Jack Fitzhenry, Michigan Journal of Environmental and Administrative Law
The case of U.S. v. Texas is an example of how administrative law has been used to channel the frustrated energies of two sides unable to accomplish what they want by more direct means. The Obama administration, unable to affect comprehensive immigration reform by legislative means, has resorted to executive action and administrative policy effectuated through the Department of Homeland Security. Most recently this policy push has manifested itself in Deferred Action for Parents of Americans (DAPA), the subject matter of U.S. v. Texas. The respondent States, barred from legislating directly on their particular immigration issues, have resorted to challenging the executive’s policies on the level where they are enacted: the administrative agency. This post is confined to an overview of the respondent States’ interests.
About four months after the administration announced executive actions granting deferred status to millions of unlawfully present persons, the Southern District of Texas granted an injunction enjoining the implementation of DAPA nationwide. At every stage of the litigation, the government has asserted that the States lack standing to challenge DAPA. The question remains open whether the States have suffered a sufficiently concrete injury, or whether their injury is a mere generalized policy grievance thought to be insufficient to confer standing. The ability to legislate on immigration implicates one of the core interests of the sovereign state: determining who may lawfully enter, remain in, or be excluded from a State’s territory. Because the underlying interests of the respondents in this case are sovereign in nature, the Court should find that the States have standing to challenge DAPA.
Decisions like Arizona v. U.S., invalidating Arizona SB 1070, prevented the States from exercising direct control over immigration policy within their own territory. Beyond Arizona, other petitioner States have been met with similar federal resistance and ultimate failure when their legislative efforts on the subject of immigration were challenged in court. Here, where their direct involvement on the issue has been precluded by precedent, the States brought a challenge to DAPA as (i) procedurally invalid because it did not undergo the APA’s notice and comment procedure (ii) substantively invalid as an abuse of discretion conferred to the agency by Congress.
These are no ordinary petitioners for review of an administrative action, nor are the policies enacted under DAPA, for all the administration’s arguments to the contrary, an ordinary regulatory scheme. The States come before the courts alleging injuries and claiming interests that are unique to their status as limited sovereigns within the federal system. Beyond the issue of controlling their own borders, the concrete injury alleged by Texas, the cost of providing licenses to newly legal persons, is an injury which private actors could not allege. Does it matter that States attempt to vindicate this type of injury and this type of interest through generic APA procedural claims which are available to all would-be challengers of agency action? Massachusetts v. EPA indicates that their status has consequences, and that the States may be uniquely good plaintiffs to raise a challenge to DAPA. Under the Massachusetts framework, the States are “entitled to special solicitude in . . . standing analysis” when challenging agency action. That status was predicated in part on the existence of a procedural right, but, also on the character of the interest asserted by the petitioner. Where the States have been deprived of an ability to regulate within their territory, they have an interest in ensuring that the federal government is protecting those interests over which the state can no longer exercise direct control. Such an extension of Mass. v. EPA deference to the States in this case is precisely what underlay the district court’s lengthy alternative theory of “abdication standing”.
As with statutorily granted private rights of action, new developments in standing tend to implicate shifts in the balance of power. The logical outgrowth of extending the deference stated in Massachusetts to cases like U.S. v. Texas would be a shift in power back to the State governments, because although they would still be precluded from legislating directly on the matter, greater ease in challenging agency action would mean that particular concerns and policies of the States would have to be incorporated into federal immigration policy. Perhaps, in this case, there is a useful limitation on that power insofar as a State’s entitlement to deference requires that the challenged agency action implicate a sovereign or quasi-sovereign interest, but the potential to use suits to litigate policy disagreements is a matter of concern any time the core requirements of standing are loosened.
Both the nature of the state’s interest and its impairment are evident in the Arizona decision. The resolution of that case continued the long-established centralizing trend that has resulted in “[v]ast accretions of federal power, eroded from that reserved by the States, have magnified the scope of presidential authority.” Justice Scalia noted that the Arizona majority opinion “deprives States of what most would consider the defining characteristic of sovereignty . . . the federal government must live with the inconvenient fact that it is a union of independent states who have their own sovereign powers.” Scalia’s opinion draws attention to the fact that the rights taken from the States are of a fundamentally sovereign character. While the field preemption recognized in that decision is somewhat limited is scope, the result is that an agency now administers one of the core attributes of State sovereignty.
Federal preemption may mean that the States have been deprived of a legislative interest. But it seems obtuse to suggest that, as a practical matter, the States have no interest in persons moving through, residing within, or working within their borders. Practical concern is especially acute for those States whose borders also comprise international boundaries. Further, as Justice Scalia’s Arizona opinion attests to, State interest in immigration as a legal matter is no foreign concept. Field preemption supposes that the States possessed the inherent authority to regulate matters relating to immigration and that said authority needed to be impaired in the national interest of a unified immigration policy. This does not extinguish the sovereign interest in control over the persons within state territory, nor does a lack of ability to legislate on the subject immunize a State against the practical effects of a phenomenon like immigration; some vestige of an interest remains.
