Texas v. United States, 106 F.3d 661 (5th Cir. 02/28/1997)

[1] U.S. Court of Appeals, Fifth Circuit


[2] No. 95-40721.


[4] decided: February 28, 1997.


[5] STATE OF TEXAS, ON ITS OWN BEHALF AND ON BEHALF OF ALL TEXANS AS PARENS PATRIAE; GEORGE W. BUSH, GOVERNOR OF THE STATE OF TEXAS; LA JOYA INDEPENDENT SCHOOL DISTRICT, ON THEIR OWN BEHALF AND AS CLASS REPRESENTATIVES OF ALL INDEPENDENT SCHOOL DISTRICTS OF TEXAS; HARRIS COUNTY HOSPITAL DISTRICT; DALLAS COUNTY HOSPITAL DISTRICT; BEXAR COUNTY HOSPITAL DISTRICT, ON THEIR OWN BEHALF AND AS CLASS REPRESENTATIVES OF ALL HOSPITAL DISTRICTS IN TEXAS; HARRIS COUNTY; DALLAS COUNTY; HIDALGO COUNTY, ON THEIR OWN BEHALF AND AS CLASS REPRESENTATIVE OF ALL COUNTIES IN TEXAS; THE CITY OF ODESSA, ON ITS OWN BEHALF AND AS CLASS REPRESENTATIVE OF ALL MUNICIPALITIES IN TEXAS, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES OF AMERICA; JANET RENO, U.S. ATTORNEY GENERAL; DORIS MEISSNER, COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE; MICHAEL S. WILLIAMS, DIRECTOR OF IMMIGRATION AND NATURALIZATION SERVICE'S TEXAS REGIONAL OFFICE; RONALD C. CHANDLER, IMMIGRATION AND NATURALIZATION SERVICE'S DISTRICT DIRECTOR OF THE HOUSTON DISTRICT; ROBERT A. WALLIS, IMMIGRATION AND NATURALIZATION SERVICE'S DISTRICT DIRECTOR OF THE HOUSTON DISTRICT; RICHARD M. CASILLAS, IMMIGRATION AND NATURALIZATION SERVICE'S DISTRICT DIRECTOR OF THE SAN ANTONIO DISTRICT; ALICE RIVLIN, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET; MARGARET M. RICHARDSON, COMMISSIONER OF THE INTERNAL REVENUE SERVICE, DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court for the Southern District of Texas. B-94-CV-228. Filemon B Vela, US District Judge.


[7] For STATE OF TEXAS, On its own behalf and on the behalf of all Texans as parens patriae, GEORGE W BUSH, Governor of the State of Texas, LA JOYA INDEPENDENT SCHOOL DISTRICT, on their own behalf and as class representatives of all independent school districts of Texas, HARRIS COUNTY HOSPITAL DISTRICT, DALLAS COUNTY HOSPITAL DISTRICT, BEXAR COUNTY HOSPITAL DISTRICT, on their own behalf and as class representatives of all Hospital Districts in Texas, HARRIS COUNTY, DALLAS COUNTY, HIDALGO COUNTY, on their own behalf and as class representatives of all counties in Texas, THE CITY OF ODESSA, on its own behalf and as class representatives of all municipalities in Texas, Plaintiffs - Appellants: Javier J Aguilar, Samuel Wilhelm Goodhope, Office of the Attorney General of Texas, Austin, TX. Lydia Wright Johnsen, Austin, TX.


[8] For UNITED STATES OF AMERICA, JNAET RENO, U S Attorney General, DORIS MEISSNER, Commisioner of the Immigration and Naturalization Service, MICHAEL W WILLIAMS, Director of Immigration and Naturalization Service's Texas Regional Office, RONALD C CHANDLER, Immigration and Naturalization Service's District Director of the Houston District, ROBERT A WALLIS, Immigration and Naturalization Service's District Director of the Houston District, RICHARD M CASILLAS, Immigration and Naturalization Service's District Director of the San Antonio District, MARGARET M RICHARDSON, Commissioner of the Internal Revenue Service, Defendants - Appellees: Mark Bernard Stern, US Department of Jusstice Civil Division, Washington, DC. Ellen Debra Katz, United States Department of Justice, Civil Division Appellate Staff, Washington, DC.


[9] For ALICE RIVLIN, Director, Office of Management and Budget, Defendant - Appellee: Thomas William Millet, Washington, DC. Mark Bernard Stern, US Department of Jusstice Civil Division, Washington, DC.


[10] For WASHINGTON LEGAL FOUNDATION, KAY BAILEY HUTCHISON, United States Senator, JACK FIELDS, United States Representative, Amicus Curiae: David Andrew Price, Washingotn Legal Foundation, Washington, DC. Daniel J Popeo, Washington, DC.


[11] For TEXAS ASSOCIATION OF SCHOOL BOARDS, TEXAS ASSOCIATION OF SCHOOL ADMINISSTRATORS, TEXAS COUNCIL OF SCHOOL ATTORNEYS, Amicus Curiae: Myra A McDaniel, John Knox, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Austin, TX.


[12] Before Politz, Chief Judge, and Jolly and Barksdale, Circuit Judges.


