State of TEXAS; State of Alabama; State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Louisiana; State of Montana; State of Nebraska; State of South Carolina; State of South Dakota; State of Utah; State Of West Virginia; State Of Wisconsin; Paul R. Lepage, Governor, State of Maine; Patrick L. McCrory, Governor, State of North Carolina; C.L. "Butch" Otter, Governor, State of Idaho; Phil Bryant, Governor, State of Mississippi; State of North Dakota; State of Ohio; State of Oklahoma; State of Florida; State of Arizona; State of Arkansas; Attorney General Bill Schuette; State of Nevada; State of Tennessee, Plaintiffs-Appellees, v. UNITED STATES of America; Jeh Charles Johnson, Secretary, Department of Homeland Security; R. Gil Kerlikowske, Commissioner of U.S. Customs and Border Protection; Ronald D. Vitiello, Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection; Sarah R. Saldana, Director of U.S. Immigration and Customs Enforcement; Leon Rodriguez, Director of U.S. Citizenship and Immigration Services, Defendants-Appellants, 809 F.3d 134

JERRY E. SMITH, Circuit Judge: The United States 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”) challenged DAPA under the Administrative Procedure Act (“APA”) and the Take Care Clause of the Constitution; 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). 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. I. A. In June 2012, the Department of Homeland Security (“DHS”) implemented the -Deferred Action for Childhood Arrivals program (“DACA”).

In the DACA Memo to 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.” 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.” 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.” 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 program 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.” 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.

The Secretary stated that, although “[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.” Of the approximately 11.3 million illegal aliens 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.

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.” 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 thereby 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.” 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.” 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.

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....” 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 area. 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.” 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. “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.” 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, 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 prompt 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. 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.

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.”[] 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 negotiate 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.” 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,” 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”); they are not asking us to “entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.” In enacting the APA, Congress intended for those “suffering legal wrong because of agency action” to have judicial recourse, and the states fall well within that definition.

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. 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 millions 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. “[Sjtates have a sovereign interest in ‘the power to create and enforce a legal code.’ ” Pursuant to that interest, states may have standing based on (1) federal assertions of authority to regulate matters they believe they control, (2) federal preemption of state law, and (3) federal interference with the enforcement of state law, at least where “the state statute at issue regulatefs] behavior or provide[s] for the administration of a state program” and does not “simply purports ] to immunize [state] citizens from federal law.” Those intrusions.are analogous to pressure to change state law.

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.

They cannot establish their own classifications of aliens, just as “Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions [and] cannot negotiate an emissions treaty with China or India.” 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; similarly, “in some circumstances!, Massachusetts’s] exercise of its police powers to reduce in-state motor-vehicle emissions might well be preempted.” Both these plaintiff states and Massachusetts now rely on the federal government to protect their interests.

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; concerned only nonprosecution (as distinguished from both nonprosecution and the conferral of benefits); or merely reaffirmed that a plaintiff must satisfy the standing requirements. The second presumption is against justi-ciability m the immigration context.

None of the cases the government cites involved standing and include only general language about the government’s authority over immigration; without a specific discussion of standing, they are of limited relevance. 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.’ ” 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 the 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 Texas to satisfy that requirement with proof of lawful presence or employment authorization. Texas subsidizes its licenses and would lose a minimum of $130.89 on each one it issued to a DAPA beneficiary. 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. “Once injury is shown, no attempt is 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.” “Our standing analysis is not an accounting exercise....” 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,’ ” and the possibility that a plaintiff could avoid injury by incurring other costs does not negate standing.

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. 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., concluding 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. By 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, 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 less 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, 549 U.S. at 523, 127 S.Ct. 1438. There was some uncertainty about whether the EPA’s inaction was a substantial cause of the state’s harm, considering the many other emissions sources involved.

But the Court held that Massachusetts had satisfied the causation requirement because the possibility that the effect of the EPA’s decision was minor did not negate standing, and the evidence showed that the effect was significant in any event. Id. at 524-25, 127 S.Ct. 1438. This case raises even less doubt about causation, so the result is the same. The matters in which the Supreme Court held that an injury was not fairly traceable to the challenged law reinforce this conclusion.

In some of them, the independent act of a third party was a necessary condition of the harm’s occurrence, and it was uncertain whether the third party would take the required step. Not so here. DAPA beneficiaries have strong incentives to obtain driver’s licenses, and it is hardly speculative that many would do so if they became eligible. In other cases, in which there was insufficient proof of causation, several factors potentially contributed to the injury, and the challenged policy likely played a minor role. Far from playing an insignificant role, DAPA would be the primary cause and likely the only one.

