Posted by: Rudy Anaya, Matthew Argyle, Nevena Ashminova, Pete Balzarini, Brianna Bane.
February 27, 2015
On December 3rd, 2014, Texas’s Attorney General Greg Abbott, joined by 25 other states, filed a lawsuit against Obama’s announced Executive Order on immigration. The states claim that the unilateral action of immigration “tramples the U.S. Constitution’s Take Care Clause.” In addition, the states allege that this directive was issued without following the Administrative Procedure Act’s (APA) rulemaking guidelines, as well as, the Immigration and Naturalization Act (INA). The issue is whether or not the states have standing to bring this suit. In short, the states do not have standing to bring this suit.
The basic requirement for standing comes from Article III, section 2 of the Constitution. It provides that the “Judicial Power shall extend” to enumerated “cases” and “controversies.” This provision requires courts to rule only in the context of a constitutional case and forbids them from invalidating legislative or executive actions just because they are unconstitutional (such as issuing “advisory opinions,” and deciding “political questions.”)
The doctrine of standing requires that:
(1) the plaintiff(s) to suffer an “injury in fact”-an invasion of a legally-protected interest which is “actual or imminent” and not “abstract, conjectural or hypothetical.”
(2) the injury is fairly traceable to the defendant’s allegedly unlawful conduct, not the result of the independent action of some third party not before the court.
The burden of proving standing is on the plaintiffs and principles and prior cases may be used to help ascertain whether or not a specific claim has standing.
President Obama’s plan for immigration reform was given in May 2011. The plan has four basic components: (1) responsibility of the federal government to secure U.S. borders, (2) accountability for businesses that break the law by undermining American workers and exploiting undocumented workers, (3) strengthening our economic competitiveness by creating a legal immigration system that reflects our values and diverse needs, (4) responsibility from people who are living in the United States illegally.
While these basic principles have been pushed for by the President over the years they were never enacted into a law, until the Department of Homeland Security Secretary, Janet Napolitano, created the DACA, or Deferred Action for Childhood Arrivals program. The memorandum instructed department heads to give deferred action status to illegal immigrants as long as certain basic requirements were met (for example, they came to the U.S. before age 16, resided in the U.S. at least five years before this order was issued, etc.). Later, however, Secretary Johnson issued a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would allow even more illegal immigrants, approximately 4 million in the U.S., to achieve deferred action status.
The States in this suit, however, are concerned with the financial drain of the constant influx of illegal immigrants into their respective territories, and that this continual flow of illegal immigration has led, and will lead to serious domestic security issues directly affecting their citizenry. The States argue that President Obama declared he did not have power under the Constitution and the laws of this country to change the immigration laws. The States argue that if the President does not have the power to make these changes, then certainly the DHS Secretary does not either. The Government argues that it has discretion to make decisions like DAPA, and that these decisions are not subject to the APA. The ultimate issue here is not to put in an opinion on whether or not the States will win this suit; rather, our focus is simply on whether or not the States have standing to bring this suit.
The basic requirement for standing, that it must be a “Case” or “Controversy” under Art. 3 Section 2, seems to be certainly true here. There is a distinct case, with two different parties arguing. In addition, it is relevant for this suit that it is states, not individual citizens, that are filing suit. As was stated in Massachusetts v. EPA, “It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual.” It is also true that only one of the petitioners needs to have standing for the court to consider the petition of review. However, this still does not eliminate the chief minimum requirements of standing—an actual injury, a causal link between the alleged conduct and injury, and the redressability of the cause by a decision of the court. Thus, what we will be looking for is if at least one state has satisfied these three requirements for standing.
The States’ injury is primarily an economic one. The injury may exist if it is a “direct and genuine injury to a State’s own proprietary interest.” Clinton v. NY. The States claim specifically, that the DHS Directive will cause an entirely new class of individuals to be eligible to apply for Drivers Licenses and that this will be a significant cost on the states to process. This is especially true for Texas, which has a population of approx. 1.6 million undocumented persons, about 500,000 of which would be able to take advantage of DAPA. Texas estimated a cost of about $175 per driver’s license. The States also argue that the REAL ID Act is an additional burden (the act was passed in 2005 and requires states to inquire about immigration status before they may issue driver’s licenses.) Because of this act there is an additional .75 cent cost per driver’s license. The economic injury claimed here by Texas and the other states is not a current injury but a future one.
