USCA Case #14-5325 Document #1567834

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2015

Decided August 14, 2015

No. 14-5325

JOSEPH M. ARPAIO, APPELLANT

v.

BARACK OBAMA, ET AL., APPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-01966)

Larry Klayman argued the cause and filed the briefs for appellant.
Beth S. Brinkmann, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Benjamin C. Mizer, Acting Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney at the time the brief was filed, and Scott R. McIntosh, Jeffrey Clair, and William E. Havemann, Attorneys.
Before: BROWN, SRINIVASAN and PILLARD, Circuit Judges.

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Opinion for the Court filed by Circuit Judge PILLARD.
Concurring opinion filed by Circuit Judge BROWN.
PILLARD, Circuit Judge: The Secretary of the Department of Homeland Security, facing what he perceives to be enormous practical obstacles to removing from the United States the eleven million people unlawfully present here, has sought to set enforcement priorities. He accordingly directed relevant agencies temporarily to defer low-priority removals of non-dangerous individuals so that the agencies can focus their resources on removing dangerous criminals and strengthening security at the border. People whose removal has been deferred are generally eligible to apply for authorization to work, and to reside in the United States for up to three years.
Joseph Arpaio, the Sheriff of Maricopa County, Arizona, sued to enjoin the Secretary’s deferred action policies. He asserts that they are unconstitutional, arbitrary and capricious, and invalid under the Administrative Procedure Act as, in effect, regulations that have been promulgated without the requisite opportunity for public notice and comment. We cannot resolve those claims unless Sheriff Arpaio has Article III standing to raise them. To have standing, a plaintiff must have suffered or be about to suffer a concrete injury fairly traceable to the policies he challenges and redressable by the relief he seeks.
Sheriff Arpaio’s standing arguments rest on the premise that more people causing more crimes harm him because, as Sheriff, he will be forced to spend more money policing the county and running its jails. He alleges two ways in which he believes that the population of undocumented aliens committing crimes will increase as a result of deferred action.

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First, he contends that deferred action will act as a magnet drawing more undocumented aliens than would otherwise come across the Mexican border into Maricopa County, where they will commit crimes. Second, he alleges that the challenged policies will decrease total deportations by deferring action against approximately six million undocumented aliens, so that more individuals will remain unlawfully in Maricopa County and commit crimes than would be the case without deferred action.
We conclude that Sheriff Arpaio has failed to allege an injury that is both fairly traceable to the deferred action policies and redressable by enjoining them, as our standing precedents require. His allegations that the policies will cause more crime in Maricopa County are unduly speculative. Projected increases he anticipates in the county’s policing burden and jail population rest on chains of supposition and contradict acknowledged realities.
Sheriff Arpaio recognizes that the deferred action policies he challenges apply only to people who are already present in the United States and who either arrived as children or are parents of children who are United States citizens or lawful permanent residents. His magnet theory nonetheless assumes that the policies will cause non-citizens outside of the United States to cross the border in the mistaken hope of benefitting from the current policies. Alternatively, Sheriff Arpaio posits that foreign citizens will view the current policies as a sign of things to come, and will therefore cross the border in the hope of benefitting from hypothesized future, similar policies that are not the subject of Sheriff Arpaio’s challenge. Our precedents establish that standing based on third-party conduct—such as the anticipated reactions of undocumented aliens abroad—is significantly harder to show than standing based on harm imposed by one’s litigation adversary. That

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difficulty is compounded here because the third-party conduct the complaint forecasts depends on large numbers of people having the same unlikely experiences and behaviors: For the harms Sheriff Arpaio alleges to occur and be redressable by the injunction he seeks, aliens abroad would have to learn about the deferred action policies, mistakenly think that they were eligible to benefit from them, or harbor a hope of becoming eligible for future, similar policies as yet unannounced, actually leave their homes and enter the United States illegally based on that false assumption, commit crime in Maricopa County, become involved in—and costly to—the criminal justice system there, and be less likely under deferred action to be removed from the United States than they would have been without those policies in place.
Sheriff Arpaio’s second standing theory is no less tenuous. Sheriff Arpaio recognizes that only non-dangerous immigrants are eligible for deferred action, but he nonetheless contends that those deferrals will mean that crime by undocumented aliens will be higher than it would be without them. This second theory rests on the mistaken premise that the challenged policies decrease the number of removals below what would have been accomplished had the policies not been adopted. Accurately read, however, the policies seek not to decrease the total number of removals but to prioritize removal of individuals who pose a threat to public safety over removal of those who do not. The policy is designed to make the Department of Homeland Security’s expenditure of resources more efficient and effective. Even if it were plausibly alleged (and it is not) that the challenged policies would mean more undocumented aliens remain in the county, the reduced-removals theory also depends on unsupported speculation that these policies, expressly confined to individuals who do not pose threats to public safety, will increase the number of crimes in Maricopa County above

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what could reasonably be anticipated in the absence of any such policies.
Because Sheriff Arpaio’s allegations of causation and redressability rest on speculation beyond that permitted by our standing decisions, we affirm the district court’s dismissal of the complaint for want of Article III standing.
I.
A.
The nation’s immigration laws provide for the removal from the United States of people who were “inadmissible at the time of entry,” or who commit certain offenses or meet other criteria for removal. Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). The Secretary of Homeland Security is “charged with the administration and enforcement” of the immigration laws. 8 U.S.C. § 1103(a)(1). With enforcement responsibility comes the latitude that all executive branch agencies enjoy to exercise enforcement discretion—discretion necessitated by the practical fact that “[a]n agency generally cannot act against each technical violation of the statute it is charged with enforcing.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). The Supreme Court has particularly recognized that “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 132 S. Ct. at 2499. Whether to initiate removal proceedings and whether to grant relief from deportation are among the discretionary decisions the immigration laws assign to the executive. Id.
In making immigration enforcement decisions, the executive considers a variety of factors such as the danger posed to the United States of an individual’s unlawful presence, the impact of removal on the nation’s international

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relations, and the “human concerns” of whether the individual “has children born in the United States, long ties to the community, or a record of distinguished military service.” Id. More generally, the Supreme Court has recognized that all agencies have discretion to prioritize in light of the Secretary’s and, ultimately, the President’s assessments “whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all.” Heckler, 470 U.S. at 831.
One form of discretion the Secretary of Homeland Security exercises is “deferred action,” which entails temporarily postponing the removal of individuals unlawfully present in the United States. See Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 484 (1999). Immigration authorities have made decisions to defer action or take similar measures since the early 1960s. See The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present (“OLC Op.”), 38 O.L.C. Op. ----, pp. 7-8, 12-13 (Nov. 19, 2014). For example, in 1990, the Immigration and Naturalization Service implemented a “Family Fairness” program that deferred removal of and provided work authorizations to approximately 1.5 million individuals whose spouses or parents had been granted legal status in the United States under the Immigration and Reform Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359. OLC Op. at 14. Approximately forty percent of individuals unlawfully present in the United States at that time were potentially eligible for the program. Id. at 31.

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Today, the Department of Homeland Security estimates that there are approximately 11.3 million people in the United States who may be subject to removal under the immigration laws. See id. at 1. Of those, the Department estimates that it has the resources to remove fewer than 400,000 each year. Id. In an effort to allocate the Department’s limited resources, Secretary Janet Napolitano in June 2012 directed relevant agencies “to ensure that our enforcement resources are not expended on . . . low priority cases but are instead appropriately focused on people who meet our enforcement priorities.” Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1 (June 15, 2012), J.A. 101. In what became known as Deferred Action for Childhood Arrivals, or DACA, the Secretary outlined a policy to defer removal proceedings for two years, subject to renewal, of individuals who came to the United States as children, met certain eligibility criteria, and cleared a background check. Id. at 1-2. Those eligible for DACA could identify themselves to the Department for individualized review and, if eligible, receive temporary deferral and authorization, on a case-by-case basis, to work in the United States. Id. at 3. The memorandum emphasizes, however, that deferred action remains discretionary and reversible, and “confers no substantive right, immigration status or pathway to citizenship.” Id.
In November 2014, Jeh Johnson, Napolitano’s successor as Secretary of Homeland Security, revised the DACA program by extending it to more childhood arrivals and extending to three years the deferred action and work authorization periods. Memorandum from Jeh Charles Johnson, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who are Parents of U.S.

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Citizens or Permanent Residents 1 (Nov. 20, 2014), J.A. 145. In addition, the Secretary outlined a second deferred action policy for the parents of United States citizens and lawful permanent residents, which has become known as Deferred Action for Parents of Americans, or DAPA. Id. at 4-5. Parents seeking to take part in DAPA must meet similar eligibility requirements as DACA beneficiaries, and they, too, must clear a background check. Id. Neither DACA nor DAPA applies to individuals who arrived in the United States after January 1, 2010. Id. at 4.
The Secretary explained that DACA and DAPA apply to individuals who “are extremely unlikely to be deported given [the] Department’s limited enforcement resources—which must continue to be focused on those who represent threats to national security, public safety, and border security.” Id. at 3. In a separate memorandum issued on the same day, the Secretary revised the Department’s enforcement priorities. Memorandum from Jeh Charles Johnson, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants 1 (Nov. 20, 2014), J.A. 154. One of the eligibility requirements of DACA and DAPA is that individuals must not fall under any of three enforcement priority categories. The first applies to “threats to national security, border security, and public safety,” i.e., those engaged in or suspected of terrorism or espionage, apprehended at the border or ports of entry attempting to enter the United States unlawfully, convicted of an offense involving participation in gangs or organized crime, or convicted of a felony or aggravated felony. Id. at 3. The second category applies to those convicted of three or more offenses (not including traffic- or immigration-related offenses), or of a single “significant misdemeanor,” including crimes of violence, drug distribution or trafficking, driving under the influence of an impairing substance, and any other misdemeanor that resulted

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in more than ninety days’ incarceration. Id. at 3-4. The third category applies to individuals who have been issued a final order of removal on or after January 1, 2014. Id. at 4.
DACA and DAPA therefore apply to the portion of the population that the Department considers not threatening to public safety and that has not had any involvement, or only minimal and minor involvement, with the criminal justice system. Although estimates of this kind are notoriously difficult to make, it appears that up to about six million of the 11.3 million individuals subject to removal from the United States may be eligible either for DACA or DAPA.1
B.
On the same day that the President announced the revisions to DACA and the new DAPA policy, the elected Sheriff of Maricopa County, Arizona, Joseph Arpaio, sued the President and other federal officials seeking a declaration and preliminary injunction that DACA and DAPA violate the Administrative Procedure Act, 5 U.S.C. § 551 et seq., the President’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and the nondelegation doctrine.
1 Sheriff Arpaio claims throughout his briefing, without citation, that the total number of DACA- and DAPA- eligible individuals is six million. The Department estimates that four million people may be eligible for DAPA, but acknowledges the difficulty of arriving at accurate estimates. See OLC Op. at 30. We have found no estimate of DACA eligibility in the record, but one court has noted that some observers expect the number of eligible individuals to reach 1.7 million, Texas v. United States, No. CIV. B-14-254, --- F. Supp. 3d ---, 2015 WL 648579, at *4 (S.D. Tex. Feb. 16, 2015), bringing the combined total to 5.7 million. The Sheriff’s estimate thus appears reasonable.

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Maricopa County is the fourth most populous county in the nation, and the most populous by far in Arizona. It stands thirty miles from the United States’ border with Mexico. Sheriff Arpaio alleges that he was “adversely affected and harmed in his office’s finances, workload, and interference with the conduct of his duties, by the failure of the executive branch to enforce existing immigration laws” through adoption of DACA in 2012. Compl. ¶ 27. He asserts that his office has been “severely affected” by increases in unlawful entries that he alleges were motivated by the President’s “amnesty” policies, and he predicted further unlawful entries due to the policies announced in 2014. Id. In a declaration, Sheriff Arpaio avers that the increased number of unlawful arrivals in Maricopa County after DACA was first adopted in 2012 imposed costs on his office in terms of “manpower and financially” because some of those individuals who arrived without documentation ended up in the Sheriff’s jails, and others committed offenses that required additional investigation on the part of the Sheriff’s office. Supp’l Arpaio Decl., J.A. 656-58 ¶¶ 12, 18-20, 27.
The district court denied a preliminary injunction and dismissed the complaint for lack of subject matter jurisdiction because Sheriff Arpaio had failed to allege a cognizable injury in fact for purposes of Article III standing. Arpaio v. Obama, 27 F. Supp. 3d 185, 192, 207 (D.D.C. 2014). The court held that Sheriff Arpaio presents a non-justiciable “generalized grievance,” as opposed to a particularized injury. Id. at 202. If it recognized Sheriff Arpaio’s standing to bring these claims, the court opined, it “would permit nearly all state officials to challenge a host of Federal laws simply because they disagree with how many—or how few—Federal resources are brought to bear on local interests.” Id. The district court also concluded that Arpaio lacked standing because his claimed injury was “largely speculative.” Id. at

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203. The court found implausible the contention that “the challenged deferred action programs will create a ‘magnet’ by attracting new undocumented immigrants into Maricopa County, some of whom may commit crimes under Arizona law.” Id. Sheriff Arpaio’s theory treats as a certain and immediate effect of the challenged programs, the court held, migration decisions that are in reality “complex decision[s] with multiple factors, including factors entirely outside the United States’ control, such as social, economic and political strife in a foreign country.” Id. Sheriff Arpaio timely appealed.
II.
We review de novo the district court’s dismissal for lack of standing. Renal Physicians Ass’n v. U.S. Dep’t of Health & Human Servs., 489 F.3d 1267, 1273 (D.C. Cir. 2007). The plaintiff bears the burden of invoking the court’s subject matter jurisdiction, including establishing the elements of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The “irreducible constitutional minimum of standing contains three elements”: injury in fact, causation, and redressability. Id. at 560-61. Injury in fact is the “invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal quotation marks and citations omitted). The “causal connection between the injury and the conduct complained of” must be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. at 561 (internal quotation marks and alterations omitted). And it must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. (internal quotation marks omitted). Finally, because Sheriff Arpaio seeks prospective declaratory and

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injunctive relief, he must establish an ongoing or future injury that is “certainly impending”; he may not rest on past injury. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (emphasis omitted).
“[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. Consequently, because the Department challenges the adequacy of Sheriff Arpaio’s complaint and declarations to support his standing, we accept the wellpleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff’s favor, as we do in reviewing dismissals for failure to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nevertheless, “[t]hreadbare recitals of the elements of [standing], supported by mere conclusory statements, do not suffice.” Id. We do not assume the truth of legal conclusions, id., nor do we “accept inferences that are unsupported by the facts set out in the complaint,” Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007). Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim [of standing] that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
III.
The Sheriff’s Office’s expenditures of resources on criminal investigation, apprehension, and incarceration of criminals are indeed concrete, but Sheriff Arpaio lacks standing to challenge DACA and DAPA because any effects of the challenged policies on the county’s crime rate are unduly speculative.

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A.
Sheriff Arpaio’s standing theory relies on a predicted chain of events, as follows: Under the challenged policies, the Secretary of Homeland Security will refrain from removing DACA and DAPA beneficiaries. Foreign citizens outside of the United States and ineligible for either DACA or DAPA will learn of those policies. Those people will either mistakenly believe that they are eligible to benefit from them, or conjecture that the policies make it likely that the federal government will adopt a future, similar policy of deferred action for which they would be eligible. Relying on such surmise, those individuals will decide to enter the United States unlawfully, stimulated by the hope of obtaining relief from deportation. Some of those new arrivals will settle in Maricopa County. And some subset of those, contrary to their own plans to benefit from anticipated deferred action or removal opportunities restricted to non-criminal aliens, will commit crimes. The portion of those who are investigated, arrested, or jailed by the Sheriff’s Office will cause an increased expenditure of resources. See Supp’l Arpaio Decl. ¶ 18. It is that predicted expenditure of resources that Sheriff Arpaio seeks to redress through this suit.
Any injury Sheriff Arpaio suffers from the financial burdens imposed by new arrivals would not be fairly traceable to DACA or DAPA. Neither DACA nor DAPA applies to people who entered the United States after January 1, 2010, and thus plainly neither applies to entrants arriving now or in the future. Sheriff Arpaio argues that foreign citizens will see DACA and DAPA as harbingers of the federal government’s future immigration policies, and so be encouraged to enter the United States unlawfully. Even if the causal links in that attenuated chain were adequately alleged, the decisions of such individuals to enter the United States unlawfully lack

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any legitimate causal connection to the challenged policies. Just as the law does not impose liability for unreasonable reliance on a promise, see Restatement (Second) of Contracts § 90 (1981), it does not confer standing to complain of harms by third parties the plaintiff expects will act in unreasonable reliance on current governmental policies that concededly cannot benefit those third parties. We are aware of no decision recognizing such an attenuated basis for standing. See Mideast Sys. & China Civil Const. Saipan Joint Venture, Inc. v. Hodel, 792 F.2d 1172, 1178 (D.C. Cir. 1986) (“[T]he mere possibility that causation is present is not enough; the presence of an independent variable between either the harm and the relief or the harm and the conduct makes causation sufficiently tenuous that standing should be denied.”).
Even were we to ignore the disconnect between the challenged policies and the increased law enforcement expenditures that Sheriff Arpaio predicts, his reliance on the anticipated action of unrelated third parties makes it considerably harder to show the causation required to support standing. The injuries Sheriff Arpaio predicts would stem not from the government’s DACA or DAPA programs, but from future unlawful entrants committing crimes in Maricopa County after their arrival. Although “standing is not precluded” in a case that turns on third-party conduct, “it is ordinarily substantially more difficult to establish.” Lujan, 504 U.S. at 562 (internal quotation marks omitted). We have required “substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little doubt as to causation and the likelihood of redress.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 941 (D.C. Cir. 2004); see also Renal Physicians, 489 F.3d at 1275.

