Today the D.C. Circuit dismissed Sheriff Joe Arpaio’s challenge to DAPA on standing grounds. While the panel was unanimous in rejecting the challenge, Judge Brown concurred, opining on the merits, and to critique our current standing doctrine.

She flatly calls the President’s executive action “non-enforcement of the immigration laws,” and adds the “administration’s prosecutorial discretion meme is constitutionally problematic.” In her discussion on standing, she offers this extended discussion on the Take Care Clause.

Consider this case. The Sheriff’s claims on the merits may well raise a constitutionally cogent point. Despite the dazzling spin DHS puts on the DACA and DAPA programs, a categorical suspension of existing law—distinct from the case-by-case deferrals or targeted humanitarian exemptions cited as past precedent—complete with a broad-based work authorization, arguably crosses the line between implementing the law and making it. See Zachary S. Price, Enforcement Discretion and Executive Duty, 67 VAND. L. REV. 671, 759–61 (2014). And this is true even if the legislature aids and abets the usurpation. See generally Department of Homeland Security Appropriations Act of 2010, Pub. L. No. 111-83, 123 Stat. 2142, 2149 (2009); Consolidated Appropriations Act of 2014, Pub. L. No. 113- 76, div. F., Tit. II, 128 Stat. 5, 251 (2014) (directing the Secretary of Homeland Security to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime,” but silent as to the propriety of categorically suspending existing removal laws). Neither the aggressive entrepreneurship of the executive nor the pusillanimity of the legislative branch can alter the fundamental constraints of the Constitution. See, e.g., Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 TEX. L. REV. 781, 850–56 (2013); Price, supra, at 759–61.

Brown adds that in such cases, our current standing doctrine makes it difficult to challenge “general grievances” of egregious constitutional violations–including those of the Take Care Clause. She describes this as “underm[ining] the rule of law.”

However, although it is the denial of standing rather than its grant that undermines democratic accountability in such circumstances, concerns about the efficacy of separation of powers principles can be dismissed as “generalized grievances” no one has standing to challenge.

Separation of powers concerns surely cannot justify every application of the generalized grievance doctrine. By prohibiting abstract, general claims, the doctrine aims to ensure that the President’s “most important constitutional duty, to ‘take Care that the Laws be faithfully executed’” is not transferred to the courts. Lujan, 504 U.S. at 577 (quoting U.S. CONST. art. II, § 3). But what if the Chief Executive decides not to faithfully execute the laws? In that case our doctrine falls silent. Paying a nominal filing fee guarantees access to the federal courts, but challenge the executive’s decision to undermine the rule of law and you will likely find your fee wasted.

Brown argues against a rigid application of the “generalized grievances doctrine” for these sorts of constitutional challenges:

We should, at the very least, give careful thought before blindly applying the generalized grievance doctrine in cases challenging federal programs as ultra vires. …

Our approach to standing, I fear, too often stifles constitutional challenges, ultimately elevating the courts’ convenience over constitutional efficacy and the needs of our citizenry.

Her decision is a full-throated on Scalia’s standing as a separation-of-powers doctrine. I think Judge Brown is right on target. In the age of non-enforcement of the law, where Congress cannot meaningfully check the action, short of impeachment (user fees pay for DAPA, so defunding doesn’t work) courts should be able to consider these constitutional violations.