As it was demonstrated in Clapper v. Amnesty International, an injury cannot be established by an “objectively reasonable likelihood” that something might happen. Instead, the standard is that the future injury must be “certainly impending.” The court will also consider whether the injury is within the zone of interest protected or regulated by the statutory or constitutional provision at issue.
Of course, here the drivers license costs required by the States would fit within the “certainly impending” category of harm. Undocumented persons living in Texas and other states would almost certainly all want to take advantage of getting drivers licenses (although a small portion may not due to the costs). Thus, the only other determination in relation to injury is whether or not the “certainly impending” harm is sufficient enough to count as a direct and genuine injury and not an abstract one. To do this, the entire projected effects of the DHS Directive including contributions to Social Security and Medicaid should be taken into consideration and not an isolated effect such as processing costs. After all, if a worker lost his job, but then a few months later got a job that was more enjoyable, with better pay, the lost job would not be considered “an injury,” but an overall benefit.
In “Building a 21st Century Immigration System,” issued by the White House, it reads, “Research shows that immigrants are more likely than U.S. born workers to start new businesses and are among the most prolific inventors in the American economy, generating ideas that lead to new products and more jobs in many sectors including pharmaceuticals and information technology. It is in our national interest to encourage people with great ideas to create new businesses, industries, and quality jobs in the United States.” As the White House proposal noted, immigrants are a valuable resource in starting new businesses and creating new inventions.
Specifically, if we focus on the long-term effects of the DHS Directive on states like Texas, many experts have spoken on the economic benefits associated with the legalization of previously unauthorized immigrants. Dr. Raul Hinojosa-Ojeda of the University of California, Los Angeles, and other researchers have studied the impact of legalization and found important long-term improvements among previously unauthorized immigrants. Specifically, removing the uncertainty of unauthorized status not only allows legalized immigrants to earn higher wages and move into higher-paying occupations, but also encourages them to invest more in their own education, open bank accounts, buy homes, and start businesses. To take this reasoning further, assuming that legalized immigrants make more money than non-legalized immigrants, this will allow more money to flow into the economies of the various states in the suit. This means that the States in the suit will be getting more money through taxes—money most likely sufficient to offset the costs required to issue drivers’ licenses to newly legal immigrants. To that end, the DHS also issued a directive aimed at making it easier for illegal immigrants to obtain citizenship.
In addition, the 10 states which, since 2001, have passed laws allowing unauthorized students to qualify for in-state tuition have not experienced a large influx of new immigrant students that displaces native-born students. These states (Texas, California, Utah, Washington, New York, Oklahoma, Illinois, Kansas, New Mexico, and Nebraska) are home to about half of the nation’s unauthorized immigrants. In fact, these laws actually tend to increase school revenues as students who would not normally attend college start to pay tuition. While this may not apply to Texas, for example, it will apply to other states in the suit. All of these benefits are strictly economic benefits to the states in the suit, and is not inclusive of other benefits to people of the states, and not the states government.
Thus, while the States’ claim relating to injury is straightforward and certainly impending, it does not appear to really be an injury here as necessary to establish standing.
The Asserted “Legal” Injury
The States allege that the DHS Directives violates the Take Care Clause of the Constitution, as well as the APA notice and comment requirement. The Take Care Clause, in Art. 2, Section 3, says that the President shall have power to, “take Care that the Laws be faithfully executed.” The APA, § 553(b), requires that notice includes a statement of the time, place, and nature of the public rule making proceedings, a reference to the legal authority under which the rule is proposed, and either the terms of substance of the proposed rue or a description of the subjects and issues involved.
However, the APA also provides that: “[e]xcept when notice or hearing is required by statute, this subsection does not apply–
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.
Furthermore, the section does not apply to:
“(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”
While the issue of whether or not the DHS Directives actually violate the APA is relevant to the merits of the case, it is not dispositive to the initial question of whether or not there is standing for the plaintiffs. Assuming, for the sake of argument, that the DHS Directives do in fact violate the notice and comment requirements, the court in Lujan held that a “procedural injury” is not sufficient to confer standing. In addition,in Lujan the court stated that a “plaintiff raising only a generally available grievance about government . . . does not state an Article 3 case or controversy.”
