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Defendants’ Response to Plaintiffs’ Emergency Application for Preliminary Injunction 14

Texas, the citizenship and birthdate of the child generally may be verified through the VSU’s

statewide database. Id. This allows applicants to apply for or to continue CHIP or Children’s

Medicaid benefits for the child without obtaining a certified copy of the child’s birth record. Id.

The Commission’s website makes clear that birth certificates are not required for Texas-

born children:

Q. Do I need to send a copy of my child's birth certificate with the application? A. If your child was born in Texas, you do not need to send a copy of the child’s birth certificate. We can find a copy of the certificate in our system. If the child was born in another state or another country, you will need to send a copy of the child’s birth certificate along with the other items we need to prove your income and expenses.

. . .

Q. Can I send something other than my child’s birth certificate to prove that he or she is a U.S. citizen? A. You do not need to prove your child's citizenship if the child was born in Texas. We can look up Texas birth certificates in our system. . . .

https://chipmedicaid.org/en/Get-Help/Filling-Out-the-Application-Form

IV. Mandatory Preliminary Injunction Standard Applied

A. Plaintiffs have failed to prove they will prevail on the merits.

1. Plaintiffs Have Failed to Show a Likelihood of Success on their Fourteenth Amendment Claims.

a. Plaintiffs have failed to show a likelihood of success on the merits of their equal

protection claims.

No Actionable Classifications. Plaintiffs’ equal protection claims fail at the very threshold.

As evident in the plain language of Rule 181, the State has not created the type of classification

necessary to support an equal protection claim. The Fifth Circuit case Johnson v. Rodriguez, 110

F.3d 299 (5th Cir. 1997) provides clear guidance in the analysis of an equal protection claim.

Johnson provides the following overview:

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“The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S. 620, ––––, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996) (citations omitted). Thus, “a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). Rather, as long as they do not burden a fundamental right or target a suspect class, “state agencies may pursue legitimate purposes by any means having a conceivable rational relationship to those purposes.” Stern v. Tarrant County Hosp. Dist., 778 F.2d 1052, 1054 (5th Cir.1985) (en banc ), cert. denied, 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986).

110 F.3d at 306. The court then observes:

Even the deferential “rational basis” scrutiny which is applied to ordinary governmental classifications is not appropriate, however, when the challenged law does not create any classifications at all. As we have previously stated, “if the challenged government action does not appear to classify or distinguish between two or more relevant persons or groups, then the action––––even if irrational––––does not deny them equal protection of the laws.” Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir.1988) (citation omitted). Thus, when we are confronted with a state action which does not so classify or distinguish, we need not consider whether there is a “rational basis” for that action because such state actions are not subject to Equal Protection scrutiny. Vera v. Tue, 73 F.3d 604, 609–610 (5th Cir.1996), citing Brennan, 834 F.2d at 1257.

Id. Apart from the obvious distinction between applicants who can meet the requirements of

reliable identification set forth in the Rule and those who cannot, Rule 181 simply does not classify

or distinguish between two or more relevant persons or groups of persons. It most definitely does

not call out parents on their “undocumented immigration status” or children of applicants on any

such basis, which are the two “classes” upon which Plaintiffs rely in their in their equal protection

claims. (Application, Doc. 25, pp. 1, 8). The analysis may end there.

No Discriminatory Intent. Johnson further informs:

State actors may create classifications . . . de facto, through the enforcement of a facially neutral law in a manner so as to disparately impact a discernible group. The Supreme Court has instructed us time and again, however, that disparate impact alone cannot suffice to state an Equal Protection violation; otherwise, any law could be challenged on Equal Protection grounds by whomever it has negatively impacted. See Washington v. Davis, 426 U.S. 229, 246–250, 96 S.Ct. 2040, 2051–2052, 48 L.Ed.2d 597 (1976). Thus, a party who wishes to make out an Equal Protection claim must prove “the existence of purposeful

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discrimination” motivating the state action which caused the complained-of injury. McCleskey v. Kemp, 481 U.S. 279, 292–293, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987) (citation omitted); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264– 266, 97 S.Ct. 555, 563, 50 L.Ed. 2d 450 (1977); Davis, 426 U.S. at 238–240, 96 S.Ct. at 2047. “Discriminatory purpose in an equal protection con-text implies that the decisionmaker selected a particular course of action at least in part because of, and not simply in spite of, the adverse impact it would have on an identifiable group.” Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995), quoting United States v. Galloway, 951 F.2d 64, 65 (5th Cir. 1992).

Id. at 306-07. Plaintiffs have not made any such showing of discriminatory purpose, much less a

showing of substance sufficient to support the extraordinary issuance of a preliminary mandatory

injunction.

