Neguse v. U.S. Immigration and Customs Enforcement

• Court: District Court, District of Columbia
• Decided: December 17, 2025
• Docket: Civil Action No. 2025-2463
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOE NEGUSE, in his official capacity as a Member of the U.S. House of Representatives, et al., Case No. 25-cv-2463 (JMC)

Plaintiffs,

v.

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,

Defendants.

MEMORANDUM OPINION

Every year since 2020, Congress has passed and the President has signed an appropriations

bill that prohibits the Department of Homeland Security (DHS) from using appropriated funds “to

prevent” Members of Congress “from entering, for the purpose of conducting oversight,” any DHS

facility “used to detain or otherwise house aliens.” See, e.g., Further Consolidated Appropriations

Act, 2024, Pub. L. No. 118-47, div. C, tit. V, § 527(a), 138 Stat. 460, 619. 1 This appropriations

rider, colloquially referred to in its current form as Section 527, also prohibits DHS from using

funds provided through the appropriations process to “make any temporary modification at any

such facility that in any way alters what is observed by a visiting Member of Congress” or their

staffs, “compared to what would be observed in the absence of such modification.” Id. The rider

also addresses the subject of notice requirements for entry to covered facilities. For congressional

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page.

1 staff members seeking to visit covered facilities, DHS “may require that a request be made at least

24 hours in advance of an intent to enter” the facility. Id. § 527(c). However, with respect to the

Members of Congress themselves, the rider states that “[n]othing in this section may be construed

to require a Member of Congress to provide prior notice of the intent to enter a facility . . . for the

purpose of conducting oversight.” Id. § 527(b).

In June 2025, U.S. Immigration and Customs Enforcement (ICE) announced two policies

regarding access of Members of Congress to ICE facilities. First, ICE posted a guidance document

to its website regarding rules and procedures for congressional visits to ICE facilities covered by

Section 527. U.S. Immigration and Customs Enforcement (ICE) Facility Visit and Engagement

Protocol for Members of Congress and Staff (June 2025) [hereinafter June 2025 Visit Protocol],

archived at https://perma.cc/UL23-J4ZM. This document, which was subsequently removed from

the website without explanation, specifically noted that “ICE Field Offices” were not detention

facilities that fell within the scope of Section 527’s requirements because those offices did not

house or detain noncitizens, and instead merely “process[ed them] to make custody

determinations.” Id. at 4. Second, later in June, ICE instituted a requirement that all Members of

Congress who seek to visit ICE facilities must make the request seven calendar days in advance

of the visit in order to gain access. See, e.g., Office of Congressional Relations, ICE,

https://perma.cc/P6XD-4HNV. That requirement remains on ICE’s website to this day.

Plaintiffs are twelve Members of Congress who have attempted to visit various ICE

facilities, including field offices, without providing advance notice. All claim to have been denied

entry to the facilities under one of the policies described above. Plaintiffs now bring this suit to

challenge these policies, referred to collectively in this opinion as the Oversight Visit Policies. See

ECF 1 ¶ 8. They allege that Defendants have acted unlawfully in creating and enforcing the

2 Oversight Visit Policies because the policies prevent Members of Congress from conducting

unannounced, in-person oversight at ICE facilities in violation of Section 527. Plaintiffs allege that

the policies are contrary to law, in excess of DHS’s statutory authority, and arbitrary and capricious

under the Administrative Procedure Act (APA), and that they represent an ultra vires violation of

Section 527. Id. ¶¶ 273–81, 287–92. Plaintiffs also argue that Defendants have violated the APA

by unlawfully withholding and unreasonably delaying access to covered facilities, id. at ¶¶ 282–

86, and that if APA or ultra vires challenges are not available, they are entitled to mandamus relief,

id. ¶¶ 293–99.

After filing suit, Plaintiffs moved to preliminarily stay the Oversight Visit Policies under

5 U.S.C. § 705 pending judicial review. ECF 17. In the alternative, they request a preliminary

injunction. Id. Defendants—DHS, ICE, and several agency officials—oppose the motion on

various grounds, including that Plaintiffs lack both standing and a cause of action to bring the suit,

and that Plaintiffs’ claims fail on the merits. For the reasons stated below, the Court concludes that

Plaintiffs have shown a likelihood of success on the merits of their claim that the challenged

Oversight Visit Policies are contrary to law and in excess of DHS’s statutory authority. Further,

the remaining factors governing issuance of preliminary relief support a stay of the challenged

policies. As such, the Court will GRANT Plaintiffs’ motion for preliminary relief in the form of a

stay under Section 705 of the APA.

I. BACKGROUND

A. Statutory and Regulatory Background

This case involves the application of statutes that fund Defendant Department of Homeland

Security and its various sub-agencies. One of those sub-agencies is U.S Immigration and Customs

Enforcement, commonly known as ICE. See Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005)

3 (describing ICE, previously named the “Bureau of Immigration and Customs Enforcement,” as

one of the “divisions” of DHS). DHS is tasked with carrying out the nation’s “detention and

removal program.” 6 U.S.C. § 251(2); see N.S. v. Dixon, 141 F.4th 279, 282 n.1 (D.C. Cir. 2025).

Under the immigration laws, certain classes of noncitizens may be detained during removal

proceedings or pending their removal from the United States. See, e.g., 8 U.S.C.

§§ 1225(b)(1)(B)(ii), 1226(c), 1231(a)(2)(A). 2 Responsibilities assigned to the Secretary of

Homeland Security and delegated to ICE include “arrang[ing] for appropriate places of detention

for aliens detained pending removal or a decision on removal.” Id. § 1231(g)(1) 3; C.G.B. v. Wolf,

464 F. Supp. 3d 174, 186, 196 (D.D.C. 2020) (noting that ICE “oversees the departure of

removable immigrants from the United States,” including by “oversee[ing] the civil detention of

immigrants”).

To effectuate that statutory duty, ICE’s Enforcement and Removal Operations (ERO)

oversees more than 100 civil immigration detention facilities across the country, and hundreds of

thousands of adult immigrants are detained in those facilities in a given year. See, e.g., Annual

Report: Fiscal Year 2024, ICE 22–23, 23 fig. 13 (Dec. 19, 2024) [hereinafter ICE FY 2024

Report], https://perma.cc/M72B-NZLA (noting 277,913 “book-ins” to 129 detention facilities over

the course of the fiscal year, with approximately 37,684 noncitizens detained as of the end of the

2 The statutes in question in this case typically use the term “aliens” rather than “noncitizens.” However, as this Court has previously explained, Coal. for Humane Immigrant Rts. v. Noem, No. 25-cv-872, 2025 WL 2192986, at *3 n.3 (D.D.C. Aug. 1, 2025), it will use the term “noncitizen” unless quoting from a statute, regulation, or case that uses “alien.” 3 These, and certain other statutory authorities relating to detention of noncitizens pending removal, were originally “exercised by the Attorney General and the Immigration and Naturalization Service (INS).” Clark, 543 U.S. at 374 n.1. Following the Homeland Security Act of 2002, various responsibilities related to the “detention and removal program” were transferred to the Secretary of Homeland Security, Dixon, 141 F.4th at 282 n.1; see Clark, 543 U.S. at 374 n.1, and the Court treats statutory references to the Attorney General in the relevant portions of the Immigration and Nationality Act as references to the Secretary of Homeland Security, see Jafarzadeh v. Duke, 270 F. Supp. 3d 296, 311 n.6 (D.D.C. 2017).

4 fiscal year); Detention Facilities, ICE, https://perma.cc/BU8Q-LDGZ (listing 129 detention

facilities as of September 30, 2025). ICE states that detention facilities are used to “house aliens

to secure their presence for immigration proceedings or removal from the U.S.” Detention

Facilities, ICE, https://perma.cc/BU8Q-LDGZ.

In addition to these detention facilities, ICE also operates field offices and associated “sub-

locations” of those field offices. See ICE FY 2024 Report at 9 (listing “25 domestic field offices

and 182 sub-locations nationwide”). Field offices play a role in directing and managing

immigration enforcement efforts: “ERO manages all aspects of the immigration enforcement

process through the operation of 25 field offices nationwide that report to ERO headquarters.”

Field Offices, ICE, https://perma.cc/3NCM-RS2H. These offices host ICE officials and employees

who oversee regional enforcement efforts. See Fatma Marouf, Regional Immigration Enforcement,

99 Wash. U. L. Rev. 1593, 1595 (2022). They also are home to administrative staff that manage

individual noncitizens’ immigration cases. ICE Field Office Check-Ins, ICE,

https://portal.ice.gov/immigration-guide/check-ins (last visited Dec. 12, 2025). While these field

offices are not classified as detention facilities in ICE’s public materials, ICE’s regulations

nevertheless permit the operation of “holding facilities located within . . . field offices.” Policy

Number 11087.2: Operations of ERO Holding Facilities, ICE, Office of Enforcement and

Removal Operations, § 1.1 (Jan. 31, 2024) [hereinafter ICE Policy Number 11087.2],

https://perma.cc/9UD2-B9WX. The regulations state that a “holding facility” in a field office is to

be “primarily used for the short-term confinement of individuals who have recently been detained,

or are being transferred to or from a court, detention facility, other holding facility, or other

agency” with “short-term confinement” being defined as “a period not to exceed 12 hours, absent

exceptional circumstances.” Id. § 3.2 & n.3.

5 Of course, operating such an extensive network of facilities requires money. DHS, like

many agencies, is funded in large part through annual congressional appropriations. See, e.g.,

Gov’t Accountability Off., Principles of Federal Appropriations Law 2-17 (4th ed. 2016). In our

constitutional scheme, “Congress’s control over federal expenditures is absolute.” U.S. Dep’t of

Navy v. Fed. Lab. Rels. Auth., 665 F.3d 1339, 1348 (D.C. Cir. 2012) (Kavanaugh, J.). The

Constitution provides that “No Money shall be drawn from the Treasury, but in Consequence of

Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. “Congress’[s] power to allocate funds

for public purposes includes an ancillary power to ensure that those funds are properly applied to

the prescribed use.” Rust v. Sullivan, 500 U.S. 173, 195 n.4 (1991). Accordingly, it is

“emphatically . . . the exclusive province of the Congress not only to formulate legislative policies

and mandate programs and projects, but also to establish their relative priority for the Nation.”

Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978).

One way Congress establishes the relative priority of programs and projects is through

appropriations riders. These riders are “provisions in appropriations legislation that limit (or

occasionally require) the use of funds for purposes or activities an agency is authorized to

undertake.” Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1093

(2021). Limitations riders are often “aimed at changing governmental policy: Their prime use is

to forestall the executive branch from proceeding with or developing particular agency initiatives.”

Id.; see also Neal E. Devins, Regulation of Government Agencies Through Limitation Riders,

1987 Duke L.J. 456, 464 (1987) (“Appropriations-based restrictions on agency action may also be

the only realistic way to stop the Executive from launching administrative initiatives that Congress

disfavors.”). These riders are often successful in that goal because, without appropriated funds,

which pays the salaries of agency employees and keeps the lights on at agency facilities, “the

6 executive branch cannot act.” Metzger, supra, at 1077. Such riders, in addition to conditioning

funds and setting policy priorities, may also involve the modification of substantive law. See, e.g.,

Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440 (1992) (“Congress . . . may amend

substantive law in an appropriations statute, as long as it does so clearly.”); Roeder v. Islamic

Republic of Iran, 195 F. Supp. 2d 140, 183 (D.D.C. 2002) (“[T]he power of Congress to legislate

substantive law through riders attached to appropriations bills and thereby bypass the usual process

of development of law is established.”), aff’d, 333 F.3d 228 (D.C. Cir. 2003).

This case concerns one specific rider regarding annual DHS appropriations and ICE’s

operation of detention facilities. The rider, colloquially known as Section 527, reads as follows:

SEC. 527. (a) None of the funds appropriated or otherwise made available to the Department of Homeland Security by this Act may be used to prevent any of the following persons from entering, for the purpose of conducting oversight, any facility operated by or for the Department of Homeland Security used to detain or otherwise house aliens, or to make any temporary modification at any such facility that in any way alters what is observed by a visiting Member of Congress or such designated employee, compared to what would be observed in the absence of such modification:

(1) A Member of Congress.

(2) An employee of the United States House of Representatives or the United States Senate designated by such a Member for the purposes of this section.

(b) Nothing in this section may be construed to require a Member of Congress to provide prior notice of the intent to enter a facility described in subsection (a) for the purpose of conducting oversight.

(c) With respect to individuals described in subsection (a)(2), the Department of Homeland Security may require that a request be made at least 24 hours in advance of an intent to enter a facility described in subsection (a).

Further Consolidated Appropriations Act, 2024 (“FY2024 Appropriations Act”), Pub. L. No. 118-

47, div. C, tit. V, § 527, 138 Stat. 460, 619.

7 The language of what is now known as Section 527 first appeared in the fiscal year 2020

appropriations bill, and has been carried forward to every subsequent DHS yearly appropriations

bill since, either through direct inclusion in the appropriations package, or incorporation by

reference to prior years’ bills and the limitations on funding contained therein. 4 The text of the

rider was most recently enacted as Section 527 of the FY2024 Appropriations Act. See FY2024

Appropriations Act, div. C. tit. V, § 527, 138 Stat. at 619. Section 527 was then carried forward

into the fiscal year 2025 appropriations statutes, which incorporated by reference both the funding

levels and applicable limitations for DHS from the FY2024 Appropriations Act. See Full-Year

Continuing Appropriations and Extensions Act, 2025 (“FY2025 Continuing Appropriations Act”),

Pub. L. No. 119-4, §§ 1101(a)(6), 1105, 139 Stat. 9, 11–12. Next, those funding levels and funding

limitations, including the terms of Section 527, were most recently extended until January 30,

2026, in an appropriations bill passed by Congress and signed by President Trump. See Continuing

Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and

Extensions Act, 2026 (“FY2026 Continuing Appropriations Act”), Pub. L. No. 119-37, §§ 101,

103, 139 Stat. 495, 496–97 (2025).

While the parties dispute the various legal impacts of Section 527, the parties agree that

the provision prohibits DHS from using funds appropriated under DHS’s regular appropriations

acts to engage in any of the activities prohibited in the rider, such as “prevent[ing]” Members of

Congress or their staff members “from entering, for the purpose of conducting oversight,” ICE

facilities that are “used to detain or otherwise house aliens,” or making “temporary

modification[s]” at such facilities that “in any way alter[] what is observed by” a visiting Member

4 See, e.g., Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, div. D, tit. V, § 532, 133 Stat. 2317, 2530 (2019); Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. F, tit. V, § 532, 134 Stat. 1182, 1473 (2020); Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, div. F, tit. V, § 530, 136 Stat. 49, 340–41; Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, div. F, tit. V, § 529, 136 Stat. 4459, 4752–53 (2022).

8 of Congress or designated member of their staff. FY2024 Appropriations Act, div. C. tit. V, § 527,

138 Stat. at 619; see ECF 20 at 28 (“[Section] 527 prohibits the use of certain appropriated funds

to prevent Members from visiting certain facilities.”); ECF 17-1 at 41 (“ICE may not prevent

Plaintiffs from accessing [Section 527-funded facilities] for the purpose of oversight.”).

However, not all of DHS’s current funding comes from the FY2026 Continuing

Appropriations Act. An additional source of DHS funding is the reconciliation bill passed in July

2025, which provides additional funds for DHS, including $29 billion given to ICE to “hir[e] and

train[] additional [ICE] personnel, . . . to carry out immigration enforcement activities,” to cover

“transportation costs and related costs associated with alien departure or removal operations,” and

to provide “[f]unding for facility upgrades to support enforcement and removal operations.” One

Big Beautiful Bill Act (“OBBBA”), Pub. L. No. 119-21, tit. X, § 100052, 139 Stat. 72, 388–89

(2025). These funds are not subject to Section 527’s limitations.

B. Factual Background

1. ICE’s Changing Guidance Regarding Congressional Visits to Detention Facilities and Field Offices

This case involves a challenge to ICE’s policies concerning visits by Members of Congress

and their staffs to ICE facilities. ICE has implemented various policies regarding visits to its

detention facilities. First, ICE’s National Detention Standards “permit authorized persons to visit

detainees within security and operational constraints.” ICE, National Detention Standards § 5.5(I)

(2025) [hereinafter ICE National Detention Standards], https://perma.cc/7QXS-CEA6. ICE’s

standards also allow the agency to “temporarily restrict visiting when necessary to ensure the

security and good order of the facility.” Id. § 5.5(II)(A). However, the National Detention

Standards do not establish specific “[g]uidance regarding congressional visits to facilities.” ICE

9 National Detention Standards, § 5.5(I). Instead, the National Detention Standards direct the reader

to ICE’s website. Id.

ICE’s policies on its website regarding congressional visits have shifted considerably in

the last few months. First, in mid-June 2025, ICE posted a guidance document to its website

regarding ICE’s protocols for visits by Members of Congress and their staff. See June 2025 Visit

Protocol; ECF 1 ¶ 80. The document stated that Members of Congress are “not required to provide

advance notice for visits to ICE detention facilities,” but that ICE “require[d] a minimum of 24-

hours’ notice for visits by congressional staff.” Id. at 2. The document expressly acknowledged

the existence of Section 527 and reprinted the appropriations rider’s text in full. Id. at 1. The June

2025 Visit Protocol also distinguished requests to visit ICE field offices from ICE detention

facilities. The protocol stated that “ICE Field Offices are not detention facilities and fall outside of

the Sec. 527 requirements.” Id. The rationale provided was that “ICE does not house aliens at field

offices, rather these are working offices where Enforcement and Removal Operations (ERO)

personnel process aliens to make custody determinations based on the specific circumstances of

each case.” Id. at 4.

