This week, the U.S. Supreme Court heard oral arguments in United States v. Texas, a suit in which Texas along with twenty-five other states are challenging the Obama administration’s initiatives, announced back in November 2014, deferring removal of millions of unauthorized immigrants. The policies in question, Deferred Action for Parents of Americans (DAPA) and expansion of the Deferred Action for Childhood Arrivals (DACA+), raise numerous questions about immigration law. However, one of the most important issues in the case – whether Texas has standing to challenge these initiatives at all – transcends immigration law and could be the deciding factor in this high-stakes dispute. So while the decision in United States v. Texas will be monumental within immigration law, it will also allow the Court to settle major questions about the role of the states in monitoring federal law enforcement policies.
Many arguments as to the role of states in challenging federal law have risen and been reevaluated since the Supreme Court’s 2007 decision holding that Massachusetts had standing to sue the EPA for its refusal to regulate greenhouse gasses. The biggest concern has largely been that some limits must be put in place, 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 states and the federal government. One argument put forth from the Cornell Law Review argues that states can challenge federal laws and practices that preempt or undermine continued enforceability of state law, but should have “no special standing to ensure that federal agencies properly implement federal law” as they don’t have the proper expertise regarding the United States as a whole. If interpreted this way, Texas would only have standing in contention of federal laws requiring it to change its treatment of deferred-action recipients, not specifically for non-enforcement.
A University of Richmond Law Review article reaches the same conclusion but through a different analysis. It concludes that states lack standing to sue when challenging the enforcement of laws that may affect their citizens when they 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. A University of California Hastings College of the Law Review article contrarily suggests employing the political-question doctrine to help decide the proper role. Under this theory, judicial review would be barred when the Constitution’s text assigns the question to the political branches or when there are no judicially manageable standards for a court to apply. This would allow Texas to review Obama’s deferred-action initiatives for consistency with existing immigration law, past practice, and congressional ratification. If found to be beyond judicial review under this analysis, then administrations’ major decisions to forgo enforcement of environmental, tax, or firearms regulation would be too, causing a large regulatory upheaval.
Despite their differences, all of these scholars would agree that Texas’s standing remains a crucial issue in this case that the Court must address before it even reaches the legality of the president’s deferred-action initiatives. A final ruling by the Court is expected in June.
Benny Agosto, Jr. is a partner at Abraham, Watkins, Nichols, Agosto, Aziz & Stogner in Houston, Texas. For over 65 years, Abraham Watkins has successfully represented injured people and families who fall victim to catastrophes. Our attorneys have the knowledge, experience and resources necessary to obtain just compensation their clients. For more information, please contact the office of Benny Agosto, Jr. at Abraham, Watkins, Nichols, Agosto, Aziz & Stogner, by letter at 800 Commerce Street, Houston, Texas 77002, or by phone at (713) 222-7211.