Wall.) 454 (1869)).
But the Court also carried forward the executive’s duty to faithfully
execute the laws. Thus, the Court recognized that Congress can rebut the
common-law presumption that nonenforcement discretion is unreviewable.
Specifically, “the presumption may be rebutted where the substantive
statute has provided guidelines for the agency to follow in exercising its
enforcement powers.” Id. at 832–33. In other words, the executive cannot
look at a statute, recognize that the statute is telling it to enforce the law in a
particular way or against a particular entity, and tell Congress to pound sand.
So Heckler expressly embraces the common law’s condemnation of the
dispensing power. Compare ibid. (explaining Congress’s ability to rebut the
nonreviewability presumption), with Smith, 27 F. Cas. at 1203 (explaining
that the Constitution does not let the president “suspend [a statute’s]
operation, dispense with its application, or prevent its effect”). Moreover,
the Court emphasized that nothing in the Heckler opinion should be
construed to let an agency “consciously and expressly adopt[] a general
policy that is so extreme as to amount to an abdication of its statutory
responsibilities.” Heckler, 470 U.S. at 833 n.4 (quotation omitted). This, of
course, is a condemnation of the suspending power. Compare ibid., with
Kendall, 37 U.S. at 613 (“To contend that the obligation imposed on the
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President to see the laws faithfully executed, implies a power to forbid their
execution, is a novel construction of the constitution, and entirely
inadmissible.”).
Heckler’s two “exceptions,” then, were not random. 13 They were
instead recognitions of the hoary principle that the executive branch may
neither suspend nor dispense with the laws. By recognizing those principles,
the Court harmonized the common law’s rule in favor of enforcement
discretion with the common law’s (and the Constitution’s) rule against
suspensions and dispensations.
None of that would make any sense if Heckler nonenforcement
discretion applied to rules. Start with the definition of “rule.” Under the
APA, that word simply means “the whole or a part of an agency statement of
general or particular applicability and future effect designed to implement,
interpret, or prescribe law or policy or describing the organization,
procedure, or practice requirements of an agency.” 5 U.S.C. § 551(4). Courts
typically emphasize “general . . . applicability” at the expense of “particular
applicability.” E.g., Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 892 (1990)
(concluding, in the § 551 context, that “the individual actions . . . identified
in the six affidavits can be regarded as rules of general applicability” (emphasis
added)). Contrast that with an “order.” See § 551(6) (defining “order” as
“the whole or a part of a final disposition, whether affirmative, negative,
injunctive, or declaratory in form, of an agency in a matter other than rule
making but including licensing”).
13
This does not include the unrelated exception for the case where an agency refuses
to enforce “based solely on the belief that it lacks jurisdiction.” Heckler, 470 U.S. at 833
n.4.
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The Government’s contention that Heckler should apply to rules is
reminiscent of the Stuarts. The heart of Charles II’s 1672 suspension was that
“the execution of all, and all manner of penal laws in matters ecclesiastical
. . . be immediately suspended.” Charles II, Declaration of Indulgence (Mar.
15, 1672). And James II’s suspension similarly proclaimed “that from
henceforth the execution of all and all manner of penal laws in matters
ecclesiastical . . . be immediately suspended.” King James II, Declaration of
Indulgence (Apr. 4, 1687). Thus, suspending a law is nothing more than
(a) announcing a refusal to enforce that law (as per Heckler) and (b) applying
that refusal on a generalized, prospective basis (à la “rule” under § 551(4)).
To apply Heckler to rules, then, would be to contort the Supreme Court’s
precedent into a rejection of the English Bill of Rights of 1689. That simply
can’t be right.
Once we recognize that Heckler nonreviewability applies only to orders
and not rules, the problem disappears entirely. The Stuart suspensions are
ineligible for the nonreviewability presumption precisely because those
suspensions would be, in today’s parlance, “rules of general applicability”
under the APA. See Lujan, 497 U.S. at 892. The common law left the
executive free to leave the law unenforced in particular instances and at
particular moments in time. See, e.g., Confiscation Cases, 74 U.S. at 457–59, 462
(recognizing the executive’s nonreviewable discretion to simultaneously
dismiss several civil forfeiture proceedings it had instituted). But the English
Bill of Rights, followed by the Constitution, explicitly forbade the executive
from nullifying whole statutes by refusing to enforce them on a generalized
and prospective basis.
iv.
That is why the Supreme Court and the Fifth Circuit have
consistently read Heckler as sheltering one-off nonenforcement decisions
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rather than decisions to suspend entire statutes. Heckler’s progeny never has
allowed the executive to affirmatively enact prospective, class-wide rules
without judicial review.
Heckler itself, as discussed above, contains no hint of an intent to allow
such suspension. Likewise with Motor Vehicle Manufacturers Ass’n of the
United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29(1983). The State Farm Court held that an agency rule is reviewable—even
when the rule does nothing but remove preexisting legal constraints. Id. at
39–41. The National Highway Traffic Safety Administration had previously
required (by rule) passive safety restraints in cars. Id. at 37. Then it issued a
new rule that rescinded that requirement. Id. at 38. The Court had no trouble
reviewing the new rule. Id. at 40–41. 14
Massachusetts confirms that Heckler doesn’t apply to rulemaking. The
Court there asked whether the denial of a petition for rulemaking—the mere
decision not to make a rule—was reviewable. 549 U.S. at 527. The answer
was a qualified yes: Such decisions are subject to limited review. Id. at 527–
28 (going on to explain the relevant differences between nonenforcement
decisions and refusals to initiate rulemaking). But if the decision not to make
a rule is subject to limited review under Massachusetts, how could the decision
to make a rule be entirely exempt from review under Heckler?
14
It’s true that the Supreme Court decided State Farm before Heckler. But the State
Farm Court acknowledged—and held inapplicable—the longstanding doctrine that “an
agency’s refusal to take action in the first instance” is nonreviewable. 463 U.S. at 39–41.
Indeed, the Court acknowledged that “rescission is not unrelated to an agency’s refusal to
take action in the first instance,” but went on to find the rescission reviewable precisely
because the organic statute in question applied the APA’s ordinary reviewability rules to
the issue at hand. Ibid. Thus, applying Heckler to rules would seem to entail that Heckler
overturned State Farm sub silentio. But see Heckler, 470 U.S. at 839 (Brennan, J., concurring)
(explaining that Heckler did not overturn State Farm sub silentio).
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And United States v. Armstrong, 517 U.S. 456 (1996), further
underscores the point. There the Court considered a claim of race-based
selective prosecution. Id. at 458. Before conducting its due process analysis,
the Court noted that “[i]n the ordinary case, ‘so long as the prosecutor has
probable cause to believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute, and what charge to file or
bring before a grand jury, generally rests entirely in his discretion.’” Id. at
464 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). That
canonical formulation has everything to do with the decision whether to
enforce a law against a given individual. It has nothing to do with flouting a
statutory command as to an entire class of people, as DHS has done here. See
Part IV.B, infra pages 98–106 (explaining the statutory command). And it has
less-than-nothing to do with engaging in APA rulemaking.
Our cases likewise apply Heckler, if at all, to one-off agency
enforcement decisions rather than to agency rulemakings. See, e.g., Chao v.
Occupational Safety & Health Rev. Comm’n, 480 F.3d 320, 324 n.3 (5th Cir.
2007) (Heckler protected the Secretary of Labor’s “prosecutorial discretion
to cite only a single willful violation where the facts alleged would support
numerous willful violations.”); Ellison v. Connor, 153 F.3d 247 (5th Cir. 1998)
(applying Heckler to an agency’s decision not to issue an individual permit,
where the governing statute provided no standard by which to judge such a
decision); Pub. Citizen, Inc. v. EPA, 343 F.3d 449, 455 (5th Cir. 2003)
(applying Heckler to the EPA’s “decision not to issue [notices of deficiency]
related to four aspects of” a Texas state program).
Apparently, the lone exception in this centuries-old line of cases was
the now-vacated Texas v. United States (Interim Enforcement), 14 F.4th 332(5th Cir. 2021), vacated by __ F.4th __, 2021 WL 5578015 (5th Cir. Nov. 30,
2021) (en banc) (mem.). There, a combination of memos from DHS and its
subagency Immigration and Customs Enforcement (“ICE”) had established
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new “interim enforcement priorities.” Id. at 334. Those memos effectively
created a class-based priority scheme governing agency decisions to arrest,
detain, and remove aliens. See id. at 334–35. After the district court enjoined
those memos’ operation, a panel of our court granted the Government a
partial stay pending appeal. Ibid. The panel, among other holdings,
characterized the relevant part of the memos as mere nonenforcement and
therefore held that part nonreviewable under Heckler. See id. at 336–40. It did
so even though the memos in question were undisputedly rules. See Texas v.
