IMPACT OF TEXAS v. USA ON OTHER EXECUTIVE ACTIONS INVOLVING EMPLOYMENT AUTHORIZATION

By Cyrus D. Mehta

Although the Fifth Circuit in Texas v. USA ruled against the Administration on November 9, 2015 by upholding the preliminary injunction against implementation of President Obama’s program to grant deferred action to certain groups of undocumented persons, the ruling may impact other executive actions that President Obama had announced on November 20, 2014, especially relating to skilled immigrants. It is thus important for the the Supreme Court to reverse this erroneous decision to not only allow the Administration to implement Deferred Action for Parental Accountability program  and the expanded Deferred Action for Childhood Arrival program (collectively referred to as DAPA in the decision), but to also allow the Administration to grant other kinds of administrative relief such as interim employment authorization to immigrants who face great hardship and are deprived of the benefits accorded to them under the Immigration and Nationality Act. 

The majority’s ruling in the Fifth Circuit went even further than Judge Hanen’s decision in the lower district court by holding that DAPA was not authorized under any INA provision. Judge Hanen’s ruling suggested that if the Administration had followed the notice and comment procedure under section 553 of the Administrative Procedures Act, DAPA could have survived judicial scrutiny. The Fifth Circuit, on the other hand, held that since DAPA implicated “questions of deep economic and political significance,” Congress would have expressly authorized DHS, which it did not do. Hence, DAPA was a substantive APA violation under section 706(2) as it was not authorized under the INA. Thus, promulgating a rule at this juncture will not help to save DAPA.   

One of the INA provisions relied on by the government to implement DAPA is INA section 274(h)(3), which provides: 

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.  

While the ability to of INA 274A(h)(3) to provide authority to the Administration was  completely overlooked in Judge Hanen’s decision (and his flawed decision is discussed in David Isaacson’s excellent blog entitled IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA), the Fifth Circuit took notice of INA 274(h)(3), but gave it short shrift by observing that this provision, which is listed as a miscellaneous definitional provision is an unlikely place to find authorization for DAPA. 

Contrary to the Fifth Circuit’s gloss, INA 274A(h)(3)  gives the Attorney General, and now the Secretary of Homeland Security, broad  flexibility to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  Indeed, INA 274(h)(3) was invoked by the DHS in promulgating a rule providing employment authorization for H-4 dependent spouses of H-1B visa holders in the US who are caught in the employment based second and third preference backlogs. INA 274A(h)(3) will also most likely be invoked when the DHS promulgates a rule to grant work authorization to beneficiaries of approved employment-based I-140 petitions who are waiting for their green cards in the backlogged employment preferences.

Indeed, if INA 274A(h)(3) is discredited, as suggested by the Fifth Circuit,  many other justifications for providing an employment authorization document (EAD) would collapse.  The reason the EAD regulations are principally located in 8 CFR 274a, after all, is that the authority for most of them has always been thought to stem from INA 274A. While many of the 8 CFR 274a.12(a) EADs have some specific statutory authorization outside of INA 274A(h)(3), which is why they exist incident to status, many 8 CFR 274a.12(c) EAD categories are based on INA 274A(h)(3) in just the same way that  8 CFR 274a.12(c)(14) EADs for deferred action are.  People with pending adjustment applications under 8 CFR 274a.12(c)(9), including the “class of 2007” adjustment applicants, pending cancellation applications under 8 CFR 274a.12(c)(10), pending registry applications under 8 CFR 274a.12(c)(16), all get EADs based on that same statutory authority.  Even the B-1 domestic workers and airline employees at 8 CFR 274a.12(c)(17) have no separate statutory authorization besides 274A(h)(3). Some (c) EADs have their own separate statutory authorization, such as pending-asylum 8 CFR 274a.12(c)(8) EADs with their roots in INA 208(d)(2), and 8 CFR 274a.12(c)(18) final-order EADs with arguable roots in INA 241(a)(7), but they are in the minority.  And even some of the subsection (a) EADs have no clear statutory basis outside 274A(h)(3), such as 8 CFR 274a.12(a)(11) for deferred enforced departure.  If the Fifth Circuit’s theory is taken to its logical conclusion, it would destroy vast swathes of the current employment-authorization framework.