[13] Author: Politz


[14] POLITZ, Chief Judge:


[15] The State of Texas and its political subdivisions (collectively, "the State")*fn1 appeal a Fed.R.Civ.P. 12(b)(6) dismissal of their complaint seeking declaratory and injunctive relief which would require that the United States pay the educational, medical, and criminal Justice expenses allegedly incurred as a result of the presence of undocumented or illegal aliens in Texas. Concluding that the complaint raises questions of policy rather than colorable claims of constitutional or statutory violations, we affirm.


[16] Background


[17] The amended complaint alleges that hundreds of thousands of undocumented immigrants live in Texas as the direct consequence of federal immigration policy. The State alleges that federal defendants have violated the Constitution and immigration laws by failing to control illegal immigration and by failing to reimburse Texas for its educational, medical, and criminal Justice expenditures on undocumented aliens. The State seeks an order enjoining federal defendants from failing to pay for these alleged financial consequences of federal immigration policy and requiring prospective payment as well as restitution for the State's relevant expenditures since 1988. These expenditures are estimated at $1.34 billion for 1993 alone.


[18] The complaint alleges breach of duties imposed by the naturalization clause of the Constitution, specifically the duty to control immigration and to pay for the consequences of federal immigration policy. The complaint also alleges that defendants have commandeered State resources in violation of the tenth amendment and, further, that defendants' failure to pay immigration-related expenditures denigrates Texas' republican form of government, in violation of the Constitution's guaranty clause and the Articles of Annexation for Annexing Texas to the United States. Finally, the complaint alleges that the Attorney General's failure to prevent illegal immigration violates the Immigration and Nationality Act.


[19] The district court dismissed this action on three grounds: (1) the claims present nonjusticiable political questions; (2) the plaintiffs lack standing; and (3) the complaint fails to state a claim on which relief can be granted.*fn2 The State timely appealed.


[20] Analysis


[21] A complaint should not be dismissed under Rule 12(b)(6) for failure to state a claim unless it appears certain that no set of facts can be proved entitling plaintiffs to relief.*fn3 For purposes of our de novo review of the order of dismissal we accept the complaint's factual allegations as true, cautioning that Conclusionary allegations alone will not pass muster.*fn4


[22] Arizona, California, Florida, New Jersey, and New York have brought similar actions seeking federal reimbursement for expenses allegedly incurred as a result of illegal immigration.*fn5 All of these actions were dismissed by the trial court for failure to state a colorable claim or as presenting nonjusticiable political questions. All were affirmed on appeal by our colleagues in the Second, Third, Ninth, and Eleventh Circuits.


[23] Naturalization Clause


[24] The naturalization clause, article I, section 8, clause 4 of the Constitution provides that Congress "shall have Power ... To establish an uniform Rule of Naturalization." The clause is a principal source of the broad authority of Congress over immigration matters, a discretionary authority subject to limited judicial review.*fn6 Our colleagues in the Second and Third Circuits have found similar naturalization clause claims seeking federal reimbursement to be nonjusticiable and lacking in merit.*fn7


[25] A judicial action presents a nonjusticiable political question not amenable to judicial resolution where there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it...."*fn8 Nonjusticiability based on commitment of the issue to a coordinate political department generally entails a finding that the Constitution confers thereon final authority over the question at issue, to the exclusion of the judiciary.*fn9 A holding that a case presents a nonjusticiable political question is "very different from determining that specific congressional action does not violate the Constitution. That determination is a decision on the merits that reflects the exercise of judicial review, rather than the abstention from judicial review that would be appropriate in the case of a true political question."*fn10 We are not aware of and have difficulty conceiving of any judicially discoverable standards for determining whether immigration control efforts by Congress are constitutionally adequate.


[26] Were we to assume, arguendo, the justiciability of this claim, judicial review of congressional and executive action in the immigration arena is limited. " "Over no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens."*fn11 Courts must give special deference to congressional and executive branch policy choices pertaining to immigration.*fn12


[27] We conclude that the naturalization clause claims lack merit. Neither the language, history, nor judicial interpretations of the clause support the contention that it imposes a reimbursement duty on the federal government.*fn13 The State would find support for its novel theory in a resolution by the House of Representatives stating that inadequate immigration law enforcement has imposed on state and local governments financial costs which the federal government has an obligation to reimburse.*fn14 A congressional resolution cannot create a constitutional duty. The State also contends that article I, section 8 of the Constitution implies the authority to carry out all functions necessary to reach the objective of Congress' powers, and that payment of immigration-related expenses is a necessary function of the naturalization power. Although the grant of broad powers to Congress by the naturalization clause undoubtedly includes the discretion to decide whether to appropriate funds to states for the expenses at issue, we perceive no basis for reading into the clause an affirmative duty to do so.


[28] Tenth Amendment Claim


[29] The tenth amendment ensures that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Congress may not assume control over the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program.*fn15 The tenth amendment promotes accountability to the electorate. "Where the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision."*fn16


[30] The State contends that federal defendants have commandeered its financial resources by forcing it to provide services to undocumented aliens. According to the State, inadequate enforcement of immigration laws presents the State with a Hobson's choice: to pay medical and correctional expenses of undocumented aliens or to place at risk the public health and safety.


