State of Texas v. USA

The United States1 appeals a preliminary injunction, pending trial, forbidding implementation of the Deferred Action for Parents of Americans -and Lawful Permanent Residents program (“DAPA”). Twenty-six states (the “states”2) challenged DAPA under the Administrative Procedure Act (“APA”) and the Take Care Clause of the Constitution;3 in an impressive and thorough Memorandum Opinion and Order issued February 16, 2015, the district court enjoined the program on the ground that the states are likely to succeed on their claim that DAPA is subject to the APA’s procedural requirements. Texas v. United States, 86 F.Supp.3d 591, 677 (S.D.Tex.2015).4

The government appealed and moved to stay the injunction pending resolution of the merits. After extensive briefing and more than two hours of oral argument, a motions panel denied the stay after determining that the appeal was unlikely to succeed on its merits. Texas v. United States, 787 F.3d 733, 743 (5th Cir.2015). Reviewing the district court’s order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.5

I.

A.

In June 2012, the Department of Homeland Security (“DHS”) implemented the -Deferred Action for Childhood Arrivals program (“DACA”).6 In the DACA Memo *147to agency heads, the DHS Secretary “set[ ] forth how, in the exercise of ... prosecuto-rial discretion, [DHS] should enforce the Nation’s immigration laws against certain young people” and listed five “criteria [that] should be satisfied before an individual is considered for an exercise of prose-cutorial discretion.”7 The Secretary further instructed that “[n]o individual should receive deferred action ... unless they [sic] first pass a background check and requests for relief ... are to be decided on a case by case basis.”8 Although stating that “[f]or individuals who are granted deferred action ..., [U.S. Citizenship and Immigration Services (‘USCIS’) ] shall accept applications to determine whether these individuals qualify for work authorization,” the DACA Memo purported to “confer[] no substantive right, immigration status or pathway to citizenship.”9 At least 1.2 million persons qualify for DACA, and approximately 636,000 applications were approved through 2014. Dist. Ct. Op., 86 F.Supp.3d at 609.

In November 2014, by what is termed the “DAPA Memo,” DHS expanded DACA by making millions more persons eligible for the program10 and extending “[t]he period for which DACA and the accompanying employment authorization is granted ... to three-year increments, rather than the current two-year increments.”11 The Secretary also “directed] USCIS to establish a process, similar to DACA,” known as DAPA, which applies to “individuals who ... have, [as of November 20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident” and meet five additional criteria.12 The Secretary stated that, although *148“[deferred action does not confer any form of legal status in this country, much less citizenship[,] it [does] mean[ ] that, for a specified period of time, an individual is permitted to be lawfully present in the United States.”13 Of the approximately 11.3 million illegal aliens14 in the United States, 4.3 million would be eligible for lawful presence pursuant to DAPA. Dist. Ct. Op., 86 F.Supp.3d at 612 n. 11, 670.

“Lawful presence” is not an enforceable right to remain in the United States and can be revoked at any time, but that classification nevertheless has significant legal consequences. Unlawfully present aliens are generally not eligible to receive federal public benefits, see 8 U.S.C. § 1611, or state and local public benefits unless the state, otherwise provides, see 8 U.S.C. § 1621.15 But as the government admits in its opening brief, persons granted lawful presence pursuant to DAPA are no longer “bar[red] ... from receiving social security retirement benefits, social security disability benefits, or health insurance under Part A of the Medicare program.”16 That follows from § 1611(b)(2) — (3), which provides that the exclusion of benefits in § 1611(a) “shall not apply to any benefits] payable under title[s] II [and XVIII] of the Social Security Act ... to an alien who is lawfully present in the United States as determined by the Attorney General....” (emphasis added). A lawfully present alien is still required to satisfy independent qualification criteria before receiving those benefits, but the grant of lawful presence removes the categorical b.ar and *149thereby makes otherwise ineligible persons eligible to qualify.