It is thus important for the Supreme Court to uphold the Administration’s authority to implement DAPA as part of its broad authority to exercise prosecutorial discretion, without the need to undermine INA 274A(h)(3). As I have advocated in FIFTH CIRCUIT PRECEDENT ON PREEMPTION CAN PROVIDE OBAMA WITH PATH TO VICTORY IN TEXAS v. UNITED STATES, the government’s authority to exercise prosecutorial discretion, which includes deferred action, is non-justiciable and notwithstanding the Fifth Circuit decision, never required rule making. The dissenting opinion in the Fifth Circuit decision thankfully held that deferred action, which is a quintessential exercise of prosecutorial discretion, is non-justiciable.  Indeed, one of the principal reasons why state regulations have been held to  conflict with federal immigration law is because they interfere with the Administration’s ability to exercise prosecutorial discretion. While on first brush Texas v. USA is not a preemption case, it would still provide a basis for any cantankerous state politician to sue the federal government, under the broad and dubious standing theory  that the Fifth Circuit provided to Texas, whenever the federal government chooses to exercise prosecutorial discretion. While the DACA program of 2012 will be the most vulnerable, if the Supreme Court were to uphold the Fifth Circuit's majority decision, another court would hopefully reach another conclusion with respect to INA 274A(h)(3) as providing the authority to the Administration to grant work authorization in many other contexts. 

The Supreme Court in Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), articulated the federal government’s authority  to exercise prosecutorial discretion rather elaborately:

A principal feature of the removal system is the broad discretion exercised by immigration officials…... Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

The majority of the Supreme Court  justices ought to  latch onto the dissenting opinion, which is the correct opinion, and should reverse the preliminary injunction on the ground that the President’s executive actions regarding DAPA are non-justiciable, and thus leave alone INA 274A(h)(3). The Administration ought to be provided flexibility to provide ameliorative relief, especially EAD under INA 274A(h)(3) to a number of non-citizens needing relief. The prime example are those who have to wait for decades in the India EB-2 and EB-3 backlogs for their green card, even though they have otherwise fulfilled all the conditions. Due to the lack of a current priority date, beneficiaries who are otherwise approved for permanent residence ought to be able to obtain EADs, and the same also should apply to H-4 spouses of H-1B visa holders who are caught in the employment based backlogs. Also, researchers, inventors and founders of startup enterprises ought to be paroled into the US and issued EADs under the broad authority provided in INA 274A(h)(3), and this too is one of the initiatives contemplated in the President’s  November 20, 2014 executive actions.  There are many good reasons why the Administration should be allowed to issue work authorization to noncitizens, and INA 274A(h)(3) ought not be reinterpreted to curtail this flexibility.

 

 

FIFTH CIRCUIT PRECEDENT ON PREEMPTION CAN PROVIDE OBAMA WITH PATH TO VICTORY IN TEXAS v. UNITED STATES

By Cyrus D. Mehta

After a split Fifth Circuit panel declined to lift Judge Hanen’s preliminary injunction in Texas v. United States blocking President Obama’s two executive actions that could defer the deportations of an estimated 4.4 million people, the score was 2 in favor of Texas and 0 for President Obama.  One of the memorable quotes in the Rocky movie about boxing is apt here, “[I]t ain't how hard you hit; it's about how hard you can get hit, and keep moving forward.”

Although President Obama has been hit hard, his legal team has to keep moving forward and there is plenty to look forward to that can ultimately win the day for the 4.4 million who will benefit from deferred action.  Although there has been substantial analysis regarding the flaws in the latest decision, scant attention has been paid to a 2013 decision of the Fifth Circuit that held that a local ordinance penalizing  landlords and occupants for not being lawfully present in the United States was preempted under federal immigration law.  This decision may provide a narrow path to victory for President Obama.

In Villas at Parkside Partners v. Farmers Branch, 726 F.3d 524 (5^th Cir. 2013), the Fifth Circuit struck down a Farmers Branch, TX, ordinance on preemption grounds because it conflicted with federal law regarding the ability of aliens not lawfully present in the United States to remain in the US. The Fifth Circuit also noted that the federal government’s ability to exercise discretion relating to removal of non-citizens is a key reason for a state or local regulation of immigration being preempted under the Supremacy Clause of the US Constitution: 

Whereas the Supreme Court has made clear that there are "significant complexities involved in [making] . . . the determination whether a person is removable," and the decision is "entrusted to the discretion of the Federal Government," Arizona, 132 S. Ct. at 2506; see also Plyler, 457 U.S. at 236 (Blackmun, J., concurring) ("[T]he structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported."), the Ordinance allows state courts to assess the legality of a non-citizen's presence absent a "preclusive" federal determination, opening the door to conflicting state and federal rulings on the question.  

