Beyond Crisis Narratives: Solutions at the Border and Beyond

Early this year, I wrote about the urgent need for the Biden administration to confront its failures—and those of Republican-led states—on immigration policy. For months, Texas, Arizona, and even Florida had been busing and flying newcomers from the border to New York, Washington, D.C., and Chicago. In turn, receiving states and localities had already begun screaming calamity. And once more, newly arrived migrants had become political pawns: the federal government pointed to them to urge congressional reform; Republican-led states continued to call for a wholesale border closure; and Democrat-led localities pressed the need for more federal dollars.

Sadly, the spectacle has only intensified in recent months, to the detriment of our new neighbors and friends. Mayor Eric Adams has taken a page out of extremists’ playbooks to caution that newly arrived migrants will “destroy New York City,” and Illinois Governor J.B. Pritzker called the situation at the border “untenable” for Illinois while calling for more federal investments.

Those of us who live and work at the border know a lot about the “yes and” approach. Mayor Adams and Governor Pritzker are right that receiving communities need more federal dollars and other interventions like Temporary Protected Status designations. After all, the federal government is equipped with tools to respond to fluctuating needs at the border and beyond. And, in the absence of a whole-of-government approach and investment, localities need to govern by investing in humane reception and welcoming efforts in partnership with trusted nongovernmental organizations.

In San Diego, we already have a glimpse of what works. What was once an ad-hoc rapid response effort by local groups has become an exemplary infrastructure of local nongovernmental organizations, state government, and health partners that models how to receive newcomers with compassion. The San Diego Rapid Response Network Migrant Shelter provides humane respite sheltering for people released from border custody before they travel on to meet their loved ones throughout the country. Even in recent weeks, when the number of individuals processed and released has far exceeded existing shelter capacity, in part due to the scaling back of state resources, local groups have coalesced to welcome people in as dignified a manner as possible, while also continuing to call for meaningful investments from local government. The same is true in non-border cities too. In Los Angeles, the LA Welcome Collective has turned Texas Governor Abbot’s crisis narrative on its head by pooling local government and nongovernmental organizations’ resources to humanely receive some of the very buses Texas routinely sends in an effort to foment chaos in Los Angeles.

Beyond addressing the immediate humanitarian needs of newcomers at the border, broader solutions might seem elusive, as many elected officials will have us believe. But, once more, we already know what works.

Many who have consumed misleading narratives do not know that earlier this year, the Biden Administration implemented a program with the power to chip away at them. The Parole Pathways for people from Cuba, Haiti, Nicaragua, and Venezuela (CHNV Pathways), announced and implemented in January 2023, creates a safe pathway for up to 30,000 people per month from those four countries to seek advance permission to come the United States for up to two years. During that period, they are eligible for employment authorization. The program is modeled after Uniting for Ukraine, which created a similar (though numerically-uncapped) system for people fleeing Ukraine in the wake of Russia’s invasion.

In order to apply to the CHNV Pathways, individuals must have sworn financial sponsors in the United States and meet other eligibility requirements. They have drastically reduced the number of people from the included countries making the dangerous trek to the southern border, and it’s no wonder why: the CHNV Pathways have created powerful incentives for people to use them, and disincentives for other more risky options. At the same time, across the United States, families, churches, and business are eagerly raising their hands to sponsor people through the program. The CHNV Pathways demonstrate the will of communities across the country to welcome newcomers, which sits in stark contrast to the fear mongering advanced by some politicians charged with leading them.

But the CHNV Pathways are now in the crosshairs of one of the chief peddlers of crisis narratives: the state of Texas.  In a pending lawsuit, Texas and 20 other Republican-led states are seeking to block the CHNV Pathways altogether, and thereby block one of the few programs that, by nearly all measures, works. Together with attorneys from Justice Action Center and RAICES, I represent seven courageous program sponsors who embody its immense benefits and are fighting back against Texas’s attempt to end the program for the whole country. But they remain in jeopardy due to Texas’s lawsuit. This summer, we went to trial in the case, Texas v. DHS, No. 6-23-cv-7, and are awaiting a decision that will determine the fate of at least 1.5 million people waiting for their opportunity to sponsor their global neighbors.