“Each person who applies for deferred action pursuant to the [DAPA] criteria ... shall also be eligible to apply for work authorization for the [renewable three-year] period of deferred action.” DAPA Memo at 4. The United States concedes that “[a]n alien with work authorization may obtain a Social Security Number,” “accrue quarters of covered employment,” and “correct wage records to add prior covered employment within approximately three years of the year in which the wages were earned or in limited circumstances thereafter.”17 The district court determined — and the government does not dispute — “that DAPA recipients would be eligible for earned income tax credits once they received a Social Security number.”18

As for state benefits, although “[a] State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a),” § 1621(d), Texas has chosen not to issue driver’s licenses to unlawfully present aliens.19 Texas maintains that documentation confirming lawful presence pursuant to DAPA would allow otherwise ineligible aliens to become eligible for state-subsidized driver’s licenses. Likewise, certain unemployment compensation “[b]enefits are not payable based on services performed by an alien unless the alien ... .was lawfully present for purposes of performing the services....”20 Texas contends that DAPA recipients would also become eligible for unemployment insurance.

B.

The states sued to prevent DAPA’s'im-plementation on three grounds. First, they asserted that DAPA violated the procedural requirements of the APA as a substantive rule that did not undergo the requisite notice-and-comment rulemaking. See 5 U.S.C. § 553. Second, the states claimed that DHS lacked the authority to implement the program even if it followed the correct rulemaking process, such that DAPA was substantively unlawful under the APA. See 5 U.S.C. § 706(2)(A)-(C). Third, the states urged that DAPA was an abrogation of the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. Const, art. II, § 3.

The district court held that Texas has standing. It concluded that the state would suffer a financial injury by having to issue driver’s licenses to DAPA beneficiaries at a loss. Dist. Ct. Op., 86 F.Supp.3d at 616-23. Alternatively, the court relied on a new theory it called “abdication standing”; Texas had standing because the United States has exclusive authority over immigration but has refused to act in that *150area. Id. at 636-43. The court also considered but ultimately did not accept the notions that Texas could sue as parens patriae on behalf of citizens facing economic competition from DAPA beneficiaries and that the state had standing based on the losses it suffers generally from illegal immigration. Id. at 625-36.

The court temporarily enjoined DAPA’s implementation after determining that Texas had shown a substantial likelihood of success on its claim that the program must undergo notice and comment. Id. at 677. Despite full briefing, the court did not rule on the “Plaintiffs’ likelihood of success on their substantive APA claim or their constitutional claims under the Take Care Clause/separation of powers doctrine.” Id. On appeal, the United States maintains that the states do not have standing or a right to judicial review and, alternatively, that DAPA is exempt from the notice-and-comment requirements. The government also contends that the injunction, including its nationwide scope, is improper as a matter of law.

II.

“We review a preliminary injunction for abuse of discretion.”21 A preliminary injunction should issue only if the states, as movants, establish

(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.22

“As to each element of the district court’s preliminary-injunction analysis ... findings of fact are subject to a clearly-erroneous standard of review, while conclusions of law are subject to broad review and will be reversed if incorrect.”23

III.

The government claims the states lack standing to challenge DAPA. As we will analyze, however, their standing is plain, based on the driver’s-license rationale,24 so we need not address the other possible grounds for standing.

As the parties invoking federal jurisdiction, the states have the burden of establishing standing. See Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1148, 185 L.Ed.2d 264 (2013). They must show an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Id. at 1147 (citation omitted). “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will *151prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” Massachusetts v. EPA, 549 U.S. 497, 518, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). “[T]he presence of one party with standing is sufficient to satisfy Article Ill’s case-or-controversy requirement.” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n. 2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006).

A.

We begin by considering whether the states are entitled to “special solicitude” in our standing inquiry under Massachusetts v. EPA They are.

The Court held that Massachusetts had standing to contest the EPA’s decision not to regulate greenhouse-gas emissions from new motor vehicles, which allegedly contributed to a rise in sea levels and a loss of the state’s coastal land. Massachusetts v. EPA, 549 U.S. at 526, 127 S.Ct. 1438. “It is of considerable relevance that the party seeking review here is a sovereign State and not ... a private individual” because “States are not normal litigants for the purposes of invoking federal jurisdiction.” Id. at 518,127 S.Ct. 1438.25

The Court identified two additional considerations that entitled Massachusetts “to special solicitude in [the Court’s] standing analysis.” Id., at 520, 127 S.Ct. 1438.26 First, the Clean Air Act created a procedural right to challenge the EPA’s decision:

The parties’ dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. That authorization is of critical importance to the standing inquiry: “Congress has the power to define injuries and articulate chains.of causation that will give rise to a case or controversy where none existed before.” “In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” We will not, therefore, “entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.”[27]

Second, the EPA’s decision affected Massachusetts’s “quasi-sovereign” interest in its territory:

When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot ne*152gotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.

