The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Kavanaugh's decision in United States v. Texas does not cohere on many levels. Worse, the decision can only be understood as some sort of middling compromise to avoid revisiting Massachusetts v. EPA and national vacaturs under Section 706. (Jon Adler and Mike Dorf have more on these issues). Is U.S. v. Texas a ticket good for one ride, and one ride only? Part II-C of the majority opinion identifies five areas where the courts may "entertain cases involving the Executive Branch's alleged failure to make more arrests or bring more prosecutions." The third point may have some relevance for the never-ending DACA litigation.
Third, the standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. Under the Administrative Procedure Act, a plaintiff arguably could obtain review of agency non-enforcement if an agency "has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." Heckler, 470 U. S., at 833, n. 4 (internal quotation marks omitted); see id., at 839 (Brennan, J., concurring); cf. 5 U. S. C. §706(1). So too, an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing. But the States have not advanced a Heckler-style"abdication" argument in this case or argued that the Executive has entirely ceased enforcing the relevant statutes. Therefore, we do not analyze the standing ramifications of such a hypothetical scenario.
This argument brings me back. For more than a decade, advocates have contended that DACA amounts to a wholesale abandonment of the immigration laws with respect to the Dreamers. Does DACA "exceed the bounds of enforcement discretion"? Usually, Heckler is understood as a merits question, rather than a standing question. But now, Justice Kavanaugh has seemed to merge, or at least conflate the inquiries. Justice Barrett pointed out this problem in her concurrence:
Whatever Heckler's relevance to cases like this one, it does not establish a principle of Article III standing. And elevating it to the status of a constitutional rule would transform it from a case about statutory provisions (that Congress is free to amend) to one about a constitutional principle (that lies beyond Congress's domain). Although the Court notes that Heckler involved the APA, its conflation of Heckler with standing doctrine is likely to cause confusion.
Yes, Justice Kavanaugh's opinion will cause confusion. I think that's a feature, rather than a bug. Moreover, the Court provides no explanation of what "abandonment" even means. Justice Alito points out the obvious:
Under what circumstances might the Court say that the Federal Government has "wholly abandoned" its enforcement duties? Suppose the Federal Government announced that it would obey 80% of the immigration laws or 70% of the environmental laws. Would the Court say that it had"
Still, Justice Kavanaugh expressly left open the question of whether there is standing to challenge the executive "disregarding" statutory obligations. Justice Kavanaugh repeated himself, so you know he really means it!
To be clear, our Article III decision today should in no way be read to suggest or imply that the Executive possesses some freestanding or general constitutional authority to disregard statutes requiring or prohibiting executive action.
And is it even true that the states failed to raise this issue? Justice Gorsuch says no.
But the Court declines to say more than that because "the States have not advanced" such an argument. Ibid. Is that true, though? The States have pleaded a claim under the Take Care Clause. App. 106. Is that not an abdication argument? Did they fail to plead it properly? Or is the Court simply ignoring it?
Regrettably, the lower courts will toil to make sense of Justice Kavanaugh's "abandonment" argument–and to what end?
Justice Kavanaugh's majority opinion raised a fourth point that may be relevant for the DACA case.
The fourth point may also have some relevance to the DACA litigation:
Fourth, a challenge to an Executive Branch policy that involves both the Executive Branch's arrest or prosecution priorities and the Executive Branch's provision of legal benefits or legal status could lead to a different standing analysis. That is because the challenged policy might implicate more than simply the Executive's traditional enforcement discretion. Cf. Department of Homeland Security v. Regents of Univ. of Cal. (2020) (benefits such as work authorization and Medicare eligibility accompanied by non-enforcement meant that the policy was "more than simply a non-enforcement policy"); Texas v. United States (Linda R. S. "concerned only nonprosecution," which is distinct from "both nonprosecution and the conferral of benefits"), aff'd by an equally divided Court (2016). Again, we need not resolve the Article III consequences of such a policy.
Here, Justice Kavanaugh is obviously referring to DACA. But what is perplexing is the conjunction "and." DACA does not involve an "arrest or prosecution priorities." Yesterday, I pointed out that immigration law is civil. To be precise, there is no arrest and prosecution; there is detention and removal. Sure, some aliens are charged with the crime of illegal re-entry. But for the most part, immigration enforcement is civil. DACA does provide legal benefits. Indeed, the existence of those benefits provided the basis for the Chief's "reliance interest" analysis in DHS v. Regents. (Isn't it something that New York and California won their big cases against Trump while but Texas keeps losing against Biden?)
What exactly does this fourth point mean? Justice Alito writes in dissent:
Exactly what this means is not easy to ascertain. One possibility is that the majority is talking about a complaint that asserts separate claims based on the grant or denial of benefits, the grant or denial of legal status, and harms resulting from non-enforcement of a statutory mandate. In that event, standing with respect to each claim would have to be analyzed separately.
This is how I read the Kavanaugh opinion, which would leave open the question of whether there is standing to challenge DACA. But Alito flags another possible reading:
Another possibility is that the majority is referring to a claim asserting that non-enforcement of a statutory requirement requiring the arrest or prosecution of third parties resulted in the plaintiff's loss of benefits or legal status. Such a situation is not easy to imagine, and the majority cites no case that falls within this category. But if such a case were to arise, there is no reason why it should not be analyzed under our standard three-pronged test.
I find this reading unlikely–the Court described a non-existent program. But I suppose Justice Kavanaugh can duck-and-cover when the DACA cases arrives.
Finally, Footnote 3 of the majority opinion tries to draw a distinction between "direct" and "indirect" effects on state spending.
But in our system of dual federal and state sovereignty, federal policies frequently generate indirect effects on state revenues or state spending. And when a State asserts, for example, that a federal law has produced only those kinds of indirect effects, the State's claim for standing can become more attenuated.
The theory for standing in the DACA case, and much strategic litigation, has always concerned state spending: the failure to enforce immigration law foists more costs on state coffers. The Court doesn't explain the line between direct and indirect effects. Indeed, this line harkens back to the Pre-New-Deal era of Commerce Clause jurisprudence, where the Court would approve of direct regulations of commerce, but not indirect regulations.
What makes this argument particularly infuriating is that the census case expressly relied on an indirect effect. Justice Gorsuch makes this point in his concurrence:
Indeed, this Court has allowed other States to challenge other Executive Branch policies that indirectly caused them monetary harms. See, e.g., Department of Commerce v. New York (2019). So why are these States now forbidden from doing the same?
As does Justice Alito in dissent:
Instead, it observes only that a "State's claim for standing can become more attenuated" when based on the "indirect effects" of federal policies "on state revenues or state spending." Ante, at 9, n. 3. But while it is certainly true that indirect injuries may be harder to prove, an indirect financial injury that is proved at trial supports standing. And that is what happened here.
Ultimately, I think the effect of this decision is quite limited. It will probably be a ticket good for one ride.