Kevin Johnson is Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at UC Davis School of Law.

United States v. Texas raises critically important legal issues concerning the discretion of the executive branch in the enforcement of U.S. immigration laws. Moreover, if allowed to stand, the Fifth Circuit’s finding that Texas has standing to derail discretionary federal immigration enforcement decisions could open the door to the use of litigation in the federal courts for partisan political ends in many controversial areas of law enforcement. As the Court explained three Terms ago in Hollingsworth v. Perry, the use of litigation as a political tool, as Texas and other states are doing, is precisely the kind of suit that Article III standing doctrine seeks to prevent.


For years, Congress has been embroiled in a contentious debate over immigration reform. With a congressional stalemate, a number of states passed immigration enforcement laws ostensibly intended to “assist” the federal government in immigration enforcement – even though the U.S. government claimed that those efforts undermined federal enforcement authority. In 2012, in Arizona v. United States, the Supreme Court struck down core provisions of one of those laws, Arizona’s controversial S.B. 1070. Making it clear that federal power over immigration was preeminent, the Court emphasized that the U.S. government had great discretion over immigration enforcement. By so doing, the Court staved off further state and local immigration initiatives that interfere with federal immigration authority.

To this point in time, House Republicans have blocked immigration reform. President Barack Obama responded in a measured way. Consistent with a long history of the use of prosecutorial discretion by the executive branch in removal – as well as other law enforcement – decisions, the administration in 2012 implemented the Deferred Action for Childhood Arrivals (DACA) program, which provided temporary relief to undocumented immigrants who had been brought to this country as children and are now young adults. In 2015, the Obama administration announced an expanded Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

Twenty-six states, with Texas leading the charge, challenged DAPA under the Administrative Procedure Act and the Take Care Clause of the Constitution. A district court in the Southern District of Texas enjoined the program’s implementation. A divided panel of the U.S. Court of Appeals for the Fifth Circuit affirmed.

In the end, opponents of immigration reform have been able to use litigation in federal court to put on ice a major immigration initiative of the president. The damage is done. Even if the Supreme Court upholds DAPA, there might not be time to implement the program while President Obama is in office.


A majority found that, because it had demonstrated that it would incur costs by issuing subsidized driver’s licenses to DAPA beneficiaries, one state – Texas – had established Article III standing. (Why the showing of injury by one state justifies a nationwide injunction of a federal program is an entirely different question.) In making that finding, the Fifth Circuit looked to Massachusetts v. EPA, the 2007 decision in which the Supreme Court found that Massachusetts had standing to challenge the Bush administration’s failure to regulate greenhouse gases.

The alleged fiscal injury to Texas is considerably more attenuated than the loss of coastal land by Massachusetts in Massachusetts v. EPA. Moreover, the injury alleged by Texas is self-inflicted, given that the costs result from Texas’s decision to issue the licenses to DAPA recipients (and its further decision to subsidize the processing costs), not any mandate of the federal government.

In the Fifth Circuit, Judge Carolyn King dissented from the majority’s finding that Texas had standing to challenge DAPA. She observed that “[t]he majority’s breathtaking expansion of state standing would inject the courts into far more federal-state disputes and review of the political branches than now is the case.” King relied on the words of none other than John Roberts, who before joining the Supreme Court wrote for the Duke Law Journal that “[b]y preserving the proper bounds of Article III standing, the judiciary prevents itself from `aggrandiz[ing] itself . . . at the expense of one of the other branches.’” Roberts was defending the Court’s 1992 holding in Lujan v. Defenders of Wildlife that environmental organizations lacked standing to challenge federal regulations under the Endangered Species Act of 1973. Roberts noted that, although standing doctrine barred the plaintiffs from federal court, Congress could take the action sought by the environmental groups:

Standing is an apolitical limitation on judicial power. It restricts the right of conservative public interest groups to challenge liberal agency action or inaction, just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction. It . . . derive[s] from and promote[s] a conception that judicial power is properly limited in a democratic society. That leaves greater responsibility to the political branches of government – however they are inclined.

The possible impacts of affording Texas standing to sue

The broad notion of standing pursued by political actors in this case is inconsistent with the limited jurisdiction of the federal courts under Article III. The Fifth Circuit’s liberal standing rule would open the door to state challenges, based on partisan political concerns, of many immigration enforcement decisions, as well as many other policy initiatives by the federal government.

Consider one possibility. At the same time that it announced DAPA, the Obama administration dismantled a broad criminal removal program – known as Secure Communities – and replaced it with a narrower one – known as the Priority Enforcement Program – that focused on immigrants convicted of serious crimes. Should the states have standing to challenge the new PEP program, contending that the injury suffered is possible increased crime costs? Such a claim is not readily distinguishable from the challenge in this case. If the Court finds that Texas has standing to challenge DAPA, one could also anticipate efforts by the states for partisan political reasons to employ lawsuits in the federal court to interfere with the executive branch in its discretionary judgments about how to enforce myriad laws – from the Internal Revenue Code to the environmental laws – passed by Congress.

The fact that there are states on both sides of the litigation in this case reflects the political nature of the dispute. Disagreeing with Texas and the other twenty-five states, fifteen states – including California, New York, and the District of Columbia – filed an amicus brief supporting the grant of certiorari that characterizes the alleged injury to Texas as “illusory or self-inflicted” because there is no requirement in DAPA or elsewhere in federal law that the states issue driver’s licenses, much less subsidized ones to DAPA recipients. These states forcefully claim that the alleged harm “does not justify using the federal courts to achieve a political victory that Plaintiffs could not achieve through the political process.”

Immigration reform is a contentious policy issue best left to the political branches of government. The litigation in this case in fact is part of a larger political struggle. Some political actors disliked the Obama administration’s discretionary policy judgment and went to federal court to stop that policy from being implemented (a ploy that apparently could not have been secured through Congress). The use of the federal courts as a political weapon in a national debate was precisely what the framers of Article III of the Constitution sought to prevent.

Posted in U.S. v. Texas, Featured, United States v. Texas symposium

Recommended Citation: Kevin Johnson, Symposium: United States v. Texas – The road to perpetual immigration gridlock?, SCOTUSblog (Feb. 11, 2016, 9:52 AM),