                   United States Court of Appeals,

                             Fifth Circuit.

                              No. 95-40721.

 STATE OF TEXAS, on its own behalf and on behalf of all Texans as
parens patriae; George W. Bush, Governor of the State of Texas;
La Joya Independent School District, on their own behalf and as
class representatives of all independent school districts of Texas;
Harris County Hospital District; Dallas County Hospital District;
Bexar County Hospital District, on their own behalf and as class
representatives of all Hospital Districts in Texas; Harris County;
Dallas County; Hidalgo County, on their own behalf and as class
representative of all counties in Texas; The City of Odessa, on
its own behalf and as class representative of all municipalities in
Texas, Plaintiffs-Appellants,

                                      v.

 UNITED STATES of America; Janet Reno, U.S. Attorney General;
Doris Meissner, Commissioner of the Immigration and Naturalization
Service;    Michael S. Williams, Director of Immigration and
Naturalization Service's Texas Regional Office;         Ronald C.
Chandler, Immigration and Naturalization Service's District
Director of the Houston District; Robert A. Wallis, Immigration
and Naturalization Service's District Director of the Houston
District;   Richard M. Casillas, Immigration and Naturalization
Service's District Director of the San Antonio District; Alice
Rivlin, Director, Office of Management and Budget; Margaret M.
Richardson, Commissioner of the Internal Revenue Service,
Defendants-Appellees.

                             Feb. 28, 1997.

Appeal from the United States District Court for the Southern
District of Texas.

Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit
Judges.

     POLITZ, Chief Judge:

     The   State     of   Texas      and   its       political   subdivisions

(collectively,     "the   State")1    appeal     a    Fed.R.Civ.P.   12(b)(6)

    1
     The suit was brought as a class action by the State of Texas
on behalf of all Texans; the Governor; one school district on
behalf of all Texas school districts; three hospital districts on
behalf of all Texas hospital districts; three counties on behalf

                                      1
dismissal of their complaint seeking declaratory and injunctive

relief    which    would   require     that     the    United    States    pay    the

educational,      medical,   and     criminal    justice      expenses     allegedly

incurred as a result of the presence of undocumented or illegal

aliens in Texas. Concluding that the complaint raises questions of

policy rather than colorable claims of constitutional or statutory

violations, we affirm.

                                   Background

     The amended complaint alleges that hundreds of thousands of

undocumented immigrants live in Texas as the direct consequence of

federal    immigration     policy.      The     State    alleges    that    federal

defendants have violated the Constitution and immigration laws by

failing to control illegal immigration and by failing to reimburse

Texas     for   its   educational,       medical,       and     criminal    justice

expenditures on undocumented aliens.                  The State seeks an order

enjoining federal defendants from failing to pay for these alleged

financial consequences of federal immigration policy and requiring

prospective payment as well as restitution for the State's relevant

expenditures since 1988. These expenditures are estimated at $1.34

billion for 1993 alone.

     The    complaint      alleges    breach     of    duties    imposed     by   the

naturalization clause of the Constitution, specifically the duty to


of all Texas counties;      and the City of Odessa, seeking to
represent Texas municipalities. Defendants are the United States;
the Attorney General; the Immigration and Naturalization Service
Commissioner and four INS officials in Texas; the Commissioner of
the Internal Revenue Service; and the Director of the Office of
Management and Budget. The El Paso Independent School District was
denied intervention but was given amicus status.

                                         2
control immigration and to pay for the consequences of federal

immigration policy.            The complaint also alleges that defendants

have       commandeered    State     resources    in    violation   of    the    tenth

amendment          and,   further,     that   defendants'       failure     to    pay

immigration-related expenditures denigrates Texas' republican form

of government, in violation of the Constitution's guaranty clause

and the Articles of Annexation for Annexing Texas to the United

States. Finally, the complaint alleges that the Attorney General's

failure to prevent illegal immigration violates the Immigration and

Nationality Act.