[31] We hold that in the absence of a federal statute or regulation or executive branch directive specifically compelling states to provide services to undocumented aliens, the federal government cannot be said to have commandeered state legislative processes in violation of New York v. United States. We agree with our colleagues in the Second, Third, Ninth, and Eleventh Circuits that state expenditures on medical and correctional services for undocumented immigrants are not the result of federal coercion.*fn17 The State's correctional expenses stem from its enforcement of its own penal laws, not federal laws, and federal law requires states to provide emergency medical care to undocumented aliens only if the states voluntarily choose to receive federal funds from the Medicaid program.*fn18 The Supreme Court has recognized that the tenth amendment permits Congress to attach conditions to the receipt by the states of federal funds that have the effect of influencing state legislative choices.*fn19 "To hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties."*fn20 This we will not do.


[32] Finally, the State's public education expenditures for the children of undocumented aliens are required by the equal protection clause rather than by actions of the federal defendants.*fn21 A duty imposed on states by the Constitution can hardly be said to violate the tenth amendment's reservation of unenumerated powers to the states.*fn22 Accordingly, the State has not alleged a cognizable claim of violation of the tenth amendment.*fn23


[33] Guaranty Clause Claims


[34] The complaint alleges that federal immigration policy and defendants' failure to pay for state expenditures related to undocumented aliens infringes on the right of Texas voters to determine the spending priorities of state government in violation of the guaranty clause of the Constitution and the Articles of Annexation for Annexing Texas to the United States. The guaranty clause, article IV, section 4, provides that "the United States shall guarantee to every State in this Union a Republican Form of Government."


[35] Although the Supreme Court has suggested that perhaps not all claims under the guaranty clause present nonjusticiable political questions, in the main the Court has found that such claims are not judicially enforceable.*fn24 In cases seeking federal reimbursement for states' immigration-related expenses, the Second, Ninth, and Eleventh Circuits have held guaranty clause claims nonjusticiable.*fn25 The State suggests no manageable standards by which a court could decide the type and degree of immigration law enforcement that would suffice to comply with its strictures. Whatever might be the decision in other cases in other settings, we are persuaded that the case now before us does not present a justiciable claim of violation of the guaranty clause.


[36] Further, were we to assume that the present complaint is justiciable, it fails to allege a realistic risk of denying to Texas its guaranteed republican form of government. The defendants are not mandating the State to take any action with respect to undocumented aliens. Any inaction by the federal government with respect to immigration enforcement or payment of state expenditures cannot realistically be said to pose a meaningful risk of altering the Texas government's form or method of functioning. The Texas electorate is not being deprived of the opportunity to hold state and federal officials accountable at the polls for their respective policy choices. We must conclude that the complaint fails to state a violation of the guaranty clause or the Articles of Annexation.


[37] Statutory Claim


[38] Finally, the State alleges that the Attorney General has breached a nondiscretionary duty to control immigration under the Immigration and Nationality Act.*fn26 The State candidly concedes, however, that section 1103 places no substantive limits on the Attorney General and commits enforcement of the INA to her discretion.*fn27


[39] The State's allegation that defendants have failed to enforce the immigration laws and refuse to pay the costs resulting therefrom is not subject to judicial review. An agency's decision not to take enforcement actions is unreviewable under the Administrative Procedure Act*fn28 because a court has no workable standard against which to Judge the agency's exercise of discretion.*fn29 We reject out-of-hand the State's contention that the federal defendants' alleged systemic failure to control immigration is so extreme as to constitute a reviewable abdication of duty. The State does not contend that federal defendants are doing nothing to enforce the immigration laws or that they have consciously decided to abdicate their enforcement responsibilities. Real or perceived inadequate enforcement of immigration laws does not constitute a reviewable abdication of duty.*fn30


[40] The judgment appealed is AFFIRMED.


[41] Disposition


[42] AFFIRMED.



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Opinion Footnotes

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[43] *fn1 The suit was brought as a class action by the State of Texas on behalf of all Texans; the Governor; one school district on behalf of all Texas school districts; three hospital districts on behalf of all Texas hospital districts; three counties on behalf of all Texas counties; and the City of Odessa, seeking to represent Texas municipalities. Defendants are the United States; the Attorney General; the Immigration and Naturalization Service Commissioner and four INS officials in Texas; the Commissioner of the Internal Revenue Service; and the Director of the Office of Management and Budget. The El Paso Independent School District was denied intervention but was given amicus status.


[44] *fn2 For purposes of today's Disposition we assume, without deciding, that the plaintiffs have standing.


[45] *fn3 Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).


[46] *fn4 Campbell v. City of San Antonio, 43 F.3d 973 (5th Cir.1995).


[47] *fn5 Arizona v. United States, 104 F.3d 1095 (9th Cir.1997); California v. United States, 104 F.3d 1086 (9th Cir.1997); New Jersey v. United States, 91 F.3d 463 (3d Cir.1996); Padavan v. United States, 82 F.3d 23 (2d Cir.1996); Chiles v. United States, 69 F.3d 1094 (11th Cir.1995), cert. denied, 116 S. Ct. 1674, 134 L. Ed. 2d 777 (1996). Each of these cases omitted some of the counts in the instant complaint or included other claims not present here.


[48] *fn6 Toll v. Moreno, 458 U.S. 1, 102 S. Ct. 2977, 73 L. Ed. 2d 563 (1982); Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977).


[49] *fn7 New Jersey; Padavan.


[50] *fn8 Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663 (1962).


[51] *fn9 See Nixon v. United States, 506 U.S. 224, 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993).