No Strict or Intermediate Scrutiny Based on Class. Because the Rule does not make

classifications and because Plaintiffs have failed to establish discriminatory intent as a motivation

for a de facto impact, the Court need not reach a determination of what level of scrutiny should

apply. But even if it does reach that issue, given that the Plaintiff parents are undocumented aliens,

the challenged rule is subject to rational basis review, not strict scrutiny or intermediate scrutiny

review. Plyler v. Doe, 457 U.S. 202, 223 (1982) (“Undocumented aliens cannot be treated as a

suspect class because their presence in this country in violation of federal law is not a

‘constitutional irrelevancy.’”). In LeClerc v. Webb, 419 F.3d 405, 416, nn. 22, 23 (5th Cir. 2005),

the Fifth Circuit observed that “[t]he Court has never applied strict scrutiny review to a state law

affecting any other alienage classifications, e.g., illegal aliens, the children of illegal aliens, or

nonimmigrant aliens.” (emphasis added.). See also, Van Staden v. St. Martin, 664 F.3d 56, 58 (5th

Cir. 2011) (restating the holding in Le Clerc and observing that the Court has never applied to

strict scrutiny to illegal aliens or the children of illegal aliens). In analyzing the issue and with

reference to Plyler, the Fifth Circuit observed: “the Court acknowledged that the immigration

status of the affected class of aliens precluded use of either intermediate or strict scrutiny review,”



419 F.3d at 416. See also, 416 F.3d at 419-20 (“[T]here is no precedential basis for the proposition

that nonimmigrant aliens are a quasi-suspect class or that state laws affecting them are subject to

intermediate scrutiny. . . . The decision in United States v. Virginia, 518 U.S. 515 . . . (1996) . . .

furnishes no authority for the application of intermediate Equal Protection analysis to alienage

classifications. . . . Again, we decline to move where the Supreme Court has not gone.”). Thus,

the status of the Plaintiff parents precludes application of either strict scrutiny or intermediate

scrutiny.

From their Application (Doc. 25, p. 8), the Plaintiff children do not appear to argue that

their class—children of illegal aliens (as used by the Fifth Circuit in LeClerc)—triggers strict or

intermediate scrutiny. Rather, Plaintiff children claim that it is the nature of their affected rights

that triggers strict scrutiny. (Doc. 25, pp.8-9.) In any event, Plyler and LeClerc would preclude

strict or intermediate scrutiny as to the claims of the children. Indeed, in this case, as in Plyler, it

is their status as children of illegal aliens that defines their class (Doc. 25, 8) and in Plyler the

Court declined to apply strict or intermediate scrutiny. Instead, in Plyler, the Court applied a

heightened rational basis test to the claims of the plaintiff children of illegal aliens. Under this

test, the challenged law must further some “substantial” goal of the State. Plyler, 457 U.S. at 224,

230; LeClerc, 419 F.3d at 416. However, the reason the Court in Plyler elevated the rational basis

test that would otherwise apply, as it should here, to a “heightened” rational basis test was the

significance of a public education and the fact that the statute directly authorized local school

districts to deny enrollment in their public schools to children not legally admitted to the country.

Plyler, 457 U.S. at 205. The Plyler heightened rational basis test should have no application here

because Rule 181 says nothing at all about public education and certainly does not deny enrollment

to anyone.



Scrutiny Based on Claimed Fundamental Rights. Plaintiffs cannot establish a likelihood

of success on the merits of their equal protection or due process claims because Rule 181 does not

burden a fundamental right. Because Rule 181 neither draws actionable classifications nor has

been demonstrated to have been motivated in part by discriminatory intent, the Court need not

reach the issue of whether strict scrutiny is triggered by the nature of the rights Plaintiffs claim are

at issue. If the Court reaches that issue, however, it should rule against strict scrutiny on the simple

fact (one wholly ignored by the Plaintiffs) that Rule 181 addresses, and only addresses the issuance

of a certified copy of a birth certificate. No provision in the Rule denies or abridges citizenship, a

public education, family integrity, travel, or any other right Plaintiffs would try to use to bootstrap

strict scrutiny. Where fundamental rights have triggered strict or heightened scrutiny, the

challenged law actually did implicate the right in question. For confirmation, one need only look

to the cases the Plaintiffs cite: Romer v. Evans, 517 U.S. 620, 624 (1996) (“Yet Amendment 2, in

explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative,

executive or judicial action at any level of state or local government designed to protect the named

class, a class we shall refer to as homosexual persons or gays and lesbians); Plyler, 457 U.S. at

205 (statute directly authorized local school districts to deny enrollment in their public schools to

children not legally admitted to the country); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 146

(1963) (statutes divested an American of his citizenship for leaving or remaining outside the

United States at time of war and national emergency for purpose of evading military service);

Shapiro v. Thompson, 394 U.S. 618 (1969) (District of Columbia statutory provision denying

welfare assistance to residents of state or district who have not resided within their jurisdictions

for at least one year immediately preceding their applications for such assistance); Edwards v.

People of State of California, 314 U.S. 160 (1941) (statute making it a misdemeanor for a person



to bring or assist in bringing into state any indigent person who was not a resident of the state,

knowing him to be an indigent person); Dunn v. Blumstein, 405 U.S. 330 (1972) (durational

residence laws for voters); Troxel v. Granville, 530 U.S. 57 (1960) (statute permits “[a]ny person”

to petition for visitation rights “at any time” and authorizes state superior courts to grant such rights

whenever visitation may serve a child's best interest); and, Obergefell v. Hodges, 135 S.Ct. 2584

(2015) (Michigan Marriage Act prohibited same-sex marriage). These cases involved laws that

directly impact rights.

