Friday, April 15, 2016

Does Texas have Article III standing to challenge DAPA?

Marty Lederman

The Court will not reach the merits of the DAPA case, United States v. Texas, if it finds that the plaintiff States do not have standing under Article III to challenge the government’s DAPA policy.

The district court found that at least one plaintiff, the State of Texas, had standing to sue.  In the Supreme Court, Texas offers several arguments in support of its standing, most of which would, if credited, dramatically expand the right of states to sue the federal government whenever their elected executives believe the federal government has misconstrued federal law, or whenever such officials believe a federal statute is unconstitutional.  In today’s political climate, that happens constantly.  Texas’s theories of standing, therefore, could result in state standing in many cases where the Court would otherwise hold that ordinary citizens or taxpayers lack standing to sue based upon a “generalized grievance” that the federal government is acting without legal authority.[1]

For example, Texas argues because the DAPA program allegedly will result in an increase in the number of persons living in Texas, Texas should be able to sue in federal court to challenge the policy because of the money the State will have to spend on law enforcement, education, and medical care associated with the new residents.  Even if Texas’s assumptions about population changes were not too speculative to support standing, the basic form of this argument must prove far too much:  The federal government does countless things every day that will foreseeably result in changes to various state populations.  Can it really be the case that the states therefore have standing to sue to challenge each and every one of those federal actions?  As the Solicitor General writes, such a holding “would utterly transform the judicial power.  Federal courts would displace the political process as the preferred forum for policy disputes between individual States and the federal government because a potentially limitless class of federal actions could be said to have incidental effects on a State’s fisc.”

The district court held that Texas had standing on a different, ostensibly narrower theory—namely, a finding that Texas will bear costs to issue drivers’ licenses to DAPA-eligible aliens residing in Texas.  The court of appeals affirmed this basis of Article III standing.

There are several reasons why such “licensing costs” are insufficient to establish Texas’s Article III standing to challenge the lawfulness of the DAPA policy.  The Solicitor General’s briefs, together with the brief filed by Joe Palmore on behalf of Prof. Walter Dellinger, thoroughly address those reasons.  In this post, I’ll focus upon two aspects of the “licensing costs” theory of standing that warrant greater attention:  (i) that Texas itself has already concluded that it will not be injured; and (ii) that if Texas wishes to change its practices in light of DAPA, the Texas legislature and administrative agency have many options about who should receive license subsidies--including strict compliance with Texas's current statutory criterion.

The "licensing costs" theory of standing depends upon a particular feature of Texas law.  The pertinent Texas statute provides that the Texas Department of Public Safety can issue a license to a noncitizen only if the individual presents the Department with “documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States.”  The Texas Department of Public Safety has not construed this requirement literally, however—instead, it issues licenses to many aliens with particular, listed forms of federal documentation, many of which do not “authorize [them] . . . to be in the United States.” 

Whether one looks at the Texas statute or the Agency rules, this much is clear:  Texas has chosen to tether its driver’s license requirement for aliens to the actions of the federal government—in particular, to particular forms of federal documentation, including some that do not establish the criterion stated in the Texas statute (that the alien is “authorize[d] . . . to be in the United States”).  (As I explained in my previous post, and as the government stresses in its reply brief (see pp. 15-17), DHS’s conferral of deferred-action status and work authorization do not authorize the alien in question to be in the United States.)

Most of the DAPA aliens living in Texas would have at least two forms of the documentation that Texas law declares sufficient for issuance of a license:  a document showing that they have deferred-action status, and a document authorizing them to work. 

1.  Texas itself has already concluded that it will not be injured.  Texas argues that issuing licenses to these DAPA aliens will cost Texas money, because Texas charges applicants only $24 for the licenses, which is less than the average monetary cost that Texas bears to administer the issuance of such licenses.  In this sense, Texas “subsidizes” the costs of issuing drivers’ licenses.  The theory of standing that the lower courts adopted is simply that DAPA will cause Texas to grant this “subsidy” to more individuals, thereby allegedly harming the State’s fisc.

By Texas’s own lights, however, issuing the licenses to DAPA aliens, as to all other individuals residing in Texas, at a cost of $24, will not result in injury to the State.  To be sure, Texas (apparently) does not recoup all of its administrative costs from the $24 fee that it charges individuals to receive a license.  In particular, the declaration of a state official--the sole evidentiary basis for Texas's licensing-costs argument--indicates that Texas must hire one new administrative employee for every 800 or so new license applicants, and must expand its facilities when the applicant pool increases by hundreds of thousands. 

But those “costs,” standing alone, do not establish an injury for Article III purposes.  After all, when an individual spends money for something that she wants to buy, she suffers no injury.  Similarly, when a State chooses to spend money for a purpose that it aims to achieve, the State has suffered no injury when it gets the expected bang for its buck.  It is only when the State is required to spend money that it does not wish to spend that it could have a plausible claim of injury. 