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Likewise, because Sheriff Arpaio must rest his claims for declaratory and injunctive relief on predicted future injury, see Clapper, 133 S. Ct. at 1147, he bears a “more rigorous burden” to establish standing, United Transp. Union v. ICC, 891 F.2d 908, 913 (D.C. Cir. 1989). We must take the complaint’s allegations “of facts, historical or otherwise demonstrable,” as true. Id. at 912. But we treat “allegations that are really predictions” differently. Id. “When considering any chain of allegations for standing purposes, we may reject as overly speculative those links which are predictions of future events (especially future actions to be taken by third parties),” as well as predictions of future injury that are “not normally susceptible of labelling as ‘true’ or ‘false.’” Id. at 913. In order to establish standing premised on future injury, Sheriff Arpaio “must demonstrate a realistic danger of sustaining a direct injury.” Id. (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
Sheriff Arpaio asserts that he is entitled to proceed based on a lenient assessment of his alleged concrete injury, because his complaint includes a claim of procedural injury from violation of the Administrative Procedure Act. That contention mischaracterizes our procedural injury cases. “[T]hough the plaintiff in a procedural-injury case is relieved of having to show that proper procedures would have caused the agency to take a different substantive action, the plaintiff must still show that the agency action was the cause of some redressable injury to the plaintiff.” Renal Physicians, 489 F.3d at 1279.
Here, Sheriff Arpaio’s allegations that DACA and DAPA will cause unlawful immigration to increase are conjectural and conclusory. See, e.g., Suppl. Arpaio Decl. ¶¶ 16-17. The only relevant specifics appear not in his pleadings, but in his

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brief, where he points to the “flood of unaccompanied minors in the Summer of 2014 crossing the Mexican border”—an increase that he attributes to Secretary Napolitano’s June 2012 DACA memorandum. Arpaio Br. 17. He argues that we may extrapolate from that experience that the revised DACA and new DAPA policies will cause increased unlawful immigration in the future. Even if we could credit an assertion in a brief as if it were alleged in a pleading, see Runnemede Owners, Inc. v. Crest Mortg. Corp., 861 F.2d 1053, 1057 (7th Cir. 1988) (“[A]ssertions contained only in the briefs may not be used to expand the allegations of the complaint.”), Sheriff Arpaio’s argument nonetheless suffers from the logical fallacy post hoc ergo propter hoc (after this, therefore because of this). Just as we do not infer that the rooster’s crow triggers the sunrise, we cannot infer based on chronology alone that DACA triggered the migrations that occurred two years later.
Sheriff Arpaio provides no factual allegations to link the 2014 “flood” of minors to DACA. The record reveals only speculation about the complex decisions made by non-citizens of the United States before they risked life and limb to come here. While immigration policies might have played into that calculus, so, too, might the myriad economic, social, and political realities in the United States and in foreign nations. Even assuming that it is conceivable that inaccurate knowledge of DACA could have provided some encouragement to those who crossed the southern border, the Supreme Court’s precedent requires more than illogic or “unadorned speculation” before a court may draw the inference Sheriff Arpaio seeks. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 44 (1976).
Moreover, even if we were to assume DACA and DAPA increase unlawful immigration, we cannot further infer that

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they increase crime. At base, Sheriff Arpaio’s contention is that more immigrants mean more crime. There is simple appeal to the notion that, all else being equal, more people will commit more crime. But the reality is that crime is notoriously difficult to predict. Explaining its causes, even after the fact, is rife with uncertainty. Crime rates are affected by numerous factors, such as the local economy, population density, access to jobs, education, and housing, and public policies that directly and indirectly affect the crime rate. Even if it were possible to do so, Sheriff Arpaio does not explain how increased migration would interact with those and other factors affecting the crime rate. On this record, it is pure speculation whether an increase in unlawful immigration would result in an increase, rather than a decrease or no change, in the number of crimes committed in Maricopa County. Where predictions are so uncertain, we are prohibited from finding standing. See O’Shea v. Littleton, 414 U.S. 488, 497 (1974) (holding that a class of African Americans and civil rights activists lacked standing to challenge an alleged pattern and practice of selective and discriminatory criminal law enforcement because “attempting to anticipate whether and when these respondents will be charged with crime . . . takes us into the area of speculation and conjecture”).
We faced one example of the obstacles to standing based on predicted harms flowing from third-party conduct in Northwest Airlines, Inc. v. FAA, 795 F.2d 195, 201 (D.C. Cir. 1986). Northwest Airlines sought to challenge the FAA’s decision to certify a pilot to continue flying after the airline discharged him for flying while intoxicated. The airline argued that “allowing unfit pilots in the skies endangers all others who fly and confers upon [the endangered parties] standing to challenge any . . . certification decision.” Id. at 201. We reiterated that the standing requirements “will not be

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satisfied simply because a chain of events can be hypothesized in which the action challenged eventually leads to actual injury.” Id. Consequently, we held that the airline lacked standing because the “possibility” that the pilot would be hired by another airline, fly in the same region as the plaintiff airline, and actually cause injury to the plaintiff’s passengers and crew was “too remote and speculative to constitute injury.” Id. Just as the airline’s challenge to the FAA’s decision to treat an alcoholic pilot leniently was premised on the airline’s hypothesis that the decision created a “marginally increased possibility” that the pilot would engage in unlawful behavior, id. at 202, Sheriff Arpaio’s challenge to the Department of Homeland Security’s deferred action policies rests on his hypothesis that they will lead to increased unlawful behavior. Both theories suffer from the same weakness: “the likelihood of any injury actually being inflicted [is] too remote to warrant the invocation of judicial power.” Id.2
2 Sheriff Arpaio also argues that we are required to draw the inference that “a demonstrated willingness to break this nation’s laws to get what one wants but is not entitled to, experiencing a widespread outcry excusing their law-breaking, and suffering no consequences constitute valid grounds for predicting a lowered resistance to breaking more laws.” Arpaio Br. 46. Not so. Sheriff Arpaio has made no factual allegations that might support his asserted connection between the decision to enter the United States unlawfully and the propensity to commit other crimes. See Islamic Am. Relief Agency, 477 F.3d at 732 (“This Court need not . . . accept inferences that are unsupported by the facts set out in the complaint.”). Even if he had, he has not contended with the legal hurdle posed by courts’ general reluctance to predict propensities to commit crime in the future. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 108 (1983) (“[I]t is surely no more than speculation to assert either that Lyons himself will again be” arrested and

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Sheriff Arpaio contends that cases recognizing competitor standing support his reliance on anticipated future harm. In certain circumstances, we have found standing premised on the federal government’s favorable regulatory treatment of a plaintiff’s competitor. Plaintiffs may claim predictable economic harms from the lifting of a regulatory restriction on a “direct and current competitor,” Mendoza v. Perez, 754 F.3d 1002, 1013 (D.C. Cir. 2014) (internal quotation marks and emphasis omitted), or regulatory action that enlarges the pool of competitors, which will “almost certainly cause an injury in fact” to participants in the same market, Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010). But we have not hesitated to find competitor standing lacking where the plaintiff’s factual allegations raised only “‘some vague probability’” that increased competition would occur. Id. at 74 (quoting DEK Energy Co. v. FERC, 248 F.3d 1192, 1196 (2001)). Because of the generally contingent nature of predictions of future third-party action, we have remained sparing in crediting claims of anticipated injury by market actors and other parties alike. See United Transp. Union, 891 F.2d at 912 n.7 (distinguishing “allegations of future injury that are firmly rooted in the basic laws of economics” from other allegations of future injury). Sheriff Arpaio’s theory that more immigrants mean more crime is not sufficiently analogous to the basic laws of economics for our competitor standing cases to apply.
Finally, we note that the Fifth Circuit’s recent decision in Texas v. United States, 787 F.3d 733 (5th Cir. 2015), does not support Sheriff Arpaio’s standing. That court found that the State of Texas had standing to challenge DAPA because it would be required to issue driver’s licenses to DAPA
subjected to a chokehold by resisting arrest.); O’Shea v. Littleton, 414 U.S. at 497; cf. Nw. Airlines, 795 F.2d at 201.

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beneficiaries. Id. at 748-54. Texas offers driver’s licenses at a substantially subsidized price; it loses $130.89 on each license it issues. Id. at 748. DAPA renders the approximately 500,000 of its beneficiaries who reside in Texas eligible to obtain Texas driver’s licenses. Id. at 752. Texas alleged that anyone who qualifies under DAPA also by the same token qualifies for a Texas license. Such an increase in the numbers of persons eligible for Texas driver’s licenses, the Fifth Circuit reasoned, has the “direct and predictable effect” of imposing costs on the state. Id. Assuming arguendo the correctness of that conclusion, here, by contrast, the record reveals nothing from which we may draw the inference that the “direct and predictable effect” of the challenged policies will be an increase in the costs to Sheriff Arpaio’s office of responding to crime. Sheriff Arpaio’s contention is, at bottom, premised on the speculative prediction that DACA and DAPA will create incentives on third parties to behave in misinformed or irrational ways that would harm him. The claim in Texas, by contrast, was that undocumented aliens immediately become eligible for the license benefit by dint of becoming DAPA beneficiaries. Insofar as those circumstances pose “actual and imminent” concrete harm to Texas, we face a significantly different situation here. See id. at 744-45, 751.
B.
Sheriff Arpaio’s argument in the district court focused on the harms he anticipates from an increased number of people unlawfully crossing the border. On appeal, his standing theory focuses more on a separate prediction that fewer of the undocumented aliens already in the United States will be removed under the new policies than would have been removed without them. See Oral Arg. Tr. 15:6-10. Under this second theory, Sheriff Arpaio argues that he will be

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injured because some portion of the six million people who might benefit from deferred action will remain in Maricopa County rather than being removed, and some portion of those will commit crimes. This theory rests on the unsupported assumption that the total removals will drop due to DACA and DAPA, plus the speculation that those programs’ beneficiaries will increase the crime rate.
A crucial assumption behind this standing claim is that, but for the challenged policies, the government would be able promptly to remove individuals eligible for DACA or DAPA. But Sheriff Arpaio does not dispute that the Department of Homeland Security has the resources only to remove fewer than 400,000 undocumented aliens per year. See Hrg. Tr., J.A. 718-19. Indeed, he repeatedly alleges that, before DACA and DAPA, the government was removing far fewer undocumented aliens from Maricopa County than he thought was appropriate. But Sheriff Arpaio does not generally challenge what he calls the executive’s failure to enforce the immigration laws; his claims are directed only to DACA and DAPA. Neither those policies, nor the Department of Homeland Security that administers them, contemplates the net removal of fewer individuals under the policies than under the status quo ante.
The relevant question, then, is not whether the government will remove fewer undocumented aliens under the challenged policies than without them, but whether the shift in removal priorities that DACA and DAPA reflect will cause an increase in crime in Maricopa County. Sheriff Arpaio’s prediction of an increase in undocumented aliens committing crime runs contrary to the thrust of those policies. DACA and DAPA apply only to non-dangerous immigrants. They are designed to allow the Department to focus its resources on removing those undocumented aliens most

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disruptive to the public safety and national security of the United States. To qualify for DAPA or DACA, individuals must pass a background check, have long-term ties to the United States, and submit to individualized assessments for compatibility with the Secretary’s priorities in removing criminals. Even after they are approved for deferred action, DAPA and DACA beneficiaries are subject to the Department’s overall enforcement priorities. They get no free pass to commit offenses, whether dangerous or otherwise serious; those types of offenders remain high priorities for removal from the United States.
The flaw in Sheriff Arpaio’s logic is fatal to his claim. See Renal Physicians, 489 F.3d at 1278. The challenged policies seek to increase the proportion of removal proceedings and deportations of those who pose a threat to public safety or national security. The policies are designed to remove more criminals in lieu of removals of undocumented aliens who commit no offenses or only minor violations while here. To the extent that such predictions are possible, if the programs are successful by their own terms, the number of crimes committed by undocumented aliens in Maricopa County should drop. Sheriff Arpaio has not explained how making the removal of criminals a priority over the removal of non-dangerous individuals will instead result in an increase in crime.3 This is thus not a case in
3 The Fifth Circuit recently acknowledged a similar flaw in Mississippi’s challenge to DACA. Mississippi’s claim of injury was not supported by facts showing that DACA-eligible undocumented aliens would impose increased costs on the state. Crane v. Johnson, 783 F.3d 244, 252 (5th Cir. 2015). The Fifth Circuit observed that it could instead be the case, as the Department of Homeland Security argued and contrary to Mississippi’s contentions, “that the reallocation of DHS’s assets is resulting in the removal of immigrants that impose a greater financial burden on

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which the plaintiff and defendant each present plausible explanations for the facts alleged. See Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011). Dismissal is required because the “plausible alternative explanation” that DACA and DAPA will result in fewer crimes in Maricopa County, not more, “is so convincing that [the] plaintiff’s explanation is implausible.” Id.; see also Renal Physicians, 489 F.3d at 1277.
* * *
We have observed that the “complexity and interdependence of our society and governmental policies” enable prospective plaintiffs to allege theories of causation that, though severely attenuated, carry with them “some plausibility.” Nw. Airlines, 795 F.2d at 203 n.2. “If such allegations were routinely accepted as sufficient to confer standing, courts would be thrust into a far larger role of judging governmental policies than is presently the case, or than seems desirable.” Id. We must rigorously review allegations by plaintiffs who seek to invoke the subject matter jurisdiction of the federal courts based on the projected response of independent third parties to a challenged government action. In this case, Sheriff Arpaio’s standing allegations fall short. For these reasons, we hold Sheriff Arpaio lacks standing to challenge DACA and DAPA.
Accordingly, we affirm the judgment of the district court.
So ordered.
the state,” and, if so, DACA’s “net effect would be a reduction in the fiscal burden on the state.” Id. The court affirmed dismissal of the case for want of “a sufficiently concrete and particularized injury that would give Plaintiffs standing to challenge DACA.” Id. at 255.

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BROWN, Circuit Judge, concurring: Today we hold that the elected Sheriff of the nation’s fourth largest county, located mere miles from our border with Mexico, cannot challenge the federal government’s deliberate nonenforcement of the immigration laws. I agree with my colleagues that the state of the law on standing “requires, or at least counsels, the result here reached.” Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 798 (D.C. Cir. 1987). But, recognizing that Sheriff Arpaio’s claims reflect the widespread perception that the administration’s prosecutorial discretion meme is constitutionally problematic, I write separately to emphasize the narrowness of today’s ruling, and note the consequences of our modern obsession with a myopic and constrained notion of standing.
* * *
Sheriff Joseph Arpaio of Maricopa County, Arizona, filed suit to prevent the President from implementing programs deferring the removal of certain undocumented immigrants from the United States. These programs, referred to as Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA), generally delay removal proceedings for undocumented immigrants who pass a background check and satisfy specified eligibility criteria. See Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1 (June 15, 2012), J.A. 101; Memorandum from Jeh Charles Johnson, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and With Respect to Certain Individuals Who are Parents of U.S. Citizens or Permanent Residents 1 (Nov. 20, 2014), J.A. 145. Those who qualify receive authorization to work and reside in the United States for renewable periods.

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What the government views as permissible prosecutorial discretion, Sheriff Arpaio views as a violation of the President’s duty to “take Care that the Laws be faithfully executed,” U.S. CONST. art. II, § 3, and the non-delegation doctrine. Sheriff Arpaio also identifies potential procedural violations, contending the orders fail to comply with noticeand-comment procedures required by the Administrative Procedure Act.
Sheriff Arpaio’s problems with the challenged policies run deeper than a difference in philosophy or politics. He claims DACA and DAPA impose clear and “severe[]” harms on his ability to protect the people of Maricopa County. Compl. ¶ 27. In particular, he argues that deferring removal proceedings and providing work authorizations to undocumented immigrants “harmed . . . his office’s finances, workload, and interfere[d] with the conduct of his duties . . . .” Id. He attributes an influx of undocumented immigrants to the Department’s non-enforcement policies, and claims it corresponded with a rise in crime. Increased crime means increased costs for the Sheriff, who must run the jails and provide deputies to police the streets.
* * *
Sheriff Arpaio’s concerns are no doubt sincere. But, as the court concludes, we cannot hear his claims because he lacks standing to proceed. Under our standing jurisprudence, the injuries he claims resulted from DACA and DAPA are simply too inexact and speculative. Consequently, we must affirm the district court’s dismissal of the complaint.
Some may find today’s outcome perplexing. Certainly Sheriff Arpaio cannot be blamed for believing he had standing. The relevant judicial guideposts do not exactly

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“define[]” standing “with complete consistency.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982). And some cases suggest standing can be satisfied based on fairly ephemeral injuries and attenuated theories of causation. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 516–26 (2007).
Indeed, at first blush, Sheriff Arpaio’s allegations appear somewhat similar to those the Supreme Court found sufficient to secure standing in Massachusetts v. EPA. That case revolved around EPA’s decision not to regulate greenhouse gas emissions in new vehicles. Then, as now, standing consisted of a tripartite test. Plaintiffs must show they were or will be concretely injured by an action fairly traceable to the defendant and redressable by the court. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102–04 (1998). The rules are somewhat relaxed for plaintiffs who, like Massachusetts and Sheriff Arpaio, seek to vindicate a procedural right, including “the right to challenge agency action unlawfully withheld.” Massachusetts, 549 U.S. at 517. Procedural rights claims can proceed “without meeting all the normal standards for redressability and immediacy.” Id. at 517–18 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)). Massachusetts received a further benefit. As a sovereign state, it was “entitled to special solicitude in [the] standing analysis.” Id. at 520.
Massachusetts, like Sheriff Arpaio, believed the federal government had “abdicated its [statutory] responsibility” to protect the State’s interests. Id. at 505. The State, like the Sheriff, asked the Court to construe the meaning of a federal statute, “a question eminently suitable to resolution in federal court.” Id. at 516. And Congress had authorized challenges to the EPA, id., just as Congress has generally authorized the type of challenge Sheriff Arpaio now pursues, see 5 U.S.C. §

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704; see also Texas v. United States, 787 F.3d 733, 751–52 (5th Cir. 2015).
The Supreme Court ultimately found that Massachusetts’ injury lay in the potential loss of coastal land caused by the threat of rising seas. The Court said “the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts.” Massachusetts, 549 U.S. at 526. Scientific evidence suggested a causal relationship between greenhouse gases and atmospheric warming. The Court brushed aside EPA’s argument that Massachusetts had only a generalized grievance widely shared by others. The global nature of global warming did not negate the state’s claimed concrete injury. See id. at 522–23.
Just as EPA’s inaction harmed Massachusetts’ shores, inaction on immigration is said to harm Sheriff Arpaio’s streets. Immigration, like global warming, affects the entire nation. But that does not mean no one has standing to challenge the concrete effects of the federal government’s immigration policies. “[W]here a harm is concrete, though widely shared, the Court has found ‘injury in fact.’” FEC v. Akins, 524 U.S. 11, 24 (1998).
Based on these facial similarities, someone in Sheriff Arpaio’s shoes may well believe he has standing. After all, Massachusetts sets out a “loosened standard” under which “any contribution of any size to a cognizable injury” seems to be “sufficient for causation, and any step, no matter how small,” seems to be “sufficient to provide the necessary redress.” Jonathan H. Adler, Standing Still in the Roberts Court, 59 CASE W. RES. L. REV. 1061, 1078 (2009). Under that elastic framework, the risk of harm, however tenuously linked to the challenged government action, appears to suffice to show standing.

