Leading up to oral arguments in U.S. v. Texas, several reporters have asked me whether, in the event of a 4-4 affirmance, cities and states that support DAPA could try to challenge Judge Hanen’s injunction in more friendly circuits. I’ll admit, I was somewhat gobsmacked when I heard the question repeated, as this told me that some groups are telling the media that additional litigation awaits if the Supreme Court cannot reach a majority opinion.
Richard Wolf’s story in USA Today offers some more details on this new meme:
A tie vote would hand a victory to Texas and 25 other states that have successfully blocked the program in lower courts, but it could unleash new challenges. States and cities who favor the program could try to fight the nationwide injunction imposed by a lone judge on the Mexican border and upheld by the nation’s most conservative federal appeals court.
“Basically, you’d have a judicial mess,” says David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association. “You’d have absolute chaos in the courts.”
…
If the court doesn’t rule for Obama, it likely will emerge tied or seek to rehear the case when it’s back to full strength — something that could take a year or more. A tie vote would leave the injunction against the program in place, possibly emboldening states to mount more court challenges to federal actions.
…
States and cities that favor the deferred action program could try to mount their own lawsuits, arguing they were deprived of a program that would help local economies and residents. California, Washington state, New York City and others made those claims in briefs supporting the Obama administration.
“The deferred action programs will contribute over $800 million in additional economic benefits to state and local governments annually,” a brief submitted by New York City and other local governments says. The city itself estimates it loses $100,000 a day in tax revenue while undocumented workers remain in the shadows.
“The injunction entered below is preventing our states and millions of our residents from receiving the substantial economic, social welfare, and public safety benefits that will flow from the president’s 2014 immigration guidance,” Washington and 15 other states argue in their Supreme Court brief.
Those municipalities or individuals who stand to benefit from the program could go to court. “Probably a lot of creative litigation would be considered,” says Marielena Hincapié, executive director of the National Immigration Law Center.
When I read this, I thought “Huh?” Let me try to unpack this.
First, I don’t see how any cities or states could claim a constitutional injury for Article III standing. A number of states submitted briefs to the 5th Circuit and SCOTUS arguing that because the potential-DAPA beneficiaries would be able to legally work, and pay taxes, the states would receive an economic benefits. As a matter of policy this is (as far as I know) absolutely correct. USA Today alludes to this theory of standing to explain how DAPA-friendly states may get into Court. But the states introduced this evidence not to establish standing in their own right, but for purposes of contesting standing: any cost to Texas in terms of providing drivers licenses to DAPA beneficiaries would be offset by the additional revenues generated by legally-employed aliens. This argument is flatly contrary to the Court’s standing jurisprudence. I discussed this point back in January 2015 after Washington state filed the amicus brief making this point.
The government offered a modified theory: if DAPA beneficiaries receive driver’s licenses, they will register cars and the like, and pay money back to the states in the form of other fees, thus offsetting the cost.
The 5th Circuit firmly rejected the offset theory in its opinion:
Instead of disputing those figures, the United States claims that the costs would be offset by other benefits to the state. It theorizes that, because DAPA beneficiaries would be eligible for licenses, they would register their vehicles, generating income for the state, and buy auto insurance, reducing the expenses associated with uninsured motorists. The government suggests employment authorization would lead to increased tax revenue and decreased reliance on social services.
Even if the government is correct, that does not negate Texas’s injury, because we consider only those offsetting benefits that are of the same type and arise from the same transaction as the costs.59 “Once injury is shown, no attempt is made to ask whether the injury is outweighed by benefits the plain- tiff has enjoyed from the relationship with the defendant. Standing is recog- nized to complain that some particular aspect of the relationship is unlawful and has caused injury.”60 “Our standing analysis is not an accounting exercise . . . .”61
Second, even if there was standing, who would the states sue? The Department of Homeland Security? Sec. Johnson? They agree that the policy is lawful. So would there be some sort of default judgment after a non-adversarial hearing?
Third, an even bigger problem is, what would the cause of action even be? If the government is failing to discharge a statutory duty, there are causes of action to compel those results. If the government is failing to follow a federal regulation, there are causes of action to compel that. (Think of the underlying facts in Massachusetts v. EPA). But–as the government claims–DAPA is nothing more than a routine guidance document to prioritize enforcement resources, and does not confer any substantive rights. (I don’t accept that characterization, but the states supporting DAPA do). If the executive branch doesn’t follow through on a “true” guidance document, or withholds purely discretionary benefits (such as deferred action or work authorization), there is no cause of action to compel that the government take such action.
I seriously don’t understand what sort of “creative litigation” they have in mind.
Steve Legomsky, who has been a strong defender of DAPA, and with whom I’ve testified before Congress, told USA Today that there really isn’t a legal leg to stand on here:
Stephen Legomsky, professor emeritus at Washington University School of Law and an immigration expert, says courts might be precluded from considering such challenges, based only on the potential impact of a program.
“Other states and localities who favor this program would be right to feel that they have been treated unjustly,” Legomsky says, but “they would face a tough legal hurdle.”
Maybe these groups are telling their members that these sorts of lawsuits can be filed in order to gin up support and keep hope alive? I am doubtful. The true blame here lies with the Obama DOJ for failing to appeal the denial of a stay in June 2015. Had they done so, the case would ahve been already resolved. I explained the timing in the Cato brief:
Had the government requested emergency relief in June 2015—with the same factual record—this Court would likely have already resolved the underlying legal issues. See, e.g., Perry v. Perez, 132 S.Ct. 934 (2012) (stay application filed 11/28/11, granted 12/9/11; case argued 1/9/12, decided 1/20/12). Had the government prevailed, DAPA would already be in effect. By not seeking a stay, the earliest DAPA could go into effect would be June 2016, “just as the presidential campaign heats up.” Immigration Ruling Stymies Obama and Those Seeking His Job,N.Y. Times (May 28, 2015), http://goo.gl/AVI7fb. The government’s dilatory approach suggests that DAPA’s immediate implementation is not as important as the solicitor general now suggests. The Court should not prematurely resolve a separation- of-powers dispute when the government did not even deem it worthwhile to seek a stay.
The failure to do so ensured that this issue would be decided so close to the election, and that Judge Hanen’s injunction could stand for a year or longer.