And the way to determine whether the State does or does not want to spend that money is to consult the State’s own laws.  In this case, the Texas legislature has, very reasonably, determined—as have many other state legislatures—that the benefits of issuing subsidized licenses to many categories of aliens (and to citizens) outweigh the costs.  Texas could have charged applicants the full administrative costs of issuing licenses; but it chose not to do so.  And presumably it made that decision because it calculated that the benefits of licensing drivers—such as safer roads (the applicants must pass safety, driving and eyesight tests), more drivers with automobile insurance, and increased employment—outweigh the initial monetary costs of administering the licensing system.

That cost/benefit analysis of the Texas legislature presumably would apply to the DAPA deferred-action aliens in exactly the same manner that it applies to all other aliens to whom Texas has long issued drivers’ licenses, including many other aliens who have deferred-action status or who are otherwise not legally authorized to be in the United States.  (Indeed, Texas has much greater reason to give licenses to DAPA aliens than to, e.g., aliens who have applied for adjustment of status or cancellation of removal.  The federal agency routinely denies such applications, and thus those aliens, to whom Texas gives license subsidies without complaint, are much less likely than DAPA aliens to remain in Texas for a long period.)  To be sure, as noted above, Texas submitted evidence that an increase in the number of applicants for licenses results in a corresponding increase in the administrative costs of issuing licenses (e.g., hiring a new administrative employee for every 800 or so additional applicants).  But that is true whenever the number of applicants increases; and in the past Texas has chosen to bear those costs in light of the offsetting benefits, including when the increases have occurred by virtue of Texas’s own decisions to issue licenses to other categories of aliens who are not authorized by federal law to be in the United States.

In its brief, Texas simply represents—with reference to no evidence or authority at all—that the State’s preferred “policy” is to grant “affordable licenses” to all those individuals “who are currently entitled to receive $24 driver’s licenses,” but to deny that same subsidy to DAPA-eligible aliens, in particular, even though that would mean that most of the latter group of aliens would live in Texas, and drive there, without licenses.  The Court has insisted, however, that a plaintiff must demonstrate, not merely assert, injury-in-fact.  And when one looks to Texas law, it does not embody any decision by the State to draw a line between DAPA-eligible aliens and all other aliens who currently receive the $24 licenses. 

Moveover, there’s no evident reason, from Texas’s perspective, why the legislature might choose to draw such a line, given that the DAPA aliens residing in Texas are in all material respects identically situated to those other aliens currently entitled to the license subsidy.  For example, there’s every reason to think that such aliens will continue to reside in Texas for the foreseeable future—indeed, much longer than many other aliens to whom Texas issues licenses, such as those who have applied for adjustment of status or cancellation of removal—and Texas thus has every reason to want them to pass a driver’s test, obtain auto insurance, etc. 

Far from drawing the distinctions among deferred-action aliens that Texas’s counsel describes, the Texas legislature and its Department of Public Safety have reasonably concluded that certain forms of federal documentation should be the touchstone for aliens’ eligibility for the $24 licenses, and (according to the state agency) those qualifying documents include those demonstrating that DHS has deferred removal, and those demonstrating that the Secretary has authorized the alien to work.  Contrary to the unadorned and unsupported statement in Texas’s brief, that is the decision Texas has made, presumably reflecting its judgment as to the pertinent balance of costs and benefits.

In sum, as the brief for Professor Walter Dellinger puts the point:  “Texas has offered no reason, let alone evidence, why the balance of costs and offsetting benefits will be any different for people newly eligible for licenses because of the [DAPA] Guidance than for all of the other deferred-action recipients whom Texas has long subsidized. . . . It has therefore failed to demonstrate a concrete injury.”

2.  The Texas legislature has many options about who should receive license subsidies--including strict compliance with its current statutiory criterion.    It is theoretically possible the Texas legislature might determine that, for some reason, the new DAPA policy would cause a material change in its long-established cost/benefit analysis, such that the costs of issuing $24 licenses to aliens with the requisite documentation will then exceed the benefits in a way they currently do not.  If the Texas legislature were to make such a calculation, however, it could then amend its law to draw different distinctions among license applicants, or to raise the fee for some or all applicants.  As the federal government stresses, Texas is not required to tether its own law to federal practices:  It chose to do so.  Therefore, to the extent that State choice to shadow federal practice would be the basis of any hypothetical injury suffered by Texas, the injury would be self-generated, and should not support Article III standing, given that the legislature could untether its criteria from the particular federal practices on which it has thus far relied.

In response to this argument, Texas insists that federal law would prevent the Texas legislature from drawing the new line that the brief assumes the legislature would choose to draw.  There are at least two problems with Texas’s argument, however.

First, it’s entirely speculative:  Texas’s lawyers do not know whether the state legislature would conclude that DAPA alters the cost-benefit analysis that has long governed Texas’s licensing policy, or that the legislature would choose to draw any new line at all, let alone any specific line.  (Perhaps, for example, it would marginally raise the fee for all licensees.)  Thus, as the federal Solicitor General writes in his reply brief, “it is impossible to know what change, if any, the Texas legislature or DPS might make in the future, what the basis for any such change might be, or whether federal law would preempt that choice.”

