Standing to Challenge DAPA and Massachusetts v. EPA

December 29th, 2014

On Tuesday, Judge Howell (D.D.C.) dismissed Sheriff Joe Arpaio’s challenge to DAPA on standing grounds. The analysis, for the most part, strikes me as quite sound. Arpaio, as Sheriff, could not articulate concrete injuries as a result of DAPA. Also, the opinion respectfully excoriates the terribly wrong decision from the Western District of Pennsylvania (See fn. 12 on pp. 30-31). However, there are a few points that Judge Howell makes that leaves room for standing with respect to suit brought by the state.

First, the court includes this seemingly innocuous citation to Massachusetts v. EPA:

Simply put, a state official has not suffered an injury in fact to a legally cognizable interest because a federal government program is anticipated to produce an increase in that state’s population and a concomitant increase in the need for the state’s resources. Cf. Massachusetts v. EPA, 549 U.S. 497, 520-521 (2007) (finding standing for Massachusetts because of state’s “quasi-sovereign interests” relating to its “desire to preserve its sovereign territory” not because of the increase in state expenditures resulting from federal policy concerning global warming).

Why would the district court cite the leading case for state standing in a case involving a state official? I think Judge Howell was trying to send a signal regarding the lawsuits brought by Texas and a number of other states–and I think on this point, the court reads Mass v. EPA really, really, really narrowly, almost to render the case a nullity.

The United States makes a similar argument in its brief opposing Texas’s preliminary injunction.

In their Complaint, Plaintiffs appear to suggest that Massachusetts v. EPA (“Massachusetts”), 549 U.S. 497 (2007), supports their effort to litigate on behalf of the interests of their citizens. See Am. Compl. ¶ 69. That case does not support standing here. In Massachusetts, the Supreme Court held that Massachusetts could challenge EPA’s rejection of a petition for rulemaking to regulate greenhouse gases emitted by new motor vehicles. In doing so, the Court first assured itself that Massachusetts had demonstrated a cognizable injury-in-fact to its own proprietary or quasi-sovereign interests: viz., a particularized injury “in its capacity as a landowner” of a “substantial portion of the state’s coastal property,” which was already being eroded by the “rising seas.” 549 U.S. at 522 (citation omitted). The Court further deemed Congress’s authorization in the Clean Air Act of the exact type of challenge brought by Massachusetts “of critical importance to the standing inquiry.” Id. at 516. Although the Court indicated that it was according Massachusetts “special solicitude in [the] standing analysis,” it did so not only on account of the plaintiff’s status as a “sovereign State,” but also because Massachusetts was suing under a federal statute that secured it both a procedural right and a cause of action. Id. at 519-20. In determining that Massachusetts had standing in light of these specific circumstances, the Supreme Court also reaffirmed that its decision in Mellon “prohibits” a state from suing federal defendants “to protect her citizens from the operation of federal statutes.” Id. at 520 n.17.

In short, Judge Howell and the United States seems to assert that the Court found standing for the Commonwealth of Massachusetts because of its “quasi-sovereign interests” with respect to “preserv[ing] its sovereign territory”–namely its shores and coastal lands–from the effects of climate change. This reading of Justice Stevens’s opinion is really cramped. Here is the relevant passage:

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.

In this case, the nature of the injury was limited to physical harm to the shore lines. Justice Stevens had to focus on the fact that Massachusetts had a large shoreline to show how concrete the injury was. This is no way limited the nature of state sovereignty to borders and shorelines! (Although, this reading would have interesting implications for the suit filed by Nebraska and Oklahoma, challenging the marijuana smoke wafting from Colorado).

But this isn’t right. The decision, citing Alden v. Maine, focuses more broadly on the “full authority, of sovereignty.” There are many attributes of state sovereignty that can be infringed upon. In the case of the 11th Amendment, the ability to be sued for damages. This has nothing to do with whether someone tries to mess up Maine’s border with the Atlantic Ocean. For further reading, I explained in this post why the injuries asserted by the states are not speculative, and could suffice under Massachusetts v. EPA (a case, which 4 Justices dissented in).

Second, I think the court correctly rejects the argument that Arpaio makes–namely that DAPA will encourage new immigrants to flood into Maricopa County, and impose a burden on his law enforcement budget.

