Ernest A. Young holds the Alston & Bird Chair at Duke Law School.
It’s safe to say that the Supreme Court’s one-line per curiam opinion today in United States v. Texas – “[t]he judgment is affirmed by an equally divided Court” – will not go down in history as one of the Court’s landmark opinions. Without even a separate concurrence or dissent to sink one’s teeth into, one can expect much of the commentary simply to repeat positions taken earlier. Although I participated in the case by drafting an amicus brief for public law scholars supporting Texas’s standing to sue, I will try not to rehash that brief’s arguments here. Instead, I want to make three more limited points.
First, although today’s result certainly demonstrates the Court’s limited ability to resolve divisive disputes without a full complement of justices, the impact of Antonin Scalia’s absence is likely more complex. For one thing, the conventional wisdom that a Court with Justice Scalia still sitting would have definitively struck down the president’s immigration program may be wrong. Scalia, after all, was the Court’s most restrictive Justice on standing to sue, and he might have voted to throw Texas out of court. More importantly, the Court’s agonizingly narrow decision today in Fisher v. University of Texas at Austin – which the Court could decide because Justice Elena Kagan’s recusal left it with seven members rather than eight – illustrates that an odd number of Justices hardly guarantees definitive resolution of difficult and divisive constitutional questions.
Second, the Court was right to disappoint those observers who urged it to use standing as an “easy way out” to avoid the difficult merits questions concerning whether the president exceeded his powers in issuing his immigration order. In the 1960s, Professor Alexander Bickel suggested that the Court should use standing and other justiciability doctrines like ripeness or mootness to avoid deciding socially disruptive cases that might undermine the Court’s legitimacy. The trouble with this view, as Gerald Gunther pointed out at the time, was that standing and the other justiciability doctrines are themselves creatures of legal principle with considerable independent importance. The scope of standing to sue under Article III’s “case or controversy” requirement potentially affects every lawsuit in federal court. And twisting standing doctrine simply to avoid deciding a difficult merits question – or, as in United States v. Texas, to enable a judgment in a dispute when the Justices cannot agree on the merits – would risk closing the courthouse door on deserving plaintiffs in a wide range of cases.
It is important to understand just how radical the United States’s position on standing in the immigration case was. The centerpiece of its argument was a novel concept of “self-inflicted” injury that would bar Article III standing any time a plaintiff could have taken some action on its own to avoid its injury. Although the United States borrowed this notion from the much narrower prudential limitations on suits by states in the original jurisdiction of the Supreme Court, there is no reason that the Justice Department’s Article III argument should not extend to suits by individuals. After all, the idea articulated in the United States’s brief is that if one could have avoided one’s injury by taking or refraining from some action, then the cause of the injury is the plaintiff’s act or omission – not the challenged government action. Jane Roe, for instance, could have avoided her injury in Roe v. Wade by seeking an abortion in another state, and the plaintiff-parents in Brown v. Board of Education could have homeschooled their children. Did they all lack standing to sue? It is hardly surprising that the Justices were not lining up to narrow Article III standing so radically.
If the “self-inflicted injury” doctrine were confined to states, that would have significantly limited the ability of state governments to challenge federal actions in federal court. And that leads me to my third point, which is that despite the lack of an authoritative pronouncement from the Supreme Court, United States v. Texas is a very significant win for the proposition that states can effectively challenge federal actions that they think are unlawful. The Court’s non-ruling means that the district court’s injunction stands, and the DAPA program will not be revived before the end of President Obama’s term. One may or may not agree with that outcome as a policy matter; I, for one, would almost certainly have supported DAPA had it been proposed as a statute. But state challenges to federal action far transcend the immigration context, as the northeastern states’ challenge to the Bush Administration’s inaction on global warming in Massachusetts v. EPA illustrated.
These sorts of challenges are likely to play an increasingly important role going forward. The days when the national and state governments operated in largely separate spheres are long behind us; even in areas like immigration, federal and state governmental activities are intimately connected. Actions by each government affect – and often injure – the other. When national and state governmental actions pervasively intersect, we need a forum for peaceful resolution of the disputes that ensue. The United States does not hesitate to sue when state governments do things that adversely affect its own governmental functions, and no one says it lacks standing to do so. It is unclear why that should not be a two-way street. The issue in United States v. Texas was thus not whether states should have some form of unique standing to sue in federal court, but rather whether states should labor under unique disabilities.
Moreover, these days states participate extensively in debates about federal policy through both the national legislative and administrative processes. No one disputes that those ought to be the primary fora for state complaints about federal policy. But the claim in United States v. Texas was precisely that President Obama’s unilateral executive action had circumvented both the legislative process, in which the states are represented, and the Administrative Procedure Act’s notice-and-comment procedure, in which states can participate like any other interested party. The result of the district court’s injunction is thus not to resolve a political dispute through judicial fiat, but rather to throw that dispute back into the political and administrative fora where it belongs. If the states have standing to bring any claims at all, they should have standing to bring claims that their own opportunities to participate in national political processes have been unlawfully thwarted.
The Court’s one-line per curiam opinion did not, of course, endorse any of this. But the practical success of Texas’s litigation strategy means we are likely to see more suits by state governments challenging the lawfulness of national action. Those suits are likely to come from both Left and Right—from “blue” states as well as “red” ones. And because states are themselves democratically accountable bodies with lots of competing demands on their time and resources, I doubt we will see a flood of frivolous challenges. If we are lucky, however, the Court’s refusal to block Texas’s suit today will strengthen the states’ role in our constitutional structure.