Rather than pointing to any part of the Rule itself that affects any fundamental right

(Plaintiffs actually ignore entirely the text of the Rule), Plaintiffs rely instead upon claimed

incidental effects of application of the rule—incidental effects, further, that are unique to each

Plaintiff. As shown above, the cases Plaintiffs cite involved statutes that directly affected the

claimed fundamental rights. Plaintiffs have made no such showing here.

Plaintiffs offer no authority for the proposition that legislation that is silent on a

fundamental right, but that might nevertheless have an incidental effect on that right, is subject to

strict scrutiny. Nor do they offer any limiting principle to any such proposition that would prevent

courts from being inundated with strict scrutiny challenges to nearly every form of legislation

addressing social or economic issues on the basis of incidental effects.1

1 Plaintiffs’ claim of the right of family integrity is a good example of the overbreadth of Plaintiffs’ position. To say

the right is less than clear would be an understatement. See, e.g., Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir. 1988) (The general right of family integrity is “nebulous” and “unsuitab[le] . . . to fix liability in particularized circumstances.”); Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir. 1992) (Plaintiff failed to show that the child care worker’s conduct violated the “nebulous” and “amorphous” right of family integrity.); Doe v. Louisiana, 2 F.3d 1412, 1417 (5th Cir. 1993), cert. denied 510 U.S. 1164 (1994) (“nebulous” right of family integrity); Kiser v. Garrett, 67 F.3d 1166, 1172-73 (5th Cir. 1995)(“amorphous,”“nebulous, ill-defined right to family integrity”); Peters v. Lowrey, 1997 WL 255628 *4 (5th Cir. 1997)(right “nebulous and not clearly established”); Burney v. Carrick, 1999 WL 47014 *3 (5th Cir. 1999) (“nebulous” interest in family integrity); Brian T. v. Ward, 2000 WL 423409 (5th Cir. 2000) (where plaintiff sues social workers whose primary duty is to investigate allegations of child abuse, the case in in the center of the continuum and the right to family integrity may properly be characterized as “nebulous”); and, Doop V. Chapman, 2006 WL 3147323 (5th Cir. 2006) (“nebulous right to family integrity”). Under Plaintiffs’ theory, a statute



Contrary to Plaintiffs’ incidental effect premise, the law requires far more before a

challenged law becomes subject to strict scrutiny. In Bowen v. Gilliard, 483 U.S. 587 (1987), the

Supreme Court analyzed which level of review should apply in an equal protection case involving

an amendment to the federal Aid to Families with Dependent Children program that was severely

impacting families. The plaintiffs claimed that “some form of ‘heightened scrutiny’ is appropriate

because the amendment interferes with a family's fundamental right to live in the type of family

unit it chooses.” Id. at 601. The Court gave as an example one mother who stated that she had sent

a child to live with the child’s father in order to avoid the requirement of including that child in

her family as would be required by the amendment. The Court held:

We conclude that the District Court erred in subjecting the DEFRA amendment to any form of heightened scrutiny. That some families may decide to modify their living arrangements in order to avoid the effect of the amendment, does not transform the amendment into an act whose design and direct effect are to “intrud[e] on choices concerning family living arrangements.” Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1936, 52 L.Ed.2d 531 (1977).

Id. at 601-02. On this point the Court noted “If the DEFRA amendment's indirect effects on

family living arrangements were enough to subject the statute to heightened scrutiny, then the

entire AFDC program might also be suspect since it generally provides benefits only to needy

families without two resident parents.” Id. at 602, n. 17. In reaching its conclusion, the Court

relied on its prior holdings in Lyng v. Castillo, 477 U.S. 635, 638 (1986) and Zablocki v. Redhail,

434 U.S. 374 (1978) to the effect that a classification must “directly and substantially” interfere

that is facially silent on family integrity would be subject to a strict scrutiny challenge solely on the basis that it had an incidental effect, perhaps unique to a single litigant, on a nebulous and amorphous right. Likewise, anyone who fails to obtain a certified copy of a birth certificate could make a strict scrutiny challenge to the Rule on the basis he or she was denied “citizenship.” Plaintiffs’ positions are untenable and unsupported by law.



with a right for it to constitute a burden on a fundamental right. Id. at 603. To the same effect is

the holding in Philadelphia Police and Fire Ass’n for Handicapped Children Inc. v. City of

Philadelphia, 874 F.2d 156 (3d Cir. 1989), which involved cuts in rehabilitative services to the

plaintiffs. There the class members contended “that heightened scrutiny is appropriate because

their fundamental rights to family integrity and to freedom from unnecessary institutionalization

have been burdened by the cut of habilitative services.” Id. at 165. The Third Circuit cited Bowen

for the proposition that “not every burden on a fundamental right will give rise to heightened

scrutiny. If a burden is sufficiently indirect, scrutiny will not be heightened.” Id. at 166. The

district court had found that “[w]ithout continued support in the form of direct habilitative services

or family support services, it will be impossible for [some] members of the class to remain in the

family home.” As to this point the Third Circuit stated:

“The cut in habilitative services does not in itself require members of the class to leave their family homes or enter institutions (although it may make it more likely that they will do so). Because the burden on these fundamental rights is indirect, heightened scrutiny is inappropriate on this ground as well.”