Later that month, ICE’s guidance again shifted. Around the week of June 16, 2025, ICE

updated its “Office of Congressional Relations” webpage, to state the new requirement that

requests to visit “DHS detention facilities” “be made a minimum of seven (7) calendar days in

advance,” and that “[a]ny requests to shorten that time must be approved by the DHS Secretary.”

Office of Congressional Relations, ICE, https://perma.cc/P6XD-4HNV; ECF 20-1, Hackbarth

Decl. ¶ 5. The seven-day notice requirement remains in effect to this day. ECF 20-1, Hackbarth

10 Decl. ¶¶ 5–6. 5 The status of the field office policy is less clear. ICE removed the document

containing the June 2025 Visit Protocol from its website in mid-June, without expressly stating

whether the policies in that document were rescinded. Neither ICE nor DHS has posted any new

version of the Visit Protocol since June 2025.

Finally, the parties do not dispute that at the time these policies were first adopted, DHS

and ICE were operating pursuant to Section 527-restricted funds, meaning that the promulgation

of these policies was carried out by officials whose salaries were paid for by Section 527-

appropriated funds and implemented at facilities operated with Section 527-restricted funds. See,

e.g., Hr’g Tr. 47:11–22 (Sept. 25, 2025); ECF 34 (stating that Section 527-restricted funds were

used for “the adoption and implementation of the visitation protocols at issue in this action”); see

also infra Section III.A.4.a.

2. The Trump Administration’s Expanded Immigration Enforcement and Plaintiffs’ Attempts to Conduct In-Person Visits to ICE Facilities

These changes in ICE’s congressional oversight visit policies have occurred during a

period of heightened immigration enforcement in the United States. DHS officials have claimed

that in the past eight months, DHS has “turbocharg[ed] the arrest[] and deportation[] of illegal

aliens.” New Milestone: Over 2 Million Illegal Aliens Out of the United States in Less than 250

Days, Dep’t of Homeland Sec. (Sept. 23, 2025), https://perma.cc/8UYV-5PF4 (noting DHS’s

intent to “arrest[,] detain[,] and deport[] illegal aliens”); 100 days of record-breaking immigration

enforcement in the US interior, ICE (last revised Jun. 13, 2025), https://perma.cc/ALN3-VAHJ

(noting that ICE had “significantly ramped up arrests and removals” in the first 100 days of the

5 The policy appears to have undergone minor revisions between June 2025 and the date of this opinion, in that the original policy stated that the notice requirement was for visits to “DHS detention facilities,” but the current policy now states that the requirement applies to “DHS facilities.” Office of Congressional Relations, ICE (last viewed Dec. 12, 2025), https://www.ice.gov/leadership/ocr.

11 second Trump Administration). Expanding the detention of noncitizens arrested pending

deportation or the outcome of removal proceedings has been a priority of the current

Administration since day one. See Exec. Order. No. 14,159, 90 Fed. Reg. 8443, 8445 (Jan. 20,

2025) (directing the Secretary of Homeland Security in an executive order signed on January 20,

2025 to “take all appropriate actions to ensure the detention of aliens apprehended for violations

of immigration law”).

Plaintiffs are twelve Members of Congress who all claim an interest in the Administration’s

immigration enforcement and detention practices. 6 See ECF 1 ¶¶ 17–28; ECF 17-1 at 25–28. Some

are leaders or members of committees with jurisdiction over DHS and ICE, or issues of

immigration, appropriations, and civil rights and civil liberties. See ECF 17-2, Escobar Decl. ¶¶ 1,

4; ECF 17-4, Goldman Decl. ¶ 2; ECF 17-5, Espaillat Decl. ¶ 2; ECF 17-6, Correa Decl. ¶ 2;

ECF 17-8, Garcia Decl. ¶ 2; ECF 17-10, Torres Decl. ¶ 2; ECF 17-11, Thompson Decl. ¶ 4;

ECF 17-12, Neguse Decl. ¶ 2; ECF 17-13, Raskin Decl. ¶¶ 2, 4. Others have DHS detention

facilities either in or near the districts that they represent, or represent districts where immigrants

were detained and later sent to an ICE detention facility. See, e.g., ECF 17-2, Escobar Decl. ¶ 3;

ECF 17-3, Crow Decl. ¶ 3; ECF 17-7, Gomez Decl. ¶¶ 7, 23; ECF 17-9, Ruiz Decl. ¶ 8.

Plaintiffs allege that the Administration’s expanded immigration enforcement has

“stretched the U.S. immigration detention system far beyond its capacity” and has led to “[m]ore

people . . . being held by the United States in immigration detention than ever before.” ECF 1 ¶ 1.

Various Plaintiffs state their concerns—based on news reports, constituent outreach, and rumors—

about poor conditions and mistreatment of detainees. See, e.g., ECF 17-2, Escobar Decl. ¶ 10;

6 The Plaintiffs are Representatives Joe Neguse, Adriano Espaillat, Bennie G. Thompson, Jamie Raskin, Robert Garcia, J. Luis Correa, Jason Crow, Veronica Escobar, Daniel S. Goldman, Jimmy Gomez, Raul Ruiz, and Norma Torres.

12 ECF 17-3, Crow Decl. ¶ 24; ECF 17-4, Goldman Decl. ¶¶ 39–40; ECF 17-5, Espaillat Decl. ¶ 18;

ECF 17-6, Correa Decl. ¶¶ 7–8. Consistent with these concerns, all Plaintiffs have attempted to

visit various ICE facilities and been denied entry under one of ICE’s visitor policies. First, multiple

Plaintiffs state that they have sought to conduct in-person oversight at ICE detention facilities, but

were denied entry at the requested dates and times because they failed to comply with ICE’s seven-

day notice requirement. These attempted visits all occurred following the publication of the notice

requirement on ICE’s website in mid-June 2025. See ECF 17-2, Escobar Decl. ¶¶ 10–18; ECF 17-

3, Crow Decl. ¶¶ 20–21; ECF 17-6, Correa Decl. ¶¶ 9–11; ECF 17-9, Ruiz Decl. ¶¶ 9–14; ECF 17-

10, Torres Decl. ¶¶ 16–18. For example, Representative Escobar sought to visit the El Paso Service

Processing Center, a detention facility in her district, based on concerns about the conditions there,

including concerns about physical abuse by guards, inadequate medical care, and lack of access to

legal services. ECF 17-2, Escobar Decl. ¶¶ 3, 10. On July 8, 2025, her staff emailed ICE to request

a visit for the next day. Id. ¶ 10. In response, ICE stated that it could not accommodate the next-

day visit because ICE was “now requiring requests to be made seven (7) calendar days in advance.”

Id. ¶ 11. Representative Escobar nevertheless went to the facility the next day, where she was

denied access on the grounds that she failed to provide the required seven-day notice. Id. ¶ 12.

Other Plaintiffs have had similar experiences.

Second, various Plaintiffs have also requested in-person visits to ICE facilities that they

believed were housing detained immigrants, but were denied by ICE staff on the grounds that the

facility that they sought to enter was a field office that was not subject to Section 527, consistent

with the policy announced in the June 2025 Visit Protocol. See ECF 17-7, Gomez Decl. ¶¶ 15, 17–

18; ECF 17-8, Garcia Decl. ¶¶ 20–23; ECF 17-10, Torres Decl. ¶ 14; ECF 17-11, Thompson Decl.

¶¶ 13–18; ECF 17-12, Neguse Decl. ¶¶ 9–14; ECF 17-13, Raskin Decl. ¶¶ 11–16; ECF 17-4,

13 Goldman Decl. ¶¶ 22–31; see also ECF 17-5, Espaillat Decl. ¶¶ 22–28 (being denied access to the

same facility as Representative Goldman, but because staff described it as a “sensitive facility”).

For example, Representative Gomez sought to schedule a visit to ICE’s Los Angeles Field Office

and was told that the office was not a “detention facilit[y]” and thus fell outside of the scope of

Section 527. ECF 17-7, Gomez Decl. ¶ 17. He was told that ICE did “not house aliens at field

offices,” and that field offices were “working offices where [ICE] process[es] aliens to make

custody determinations based on the specific circumstances of each case.” Id. ¶ 18. However, ICE

officials also told Representative Gomez’s staff that immigrants could be held up to 72 hours at

the “book-in facility until administrative processing is complete.” Id. ¶ 20; see also ECF 17-7,

Gomez Decl. Ex. A., at 12–14 (containing this exchange). Representatives Raskin, Neguse, and

Thompson arrived at the ICE Washington Field Office in Chantilly, Virginia to conduct an

unannounced oversight visit. ECF 17-11, Thompson Decl. ¶ 13. They arrived and requested a tour

of the facility but were denied on the grounds that “field offices are not subject to [S]ection 527.”

Id. ¶ 15. However, officials confirmed to them that the Washington Field Office has a 12-hour

holding area where “people are detained and not allowed to leave.” Id. ¶ 16.

Despite these stymied attempts at in-person oversight, Plaintiffs have stated their intent to

continue to visit ICE facilities without prior notice. See, e.g., ECF 17-2, Escobar Decl. ¶ 37;

ECF 17-3, Crow Decl. ¶ 27; ECF 17-6, Correa Decl. ¶ 12; ECF 17-7, Gomez Decl. ¶ 22; ECF 17-

9, Ruiz Decl. ¶ 17; ECF 17-10, Torres Decl. ¶ 26; ECF 17-11, Thompson Decl. ¶ 25; ECF 17-12

Neguse Decl. ¶ 18; ECF 17-13, Raskin Decl. ¶ 18. Plaintiffs stress the importance of unannounced

visits to their duties as Members of Congress, including their duties in drafting and passing

legislation, timely serving constituents impacted by the Administration’s enforcement policies,

and conducting oversight of government operations. See, e.g., ECF 17-9, Ruiz Decl. ¶ 20; ECF 17-

14 10, Torres Decl. ¶ 22; ECF 17-11, Thomspon Decl. ¶ 25. Plaintiffs also emphasize their concerns

that the notice requirement provides ICE time to obscure the true conditions at a given facility,

thereby diminishing the value of visits as a mechanism to determine how ICE is conducting

detention operations. See, e.g., ECF 17-4, Goldman Decl. ¶ 46; ECF 17-6, Correa Decl. ¶ 13;

ECF 17-7, Gomez Decl. ¶ 25.

3. Plaintiffs’ Lawsuit

Plaintiffs filed a complaint in this Court on July 30, 2025. ECF 1. They sue in their official

capacities as Members of the House of Representatives, and name DHS, ICE, Secretary of

Homeland Security Kristi Noem, and Acting Director of ICE Todd M. Lyons as Defendants. See

generally id. Plaintiffs challenge as unlawful (1) ICE’s seven-day advance notice requirement and

(2) ICE’s policy that field offices are not subject to Section 527. Plaintiffs argue that ICE’s

promulgation and enforcement of these policies prevents them from accessing ICE facilities in

violation of the appropriations limitations in Section 527. Plaintiffs claim that the Oversight Visit

Policies are contrary to Section 527 and in excess of DHS’s statutory authority under the

Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A)–(C), represent arbitrary and capricious

actions in violation of the APA, id. § 706(2)(A), and are ultra vires in violation of Section 527.

ECF 1 ¶¶ 273–81, 287–92. Plaintiffs also claim that the denial of access to DHS facilities,

including field offices, without advance notice, represents agency action unlawfully withheld or

unreasonably delayed under the APA. See 5 U.S.C. § 706(1); ECF 1 ¶¶ 282–86. Finally, Plaintiffs

also seek mandamus and declaratory relief. ECF 1 ¶¶ 293–303.

On August 8, 2025, Plaintiffs filed a motion to stay agency action under 5 U.S.C. § 705, or

in the alternative, for a preliminary injunction, to temporarily enjoin the Oversight Visit Policies

pending conclusion of this litigation. ECF 17; ECF 17-1 at 54. Defendants opposed the motion,

15 raising myriad arguments as to why relief is improper in this case, including that Plaintiffs lack

Article III standing to bring this lawsuit. See generally ECF 20. Plaintiffs filed a reply in support

of their motion on September 12, 2025, ECF 29, and the Court held a hearing on the motion on

September 25, 2025, see Sept. 25, 2025 Min. Entry. Then, on October 1, 2025, the Federal

Government shut down due to a lapse in regular appropriations. See ECF 32. As a result, and

following the Government’s unopposed request, this Court stayed proceedings given the uncertain

status of Section 527 during the lapse of appropriations. See Oct. 29, 2025 Min. Order. The

Government shutdown ended following passage of the FY2026 Continuing Appropriations Act,

which again provides appropriations funding for DHS subject to the terms of Section 527. See

§§ 101, 103, 139 Stat. at 496–97. The Court lifted the stay, see Nov. 24, 2025 Min. Order, and

now proceeds to resolve Plaintiffs’ motion.

II. LEGAL STANDARD

Plaintiffs seek a stay under Section 705 of the APA, and, in the case that relief is not

available, request a preliminary injunction.

Section 705 of the APA authorizes a “reviewing court” to “issue all necessary and

appropriate process to postpone the effective date of an agency action or to preserve status or rights

pending conclusion of the review proceedings.” 5 U.S.C. § 705. The court may do so “[o]n such

conditions as may be required and to the extent necessary to prevent irreparable injury.” Id.

The same factors governing the issuance of relief under Section 705 also govern the

issuance of a preliminary injunction. See District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp.

3d 1, 15 (D.D.C. 2020) (citing, inter alia, Cuomo v. U.S. Nuclear Regul. Comm’n, 772 F.2d 972,

974 (D.C. Cir. 1985)). To prevail on such a motion, the movant “must show (1) a substantial

likelihood of success on the merits, (2) that it would suffer irreparable injury if the [stay] were not

16 granted, (3) that a[ ] [stay] would not substantially injure other interested parties, and (4) that the

public interest would be furthered by the [stay].” Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290, 297 (D.C. Cir. 2006). In a case like this one, where the Government is the non-

movant, the third and fourth factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009).

III. ANALYSIS

Turning to the application of those factors, the Court holds that each favors a stay under

5 U.S.C. § 705. Plaintiffs have shown a substantial likelihood of success on their claim that the

challenged Oversight Visit Policies are contrary to law and in excess of DHS’s statutory authority.

The Court also finds that Plaintiffs demonstrate irreparable injury from the challenged policies and

that the equitable factors weigh in their favor. Because the Court finds that a stay is warranted

under 5 U.S.C. § 705, the Court does not address whether Plaintiffs are also entitled to a

preliminary injunction or other miscellaneous relief. The Court addresses the scope of the remedy

at the close of this section.

A. Plaintiffs are Substantially Likely to Succeed on the Merits.

In determining whether Plaintiffs are substantially likely to succeed on the merits of their

claims, the Court must not only address Plaintiffs’ “substantive theories,” but also threshold issues

such as the “establishment of jurisdiction.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905,

913 (D.C. Cir. 2015).

Defendants present various reasons why Plaintiffs fail to succeed on this prong. First, they

argue that the Court likely lacks subject matter jurisdiction because Plaintiffs do not have Article

III standing to bring this lawsuit. ECF 20 at 20–21. Second, Defendants contend that even if

Plaintiffs could demonstrate Article III standing, the Court should decline to hear this case under

principles of equitable discretion that disfavor the judiciary resolving disputes between the

17 political branches. Id. at 35. Third, Defendants argue that Plaintiffs likely lack a cause of action to

bring their claims. Id. at 36. Fourth, Defendants argue that Plaintiffs’ claims likely fail on the

merits because ICE’s Oversight Visit Policies comport with Section 527 and other laws governing

DHS and ICE. Id. at 45–49.

The Court disagrees. Plaintiffs have shown a substantial likelihood of success on the issues

of jurisdiction, equitable discretion, the availability of a cause of action under the APA, and the

merits of at least one of their claims. The Court addresses each of these issues in turn.

1. Standing

The first threshold issue in this case is whether Plaintiffs, as individual Members of

Congress suing in their official capacities, have standing to sue Defendants regarding the Oversight

Visit Policies.

The doctrine of standing derives from Article III of the Constitution, which extends the

judicial power of the United States only to “[c]ases” and “[c]ontroversies.” U.S. Const. art. III,

§ 2. “‘One element of the case-or-controversy requirement’ is that plaintiffs ‘must establish that

they have standing to sue.’” Comm. on Judiciary of U.S. House of Representatives v. McGahn,

968 F.3d 755, 762 (D.C. Cir. 2020) (en banc) (quoting Clapper v. Amnesty Int’l USA, 568 U.S.

398, 408 (2013)). The standing inquiry asks whether the “plaintiff is a proper party to bring a

particular lawsuit.” Id. (quoting Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,

576 U.S. 787, 799 (2015)). “When determining whether a plaintiff has Article III standing, the

court must assume that the [plaintiff] will prevail on the merits.” Id.