       The district court dismissed this action on three grounds:

(1) the claims present nonjusticiable political questions; (2) the

plaintiffs lack standing;            and (3) the complaint fails to state a

claim on which relief can be granted.2                 The State timely appealed.

                                       Analysis

       A complaint should not be dismissed under Rule 12(b)(6) for

failure to state a claim unless it appears certain that no set of

facts can be proved entitling plaintiffs to relief.3                 For purposes

of our de novo review of the order of dismissal we accept the

complaint's          factual    allegations       as    true,   cautioning        that

conclusionary allegations alone will not pass muster.4


               2
        For purposes of today's disposition we assume, without
deciding, that the plaintiffs have standing.
           3
       Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957).
       4
        Campbell v. City of San Antonio, 43 F.3d 973 (5th Cir.1995).


                                          3
     Arizona, California, Florida, New Jersey, and New York have

brought similar actions seeking federal reimbursement for expenses

allegedly incurred as a result of illegal immigration.5                 All of

these actions were dismissed by the trial court for failure to

state a colorable claim or as presenting nonjusticiable political

questions.     All were affirmed on appeal by our colleagues in the

Second, Third, Ninth, and Eleventh Circuits.

Naturalization Clause

         The naturalization clause, article I, section 8, clause 4 of

the Constitution provides that Congress "shall have Power ... To

establish an uniform Rule of Naturalization."                  The clause is a

principal     source    of   the    broad     authority   of    Congress   over

immigration matters, a discretionary authority subject to limited

judicial review.6       Our colleagues in the Second and Third Circuits

have found similar naturalization clause claims seeking federal

reimbursement to be nonjusticiable and lacking in merit.7

         A   judicial    action    presents    a   nonjusticiable    political

question not amenable to judicial resolution where there is "a


         5
       Arizona v. United States, 104 F.3d 1095 (9th Cir.1997);
California v. United States, 104 F.3d 1086 (9th Cir.1997); New
Jersey v. United States, 91 F.3d 463 (3d Cir.1996); Padavan v.
United States, 82 F.3d 23 (2d Cir.1996); Chiles v. United States,
69 F.3d 1094 (11th Cir.1995), cert. denied, --- U.S. ----, 116
S.Ct. 1674, 134 L.Ed.2d 777 (1996). Each of these cases omitted
some of the counts in the instant complaint or included other
claims not present here.
     6
      Toll v. Moreno, 458 U.S. 1, 102 S.Ct. 2977, 102 L.Ed.2d 563
(1982); Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50
(1977).
     7
      New Jersey;       Padavan.

                                       4
textually demonstrable constitutional commitment of the issue to a

coordinate       political      department;      or     a       lack   of   judicially

discoverable       and   manageable    standards        for      resolving    it...."8

Nonjusticiability based on commitment of the issue to a coordinate

political       department      generally     entails       a    finding     that   the

Constitution confers thereon final authority over the question at

issue, to the exclusion of the judiciary.9                  A holding that a case

presents a nonjusticiable political question is "very different

from       determining   that    specific    congressional         action    does   not

violate the Constitution.          That determination is a decision on the

merits that reflects the exercise of judicial review, rather than

the abstention from judicial review that would be appropriate in

the case of a true political question."10               We are not aware of and

have difficulty conceiving of any judicially discoverable standards

for determining whether immigration control efforts by Congress are

constitutionally adequate.

            Were we to assume, arguendo, the justiciability of this

claim, judicial review of congressional and executive action in the

immigration arena is limited.          " "[O]ver no conceivable subject is

the legislative power of Congress more complete than it is over'



            8
       Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7
L.Ed.2d 663 (1962).
       9
     See Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122
L.Ed.2d 1 (1993).
           10
       United States Dep't of Commerce v. Montana, 503 U.S. 442,
458, 112 S.Ct. 1415, 1425, 118 L.Ed.2d 87 (1992) (footnote
omitted).