The success of the CHNV Pathways—and the perils of ending them—are reminders that so long as instability exists abroad, no policies, no matter how punitive, will keep people from coming to our doorstep in search of safety, stability, and family reunification. What is within our control is what the process will look like. Do we want safe and systematic pathways to the interior of the country, or dangerous treks, confusing apps, and harsh penalties at the border? Respite sheltering, travel coordination, and work permits to stabilize newcomers; or rhetoric that vilifies and further marginalizes people who need a helping hand to get on their feet?

The more states/localities advance crisis narratives instead of investing in solutions, the easier we make it for Texas et al. to hold good immigration and border policy hostage for the whole country. Border communities—and other communities across the country—know what it means to celebrate newcomers while calling for more permanent investments. It’s past time for leaders on both sides of the aisle to take note.

Monika Y. Langarica is a senior staff attorney with the Center for the Immigration Law and Policy at the UCLA School of Law where she focuses on litigation, policy advocacy, and strategic communications related to asylum and border policy.

 

All In: Latinx/a/o Families & the Battle for Educational Opportunity

Eight-year-old Sylvia Mendez, the daughter of plaintiffs Gonzalo Méndez and Felicitas Mendez. Their California case Mendez v. Westminster overturned racial segregation in education in California and set a precedent for the eventual Brown v. Board of Education case. (via Wikimedia Commons.)

From time immemorial, our nation has struggled to fully overcome its horrid historical treatment of people of color – a history that is rife with violence, subjugation, inequitable opportunity, and denial of the ability to fully participate in our multiracial democracy. Despite the past and ongoing struggles, the fight for equitable opportunities and treatment continues and Latinx communities have often been at the forefront. This is especially pronounced in education, where Latino families have challenged the segregation of students and more recently have helped defend affirmative action in higher education and diversity admissions in K-12.

Mendez v. Westminster School District is one of the more well-known, earlier education cases involving Latino families challenging school segregation. Gonzalo Mendez and four other parents filed a class action challenging the segregation of children based on their “Mexican or Latin ancestry” in four school California school districts. The districts, in part, claimed that the segregation was necessary because the students did not know English. The evidence showed otherwise. In a precursor decision to Brown v. Board’s reversal of Plessy v. Ferguson, the federal district court held that the segregation caused feelings of inferiority upon the students and enjoined the segregation.

But well before Mendez, Latino families were fighting segregated schooling. Among other places, families in Alamosa, Colorado, Lemon Grove, California, and Del Rio, Texas, filed lawsuits challenging assignment of their children to “Mexican schools.” Similar to the defendants in Mendez, many of the schools attempted to use the children’s English proficiency as a proxy for the segregation. The Alamosa case, Maestas v. Shone, et al., was perhaps the first successful case. There, the state district court received evidence of the impact of the segregation on the children and the children testified in English to demonstrate their English proficiency. Following trial in 1914, the judge found the school board in violation of a state law prohibiting racial discrimination in schools, holding “In the opinion of the court … the only way to destroy this feeling of discontent and bitterness. . . . is to allow all children so prepared, to attend the school nearest them.”

More recently, Latinx students have been co-leading the national defense of racial diversity in both higher education and K-12. Latinx students participated as intervenors and amici in both the UNC and Harvard affirmative action cases reaching the Supreme Court. Represented by the Lawyers’ Committee for Civil Rights Law, Latinx, Black and Asian American students testified in both cases about the challenges they faced in high school, where they often had to fight to be placed in advanced courses. They also testified about the social and academic benefits of being educated in more diverse settings. Although the Supreme Court rejected Harvard’s and UNC’s affirmative action programs, the critical testimony of Latinx students and their peers on the importance of race and ethnicity in shaping their experiences may have influenced Chief Justice Roberts’ opinion in holding that students may continue to lift up, and have considered, their racial experiences in their applications.