To establish Article III standing, a plaintiff must allege “(1) a concrete and particularized

injury, that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a

favorable decision.” Va. House of Delegates v. Bethune-Hill, 587 U.S. 658, 662 (2019). At issue

18 in this case is “injury in fact,” the “first and foremost of standing’s three elements.” Spokeo, Inc.

v. Robins, 578 U.S. 330, 338 (2016). Injuries cognizable by Article III courts must be: “concrete,

meaning . . . real and not abstract” and “particularized,” meaning that the injury “must affect the

plaintiff in a personal and individual way and not be a generalized grievance.” FDA v. All. for

Hippocratic Med., 602 U.S. 367, 381 (2024). The injury must also be “actual or imminent, not

speculative.” Id.

The standing inquiry is “especially rigorous” when “reaching the merits of the dispute

would force [a court] to decide whether an action taken by one of the other two branches of the

Federal Government was” unlawful. McGahn, 968 F.3d at 763. Further, this lawsuit, one brought

by Members of Congress against officials and agencies of the Executive Branch, “implicates

considerations not always present in a standing dispute,” id. at 768, such as the correct application

of the D.C. Circuit and Supreme Court’s precedents on questions of “legislative standing,” and the

separation of powers concerns raised by such cases, Raines v. Byrd, 521 U.S. 811, 820 (1997). The

Court therefore addresses the standing inquiry as follows: It evaluates Plaintiffs’ alleged injuries

under “general principles of standing, before turning to the special considerations presented by the

interbranch nature of this litigation,” McGahn, 968 F.3d at 763, including the fact that Plaintiffs

are “individual members of the Congress seek[ing] judicial remedies,” Blumenthal v. Trump,

949 F.3d 14, 19 (D.C. Cir. 2020).

a. Plaintiffs’ Theories of Injury

Plaintiffs allege two theories of injury purportedly caused by Defendants’ Oversight Visit

Policies: the denial of physical access to facilities covered by Section 527, and the inability to

gather in-person information regarding the on-the-ground conditions at those facilities. In this

section, the Court finds that both would qualify as sufficiently concrete harms under typical Article

19 III injury-in-fact principles. In the following sections, the Court will address whether Plaintiffs’

status as legislators justifies departing from this conclusion.

i. Denial of Physical Access to Facilities

Plaintiffs first argue that Defendants’ Oversight Visit Policies have led to ICE personnel

barring Plaintiffs from entering facilities covered by Section 527, and claim that such a “restriction

on physical access is a classic ‘tangible harm.’” ECF 17-1 at 34 (citing TransUnion LLC v.

Ramirez, 594 U.S. 413, 425 (2021)). Plaintiffs claim that they are entitled to this physical access

under the terms of Section 527, which in their view was designed to prohibit DHS from taking

action to stop them from entering and observing the conditions at Section 527-covered facilities in

real time. Per Plaintiffs, Section 527’s prohibition on using funds appropriated “to prevent”

Members of Congress “from entering” covered ICE facilities “for the purpose of conducting

oversight,” and its instruction that “[n]othing in this section may be construed to require a Member

of Congress to provide prior notice” of their intent to enter such a facility, add up to an entitlement

to enter those facilities under Section 527 at the time of their request. § 527, 138 Stat. at 619;

ECF 17-1 at 35; ECF 29 at 16, 18 (characterizing Plaintiffs’ injury as an unlawful “restriction on

physical access” to which Plaintiffs are “entitled”).

As a threshold objection, Defendants dispute that Section 527 creates a right of unimpeded

in-person access to ICE facilities operated with Section 527 funds. See ECF 20 at 13 (“Plaintiffs

attempt to transform an appropriations bar known as § 527 . . . into a statutory entitlement for

unfettered access to those facilities.”). Defendants argue that the text of Section 527 does not

expressly “grant Members a legal ‘right’ to conduct” oversight visits. Id. at 28. That argument does

not bear on Plaintiffs’ standing. “[W]hen considering whether a plaintiff has Article III standing,

a federal court must assume arguendo the merits of” the plaintiff’s legal claim. Parker v. District

20 of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007). “Whether a plaintiff has a legally protected

interest that supports standing does not require that” a plaintiff show “succe[ss] on the merits; if it

did, every merits loss would amount to a lack of standing.” Est. of Boyland v. U.S. Dep’t of Agric.,

913 F.3d 117, 123 (D.C. Cir. 2019). Thus a Court evaluating a standing dispute can conclude that

a plaintiff “ha[s] a cognizable interest” in a certain activity which is allegedly harmed by a

defendant’s actions “without considering whether the plaintiff[] ha[s] a legal right” to engage in

that activity. Parker, 478 F.3d at 377. However, the Court also acknowledges that the analysis in

the legislative standing cases discussed below often considers the nature of the alleged right at

issue, and will thus “peek ahead into the merits” of Plaintiffs’ arguments about the legal effect of

Section 527 for the purpose of definitively resolving the legislative standing issue. Conway Corp.

v. Fed. Power Comm’n, 510 F.2d 1264, 1269 (D.C. Cir. 1975), aff’d, 426 U.S. 271 (1976); see

McGahn, 968 F.3d at 765 (discussing, in the context of evaluating legislator standing, whether the

House of Representatives had a “long-recognized right, based in the Constitution” of entitlement

to specific information); Raines, 521 U.S. at 820–830 (asking whether the plaintiff legislators’

injury derived from a harm to “something to which they personally are entitled”).

The Court’s understanding of the statute supports Plaintiffs’ standing. Defendants read too

much into Congress’s use of an appropriations bar to implement its chosen policy and ignore the

practical implications of Section 527. An “appropriations law denying funding for certain activities

generally amounts to a substantive ban on those activities, regardless of the amount of funding

involved.” Kimberlin v. DOJ, 318 F.3d 228, 237 (D.C. Cir. 2003) (Tatel, J., concurring in part and

dissenting in part); see also id. at 232 (per curiam) (stating that the “use of any government

resources—whether salaries, employees, paper, or buildings—to accomplish” a given activity

“would entail government expenditure,” and “therefore would run afoul of [a] statutory

21 moratorium on spending for” that activity (quoting Env’t Def. Ctr. v. Babbit, 73 F.3d 867, 871–72

(9th Cir. 1995)). In Section 527, Congress prohibited DHS and ICE from using appropriated funds

to “prevent” a Member of Congress from entering a covered facility for the purpose of conducting

oversight. § 527(a), 138 Stat. at 619. Given that ICE cannot act other than through appropriated

funds, the result of Section 527’s provisions is that, upon request by a visiting Member of Congress

to conduct an oversight visit, a facility operated with or staffed using Section 527 funds must admit

that Member. See, e.g., United States v. Will, 449 U.S. 200, 222 (1980) (“There can be no doubt

that [Congress] could accomplish its purpose by an amendment to an appropriation bill, or

otherwise.” (quoting United States v. Dickerson, 310 U.S. 554, 555 (1940)). The statute’s

restriction on using funds “to make any temporary modification at any such facility that in any

way alters what is observed” by the visiting Member “compared to what would be observed in the

absence of such modification,” and the additional explanatory provision noting that nothing in

Section 527 “may be construed to require a Member of Congress to provide prior notice of the

intent to enter” a covered facility, § 527(a), (b), 138 Stat. at 619, clearly mean that the Member

must be admitted without delay—let alone delay that would lead to modifications of conditions in

the facility compared to when the visit was requested. That the Member’s admission must occur

upon request is also evidenced by a further provision of Section 527, which provides that DHS

“may require” a notice period of 24 hours for visits by a congressperson’s staff, but says nothing

about such a requirement for the Members themselves. § 527(c), 138 Stat. at 619. The result of

this provision, when read along with the other parts of Section 527, is that a 24-hour notice period

can be acceptable for Members’ staffs, but not permissible for the Members themselves. Contrary

to Defendants’ suggestion, then, Section 527 does entitle Members of Congress to access ICE

facilities without being subject to a notice requirement.

22 The Court must therefore decide whether denial of access to a location to which Plaintiffs

claim a right of entry upon request counts as a “cognizable injury” for the purposes of Article III.

Sierra Club v. Jewell, 764 F.3d 1, 6 (D.C. Cir. 2014). With little trouble, the Court finds that it

does. Denial of access to property is a “tangible harm,” which can qualify as a “concrete injury in

fact.” See TransUnion, 594 U.S. at 425. The federal courts have historically exercised jurisdiction

over disputes involving the denial of access to federal property based on various claims of right,

without questioning whether the parties involved had standing to bring the suit. See Greer v. Spock,

424 U.S. 828, 831–34 (1976) (prohibition on accessing grounds of military reservation for political

speech); Sherrill v. Knight, 569 F.2d 124, 128 (D.C. Cir. 1977) (addressing decision to bar reporter

from White House press events); Wilmer Cutler Pickering Hale & Dorr LLP v. Exec. Off. of the

President, 784 F. Supp. 3d 127, 139, 143 (D.D.C. 2025) (addressing challenge to order that

restricted firm’s employees from accessing government buildings); ECF 20 at 30 (Defendants

acknowledging that these cases “address[] . . . access restrictions,” although emphasizing that the

restrictions in those cases were “targeted—and thus particularized—access restrictions”). Further,

the Supreme Court has instructed that when evaluating certain types of harms, a court should

consider whether there exists any “close historical or common-law analogue” to such an injury.

TransUnion, 594 U.S. at 424. And suits about rights of entry to property—such as those over a

contractually-granted license—are the kinds of disputes that are “traditionally recognized as

providing a basis for lawsuits in American courts.” Id. at 425.

Further, the denial of physical access to each Plaintiff, see supra Section I.B.2, is not only

concrete but also “particularized,” TransUnion, 594 U.S. at 423. While Defendants’ Oversight

Visit Policies prohibit any Member of Congress from entering a facility without seven days’ prior

notice, Defendants’ actions in implementing the policies have nevertheless “affect[ed]” each of

23 “the [P]laintiff[s] in a personal and individual way.” Spokeo, Inc., 578 U.S. at 339. Each Plaintiff

has sought to visit different facilities, at different times, for different reasons. See supra Section

I.B.2. The alleged injuries are thus “neither abstract nor widely dispersed.” McGahn, 968 F.3d at

776. Nor does the fact that multiple Plaintiffs allege harms arising from the Oversight Visit Policies

undermine the notion that Plaintiffs’ harms are particularized. “The fact that an injury may be

suffered by a large number of people does not of itself make that injury a nonjusticiable generalized

grievance.” Spokeo, Inc., 578 U.S. at 339 n.7.

Finally, and although it does not seem to be in serious dispute in this case, the Court finds

that Plaintiffs’ physical access injury also satisfies the Article III requirements of causation and

redressability. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (requiring that there be

a “causal connection between the injury and the conduct complained of” and that “the injury will

be redressed by a favorable decision”). On various occasions, Defendants have justified their

denial of Plaintiffs’ access to ICE facilities by citing either the seven-day notice requirement or

the claim that ICE field offices are not subject to Section 527. See supra Section I.B.2. Plaintiffs’

harms are “fairly traceable” to Defendants’ promulgation and implementation of those policies,

and a “favorable decision” that those policies are unlawful is likely to redress the harm imposed

by future denials. Bethune-Hill, 587 U.S. at 662.

ii. Denial of Information Regarding Conditions at ICE Facilities

In the alternative, Plaintiffs also ask the Court to view their injury as an informational

injury: the denial of “on-the-ground information regarding the . . . conditions at” ICE facilities

covered by Section 527. ECF 17-1 at 35. Plaintiffs again claim that they are entitled to this

information under Section 527. In addition to the language prohibiting ICE from using funds to

prevent Members of Congress “from entering” ICE facilities, Plaintiffs also point to the language

24 in Section 527 which prohibits ICE from “mak[ing] any temporary modification at any [covered

facility] that in any way alters what is observed by a visiting Member of Congress . . . compared

to what would be observed in the absence of such modification.” § 527(a), 138 Stat. at 619.

Plaintiffs are correct that certain types of informational injuries are cognizable under

Article III. The Supreme Court and the D.C. Circuit have “held that when a person seeks to obtain

information the government is required to disclose, the denial of the information is a concrete

injury for standing purposes.” McGahn, 968 F.3d at 766 (citing FEC v. Akins, 524 U.S. 11 (1998),

and Pub. Citizen v. DOJ, 491 U.S. 440 (1989)). In such cases, a plaintiff must (1) have “been

deprived of information that, on [the plaintiff’s] interpretation, a statute requires the government

or a third party to disclose to it, and (2) . . . suffer[], by being denied access to that information,

the type of harm Congress sought to prevent by requiring disclosure.” Elec. Priv. Info. Ctr. v.

Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017). The

Supreme Court in TransUnion reaffirmed the viability of informational injuries of this kind, albeit

while introducing the requirement that the “informational injury . . . cause[]” either “adverse

effects” or “downstream consequences” in order for the injury to be cognizable under Article III.

TransUnion, 594 U.S. at 442 (quoting Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 1004

(11th Cir. 2020)); see also, e.g., Animal Legal Def. Fund, Inc. v. Vilsack, 111 F.4th 1219, 1229

(D.C. Cir. 2024) (concluding informational injury was concrete where the denial of information

“hinder[ed]” consumer’s ability to make “an informed purchasing decision”). 7

7 The D.C. Circuit has noted that TransUnion’s statement that a plaintiff alleging an informational injury must show a downstream adverse effect of the denial appears to be in tension with the Supreme Court’s own decisions regarding information-disclosure statutes like the Freedom of Information Act which hold that a plaintiff need not show “more than that they sought and were denied specific agency records” to have standing to sue. Pub. Citizen, 491 U.S. at 449; see Nat’l Sec. Archive v. CIA, 104 F.4th 267, 272 n.1 (D.C. Cir. 2024) (noting that “TransUnion does not expressly overrule Public Citizen” and that the lower courts are “charged with following case law that directly controls a particular issue, ‘leaving to the Supreme Court the prerogative of overruling its own decisions’” (quoting Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023))). For the purposes of this opinion, the Court assumes without deciding that such a downstream effect is required in this case, given that Plaintiffs easily meet this requirement.

25 Defendants again contest that Section 527 creates any entitlement to information or

requires the government to “‘disclose’ any type of ‘information’” to Plaintiffs, thus making the

informational injury line of cases inapplicable. ECF 20 at 30 (citing Elec. Priv. Info. Ctr., 878 F.3d

at 378). Again, the scope of 527 and what it secures to Plaintiffs here is intertwined with the merits

of the case and is a question on which Plaintiffs need not necessarily show success in order to

prevail on the standing analysis. See Est. of Boyland, 913 F.3d at 123; Elec. Priv. Info. Ctr.,

878 F.3d at 378 (framing the standing inquiry as asking whether the party was “deprived of

information that, on [the plaintiff’s] interpretation, a statute requires the government . . . to

disclose to it”). Nevertheless, in evaluating statutorily-grounded informational injuries, the

Supreme Court’s analysis in TransUnion indicates that it is proper at the standing analysis stage

to ask whether the statute in question functions similarly to a “public-disclosure or sunshine law[]

that entitle[s] . . . the public to certain information.” TransUnion, 594 U.S. at 441; see also

McGahn, 968 F.3d at 765–66 (evaluating, in a case regarding the purported denial of information,

whether the plaintiff had been deprived of something “to which it is legally entitled”).

The Court concludes that Section 527 creates an entitlement to information sufficiently

analogous to the statutes featured in the informational injury cases to make those cases instructive

here. Defendants are correct that Section 527 does not operate in exactly the same way as other

information disclosure statutes such as the Freedom of Information Act (FOIA), given that Section

527 imposes a prohibition on the use of appropriated funds rather than a mandatory command

requiring the disclosure of information upon request. See, e.g., 5 U.S.C. § 552(a)(3)(A) (provision

of FOIA requiring that the government “shall make . . . records promptly available to any person”

following a request). But Defendants’ objection that Section 527 insufficiently resembles FOIA

and other disclosure provisions because it has no “mandatory direction to supply information,”

26 ECF 20 at 34, ignores that the type of information access contemplated by the statute is not records

or documents created by the agency, but access to a specific ICE facility to permit the

“observ[ation]” of the facility “by a visiting Member of Congress or such designated employee,”

§ 527(a), 138 Stat. at 619. And as discussed above, Defendants overstate the implications of

Congress’s choice to use an appropriations limitation to facilitate Members’ observations of the

conditions in certain ICE facilities. Again, Congress not only prohibited DHS and ICE from

preventing Members of Congress from entering covered ICE facilities upon request, but also from

making temporary modifications that would alter what a visiting Member sees when they visit.

The effect of Section 527 is that the facility must (1) admit the Member upon request, and, (2)

thanks to the language prohibiting any “temporary modification,” permit the Member to view the

facilities in their current condition. Because of Section 527, the government cannot act otherwise.

See Env’t Def. Ctr., 73 F.3d at 872. (“The government cannot make expenditures, and therefore

cannot act, other than by appropriation.”).

This case is therefore analogous to those cases recognizing a sufficiently “concrete and

particularized” informational injury. Jewell, 828 F.3d at 992. Here, each Plaintiff has alleged that

they have “been deprived of information” about conditions at ICE facilities “that, on [their]

interpretation, a statute require[d] the government” to make available to them. Id. That harm is

“the type of harm Congress sought to prevent by” passing the disclosure-oriented statute. Id.