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Despite initial appearances, Massachusetts does not support the Sheriff’s standing. Preliminarily, perhaps sensing that Massachusetts’ broad-based claim could not satisfy the ordinary rules of standing, the Court lowered the bar, ruling that state litigants were “entitled to special solicitude” in the standing calculus. Massachusetts, 549 U.S. at 520. In addition to being special, the solicitude the Massachusetts’ Court manufactured was highly selective: cast in concerns over state sovereignty, see id. at 518–20, this bit of doctrinal favoritism likely does not extend to non-state litigants like the Sheriff, who must clear the ordinary hurdles to standing. The Sheriff falls short, largely for the reasons addressed below.
Without the laxity afforded to state litigants, Sheriff Arpaio’s arguments for causation are overly speculative. At bottom, Sheriff Arpaio avers that DACA and DAPA inspired a flood of immigration which led, in turn, to increased crime. His injury rests on the behavior of third parties, undocumented immigrants who chose to commit crime. “[I]t is ordinarily substantially more difficult to establish” standing based on the actions of third parties. Lujan, 504 U.S. at 562 (internal quotations omitted). The Sheriff has not met that higher burden. The link between DACA and DAPA— programs designed for non-criminals—and crimes committed by undocumented immigrants is too attenuated and susceptible to intervening factors.1 See, e.g., Mideast Sys. &
1 Of course, in reality, the link may be no more attenuated than that connecting a potential twenty-centimeter rise in sea level with greenhouse gas emissions from new vehicles. See Massachusetts, 549 U.S. at 522; see also Adler, supra, at 1074 n. 91 (“[T]he amount of sea-level rise that constitute[d] Masachusetts’s actual, present injury is less than 0.1cm-0.2cm per year, and the amount of projected sea-level rise that could be redressed by regulation of greenhouse gas emissions from new motor vehicles under [EPA’s

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China Civil Const. Saipan Joint Venture, Inc. v. Hodel, 792 F.2d 1172, 1178 (D.C. Cir. 1986) (“[T]he presence of an independent variable between either the harm and the relief or the harm and the conduct makes causation sufficiently tenuous that standing should be denied.”). Lacking grounds for special treatment under Massachusetts, Sheriff Arpaio has not satisfied the demands of our standing doctrine.
Finally, the central difference between this case and Massachusetts may be much more practical in nature: Massachusetts, unlike Sheriff Arpaio, did its homework. The State hired experts and introduced detailed information suggesting a causal relationship between certain gases, atmospheric warming and a rise in sea levels. See Massachusetts, 549 U.S. at 521–23. Sheriff Arpaio instead can show potential costs but not causation, owing largely to the difficulty of showing causation in cases dependent on third-party behavior. Without more, his claim cannot survive the scrutiny of our modern, formalistic approach to standing.
* * *
Today’s holding puts the consequences of our standing jurisprudence in stark relief. If an elected Sheriff responsible for the security of a county with a population larger than
regulatory authority] is even less, as U.S. motor vehicles only represent a fraction of [greenhouse gas] emissions.”). Even so, Sheriff Arpaio has not shown that link with the particularity our precedents demand. See, e.g., Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 941 (D.C. Cir. 2004) (requiring “substantial evidence” in the record “of a causal relationship between the government policy and the third-party conduct, leaving little doubt as to causation and the likelihood of redress”).

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twenty-one states2 cannot bring suit, individual litigants will find it even more difficult to bring similar challenges. But today’s decision, however broad it may seem, is actually quite narrow in two respects.
First, our decision holds only that Sheriff Arpaio lacks standing to challenge DACA and DAPA, not that those programs are categorically shielded from suit. Indeed, those programs are currently subject to challenge in a number of other circuits. See Texas, 787 F.3d at 747–55 (upholding Texas’ standing to challenge DAPA based on the costs of providing drivers licenses to DAPA beneficiaries); Ariz. DREAM Act Coal. v. Brewer, No. 15-15307, 2015 WL 300376 (9th Cir. July 17, 2015) (ordering the parties, and inviting the federal government, to file briefs discussing whether DACA violates the separation of powers or the Take Care Clause of the Constitution); cf. Crane v. Johnson, 783 F.3d 244, 252 (5th Cir. 2015) (holding Mississippi lacked standing to challenge DACA because the state failed to “submit[] . . . evidence that any DACA eligible immigrants resided in the state” or “produce evidence of costs it would incur if some DACA-approved immigrants came to the state”).
Second, today’s decision does not take issue with the claim that unlawful immigration carries consequences. Indeed, the Supreme Court has previously made clear that Sheriff Arpaio’s home state of Arizona “bears many of the consequences of unlawful immigration.” Arizona v. United States, 132 S. Ct. 2492, 2500 (2012). “Hundreds of thousands of deportable aliens are apprehended in Arizona each year.
2 Maricopa County Profile, MARICOPA COUNTY OPEN BOOKS, http://www.maricopa.gov/OpenBooks/profile.aspx (last visited July 28, 2015).

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Unauthorized aliens who remain in the State comprise, by one estimate, almost six percent of the population.” Id. In the county the petitioner is charged with policing, “these aliens are reported to be responsible for a disproportionate share of serious crime.” Id. Nothing in today’s opinion casts doubt on these conditions. The court holds only that these general conditions, without more, do not afford the right to challenge the specific federal deferred action programs at issue.
* * *
Our jurisprudence on standing has many shortcomings. As today’s decision demonstrates, standing doctrines often immunize government officials from challenges to allegedly ultra vires conduct. To understand how this deferential attitude came to pass, we must briefly consider how the standing doctrine evolved over the decades.
Academic accounts suggest that, from the time of the founding until the early twentieth century, “there was no separate standing doctrine at all.” Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 170 (1992); accord JOSEPH VINING, LEGAL IDENTITY: THE COMING OF AGE OF PUBLIC LAW 55 (1978) (“The word ‘standing’ . . . does not appear to have been commonly used until the middle of . . . [the twentieth] century.”); William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 224–25 (1988) (“[N]o general doctrine of standing existed.”). “In early practice in England and in the United States, moreover, certain forms of action, or writs, were available to all citizens without any showing of a ‘personal stake’ or an ‘injury in fact.’” Alex Hemmer, Note, Civil Servant Suits, 124 YALE L.J. 758, 764 (2014). There were limits. Namely, plaintiffs could only proceed based on a cause of action rooted in common law or statute. See

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Sunstein, supra, at 169–70; Fletcher, supra, at 224. The absence of a free-standing, self-conscious doctrinal approach left room to challenge the government’s failure to meet its obligations. That type of claim, “the public action—an action brought by a private person primarily to vindicate the public interest in the enforcement of public obligations—has long been a feature of our English and American law.” Louis L. Jaffe, Standing to Secure Judicial Review: Private Actions, 75 HARV. L. REV. 255, 302 (1961).
If public actions ever were a feature of our law, that is true no longer. Soon after the turn of the twentieth century, as the administrative state materialized, the Supreme Court began focusing on standing as a critical component of justiciability. See Sunstein, supra, at 179–81. In a significant 1923 case, the Court dismissed a taxpayer’s constitutional challenge to the Maternity Act of 1921, finding the taxpayer’s pecuniary interest in the Act to be “minute and indeterminable” and noting this scant interest was “shared with millions of other[]” citizens. Massachusetts v. Mellon, 262 U.S. 447, 487 (1923). In a sign of things to come, the opinion emphasized the “inconveniences” inherent in permitting challenges to widely shared grievances. Id. Emboldened justiciability doctrines along these lines served to “insulate progressive and New Deal legislation” from a variety of challenges. Sunstein, supra, at 179.
In the following decades, the standing doctrine secured its footing and coalesced around the three factors we know today: injury in fact, causation and redressability. See Lujan, 504 U.S. at 560. But hidden within these factors, and the surrounding case law, is a surprising hostility to suits seeking to redress executive branch wrongdoing. That hostility is encapsulated in the generalized grievance doctrine, which the district court below emphasized in dismissing Sheriff

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Arpaio’s suit. As the district court described the doctrine, “a plaintiff who seeks to vindicate only the general interest in the proper application of the Constitution and laws does not suffer the type of direct, concrete and tangible harm that confers standing and warrants the exercise of jurisdiction.” Arpaio v. Obama, 27 F. Supp. 3d 185, 200 (D.D.C. 2014). Separation of powers concerns underlie this approach. “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws),” we are reminded, “is the function of Congress and the Chief Executive.” Lujan, 504 U.S. at 576.
Today’s decision reaches the same conclusion as did the district court—Sheriff Arpaio lacks standing—but wisely rests on grounds other than the generalized grievance doctrine. Our antagonism to so-called generalized grievances, if unbounded, threatens multiple harms. For one thing, this doctrine gives public officials all the wrong incentives. The advice seems to be: “Never steal anything small.” Focused acts of wrongdoing against particular persons or classes of persons will probably result in injury in fact, affording standing to challenge public officials. But the larger the injury, and the more widespread the effects, the harder it becomes to show standing.
Moreover, the generalized grievance theory and related principles of contemporary standing doctrine effectively insulate immense swaths of executive action from legal challenge. Our relentless emphasis on the need to show a concrete injury caused by executive action and redressable by judicial relief makes it virtually impossible to challenge many decisions made in the modern regulatory state. Executive branch decisions crafting binding enforcement (or nonenforcement) policies, devoting resources here or there (at taxpayer expense), or creating generally applicable norms

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may well escape challenge. See, e.g., Hemmer, supra, at 768–69; see also Heckler v. Chaney, 470 U.S. 821, 831 (1985) (noting the “general unsuitability for judicial review of agency decisions to refuse enforcement”).
Consider this case. The Sheriff’s claims on the merits may well raise a constitutionally cogent point. Despite the dazzling spin DHS puts on the DACA and DAPA programs, a categorical suspension of existing law—distinct from the case-by-case deferrals or targeted humanitarian exemptions cited as past precedent—complete with a broad-based work authorization, arguably crosses the line between implementing the law and making it. See Zachary S. Price, Enforcement Discretion and Executive Duty, 67 VAND. L. REV. 671, 759–61 (2014). And this is true even if the legislature aids and abets the usurpation. See generally Department of Homeland Security Appropriations Act of 2010, Pub. L. No. 111-83, 123 Stat. 2142, 2149 (2009); Consolidated Appropriations Act of 2014, Pub. L. No. 11376, div. F., Tit. II, 128 Stat. 5, 251 (2014) (directing the Secretary of Homeland Security to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime,” but silent as to the propriety of categorically suspending existing removal laws). Neither the aggressive entrepreneurship of the executive nor the pusillanimity of the legislative branch can alter the fundamental constraints of the Constitution. See, e.g., Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 TEX. L. REV. 781, 850–56 (2013); Price, supra, at 759–61. However, although it is the denial of standing rather than its grant that undermines democratic accountability in such circumstances, concerns about the efficacy of separation of powers principles can be

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dismissed as “generalized grievances” no one has standing to challenge.
Separation of powers concerns surely cannot justify every application of the generalized grievance doctrine. By prohibiting abstract, general claims, the doctrine aims to ensure that the President’s “most important constitutional duty, to ‘take Care that the Laws be faithfully executed’” is not transferred to the courts. Lujan, 504 U.S. at 577 (quoting U.S. CONST. art. II, § 3). But what if the Chief Executive decides not to faithfully execute the laws? In that case our doctrine falls silent. Paying a nominal filing fee guarantees access to the federal courts, but challenge the executive’s decision to undermine the rule of law and you will likely find your fee wasted.
This court has previously emphasized the need to approach the standing of challengers to ultra vires conduct with a measure of sensitivity. In a 1987 case, we held that a non-profit providing services to Haitian refugees lacked standing, under both constitutional and prudential rubrics, to challenge the executive’s policy of interdicting Haitian refugees on the open ocean. Haitian Refugee Ctr., 809 F.2d at 796. After concluding the challengers lacked standing under Article III, the court applied the prudential standing doctrine, which asks whether a plaintiff falls within the zone of interests protected under a particular statutory or Constitutional provision. Some flexibility was in order. The challengers did not have to satisfy the zone of interest test with respect to the
constitutional and statutory powers invoked by the President in order to establish their standing to challenge the interdiction program as ultra vires. Otherwise, a meritorious litigant, injured by ultra vires action, would

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seldom have standing to sue since the litigant’s interest normally will not fall within the zone of interests of the very statutory or constitutional provision that he claims does not authorize action concerning that interest.
Id. at 811 n.14. While the court’s comments centered on prudential standing, they offer a useful reminder that standing doctrines—both constitutional and prudential in nature— should not be construed so narrowly as to choke legitimate challenges to ultra vires conduct. Here, the lesson is clear. We should, at the very least, give careful thought before blindly applying the generalized grievance doctrine in cases challenging federal programs as ultra vires.
The second shortcoming of our standing doctrine is this: standing has become a “lawyer’s game,” as Chief Justice Roberts phrased it. Massachusetts, 549 U.S. at 548 (Roberts, J., dissenting). Sophisticated, well-resourced litigants can game the system, producing the types of proof that pass muster, while less sophisticated litigants may be left outside the courthouse doors. Our case law hardly provides clear guidance. Sometimes standing appears to rest on mere ipse dixit. “A litigant, it seems, will have standing if he is ‘deemed’ to have the requisite interest, and ‘if you . . . have standing then you can be confident you are’ suitably interested.” Flast v. Cohen, 392 U.S. 83, 130 (1968) (Harlan, J., dissenting) (quoting Ernest J. Brown, Quis Custodiet Ipsos Custodes?—The School-Prayer Cases, 1963 SUP. CT. REV. 1, 22).
More broadly, our obsession with standing “present[s] courts with an opportunity to avoid the vindication of unpopular rights, or even worse to disguise decision on the merits in the opaque standing terminology of injury, causation, remedial benefit, and separation of powers.” 13A

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CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3531.3 (3d ed. 1998).
* * *
In the not-so-distant past, Judge (and later Chief Justice) Burger could safely conclude that “experience rather than logic or fixed rules” guided the search for standing. Office of Commc'n of United Church of Christ v. FCC, 359 F.2d 994, 1004 (D.C. Cir. 1966) (Burger, J.) (upholding the standing of television viewers to intervene in broadcast license renewal proceedings as “private attorneys general”). Experience and logic no longer reign supreme. In place of “functional” tests “designed to insure [sic] that only those with a genuine and legitimate interest” may come into court, id. at 1002, we now employ formalistic tests that may tend to discourage certain constitutional challenges. Today’s decision teaches a lesson: litigants bringing constitutional challenges must pay exceptionally close attention to standing requirements. The courts do—especially when litigants do not.
No doubt the modern approach to standing serves to reduce our caseload. But there are much more important matters at stake. “Some [litigants] need bread; others need Shakespeare; others need their rightful place in the national society—what they all need is processors of law who will consider the people's needs more significant than administrative convenience.” Id. at 1005 (quoting Edmond Cahn, Law in the Consumer Perspective, 112 U. PA. L. REV. 1, 13 (1963)). Our approach to standing, I fear, too often stifles constitutional challenges, ultimately elevating the courts’ convenience over constitutional efficacy and the needs of our citizenry.

 
 Case 1:14-cv-01966-BAH Document 1 Filed 11/20/14 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Mr. JOE ARPAIO, Elected SHERIFF of Maricopa County, State of Arizona 550 West Jackson Street Phoenix, AZ 85003
Plaintiff,
v.
The Honorable BARACK OBAMA, individually and in his professional capacity as President of the United States of America 1600 Pennsylvania Avenue Washington, D.C. 20500
and
The Honorable JEH JOHNSON, individually and in his professional capacity as Secretary of the U.S. Department of Homeland Security 12th & C Street SW Washington, D.C. 20024
and
The Honorable LEON RODRIQUEZ, individually and in his professional capacity as Director of U.S. Citizenship and Immigration Services 12th & C Street SW Washington, D.C. 20024
and
The Honorable ERIC HOLDER, JR., individually and in his professional capacity as U.S. Attorney General 555 Fourth St. NW Washington, D.C. 20530

CIVIL COMPLAINT Civil Action No. _______

Defendants.