Without the program, there would be little risk of a dramatic increase in the costs of the driver’s-license program. This case is far removed from those in which the Supreme Court has held an injury to be too incidental or attenuated. Texas’s injury is fairly traceable to DAPA. D. Texas has satisfied the third standing requirement, redressability. Enjoining DAPA based on the procedural APA claim could prompt DHS to reconsider the program, which is all a plaintiff must show when asserting a procedural right. See id. at 518, 127 S.Ct. 1488.

And enjoining DAPA based on the substantive APA claim would prevent Texas’s injury altogether. E. The United States submits that Texas’s theory of standing is flawed because it has no principled limit. In the government’s view, if Texas can challenge DAPA, it could also sue to block a grant of asylum to a single alien or any federal policy that adversely affects the state, such as an IRS revenue ruling that decreases a corporation’s federal taxable income and corresponding state franchise-tax liability. The flaw in the government’s reasoning is that Massachusetts v.

EPA entailed similar risks, but the Court still held that Massachusetts had standing. Under that decision, Massachusetts conceivably could challenge the government’s decision to buy a car with poor fuel efficiency because the vehicle could contribute to global warming. The state might be able to contest any federal action that prompts more travel. Or it potentially could challenge any change in federal policy that indirectly results in greenhouse-gas emissions, such as a trade-promotion program that leads to more shipping. One of the dissenting Justices in Massachusetts v.

EPA criticized the decision on that ground, but the majority found those concerns unpersuasive, just as they are here. After Massachusetts v. EPA, the answer to those criticisms is that there are other ways to cabin policy disagreements masquerading as legal claims. First, a state that has standing still must have a cause of action. Even the APA — potentially the most versatile tool available to an enterprising state — imposes a number of limitations.

A state must, be defending concerns that are “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” It is unclear whether a state dissatisfied with an IRS revenue ruling would be defending such an interest. Moreover, judicial review is unavailable where the statute precludes it or the matter is committed to agency discretion. 5 U.S.C. § 701(a). Because of those restrictions, a state would have limited ability to challenge many asylum determinations. See 8 U.S.C. § 1252(b)(4)(D).

Further, numerous policies that adversely affect states either are not rules at all or are exempt from the notice-and-comment requirements. See generally 5 U.S.C. § 553. Second, the standing requirements would preclude much of the litigation the government describes. For example, it would be difficult to establish standing to challenge a grant of asylum to a single alien based on the driver’s-license theory.

The state must allege an injury that has already occurred or is “certainly impending”; it is easier to demonstrate that some DAPA beneficiaries would apply for licenses than it is to establish that a particular alien would. And causation could be a substantial obstacle. Although the district court’s calculation of Texas’s loss from DAPA was based largely on the need to hire employees, purchase equipment, and obtain office space, those steps would be unnecessary to license one additional person.

Third, our determination that Texas has standing is based in part on the “special solicitude” we afford it under Massachusetts v. EPA as reinforced by Arizona State Legislature. To be entitled to that presumption, a state likely must be exercising a procedural right created by Congress and protecting a “quasi-sovereign” interest. See Massachusetts v. EPA 549 U.S. at 520, 127 S.Ct. 1438. Those factors will seldom exist. For instance, a grant of asylum to a single alien would impose little pressure to change state law.

Without “special solicitude,” it would be difficult for a state to establish standing, a heavy burden in many of the government’s hypothet-icals. Fourth, as a practical matter, it is pure speculation that a state would sue about matters such as an IRS revenue ruling. Though not dispositive of the issue, the absence of any indication that such lawsuits will occur suggests the government’s parade of horribles is unfounded, and its concerns about the possible future effects of Texas’s theory of standing do not alter our conclusion. The states have standing. IV.

Because the states are suing under the APA, they “must satisfy not only

Article Ill’s standing requirements, but an additional test: The interest [they] assert[ ] must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that [they] say[] was violated.” That “test ... ‘is not meant to be especially demanding’ ” and is applied “in keeping with Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable.’ ” The Supreme Court “ha[s] always conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff,” and “[w]e do not require any ‘indication of congressional purpose to benefit the would-be plaintiff.’ ” “The test forecloses suit only when a plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’ ” The interests the states seek to protect fall within the zone of interests of the INA. “The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States,” which “bear[ ] many of the consequences of unlawful immigration.” Arizona v.

United States, 132 S.Ct. at 2500. Reflecting a concern that “aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates,” 8 U.S.C. § 1601, “Congress deemed some unlawfully present aliens ineligible for certain state and local public benefits unless the state explicitly provides otherwise.” With limited exceptions, unlawfully present aliens are “not eligible for any State or local public benefit.” 8 U.S.C. § 1621(a).

Contrary to the government’s assertion, Texas satisfies the zone-of-interests test not on account of a generalized grievance but instead as a result of the same injury that gives it

Article III standing — Congress has explicitly allowed states to deny public benefits to illegal aliens. Relying on that guarantee, Texas seeks to participate in notice and comment before the Secretary changes the immigration classification of millions of illegal aliens in a way that forces the state to the Hobson’s choice of spending millions of dollars to subsidize driver’s licenses or changing its statutes. V.