Section 527 focuses on access to specific ICE facilities and allowing visiting Members of Congress

to view those facilities with the goal of preserving what may be “observed by a visiting Member

of Congress.” § 527(a), 138 Stat. at 619. Further, these requests for access to ICE facilities, even

when construed as requests for information, occurred at different facilities, different times, and

27 with different motivations by each Plaintiff, and are particularized for the reasons discussed above.

See supra Section III.A.1.a.i.

Finally, to the degree required, Plaintiffs have identified “downstream” or “adverse” effects

of the denial of that information. TransUnion, 594 U.S. at 442. The Supreme Court has found

standing when the denial of information harmed the requestors’ ability to engage in the political

and policymaking process. See Pub. Citizen, 491 U.S. at 449; Akins, 524 U.S. at 21. Plaintiffs are

Members of Congress who seek information that will aid them in their roles of assisting

constituents, conducting oversight, and drafting and proposing legislation. They “desire[]

information with which” to make “informed . . . decision[s], and the ‘information deficit’ created

by” Defendants’ Oversight Visit Policies “‘hinder[s] [their] ability’ to do so.” Animal Legal Def.

Fund, Inc., 111 F.4th at 1229. And as with the denial of physical access, the inability of Plaintiffs

to view the on-the-ground conditions of covered ICE facilities at the times they request is caused

by Defendants’ Oversight Visit Policies and would be redressed by a decision that these policies

should be stayed or vacated.

b. Raines and Legislator Standing Principles

Plaintiffs have demonstrated the requisite injury-in-fact under “general principles of

standing,” but the question remains whether the Court should nevertheless depart from that

conclusion because Plaintiffs are “individual members of the Congress seek[ing] judicial

remedies” against the Executive Branch. McGahn, 968 F.3d at 763; Blumenthal, 949 F.3d at 19.

The D.C. Circuit has instructed that the “question [of] whether [Members of Congress] have

standing in federal court to challenge the lawfulness of” Executive Branch actions “was answered,

at least in large part, in the Supreme Court’s . . . decision in Raines v. Byrd,” and in resolving this

dispute, the Court must apply the guidance set out in Raines and related cases. Campbell v. Clinton,

28 203 F.3d 19, 20 (D.C. Cir. 2000); see Blumenthal, 949 F.3d at 19 (“Raines is our starting point

when individual members of the Congress seek judicial remedies.”).

In Raines, six Members of Congress challenged the constitutionality of the Line Item Veto

Act. See 521 U.S. at 814. The Act authorized the President to “cancel” certain spending and tax

benefit measures after they have been signed into law, unless the cancellation was subsequently

overridden by Congress by joint resolution. Id. at 814–15. Plaintiffs challenged the

constitutionality of the law on the grounds that it “unconstitutionally expand[ed] the President’s

power, and violate[d] the requirements of bicameral passage and presentiment by granting to the

President, acting alone, the authority to ‘cancel’ and thus repeal provisions of federal law.” Id. at

816. Plaintiffs claimed that the Act “directly and concretely” injured them in their official

capacities by “alter[ing] the legal and practical effects of all votes they may cast on bills containing

such separately vetoable items,” which “divest[ed] [them] of their constitutional role in the repeal

of legislation,” and “alter[ed] the constitutional balance of powers between the Legislative and

Executive Branches.” Id.

The Supreme Court found that the six Members of Congress lacked standing. Raines,

521 U.S. at 830. In coming to this conclusion, the Court in Raines emphasized that the alleged

injury— “the diminution of legislative power”—was an “institutional injury,” which “necessarily

damage[d] all Members of Congress . . . equally,” and was therefore “wholly abstract and widely

dispersed.” Id. at 821, 829. As a result, the Court found that the Members lacked a “sufficient

‘personal stake’ in th[e] dispute” and did not have a “sufficiently concrete injury” for Article III

standing. Id. at 830; see also Clinton v. City of New York, 524 U.S. 417, 430 (1998) (distinguishing

the “abstract and widely dispersed” injury in Raines from cases where the parties have “alleged a

‘personal stake’ in having an actual injury redressed”).

29 In Raines, the Court addressed and distinguished Coleman v. Miller, 307 U.S. 433 (1939),

a prior case where the Court found standing for individual “legislators . . . claiming” what the

Court described as “an institutional injury.” Raines, 521 U.S. at 821. In Coleman, 20 of Kansas’s

40 state senators voted against ratifying a proposed amendment to the U.S. Constitution, resulting

in a deadlock that would have ordinarily defeated ratification. Raines, 521 U.S. at 822. However,

the Kansas Lieutenant Governor broke the tie by voting in favor of the amendment. Id. The losing

state senators brought suit, and the Court held that the legislators had standing because their votes

“against ratification [had] been overridden and virtually held for naught although . . . their votes

would have been sufficient to defeat ratification.” Coleman, 307 U.S. at 438. On review, the

Supreme Court found the state senators to have a “plain, direct and adequate interest in maintaining

the effectiveness of their votes.” Id. The Supreme Court in Raines reaffirmed a legislator’s

standing to sue on the basis of this kind of injury, but read Coleman narrowly, stating that “our

holding in Coleman stands (at most) for the proposition that legislators whose votes would have

been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative

action goes into effect (or does not go into effect), on the ground that their votes have been

completely nullified.” Raines, 521 U.S. at 823 (citation omitted); see also Campbell, 203 F.3d at

22–23 (noting that Coleman represents a “very narrow possible . . . exception” to the “Raines

rule”).

The Court in Raines contrasted both the alleged institutional injuries in Raines (which

failed to establish standing) and the vote-nullification injury in Coleman (which did establish

standing), with the injury that the Court had found judicially cognizable in Powell v. McCormack,

395 U.S. 486 (1969). See Raines, 521 U.S. at 820–21, 829. In Powell, the House of Representatives

refused to seat Congressman Adam Clayton Powell due to alleged misconduct. Powell, 395 U.S.

30 at 490. Congressman Powell brought a suit challenging “his exclusion from the House of

Representatives (and his consequent loss of salary).” Raines, 521 U.S. at 821. In Raines, the

Supreme Court emphasized that Powell’s injury differed from the Raines plaintiffs in two key

regards. First, the Raines plaintiffs were not “singled out for specially unfavorable treatment as

opposed to other Members of their respective bodies.” Id. at 821. Second, the plaintiffs did not

claim to have been “deprived of something to which they personally are entitled.” Id. The Supreme

Court thus read Powell to bless standing in cases where the plaintiffs alleged an “injury to

themselves as individuals.” Raines, 521 U.S. at 829.

Raines, as further elaborated by subsequent Supreme Court and D.C. Circuit decisions,

thus provides the framework for an inquiry into “whether [Members of Congress] have standing

in federal court to challenge the lawfulness of actions of the executive.” Campbell, 203 F.3d at 20.

Most critically, a court must consider whether the legislator seeks to “assert the institutional

interests of a legislature,” in which case the Member will generally lack standing, Blumenthal,

949 F.3d at 19, or an injury that is personal to the legislators “as individuals,” and is thus

particularized and concrete, Raines, 521 U.S. at 829. As the Supreme Court clarified in Arizona

Independent Redistricting Commission, an “institutional injury” is one that is “‘widely dispersed’”

and does not “zero[] in on any individual Member,” but “‘necessarily impact[s] . . . equally’” the

members of the relevant legislative body. 576 U.S. at 802 (quoting Raines, 521 U.S. at 821, 829).

Therefore, notwithstanding the narrow potential exception recognized in Coleman, “unauthorized

legislators” will generally “lack standing to sue the [Executive Branch] to vindicate injuries to the

legislative bodies of which they are a part,” McGahn, 968 F.3d at 775, because of a “mismatch

between the [party] seeking to litigate and the body to which the” injury accrues, Bethune-Hill,

587 U.S. at 667. “[T]he [Supreme] Court’s focus on ‘mismatch’ is [thus] an inquiry into whether

31 the claimed injury is personal to the plaintiff or else shared by a larger group of which the plaintiff

is only a component—in other words, whether the injury is particularized.” McGahn, 968 F.3d at

767. “Raines stands for the proposition that whereas a legislative institution may properly assert

an institutional injury, an individual member of that institution generally may not.” Id. at 775. 8

The case is different for personal “injurie[s] to [Members of Congress] as individuals,”

such as ones that “deprive[] [them] of something to which they personally are entitled.” Raines,

521 U.S. at 821, 829. Personal injuries of this kind—such as the denial of Representative Powell’s

ability to sit in Congress after his constituents had “duly elected” him, Powell, 395 U.S. at 493—

are sufficiently particularized and concrete, Raines, 521 U.S. at 821. More broadly, the personal-

versus-institutional inquiry helps to ensure that there is no “mismatch” between the interests of the

plaintiff seeking to litigate and the legislative locus to which the injury attaches, whether that is

the individual legislator, their committee, or the body as a whole. McGahn, 968 F.3d at 767. Where

the injury is not one simply to the “larger group of which the plaintiff is only a component” but

one to the plaintiff Member of Congress themselves, the injury is sufficiently particularized under

Raines and its progeny. Id.

In addition to considering (1) whether the plaintiffs had alleged an institutional injury that

was abstract and widely dispersed rather than a personal injury that is concrete and particularized,

8 The Supreme Court’s discussion of institutional injury in Arizona Independent Redistricting Commission is in some tension with Raines’s characterization of the legislators’ vote-nullification injuries in Coleman as an “institutional injury.” Raines, 521 U.S. at 821; see Kerr v. Hickenlooper, 824 F.3d 1207, 1214 (10th Cir. 2016) (“Describing the injury in Coleman as ‘institutional’ is difficult to square with the definition of an institutional injury provided in Arizona.”). This is because the injury in Coleman was arguably not one that “necessarily impacted all Members” of a legislative body equally, Ariz. Indep. Redistricting Comm’n, 576 U.S. at 802 (cleaned up), but one accruing to the specific twenty Senators whose votes “would have been decisive in defeating” the resolution, Raines, 521 U.S. at 823 (quoting Coleman, 307 U.S. at 446). Thus, Coleman did not necessarily “concern injury to the power of the legislature as a whole,” at least as contemplated in Arizona Independent Redistricting Commission. Kerr, 824 F.3d at 1215. The Court understands the discussion of institutional injury in Arizona Independent Redistricting Commission to be the main approach to institutional injury, and that the injury contemplated in Coleman and endorsed in Raines represents a separate, narrow species of institutional injury. See Campbell, 203 F.3d at 23 (describing Coleman as “the very narrow possible . . . exception to Raines”).

32 Raines also considered additional factors relevant to the standing analysis, such as that: “(2) [the]

plaintiffs’ attempt to litigate their dispute . . . was contrary to historical experience; (3) the plaintiffs

had not been authorized to represent their respective Houses of Congress, and indeed both Houses

actively opposed their suit; and (4) dismissing the lawsuit neither deprived Members of Congress

of an adequate remedy nor foreclosed the Act from constitutional challenge.” McGahn, 968 F.3d

at 775–76 (cleaned up) (quoting Raines, 521 U.S. at 829).

c. Plaintiffs’ Injuries are Not Barred by Raines Because They are Personal and Particularized, Rather than Institutional.

Defendants argue that this case starts and ends with Raines. They argue that even if Section

527 provides a right to Members of Congress to access ICE facilities and view the conditions

therein, this is a right that is “held by Congress as a whole,” and its infringement “necessarily

damages all Members . . . and both Houses of Congress equally,” making it an “institutional

injury” that is insufficiently particularized under Raines. 9 ECF 20 at 27 (citing Raines, 521 U.S.

at 821). Defendants also appear to argue that even if the right to access ICE facilities accrues to

the Members of Congress as individuals, a lawsuit is still barred under Raines, because, in

Defendants’ reading, Members of Congress may only bring lawsuits for harms experienced in their

“personal capacities.” ECF 20 at 23. Per Defendants, “any deprivation of information or access”

harms Plaintiffs only as “Members of Congress (or staffers) attempting to engage in legislative

oversight,” which is tied to Congress’s legislative power, and thus their injuries represent “a

diminution of legislative power” not cognizable under Raines. Id. To the extent the right to visit

9 It is Defendants’ view that Section 527 does not guarantee such rights to Plaintiffs, and as a result, the only injury that they could complain of is “a violation of [a] restriction on funding,” which “falls upon Congress as a whole,” and “at most harms the Congress that enacted that prohibition, not any particular Member.” ECF 20 at 26. Because the Court disagrees with Defendants’ characterization of Plaintiffs’ injury, it does not address whether this framing of the injury would qualify as a sufficient injury in fact to permit standing.

33 ICE facilities without notice is individualized to Members, Defendants portray it as “a political

benefit that attaches to the seat that [the] member holds,” and cannot be considered a “personal

right” that can be vindicated in a lawsuit in an Article III court. Id. at 24.

Plaintiffs argue that Defendants greatly overread Raines and subsequent cases. They

contend that under Raines’s personal-versus-institutional dichotomy, their alleged injuries are

personal and thus not barred by Raines. ECF 29 at 11. They also argue that for a legislator to have

standing under Raines, the legislator need not allege an injury purely in the legislator’s private

capacity—personal injuries under Raines and its progeny can arise from injuries that the Member

incurs because they are a congressperson. Id. at 11–12. For Plaintiffs, the proper inquiry under

Raines is to ask whether Plaintiffs sue based on harms to their “individual entitlements (whether

in a private or official capacity)” or based on “a right that belongs only to the collective institution

of which they are members.” Id. at 11.

The Court agrees with Plaintiffs that Raines does not bar this lawsuit. As discussed above,

the key inquiry under Raines and the subsequent cases is whether the alleged injury is “personal”

or “institutional.” Campbell, 203 F.3d at 20, 21 n.2. This is because “individual members”

generally “lack standing to assert the institutional interests of a legislature.” Bethune-Hill, 587 U.S.

at 667; but see Coleman, 307 U.S. at 438; Raines, 521 U.S. at 821–23 (allowing for suit by

individual legislators to remedy institutional injury in limited circumstances). The key point is that

there should be no “mismatch” between the party “seeking to litigate” and the party—whether it

is an individual Member of Congress, congressional committee, or house of Congress as a whole—

that has been harmed. See McGahn, 968 F.3d at 767.

Under Raines, Plaintiffs’ injuries are personal rather than institutional. Look first to the

language of Section 527: It provides access to ICE facilities for individual congresspeople or their

34 designated staff members. See § 527(a), 138 Stat. at 619. Plaintiffs are individual Members of

Congress who have been denied access to Section 527-funded facilities. Thus impacted, individual

Members of Congress are the appropriate parties to bring suit and there is no “mismatch.”

McGahn, 968 F.3d at 767. This is different from cases involving institutional injuries, where the

right or interest harmed belonged to a committee or to the legislature as a whole, such that

individual Members of Congress would not be proper plaintiffs. See id. (finding that the House of

Representatives’ constitutional right to subpoena testimony had been delegated to the plaintiff

committee, which was proper plaintiff to bring suit); Ariz. Indep. Redistricting Comm’n, 576 U.S.

at 799–800 (finding standing where state legislature sued alleging harm to its legislative

“prerogative to initiate redistricting”); Bethune-Hill, 587 U.S. at 671 (rejecting attempt by one

branch of state legislature to vindicate interests in redistricting when that power had been assigned

to both branches jointly). A clear mismatch between the plaintiff and the institution injured also

occurred in Raines, where the plaintiffs alleged abstract harms that accrued to Congress as an

institution. The Raines plaintiffs alleged harms to the “legal and practical effect” of their votes, the

loss of their “constitutional role in the repeal of legislation,” and the upset of “the constitutional

balance of powers between the Legislative and Executive Branches.” Raines, 521 U.S. at 816. But

as the Supreme Court noted, when taken together, these injuries qualified only as an alleged

“diminution of legislative power.” Raines, 521 U.S. at 821. That “legislative power” which had

been allegedly diminished belonged to Congress as a body, which is why the Supreme Court found

that the Line Item Veto Act “necessarily damage[d] all Members of Congress and both Houses of

Congress equally.” Id.

The injury was also found to be institutional in Blumenthal v. Trump, where 215 Members

of Congress sued the Executive Branch on the ground that President Trump had failed to seek

35 Congress’s consent to accept foreign emoluments. See 949 F.3d at 16–17. Like the injuries in

Raines, the Blumenthal plaintiffs’ inability to cast votes to “approve or disapprove [the President’s]

acceptance of foreign emoluments,” was a “loss of political power” that impacted Congress as a

whole and could not be the basis for a suit by individual legislators. Id. at 17, 19. This was likewise

the case in Chenoweth v. Clinton, where legislators sued President Clinton on the ground that an

executive order had “deprived the plaintiffs of their constitutionally guaranteed responsibility of

open debate and vote on issues and legislation” regarding the subjects of the executive order.