The States also claim that they are injured by the President (or the Executive Branch) “trampling” the Take Care clause of the Constitution. More specifically, Texas Attorney General Greg Abbott stated, “The President is abdicating his responsibility to faithfully enforce laws that were duly enacted by Congress and is attempting to rewrite immigration laws, which he has no authority to do.” They attempt to strengthen their argument by saying that the President himself said he has no authority to change the immigration laws.
The Take Care Clause of the Constitution generally has two meanings and both are quite opposite of each other. The most common interpretation of the Take Care Clause has been to impose a duty on both the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. The other interpretation is that the clause ensures Presidential control over the enforcement of federal law. If seen in light of the second interpretation the President has certainly not trampled the Take Care Clause because the President has the power, but not necessarily a certain duty to comply with statutory directives as enacted by Congress. If seen by the first interpretation, however, if the President does step his bounds by enacting laws that are beyond his power to enact, then he may be “trampling” the Take Care Clause of the Constitution. The duty of the Take Care clause would also certainly apply to the Secretary of the DHS, who serves by appointment of the President.
However, again our analysis is not meant to decide whether the Secretary of the DHS or President violated the Take Clause by failing their duty to comply with and execute clear statutory directives as enacted by Congress. The question is, assuming the President and the Secretary of the DHS did, is there an injury sufficient enough to create standing? Here it would appear there is not.
As the court said in Allen v. Wright, the asserted right “to have the Government act in accordance with the law is not sufficient, standing alone, to confer jurisdiction on a federal court.” Thus while it may assumed for the sake of standing the President and DHS are violating the Take Care clause this alone would not constitute standing or a valid injury.
For the states to have standing in this suit their injury must be “fairly traceable to the defendant’s allegedly unlawful conduct” and not too “remote and indirect.” ( See Florida v. Mellon.) The states bear the burden of proof, which is greater in situations where the “governments allegedly unlawful regulation” is of someone else.
The DHS Directive here allows a large group of undocumented immigrants to have deferred action status. Without this directive there are several possible alternatives. Currently few states allow undocumented persons to acquire drivers licenses. However, some states like New Mexico and Washington, allow drivers licenses for undocumented persons. It is possible that states that currently do not allow undocumented persons to acquire driver’s licenses, like Texas, may eventually enact laws that do allow undocumented persons to acquire driver’s licenses. This would be very unlikely though (as they filed this suit) and thus the only other way the states’ injury could be caused would be through the federal government allowing undocumented persons to be in a state where they may acquire valid driver’s licenses. Thus the injury here is not too remote and indirect, but is fairly traceable to defendant’s allegedly unlawful conduct.
There is an issue on the reliance on a third-party in the chain of causation that does not guarantee the states will occur an injury. As seen in Allen v. Wright, when the “links in the chain of causation between the challenged Government conduct and the asserted injury are far too weak” it will not sustain standing. Although the undocumented immigrants would gain a legal right to obtain a drivers license, it does not mean they will exercise that right. Similarly to Allen v. Wright, where it was speculative whether the parents would move their kids to the desegregated schools, it is speculative whether the undocumented immigrants would obtain the license. They may not be able to afford to pay for the fees or believe it is a unnecessary use of their time. The states are relying on a third-party factor (the immigrants) to be active. If the third-party does not follow through, the states would not face the economic harm they assert and the causation of their injury would not be sufficient. However, the proposed order will at least contribute to a small influx in undocumented citizens applying for drivers license. Thus, although there is an argument against causation, it seems still traceable enough to bring suit.
The final aspect in the analysis for standing is the issue of redressability. The test is whether a favorable ruling for the plaintiffs– the states in this case– will fix the claimed injury. If the court has the power to strike down the DHS Directive, the standing requirement of redressability is met with respect to the increased cost to (after all, it is the directive that supposedly will cause their injury). The issues at stake here are given below:
- Does the court have the power to strike down the DHS Directive?
- Is the DHS operating as an officer of the president?
The Department of Homeland Security is a cabinet department of the Executive Branch; It has assimilated the role of the Immigration and Naturalization Service. In Marbury v. Madison, plaintiff filed suit against the Secretary of State, the head of the State Department of the Executive Branch. The Secretary of State, operating in his official capacity, was said to be required to conform to the will of the president; essentially, the Secretary was “an organ by whom the will [of the executive] is communicated.” Marbury v. Madison The DHS, as a cabinet department of the Executive Branch, is operating as an officer of the president.
- Can the court exercise judicial review and enjoin the DHS with regards to effecting the President’s proposals?