The government maintains that judicial review is precluded even if the states are proper plaintiffs. “Any person ‘adversely affected or aggrieved’ by agency action .. is entitled to ‘judicial review thereof,’ as long as the action is a ‘final agency action for which there is no other adequate remedy in a court.’ ” “But before any review at all may be had, a party must first clear the hurdle of 5 U.S.C. § 701(a). That

section provides that the

chapter on judicial review ‘applies, according to the provisions thereof, except to the extent that— (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.’ ” Chaney, 470 U.S. at 828, 105 S.Ct. 1649. “[T]here is a ‘well-settled presumption favoring

interpretations of statutes that allow judicial review of administrative action,’ and we will accordingly find an intent to preclude such review only .if presented with ‘clear and convincing evidence.’ ” The “ ‘strong presumption’ favoring judicial review of administrative action ... is rebuttable: It fails when a statute’s language or structure demonstrates that Congress wanted an agency to police its own conduct.” Mach Mining, LLC v. EEOC, — U.S. -, 135 S.Ct. 1645, 1651, 191 L.Ed.2d 607 (2015).

Establishing unreviewability is a “heavy burden,” and “where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). “Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Id. at 345, 104 S.Ct. 2450.

The United States relies on 8 U.S.C. § 1252(

g) for the proposition that the INA expressly prohibits judicial review. But the government’s broad reading is contrary to Reno v. American-Arab Anti-Discrimination Committee (“AAADC”), 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), in which the Court rejected “the unexamined assumption that § 1252(

g) covers the universe of deportation claims — that it is a sort' of ‘zipper’ clause that says ‘no judicial review in deportation cases unless this

section provides judicial review.’ ” The Court emphasized that § 1252(

g) is not “a general jurisdictional limitation,” but rather “applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’ ” None of those actions is at issue here— the states’ claims do not arise from the Secretary’s “decision or action ... to commence proceedings, adjudicate cases, or execute removal orders against any alien,” § 1252(g); instead, they stem from his decision to grant lawful presence to millions of illegal aliens on a class-wide basis.

Further, the states are not bringing a “cause or claim by or on behalf of any alien” — they assert their own right to the APA’s procedural protections. Id. Congress has expressly limited or precluded judicial review of many immigration decisions, including some that are made in the Secretary’s “sole and unreviewable discretion,” but DAPA is not one of them.

Judicial review of DAPA is consistent with the protections Congress affords to states that decline to provide public benefits to illegal aliens. “The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” but, through § 1621, Congress has sought to protect states from “bear[ing] many of the consequences of unlawful immigration.” Texas avails itself of some of those protections through

Section 521.142(

a) of the Texas Transportation Code, which allows the state to avoid the costs of issuing driver’s licenses to illegal aliens. If 500,000 unlawfully present aliens residing in Texas were reclassified as lawfully present pursuant to DAPA, they would become eligible for driver’s licenses at a subsidized fee. Congress did not intend to make immune from judicial review an agency action that reclassifies millions of illegal aliens in a way that imposes substantial costs on states that have relied on the protections conferred by § 1621.

The states contend that DAPA is being implemented without discretion to deny applications that meet the objective criteria set forth in the DAPA Memo, and under AAADC, judicial review could be available if there is an indication that deferred-action decisions are not made on a case-by-case basis. In AAADC, a group of aliens “ehallenge[d] ... the Attorney General’s decision to ‘commence [deportation] proceedings’ against them,” and the Court held that § 1252(

g) squarely deprived it of jurisdiction. AAADC, 525 U.S. at 487, 119 S.Ct. 936. The Court noted that § 1252(

g) codified the Secretary’s discretion to decline “the initiation or prosecution of various stages in the deportation process,” id. at 483, 119 S.Ct. 936 and the Court observed that “[p]rior to 1997, deferred-action decisions were governed by internal [INS] guidelines which considered [a variety of factors],” id. at 484 n. 8, 119 S.Ct. 936. Although those guidelines “were apparently rescinded,” the Court observed that “there [was] no indication that the INS has ceased making this sort of determination on a case-by-case basis.” Id.

But the government has not rebutted the strong presumption of reviewability with clear and convincing evidence that, inter alia, it is making case-by-case decisions here. A. Title 5 § 701(a)(2) “precluded] judicial review of certain categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion.’ ” Lincoln v. Vigil, 508 U.S. 182, 191, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (citation omitted). For example, “an agency’s decision not to institute enforcement proceedings [is] presumptively unreviewable under § 701(a)(2).” Id. (citation omitted).