United States, 2021 WL 3683913, at *51 (S.D. Tex. Aug. 19, 2021) (“[N]o
Party disputes that the Memoranda are rules of some kind and, therefore,
that the rulemaking provisions of the APA apply.”). And it did so without
any discussion of that fact or any recognition of its significance.
Because our en banc court vacated Interim Enforcement, we are left
with no cases either in the Supreme Court or in our circuit applying Heckler
to agency rules. Like Justice John Powell, see supra note 12, we conclude:
“[We] do not remember, in any case in all our law (and [we] have taken some
pains upon this occasion to look into it), that there is any such power in the
[agency], and the case must turn upon that.” Seven Bishops, 12 How. St. Tr.
at 183. For all those reasons, we hold that Heckler cannot apply to agency
actions that qualify as rules under 5 U.S.C. § 551(4).
v.
Now, we apply that principle to this case. The June 1 Termination
Decision is a rule under 5 U.S.C. § 551(4). To see why, start with MPP itself.
That was obviously a rule; it applied to DHS operations nationwide and on a
prospective basis. See Biden I, 2021 WL 3603341, at *5 (describing DHS’s
nationwide rollout of the program and noting it aimed “to ensure that certain
aliens attempting to enter the U.S. illegally or without documentation,
including those who claim asylum, will no longer be released into the
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country” (quotation omitted) (emphasis added)). So MPP was “an agency
statement of general . . . applicability and future effect.” § 551(4). And by
directing agents to return certain aliens to Mexico, it either “prescribe[d] law
or policy” or at the very least “describe[d] the organization, procedure, or
practice requirements” of the agency. Ibid.; see also Biden I, 2021 WL
3603341, at *5 (describing how MPP worked); cf. DAPA, 809 F.3d at 170–77
(holding DAPA required notice and comment on the ground it was a
substantive rule, which entails a fortiori it was a rule).
DHS’s June 1 decision to terminate MPP was, therefore, also a rule.
As just explained, MPP was “an agency statement of general . . . applicability
and future effect” that either “prescribe[d] law or policy” or “describe[d]
[agency] organization, procedure, or practice requirements. § 551(4). And
that means terminating the policy necessarily was too. Because it entirely
negated MPP’s future effect, the Termination Decision was just as general
and just as prospective as MPP itself. See Regents, 140 S. Ct. at 1933–34
(Kavanaugh, J., dissenting) (using similar reasoning to conclude rescinding
DACA was a rule); id. at 1909 n.3 (majority opinion) (responding to Justice
Kavanaugh’s broader point without contesting the rescission’s status as a
rule). Because the Termination Decision was a rule, Heckler does nothing to
affect our power to review it. 15
15
We hasten to underscore the limits of this holding. The parties have not asked us to
decide whether this rule requires notice and comment, and we express no view on that
issue. Indeed, not all rules do require notice and comment. That is why the DAPA court,
for example, had to dedicate multiple pages to the question whether DAPA (which was
undisputedly a rule) was a substantive rule that required notice and comment. 809 F.3d at
170–77.
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vi.
The Government offers two responses, but they are unpersuasive.
First, it says Lincoln held Heckler can apply to rulemakings. But that’s wrong.
The Lincoln Court applied Heckler nonreviewability to an agency’s
“allocation of funds from a lump-sum [congressional] appropriation.”
Lincoln, 508 U.S. at 192. For one thing, the discretionary allocation of funds
is not the same as refusing to follow a statute. The Court also explicitly
refused to hold that the allocation in question was a rule. Id. at 196–97. And
the Government’s (over)reading of Lincoln would set it at odds with the more
recent Massachusetts—a case whose holding, we reiterate, would make no
sense if Heckler applied to rules.
The Government next invokes Heckler as sound public policy. The
idea seems to be that because the policy concerns underlying Heckler are in
play here, nonreviewability must apply—even though the agency action in
question is a rule rather than an order. But this argument is inconsistent with
the very opinion it cites.
The Heckler Court did indeed list some of the “many” reasons for its
rule. 470 U.S. at 831–32. First, “an agency decision not to enforce often
involves a complicated balancing of a number of factors which are peculiarly
within its expertise.” Id. at 831. Second, “when an agency refuses to act it
generally does not exercise its coercive power over an individual’s liberty or
property rights, and thus does not infringe upon areas that courts often are
called upon to protect.” Id. at 832 (emphasis omitted). And third, “an
agency’s refusal to institute proceedings shares to some extent the
characteristics of the decision of a prosecutor in the Executive Branch not to
indict—a decision which has long been regarded as the special province of
the Executive Branch.” Ibid.But immediately after its policy discussion, the Court said this:
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We of course only list the above concerns to facilitate
understanding of our conclusion that an agency’s decision not
to take enforcement action should be presumed immune from
judicial review under § 701(a)(2). For good reasons, such a
decision has traditionally been ‘committed to agency
discretion,’ and we believe that the Congress enacting the APA
did not intend to alter that tradition.
Ibid. (emphasis added); see also Armstrong, 517 U.S. at 458–64 (laying out the
rule in similar terms, without any suggestion that policy concerns justify its
expansion). So the rule, which comes from the common law, is simply that
one-off decisions not to act get a presumption of nonreviewability. The policy
rationales behind that rule are just that: policy rationales.
And that is how our court has treated them. We consistently lay out
and apply the Heckler rule in pure nonenforcement terms—and we discuss
the underlying policy separately, if at all. See, e.g., Rollerson v. Brazos River
Harbor Navigation Dist. of Brazoria Cnty. Tex., 6 F.4th 633, 644–45 (5th Cir.
2021) (laying out the rule and only then discussing its justifications); Gulf
Restoration Network v. McCarthy, 783 F.3d 227, 233–34 (5th Cir. 2015)
(similar); Pub. Citizen, 343 F.3d at 464–65 (similar). But see Texas Interim, 14
F.4th at 336–40.
Nor does our holding create a slippery slope. One might worry that, if
Heckler can’t apply to rules, every agency document (for example, a
nonbinding priority memo) would be ipso facto reviewable. But that’s
mistaken: Most agency memos are not final agency action under 5 U.S.C.
§ 704. And they are nonreviewable for that reason (or for others)—not
because of Heckler. The Termination Decision, in contrast, is both ineligible
for Heckler and qualifies as final agency action under § 704. See Part II.A.1,
supra pages 14–17; accord EEOC, 933 F.3d at 441–44 (concluding a supposed
“Guidance” document was in fact final agency action because it bound
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EEOC staff). And it’s reviewable only because both are true—and because
no other reviewability hurdle stands in the way in this case.
b.
In the previous section, we discussed English law, American law,
Heckler, and Heckler’s progeny to show that Heckler’s unreviewability
holding does not apply to agency rules. But even if every word of that
preceding section were wrong—that is, even if Heckler’s unreviewability
holding could apply to agency rules—it still would not apply here. That’s for
two reasons.
The first reason is simple. As the district court pointed out:
[T]he MPP program is not about enforcement proceedings at
all. Any alien eligible for MPP has already been placed into
enforcement proceedings under Section 1229a. The only
question MPP answers is where the alien will be while the
federal government pursues removal — in the United States or
in Mexico.
Biden I, 2021 WL 3603341, at *16. That is precisely correct. See Heckler, 470
U.S. at 832 (describing “our conclusion that an agency’s decision not to take
enforcement action should be presumed immune from judicial review under
§ 701(a)(2)” (emphasis added)). Up until this point, we have assumed for the
sake of argument that deciding to terminate MPP is nothing more than
deciding to leave the INA entirely unenforced against a class of individuals.
But that isn’t true. Terminating MPP does not leave the INA unenforced; it
just leaves the INA misenforced—that is, enforced in a way that’s
inconsistent with the statute itself. The decision is whether to detain aliens
while § 1229a proceedings are pending, return aliens to Mexico while § 1229a
proceedings are pending, or do something else (like parole) while § 1229a
proceedings are pending. No matter which way that decision goes, the
§ 1229a proceeding goes on. The Government is still engaged in
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enforcement—even if it chooses to do so in a way that ignores the statute.
That’s obviously not nonenforcement.
Second and independent, we explained in DAPA that an agency action
“need not directly confer public benefits” to be “more than
nonenforcement.” 809 F.3d at 166–67. Instead, “removing a categorical bar
on receipt of [governmental] benefits and thereby making a class of persons
newly eligible for them ‘provides a focus for judicial review.’” Ibid. (quoting
Heckler, 470 U.S. at 832). That’s so even if the agency retains the ability to
undo its decision in any particular case in the future. Ibid. (explaining
“[r]evocability . . . is not the touchstone for whether agency action is
reviewable”).