181 F.3d 112, 113 (D.C. Cir. 1999). The D.C. Circuit found that this injury was properly

characterized as a “dilution of their authority as legislators” and thus harmed Congress’s

institutional interests. Id. at 115; see also id. at 116 (noting that the plaintiffs had alleged that

President Clinton had “usurp[ed] Congressional authority by implementing a program . . . in a

manner contrary to the Constitution”). The same was true in Campbell v. Clinton, where 31

Members of Congress sued President Clinton on the grounds that he had violated the War Powers

Clause and War Powers Resolution. 203 F.3d at 20. This claim was also institutional, and harmed

Congress as a whole, as plaintiffs’ claim boiled down to an allegation that President Clinton had

acted in violation of Congress’s authority by “wag[ing] war . . . without a congressional

delegation.” Id. at 22. Because the injuries in Raines, Blumenthal, Chenoweth, and Campbell were

to interests of Congress as a whole, they were injuries shared not only by the plaintiffs, but also

the “members of the Congress who did not join the lawsuit[s]” and therefore could not be asserted

by individual legislators. Blumenthal, 949 F.3d at 19.

The facts here differ significantly from those in the institutional injury cases. Defendants

are correct that under Plaintiffs’ reading, the access granted by Section 527—access to covered

ICE facilities—is not granted to a particular subset of legislators alone, and that the entitlement,

36 let alone the injury, would not exist were Plaintiffs not Members of Congress. See ECF 20 at 23.

But the fact that an individual Member of Congress can claim the right to access under Section

527 does not automatically alchemize the interests at stake into institutional interests and turn

Plaintiffs’ individual injuries into institutional harms. As noted above, Section 527 is specifically

focused on granting access to ICE facilities to individual Members of Congress and their

designated staff members. § 527(a), 138 Stat. at 619. This is something they are entitled to “as

individuals,” rather than a right assigned to a committee or to Congress as a whole. Raines, 521

U.S. at 829. Further, even if the right to access is shared by all Members of Congress, Defendants’

oversight policies do not “damage[] all Members of Congress . . . equally.” Id. at 821. Not all

Members of Congress could bring this suit. Plaintiffs are injured because they sought (and continue

to seek) to exercise the right of access granted under Section 527 and were denied. They made

requests for access for different purposes, at different facilities, at different times and were all

rebuffed. Consider the analogous position of an individual requesting information under a

disclosure statute such as FOIA. While all members of the public have the right to make such a

request, only those who actually do make the request and are denied have the right to sue in federal

court. See McDonnell v. United States, 4 F.3d 1227, 1238 (3d Cir. 1993) (“The filing of a request,

and its denial, is the factor that distinguishes the harm suffered by the plaintiff in a[] FOIA case

from the harm incurred by the general public.”). Here, while any Member of Congress may have

the ability to seek access under Section 527, they only become injured for Article III purposes

when those rights have been stymied.

Defendants also argue that even if individual Members of Congress are provided the right

to access facilities under Section 527, the injury worked by a denial of those rights is still an

institutional injury because “any legislator who seeks information for purposes of legislative

37 oversight necessarily does so as an agent for the entire legislative body.” ECF 20 at 27. But

Defendants provide no support for that novel proposition. One way to construe Defendants’

argument is to say that the inherent “constitutional power” to conduct oversight, see, e.g., McGahn,

968 F.3d at 764, is granted to Congress (or perhaps each house of Congress) alone, and thus any

injury to that oversight power is one that harms the institution, rather than any particular Member

carrying out the oversight. But this ignores that Congress can, and often does, delegate its oversight

responsibilities to individual committees, which then may be the proper plaintiff in an Article III

lawsuit seeking to vindicate harms to that oversight power. See generally id. Plaintiffs argue that

Congress has in fact “delegated [such] authority to individual members with respect to DHS

facilities” through the operation of Section 527. ECF 29 at 11. However, the Court need not adopt

Plaintiffs’ stance to reject Defendants’ argument on this point. It is true that Section 527 is

structured such that Plaintiffs are only entitled to access if they seek to enter the covered facility

“for the purpose of conducting oversight.” § 527(a), 138 Stat. at 619 (emphasis added). But

Plaintiffs’ injury is not institutional in the way Defendants claim because the source of their right

is not “Congress’s inherent power to obtain information in aid of legislation,” but “[r]ather, it is

the express provision of a federal law” that is the “outcome of bicameralism and presentment,”

Maloney v. Carnahan, 45 F.4th 215, 216 (D.C. Cir. 2022) (Millett, J., concurring in denial of

rehearing en banc), and the result of Congress’s decision to provide specific entitlements to access

through an appropriations bill.

The Court also rejects Defendants’ claim that to be a personal and particularized injury

under Raines, the injury must be one that only occurs in Plaintiffs’ “personal capacities,” and

cannot extend to a legislator “in their official capacity asserting injury to . . . the prerogatives of

their office.” ECF 20 at 13, 23; see also Hr’g Tr. 27:17–25 (stating that Raines “drew a distinction

38 between individual legislators bringing claims in their official capacity, whether alleging official

or institutional harm,” and “individual legislat[ors] bringing claims in their personal capacity”).

This is undermined by the text of Raines and its acknowledgment of the justiciability of the injury

alleged in Powell. Congressman Adam Clayton Powell’s sufficiently personal and particularized

injury arose from rights he was entitled to as a congressperson—in his case, entitlement to sit in

Congress and exercise the authority that attached to that seat, as well as a salary. See Raines,

521 U.S. at 821. While the Court in Raines noted that the plaintiffs had sued “in their official

capacities,” and acknowledged that the “loss of a[] private right” would have made the injuries in

that case “more concrete,” id., that is far from saying that the only harms that can justify standing

in the case of a Member of Congress are those which are divorced from their official roles and

responsibilities. Raines itself noted that a legislator would be likely to have standing if the

legislator had “been singled out for specially unfavorable treatment as opposed to other Members,”

without distinguishing whether that treatment was to the legislator’s personal or official

prerogatives. Id. Further, Raines implied that a Member of Congress would be injured for Article

III purposes if their vote was “denied its full validity in relation to the votes of their colleagues,” a

harm that could only ever occur in the legislator’s official capacity, and one that would be clearly

personalized to the legislator, rather than to the institution of Congress as a whole. Id. at 824 n.7

(raising the “hypothetical law in which first-term Members were not allowed to vote on

appropriations bills”). And following this discussion in Raines, courts have acknowledged that

personal injuries to legislators may arise when they seek to exercise their official duties. For

example, the Tenth Circuit has stated that a “personal injury” accruing to an “individual legislator”

would include a claim that a “particular subset of legislators was barred from exercising their right

to vote on bills.” Kerr v. Hickenlooper, 824 F.3d 1207, 1216 (10th Cir. 2016).

39 The question is thus whether the legislator is deprived of something to which they

“personally are entitled.” Raines, 521 U.S. at 821. The access granted by Section 527 and the

denial of that access falls within this category, even though Plaintiffs would not experience this

injury were they not Members of Congress. What makes the injury “personal” in these cases is not

that the injury is to some entitlement outside of the Member’s official duties, but that the injury

“zeroes in on the individual and is thus concrete and particularized.” Kerr, 824 F.3d at 1216. While

it is true that if Plaintiffs resigned tomorrow, they would “no longer have a claim,” the injury does

not “run[] . . . with the Member’s seat” in the same way as did the purported injuries in Raines.

521 U.S. at 821. The right to request and receive access to a Section 527 facility is secured by a

Plaintiff’s status as a Member of Congress, but the injury arises from the particular Member’s

request for access and subsequent denial by the Executive Branch. This injury would not “be

possessed by [the Member’s] successor” in the same way as the alleged injuries in Raines. Id. The

injuries in Raines were so “abstract” and “institutional”—based as they were in harms to

Congress’s legislative power and place in the constitutional scheme—that any successor

congressperson would have the exact same claim of injury as the Raines plaintiffs. Id. at 829. That

is not the case here. Plaintiffs’ injuries are sufficiently personalized under Raines, and Plaintiffs

are not barred from bringing suit simply because they sue as legislators in their official capacities.

d. The Additional Separation-of-Powers Concerns in Raines and Related Cases do not Prohibit Finding Standing Here.

While the personal-versus-institutional inquiry is the key one, the D.C. Circuit has

identified additional factors that militated against finding Article III standing in Raines. See

McGahn, 968 F.3d at 775–76 (citing Raines, 521 U.S. at 829–30). The Court finds that none of

those considerations bar Plaintiffs’ suit.

40 First, the Court does not find that “plaintiffs’ attempt to litigate their dispute at this time

[is] contrary to historical experience.” McGahn, 968 F.3d at 775 (citing Raines, 521 U.S. at 829).

Raines itself acknowledged historical precedent for individual legislator suits that were premised

on “injur[ies] to themselves as individuals.” Raines, 521 U.S. at 829 (citing Powell, 395 U.S. 486).

“[H]istorical practice is constitutionally significant even when it does not extend as far back into

the past as the Founding.” McGahn, 968 F.3d at 777. This dispute is not the kind of

“confrontation[] between one or both Houses of Congress” (i.e., institutional plaintiffs with

institutional grievances) “and the Executive Branch . . . brought on the basis of claimed injury to

official authority or power” that Raines viewed as unsuitable for judicial intervention. Raines,

521 U.S. at 826. It is more analogous to disputes over an individual’s entitlement to information

based on a congressionally passed and presidentially-signed statute, which courts have long held

provide grounds for standing. See, e.g., Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F.3d 614,

617–18 (D.C. Cir. 2006); Akins, 524 U.S. at 21; Pub. Citizen, 491 U.S. at 449.

Second, the fact that Plaintiffs “have not been authorized to represent their respective

Houses of Congress” in this lawsuit does not weigh the same way as it did in Raines. 521 U.S. at

829. In Raines, the plaintiffs sought to vindicate injuries to the institution of Congress as a whole.

Here, the Court has found that the injuries are not institutional but personal to Plaintiffs, and thus

authorization to sue by the House of Representatives is not relevant to the analysis.

Third, unlike in Raines, a finding that Plaintiffs would lack standing would “deprive[]

Members of Congress of an adequate remedy” and “foreclose[] the [Oversight Visit Policies]

from . . . challenge (by someone who suffers judicially cognizable injury as a result of the

[Policies]).” Raines, 521 U.S. at 829. Defendants resist this conclusion. They argue that this case

should be remedied through “political mechanisms” rather than judicial intervention. ECF 20 at

41 25. In Raines, similar self-help mechanisms included legislative action by Congress as a whole to

“repeal[] the [Line Item Veto] Act or exempt appropriations bills from its reach.” 521 U.S. at 829.

In Chenoweth and Campbell, the prospect of passing additional legislation also served as an

adequate remedy. In Chenoweth, it was “uncontested that the Congress could terminate [the

President’s actions] were a sufficient number in each House so inclined.” 181 F.3d at 116. And in

Campbell, “Congress certainly could have passed a law forbidding the use of U.S. forces in the

Yugoslav campaign.” 203 F.3d at 23.

Defendants also analogize this case to a type of information dispute between Congress and

the Executive Branch—such as those regarding the proper scope of a response to a subpoena of

presidential or agency documents—which are often resolved through the “process of

accommodation.” Trump v. Thompson, 20 F.4th 10, 37 (D.C. Cir. 2021); see ECF 20 at 27.

Accommodation is a “flexible, dynamic process that could involve interlocking and contingent

negotiations over multiple different requests for information,” with Congress exercising pressure

on a recalcitrant Executive Branch through its ability to influence or stymie “the President’s

legislative priorities, nominations and confirmations.” Thompson, 20 F.4th at 37. The Supreme

Court has emphasized that information disputes “have been hashed out in the hurly-burly, the give-

and-take of the political process between the legislative and the executive.” Trump v. Mazars USA,

LLP, 591 U.S. 848, 859 (2020).

But Defendants’ citation to Mazars and the like ignore that here, the “hurly-burly’s done”:

“the battle’s lost and won.” William Shakespeare, Macbeth act 1, sc. 1, l. 3–4. Section 527 is a

result of the very “self-help” mechanisms and political rough-and-tumble that Defendants espouse.

ECF 20 at 25. The text of Section 527 reflects a congressional concern with access to, and

information about, conditions within ICE facilities. In order to remedy that concern, Congress

42 undertook the most classic of political remedies: both the House and the Senate have repeatedly

passed legislation guaranteeing that access to individual Members. If the Executive Branch thought

that Section 527 was bad policy, it could have employed its own political tools—including the

bully pulpit and the veto—to ensure that Section 527 was not included in the various appropriations

acts. Instead, President Trump assented to Section 527 as recently as November 12, 2025. See

FY2026 Continuing Appropriations Act, §§ 101, 103–04, 105, 139 Stat. at 496–97. Accepting

Defendants’ characterization of this action—in reality, a lawsuit alleging violation of a duly

enacted law—as instead a political dispute to be resolved solely with “political mechanisms,”

ECF 20 at 25, would extend the logic of accommodation to a context where it is totally inapposite.

Assuming that Plaintiffs are right on the merits, Defendants are violating the law. To address that

violation, Defendants suggest that Members of Congress must essentially start over: despite having

already passed a statute to secure its Members’ access to ICE facilities, Defendants argue that

Plaintiffs should convince their colleagues in Congress to go back to the well and do the same

thing again, either through further appropriations legislation or other full-House action. ECF 20 at

25 (citing with approval the “political tools” mentioned in Raines); see also id. at 35 (suggesting

that Plaintiffs would be able to secure substantial relief by “convinc[ing] a majority of their House

colleagues that Congress should act to enforce” Section 527). Defendants cite with approval

Campbell, which found that the plaintiff Members of Congress had alternative remedies because

they “retain[ed] appropriations authority and could have cut off funds for” the allegedly illegal

actions. 203 F.3d at 23.

With Section 527, Congress has done just that, and the dispute before the Court regards

ICE’s alleged failure to comply with that funding limitation. In light of the injury alleged by

Plaintiffs, it cannot be the case that Congress’s power to implement further appropriations

43 limitations or legislate other obligations on the Executive Branch is plausibly an adequate remedy.

As Plaintiffs aptly put it, “Congress does not have to act twice for its statutes to be enforceable.”

ECF 29 at 20. “Without the possibility of enforcement” of an appropriations rider like Section 527,

“the Executive Branch faces little incentive,” McGahn, 968 F.3d at 771, to adhere to other of

Congress’s decisions regarding “legislative policies[,] . . . programs[,] and projects” as laid out in

appropriations bills, Tenn. Valley Auth., 437 U.S. at 194. Finding this case justiciable “preserve[s],

rather than disrupt[s],” the longstanding practice of bicameralism and presentment. McGahn,

968 F.3d at 771.

Defendants’ arguments regarding alternative remedies and Congress’s political tools are

misguided for a broader reason: They again assume that this case presents an institutional injury

to Congress as a whole. But the injuries here are to individual Members of Congress. As a result,

the analogy to the information dispute cases does not work. Those cases involve two, co-equal

branches pitted against each other and the balancing of constitutionally-derived interests—

Congress’s in “obtaining information through appropriate inquiries,” and the Executive Branch’s

in confidentiality. Mazars, 591 U.S. at 870; see, e.g., United States v. Nixon, 418 U.S. 683, 706

(1974). In such cases, Congress is exercising an inherent power to conduct oversight that belongs

to the institution, and has the stamp of approval from the institution, whether through delegation

or direct authorization. See McGahn, 968 F.3d at 767, 776 (finding standing to enforce

congressional subpoena where the committee that had issued the subpoena was authorized to do

so by the House rules). Here, individual Members of Congress are exercising a right given to them

by statute to access ICE facilities. It is difficult to see how requiring an individual Member of the

House to seek action of the entire body to vindicate an individual entitlement of access can qualify

as an “adequate remedy.” Raines, 521 U.S. at 829. That the twelve Plaintiffs here would have to

44 mobilize majorities of Congress to act on their individual injuries further demonstrates why the

injuries are personal, rather than institutional, under Raines.

* * *

In sum, the Court finds that Plaintiffs have shown the “substantial likelihood of standing”

required to maintain a request for preliminary relief. Food & Water Watch, Inc., 808 F.3d at 913.

Section 527 provides an entitlement to individual Members of Congress to enter facilities funded

with Section 527 funds and observe the conditions within. And whether construed as the denial of

physical access to those facilities, or the denial of information about the conditions therein,

Plaintiffs have sufficiently alleged “concrete and particularized” injuries that are “fairly traceable

to the challenged conduct” of Defendants and are “likely to be redressed by a favorable judicial

decision.” Spokeo, Inc., 578 U.S. at 338–39. Plaintiffs’ status as legislators, which requires that

the Court’s standing inquiry be “especially rigorous,” does not change this conclusion. Raines,

521 U.S. at 819. Defendants make much out of the fact that this case involves political actors and

figures from both the Legislative and Executive Branches, but the “Judiciary has a responsibility

to decide cases properly before it.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 194

(2012). An Article III court cannot decline to hear a case “merely because the issues have political

implications.” Id. at 196 (citing INS v. Chadha, 462 U.S. 919, 943 (1983)).

2. Equitable Discretion

Notwithstanding the judiciary’s “virtually unflagging” “obligation” to hear cases that are

properly before it, Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013), Defendants argue that

this Court should nevertheless decline to hear this case. Defendants ground this request in the D.C.

Circuit’s “equitable discretion” doctrine. ECF 20 at 35–36. This doctrine states that “[w]here a

congressional plaintiff could obtain substantial relief from . . . fellow legislators through the

45 enactment, repeal, or amendment of a statute, [a] court should exercise its equitable discretion to

dismiss the legislator’s action.” Riegle v. Fed. Open Mkt. Comm., 656 F.2d 873, 881

(D.C. Cir. 1981). While the D.C. Circuit has never overruled Riegle’s “creat[ion] [of this] doctrine

of ‘circumscribed equitable discretion,’” it has questioned its viability and suggested that the work

done by this doctrine has been to a certain extent superseded by, and is properly considered as part

of, the jurisdictional analysis in Raines. Chenoweth, 181 F.3d at 114, 116; see also Melcher v. Fed.

