Excerpted From: Jennifer Lee Koh, The Rise of the ‘Immigrant-as-injury’ Theory of State Standing, 72 American University Law Review 885 (January, 2023) (332 Footnotes) (Full Document)


JenniferLeeKohnWhen President Joseph R. Biden took office, the administration sought to fulfill campaign promises to reverse various immigration policies enacted by his predecessor. Deferred Action for Childhood Arrivals (DACA), the program providing temporary work permits and reprieves from deportation for young people brought to the United States as children, would return. Construction of the border wall at the United States-Mexico border would cease. The immigration enforcement system would rely on priorities in lieu of every undocumented person fearing the risk of deportation. A humane system with fair processing of asylum seekers at the border would replace policies aimed at mass physical expulsion. Of the various announcements, the 100-day moratorium on deportations resonated as a particular victory by sectors of the immigrants' rights movement, for whom the deportation moratorium reflected a bold message regarding the potential reconfiguration of the goals of the federal immigration system.

But as administrative law scholars well know, changing agency policy often requires more than Presidential transition alone. The moratorium on deportations never went into effect, due to a federal court order in a lawsuit filed by the State of Texas. In subsequent months, the Biden Administration issued revised memoranda on enforcement priorities directing the arrest, detention, and deportation decisions of frontline immigration officers, which Texas and other states also challenged. The lower federal courts have split on the states' challenges, with the U.S. Court of Appeals for the Fifth Circuit upholding a Texas district court's vacatur of the enforcement priorities guidance and the U.S. Court of Appeals for the Sixth Circuit  reversing an Ohio district court's injunction of the same. The question of whether the states even have standing to bring the lawsuits has produced split views between the federal appeals courts as well. The Supreme Court is considering the states' challenge to the administration's enforcement priorities during the 2022-23 term, and the Court's review will address the threshold question of whether the plaintiff states have standing to bring the lawsuit at all.

The Court's long overdue intervention on the state standing question is poised to have widespread consequences throughout the administrative state, with outsized influence in the immigration context. In addition to the enforcement priorities, during the first two years of the Biden presidency, federal court orders prevented several other major executive immigration policies from going into effect. The processing of new applications for DACA has not gone forward as a result of a district court order upheld by the Fifth Circuit. Two controversial border policies enacted by the Trump Administration that severely restricted the ability to seek asylum while exacting high human costs, the Migrant Protection Protocols (“MPP” or “Remain in Mexico”) and Title 42 expulsions, likewise failed to promptly end.  As this Article goes to publication, the future of Title 42 continues to fluctuate despite federal efforts to terminate the program and concerns about the legality of the program itself. In the final week of 2022, the Supreme Court granted the request of nineteen states to stay a lower court order vacating Tide 42, and granted certiorari with respect to the states' ability to intervene in litigation brought by private plaintiffs against the border program--but then removed the oral argument from its calendar weeks later.

That a single or small handful of states could effectively control nationwide immigration policy through the courts seems to contradict baseline assumptions long at the heart of immigration law. After all, the courts have for centuries adhered to the principle that immigration law's proximity to foreign affairs and national security, as well as its deep connection to national sovereignty, place it beyond the reach of judicial review--often to the great detriment of immigrants. The primary authority of the federal political branches over immigration matters constitutes another foundational principle. Despite the strength of that federal authority, states nonetheless have significant room to exert influence, flexibility, resistance, and experimentation on immigration. But established balances of power--both as a matter of federalism and the separation of powers--are arguably upended by a system in which individual states and federal courts act as final arbiters of federal immigration policy.

The explosion of lawsuits filed by states against the federal government over the executive's enforcement of federal law is, of course, part of a broader cluster of separation of powers and administrative law questions making their way through the courts and not limited to immigration. The Supreme Court's 2007 decision in Massachusetts v. EPA, in which the Court suggested in a Clean Air Act  case that “States are not normal litigants for the purposes of invoking federal jurisdiction,” ushered in a new era of state standing. For over a decade since Massachusetts, states have sued the federal government with varying levels of success in a wide array of subject matter contexts ranging from the environment, health care, gender equality, President Trump's business practices, and, time and again, over multiple policies involving immigration law or deeply affecting the rights and interests of noncitizens. One might wonder whether any limits on state standing should or do exist.