Id. See also, League of United Latin American Citizens v. Bredesen, 500 F.3d 523, 535 (6th Cir.

2007) (“A state law implicates the right to travel when it actually deters travel, when impeding

travel is its primary objective, or when it uses a classification that serves to penalize the exercise

of the right. . . . Something more than a negligible or minimal impact on the right to travel is

required before strict scrutiny is applied.”).

No Showing of Lack of Rational Basis or (Arguendo Only) Heightened Rational Basis. As

demonstrated above, Rule 181 does not create classifications and thus rational basis review does

not even apply. Johnson v. Rodriguez, 110 F.3d 299 at 306 (“Even the deferential ‘rational basis’

scrutiny which is applied to ordinary governmental classifications is not appropriate, however,

when the challenged law does not create any classifications at all.”). Were it to apply, “[i]f the



challenged classification bears a reasonable relationship to the accomplishment of some legitimate

governmental objective, the statute must be upheld.” Anderson v. Winter, 631 F.2d 1238, 1240-41

(5th Cir. 1980). Accordingly, “‘a classification must be upheld against equal protection challenge

if there is any reasonably conceivable state of facts that could provide a rational basis for the

classification,’ and the burden is on the challenger to ‘negative every conceivable basis which

might support [the classification].’” El Paso Apartment Ass'n v. City of El Paso, 415 F. App'x

574, 578 (5th Cir. 2011) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)).

Plaintiffs’ challenge of Rule 181 fails to meet this standard. They have not met their burden

to negative every conceivable basis which might support Rule 181. Nor have Plaintiffs offered

any evidence or argument to rebut what is evident from the face of Rule 181--it rationally serves

the State’s interest in protecting the identity of its citizens by ensuring that only eligible applicants

who offer sufficient, reliable proof of identity may obtain certified copies of birth certificates.

Exhibit 1, Declaration of Geraldine Harris; Exhibit 2, Declaration of Victor Farinelli. This

purpose is also served by the State’s refusal to accept matriculas, whose reliability as evidence of

identity has not been established. Finally, there is no evidence or argument to rebut the fact that

the State’s interest in protecting the identities of is citizens is substantial, were the Court to apply

a heightened rational basis standard.

b. Plaintiffs have failed to show a likelihood of success on the merits of their substantive due process claim.

Plaintiffs’ putative substantive due process claim is not cognizable because it duplicates their

Equal Protection claim. “[W]here a particular Amendment provides an explicit textual source of

constitutional protection against a particular sort of government behavior, that Amendment, not

the more generalized notion of substantive due process, must be the guide for analyzing these

claims.” Lindquist v. City of Pasadena, 525 F.3d 383, 387-88 (5th Cir. 2008) (quoting County of



Sacramento v. Lewis, 523 U.S. 833, 842 (1998)); see also Calhoun v. Hargrove, 312 F.3d 730,

735 (5th Cir. 2002) (“claims that are covered by such specific constitutional provisions must be

analyzed under the standard appropriate to that specific provision and not under the rubric of

substantive due process”) (citing Graham v. Connor, 490 U.S. 386, 395 (1989).

Even if the merits of the substantive due process claim are reached, because the contested

rule passes minimum scrutiny rational basis review, as discussed above, it is, as a matter of law,

not arbitrary and capricious. Brennan v. Stewart, 834 F.2d 1248, 1258-59 (5th Cir. 1988).

2. Plaintiffs have failed to show a likelihood of success on the merits of their preemption claim.

Defendants have set forth at length and re-urge here their arguments as to preemption in

their Amended Motion to Dismiss, filed immediately preceding the filing of this response and in

their prior Reply in Support of Motion to Dismiss (Doc. 18). The burden of persuasion in

preemption cases lies with the party seeking annulment of the state statute. AT&T Corp. v. Public

Utility Com’n of Texas, 373 F.3d 641, 645 (5th Cir. 2004). Plaintiffs have failed to show a

likelihood of success on the merits on both of their preemption theories.

Field Preemption. The Supreme Court has stated that field preemption arises when ‘[t]he

intent to displace state law altogether can be inferred from a framework of regulation ‘so pervasive

. . . that Congress left no room for the States to supplement it’ or where there is a ‘federal interest

. . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on

the same subject.” Arizona v. United States, 132 S.Ct. 2492, 2501 (2012)(citations omitted). “In

preemption analysis, courts should assume that ‘the historic police powers of the States’ are not

superseded ‘unless that was the clear and manifest purpose of the Congress.” Id. Further guidance

as to immigration is found in LeClerc v. Webb, 419 F.3d 405, 423 (5th Cir. 2005), reh’g en banc

denied, 444 F.3d 428 (2006), which draws upon DeCanas v. Bica, 424 U.S. 351 (1976):



Despite the federal government's primacy over the regulation of immigration, not “every state enactment which in any way deals with aliens is a regulation of immigration and thus per-se preempted ....” De Canas, 424 U.S. at 355, 96 S.Ct. at 936. The Constitution, by committing regulation of immigration to the federal government, did not deprive the states of all power to legislate regarding aliens. Id. Nevertheless, ostensibly harmonious state regulation may run afoul of the Supremacy Clause if it, in effect, interferes with the goals of federal policy. Id. Yet, even in this context, “[f]ederal regulation ... should not be deemed preemptive in the absence of persuasive reasons—either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.” Id. at 356, 96 S.Ct. at 937 (internal citation omitted).

