Joseph Arpaio v. Barack Obama

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2015 Decided August 14, 2015

No. 14-5325

JOSEPH M. ARPAIO,

APPELLANT

v.

BARACK OBAMA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-01966)

Larry Klayman argued the cause and filed the briefs for

appellant.

Beth S. Brinkmann, Deputy Assistant Attorney General,

U.S. Department of Justice, argued the cause for appellees.

With her on the brief were Benjamin C. Mizer, Acting

Assistant Attorney General, Ronald C. Machen Jr., U.S.

Attorney at the time the brief was filed, and Scott R.

McIntosh, Jeffrey Clair, and William E. Havemann,

Attorneys.

Before: BROWN, SRINIVASAN and PILLARD, Circuit

Judges.

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Opinion for the Court filed by Circuit Judge PILLARD.

Concurring opinion filed by Circuit Judge BROWN.

PILLARD, Circuit Judge: The Secretary of the

Department of Homeland Security, facing what he perceives

to be enormous practical obstacles to removing from the

United States the eleven million people unlawfully present

here, has sought to set enforcement priorities. He accordingly

directed relevant agencies temporarily to defer low-priority

removals of non-dangerous individuals so that the agencies

can focus their resources on removing dangerous criminals

and strengthening security at the border. People whose

removal has been deferred are generally eligible to apply for

authorization to work, and to reside in the United States for up

to three years.

Joseph Arpaio, the Sheriff of Maricopa County, Arizona,

sued to enjoin the Secretary’s deferred action policies. He

asserts that they are unconstitutional, arbitrary and capricious,

and invalid under the Administrative Procedure Act as, in

effect, regulations that have been promulgated without the

requisite opportunity for public notice and comment. We

cannot resolve those claims unless Sheriff Arpaio has Article

III standing to raise them. To have standing, a plaintiff must

have suffered or be about to suffer a concrete injury fairly

traceable to the policies he challenges and redressable by the

relief he seeks.

Sheriff Arpaio’s standing arguments rest on the premise

that more people causing more crimes harm him because, as

Sheriff, he will be forced to spend more money policing the

county and running its jails. He alleges two ways in which he

believes that the population of undocumented aliens

committing crimes will increase as a result of deferred action.

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First, he contends that deferred action will act as a magnet

drawing more undocumented aliens than would otherwise

come across the Mexican border into Maricopa County,

where they will commit crimes. Second, he alleges that the

challenged policies will decrease total deportations by

deferring action against approximately six million

undocumented aliens, so that more individuals will remain

unlawfully in Maricopa County and commit crimes than

would be the case without deferred action.

We conclude that Sheriff Arpaio has failed to allege an

injury that is both fairly traceable to the deferred action

policies and redressable by enjoining them, as our standing

precedents require. His allegations that the policies will cause

more crime in Maricopa County are unduly speculative.

Projected increases he anticipates in the county’s policing

burden and jail population rest on chains of supposition and

contradict acknowledged realities.

Sheriff Arpaio recognizes that the deferred action policies

he challenges apply only to people who are already present in

the United States and who either arrived as children or are

parents of children who are United States citizens or lawful

permanent residents. His magnet theory nonetheless assumes

that the policies will cause non-citizens outside of the United

States to cross the border in the mistaken hope of benefitting

from the current policies. Alternatively, Sheriff Arpaio posits

that foreign citizens will view the current policies as a sign of

things to come, and will therefore cross the border in the hope

of benefitting from hypothesized future, similar policies that

are not the subject of Sheriff Arpaio’s challenge. Our

precedents establish that standing based on third-party

conduct—such as the anticipated reactions of undocumented

aliens abroad—is significantly harder to show than standing

based on harm imposed by one’s litigation adversary. That

4

difficulty is compounded here because the third-party conduct

the complaint forecasts depends on large numbers of people

having the same unlikely experiences and behaviors: For the

harms Sheriff Arpaio alleges to occur and be redressable by

the injunction he seeks, aliens abroad would have to learn

about the deferred action policies, mistakenly think that they

were eligible to benefit from them, or harbor a hope of

becoming eligible for future, similar policies as yet

unannounced, actually leave their homes and enter the United

States illegally based on that false assumption, commit crime

in Maricopa County, become involved in—and costly to—the

criminal justice system there, and be less likely under deferred

action to be removed from the United States than they would

have been without those policies in place.

Sheriff Arpaio’s second standing theory is no less

tenuous. Sheriff Arpaio recognizes that only non-dangerous

immigrants are eligible for deferred action, but he nonetheless

contends that those deferrals will mean that crime by

undocumented aliens will be higher than it would be without

them. This second theory rests on the mistaken premise that

the challenged policies decrease the number of removals

below what would have been accomplished had the policies

not been adopted. Accurately read, however, the policies seek

not to decrease the total number of removals but to prioritize

removal of individuals who pose a threat to public safety over

removal of those who do not. The policy is designed to make

the Department of Homeland Security’s expenditure of

resources more efficient and effective. Even if it were

plausibly alleged (and it is not) that the challenged policies

would mean more undocumented aliens remain in the county,

the reduced-removals theory also depends on unsupported

speculation that these policies, expressly confined to

individuals who do not pose threats to public safety, will

increase the number of crimes in Maricopa County above

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what could reasonably be anticipated in the absence of any

such policies.

