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Supreme Court Immigration Case Will Have Profound Impact

01/21/2016 06:24 pm ET | Updated Jan 21, 2016
  • Stephen Legomsky Professor Emeritus at Washington University, principal author of "Immigration and Refugee Law and Policy," and former Chief Counsel of USCIS

On Tuesday the Supreme Court agreed to decide whether a single state can sue the federal government to block the government's setting of immigration enforcement priorities nationwide. The stakes are momentous, and they go far beyond immigration.

In November 2014, President Obama announced a policy called Deferred Action for Parents of Americans, or DAPA. Like Congress, the President decided that his limited immigration enforcement resources should prioritize national security, public safety, and border security. Among the lowest deportation priorities are the parents of U.S. citizens and lawful permanent residents, if those parents have lived continuously in the U.S. since January 1, 2010 and meet several other criteria.

The particular vehicle that the Administration used for this purpose is "deferred action." In continuous use for more than four decades, deferred action is a case-by-case, temporary reprieve from removal, revocable at any time and for any reason. Under similarly decades-old statutes and regulations, one who receives deferred action may apply for a temporary work permit.

Implementation was to begin last May. But a group of states, led by Texas, found a sympathetic federal judge in Brownsville. The judge issued an order blocking DAPA on procedural grounds. A 2-1 decision by a court of appeals panel affirmed the injunction. The Supreme Court has now agreed to hear the case, and a decision is expected in June.

Elsewhere I have described in detail the many reasons that I believe Texas's arguments fail on the merits. But before a federal court can even address the merits of a case, the Constitution requires the plaintiff to demonstrate "standing." This means the plaintiff has to show that the defendant's actions will cause the plaintiff concrete harm. Texas's lawyers have devised a clever argument: Deferred action results in temporary "lawful presence;" Texas law makes foreign nationals who are "lawfully present" eligible for driver's licenses; and the application fee for a Texas driver's license does not cover the full processing cost. Therefore deferred action will cost Texas money.

There are many flaws in this argument. The biggest is that no one is forcing Texas to issue driver's licenses to deferred action recipients; that is the state's choice. So Texas has to argue in effect that just being forced to choose between incurring costs and changing its policy is enough to give it standing -- even if the policy change is one that it actually prefers.

No court has ever gone to that extreme, and for good reason. First, federal laws require a steady stream of interpretations and policy decisions by a myriad of federal agencies. Practically any federal interpretation or policy decision that favors those who seek immigration benefits will make the affected individuals eligible for some state benefit somewhere. Thus, under Texas's theory there will almost always be some state that could plausibly claim standing. And given our country's deep ideological and partisan divides, there will always be a state that desires to do so.

Compounding the problem is the broad freedom of any objecting state to choose the most favorable court. This very case is a classic illustration. By suing in Brownsville, Texas's lawyers knew they were likely to land Judge Andrew Hanen, whose earlier vitriolic condemnations of President Obama's immigration enforcement policies made him an inviting decision-maker. They also knew that the inevitable appeal would have to be filed with the Fifth Circuit, the nation's most politically conservative federal appeals court.

It is that combination -- a lax threshold for state standing to sue the federal government and the states' freedom to choose a friendly judicial forum for deciding both standing and the merits of the case -- that makes Texas's theory so dangerous.

All this transcends immigration. Every time the IRS interprets the tax code in a way that favors the taxpayer, any state that chooses to base its own income tax on federal taxable income loses revenue. The state could avoid that result by changing its law, but under Texas's theory that doesn't matter.

Or suppose the Defense Department expands eligibility to enlist in the Armed Forces. Any state that awards educational or any other benefits to veterans could claim it loses money as a result. If it chooses a friendly court, the state could tie up Defense Department policy for years.

Accepting Texas's radical theory of standing would be a recipe for paralysis. No one state should be empowered to thwart the federal government's nationwide policy decisions so easily. And that is why the consequences of the Court's final disposition will be so profound.

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