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COMPLAINT Plaintiff sues the Defendants in this civil action. The Defendants’ Deferred Action for Childhood Arrivals (DACA) from June 15, 2012 and new November 20, 2014, Executive Order Amnesty (EOA) programs are unconstitutional abuses of the President’s role in our nation’s constitutional architecture and exceed the powers of the President within the U.S. Constitution. Even where Congress has granted authority to the executive branch, these programs are ultra vires, exceeding the bounds of delegated authority. While Defendant Obama hijacks the language of previous immigration regulation and law, Defendant Obama fundamentally transforms the definition of key terms to create a radically new and different regime of immigration law and regulation. DACA and EOA are sweeping changes to immigration law and regulation, operate on a “wholesale” level upon broad categories rather than “retail” as an individualized adjudication of persons one at a time, operate in and modify areas already regulated differently by existing regulations, and are a dramatic departure from prior interpretation and application of existing law and regulations. Yet the Obama Administration purports to effect these dramatic changes by Executive Order announced by the President, implemented through his Cabinet Secretaries. Even if the Court deems this constitutional, DACA and EOA are exercises of delegated law-making authority by the executive branch which must first go through rigid rule-making procedures under the Administrative Procedures Act. The President cannot simply announce sweeping new rules and implement them by giving a speech. Alternatively, Plaintiff challenges these executive branch actions pursuant to 5 U.S.C. §§ 702 through 706 as unlawful and invalid as arbitrary, capricious, an abuse of discretion, unreasonable, and/or otherwise not in accordance with law.
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Plaintiff seeks a Declaratory Judgment, and preliminary and permanent injunctions. Plaintiff also challenges the executive branch action under this Circuit’s Nondelegation Doctrine. As grounds therefore, Plaintiff alleges as follows:
INTRODUCTION AND SUMMARY Defendant Obama has announced and initiated actions under his purported inherent authority as President of the United States to grant amnesty by Executive Order, or more precisely by giving directions to Cabinet Secretaries. The President states that he is doing so because he does not like the legislative decisions of the Congress. In fact, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article I, Section 1, of the U.S. Constitution. “The Congress shall have Power . . . To establish an uniform Rule of Naturalization,” Article I, Section 8, of the U.S. Constitution. There is nothing in the U.S. Constitution which offers any authority or role of the executive branch with regard to immigration, admission of aliens to the country, or naturalization or citizenship other than the President’s duty that he “shall take Care that the Laws be faithfully executed….” Article II, Section 3, of the U.S. Constitution. Defendant Obama has already purported to give amnesty, the status of lawful presence in the United States, and even the right to work lawfully in the United States to 611, 9531 illegal aliens classified as “Dreamers” who arrived illegally in the United States with their parents.
1 U.S. Citizen and Immigration Services, Number cf I-821p (Mar. 2014) available at http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigrati on%20Forms%20Data/All%20Form%20Types/DACA/I821d_daca_fy2014qtr2.pdf
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The Department of Homeland Security admits that these initiatives are “unprecedented.” Despite the attempt to use familiar terminology, these initiatives are a dramatic departure from past precedent, interpretation, and application of immigration law.
JURISDICTION AND VENUE 1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 as
involving questions and controversies arising under the U.S. Constitution and the federal laws and regulations arising thereunder. 2. Venue is proper for Defendants pursuant to 28 U.S.C. § 1391(b)(1) because the Defendants and the federal government are primarily located in the District of Columbia.
THE PARTIES 3. The Plaintiff Joe Arpaio is the elected Sheriff of Maricopa County, State of Arizona. He
has held the office of Sheriff since 1993, and has 57 years of law enforcement experience. Previously, Plaintiff Arpaio served as Regional Director of the Drug Enforcement Administration (“DEA”) of the U.S. Department of Justice, and served in Turkey, the Middle East, Mexico, and Central and South America and in cities around the United States. He later retried as head of the DEA for Arizona. 4. Defendant Obama currently holds the position of and serves as President of the United States. 5. Defendant Jeh Johnson currently holds the position of and serves as the Secretary of the Department of Homeland Security of the United States, appointed by the President and confirmed by the U.S. Senate. 6. Defendant Eric Holder holds the position of and serves as the Attorney General of the United States of America and head of the U.S. Department of Justice, appointed by the
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President and confirmed by the Senate. Although Defendant Holder has tendered his resignation, he made his resignation to be effective upon the appointment and confirmation of his successor to replace him. 7. Defendant Leon Rodriquez is Director of the U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. Rodriquez was previously the Director of the U.S. Department of Health and Human Services Office for Civil Rights and from 2007 through 2010 he was the County Attorney for Montgomery County, Maryland. 8. Each of the Defendants are being sued in their individual and official capacities.
FACTS COMMON TO ALL COUNTS 9. On November 20, 2014, Secretary of Homeland Security, Defendant Johnson, released a
series of Memorandum orders – simultaneous with Defendant Obama’s announcement speech – directing various parts of the U.S. Department of Homeland Security to implement Defendant Obama’s “Executive Order Amnesty” program. Defendant Johnson’s implementing orders are posted at: http://www.dhs.gov/immigrationaction. Other agencies might issue similar orders. Defendant Obama’s Executive Order Amnesty consists primarily of (1) expanding Obama’s June 15, 2012 DACA program to include childhood arrivals who arrived after the earliest cut-off date, and (2) extending DACA to parents and other relatives of U.S. citizens or persons lawfully present. 10. The extension of DACA to persons who arrived illegally as adults waive their illegal status. Currently, a person is not “admissible” or eligible to apply for any immigration status if they are currently in violation of U.S. immigration laws. Defendant Obama is waiving the prohibition for those who are illegally in the United States. Otherwise, they
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would have to return to their home country, wait between 3 to 10 years, and reapply from their home country. 11. The issue of being a relative is a distraction because that is not a change from current law. Waiving illegal status is the key point which must be reviewed and acted upon by this Court. 12. Defendant Obama, through Defendant Johnson, gave other orders to refocus resources to border enforcement but in ways that are vague and premised upon unknown success in freeing up resources within the interior of the country. Another order directs Homeland Security to study the expansion of “parole” status to allow high-tech workers to stay in the United States and to give broader “grace periods” when immigrant workers are between jobs or legal status positions. Parole status cannot be used in this way, however. A. President Obama’s Executive Order Amnesty is Unconstitutional 13. The Supreme Court applied a fundamental analysis of the constitutional architecture and structure of the U.S. Constitution in INS v. Chadha, 462 U.S. 919 (1983). 14. Here, this case presents the reverse, mirror image of INS v. Chadha, 462 U.S. 919 (1983). 15. Even though any provision within legislation would normally be routinely accepted as an exercise of congressional authority, the Supreme Court found in Chadha that a legislative veto of executive branch action violated the U.S. Constitution, because it did violence to the constitutional architecture and structure. 16. The U.S. Constitution’s structure is for Congress to legislate and the executive branch to implement legislation. 17. Here, Defendant President Obama is seeking to legislate in place of Congress.
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18. DACA and EOA are unconstitutional in the same manner as in Chadha, because instead of legislation first passing both houses of Congress and then being sent to the President under the “Presentment Clause” for signature and implementation or veto, the President originates legislation by himself and then dares the Congress to disagree.
19. The Supreme Court has also required the executive branch to implement the laws passed by Congress in the so-called Impoundment cases. Despite over 150 years of precedent allowing the President to use his discretion not to fully enforce a law or spend all the funds appropriated by Congress, the Supreme Court ordered the Nixon Administration that it must spend all the money appropriated by Congress.
20. The case of Train v. City of New York, 420 U.S. 35 (1975), held that "[t]he president cannot frustrate the will of Congress by killing a program through impoundment."
21. President Nixon had tried to control the budget deficit by not spending all of the funds appropriated by Congress where in the course of administration it found money could be saved, and “impounding” the unspent money to pay down the national debt.
22. Despite this process seeming to be a part of the core role of the executive branch to administer the funds appropriated, and consider actual circumstances, the Supreme Court ruled that the President had no discretion over how much of the funds to spend. B. President Admits His Actions Today are Illegal
23. Defendant Obama has repeatedly admitted and acknowledged that the amnesty he now attempts to issue to illegal aliens is illegal and/or unconstitutional, and he knows it. “The problem is that, you know, I am the President of the United States. I am not the Emperor of the United States. My job is to execute laws that are passed. And Congress right now has not changed what I consider to be a broken immigration system. And what that means is that we have certain obligations to enforce the laws that are in place even if we think that in many cases the results may be tragic.”
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-- President Barack Obama, February 14, 2013, in an internet town hall with young voters called a “Google hangout.” https://www.youtube.com/watch?v=FSV9n-v_0KI.
24. In an interview on the Telemundo television network with Jose Diaz-Balart on September
17, 2013,2 Mr. Obama said he was proud of having protected the “Dreamers” — people
who came to the United States illegally as young children — from deportation. But he
also said that he could not apply that same action to other groups of people.
“Here’s the problem that I have, Jose. And I’ve said this consistently. My job in the Executive Branch is supposed to be to carry out the laws that are passed. Congress has said here is the law when it comes to those who are undocumented. And they’ve allocated a whole bunch of money for enforcement. And what I have been able to do is to make a legal argument that I think is absolutely right, which is that given the resources we have we can’t do everything that Congress has asked us to do. What we can do is then carve out the Dream Act folks, saying young people who’ve basically grown up here are Americans we should welcome. We’re not going to have them operate under a cloud, under a shadow.”
“But if we start broadening that, then essentially I’ll be ignoring the law in a way that I think would be very difficult to defend legally. So that’s not an option and I do get a little worried that advocates of immigration reform start losing heart and immediately thinking well, you know, somehow there’s an out here. If Congress doesn’t act, we’ll just have the President sign something and that will take care of. We won’t have to worry about it. What I’ve said is that there is a path to get this done and that’s through Congress. And right now everybody should be focused on making sure that that bill that’s already passed out of the Senate hits the floor of the House of Representatives.”
C. Border States Under Invasion by Violent Criminals Acting Across Unsecured Border, Subject to Domestic Violence from Foreign Invasion
25. President Obama grounds his argument for granting amnesty by Executive Order to
illegal aliens on the federal government having insufficient resources to prosecute and
deport all of the illegal aliens that the executive branch has allowed into the country.

2

NOTICIAS TELEMUNDO, https://www.youtube.com/watch?v=wp68QI_9r1s

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26. In fact, Defendant Obama’s amnesty programs merely shift the burden to the States and local governments, creating severe burdens and a crime wave in States along the border.
27. Plaintiff Joe Arpaio is adversely affected and harmed in his office’s finances, workload, and interference with the conduct of his duties, by the failure of the executive branch to enforce existing immigration laws, but has been severely affected by increases in the influx of illegal aliens motivated by Defendant Obama’s policies of offering amnesty. In this regard, as detailed in Exhibits 1, 2 and 3 to this Complaint which is incorporated herein for reference, Plaintiff Arpaio has been severely affected and damaged by Defendant Obama’s release of criminal aliens onto the streets of Maricopa County, Arizona. This prior damage will be severely increased by virtue of Defendant Obama’s Executive Order of November 20, 2014, which is at issue.
28. Thus, the Office of the Sheriff has been directly harmed and impacted adversely by Obama’s DACA program and will be similarly harmed by his new Executive Order effectively granting amnesty to illegal aliens.
29. Defendant Obama’s past promises of amnesty and his DACA amnesty have directly burdened and interfered with the operations of the Sheriff’s Office, and Defendant Obama’s new amnesty program will greatly increase the burden and disruption of the Sheriff’s duties.
30. First, experience has proven as an empirical fact that millions more illegal aliens will be attracted into the border states of the United States, regardless of the specific details.
31. Second, the experiences and records of the Sheriff’s office show that many illegal aliens – as distinct from law-abiding Hispanic Americans – are repeat offenders, such that
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Plaintiff Arpaio’s deputies and other law enforcement officials have arrested the same illegal aliens for various different crimes. 32. Plaintiff Arpaio has turned illegal aliens who have committed crimes over to ICE, totaling 4,000 criminals in his jails for state crimes in just an eight-month period. However, over 36 percent keep coming back. D. Defendant Obama Orders Amnesty by Fiat 33. Defendant Obama has ordered new programs and initiatives to grant millions of illegal aliens amnesty, consisting of lawful status and the authorization to work in the United States, which he will announce Thursday. 34. Already, this announcement is doing irreparable harm, because it will stimulate a new flood of illegal aliens crossing the United States-Mexican border. 35. Many people will die in the desert attempting to reach United States soil as a result. 36. Moreover, illegal aliens are being victimized by smugglers charging them dearly. 37. Defendant Obama has openly, clearly, and explicitly declared dozens of times that he is acting because he doesn’t like the legislative decisions of the Congress. E. Executive Order Amnesty under Deferred Action for Childhood Arrivals 38. Previously, on June 15, 2012, Defendant Obama (through his Secretary of Homeland Security) created a new immigration status not existing anywhere in the law, called the “Deferred Action for Childhood Arrivals” (DACA) status, without legislative authority and over the objection of the U.S. Congress. 39. DACA status for a person lasts for only two years, although renewal may be requested. 40. Thus, no vested interest or vested right has been created beyond each two-year period.
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41. The Department of Homeland Security (DHS) admits on its website that DACA is contrary to past construction and application of the law: “Over the past three years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system.” (Emphasis added) Department of Homeland Security website page, “Deferred Action for Childhood Arrivals” 3 F. Claim of Insufficient Resources
42. Defendant Obama contends that he is authorized to grant amnesty and work authorization to millions of trespassers on the grounds (in part) that Congress has provided insufficient resources for the executive branch to faithfully execute the laws concerning immigration and trespassers illegally present.
43. Therefore, Defendant Obama claims, he can and must prioritize his enforcement of the law.
44. The fatal defect with Defendant Obama’s false excuse (pretext) is that the executive branch has not requested additional resources to secure the borders that Congress ever denied.
45. Each year, the executive branch under any Administration (Presidential leadership) is legally obligated to submit to Congress a request for the resources that the executive branch believes it will require in the coming Fiscal Year and to some extent future years, pursuant to the requirements of the Budget and Accounting Act of 1921 (as amended).
46. To the contrary, Defendants and the Obama Administration have very strongly, along with its predecessors to a less extreme extent, conducted a persistent, comprehensive, full

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http://www.dhs.gov/deferred-action-childhood-arrivals

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scale legal and political war against every effort to control the borders of the United States.
CAUSES OF ACTION 47. For each of the Causes of Action set forth below, Plaintiff incorporates by reference,
repeats and re-alleges each and every allegation of the foregoing paragraphs as if fully set forth in each of the Causes of Action stated below. 48. For each of the Causes of Action asking for Declaratory Judgment set forth below, the Plaintiff relies upon 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure, and further asserts that under 28 U.S.C. § 2201, Declaratory Judgment under Federal law is available “whether or not further relief is or could be sought,” and “Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.” Moreover, Plaintiff asks the Court to declare the rights and other legal relations any interested parties. 49. For each of the Causes of Action asking for Declaratory Judgment set forth below, the controversy is within the jurisdiction of this Court under the U.S. Constitution.
FIRST CAUSE OF ACTION Declaratory Judgment Obama’s Ultra Vires Under the U.S. Constitution 50. Plaintiff respectfully asks the Court to enter Declaratory Judgment that Defendant Obama’s DACA program and Executive Order Amnesty are unconstitutional as violating the role of the President of the United States and exceeding the President’s constitutional authority under the U.S. Constitution.
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51. There is an actual controversy as to whether the President may convey lawful presence status upon illegal aliens present within the country, including conferring benefits and employment authorization to work within the United States.
52. Defendant Obama and the other Defendants have no authority under the U.S. Constitution to decide immigration policy or who may enter the United States or be granted lawful presence status and/or naturalized other than the authority granted to various executive branch officials or the President by Congress.
53. The President is obligated to enforce the laws as written: Article II - The Executive Branch * * * Section 3 - State of the Union, Convening Congress He shall … take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
54. The U.S. Constitution explicitly reserves to the Congress power to govern immigration: Article I - The Legislative Branch * * * Section 8 - Powers of Congress The Congress shall have Power * * * To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
55. There is no other provision in the U.S. Constitution sharing any such power concerning immigration with the President.
56. The Supreme Court undertook a fundamental analysis of the constitutional architecture of the U.S. Constitution in INS v. Chadha, 462 U.S. 919 (1983).
57. Where a provision in legislation would normally be routinely accepted, the Supreme Court found in Chadha that the legislative veto of executive branch action violated the U.S. Constitution because it did violence to the constitutional architecture and structure.
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58. The U.S. Constitution’s structure is for Congress to legislate and the executive branch to implement. The legislative veto violated that structure.
59. Here, DACA and EOA present the mirror image of Chadha. 60. Here it is Defendant Obama seeking to legislate in place of Congress. 61. DACA and EOA are unconstitutional in the same manner.
SECOND CAUSE OF ACTION Violation of Rule-Making Requirements 62. Defendant Obama and the other Defendants are not engaging in individualized adjudication of illegal aliens one by one so as to involve prosecutorial discretion. These programs are wholesale legislating, not retail adjudication. 63. Clearly, Defendant Obama and the other Defendants are engaged in rule-making with regard to broad, sweeping categories, including exercising legislative power either delegated to the executive branch or usurped by the executive branch, establishing a new status of immigrant presence in the United States, and establishing a new regulatory scheme. 64. At a minimum, Defendant Obama and the other Defendants are changing the definition of key terms from what the definitions previously were under existing regulations. 65. Defendant Obama and the other Defendants are establishing broad regimes applying to millions of people by category, including grants of additional benefits – unnecessary to and outside of the purported purpose – as well as imposing intricate plans for requirements and eligibility.
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66. Furthermore, DACA and Executive Order amnesty cover topics already covered by previously-promulgated regulations, but address those topics in radically different ways than existing regulations on the same topics (largely by altering the meaning of terms).
67. Therefore, these programs are a significant departure from existing regulations. 68. As a result, the Defendants must comply with the rule-making procedures imposed by the
Administrative Procedures Act (APA).
THIRD CAUSE OF ACTION Violation of Existing Regulatory Authority 69. Plaintiff challenges Defendant Obama and the other Defendant’s DACA and Executive Order amnesty as illegal, unconstitutional, and invalid agency action pursuant to 5 U.S.C. §§ 702 through 5 U.S.C. §§ 706. 70. Specifically, Plaintiff moves the Court to enjoin the Attorney General, the Secretary of Homeland Security, and the Director of the Citizenship and Immigration Services (USCIS) from implementing DACA and Defendant Obama’s new program to be implemented which Plaintiff refers to as “Executive Order Amnesty.” 71. Plaintiff is aggrieved by the invalid, illegal, and unconstitutional agency actions as set forth in Section IV (C), above. 72. Defendant Obama and the other Defendant’s programs violate the requirements of the APA because the reversal of the executive branch’s positions in conflict with existing regulations and law is necessarily arbitrary, capricious, arbitrary, an abuse of discretion, unreasonable, and otherwise not in accordance with law.
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73. That is, if the previously promulgated regulations were well grounded in law and fact, then a dramatic departure from those regulations most likely cannot also be well grounded in law and fact. FOURTH CAUSE OF ACTION Declaratory Judgment: Conveying Work Authorization Irrational
74. Plaintiff respectfully asks the Court to enter Declaratory Judgment that the executive branch granting authorization to work in the United States as part of DACA and Executive Order Amnesty are unconstitutional as failing the rational basis test for the exercise of delegated authority in administrative law.
75. There is an actual controversy as to whether there is any rational basis for the executive branch to grant employment authorization to work within the United States as part of granting amnesty or deferred removal of illegal aliens.
76. Defendant Obama and the other Defendants’ justification for granting amnesty is that the amount of resources and effort it would take to track down and deport illegal aliens is excessive.
77. However , not granting work permits would encourage many illegal aliens to voluntarily return home if they find it difficult to find employment in the United States.
78. Even if there were legal or constitutional validity to Defendant Obama deferring deportation of illegal aliens, there is no rational basis to grant them work permits also. FIFTH CAUSE OF ACTION Declaratory Judgment: Prosecutorial Discretion is Individualized not Categorical
79. Plaintiff respectfully asks the Court to enter Declaratory Judgment that a President may not grant amnesty to illegal aliens on the grounds of prosecutorial discretion.
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80. There is an actual controversy as to whether the President may grant amnesty to broad categories of illegal aliens as a purported exercise of prosecutorial discretion.
81. Prosecutorial discretion involves and requires an individualized weighing of the merits of a particular case, such as the availability of witnesses and evidence, the credibility of witnesses, the willingness of witnesses to testify, and the likelihood that an exercise of prosecutorial discretion will lead to rehabilitation and not recidivism.
82. By contrast, decisions made with regard to broad categories are legislative. 83. Prosecutorial discretion applies to adjudicatory decisions. 84. By contrast, Defendant Obama and the other Defendant’s grant of amnesty to broad
categories of illegal aliens is not an adjudicatory proceeding to which prosecutorial discretion applies.
SIXTH CAUSE OF ACTION Violation of Non-Delegation Doctrine 85. The exercise of the executive branch’s discretionary decision-making authority in creating DACA and the new EOA violates the nondelegation doctrine confirmed by this Circuit in American Trucking Associations, Inc. v. United States Environmental Protection Agency, 175 F.3d 1027 (D.C. Cir. 1999), modified on reh’g by 195 F.3d 4 (D.C. Cir. 1999), modified by Michigan v. United States EPA, 213 F.3d 663 (D.C. Cir. 2000) (limiting the scope of American Trucking, stating “[w]here the scope increases to immense proportions … the standards must be correspondingly more precise”) (citations omitted) cert. granted sub nom. American Trucking Ass’ns, Inc. v. Browner, 120 S. Ct. 2193 (2000). 86. “The United States Constitution grants the legislative power exclusively to Congress, not to the President, courts, or governmental agencies. Nonetheless, the Supreme Court has
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long recognized that Congress may delegate legislative power to governmental agencies, provided that the legislative act limits the delegated power and provides a standard to guide the agency’s actions. Thus, agencies are not creating law, they are executing the law within specific parameters in accordance with legislative intent.” 4 87. However, an exercise of agency discretion within the statute must be based upon an “intelligible principle” grounded in the Congressional enactment, not merely the preference of the agency. 88. The sweeping power claimed by Defendant Obama and the other Defendants is an unlimited, unbridled power without the guidance of any intelligible principle guiding the exercise of the delegated power.
PRAYER FOR RELIEF With regard to all counts, Plaintiff respectfully demands that the Court with regard to each and every Defendant: (1) Enter a preliminary restraining order until such time as the Court can hold a hearing to halt implementation of the Deferred Action for Childhood Arrivals (DACA) program and the President’s new Executive Order Amnesty, because it will cause irreversible harm by encouraging more illegal aliens to enter the country unlawfully because of news of amnesty, inducing illegal aliens in the country to alter their circumstances in reliance on the amnesty programs, and creating new relationships and circumstances difficult to unravel if the amnesty programs are found to be unlawful, as it will result in the release of more criminal aliens onto the streets of Maricopa County and the United States as a whole; (2) Enter a preliminary injunction to halt implementation until the Court can hear all parties and enter a decision on a preliminary injunction; and (3) Enter a permanent injunction declaring the amnesty

4

“Delegation and Discretion: Structuring Environmental Law to Protect the

Environment,” Michael N. Schmidt, J. LAND USE & ENVTL. L. , 111, 112

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programs to be unlawful, as well award such other forms of equitable relief as may be appropriate, and such other relief the Court may deem just and proper.
This prayer for relief does not request legal authority for Plaintiff Arpaio to enforce the immigration laws of the United States, as current legal precedent has found that he and other similarly situated state law enforcement and other officials have no authority to do so.

