CITY AND COUNTY OF SAN FRANCISCO; COUNTY OF SANTA CLARA, Plaintiffs-Appellees,
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,
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,
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.
Eastern District of Washington, Richland D.C. No.
Before: BYBEE, IKUTA, and OWENS, Circuit Judges.
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"
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.
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.
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).
seeks a stay of both preliminary injunctions. 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).
BACKGROUND AND PROCEDURE
begin with the governing statutory framework, the proposed
change to this framework, and the proceedings below.
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
(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 shall at a minimum consider the
(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 under section 1183a of this title for
purposes of exclusion under this paragraph.
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.
§ 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.
The Proposed Rule
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). 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.
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.
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
(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. §
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. Id. at 51, 292 (to be codified
at 8 C.F.R. § 212.22(c)(2)).
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.
The Northern District of California Case
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
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
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.
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.
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.
The Eastern District of Washington Case
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.
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.
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
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.
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.
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).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.
Article III Standing
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
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
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." DHS's argument is unavailing
for several reasons.
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).
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.
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.
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