Texas v. United States
United States Court of Appeals for the Fifth Circuit
809 F.3d 134 (2015)
DHS's (defendant) DAPA memo directed deferred deportation for certain undocumented parents of citizen or lawful-resident children, framed as granting employees case-by-case discretion, but mandatory language throughout the memo and public presidential statements about consequences for non-compliance suggested applications were meant to be routinely approved; modeled on the similar DACA program, under which DHS had approved 95% of applications despite purportedly discretionary language, the district court found the discretion in both memos pretextual and enjoined DAPA's implementation, and DHS appealed.
Whether, if an administrative agency's purported general policy statement is applied in a way indicating it is a binding rule, the rule requires notice-and-comment rulemaking.