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City and County of San Francisco v. United States Citizenship and Immigration Services

United States Court of Appeals, Ninth Circuit

December 5, 2019

CITY AND COUNTY OF SAN FRANCISCO; COUNTY OF SANTA CLARA, Plaintiffs-Appellees,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants. STATE OF CALIFORNIA; DISTRICT OF COLUMBIA; STATE OF MAINE; COMMONWEALTH OF PENNSYLVANIA; STATE OF OREGON, Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants. STATE OF WASHINGTON; COMMONWEALTH OF VIRGINIA; STATE OF COLORADO; STATE OF DELAWARE; STATE OF ILLINOIS; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; DANA NESSEL, Attorney General on behalf of the People of Michigan; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF RHODE ISLAND; STATE OF HAWAI'I, Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants.

          Northern District of California, Oakland D.C. Nos. 4:19-cv-04717-PJH, 4:19-cv-04975-PJH

          Eastern District of Washington, Richland D.C. No. 4:19-cv-05210-RMP

          Before: BYBEE, IKUTA, and OWENS, Circuit Judges.

          ORDER

          BYBEE, Circuit Judge:

         Since 1882, when the Congress enacted the first comprehensive immigration statute, U.S. law has prohibited the admission to the United States of "any person unable to take care of himself or herself without becoming a public charge." Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214 (1882). Although the precise formulation of this provision has been amended regularly in the succeeding century and a quarter, the basic prohibition and the phrase "public charge" remains. Most recently, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress amended the Immigration and Nationality Act (INA) to provide that "[a]ny alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible." 8 U.S.C. § 1182(a)(4)(A). In making this determination, "the consular officer or the Attorney General shall at a minimum" take five factors into account: age; health; family status; assets, resources, and financial status; and education and skills. Id. § 1182(a)(4)(B)(i). Under longstanding practice, consular officers and the Attorney General consider these factors under a "totality of the circumstances" test.

         In 1999, the Immigration and Naturalization Service (INS), providing guidance to the public and INS field officers, defined "public charge" as an "alien . . . who is likely to become . . . primarily dependent on the government for subsistence" as demonstrated by either "institutionalization for long-term care at government expense" or "receipt of public cash assistance for income maintenance." Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28, 689, 28, 689 (May 26, 1999) (1999 Field Guidance) (internal quotation marks omitted). Although INS determined that the receipt of cash benefits received under a public program would be considered a factor in determining whether an alien was likely to become a public charge, it stated that non-cash benefits would not be taken into account for public-charge purposes. Id.

         In August 2019, following notice and comment, the Department of Homeland Security adopted a new rule, redefining the term "public charge" to require a consideration of not only cash benefits, but also certain non-cash benefits. Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41, 292, 41, 292 (Aug. 14, 2019) (Final Rule). Under DHS's Final Rule a public charge is "an alien who receives one or more public benefits . . . for more than 12 months in the aggregate within any 36-month period." Id. at 41, 501. In turn, DHS defined "public benefits." Consistent with the 1999 Field Guidance, DHS still considers receipt of cash assistance from Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF); and federal, state, or local general assistance programs to be public benefits. To that list, DHS added non-cash assistance received through the Supplemental Nutrition Assistance Program (SNAP), Section 8 housing assistance, Section 8 project-based rental assistance, Medicaid (with certain exceptions), and Section 9 public housing. Id. DHS's rule exempts public benefits received for emergency medical conditions, benefits received under the Individuals with Disabilities Education Act, and school-based services or benefits. Id. It also exempts those benefits received by aliens under 21 years of age, women during pregnancy, and members of the armed forces and their families. Id. DHS repeated that "[t]he determination of an alien's likelihood of becoming a public charge at any time in the future must be based on the totality of the alien's circumstances." Id. at 41, 502.

         Prior to the Final Rule taking effect in October 2019, various states, municipalities and organizations brought suits in California and Washington seeking a preliminary injunction against the implementation of the rule. In Nos. 19-17213 and 19-17214, California, Maine, Oregon, Pennsylvania, and the District of Columbia; the City and County of San Francisco and the County of Santa Clara; and various organizations brought suit in the Northern District of California against the United States under the Due Process Clause of the Fifth Amendment; the Administrative Procedure Act (APA), 5 U.S.C. § 706; and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. The district court granted a preliminary injunction on the basis of the APA, effective against implementation of the rule in the plaintiff states. City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 2019 WL 5100718 (N.D. Cal. Oct. 11, 2019). In No. 19-35914, thirteen states-Washington, Virginia, Colorado, Delaware, Hawai'i, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island-filed suit in the Eastern District of Washington against DHS under the Due Process Clause of the Fifth Amendment and the APA. The district court granted a preliminary injunction on the basis of the APA claims and issued a nationwide injunction. Washington v. U.S. Dep't of Homeland Sec., 2019 WL 5100717 (E.D. Wash. Oct. 11, 2019).

