In the government’s sur-reply in Texas v. United States, it attempts to narrow the scope of injunctive relief in a few different ways. By way of background, one of the key arguments the states make concerning standing is that, due to DAPA, the states will have to incur additional costs by issuing additional drivers licenses. This, by itself, is not a constitutional violation, but a way to get a foot into federal court. Texas attached to its briefs declarations from three states–Texas, Wisconsin, and Indiana–describing the costs imposed on the state programs.

The government makes a few stabs at this, and first claims that relief may be limited to those three states.

Only three of the Plaintiff States – Texas, Wisconsin, and Indiana – have filed declarations purporting to show that the 2014 Deferred Action Guidance will impose costs on the State as a result of “state licensing programs.”1 See Pls.’ Reply in Supp. of Mot. for Prelim. Inj. (“Pls.’ Reply”) at 42 [ECF No. 64].

Second, in a footnote, the government stresses that each state will be required to demonstrate standing.

1 Contrary to Plaintiffs’ suggestion, no State can be excused from demonstrating standing in this case. Each party seeking separate relief must itself demonstrate an independent basis for standing. See LULAC v. City of Boerne, 659 F.3d 421, 428 (5th Cir. 2011).

Specifically, each state would require custom-tailored relief based on their local statutory regimes.

And each State necessarily seeks separate relief here, because an injunction may only be granted (if at all) to the extent necessary to remedy the harm to the party seeking it. See Hernandez v. Reno, 91 F.3d 776, 781 (5th Cir. 1996) (modifying nationwide injunction to apply only to plaintiff).

I think this misstates the issue. The states aren’t asserting that DAPA needs to be enjoined to ensure the proper functioning of their state licensing program. DAPA results in an injury, which provides standing to bring a Take Care clause challenge.

This may sound cynical, but virtually all of the major separation of powers cases were brought under fairly mundane injuries. Myers and Humphrey’s Executor arose from a suit in the Court of Claims for unpaid salaries. Dames & Moore v. Regan arose from a claim over unpaid debts. Noel Canning arose from a run-of-the-mill labor dispute.

Once there is an injury and standing, the courts cannot avoid the constitutional issue. As Chief Justice Taft wrote in Myers v. United States:

We are therefore confronted by the constitutional question and can not avoid it.

If DAPA is enjoined, and the ex ante status quo is restored, none of the states will have to make any changes to their licensing laws. As I’ve argued in a previous post, the district court does have the authority to issue a nationwide injunction in this case.

(Full Disclosure: I filed a brief in support of Texas’s challenge).