These sovereign prerogatives are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to the “emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”28

Like Massachusetts, the instant plaintiffs — the states — “are not normal litigants for the purposes of invoking federal jurisdiction,” id. at 518, 127 S.Ct. 1438 and the same two additional factors are present. First, “[t]he parties’ dispute turns on the proper construction of a congressional statute,”29 the APA, which authorizes challenges to “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Similarly, the disagreement in Massachusetts v. EPA concerned the interpretation of the Clean Air Act, which provides for judicial review of “final action taken[ ] by the Administrator.” 42 U.S.C. § 7607(b)(1). Further, as we will explain, the states are within the zone of interests of the Immigration and Nationality Act (“INA”);30 they are not asking us to “entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.”31

In enacting the APA, Congress intended for those “suffering legal wrong because of agency action” to have judicial recourse,32 and the states fall well within that definition.33 The Clean Air Act’s review provision is more specific than the APA’s, but the latter is easily adequate to justify “special solicitude” here. The procedural right to challenge EPA decisions created by the Clean Air Act provided important support to Massachusetts because the challenge Massachusetts sought to bring — a challenge to an agency’s decision not to act — is traditionally the type for which it is most difficult to establish standing and a justiciable issue.34 Texas, by contrast, challenges DHS’s affirmative decision to set guidelines for granting lawful presence to a broad class of illegal aliens. Because the states here challenge DHS’s decision to act, rather than its decision to remain inactive, a procedural right similar to that created by the Clean Air Act is not necessary to support standing. See 5 U.S.C. § 704.

As we will show, DAPA would have a major effect on the states’ fiscs, causing *153millions of dollars of losses in Texas alone, and at least, in Texas, the causal chain is especially direct: DAPA would enable beneficiaries to apply for driver’s licenses, and many would do so, resulting in Texas’s injury.

Second, DAPA affects the states’ “quasi-sovereign” interests by imposing substantial pressure on them to change their laws, which provide for issuing driver’s licenses to some aliens and subsidizing those licenses.35 “[Sjtates have a sovereign interest in ‘the power to create and enforce a legal code.’ ”36 Pursuant to that interest, states may have standing based on (1) federal assertions of authority to regulate matters they believe they control,37 (2) federal preemption of state law,38 and (3) federal interference with the enforcement of state law,39 at least where “the state statute at issue regulatefs] behavior or provide[s] for the administration of a state program”40 and does not “simply purports ] to immunize [state] citizens from federal law.”41 Those intrusions.are analogous to pressure to change state law.42

Moreover, these plaintiff states’ interests are like Massachusetts’s in ways that implicate the same sovereignty concerns. When the states joined the union, they surrendered some of their sovereign prerogatives over immigration.43 They cannot establish their own classifications of aliens,44 just as “Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions [and] cannot negotiate an emissions treaty with China or India.”45 The states may not be able to discriminate against subsets of aliens in their driver’s license programs without running afoul of preemption or the Equal Protection Clause;46 similarly, “in some circumstances!, Massachusetts’s] exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre*154empted.”47 Both these plaintiff states and Massachusetts now rely on the federal government to protect their interests.48 These parallels confirm that DAPA affects the states’ “quasi-sovereign” interests.

The significant opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, — U.S. -, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015), announced shortly before oral argument herein, reinforces that conclusion. The Court held that the Arizona Legislature had standing to sue in response to a ballot initiative that removed its redistricting authority and vested it instead in an independent commission. Id. at 2665-66. The Court emphasized that the legislature was “an institutional plaintiff asserting an institutional injury” to what it believed was its constitutional power to regulate elections. Id. at 2664. So too are the states asserting institutional injury to their lawmaking authority. The Court also cited Massachusetts v. EPA as opining that the state in that case was “entitled to special solicitude in our standing analysis.” Id. at 2664-65 n. 10 (quoting Massachusetts v. EPA, 549 U.S. at 520, 127 S.Ct. 1438).