         DHS seeks a stay of both preliminary injunctions.[1] Our authority to issue a stay of a preliminary injunction is circumscribed. Nevertheless, for the reasons explained below, we will grant the stay. DHS has shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay. See Nken v. Holder, 556 U.S. 418, 434 (2009).

         I. BACKGROUND AND PROCEDURE

         We begin with the governing statutory framework, the proposed change to this framework, and the proceedings below.

         A. Statutory Framework

         The INA requires all aliens who seek lawful admission to the United States, or those already present but seeking to become lawful permanent residents (LPRs), to prove that they are "not inadmissible." 8 U.S.C. § 1361; see also id. §§ 1225(a), 1255(a). Section 212 of the INA lists the grounds on which an alien may be adjudged inadmissible. Id. § 1182(a)(1)-(10). One of the grounds for inadmissibility is a determination that the alien is likely to become a "public charge." Id. § 1182(a)(4). Section 212(a)(4) of the INA reads as follows:

(4) PUBLIC CHARGE. -
(A) IN GENERAL.-Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.
(B) FACTORS TO BE TAKEN INTO ACCOUNT.-
(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General[2] shall at a minimum consider the alien's-
(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial status; and
(V) education and skills.
(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support[3] under section 1183a of this title for purposes of exclusion under this paragraph.

Id.

         This provision is applied at different times by different government agencies. When an alien seeks a visa to travel to the United States, a Department of State (DOS) consular officer must make an admissibility determination. See 84 Fed. Reg. at 41, 294 n.3. When an alien arrives at a port of entry without a visa, DHS makes that determination. Id. An alien may also be deemed "inadmissible" even when the alien is already in the country. For example, when an alien seeks an adjustment of status from non-immigrant to LPR, DHS must determine that the alien is not inadmissible. See id. And when an alien is processed in immigration court, the Department of Justice (DOJ) through immigration judges and the Board of Immigration Appeals (BIA) must determine whether that alien is inadmissible. Id.

         Though § 212 of the INA lays out the factors an immigration official must consider "at a minimum" when making a public-charge determination, the INA does not define the term "public charge," or restrict how officials are to consider age, health, family status, financial resources, and education. Indeed, as explained in more detail below, in the context of immigration law, the term "public charge" has had several meanings. Since 1999, however, the term has been defined according to guidelines issued by the INS Field Guidance on the matter. See 1999 Field Guidance, 64 Fed. Reg. at 28, 689. The 1999 Field Guidance defined a public charge as an alien who "is likely to become (for admission/adjustment purposes) primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense." Id. (internal quotation marks omitted). The 1999 Field Guidance did not permit immigration officers to "place any weight on the receipt of non-cash public benefits," id., and allowed consideration of only cash-benefit programs like SSI, TANF, and "[s]tate and local cash assistance programs that provide benefits for income maintenance," id. at 28, 692.

         B. The Proposed Rule

         On October 10, 2018, DHS published a Notice of Proposed Rulemaking (NPRM) indicating its intent to abandon the 1999 Field Guidance and redefine the term "public charge." See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51, 114 (proposed Oct. 10, 2018).[4] It did so acting under the authority vested in the Secretary of Homeland Security to establish immigration regulations and enforce immigration law. See 8 U.S.C. § 1103(a)(3) ("[The Secretary of Homeland Security] shall establish such regulations . . . as he deems necessary for carrying out his authority under the provisions of this chapter."). The proposed rule redefined the term "public charge" in two ways.

         First, the proposed rule for the first time established a required length of time for which the alien would have to rely on public benefits before being labeled a public charge. Under the 1999 Field Guidance, a public charge was defined as an individual "primarily dependent" on government benefits, but the 1999 Field Guidance prescribed no specific time period for which this determination should be made. See 64 Fed. Reg. at 28, 689, 28, 692. Under the new rule, an alien would be considered a public charge if he or she "receives one or more [designated] public benefits . . . for more than 12 months in the aggregate within a 36-month period." 83 Fed. Reg. at 51, 157-58. Moreover, the proposed rule counts each public benefit received, so that "receipt of two different non-monetizable benefits in one month counts as two months." Id. at 51, 166.