Under these authorities, “courts should assume that ‘the historic police powers of the

States’ are not superseded ‘unless that was the clear and manifest purpose of the Congress.’”

Arizona, 131 S.Ct. at 2501. Here, a State’s police power2 to determine to whom and upon what

showing the State should issue a certified copy of a birth certificate (including whether an applicant

has provided reliable evidence of identity) enjoys a presumption of validity and “[f]ederal

regulation . . . should not be deemed preemptive in the absence of persuasive reasons—either that

the nature of the regulated subject matter permits no other conclusion, or that the Congress has

unmistakably so ordained.” DeCanas, 96 S.Ct. at 937. Plaintiffs have simply failed to make any

showing of this type of field preemption. Rather, Plaintiffs are still arguing for some type of per

se preemption based on immigration alone—a concept rejected in LeClerc, 419 F.3d at 423, and

DeCanas, 424 U.S. at 355. The doctrine of field preemption is not nearly as expansive as Plaintiffs

would have it. “Only a demonstration that complete ouster of state power—including state power

to promulgate laws not in conflict with federal laws—was the clear and manifest purpose of

Congress would justify th[e] conclusion” that Congress “intended to oust state authority to regulate

2 Historically, the police power extends to whatever measures a polity chooses to enact to protect, preserve and enhance the lives of its citizens. See Gonzales v. Oregon, 546 U.S. 243, 270 (2006).



... in a manner consistent with pertinent federal laws.” De Canas, 424 U.S. at 357 (quotations

omitted).

Conflict Preemption. For conflict preemption to apply, state laws must conflict with

federal laws. This may occur two ways. “[Conflict preemption] includes cases where ‘compliance

with both federal and state regulations is a physical impossibility,” . . . and those instances where

the challenged law “stands as an obstacle to the accomplishment and execution of the full purposes

and objectives of Congress.” Arizona, 132 S.Ct. at 2501; Villas at Parkside Partners v. City of

Farmers Branch, 726 F.3d 524, 528 (5th Cir. 2013)(en banc), cert. denied, 134 S.Ct. 1491 (2014).

No Direct Conflict. Plaintiffs set up no conflict between state law and any identified federal

law, much less demonstrate that compliance with both is a physical impossibility.

Congressional Purposes and Objectives. Conflict preemption may also be found where

the challenged law “stands as an obstacle to the accomplishment and execution of the full purposes

and objectives of the Congress." Arizona, 132 S.Ct. at 2501. “What is a sufficient obstacle is a

matter of judgment, to be informed by examining the federal statute as a whole and identifying its

purpose and intended effects.” Id. (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363,

372 (2000)). See also, Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 528

(5th Cir. 2013)(en banc), cert. denied, 134 S.Ct. 1491 (2014). Additional guidance comes from the

Supreme Court in Chamber of Commerce of the United States v. Whiting, 131 S.Ct. 1968 (2011),

in which the Court stated:

Implied preemption analysis does not justify a “freewheeling judicial inquiry into whether a state statute is in tension with federal objectives”; such an endeavor “would undercut the principle that it is Congress rather than the courts that preempts state law.” Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 111, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (KENNEDY, J., concurring in part and concurring in judgment); see Silkwood v. Kerr–McGee Corp., 464 U.S. 238, 256, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Our



precedents “establish that a high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act.” Gade, supra, at 110, 112 S.Ct. 2374. Plaintiffs do not even identify the federal statute, the full purposes or objective of which

are obstructed by 25 Texas Admin. Code § 181.28. They thus fail at the very threshold of this type

of conflict analysis.

De Facto Removal. Plaintiffs rely on a de facto removal theory of preemption that,

although urged, could not garner a majority of the en banc Fifth Circuit. Villas at Parkside

Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013)(en banc), cert. denied, 134 S.Ct.

1491 (2014). The Court in Villas, however, made clear that it was not deciding the case on the

basis of field preemption. Villas, 726 F.3d at 529, n.4. Field preemption based on de facto removal

is not the law in the Fifth Circuit.

Nothing in 25 Texas Admin. Code § 181.28 even remotely purports to remove anyone from

the United States. A voluntary decision to leave the United States, even if caused by a State

denying benefits accorded to citizens or legal immigrants, is not a de facto removal because the

State is not physically removing anyone. Plaintiffs’ expansive notion of removal, if accepted,

would apply equally to the California law in De Canas and the Arizona law in Whiting, based on

the contention that denying aliens employment inevitably has the same effect of “removing” some

of them from the State. Yet the Supreme Court upheld the validity of these laws in both cases.