Likewise, “[t]here is no judicial review of agency action ‘where statutes [granting agency discretion] are drawn in such broad terms that in a given case there is no law to apply,’ ” such as “[t]he allocation of funds from a lump-sum appropriation.” Vigil, 508 U.S. at 192, 113 S.Ct. 2024. 1.

The Secretary has broad discretion to “decide whether it makes sense to pursue removal at all” and urges that deferred action — a grant of “lawful presence” and subsequent eligibility for otherwise unavailable benefits — is a presumptively unreviewable exercise of pros-ecutorial discretion. “The general exception to reviewability provided by § 701(a)(2) for action ‘committed to agency discretion’ remains a narrow one, but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise.” Where, however, “an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner.

The action at least can be reviewed to determine whether the agency exceeded its statutory powers.” Part of DAPA involves the Secretary’s decision — at least temporarily — not to enforce the immigration laws as to a class of what he deems to be low-priority illegal aliens. But importantly, the states have not challenged the priority 'levels he has established, and neither the preliminary injunction nor compliance with the APA requires the Secretary to remove any alien or to alter his enforcement priorities.

Deferred action, however, is much more than nonenforcement: It would affirmatively confer “lawful presence” and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already .explained) eligibility for federal benefits — for example, under title II and XVIII of the Social Security Act — and state benefits — for example, driver’s licenses and unemployment insurance— that would not otherwise be available to illegal aliens.

The United States maintains that DAPA is presumptively unreviewable prosecutorial discretion because “ ‘lawful presence’ is not a status and is not something that the alien can legally enforce; the agency can alter or revoke it at any time.” The government further contends that “[e]very decision under [DAPA] to defer enforcement action against an alien necessarily entails allowing the individual to be lawfully present....

Deferred action under DAPA and ‘lawful presence’ during that limited period are thus two sides of the same coin.” Revocability, however, is not the touchstone for whether agency is action is reviewable. Likewise, to be reviewable agency action, DAPA need not directly confer public benefits — removing a categorical bar on receipt of those benefits and thereby making a class of persons newly eligible for them “provides a focus for judicial review.” Chaney, 470 U.S. at 882, 105 S.Ct. 1649.

Moreover, if deferred action meant only nonprosecution, it would not necessarily result in lawful presence. “[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’ ” Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change. Regardless of whether the Secretary has the authority to offer lawful presence and employment authorization in exchange for participation in DAPA, his doing so is not shielded from judicial review as

an act of prosecutorial discretion. This evident conclusion is reinforced by the Supreme Court’s description, in AAADC, of deferred action as a nonprose-cution decision: To ameliorate a harsh and unjust outcome, the INS may decline to institute 'proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action ....

Approval of deferred action status means that ... no action will thereafter he taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated.[] In their procedural claim, the states do not challenge the Secretary’s decision to “decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation,” nor does deferred action mean merely that “no action will thereafter be taken to proceed against an apparently deportable alien.” Under DAPA, “[d]eferred action ... means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,” a change in designation that confers eligibility for substantial federal and state benefits on a class of otherwise ineligible aliens.

Thus, DAPA “provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner.

The action at least can be reviewed to determine whether the agency exceeded its statutory powers.” 2. “The mere fact that a statute grants broad discretion to an agency does not render the agency’s decisions completely unreviewable under the ‘committed to agency discretion by law’ exception unless the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised.” In Perales, 903 F.2d at 1051, we held that the INS’s decision not to grant pre-hearing voluntary departures and work authorizations to a group of aliens was committed to agency discretion because “[t]here are no statutory standards for the court to apply....

There is nothing in the [INA] expressly providing for the grant of employment authorization or pre-hearing voluntary departure to [the plaintiff class of aliens].” Although we stated that “the agency’s decision to grant voluntary departure and work authorization has been committed to agency discretion by law,” id. at 1045, that case involved a challenge to the denial of voluntary departure and work authorization.

Under those facts, Perales faithfully applied Chaney’s presumption against judicial review of agency inaction “because there are no meaningful standards against which to judge the agency’s exercise of discretion.” Id. at 1047.

But where there is affirmative agency action — as with DAPA’s issuance of lawful presence and employment authorization — and in light of the INA’s intricate regulatory scheme for changing immigration classifications and issuing employment authorization, “[t]he action at least can be reviewed to determine whether the agency exceeded its statutory powers.” Chaney, 470 U.S. at 832, 105 S.Ct. 1649. The United States asserts that 8 C.F.R. § 274a.l2(c)(14), rather than DAPA, makes aliens granted deferred action eligible for work authorizations.

But if DAPA’s deferred-action program must be subjected to notice-and-comment, then work authorizations may not be validly issued pursuant to that subsection until that process has been completed and aliens have been “granted deferred action.” § 274a.l2(c)(14). Moreover, the government’s limitless reading of that subsection — allowing for the issuance of employment authorizations to any class of illegal aliens whom DHS declines to remove — is beyond the scope of what the INA can reasonably be interpreted to authorize, as we will explain.

