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Leading Observers: If Chief Justice Roberts Stays Consistent on Standing Question, GOP Plaintiffs will Lose in U.S. v Texas

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Assessing yesterday’s Supreme Court oral arguments in United States v Texas, leading observers keep focusing on the issue of standing in this politically-motivated case. If Chief Justice John Roberts stays consistent in his view of the judiciary as a forum to resolve legal and not political disputes, then the Republican plaintiffs in U.S. v. Texas will lose. Below, we excerpt analysis from leading legal observers assessing the standing question after yesterday’s arguments:

David Leopold, an immigration attorney and past president of the American Immigration Lawyers Association, “U.S. v Texas: Takeaways from Oral Argument at #SCOTUS”: 

“I had the privilege of attending today’s oral argument in U.S. v. Texas.  Here are my initial takeaways:

What we saw today was the Republicans trying to litigate a political dispute at the Supreme Court. The Republican plaintiffs simply do not have an addressable legal claim.

As expected, Chief Justice Roberts peppered the Obama Administration with tough questions. However, given the Chief Justice’s rigorous views on standing and his lamentations about the growing perception of a politicized Court, U.S. v Texas is precisely the type of dispute that Chief Roberts seems to want settled in the political branches and not in the judiciary. In fact, the Chief Justice’s almost singular focus on standing today – in particular when he asked whether Texas’s alleged injury was more indirect and speculative than in the Massachusetts v EPA case – suggests that, true to his well-articulated past opinions, Roberts is seriously questioning Republicans’ ability to bring this case.

This case remains about Republicans’ policy disagreement with the president, not about the law.

On the merits, the Republican plaintiffs conceded that Obama had the authority to temporarily defer the removal of undocumented parents and Dreamers. As Justice Kagan pointed out, the Republican plaintiffs’ ‘gripe’ is with letting undocumented people work, support their families and live in this country with dignity in the process.

This underscores the anti-immigrant motivation behind the case and reminds us that a political lawsuit should be settled at the ballot box, not the Supreme Court.”

Brianne Gorod, chief counsel of Constitutional Accountability Center, in The New Republic, “One Side Had All the Good Arguments in the Supreme Court’s Immigration Case”:

 “[T]he justices spent a significant amount of time discussing whether Texas and the other states even have standing to bring this case. And as I’ve previously written, there’s good reason to think that Chief Justice Roberts should not find standing here given his prior votes in standing cases. While Roberts pressed Verrilli on his argument that Texas’s injury is one of its own making, he also asked whether ‘the injury here [is] any more indirect and speculative than the injury in Massachusetts against EPA,’ a case in which he notably concluded that there was no standing.

Moreover, Verrilli received virtually no resistance to his argument that Texas and the other states have failed to establish standing because they cannot demonstrate that any action by the courts will redress their alleged injury. According to the United States, the primary injury Texas alleges is the cost of subsidizing drivers’ licenses, but Texas gives drivers’ licenses to aliens on the basis of deferred action itself. Thus, the government argues, because Texas no longer challenges the deferred action program itself, the Court can do nothing to redress the state’s alleged injury.

There were a lot of tough questions asked of both sides at oral argument this morning, but only one side had good answers. While those answers may not tell us exactly where the Court will land, they do tell us where it should land. When the Court announces its decision later this year, that decision should, at long last, unfreeze DAPA.”

Jesse Wegman, a New York Times editorial writer, in an opinion piece titled, “Reality vs. Ideology on Immigration at the Supreme Court”:

“In the end, the outcome of the case could turn on none of these issues, but rather on the preliminary question of standing: What gives Texas and the other 25 states the legal capacity to challenge Mr. Obama’s actions in the first place?

The court’s answer should be: nothing.

Texas claims it has that capacity, known as ‘standing,’ because it has suffered a concrete injury — Mr. Obama’s executive actions mean that the state will bear the extra costs associated with providing driver’s licenses, which it already subsidizes heavily, to thousands of newly-protected immigrants. But no one is forcing Texas to provide licenses to these immigrants, or even to subsidize its licenses at all.

If states are allowed to run to the courts over any dispute they may have with the federal government, they will do so every day. ‘And before you know it,’ Justice Stephen Breyer suggested, ‘power will be transferred from the President and the Congress, where power belongs, to a group of unelected judges.’

During his decade leading the court, Chief Justice Roberts has been a strong proponent of stricter standing rules. If he wants to avoid a chaotic 4-4 split in this extremely politicized case in the middle of a hotly contested election, the standing issue gives him an easy way out.”

Lyle Denniston at SCOTUS Blog, “Argument Analysis: Search For a Fifth Vote on Immigration”:

“A federal judge in Texas and the U.S. Court of Appeals for the Fifth Circuit allowed the states’ challenge to go forward on the theory that at least one of the states — Texas — would suffer a significant budget impact if it were faced with handing out drivers’ licenses to perhaps millions of undocumented immigrants, if they gained the right to stay in the United States.  That impact, the lower courts said, was what gave Texas the right to sue on behalf of itself and twenty-five sister states.

At Monday’s arguments, a series of rapid-fire questions by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor highlighted the potentially decisive significance of the constitutional question about when state governments may sue the federal government because of a disagreement over federal policy.  That is a question under the Constitution’s Article III, which limits federal courts’ authority to deciding live legal controversies, those in which someone can claim to have been specifically harmed by government action.

Breyer trotted out prior Supreme Court precedents on Article III “standing” to make the point, and his three liberal colleagues had an array of objections to the states’ right to sue to block the Obama policy announced seventeen months ago, but not yet in effect because of lower court temporary orders against enforcement.”

Marshall Fitz, Director of Immigration at the Emerson Collective, in a new Medium piece, “Why the Supreme Court will likely #UnfreezeDAPA — i.e. ‘Don’t Sweat the Headlines’”:

“…those of us who have studied these legal issues and have been fighting to protect these families for years approached yesterday’s argument confident that the federal government would ultimately prevail, regardless of how the oral jousting played out on stage. And none of the ensuing legal drama undermined that confidence because common sense, the law, and extensive historical precedent remain squarely on our side.

The Solicitor General, on behalf of the federal government, effectively argued that: (1) this case should never have made it in to the courts in the first place because the states failed to demonstrate a redressable harm and therefore legal standing to sue; (2) deprioritizing deeply rooted undocumented immigrants (while prioritizing serious criminals and individuals crossing the border) makes eminent sense given the mismatch between congressionally appropriated enforcement resources and targets; (3) the policies are fully consistent with statutory authority to set priorities and regulatory authority to grant deferred action and employment authorization; and (4) these discretionary policies are consistent with both the executive branch’s requirement to take care that the laws are faithfully enforced and with the precedents of numerous administrations for decades.

None of these substantive legal positions was effectively defanged by skeptical Justices or the Texas Solicitor General. To the contrary, many of the arguments emerged stronger from the legal probing (while many of Texas’s were weakened).


As the Solicitor General put it in his closing remarks: “On standing, I would note that they have no answer to our redressability point. You didn’t hear one today. They don’t have one.”

In short, this entire case was based on a phantom premise and it is time for the Court to bury this politically motivated lawsuit. For the millions of American families who have waited (and waited, and waited) for the chance to live with dignity and without fear of separation, yesterday was a step toward breaking the shackles of the status quo. (Even if the headlines in your favorite news outlet might suggest otherwise . . . )”