Today the 5th Circuit dismissed a constitutional challenge to DACA brought by immigration and customs enforcement officers and the state of Mississippi. Agreeing with the district court, the 5th Circuit panel (King, Davis, Owen) found the parties lacked standing. On the merits, this will have no bearing on Texas v. United States. But with respect to standing, Judge Owen offered a brief concurring opinion:
I concur fully in the court’s opinion and judgment. I write separately only to note that in order to establish standing with respect to some claims, it is not always necessary to present concrete evidence that an injury has occurred or will, beyond question, occur, as the Supreme Court implicitly recognized in Watt v. Energy Action Educational Foundation. 454 U.S. 151, 160-61 (1981). The State of Mississippi has not, however, made any arguments of this nature.
As I’ve discussed before, for purposes of standing, the facts are accepted as pleaded. Notwithstanding Lujan, you do not always need to provide “concrete evidence” that the evidence will occur. A reasonable probability is sufficient.
Why is this relevant? Because Texas justified most of its injuries from DAPA–which has not yet gone into effect–based on the operation of DACA–which went into effect in 2012. The permissive standard Judge Owen cites would allow evidence of how DACA operates as a basis for standing with respect to DAPA.
Note to Texas–cite Watt.