But the standing questions currently before the Supreme Court in United States v. Texas, the enforcement priorities litigation, have taken on a specific and particular form, and their history is worth recalling. The arguments find their origins in--and evaded resolution during--another lawsuit involving the federal government and the State of Texas. That case (“Texas (DAPA)”) took place in the mid-2010s and involved Texas's lawsuit against the Obama Administration over Deferred Action for Parental Accountability (DAPA), an immigration program that would have extended work authorization and protection from deportation to the parents of U.S. citizens and lawful permanent residents. Prior to Texas (DAPA), however, state efforts to use litigation *894 against federal immigration policy, especially raising arguments about the costs borne by the states resulting from lax federal enforcement, had failed on multiple occasions--including for standing reasons. Nonetheless, in Texas (DAPA), the Fifth Circuit and district court found that the State of Texas had standing to sue based on financial injuries it would incur as a result of DAPA recipients' driver license applications.

In 2015, the Supreme Court granted certiorari on the standing issue as well as the substantive claims in Texas (DAPA). On the standing question, Judge King's dissent in Texas (DAPA) warned that the Fifth Circuit's standing analysis constituted a “breathtaking expansion of state standing [that] would inject the courts into far more federal-state disputes and review of the political branches,” suffered from having “no principled limit,” and would unleash the proverbial floodgates to “limitless state intrusion into exclusively federal matters.” But the Court evaded a full decision in Texas (DAPA). Despite having been fully briefed and argued, with dozens of amicus briefs on both sides and potential impact on up to four million people, the Court failed to produce an opinion in the case. Instead, in May 2016, with the stalled nomination of then-Judge Merrick Garland, an eight-member Supreme Court affirmed the Fifth Circuit's decision with a 4-4 vote and a single sentence per curiam order. The election of Donald Trump in November 2016 effectively diffused the litigation over the merits of DAPA, given the widely shared expectation that President Trump would withdraw the DAPA program. While states filed extensive *895 litigation against Trump Administration immigration policies, standing doctrine did not shift in significant ways to accommodate those lawsuits, which were often accompanied by actions brought by non-state plaintiffs who also satisfied standing requirements.

Less than a decade after the Supreme Court's nonintervention in Texas (DAPA), lower courts--especially in the Fifth Circuit--have steadily, and in multiple immigration cases, developed a standing doctrine that replicates and expands the standing framework set forth in Texas (DAPA), with extraordinary impact in the immigration context. This developing doctrine--what this Article refers to as the “immigrant-as-injury” standing doctrine--locates a state's injury-in-fact for standing purposes in the financial costs caused by the existence of certain immigrants (sometimes, but not necessarily, undocumented individuals) within their state boundaries. The states have alleged costs associated with a range of state services, especially the anticipated provision of driver licenses, public school education for children, emergency medical costs, and incarceration and other extensions of the criminal legal system. The immigrant-as-injury standing doctrine rejects consideration of the benefits that might result from the presence of noncitizens or costs of immigration enforcement. Moreover, the analysis relies on preemption being extended to the federal government in the immigration context, as well as the few Equal Protection-based constitutional rights of immigrants, as a rationale for state standing by presenting a narrative in which standing is necessary to counteract the states' relative powerlessness on immigration policy. In doing so, the doctrine broadens states' claims to possess quasi-sovereign interests due to the alleged harm caused by immigrants, thereby enabling states to bolster their standing claims through assertions of special solicitude and parens patriae (“parent of the people”) standing. The current threads of the immigrant-as-injury standing doctrine emerge from a common spool: an assertion that noncitizens who could be deported or detained, but are present in a state's jurisdiction, constitute costs--and thus injuries--to the states, and that the costs associated with their existence, however slight, *896 satisfies the demands of the standing requirement. In other words, immigrants are the injuries.

