Friday, November 20, 2015

The Government's Petition for Certiorari in the DAPA case, United States v. Texas

Marty Lederman

Here it is.  More to follow soon, but these are the Questions Presented:
The Department of Homeland Security has long engaged in “a regular practice * * * known as ‘deferred action,’” in which the Secretary “exercis[es] [his] discretion” to forbear, “for humanitarian reasons or simply for [his] own convenience,” from removing particular aliens from the United States. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484 (1999).  On November 20, 2014, the Secretary issued a memorandum (Guidance) directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents. 
The questions presented are:
1. Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action. 
2. Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.
3. Whether the Guidance was subject to the APA’s notice-and-comment procedures.

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