Dated: November 20, 2014

Respectfully submitted,
/s/ Larry Klayman Larry Klayman, Esq. Washington, D.C. Bar No. 334581 Freedom Watch, Inc. 2020 Pennsylvania Avenue N.W. , Suite 345 Washington, D.C. 20006 (310) 595-0800 leklayman@gmail.com Attorney for Plaintiff

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 Case 1:14-cv-01966-BAH Document 15 Filed 12/17/14 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSEPH ARPAIO

)

)

Plaintiff,

)

)

v.

)

)

BARACK OBAMA, ET AL.

)

)

Defendants.

)

____________________________________)

Civ. Action No. 14-cv-1966 (BAH)

NOTICE In accordance with the Court’s December 16, 2014 Order, Defendants have no objection to the Court construing Defendants’ opposition to Plaintiff’s preliminary injunction motion as a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Defendants’ time to respond to the Complaint has not yet run, and in light of that and the expedited time frame for responding to Plaintiff’s motion for a preliminary injunction, Defendants did not file a separate motion to dismiss the Complaint when they filed their opposition to the preliminary injunction motion. Defendants did note in their opposition to the preliminary injunction motion that the Supreme Court has recognized that it is appropriate to “terminate the litigation” at the preliminary injunction stage if the “Government is entitled to judgment as a matter of law.” Munaf v. Geren, 553 U.S. 674, 692 (2008); see also Ark. Dairy Coop Ass’n v. U.S. Dep’t of Agric., 573 F.2d 815, 832-33 (D.C. Cir. 2009) (remanding for dismissal of certain claims in consideration of whether a preliminary injunction should be granted). For the reasons explained in the opposition to Plaintiffs’ preliminary injunction motion, this case should be dismissed under Rule 12(b)(1) for lack of jurisdiction. Should the Court not

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dismiss this case in the course of resolving the preliminary injunction motion, Defendants would respond in due course to Plaintiff’s Complaint, which would likely involve timely filing a motion to dismiss under one or more of the bases set forth in Rule 12.

Dated: December 16, 2014

Respectfully submitted,
JOYCE R. BRANDA Assistant Attorney General
KATHLEEN R. HARTNETT Deputy Assistant Attorney General
DIANE KELLEHER Assistant Branch Director
/s/ Adam D. Kirschner ADAM D. KIRSCHNER HECTOR G. BLADUELL BRADLEY H. COHEN KYLE R. FREENY JULIE S. SALTMAN Trial Attorneys Civil Division, Federal Programs Branch U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 Tel.: (202) 353-9265 Fax: (202) 616-8470 Adam.Kirschner@usdoj.gov
Attorneys for Defendants

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 Case 1:14-cv-01966-BAH Document 23 Filed 12/23/14 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSEPH ARPAIO, Plaintiff, v.
BARACK H. OBAMA, President, United States in his official capacity, et al.,
Defendant.