The legal scholarship has not yet fully explored the rapid rise of the immigrant-as-injury doctrine in the current era. Standing doctrine generally remains relatively absent in immigration law scholarship. In fact, noncitizens' inability to assert standing to directly challenge immigration laws is often a foregone conclusion because, as immigration scholar Adam Cox has explained, the plenary power doctrine already deprives noncitizens of the ability to seek judicial review in many situations.

Given the degree to which standing doctrine has become increasingly fragmented under the Roberts Court, law professor Richard Fallon has called on scholars to focus on the application of standing doctrine in specific contexts and subject matter areas. This Article responds to that call and thus focuses its attention on the evolution of state standing in the immigration context.

With respect to state standing, scholars have offered thoughtful, politically neutral, and trans-substantive frameworks, with the bulk of the literature focused on the structural relationships embedded in federalism and separation of powers debates. However critical those *897 structural debates remain, they arguably place concerns about humanity, equity, and subordination on the periphery. But standing implicates questions of access and power. Indeed, scholars have long criticized general standing doctrine-- separate from the question of state standing--for facilitating politicization and racial inequality. The current state standing doctrine would benefit from rigorous scrutiny based on similar values. Indeed, courts have invoked anti-subordination and equality principles, as well as concerns about politicization, when resolving disputes involving the allocation of governmental power in immigration cases in the past.

This Article seeks to fill these gaps in the immigration law and standing literature, and proceeds as follows. Part I describes how the immigrant-as-injury argument came to gain traction in the federal courts. After contextualizing the rules governing state standing, it shows how attempts by states to frame noncitizens as costs failed in a number of litigation efforts launched by states prior to and during parts of the Obama Administration. It then explains how the state standing terrain began to shift with Texas (DAPA) and describes the evolution of state lawsuits during the Trump era. Part II traces how the lower courts and arguments advanced by the State of Texas in the Fifth *898 Circuit, in particular, have built upon the standing analysis in Texas (DAPA) to develop the immigrant-as-injury theory of standing.

Part III critiques the immigrant-as-injury standing doctrine on anti-subordination, federalism, and democratic accountability grounds. First, the doctrine imbues contested assumptions about migrant humanity with legal significance and forecloses any opportunity to challenge the conclusion that the existence of immigrants constitutes injuries. In doing so, the doctrine furthers the subordination of immigrants in the law and stunts discourse about migration in legal doctrine. Second, the theory of state disempowerment relies on blunt and misstated assumptions about the nature of federal power in the immigration sphere. Third, familiar but growing concerns about political polarization in the courts and society exacerbate concerns with the immigrant-as-injury standing doctrine. These three observations work independently and in combination with each other to advance a standing theory that casts states as disempowered entities for whom access to the federal courts is necessary even if unconstrained, but that in reality has an acutely disempowering--and dehumanizing--impact on those who stand to lose the most by the lawsuits.

In the Conclusion, the Article suggests that the Supreme Court apply an anti-solicitude principle to the immigrant-as-injury doctrine. When states seek to premise standing on injuries originating in the existence of people through broad invocations to federal preemption under conditions of intense political polarization, they should meet higher--not lower--standards of injury, causation, and redressability to establish Article III standing. Along similar lines, the Court should limit the ability of states to assert special solicitude and parens patriae standing based on the notion that immigrant existence damages states' quasi-sovereign interests. The Article also concludes with the question of what the emergence of the immigrant-as-injury doctrine tells us about the state of immigration law today, irrespective of the Court's ultimate assessment of the standing doctrine.

[. . .]

