Economic Benefit from DAPA Does Not Eliminate Injuries For Purposes of Article III

January 13th, 2015

In an amicus brief opposing Texas’s motion for a preliminary injunction, Washington, on behalf of dozen other states disputes that the states suffer an injury as a result of DAPA. In short, they argue that DAPA will benefit states, not cause harm.

Although Plaintiffs speculate that the immigration directives will cause them “drastic injuries,” their dire predictions directly conflict with available data. Programs deferring immigration action are not new. Past experience demonstrates that suspending deportation and providing work authorization benefits families and state economies by authorizing work, increasing earnings, and growing the tax base. ….

Allowing immigrants to work legally and increase their wages has far-reaching, positive impacts on state and local economies. In Washington, for example, approximately 105,000 people are anticipated to be eligible for deferred immigration action.19 Assuming that even a portion of the eligible undocumented immigrants register, request a reprieve from deportation, and obtain a temporary work permit, it is estimated that Washington’s tax revenues will grow by $57 million over the next five years.20 California’s tax revenues are estimated to grow by $904 million over the next five years with an anticipated 1,214,00 people eligible for deferred immigration action. 21 The tax consequences for the Plaintiff States are similarly positive. For example, if the estimated 594,000 undocumented immigrants eligible for deferred action in Texas receive temporary work permits, it will lead to an estimated $338 million increase in the state tax base over five years.22

This shot misses its target. Entirely. That an unconstitutional action may benefit the states in no way diminishes the injuries suffered. A non-lawyer friend recently made this point when I explained that DAPA imposes a cost on the state. She replied that the immigrants who can work will add to the economy, so there is no net cost. I then proceeded to explain that this isn’t how standing works.

If DAPA results in a single dollar of cost incurred by the state, that is sufficient for standing. Whether or not the undocumented aliens will contribute money to the economy, and offset the dollar is irrelevant.

The brief also includes an inapposite reference to the brief I joined on behalf of the Cato Institute.

Seeking to give a contrary impression, Plaintiffs misleadingly focus on one sub- category of undocumented immigrants—minor children—to claim that DACA has caused a surge of immigrants. But this is just untrue, as their own amici have acknowledged. The Cato Institute, which has submitted an amicus brief in support of the plaintiff States (ECF No. 61-2), has concluded: “Few facts of the unaccompanied children (UAC) surge are consistent with the theory that DACA caused the surge.”27

27. Cato Inst., Alex Nowrasteh, DACA Did Not Cause the Surge in Unaccompanied Children (July 29, 2014), available at

The amicus brief takes no position on whether DACA or DAPA will lead to a “surge of immigrants.”

Although, this reference is helpful. The Cato Institute has taken the position that DAPA is good policy, bad law, and terrible precedent. I take my hat off to a think tank that is able to praise an executive action from a policy perspective, and at the same time challenge its constitutionality in court.

As an aside, the Washington State Solicitor General has also in the past cited my and Ilya Shapiro’s work for something we never said.