Plaintiff States Lay out a Comprehensive Case for Legal Standing in Texas v. United States

January 22, 2015

In their briefs filed in Texas v. United States, Plaintiff States lay out a comprehensive case for legal standing, generally a problematic area for petitioners aggrieved by the non-enforcement of our immigration laws. Article III of the U.S. Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. To establish Article III standing, a plaintiff must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged action; and redressable by a favorable ruling. In Texas v. United States, the Plaintiff States assert several injuries as a result of President Obama’s new Deferred Action for Parental Accountability (DAPA) program, including the millions of dollars in costs it will impose on state budgets and the distortive labor market effects caused by its work authorization provisions.

The States cite the costs to well-known programs caused by illegal aliens (in Texas’s case, $1.3 billion spent annually in uncompensated medical care, $106 million spent in CHIP provisions, $9,473 in education costs per illegal alien child), however, particular emphasis is given to the area of state licensing. Under DAPA, illegal alien recipients in most states, including Texas the Plaintiffs claim, will become eligible to apply for drivers licenses. Attorneys for the Justice Department have attempted to rebut this claim by 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, they claim.

DOJ also argues that states are not required to issue driver’s licenses under DAPA and hence their injuries are “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. Notably, Acting Assistant Attorney General, Joyce Branda, is a signer on both briefs. Regarding the background of that case, an Arizona federal court found that the State of Arizona’s practice of denying licenses to DACA recipients, but issuing them to other illegal aliens granted deferred action, could not withstand rational basis review and violated the Equal Protection Clause. Arizona responded by denying licenses to all illegal aliens granted deferred action which a three-judge Ninth Circuit panel, appointed by Presidents Carter, Clinton and Obama, recently found again to have violated the Equal Protection Clause as well as conflict pre-emption principles. Now, in their response to the Plaintiff States, 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 eliminate them to all 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.”

Plaintiff States in part rely on the Supreme Court’s decision in Massachusetts v. EPA where the state of Massachusetts sued the EPA for failing to regulate carbon emissions from new cars sold in the US. The state claimed that the emissions contributed to rising sea levels by furthering climate change which would disproportionately impact the coastal state. The Plaintiff States here argue, rather modestly, that their economic injuries are “far more concrete” and traceable than in Massachusetts’s case and therefore its legal standing should be much clearer.

Further, the States argue that 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.

They also note that under parens patriae doctrine, states have been given standing to vindicate certain “quasi-sovereign” interests, such as the protection of their citizen’s economic well-being. That principle was evinced in Alfred L. Snapp v. Puerto Rico, where the Commonwealth of Puerto Rico sued apple growers in Virginia under the INA for discriminating against Puerto Rican migrant workers and instead hiring temporary foreign ones. Likewise here, Plaintiff States argue, DAPA discriminates against US workers by making it more expensive to hire them compared to illegal aliens because of the latter’s exemption from “minimum essential coverage” under Obamacare which employers would otherwise have to pay.

The States will be able to provide more evidence of concrete injuries if standing is granted and a trial on the case’s merits is held. A hearing on Plaintiff States’ motion for a preliminary injunction was held Jan. 15 in Brownsville, Texas. The judge said he would not issue a ruling on the injunction request before Jan. 30.

The case is Texas v. U.S., No. 1:14-00254, U.S. District Court, Southern District of Texas (Brownsville).