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Monday, February 06, 2017

Should states always have standing to sue the President? Texas, Washington State, and Standing to Enforce (or Fight) National Immigration Law

In a delicious irony (or at least"turn about as fair play") Washington State is now playing the role against President Trump's Immigration EO that Texas played against President Obama's Deferred Action policies: Both states presumed to enforce federal law against the President's immigration policy. One might ask why state attorneys general have standing to bring such claims in federal court. Indeed, the Department of Justice asked this question at length in its motion for an emergency stay, citing old cases like Mellon v. Massachusetts for the proposition that states lack parens patriae standing to protect the interests of their residents (in Washington's case, its state universities' and private firms' interests in retaining profs, students, and employees with nonimmigrant visa).

Massachusetts v. Mellon is, however, so ...1920s. We have a new Massachusetts case -- Massachusetts v. EPA -- as well as the Fifth Circuit's decision in Texas v. United States. If Massachusetts can litigate to hold back the rising tides of water from its coasts, can Washington State sue to keep open its coasts open to the ebb and flow of immigrants? Judge Robarts pressed Michelle Bennett from DOJ to distinguish Texas v. United States: If Texas suffers an injury from the threat of having to subsidize drivers' licenses for unlawfully present persons, why does not Washington State suffer an Article III injury from the loss of tuition-paying students at the University of Washington University? (The transcript is attached to DOJ's motion, with Judge Robarts' questions at pages 23-24). Bennett responded that state universities' losses were "speculative": The students could apply for a waiver from DHS. Judge Robarts, however, could easily have answered that Texas's injuries were even more speculative: Texas could have simply charged more for licenses or stopped handing them out to unlawfully present persons. (As Chief Justice Roberts noted during oral argument, the feds might have sued on preemption grounds in the latter case -- but it was surely speculative about whether the feds would have won that suit).

In short, looking past hair-splitting of Scholastic proportions, nowadays there always seems to be a plausible argument available for state government standing to enforce, or contest, federal statutes. As Michael Greve noted in a brilliant essay, we live in an age of polarized, presidential federalism: Contests between the President and Congress have been replaced by fights between the President and State AGs from the opposite political party. Is that a bad thing? Or a second-best thing -- the closest way to approximate what old-fashioned Madisonian separation of powers would look like if Congress were not mired in gridlock or smothered by one-party control of both branches?

The answer to the question depends, I suppose, on your preferred model of federalism. If you are attracted by Jessica Bulman-Pozen's model of "partisan federalism," then enlisting state AGs to be regional arms of the national parties will seem desirable, or at least inevitable. If you fear that state governments will be consumed by our national partisan frenzy and ignore distinctively subnational issues that could be a source of Blue-Red compromise, then you will try to discourage state officials from plunging into the national fray.

As I have noted in an earlier post responding to Heather Gerken, I am in the latter camp. State politicians' turning the crank on the national partisan noise machine reduces the tolerance-inducing power of subnational politcs. If every state official is responsive only to interest groups driven by national partisan fights about national law, then, David Schleicher has shown, state elections become "second-order elections" that ruin state politics as a refuge from the national screaming contest. Federalism in such a world merely creates local franchises for the national echo chambers of the Democratic and Republican Parties, because voters will vote for subnational officials based purely on their assessment of national parties. Subnational government presents some great opportunities for Blue-Red cooperation on infrastructure, zoning, municipal services, and even education, but only if state officials can resist the sirens luring them to dive into the abyss of national partisan conflict. Maybe judge-imposed limits on state standing can force those state officials free themselves from an unhealthy obsession with national issues.

One might try to argue, as does Tara Leigh Grove, that there is a distinction between Texas's suing to enforce federal immigration statutes and Washington State's suing to resist them, because the latter'[s resistance might be safeguarding state law. Even if one believed that Grove's distinction bears normative weight (I am undecided), it seems inapplicable here, as none of Washington's distinctively "public" laws or policies seem threatened by Trump's E.O. Of course, Washington's state universities work hard to secure visas for foreign employees and students -- but such interests, indistinguishable from analogous private interests, causes Grove's limit on state standing to disappear, since every federal law will protect some sort of interest that state officials might want to preserve (for instance, fewer people and their drivers' licenses).

In short, my inclinations on state standing cut against my immigration libertarianism, inviting an institutional flip-flop. Thankfully, as an academic with no decision-making power, I am spared that gymnastic indignity.

Posted by Rick Hills on February 6, 2017 at 05:01 AM | Permalink


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