Open Mkt. Comm., 836 F.2d 561, 565 n.4 (D.C. Cir. 1987) (questioning whether Riegle’s “court-

fashioned doctrine of equitable discretion” is “viable”).

Even assuming the continued viability of this doctrine after Raines, the Court finds no

grounds to exercise this discretion. Defendants’ arguments on this point overlap significantly with

their arguments regarding historical practice and adequate alternative remedies for legislator

plaintiffs under Raines, see ECF 20 at 24–25, 27–28, and the Court rejects them for similar reasons.

Defendants argue that the Court should refrain from exercising its jurisdiction pending the

resolution of “all possibilities for settlement” between the “Legislative and Executive Branches.”

ECF 20 at 35 (citing United States v. House of Representatives, 556 F. Supp. 150, 152

(D.D.C. 1983)). But as the Court has explained, this is not the kind of case to which the process of

accommodation applies, and if it was, that process has been settled by Congress’s passage of

Section 527. See supra Section III.A.1.d. Defendants also suggest, as discussed above, that

Plaintiffs ought to “convince a majority of their House colleagues that Congress should act to

enforce” Section 527. ECF 20 at 35. But it is Defendants, not Congress, who are tasked with

enforcing the laws enacted by Congress and signed by the President. U.S. Const. art. II, § 3 (“[The

President] shall take Care that the Laws be faithfully executed.”); see Springer v. Gov’t of

Philippine Islands, 277 U.S. 189, 202 (1928). Where the issue of access to ICE facilities has

46 already been the subject of negotiation between the political branches and resolved through the

passage of a presidentially-signed appropriations bill, one which Plaintiffs allege is now being

ignored, the Court does not find that this dispute is “fully susceptible to political resolution,” as

Defendants claim. Chenoweth, 181 F.3d at 116. The Court will not decline to exercise jurisdiction

on the basis of equitable discretion.

3. Cause of Action Under the Administrative Procedure Act

In addition to establishing a likelihood of jurisdiction, which gets Plaintiffs “through the

courthouse door,” Plaintiffs must also show a substantial likelihood that they have a “cause of

action to prosecute” their case. Make the Rd. N.Y. v. Wolf, 962 F.3d 612, 631 (D.C. Cir. 2020).

Plaintiffs invoke the judicial review provision of the APA, which “permits suit for violations of

numerous statutes of varying character that do not themselves include causes of action for judicial

review.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 130 (2014).

Defendants argue that Plaintiffs cannot show a likelihood of a cause of action under the APA

because they are (a) not “adversely affected or aggrieved” “persons” who may seek APA review,

(b) APA review is precluded by statute, and (c) the challenged Oversight Visit Policies are not

reviewable agency action. ECF 20 at 36 (citing 5 U.S.C. § 702). The Court addresses these

objections in turn.

a. Plaintiffs are Adversely Affected or Aggrieved Within the Meaning of the APA.

A “person . . . adversely affected or aggrieved” by “agency action within the meaning of a

relevant statute” is entitled to invoke the APA’s judicial review provision. 5 U.S.C. § 702. The

APA further defines a “person” to include “an individual.” Id. §§ 701(b)(2), 551(2).

The Court has no difficulty finding that Plaintiffs satisfy this provision. The requirement

that a “person” be “adversely affected or aggrieved” under the APA is “not especially demanding,”

47 FDA v. R.J. Reynolds Vapor Co., 606 U.S. 226, 232–33 (2025). This requirement is interpreted

“broadly as covering anyone even ‘arguably within the zone of interests to be protected or

regulated by the statute in question.’” Id. at 233 (quoting Ass’n of Data Processing Serv. Orgs.,

Inc. v. Camp, 397 U.S. 150, 153 (1970)).

Plaintiffs’ APA challenge to the Oversight Visit Policies is based on violations of the terms

of Section 527. ECF 17-1 at 37. Again, Section 527 prohibits DHS from using appropriated funds

to “prevent” any “Member of Congress” from “entering” specific DHS facilities, or to “make any

temporary modification” to alter conditions at that facility that would be observed by those

Members. § 527(a), 138 Stat. at 619. While DHS “may require that a request” to visit a facility by

congressional staff members “be made at least 24 hours in advance of an intent to enter” the

facility, id. § 527(c), “[n]othing in [Section 527] may be construed to require a Member of

Congress to provide prior notice of the intent to enter a facility . . . for the purpose of conducting

oversight,” id. § 527(b).

Plaintiffs are Members of Congress whose requests to enter covered facilities have been

denied. They are plainly within the zone of interests protected by Section 527, which “forecloses

suit only when a plaintiff’s interests are so marginally related to or inconsistent with the purposes

implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the

suit.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225

(2012). Further, while this test does not require any “indication of congressional purpose to benefit

the would-be-plaintiff,” id., such purpose is clearly evident here, where the language of Section

527 expressly protects the access rights of Members of Congress and their staffs.

Defendants’ two arguments to the contrary are unavailing. First, Defendants appear to

argue that a “person” or “individual” under the APA cannot include “Congress or its Members in

48 their official capacity.” ECF 20 at 38. But the definition of “individual,” whether prior to the

APA’s enactment or in the present day, plainly covers a Member of Congress. See, e.g., Individual,

Black’s Law Dictionary (3d ed. 1933) (“[A] single person as distinguished from a group or class,

and also . . . a private or natural person.”); Individual, Black’s Law Dictionary (12th ed. 2024)

(“Of, relating to, or involving a single person or thing, as opposed to a group.”).

Second, Defendants argue that the logic of the Supreme Court’s decision in Director, Office

of Workers’ Compensation Programs v. Newport News Shipbuilding & Dry Dock Co. (“Newport

News”), 514 U.S. 122 (1995), supports the proposition that Members of Congress suing over

matters relating to their official capacity could not be persons adversely affected or aggrieved

under the APA. In Newport News, the Supreme Court interpreted a provision of the Longshore and

Harbor Workers’ Compensation Act (LHWCA) which allowed for judicial review of decisions by

a Benefits Review Board within the Department of Labor. Id. at 125–26. Like the APA, that statute

provided for judicial review at the request of “any person adversely affected or aggrieved by” the

Board’s order. Id. at 126. The Court held that a “person” “adversely affected or aggrieved” did not

include the Director of the Office of Workers’ Compensation Programs—an office within the

Department of Labor—who had sought review of a Board decision denying a specific worker’s

compensation claim. Id. at 126–29. Defendants seize on the Court’s statement that it had found no

historical examples of “an agency” invoking the APA “in its regulatory or policy-making capacity”

as a person “adversely affected or aggrieved.” Id. at 127. They argue that the lack of similar

historical examples of Members of Congress bringing APA suits in their official capacities points

against finding the Plaintiffs here to be “adversely affected or aggrieved.” ECF 20 at 37.

Newport News does not stand for the broad proposition that Defendants claim. Newport

News was decided, first and foremost, on the textual ground that agencies are expressly excluded

49 under the APA from invoking the judicial review provision, and that throughout the U.S. Code,

“when an agency in its governmental capacity” is meant to be able to sue under a statute’s judicial

review provision, “Congress says so.” Newport News, 514 U.S. at 129. The Supreme Court

considered the history of similar suits only in determining whether to depart from that basic textual

assumption when interpreting the LHWCA. Id. at 127. Here the situation is reversed: Members of

Congress—whether in their personal or official capacities—have not been expressly excluded

from the APA’s scope and, moreover, squarely fit within the plain definition of a

“person . . . adversely affected or aggrieved.” 5 U.S.C. § 702. And Newport News even

acknowledged that the “Government” could invoke “administrative and judicial protection” if it

were occupying a status similar to a “statutory beneficiary.” 514 U.S. at 128. Plaintiffs are the

statutory beneficiaries of Section 527 in their official capacities as “Member[s] of Congress.”

§ 527(a)(1), 138 Stat. at 619. If anything, Newport News supports Plaintiffs’ cause of action

argument.

b. APA Review is Not Precluded by Statute.

Even if a plaintiff is “adversely affected or aggrieved by agency action within the meaning

of a relevant statute,” the APA’s cause of action will not be available “to the extent the relevant

statute ‘preclude[s] judicial review.’” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984)

(quoting 5 U.S.C. §§ 701(a)(1), 702). Defendants argue that the existence of the Anti-Deficiency

Act, Pub. L. No. 97-258, 96 Stat. 877 (1982), along with other methods through which Congress

may seek information from the Executive Branch, indicates that Congress has intended to preclude

review of the appropriations-related claims at issue here.

Defendants wage an uphill battle from the start. “Congress rarely intends to prevent courts

from enforcing its directives to federal agencies,” and courts therefore apply a “‘strong

50 presumption’ favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC,

575 U.S. 480, 486 (2015) (quoting Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670

(1986)). That presumption is, of course, just a presumption, which may be rebutted when a

“statute’s language or structure demonstrates that Congress wanted an agency to police its own

conduct.” Id. But even so, an agency bears a “‘heavy burden’ in attempting to show that Congress

‘prohibited all judicial review’ of the agency’s compliance with a legislative mandate.” Id.

(quoting Dunlop v. Bachowski, 421 U.S. 560, 567 (1975)). “Whether and to what extent a

particular statute precludes judicial review is determined not only from its express language, but

also from the structure of the statutory scheme, its objectives, its legislative history, and the nature

of the administrative action involved.” Block, 467 U.S. at 345. Here, those factors all indicate a

lack of preclusion.

Start with Section 527, the text of which says nothing about the preclusion of judicial

review. Nor do Defendants point to anything in Section 527’s legislative history that undermines

the “strong presumption” that violations of its provisions are judicially reviewable. Mach Mining,

LLC, 575 U.S. at 486. Section 527’s text indicates that Congress was concerned with DHS actions

that were inhibiting individual Members’ access to ICE facilities and was skeptical of the

Executive Branch’s voluntary compliance with its requests. Thus, this is not a situation where the

statutory text and context demonstrate that “Congress wanted an agency to police its own conduct.”

Id. And the “nature of the administrative action” challenged—in this case, the promulgation of

polices that impact the access granted in the statute to the parties contemplated by the statute—

indicates that a suit by these particular Plaintiffs is not impliedly precluded. Block, 467 U.S. at

345.

51 Defendants urge the Court to look beyond Section 527 to the Anti-Deficiency Act (ADA),

which they claim is the “exclusive remedial scheme for alleged violations of appropriations bars,

such as § 527.” ECF 20 at 39. Among other prohibitions, the ADA states that any “officer or

employee of the United States Government” may not “make or authorize an expenditure or

obligation exceeding an amount available in an appropriation or fund for the expenditure or

obligation.” 31 U.S.C. § 1341(a)(1)(A). If an officer or employee has violated this provision, the

ADA provides that they “shall be subject to appropriate administrative discipline,” and a knowing

and willful violation subjects that person to criminal penalties. Id. §§ 1349(a), 1350. In the case of

a violation of the Act by “an officer or employee of an executive agency,” the “head of the agency”

is obligated to report the violation to the President and Congress. Id. § 1351.

The ADA does not preclude Plaintiffs’ ability to bring an APA claim alleging that

Defendants have violated the terms of Section 527. This kind of preclusion is inferred when, for

example, a statute creates a “complex and delicate administrative scheme” that would be disrupted

by letting specific parties seek judicial review under the APA. Glob. Health Council v. Trump,

153 F.4th 1, 18 (D.C. Cir. 2025) (quoting Block, 467 U.S. at 348). Defendants analogize to the

Impoundment Control Act (ICA), which the D.C. Circuit recently found precluded an APA cause

of action for a contrary-to-law claim to enforce the ICA’s limitations on the Executive Branch’s

ability to decline to spend appropriated funds. 10 Id. at 19; ECF 20 at 14. Similar to the ADA, which

prohibits the Executive Branch from spending money not appropriated, the ICA imposes limits on

the Executive Branch’s ability to delay or withhold the spending of appropriated funds. See Glob.

10 In Global Health Council, foreign aid grantees and associations sued to challenge the Executive Branch’s decision to freeze foreign aid spending by the State Department and the U.S. Agency for International Development. 153 F.4th at 7. Plaintiffs brought contrary to law claims based on multiple statutes, including (1) the ICA, on the grounds that the defendants had violated the ICA’s limitations on the Executive Branch’s ability to decline to spend appropriated funds, as well as (2) the 2024 Appropriations Act, on the grounds that defendants had violated its specific provisions Id. at 18, 20 n.17.

52 Health Council, 153 F.4th at 8. But this is unpersuasive for multiple reasons, the first being that

Global Health Council addressed whether plaintiffs had an APA cause of action to enforce the

Impoundment Control Act itself. Id. at 17 (addressing whether the “ICA precludes the grantees

from bringing suit under the APA to enforce its provisions”). But as Global Health Council

acknowledged, this holding did not extend to the question of whether the existence of the

Impoundment Control Act also precluded “contrary-to-law claims . . . based on” other “substantive

provisions,” such as appropriations acts. Id. at 20 n.17 (“[W]e need not and do not decide whether

the ICA precludes suits under the APA to enforce appropriations acts.”). And the other cases that

Defendants cite similarly involved plaintiffs bringing claims under the very statute that precluded

other avenues of judicial review. See Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers

Ass’n, 453 U.S. 1, 14 (1981); Block, 467 U.S. at 345–48. Here, Plaintiffs seek not to enforce the

ADA’s provisions for administrative discipline and criminal prosecution, but to invoke the terms

of Section 527 in their APA contrary to law claim. Defendants’ citations are inapposite.

The mere existence of the scheme established by the ADA does not indicate a

congressional intent to preclude Plaintiffs’ suit. As the Office of Legal Counsel has noted in an

opinion cited by Defendants, the ADA is only “one of several means by which Congress has sought

to enforce” its appropriations instructions. Applicability of the Antideficiency Act to a Violation of

a Condition or Internal Cap Within an Appropriation, 25 Op. O.L.C. 33, 33 (2001) (emphasis

added); ECF 20 at 39 (citing this opinion, erroneously, for the proposition that the ADA is the

“exclusive remedial scheme for alleged violations of appropriations bars”). The text of the ADA’s

remedial provisions indicate that it is a limited scheme that empowers Executive Branch officials

to enforce internal compliance with appropriations laws, but not one meant to preclude the kind of

dispute presented here. The ADA creates penalties imposed by superior Executive Branch actors

53 against subordinate Executive Branch actors. See 31 U.S.C. § 1349(a). True, the remedial scheme

created by the ADA implicates Congress in that the “head of the agency” whose “officer or

employee” violated the statute must notify Congress upon any violation of the ADA. 31 U.S.C.

§ 1351. But the notice provision, along with the other provisions of the statute, all assume that the

enforcing officials in the Executive Branch have decided that a violation of the ADA exists. The

ADA provides no avenue for relief when an Executive Branch agency has decided as a matter of

policy, as is the alleged case here, that its actions do not represent a violation of an appropriations

bar. This distinguishes the ADA from the Impoundment Control Act, which created a “complex

scheme of interbranch dialogue,” which included Congress’s right to sue, exercised by “a specified

legislative branch official if the executive branch violates its statutory expenditure obligations.”

Glob. Health Council, 153 F.4th at 18–19 (citing 2 U.S.C. § 682 et seq.). Holding that the ADA

precludes Plaintiffs’ suit under these circumstances would “threaten [the] realization of the

fundamental objectives” of Section 527. Block, 467 U.S. at 352. 11

Setting aside the ADA, Defendants venture even further afield when they suggest that

Plaintiffs’ suit is precluded because other statutory mechanisms exist for Congress to obtain

information from the Executive Branch, such as the statutory causes of action granted to the Senate

to bring civil lawsuits to enforce congressional subpoenas. See ECF 20 at 41 (citing 2 U.S.C.

§ 288d and 28 U.S.C. § 1365(b)). These mechanisms are irrelevant to this analysis as they concern

requests for documents and testimony by committees. Plaintiffs’ case is about the access to ICE

facilities by individual Members of Congress under the terms of Section 527 and the ability to

observe the conditions within. The existence of statutory causes of action to vindicate Congress’s

11 The specific question before the Court is whether the existence of the ADA precludes the Plaintiff Members of Congress from bringing an APA claim based on a separate “substantive provision[],” that is, Section 527. Glob. Health Council, 153 F.4th at 20 n.17. As a result, the Court need not and does not determine whether the scheme set up by the ADA would preclude an APA claim that Defendants’ conduct was contrary to the ADA itself.

54 general powers of inquiry are not sufficient to overcome the presumption that APA review is

available in this case.

c. Plaintiffs Challenge Final Agency Action.

Defendants also claim that the APA claims are barred because Plaintiffs do not challenge

“final agency action” under 5 U.S.C. § 704. ECF 20 at 42–43. Final agency action under the APA

is action that “mark[s] the consummation of the agency’s decisionmaking process,” and one “by

which rights or obligations have been determined or from which legal consequences will flow.”

Bennett v. Spear, 520 U.S. 154, 178 (1997).