And even assuming, arguendo, that the government does have that power, Texas is also injured by the grant of lawful presence itself, which makes DAPA recipients newly eligible for state-subsidized driver’s licenses. As an affirmative agency action with meaningful standards against which to judge it, DAPA is not an unreviewable “agency action ... committed to agency discretion by law.” § 701(a)(2). B.

The government urges that this case is not justiciable even though “ ‘a federal court’s ‘obligation’ ’ to hear and decide cases within its jurisdiction is ‘virtually unflagging.’ ” We decline to depart from that well-established principle.

And in invoking our jurisdiction, the states do not demand that the federal government “control immigration and ... pay for the consequences of federal immigration policy” or “prevent illegal immigration.” Neither the preliminary injunction nor compliance with the APA requires the Secretary to enforce the immigration laws or change his priorities for removal, which have expressly not been challenged. Nor have the states “merely invited us to substitute our judgment for that of Congress in deciding which aliens shall be eligible to participate in [a benefits program].” Diaz, 426 U.S. at 84, 96 S.Ct. 1883.

DAPA was enjoined because the states seek an opportunity to be heard through notice and comment, not to have the judiciary formulate or rewrite immigration policy. “Consultation between federal and state officials is an important feature of the immigration system,” and the notice-and-comment process, which “is designed to ensure that affected parties have an opportunity to participate in and influence agency decision making,” facilitates that communication. At its core, this case is about the Secretary’s decision to change the immigration classification of millions of illegal aliens on a class-wide basis.

The states properly maintain that DAPA’s grant of lawful presence and accompanying eligibility for benefits is a substantive rule that must go through notice and comment, before it imposes substantial costs on them, and that DAPA is substantively contrary to law. The federal courts are fully capable of adjudicating those disputes. VI. Because the interests that Texas seeks to protect are within the INA’s zone of interests, and judicial review is available, we address whether Texas has established a substantial likelihood of success on its claim that DAPA must be submitted for notice and comment.

The United States urges that DAPA is exempt as an “interpretative rule[ ], general statement ] of policy, or rule[] of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A). “In contrast, if a rule is ‘substantive,’ the exemption is inapplicable, and the full panoply of notice-and-comment requirements must be adhered to scrupulously. The ‘APA’s notice and comment exemptions must be narrowly construed.’ ” A. The government advances the notion that DAPA is exempt from notice and comment as a policy statement.

We evaluate two criteria to distinguish policy statements from substantive rules: whether the rule (1) “impose[s] any rights and obligations” and (2) “genuinely leaves the agency and its decision-makers free to exercise discretion.” There is some overlap in the analysis of those prongs “because ‘[i]f a statement denies the deci-sionmaker discretion in the area of its coverage ... then the statement is binding, and creates rights or obligations.’ ” “While mindful but suspicious of the agency’s own characterization, we ... focus[] primarily on whether the rule has binding effect on agency discretion or severely restricts it.” “[A]n agency pronouncement will be considered binding as a practical matter if it either appears on its face to be binding, or is applied by the agency in a way that indicates it is binding.” Gen.

Elec., 290 F.3d at 383 (citation omitted). Although the DAPA Memo facially purports to confer discretion, the dis-trict court determined that “[n]othing about DAPA ‘genuinely leaves the agency and its [employees] free to exercise discretion,' ” a factual finding that we review for clear error. That finding was partly informed by analysis of the implementation of DACA, the precursor to DAPA.

Like the DAPA Memo, the DACA Memo instructed agencies to review applications on a case-by-case basis and exercise discretion, but the district court found that those statements were “merely pretext” because only about 5% of the 723,-000 applications accepted for evaluation had been denied, and “[djespite a request by the [district] [c]ourt, the [government's counsel did not provide the number, if any, of requests that were denied [for discretionary reasons] even though the applicant met the DACA criteria....” The finding of pretext was also based on a declaration by Kenneth Palinkas, the president of the union representing the USCIS employees processing the DACA applications, that “DHS management has taken multiple steps to ensure that DACA applications are simply rubberstamped if the applicants meet the necessary criteria”; DACA’s Operating Procedures, which “contain[ ] nearly 150 pages of specific instructions for granting or denying deferred action”; and some mandatory language in the DAPA Memo itself..

In denying the government’s motion for a stay of the injunction, the district court further noted that the President had made public statements suggesting that in reviewing applications pursuant to DAPA, DHS officials who “don’t follow the policy” will face “consequences,” and “they’ve got a problem.” The DACA and DAPA Memos purport to grant discretion, but a rule can be binding if it is “applied by the agency in a way that indicates it is binding,” and there was evidence from DACA’s implementation that DAPA’s discretionary language was pretextual.