         Second, the proposed rule expanded which benefits contributed to a public-charge determination. The proposed rule still included those cash-benefit programs that were listed in the 1999 Field Guidance, but now also includes various in-kind programs, such as:

(A) Supplemental Nutrition Assistance Program (SNAP, formerly called ''Food Stamps''), 7 U.S.C. 2011 to 2036c;
(B) Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD under 24 CFR part 984; 42 U.S.C. 1437f and 1437u;
(C) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under 24 CFR parts 5, 402, 880 through 884 and 886; and
(i) Medicaid, 42 U.S.C. 1396 et seq., [with several exceptions, discussed below] . . .
(iv) Subsidized Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq.

Id. at 51, 290 (to be codified at 8 C.F.R. § 212.21).[5]

         Additionally, the proposed rule added other factors for immigration officers to consider when making a public-charge determination. The rule still required consideration of the alien's age, health, family status, financial status, education and skills, as well as any affidavits of support the alien presents. See 83 Fed Reg. 51, 178 (to be codified at 8 C.F.R. § 212.22). But the proposed rule also laid out new factors to be afforded extra weight. Four factors weigh heavily against the alien in a public-charge determination: (1) a finding that the alien "is not a full-time student and is authorized to work," but cannot demonstrate "current employment, employment history, or [a] reasonable prospect of future employment"; (2) a previous finding of inadmissibility on public-charge grounds; (3) a medical diagnosis that would likely require extensive medical treatment or interfere with the alien's ability to be self-sufficient; and (4) receipt of benefits for more than twelve months within a thirty-six month period. Id. at 51, 198-201 (to be codified at 8 C.F.R. § 212.22). Conversely, two factors would weigh heavily in favor of the alien in a public-charge determination: (1) assets or household income over 250 percent of the Federal poverty line, and (2) individual income over 250 percent of the Federal poverty line.[6] Id. at 51, 292 (to be codified at 8 C.F.R. § 212.22(c)(2)).

         During the sixty-day public comment period that followed the NPRM, DHS collected 266, 077 comments, "the vast majority of which opposed the rule." 84 Fed. Reg. at 41, 297. On August 14, 2019, DHS published the Final Rule in the Federal Register. Id. at 41, 292. In its 216-page Final Rule, DHS made some changes to the proposed rule (which are not relevant here) and addressed the comments it received. The Final Rule was scheduled to take effect on October 15, 2019, and would apply to anyone applying for admission or adjustment of status after that date. Id.

         C. The Proceedings

         1. The Northern District of California Case

         On August 13, 2019, the City and County of San Francisco and the County of Santa Clara sued several government agencies and officials, including U.S. Citizenship and Immigration Services (USCIS), the Acting Director of USCIS Kenneth T. Cuccinelli, DHS, and the then Acting Director of DHS Kevin McAleenan. They brought suit in the United States District Court for the Northern District of California, claiming that the proposed rule violated the APA on two grounds: (1) the rule was not made in accordance with the law, and (2) the rule was arbitrary, capricious, and an abuse of discretion. See 5 U.S.C. § 706(2). Three days later, on August 16, 2019, California, Maine, Oregon, Pennsylvania, and the District of Columbia, sued the same defendants in the same court. They claimed that (1) the proposed rule violated § 706 of the APA because (a) it was not made in accordance with the INA, the IIRIRA, the Rehabilitation Act, or state healthcare discretion, (b) it was arbitrary, capricious, and an abuse of discretion, and (2) the proposed rule violated the Fifth Amendment's Due Process Clause because it denied equal protection based on race and unconstitutional animus.

         Each set of plaintiffs filed a motion to preliminarily enjoin enforcement of the proposed rule. On August 27, 2019, the district court ordered the two cases consolidated.[7]

