On January 30, the Southern District Court of Texas will decide whether 25 plaintiff states in Texas v. U.S. should be granted a preliminary injunction to stop the Obama administration’s latest, lawless executive amnesty. Establishing “legal standing” —essentially, a plaintiff’s right to sue — is highly problematic for petitioners aggrieved by the non-enforcement of our immigration laws, but the plaintiff states have skillfully laid out in their briefs a comprehensive case for why they should be granted standing.
The states assert several economic interests harmed by the Deferred Action for Parental Accountability (DAPA) program. They cite, among other things, the millions of dollars that DAPA will impose in costs to state budgets and the labor-market distortions created by its work-authorization provisions. If the states are granted standing, their challenge to DAPA’s illegality will be allowed to go forward.
Non-enforcement of our immigration laws can create massive problems in our communities, job markets, and the environment. In the case of individuals or groups, however, the harms are generally not considered particular or definite enough to support their right to sue. Further, immigration law is often considered “political” and therefore, in the eyes of the courts, outside their purview. Note that this insulation of constitutional immigration law goes only one way. Groups like the ACLU and the Southern Poverty Law Center routinely sue on behalf of illegal and criminal aliens claiming improper orders of deportation or denial of benefits.
For state governments, though, it may be easier to achieve standing, especially when they are financially harmed by the federal action. In their briefs, the states cite the costs that illegal aliens add to well-known programs. Texas, for example, must spend an additional $1.3 billion annually in uncompensated medical care, $106 million in CHIP provisions, and $9,473 to educate each illegal-alien child.
The plaintiff states emphasize the added cost to state licensing. They claim that under DAPA, illegal-alien recipients in most states, including Texas, will become eligible to apply for driver’s licenses, which will incur costs. Attorneys for the Justice Department have attempted to rebut this claim, asserting that the costs of processing licenses would be recouped with fees. Texas notes, however, that fees received from non-citizen applicants “do not come close to covering the State’s costs.” The net loss to the state will be as high as $200 per license, not including the costs of renewals, the plaintiff states maintain.
DOJ also argues that states are not required to issue driver’s licenses under DAPA and that these injuries are therefore “self-inflicted.” As the plaintiff states point out, however, DOJ attorneys made the exact opposite assertion in a brief filed in Arizona Dream Act Coalition v. Brewer. (Joyce Branda, acting assistant attorney general, is a signer of both briefs.) In that case, the Arizona government first offered licenses to recipients of DACA, but not to other illegal aliens, before rescinding that benefit and denying licenses to all illegal aliens, after it was sued in district court for discrimination. For its retraction of benefits, the state government was sued a second time, again on discrimination grounds, and a Ninth Circuit panel of three judges, appointed by Presidents Carter, Clinton, and Obama, enjoined the law. Now, in its response to the plaintiff states in Texas v. U.S., DOJ is apparently saying that decision was wrong.
DOJ’s “new” view of the law creates its own harm, the states argue, and would force them into an all-or-nothing choice: either extend licenses to all deferred-action recipients or stop issuing them to any such recipients, including, for instance, foreign students whose visa conditions were disrupted by Hurricane Katrina. This all-or-nothing choice, the states argue, is akin to the Medicaid-expansion provision of Obamacare, which was struck down as “unconstitutionally coercive.” They add that any doubt about the causal relationship between amnesty and illegal immigration is eliminated by their expert demographer, who affirmed that amnesty will “discernibly and significantly” increase illegal immigration.
The plaintiff states rely in part on the Supreme Court’s decision in Massachusetts v. EPA, in which Massachusetts sued the Environmental Protection Agency for failing to regulate carbon emissions from new cars sold in the U.S. The state claimed that the emissions increased climate change, which would disproportionately impact the coastal state by raising sea levels. In Texas v. U.S., the plaintiffs argue, modestly, that their economic injuries are “far more concrete” and traceable than in Massachusetts’s case and that therefore their legal standing should be much clearer.
They note that under parens patriae (parent of the nation) doctrine, states have been given standing to vindicate certain “state sovereign” interests, such as the protection of their citizens’ economic well-being. That principle was demonstrated in Alfred L. Snapp v. Puerto Rico, in which the Commonwealth of Puerto Rico sued apple growers in Virginia under the Immigration and Nationality Act, for discriminating against Puerto Rican migrant workers by hiring temporary foreign labor. The plaintiffs’ argument in Texas is that DAPA discriminates against U.S. workers by raising the cost of their labor relative to that of illegal aliens, because the latter are exempt from the Obamacare-mandated “minimum essential coverage” that employers would otherwise have to pay.
If they are granted standing and a trial on the case’s merits is held, the states will be able to provide further evidence of their injury under DAPA. Texas, for example, should include as an economic interest the $1 billion in un-recouped law-enforcement costs traceable to illegal aliens. But if Judge Andrew S. Hanen of the Southern District in Texas finds that the states lack sufficient standing and he dismisses the case, the House of Representatives should pass a resolution authorizing litigation to vindicate its institutional injury by filing a separation-of-powers lawsuit against the executive.
— Ian Smith is an attorney in Washington, D.C. and blog contributor for the Immigration Reform Law Institute.