For a number of reasons, any extrapolation from DACA must be done carefully. First, DACA involved issuing benefits to self-selecting applicants, and persons who expected to be denied relief would seem unlikely to apply. But the issue of self-selection is partially mitigated by the finding that “the [g]overnment has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action (absent extraordinary circumstances).” Dist. Ct. Op., 86 F.Supp.3d at 663 (footnote omitted).

Second, DACA and DAPA are not identical: Eligibility for DACA was restricted to a younger and less numerous population, which suggests that DACA applicants are less likely to have backgrounds that would warrant a discretionary denial. Further, the DAPA Memo contains additional discretionary criteria: Applicants must not be “an enforcement priority as reflected in the [Prioritization Memo]; and [must] present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” DAPA Memo at 4.

But despite those differences, there are important similarities: The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,” id. (emphasis added), and there was evidence that the DACA application process itself did not allow for discretion, regardless of the rates of approval and denial. Instead of relying solely on the lack of evidence that any DACA application had been denied for discretionary reasons, the district court found pretext for additional reasons.

It observed that “the ‘Operating Procedures’ for implementation of DACA contains nearly 150 pages of specific instructions for granting or denying deferred action to applicants” and that “[denials are recorded in a ‘check the box’ standardized form, for which USCIS personnel are provided templates. Certain denials of DAPA must be sent to a supervisor for approval!, and] there is no option for granting DAPA to an individual who does not meet each criterion.” Dist. Ct. Op., 86 F.Supp.3d at 669 (footnotes omitted).

The finding was also based on the declaration from Palinkas that, as with DACA, the DAPA application process itself would preclude discretion: “[R]outing DAPA applications through service centers instead of field offices ... created an application process that bypasses traditional in-person investigatory interviews with trained USCIS adjudications officers” and “prevents officers from conducting case-by-case investigations, undermines officers’ abilities to detect fraud and national-security risks, and ensures that applications will be rubber-stamped.” See id. at 609-10 (citing that declaration).

As the government points out, there was conflicting evidence on the degree to which DACA allowed for discretion. Donald Neufeld, the Associate Director for Service Center Operations for USCIS, declared that “deferred action under DACA is a ... case-specific process” that “necessarily involves the exercise of the agency’s discretion,” and he purported to identify several instances of discretionary denials.

Although Neufeld stated that approximately 200,000 requests for additional evidence had been made upon receipt of DACA applications, the government does not know the number, if any, that related to discretionary factors rather than the objective criteria. Similarly, the government did not provide the number of cases that service-center officials referred to field offices for interviews.

Although the district court did not make a formal credibility determination or hold an evidentiary hearing on the conflicting statements by Neufeld and Palinkas, the record indicates that it did not view the Neufeld declaration as creating a material factual dispute. Further, the government did not seek an evidentiary hearing, nor does it argue on appeal that it was error not to conduct such a hearing. Reviewing for clear error, we conclude that the states have established a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion. B.

A binding rule is not required to undergo notice and comment if it is one “of agency organization, procedure, or practice.” § 553(b)(A). “[T]he substantial impact test is the primary means by which [we] look beyond the label ‘procedural’ to determine whether a rule is of the type Congress thought appropriate for public participation.” “An agency rule that modifies substantive rights and interests can only be nominally procedural, and the exemption for such rules of agency procedure cannot apply.” DAPA undoubtedly meets that test — conferring lawful presence on 500,000 illegal aliens residing in Texas forces the state to choose between spending millions of dollars to subsidize driver’s licenses and amending its statutes.

The District of Columbia Circuit applies a more intricate test for distinguishing between procedural and substantive rules.

The court first looks at the “ ‘effect on those interests ultimately at stake in the agency proceeding.’ Hence, agency rules that impose ‘derivative,’ ‘incidental,’ or ‘mechanical’ burdens upon regulated individuals are considered procedural, rather than substantive.” Further, “a procedural rule generally may not ‘encode [] a substantive value judgment or put[ ] a stamp of approval or disapproval on a given type of behavior,’ ” but “the fact that the agency’s decision was based on a value judgment about procedural efficiency does not convert the resulting rule into a substantive one.” “A corollary to this principle is that rules are generally considered procedural so long as they do not ‘change the substantive standards by which the [agency] evaluates’ applications which seek a benefit that the agency has the power to provide.” Applying those considerations to DAPA yields the same result as does our substantial-impact test.

Although the burden imposed on Texas is derivative of conferring lawful presence on beneficiaries, DAPA establishes “ ‘the substantive standards by which the [agency] evaluates applications’ which seek a benefit that the agency [purportedly] has the power to provide” — a critical fact requiring notice and comment. Thus, DAPA is analogous to “the rules [that] changed the substantive criteria for [evaluating station allotment counter-proposals]” in Reeder v. FCC, 865 F.2d 1298, 1305 (D.C.Cir.1989) (per curiam), holding that notice and comment was required.