In K-12 schools, Latino families and organizations have banded together with Black and Asian American groups to defend diversity admissions programs at specialty high schools in several communities including Fairfax, Boston, and Montgomery County, Maryland. The diversity admissions programs followed examinations by the respective school districts of prior policies that were largely based on unvalidated admissions tests and fees and were leading to the exclusion of Black, Latinx, English learner, and low-income students. To make their schools more inclusive, the districts revised their admissions policies to de-emphasize or eliminate standardized tests, and substituted other, more effective race-neutral policies without considering the race of any applicant. The opposition claims that the districts revised their admissions policies to exclude Asian American students under the Equal Protection Clause, even though Asian American students remain the highest enrolled student population in the schools compared to their overall population. Essentially, the plaintiffs in these cases argue that school districts are prohibited from making changes to existing policies if they have merely considered racial demographics as part of their analysis—even though race is not a factor in admissions decisions.

The Fairfax case, Coalition for TJ v. Fairfax County Public Schools, is pending certiorari before the Supreme Court in a petition filed by the plaintiff, while the other cases are in the federal courts of appeals. To date, none of these challenges has been successful.

These are only a handful of the many impact cases and movements where Latinx community has played a key role. From Rodriguez v. San Antonio I.S.D. to Plyer v. Doe, from Martinez v. New Mexico to Cruz-Guzman v. Minnesota, and so many others, Latinx families and advocates continue to serve as a powerful presence and ally in the pursuit of racial and ethnic justice in education.

David Hinojosa is the Director of Education Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, where he spearheads the organization’s systemic racial justice work in guaranteeing that historically marginalized students of color receive equal and equitable educational opportunities in public schools and institutions of higher education. 

A Diverse Legal Profession Requires Hispanic Representation

As we celebrate Hispanic Heritage Month, it is undeniable that Hispanics are growing in both influence and population, now nearing 20% of the total U.S. population. That growth continues to shape the community, traditions and culture of the United States, most notably in the areas of food, music, art, and religion.

Less obvious are the significant contributions that Hispanic lawyers are making within the legal profession.  As the ABA found in a 2020 study, the number of Hispanic attorneys grew only 1% over the last decade.  Today, only 5.8% of all lawyers are Hispanic. Though any increase is welcome, there is clearly a long way to go before Hispanic participation in the legal profession begins to approximate the total Hispanic population in the U.S.

Nonetheless, as the newly installed National President of the Hispanic National Bar Association (HNBA), I am heartened by the strides Hispanic lawyers continue to make in the profession.  We are a small but mighty force and the sphere of Hispanic lawyer influence is on the rise. We see an increasing level of access to spaces where Hispanic lawyers have been traditionally underrepresented (if represented at all), such as board rooms, corporate C-suites, judicial roles, and higher-level government positions. With access comes information and the power to influence.  There are many organizations, including the HNBA, who are working hard each day to identify barriers, educate members and provide resources to lawyers, both younger and more seasoned, as they navigate the legal profession.  The most important of those resources is mentorship.  There is no deficit of Hispanic talent; the deficits are a lack of resources and information.

Today, there are increasing challenges to diversity, equity and inclusion (DEI) initiatives in the courts and in the court of public opinion. The Supreme Court’s decision in Students for Fair Admissions (SFFA) v. Harvard is a setback that will undoubtedly and disproportionately affect aspiring Hispanic law students.  History will ultimately be the judge of the motivations that underlie the efforts to curtail DEI programs and I am confident that history will not be kind. As the US Supreme Court recognized in its 1954 decision in Hernandez v. Texas, Hispanics have long been subject to discrimination based on their ethnicity. That discrimination, whether overt or subtle, continues to undermine Hispanic participation in legal and other professions.

At the same time, there are economic and demographic forces that will continue to help propel the interests and representation of Hispanic (and diverse) lawyers forward.  Law firms, corporations, government, and individuals in need of legal representation are calling for diverse representation. There is a demand and a need for more Hispanic lawyers. Universally accepted laws of supply and demand will ultimately help minimize the barriers created by challenges against DEI programs and higher education admissions policies.

Furthermore, the legitimacy of and faith in our democratic institutions requires diversity in the legal profession. According to the ABA, “racial and ethnic diversity in the legal profession is necessary to demonstrate that our laws are being made and administered for the benefit of all persons. Because the public’s perception of the legal profession often informs impressions of the legal system, a diverse bar and bench create greater trust in the rule of law.” The governed must have faith in government and its institutions. Such faith is enhanced when the bench and bar are diverse and empowered.

