Part I of my analysis focused on standing analysis in Texas v. U.S., and Part II focused on reviewability. Part III looked at the procedural APA claim. Part IV looked at the substantive APA claim. Part V analyzes how the dissent frames DAPA. This post focuses on how the dissent rejected standing.

Judge King explains that “special solicitude” from Mass. v. EPA is a “single, isolated phrase,” and the majority misreads the opinion.

It is altogether unclear whether the majority means that states are afforded a relaxed standing inquiry by virtue of their statehood or whether their statehood, in of itself, helps confer standing.

The dissent dismisses Arizona State Legislature, which cited “special solicitude.”

The notion of “special solicitude” was cited in Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC), 135 S. Ct. 2652, 2664–65 n.10 (2015)—but as recognized by a treatise, in a footnote, in an opinion that did not concern federal–state suits. That footnote correctly observed that “[t]he cases on the standing of states to sue the federal government” are “hard to reconcile.” Id. (quoting R. Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 263–66 (6th ed. 2009)).

Going to the statutory regime, Judge King focuses on the fact that in Mass v. EPA, there was statutory authorization for the suit:

But it did so based on Massachusetts’ quasi-sovereign interests and a provision of the Clean Air Act that specifically “recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” Id. at 520 (citing 42 U.S.C. § 7607(b)(1)). The Court there recognized that this statutory “authorization [was] of critical importance to the standing inquiry.” Id. at 516. By contrast, neither the INA nor the APA specifically authorizes this suit.

In a footnote, the dissent responds to the majority’s argument that the APA does provide for authorization:

The majority suggests that the APA does provide specific authorization for suit here because it “authorizes challenges to ‘final agency action for which there is no other adequate remedy in a court.’” Majority Op. at 11 (citing 5 U.S.C. § 704). If this were the case, then presumably Massachusetts would have also referenced the APA as conferring a procedural right since the plaintiffs there challenged “final agency action” within the ambit of the APA. Massachusetts did not, however, even refer to the APA. And, as discussed below, it would be odd if the APA provided such an expansive procedural right to states.

This isn’t entirely responsive. That Massachusetts chose a specific provision (from the Clean Air Act) over a general one (the APA) doesn’t seem particularly noteworthy.

Second, granting standing here “raises serious separation of powers concerns,” citing (of all people) a 1993 article by John G. Roberts. (Justice Scalia’s argument about standing and the separation of powers would also have been appropriate):

The majority’s breathtaking expansion of state standing would inject the courts into far more federal–state disputes and review of the political branches than is now the case. While the majority claims that the factors giving a state “special solicitude” to sue the federal government will “seldom exist,” its holding suggests otherwise. Majority Op. at 28. If the APA provides the requisite procedural right to file suit—as the majority indicates, see id. at 11—and a state need only assert a “quasi-sovereign interest” to get “special solicitude,” then states can presumably challenge a wide array of federal regulatory actions. The majority dismisses such a possibility as a “parade of horribles” and “unfounded” based on the lack of such lawsuits at the moment.

Roberts wrote in his article:

By relaxing standing for state suits against the federal government, we risk transforming ourselves into “ombudsmen of the administrative bureaucracy, a role for which [we] are ill-suited both institutionally and as a matter of democratic theory.”

Third, the court charges that there is no limiting principle:

Third, and relatedly, the majority’s sweeping “special solicitude” analysis “has no principled limit.” Majority Op. at 26. Recognizing that fact, it “stress[es] that [its] decision is limited to these facts.” Id. at 16. Really? If that were true, there would be no need to assuage concerns regarding the opinion’s breadth by arguing “that there are other ways to cabin policy disagreements masquerading as legal claims.” Id. at 27. It is hard for me to see the bounds of the majority’s broad ruling.

I offered several limiting principles to the standing argument in this post.

Next, the dissent turns to whether the injury is fairly traceable to DAPA. For this, Judge King asserts that the injury is self-inflicted:

This injury results from two independent decisions made by Texas: (1) an alleged decision to underwrite the costs of issuing driver’s licenses to all applicants; and (2) a decision to allow deferred action recipients to apply for driver’s licenses. The majority claims, at length, that there is a “pressure to change state law,” Majority Op. at 13, because the DAPA Memorandum has the downstream effect of expanding the pool of potential Texas driver’s license applicants, thus increasing the costs Texas has made the choice to bear. This “pressure” is entirely manufactured by Plaintiffs for this case, and the majority and the district court have signed on. Nothing in the DAPA Memorandum suggests changes in state law. And I am skeptical that an incidental increase in state costs is sufficient to confer standing for the purposes of Article III.

If these injuries are sufficient for standing, Judge King writes, many more federal programs could be challenged:

Such a theory of standing—based on the indirect economic effects of agency action—could theoretically bestow upon states standing to challenge any number of federal programs as well (assuming states have the motivation to create the factual record to support those economic effects). I have serious misgivings about any theory of standing that appears to allow limitless state intrusion into exclusively federal matters—effectively enabling the states, through the courts, to second-guess federal policy decisions— especially when, as here, those decisions involve prosecutorial discretion.

I will discuss justiciability in a future post.