[52] *fn10 United States Dep't of Commerce v. Montana, 503 U.S. 442, 458, 112 S. Ct. 1415, 1425, 118 L. Ed. 2d 87 (1992) (footnote omitted).


[53] *fn11 Fiallo, 430 U.S. at 792, 97 S. Ct. at 1478 (quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S. Ct. 671, 676, 53 L. Ed. 1013 (1909)).


[54] *fn12 Fiallo.


[55] *fn13 New Jersey; Padavan.


[56] *fn14 H.R.Con.Res. 218, 103d Cong., 2d Sess., 140 Cong.Rec. 1210 (1994).


[57] *fn15 New York v. United States, 505 U.S. 144, 160-61, 112 S. Ct. 2408, 2420, 120 L. Ed. 2d 120 (1992) (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 287-89, 101 S. Ct. 2352, 2366, 69 L. Ed. 2d 1 (1981)).


[58] *fn16 New York at 169, 112 S. Ct. at 2424.


[59] *fn17 Padavan; New Jersey; California; Chiles.


[60] *fn18 California; Padavan.


[61] *fn19 New York; South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987).


[62] *fn20 Dole at 211, 107 S. Ct. at 2798 (quotation omitted).


[63] *fn21 See Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982).


[64] *fn22 Puerto Rico v. Branstad, 483 U.S. 219, 107 S. Ct. 2802, 97 L. Ed. 2d 187 (1987).


[65] *fn23 California; Padavan.


[66] *fn24 New York at 182-86, 112 S. Ct. at 2432-33.


[67] *fn25 Padavan; California; Chiles.


[68] *fn26 8 U.S.C. § 1103.


[69] *fn27 Chiles; see also California.


[70] *fn28 5 U.S.C. §§ 701-706.


[71] *fn29 Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985).


[72] *fn30 See Heckler.

California v. United States, 104 F.3d 1086 (9th Cir. 01/07/1997)

[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


[2] No. 95-55490


[4] filed: January 7, 1997.


[5] STATE OF CALIFORNIA, PETE WILSON, GOVERNOR; JOE G. SANDOVAL, SECRETARY, YOUTH AND ADULT CORRECTIONAL AGENCY; JAMES H. GOMEZ, DIRECTOR, DEPARTMENT OF CORRECTIONS; FRANCISCO J. ALARCON, CHIEF DEPUTY DIRECTOR, DEPARTMENT OF THE YOUTH AUTHORITY; RUSSELL S. GOULD, DIRECTOR OF FINANCE, STATE OF CALIFORNIA; SANDRA SMOLEY, SECRETARY, HEALTH AND WELFARE AGENCY, STATE OF CALIFORNIA; S. KIMBERLY BELSHE, DIRECTOR OF HEALTH SERVICES, STATE OF CALIFORNIA, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES OF AMERICA; JANET RENO, ATTORNEY GENERAL; DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES; ALICE RIVLIN,*FN* ACTING DIRECTOR, DIRECTOR, U.S. OFFICE OF MANAGEMENT AND BUDGET, UNITED STATES, DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court for the Southern District of California. D.C. No. CV 94-0674-K. Judith N. Keep, Chief Judge, Presiding.


[7] Floyd D. Shimomura, Assistant Attorney General, Linda A. Cabatic, Supervising Deputy Attorney General, Paul H. Dobson, Deputy Attorney General, Sacramento, California, for the plaintiffs-appellants.


[8] Mark B. Stern, United States Department of Justice, Washington, D.C., for the defendants-appellees.


[9] Louis F. Hubener, Assistant Attorney General, Office of the Attorney General, Tallahassee, Florida; Ian Fan, Deputy, San Diego, California; Daniel J. Popeo, David A. Price, Washington Legal Foundation, Washington, D.C., for the amici curiae.


[10] Before: Stephen Reinhardt and Cynthia Holcomb Hall, Circuit Judges, and Robert R. Merhige, Jr., Senior District Judge.*fn** Opinion by Judge Merhige.


[11] Author: Merhige


[12] MERHIGE, Senior District Judge:


[13] In this appeal, Plaintiffs-Appellants State of California*fn1 ("California") and state officials Governor Pete Wilson; Director of Finance, Russell S. Gould; Acting Secretary, Youth and Adult Correctional Agency, Joe G. Sandoval; Director of the Department of Corrections, James H. Gomez; Chief Deputy Director of the Department of the Youth Authority, Francisco J. Alarcon; Acting Secretary, Health and Welfare Agency, Sandra R. Smoley; and Director of the Department of Health Services, S. Kimberly Belshe (collectively, "California" or "the State") appeal from a judgment entered in the United States District Court for the Southern District of California granting the motion of the Defendants-Appellees United States of America and federal officials Attorney General Janet Reno ("Attorney General"); Acting Director of the Office of Management and Budget, Alice Rivlin; Commissioner, Immigration and Naturalization Service, Doris Meissner ("Commissioner of the INS"); Secretary of Health and Human Services, Donna E. Shalala; Administrator, Health Care Financing Administration, Bruce C. Vladek; and Secretary of Education, Richard W. Riley to dismiss California's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn2


[14] In its Complaint, California asserts various constitutional and statutory claims premised on the impact of federal immigration policy on the State, particularly as it affects the State's fiscal burdens. California seeks monetary damages as well as injunctive and declaratory relief under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Jurisdiction has been asserted pursuant to 28 U.S.C. §§ 1331, 1346, 1361, 2201 and 2202 against the United States and a number of its officials acting in their official capacities. The matter in controversy allegedly arises under the Constitution and laws of the United States. This Court has jurisdiction as well under 28 U.S.C. § 1291. The immediate issue before the Court is the correctness of the trial court's dismissal of the Amended Complaint under Fed. R. Civ. P. 12(b)(6) for the failure to state a claim upon which relief can be granted. For the reasons stated below, the judgment of the district court is affirmed.