The issue in De Canas was whether a California law imposing fines on employers who knowingly

employed unlawfully present aliens was an unconstitutional attempt by the State to regulate

immigration. As the Court framed the issue:

Power to regulate immigration is unquestionably exclusively a federal power. But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.... [T]he fact that aliens are the subject of a state statute does not render it a



regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.

424 U.S. at 354–55 (citations omitted). While acknowledging that the California law may have

some “indirect impact on immigration,” the Court held that it was not constitutionally preempted.

Id. at 355–56.

Plaintiffs' broad notion of preemption is also inconsistent with the Supreme Court's

decision in Whiting, 131 S.Ct. at 1987, upholding an Arizona law that mandated the use of E–

Verify and revoked the licenses of employers who knowingly employed aliens lacking work

authorization. The Court gave no hint that the Arizona law constituted impermissible state

regulation of immigration based on the suggestion that it may have the effect of causing certain

aliens to leave the State. Instead, the Court carefully analyzed whether the Arizona law was either

expressly preempted by IRCA, or was impliedly preempted because it conflicted with federal law.

Id. at 1977–84. This analysis would have been unnecessary if the Arizona law was “a

constitutionally proscribed regulation of immigration that Congress itself would be powerless to

authorize or approve.” De Canas, 424 U.S. at 356.

Sanctions and Benefits. Plaintiffs further argue in support of preemption in their

Application for Preliminary Injunction under the heading “Sanctions and Benefits” (Doc. 25, p.

19) and conclude with the assertion “Defendants’ denial of birth certificates to Texas-born children

constitutes a gross intrusion into this pervasive, carefully balanced scheme of benefits and

sanctions.” (Id. at 20.) Plaintiffs’ citations to statutes that impose restrictions on persons who enter

the United States unlawfully establish no “field” in conflict with a Texas rule on what an applicant

must show to obtain a child’s birth certificate. Plaintiffs’ citations to statutes they characterize as

preventing “inhumane local treatment of undocumented” individuals likewise do not lay out a



defined exclusive federal field nor do they include any federal statute that preempts the State from

requiring reliable evidence of an applicants’ identity in order to obtain a certified copy of a birth

certificate. In short, Plaintiffs’ concluding section fails to show preemption of any nature.

3. Plaintiffs cannot show they will suffer irreparable harm if injunctive relief does not issue.

The Fifth Circuit has made clear that for injunctive relief, “[s]peculative injury is not

sufficient; there must be more than an unfounded fear on the part of the applicant” for injunctive

relief. Holland Am. Ins. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985). See also Winter

v. NRDC, Inc., 555 U.S. 7, 22 (2008) (plaintiff must “demonstrate that irreparable injury is likely

in the absence of an injunction”). Far from clearly establishing that imminent irreparable harm is

likely, Plaintiffs’ affidavits by their very terms demonstrate that the harms they do allege a) have

not occurred, but are instead hypothetical and speculative, and b) are unique to each affiant.

Plaintiffs have submitted affidavit proof from only 11 of the 28 parent plaintiffs and,

understandably, none from the children plaintiffs. For the 17 parents who have not submitted

affidavits3 and for the children on whose behalf they sue, Plaintiffs have failed to establish either

a likelihood of success on the merits or irreparable harm. A preliminary injunction as to those

plaintiffs should be denied.

As to the 11 Plaintiffs who have filed affidavits:4

--Nancy Garcia (p. 8)

Fails to establish that the affiant lacks and is unable to obtain documents sufficient to establish identity under Rule 181.

3 Luisa Ines Barragan Gutierrez, Rosa Isela Garcia Naranjo, Diana Hernandez, Javier Reyes, Nancy Hernandez, Marta

Ibarra Luna, Juan Carlos Rodriguez Velasquez, Katerine Johana Portillo, Marcelina Rangel Martinez, Antonia Rodriguez, Damaris Romero Hernandez de Reyes, Brizeida Sanchez, Yveth Vega Diaz, Fany Ventura, Eloina Palafoz, Giovanna Castro, and Yesenia Cortez. 4 These affidavits appear in Doc. 25-1, pages 1 to 52 of 52. Page references herein are to the range of 1-52 and are to the English translation, where provided.



Rather than establishing imminent denial of Medicaid benefits and school enrollment, the affidavit fails to establish that the affiant must in fact have birth certificates for these to continue. The affidavit also fails to establish, for a fact, that she must have birth certificates for section 8 housing and fails to establish she has in fact been denied housing for lack of birth certificates. The affiant’s statement about baptism of her child is a conclusion for which no supporting facts are provided. Her concerns about travel in paragraph 11 are speculative and hypothetical.

