State Challenges to Federal Enforcement of Immigration Law: Historical Precedents and Pending Litigation in 'Texas v. United States' [May 12, 2015] [open pdf - 366KB]
"States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. Depending upon the jurisdiction's specific concerns, this interest can be expressed in various ways, from the adoption of 'sanctuary' policies limiting the jurisdiction's cooperation in federal enforcement efforts to the enactment of measures to deter unauthorized aliens from entering or remaining within the jurisdiction. In some cases, states or localities have also sued to compel federal officials to enforce the INA and other relevant laws. […] Most recently, in December 2014, 27 states or their representatives filed suit challenging the Administration's expansion of DACA [Deferred Action for Childhood Arrivals] and the creation of another DACA-like program for aliens who are parents of U.S. citizens or lawful permanent residents (commonly known as DAPA). The states allege that these programs run afoul of the Take Care Clause and separation of powers principles of the Constitution, the INA, and substantive and procedural requirements of the APA. In February 2015, a federal district court found that Texas, at least, has standing to challenge DAPA and the DACA expansion, and that the challenged programs are judicially reviewable. The district court also enjoined implementation of these programs after finding that the states are likely to prevail on the merits of their argument that the memorandum establishing these initiatives constitutes a substantive rule, but was issued without compliance with the notice-and comment procedures required for substantive rules under the APA. The Administration has appealed that decision. The district court continues to hear arguments on the states' other claims."
CRS Report for Congress, R43839