[15] I.


[16] This Court reviews de novo a grant of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (citation omitted). When reviewing a district court's dismissal of a complaint for failure to state a claim, this Court must accept the facts alleged in the complaint as true. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 770, 125 L. Ed. 2d 612, 113 S. Ct. 2891 (1993).


[17] In its Complaint, California asserts that the number of permanent illegal residents in California stands at 1.7 million - 5% of the state's population - and increases by approximately 125,000 a year. California further asserts that, in the fiscal year this action was initiated, it would spend nearly $2.4 billion in providing federally mandated education and health care benefits to illegal aliens and in incarcerating illegal aliens who commit crimes within the State.*fn3


[18] California's Complaint consists of eight claims. In Count I of its Complaint, California asserts that the United States has violated its obligations to protect the State from invasion and to guarantee it a republican form of government under the Invasion and Guarantee Clauses of Article IV of the United States Constitution by failing to stop the intrusion of illegal aliens across the State's borders. U.S. Const. art. IV, § 4. In Counts II and IX, California asserts that the United States has violated the Guarantee Clause and the Tenth Amendment to the United States Constitution by requiring the State to fund emergency health care costs for illegal immigrants, by causing the State to incur the costs of incarcerating illegal immigrants, and by causing the State to incur the costs of providing public schooling to illegal immigrants. In Count III, California seeks a declaration that the Attorney General has violated 8 U.S.C. § 1365 because she has not decided to reimburse the State for the costs incurred in incarcerating illegal aliens out of monies available, but not specifically appropriated, for that purpose. Finally, in Counts V through VIII,*fn4 California seeks declarative and injunctive relief because the Attorney General and the Commissioner of the INS failed to perform their statutory duties under 8 U.S.C. §§ 1252(I), 1252(a)(2), 1326 and 1252(c) by not conducting deportation proceedings immediately following the conviction of aliens eligible for deportation; failing to take into custody aliens convicted of aggravated felonies upon their release from state incarceration pending determination of deportability; failing to prosecute deported aliens who illegally reenter the country; and by failing to effectively execute final orders of deportation and instead merely "dropping off" the deported aliens at the U.S.-Mexican border.


[19] II.


[20] A. Invasion Clause


[21] In Count I of its Complaint, California contends that the United States has violated its obligation under the Invasion Clause of Article IV, § 4 of the Constitution to protect the State from invasion.*fn5 California's claim under the Invasion Clause presents a nonjusticiable political question. In Baker v. Carr, the Supreme Court set forth the analysis that governs the political question doctrine. There, the Court stated:


[22] It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.


[23] 369 U.S. 186, 217 (1962).


[24] In this case, the issue of protection of the States from invasion implicates foreign policy concerns which have been constitutionally committed to the political branches. The Supreme Court has held that the political branches have plenary powers over immigration. Fiallo v. Bell, 430 U.S. 787, 792, 52 L. Ed. 2d 50, 97 S. Ct. 1473 (1977). For this Court to determine that the United States has been "invaded" when the political branches have made no such determination would disregard the constitutional duties that are the specific responsibility of other branches of government, and would result in the Court making an ineffective non-judicial policy decision. See Barber v. Hawaii, 42 F.3d 1185, 1199 (9th Cir. 1994) (dismissing an Invasion Clause claim as a nonjusticiable political question). Additionally, even if the issue were properly within the Court's constitutional responsibility, there are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion. The Court notes that the other Circuits that have addressed the issues before us in similar suits against the United States have reached the same Conclusions that we do. Padavan v. United States, 82 F.3d 23, 28 (2nd Cir. 1996); Chiles v. United States, 69 F.3d 1094, 1097 (11th Cir. 1995), cert. denied, 134 L. Ed. 2d 777, 116 S. Ct. 1674 (1996); New Jersey v. United States, 91 F.3d 463 (3rd Cir. 1996); Texas v. United States, No. B-94-228 (S.D. Tex. Aug. 7, 1995), appeal pending, No. 95-40721 (5th Cir).


[25] Moreover, California ignores the Conclusion set forth by our Founders. In The Federalist No. 43, James Madison referred to the Invasion Clause as affording protection in situations wherein a state is exposed to armed hostility from another political entity. Madison stated that Article IV, § 4 serves to protect a state from "foreign hostility" and "ambitious or vindictive enterprises" on the part of other states or foreign nations. The Federalist No. 43 at 293 (Cooke ed. 1961).*fn6 It was not intended to be used as urged by California.


[26] B. Guarantee Clause


[27] Counts I, II and IX of California's Complaint contend that federal immigration policy is violative of the Guarantee Clause of Article IV, § 4. The Guarantee Clause provides, "The United States shall guarantee to every State in this Union a Republican form of Government." U.S. Const. art. IV, § 4. California argues that federal immigration policy has forced it to spend money that it would otherwise not have been required to spend, thus depriving it of a republican form of government.


