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.
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.”