Everything’s Bigger in Texas, Including its Anti-immigrant Agenda, by Angela Morrison

“The judgment is affirmed by an equally divided Court.” With these nine words, the Court in United States v. Texas upheld the nationwide injunction against the Obama administration’s Deferred Action for Parents of American and legal resident children program (DAPA). In the short term, this means that around 4.5 million noncitizens will have to remain in the United States unable to work legally, despite their significant ties to the United States.

What happens next depends on what the trial court determines at trial and whom we elect as our next president. What is clear is that Texas, through its arguments in this suit and other immigration suits in the past year, has shown it is willing to spend its residents’ tax dollars to pursue an anti-immigrant litigation strategy. In each of these suits, the state’s proffered justifications have strained credulity.

Impact of the Decision

The Court’s decision last week means that the nationwide injunction against the DAPA and expanded DACA programs will stay in effect and that the case will go to trial. The Fifth Circuit’s decision, which the Court affirmed, found that the United States could not make the strong showing required to stay the district court’s preliminary injunction. First, the Fifth Circuit determined Texas had suffered an injury-in-fact required for Article III standing because the state would have to issue driver’s licenses to individuals who received DAPA.

Second, the Fifth Circuit also rejected the United States’ argument that review was precluded because the program was an exercise of prosecutorial discretion.

According to the Fifth Circuit, DAPA was not an exercise of prosecutorial discretion because the court defined prosecutorial discretion as the executive refraining from action. DAPA was not such an exercise because the administration would be taking an affirmative action– granting work authorization and “lawful presence” to DAPA recipients.

It was the grant of work authorization and “lawful presence,” then, that was reviewable. And, the Fifth Circuit emphasized that the injunction did not apply to the administration’s decision not to deport DAPA recipients: “neither the preliminary injunction nor compliance with the APA requires the Secretary to remove any alien or to alter his enforcement priorities.”

Third, the Fifth Circuit found that the United States could not show that the program was exempt from notice and comment under the APA. The United States had argued that DAPA was not subject to notice and comment because it was a policy statement; an organizational practice or procedure; or a public benefit; and, therefore, fell within the APA’s exceptions to notice and comment. The Fifth Circuit decided DAPA was not exempt because the program left agency officials and employees unable to exercise discretion about who should receive DAPA, it modified Texas’s substantive rights, and the Department of Homeland Security does not grant public benefits.

Because the Court’s decision last week affirms the Fifth Circuit, the lower court’s nationwide injunction against the program stands. The administration and the next administration will still be able to exercise their discretion to halt the deportation of any potential DAPA recipients. But those individuals will not be able to work legally in the United States while they remain.

As I previously argued, it is this aspect of Texas’s argument that I find incredible. Texas has argued that the only problem it has with the program is that it will have to subsidize driver’s licenses for recipients. The state did not challenge the president’s ability to exercise his discretion to set deportation priorities and refrain from deporting some noncitizens based on those priorities.

This means that the state will have over 500,000 people who can remain in the state but who will not be able to legally work to support their United States citizen or legal resident children. Texas’s position makes little rational sense—why would a state want half a million people who cannot work? And, why would a state require children, who are citizens or permanent residents, to bear the brunt of their parents’ inability to work? As a result, the main purpose of the suit appears to be to make life as difficult as possible for noncitizens in the state.

An Anti-Immigrant Agenda

Two other cases in the past year involving Texas and noncitizens also demonstrate Texas’s anti-immigrant agenda. The cases involved resettling Syrian refugees, and the licensing of detention centers for noncitizen children.

Opposing Refugee Resettlement

Within 3 days of the terrorist attack in Paris, in which at least one perpetrator carried a Syrian passport, Texas’s governor began to call on the federal government to stop resettling Syrian refugees in Texas. Less than two months later, Texas sued the federal government and a non-governmental organization (NGO) that resettles refugees over the federal government’s refugee resettlement program.