In contrast, the court in JEM Broadcasting, 22 F.3d at 327, observed that “[t]he critical fact here, however, is that the ‘hard look’ rules did not change the substantive standards by which the FCC evaluates license applications,” such that the rules were procedural. Further, receipt of DAPA benefits implies a “stamp of approval” from the government and “encodes a substantive value judgment,” such that the program cannot be considered procedural. Am. Hosp, 834 F.2d at 1047. C.

Section 553(a)(2) exempts rules from notice and comment “to the extent that there is involved ... a matter relating to ... public property, loans, grants, benefits, or contracts.” To avoid “carv[ing] the heart out of the notice provisions of

Section 553”, the courts construe the public-benefits exception very narrowly as applying only to agency action that “clearly and directly relate[s] to ‘benefits’ as that word is used in

section 553(a)(2).” DAPA does not “clearly and directly” rélate to public benefits as that term is used in § 553(a)(2). That subsection suggests that “rulemaking requirements for agencies managing benefit programs are ... voluntarily imposed,” but USCIS — the. agency tasked with evaluating DAPA applications — is not an agency managing benefit programs. Persons who meet the DAPA criteria do not directly receive the kind of public benefit that has been recognized, or was likely to have been included, under this exception. In

summary, the states have established a substantial likelihood of success on the merits of their procedural claim. We proceed to address whether, in addition to that likelihood on the merits, the states make the same showing on their substantive APA claim. VII. A “reviewing court shall ... hold unlawful and, set aside agency action ... found to be — (

A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ... [or] (

C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). Although the district court enjoined DAPA solely on the basis of the procedural APA claim, “it is an elementary proposition, and the supporting cases too numerous to cite, that this court may affirm the district court’s judgment on any grounds supported by the record.” Therefore, as an alternate and, additional ground for affirming the injunction, we address this substantive issue, which was fully briefed in the district court.

Assuming arguendo that Chevron applies, we first “ask whether Congress has ‘directly addressed the precise question at issue.’ ” It has. “Federal governance of immigration and alien status is extensive and complex.” Arizona v. United States, 132 S.Ct. at 2499.

The limited ways in which illegal aliens can lawfully reside in the United States reflect Congress’s concern that “aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates,” 8 U.S.C. § 1601(3), and that “[i]t is a compelling government interest to enact new rules for eligibility and sponsorship agreements in order to assure that aliens be self-reliant in accordance with national immigration policy,” § 1601(5).

In specific and detailed provisions, the INA expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present and confers eligibility for “discretionary relief allowing [aliens in deportation pro-eeedings] to remain in the country.” Congress has also identified narrow classes of aliens eligible for deferred action, including certain petitioners for immigration status under the Violence Against Women Act of 1994, immediate family members of lawful permanent residents (“LPRs”) killed by terrorism, and immediate family members of LPRs killed in combat and granted posthumous citizenship.

Entirely absent from those specific classes is the group of 4.3 million illegal aliens who would be eligible for lawful presence under DAPA were it not enjoined. See DAPA Memo at 4. Congress has enacted an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status: In general, an applicant must (

i) have a U.S. citizen child who is at least twenty-one years old, (ii) leave the United States, (iii) wait ten years, and then (iv) obtain one of the limited number of family-preference visas from a United States consulate. Although DAPA does not confer the full panoply of benefits that a visa gives, DAPA would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration status without complying with any of the requirements, enumerated above, that Congress has deliberately imposed.

DAPA requires only that prospective beneficiaries “have ... a son or daughter who is a U.S. citizen or lawful permanent resident” — without regard to the age of the child — and there is no need to leave the United States or wait ten years or obtain a visa. Further, the INA does not contain a family-sponsorship process for parents of an LPR child, but DAPA allows a parent to derive lawful presence from his child’s LPR status.

The INA authorizes cancellation of removal and adjustment of status if, inter alia, “the alien has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application” and if “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(l)(A) (emphasis added). Although LPR status is more substantial than is lawful presence, § 1229b(b)(

l) is the most specific delegation of authority to the Secretary to change the immigration classification of removable aliens that meet only the DAPA criteria and do not fit within the specific categories set forth in § 1229b (b) (2) — (6). Instead of a ten-year physical-presence period, DAPA grants lawful presence to persons who “have continuously resided in the United States since before January 1, 2010,” and there is no requirement that removal would result in exceptional and extremely unusual hardship. DAPA Memo at 4.