Decisions such as SFFA will, at least in the short term, surely stunt growth and diversity in the professional world. Organizations like the HNBA will need to work harder and smarter to ensure continued representation in the legal profession in the face of a changing higher education admissions landscape.

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Daniel Mateo is a Partner at Holland & Knight, and currently serves as President of the Hispanic National Bar Association.

The Importance of Hispanic-American Advocacy in the Fight for Voting Equality

As kids head back to school this fall, the weather cools, and we look ahead to Thanksgiving and the holiday season, many Americans are preparing for a different fall tradition.

Hispanic Heritage Month is a time to reflect on and celebrate the history, culture, and achievements of Hispanic Americans from every corner of our country. And like many Americans, Hispanics played a pivotal role in the nation’s fight for equality at the ballot box.

The Voting Rights Act (VRA) of 1965 is considered a landmark bill, and understandably so. The VRA is credited with helping dismantle the Jim Crow policies throughout the American South, and ushering in hundreds of candidates of color to better reflect America.

Many people may not know about the advocacy of Hispanics, Latinos, and Chicanos in passing important reforms in the 1975 VRA extension. A month before President Ford signed the updated VRA, officers from the Texas Alcoholic Beverage Commission brutally beat farmer and activist Modesto Rodriquez as he stood outside a bar attempting to recruit Chicanos to testify about voting discrimination.

Hispanic and Latino activists joined forces with Black legislators, notably Barbara Jordan, the first Black woman elected from the South to Congress, to push for provisions that would break down barriers for Spanish-speakers at the ballot box. The reforms, passed in 1975, required states and localities to provide non-English ballots and voting materials in states and localities where significant numbers of non-English speaking Americans lived.

Ten years after the passage of the 1975 Voting Rights Act reforms, the number of Mexican-Americans holding county and municipal offices in Texas increased from 353 to 559. In 1977, Congress counted just seven Hispanic members, today there are 62.

Perhaps no one embodies the rise of Latinos in politics more than my friend and mentor, the late Bill Richardson. Governor Richardson was the first Latino to run for the Democratic nomination for president, among many other prestigious positions he held over his career. During his two terms as New Mexico’s governor, he was the only Latino governor in the country. Governor Richardson also spent 14 years serving in Congress, and it was my honor to later be elected to the same House seat in 2008.

Today, Latinos and Hispanics are the second largest voting bloc in the country. In 2020, Latinos cast 16.6 million votes in 2020, an increase of 30.9% from 2016. The 2020 election marked the first time in history when over 50 percent of eligible Latinos cast a vote. Despite these gains, voter suppression laws, aimed at depressing the Hispanic and Latino vote, persist in states such as Arizona and Texas.

And just like in 1975, voting rights activists of today are pushing back. Here in Congress, Democrats introduced the John Lewis Voting Rights Act, legislation that would, among other things, require jurisdictions with high rates of non-English speakers to seek pre-approval from the Department of Justice before changing language assistance voter materials.

In my home state of New Mexico, lawmakers recently passed the New Mexico Voting Rights Act. The bill will automatically register voters at the Motor Vehicle Department, allow for same-day registration, mandate two ballot drop boxes per county, and restore voting rights of previously incarcerated individuals upon release. I believe in these provisions and I think they will make it easier for all New Mexicans to cast a ballot.

So, as we spend this month celebrating and reflecting the enormous achievements of Hispanics, we should remember individuals like Modesto Rodriguez, who even in the face of severe brutality, fought for the rights of his community. We should celebrate the giants of public service like Bill Richardson, who has left behind a great legacy for the next generation of Latino leaders. I encourage all the young Hispanics and Latinos who are fighting for immigration reform, racial justice, and a clean energy economy, to not give up. We will never live in a true democracy until every single American is able to make their voice heard.

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Senator Ben Ray Luján has served as the junior United States Senator for New Mexico since 2021.