The United States suggests that three presumptions against standing apply here. The first is a presumption that a plaintiff lacks standing to challenge decisions to confer benefits on, or not to prosecute, a third party. But the cases the government cites for that proposition either did not involve standing;49 concerned only nonprosecution (as distinguished from both nonprosecution and the conferral of benefits);50 or merely reaffirmed that a plaintiff must satisfy the standing requirements.51

The second presumption is against justi-ciability m the immigration context. None of the cases the government cites involved standing52 and include only general language about the government’s authority over immigration; without a specific discussion of standing, they are of limited relevance.53

The third presumption is that “[t]he [Supreme] Court’s standing analysis ... has been ‘especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.’ ”54 We decide this appeal, however, without resolving the constitutional claim.

Therefore, the states are entitled to “special solicitude” in the standing inquiry. We stress that our decision is limited to these facts. In particular, the direct, substantial pressure directed at the states and *155the fact that they have surrendered some of their control over immigration to the federal government mean this case is sufficiently similar to Massachusetts v. EPA, but pressure to change state law may not be enough — by itself — in other situations.

B.

At least one state — Texas—has satisfied the first standing requirement by demonstrating that it would incur significant costs in issuing driver’s licenses to DAPA beneficiaries. Under current state law, licenses issued to beneficiaries would necessarily, be at a financial loss. The Department of Public Safety “shall issue” a license to a qualified applicant. Tex. Transp. Code § 521.181. A noncitizen “must present ... documentation issued by the appropriate United States agency that authorizes the applicant to be'in the United States.” Id. § 521.142(a).

If permitted to go into effect, DAPA would enable at least 500,000 illegal aliens in Texas55 to satisfy that requirement with proof of lawful presence56 or employment authorization.57 Texas subsidizes its licenses and would lose a minimum of $130.89 on each one it issued to a DAPA beneficiary.58 Even a modest estimate would put the loss at “several million dollars.” Dist. Ct. Op., 86 F.Supp.3d at 617.

Instead of disputing those figures, the United States claims that the costs would be offset by other benefits to the state. It theorizes that, because DAPA beneficiaries would be eligible for licenses, they would register their vehicles, generating income for the state, and buy auto insurance, reducing the expenses associated with uninsured motorists. The government suggests employment authorization would lead to increased tax revenue and decreased reliance on social services.

Even if the government is correct, that does not negate Texas’s injury, because we consider only those offsetting benefits that are of the same type and arise from the same transaction as the costs.59 “Once injury is shown, no attempt *156is made to ask whether the injury is outweighed by benefits the plaintiff has enjoyed from'the relationship with the defendant. Standing is recognized to complain that some particular aspect of the relationship is unlawful and has caused injury.”60 “Our standing analysis is not an accounting exercise....”61

The one case in which we concluded that the costs of a challenged program were offset by the benefits involved a much tighter nexus. In Henderson, 287 F.3d at 379-81, we determined that taxpayers lacked standing to challenge a Louisiana law authorizing a license plate bearing a pro-life message, reasoning that the plaintiffs had not shown that the program would use their tax dollars, because the extra fees paid by drivers who purchased the plates could have covered the associated expenses. The costs and benefits arose out of the same transaction, so the plaintiffs had not demonstrated injury.

Here, none of the benefits the government identifies is sufficiently connected to the costs to qualify as an offset. The only benefits that are conceivably relevant are the increase in vehicle registration and the decrease in uninsured motorists, but even those are based on the independent decisions of DAPA beneficiaries and are not a direct result of the issuance of licenses. Analogously, the Third Circuit held that sports leagues had standing to challenge New Jersey’s decision to license sports gambling, explaining that damage to the leagues’ reputations was a cognizable, injury despite evidence that more people would have watched sports had betting been allowed. NCAA, 730 F.3d at 222-24. The diminished public perception of the leagues and the greater interest in sports were attributable to the licensing plan but did not arise out of the same transaction and so could not be compared.