As discussed above, the district court found that MPP’s termination
will result in the parole of many aliens (under 8 U.S.C. § 1182(d)(5)) whom
DHS otherwise would have returned to Mexico. The Government’s brief, of
course, confirms that the plan is indeed to give widespread parole to the class
of aliens whom it can’t or won’t detain. And under Texas law, § 1182(d)(5)
parole satisfies the state’s “lawful presence” requirement—which is a
prerequisite to obtaining a Texas driver’s license. See Part II.C.2.b, supra
pages 54–57. To be sure, status as a § 1182(d)(5) parolee is not sufficient for
obtaining a license in Texas. But it is one way of satisfying the necessary
condition of lawful status. Thus, MPP’s termination functions to “remov[e]
a categorical bar on receipt of [public] benefits and thereby mak[e] a class of
persons newly eligible for them.” DAPA, 809 F.3d at 167. The removal of
that bar “provides a focus for judicial review.” Heckler, 470 U.S. at 832;
accord DAPA, 809 F.3d at 167.
Indeed, the executive branch has historically used parole precisely as a
means of removing bars that would otherwise stand between an alien and
governmental benefits. As one treatise explains:
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Parole under [§ 1182(d)(5)(A)] has many different uses. The
government has granted parole as an alternative to admission,
for example for noncitizens who do not qualify for an admission
category but have an urgent need for medical care in the United
States; or who qualify for a visa but are waiting for it to become
available.
Aleinikoff et al., supra, at 299 (also explaining that “[e]ven after a
noncitizen’s parole ends, the fact that she has been paroled may help make
her eligible for adjustment of status to lawful permanent resident” (emphasis
added)). So it’s easy to see how the termination of MPP—and the
Government’s substitution of parole—“remov[es] a categorical bar on
receipt of [public] benefits.” DAPA, 809 F.3d at 167.
The Government responds that DHS didn’t specifically tell
immigration officers how to use the parole power. It adds that not all parolees
are eligible for employment authorization. But neither point is responsive.
That’s because MPP’s termination (i.e., DHS’s refusal to return above-
capacity aliens to Mexico), coupled with DHS’s limited detention capacity
and its limited options for handling above-capacity aliens, necessarily entails
that DHS will parole those aliens. What else could it do? So the Government
offers no reason to doubt the Termination Decision, by offering class-wide
parole to above-capacity aliens, removes a categorical bar on those aliens’
ability to obtain Texas driver’s licenses.
c.
Even if Heckler could apply in theory, the statute’s text would rebut it
in actuality. As the Heckler Court explained, “the presumption [that
nonenforcement decisions are unreviewable] may be rebutted where the
substantive statute has provided guidelines for the agency to follow in
exercising its enforcement powers.” 470 U.S. at 832–33. That is precisely
what Congress did when it phrased § 1225(b)(2)(A) in mandatory terms. We
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discuss the statutory interpretation point below. See Part IV.B, infra pages
98–106. That discussion will explain exactly the statutory guidelines that
would suffice to overcome Heckler even if it could in theory apply to
something like the Termination Decision. Cf. Hawkins, 16 F.4th at 156
(holding over a dissent that regulatory text, which featured a
mandatory/permissive distinction less clear than the distinction at issue here,
provided the relevant guidelines and thereby overrode Heckler).
IV.
At long last, we’ve reached the merits. We confront two issues. First,
was the Termination Decision arbitrary and capricious under the APA? Yes.
Second, was the Termination Decision contrary to the text of 8 U.S.C.
§ 1225? Again, yes.
A.
The APA directs courts to “hold unlawful and set aside agency
action[s]” that are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2). “The APA’s arbitrary-and-
capricious standard requires that agency action be reasonable and reasonably
explained.” FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021).
While applying this “deferential” standard, we must not “substitute” our
“own policy judgment for that of the agency.” Ibid. But we must ensure that
“the agency has acted within a zone of reasonableness and, in particular, has
reasonably considered the relevant issues and reasonably explained the
decision.” Ibid. “Put simply, we must set aside any action premised on
reasoning that fails to account for relevant factors or evinces a clear error of
judgment.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. HHS, 985 F.3d 472,
475 (5th Cir. 2021) (quotation omitted). This review “is not toothless.” Sw.
Elec. Power Co. v. EPA, 920 F.3d 999, 1013 (5th Cir. 2019). “In fact, after
Regents, it has serious bite.” Wages & White Lion Invs., LLC v. FDA, 16 F.4th
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1130, 1136 (5th Cir. 2021). And in all events, we can consider only the
reasoning “articulated by the agency itself”; we cannot consider post hoc
rationalizations. State Farm, 463 U.S. at 50; see also Regents, 140 S. Ct. at 1909
(“An agency must defend its actions based on the reasons it gave when it
acted.”).
DHS failed to consider several “relevant factors” and “important
aspect[s] of the problem” when it made the Termination Decision. Michigan
v. EPA, 576 U.S. 743, 750, 752 (2015) (quotations omitted). These include
(1) the States’ legitimate reliance interests, (2) MPP’s benefits, (3) potential
alternatives to MPP, and (4) the legal implications of terminating MPP. We
address each in turn. Then we (5) address an overarching counterargument
from the Government.
1.
DHS “failed to address whether there was legitimate reliance on”
MPP. Regents, 140 S. Ct. at 1913 (quotation omitted). That alone is fatal. See
ibid. (“It would be arbitrary and capricious to ignore such matters.”
(quotation omitted)).
The seven-page memo that accompanied the June 1 Termination
Decision didn’t directly mention any reliance interests, and certainly not
those of the States. The closest it got was a reference to “the impact
[terminating MPP] could have on border management and border
communities.” But it then made clear that “border communities” include
only “nongovernmental organizations and local officials”—with no mention
whatsoever of border states. And the vague reference to “border
management” is insufficient to show specific, meaningful consideration of
the States’ reliance interests. Given the Supreme Court’s explanation that
border states “bear[] many of the consequences of unlawful immigration,”
Arizona v. United States, 567 U.S. 387, 397 (2012), one would expect a
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“reasonable and reasonably explained” memo to mention the issue at least
once, Prometheus, 141 S. Ct. at 1158.
The Agreement between DHS and Texas underscores the reliance
interests at play—and DHS’s awareness of them. The Agreement stipulated,
inter alia:
• “Texas, like other States, is directly and concretely
affected by changes to DHS rules and policies that have
the effect of easing, relaxing, or limiting immigration
enforcement.”
• “The harm to Texas is particularly acute where its
budget has been set months or years in advance and it
has no time to adjust its budget to respond to DHS
policy changes.”
• “[A]n aggrieved party will be irreparably damaged.”
And the Agreement went on to describe itself as “a binding and enforceable
commitment between DHS and Texas.” Thus, the Agreement both
demonstrates DHS’s prior knowledge of the States’ reliance interests and
affirmatively created reliance interests all its own. DHS’s failure to consider
those interests when it terminated MPP was arbitrary and capricious. See
Regents, 140 S. Ct. at 1913.
Astonishingly, the Government responds that DHS had no obligation
to consider the States’ reliance interests at all. Yet again, that “contention is
squarely foreclosed by Regents.” Biden II, 10 F.4th at 553. There, the
Supreme Court acknowledged that DACA was a discretionary program.
Regents, 140 S. Ct. at 1910. Still, the Court faulted DHS for not considering
reliance interests. As the Court explained, “[w]hen an agency changes course
. . . it must be cognizant that longstanding policies may have engendered
serious reliance interests that must be taken into account.” Id. at 1913
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(quotation omitted). That included the States’ reliance interests. See id. at
1914 (highlighting assertions that “States and local governments could lose
$1.25 billion in tax revenue each year”). So if DHS must consider states’
reliance interests before terminating DACA—a discretionary immigration
program—then it must do so before terminating MPP.
The Government interprets Regents differently. On its view, Regents
“said that legitimate reliance interests were ‘one factor to consider’ . . . it did
not categorically hold that costs to States must be considered in undertaking
any and all agency actions.” (quoting 140 S. Ct. at 1914). But that’s not what
Regents said. The Court was clear that agencies must consider reliance
interests, and that failure to do so is arbitrary and capricious. See 140 S. Ct.
at 1913 (explaining that “[i]t would be arbitrary and capricious to ignore”
reliance interests and that “consideration [of any reliance interests] must be
undertaken by the agency in the first instance” (quotation omitted)). And
Regents contains not one hint that States’ reliance interests somehow fall
outside the general rule.
The Government next responds that the States lack “any cognizable
reliance interests in MPP.” And it faults the States for failing to provide a
better accounting of the specific actions they took in reliance on MPP. There
are three problems with that.
First, the Government’s argument reads as if taken straight from the
Regents dissent. The majority explicitly rejected the dissent’s argument that
“DACA recipients have no legally cognizable reliance interests.” 140 S. Ct.
at 1913 (quotation omitted). Instead, explained the majority, agencies
“must” assess the strength of reliance interests (even weak interests, it
seems) “in the first instance.” See ibid. That’s at least as true here as it was
there.