Although the Secretary has discretion to make immigration decisions based on humanitarian grounds, that discretion is conferred only for particular family relationships and specific forms of relief — none of which includes granting lawful presence, on the basis of a child’s immigration status, to the class of aliens that would be eligible for DAPA. The INA also specifies classes of aliens eligible and ineligible for work authorization, including those “eligible for work authorization and deferred action” — with no mention of the class of persons whom DAPA would make eligible for work authorization.

Congress “ ‘forcefully’ made combating the employment of illegal aliens central to ‘[t]he policy of immigration law,’ ” in part by “establishing an extensive ‘employment verification system,’ designed to deny employment to aliens who ... are not lawfully present in the United States.” The INA’s careful employment-authorization scheme “protects] against the displacement of workers in the United States,” and a “primary purpose in restricting immigration is to preserve jobs for American workers.” DAPA would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.

DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and “we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” DAPA undoubtedly implicates “question[s] of deep ‘economic and political significance’ that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.” But assuming arguendo that Chevron applies and that Congress has not directly addressed the precise question at hand, we would still strike down DAPA as an unreasonable

interpretation that is “manifestly contrary” to the INA. See Mayo Found., 562 U.S. at 53, 131 S.Ct. 704. The dissent, relying on Texas Rural Legal Aid v. Legal Services Corp., 940 F.2d 685, 694 (D.C.Cir.1991), theorizes that our analysis is nothing but an application of the expressio unius est exclusio alterius canon of construction, which the dissent claims is of limited utility in administrative law. Dissent at 215-16. The dissent’s observation is astray, however, because our statutory analysis does not hinge on the expressio unius maxim.

Moreover, the Supreme Court and this court have relied on expressio unius in deciding issues of administrative law. While noting “the limited usefulness of the expressio unius doctrine in the administrative context,” some courts have declined to apply it mostly because they find it unhelpful for the specific statute at issue. On other occasions, both our circuit and the Supreme Court have employed the canon in addressing administrative law. Nor has the District of Columbia Circuit expressly foreclosed use of the canon on questions of statutory

interpretation by agencies. Our distinguished dissenting colleague, in fact, relied on expressio unius to uphold a decision of the Board of Immigration Appeals, concluding that the Equal Access to Justice Act did not provide for fee-shifting in proceedings before the Board. See Hodge v. Dep’t of Justice, 929 F.2d 153, 157 n. 11 (5th Cir.1991) (King, J.). For the authority to implement DAPA, the government relies in part on 8 U.S.C. § 1324a(h)(3), a provision that does not mention lawful presence or deferred action, and that is listed as a “[m]is-cellaneous” definitional provision expressly limited to § 1324a, a

section concerning the “Unlawful employment of aliens” — an exceedingly unlikely place to find authorization for DAPA. Likewise, the broad grants of authority in 6 U.S.C. § 202(5), 8 U.S.C. § 1103(a)(3), and 8 U.S.C. § 1103(g)(2) cannot reasonably be construed as assigning “decisions of vast ‘economic and political significance,’ ” such as DAPA, to an agency. The

interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States — an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility. Even with “special deference” to the Secretary, the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.

Presumably because DAPA is not authorized by statute, the United States posits that its authority is grounded in historical practice, but that “does not, by itself, create power,” and in any event, previous deferred-action programs are not analogous to DAPA. “[M]ost ... discretionary deferrals have been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters,” but DAPA is not such a program.

Likewise, many of the previous programs were bridges from one legal status to another, whereas DAPA awards lawful presence to persons who have never had a legal status and may never receive one. Although the “Family Fairness” program did grant voluntary departure to family members of legalized aliens while they “wait[ed] for a visa preference number to become available for family members,” that program was interstitial to a statutory legalization scheme.

DAPA is far from interstitial: Congress has repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (“DREAM Act”), features of which closely resemble DACA and DAPA. Historical practice that is so far afield from the challenged program sheds no light on the Secretary’s authority to implement DAPA.

Indeed, as the district court recognized, the President explicitly stated that “it was the failure of Congress to enact such a program that prompted him ... to ‘change the law.’ ” At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes. And the dissent attempts to avoid the impact of the President’s statement by accusing the district court and this panel majority of “relying ... on selected excerpts of the President’s public statements.” Dissent at 203, 208 n. 41.

The dissent repeatedly claims that congressional silence has conferred on DHS the power to act. E.g., Dissent at 214-15. To the contrary, any such inaction cannot create such power: “[DJeference is warranted only when Congress has left a gap for the agency to fill pursuant to an express or implied ‘delegation of authority to the agency.’ ” Chevron[,] 467 U.S. at 843-44[, 104 S.Ct. 2778].

To suggest, as the [agency] effectively does, that Chevron step two is implicated at any time a statute does not expressly negate the existence of a claimed administrative power ... is both flatly unfaithful to the principles of administrative law ... and refuted by precedent.... W

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