S tates and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. In some cases, such states or localities have also sued to compel federal officials to enforce the immigration laws, or to compensate them for costs associated with unauthorized migration. Litigation in the Mid-1990s

In the mid-1990s, six states which were then home to over half the unauthorized aliens in the United States —Arizona, California, Florida, New Jersey, New York, and Texas—each challenged the federal government's "fail[ure] to control illegal immigration." Limitations on standing—or who is a proper party to seek judicial relief from a federal court—were noted in some cases. However, even when standing was assumed, the states' constitutional and statutory claims failed, as discussed below. The states cited a number of provisions in support of these claims, including 
Section 103(a)(5) of the INA, which at that time tasked the Attorney General with the "duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens" ; the former Section 1252(a)(2)(A) of Title 8 of the U.S. Code , which called for the Attorney General to take any alien convicted of an aggravated felony into custody upon the alien's release from state custody or supervision; the former Section 1252(c) of Title 8 of the U.S. Code , which established a six-month period following the issuance of a final order of removal for federal officials to effectuate the alien's departure from the United States; the former Section 1252( l ) of Title 8 of the U.S. Code , which directed the Attorney General to begin deportation proceedings for aliens convicted of deportable offenses "as expeditiously as possible after the date of conviction"; Section 276 of the INA, which establishes criminal penalties for "illegal reentry" (i.e., unlawfully re-entering the United States after having been removed); and Section 1365 of Title 8 of the U.S. Code , which provides for the reimbursement of costs incurred by the states for the imprisonment of unauthorized aliens or Cuban nationals who have been convicted of felonies. However, all the states' claims were seen to involve matters that were committed to agency discretion as a matter of law and, thus, not reviewable by the courts. It should also be noted that, in three of the six cases, the appellate court expressly rejected the suggestion that federal officials' alleged failure to enforce the immigration laws could be seen as an "abdication" of their statutory responsibilities. 1070 Litigation

In 2011, over a decade after the mid-1990s litigation, Arizona asserted counterclaims challenging the federal government's alleged failure to enforce the immigration laws in the litigation over Arizona's Support Our Law Enforcement and Safe Neighborhoods Act (commonly known as "S.B. Arizona had adopted S.B. 1070 on the grounds that it was preempted by federal law. The court also viewed the Domestic Violence Clause as implicating nonjusticiable political questions. The reviewing federal district court then found that Arizona's various statutory claims involved actions that were committed to agency discretion by law and, thus, were not subject to review by the courts. Mississippi's Claims in Crane v. Napolitano

One year later, in 2012, Mississippi raised similar claims about federal officials' alleged failure to enforce the immigration laws when it joined a challenge brought by some U.S. Immigration and Customs Enforcement (ICE) agents to the Obama Administration's Deferred Action for Childhood Arrivals (DACA) initiative. United States v. Texas and the Challenge to DAPA and the DACA Expansion

Most recently, in December 2014, over 25 states or state officials filed suit challenging the Obama Administration's announcement that it is expanding the DACA program to cover additional aliens who had been brought to the United States as children, and creating a DACA-like program for unauthorized aliens who are the parents of U.S. citizens or LPRs (commonly known as DAPA). In particular, the states assert that these new programs violate the Take Care Clause and separation of powers principles of the Constitution, federal immigration law, and substantive and procedural requirements of the APA. It also imposed a preliminary nationwide ban on the implementation of these programs after finding that the states are likely to prevail on the merits of their argument that the memorandum establishing the programs constitutes a substantive rule, but was issued without compliance with the notice-and-comment procedures required for such rules under the APA. However, an evenly divided Supreme Court ultimately issued a decision that, consistent with recent practice, affirmed the Fifth Circuit's decision without any opinion or indication of the Justices' voting alignment. Fifth Circuit Goes Beyond the District Court in Addressing Substantive Issues

The majority went beyond the district court's ruling, however, in finding that DAPA and the DACA expansion violate the APA substantively, as well as procedurally, because they are "not in accordance with the law" and "in excess of statutory ... authority."
States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. Depending upon the jurisdiction's specific concerns, this interest can be expressed in various ways, from the adoption of "sanctuary" policies limiting the jurisdiction's cooperation in federal enforcement efforts to the enactment of measures to deter unauthorized aliens from entering or remaining within the jurisdiction. In some cases, states or localities have also sued to compel federal officials to enforce the INA and other relevant laws.
In the mid-1990s, six states which were then home to over half the unauthorized aliens in the United States—Arizona, California, Florida, New Jersey, New York, and Texas—each filed suit alleging that federal officials' failure to check unauthorized migration violated the Guarantee and Invasion Clauses of the Constitution, the Tenth Amendment, and provisions of the INA. Concerns regarding standing—or who is a proper party to seek relief from a federal court—were sometimes noted. However, even when standing was assumed, the constitutional claims were seen to involve nonjusticiable "political questions," or failed on their merits. The states' statutory claims were similarly seen to involve matters committed to agency discretion by law and, thus, not reviewable by the courts. In three cases, the courts also noted that federal officials' alleged failure to control unauthorized migration did not constitute a reviewable "abdication" of their statutory duties.
Over a decade later, in 2011, Arizona asserted counterclaims challenging the federal government's alleged failure to stop unauthorized migration in the litigation over Arizona's S.B. 1070 measure. Although the court presumed that Arizona had standing, it rejected Arizona's claims regarding violations of the Invasion and Domestic Violence Clauses, Tenth Amendment, and immigration laws. Some claims were seen as precluded or otherwise settled by the earlier litigation. Others were found to involve nonjusticiable political questions, or otherwise failed. The court also rejected the argument that federal officials had abdicated their statutory duties.
Subsequently, in 2012, Mississippi, along with some U.S. Immigration and Customs Enforcement agents, challenged the Obama Administration's Deferred Action for Childhood Arrivals (DACA) initiative on the grounds that it runs afoul of the Take Care Clause, separation of powers, INA, and Administrative Procedure Act (APA). The ICE agents initially prevailed in their claim that DACA is contrary to the INA, although their case was ultimately dismissed on other grounds. However, Mississippi was found to lack standing because it could not show that aliens granted deferred action would have been removed had the Executive not implemented DACA.
Most recently, in December 2014, over 25 states or state officials filed suit challenging the Administration's expansion of DACA and the creation of a DACA-like program for aliens who are parents of U.S. citizens or lawful permanent residents (known as DAPA). The states allege that these programs run afoul of the Take Care Clause and separation of powers principles of the Constitution, the INA, and substantive and procedural requirements of the APA. After finding that the states have standing, and that DAPA and the DACA expansion are judicially reviewable, a federal district court imposed a preliminary nationwide ban on the implementation of these programs in February 2015, on the grounds that the states are likely to prevail in their argument that the programs run afoul of the APA's procedural requirements. Subsequently, in November 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed the lower court's finding as to the procedural violation of the APA, and also found for the states on their claim that DAPA and the DACA expansion substantively violate the APA because these programs are "not in accordance with law" and "in excess of statutory ... authority." The Supreme Court granted review, but the Justices ultimately split evenly, four votes to four votes. Consistent with recent practice in cases with such splits, the Court affirmed the Fifth Circuit's decision without issuing an opinion.