Beyond Diversity - SFFA's Silver Lining

This summer, the Supreme Court all but overruled Grutter v. Bollinger, a precedent which allowed universities to consider an applicants’ race alongside other factors to achieve “the educational benefits that flow from a racially diverse student body.” At the same time, the majority in Students for Fair Admissions (SFFA) emphasized that the opinion should not prevent universities from considering “how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

While the court’s decision is likely to have devastating near-term effects for Black and Latino representation on elite campuses, it also potentially opens new opportunities for progressives advocates and scholars to argue for affirmative consideration of race in admissions. Freed from defending Grutter’s singular focus on the benefits of diversity, progressive advocates can more robustly articulate the relationships between race, lived experience, and individual “merit.” 

Central to the majority’s analysis was the premise that using racial categories to achieve diversity necessarily relies on stereotypes, undermining the individualized merits considerations that applicants deserve (and the Constitution requires). There are too many flaws in the majority’s analysis of history, law, and contemporary admissions practices to fairly cover here (they are thoroughly and powerfully exposed in Judge Sotomayor and Jackson’s dissents). But the argument that the “diversity rationale” for affirmative action has tended to distract from more meaningful discussions of merit and racial justice has also been raised by progressive scholars of color like Derrick Bell and Lani Guinier.

As scholars and activists have noted, the “diversity” rationale for affirmative action can tend to objectify students of color, under the tacit assumption that “diverse” students (i.e., POC) are there to educate and provide perspective to “non-diverse” ones (i.e., white students). This unspoken expectation can fuel awkward campus dynamics where students of color are polled for their opinions on historical atrocities like slavery or commoditized as symbols of their institutions’ progressive ideals on college brochures.  

The perceived tension between merit and diversity can harm students long past graduation. The achievements of graduates of color are too often diminished when they are viewed primarily as affirmative action admits or hires, and receive less value for their degrees than their white counterparts.  

Meanwhile, focus on numerical or visual diversity has tended to pull focus from the most disadvantaged. Diversity within communities of color is sometimes flattened, as Black immigrants are conflated with descendants of American slavery, and the unique challenges of Hmong and other underrepresented Asian communities are swept under the rug of the “model minority myth.” 

Of course, progressives’ full-throated defense of the diversity rationale is in part because, until SFFA, diversity was the only rationale the Supreme Court had deemed sufficiently “compelling” to justify positive consideration of race in admissions. Justice Powell’s controlling opinion in Regents of Univ. of California v. Bakke had already rejected the rationale of reducing the historic deficit of disfavored minorities, remedying the effects of historical discrimination, or increasing the number of graduates serving disadvantaged communities. While SFFA largely outlawed categorical use of race to advance diversity, the Court also explicitly acknowledged that individual’s experiences with race may be relevant to admissions decisions and seemingly blessed college’s consideration of racialized experience. 

Revisiting the rationales rejected in Bakke under the more individualized admissions assessment recommended by the SFFA majority may yield new insights for schools, candidates, and our communities. For example, instead of looking to remedy the effects of historical discrimination generally, as Bakke forbids, universities might consider how historical and present-day discrimination are relevant to individual applicants and recognize the resilience applicants demonstrated in overcoming these barriers. A university might find that an applicant who managed to achieve high grades and test scores and secure prestigious internships, while also coping with negative stereotypes from biased teachers and employers, is more competitive than an applicant who had not faced similar bias.  

The Bakke court also called for “more precise and reliable” ways, other than racial category, to identify applicants committed to serving disadvantaged communities. The Court advised schools to instead look to identify applicants with a “demonstrated . . . concern” and declared interest in serving such communities. Elevating lived experience, in place of so-called “box checking”, would add the precision Bakke demanded—arguably applicants who themselves had first-hand experience living in racialized communities and navigating racialized medical and economic conditions may be both more committed to resolving such disparities and better equipped to do so than applicants with solely intellectual or ideological motivations behind their work.  

Relying solely on individual reporting of experience may not fully replace the benefits of consideration of racial categories. As Evan Mandery points out, relying on essay content alone may be insufficient to meaningfully bring lived experience to the fore. It may risk “further co-opting of disadvantage” by placing “a premium on an applicant’s ability to present a compelling narrative of their experience.” Even if the communications playing field were even, applicants may not have personal knowledge of the ways race has presented barriers to them. Many forms of bias are implicit, and even explicit forms (for example passing over an internship applicant with a funny name) are often invisible to the people they affect.  