The Oversight Visit Policies are final agency action. The seven-day notice requirement for

detention facilities has been posted on ICE’s Office of Congressional Relations webpage since

June 2025 with no indication that it was tentative, interlocutory, or undergoing revision. The policy

has been cited by DHS and ICE officials when denying Plaintiffs’ access to ICE facilities on

various occasions. The same website previously displayed the field office policy which, while no

longer publicly posted, Plaintiffs attest also continues to be enforced to prevent their entry into

specific facilities. Both policies are final because they “mark the consummation” of DHS’s

“decisionmaking process” regarding Members’ visits to ICE facilities and have had an impact on

the Members’ “rights,” the agency’s “obligations,” and led to the “legal consequence[]” of the

denial of access to Section 527-funded facilities. Bennett, 520 U.S. at 178.

Defendants’ only argument to the contrary is to construe the actions challenged by

Plaintiffs as the “provision or denial of information to Congress,” which Defendants claim are

unreviewable under the APA. ECF 20 at 42. The Court rejects Defendants’ attempt to

mischaracterize the gravamen of Plaintiffs’ challenge. Plaintiffs clearly challenge the Oversight

Visit Policies, which are final agency action under the APA.

55 4. Plaintiffs Are Likely to Succeed on the Merits of their APA Contrary-to-Law and Statutory Authority Claim.

Having satisfied itself of likely jurisdiction and rejected Defendants’ threshold objections

regarding equitable discretion and the availability of a cause of action under the APA, the Court

proceeds to the merits of Plaintiffs’ claim that the Oversight Visit Policies are contrary to law and

in excess of statutory authority. Section 706 of the APA requires the Court to “hold unlawful and

set aside agency action” that is “not in accordance with law,” or in “excess of statutory jurisdiction,

authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C). Plaintiffs challenge

Defendants’ seven-day notice requirement to enter ICE facilities and the purported policy

excluding ICE field offices from the scope of Section 527. The Court finds Plaintiffs likely to

succeed the merits of both. 12

a. The Seven-Day Notice Requirement Violates Section 527.

Section 527(a) prohibits the Department of Homeland Security from using any

appropriated funds in the relevant appropriations acts “to prevent” a “Member of Congress” or that

Member’s designated staff “from entering, for the purpose of conducting oversight, any facility

operated by or for the Department of Homeland Security used to detain or otherwise house aliens.”

§ 527(a), 138 Stat. at 619. Defendants deny that their notice policy prevents Members of Congress

from entering a facility because Members were in a number of cases later allowed to enter the

facilities. In their view, a delayed entry is not a “prevent[ed]” entry. See ECF 20 at 45. That is not

a plausible interpretation of “prevent” as used in the statute. To “prevent,” means to “keep from

happening,” or “to hold or keep back: hinder, stop.” See Prevent, Merriam-Webster Dictionary,

https://perma.cc/GF9Y-L2J4. The notice requirement as implemented by ICE officials does just

12 Because the Court finds Plaintiffs substantially likely to prevail on the merits of this claim and that this claim merits granting a stay of the Oversight Visit Policies, the Court declines to address the merits of Plaintiffs’ remaining APA claims and their mandamus claim at this preliminary juncture.

56 that: it stops visiting Members of Congress from entering a facility unless they have provided

seven days of advance notice. Plaintiffs have identified numerous examples where their requests

to enter facilities at a given date and time were rebuffed by ICE for failure to provide that notice

and they were not allowed access to the facility. See, e.g., ECF 17-2, Escobar Decl. ¶¶ 12–13;

ECF 17-3, Crow Decl. ¶ 20; ECF 17-6, Correa Decl. ¶ 9; ECF 17-9, Ruiz Decl. ¶¶ 9–12; ECF 17-

10, Torres Decl. ¶¶ 17–18.

Any indication that a seven-day advance notice policy is permissible under the definition

of “prevent” as used in Section 527(a) is dispelled by Section 527(b), which states that “[n]othing

in this section may be construed to require a Member of Congress to provide prior notice of the

intent to enter” a covered facility. § 527(b), 138 Stat. at 619. The final subsection of the statute

also points against the permissibility of a notice requirement. That subsection provides specifically

that for “individuals described in subsection (a)(2)”—the designated employees of Members of

Congress—DHS “may require that a request be made at least 24 hours in advance of an intent to

enter” a covered facility. Id. § 527(c), 138 Stat. at 619. That the statute appears to carve out the

permissibility of an advance notice requirement for congressional employees while saying nothing

about Members of Congress further supports Plaintiffs’ reading of the statute that such advance

notice requirements are not permissible for Members of Congress. To adopt Defendants’

interpretation of Section 527 to allow a seven-day notice requirement would also render subsection

(c)’s grant of license to issue a one-day notice requirement to congressional employees

superfluous, which counsels against the interpretation. See Pulsifer v. United States, 601 U.S. 124,

143 (2024) (rejecting statutory reading when the reading would “render[] an entire subparagraph

meaningless”).

57 Defendants argue that other statutory authorities allow for the promulgation and

enforcement of the notice requirement, such as the assignment to the DHS Secretary of the

responsibility for “arrang[ing] for appropriate places of detention” of detained noncitizens,

8 U.S.C. § 1231(g), on the theory that this responsibility includes “prescribing standards for

detention such as visitation protocols,” ECF 20 at 46 (also citing 6 U.S.C. § 122(b)). But these

highly general, prior-in-time statutes cannot reasonably be construed to overcome the prohibition

in the highly-specific, later-passed Section 527. See, e.g., Law v. Siegel, 571 U.S. 415, 421 (2014)

(“[A] statute’s general permission to take actions of a certain type must yield to a specific

prohibition found elsewhere.”). “[A]n agency” like DHS “literally has no power to act . . . unless

and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374

(1986). What Congress giveth, Congress may taketh away. Even if statutory authority had

previously been provided to DHS to implement a notice requirement, Section 527 has now limited

that authority with respect to Members of Congress and their designated staffs.

Nor can Defendants justify the notice requirement under the President’s Article II

responsibility to take care that the immigration laws are “faithfully executed.” U.S. Const. art. II,

§ 3. That argument ignores that Section 527 is itself one of the “[l]aws” that must be “faithfully

executed.” Id.; see Glob. Health Council, 153 F.4th at 8 (“[T]he Take Care Clause ‘charges the

Executive Branch with enforcing federal law,’ including spending-power laws.” (quoting Medina

v. Planned Parenthood S. Atl., 606 U.S. 357, 367 (2025)); see also City of Los Angeles v. Adams,

556 F.2d 40, 49 (D.C. Cir. 1977) (“[W]e are bound to follow Congress’s last word . . . even in an

appropriations law.”).

Finally, although they do not press this as a reason that Plaintiffs’ claims fail on the merits,

Defendants note in their briefing that DHS and ICE have access to funds that are not subject to

58 Section 527. They observe that DHS currently receives funding from not only the FY2026

Continuing Appropriations Act, but also from the additional spending bill passed in July 2025,

which does not include the Section 527 rider. See OBBBA, § 100052, 139 Stat. at 388–89; ECF 20

at 18. There is no present dispute that the Oversight Visit Policies were created and first

implemented before the passage of that bill. Further, days before the recent Government shutdown,

Defendants conceded that OBBBA funds had not been used for “the operation of detention

facilities and access to detention facilities,”—meaning that the only funds being used were Section

527-restricted funds—and promised to inform the Court if that fact had changed. Hr’g Tr. 47:11–

24. And Defendants’ declaration regarding ICE’s funding during the shutdown indicated that

OBBBA funding alone was insufficient to cover the costs of ICE’s continuing operations during

the shutdown, including detention operations, with ICE funding itself in part by “incur[ring]

obligations in advance of FY2026 appropriations.” ECF 32-1, Ferguson Decl. ¶¶ 5–7. Finally, in

a joint status report, Defendants appear to concede that following the conclusion of the lapse in

appropriations and the passage of the FY2026 Continuing Appropriations Act, Section 527-

restricted funds are currently being used for “detention operations, including the adoption and

implementation of the visitation protocols at issue in this action.” ECF 34 at 2.

The Court thus finds that Plaintiffs are likely to succeed on their claim that Section 527

funds are being used to implement a seven-day notice requirement for Members of Congress

seeking to enter ICE detention facilities, and that the notice requirement is contrary to law and in

excess of DHS’s statutory authority.

b. The Policy of Categorically Excluding ICE Field Offices from the Requirements of Section 527 is Also Contrary to Section 527.

Plaintiffs also challenge ICE’s policy of categorically excluding ICE field offices from the

scope of Section 527. The Court finds on this record that Defendants’ policy exists, and it rests on

59 an incorrect understanding of Section 527, which requires ICE to permit access to “any facility

operated by or for the Department of Homeland Security used to detain or otherwise house aliens.”

§ 527(a), 138 Stat. at 619.

Recall that the June 2025 Visit Protocol briefly posted to ICE’s Office of Congressional

Relations website stated that “ICE Field Offices are not detention facilities and fall outside of the

Sec. 527 requirements” because “ICE [did] not house aliens at field offices[;] rather these are

working offices where Enforcement and Removal Operations (ERO) personnel process aliens to

make custody determinations based on the specific circumstances of each case.” June 2025 Visit

Protocol at 4. While the June 2025 Visit Protocol was removed from ICE’s website sometime in

June 2025, Plaintiffs claim that this aspect of the Protocol continues to be ICE’s official policy.

See ECF 17-1 at 39. They present evidence showing that ICE officials have rebuffed visits to

specific field offices following June 2025 on the grounds stated in the June 2025 Visit Protocol.

See ECF 17-7, Gomez Decl. Ex. A at 13 (rejecting request to visit field office on July 7, 2025,

because, among other reasons, “ICE Field Offices are not detention facilities” covered by Section

527 because “ICE does not house aliens at field offices”); ECF 17-8, Garcia Decl. ¶¶ 20–23

(denying access to Los Angeles field office on the grounds that it was “not considered a facility”);

ECF 17-11, Thompson Decl. ¶¶ 13–16 (denying access on July 21, 2025, to full Washington Field

Office facility, including “12-hour holding area,” on the grounds that the “‘latest guidance’ was

that field offices are not subject to” Section 527). Plaintiffs also direct the Court to a letter from

August 2025 from DHS Secretary Kristi Noem to Plaintiff Representative Garcia in which

Secretary Noem states that “ICE Field Offices are not detention facilities and fall outside of Section

527 requirements. ICE does not house aliens at field offices, rather these are working offices where

60 [ERO] administratively processes aliens.” Letter from DHS Sec’y Noem to Rep. Garcia (Aug. 22,

2025) [hereinafter August 2025 Noem Letter], https://perma.cc/5J7N-EGLH.

It is telling that Defendants do not substantively contest that certain ICE field offices are

facilities “operated by or for the Department of Homeland Security used to detain or otherwise

house aliens.” § 527(a), 138 Stat. at 619. Instead, Defendants simply deny the existence of “any

visitation protocol that prevents Members of Congress and their staff from visiting ICE field

offices, including those containing ERO temporary holding facilities.” ECF 20 at 46. At oral

argument, counsel for Defendants answered affirmatively to the Court’s question about whether

Members of Congress are “being permitted access to those facilities,” and represented that

“[s]ubject to the same seven days’ advance notice requirement for any detention facilities,

[Members of Congress] can access field offices.” Hr’g Tr. at 46:17–25. But Defendants’ answers

subtly shift the terrain. The question is whether ICE has a policy that “ICE field offices are not

subject to [S]ection 527.” ECF 17-1 at 39. Defendants’ admission that ICE is currently allowing

Members of Congress into certain field offices is not necessarily a concession that ICE considers

field offices to be covered by Section 527. To put it another way, ICE’s allowing of congressional

visits to certain field offices could be completely consistent with a policy that “entirely excludes

ICE field offices from the reach of section 527.” Id. at 37. If a facility is covered by Section 527,

Defendants are required to let Members of Congress visit. A departmental policy that field offices

are exempt from Section 527 would still allow ICE officials to voluntarily admit Members of

Congress to field offices; but such a policy would also allow ICE to deny access when it chooses.

Defendants’ assertion that Members of Congress are currently being allowed to visit field offices

thus does not disprove the existence of a policy categorically excluding field offices from the scope

of Section 527. And again, the evidence submitted by Plaintiffs indicates that Defendants have

61 indeed adopted a policy that ICE field offices “fall outside of Section 527 requirements” and are

relying on that policy, even if inconsistently, to deny access to ICE field offices. August 2025

Noem Letter.

Defendants’ failure to substantively respond to the merits of Plaintiffs’ argument that

certain ICE field offices are in fact covered by the terms of Section 527 is grounds to treat the

argument as conceded under Local Civil Rule 7(b) of this Court. See Wannall v. Honeywell, Inc.,

775 F.3d 425, 428 (D.C. Cir. 2014) (“The rule is understood to mean that if a party files an

opposition to a motion and therein addresses only some of the movant’s arguments, the court may

treat the unaddressed arguments as conceded.”); Shankar v. ACS-GSI, 258 F. App’x 344, 345 (D.C.

Cir. 2007) (declining to “resolve the merits of [an] issue because [plaintiff] conceded it” by failing

to “respond in any way to defendant’s argument”). But even if Defendants had not conceded the

point, the Court would find that a policy categorically excluding field offices from the scope of

Section 527 is contrary to the terms of the statute.

“Statutory construction must begin with the language employed by Congress and the

assumption that the ordinary meaning of that language accurately expresses the legislative

purpose.” Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004).

Section 527 applies to “any” “facility,” which indicates breadth. “Read naturally, the word ‘any’

has an expansive meaning, that is one or some indiscriminately of whatever kind.” Ali v. Fed.

Bureau of Prisons, 552 U.S. 214, 219 (2008). To “use” means to “employ for the accomplishment

of a purpose.” Use, Black’s Law Dictionary (12th ed. 2024); Smith v. United States, 508 U.S. 223,

228–29 (1993) (noting the “everyday meaning” of “use” is “to employ”). The definition of a

covered facility is thus not governed by its labelling by DHS but by how it is employed in practice.

62 Next, Section 527 applies to any facility used to “detain or otherwise house” noncitizens.

“Detain” is the verb form of “detention,” which means the “act or an instance of holding a person

in custody; confinement or compulsory delay.” Detention, Black’s Law Dictionary (12th ed.

2024); Jennings v. Rodriguez, 583 U.S. 281, 307–08 (2018) (collecting this, and other definitions

of “detain,” which include “to hold or keep in or as if in custody,” “to keep in confinement or

under restraint; to keep prisoner” (citations and emphasis omitted)). Plaintiffs argue that the

custody or confinement contemplated by Section 527 extends to “any circumstance[s] where an

individual’s freedom of movement is restrained, even temporarily.” ECF 17-1 at 40. The Court

agrees that the plain meaning of “detain” lacks any clear temporal element as to the length of the

detention—it focuses on whether the individual is subject to legal confinement or restraint,

regardless of the time spent in that condition. And in various other places in the law, the language

of detention is frequently used to describe types of restraint and confinement that are for a brief

duration. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (describing the brief investigative

police stops discussed in Terry v. Ohio, 392 U.S. 1 (1968), as “detain[ing] the individuals”); see

Terry, 392 U.S. at 10 (discussing whether the “police should be allowed to ‘stop’ a person and

detain him briefly for questioning”).

However, Section 527 also uses “detain” as part of the full phrase “detain or otherwise

house” noncitizens. “Otherwise” means “[i]n a different way; in another manner,” or “[i]n other

conditions or circumstances.” Otherwise, Black’s Law Dictionary (12th ed. 2024). “House” means

“to provide with living quarters or shelter,” or “serve as a shelter or container for.” House,

Merriam-Webster Dictionary, https://perma.cc/7WCY-CERA; see also House, Oxford English

Dictionary, https://perma.cc/Q4AY-V4T9 (meaning “[t]o shelter, contain, or accommodate as a

house; to be a house for”). Plaintiffs argue that “otherwise” serves as a “catch-all” provision that

63 expands the scope of the statute through the addition of the term “house,” meaning that Section

527 applies to a “DHS facility, of whatever kind, functioning as a place where individuals are held

in confinement in any manner.” ECF 17-1 at 41. Plaintiffs’ interpretation, while plausible, gives

short shrift to the statute’s use of “house,” a verb which implies an association with living quarters,

and ignores the way that “otherwise” links the two verbs together. Based on the definitions for

“otherwise” above, the statute is best read to mean “detain or [in a different way] house,” or “detain

or [in another manner] house,” which indicates that the detentions contemplated by the statute are

similar in nature to the act of housing. See Otherwise, Merriam-Webster Dictionary,

https://perma.cc/WTP4-HHCD (providing the example of “[a]ll of the books had been burned or

otherwise destroyed,” a sentence in which the word “destroyed” makes clear that burning of the

books resulted in their destruction, rather than cosmetic or other minor damage). As a result, the

Court finds that the detentions contemplated by the statute likely have a prolonged or residential

aspect, more akin to an overnight stay at a jail rather than an hour-long interrogation at a police

office.

The present record demonstrates that ICE field offices featuring ERO holding facilities

appear to be “used to detain or otherwise house” noncitizens as contemplated by Section 527.