[28] Supreme Court decisions have traditionally found that claims brought under the Guarantee Clause are nonjusticiable. See New York v. United States, 505 U.S. 144, 183-85, 120 L. Ed. 2d 120, 112 S. Ct. 2408 (1992) (citing cases).*fn7 California's claims under the Guarantee Clause in Counts I, II, and IX raise nonjusticiable political questions. See Padavan, 82 F.3d at 28-29 (reaching the same result); Chiles, 69 F.3d at 1097 (reaching same result); New Jersey, 91 F.3d at 470.


[29] Moreover, assuming, arguendo, that California has presented a justiciable claim, there is nothing in this record other than a mere bare contention that the federal government's policies deny California a republican form of government. The motion to dismiss was therefore properly granted.


[30] C. Tenth Amendment


[31] California's Tenth Amendment claims in Counts II and IX focus on three areas where it is asserted that the State is unconstitutionally being required by the United States to spend funds or where it is asserted that the United States has "commandeered" the state legislative process.*fn8 In all three instances, California has failed to state a claim under the Tenth Amendment.


[32] 1. Medicaid


[33] California contends that the Federal Government's conditioning the receipt of Medicaid funds on the State's agreeing to provide emergency medical services to illegal aliens violates the Tenth Amendment. Under the Constitution, the Federal Government's conditioning of funds is permissible if (1) the spending, as in this case, is in furtherance of the general welfare; (2) Congress does so unambiguously to the end that states may knowingly exercise their choice to either accept or reject the funds; (3) the conditions imposed are reasonably related to the federal interest in the particular program; (4) no other constitutional provision "provides an independent bar to the conditional grant of federal funds." South Dakota v. Dole, 483 U.S. 203 at 207-08, 97 L. Ed. 2d 171, 107 S. Ct. 2793 (1987). California does not contend that Congress violated any of the aforementioned conditions; instead it argues that while its choice to participate in Medicaid may have been voluntary,*fn9 it now has no choice but to remain in the program in order to prevent a collapse of its medical system. It contends as well that the determination of when the moment of coercion has been reached is one of fact which cannot be decided via a motion to dismiss. California attempts to support this contention by reference to South Dakota v. Dole, 483 U.S. 203, 97 L. Ed. 2d 171, 107 S. Ct. 2793 (1987), where the Court wrote, "our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.'" Id. at 211 (citation omitted). The Dole court concluded, however, that it would only find Congress' use of its spending power impermissibly coercive, if ever, in the most extraordinary circumstances. Dole, 483 U.S. at 210-11.


[34] The response to that contention long preceded this case when this Court responded to similar contentions by the State of Nevada in reference to the federal government's conditioning the receipt of highway funds on the acceptance of the national speed limit. In that case, Nevada contended that the threatened loss of ninety-five percent of its highway funds deprived it of any realistic choice as to whether to reject the uniform national limit. Nevada v. Skinner, 884 F.2d 445 at 448-49 (9th Cir. 1989). In refusing the relief sought, the Court noted that no party challenging the conditioning of federal funds has ever succeeded under the coercion theory. Id. at 448 (citing Oklahoma v. Schweiker, 210 U.S. App. D.C. 288, 655 F.2d 401, (D.C. Cir. 1981)). This court went on to state:


[35] Can a sovereign state which is always free to increase its tax revenues ever be coerced by the withholding of federal funds - or is the state merely presented with hard political choices? The difficulty if not the impropriety of making judicial judgments regarding a state's financial capabilities renders the coercion theory highly suspect as a method for resolving disputes between federal and state governments.


[36] Id. at 448 (footnotes omitted). The Court finds that to the extent that there is any viability left in the coercion theory, it is not reflected in the facts of this record. See Padavan, 82 F.3d at 28-29 (reaching same result); New Jersey, 91 F.3d at 466-67 (3d Cir. 1996) (reaching same result).*fn10


[37] 2. Prisons


[38] California also contends in Count IX that the United States has violated the Tenth Amendment because federal immigration policy causes the State to incur the costs of incarcerating those illegal aliens who commit crimes within the State. California reasons that because the United States has failed to effectively enforce its immigration policies, the Federal Government has essentially "commandeered" the State's legislative process by forcing California to allocate money and human resources to both incarcerate illegal alien felons and supervise their parole.


[39] The Court concludes that California has failed to allege a Tenth Amendment violation because no federal mandate requires California to pursue a penal policy resulting in these costs. See Padavan, 82 F.3d at 28-29 (reaching same result); New Jersey, 91 F.3d at 467 (reaching same result).


[40] 3. Public Schools


[41] Finally, California argues that the Federal Government has violated the Tenth Amendment because the State must allocate funds to pay for the public education of alien children. We note that this argument is merely a variation of California's claim that the Tenth Amendment is violated when it expends funds to incarcerate illegal aliens. Again, California contends that the costs of educating alien children stems from the Federal Government's ineffective policing of national borders. We find California's argument unpersuasive. Because the State's obligation to provide this education derives from an independent constitutional obligation and not federal immigration policy, see Plyler v. Doe, 457 U.S. 202, 230, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982), the Tenth Amendment is not implicated. See Padavan 82 F.3d at 29 (reaching same result); New Jersey, 91 F.3d at 467 (reaching same result).