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Second, the Government premises its cognizability argument on its
related contention that the Termination Decision does nothing to injure the
States. But of course, we’ve already held the opposite in the standing
discussion above. See Part II.C.2, supra pages 52–63.
And third, this reasoning depends entirely on ignoring the
Agreement—in which DHS explicitly acknowledged, in a manner akin to a
liquidated-damages clause, that Texas would be “irreparably damaged” by
DHS policy changes that relaxed strictures on illegal border crossings.
Obviously, nothing like the Agreement existed in the Regents case; in fact, the
DACA program expressly told its beneficiaries that their deferred-action
status could be revoked for any reason or no reason, at any time, without any
notice. See 140 S. Ct. at 1930–31 (Thomas, J., concurring in the judgment in
part and dissenting in part). If that nonetheless created cognizable reliance
interests, the Agreement a fortiori does the same.
2.
DHS failed to reasonably consider its own factual findings regarding
the benefits of MPP. When a “new policy rests upon factual findings that
contradict those which underlay [an agency’s] prior policy,” the agency must
provide “a more detailed justification” than usual to avoid arbitrariness and
capriciousness. Fox, 556 U.S. at 515. Yet DHS didn’t address its own prior
factual findings at all when it terminated MPP.
As the district court explained, DHS’s October 2019 Assessment of
MPP found that “aliens without meritorious claims—which no longer
constitute[d] a free ticket into the United States—[were] beginning to
voluntarily return home.” Biden I, 2021 WL 3603341, at *5 (quotation
omitted). DHS also found that MPP addressed the “perverse incentives”
created by allowing “those with non-meritorious claims [to] remain in the
country for lengthy periods of time.” Id. at *6. (quotation omitted). These
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benefits, DHS emphasized, were a “cornerstone” of the agency’s
immigration policy. Id. at *5–6 (quotation omitted).
The Termination Decision “rest[ed] upon factual findings that
contradict those which underlay” MPP. Fox, 556 U.S. at 515. “As an initial
matter,” the June 1 Memorandum explained DHS’s determinations “that
MPP had mixed effectiveness in achieving several of its central goals” and
that “MPP does not adequately or sustainably enhance border management”
in a cost-effective manner. In other words, DHS began its Termination-
Decision analysis by disclaiming its earlier conclusion that MPP had been a
resounding success.
Given that setup, one might expect DHS to address its prior factual
findings—explaining why they were mistaken, misguided, or the like. And
indeed, a “more detailed justification” of that sort is not just a good idea; it’s
legally required for a decision predicated on contradicting prior agency
findings. See ibid. DHS nonetheless failed to discuss any of its prior factual
findings—much less explain why they were wrong. That failure provides
another basis for our conclusion that the Termination Decision was arbitrary
and capricious. Ibid.The Government, of course, does not contest that DHS made those
findings in 2019. It instead spills much ink explaining that it predicated the
Termination Decision partly on other issues with MPP. That misses the
point. The Termination Decision explicitly rested upon 2021 factual findings
that contradicted DHS’s own 2019 findings. That triggers the arbitrary-and-
capricious rule set forth in Fox. See 556 U.S. at 515. Yet DHS failed to give a
“detailed” (or any) discussion of the prior findings. Ibid. That’s that.
Further, some of DHS’s discussion of MPP’s supposed shortcomings
was itself irrational. For example, the June 1 Memorandum partly relied on
the notion that MPP resulted in too many in absentia removal proceedings:
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The focus on speed was not always matched with sufficient
efforts to ensure that conditions in Mexico enabled migrants to
attend their immigration proceedings. In particular, the high
percentage of cases completed through the entry of in absentia
removal orders (approximately 44 percent, based on DHS
data) raises questions for me about the design and operation of
the program, whether the process provided enrollees an
adequate opportunity to appear for proceedings to present
their claims for relief, and whether conditions faced by some
MPP enrollees in Mexico, including the lack of stable access to
housing, income, and safety, resulted in the abandonment of
potentially meritorious protection claims.
But the district court found, and the Government does not now contest, that
in absentia removal rates were similar prior to MPP. Biden I, 2021 WL
3603341, at *20–21. It makes no sense to reject MPP because of its high in
absentia rate without even mentioning that its predecessor had a similar rate.
We therefore cannot conclude DHS “examine[d] the relevant data and
articulate[d] a satisfactory explanation” with “a rational connection between
the facts found and the choice” to terminate MPP. State Farm, 463 U.S. at
43 (quotation omitted).
The Government says this conclusion would require DHS to provide
“empirical or statistical studies.” See Prometheus, 141 S. Ct. at 1160
(explaining studies are not required to avoid arbitrariness). That’s incorrect.
We do not fault DHS for failing to provide a study. We fault DHS for cherry-
picking a single statistic from the administrative record and relying on it in an
entirely nonsensical fashion. See Encino Motorcars, LLC v. Navarro, 579 U.S.
211, 222 (2016) (holding “an unexplained inconsistency in agency policy is a
reason for holding an interpretation to be an arbitrary and capricious change
from agency practice” (quotation omitted)); State Farm, 463 U.S. at 43(“[T]he agency must examine the relevant data.”).
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3.
DHS also insufficiently addressed alternatives to terminating MPP.
The rule is that, “when an agency rescinds a prior policy[,] its reasoned
analysis must consider the alternatives that are within the ambit of the
existing policy.” Regents, 140 S. Ct. at 1913 (quotation omitted). In Regents,
for example, the DACA program had two main components—deferred
action (“forbearance”) and governmental benefits. Ibid. Yet when DHS
rescinded DACA, it considered only the yes-no choice whether to retain or
terminate the entire program: Its “memorandum contain[ed] no discussion
of forbearance or the option of retaining forbearance without benefits.” Ibid.
(emphasis added). And “[t]hat omission alone render[ed] [DHS’s] decision
arbitrary and capricious.” Ibid. In short, agency action is arbitrary and
capricious when it considers only the binary choice whether to retain or
terminate a program, without also “considering less disruptive alternatives.”
Wages & White Lion, 16 F.4th at 1139.
That is just the situation here. As the Government points out, DHS
considered the possibility of retaining MPP as a whole. It also considered the
opportunity cost of doing so. But that is not enough under Regents: DHS was
required to consider, not just the binary decision whether to keep or reject
MPP, but also “the alternatives that [were] within the ambit of” MPP. 140
S. Ct. at 1913 (quotation omitted). In Regents, that required considering
possible changes to DACA (such as keeping forbearance while eliminating
government benefits). And here, it requires considering possible changes to
MPP. DHS failed to consider any alternative within the ambit of the policy.
“That omission alone renders [DHS’s] decision arbitrary and capricious.”
Regents, 140 S. Ct. at 1913.
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4.
DHS also failed to consider the legal implications of terminating MPP.
As the district court explained, the States’ complaint, filed on April 13, put
DHS on notice of these issues (including the § 1225 issue) one and a half
months before the Termination Decision. Biden I, 2021 WL 3603341, at *24.
One would think the “natural response” to this “newly identified problem”
would be to consider the problem—perhaps explaining why DHS thought
terminating MPP comported with § 1225. See Regents, 140 S. Ct. at 1916. But
DHS did not do so. That’s one more reason for our conclusion that DHS’s
action was not the product of “reasoned decisionmaking.” Michigan, 576
U.S. at 750 (quotation omitted).
The Government’s only response on this score is to assert that
terminating MPP did not violate § 1225. “But it is a fundamental precept of
administrative law that an administrative agency cannot make its decision
first and explain it later.” Wages & White Lion, 16 F.4th at 1140 (quotation
omitted). DHS cannot omit any discussion of § 1225 in the Termination
Decision and then “cure those deficiencies by offering post hoc
rationalizations before our court. The very fact that [DHS] perceived the
need to rehabilitate its [Termination Decision] with new and different
arguments before our court underscores that the [Memorandum] itself
omitted a reasoned justification for the agency’s action.” Ibid. (And in any
event, as we explain in Part IV.B, infra pages 98–106, the Termination
Decision did violate § 1225.)
5.
As an overarching matter, the June 1 Memorandum sometimes baldly
asserted that DHS considered this or that factor—in lieu of showing its work
and actually considering the factor on paper. For example, the June 1
Memorandum said DHS had “carefully evaluated [MPP’s] implementation
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guidance and programmatic elements; prior DHS assessments of the
program”; and other considerations. The Government’s brief several times
treats this and similar statements as materially equivalent to actual evaluation
of the factors in question.
The law says otherwise. “Stating that a factor was considered . . . is
not a substitute for considering it.” Getty v. Fed. Sav. & Loan Ins. Corp., 805
F.2d 1050, 1055 (D.C. Cir. 1986); see also Corrosion Proof Fittings v. EPA, 947
F.2d 1201, 1226 (5th Cir. 1991) (“The EPA’s failure to consider the
regulatory alternatives, however, cannot be substantiated by conclusory
statements.”).