§ 527(a), 138 Stat. at 619. As noted above, ICE’s own internal guidance permits “holding

facilities” within field offices, and states that such holding facilities are used for the “short-term

confinement of individuals who have recently been detained.” ICE Policy Number 11087.2,

§§ 1.1, 3.2 (emphasis added). The policies regarding those holding facilities indicate that they are

generally supposed to be used for detentions shorter than 12 hours—already a lengthy period of

time—but the policies also acknowledge that individuals may in fact be held for longer. See id.

§ 3.2 n.3 (noting that detainees may be held at the holding facility for longer than 12 hours in

64 “exceptional circumstances”). And the evidence in the record indicates that detainees are indeed

in practice being held in ERO holding facilities for far longer than 12 hours. Take the Los Angeles

field office, which multiple Plaintiffs have sought to enter for the purpose of conducting oversight.

Plaintiffs have been told by ICE officials that ICE holds noncitizens “in custody” in that office

“until administrative processing is complete,” and that in some cases, processing “may take up to

72 hours.” ECF 17-7, Gomez Decl. ¶¶ 19–20; id. Ex. A. at 12; see also id. at 12–14 (noting also

that Plaintiff Gomez’s requests to visit the Los Angeles field office were denied, in part, because

“ICE Field Offices are not detention facilities and fall outside of [Section 527]”). Plaintiff Garcia

sought to enter the same facility after receiving reports that individuals were being held overnight

there, but was denied on July 24, 2025, on the ground that the field office was “not considered a

facility,” and was instead directed to the “Adelanto Detention Facility.” ECF 17-8, Garcia Decl.

¶¶ 15, 20–23. Plaintiff Goldman’s request to visit the 10th floor of the ICE New York Field Office

was denied by ICE on June 17, 2025, on the ground that the facility was not a “detention facility”

and it “fell outside the Sec. 527 requirements.” ECF 17-4, Goldman Decl. ¶ 24. However, Goldman

states that he spoke with an individual who was detained in the 10th floor facility for four days.

Id. ¶ 39 (“I have spoken to two individuals who were detained in the 10th Floor Facility—one of

whom was detained for four days.”).

ICE’s own policies also indicate that the field office holding facilities have the indicia of

detention as contemplated by the statute. The policy document governing the operation of those

facilities uses the language of not only detention but also “hous[ing],” when it states that “[a]bsent

exceptional circumstances, no detainee should be housed in a holding facility for longer than 12

hours.” ICE Policy Number 11087.2, § 5.1 (emphasis added). And depending on the amount of

time the detainee is held in the facility, staff operating the facility are supposed to provide other

65 residential-type functions, like meals every six hours. See id. § 4.4.1(2) (requiring that detainees

be “provided a meal at least every six hours”); see also id. § 5.2(1) (requiring that minors and

pregnant women be provided with “regular access to meals, snacks, milk, and juice”).

The Court need not at this preliminary juncture determine the full scope of which ICE

facilities fall under the terms of Section 527—such as field offices without the types of holding

facilities described above—because the current record demonstrates that at minimum, ICE field

offices with ERO holding facilities are currently being “used to detain or otherwise house”

noncitizens as contemplated by the statute. Defendants’ purported exemption of field offices from

Section 527 as a categorical matter is therefore contrary to the statute. Based on the evidence before

the Court at this stage and the plain text of Section 527, the Court finds that Plaintiffs are

substantially likely to succeed on the merits of their claim that the field office policy exists, and

that it is contrary to Section 527.

B. Plaintiffs Have Demonstrated Irreparable Harm.

Success on the merits of Plaintiffs’ APA claim will not alone justify preliminary relief.

Plaintiffs must also establish that they face irreparable injury absent the requested preliminary

relief. Nat’l Mining Ass’n v. Jackson, 768 F. Supp. 2d 34, 50 (D.D.C. 2011); Chaplaincy, 454 F.3d

at 297. To constitute irreparable injury, the injury “must be ‘both certain and great,’ ‘actual and

not theoretical,’ ‘beyond remediation,’ and ‘of such imminence that there is a clear and present

need for equitable relief to prevent irreparable harm.’” Mexichem Specialty Resins, Inc. v. EPA,

787 F.3d 544, 555 (D.C. Cir. 2015) (quoting Chaplaincy, 454 F.3d at 297).

Plaintiffs claim that the Oversight Visit Policies cause “irreparable harm to their ability to

conduct congressionally authorized oversight.” ECF 29 at 35. Their argument is that “access to

DHS facilities and real-time, on-the-ground information” about those facilities is required for

66 Plaintiffs to carry out their responsibilities, which include serving “members’ constituents and

their loved ones,” “hold[ing] hearings, craft[ing] legislation, and determin[ing] fiscal year 2026

appropriations.” ECF 17-1 at 50. According to Plaintiffs, the “information gained from in-person

oversight is unique information that cannot be learned or recreated in the future,” and that

conditions in “detention facilities can change rapidly, rendering a week too long to wait” for that

information. Id. In response, Defendants argue that this case is analogous to FOIA cases which

have required a showing that information denied be “time-sensitive and highly probative, or even

essential to the integrity, of an imminent event, after which the utility of the records would ‘be

lessened or lost.’” ECF 20 at 51 (quoting N.Y. Times Co. v. DHA, No. 21-cv-566, 2021 WL

1614817, at *8 (D.D.C. Apr. 25, 2021)). In Defendants’ view, Plaintiffs have not shown that any

“imminent event” lessens the utility of site visits after seven days. Id. Defendants also challenge

as speculative Plaintiffs’ concern that conditions in ICE facilities change in the seven days between

a Member’s request to visit and their visit. Id. at 52. Defendants argue that to the extent that

conditions improve at a given facility between a Member’s notice of intent to visit and their arrival

at the facility, this cannot qualify as a harm—if anything, Defendants argue, this shows that

oversight visits are working as intended. See Hr’g Tr. 51:9–18 (“[I]f the facilities are being

changed for the better, that seems like something Plaintiffs would be okay with. . . . [I]f the

conditions are being improved, I think that goes some way to . . . resolving Plaintiffs’ irreparable

injury assertion.”).

The Court finds Plaintiffs’ argument more persuasive. First, while this case is analogous to

those involving FOIA and the release of agency records, the analogy only goes so far. Plaintiffs

are not requesting agency records, which the agency is obligated to preserve in accordance with

the Federal Records Act, see Armstrong v. Exec. Off. of the President, 90 F.3d 553, 555

67 (D.C. Cir. 1996), so will therefore be available “at some later date,” Elec. Priv. Info. Ctr. v.

Presidential Advisory Comm’n on Election Integrity, 266 F. Supp. 3d 297, 319 (D.D.C.), aff’d on

other grounds, 878 F.3d 371 (D.C. Cir. 2017). Here, Section 527 concerns the ability of Members

of Congress to review on-the-ground conditions at a covered facility at the time of their request.

Plaintiffs have an interest in facts about whether facilities are overcrowded or unsanitary, whether

the staff is engaging in abuse, or the location of constituents or their family members. See, e.g.,

ECF 17-4, Goldman Decl. ¶ 40; ECF 17-2, Escobar Decl. ¶ 10. This kind of information is not

static like an agency record, but can vary widely based on ICE’s pace of arrests and decisions

regarding housing of detainees. Nor is it speculative that these conditions could change over the

course of seven days. For example, before Defendants initiated the Oversight Visit Policies,

Representative Correa conducted daily visits during which he personally observed that an ICE

facility went from holding fewer than ten detainees to 77 detainees over the course of several days.

ECF 17-6, Correa Decl. ¶ 8 (“I was told that the increase was due to the Los Angeles facilities

being temporarily closed.”). The better analogy is to the cases involving the potential disposal or

destruction of agency records. See, e.g., Citizens for Resp. & Ethics in Wash. v. Off. of Admin.,

565 F. Supp. 2d 23, 30 (D.D.C. 2008) (“[Plaintiffs] would have absolutely no recourse in the event

that records potentially responsive to its FOIA requests were destroyed.”). The changing

conditions within ICE facilities means that it is likely impossible for a Member of Congress to

reconstruct the conditions at a facility on the day that they initially sought to enter. This issue is

even more pronounced to the extent that Defendants’ policies—such as the field office policy—

prohibit Plaintiffs from entering certain facilities at all. Such information about the on-the-ground

conditions is “lost forever to history,” and cannot be retroactively provided to Plaintiffs following

68 resolution of the merits of this litigation. Am. Oversight v. Hegseth, 788 F. Supp. 3d 14, 29

(D.D.C. 2025).

But even under the logic of the FOIA cases cited by Defendants, Plaintiffs demonstrate

irreparable harm. The information that Plaintiffs seek about ICE facility conditions is “time-

sensitive and highly probative” to the Members’ ongoing duties, which include “imminent

event[s], after which . . . the utility of the [information will] be lessened.” N.Y. Times Co.,

2021 WL 1614817, at *8. Plaintiffs identify upcoming legislative deadlines to which updated and

accurate knowledge of the conditions in ICE facilities will be critical, such as Congress’s

upcoming deadline to pass full-year 2026 appropriations for DHS and ICE. ECF 17-1 at 25. For

those impending deadlines, “stale information is of little value.” Payne Enters., Inc. v. United

States, 837 F.2d 486, 494 (D.C. Cir. 1988). Further, Plaintiffs note that they use their visits to ICE

facilities to engage in constituent casework, including to locate or check on the status of detained

constituents or their constituents’ detained family members. See, e.g., ECF 17-2, Escobar Decl.

¶¶ 26, 34; ECF 17-4, Goldman Decl. ¶ 42; ECF 17-5, Espaillat Decl. ¶ 32; ECF 17-6, Correa Decl.

¶ 8. But given ICE’s representations to Plaintiffs that certain facilities only hold detainees for

periods of time shorter than seven days before transferring them elsewhere, Defendants’ notice

requirement necessarily “lessen[s]” the “utility of” such an oversight visit. N.Y. Times Co.,

2021 WL 1614817, at *8; ECF 17-7, Gomez Decl. ¶ 20 (noting that custody in field office holding

area was “not to exceed 72 hours absent exceptional circumstances”); ECF 17-11, Thompson Decl.

¶ 16 (Representative Thompson noting he was told that field office had a “12-hour holding area”).

When “time is necessarily of the essence, the harm in agency delay is more likely to be

irreparable.” Am. Oversight v. U.S. Dep’t of State, 414 F. Supp. 3d 182, 186 (D.D.C. 2019).

69 Accordingly, Plaintiffs have shown that they suffer irreparable harm due to the Oversight

C. The Equitable Factors Support Preliminary Relief.

The public interest and the balance of equitable considerations weigh strongly in favor of

granting Plaintiffs their requested relief. See Singh v. Berger, 56 F.4th 88, 107 (D.C. Cir. 2022)

(noting that these factors “merge when, as here, the Government is the opposing party”). There is

little “public interest in the perpetuation of unlawful agency action,” and the “public interest

therefore favors [Plaintiffs],” given that the Court has found that the Government’s actions are

likely unlawful. Shawnee Tribe v. Mnuchin, 984 F.3d 94, 102–03 (D.C. Cir. 2021) (finding

Plaintiffs likely to succeed on a claim that the Secretary of the Treasury was “distributing

congressionally appropriated funds in violation of the authorizing statute”). Further, this case

involves the Government’s violation of an appropriations statute passed by Congress and signed

by the President. The public has an interest in ensuring that “statutes enacted by their

representatives are not imperiled by executive fiat.” Grace v. Whitaker, No. 18-cv-1853, 2019 WL

329572, at *5 (D.D.C. Jan. 25, 2019); see U.S. Dep’t of Navy, 665 F.3d at 1347 (noting the

importance of the government appropriations process “as a restraint on Executive Branch

officers”).

In response to these weighty concerns, Defendants point to the same kinds of separation-

of-powers concerns raised in Raines and discussed previously in this opinion. See ECF 20 at 53

(arguing that “separation-of-powers considerations carry even greater weight in the context of a

preliminary injunction”); see supra Section III.A.1.c., d; supra Section III.A.2. But the Court has

previously rejected Defendants’ claim that this case is one that must be resolved through the

70 process of negotiation and accommodation between the political branches rather than through the

judicial system and finds it again unpersuasive at this stage of the analysis.

Finally, the Court rejects the Government’s argument that this Court should not grant

preliminary relief because doing so would be tantamount to granting full relief on the merits.

ECF 20 at 54. Preliminary relief of the kind requested by Plaintiffs is designed to reestablish the

status quo, or “the last uncontested status which preceded the pending controversy.” Huisha-

Huisha v. Mayorkas, 27 F.4th 718, 733 (D.C. Cir. 2022). In this case, that is the status before

Defendants began enforcing the Oversight Visit Policies. Based on the record before the Court,

between the first enactment of Section 527 in 2020 and June 2025, DHS did not impose notice

requirements for Members of Congress seeking entry into covered facilities or take the stance that

field offices were categorically exempt from Section 527. See June 2025 Visit Protocol, at 2

(“Member[s] of Congress are not required to provide advance notice for visits to ICE detention

facilities.”); ECF 17-7, Gomez Decl. ¶¶ 7, 15 (noting staff members’ visit to ICE field office was

permitted on June 6, 2025, but a visit to the same office was prohibited on June 17, 2025, on the

grounds that the “LA Field Office is a field office[,] not a ‘detention facility’”). And victory on

this motion is far from a total victory for Plaintiffs. “[W]hile the record establishes that preliminary

relief is warranted, this decision in no way prejudges the Government’s ability going forward to

defend its policy on the merits.” Singh, 56 F.4th at 109. Here, the Court has found Plaintiffs

substantially likely to succeed on the merits of their APA contrary to law claims based on the

present record. Should that record change—for example, should the Government demonstrate

different facts regarding the sources of funding DHS has used to promulgate and implement the

challenged policies, see supra Section III.A.4.a—the Court’s conclusions on the merits might well

be different. Plaintiffs will receive relief sufficient to reestablish the status quo, not “full

71 relief . . . on the merits,” as Defendants claim. Dorfmann v. Boozer, 414 F.2d 1168, 1173 n.13

(D.C. Cir. 1969) (per curiam).

D. The Court Stays the Oversight Visit Policies Under Section 705 of the APA.

All the relevant factors support a grant of preliminary relief. Both DHS’s seven-day notice

requirement, and its policy of excluding ICE field offices from the scope of Section 527 are stayed

under Section 705 of the APA. Such a stay is consistent with Defendants’ request that “any relief

awarded must be limited to enforcing” the “limitation on the use of funding contained in” Section

527. ECF 20 at 56. The challenged Oversight Visit Policies violate the APA and are contrary to

the terms of Section 527 because the evidence currently before the Court demonstrates that the

Policies were promulgated with Section 527 funds, and they continue to be implemented and

enforced through the use of Section 527 funds. Unless and until Defendants show that no Section

527 funds are being used for these purposes, a stay of the policies is consistent with the scope of

Defendants’ violation and Plaintiffs’ requested relief.

Defendants ask that if this Court grants relief, it limit the stay to these Plaintiffs. But as the

D.C. Circuit has repeatedly held, vacatur of the agency action is the normal remedy under APA

section 706. Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir.

1998). This Court and courts in this and other circuits have applied that same rule to section 705

stays. See Make the Rd. N.Y. v. Noem, No. 25-cv-190, 2025 WL 2494908, at *22 (D.D.C. Aug. 29,

2025); Coal. for Humane Immigrant Rts. v. Noem, No. 25-cv-872, 2025 WL 2192986, at *37–38

(D.D.C. Aug. 1, 2025); District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp. 3d 1, 48

(D.D.C. 2020); Cabrera v. U.S. Dep’t of Lab., 792 F. Supp. 3d 91, 106 (D.D.C. 2025) (collecting

cases). The Court also rejects Defendants’ claim that Supreme Court’s decision in Trump v. CASA,

Inc., 606 U.S. 831 (2025), prohibits a stay of the challenged Oversight Visit Policies. As this Court

72 has held and the D.C. Circuit has also concluded, “CASA is not a case about the scope of relief

for agency review authorized by the APA.” Make the Rd. N.Y. v. Noem, No. 25-5320, 2025 WL

3563313, at *34 (D.C. Cir. Nov. 22, 2025) (statement of Millett, J. and Childs, J.) (“The

Department . . . does next to nothing to advance the ball by pointing to CASA as the source of its

purported limitation on the scope of stay relief under the APA.”). Finally, the Court rejects

Defendants’ request that Plaintiffs put forward a bond pursuant to Federal Rule of Civil Procedure

65(c). That rule requires the Court when issuing a preliminary injunction or temporary restraining

order to order the movant to “give[] security in an amount that the court considers proper to pay

the costs and damages sustained by any party found to have been wrongfully enjoined or

restrained.” Fed. R. Civ. P. 65(c). A stay under APA section 705 is neither a preliminary injunction

nor a temporary restraining order, and Rule 65(c) therefore does not apply. Coal. for Humane

Immigrant Rts., 2025 WL 2192986, at *38; Make the Rd. N.Y., 2025 WL 2494908, at *23.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for a stay of agency action, ECF 17, is

GRANTED. The challenged Oversight Visit Policies are STAYED pending conclusion of these

review proceedings.

A separate order accompanies this memorandum opinion.

SO ORDERED.

__________________________ JIA M. COBB United States District Judge

Date: December 17, 2025