Politics Masquerading as Law: Why Texas’ Immigration Lawsuit Should be Dismissed

January 21, 2016
Guest Post

by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

Texas’ lawsuit against the Obama administration over its proposed new immigration regulations adds one more important public policy issue to the Court’s term which already has abortion, affirmative action, voting rights, and freedom of speech and religion on its agenda. This battle over immigration policy, however, does not belong in federal court because Texas should not be allowed to turn what is essentially a political controversy between Republicans and Democrats over immigration reform into a federal case.

The Supreme Court has long required every plaintiff in federal court, including individuals, corporations, and the states, to suffer a personal injury caused by the defendant that can be redressed by the Court. This requirement of injury, known as standing, is a constitutional prerequisite to jurisdiction that cannot be waived by the parties or the Court. The Justices have repeatedly said that standing is necessary to maintain the appropriate separation of powers between unelected, life tenured federal judges and the elected branches of government.

President Obama’s new immigration regulations, collectively known as DAPA, seek to change the immigration status of approximately four million undocumented aliens who are parents of children who are either legal citizens or legal resident aliens. Texas argues that only Congress has the power to alter the legal status of those immigrants.

Texas may disagree strongly and sincerely with the President’s policy and/or think such a policy is illegal, but it may only challenge that policy in federal court if it has suffered an injury sufficient to satisfy the Court’s standing doctrine. The primary injury Texas has alleged in this lawsuit is that it will incur increased expenses because, once the regulations go into effect, Texas will feel obliged to provide driver’s licenses at reduced costs to some people with altered immigration status under DAPA. Yet, nothing in DAPA implicates the manner in which Texas provides driver’s licenses to its citizens. The proposed regulations leave all issues relating to Texas driver’s licenses, including their costs, up to Texas.

Texas also argues that, even though it has the final decision on whether to grant driver’s licenses to DAPA beneficiaries, the need to change or reconsider its current policies gives it sufficient injury to support its lawsuit. Texas also argues that it will incur additional expenses in a host of different ways including “healthcare, law-enforcement, and education costs,” if DAPA goes into effect.

Texas’ argument fails to support standing because it would allow any state to sue the federal government every time either Congress or the president increases or decreases the number of legal immigrants in this country.  Whenever the federal government changes immigration requirements, both the states’ expenses (in terms of its services) and revenues (through taxes now collected from more legal residents) “may” go up or down. But changes in Texas’ public policy because of those shifts remain completely up to the State of Texas.

If the states could sue the federal government every time either Congress or the president passes legislation that alters how Texas manages its own public policy due to the number of people lawfully in the state, virtually all federal policy (beyond immigration law) will be transferred from elected officials to federal judges. The very purpose of the standing doctrine is to prevent that transfer of power.

Texas relies on the Court’s 5-4 decision in Massachusetts v. EPA where the justices allowed Massachusetts to challenge decisions made by the EPA relating to global warming which allegedly harmed the coastline in that state. But, in that case Massachusetts asserted that its own sovereign property was being damaged by allegedly illegal federal policies. In this case, Texas remains sovereign over all of its internal policies and all of its property.

It is noteworthy that the four conservatives on the Court (other than Justice Kennedy) dissented in that case arguing that the issue was reserved to the elected branches and that Massachusetts’ case should have been dismissed for lack of standing. Justice Roberts’ dissent (dealing with global warming as a political issue) applies with even more force here as Texas has suffered no injury to its property:

[Global warming] may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.

Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury … I would reject these challenges as nonjusticiable…. This Court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here is the function of Congress and the Chief Executive not the federal courts.

So it is with immigration policy. There is little debate that the State of Texas, as well as the other states that have joined its lawsuit, strongly object to the Obama administration’s new immigration regulations. But the United Constitution gives the federal government exclusive authority over immigration issues and Texas does not deny that Congress has the power to repeal, amend, or even approve the new regulations. Texas’ lawsuit is simply another attempt to litigate in federal court the president’s policies when, in fact, the controversy should be resolved in the political arena where it belongs. Texas’ complaint should go to Congress or to the voters in the 2016 election.