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STANDING: What It Is And Why It Matters To The Supreme Court And To Us

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SCOTUS 101: Standing

This is the first in a series of “explainers” about the U.S. v Texas immigration case the Supreme Court agreed to take up in 2015.  They will explain important legal terms in ways that we hope you will find understandable.  Today we will explain the issue of “standing.”

STANDING: What it is and why it matters to the Supreme Court and to us

When the Supreme Court hears arguments on the immigration executive action case, the first question the Justices will have to decide is whether Texas and the other states on this lawsuit even have the right to sue. That’s called “standing.” And, it’s important because not every disagreement has the right to be aired out in a federal court, just because one party is upset.

Standing is a legal term which determines whether the party bringing the lawsuit has the right to do so. Standing is not about the issues, it’s about who is bringing the lawsuit and whether they a legal right to sue. Key to understanding standing is that federal courts have specific jurisdiction over certain issues. As a general rule, federal courts only have authority to hear actual controversies, a term that does not include “political questions.”

In this case, Texas brought a lawsuit because it disapproved of President Obama’s executive actions on immigration. Texas asserted it had the right to bring its claim to court—that it had standing— because DAPA and DACA expansion would cost the state money by requiring it to issue driver’s licenses to qualified parents and DREAMers. But, that’s a questionable claim—especially because it’s mainly an attack on how the President has decided to enforce the immigration law. The Supreme Court has already said in other cases that the President has broad authority when it comes to immigration enforcement—including the granting of deferred action. Nor will the Court want to weigh in on issues that could be resolved in the usual political process.

Standing has already stopped one challenge to the President’s executive actions. Maricopa County Sheriff Joe Arpaio’s case, filed in DC Federal District Court, was dismissed because he did not have standing. The DC Circuit Court of Appeals agreed, noting:

We conclude that Sheriff Arpaio has failed to allege an injury that is both fairly traceable to the deferred action policies and redressable by enjoining them, as our standing precedents require.

The Supreme Court decided not to hear Arpaio’s appeal of that ruling this year.

It’s important to know that just because Judge Hanen and the Fifth Circuit believed Texas had standing, doesn’t mean the Supreme Court will. In fact, as noted below, many of the legal observers following the case doubt Texas has standing.

So, why is this important? If the Supreme Court decides Texas does not have standing, the lawsuit is over. Texas will have lost its ability to sue in federal court. And, Judge Andrew Hanen, who issued the injunction against DAPA, will not be allowed to rule any further in this case. If Texas does have standing, other issues will decide the outcome. We’ll have more on that later.

Read on to learn more about what the experts say about “standing” in this particular case:

At Huffington Post, Stephen Legomsky, Professor Emeritus at Washington University, principal author of “Immigration and Refugee Law and Policy,” and former Chief Counsel of USCIS, wrote:

Before a federal court can even address the merits of a case, the Constitution requires the plaintiff to demonstrate “standing.” This means the plaintiff has to show that the defendant’s actions will cause the plaintiff concrete harm. Texas’s lawyers have devised a clever argument: Deferred action results in temporary “lawful presence;” Texas law makes foreign nationals who are “lawfully present” eligible for driver’s licenses; and the application fee for a Texas driver’s license does not cover the full processing cost. Therefore deferred action will cost Texas money.

There are many flaws in this argument. The biggest is that no one is forcing Texas to issue driver’s licenses to deferred action recipients; that is the state’s choice. So Texas has to argue in effect that just being forced to choose between incurring costs and changing its policy is enough to give it standing — even if the policy change is one that it actually prefers.

No court has ever gone to that extreme, and for good reason. First, federal laws require a steady stream of interpretations and policy decisions by a myriad of federal agencies. Practically any federal interpretation or policy decision that favors those who seek immigration benefits will make the affected individuals eligible for some state benefit somewhere. Thus, under Texas’s theory there will almost always be some state that could plausibly claim standing. And given our country’s deep ideological and partisan divides, there will always be a state that desires to do so.

A January 19, 2016 New York Times editorial also explained the standing issue in the Texas case:

Apart from the fallacious argument on the president’s powers, the states have no standing to sue. Texas claims that it has that right simply because it thinks the president’s orders would harm its economy. If the court were to accept this kind of claim, it would mean that any time a state or city opposed a federal action, it could drag that political dispute into the courts.

As Judge Carolyn King noted in her dissent in the Fifth Circuit’s ruling, this argument “appears to allow limitless state intrusion into exclusively federal matters — effectively enabling the states, through the courts, to second-guess federal policy decisions.”

Linda Greenhouse, the noted Supreme Court reporter for the New York Times, wrote about the issue of standing and the Supreme Court last fall:

The classic rationale for a robust doctrine of standing is that it protects the constitutional separation of powers. In 1993, before he became a judge, John G. Roberts Jr. expressed this view in an article published in the Duke Law Journal. “By properly contenting itself with the decision of actual cases or controversies at the instance of someone suffering distinct and palpable injury,” the future chief justice wrote, “the judiciary leaves for the political branches the generalized grievances that are their responsibility under the Constitution.” He further observed: “Separation of powers is a zero-sum game. If one branch unconstitutionally aggrandizes itself, it is at the expense of the other branches.” (Justice Antonin Scalia, then a federal appeals court judge, wrote a law review article in 1983 titled “The Doctrine of Standing as an Essential Element of the Separation of Powers.”)SCOTUS101_DAPA_DACA

What SCOTUS means for DAPA and DACA