The Standing-Remedy Nexus in Texas v. United States


The new federal district court decision on immigration is getting lots of attention. The decision is from the U.S. District Court for the Southern District of Texas, and it holds that the Deferred Action for Childhood Arrivals (DACA) program is unlawful. As a remedy, the court vacates "[t]he DACA Memorandum and the DACA program" (p. 76) and remands to the agency with respect to new applicants, and it remands without vacatur with respect to those already in the program. The court also grants a permanent injunction against granting new DACA applications. For an initial summary, here is co-blogger Jonathan Adler. The substantive questions are outside my expertise, but a few thoughts on standing and remedies:

  1. The APA remedial analysis is very thin and is in the conclusion. The court is using the language of vacatur and doesn't tackle head-on the national injunction question (more on that in a moment). And under the APA the same question has to be answered anyway–whether a court should be seen as acting directly on a rule (vacating, or slicing and dicing and vacating), or whether that conception of judicial remedies is foreign to the judicial power (cf., e.g., Jonathan Mitchell on the "erasure fallacy"). How to think about this has been an issue lurking in the shadows in a lot of the Court's recent cases, and it's eventually going to emerge. In the APA context, I think the gold standard for analysis on what it means for courts to "set aside" rules are John Harrison's arguments made here. These issues aren't addressed in the district court's opinion (perhaps because it's constrained by circuit court precedent, but the Supreme Court is not).
  2. The permanent injunction, issued separately by the court, is available here. It works through the eBay factors quite quickly (e.g., concluding that only the cessation of the program would end the harm to the states, which is not obvious, given that most of the alleged injuries are monetary and could in theory be covered by a compensated injunction in the style of Spur Industries–but that may not have been argued to the court). The court was right, however, to think explicitly about the equities and not to think of injunctions as all or nothing. Here the court didn't think its injunctive remedy had to be identical to its analysis of the underlying legal rights and wrongs–hence the differentiation between people currently covered by DACA and new applicants. (For more on why injunctions shouldn't be thought of as reproducing the contours of the underlying legal right–a misrepresentation of the injunction that has been influential because of One View of the Cathedral, you can read Remedies, Meet Economics; Economics, Meet Remedies.)
  3. A lacuna in the court's discussion of the injunction: the court never says why it is granting a national injunction.
  4. The standing analysis aptly shows how incompatible Massachusetts v. EPA is with Massachusetts v. Mellon. "Special solicitude" is a wrecking ball for standing analysis, as can be seen in the meager and attenuated injuries asserted by the states (insisting that the federal government follow federal law, labor market analysis that just counts costs of immigrants and not benefits, etc). This is not to say that there aren't some alleged injuries, including additional spending by the states, but the court never addresses the disconnect between the alleged injuries and the scope of the granted relief. Yet this is a standard part of the Supreme Court's analysis for both Article III standing and equitable standing (see, e.g., Lyons). And this failing is pervasive in the national injunction cases, no matter who is president–remember the national injunction against the Obama administration by the same court in 2015 that rested in part on cost to Texas of printing driver's licenses, and remember the travel ban case out of Washington, where the court enjoined enforcement of the Trump administration's policy as to everyone because of, among other things, an inchoate reduction in sales tax receipts. These small financial costs to the states are incommensurable with the scope and intrusiveness of the requested and granted remedies.
  5. Speaking of Massachusetts v. Mellon, the court described what it calls "the Mellon bar," and implies that it is a special rule for statutes that doesn't apply to agency action (page 25 & n.20). But that misconceives the argument by the Court in Mellon. The Court in that case is taking a position on the judicial power–the power of the Article III courts not to act on laws, but rather to protect parties against the enforcement of those laws by putting up an equitable shield that protects them. Sutherland's opinion for the Court is about the judicial power and traditional equity, not about a special status for statutes. There's no reason to think a different conception of the judicial power suddenly comes into play once we're talking about rules instead of statutes.

(I revised this post after receiving a copy of the injunction–h/t Josh Blackman.)

NEXT: No "Right of a Ticket-Holder to See an 'Honest' Game," Free of Astros Sign-Stealing

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  1. I remember when the libs got all indigent when Trump said something to the effect of questioning why a federal judge on an island in the middle of the Pacific can issue a national injunction gumming up the entire DC bureaucracy. We got a full news cycle of the finger waging and moral lecturing.

    Now, low and behold, the same talking heads are questioning the legitimacy of this District Court because it is in a backwards redneck state. I would wonder if these people had any shame whatsoever, but already know the answer to that….

    1. The problem with these hypocrisy claims when you’re on the opposite side of both arguments is that it mostly shows that you’re a hypocrite too.

    2. The lacuna in the decision is the absence of Article I Section 1, giving all lawmaking powers to the Congress. Unless affirmed by Congress, all executive orders , executive regulations, and judicial review decisions are void.

  2. Sometimes, rarely, typographic distinctions matter a lot. Sometimes the question of which dash to choose determines the meaning of what you say.

    The headline of the OP is an example. The question is whether to use a hyphen or an n-dash in, “Standing [?] Remedy.” If you use the hyphen, “Standing-Remedy,” then the reading tends to be, a remedy used as a default, a standard, the remedy ready-to-hand. If you use an n-dash, “Standing–Remedy,” the reading is usually that the two terms involve joint interpretative valence, in a situation partaking of alternative values, or a range of values, under circumstances which gives both terms somewhat equal status. A classic readily understood example of the second instance is, “Labor–Management Relations.”

