Government Sur-Reply Part 4: Helped, Rather than Harmed, for Standing

February 4th, 2015

One of the odder arguments the government makes in its sur-reply in Texas v. United States relies on an amicus brief filed by the Washington SG: aliens who can work under DAPA will help, rather than harm states. Therefore, the states do not suffer an injury for Article III.

From the United States’s brief (p. 10):

Moreover, even assuming that the challenged policy would increase the total number of undocumented aliens present in the Plaintiff States, it would still require another speculative leap to conclude that any given State would be economically harmed, on balance, by the policy – a leap that Plaintiffs fail to substantiate in their Reply. Allowing certain individuals already present in the Plaintiff States to work legally is expected to expand state tax bases, see Amicus Br. of the State of Washington, et al. at 6 (noting that grant of work authorization to individuals who may receive DACA or DAPA in Texas will lead to estimated $338 million increase in the state tax base over five years) [ECF No. 81], and will also make it more likely that those individuals obtain work-sponsored health insurance, thereby decreasing their need to rely on state health care, see id. at 9 & App. 55 (citing Roberto Gonzales & Angie Bautista-Chavez, Two Years and Counting: Assessing the Growing Power of DACA). Plaintiffs make no effort to account for these anticipated effects and thus have failed to show that the policy would “harm rather than help” them. United Transp. Union v. ICC, 891 F.2d 908, 914 (D.C. Cir. 1989) (“indeterminacy” about effect of challenged policy “is enough to defeat. . . standing”); see also Crane, 920 F. Supp. 2d at 731 (finding no standing, where Mississippi failed to show a “net fiscal cost [to] the state”) (emphasis added).

The government seems to be arguing that, if “on balance,” DAPA helps the states, that negates any injuries caused by DAPA. The cited cases do not stand for this proposition. The issue isn’t whether DAPA helps or hurts the states, on the whole. The states are merely citing specific injuries as a basis for Article III standing. That’s it. Even if there is a dollar of injury, and millions of new dollars in benefits, there is standing.

As a side note, the brief by Noah Purcell, the Washington SG takes a subtle jab at the brief I joined with Cato.

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

Of course our brief makes no mention of UACs or the surge. This is immaterial to our argument about congressional acquiescence. In fact, I think it is a testament to Cato that it can support a policy, but still argue that it is unconstitutional
This isn’t the first time this happened. Earlier this year, in a brief in opposition to cert, Purcell previously incorrectly cited an article Ilya Shapiro and I wrote as a strawman.
Third, petitioners protest that their case is not a Pandoras Box, suggesting it is akin to the right to travel analyzed in Saenz. Pet. 38. But the right to travel and establish residency was well-established; as the Saenz Court said, “it has always been common ground.” Saenz, 526 U.S. at 503. No such right is at issue here. To the contrary, an individual right to avoid state ferry certificate laws would open a Pandora’s Box regarding state powers to regulate. Moreover, that Pandora’s Box is the avowed intent of numerous articles cited by petitioners and authored by their amici. E.g., Randy E. Barnett, Does the Constitution Protect Economic Liberty, 35 Harv. J.L. & Pub. Pol’y 5 (Winter 2012); Josh Blackman & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution In 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 Geo. J.L. & Pub. Pol’y 1 (Winter 2010); James W. Ely, Jr., “To Pursue any Lawful Trade or Avocation”: The Evolution of Unenumerated Economic Rights in the Nineteenth Century, 8 U. Pa. J. Const. L. 917 (Sept. 2006); see also Jeffrey D. Jackson, Be Careful What You Wish For: Why McDonald v. City of Chicago’s Rejection of the Privileges or Immunities Clause May Not Be Such A Bad Thing for Rights, 115 Penn St. L. Rev. 561, 578 (Winter 2011) (“[T]he real driving force in the argument over privileges or immunities and due process has to do with unenumerated rights, their protection, and possible expansion.”).

The BIO cited the works of Randy Barnett, James W. Ely, and an article I co-authored with Ilya Shapiro, titled “Keeping Pandora’s Box Sealed.” Sealed. As in closed. The entire purpose of our article was to reintroduce the Privileges or Immunities Clause back into our constitutional jurisprudence without opening a Pandora’s Box. Ilya and I wrote the article to assuage the very concerns raised both here, and in McDonald.

Though, I am always grateful for citations in briefs to the Supreme Court, even if I am cited for the *exact* opposite of what I wrote.