This well-established principle makes sense. As another circuit has
put it:
[A]n agency’s “experience and expertise” presumably enable
the agency to provide the required explanation, but they do not
substitute for the explanation, any more than an expert
witness’s credentials substitute for the substantive
requirements applicable to the expert’s testimony under
[Federal Rule of Evidence] 702. The requirement of
explanation presumes the expertise and experience of the
agency and still demands an adequate explanation in the
particular matter.
CS Wind Viet. Co. v. United States, 832 F.3d 1367, 1377 (Fed. Cir. 2016)
(citations omitted). As we’ve already explained, the Government’s
arguments fail even without taking this principle into account. But to the
extent they rely on substituting DHS’s assertions about explanations with
explanations themselves, we reject those arguments with redoubled vigor.
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B.
The Termination Decision also violated the INA. We begin by
explaining the four statutory provisions that are most relevant here. Then we
hold that DHS violated them.
1.
Four provisions are relevant here. We provide them here for
reference, in order of descending importance. First, 8 U.S.C.
§ 1225(b)(2)(A) provides:
Subject to subparagraphs (B) and (C), in the case of an alien
who is an applicant for admission, if the examining immigration
officer determines that an alien seeking admission is not clearly
and beyond a doubt entitled to be admitted, the alien shall be
detained for a proceeding under section 1229a of this title.
Section 1225(b)(2)(C) provides:
In the case of an alien described in subparagraph (A) who is
arriving on land (whether or not at a designated port of arrival)
from a foreign territory contiguous to the United States, the
Attorney General may return the alien to that territory pending
a proceeding under section 1229a of this title.
Section 1182(d)(5) provides:
(A) The Attorney General may . . . in his discretion parole into
the United States temporarily under such conditions as he may
prescribe only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit any alien applying for
admission to the United States, but such parole of such alien
shall not be regarded as an admission of the alien and when the
purposes of such parole shall, in the opinion of the Attorney
General, have been served the alien shall forthwith return or be
returned to the custody from which he was paroled and
thereafter his case shall continue to be dealt with in the same
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manner as that of any other applicant for admission to the
United States.
(B) The Attorney General may not parole into the United
States an alien who is a refugee unless the Attorney General
determines that compelling reasons in the public interest with
respect to that particular alien require that the alien be paroled
into the United States rather than be admitted as a refugee
under section 1157 of this title.
And finally, § 1226(a) provides in relevant part:
On a warrant issued by the Attorney General, an alien may be
arrested and detained pending a decision on whether the alien
is to be removed from the United States. Except as provided in
subsection (c) and pending such decision, the Attorney
General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security
approved by, and containing conditions
prescribed by, the Attorney General; or
(B) conditional parole . . . .
Here’s how those provisions fit together. First and most important is
§ 1225(b)(2)(A), which applies to “the case of an alien who is an applicant
for admission.” MPP concerns only that same group of aliens. See Biden I,
2021 WL 3603341, at *5 (explaining MPP concerns “aliens attempting to
enter” the United States (quotation omitted)); compare ibid., with 8 C.F.R.
§ 1.2 (defining “[a]rriving alien” as “an applicant for admission coming or
attempting to come into the United States” (emphasis added)). As DHS
itself put it in the administrative record, MPP applies “to non-Mexican
nationals who may be arriving on land . . . seeking to enter the United States
from Mexico illegally or without documentation.”
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And § 1225(b)(2)(A) uses mandatory language (“the alien shall be
detained”) to require DHS to detain aliens pending removal proceedings. See
also 8 U.S.C. § 1229a (describing “proceedings for deciding the
inadmissibility or deportability of an alien”). The Supreme Court has given
this provision the same gloss. See Jennings, 138 S. Ct. at 837 (“Read most
naturally, §§ 1225(b)(1) and (b)(2) . . . mandate detention of applicants for
admission until certain proceedings have concluded.”).
Section 1225(b)(2)(C) then explains a permissible alternative to
otherwise-mandatory detention. As for most aliens who fit within (A)’s
scope, (C) provides that DHS “may” return them to a contiguous foreign
territory instead of detaining them. This allowance is, of course,
discretionary. But it does not undo the obvious fact that (A) is otherwise
mandatory. So (A) sets a default (mandatory detention), and (C) explicitly
sets out an allowed alternative (contiguous-territory return pending removal
proceedings). 16
Section 1182(d)(5), meanwhile, provides another alternative. Rather
than detaining or returning any given alien, DHS may instead “parole” that
alien. § 1182(d)(5)(A). Unlike § 1225(b)(2)(C), § 1182(d)(5) doesn’t
explicitly apply to aliens covered by § 1225(b)(2)(A). But it does so implicitly
by referring to “any alien applying for admission to the United States,”
16
In Hawkins, our court considered a regulation that gave HUD broad, general
discretion. 16 F.4th at 154–55 (quoting the regulation, which said in some circumstances,
“HUD may exercise any of its rights or remedies under the contract, or Regulatory
Agreement, if any” (quotation omitted)). The regulation then said “HUD shall” take
certain actions under certain circumstances. Ibid. (emphasis omitted). Our court read those
provisions to confer some discretion—limited by the “shall.” Id. at 155 (The “language
marks a contrast between the mandatory ‘shall’ in this sentence and the permissive ‘may’”
before it.). Judge Duncan dissented, arguing the majority overlooked a key “textual link.”
Id. at 161 (Duncan, J., dissenting). No matter which reading was better in Hawkins, this
case is much easier because § 1225 has none of the nuance that divided that panel.
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§ 1182(d)(5)(A) (emphasis added), which is an obvious parallelism to
§ 1225(b)(2)(A)’s “alien who is an applicant for admission.” (Emphasis
added.)
But § 1182(d)(5)’s parole alternative has its limits. Thanks to a 1996
amendment, § 1182(d)(5)(A) requires that parole be granted “only on a case-
by-case basis for urgent humanitarian reasons or significant public benefit.”
Ibid.; Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, 110 Stat. 3009, 3009–689. And because of a 1980
amendment, § 1182(d)(5)(B) forbids parole of any given alien refugee
“unless the Attorney General determines that compelling reasons in the
public interest with respect to that particular alien require that the alien be
paroled into the United States rather than be admitted as a refugee under
section 1157 of this title.” Ibid. (emphasis added); Refugee Act of 1980, Pub.
L. No. 96-212, 94 Stat. 102, 108.
Section 1226(a), meanwhile, provides a parallel detention-and-parole
scheme that applies to aliens who have already entered the United States. As
the Supreme Court has explained, § 1226(a) “generally governs the process
of arresting and detaining” inadmissible aliens who are already “inside the
United States.” Jennings, 138 S. Ct. at 837; see also Ortega-Cervantes v.
Gonzales, 501 F.3d 1111, 1115–20 (9th Cir. 2007) (explaining and holding the
two forms of parole are distinct, but allowing for the possibility that
§ 1182(d)(5) parole could apply even to already-arrived aliens). DHS may
arrest such aliens pursuant to an administrative arrest warrant. § 1226(a); cf.
§ 1357(a)(2) (warrantless arrests sometimes permissible).
DHS may release aliens detained under § 1226(a) on either bond or
conditional parole. Bond and conditional parole apply only to “the arrested
alien”—meaning aliens arrested and detained under § 1226(a), rather than
any and every alien. Bond is more or less self-explanatory. See
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§ 1226(a)(2)(A). Conditional parole, however, differs from § 1182(d)(5)’s
humanitarian parole in important ways. Most obviously, conditional parole
involves conditions. See Ortega-Cervantes, 501 F.3d at 1112–13 (“Among the
conditions imposed on Ortega-Cervantes was a requirement that he report to
the INS at the conclusion of the criminal proceedings in which he was to be
a witness for further review of his case.” (quotation omitted)). And unlike
humanitarian parole, being conditionally paroled does not count as being
“paroled into the United States” under § 1255(a). See id. at 1116–20
(announcing that holding and explaining that conflating narrow humanitarian
parole and broadly available conditional parole would cause statutory
incoherence); Matter of Castillo-Padilla, 25 I. & N. Dec. 257, 260–63 (BIA
2010) (drawing the same distinction), aff’d sub nom., Castillo-Padilla v. U.S.
Atty. Gen., 417 F. App’x 888 (11th Cir. 2011) (per curiam). 17
So in short, § 1225(b)(2)(A) sets forth a general, plainly obligatory
rule: detention for aliens seeking admission. Section 1225(b)(2)(C)
authorizes contiguous-territory return as an alternative. Section 1182(d)(5)
allows humanitarian parole as another alternative, but that parole can be
exercised only within narrow parameters (case-by-case and with a public-
interest justification). And § 1226(a)’s bond-and-conditional-parole
provisions, by their very terms, apply only to aliens detained under § 1226(a)
itself—not to aliens detained under § 1225(b). And even if they did apply
elsewhere, bond and conditional parole have restrictions of their own.
