Today, the Supreme Court will hear oral arguments in United States v. Texas, the challenge to the Obama administration’s “deferred action” immigration plan. The Court could decide this case in a number of ways, some very wrong and some less so. But there’s only one really right way to handle it: Grab this stinker by the collar, frog-march it out of the courtroom, and give it a good swift kick down the Court’s majestic front steps.
That’s because this case should never have been heard; this judgment should never have been entered; this injunction should never have been issued. The human and policy implications of the case are, of course, huge. But it also has the potential to not-so-subtly skew the workings of the nation’s federal system, further enfeebling Congress and empowering federal judges to play philosopher king at the expense of self-government.
The case was brought by the state of Texas, which objects to the administration’s two programs—announced in 2014—to regularize deportation procedures. As many as 11 million people in the United States are subject to deportation; Congress, however, provides funding to remove only about 400,000—or less than 4 percent—of them a year. As a result, for many years the Department of Homeland Security’s Immigration and Customs Enforcement (formerly the Immigration and Naturalization Service) has focused on undocumented aliens who have criminal records or who otherwise pose a threat to the United States. In 2014, the homeland-security secretary spelled this policy out in two “guidance” memos, announcing that some undocumented people who are not high-priority targets would become eligible for “deferred action.” This meant members of those benign groups could come forward and receive a three-year authorization to live and work legally in the United States. The new policy didn’t provide “legalization” or a “path to citizenship,” much less “amnesty”; indeed, “deferred action,” which may be revoked at any time, isn’t even binding temporary protection against being deported. But those who qualified and registered for the programs would have a chance to live normal lives, work, and pay taxes. The hope was that within three years, the political system would have begun to function, producing comprehensive reform.
Texas didn’t like the new program. Fair enough. That’s why the Framers gave each state representation in Congress and the Senate. But Texas Governor Greg Abbott asked a federal district court in Brownsville, Texas, to halt the entire program because, he said, it was not authorized under the state’s immigration statutes.
Here’s where the problem sets in. By every rule of federal jurisdiction I know, the case should have been kicked right away. That’s because the state of Texas lacks what lawyers call “standing to sue”—a constitutional requirement that anyone invoking a federal court’s help must have an “injury in fact.” As an individual, I can’t sue the federal government even if I think the new “deferred action” program is illegal; I’d be laughed out of court. Such a suit would represent a “generalized grievance,” and under Article III of the Constitution, it wouldn’t be a “case or controversy.” If I have a beef with the policy, I can go to Congress to try to get it stopped, but I can’t ask a judge to stop it for me.
“Standing” applies to states as well as to people. Consider the ill-fated lawsuit by former Virginia Attorney General Ken Cuccinelli against the Affordable Care Act. During the debate over the ACA, the Virginia legislature passed a statute saying no citizen of Virginia could be subject to an individual insurance mandate. Cuccinelli used that statute to claim an “injury” to Virginia—the ACA imposed such a mandate even though Virginia law said there couldn’t be one. The Fourth Circuit bought that argument a ticket out of town: “[I]f we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court,” the court ruled.
States sometimes do have a real injury, of course. Massachusetts did have standing, according to the Supreme Court, to challenge federal refusal to regulate greenhouse gases. That’s because it is a coastal state, the Court said. Because of climate change, “rising seas have already begun to swallow Massachusetts’ coastal land.” This was “a particularized injury in its capacity as a landowner.”
Texas had to show, in essence, that it has some particular skin in the game, some harm caused by the policy other than “we don’t like it.” Creatively enough, it claimed that it was “injured” by its own laws. Texas allows “lawfully present” aliens to apply for driver’s licenses. Processing these applications costs money—not much, but some. So Texas will now have to process more drivers’ licenses. Hey-presto! Injury!
This claim of injury is a bit like a man suing the city government for building a sidewalk in his neighborhood. The plaintiff might argue that he likes to give expensive candy bars to all trick-or-treaters who ring his doorbell at Halloween. Since his house will be easier to get to, he will now have to shell out for more expensive candy. That plough, as Abraham Lincoln once said, won’t scour.
Here’s the real dispute: Texas and the other state plaintiffs think the programs are a bad idea. Texas and the other state plaintiffs think they have too many undocumented people within their borders. Texas and the other state plaintiffs wish the federal government would deport more people.
These are serious objections. The Constitution provides a serious remedy for them. It is called politics. Texas’s government can and does communicate its objections to the federal government directly. The governor can speak out and bring political pressure on the administration to change the programs. The state’s congressional delegation can introduce legislation to upend them.
But what none of them should be able to do is dress up a classic political fight as an Article III case. This is not an argument that the policy can never be challenged in court. In an amicus brief in this case, former Solicitor General Walter Dellinger points out that Texas can simply refuse to give driver’s licenses to “deferred action” recipients. Such a recipient could sue the state. Now the state can counterclaim that the policy is illegal. That’s a case.
The ill effects of a victory for Texas would transcend the topic of immigration. Expanding state standing in this way would bring policy disputes over dozens of federal policies—statutes, regulations, and policy guidance—in front of courts when, under the Article III, they should not be there. Remember, too, that a conservative lower-court judge recently decided that the House of Representatives, having failed to repeal the ACA, can now sue in court to defund it. We can expect Congress to run into court any time it doesn’t like what the executive is up to. It’s an unprecedented and dangerous legal development.
In February, the Supreme Court issued an unprecedented stay of the administration’s entire climate-change policy. Last month, the justices formally announced that some of them want to rewrite the ACA’s contraceptive mandate. These are ill omens for a true system of self-government. The Court can protect our system against further damage by telling Texas to pay for its own damn candy.