This Article has highlighted the rise of the immigrant-as-injury standing doctrine, which the Supreme Court will evaluate in the upcoming term in various states' challenge to the Biden Administration's immigration enforcement priorities. This doctrine has roots in Texas' litigation against DAPA during the Obama era, particularly its treatment of immigrants as injuries due to the costs that states would incur in the form of driver license applications. The immigrant-as-injury theory of state standing has expanded rapidly over the first two years of the Biden Administration, growing to include claims of injury due to the cost of providing public school education, emergency medical care, and criminal law enforcement. The states have broadened the definition of quasi-sovereign interests, thereby bolstering their claims to special solicitude and to parens patriae standing. At bottom, the states' standing theory rests on the assumption that immigrants are injuries.

In critiquing the evolution of state standing arguments in the immigration context, this Article does not seek to repudiate state standing altogether. In light of the dehumanizing and subordinating effect of the immigrant-as-standing theory, the misconstrued framing of immigration federalism principles, and political polarization at stake, the Court should reject the immigrant-as-injury standing doctrine. The Court can do so by applying anti-solicitude principles to this particular doctrine, such that states must meet higher--not lower--elements of the traditional Article III requirements of injury, causation, and redressability to establish standing. Along similar lines, the Court should refuse to extend special solicitude and parens patriae standing based on the notion that immigrant existence damages states' quasi-sovereign interests. States might still receive the benefit of special solicitude when they serve as plaintiffs in litigation against federal immigration policy so long as the executive action causes cognizable injury that is distinct from the mere existence of immigrants within the state. The presence of private plaintiffs who can demonstrate injury, too, might facilitate the ability of a state to establish standing. Locating a private plaintiff capable of establishing standing because a given *947 federal policy is likely to increase the number of immigrants in a state may, absent other showings of injury, face significant obstacles.

Irrespective of how the Court ultimately rules, the evolution and influence of the immigrant-as-injury doctrine in litigation against the Biden Administration reveals several insights about the immigration system today. Two brief observations follow, building upon the critiques raised above. First, regarding migrant humanity and discourse over immigration, the disconnect between debates taking place before the judiciary and those unfolding in social movements across the country for change may be growing starker. While the immigrant-as-injury doctrine treats immigrant existence as a cost, movements for immigrant justice in the United States are arguably shifting away from seeking to convince broad sectors of the American public that immigrants deserve fair treatment and humanity or advancing incremental change to the legal frameworks governing immigration. Instead, the frontlines of the immigrants' rights movement have increasingly gravitated towards a deeper questioning of the legitimacy of the immigration enforcement itself, drawing upon abolitionist frameworks. This is by no means a new development. The federal courts have long been slow to reflect social change, and legal claims often fail to resonate with visions of justice or equality. Perhaps the federal courts will increasingly serve as sites of defensive work from an immigrant justice perspective.

Second, with respect to immigration federalism and political polarization, a new era of right-wing activism around immigration appears to be underway. To be clear, state assertions of influence over federal immigration policy have long existed. But the rise of movements for right-wing nationalism across the country has uncovered intensified levels of activism on the part of state leaders seeking to deepen political hostility against immigrants. In addition to expanding state standing theories in litigation, the State of Texas has pursued enhanced criminal trespassing charges against migrants along *948 the Southern border through Operation Lonestar. In August and September 2022, officials from Texas and Florida attracted national attention after placing hundreds of migrants on buses from border areas into cities like New York, Washington, D.C., and Martha's Vineyard, reportedly without necessarily providing notice or obtaining consent. It is possible that the states' efforts simply mimic past efforts by states to critique and influence the federal government. It seems, however, that a greater disregard for humanity and a quicker inclination to demonize immigrants, particularly nonwhite immigrants, may be afoot.

Numerous challenges lie ahead for the country in developing immigration policies during a time of national division and disagreement. Envisioning humane and workable immigration policies for the future no doubt requires a balance of competing and difficult considerations. This Article holds out hope that those solutions can arise out of common ground regarding baseline considerations of humanity.

Associate Professor of Law, and Co-Director of Nootbaar Institute on Law, Religion & Ethics, Pepperdine Caruso School of Law. J.D., Columbia Law School; B.A., Yale University.