Standing in the DAPA Case

Thank you to Howard and to the PrawfsBlawg community for the opportunity to blog here again.  I'll start with some thoughts on standing in United States v. Texas, the DAPA case scheduled for argument on April 18th.  (I previously blogged about this question over at Notice & Comment when the case was before the Fifth Circuit.)  The United States has filed its merits brief, which nicely illustrates that questions of government standing can't be answered by Article III alone.

The Solicitor General's brief begins (at 18) its discussion of standing by dutifully reciting the “‘essential and unchanging’ Article III requirements” of an injury in fact, causation, and redressability. Before long, however, we get to the meat of the argument, which has nothing to do with Article III and everything to do with the constitutional structure of nationalism and immigration policy: “The Constitution reserves exclusive authority to the National Government to make and enforce immigration policy. The Nation requires uniform policies that may depart from what some individual States might prefer. Allowing claims like those respondents press here to proceed would upend the constitutional design by enmeshing the courts in all manner of disputes between the federal government and a State, or competing factions of States, over immigration policy.” (Br. 19) Again and again the Solicitor General returns to these “structural principles” (Br. 23 n.6) and the “complex[ity of] debates over immigration policy (Br. 12) to argue that the states do not have standing under the Constitution to challenge DAPA.

Questions of government standing cannot be answered simply by peering into Article III’s “cases” and “controversies” requirement. What’s required are normative judgments about contested constitutional and prudential questions, a point that I’ve made here and here. As Tara Leigh Grove has discussed in her forthcoming and important article on state standing, “background principles” will do much of the work in government standing cases whether we’re explicit about them or not.

One question is whether standing doctrine should depend upon contestable judgments about policy and constitutional structure. In an early and now-classic critique of modern standing jurisprudence, Gene Nichol argued that standing doctrine’s being asked to do too much. More recently, Heather Elliot’s argued it hasn’t gotten better since Nichol’s critique.

I’ve been sympathetic to the “powerful challenge” that standing minimalism poses to those of us who think standing doctrine should incorporate normative judgments about structure and enforcement design. But I think there’s a class of cases, of which United States v. Texas is one, that remind us why these judgments come to the fore when a government seeks standing to put federal judicial power in motion.