Nevertheless, until there is a change in the Supreme Court’s composition, statistical forms of racial consideration are unlikely to survive legal scrutiny. Given the current landscape, advocates and institutions would do well to accept the Court’s invitation to re-center the rich experiences, talents, and contributions of individual applicants of color.  

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Taonga Leslie is the Director of Policy and Program for Racial Justice at ACS.

Standing When You Want It

This is the second piece in a series that details some of the national consequences of the Supreme Court's last term as it prepares to begin its 2023-2024 term in October.

As most ACS lawyers know, standing is often a barrier that the courts use to prevent our clients from having their claims decided in federal court. For me, the general rule of thumb that judges seem to apply in my cases when standing is at issue is that I have standing to lose but almost never have standing to prevail. But I now understand that I have been representing the wrong clients, because the Supreme Court has recently shown a willingness to surmount, or even not mention, standing issues that might stand in the way of the conservative majority reaching a desired ruling. Here are some recent examples of how the Court overcame standing and related Article III barriers.

Separation of Powers Cases

The Court’s conservative majority strongly supports the Unitary Executive theory, under which laws that limit the President’s control over executive branch agencies, including the so-called independent agencies, are unconstitutional. In Free Enterprise Fund v. Public Company Accounting Oversight Board, the plaintiffs claimed that the Board was unconstitutionally appointed and that the provision limiting the ability of the Securities & Exchange Commission to remove its members except for cause was unconstitutional, as an interference with the ability of the President to oversee the activities of the Board. The members of the SEC were also subject to an implied protection from removal except for cause, and the Court ruled that this double for-cause protection was unconstitutional.

How were these private plaintiffs injured from the President’s inability to fire these Board members at will in such a way that would give them standing to make this claim, especially since under the applicable statute only the SEC, not the President, had the right to fire members of the Board? It’s unclear because the plaintiff’s standing was never challenged and never considered by the Court. Of course, they had standing to challenge any defects in the appointment process, and so perhaps no one thought to question their standing to raise the separate removal claim. But standing, like other aspects of the case or controversy requirement in Article III, is jurisdictional, and so, according to its own precedent, the Court had a duty to raise the issue on its own because those requirements cannot be waived by the parties.

When a similar removal challenge arose in Seila Law LLC v. Consumer Financial Protection Bureau, regarding the single director of the bureau who could only be removed for cause, the Court gave only brief attention to the issue, relying on Free Enterprise, even though the issue was not raised there or in any of the other cases cited by the Court. The Court will hear another removal for-cause claim this term in SEC v. Jarkesy, and the Government has not even raised the issue, presumably because it assumes that it would receive the same treatment as the Court gave it in Seila Law. The failure to raise standing is noteworthy because the connection between the Administrative Law Judges who work for the SEC at issue in Jarkesy and the President is far more remote than between the President and the CFPB director in Seila Law, and the duties of ALJs do not involve making any policy, which is the stated reason why Presidential control is important. Another CFPB case before this Court this term, CFPB v. Community Financial Services Association of America, the government all but  conceded that the Court is determined to reach the merits in these separation of powers cases that involve laws that do not conform to the traditional agency head subject to presidential at-will removal. In this case, the Solicitor General did not even suggest that there might be a standing problem by a plaintiff who alleged (successfully in the Fifth Circuit) that the statutory funding mechanism for the CFPB was unconstitutional because the agency received permanent funding from the Federal Reserve, instead of having to persuade Congress and the President how much the agency deserved every year. The failure to even raise the issue means the spurious causal connection between the CFPB’s funding mechanism and any alleged harm to the plaintiff will likely remain unexamined.

First Amendment Cases

The majority’s strong inclination to protect religious speech has enabled it to overlook significant Article III problems in two cases. In Kennedy v. Bremerton School District, the only relief that the plaintiff sought was to be reinstated to his former position, but by the time the Court heard the case, the plaintiff had sold his house in Washington State and moved to Florida to help take care of his mother-in-law, raising a serious mootness issue. The plaintiff insisted that he would move across the country again to become a part-time assistant high school football coach, but the Court never mentioned this problem, which would have enabled it to avoid a difficult First Amendment problem on the merits. The legitimacy of the mootness claim is supported by Coach Kennedy’s recent decision to resign after coaching for a single game.

