Yesterday, I wrote about an interesting twist in immigration litigation: the Government argued that the states lacked standing to sue over DACA based on the Supreme Court’s decision that the doctors in FDA v. Alliance for Hippocratic Medicine lacked standing to sue over the anti-abortion drug, saying that their injuries were too speculative. The Court likened their lawsuit to teachers in border states suing over immigration policy leading to overcrowded classrooms.

Texas, of course, fired back. The Court’s ruling on standing in the Mifepristone case, they argued, doesn’t preclude state standing to challenge DACA. Unlike the doctors in Alliance, they argue, the state’s injuries from DACA are direct, and that (maybe) as a sovereign state they have “stickier” standing than private actors like doctors or teachers. Moreover, they say, DACA goes beyond mere non-enforcement of law (an executive prerogative given limited resources) and extends benefits. You can read Texas’s response here.

State Standing since 2007

It’s surprising, perhaps, that the unanimous Court in Alliance — in a decision written by Justice Kavanaugh, not exactly the staunchest defender of immigration rights — evoked immigration in border states to reject the doctor-plaintiffs’ argument.

If it were to credit the plaintiffs’ argument for “doctor standing,” the Court held, the principle would not be limitable. Among other examples, “[t]eachers in border states could sue to challenge allegedly lax immigration policies that lead to overcrowded classrooms.”

State Standing since 2007

I don’t expect the Fifth Circuit or the Supreme Court to take the government’s standing argument seriously. Since the Court’s 2007 decision in Massachusetts v. EPA that the states had standing to sue EPA for failure to make findings under the Clean Air Act, the Court has held that states have broader standing rights than individuals.

Maybe states shouldn’t have standing at all. It creates a crazy tug-of-war between the federal government and the states that’s really a stand-in for political differences. Nowhere is that more clear than on immigration (though environmental regulation, the context of Massachusetts v. EPA, comes close). When the Trump administration announced a new border policy, nonprofits representing individuals directly affected by the policies would sue. When the Biden administration enacts a more lenient policy, there’s no obvious individual plaintiff — no one who can clearly stand up and say that they are harmed by the policy. So opponents look to the states.

Maybe that’s federalism at work. Or maybe it’s allowing the states to thwart a federal function.

Either way, it’s probably not going away.