[42] 4. Failure to State a Claim


[43] In each instance discussed above, the trial court properly dismissed California's claims because California failed to allege a viable Tenth Amendment violation. In addition to the foregoing, however, taking the facts in reference to immigration as accurate, as we must in considering a motion under Rule 12(b)(6), inevitably leads this Court to the Conclusion that California's Tenth Amendment claims also present nonjusticiable political questions. The concerns expressed by California are unquestionably beyond the authority of the judicial branch.


[44] D. Statutory Claims


[45] 1. Reimbursement for Costs of Incarceration


[46] Under 8 U.S.C. § 1365, the Attorney General is authorized to reimburse states for the cost of incarcerating illegal aliens convicted of state crimes. Section 1365, however, does not appropriate any funds and is made "subject to the amounts provided in advance in appropriation Acts." 8 U.S.C. § 1365(a).*fn11


[47] In Count III, California seeks a declaration that the Attorney General has violated § 1365 because she has not decided to reimburse the State for the costs incurred in incarcerating illegal aliens out of monies available, but not specifically appropriated, for that purpose. While the record reflects that no "amounts have been provided in advance," California urges that 8 U.S.C. § 1365 authorizes the Attorney General to allocate generally appropriated INS funds to this specific purpose.*fn12


[48] Assuming, without deciding, that California has correctly interpreted § 1365, the Attorney General's decision to allocate monies generally appropriated to her in a lump-sum for the administration of immigration laws for the specific purpose of reimbursing a State for the costs of incarcerating illegal aliens under 8 U.S.C. § 1365 is "committed to agency discretion by law" and is not subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 701(a)(2). Lincoln v. Vigil, 508 U.S. 182, 192, 124 L. Ed. 2d 101, 113 S. Ct. 2024 (1993)("The allocation of funds from a lump-sum appropriation is another administrative decision traditionally regarded as committed to agency discretion."). Inasmuch as California may be seeking in Count III a further declaration that the Attorney General is authorized to allocate funds to the State to reimburse it for the costs of incarcerating illegal aliens, California seeks an unconstitutional advisory opinion. See Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994)("A federal court has no jurisdiction to hear a case that cannot affect the litigants' rights.").


[49] 2. Immigration Laws


[50] California has also brought several other statutory claims alleging that the Attorney General has failed to adequately fulfill her obligation to enforce the country's immigration laws, in particular, 8 U.S.C. §§ 1252(I); 1252(a)(2)(A); 1326; and 1252(c). Title 8 U.S.C. § 1252(I) provides that "in the case of an alien who is convicted of an offense which makes the alien subject to deportation, the Attorney General shall begin any deportation proceeding as expeditiously as possible after the date of conviction." 8 U.S.C. § 1252(I). In Count VI, California seeks a declaration and injunctive relief on the basis that the Attorney General and the Commissioner of the INS have violated § 1252(I) by adopting a policy of not commencing deportation proceedings until shortly before convicted illegal aliens are to be released from confinement.


[51] Title 8 U.S.C. § 1252(a)(2)(A) provides that the Attorney General "shall take into custody any alien convicted of an aggravated felony upon release of the alien [from state custody or supervision]." 8 U.S.C. § 1252(a)(2)(A). In Count VI, California seeks a declaration and injunctive relief on the basis that the Attorney General and the Commissioner of the INS violated the terms of this section by failing to take into custody aliens convicted of aggravated felonies upon their release from state incarceration pending determination of deportability.


[52] Title 8 U.S.C. § 1326 provides that a person who enters the country illegally after being deported is guilty of a crime. In Count VII, California seeks equitable relief on the basis that the Attorney General has violated this section by prosecuting deported aliens who illegally reenter the country only in cases where the aliens are serious repeat offenders.


[53] With respect to sections 1252(I), 1252(a)(2)(A) and 1326, the Court cannot, with propriety, address the issues raised. In Heckler v. Chaney, 470 U.S. 821, 838, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985) the Supreme Court held that "agency refusals to institute investigative or enforcement proceedings" fall within the "exception to reviewability provided by [5 U.S.C.] § 701(a)(2) for action 'committed to agency discretion.'" Each of the claims asserted by California under these statutes implicates the institution of enforcement actions of the variety contemplated in Heckler. As the Court noted in Heckler, "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." 470 U.S. at 831. Accordingly, these issues, having been committed to agency discretion, are not subject to judicial review. While the Supreme Court in Heckler did state in a footnote that a non-enforcement decision might be reviewable where "the agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities", Heckler, 470 U.S. at 833 n.4, the allegations asserted in the instant Complaint do not rise to a level that would indicate such an abdication.


[54] Finally, California seeks declaratory and injunctive relief in Count VIII in the form of a declaration that the Attorney General and Commissioner of the INS have failed to effectively execute final orders of deportation pursuant to 8 U.S.C. § 1252(c). In particular, the State seeks a declaration that the Attorney General has a duty to adopt policies for the administration of § 1252(c) that are consistent with the ruling of this Court. The State seeks as well to enjoin the Attorney General from continuing to implement a policy that allows "drop off" border deportation for cost transfer and cost saving purposes.


[55] Section 1252(c) provides that "the Attorney General shall have a period of six months" following a final order of deportation "to effect the alien's departure from the United States." 8 U.S.C. § 1252(c). The statute does not define "departure" or otherwise specify any method of effecting deportation.