Civil Action No. 14-01966 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION The plaintiff, the elected Sheriff of Maricopa County, brings suit against the President of the United States, and other Federal officials, alleging that certain immigration policies announced by the President in a nationwide address on November 20, 2014 are unconstitutional, otherwise illegal, and should be stopped from going into effect. See Pl.’s Mot. Prelim. Inj. (“Pl.’s Mot.”), ECF No. 7. The plaintiff’s suit raises important questions regarding the nation’s immigration policies, which affect the lives of millions of individuals and their families. The wisdom and legality of these policies deserve careful and reasoned consideration. As the Supreme Court recently explained: “[T]he sound exercise of national power over immigration depends on the [Nation] meeting its responsibility to base its law on a political will informed by searching, thoughtful, rational civic discourse.” Arizona v. United States, 132 S.Ct. 2492, 2510 (2012). The key question in this case, however, concerns the appropriate forum for where this national conversation should occur. The doctrine of standing, in both its constitutional and prudential formulations, concerns itself with “‘the proper—and properly limited—role of the courts in a democratic society.’” Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting Warth v.
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Seldin, 422 U.S. 490, 498 (1975)). Standing “ensures that [courts] act as judges, and do not engage in policymaking properly left to elected representatives.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013).
The refusal to adjudicate a claim should not be confused with abdicating the responsibility of judicial review. “Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury.” Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 474 (1982). A court must refrain “‘from passing upon the constitutionality of an act [of the representative branches], unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.’” Id. (quoting Blair v. United States, 250 U.S. 273, 279 (1919)) (alteration in original). Ultimately, “[i]t is the role of courts to provide relief to claimants . . . who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349 (1996).
Concerns over the judicial role are heightened when the issue before the court involves, as here, enforcement of the immigration laws. This subject raises the stakes of, among other factors, “immediate human concerns” and “policy choices that bear on this Nation’s international relations.” Arizona v. United States, 132 S.Ct. at 2499. “[O]ur Constitution places such sensitive immigration and economic judgments squarely in the hands of the Political Branches, not the courts.” Fogo de Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127,
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1151 n.10 (D.C. Cir. 2014); see also United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982) (“The power to regulate immigration—an attribute of sovereignty essential to the preservation of any nation—has been entrusted by the Constitution to the political branches of the Federal Government.”).
The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury— not to engage in policymaking better left to the political branches. The plaintiff’s case raises important questions regarding the impact of illegal immigration on this Nation, but the questions amount to generalized grievances which are not proper for the Judiciary to address. For the reasons explained in more detail below, the plaintiff lacks standing to bring this challenge to the constitutionality and legality of the immigration policies at issue. Accordingly, the plaintiff’s motion for a preliminary injunction, ECF No. 7, is denied and the defendants’ motion to dismiss for lack of subject matter jurisdiction, ECF Nos. 13, 15, is granted.1 I. BACKGROUND
A. Executive Enforcement of Immigration Laws The Immigration and Nationality Act (“INA”), codified as amended at 8 U.S.C. § 1101 et seq., establishes a comprehensive statutory scheme that governs immigration and naturalization. The INA establishes categories of immigrants who are inadmissible to the United States in the first instance, see 8 U.S.C. § 1182, and immigrants who are subject to removal from the United States once here, see 8 U.S.C. § 1227. Under the INA, “[a]liens may be removed if they were
1 The plaintiff filed a motion for preliminary injunction at ECF No. 6 and an amended, corrected motion for preliminary injunction at ECF No. 7. Plaintiff’s counsel clarified at the motions hearing that the latter filed motion is the operative motion. See Rough Transcript of Preliminary Injunction Hearing (Dec. 22, 2014) (“Hrg. Tr.”) at 3– 4. Consequently, the plaintiff’s motion for preliminary injunction docketed at ECF No. 6 is denied as moot.
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inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Arizona, 132 S.Ct. at 2499 (citing 8 U.S.C. § 1227).
The Secretary of the Department of Homeland Security (“DHS”) is “charged with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1). Although charged with enforcement of the statutory scheme, “[a]n agency generally cannot act against each technical violation of the statute it is charged with enforcing,” Heckler v. Chaney, 470 U.S. 821, 831–32 (1985), and indeed “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 132 S.Ct. at 2499. Thus, to enable the “proper ordering of its priorities,” Heckler, 470 U.S. at 832, and the marshalling of extant resources to address those priorities, the INA provides the Secretary of DHS with the authority to “establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under [the INA].” 8 U.S.C. § 1103(a)(3). Further, the Secretary of DHS is specifically charged with “establishing national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), to ensure that DHS’s limited resources are expended in pursuit of its highest priorities in national security, border security, and public safety.
The context in which the immigration laws are enforced bears out the need for such prioritization. DHS estimates that approximately 11.3 million undocumented immigrants residing in the United States are potentially eligible for removal. Pl.’s Mot., Ex. B (Karl Thompson, Memorandum Opinion for the Sec’y of Homeland Security and the Counsel to the President: DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others at 1, (Nov. 19, 2014) (“OLC Opinion”)) at 1, ECF No. 7-2. Of those, DHS estimates that the agency has the resources to remove fewer than
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400,000 undocumented immigrants. Id. In addition, DHS faces additional challenges including: demographic shifts resulting in increased costs for managing and deterring unauthorized border crossings; increased complexity in removing aliens; congressional directives to prioritize recent border crossers and serious criminals; and the humanitarian and social consequences of separating families. See OLC Opinion at 11; Defs.’ Mem. Opp. Pl.’s Mot. Prelim. Inj. (“Defs.’ Mem.”), Ex. 21 (Challenges at the Border: Examining the Causes, Consequences, and Responses to the Rise in Apprehensions at the Southern Border: Hearing Before the S. Comm. on Homeland Security and Governmental Affairs, 113th Cong. (2014) (statement of Craig Fugate, Administrator, Federal Emergency Management Agency, et al.)), ECF No. 13-21; see also Defs.’ Mem. at 1.
To confront these challenges, the executive branch has long used an enforcement tool known as “deferred action” to implement enforcement policies and priorities, as authorized by statute. See 6 U.S.C. § 202(5). Deferred action is simply a decision by an enforcement agency not to seek enforcement of a given statutory or regulatory violation for a limited period of time. In the context of the immigration laws, deferred action represents a decision by DHS not to seek the removal of an alien for a set period of time. In this sense, eligibility for deferred action represents an acknowledgment that those qualifying individuals are the lowest priority for enforcement. Under long-existing regulations, undocumented immigrants granted deferred action may apply for authorization to work in the United States. See 8 C.F.R. § 274a.12(c)(14). These regulations were promulgated pursuant to the Immigration Reform and Control Act of 1986 and have been in effect, as amended, since 1987. See Control of Employment of Aliens, 52 Fed. Reg. 16216 (1987). Deferred action does not confer any immigration or citizenship status or establish any enforceable legal right to remain in the United States and, consequently, may be
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canceled at any time. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483
(1999) (“At each stage, the Executive has discretion to abandon the endeavor . . . .”).
For almost twenty years, the use of deferred action programs has been a staple of
immigration enforcement. The executive branch has previously implemented deferred action
programs for certain limited categories of aliens, including: certain victims of domestic abuse
committed by United States citizens and Lawful Permanent Residents;2 victims of human
trafficking and certain other crimes;3 students affected by Hurricane Katrina;4 widows and
widowers of U.S. citizens;5 and certain aliens brought to the United States as children.6
Programs similar to deferred action have been used extensively by the executive branch for an
even longer period of time.7
2 Defs.’ Mem., Ex. 7 (Memorandum for Regional Directors et al., from Paul W. Virtue, Acting Executive Associate Commissioner, INS, Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997)), ECF No. 13-7. 3 Defs.’ Mem., Ex. 8 (Memorandum for Michael A. Pearson, Executive Associate Commissioner, INS, from Michael D. Cronin, Acting Executive Associate Commissioner, INS, Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) Policy Memorandum #2—“T” and “U” Nonimmigrant Visas at 2 (Aug. 30, 2001)), ECF No. 13-8. 4 Defs.’ Mem., Ex. 9 (USCIS, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ), at 1 (Nov. 25, 2005)), ECF No. 13-9 (“Since the Notice does not cover Katrina-impacted foreign academic students who have failed to maintain their F-1 status, such persons, and their F-2 dependents, may request a grant of deferred action and short term employment authorization based on economic necessity.”). 5 Defs.’ Mem., Ex. 10 (Memorandum for Field Leadership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children at 1 (Sept. 4, 2009)), ECF No. 13-10. 6 This is the DACA program challenged by the plaintiff. See Pl.’s Mot., Ex. A (Memorandum for David Aguilar, Acting Commissioner, CBP, et al., from Janet Napolitano, Secretary, DHS, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 1–2 (June 15, 2012)), ECF No. 6-1. 7 In the 1970’s through the 1990’s, programs similar to deferred action were used to defer enforcement against undocumented immigrants who were awaiting approval of certain professional visas, see United States ex rel. Parco v. Morris, 426 F. Supp. 976, 979–81 (E.D. Pa. 1977), certain nurses eligible for H-1 visas, see Voluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses, 43 Fed. Reg. 2776, 2776 (Jan 19, 1978); nationals of certain designated foreign states, see Defs.’ Mem., Ex. 5 (Moore, Charlotte J., Cong. Research Serv., Review of U.S. Refugee Resettlement Programs and Policies at 12-14 (1980)), ECF No. 13-5; and spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986, see Defs.’ Mem., Ex. 6 (Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990)), ECF No. 13-6.
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Congress has acquiesced to, and even endorsed the use of, deferred action on removal of undocumented immigrants by the executive branch on multiple occasions. For example, in 2000, Congress expanded the deferred action program for certain victims of domestic abuse, permitting children over the age of twenty-one to be “eligible for deferred action and work authorization.” 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV). Similarly, in 2008, Congress authorized the DHS to “grant . . . an administrative stay of a final order of removal” to individuals who could make an initial showing that they were eligible for a visa as victims of human trafficking and certain other crimes. See 8 U.S.C. § 1227(d)(1). Congress specifically noted that “[t]he denial of a request for an administrative stay of removal . . . shall not preclude the alien from applying for . . . deferred action.” See 8 U.S.C. § 1227(d)(2). In Division B to the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, known by its short title of the REAL ID Act of 2005, Congress provided that state-issued driver’s licenses were acceptable for federal purposes only if the state verifies that an applicant maintains evidence of lawful status, which includes evidence of “approved deferred action status.” See Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (2005) (codified at 49 U.S.C. § 30301 note).
B. Challenged Immigration Programs Against this lengthy historical record of the use of deferred action as a tool to carry out “national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), the executive branch has more recently employed this tool in three programs, which the plaintiff challenges as unconstitutional or otherwise in violation of the Administrative Procedure Act. Specifically, the plaintiff challenges a June 15, 2012 program—known as Deferred Action for Childhood Arrivals (“DACA”)—whose guidance is outlined in a memorandum by the former DHS Secretary entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States
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as Children.” DACA permits, on a case-by-case basis, deferred action on removal for a period of two years for undocumented immigrants that: (1) are under the age of 31 as of June 15, 2012; (2) were under the age of 16 at the time of arrival in the United States; (3) have continuously resided in the United States for at least five years immediately preceding June 15, 2012; (4) were present in the United States on June 15, 2012; (5) are in school, have graduated from high school, have obtained a general education development certificate, or have been honorably discharged from the Coast Guard or the Armed Forces of the United States; and (6) have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose no threat to the national security or public safety. See Pl.’s Mot., Ex. A (Memorandum from Janet Napolitano, Secretary, Department of Homeland Security, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012)), at 1–2 , ECF No. 7-1.
The other two programs challenged by the plaintiff are outlined in a memorandum by the current DHS Secretary entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents.” The memorandum revised the DACA program (“2014 DACA Revisions”) and also created a new program that established guidelines for the request of deferred action by the parents of U.S. Citizens or Lawful Permanent Residents (“DAPA”). See Pl.’s Mot., Ex. D (Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, to Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the
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Parents of U.S. Citizens or Permanent Residents (November 20, 2014) (“2014 Guidance Memorandum”)), ECF No. 7-4.
The principal features of the 2014 DACA Revisions include: (1) removal of the age cap of 31 so that individuals may request deferred action under DACA regardless of their current age, as long as they entered the United States before the age of 16; (2) extension of the period of deferred action from two years to three years; and (3) adjustment of the relevant date by which an individual must have been in the United States from June 15, 2007 to January 1, 2010. See 2014 Guidance Memorandum at 3–4.
DAPA permits, on a case-by-case basis, deferred action on removal for a period of three years for illegal aliens who are parents of U.S. citizens and Lawful Permanent Residents. To be considered for deferred action under DAPA, an individual must meet the following guidelines: (1) have, as of November 20, 2014, a son or daughter who is a U.S. citizen or Lawful Permanent Resident; (2) have continuously resided in the United States since before January 1, 2010; (3) have been physically present in the United States on November 20, 2014 and at the time of making a request for deferred action with U.S. Citizenship and Immigration Services; (4) have no lawful status as of November 20, 2014; (5) not fall within one of the categories of enforcement priorities set forth in additional agency guidelines;8 and (6) present no other factors that, in the exercise of discretion, make the grant of deferred action inappropriate. Id.
8 In a November 20, 2014 Memorandum entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” the Secretary of DHS set forth three categories of undocumented immigrants who are considered to be priorities for removal. The first category, representing the highest priority for civil immigration authorities, concerns undocumented immigrants who are threats to national security, border security, and public safety. The second category, representing the second-highest priority for civil immigration authorities, concerns undocumented immigrants who have committed certain misdemeanors or recently committed certain immigration violations. The third category, representing the third-highest priority for civil immigration authorities, concerns undocumented immigrants who have been issued a final order of removal on or after January 1, 2014. See Pl.’s Mot., Ex. F (Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, et al., Policies for the Apprehension,
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C. Procedural Background On November 20, 2014, in a televised address, President Barack Obama announced the principal features of the most recent deferred action programs, namely, the 2014 DACA Revisions and DAPA. On the same day, the plaintiff filed this action seeking invalidation of these two programs as well as DACA, which had been announced over two years earlier. Although the plaintiff’s Complaint references a preliminary injunction, the plaintiff did not formally or separately move for a preliminary injunction, as required by the Local Civil Rules of this Court, until December 4, 2014. See Pl.’s Mot.; Local Civ. R. 65.1; Minute Order (Nov. 24, 2014). In accordance with the Local Rules governing preliminary injunctions—which permit a defendant seven days to respond to a motion for preliminary injunction once served—the Court ordered the defendants to respond to the plaintiff’s motion for preliminary injunction by December 15, 2014. Ordinarily, the Local Rules make no provision for a reply brief in a motion for preliminary injunction and the Court did not initially permit a reply brief in this case. See Local Civ. R. 65.1. In opposition to the motion for preliminary injunction, the defendants argued that the plaintiff lacked standing to bring this suit and requested dismissal of the suit. See Defs.’ Mem. at 14. The defendants subsequently asked this Court to construe this opposition as a motion to dismiss for lack of subject matter jurisdiction. See Notice, ECF No. 15. Due to the dispositive nature of the defendants’ objection, and to ensure fairness to all the parties, the Court afforded the plaintiff the opportunity to submit a response to the defendants’ objections. In addition, the Court permitted the plaintiff to file a supplemental declaration in support of his standing to bring suit. The Court heard argument from both parties on December 22, 2014.
Detention and Removal of Undocumented Immigrants (November 20, 2014)) at 3–4 , ECF No. 7-6. The plaintiff does not challenge the guidelines set forth in this memorandum. See Hrg. Tr. at 11.
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Now pending before the Court is the plaintiff’s motion for a preliminary injunction and the defendants’ motion to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). II. LEGAL STANDARD
A. Preliminary Injunction “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011))). A preliminary injunction “is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948 (2d ed. 1995)) (emphasis in original). The Supreme Court repeated this caution in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), stating that “[a] preliminary injunction is an extraordinary remedy never awarded as of right,” id. at 24, and, again, that “injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief,” id. at 22. Authority can be found in this Circuit for the so-called “sliding scale” approach to evaluating the four preliminary injunction factors, such that “a strong showing on one factor could make up for a weaker showing on another.” Sherley, 644 F.3d at 392. In particular, even if the plaintiff only “raise[s] a serious legal question on the merits,” rather than a likelihood of success on the merits, a strong showing on all three of the other factors may warrant entry of
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injunctive relief. Id. at 398; see also Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009) (“[I]f the movant makes a very strong showing of irreparable harm and there is no substantial harm to the non-movant, then a correspondingly lower standard can be applied for likelihood of success.”); Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) (“[A] court, when confronted with a case in which the other three factors strongly favor interim relief may exercise its discretion to grant a stay if the movant has made a substantial case on the merits.”).
At the same time, the D.C. Circuit has acknowledged that the Supreme Court’s decision in Winter “could be read to create a more demanding burden than the sliding-scale analysis requires.” Sherley, 644 F.3d at 392 (internal quotations omitted).9 Indeed, in Winter, the majority of the Supreme Court reversed a grant of injunctive relief, finding that the standard applied by the Ninth Circuit was “too lenient” in allowing injunctive relief on the “possibility” of irreparable injury, rather than its likelihood. Winter, 555 U.S. at 22; see also Perry v. Perez, 132 S. Ct. 934, 942 (2012) (“Plaintiffs seeking a preliminary injunction of a statute must normally demonstrate that they are likely to succeed on the merits of their challenge to that law.”).
In Aamer v. Obama, the D.C. Circuit declined to opine about the continued viability of the “sliding scale” analysis of the four preliminary injunction factors, stating that it “remains an open question whether the ‘likelihood of success’ factor is ‘an independent, free-standing requirement,’ or whether, in cases where the other three factors strongly favor issuing an injunction, a plaintiff need only raise a ‘serious legal question’ on the merits.” 742 F.3d at 1043; see also Am. Meat Inst. v. U.S. Dep't of Agric., 746 F.3d 1065, 1074 (D.C. Cir. 2014) (“This circuit has repeatedly declined to take sides in a circuit split on the question of whether
9 The plaintiff, in his briefing, notes only the sliding-scale analysis and ignores the voluminous case law describing the uncertainty regarding the continued viability of the sliding-scale analysis in this Circuit. See Pl.’s Mot. at 11.
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likelihood of success on the merits is a freestanding threshold requirement to issuance of a preliminary injunction. . . . We need not take sides today.”).
Under either approach, a court may not issue “a preliminary injunction based only on a possibility of irreparable harm . . . [since] injunctive relief [i]s an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22; see also In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) (requiring proof that all four prongs of preliminary injunction standard be met before injunctive relief can be issued). Thus, the plaintiff bears the burden of persuasion on all four preliminary injunction factors in order to secure such an “extraordinary remedy.”
B. Motion to Dismiss for Lack of Subject Matter Jurisdiction “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider whether the constitutional and statutory authority exist for us to hear each dispute.’” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. National Academy of Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case, the court must dismiss it. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); FED. R. CIV. P. 12(h)(3). When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true all uncontroverted material factual allegations contained in the complaint and “‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the
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facts alleged’ and upon such facts determine jurisdictional questions.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005) (quoting Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004))). The court need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or amount merely to legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Moreover, in evaluating subject matter jurisdiction, the court, when necessary, may “‘undertake an independent investigation to assure itself of its own subject matter jurisdiction,’” Settles v. United States Parole Comm'n, 429 F.3d 1098, 11071108 (D.C. Cir. 2005) (quoting Haase v. Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987), and consider facts developed in the record beyond the complaint, id. See also Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) (in disposing of motion to dismiss for lack of subject matter jurisdiction, “where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”); Alliance for Democracy v. FEC, 362 F. Supp. 2d 138, 142 (D.D.C. 2005).
The burden of establishing any jurisdictional facts to support the exercise of the subject matter jurisdiction rests on the plaintiff. See Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010); Thomson v. Gaskill, 315 U.S. 442, 446 (1942); Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). III. DISCUSSION
The plaintiff concedes, as he must, that “he and other similarly situated state law enforcement and other officials have no authority” to enforce the immigration laws of the United States. Compl. at 19; see also Arizona, 132 S. Ct. at 2507. Nonetheless, the plaintiff seeks to
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alter federal enforcement policy by asking the Court to halt three federal immigration programs that have the over-arching purpose of prioritizing federal enforcement efforts. See Arizona, 132 S. Ct. at 2499 (noting that “[a] principal feature of the removal system is the broad discretion exercised by immigration officials,” who “as an initial matter, must decide whether it makes sense to pursue removal at all.”). The plaintiff’s inability to enforce federal immigration law is integrally related to the central question in this case: Whether the plaintiff has standing to demand changes to the “broad discretion” granted federal officials regarding removal. Despite the consequences of unlawful immigration in Maricopa County, the plaintiff cannot meet the requirements for standing to bring this suit.
A. The Plaintiff Lacks Standing Article III of the Constitution restricts the power of federal courts to hear only “Cases” and “Controversies.” “The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (alterations in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Indeed, “‘[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation on federal-court jurisdiction to actual cases or controversies.’” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (alterations in original) (internal quotations omitted). The Supreme Court has explained, “the irreducible constitutional minimum of standing contains three elements.” Defenders of Wildlife, 504 U.S. at 560. First, the plaintiff must have suffered an “injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (citations
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and internal quotation marks omitted). Second, there must be “a causal connection between the injury and the conduct complained of,” i.e., the injury alleged must be fairly traceable to the challenged action of the defendant. Id. Finally, it must be “likely” that the complained-of injury will be “redressed by a favorable decision” of the court. Id. at 561. In short, “[t]he plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014). Likewise, when declaratory or injunctive relief is sought—relief the plaintiff seeks here—a plaintiff “must show he is suffering an ongoing injury or faces an immediate threat of [future] injury.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)).
The plaintiff fails to meet any of the three elements of constitutional standing. Each of these requirements is addressed seriatim below.
1. Injury in Fact At the outset, the plaintiff’s Complaint and motion for preliminary injunction fail to identify whether the plaintiff is bringing suit in his individual capacity or in his official capacity as the elected Sheriff of Maricopa County. Compare Compl. ¶ 3 (noting only that “[t]he Plaintiff Joe Arpaio is the elected Sheriff of Maricopa County, State of Arizona”), with ¶ 8 (detailing that each defendant was being sued “in their individual and official capacities”). The Court clarified during oral argument that the plaintiff is bringing suit in both his personal and official capacities. Hrg. Tr. at 5. Regardless of whether the plaintiff is suing in his individual or official capacity, or both, the plaintiff cannot demonstrate a cognizable injury from the challenged deferred action programs.
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a) Personal Capacity The law is well-settled that ordinarily, “private persons . . . have no judicially cognizable interest in procuring enforcement of the immigration laws . . . .” Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883, 897 (1984) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). This is merely the application of the long-standing principle that a plaintiff “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013) (quoting Defenders of Wildlife, 504 U.S. at 573–74). As a result, a plaintiff who seeks to vindicate only the general interest in the proper application of the Constitution and laws does not suffer the type of direct, concrete and tangible harm that confers standing and warrants the exercise of jurisdiction. Yet, this is the type of suit the plaintiff attempts to bring in his personal capacity. See Supp. Decl. of Sheriff Joe Arpaio ¶ 3 (“Pl.’s Supp. Decl.”), ECF No. 20-1 (“By this lawsuit, I am seeking to have the President and the other Defendants obey the U.S. Constitution and the immigration laws . . . .”).
The plaintiff does offer one additional theory, however, in support of his claim of injury in his individual capacity. The plaintiff cites press reports and press releases from his own office that undocumented immigrants have targeted him for assassination as a result of the plaintiff’s “widely known stance on illegal immigration.” See Press Release, Bomb Threats against Sheriff Arpaio and Office on Upsurge as Another Suspect is Indicted, Maricopa County Sheriff’s Office (August 21, 2013) (“Threats Press Release”), ECF No. 21-1. Such threats are deplorable and offensive to the entire justice system. Nevertheless, these allegations cannot confer standing on the plaintiff in his individual capacity in this case. In requesting injunctive
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relief, the plaintiff “must show he is suffering an ongoing injury or faces an immediate threat of [future] injury.” Dearth, 641 F.3d at 501. The plaintiff has presented no evidence that these threats are ongoing. “‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’” Defenders of Wildlife, 504 U.S. at 564 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974))).
Moreover, as will be discussed in detail below, even an ongoing threat to the plaintiff by undocumented immigrants would not provide the plaintiff with standing to challenge the deferred action programs at issue. The plaintiff must not only show that he is injured, but that the plaintiff’s injury is fairly traceable to the challenged deferred action programs and that the injury is capable of redress by this Court in this action. The plaintiff cannot meet this showing. The challenge deferred action programs did not cause the threats to the plaintiff’s life. Rather, criminal action by third-parties not before the court caused the threats to the plaintiff. Moreover, according to the plaintiff’s press release, the alleged assassins were motivated by the plaintiff’s “widely known stance on illegal immigration,” a stance pre-existing this case and these challenged programs. See Threats Press Release. Furthermore, an injunction in this case would do nothing either to alter the plaintiff’s views on “illegal immigration” or to redress the targeting of the plaintiff resulting from his “widely known stance on illegal immigration.” This dooms the plaintiff’s standing to bring this suit in his personal capacity as an ordinary citizen.
b) Official Capacity Even if the plaintiff can circumvent these limitations by bringing suit in his official capacity as Sheriff of Maricopa County, the plaintiff still lacks standing.
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The plaintiff claims that the challenged deferred action programs, which provide guidance to Federal law enforcement regarding the removal or non-removal of undocumented immigrants, inhibit his ability to perform his official functions as the Sheriff of Maricopa County. The plaintiff alleges that he is “adversely affected and harmed in his office’s finances, workload, and interference with the conduct of his duties” as a result of the “increases in the influx of illegal aliens motivated by [these] policies of offering amnesty.” Compl. ¶ 27. As support for this allegation, he alleges that “experience has proven as an empirical fact that millions more illegal aliens will be attracted into the border states of the United States, regardless of the specific details” of the challenged policies. Compl. ¶ 30. The plaintiff further alleges that, “the experiences and records of the Sheriff’s office show that many illegal aliens . . . are repeat offenders, such that Plaintiff Arpaio’s deputies and other law enforcement officials have arrested the same illegal aliens for various different crimes.” Compl. ¶ 31. According to the plaintiff, the “financial impact of illegal aliens in Maricopa County, Arizona was at least $9,293,619.96 in the costs of holding illegal aliens in the Sheriff’s jails from February 1, 2014, through December 17, 2014, for those inmates flagged with INS ‘detainers.’” Pl.’s Reply Defs.’ Opp. Pl.’s Mot. Prelim. Inj. at 7 (“Pl.’s Reply”), ECF No. 19.
The plaintiff is correct that the regulation and impairment of a state officer’s official functions may be sufficient to confer standing, but only in certain limited circumstances. See, e.g., Lomont v. O’Neil, 285 F.3d 9, 13–14 (D.C. Cir. 2002) (holding that a state Sheriff and Police Chief had standing to challenge federal law permitting state police officials to provide certifications relating to the transfer of certain firearms); Fraternal Order of the Police v. United States, 152 F.3d 998, 1001–02 (D.C. Cir. 1998). Yet, neither Lomont nor Fraternal Order of the Police support the plaintiff’s argument here, as both cases concerned the direct regulation of a
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state officer’s official duties. In contrast, the challenged deferred action programs do not
regulate the official conduct of the plaintiff but merely regulate the conduct of federal
immigration officials in the exercise of their official duties. Thus, even if the plaintiff’s official
functions could be viewed as a “legally protected interest,” the challenged deferred action
programs do not amount to “an invasion” of that interest in a manner that is “concrete and
particularized.” Defenders of Wildlife, 504 U.S. at 560. Indeed, it is not apparent exactly what
cognizable interest and injury the plaintiff can assert since, as the plaintiff’s Complaint
recognizes, the plaintiff has no legal authority to enforce the immigration laws of the United
States. See Compl. at 19.
Ultimately, the plaintiff’s standing argument reduces to a simple generalized grievance: A Federal policy causes his office to expend resources in a manner that he deems suboptimal.10
To accept such a broad interpretation of the injury requirement would permit nearly all state
officials to challenge a host of Federal laws simply because they disagree with how many—or
how few—Federal resources are brought to bear on local interests. Fortunately, the standing
doctrine is not so limp. As the Supreme Court has repeatedly emphasized: “‘a plaintiff raising
only a generally available grievance about government—claiming only harm to his and every
citizen’s interest in [the] proper application of the Constitution and laws, and seeking relief that
no more directly [or] tangibly benefits him than it does the public at large—does not state an
10 Although prior case law has occasionally suggested that “generalized grievances” should be analyzed as part of prudential standing, the Supreme Court recently suggested that such concerns should be considered as part of Article III standing. See Lexmark Int’l, 134 S. Ct. at 1387 n.3 (“While we have at times grounded our reluctance to entertain [suits concerning generalized grievances] in the ‘counsels of prudence’ (albeit counsels ‘close[ly] relat[ed] to the policies reflected in’ Article III), we have since held that such suits do not present constitutional ‘cases’ or ‘controversies.’” (internal citations omitted) (quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475 (1982))). Although there is some dispute within this Circuit as to whether prudential standing should be considered jurisdictional, there is no dispute that where the plaintiff cannot meet the irreducible constitutional minimum of Article III standing, the court need not address whether the plaintiff has prudential standing. See generally Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169 (D.C. Cir. 2012). Accordingly, the Court does not address whether prudential concerns prevent the plaintiff from establishing standing.
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Article III case or controversy.’” Lance v. Coffman, 549 U.S. 437, 439 (2007) (quoting Lujan, 504 U.S. at 573); see also Pl.’s Supp. Decl. ¶ 3 (“By this lawsuit, I am seeking to have the President and other Defendants obey the U.S. Constitution and the immigration laws . . . .”). Simply put, a state official has not suffered an injury in fact to a legally cognizable interest because a federal government program is anticipated to produce an increase in that state’s population and a concomitant increase in the need for the state’s resources. Cf. Massachusetts v. EPA, 549 U.S. 497, 520-521 (2007) (finding standing for Massachusetts because of state’s “quasi-sovereign interests” relating to its “desire to preserve its sovereign territory” not because of the increase in state expenditures resulting from federal policy concerning global warming).
Moreover, the plaintiff’s alleged injury is largely speculative. The plaintiff argues that the challenged deferred action programs will create a “magnet” by attracting new undocumented immigrants into Maricopa County, some of whom may commit crimes under Arizona law. Pl.’s Mot. at 16–17; see also Pl.’s Mot., Ex. G, Decl. of Sheriff Joe Arpaio ¶¶ 7, 11–14, ECF No. 7-7. Yet, the decision for any individual to migrate is a complex decision with multiple factors, including factors entirely outside the United States’ control, such as social, economic and political strife in a foreign country. The plaintiff reduces this complex process to a single factor: the challenged deferred action programs.
Even drawing all inferences in favor of the plaintiff, the terms of the challenged deferred action programs do not support the plaintiff’s theory. The challenged deferred action programs would have no impact on new immigrants, as the guidance defining the programs makes clear that these programs only apply to undocumented immigrants residing in the United States prior to January 1, 2010. 2014 Guidance Memorandum at 4. Thus, it is speculative that a program,
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which does not apply to future immigrants, will nonetheless result in immigrants crossing the border illegally into Maricopa County (and other borders of this country).
The plaintiff has been unable to show that the challenged deferred action programs have interfered with his official duties as Sheriff in a manner that “is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical” and has therefore failed in his burden to establish an injury in fact. Defenders of Wildlife, 504 U.S. at 560.
2. Causation and Redressability The plaintiff’s speculative injury is not the only infirmity in the plaintiff’s standing theory. A plaintiff must not only show an “injury in fact,” but must also show that the injury is fairly traceable to the allegedly harmful conduct and that the relief sought by the plaintiff will likely redress the injury. Defenders of Wildlife, 504 U.S. at 560. Two overarching principles apply to the causation and redressability inquiry in this case. First, this case involves the purported “standing to challenge [an executive action] where the direct cause of injury is the independent action of . . . third part[ies].” Renal Physicians Ass’n v. U.S. Dep’t of Health & Human Servs., 489 F.3d 1267, 1269 (D.C. Cir. 2007). Indeed, it is the actions taken by undocumented immigrants—migrating to Maricopa County and committing crimes once there—that are purportedly the direct cause of the plaintiff’s injury. As will be discussed, however, “courts [only] occasionally find the elements of standing to be satisfied in cases challenging government action on the basis of third-party conduct.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 940 (D.C. Cir. 2004).11
11 The plaintiff attempts to rely upon the doctrine of competitor standing to avoid the strict limitations imposed on cases where the source of the plaintiff’s harm is the independent actions of third parties. Yet, the cases on which the plaintiff relies, see Mendoza v. Perez, 754 F.3d 1002, 1012–14 (D.C. Cir. 2014); Honeywell Int’l Inc. v. EPA, 374 F.3d 1363, 1369 (D.C. Cir. 2004); and Washington Alliance of Tech. Workers v. U.S. Dep’t of Homeland Sec., No. 14-cv-529, 2014 WL 6537464, at *4 (D.D.C. Nov. 21, 2014), do not support the plaintiff’s standing argument in this case. Standing was found in those cases because a plaintiff suffered an injury in fact “when an agency lift[ed] regulatory restrictions on their competitors or otherwise allow[ed] increased competition.” Mendoza, 754 F.3d at
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Second, and relatedly, the programs challenged by the plaintiff do not regulate the plaintiff directly; rather, they regulate federal immigration officials. As the Supreme Court has made clear, “[w]hen . . . a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed” to confer standing. Defenders of Wildlife, 504 U.S. at 562 (emphasis in original). When standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict . . . it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.” Id. (internal quotations and citations omitted); see also id. (“[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” (internal quotation marks omitted)).
The Court first addresses the plaintiff’s failure to show causation before discussing the plaintiff’s failure to demonstrate redressability.
a) Causation The D.C. Circuit has identified “two categories of cases where standing exists to challenge government action though the direct cause of injury is the action of a third party.” Renal Physicians, 489 F.3d at 1275. “First, a federal court may find that a party has standing to challenge government action that permits or authorizes third-party conduct that would otherwise be illegal in the absence of the Government’s action.” National Wrestling Coaches, 366 F.3d at
1011 (quoting La. Energy and Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998)). The doctrine of competitor standing is not implicated in this case, as the plaintiff’s resources are not strained because he is forced to compete with undocumented immigrants in a limited market. Moreover, the plaintiff cannot rely on a supposed “procedural injury” because, since the plaintiff has no authority to enforce the Federal immigration laws, the plaintiff cannot demonstrate the challenged deferred action programs “threaten[] [a] concrete interest” of the plaintiff as opposed to an injury common to all members of the public. Mendoza, 754 F.3d at 1010.
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940. Importantly, in this category of cases, the challenged government conduct must authorize the specific third-party conduct that causes the injury to the plaintiff. See Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 440 (D.C. Cir. 1998) (“Supreme Court precedent establishes that the causation requirement for constitutional standing is met when a plaintiff demonstrates that the challenged agency action authorizes the conduct that allegedly caused the plaintiff’s injuries . . . .”). In the present case, the challenged agency action—the ability to exercise enforcement discretion to permit deferred action relating to certain undocumented immigrants—does not authorize the conduct about which the plaintiff complains. The challenged deferred action programs authorize immigration officials to exercise discretion on removal; they do not authorize new immigration into the United States (let alone Maricopa County); they do not authorize undocumented immigrants to commit crimes; and they do not provide permanent status to any undocumented immigrants eligible to apply for deferred action under any of the challenged programs. Contrary to the plaintiff’s assertion that a consequence of the challenged programs will be an increase in illegal conduct by undocumented immigrants and an increase in costs to the Maricopa County Sheriff’s office, these programs may have the opposite effect. The deferred action programs are designed to incorporate DHS’s enforcement priorities and better focus federal enforcement on removing undocumented immigrants committing felonies and serious misdemeanor crimes. Since the undocumented immigrants engaging in criminal activity are the cause of the injuries complained about by the plaintiff, the more focused federal effort to remove these individuals may end up helping, rather than exacerbating the harm to, the plaintiff.
Second, standing has been found “where the record present[s] substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little
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doubt as to causation and the likelihood of redress.” National Wrestling Coaches, 366 F.3d at 941. This record is sparse regarding a link between the challenged deferred action programs and the third-party conduct. Although the plaintiff has submitted numerous press releases and letters to officials documenting Maricopa County’s struggle with illegal immigration along the southern border, the plaintiff has submitted no evidence showing that the challenged deferred action programs are, or will be, the cause of the crime harming the plaintiff or the increase in immigration, much less “substantial evidence.” Indeed, the plaintiff severely undermines his own argument by stating that “millions more illegal aliens will be attracted into the border states of the United States, regardless of the specific details” of current executive branch immigration policies. Compl. ¶ 30 (emphasis added). If the details of the challenged deferred action programs do not matter as to whether or not the plaintiff will suffer an injury, then the plaintiff’s injuries cannot be fairly traceable to these programs. Similarly, the plaintiff observes that “the Executive Branch is not deporting illegal aliens in any significant numbers” and that regardless of the provision of deferred action programs “illegal aliens are very unlikely to be deported.” Pl.’s Mot. at 12. Implicit in this observation is the plaintiff’s admission that regardless of the challenged deferred action programs, the plaintiff is likely to continue to suffer the claimed injury.
In sum, the plaintiff has failed to demonstrate that the challenged deferred action programs are the cause of his alleged injury.
b) Redressability Similar to the causation requirement, “it is ‘substantially more difficult’ for a petitioner to establish redressability where the alleged injury arises from the government’s regulation of a third party not before the court.” Spectrum Five LLC v. Fed. Commc’ns Comm’n, 758 F.3d 254,
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261 (D.C. Cir. 2014) (quoting Nat’l Wrestling Coaches, 366 F.3d at 933); see also Defenders of Wildlife, 504 U.S. at 562. The plaintiff must allege facts that are “sufficient to demonstrate a substantial likelihood that the third party directly injuring the plaintiff would cease doing so as a result of the relief the plaintiff sought.” Renal Physicians, 489 F.3d at 1275. In other words, the plaintiff must allege facts sufficient to demonstrate a substantial likelihood that, as a result of injunctive relief in this case, there would not be an increase in undocumented immigrants in Maricopa County and there would not be an increase in crimes committed by undocumented immigrants in Maricopa County. This is a “substantially more difficult” task. Spectrum Five LLC, 758 F.3d at 261.
On this point, the D.C. Circuit’s decision in National Wrestling Coaches is instructive. There, plaintiffs challenged an interpretive rule promulgated by the Department of Education, which laid out three ways in which the Department would assess whether educational institutions had complied with Department regulations that required such institutions to select sports and levels of competition to “effectively accommodate the interests and abilities of members of both sexes.’” 366 F.3d at 934–35 (quoting 45 C.F.R. § 86.41(c)(1) and 34 C.F.R. § 106.41(c)(1)). That regulation had been promulgated pursuant to Title IX of the Education Amendments of 1972, which prohibited discrimination on the basis of sex in federally funded educational programs and activities. See id. at 934. The plaintiffs were “membership organizations representing the interests of collegiate men’s wrestling coaches, athletes, and alumni,” and their asserted injuries arose “from decisions by educational institutions to eliminate or reduce the size of men’s wrestling programs to comply with the Department’s interpretive rules implementing Title IX.” Id. at 935.
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Thus, in National Wrestling Coaches, like in the instant case, “the necessary elements of causation and redressability . . . hinge[d] on the independent choices of . . . regulated third part[ies].” Id. at 938. The D.C. Circuit found redressability lacking in National Wrestling Coaches because “nothing but speculation suggests that schools would act any differently than they do with the [challenged interpretive rule] in place” since “[s]chools would remain free to eliminate or cap men’s wrestling teams and may in some circumstances feel compelled to do so to comply with the statute and the [previous Department] Regulations.” Id. at 940. Further, the court found that “other reasons unrelated to the challenged legal requirements [e.g., moral considerations, budget constraints] may continue to motivate schools to take such actions.” Id. From this analysis, and a comprehensive review of the case law, the National Wrestling Coaches court concluded that “it is purely speculative whether a decision in appellants’ favor would alter the process by which schools determine whether to field certain sports teams.” Id. at 944.
The same concerns animating the outcome in National Wrestling Coaches drive the result in this case. Many “other reasons unrelated to the challenged legal requirements” may motivate the conduct allegedly causing harm to the plaintiff. Indeed, the motivation for any individual to come to the United States (or, once present here, to commit a crime in Maricopa County), does not rest solely upon the challenged deferred action programs. Such decisions are complicated and multi-faceted, involving both national and international factors. A ruling by this Court enjoining the challenged deferred action programs will likely not change the complex and individualized decision making of undocumented immigrants allegedly causing harm to the plaintiff. As noted, the plaintiff’s briefing admits as much: “millions more illegal aliens will be attracted into the border states of the United States, regardless of the specific details” of the challenged deferred action programs. Compl. ¶ 30.
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Moreover, the plaintiff acknowledges that the defendants only have limited resources to