Even drawing all inferences in favor of the plaintiff, the terms of the challenged deferred action programs do not support the plaintiff’s theory. The challenged deferred action programs would have no impact on new immigrants, as the guidance defining the programs makes clear that these programs only apply to undocumented immigrants residing in the United States prior to January 1, 2010. 2014 Guidance Memorandum at 4. Thus, it is speculative that a program, which does not apply to future immigrants, will nonetheless result in immigrants crossing the border illegally into Maricopa County (and other borders of this country).

The plaintiff has been unable to show that the challenged deferred action programs have interfered with his official duties as Sheriff in a manner that “is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical” and has therefore failed in his burden to establish an injury in fact. Defenders of Wildlife, 504 U.S. at 560.

These potential-immigrants are like the never-purchased-airplane-ticket in Lujan. Maybe it will happen. Maybe not. But it is too speculative.

Although the plaintiff has submitted numerous press releases and letters to officials documenting Maricopa County’s struggle with illegal immigration along the southern border, the plaintiff has submitted no evidence showing that the challenged deferred action programs are, or will be, the cause of the crime harming the plaintiff or the increase in immigration, much less “substantial evidence.” …

In other words, the plaintiff must allege facts sufficient to demonstrate a substantial likelihood that, as a result of injunctive relief in this case, there would not be an increase in undocumented immigrants in Maricopa County and there would not be an increase in crimes committed by undocumented immigrants in Maricopa County.

However, where Arpaio fails, the states may have a chance at success. Under DAPA, those who receive deferred action are entitled to receive work authorization. Those who receive work authorization will invariably impose certain costs on the states. As Texas explained its complaint:

66. Other costs follow specifically from the extension of deferred action status. For instance, federal work authorization functions as a precondition for certain professional licenses in the Plaintiff States. See, e.g., 16 TEX. ADMIN. CODE §33.10 (requiring applicants for an alcoholic beverage license to be “legally authorized to work in the United States”); 37 TEX. ADMIN. CODE § 35.21 (requiring employees of private security companies to submit application, including a copy of a current work authorization card); TEX. RULES GOVERN. BAR ADM’N, R. II(a)(5)(d) (making individuals who are “authorized to work lawfully in the United States” eligible to apply for admission as licensed attorneys).

67. Texas and other Plaintiff States also rely on Defendants’ evidence of lawful presence for certain benefits under their respective state laws. See, e.g., TEX. LAB. CODE § 207.043(a)(2) (extending unemployment benefits to individuals who were “lawfully present for purposes of performing the services”); TEX. FAM. CODE § 2.005(b)(4) (allowing an “Employment Authorization Card” to be used as proof of identity for the purposes of a marriage license application).

68. By authorizing a large class of undocumented immigrants to work in the United States, the DHS Directive will expose Texas to the cost of processing and issuing additional licenses and benefits. Moreover, it will cause Texas to issue such licenses and benefits to individuals who are not legally authorized to be in the country (or to take on the burdensome task of attempting to figure out which undocumented immigrants have bona fide deferred action status and which ones benefited from the unlawful DHS Directive).

Although these costs may not be particularly consequential, they are concrete for purposes of Article III. Further, this showing need not be speculative. The states no doubt have records of those who received deferred action under DACA, and then applied for certain employment licenses as a result of their work authorization. This will provide a pretty specific track record to show that future costs will be imposed by the DAPA beneficiaries.

As with any pre-enforcement challenge, it will be impossible to establish the injuries with 100% certainty. But to use the court’s language, Texas could make a showing that there is a “substantial likelihood that, as a result of injunctive relief,” there will not be an increase in the number of people who have to receive various benefits associated with work authorization. Again, this finding is only for purposes of demonstrating standing.

Finally, the court denied an injunction, concluding that nothing it does will resolve the injury of Arpaio.

A ruling by this Court enjoining the challenged deferred action programs will likely not change the complex and individualized decision making of undocumented immigrants allegedly causing harm to the plaintiff.  … Thus, the plaintiff’s complaint regarding the large number of undocumented immigrants and the limited number of removals will not change as a result of any order by the Court in this litigation. Consequently, the plaintiff’s alleged harm stemming from the expenditure of resources to deal with the large number of undocumented immigrants in Maricopa County will remain. In other words, regardless of the outcome of this case, the Court can afford no relief to the plaintiff’s injury.

In contrast, stopping DAPA would eliminate the potential for work authorizations. An injunction would redress the very grievances the states assert.

In short, while the opinion correctly forecloses standing for a state official, such as Arpaio, it leaves open standing–assuming Massachusetts v. EPA is read as Justice Stevens penned it–for the states who assert injuries stemming from the work authorizations associated with deferred action.