In the instant case, the states have alleged an injury, and the government predicts that the later decisions of DAPA beneficiaries would produce offsetting benefits. Weighing those costs and benefits is precisely the type of “accounting exercise,” id. at 223, in which we cannot engage. Texas has shown injury.

C.

Texas has satisfied the second standing requirement by establishing that its injury is “fairly traceable” to DAPA. It is undisputed that DAPA would enable beneficiaries to apply for driver’s licenses, and there is little doubt that many would do so because driving is a practical necessity in most of the state.

The United States urges that Texas’s injury is not cognizable, because the state could avoid injury by not issuing licenses to illegal aliens or by not subsidizing its licenses., Although Texas could avoid financial loss by requiring applicants to pay the full costs of licenses, it could not avoid injury altogether. “[S]tates have a sovereign interest in ‘the power to create and enforce a legal code,’ ”62 and the possibility that a plaintiff could avoid injury *157by incurring other costs does not negate standing.63

Indeed, treating the availability of changing state law as a bar to standing would deprive states of judicial recourse for many bona fide harms. For instance, under that theory, federal preemption of state law could never be an injury, because a state could always change its law to avoid preemption. But courts have often held that states have standing based on preemption.64 And states could offset almost any financial loss by raising taxes or fees. The existence of that alternative does not mean they lack standing.

Relying primarily on Pennsylvania v. New Jersey, 426 U.S. 660, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976) (per curiam), the United States maintains that Texas’s injury is self-inflicted because the state voluntarily chose to base its driver’s license policies on federal immigration law. In Pennsylvania v. New Jersey, id. at 664, 666, 96 S.Ct. 2333 the Court held that several states lacked standing to contest other states’ laws taxing a portion of nonresidents’ incomes. The plaintiff states alleged that the defendant states’ taxes injured them because the plaintiffs gave their residents credits for taxes paid to other states, so the defendants’ taxes increased the amount of those credits, causing the plaintiffs to lose revenue. Id. at 663, 96 S.Ct. 2333. The Court flatly rejected that theory of standing:

In neither of the suits at bar has the defendant State inflicted any injury upon the plaintiff States through the imposition of the [challenged taxes]. The injuries to the plaintiffs’ fiscs were self-inflicted, resulting from decisions by their respective state legislatures. Nothing required Maine, Massachusetts, and Vermont to extend a tax credit to their residents for income taxes paid to New Hampshire, and nothing prevents Pennsylvania from withdrawing that credit for taxes paid to New Jersey. No State can be heard to complain about damage inflicted by its own hand.

Id. at 664, 96 S.Ct. 2333.

The more recent decision in Wyoming v. Oklahoma, 502 U.S. 437, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992), also informs our analysis. There, the Court held that Wyoming had standing to challenge an Oklahoma law requiring some Oklahoma power plants to burn at least 10% Oklahoma-mined coal. Id. at 447, 112 S.Ct. 789. The Court explained that Wyoming taxed the extraction of coal in the state and that Oklahoma’s law reduced demand for that coal and Wyoming’s -corresponding revenue. Id. The Court emphasized that the case involved an “undisputed” “direct injury in the form of a loss of specific tax revenues.” Id. at 448, 112 S.Ct. 789. It rejected Oklahoma’s contention “that Wyoming is not itself engaged in the commerce affected, is not affected as a consumer, and thus has not suffered the type of direct injury cognizable in a Commerce Clause action,” id., *158concluding that Wyoming’s loss of revenue was sufficient, id. at 448-50, 112 S.Ct. 789. The Court did not cite Pennsylvania v. New Jersey or discuss the theory that Wyoming’s injury was self-inflicted.

Both the Pennsylvania v. New Jersey plaintiffs and Wyoming structured then-laws in ways that meant their finances would have been affected'by changes in other states’ laws. Because the tax credits in Pennsylvania v. New Jersey were based on taxes paid to other states, any tax increases in other states would have decreased the plaintiffs’ revenues, and any tax cuts would have had the opposite effect. Analogously, Wyoming’s tax was based on the amount of coal extracted there, so any policies in other states that decreased demand for that coal would- have diminished Wyoming’s revenues, and any policies that bolstered demand would have had the opposite effect.