                                         5
the admission of aliens."11          Courts must give special deference to

congressional and executive branch policy choices pertaining to

immigration.12

     We conclude that the naturalization clause claims lack merit.

Neither the language, history, nor judicial interpretations of the

clause support the contention that it imposes a reimbursement duty

on the federal government.13            The State would find support for its

novel theory in a resolution by the House of Representatives

stating that inadequate immigration law enforcement has imposed on

state and local governments financial costs which the federal

government has an obligation to reimburse.14                   A congressional

resolution cannot create a constitutional duty.                   The State also

contends that article I, section 8 of the Constitution implies the

authority     to    carry   out   all    functions    necessary    to   reach   the

objective      of       Congress'       powers,      and   that     payment      of

immigration-related         expenses     is   a   necessary   function    of    the

naturalization power.             Although the grant of broad powers to

Congress by the naturalization clause undoubtedly includes the

discretion to decide whether to appropriate funds to states for the

expenses at issue, we perceive no basis for reading into the clause


     11
       Fiallo, 430 U.S. at 792, 97 S.Ct. at 1478 (quoting Oceanic
Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671,
676, 53 L.Ed. 1013 (1909)).
     12
          Fiallo.
     13
          New Jersey;    Padavan.
     14
      H.R.Con.Res. 218, 103d Cong., 2d Sess., 140 Cong.Rec. 1210
(1994).

                                          6
an affirmative duty to do so.

Tenth Amendment Claim

      The tenth amendment ensures that "[t]he powers not delegated

to the United States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively, or to the

people."        Congress may not assume control over the legislative

processes of the states by directly compelling them to enact and

enforce     a   federal    regulatory     program.15          The    tenth      amendment

promotes accountability to the electorate.                    "[W]here the Federal

Government       directs   the   States       to   regulate,        it   may    be   state

officials who will bear the brunt of public disapproval, while the

federal officials who devised the regulatory program may remain

insulated from the electoral ramifications of their decision."16

      The State contends that federal defendants have commandeered

its financial resources by forcing it to provide services to

undocumented       aliens.       According         to   the     State,         inadequate

enforcement of immigration laws presents the State with a Hobson's

choice:     to pay medical and correctional expenses of undocumented

aliens or to place at risk the public health and safety.

     We hold that in the absence of a federal statute or regulation

or executive branch directive specifically compelling states to

provide services to undocumented aliens, the federal government


     15
      New York v. United States, 505 U.S. 144, 160-61, 112 S.Ct.
2408, 2420, 120 L.Ed.2d 120 (1992) (quoting Hodel v. Virginia
Surface Mining & Reclamation Ass'n, 452 U.S. 264, 287-89, 101 S.Ct.
2352, 2366, 69 L.Ed.2d 1 (1981)).
     16
          New York at 169, 112 S.Ct. at 2424.

                                          7
cannot be said to have commandeered state legislative processes in

violation of New York v. United States.                           We agree with our

colleagues in the Second, Third, Ninth, and Eleventh Circuits that

state      expenditures      on   medical        and    correctional         services     for

undocumented immigrants are not the result of federal coercion.17

The State's correctional expenses stem from its enforcement of its

own penal laws, not federal laws, and federal law requires states

to provide emergency medical care to undocumented aliens only if

the states voluntarily choose to receive federal funds from the

Medicaid program.18 The Supreme Court has recognized that the tenth

amendment permits Congress to attach conditions to the receipt by

the states of federal funds that have the effect of influencing

state legislative choices.19            "[T]o hold that motive or temptation

is   equivalent       to    coercion    is       to    plunge    the    law      in    endless

difficulties."20         This we will not do.