--Flavia Garcia (p. 52)

Fails to establish that the affiant lacks documents sufficient to establish identity under Rule 181. The affiant fails to establish as a fact that she has been denied Head Start for lack of a birth certificate. Her statements undermine rather than establish that she has been unable to enroll her child in school. Her statements about “SSI” do not establish that any such benefit has been denied for lack of a birth certificate and her concerns are conjectural, not concrete. Her statements undermine, rather than establish as a fact that her child has been denied Medicaid due to lack of a birth certificate.

--Cynthia Ibarra (p. 16)

Fails to establish that the affiant lacks and is unable to obtain documents sufficient to establish identity under Rule 181. Her conclusions in paragraph 8 are based on hearsay and provide no supporting facts. The affiant has failed to prove (and cannot prove) that she must have a birth certificate for a Texas-born child to obtain Medicaid benefits. Her concerns in paragraph 10 are speculative, not concrete.

--Paulina Nieto Ibarra (p. 19)

Fails to establish that the affiant lacks and is unable to obtain documents sufficient to establish identity under Rule 181.



Paragraph 11 is a conclusion for which the affiant offers no supporting facts, such was whether she has tried to bring her grandson into the country and was turned away for lack of a birth certificate and whether she in fact must have a birth certificate in order to bring her grandchild into the country. Any inference of imminent harm to her grandson is speculative.

--Estrella de Jesus Cedillo Nieto (p. 2)

Fails to establish that the affiant lacks and is unable to obtain documents sufficient to establish identity under Rule 181. Paragraph 8 is a conclusion for which the affiant offers no supporting facts, such as whether she has tried to bring her son into the country and was turned away for lack of a birth certificate and whether she in fact must have a birth certificate in order to bring her child into the country. Any inference of imminent harm to her child is speculative, not concrete.

--Quenia Perez (p. 30)

Fails to establish that the affiant lacks and is unable to obtain documents sufficient to establish identity under Rule 181. Her observations undermine rather than conclusively establish any contention that she has been unable to enroll her child in school. Her concerns about Medicaid are speculative, not concrete. The affiant has failed to prove (and cannot prove) that she must have a birth certificate for a Texas-born child to obtain Medicaid benefits. Her concerns about travel are speculative and hypotehetical.

--Maria Isabel Perales Serna (p. 27)

Fails to establish that the affiant lacks and is unable to obtain documents sufficient to establish identity under Rule 181. Her conclusion in paragraph 4 about daycare is conclusion with no supporting facts. The affiant has failed to prove for a fact that a day care center has in fact denied enrollment due to lack of a birth certificate. She fails to prove for a fact that lack of a birth certificate for her child has resulted in her failing to find employment. Her observations undermine rather than conclusively establish any contention that she has been unable to travel without a birth certificate for her child.



The affiant has failed to prove (and cannot prove) that she must have a birth certificate for a Texas-born child to obtain Medicaid benefits. Any inference of imminent harm to her or her child is speculative, not concrete.

--Leticia Torres (p. 39)

Fails to establish that the affiant lacks documents sufficient to establish identity under Rule 181. She has failed to establish (and cannot) that her child was turned down on Medicaid for lack of a birth certificate. Her concerns about travel are conjectural, not concrete.

--Maria Del Rosario Teran Uriegas (p. 36)

Fails to establish that the affiant lacks documents sufficient to establish identity under Rule 181. The affiant’s concerns in paragraphs 8 and 9 are conjectural, not concrete. The affiant does not state that she has in fact been turned down for WIC, Medicaid and food stamps. She has failed to establish (and cannot) that her child was turned down on Medicaid for lack of a birth certificate. Her harms are speculative, not concrete.

--Violeta Vega (p. 45)

Fails to establish that the affiant lacks documents sufficient to establish identity under Rule 181. She fails to establish as a fact that she lost section 8 housing because she lacked a birth certificate for her child. She has failed to establish (and cannot) that her child was turned down on Medicaid for lack of a birth certificate. Her concerns about Medicaid are conjectural, not concrete. Her harms are speculative, not concrete.

--Juana Gomez Ybarra (p. 10)



Fails to establish that the affiant lacks documents sufficient to establish identity under Rule 181. The affiant’s statement about baptism of her child is a conclusion for which no supporting facts are provided. The affiant’s conclusion that lack of a birth certificate has precluded Head Start and daycare is a conclusion, based on hearsay and is one for which no supporting facts are provided. The affiant has failed to prove, for a fact, that she cannot obtain these services without a birth certificate and that she lacks other documents of identity to obtain these services. Her concerns in paragraphs 11 and 12 are conjectural, not concrete.

Plaintiffs submit two other affidavits. The Affidavit of Juanita Valdez-Cox is not in fact

an affidavit, because it is unsworn and unsigned, and it is not a declaration, because in violation

of 28 U.S.C. § 1746, it has not been signed by the declarant. As such, it is not proper proof in

support of the Application. The Affidavit of Dr. Marsha Griffin does not support the Application

insofar as: 1) it does not pertain directly to any of the Plaintiffs, 2) her generic opinions (in

paragraphs 8 and 9) are qualified on the basis that denial of birth certificates “can” (not will or has)

cause harm, and 3) her opinions about Medicaid (“To the extent that denial . . . ,” paragraph 9) and

public housing and education (“Any interference . . . ,” paragraph 12) are qualified and thus

conjectural. Her affidavit does not establish imminent irreparable harm to any Plaintiff caused by

the lack of a certified copy of a birth certificate.