17
That matters a great deal: Having been “paroled into the United States” often
triggers eligibility for adjustment of status under § 1255. See § 1255(a) (allowing
“[a]djustment of status of nonimmigrant to that of person admitted for permanent
residence” for, inter alia, “an alien who was inspected and admitted or paroled into the
United States”).
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2.
The Government recognizes that the four statutory alternatives
described in the preceding section are exhaustive. Congress gave DHS no
fifth choice. The Termination Decision nonetheless purported to arrogate to
DHS a fifth alternative that Congress did not provide. By so deciding, DHS
contradicted § 1225’s statutory scheme.
As the district court found, DHS lacks the resources to detain every
alien seeking admission to the United States. Biden I, 2021 WL 3603341, at
*8. That means DHS can’t detain everyone § 1225(b)(2)(A) says it “shall”
detain. So it’s left with a class of people: aliens it apprehended at the border
but whom it lacks the capacity to detain. By terminating MPP, DHS has
refused to return that class to contiguous territories, as permitted by
§ 1225(b)(2)(C). The Government’s position thus boils down to this: We
can’t do one thing Congress commanded (detain under § 1225(b)(2)(A)),
and we don’t want to do one thing Congress allowed (return under
§ 1225(b)(2)(C)). 18
Parole does not provide a way out of the box created by DHS’s can’ts-
and-don’t-wants. As noted in the previous section, the Government can
parole aliens under § 1182(d)(5) or § 1226(a). Let’s consider both parole
options.
18
The Government also says that any detention mandate in § 1225(b)(2)(A) is entirely
undone by § 1225(b)(2)(C)’s discretionary return authority. Put differently, the idea is that
we are improperly reading a “shall” into § 1225(b)(2)(C)’s “may”—effectively requiring
the Government to return people to Mexico when Congress merely authorized (and did
not require) that result. This is a strawman. It’s obviously true that § 1225(b)(2)(C) is
discretionary. But § 1225(b)(2)(A) is mandatory, and (C) offers a permissible alternative to
the otherwise-mandatory obligation in (A). DHS is violating (A)’s mandate, refusing to
avail itself of (C)’s authorized alternative, and then complaining that it doesn’t like its
options.
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Start with § 1182(d)(5). That provision gives DHS the power to parole
certain aliens “only on a case-by-case basis for urgent humanitarian reasons
or significant public benefit.” § 1182(d)(5)(A) (emphasis added). DHS
cannot use that power to parole aliens en masse; that was the whole point of
the “case-by-case” requirement that Congress added in IIRIRA. See ibid. So
the Government’s proposal to parole every alien it cannot detain is the
opposite of the “case-by-case basis” determinations required by law. See ibid.
The Government also suggests that DHS retains the discretion to
return aliens to Mexico on a case-by-case basis—and that means its
§ 1182(d)(5) parole decisions really are case-by-case after all. But that is
backward. It’s the § 1225(b)(2)(C) return power DHS is allowed to exercise
as a class-wide alternative to detention. It can make case-by-case exceptions
for § 1182(d)(5) parole. The Government conjures the mirror image of that
scheme by proposing that DHS exercise the parole power on a class-wide
basis, with narrow, case-by-case exceptions for returns. That is the exact
opposite of what Congress said.
Equally unhelpful is § 1226(a) parole. Though the Government does
not say it outright, it hints that DHS could use this power to release on bond
or parole aliens whom it lacks the capacity to detain—all within its statutory
authority. And § 1226(a)(2)’s bond-and-parole power, unlike the distinct
parole power in § 1182(d)(5), isn’t limited to case-by-case determinations.
But § 1226(a) parole has other problems. DHS’s § 1226(a) power
applies only to aliens arrested and detained under § 1226(a). The
Government has not even suggested that any aliens within MPP’s scope were
arrested under § 1226(a). And indeed, given that both MPP and § 1225(b)(2)
concern aliens apprehended at the border—in contrast to § 1226(a)’s concern
with aliens already in the United States—it’s hard to see how the latter
provision is relevant to MPP at all. Even if it were, that would not allow DHS
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to simply release anyone into the United States. Instead, DHS would be able
to release only on “bond” or “conditional parole.” § 1226(a)(2). There is no
indication that this is DHS’s practice or its plan.
Finally, the Government says DHS can ignore Congress’s limits on
immigration parole and that Supreme Court precedent makes everyone
(including the plaintiff States and the federal courts) powerless to say
anything about it. The Government’s sole precedent for this proposition is
Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005). There, the Court held
that “[t]he deep-rooted nature of law-enforcement discretion” can survive
“even in the presence of seemingly mandatory legislative commands.” Id. at
761. The Government reads this to mean that it can take the powers given to
it by Congress (such as the power to grant immigration parole) while ignoring
the limits Congress placed on those powers (such as the case-by-case
requirement in § 1182 and the arrest limitation in § 1226).
This argument is as dangerous as it is limitless. By the Government’s
logic, Castle Rock would allow DHS to use the power to make, say, asylum
decisions while ignoring every single limitation on those decisions imposed
by the INA. And perhaps worse, the Government would have us hold that
DHS’s pick-and-choose power is completely insulated from judicial review.
That would make DHS a genuine law unto itself. And Castle Rock says no
such thing.
To the contrary, Castle Rock is relevant only where an official makes a
nonenforcement decision. See id. at 760–61 (noting the widespread existence
of statutes that “by their terms, seem to preclude nonenforcement by the
police” and explaining the statutes do not in fact do so (emphasis added)
(quotation omitted)). As we’ve already explained, DHS’s Termination
Decision was not nonenforcement. See Part III.B.2.b, supra pages 85–87. And
the same is true of DHS’s pretended power to parole aliens while ignoring
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the limitations Congress imposed on the parole power. That’s not
nonenforcement; it’s misenforcement, suspension of the INA, or both. See
Part III.B.2.a.i, supra pages 69–73 (describing the English prerogative power
of suspension).
We therefore hold that DHS has violated not only the APA but also
Congress’s statutory commands in § 1225.
V.
Having resolved jurisdiction (Part II), reviewability (Part III), and the
merits (Part IV), we turn at last to remedies. Here the Government presents
three issues. First, whether DHS is entitled to vacatur of the district court’s
judgment and injunction under United States v. Munsingwear, Inc., 340 U.S.
36 (1950). No. Second, whether the district court abused its discretion in
vacating the Termination Decision rather than remanding to DHS without
vacatur. No. Third, whether the district court erred in granting permanent
injunctive relief against the Government. Again, no.
A.
The Government requests that we vacate the district court’s
judgment and remand the case under Munsingwear. Because the case is not
moot, we will not do so. But even if the case were moot, which it’s not, we’d
still refuse to order the equitable Munsingwear remedy.
Broadly, the vacatur inquiry “is an equitable one.” Bancorp, 513 U.S.
at 29. When a case becomes moot on appeal, the reviewing court must
dispose of the case “in the manner most consonant to justice” and must
account for “the nature and character of the conditions which have caused
the case to become moot.” Id. at 24 (quotation omitted); see also Staley v.
Harris Cnty., 485 F.3d 305, 310 (5th Cir. 2007) (“[V]acatur is to be
determined on a case-by-case basis, governed by facts and not inflexible
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rules.”). The default disposition is to “vacate the judgment below and
remand with a direction to dismiss.” Munsingwear, 340 U.S. at 39. That
default, however, flips when the case is mooted by “the voluntary conduct of
the party that lost in the District Court.” See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 194 n.6 (2000) (citing
Bancorp for the proposition that “mootness attributable to a voluntary act of
a nonprevailing party ordinarily does not justify vacatur of a judgment under
review”).
The decision to issue the October 29 Memoranda was “voluntary
conduct of the party that lost in the District Court.” Ibid. To show its
entitlement to vacatur, then, the Government must show that the equities of
this particular case warrant a departure from Laidlaw’s default rule.
As discussed above in greater detail, see Part II.B.1–3, supra pages 30–
45, DHS’s litigation tactics tilt the equities decidedly against vacatur. After
losing in district court, DHS had two procedural options. Each had its
upsides and downsides. Discontent with its choices, DHS tried to choose
both at the same time.