         The district court heard oral argument on October 2, 2019, and on October 11, granted the preliminary injunction. See City & Cty. of San Francisco, 2019 WL 5100718 at *1, 53. The court first held that both the Counties and the States had standing to sue because they showed imminent financial injury. Id. at *46-47. It held that they were in the statute's zone of interests because, in enacting the public-charge provision of the INA, "Congress intended to protect states and their political subdivisions' coffers." Id. at *41. On the merits, the district court found that the States satisfied the four-factor test for a preliminary injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The court held that the States had a likelihood of success on the merits for at least some of their claims. It found the States were likely to successfully show that the proposed rule was contrary to law because it unreasonably defined the term "public charge," and thus failed the second step of the Chevron analysis. City & Cty. of San Francisco, 2019 WL 5100718, at *28. Alternatively, the court found that the States had shown a serious question as to whether the INA unambiguously foreclosed the proposed change to the definition of public charge, thus causing the Final Rule to fail at Chevron step one. Id. The court also concluded that the States had demonstrated a likelihood of success on the arbitrary-and-capricious claim because DHS failed to adequately consider the adverse economic and public health-related costs of the proposed rule. Id. at *34, *37.

         Further, the court found that the rule's implementation would irreparably harm the Counties and States by causing them to lose millions of dollars in federal reimbursements and face increased operational costs. Id. at *46-49. Focusing on the public's interest in the continued provision of medical services and the prevention of communicable diseases, the district court found both the balance of the equities and the public interest weighed in favor of granting an injunction. Id. at *50-51. However, because the court found that the States had failed to show why a nationwide injunction would be necessary, the court granted an injunction that applied only to those persons living in plaintiff states or counties. Id. at *53.

         On October 25, 2019, DHS sought a stay of the preliminary injunction. DHS informed the court that it would seek appellate relief if the court did not act by November 14.

         2. The Eastern District of Washington Case

         On August 14, 2019, Washington, Virginia, Colorado, Delaware, Hawai'i, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, Rhode Island, and the state attorney general on behalf of Michigan sued USCIS, Cuccinelli, DHS, and McAleenan in the United States District Court for the Eastern District of Washington. They alleged claims similar to those presented in the California cases: (1) the proposed rule violated the APA because (a) it was not in accordance with immigration law or the Rehabilitation Act, (b) it exceeded DHS's statutory jurisdiction or authority, and (c) it was arbitrary, capricious, and an abuse of discretion, and (2) the proposed rule violated the Fifth Amendment's Due Process Clause because it denied equal protection based on race and unconstitutional animus.

         The district court heard oral argument on October 3, 2019, and on October 11, granted the preliminary injunction. See Washington, 2019 WL 5100717, at *23. The court's conclusions largely mirrored those of the Northern District of California, though there were some differences. Citing the States' anticipated economic, administrative, and public-health costs, the court held that the States had standing and that the matter was ripe. Id. at *11. Finding that the INA was enacted "to protect states from having to spend state money to provide for immigrants who could not provide for themselves," the court concluded that the States were within the INA's zone of interests. Id.

         On the merits, the court held that the States had shown a likelihood of success on the arbitrary-and-capriciousness claim and the Chevron claim, though the Washington court was less clear than the California court had been about at which step of the Chevron analysis the proposed rule would fail. Id. at *13-17. Unlike the California court, the Washington court also found that the States were likely to succeed in proving that DHS had violated the Rehabilitation Act, and that DHS acted beyond its congressionally delegated authority in defining self-sufficiency. Id. at *17-18. Noting that "the Plaintiff States provide a strong basis for finding that disenrollment from non-cash benefits programs is predictable, not speculative," and that such disenrollment would financially harm the States, the court found that the States would suffer irreparable harm if the injunction were not issued. Id. at *20-21. On these same grounds, the court found that the balance of the equities and public interest both "tip[ped] in favor" of granting a preliminary injunction. Id. at *21. However, unlike the California court, the Washington court found a geographically limited injunction untenable, in part because a limited injunction might give immigrants an incentive to move from unprotected states to protected states. Accordingly, the Washington court granted the States a nationwide injunction. Id. at *22-23.

         On October 25, 2019, DHS sought a stay of the preliminary injunction. DHS informed the court that it would seek appellate relief if the court did not act by November 14.

         By November 14, neither district court responded to the respective motions to stay. On November 15, 2019, DHS filed a motion in this court for an emergency stay of the injunction.

         II. JURISDICTION

         DHS contends that the plaintiffs do not have Article III standing to sue and that their claims do not fall within the zone of interests protected by the INA. We have an obligation to ensure that jurisdiction exists before proceeding to the merits. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-95 (1998).[8]Additionally, although no party has raised the issue, we must address whether DHS's request for a stay pending appeal is moot in light of the fact that two courts outside our circuit have also issued nationwide injunctions, and any decision we issue here would not directly affect those orders. We conclude that, at this preliminary stage of the proceedings, the States have sufficiently alleged grounds for Article III standing and that DHS's petition for a stay is not moot.