Texas v. United States, on first brush, is not a preemption case as it does not involve a state law regulating immigration that conflicts with federal law. Plaintiff states challenged President Obama’s executive actions, mainly on grounds that the President did not issue a rule prior to implementing deferred action for parents who have citizen or permanent resident children in the US (DAPA) or expanded deferred action for childhood arrivals (DACA). Still, the Fifth Circuit’s panel refusing to stay the preliminary injunction of  Judge Hanen  does not bode too well for federal preemption of immigration law and policy, which has been upheld not only by the Fifth Circuit in Farmers Branch, but also by the Supreme Court in Arizona v. United States, 132 S.Ct. 2492, 2499 (2012),   which articulated:

A principal feature of the removal system is the broad discretion exercised by immigration officials…... Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

When the actual merits of Judge Hanen’s injunction are considered by another panel of judges in the Fifth Circuit, they will hopefully take notice of Farmer’s Branch that was decided en banc, which upheld the federal government’s ability to exercise discretion in the removal of aliens under the preemption doctrine. Interestingly, Judges Smith and Elrod, who  decided against President Obama in the Fifth Circuit, were also among the dissenting judges in the Farmers Branch case.  

The key issue in Texas v. United States is whether states should be even permitted to sue the federal government on immigration enforcement policy. If President Obama loses in the Fifth Circuit on the actual appeal, and the Supreme Court upholds it, then this would be an open invitation for any cantankerous state politician to bring a law suit against the federal government over an immigration policy that he or she dislikes. The ability of a state to harass the federal government could be endless. For instance, the federal government can invoke its authority to parole aliens into the United States under INA 212(d)(5), and could bring in a large group of people into the US for humanitarian reasons, such as victims of atrocities by ISIS in Iraq and Syria. A state opposed to the paroling of these aliens can potentially sue the federal government if it can manufacture some harm that would befall it, like Texas did, that it would be costly for the state to issue drivers licenses to them. Similarly, a state could sue the federal government for granting deferred action to victims of domestic violence or crime victims or widows and widowers of US citizens, like the federal government has done in the past. These sorts of challenges from states would undermine the long established doctrine that immigration policy is within the purview of the federal government and Congress. Another concern for upholding preemption of federal immigration law from interference by states is the concern about the relationship between immigration and foreign affairs. See Toll v. Moreno, 458 U.S. 1 (1982); Hines v. Davidowitz, 312 U.S. 52 (1941).  If a state were allowed to sue each time the federal government issued a policy and blocked it, this would upset the long acknowledged preemption doctrine relating to immigration. If there is a disagreement in how the Executive Branch implements immigration policy, it is for Congress to intervene by changing the law rather than for states like Texas to file a law suit.

 Judge Higginson’s dissenting opinion (who also wrote the majority opinion in Farmers Branch) in the Fifth Circuit’s decision refusing to lift the stay correctly opined that President Obama’s executive actions are non-justiciable as they are internal executive enforcement guidelines. The dissenting opinion appropriately relied on the Supreme Court decision in Heckler v. Chaney,  470 U.S. 821 (1985), which held  “that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agencies absolute discretion.”  Whether executive enforcement guidelines provide deferred action to millions rather than thousands or hundreds should not make them any more or less amenable to a legal challenge by a state. So long as the President does not grant legal status, which he cannot do under the INA (and both Judge Hanen and the majority in the Fifth Circuit confused legal status with lawful presence), it should not make a difference under Heckler v. Chaney whether deferred action is granted to thousands of spouses of military personnel or to millions of parents of citizen and permanent resident children.  Charles Kuck and others have forcefully proposed that President Obama should publish a rule in the Federal Register, and this would weaken plaintiffs’ chief claim that the President violated the Administrative Procedure Act by not proposing a rule for public notice and comment when implementing DAPA and DACA. While this is an intriguing idea, it would also be a cop out. Every new enforcement decision would have to go through the notice and comment procedure under the APA out of fear of inviting more law suits from states, and this would again undermine the preemption doctrine relating to immigration.

Indeed, one of the concurring opinions in Farmers Branch  acknowledged that the largely federal discretionary immigration enforcement system, including the grant of deferred action,  would be upset if a state regulation conflicted with it, and relied on Arizona v. USA by opining:  “The Court held that the statute stood as an impermissible obstacle to the design and purposes of the largely discretionary immigration enforcement system Congress created because it could result in “unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed” and ultimately “would allow the State to achieve its own immigration policy.” [citation omitted]. Because such state-to-state variance “is not the system Congress created,” the Court held that the Arizona statute “violates the principle that the removal process is entrusted to the discretion of the Federal Government.””