Option 1: DHS could’ve reopened the Termination Decision, taken
new action, and returned to the district court to seek relief from the judgment
under Federal Rule of Civil Procedure 60(b). See Horne v. Flores, 557 U.S. 433(2009). DHS’s ultimate goal under Option 1 would have been a district court
holding that its new action was lawful, accompanied by a lifting of the
injunction. Cf. Regents, 140 S. Ct. at 1904–05 (describing DHS’s
unsuccessful attempt to secure such a ruling). That would leave the ball in
the States’ court. The injunction would be gone, and the States would have
to appeal the 60(b) determination if they wanted it reinstated. Option 1,
however, would’ve had two downsides: (a) DHS would have no chance to
ask our court or the Supreme Court for a stay pending appeal from the Biden
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I judgment. And (b) the district court might have ruled against DHS on the
merits at the 60(b) stage, holding DHS’s action still violated the law in one
way or another.
Option 2: DHS could’ve appealed the district court’s Biden I decision.
Unlike Option 1, this would give DHS the chance to try for a stay pending
appeal. See Biden II, 10 F.4th 538; Biden III, 2021 WL 3732667. But Option 2
had a downside of its own: (c) A merits loss on appeal would put DHS right
back in district court with nothing to show for its efforts. Nothing, that is,
except lost time and a new Fifth Circuit precedent on the books, holding the
Termination Decision to be unlawful. Such a precedent would be the law of
the case, potentially hampering any subsequent attempt to seek Rule 60(b)
relief in the district court on the basis of new agency action.
Instead of choosing Option 1 or Option 2, DHS tried to split the
difference by taking Option 1.5: appeal the district court’s Biden I decision,
try to get a stay pending appeal, read the tea leaves, and then try to moot the
case with a new memo (but not a full-on new agency action) if things seem to
be going poorly. What’s more, the Government now argues that its Option
1.5 strategy should give it the exact same remedy—vacatur of the
injunction—as if it had never appealed at all (Option 1) or had appealed and
won (Option 2). This is a game of heads I win, tails I win, and I win without
even bothering to flip the coin. Suffice it to say, it does nothing to entitle the
Government to an equitable remedy. And the Government comes nowhere
near overcoming Laidlaw’s strong presumption against vacatur in a situation
of voluntarily caused mootness. 528 U.S. at 194 n.6. 19
19
All of this is made worse by the fact that DHS could’ve switched from Option 2 to
Option 1 at any time. For example, if at any point in the appellate process DHS thought
things were going badly and wanted to confess error, it could voluntarily dismiss its appeal.
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The Government points to several Supreme Court cases in response.
None of them change our conclusion. The Government’s main authority is
the Supreme Court’s grant of Munsingwear vacatur in Innovation Law Lab.
As we’ve already explained, that vacatur happened after the losing party
backed down from, rather than doubling down on, its injurious action. 141 S.
Ct. at 2842; accord N.Y. State Rifle & Pistol, 140 S. Ct. at 1526–27. And as
we’ve already explained, the Government cannot invoke cases like Lewis and
Microsoft that ordered vacatur where a legislature changed a statute while an
appeal was pending. See Lewis, 494 U.S. at 475–77; Microsoft, 138 S. Ct. at
1187–88. Neither case concerned a situation where, as here, the agency
appealing the judgment is the sole entity responsible for changing the
challenged action. See also Part II.B, supra pages 29–30 (discussing Lewis and
Microsoft); Part II.B.3, supra pages 39–45 (discussing voluntary cessation).
B.
Next, we consider the district court’s decision to remand and vacate
the June 1 Termination Decision rather than remanding without vacatur. 20
This issue should not be confused with Munsingwear vacatur. In discussing
See Fed. R. App. P. 42. That would put it right back at Option 1. It could then restart its
rulemaking process and then attempt to get Rule 60(b) relief from the district court. But
the fact that DHS can switch from one option to the other does not mean that it gets to
choose both options at once.
20
The district court phrased its order as vacating the “June 1 Memorandum” rather
than the Termination Decision. Biden I, 2021 WL 3603341, at *27. But the obvious upshot
was vacatur of the Decision underlying the Memorandum, as evidenced by the district
court’s order “to enforce and implement MPP in good faith.” Ibid. (emphasis omitted).
That order would make no sense if the court hadn’t vacated the Termination Decision.
Moreover, it’s the Government’s obligation—as the appellant—to identify errors or
ambiguities in the decision it’s appealing. The Government has forfeited any complaint
about the district court’s phraseology by failing to raise it in its original brief. See, e.g.,
Satterfield & Pontikes Constr., Inc. v. U.S. Fire Ins. Co., 898 F.3d 574, 584 (5th Cir. 2018)
(“An argument that is not pressed in the original brief is [forfeited] on appeal.”).
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Munsingwear vacatur above, we considered whether to vacate the district
court’s order on mootness grounds. Here, in contrast, we consider whether
the district court committed reversible error by itself vacating the underlying
agency action—that is, the June 1 Termination Decision. “We review the
district court’s decision to vacate for abuse of discretion.” Standing Rock
Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1051 (D.C. Cir. 2021)
(quotation omitted).
Remand without vacatur of the agency action is “generally
appropriate when there is at least a serious possibility that the agency will be
able to substantiate its decision given an opportunity to do so.” Tex. Ass’n of
Mfrs. v. U.S. Consumer Prod. Safety Comm’n, 989 F.3d 368, 389–90 (5th Cir.
2021). But by default, remand with vacatur is the appropriate remedy. See,
e.g., United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C.
Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”).
The D.C. Circuit’s test for whether vacatur is appropriate considers
two factors: “(1) the seriousness of the deficiencies of the action, that is, how
likely it is the agency will be able to justify its decision on remand; and (2) the
disruptive consequences of vacatur.” Ibid. (quotation omitted). Our court
applies the same test, though perhaps phrased differently. See Cent. & S. W.
Servs., Inc. v. EPA, 220 F.3d 683, 692 (5th Cir. 2000) (“EPA may well be able
to justify its decision to refuse to promulgate a national variance for the
electric utilities and it would be disruptive to vacate a rule that applies to
other members of the regulated community.”).
The district court didn’t abuse its discretion when it vacated the
Termination Decision. As described above, the Termination Decision was
seriously deficient in several ways. And the district court explained that
“DHS knew of these failings when it issued the June 1 Memorandum because
Plaintiffs first brought suit on April 13, 2021—nearly two months earlier.”
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Biden I, 2021 WL 3603341, at *24. That original complaint raised the same
arbitrary-and-capricious challenge we now adjudicate. So DHS was on notice
about the problems with its decision well before it terminated MPP. And it
still failed to correct them. It therefore makes sense that the district court
didn’t take seriously DHS’s claim that it could easily fix those errors on
remand without vacatur. See United Steel, 925 F.3d at 1287. Doubly so
because any post-remand DHS memorandum would run the risk of being an
impermissible post hoc rationalization under Regents. See 140 S. Ct. at 1907–
10.
And for two reasons, the district court acted well within its discretion
when it concluded vacatur is not disruptive in this case. See Standing Rock
Sioux Tribe, 985 F.3d at 1053 (district court did not abuse its discretion by
vacating, even when vacatur “would cause” “severe economic disruption,”
because the court reasonably considered all relevant factors (quotation
omitted)). First, the district court required DHS to re-implement MPP “in
good faith,” not overnight. Biden I, 2021 WL 3603341, at *27. Second, the
Government’s disruption arguments rise or fall with its balance-of-equities
arguments, many of which ignore the good-faith aspect of the injunction.
Because we reject those arguments below, we reject their analogues here. See
United Steel, 925 F.3d at 1287 (The agency “explains neither how the [agency
action] can be saved nor how vacatur will cause disruption. We therefore take
the normal course and vacate.”); cf. Biden II, 10 F.4th at 560 (“The
Government makes no [vacatur] argument materially different from its
irreparable-injury argument.”).
C.
Finally, we ask whether the district court abused its discretion by
granting permanent injunctive relief. It did not. The district court’s
injunction restrained DHS “from implementing or enforcing” the June 1
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Termination Decision. See Biden I, 2021 WL 3603341, at *27. It also ordered
DHS “to enforce and implement MPP in good faith until such a time as it has
been lawfully rescinded in compliance with the APA and until such a time as
the federal government has sufficient detention capacity to detain all aliens
subject to mandatory detention under Section 1255 without releasing any
aliens because of a lack of detention resources.” Ibid. And it imposed various
reporting requirements. Ibid. The court clarified, however, that it was not
requiring “DHS to take any immigration or removal action nor withhold its
statutory discretion towards any individual that it would not otherwise take.”
Id. at *28.
1.
To be entitled to permanent injunctive relief, plaintiffs must show
“(1) that [they have] suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to compensate for
that injury; (3) that, considering the balance of hardships between the
plaintiff[s] and defendant, a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent injunction.” eBay Inc.
v. MercExchange, LLC, 547 U.S. 388, 391 (2006). The district court applied
that test and concluded the States were entitled to a permanent injunction.