facilitate removal, see Hrg. Tr. at 14. Relief from this Court will not grant additional resources

to the executive branch allowing it to remove additional undocumented immigrants or to prevent

undocumented immigrants from arriving. Thus, the plaintiff’s complaint regarding the large

number of undocumented immigrants and the limited number of removals will not change as a

result of any order by the Court in this litigation. Consequently, the plaintiff’s alleged harm

stemming from the expenditure of resources to deal with the large number of undocumented

immigrants in Maricopa County will remain. In other words, regardless of the outcome of this

case, the Court can afford no relief to the plaintiff’s injury. Cf. Bauer v. Marmara, No. 13-ap-

7081, 2014 WL 7234818, at *6 (D.C. Cir. December 19, 2014) (holding that plaintiff was

“unable to satisfy the redressability prong of Article III standing because the court cannot compel

the Government to pursue action to seek forfeiture of the disputed vessels”).

“When redress depends on the cooperation of a third party, ‘it becomes the burden of the

[party asserting standing] to adduce facts showing that those choices have been or will be made

in such manner as to produce causation and permit redressability of injury.’” U.S. Ecology v.

U.S. Dep’t of Interior, 231 F.3d 20, 24–25 (D.C. Cir. 2000) (emphasis added) (quoting

Defenders of Wildlife, 504 U.S. at 562); see also Klamath Water v. Fed. Energy Reg. Comm’n,

534 F.3d 735, 739 (D.C. Cir. 2008) (“In a case like this, in which relief for the petitioner depends

on actions by a third party not before the court, the petitioner must demonstrate that a favorable

decision would create ‘a significant increase in the likelihood that the plaintiff would obtain

relief that directly redresses the injury suffered.’” (quoting Utah v. Evans, 536 U.S. 452, 464

(2002))). The plaintiff has been unable to meet this burden.

*

*

*

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Taken together, the Court finds that the plaintiff has not and cannot show that: (1) he suffers a concrete and particularized injury (as opposed to a speculative and generalized grievance); (2) the cause of the plaintiff’s injury can be fairly traced to the challenged deferred action programs; and (3) a favorable ruling by this Court would redress the plaintiff’s alleged injury. A plaintiff “may be disappointed if the Government declines to pursue [enforcement], but disappointment of this sort is a far cry from the injury and redressability required to prove Article III Standing.” Bauer, 2014 WL 7234818, at *6. As a result, the plaintiff lacks standing to bring this challenge, requiring dismissal of this lawsuit for lack of subject matter jurisdiction.
B. Preliminary Injunction The plaintiff’s motion for preliminary injunction likewise fails as the plaintiff can show neither a likelihood of success on the merits nor irreparable harm due to his lack of standing. As an initial matter, because “standing is a necessary predicate to any exercise of [the Court’s] jurisdiction, the [plaintiff] and [his] claims have no likelihood of success on the merits,” if the plaintiff lacks standing. Smith v. Henderson, 944 F. Supp. 2d 89, 99 (D.D.C. 2013) (internal quotations and citations omitted); see also Kingman Park Civic Ass’n v. Gray, 956 F. Supp. 2d 230, 241 (D.D.C. 2013) (“The first component of the likelihood of success on the merits prong usually examines whether the plaintiffs have standing in a given case.” (internal quotations omitted)). Moreover, the same problem that confronts the plaintiff’s standing argument—the inability to obtain redress from an order by this Court—likewise dooms the plaintiff’s ability to show irreparable harm. Indeed, “it would make little sense for a court to conclude that a plaintiff has shown irreparable harm when the relief sought would not actually remedy that harm.” Sierra Club v. U.S. Dep’t of Energy, 825 F. Supp. 2d 142, 153 (D.D.C. 2011); see also Navistar, Inc. v.
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Environmental Protection Agency, No. 11-cv-449, 2011 WL 3743732, at *3 (D.D.C. Aug. 25,
2011) (Wilkins, J.) (“Because an injunction will not redress its alleged injuries, [the plaintiff’s]
claim that it will suffer irreparable harm in the absence of a preliminary injunction is tenuous at
best.”).
Nevertheless, even if the plaintiff were able to establish standing, the plaintiff would face
a number of legal obstacles to prevail and, therefore, could not demonstrate a likelihood of
success on the merits nor any of the other preliminary injunction factors.12 While not necessary
12 The plaintiff has highlighted a recently out-of-Circuit opinion from the Western District of Pennsylvania (“Pennsylvania court”) to buttress his claims regarding his likelihood of success on the merits. See Pl.’s Notice of Suppl. Auth., ECF No. 14 (citing United States v. Juarez-Escobar, 2014 U.S. Dist. LEXIS 173350 (W.D. Pa. Dec. 16, 2014)). In that case, the court considered the applicability of the DAPA program to a criminal defendant (who had been arrested locally for driving under the influence with a minor present in the vehicle) in connection with the defendant’s sentencing, upon his plea of guilty to illegal reentry in violation of 8 U.S.C. § 1326. Id. at *1–*4. Throughout the opinion, the court expresses an over-arching concern with the fairness of the prosecution in light of the uneven enforcement of the immigration laws. See, e.g., id. at *5 (“Defendant appears before this Court, in part, because of arguably unequal and arbitrary immigration enforcement in the United States.”); id. at *6–*7 (observing that “[h]ad Defendant been arrested in a ‘sanctuary state’ or a ‘sanctuary city,’ local law enforcement likely would not have reported him to Homeland Security” and “he would likely not have been indicted” and “would not be facing sentencing and/or deportation”); id. at *39–*40 (noting “an arbitrariness to Defendant’s arrest and criminal prosecution” given existence of “‘sanctuary cities’ [where] . . . if an undocumented immigrant was arrested for a minor offense, local law enforcement would not automatically notify ICE”); id. at *41 (describing “Defendant’s current criminal prosecution and the civil deportation hearing that will undoubtedly follow as a result of this criminal proceeding” as “arguably . . . arbitrary and random”). Consistent with this theme, the court reviewed the DAPA program to evaluate “whether it would unjustly and unequally impact this Defendant in light of this Court's obligation to avoid sentencing disparities among defendants with similar records who have been found guilty of similar conduct,” citing 18 U.S.C. § 3553(a)(6). Id. at *24; see also id. at *12–*13 (expressing “concern[] that the Executive Action might have an impact on this matter, including any subsequent removal or deportation”). In other words, under the rubric of a sentencing factor that sentencing courts are required to consider under 18 U.S.C. § 3553(a), the Pennsylvania court set out to evaluate whether the DAPA program was applicable to the defendant and, if so, whether the consequences of his conviction, including deportation, would amount to an unwarranted sentencing disparity because similarly situated defendants could obtain deferred removal. See 18 U.S.C. § 3553(a)(6)(requiring sentencing court, “in determining the particular sentence to be imposed,” to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”).
The Pennsylvania court ultimately determined that the DAPA program was not applicable to the defendant for two reasons: first, the court opined that the DAPA program “is unconstitutional,” id. at *33, *58; and, second, even if the DAPA program were constitutional, the court made critical factual findings that the defendant did not meet the eligibility criteria for DAPA’s deferred action, id. at *45 (“The bottom line for this Defendant is that . . . he does not fall into any newly created or expanded deferment category . . . .”); id. at *57 (“this Defendant is possibly not entitled to the deferred action status that would enable him to defer deportation”). Despite the defendant’s lack (or “possible[]” lack) of eligibility for the DAPA program, the court viewed the defendant as “more ‘family’ than ‘felon,’” id. at *45, *58, due to his “close bond with his brother,” who resided in the United States, id. at *57–*58, prompting the court to give the defendant the opportunity to withdraw his guilty plea or proceed to sentencing, id. at *59.
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to resolve this case, the Court outlines several of these obstacles. First, with respect to the
plaintiff’s likelihood of success on the merits, the challenged deferred action programs continue
a longstanding practice of enforcement discretion regarding the Nation’s immigration laws.
Such discretion is conferred by statute, see 6 U.S.C. § 202(5); 8 U.S.C. § 1103(a)(3), and the
manner of its exercise through deferred action on removal has been endorsed by Congress, see,
e.g., 8 U.S.C. § 1227(d)(2). Thus, the deferred action programs are consistent with, rather than
contrary to, congressional policy. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635 (1952) (Jackson, J. concurring).
In addition, although the challenged deferred action programs represent a large class-
based program, such breadth does not push the programs over the line from the faithful execution
of the law to the unconstitutional rewriting of the law for the following reason: The programs
While fully respectful of the concern animating this decision, which focused on the fairness of the prosecution and guilty plea of the defendant for the crime of illegal reentry, this Court does not find the reasoning persuasive for at least three reasons. First, most notably, the Pennsylvania court’s consideration of the constitutionality of the DAPA program flies in the face of the “‘well-established principle governing the prudent exercise of [a] [c]ourt’s jurisdiction that normally [a] [c]ourt will not decide a constitutional question if there is some other ground upon which to dispose of the case.’” Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 206 (2009) (quoting Escambia County v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)); see also United States v. Thomas, 572 F.3d 945, 952 (D.C. Cir. 2009) (Ginsburg J., concurring). Thus, the Pennsylvania court appears to have put the proverbial “cart before the horse” since finding the defendant likely ineligible for the DAPA program made consideration of the program’s constitutionality unnecessary. Second, the purported basis for the Pennsylvania court’s consideration of the DAPA program was to avoid unwarranted sentencing disparities, as required by 18 U.S.C. § 3553(a)(6). Yet, the DAPA program has no bearing on the sentence imposed by the Pennsylvania court since, as the Supreme Court has made clear, “[r]emoval is a civil, not criminal, matter.” Arizona, 132 S. Ct. at 2499. To the extent that the Pennsylvania court was focused on the defendant’s likely deportation following the imposition of the sentence, this collateral consequence could not result in an unwarranted disparity since the defendant’s likely ineligibility for DAPA means that the defendant was not similarly situated to persons who are eligible. Finally, even if the Pennsylvania court’s concern were correct that the defendant was subject to potentially unequal enforcement of a criminal statute and faced prosecution in the Western District of Pennsylvania when he was unlikely to face prosecution in other districts, such enforcement disparities are inherent in prosecutorial discretion and have no bearing on the analysis under § 3553(a)(6), which requires consideration of sentence disparities among similarly situated defendants convicted of the same offense in federal court, not enforcement disparities. Accord United States v. Washington, 670 F.3d 1321, 1327 (D.C. Cir. 2012) (“U.S. Attorney's lawful exercise of discretion in bringing a federal prosecution” rather than local prosecution, which may result in different sentences, does not support a departure under § 3553(a)(6)); United States v. Clark, 8 F.3d 839, 842-843 (D.C. Cir. 1993)(“reject[ing] the claim that the [U.S.] government’s ‘arbitrary use’ of its discretion to indict defendants under either federal or D.C. law could be a mitigating circumstance within the meaning of § 3553(b)” or was appropriate to consider in exercise of district court’s authority to avoid unwarranted sentencing disparities under § 3553(a)(6)).
31

