The standing claims of the red states challenging DACA are not as formidable as their substantive claims.
The standing claims of the red states challenging DACA are not as formidable as their substantive claims.
P resident Biden continues his unilateral decrees expanding categories of illegal aliens — now it’s aliens who’ve entered illegally and claim to be spouses of Americans — through his lawless “deferred action” and “parole” gambits. (See our editorial, commentary by Charlie, and James’s news report; I will say my piece on the matter on Saturday.) Simultaneously, the Biden administration is struggling to fight off a serious multi-state challenge to Deferred Action for Child Arrivals, or DACA, the 2012 Obama–Biden program that is the foundation of these gambits.
In the latter effort, the Biden Justice Department has wasted no time trying to capitalize on the Supreme Court’s reaffirmation of tight strictures on standing to sue. The DOJ has fired off a letter to the Fifth Circuit U.S. Court of Appeals arguing that the states challenging DACA lack standing, citing as justification for its position the decision in last week’s “abortion pill” case — FDA v. Alliance for Hippocratic Medicine.
In Alliance, the Court unanimously held that a group of concerned physicians and medical associations lacked standing to challenge the regulatory shenanigans by which the Clinton, Obama, and Biden administrations approved and broadened the availability of mifepristone tablets (the “abortion pill”). Justice Brett Kavanaugh’s opinion casts significant doubt on the theory that parties who are not regulated have standing to sue based on a regulation’s impact on others.
Standing rules require that a litigant show he has suffered (or is likely to suffer) a concrete injury that was caused by the defendant and that can be redressed by judicial relief. The doctors tried to bring themselves within those standards by positing complicated theories of speculative harms they could suffer due to the government’s actions. The Court was unmoved.
The states challenging DACA have an overwhelming case that the Obama–Biden administration’s sweeping refusal to enforce immigration law and its granting of positive government benefits to categories of illegal aliens were (and are) blatantly illegal. DACA violates the Constitution’s separation of powers, usurping congressional authority. As promulgated in 2012 by nothing more than an agency memo, DACA also violated the Administrative Procedure Act (APA) by flouting notice-and-comment requirements. And, as supposedly repaired by the new Biden rule that purports to comply with the APA, DACA is arbitrary and capricious because the new rule — all 453 pages of it — substantially reiterates the 2012 DACA memo in all its blatant illegality. (Agency regulations may not contravene congressional statutes; hence, those that clearly do so are not reasonable.) This is why the federal district court of Judge Andrew Hanen has already invalidated DACA (a ruling that is stayed pending appeal), and why the Fifth Circuit affirmed Judge Hanen’s ruling.
The DACA case is still pending in Texas because the new Biden rule was issued while Hanen’s DACA decision was being appealed; even as it affirmed Hanen, the Circuit remanded the case back to Hanen for further proceedings regarding the new rule. In September, Hanen again found against the government. The Biden DOJ appealed, so the Fifth Circuit has jurisdiction once again — which explains why DOJ sent its letter regarding the Supreme Court’s Alliance ruling.
It is not enough for Texas and the other plaintiff states to have convincing arguments that DACA is illegal; to prevail, they must satisfy standing requirements. To put it mildly, the states’ standing claims are not as formidable as their substantive contentions. That puts them in a position similar to the doctors in Alliance. Moreover, it’s worth noting that it was the Fifth Circuit that believed the Alliance doctors had standing — the conclusion that the Supreme Court just reversed.
In the DACA case, in concluding that the plaintiff states had standing, the Fifth Circuit relied heavily on Massachusetts v. EPA. That 2007 case produced a 5–4 ruling in which the Court’s progressives (John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter, joined by then-swing justice Anthony Kennedy) dubiously held that several blue states and cities had standing to challenge the EPA’s refusal to regulate carbon-dioxide emissions under the Clean Air Act. This decision prompted a vigorous dissent on the standing question from Chief Justice John Roberts, joined by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. (The four also joined in a dissent, penned by Scalia, from the rest of the majority’s decision.)
Suffice it to say that, 17 years later, none of the justices in the Massachusetts v. EPA majority remains on the Court, whose progressive bloc has narrowed to three justices — Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. To the contrary, not only do Roberts, Thomas, and Alito remain on the Court, but the newest justices — in what, to oversimplify, is a 6–3 conservative-leaning majority — are Kavanaugh, whose Alliance opinion relies heavily on Scalia’s standing jurisprudence, and Neil Gorsuch and Amy Coney Barrett, who both joined the Alliance majority and are apt to exhibit Scalia-like skepticism regarding attenuated standing claims.
In concluding that the states had standing to challenge DACA, the Fifth Circuit placed great stock in the Massachusetts v. EPA rationale that “States are not normal litigants for the purpose of invoking federal jurisdiction” and may be “entitled to special solicitude.” (See Texas v. United States, 50 F.4th 498, 514 (5th Cir. 2022).) It is worth considering, then, what Chief Justice Roberts had to say about that in dissent:
Relaxing Article III standing requirements because asserted injuries are pressed by a State . . . has no basis in our jurisprudence, and support for any such “special solicitude” is conspicuously absent from the Court’s opinion. The general judicial review provision cited by the Court . . . affords States no special rights or status. The Court states that “Congress has ordered EPA to protect Massachusetts (among others)” through the statutory provision at issue . . . and that “Congress has . . . recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious. . . .” The reader might think from this unfortunate phrasing that Congress said something about the rights of States in this particular provision of the statute. Congress knows how to do that when it wants to . . . but it has done nothing of the sort here. Under the law on which petitioners rely, Congress treated public and private litigants exactly the same.
Considered in conjunction with the Alliance decision’s reaffirmation of solid standing barriers, Roberts’s reasoning has ominous implications for the states challenging DACA. No wonder that, even before the decision’s ink was dry, the Biden Justice Department raised Alliance with the Fifth Circuit. Indeed, a premise of the Fifth Circuit’s “special solicitude” standing rationale in the DACA case is that states have “quasi-sovereign interests” — a theory so elusive that the Circuit concedes it is “a judicial construct that does not lend itself to a simple or exact definition” (quoting a 1982 Supreme Court case). Color me doubtful that the current Supreme Court, which is admirably averse to vagueries that enable judicial adventurism, will be persuaded by that.
Nevertheless, the Fifth Circuit’s alternative standing theory in the DACA case is plain old direct injury — “pocketbook injuries on the State in the form of healthcare, education, and social services costs.” These, it seems to me, are not the sort of attenuated, indirect harms that the Alliance Court eschewed. Instead, they are direct and substantial costs — in the many billions of dollars — that are crushing Texas because the Biden administration (a) won’t enforce Congress’s immigration laws and (b) is endeavoring to prevent Texas from enforcing its own laws — laws that mirror Congress’s prohibitions but run afoul of Biden’s lawless non-enforcement policies.
The Biden DOJ has countered, and will continue to counter, that arguments for standing based on social-services costs have no limiting principle and could ensnare the courts into endless, complex debates over immigration policy. To be sure, Justice Kavanaugh’s Alliance opinion indicates that the Court is of the view that some issues are best left to the political and democratic processes. That, however, does not mean a valid claim for judicial relief is lacking when damages are direct, immense, and undoubtedly caused by government lawlessness.
There is no timetable for a decision in the Fifth Circuit in the DACA case. We’ll monitor it.