Biden I, 2021 WL 3603341, at *26–27. We review that decision for abuse of
discretion. E.g., Valentine v. Collier, 993 F.3d 270, 280 (5th Cir. 2021); Whole
Woman’s Health v. Paxton, 10 F.4th 430, 438 (5th Cir. 2021) (en banc). Our
circuit’s settled rule is that “[a] district court abuses its discretion if it
(1) relies on clearly erroneous factual findings or erroneous conclusions of
law when deciding to grant the injunction, or (2) misapplies the factual or
legal conclusions when fashioning its injunctive relief.” Valentine, 993 F.3d
at 280 (quotation omitted).
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On the first and second prongs, the district court incorporated by
reference its discussion of injuries in the standing context. Biden I, 2021 WL
3603341, at *26. The court found that MPP’s termination has contributed,
and will continue to contribute, to the number of parolee aliens in the States.
Id. at *8. It likewise found this would impose costs on the States. Id. at *9–
10. And because they will be unable to recover those additional costs from
the federal government, the court concluded the costs constituted an
irreparable injury not adequately remedied by damages. Id. at *26; see also
DAPA, 809 F.3d at 186 (noting the difficulty of retracting governmental
benefits once granted). Add to that pocketbook injury the pressure imposed
by DHS’s termination of MPP, which gives the States “the Hobson’s choice
of spending,” potentially, “millions of dollars” to evaluate and grant
additional licenses—or instead changing their statutes. See id. at 163. The
Government contests these points only by challenging the district court’s
factual findings, as it did in the injury-in-fact context. We rejected those
arguments there, see Part II.C.1, supra pages 46–52, and we reject them here.
The district court did not abuse its discretion by determining that the first
two eBay prongs have been satisfied.
The Government has entirely failed to contest the public-interest
prong on appeal, so we will not hold the district court abused its discretion
by concluding that an injunction was in the public interest. See Biden I, 2021
WL 3603341, at *26 (explaining that “there is a public interest in having
governmental agencies abide by the federal laws that govern their existence
and operations” (quotation omitted)); see also Wages & White Lion, 16 F.4th
at 1143 (“And there is generally no public interest in the perpetuation of
unlawful agency action.” (quotation omitted)); Ala. Ass’n of Realtors v. HHS,
141 S. Ct. 2485, 2490 (2021) (per curiam) (“[O]ur system does not permit
agencies to act unlawfully even in pursuit of desirable ends.”).
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That leaves the balance of the equities—eBay’s third prong. On this
score, the Government gives a litany of harms it says the district court’s
injunction is causing. It says these harms outweigh the harms to the States.
Again, our review is tightly circumscribed. See Texas v. Ysleta Del Sur Pueblo,
955 F.3d 408, 415–16 (5th Cir. 2020) (applying the deferential abuse-of-
discretion standard to the district court’s balancing of the equities in the
permanent injunction context), as revised (Apr. 3, 2020), cert. granted on other
grounds, 142 S. Ct. 395 (2021).
Much of the Government’s argument amounts to repeating its claim
that DHS cannot restart MPP unilaterally. The district court explained why
that’s at least partially false: DHS has the unilateral power to turn back
individuals who have not yet entered the United States. Biden I, 2021 WL
3603341, at *25 n.15. And to the extent restarting MPP requires cooperation
with Mexico, the Government studiously downplays the fact that the district
court ordered reinstatement “in good faith.” Id. at *27. Further, the mere fact
that some foreign-relations issues are in play cannot suffice to defeat the
injunction. The Government’s contrary position would allow DHS to
implement any immigration program it liked—no matter how far afield from
the law—with impunity.
The Government also invokes foreign-policy concerns and logistical
disruptions. For example, the Government cites a DHS official’s declaration
that “requiring DHS to reinstitute the program, would wreak havoc on the
Administration’s approach to managing migration in the region, including by
undermining . . . delicate bilateral (and multilateral) discussions.” And the
Government says restarting MPP is complicated by the fact that the relevant
facilities have been shuttered for months “due to COVID-19.”
Those harms are entirely self-inflicted. Pennsylvania, 426 U.S. at 664(explaining the principle); Biden I, 2021 WL 3603341, at *24 (reaching that
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conclusion). As for foreign relations, DHS could have simply informed
Mexico throughout the negotiation process that its ability to terminate MPP
was contingent on judicial review. Doubly so because the States filed this very
lawsuit one and a half months before the Termination Decision—so there’s
no question DHS was on notice about these legal issues. As the district court
aptly put it, “Mexico is capable of understanding that DHS is required to
follow the laws of the United States.” Ibid. As for shuttered infrastructure,
the district court specifically considered, and rejected, the bizarre factual
claim that DHS’s infrastructure has somehow remained closed this whole
time solely due to COVID-19. See id. at *21 (explaining that “[p]ast problems
with past closures are irrelevant to the decision to prospectively terminate MPP
in June 2021”). The Government gives no reason to think that finding was
clearly erroneous. 21
The Government also complains the injunction impinges on
“Executive autonomy.” But of course, that whole line of reasoning is based
on the notion that MPP’s termination was a lawful exercise of autonomy.
Under both the APA and 8 U.S.C. § 1225, it was not.
We conclude the district court made factual findings that were not
clearly erroneous and gave correct statements of the law, and it soundly
21
The Government also cites two additional declarations from government officials
in support of its balance-of-equities argument. These declarations, however, were not
before the district court when it decided to grant the injunction. The district court issued
its judgment on August 13, 2021, and the Government did not submit these declarations
until it requested a stay from the district court’s judgment—on August 16. Because the
declarations were not before the district court when it decided the injunction issue, and
because the Government gives no argument why we should consider them despite that, we
will not do so. And even if we did, they would not change our analysis. The declarations are
largely repetitive of the arguments we’ve already addressed. That includes the generous
use of strawmen, based on the false assumption that the district court ordered DHS to
reinstate MPP overnight.
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applied those conclusions in fashioning its injunctive relief. See Valentine, 993
F.3d at 280. The district court did not abuse its discretion by granting a
permanent injunction.
2.
The Government objects that 8 U.S.C. § 1252(f)(1) bars injunctive
relief in this case. That provision reads as follows:
Regardless of the nature of the action or claim or of the identity
of the party or parties bringing the action, no court (other than
the Supreme Court) shall have jurisdiction or authority to
enjoin or restrain the operation of the provisions of part IV of
this subchapter . . . other than with respect to the application
of such provisions to an individual alien against whom
proceedings under such part have been initiated.
The Government says the district court’s injunction restrained the operation
of § 1225(b)(2)(C).
That is backward. In its Termination Decision, DHS all but forbade
its own officers from invoking the “operation” of § 1225(b)(2)(C). The
district court’s injunction undid that restraint. Far from “restrain[ing]” the
“operation” of the statute, the injunction restored it.
Justice Thomas’s concurrence in Nielsen v. Preap, 139 S. Ct. 954(2019), is not to the contrary. The Court in that case did not reach the
§ 1252(f) issue. See id. at 962. But Justice Thomas rejected the idea that an
injunction complied with § 1252(f) simply by framing itself as “enjoin[ing]
conduct not authorized by the statutes” rather than enjoining their
“operation.” Id. at 975 (Thomas, J., concurring in part and concurring in the
judgment) (quotation omitted). He called this reasoning “circular and
unpersuasive.” Ibid. (going on to note that “[m]any claims seeking to enjoin
or restrain the operation of the relevant statutes will allege that the
Executive’s action does not comply with the statutory grant of authority, but
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the text clearly bars jurisdiction to enter an injunction ‘[r]egardless of the
nature of the action or claim’” (quoting § 1252(f)(1)).
But again, Preap was the opposite of our case. The plaintiffs in Preap
were seeking to prevent DHS from enforcing § 1226(c), which requires the
agency to take certain categories of aliens into custody. See id. at 959–60. In
other words, DHS was applying the provision in question, and the injunction
interfered with the way it did so. Here, in contrast, DHS flatly refuses to
apply either § 1225(b)(2)(A) or § 1225(b)(2)(C), and the injunction requires
otherwise. Thus, the injunction did anything but “enjoin or restrain the
operation of” the INA. § 1252(f)(1).
* * *
The Government’s position in this case has far-reaching implications
for the separation of powers and the rule of law. The Government says it has
unreviewable and unilateral discretion to create and to eliminate entire
components of the federal bureaucracy that affect countless people, tax
dollars, and sovereign States. The Government also says it has unreviewable
and unilateral discretion to ignore statutory limits imposed by Congress and
to remake entire titles of the United States Code to suit the preferences of
the executive branch. And the Government says it can do all of this by typing
up a new “memo” and posting it on the internet. If the Government were
correct, it would supplant the rule of law with the rule of say-so. We hold the
Government is wrong.
The Government’s motion to vacate the judgment and remand for
further proceedings is DENIED. The judgment of the district court is
AFFIRMED.
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