In United States v. Texas, the Supreme Court, by an equally divided vote of four to four, affirmed the decision of the U.S. Fifth Circuit Court of Appeals that the State of Texas had Article III standing to challenge the Department of Homeland Security’s (“DHS”) directive establishing a Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program to grant lawful immigration status to millions of undocumented immigrants. A serious question is whether state standing in this case will open the floodgates to allow states to challenge virtually every federal executive action. On the other hand, state challenges are arguably appropriate in a federalist system to oppose expansive national government overreaching that depreciates the rights of states and their citizens.
In its 2007 decision Massachusetts v. EPA, the Court endorsed the principle that states deserve special solicitude for standing because of their quasi-sovereign or parens patriae interest in protecting their citizens, and because they abandoned their sovereign rights to join a federal nation-state. The petitioner federal government tried to distinguish the Texas litigation from the prior Massachusetts decision. In particular, the federal government argued that Texas grieved of a self-inflicted injury because it could have raised its fees on driver’s licenses to avoid incurring costs from issuing licenses to immigrants covered by DAPA. A majority of the Fifth Circuit panel, however, relied upon the Massachusetts decision’s “special solicitude” for state standing in concluding that Texas had an injury sufficient by standing from having to issue driver’s licenses, although one judge dissented. Nevertheless, the Fifth Circuit in Texas suggested several legal doctrines that would limit the number of state suits and, thus, avoid allowing a flood of state suits against the U.S. government.
This Article considers several theories relating to state standing and then proposes a state-standing approach based upon both the Massachusetts and Texas decisions. In light of these two decisions, there is a federalism argument for allowing expansive state standing to address injuries to a state’s quasi-sovereign and parens patriae interests. Additionally, there is a conservative or libertarian argument for broad state standing to limit excessive national or executive authority. This Article, however, agrees with the Fifth Circuit’s approach in Texas—allowing state standing in suits where there is a substantial injury to a state’s interest but using other legal doctrines to prevent a deluge of state suits on every conceivable issue.
The full text of this Article is available to download as a PDF.