Plaintiffs’ affidavit proof is insufficient to support a preliminary injunction because the

injuries they recite are speculative and conjectural and they fail to establish that irreparable injury

is likely in the absence of an injunction. Holland Am. Ins., 777 F.2d at 997; Winter v. NRDC, Inc.,

555 U.S. at 22. Further, each Plaintiff must establish his or her own entitlement to preliminary

injunctive relief. For most of the Plaintiffs, there is no proof. For the balance, it is insufficient.

4. Plaintiff cannot show that less harm will result to Defendants if the injunction issues than to Plaintiffs if the injunction does not issue, and the public interest weighs in



favor of denying the sweeping injunctive relief requested by Plaintiffs.

It is well settled that because a “preliminary injunction is an extraordinary remedy never

awarded as of right,” the Court is required to “balance the competing claims of injury and must

consider the effect on each party of the granting or withholding of the requested relief.” See

Winter, 555 U.S. at 24 (internal quotations and citations omitted). Plaintiffs shortchange the

potential harm to Defendants in their Application. (Doc. 25, pp. 5-6.) What they overlook is that

the potential harm is not to Defendants per se, but to Texas citizens to whom Defendants owe a

duty to maintain the confidentiality of their personal identity. Plaintiffs acknowledge that “identity

theft has increased in the U.S. over the years,” yet they fail to recognize or account for the risks of

identity theft that increase as self-identification requirements are loosened.

IV. The Requested Preliminary Injunction is Overbroad and Impermissibly Vague

Plaintiffs seek a mandatory preliminary injunction that would require Defendants “to

immediately identify at least two forms of identification reasonably and actually accessible to

undocumented immigrant parents of Texas-born children; and to issue birth certificates to them

forthwith for any Texas-born child upon presentation of either form of parental identification,”

(Doc. 25, p. 20.)

Rule 65 of the Federal Rules of Civil Procedure requires an injunction to be “specific in

terms; [and] describe in reasonable detail the act or acts sought to be restrained.” The court must

narrowly tailor an injunction to remedy the specific action which gives rise to the order. Fiber

Systems Intern., Inc. v. Roehrs, 470 F.3d 1150, 1159 (5th Cir. 2006); John Doe #1 v. Veneman, 380

F.3d 807, 818 (5th Cir. 2004) “[T]he scope of injunctive relief is dictated by the extent of the

violation established . . . ,” Veneman, 380 F.3d at 818, citing Califano v. Yamasaki, 442 U.S. 682,

702 (1979). “An injunction fails to meet these standards when it is overbroad or vague.” Venemen,



380 F.3d at 818. Vagueness is a question of notice and broadness is a matter of substantive law.

Id; U.S. Steel Corp. v. United Mine Workers, 519 F.2d 1236, 1246 n. 19 (5th Cir.1975).

The requested relief is overbroad because it is not narrowly tailored to address the

demonstrated imminent harm to any of the Plaintiffs. As shown above, most of the Plaintiffs have

presented no proof of a substantial likelihood of recovery on the merits or of harm, whether

irreparable, imminent or otherwise. Those Plaintiffs are not entitled to any preliminary injunction.

Nor are any of the unnamed, non-party “other undocumented immigrant parents of Texas-born

children” covered by the requested preliminary injunction. This is not a class action, yet Plaintiffs

effectively seek relief on behalf of an entire class without affording to Defendants any of the

procedural protections provided by Fed.R.Civ.P. 23.

The requested relief is also impermissibly vague because it requires Defendants to

“determine at least two forms of identification [that are] reasonably and actually accessible to

undocumented immigrant parents of Texas-born children.” This type of injunction is vague

because it assumes that there are indeed two such forms available to all such undocumented parents

and then encumbers Defendants with determining what they are. See, e.g., Venemen, 380 F.3d at

820 (“Although the definition of personal information includes ‘reasonable detail,’ it is not specific

in its terms because it encumbers the federal defendants with determining what combination of

information might enable API, or others for that matter, to determine the name, address, ranch or

location of a Cooperator.”)

Defendants deny that any of the Plaintiffs will prevail on the merits or that they have

demonstrated irreparable harm sufficient to warrant preliminary injunctive relief. If the Court

determines, however, that a preliminary injunction should issue, it should be one that is narrowly

tailored to those Plaintiffs who have put on proof to support their claims and the injunction should



be to issue those Plaintiffs, and only those Plaintiffs, a certified copy of a birth certificate for their

Texas-born, Plaintiff children.

For the foregoing reasons, Defendants request the Court to deny Plaintiffs’ application for

preliminary injunction.

Respectfully Submitted,

KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation ANGELA V. COLMENERO Chief, General Litigation Division /s/ Thomas A. Albright THOMAS A. ALBRIGHT Texas Bar No. 00974790 Attorney-in-Charge Assistant Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 (512) 320-0667 (Fax) ATTORNEYS FOR DEFENDANTS


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