According to Mississippi v. Johnson, a court cannot attempt to control the “actions of officers…[i]n the exercise of discretionary or political powers.” The court may, however, exercise some judicial review over the President’s ministerial duties. A ministerial duty is essentially a “simple [and] definite” duty that is “imposed by law”; nothing is left to the discretion of the president with regard to a ministerial duty. Thus, if DHS has omitted a ministerial duty when functioning as “an organ” of the President, the court may exercise judicial review. Johnson.
Here, there is substantial reason to consider the DHS directives as discretionary rather than ministerial. Individually and collectively, the DHS directives are essentially announcements of policy changes or directions to edit existing regulations. There is no definite duty to refrain from, for example, enabling or condoning the DHS to delegate their resources in one direction rather than another for public policy reasons. Furthermore, one of the directives merely expanded access to a waiver through DHS regulation. That waiver already existed to do away with a strong disincentive for illegal aliens to begin the process of obtaining an immigrant visa. Significantly, these individuals are already qualified to apply for an immigrant visa under federal statute. Far from being a unilateral change to existing law, the expansion or restriction of the waiver operates well within the law and is a discretionary action.
To help illustrate the distinction between ministerial and discretionary duties, it may be helpful to consider the memo regarding border security. While the Constitution appoints the President as commander-in-chief of the nation, the Supreme Court reasoned in Mississippi v. Johnson that the supervisory role that the President assumes as commander-in-chief is “in no just sense ministerial.” It is “purely executive and political.” Johnson. Here, the DHS directive in regards to border security serves two primary functions: 1) It creates joint task forces and 2) it outlines goals. The Obama administration is functioning in a supervisory role of the DHS in its efforts to secure the border and improve national security. Its order then, is properly considered discretionary and is thus out of the reach of judicial review.
Furthermore, although the Take Care Clause has real meaning, it does not impose a single, specific, or definite duty that the court can remedy; exercising judicial review in this context would require policing the Executive branch in a way that is not consistent with the “general principles which forbid judicial interference with the exercise of Executive discretion”. Johnson. Furthermore, even assuming that the APA was enacted to prevent certain types of injuries, and that there is a way to remedy those injuries, the question remains: was that type of injury suffered by the States? Given that the APA notice and comment requirements do not apply to “general statements of policy, or rules of agency organization, procedure, or practice”, it is questionable whether the APA is applicable, let alone whether the States can assert the type of injury it was designed to protect against. This is important because if the injury suffered is not the type the statute was aimed at protecting, then it is unclear that there would be a remedy available by enforcing the statute.
Consequently, the States have not asserted an injury which the court would have the power to remedy.
Considering the various factors analyzed, it would appear the States do not have standing to bring this suit. The States here merely allege a temporary economic pitfall and an asserted legal injury that both are not sufficient injury enough to confer standing. While an immediate injury includes increased costs to the states, potential benefits of the DHS Directive make this supposed “injury” inadequate for the purposes of the issue of standing. The causal link between the DHS Directive and the claimed injury seems to be strong enough for standing. However, the court would not have the power to redress this injury since the injury is a part of the President’s discretionary duties, as opposed to ministerial.
POSTSCRIPT: IN RECENT NEWS
On February 17th, 2015, one day before the thousands of illegal immigrants were to begin applying for work permits and legal protection, administrative officials suspended President Obama’s broad proposals on immigration. They had no choice but to comply with a federal judge’s last-minute ruling. Judge Andrew Hanen, from the Federal District Court for the Southern District of Texas, decided in favor of Texas and the other 25 states who confronted the President’s actions by granting temporary injunctive relief. The temporary injunction will prevent Defendants from implementing the DAPA program. Judge Hanen reasoned that Plaintiffs have satisfied the requirements for standing because the administration’s programs would impose major burdens on them, “the constant influx of illegal immigrants into their respective territories” will drain their own resources, and “will lead to serious domestic security issues directly affecting their citizenry.” Additionally, Judge Hanen found that the administration had not followed the required 90-notice for changing federal rules.
Although Judge Hanen’s decision contradicts our conclusion, this matter is far from being over. President Obama’s administration plans not only to appeal but also seek an emergency order that would place Judge Hanen’s ruling on hold while it is appealed, allowing the administration to implement its immigration plans. The case will go up to the 5th Circuit for appeal and after that it may even make its way to the Supreme Court if granted certiorari.