Breaking News

Symposium: Second thoughts on standing

Amanda Frost is a Professor of Law at American University, where she specializes in constitutional law, immigration law, civil procedure, and the federal court system and federal jurisdiction.

United States v. Texas raised major questions about the scope of the president’s power to exercise discretion when enforcing immigration law. But even more important was the threshold issue of whether the states had standing to sue. Although the one-sentence affirmance by an equally divided Court doesn’t tell us much, we now know that at least four Justices thought Texas had standing to bring this case. The result may be even more lawsuits by state attorneys general who decide they want to bring their disagreements with the federal government to the courts rather than the ballot box.

The case came before the Supreme Court because Texas and twenty-five other states challenged the Obama administration’s program granting millions of unauthorized immigrants a temporary reprieve from removal – a program known as Deferred Action for the Parents of Americans and Lawful Permanent Residents, or DAPA. These states argued that the program violated federal immigration laws, as well as laws regulating administrative procedure, and that the president had failed his constitutional responsibility to “take care that the laws be faithfully executed.”

But first they had to convince the courts that they had standing to sue. Based on past precedent, that looked hard to do. Article III of the U.S. Constitution allows the federal courts to decide only “cases” and “controversies.” Courts have interpreted those words to mean that a plaintiff must have a concrete and individualized injury to be heard by a federal court. Accordingly, interested parties cannot sue even when the federal government gives tax breaks to private schools that discriminate on the basis of race, or harms endangered species, because these are generalized grievances that are better suited for resolution by the political branches rather than the unelected federal courts. As Chief Justice John Roberts explained in an earlier case, “[t]he constitutional role of the courts . . . is to decide concrete cases – not to serve as a convenient forum for policy debates.”

Texas claimed that it was injured because under state law it was required to provide driver’s licenses to deferred action recipients, and it would lose money when doing so because it charged less for the licenses than the costs of providing them. But, as the United States explained in its brief, Texas’s injury was self-inflicted – it could avoid that injury by choosing not to provide DAPA recipients with licenses, or by charging them the full cost of the license. Moreover, many federal policies have some fiscal impact on the states, but such tangential, indirect harm is the kind of generalized grievance that does not create standing. And so many observers, myself included, thought the case could easily be resolved on this clear-cut issue without reaching the thornier questions about immigration law and policy.

The Court thought otherwise. Within the first few minutes of oral argument, Roberts broke in to ask Solicitor General Don Verrilli to address standing. Verrilli repeated the government’s argument that Texas could avoid its alleged injury by choosing not to give driver’s licenses to DAPA recipients. But the Chief Justice was skeptical, and repeatedly noted that if Texas tried to exclude DAPA recipients from obtaining licenses, it would likely be sued either by the United States or by DAPA recipients. (A successful suit had recently been brought against Arizona after it had barred other recipients of deferred action from obtaining driver’s licenses in that state.)   Justices Anthony Kennedy and Samuel Alito also jumped into the fray, making the same point. In other words, these Justices seemed to believe that a self-inflicted injury was enough for standing if – at a future time – the state’s attempt to change its law to avoid the injury would subject it to a lawsuit. The Solicitor General tried to point out that if and when this happened, Texas could then raise its objections to DAPA. To give Texas standing now based on a potential future lawsuit would be premature. But these Justices did not seem convinced.

We cannot know how these three Justices voted on the standing question. But whichever four Justices (or more) concluded Texas had standing must know they were opening door to myriad lawsuits by states with a similar type of self-inflicted injury based on the states’ own policy choices.

For example, under that same theory, any time a state incorporates a federal standard into its laws – as is typical in state tax laws, for example – that state could sue to challenge a change in the federal standard that affects the state’s fisc. And if a state chooses to borrow a federal definition for a term of art such as “disabled veteran” or “poverty level,” it could sue if it dislikes the federal government’s definition of these terms, since that new definition will also affect state law. Although these states could always change their laws to decouple them from the federal standards, the states could then argue – as Texas did – that they might not succeed in doing so for any number of reasons, and so should be granted standing now to challenge federal policy that they have voluntarily adopted as their own.

As the Chief Justice has noted, standing doctrine is apolitical. If Texas can sue the federal government to put a stop to policies it doesn’t like because of such self-inflicted injury, then Massachusetts and California can do the same. And if they can get a district court judge to issue a nationwide preliminary injunction, as Texas did, then they may obtain the desired result within a few weeks of filing a suit, and without having to fully prove their case. Indeed, although Texas has yet to win a final judgment in its lawsuit, there is no longer enough time to complete a trial on the merits and implement DAPA before President Barack Obama leaves office. Texas’s success in this case is sure to inspire other state attorneys general to follow its lead.

Article III’s standing requirement is supposed to prevent the unelected federal courts from aggrandizing their role in our system of government by hearing disputes better resolved by the political branches of government. In other words, standing serves as a check on the federal courts’ power. But standing doctrine also protects the courts from being caught in the cross-fire between those branches, or between the state and federal governments. By keeping the door open to lawsuits such as this one, the Court has made itself the focal point of disputes between state attorneys general and the federal government, a result that may end up harming the Court as well as the country.

Recommended Citation: Amanda Frost, Symposium: Second thoughts on standing, SCOTUSblog (Jun. 24, 2016, 7:28 AM),