There are many arguments that may ultimately carry the day for the Obama administration and its ability to bring relief to millions who are a low enforcement priority. In Crane v. Johnson, the federal government was victorious in a law suit against the previous 2012 DACA program as the Fifth Circuit held that Mississippi lacked standing since its claim to injury was speculative.  Texas, however, has been able to manufacture a more cogent harm regarding the burdens that would be caused in the issuance of new driver licenses. Regardless of the merits of a state’s standing claim, standing would be moot if the claim is non- justiciable as Judge Higginson found, and  Farmers Branch should provide the basis for this on the ground that a state cannot upset the preemption doctrine on immigration. It is no secret that Texas v. United States is a political fight as the plaintiff states are Republican, and the judges that have ruled against Obama have been appointed by Republican Presidents.  It is also true that the majority of judges in the Fifth Circuit are Republican appointees, but Farmers Branch was also decided en banc in the Fifth Circuit, and the panel that considers the appeal will be bound by its own precedent.

EQUATING IMMIGRANTS TO GREENHOUSE GASES: IS THIS A VALID BASIS FOR STANDING TO SUE THE FEDERAL GOVERNMENT?

By Cyrus D. Mehta

It has lately become fashionable for states that oppose President Obama’s immigration executive actions to sue in federal court on grounds that they are unconstitutional.  But in order to get heard in court, a state must demonstrate standing.        

In the Texas v. United States litigation challenging President Obama’s November 2014 Deferred Action for Parent Accountability Program (DAPA) and expanded Deferred Action for Childhood Arrival (DACA) programs, plaintiff states led by Texas successfully invoked standing by equating immigrants to noxious air pollutants that cause greenhouse gases. While greenhouse gases can only cause harm, immigrants, legal or not, are more likely to confer benefits than harm. Is it appropriate for a judge to give standing to a state opposing federal immigration policy based on the sort of harm that pollutants would cause it?  

Parties seeking to resolve disputes in federal court must present actual “Cases” or “Controversies” under Article III of the US Constitution. Plaintiffs must demonstrate that they have standing in order to satisfy Article III. They must establish three elements set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) that there is 1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. 

In Texas v. United States, the states attempted to show harm through the influx of immigrants who will remain in the United States through deferrals of their removals and thus burden them. The basis for linking the harm caused by immigrants to noxious pollutants stems from the seminal Supreme Court decision in Massachusetts v. EPA in which plaintiffs requested the Environmental Protection Agency to regulate greenhouse gas emissions from motor vehicles under section 202 of the Clean Air Act. After EPA refused to do so, plaintiffs, which included Massachusetts, sought review of the EPA’s refusal in the Supreme Court to regulate greenhouse gases. Massachusetts successfully sought standing under Lujan by showing that global warming caused by greenhouse gas emissions was so widespread that the failure of the EPA to regulate them would cause the state environmental damage such as coastal flooding of its shores. Justice Steven delivered the opinion of the Court by beginning with this broad pronouncement on global warming: 

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a "greenhouse gas." 

Later, in showing how Massachusetts as a landowner would suffer injury even though global warming was widespread, Justice Stevens stated: 

That these climate-change risks are "widely shared" does not minimize Massachusetts' interest in the outcome of this litigation. [citation omitted]. According to petitioners' unchallenged affidavits, global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming. MacCracken Decl.  5(c), Stdg.App. 208. These rising seas have already begun to swallow Massachusetts' coastal land. Id., at 196 (declaration of Paul H. Kirshen 5), 216 (MacCracken Decl.  23). Because the Commonwealth "owns a substantial portion of the state's coastal property," id., at 171 (declaration of Karst R. Hoogeboom  4),[citation omitted] it has alleged a particularized injury in its capacity as a landowner. The severity of that injury will only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be "either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events." Id.,  6, at 172.[citation omitted]. Remediation costs alone, petitioners allege, could run well into the hundreds of millions of dollars. Id., 7, at 172; see also Kirshen Decl.  12, at 198.[citation omitted] 

While it is undeniable that greenhouse gases can cause only harm, should this case be applicable when a state uses it to invoke standing to challenge federal immigration policy? Texas, the lead plaintiff in Texas v. United States, argued that the President’s executive actions would cause a significant economic burden as deferring removal of certain classes of non-citizens would allow them to  apply for drivers licenses, which  in turn would cost the state several million dollars. Texas relied on this trifling economic burden as the injury that would give it standing,  which Judge Hanen accepted among other standing legal theories. After providing standing, Judge Hanen temporarily blocked the executive actions, and a trenchant criticism of his reasoning in doing so can be found here.  Judge Hanen elaborated at great length in equating the harm that Massachusetts would suffer through global warming with the harm that Texas would suffer as a result of “500,000 illegal aliens that enter the United States each year.” Judge Hanen went on to further expound his views on the harms caused by illegal immigration, as follows: 

The federal government is unable or unwilling to police the border more thoroughly or apprehend those illegal aliens residing within the United States; thus it is unsurprising  that, according to prevailing estimates, there are somewhere between 11,000,000 and 12,000,000 illegal aliens currently living in the country, many of whom burden the limited resources in each state to one extent or another. Indeed, in many instances, the Government intentionally allows known illegal aliens to enter and remain in the country. 