A variation of these Article III problems was also sidestepped by the Court in 303 Creative LLC v. Elenis, in which the Court reached out to decide a legal question that was unmoored from an actual dispute on which the Court could base its speech-protective ruling. The plaintiff is a website designer who is opposed to same-sex marriage. While she expressed a willingness to serve gays and lesbians, she is unwilling to create a website for a wedding they might have. She had never been asked to do a wedding website for anyone, let alone a same-sex couple. Because the State of Colorado had stipulated to many facts suggesting that there was an actual controversy, and it appeared to have sought a ruling on the merits below, the Court issued a sweeping First Amendment ruling which lacks any specificity as to what the State may or may not do to enforce its anti-discrimination laws in cases like this, other than to be very careful if an individual claims that the law is forcing them to speak on a subject that they find offensive.

Other Constitutional Claims

Last term in Haaland v. Brackeen, there was a two-pronged challenge to the constitutionality of the Indian Child Welfare Act, which establishes a preference that state courts  place  Indian children who have been removed from their families with extended family members or an Indian caretaker, brought by a group of plaintiffs including a non-Native family wishing to adopt an Indian child.  . The Court first upheld the power of Congress to enact this law under Article I, even though adoption laws are the principal province of the states, but it then declined to decide whether the preferred treatment for Indians was a racial classification that violated the Equal Protection Clause (rather than a political one). It backed away from that question on the ground that the plaintiffs, who were non-Indian families, lacked standing to assert the latter claim. The problem, according to the Court, was that all the defendants were federal officers, and because these adoption cases are all heard in state courts, there was nothing that the federal defendants could do to remedy the alleged discriminatory harm that plaintiffs allegedly suffered. But those same defendants were the ones who were sued on the Article I objection, and the relief problem appears to be the same for both claims. Somehow the Court overlooked the standing problem for the first claim, which they wanted to decide in order to sustain the law, but discovered it for the more controversial Equal Protection claim, thereby avoiding the merits. Perhaps the pendency of the Harvard affirmative action case at the same time may have influenced the majority’s desire to postpone decision on the Equal Protection claim, although the Haaland opinion made clear that the issue could be raised in state courts – but so could the Article I argument.

Finally, the merits issue in Biden v. Nebraska was whether the President had the legal authority to cancel roughly $430 billion in debts owed the Government under the federal student loan program. The effects of the cancellation would have been to help hundreds of thousands of debtors and to make the federal treasury that much poorer. The claim looked like one in which taxpayers objected to the manner in which the Federal Government spent money, and the Court has been clear that taxpayers lack standing to bring such claims, except when the claim is based on the Establishment Clause.

Missouri had an idea to deal with the standing problem, which the majority accepted. Missouri had created an independent non-profit body to service student loan repayments for a fee. The state claimed that, if the loan cancellation went ahead, the loan servicer would lose fees which is a real economic injury. But there was a big problem: the loan servicer was not a party to the case, and it had refused to join or even cooperate with the State. Moreover, all of the profits or losses realized by the loan servicer stayed with it and were not passed along to the State.

I will not attempt to describe the means by which the Court concluded that none of this mattered so that the Court could decide the merits against the Biden administration. I suggest you read Justice Kagan’s dissent to see how far the Court had to stretch to reach its desired result. This case, more than any other, demonstrates that the Court will not let standing stand in its ways when it wishes to rule for the plaintiffs on the merits.

Despite these decisions, the Court still invokes standing in some cases to avoid reaching the merits. But the record, at least from this observer’s seat, is that when the Court wants to decide a legal issue, standing and the rest of Article III are not a barrier to doing so.

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Alan B. Morrison is the Lerner Family Associate Dean for Public Interest and Public Service Law, and Professorial Lecturer in Law at George Washington University Law School. Morrison adapted this Expert Forum blog from his recent publication in The George Washington Law Review.