Next Monday the Court will hear argument in United States v. Texas, in which Texas and twenty-five other states are challenging the Obama
administration’s initiatives deferring removal of millions of unauthorized
immigrants. Yet one of the most important issues in the case – whether
Texas has standing to challenge these initiatives – has nothing to do with
immigration law.
The question of when and whether states have standing to
sue the United States to challenge executive branch enforcement policies has
cropped up frequently over the last decade in cases concerning federal environmental policies, the Affordable Care Act, and federal disaster
relief, among others. This
case gives the Court an opportunity to settle questions about the role of the
states (and thus the courts) in monitoring federal law enforcement policies.
Legal scholars have been thinking about these questions for at least the
last fifty years. In the 1960s, prominent constitutional scholar
Alexander Bickel argued that broad state standing to challenge federal law “would make a
mockery . . . of the constitutional requirement of case or controversy, which .
. . forms an essential limitation on the reach of the power of judicial
review.” In more recent work, Ann Woolhandler and Michael Collins agreed.
But the Supreme Court’s 2007 decision holding that Massachusetts had standing to sue the EPA for its
refusal to regulate greenhouse gasses has led scholars to reevaluate these
arguments. Gillian Metzger wrote that the decision suggests “states have a special role in monitoring
and improving” the president’s implementation of federal law. As Metzger
acknowledges, however, there must be somelimits on state
standing, or else state attorneys general could force the courts to address
almost any change in federal enforcement policy, dragging the courts into
political battles between state attorneys general and the federal government.
In a recent article in the Cornell Law Review, Tara Grove has
sought to provide just such a limiting principle. She argues that “states
are entitled to “‘special solicitude’ in the standing analysis in only one
context: when they seek to enforce or defend state law.” Thus,
although she contends that states can challenge federal laws and practices that
preempt or undermine continued enforceability of state law, she argues they
have “no special standing to ensure that federal agencies properly implement
federal law.”
According to Grove, this view not only comports with the
Constitution’s text and design, but is also desirable from a policy
perspective. As she explains, state attorneys general are well suited to
make determinations about what is good for their state, but do not have the
same expertise regarding the best interests of the United States as a
whole. Accordingly, under her standard, Texas lacks standing to sue the
executive for its non-enforcement of federal immigration law, but does have
standing to contest federal laws requiring it to change its treatment of
deferred-action recipients (for example, by requiring Texas to provide them
with driver’s licenses).
Stephen Vladeck articulated a different, and more stringent, limiting principle to explain why
states lacked standing to challenge implementation of the Affordable Care
Act. He concludes that states only have standing when challenging federal
laws that “operate on the states qua states.” For example, he would agree
that states have standing to challenge federal voting rights laws enacted under
the Fifteenth Amendment, because that provision empowers Congress to regulate
the states directly. But Vladeck concludes that states lack standing to
sue when challenging the enforcement of laws that may affect their citizens,
but do not expressly bind the states themselves. Under that standard,
Texas lacks standing to challenge Obama’s immigration initiatives because its
alleged injury – the cost of providing driver’s licenses to deferred-action
recipients – is self-inflicted and not imposed by federal law.
In contrast, Zachary Price argues the standing question should focus on the capabilities of the federal
judiciary, which suggests the Court does have standing to review Texas’s
challenge (though he reaches no definitive conclusion on that question).
He would employ the political-question doctrine to help decide the role of
courts in reviewing state challenges to executive non-enforcement. Thus,
judicial review is barred when the Constitution’s text assigns the question to
the political branches or there are no judicially manageable standards for a
court to apply.
Under this standard, Price tentatively concludes that
courts are capable of reviewing Obama’s deferred-action initiatives for
consistency with existing immigration law, past practice, and congressional
ratification – the same standards that the Office of Legal
Counsel used when
discussing their legality. Finally, he points out that if non-enforcement
of federal immigration law is beyond judicial review, then administrations’
decisions to forgo enforcement of environmental, tax, or firearms regulation
would be too.
Texas’s standing to sue is thus a major and unresolved question that the
Court must address even before it reaches the legality of the president’s
deferred-action initiatives.
Perhaps for that reason, the Court agreed with the
parties to give the case thirty
minutes of extra argument time. It will be interesting to see how much of
that time is devoted to the question of whether the Court can hear the case at
all.
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