[56] Because the Attorney General and the Commissioner of the INS reasonably interpret the statute in determining that delivery of an alien to the border "effects the alien's departure from the United States," the Court defers to that interpretation. See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). For the reasons previously stated concerning agency discretion and the Court's lack of authority to review agency actions as discussed in Heckler, California has failed to state a claim in Count VIII.


[57] III.


[58] Sovereign Immunity


[59] California contends that the trial court erred in dismissing Counts I, II, III and IX on the alternative grounds that suits against the United States are barred by sovereign immunity to the extent that monetary awards are sought. We agree that even if the State had asserted a justiciable claim seeking federal funds, such a claim would be barred by the doctrine of sovereign immunity in the absence of Congress having explicitly waived such immunity. See Block v. North Dakota, 461 U.S. 273, 280, 75 L. Ed. 2d 840, 103 S. Ct. 1811 (1983) ("The States of the Union, like all other entities, are barred by federal sovereign immunity from suing the United States in the absence of an express waiver of this immunity by Congress.").


[60] California contends that it seeks "reimbursement" and/or "restitution" as distinguished from "money damages." The State premises its argument on the waiver of sovereign immunity contained in 5 U.S.C. § 702 which states in pertinent part:


[61] An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or officer or employee thereof acted or failed to act in an official capacity under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.


[62] 5 U.S.C. § 702.


[63] While reliance on 5 U.S.C. § 702 is not well taken because the statute specifically exempts "money damages," regardless of its terminology, the "restitution" or "reimbursement" sought is monetary compensation for the monetary damage each state has suffered. The relief California seeks is therefore barred by the Constitution.


[64] IV.


[65] The Court having concluded that all of the claims asserted by the State of California were properly dismissed, the judgment of the district court is AFFIRMED.


[66] Disposition


[67] AFFIRMED.



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General Footnotes

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[68] *fn* Substituted for Leon Panetta, Director of Office Management and Budget.



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Judges Footnotes

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[69] *fn** The Honorable Robert R. Merhige, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation.



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Opinion Footnotes

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[70] *fn1 Both the State of California and the State of Arizona have sought redress from what each contends are violations of constitutional and statutory rights. The claims of each of these states were consolidated for argument. The Court heard the California action first, at counsels' request, followed immediately by argument from the State of Arizona. Although both Complaints contain similar prayers for relief, California's Complaint asserts additional claims than that of the State of Arizona. Accordingly, we resolve the California case in this opinion, and dispose of the Arizona case on the same grounds in an Order filed concurrently herewith.


[71] *fn2 A number of amici curiae have also filed briefs. Amongst these interested parties, all of whom support the Complaint filed by the Plaintiff-Appellants, are a number of United States and California legislators as well as The Washington Legal Foundation, The Allied Education Foundation and The California Correctional Peace Officers Association. The joint briefs of the aforementioned, for which the Court expresses its appreciation, have been considered in reaching the Court's Conclusion.
It is also noted that the Amended Complaint added claims and two state public health officials as plaintiffs and the United States Secretary of Health and Human Services, the Administrator of the United States Health Care Financing Administration, and the United States Secretary of Education as defendants.



[72] *fn3 California contends that 5% of the State's population is made up of illegal immigrants, and estimates that it spends $395 million a year providing emergency health care for illegal aliens, another $390 million on incarceration and parole supervision of illegal aliens, as well as $1.5 billion educating illegal aliens.


[73] *fn4 California's Complaint does not contain a Count IV.


[74] *fn5 The Invasion Clause states: "The United States . . . shall protect each of [the states] against Invasion." U.S. Const. art IV, § 4.


[75] *fn6 See Debate From the Virginia Convention (June 16, 1788), reprinted in 10 The Documentary History of the Ratification of the Constitution 1299, 1312 (Kaminsky & Saladins eds., 1993). See also Padavan, 82 F.3d at 28 (citing The Federalist No. 43).


[76] *fn7 As Justice O'Connor for an unanimous court in New York v. United States stated, in most cases in which the Court has been asked to apply the clause, the Court has found the claims to be nonjusticiable under the "political question" doctrine. New York, 505 U.S. at 184. (citations omitted).


[77] *fn8 The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people." U.S. Const. amend. X.


[78] *fn9 The Supreme Court has noted that participation in the Medicaid scheme is voluntary, Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 502, 110 L. Ed. 2d 455, 110 S. Ct. 2510 (1990).


[79] *fn10 As to the argument that the issue was improperly decided at the motion to dismiss stage, the Eighth Circuit, in a decision affirmed by the Supreme Court, approved of the trial court's dismissal at this stage. South Dakota v. Dole, 791, 634 (8th Cir. 1986), aff'd, 483 U.S. 203 (1987).


[80] *fn11 Title 8 U.S.C. § 1365(a) provides: "Subject to the amounts provided in advance in appropriation Acts, the Attorney General shall reimburse a State for the costs incurred by the State for the imprisonment of any illegal alien or Cuban national who is convicted of a felony by such State." 8 U.S.C. § 1365(a).


[81] *fn12 California notes that the Attorney General can draw upon a lump-sum appropriation of $1,048,538,000 for INS salaries and expense as well as on increased fines and forfeitures authorized by 8 U.S.C. § 1330.



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