           Finally, the State's public education expenditures for the

children      of    undocumented       aliens         are    required       by   the    equal

protection         clause    rather    than       by        actions    of     the     federal

defendants.21         A duty imposed on states by the Constitution can

hardly be said to violate the tenth amendment's reservation of

      17
           Padavan;    New Jersey;      California;           Chiles.
      18
           California;      Padavan.
        19
       New York; South Dakota v. Dole, 483 U.S. 203, 107 S.Ct.
2793, 97 L.Ed.2d 171 (1987).
      20
           Dole at 211, 97 S.Ct. at 2798 (quotation omitted).
      21
      See Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d
786 (1982).

                                             8
unenumerated powers to the states.22 Accordingly, the State has not

alleged a cognizable claim of violation of the tenth amendment.23

Guaranty Clause Claims

          The complaint alleges that federal immigration policy and

defendants' failure to pay for state expenditures related to

undocumented aliens infringes on the right of Texas voters to

determine the spending priorities of state government in violation

of the guaranty clause of the Constitution and the Articles of

Annexation for Annexing Texas to the United States.      The guaranty

clause, article IV, section 4, provides that "[t]he United States

shall guarantee to every State in this Union a Republican Form of

Government."

     Although the Supreme Court has suggested that perhaps not all

claims under the guaranty clause present nonjusticiable political

questions, in the main the Court has found that such claims are not

judicially enforceable.24      In cases seeking federal reimbursement

for states' immigration-related expenses, the Second, Ninth, and

Eleventh Circuits have held guaranty clause claims nonjusticiable.25

The State suggests no manageable standards by which a court could

decide the type and degree of immigration law enforcement that

would suffice to comply with its strictures. Whatever might be the


     22
       Puerto Rico v. Branstad, 483 U.S. 219, 107 S.Ct. 2802, 97
L.Ed.2d 187 (1987).
     23
          California;   Padavan.
     24
          New York at 182-86, 112 S.Ct. at 2432-33.
     25
          Padavan;   California;   Chiles.

                                     9
decision in other cases in other settings, we are persuaded that

the case now before us does not present a justiciable claim of

violation of the guaranty clause.

           Further, were we to assume that the present complaint is

justiciable, it fails to allege a realistic risk of denying to

Texas its guaranteed republican form of government. The defendants

are not mandating the State to take any action with respect to

undocumented aliens.           Any inaction by the federal government with

respect to immigration enforcement or payment of state expenditures

cannot realistically be said to pose a meaningful risk of altering

the Texas government's form or method of functioning.                   The Texas

electorate is not being deprived of the opportunity to hold state

and federal officials accountable at the polls for their respective

policy choices. We must conclude that the complaint fails to state

a violation of the guaranty clause or the Articles of Annexation.

Statutory Claim

           Finally, the State alleges that the Attorney General has

breached a nondiscretionary duty to control immigration under the

Immigration and Nationality Act.26             The State candidly concedes,

however, that section 1103 places no substantive limits on the

Attorney      General    and    commits   enforcement     of    the   INA   to   her

discretion.27

       The State's allegation that defendants have failed to enforce

the   immigration       laws    and   refuse   to   pay   the   costs   resulting

      26
           8 U.S.C. § 1103.
      27
           Chiles;   see also California.

                                          10
therefrom is not subject to judicial review.               An agency's decision

not   to     take   enforcement    actions     is    unreviewable      under    the

Administrative Procedure Act28 because a court has no workable

standard      against     which   to   judge   the     agency's    exercise     of

discretion.29 We reject out-of-hand the State's contention that the

federal defendants' alleged systemic failure to control immigration

is so extreme as to constitute a reviewable abdication of duty.

The State does not contend that federal defendants are doing

nothing      to   enforce   the   immigration       laws   or   that   they    have

consciously decided to abdicate their enforcement responsibilities.

Real or perceived inadequate enforcement of immigration laws does

not constitute a reviewable abdication of duty.30

      The judgment appealed is AFFIRMED.




      28
           5 U.S.C. §§ 701-706.
      29
      Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d
714 (1985).
      30
           See Heckler.

                                        11