While emphasizing the alleged harms that undocumented immigration would cause to the states, Judge Hanen gave short shrift to the well-reasoned amicus brief of 12 states   demonstrating the overwhelming benefits that DAPA and DACA would confer to the states.  Amici argued that the recipients of a prior DACA program in 2012, which was not challenged in the litigation, caused 60% of the recipients to find new jobs and that wages increased by over 240%. Allowing immigrants to work legally and increase their wages substantially increases the state tax base. The granting of deferred action also provides many social benefits, amici argued, as it allows parents to support US citizen children, thus reducing the cost of state social service benefits and it also allows families to remain united.  According to the amicus brief, “When fit parents are deported, it can be difficult for the State to find the parents and reunite them with their children. The existence of fit parents – even if they have been deported – can also prevent the State from seeking alternative placement options for a child, such as a guardianship or adoption by another family member or third party.[citation omitted]. Deferred deportation allows families to remain together, even if only temporarily.”The government appealed Judge Hanen’s preliminary injunction to the Fifth Circuit Court of Appeals. In a hearing before a panel in the Fifth Circuit to lift the block while the government’s appeal was pending, Massachusetts v. EPA was again discussed, as presented in David Isaacson’s summary:   

Continuing with the standing discussion, Judge Smith directed AAG Mizer to the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which he considered to be a key case on the standing issue.  Mizer responded, first, that there isn’t a territorial effect in this case as in Massachusetts, where the state’s territory was being affected (by rising sea levels resulting from global warming).  Also, the specific statute in Massachusetts v. EPA gave a specific right to sue, while the INA, Mizer argued, “is not enacted to protect the states”. 

The success of the legal challenges to President Obama’s executive actions hinges on whether courts will give plaintiffs standing or not. In Crane v. Johnson, the Fifth Circuit upheld the lower court’s finding that Mississippi, a plaintiff, did not have standing as its claim to fiscal injury arising out of deferral under the DACA 2012 program was speculative.  More recently, a three judge panel in the D.C. Circuit was skeptical of Arizona sheriff Joe Arpaio’s challenge against DAPA and expanded DACA based on standing. While they were skeptical that the deferred action programs will result in more immigrants being detained in Maricopa County jails, one George W.  Bush appointee judge again cited Massachusetts’ standing to sue to prevent environmental harm from greenhouse gases by asking why “at least at the state level, isn’t concern about public safety and crime and that sort of things costs and crime should not be at least equal to the sovereignty concern to the sea level rise taking a few inches of shoreline.” 

Although the government has argued in its appeal brief that the Clean Air Act gave a state such as Massachusetts the right to sue while the INA does not in the context of deferred action and prosecutorial discretion, a broader and more compelling argument can be made against invoking Massachusetts v. EPA in immigration litigation. Analogizing the ability of certain classes of immigrants to temporarily remain in the United States to greenhouse gases is both specious and offensive. It is well recognized that greenhouse gases only cause harm, and thus a state impacted by them can readily demonstrate injury in order to seek standing to sue the federal government. Immigrants, unlike greenhouse gases, bring great benefits to the United States. Any manufactured claim of harm by a state, like what Texas has claimed with the so called economic burden caused by issuing driver’s license, is far outweighed by the benefits that immigrants bring to this country. Apart from all the benefits that were discussed by the states opposing the legal challenge, even a second grader can figure out that handing out licenses to people who otherwise could not get it before deferral ensures that many more will drive safely in the state of Texas. 

One would also not use this analogy in other contexts as it is highly offensive to link human beings to greenhouse gases.  Imagine if a state were to challenge a federal policy of providing federal benefits to same-sex married couples whose marriages are valid where celebrated but not in the state of their residence, on the basis that this policy led more same-sex married couples and their families to reside in that state and thus overburden its schools and public hospitals. If the state invoked Massachusetts v. EPA, it would be viewed as highly offensive and also not a very strong argument.  Plaintiffs seem to be getting away for the time being in linking immigrants to noxious pollutants, and it is hoped that some judge will strike down this odious analogy so that it is  no longer invoked in immigration litigation.