Case 1:14-cv-01966-BAH Document 23 Filed 12/23/14 Page 32 of 33
still retain provisions for meaningful case-by-case review.13 See 2014 Guidance Memorandum at
4 (requiring that a DAPA applicant present “no other factors that, in the exercise of discretion,
make[] the grant of deferred action inappropriate”). This case-by-case decisionmaking
reinforces the conclusion that the challenged programs amount only to the valid exercise of
prosecutorial discretion and reflect the reality that “an agency decision not to enforce often
involves a complicated balancing of a number of factors which are peculiarly within its
expertise.” Heckler v. Chaney, 470 U.S. 821, 831 (1985).
Finally, the challenged deferred action programs merely provide guidance to immigration
officials in the exercise of their official duties. This helps to ensure that the exercise of deferred
action is not arbitrary and capricious, as might be the case if the executive branch offered no
guidance to enforcement officials. It would make little sense for a Court to strike down as
arbitrary and capricious guidelines that help ensure that the Nation’s immigration enforcement is
not arbitrary but rather reflective of congressionally-directed priorities.14
13 Statistics provided by the defendants reflect that such case-by-case review is in operation. As of December 5, 2014, 36,860 requests for deferred action under DACA were denied and another 42,632 applicants were rejected as not eligible. Defs.’ Mem., Ex. 22 (USCIS, Current Statistics: Deferred Action for Childhood Arrivals: Pending, Receipts, Rejected, Approvals, and Denials (2014)), ECF No. 13-22. 14 The plaintiff makes three arguments in support of his motion for preliminary injunction based on the constitutional principles underlying the separation of powers. First, the plaintiff argues that the implementation of the challenged programs would use significantly all of the funds appropriated by Congress for immigration enforcement thereby frustrating the will of Congress. See Hrg. Tr. at 16–17; Pl.’s Mot. at 20. This is not so. “[T]he costs of administering the proposed program would be borne almost entirely by USCIS through the collection of application fees.” OLC Opinion at 27; 2014 Guidance Memorandum at 5 (“Applicants will pay the work authorization and biometrics fees, which currently amount to $465.”). Should Congress disagree with the enforcement priorities set out by DHS in the challenged policies, Congress has the ability to appropriate funds solely for removal and the President cannot refuse to expend funds appropriated by Congress. See Train v. City of New York, 420 U.S. 35 (1975). Second, the plaintiff argues that the challenged deferred action programs violate INS v. Chadha, 462 U.S. 919 (1983), because the programs amount to unlawful legislation and/or rulemaking. Pl.’s Mot. at 20. This argument also misses the mark. Congress has delegated authority to DHS to establish priorities for the enforcement of the nation’s immigration laws, see 6 U.S.C. 202(5), and, as Chadha recognizes, DHS is acting in an Article II enforcement capacity when determining issues of deportation. See Chadha, 462 U.S. at 953 n.16. Third, the plaintiff contends that the challenged deferred action programs violate the non-delegation doctrine. Pl.’s Mot. at 17. Yet, a finding of excessive delegation of authority is extremely rare, given the low threshold that legislation must meet to overcome a non-delegation doctrine claim. See United States v. Ross, 778 F. Supp. 2d 13, 26 (D.D.C. 2011) (“[o]nly twice in [the Supreme Court’s] history, and not since 1935, has [it] invalidated a statute on the ground of excessive delegation of legislative authority”) (citations and quotations omitted). The Supreme Court has
32

Case 1:14-cv-01966-BAH Document 23 Filed 12/23/14 Page 33 of 33

Second, the plaintiff cannot demonstrate irreparable harm since the plaintiff waited two years to challenge the DACA program and because any harm to the plaintiff is likely to occur regardless of the challenged policies.
Finally, both the public interest and the balance of the equities do not support a preliminary injunction. Halting these deferred action programs would inhibit the ability of DHS to focus on its statutorily proscribed enforcement priorities (national security, border security, and public safety) and would upset the expectations of the DACA program’s participants and the potentially eligible participants in the other challenged programs when none of those participants are currently before this Court. IV. CONCLUSION
For the foregoing reasons, the plaintiff’s motion for preliminary injunction is denied and the defendant’s motion to dismiss for lack of subject matter jurisdiction is granted.
An appropriate Order accompanies this Memorandum Opinion.

Date: December 23, 2014

Digitally signed by Hon. Beryl A. Howell DN: cn=Hon. Beryl A. Howell, o=U.S. District Court for the District of Columbia, ou=United States District Court Judge, email=Howell_Chambers@dcd.uscourt s.gov, c=US
______________Da_te:_20_14.1_2.2_3 2_0:3_0:2_7 -0_5'0_0' __
BERYL A. HOWELL
United States District Judge

“‘almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.’” Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 30 (D.C. Cir. 2008) (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474-75 (2001)).
33

 
 Case: 1:14-cv-1966 As of: 11/01/2015 02:39 PM EST 1 of 5
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:14−cv−01966−BAH

CLOSED

ARPAIO v. OBAMA et al Assigned to: Judge Beryl A. Howell Case in other court: USCA, 14−05325 Cause: 05:551 Administrative Procedure Act
Plaintiff JOSEPH M. ARPAIO

Date Filed: 11/20/2014 Date Terminated: 12/24/2014 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant
represented by Larry E. Klayman LAW OFFICES OF LARRY KLAYMAN 2020 Pennsylvania Avenue, NW Suite 345 Washington, DC 20006 (310) 595−0800 Fax: (310) 275−3276 Email: leklayman@gmail.com ATTORNEY TO BE NOTICED

V. Defendant BARACK OBAMA
Defendant JEH CHARLES JOHNSON
Defendant LEON RODRIGUEZ

represented by Adam D. Kirschner U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 353−9265 Email: adam.kirschner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Roberta Hartnett UNITED STATES DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514−2331 Fax: (202) 514−8071 Email: kathleen.r.hartnett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam D. Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Roberta Hartnett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 1:14-cv-1966 As of: 11/01/2015 02:39 PM EST 2 of 5

Adam D. Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Roberta Hartnett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant ERIC H. HOLDER, JR.

represented by Adam D. Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Roberta Hartnett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/20/2014
11/20/2014 11/21/2014 11/21/2014 11/24/2014
11/24/2014 11/25/2014 12/04/2014
12/04/2014
12/04/2014

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090−3912973) filed by JOSEPH M. ARPAIO. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Civil Cover Sheet, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons)(Klayman, Larry) (Entered: 11/20/2014)
Case Assigned to Judge Beryl A. Howell. (sth, ) (Entered: 11/21/2014)
2 SUMMONS (4) Issued Electronically as to ERIC HOLDER, JR., JEH CHARLES JOHNSON, BARACK OBAMA, LEON RODRIQUEZ. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(sth, ) (Entered: 11/21/2014)
3 STANDING ORDER. Signed by Judge Beryl A. Howell on November 21, 2014. (lcbah2) (Entered: 11/21/2014)
MINUTE ORDER (paperless) DIRECTING the plaintiff to comply with Local Civil Rule 65.1, which requires applications for preliminary injunctions and temporary restraining orders to be made in a motion "separate from the complaint," if the plaintiff intends to seek such extraordinary relief. Signed by Judge Beryl A. Howell on November 24, 2014. (lcbah2) (Entered: 11/24/2014)
4 REQUEST FOR SUMMONS TO ISSUE by JOSEPH M. ARPAIO re 1 Complaint, filed by JOSEPH M. ARPAIO. Related document: 1 Complaint, filed by JOSEPH M. ARPAIO. (Attachments: # 1 Summons)(Klayman, Larry) (Entered: 11/24/2014)
5 SUMMONS (2) Issued Electronically as to ERIC HOLDER, JR., BARACK OBAMA, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 11/25/2014)
6 MOTION for Preliminary Injunction by JOSEPH M. ARPAIO (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Klayman, Larry) (Entered: 12/04/2014)
7 MOTION for Preliminary Injunction by JOSEPH M. ARPAIO (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Klayman, Larry) (Entered: 12/04/2014)
8 ORDER Controlling Preliminary Injunction Proceedings. The plaintiff shall, by 5:00 p.m. on December 9, 2014, submit (1) proof of service of the 1 Complaint and 6 Motion for Preliminary Injunction; and (2) a joint proposed schedule to govern the preliminary injunction proceedings. See Order for further details. Signed by Judge Beryl A. Howell on December 1, 2014. (lcbah2) (Entered: 12/04/2014)

Case: 1:14-cv-1966 As of: 11/01/2015 02:39 PM EST 3 of 5

12/04/2014 12/05/2014 12/06/2014 12/06/2014 12/09/2014 12/10/2014
12/10/2014 12/15/2014
12/16/2014
12/16/2014 12/16/2014 12/17/2014 12/17/2014

Set/Reset Deadlines: Response to Order of the Court due by 5:00 PM on 12/9/2014. (tg, ) (Entered: 12/04/2014)
9 NOTICE Praecipe by JOSEPH M. ARPAIO re 8 Order, (Attachments: # 1 Exhibit 1)(Klayman, Larry) (Entered: 12/05/2014)
10 NOTICE of Appearance by Adam D. Kirschner on behalf of All Defendants (Kirschner, Adam) (Entered: 12/06/2014)
11 RESPONSE re 9 Notice (Other) filed by ERIC HOLDER, JR., JEH CHARLES JOHNSON, BARACK OBAMA, LEON RODRIQUEZ. (Kirschner, Adam) (Entered: 12/06/2014)
12 RESPONSE TO ORDER OF THE COURT re 8 Order, filed by JOSEPH M. ARPAIO. (Klayman, Larry) (Entered: 12/09/2014)
MINUTE ORDER (paperless) ISSUING the following SCHEDULING ORDER to control the timing and consideration of the plaintiff's motion for a preliminary injunction. The plaintiff's 12 Statement on Briefing Scheduling of Motion for Preliminary Injunction indicates that the parties have been unable to agree to a joint briefing schedule and, consequently, under LCvR 65.1, "[t]he opposition shall be served and filed within seven days after service of the application for preliminary injunction." LCvR 65.1 does not provide for the submission of a reply brief. Accordingly, the defendants are directed to file their opposition, including any objections based on "the significant jurisdictional issues raised by plaintiff's lawsuit," to the plaintiff's 6 Motion for Preliminary Injunction and Request for Oral Argument Thereon by December 15, 2014. The parties shall appear on December 22, 2014 at 9:30 AM, in Courtroom 15, for a hearing regarding the plaintiff's 6 Motion for Preliminary Injunction and Request for Oral Argument Thereon. Signed by Judge Beryl A. Howell on December 10, 2014. (lcbah2) (Entered: 12/10/2014)
Set/Reset Deadlines/Hearings: Opposition to 6 Motion for Preliminary Injunction and Request for Oral Argument Thereon due by 12/15/2014. Hearing on the Motion for Preliminary Injuction scheduled for 12/22/2014 at 9:30 AM in Courtroom 15 before Judge Beryl A. Howell. (tg, ) (Entered: 12/10/2014)
13 Memorandum in opposition to re 7 MOTION for Preliminary Injunction , 6 MOTION for Preliminary Injunction filed by ERIC HOLDER, JR., JEH CHARLES JOHNSON, BARACK OBAMA, LEON RODRIQUEZ. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Text of Proposed Order)(Kirschner, Adam) (Entered: 12/15/2014)
MINUTE ORDER (paperless) TO SHOW CAUSE why the defendants' 13 Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Preliminary Injunction ("Defs.' Opposition") should not be construed as a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The defendants shall file a notice with the Court by 12:00 PM on December 17, 2014 explaining whether their opposition should be construed as a motion to dismiss under Rule 12(b)(1). The plaintiff may file a reply in light of the issues raised by Defs.' Opposition by 5:00 PM on December 18, 2014. Signed by Judge Beryl A. Howell on December 16, 2014. (lcbah2) (Entered: 12/16/2014)
Set/Reset Deadlines: Response to Show Cause due by 12:00 PM on 12/17/2014; Reply due by 5:00 PM on 12/18/2014. (tg, ) (Entered: 12/16/2014)
14 NOTICE OF SUPPLEMENTAL AUTHORITY by JOSEPH M. ARPAIO (Attachments: # 1 Exhibit 1)(Klayman, Larry) (Entered: 12/16/2014)
15 NOTICE re Minute Order by ERIC HOLDER, JR., JEH CHARLES JOHNSON, BARACK OBAMA, LEON RODRIQUEZ re Order,, (Kirschner, Adam) (Entered: 12/17/2014)
16 Unopposed MOTION for Extension of Time to File Reply by JOSEPH M. ARPAIO (Klayman, Larry) (Entered: 12/17/2014)

Case: 1:14-cv-1966 As of: 11/01/2015 02:39 PM EST 4 of 5

12/17/2014 12/18/2014
12/18/2014 12/18/2014 12/18/2014 12/18/2014 12/19/2014 12/21/2014 12/21/2014 12/22/2014 12/23/2014 12/23/2014 12/23/2014 12/24/2014

17 NOTICE of Filing of Request for Live Testimony by JOSEPH M. ARPAIO re 7 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Klayman, Larry) (Entered: 12/17/2014)
MINUTE ORDER (paperless) GRANTING the plaintiff's 16 Unopposed Motion for Extension of Time to File Reply. The plaintiff shall have until 8:00 PM on December 18, 2014 to file his reply. The plaintiff's 17 Request for Live Testimony is DENIED as the testimony will result in the "needless presentation of cumulative evidence," see LCvR 65(1)(d), since, at this stage of the proceedings, in opposition to the defendants' motion to dismiss, the Court need not make any credibility determinations and must accept as true the factual allegations made by the plaintiff. Any evidence the plaintiff wished the Court to hear by live testimony may be presented instead in a sworn declaration supplementing the plaintiff's previous declaration. See Decl. of Sheriff Joe Arpaio, Ex. G, ECF No. 6 . Accordingly, the plaintiff has leave to file a supplemental declaration setting forth those facts the plaintiff would have otherwise presented during live testimony by 5:00 PM on December 19, 2014. Signed by Judge Beryl A. Howell on December 18, 2014. (lcbah2) (Entered: 12/18/2014)
Set/Reset Deadlines: Plaintiff's Reply due by 8:00 PM on 12/18/2014. Plaintiff's Sworn Supplemental Declaration due by 5:00 PM on 12/19/2014. (tg, ) (Entered: 12/18/2014)
18 Unopposed MOTION to Increase Page Limit re Order,, by JOSEPH M. ARPAIO (Klayman, Larry) (Entered: 12/18/2014)
MINUTE ORDER (paperless) GRANTING the plaintiff's 18 Unopposed Motion to Increase Page Limit. The plaintiff shall have an additional fifteen pages for his Reply. Signed by Judge Beryl A. Howell on December 18, 2014. (lcbah2) (Entered: 12/18/2014)
19 REPLY to opposition to motion re 7 MOTION for Preliminary Injunction filed by JOSEPH M. ARPAIO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Klayman, Larry) (Entered: 12/18/2014)
20 NOTICE of Filing of Supplemental Declaration of Sheriff Joe Arpaio, in Support of Plaintiffs Motion for Injunction by JOSEPH M. ARPAIO re Order on Motion for Extension of Time to File,,,, (Attachments: # 1 Declaration of Sheriff Joe Arpaio, In Support of Plaintiff's Motion for Injunction)(Klayman, Larry) (Entered: 12/19/2014)
21 NOTICE of Filing of Document to be Included as Part of Exhibit 5 by JOSEPH M. ARPAIO re 20 Notice (Other), (Attachments: # 1 Exhibit)(Klayman, Larry) (Entered: 12/21/2014)
22 NOTICE of Appearance by Kathleen Roberta Hartnett on behalf of All Defendants (Hartnett, Kathleen) (Entered: 12/21/2014)
Minute Entry for proceedings held before Judge Beryl A. Howell: Hearing on a Motion for Preliminary Injunction held on 12/22/2014. (Court Reporter Barbara DeVico.) (tg, ) (Entered: 12/22/2014)
23 MEMORANDUM OPINION regarding the plaintiff's 6 , 7 Motion for Preliminary Injunction and the defendants' Motion to Dismiss for lack of subject matter jurisdiction. Signed by Judge Beryl A. Howell on December 23, 2014. (lcbah3) (Entered: 12/23/2014)
24 ORDER GRANTING the defendants' Motion to Dismiss for lack of subject matter jurisdiction and DENYING the plaintiff's 6 , 7 Motion for Preliminary Injunction. The Clerk of the Court is directed to close the case. See Order for further details. Signed by Judge Beryl A. Howell on December 23, 2014. (lcbah3) (Entered: 12/23/2014)
25 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 23 Memorandum & Opinion, 24 Order, by JOSEPH M. ARPAIO. Filing fee $ 505, receipt number 0090−3945815. Fee Status: Fee Paid. Parties have been notified. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Klayman, Larry) (Entered: 12/23/2014)
26 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 25 Notice of Appeal to DC Circuit Court. (rdj) (Entered: 12/24/2014)

Case: 1:14-cv-1966 As of: 11/01/2015 02:39 PM EST 5 of 5

12/29/2014 12/29/2014
09/08/2015

USCA Case Number 14−5325 for 25 Notice of Appeal to DC Circuit Court, filed by JOSEPH M. ARPAIO. (rd) (Entered: 12/29/2014)
27 TRANSCRIPT OF PROCEEDINGS before Judge Beryl A. Howell held on 12−22−14; Page Numbers: 1−60. Date of Issuance:12−29−14. Court Reporter/Transcriber Barbara DeVico, Telephone number 202−354−3118, Court Reporter Email Address : Barbara_DeVico@dcd.uscourts.gov.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 1/19/2015. Redacted Transcript Deadline set for 1/29/2015. Release of Transcript Restriction set for 3/29/2015.(DeVico, Barbara) (Entered: 12/29/2014)
28 MANDATE of USCA (certified copy) as to 25 Notice of Appeal to DC Circuit Court, filed by JOSEPH M. ARPAIO. ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby affirmed, in accordance with the opinion of the court filed herein this date. USCA Case Number 14−5325. (md) (Entered: 09/08/2015)