    So, in this instance, “Standing-Remedy,” or “Standing–Remedy?”

  3. I got the standing
    I got the remedy
    I got the pulsating, injunctive remedy

  4. Here is how the courts should handle the standing question:

    It’s always yes they have standing.

    Real easy!

    1. Also unconstitutional. As I’m sure you learned in law school.

  5. Another issue, though probably one the federal government waived, is that venue is improper. This is yet another case brought over the years by progressives and conservatives alike in which the plaintiffs handpick a judge known to be predisposed to their view. This kind of judge shopping erodes respect for the law. Folks begin to think that we have a rule of single-judge whim rather than a rule of law. This kind of judge shopping also contributes to the “national injunction” problem.

    Venue here was based on the theory that suits against federal agencies may be venued (where, as here, real property isn’t involved) in the district in which “the plaintiff” resides. Decades ago Exxon and other oil companies convinced the Third Circuit that this meant that venue was allowed where even one of many plaintiffs resided. Other lower courts (thought not yet, IIRC correctly, the Fifth Circuit) have followed that result with little or no independent analysis.

    But it’s wrong. By the time the statute was enacted, the Supreme Court had restated that when Congress uses words like “the plaintiff” or “the defendant” in a venue statute, the Court will construe it as meaning all plaintiffs if there are multiple plaintiffs. (And I do mean “restated”: the second opinion reminds Congress of the first opinion in explaining why it was construing an intervening statute that way.) If that were not enough, the House bill that led to 1391(e) would have allowed standing where a plaintiff resided. The Senate amended that to “the plaintiff.” When the bill came back over to the House, the managers explained that the Senate objected that the original bill was too broad, and the House then accepted the Senate amendments. The courts shouldn’t legislate the failed attempt in the House to enact a broader statute.

    There is an arguable second problem with venue. Even if Texas were the only plaintiff, where does it reside for purposes of a statute keying residence to plaintiff’s residence? As a defendant, Texas clearly resides in all four of the federal judicial districts in the state (there’s an Eleventh Circuit case involving Florida to that effect, which seems clearly correct). But it’s not automatic that an entity’s plaintiff-purposes residence is the same as its defendant-purposes residence. The rules differ for corporations, for example. Indeed, 28 U.S.C. 1391(c)(2) says that an entity, like Texas, that has capacity to sue but isn’t a natural person shall be “deemed to reside . . . if a plaintiff, only in the judicial district in which it maintains its principal place of business. There isn’t much caselaw law on this, but IIRC, the district court in Philadelphia told Pennsylvania that if it wanted to rely on plaintiff-residence venue, it had only one choice, the Middle District where Harrisburg is. Venue, a doctrine that protects defendants, is very rarely allowed based on plaintiff’s residence to begin with. It seems at least arguable that the extraordinary latitude allowed in this statute should be interpreted to give States — like natural persons — only one district of residence to choose. If that’s right, this suit was brought in the wrong district in Texas.

    There is at least one district in which the action could have been brought, the District of Columbia. The district court there has a deep bench of APA savvy judges. Granted, they don’t all have the same ideological outlook, so plaintiffs will have to take their chances, just like defendants, on the draw, rather than start the district court game on third base by selecting their own judge.

    (Other possibilities for venue might also exist in some cases, though I think not here, but this comment is long and strident enough as it is.)

    1. These matters are almost all ultimately addressed by the Circuit Courts, if not SCOTUS.

      Recall that Judge Hanen ruled identically in the very comparable DAPA case that was upheld by the 5th Circuit and SCOTUS.

      Your argument is more persuasive as against national injunctions so forum shopping provides little benefit and/or more lower courts can speak on an issue prior to appellate review.

    2. Under your reading where would venue be proper with diverse plaintiffs?

      1. “any judicial district in which (A) a defendant in the action resides, [or] (B) a substantial part of the events or omissions giving rise to the claim occurred”

        There’s quite a lot of law about what “a defendant” means. If one defendant is not a federal official, you’re thrown back at least for that defendant to the general rules of venue that apply against defendants other than federal officials. As to where a federal official or agency resides, it’s usually at agency headquarters in (generally) Washington [you could make arguments that SSA is in Maryland or even that the CIA is in Virginia] rather than anywhere the agency may have an outpost. But, in cases where a subordinate is actually a proper defendant, it might be the subordinate’s location. And then there’s a lot of law around “substantial part of the events or omissions.” At a minimum, venue would always be proper in the DDC [or, possibly, Maryland or E.D. Va. in the SSA and CIA examples]. In some cases, it may be proper elsewhere as well.

  6. A lot of the legal analysis around here seems to boil down to, “The Obama administration unilaterally did something it had no legal authority to do, but another presidential administration may not unilaterally undo it, and the courts can’t undo it because no one has standing to challenge it in court, so we’re stuck with a patently illegal executive enactment forever unless and until Congress does something about it.”

    1. That’s how I read it. At what point does standing itself become a source of injustice? Who would have standing to challenge an illegal program like this if not the states?

      The answer can’t be agencies can get away with anything they want.

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