         A. Article III Standing

         Article III of the Constitution limits the federal judicial power to the adjudication of "Cases" and "Controversies." U.S. Const. art. III, § 2, cl. 1. This fundamental limitation "is founded in concern about the proper-and properly limited-role of the courts in a democratic society." Summers v. Earth Island Inst., 555 U.S. 488, 492-93 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). "One of the essential elements of a legal case or controversy is that the plaintiff have standing to sue." Trump v. Hawai'i, 138 S.Ct. 2392, 2416 (2018). "[B]uilt on separation-of-powers principles," standing ensures that litigants have "a personal stake in the outcome of the controversy as to justify the exercise of the court's remedial powers on their behalf." Town of Chester v. Laroe Estates, Inc., 137 S.Ct. 1645, 1650 (2017) (internal citations and alterations omitted).

         To demonstrate Article III standing, a plaintiff must show a "concrete and particularized" injury that is "fairly traceable" to the defendant's conduct and "that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547-48 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). "At least one plaintiff must have standing to seek each form of relief requested," Town of Chester, 137 S.Ct. at 1651, and that party "bears the burden of establishing" the elements of standing "with the manner and degree of evidence required at the successive stages of the litigation," Lujan, 504 U.S. at 561. "At this very preliminary stage," plaintiffs "may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their [preliminary-injunction] motion to meet their burden." Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir. 2017) (per curiam). And they "need only establish a risk or threat of injury to satisfy the actual injury requirement." Harris v. Bd. of Supervisors, 366 F.3d 754, 762 (9th Cir. 2004); see Spokeo, 136 S.Ct. at 1548 (noting that the injury must be "actual or imminent, not conjectural or hypothetical" (quoting Lujan, 504 U.S. at 560)).

         The district courts concluded that the States had standing based on their alleged loss of federal funds and increase in operational costs related to individuals disenrolling from the non-cash public benefits at issue. DHS challenges this finding, arguing that predictions of future financial harm are based on an "'attenuated chain of possibilities' that does not show 'certainly impending' injury."[9] DHS's argument is unavailing for several reasons.

         First, the injuries alleged are not entirely speculative-at least for standing purposes. DHS acknowledges that one result of the Final Rule will be to encourage aliens to disenroll from public benefits. It predicted a 2.5 percent disenrollment rate when proposing the rule. 84 Fed. Reg. at 41, 463. This disenrollment, DHS predicted, would result in a reduction in Medicaid reimbursement payments to the States of about $1.01 billion. Id. at 41, 301. DHS also acknowledged increased administrative costs that would result from the Final Rule. Id. at 41, 389. To be sure, the predicted result is premised on the actions of third parties, but this type of "predictable effect of Government action on the decisions of third parties" is sufficient to establish injury in fact. Dep't of Commerce v. New York, 139 S.Ct. 2551, 2566 (2019).

         Moreover, according to evidence supplied by the States, the predicted results have already started. As more individuals disenroll from Medicaid, the States will no longer receive reimbursements from the federal government for treating them. Similarly, the States have sufficiently alleged that they are facing new and ongoing operational costs resulting from the Final Rule. See City & Cty. of San Francisco, 2019 WL 5100718, at *48. These costs are predictable, likely, and imminent. It is disingenuous for DHS to claim that they are too attenuated at this point when it acknowledged these costs in its own rulemaking process.

         Finally, DHS's reliance on Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013), is unfounded. There, the Court found that various human rights, labor, legal, and media organizations did not have standing to challenge the constitutionality of a law authorizing governmental electronic surveillance of communications for foreign intelligence purposes. Id. at 414. The alleged injury was that the threat of surveillance would compel them to travel abroad to have in-person conversations with sources and witnesses, in addition to other costs related to protecting the confidentiality of sensitive communications. Id. at 406-07. The Court found that the injury was not "certainly impending" because it was highly speculative whether the government would imminently target communications between the plaintiffs and foreign individuals. Id. at 410-11. The assumption that their communications would be targeted was not enough to demonstrate injury in fact. Id. at 411-14. Here, the States are not making assumptions about their claimed injuries. Unlike in Clapper, the States present evidence that the predicted disenrollment and rising administrative costs are currently happening.

         Thus, based on the available evidence at this early stage of the proceedings, we conclude that the States have shown that they have suffered and will suffer direct injuries traceable to the ...


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