The state claimed that the federal government’s failure to consult with the state before settling Syrian refugees in Texas violated the Refugee Act and the APA. The state also asserted that the NGO breached its contract with the state regarding cash assistance and social services to refugees because the NGO refused to provide information about individual refugees beyond information related to the administration of the cash assistance and social services. The district court dismissed all of Texas’s claims for failure to state a plausible claim for relief.

Texas’s attorney general Ken Paxton stated: “The point of this lawsuit is not about specific refugees, it is about protecting Texans by ensuring that the federal government fulfills its obligation to properly vet the refugees and cooperate and consult with the state.” Paxton’s claim makes little sense.

The lawsuit challenged only the resettlement of a few Syrian refugees but made no objection to the resettlement of the rest of the over 3,852 refugees since October 2016. Yet, the federal government screened and used the same consultation process for those refugees as for the Syrian refugees. This incongruity demonstrates how the state seized on the fear caused by the Paris terror attacks and tried to use it to incrementally challenge one aspect of the administration’s refugee policy. If the state had been successful, it could have used the same arguments to challenge all refugee resettlement in the state.

Licensing Federal Detention Centers as Daycare Providers

Last July a federal judge held that the Obama administration must release noncitizen children it held in “family” detention centers because the “deplorable” conditions and unlicensed status of the facilities violated a 1997 settlement agreement the government had entered into. Two of the impacted facilities are in Texas—the Karnes and Dilley detention centers.

As a result of the order, the Texas Department of Family and Protective Services (DFPS) passed emergency rules that would allow it to license the facilities as day care facilities without public comment. After a state court judge struck down the emergency rules, the agency submitted the licenses to public comment and granted the Karnes facility a license. An immigrant rights organization sued to enjoin the state from issuing the licenses and the court granted a temporary injunction that stopped DFPS from licensing the Dilley facility.

In its opposition to the injunctive relief, the Department of Family and Protective Services argued that it “wanted to use its resources to improve the quality of life for these children.” And, the Texas Tribune reported that at the hearing on whether to extend the injunction, the assistant attorney general said “If you can’t issue them a license, you can’t regulate them, . . . [w]ho better to police compliance, the facility itself or DFPS?”

However, Texas cannot even police its own facilities and long-term foster care placements, let alone immigration detention facilities. In December 2015, around the same time the agency was rushing through the special licensing provisions for the family detention facilities, a federal court determined the agency had violated the Fourteenth Amendment rights of children in its care. The court found “Texas’s foster care system is broken, and it has been that way for decades. It is broken for all stakeholders, including DFPS employees who are tasked with impossible workloads. . . . children have been shuttled throughout a system where rape, abuse, psychotropic medication, and instability are the norm.”

Both United States v. Texas and the Syrian refugee resettlement case are examples of the state attempting to block the favorable treatment of noncitizens by the Obama administration. But its willingness to license federal detention centers as day care centers shows the state has no problem cooperating with the federal government when it comes to policies that harm noncitizens. And, for the state to spend its resources on licensing federal detention centers when it does not have enough resources to take care of the children already in the state’s care makes no rational sense.

As Justice Ginsburg wrote about Texas’s arguments in the case challenging Texas’s abortion laws, here also, Texas’s reasons are “beyond rational belief.” Instead, they demonstrate Texas’s continuing anti-immigrant agenda.


Angela Morrison

Professor Morrison was previously the Legal Director of the Nevada Immigrant Resource Project (NIRP) at the William S. Boyd School of Law. As director of NIRP, she conducted outreach on immigration-related issues to community partners, immigrant communities, and governmental organizations. Prior to directing NIRP, Professor Morrison worked for the U.S. Equal Employment Opportunity Commission (EEOC) where she was the first EEOC trial attorney in Las Vegas. Before joining the EEOC, Professor Morrison was a law clerk for the Honorable Judge Philip M. Pro, United States District Court for the District of Nevada. She graduated from the William S. Boyd School of Law where she was the editor-in-chief of the Nevada Law Journal and was a student attorney in the Immigration Clinic. Professor Morrison teaches Lawyering Process, Immigration Law and Employment Discrimination.