Speculative Injuries from DAPA to the States and Massachusetts v. EPA

December 7th, 2014

In an article titled, “Experts See Legal Hazards in States’ Immigration Suit,” the Times quotes Yale LawProf Cristina Rodriguez, who asserts that the “injury the states are alleging seems a bit speculative.”

Texas asserts in its complaint, on behalf of 17 states, two main injuries from the new immigration executive action. First, DAPA will “trigger a new wave of undocumented immigration” and increase “human trafficking in the Plaintiff States.” Second, the states will “will be forced to expend substantial resources on law enforcement, healthcare, and education” for the newly-protected immigrants.

Are these injuries too speculative under the Supreme Court’s most recent pronouncement on standing? Massachusetts v. E.P.A., reviled by years for conservatives, provides some very strong support to Texas’s arguments concerning standing. Let’s revisit portions of Justice Stevens’s opinion.

First, Justice Stevens speaks to the power of states to “preserve its sovereign territory.” While the facts at issue in Massachusetts concerned erosion of its shore due to climate change, Texas asserts an intrusion of its sovereignty by immigrants.

Just as Georgia’s independent interest “in all the earth and air within its domain” supported federal jurisdiction a century ago, so too does Massachusetts’ well-founded desire to preserve its sovereign territory today. Cf. Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (observing that in the federal system, the States “are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty”). That Massachusetts does in fact own a great deal of the “territory alleged to be affected” only reinforces the conclusion that its stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power.

Second, the Bush EPA decided not to enforce the laws, leaving Massachusetts without any remedy, because the clean air act was an area reserved only to the federal government. Similarly, the fact that the state of Texas is unable to take any action concerning immigration because of preemption (see Arizona v. United States), there is a stronger need for the Executive branch to execute the law.

When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) (“One helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers”).
Texas’s complaint alludes directly to this point in paragraph 69:
69. If the Plaintiff States had the sovereign power to redress these problems, they would. See Massachusetts v. EPA, 549 U.S. 497, 519 (2007) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)). But the Supreme Court has held that authority over immigration is largely lodgedin the federal government. See, e.g., Arizona v. United States, 132 S. Ct. 2492 (2012). Accordingly, litigation against the federal government is the only way for the States to vindicate their interests and those of their citizens.
Third, JPS finds Massachusetts’s  injury both “actual” and “imminent”

With that in mind, it is clear that petitioners’ submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both “actual” and “imminent.” Lujan, 504 U.S., at 560, 112 S.Ct. 2130 (internal quotation marks omitted). There is, moreover, a “substantial likelihood that the judicial relief requested” will prompt EPA to take steps to reduce that risk. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 79, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978).

To this last point, I think imperative to Texas’s case is detailed discovery. They should find out, specifically, what internal statistics show about the relationship between DACA and the unaccompanied minor crossing the border this summer. Further, there should be clear evidence in the record, by the time this case gets appealed, to show how the deferred immigrants impacted Texas’s budget. It would be too easy for the Court to dismiss the case due to a less-than-developed record.

For purposes of standing, you have to accept the facts pleaded as true. If the threat that climate change would take place “over the course of the next century,”  is both “actual” and “imminent,” present-day impacts on a state’s budget, and immigration numbers would be a much more concrete case. This would not be like the plane-ticket-yet-to-be-bought in Lujan. Here, the state could show through budgets money being spent on the immigrants.

Fourth, JPS concluded:

In sum—at least according to petitioners’ uncontested affidavits—the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek.

If this is the standard, Texas’s case can hardly be viewed as “speculative.”

Finally, as I’ve noted with West Virginia’s challenge to the individual mandate, once the state has its foot in the door with Article III standing, the APA claims remain in play. Massachusetts did not win on a “take care” challenge, but its APA challenge.