Sometimes a gridlocked Congress means that an energized President and ambitious state lawmakers compete to solve the Nation’s social problems. But this competition may not make for innovative solutions. Instead, it may make more for more gridlock.
Consider Texas v. United States. There a cadre of states have sued to stop President Obama’s deferred action immigration program, which the Administration adopted in the face of Congress’s failure to act on immigration reform. Deferred action, Texas and the other states contend, isn’t within the Executive’s enforcement discretion, at least on the scale of the DAPA program. A federal district court and the Fifth Circuit apparently agree with the states. I think the Administration’s program is lawful, but there are many other interesting things to say about this state litigation against presidential administration.
Such as, how do the states have standing? Standing requires an injury in fact within the zone of interests to be protected by the relevant federal law. Elsewhere I’ve argued that state standing should be broader in some respects and narrower in other respects than it is under current law. One reason to broaden state standing in some cases has to do with protecting federalism within a world of overlapping federal and state authority and expansive federal administration. But even within that world I don’t think Texas has standing to challenge the Administration’s program.
There’s a line of cases beginning with Reconstruction in which the federal courts have been reluctant to hear state suits against federal action. Stated in terms of standing, these cases hold that states do not have injuries in fact simply because they disagree with something the federal government’s done to regulate individuals.
Does Texas have an injury in fact within the zone of interests to be protected by federal law? According to the Fifth Circuit, which declined to stay the district court’s injunction of the executive order, Texas’s suit is cognizable much as Massachusetts’ suit was cognizable in Massachusetts v. EPA. In that case the court of appeals held that Massachusetts had standing to sue to force EPA to consider regulating greenhouse gases, citing both “special solicitude” for the states and the Bay State’s receding coastline. What’s good for the goose is good for the gander, or, more precisely, what’s good for progressives is good for conservatives. The court of appeals held that Texas has standing because it may incur costs in issuing driver’s licenses to DAPA beneficiaries. Mass v. EPA, meet Texas v. United States?
Not so fast. Texas claims an injury in fact based upon a potential increase in the costs of governing the state. Stated thus, the claimed injury — indeed, the whole standing inquiry in the case — seems a little silly. But there’s a strong separation of powers argument favoring Texas, namely, that state litigation against presidential administration reinforces the separation of powers by limiting presidential overreach. Or, as Jessica Bulman-Pozen puts it, federalism is a safeguard of the separation of powers.
Still, standing’s a safeguard of the separation of powers too, if we’re to believe the Court. To evaluate Texas’s standing, it is useful to think about the different types of interests a state may raise to show standing in federal court. The two most relevant to Texas v. United States are what I’ve called “corporate” and “institutional” interests. Like a private corporation, a state may claim a property or a contract right as the basis for standing. Unlike a private corporation, a state may also claim an institutional interest in an intergovernmental immunity or its authority to regulate.
Which of these does Texas claim as the basis for standing? Texas is complaining about having to spend money on issuing driver’s licenses. That feels like a corporate interest. As the Fifth Circuit put it, “a financial loss generally constitutes an injury.” Voilá.
But Texas isn’t claiming a corporate interest, not really. (Set aside whether this interest is within the zone of interests of federal immigration law. I’m not sure it is.) Texas is complaining about the costs of running the government. It suffers that injury in its institutional capacity as a state. The question, then, is whether a state has standing whenever it alleges the possibility that a federal action will increase the cost of governing.
If Texas has standing, then, as Simon Lazarus put it at Balkinization, “government programs at all levels could be threatened with gridlock.” That’s because states and the federal government are always taking each other’s actions into account when making policy, setting budgets, determining costs, and so on. These choices aren’t injuries in fact. They’re features of a federal system.
Partisan battles in Congress may become partisan battles in state litigation against presidential administration. Sometimes states have standing to wage these battles in federal court. But sometimes gridlock should stop with Congress.