Second, there are plenty of criteria the Texas legislature could employ if it decided that it needed to change its longstanding policy in light of new costs resulting from DAPA.  To be sure, federal constitutional and statutory law would prevent the legislature from drawing certain distinctions.  For example, it would presumptively violate equal protection for Texas to discriminate against, say, Mexican aliens, in particular.  And, as the Ninth Circuit’s decision last week in Arizona Dream Act Coalition v. Brewer explains, the legislature’s distinctions among categories of aliens must be rational, and tied to legitimate state interests.  (The court held that Arizona could not deny licenses to (all) deferred action recipients and at the same time issue licenses to aliens who have applied for adjustment of status and aliens who have applied for cancellation of removal, because Arizona had not cited any plausible reason, from its perspective, to distinguish among these three categories of aliens, all of whom are not authorized to be in the United States, and all of whom appear to be similarly situated from the perspective of Arizona’s state interests.) 

That would still leave the Texas legislature with plenty of options, however, as long as it has some rational basis for drawing the lines that it chooses.  The federal government offers some examples of the many legally available options at page 26 of its opening brief, such as a marginal increase in the fee for licenses charged to all “temporary visitors,” including aliens with deferred action status.  I’d like to focus here, however, on one other option that the government does not mention:  Texas could choose to apply its current statutory criterion by its terms, which would not require any statutory amendment at all.

Recall that the relevant Texas statute provides that the Texas Department of Public Safety can issue a license to a noncitizen only if the individual presents the Department with “documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States.”  The Texas DPS has not construed this statute literally:  It accepts many forms of federal documentation that do not authorize aliens “to be in the United States,” including even some for aliens who the federal government does not deem to be “lawfully present” for purposes of Social Security and Medicare benefits (see my earlier post), such as aliens in removal or deportation proceedings (who would actually be detained by DHS if they had not received bond), as well as aliens released on an order of supervision following a final order of removal from the United States.  

If the Texas legislature tomorrow amended it statute to clarify that the Texas DPS can issue licenses only to aliens who actually have federal documentation authorizing them to “be in the United States”—such as a “green card” or a visa—or if DPS itself decided to apply the current Texas statute in such a manner, that choice by the State would be perfectly consistent with federal law.  Such a decision would mean, of course, that Texas would stop issuing licenses to many aliens who currently receive them, all of whom are not authorized by the federal government “be in the United States.”  For that reason, it is very doubtful the Texas legislature or agency would make any such change—for they have long decided, quite reasonably, that it’s better for many such aliens, especially those who are unlikely to leave the United States, to have drivers licenses rather than to be without them, and it’s not obvious why the legislature or agency would now repudiate that reasonable judgment. 

Nevertheless, that option—i.e., adherence to the letter of its current statue—is open to Texas, if and when it might decide that the DAPA policy (or any other development) fundamentally alters the value of issuing $24 licenses to aliens who are not authorized to be in the United States.  And because it has such an option of applying the letter of its current law, any “self-generated” harms that Texas would hypothetically suffer by virtue of its current policy decision to go beyond the letter of its law cannot support Texas’s Article III standing to challenge the DAPA policy.[2]

[1] Indeed, if I understand his argument correctly, Professor Ernie Young argues that this would be a virtue of recognizing broad state standing to challenge actions of the federal government—namely, that it would circumvent the restrictions the Court has imposed on individuals to sue based upon what he rightly calls “diffuse public interests.”  Young acknowledges (p.27) that “the natural persons arguably injured by DAPA—the voters whose representatives voted for the federal statutes that DAPA arguably transgresses, or the federal and state taxpayers whose resources will be diverted to pay DAPA’s significant expenses—lack individual standing under settled law.”  His proposed “solution” is to allow the States “to represent the diffuse public interest of their citizens.”

[2] Another possible obstacle to Article III standing is also noteworthy.  The Solicitor General argues (see pp. 5-6 of the U.S. reply brief) that Texas has failed to show that the injunction it sought and obtained will even have any effect upon its drivers’ license practices.  Texas does not object to the Secretary giving “deferred action” to DAPA-qualified aliens (that is, notifying those aliens of a non-binding and temporary reprieve from removal), and it concedes (p.39 of its brief) that, even with the injunction in place, the Secretary can issue “low-priority” identification cards to all of those DAPA-qualified aliens residing in Texas, indicating that they will not be removed.  That, in and of itself, is a deferred action “documentation with an alien number” that will qualify the aliens in question for the Texas license subsidy under Texas law (see page 4 of this Texas document), even if they were not authorized to work or to receive Social Security benefits.  As the Solicitor General explains, this means that “Texas therefore cannot meet Article III’s redressability requirement” because “[t]he same individuals would be eligible for the same license at the same price— with or without Social Security, tolling of unlawful presence, or work authorization.”

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