In other words, the schemes in both cases made the plaintiff states’ finances dependent on those of third parties — either resident taxpayers or coal companies — which in turn were affected by other states’ laws. The issues in Pennsylvania v. New Jersey and Wyoming v. Oklahoma were thus similar to the question here, but the Court announced different results. The two cases are readily distinguishable, however, and, based on two considerations, Wyoming v. Oklahoma directs our decision.

First, Texas and Wyoming sued in response to major changes in the defendant states’ policies. Texas sued after the United States had announced DAPA, which could make at least 500,000 illegal aliens eligible for driver’s licenses and cause millions of dollars of losses; Wyoming sued after Oklahoma had enacted a law that cost Wyoming over $1 million in tax revenues. See id. at 445-46 & n. 6, 112 S.Ct. 789. Conversely, the Pennsylvania v. New Jersey plaintiffs sued not because of a change in the defendant states’ laws but because they believed that Austin v. New Hampshire, 420 U.S. 656, 95 S.Ct. 1191, 48 L.Ed.2d 530 (1975), had rendered the defendants’ laws unconstitutional. See Pennsylvania v. New Jersey, 426 U.S. at 661— 63, 96 S.Ct. 2333. The fact that Texas sued in response to a significant change-in the defendants’ policies shows that its injury is not self-inflicted.

Second, the plaintiffs’ options for accomplishing their policy goals were more limited in this case and in Wyoming v. Oklahoma than in Pennsylvania v. New Jersey. Texas seeks to issue licenses only to those lawfully present in the United States, and the state is required to use federal immigration classifications to do so. See Villas at Parkside Partners, 726 F.3d at 536. Likewise, Wyoming sought to tax the extraction of coal and had no way to avoid being affected by other states’ laws that reduced demand for that coal.65

*159By way of contrast, the plaintiff states in Pennsylvania v. New Jersey could have achieved their policy goal in myriad ways, such as basing their tax credits on residents’ out-of-state incomes instead of on taxes actually paid to other states. That alternative would have achieved those plaintiffs’ goal of allowing their residents to avoid double taxation of their out-of-state incomes, but it would not have tied the plaintiffs’ finances to other states’ laws. The fact that Texas had no similar option means its injury is not self-inflicted.

The decision in Amnesty International supports this conclusion: The Court held that the plaintiffs lacked standing to challenge a provision of the Foreign Intelligence Surveillance Act authorizing the interception of certain electronic communications. Amnesty Int’l, 133 S.Ct. at 1155. The plaintiffs alleged that they had been forced to take costly steps to avoid surveillance, such as traveling to meet in person and not discussing certain topics by email or phone. Id. at 1150-51. The Court held that any such injuries were self-inflicted, id. at 1152-53, reasoning that plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Id. at 1151 (citing Pennsylvania v. New Jersey, 426 U.S. at 664, 96 S.Ct. 2333). “If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.” Id.

By way of contrast, there is no allegation that Texas passed its driver’s license law to manufacture standing. The legislature enacted the law one year before DACA and three years before DAPA was announced,66 and there is no hint that the state anticipated a change in immigration policy — much less a change as sweeping and dramatic as DAPA. Despite the dissent’s bold suggestion that Texas’s license-plate-cost injury “is entirely manufactured by Plaintiffs for this case,” Dissent at 195, the injury is not self-inflicted.

In addition to its notion that Texas could avoid injury, the government theorizes that Texas’s injury is not fairly traceable to DAPA because it is merely an incidental and attenuated consequence of the program. But Massachusetts v. EPA establishes that the causal connection is adequate. Texas is entitled to the same “special solicitude” as was Massachusetts, and the causal link is even' closer here.

For Texas to incur injury, DAPA beneficiaries would have to apply for driver’s licenses as a consequence of DHS’s action, and it is apparent that many would do so. For Massachusetts’s injury to have occurred, individuals would have had to drive *160less fuel-efficient cars as a result of the EPA’s decision, and that would have had to contribute meaningfully to a rise in sea levels, causing the erosion of the state’s shoreline. See Massachusetts v. EPA,