In its opinion upholding the district court’s injunction, the Fifth Circuit appears to rely on a similar theory in so far as the petitioners are now dependent on the federal government to protect the interest which they had previously controlled separately. For standing purposes, much is made in both the majority and the dissent of the concrete injury alleged to result from Texas’s provision of licenses. But it is really this idea that interests formerly belonging to each of the States were ceded to the protection of the federal system most strongly implicates the substantive sovereign interest driving the litigation.
The nature of that interest has implications beyond the admittedly murky question of standing. Massachusetts suggests that, at least under some circumstances, the States may sue for performance of agency duty, where the federal regime has precluded them from acting unilaterally. This right of action would seem to apply a fortiori to those federal regimes that are based on powers previously belonging to the States. One may fairly question the wisdom of allowing States such opportunity to demand judicial review of an area where policy and law are deeply enmeshed in such a way that does not allow for easy disentanglement. Allowing a policy-driven suit could substantially undermine the purported benefit of field preemption; the unified national policy. The dissent in the Fifth Circuit’s decision also indicates that the plea of limited agency resources is no mere pretense, and asking the agency to litigate such claims is a further drain on those resources.
With all that granted, it must also be remembered that even when discussing the administrative state, expediency is hardly a complete answer. It has become virtually a truism of our federal system that “the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” Neither granting that the federal government has an interest nor that the alternative imposes burdens on the system puts an end to the inquiry. The States retain an interest in remaining above the level of geographic subdivisions.
With that in mind, a failure to find an administrative remedy in this case is further precedent entrenching the discretionary (read unreviewable) power of the Executive in this area. Having no ability to legislate on the subject and no real ability to give voice to sovereign concerns through the administrative process, the States are left to something like the theory of Garcia v. SAMTA: that the protections of State sovereignty are not substantive but structural, and electoral accountability of the administration is the only real check on further federal encroachments. This is an answer that anyone solicitous of state’s rights is likely to find unacceptable.
The special solicitude for States announced in Mass v. EPA was a new gloss on standing doctrine, and one that raised some eyebrows. Similarly, the government briefs in this case reveal skepticism of the Southern District of Texas’s alternative abdication theory of standing. Yet, the idea, however novel to standing jurisprudence, may not be that far out there. Hopefully some of the foregoing considerations illustrate why courts have entertained the idea at all. It is not far fetched to think that the Supreme Court might be willing to extend its special standing solicitude to the respondents in this case. Whether or not standing is ultimately found for the respondent States’ procedural claims, the Supreme Court’s insertion of a question to be briefed by the parties indicates that at a minimum they entertain some of the same federalism concerns about this case as those invoked to support special solicitude for States.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
 809 F.3d 134 (5th Cir. Nov. 24, 2015), cert. granted,136 S.Ct. 906 (Jan. 19, 2016) (No. 15–674.).
 Texas v. U.S., 86 F. Supp. 3d 591 (S.D. Tex. 2015).
132 S.Ct. 2492 (2012).
 See, e.g., H.I.C.A. v. Bentley, 691 F.3d 1236 (11th Cir. 2011) (invalidating Alabama HB 56); Claire Bergeron, Muzaffar Chishti, Eleventh Circuit Ruling on Alabama’s HB 56 Fuels Debate over the Limits of State Immigration Measures, Migration Information Source (Oct. 18, 2011) (“Outside of Alabama, SB 1070-like laws — and Arizona’s SB 1070 itself — have not fared particularly well in the federal courts. In Arizona, Georgia, Indiana, and Utah, federal judges have preliminarily stopped most portions of new immigration enforcement laws from taking effect on the basis that federal law preempts them.”) http://www.migrationpolicy.org/article/eleventh-circuit-ruling-alabamas-hb-56-fuels-debate-over-limits-state-immigration-measures.
5 U.S.C. §553.
 5 U.S.C. § 706(2)(a).
 549 U.S. 497 (2007).
 Id. at 520.
 Cf Kathryn A Watts and Amy J. Wildermuth, Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming, 102 Nw U. L. Rev. Colloquy 1 (June 11, 2007).
 See Texas, 86 F. Supp. 3d 591, 636 (S.D. Tex. 2015).
 See generally Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
 Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579, 653 (1952) (Jackson, J., concurring).
 132 S.Ct. 2492, 2511, 2514 – 2515 (2012) (Scalia, J., concurring in part & dissenting in part).
 809 F.3d at 153 – 154.
 Id. at 188 – 189.
 New York v. U.S., 505 U.S. 144, 187 (1992).
 469 U.S. 528, 554 (1985) (“we are convinced that the fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the “States as States” is one of process rather than one of result. Any substantive restraint on the exercise of Commerce Clause powers must find its justification in the procedural nature of this basic limitation . . . .”).
 See Mass., 549 U.S. at 536 – 537 (Roberts, C.J. dissenting).
 Brief for the Appellants at 25 – 26, Texas v. U.S., 809 F.3d 134 (5th Cir. 2015) (No. 15–40238).
 “Whether the guidance violates the take care clause of the Constitution, Art. II, §3.”