Because Sheriff Arpaio’s allegations of causation and

redressability rest on speculation beyond that permitted by our

standing decisions, we affirm the district court’s dismissal of

the complaint for want of Article III standing.

I.

A.

The nation’s immigration laws provide for the removal

from the United States of people who were “inadmissible at

the time of entry,” or who commit certain offenses or meet

other criteria for removal. Arizona v. United States, 132 S.

Ct. 2492, 2499 (2012). The Secretary of Homeland Security

is “charged with the administration and enforcement” of the

immigration laws. 8 U.S.C. § 1103(a)(1). With enforcement

responsibility comes the latitude that all executive branch

agencies enjoy to exercise enforcement discretion—discretion

necessitated by the practical fact that “[a]n agency generally

cannot act against each technical violation of the statute it is

charged with enforcing.” Heckler v. Chaney, 470 U.S. 821,

831 (1985). The Supreme Court has particularly recognized

that “[a] principal feature of the removal system is the broad

discretion exercised by immigration officials.” Arizona, 132

S. Ct. at 2499. Whether to initiate removal proceedings and

whether to grant relief from deportation are among the

discretionary decisions the immigration laws assign to the

executive. Id.

In making immigration enforcement decisions, the

executive considers a variety of factors such as the danger

posed to the United States of an individual’s unlawful

presence, the impact of removal on the nation’s international

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relations, and the “human concerns” of whether the individual

“has children born in the United States, long ties to the

community, or a record of distinguished military service.” Id.

More generally, the Supreme Court has recognized that all

agencies have discretion to prioritize in light of the

Secretary’s and, ultimately, the President’s assessments

“whether agency resources are best spent on this violation or

another, whether the agency is likely to succeed if it acts,

whether the particular enforcement action requested best fits

the agency’s overall policies, and, indeed, whether the agency

has enough resources to undertake the action at all.” Heckler,

470 U.S. at 831.

One form of discretion the Secretary of Homeland

Security exercises is “deferred action,” which entails

temporarily postponing the removal of individuals unlawfully

present in the United States. See Reno v. Am.-Arab Anti-

Discrimination Comm., 525 U.S. 471, 484 (1999).

Immigration authorities have made decisions to defer action

or take similar measures since the early 1960s. See The

Department of Homeland Security’s Authority to Prioritize

Removal of Certain Aliens Unlawfully Present (“OLC Op.”),

38 O.L.C. Op. ----, pp. 7-8, 12-13 (Nov. 19, 2014). For

example, in 1990, the Immigration and Naturalization Service

implemented a “Family Fairness” program that deferred

removal of and provided work authorizations to

approximately 1.5 million individuals whose spouses or

parents had been granted legal status in the United States

under the Immigration and Reform Control Act of 1986, Pub.

L. No. 99-603, 100 Stat. 3359. OLC Op. at 14.

Approximately forty percent of individuals unlawfully present

in the United States at that time were potentially eligible for

the program. Id. at 31.

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Today, the Department of Homeland Security estimates

that there are approximately 11.3 million people in the United

States who may be subject to removal under the immigration

laws. See id. at 1. Of those, the Department estimates that it

has the resources to remove fewer than 400,000 each year. Id.

In an effort to allocate the Department’s limited resources,

Secretary Janet Napolitano in June 2012 directed relevant

agencies “to ensure that our enforcement resources are not

expended on . . . low priority cases but are instead

appropriately focused on people who meet our enforcement

priorities.” Memorandum from Janet Napolitano, Exercising

Prosecutorial Discretion with Respect to Individuals Who

Came to the United States as Children 1 (June 15, 2012), J.A.

101. In what became known as Deferred Action for

Childhood Arrivals, or DACA, the Secretary outlined a policy

to defer removal proceedings for two years, subject to

renewal, of individuals who came to the United States as

children, met certain eligibility criteria, and cleared a

background check. Id. at 1-2. Those eligible for DACA

could identify themselves to the Department for

individualized review and, if eligible, receive temporary

deferral and authorization, on a case-by-case basis, to work in

the United States. Id. at 3. The memorandum emphasizes,

however, that deferred action remains discretionary and

reversible, and “confers no substantive right, immigration

status or pathway to citizenship.” Id.

In November 2014, Jeh Johnson, Napolitano’s successor

as Secretary of Homeland Security, revised the DACA

program by extending it to more childhood arrivals and

extending to three years the deferred action and work

authorization periods. Memorandum from Jeh Charles

Johnson, Exercising Prosecutorial Discretion with Respect to

Individuals Who Came to the United States as Children and

with Respect to Certain Individuals Who are Parents of U.S.

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Citizens or Permanent Residents 1 (Nov. 20, 2014), J.A. 145.

In addition, the Secretary outlined a second deferred action

policy for the parents of United States citizens and lawful

permanent residents, which has become known as Deferred

Action for Parents of Americans, or DAPA. Id. at 4-5.

Parents seeking to take part in DAPA must meet similar

eligibility requirements as DACA beneficiaries, and they, too,

must clear a background check. Id. Neither DACA nor

DAPA applies to individuals who arrived in the United States

after January 1, 2010. Id. at 4.

The Secretary explained that DACA and DAPA apply to

individuals who “are extremely unlikely to be deported given

[the] Department’s limited enforcement resources—which

must continue to be focused on those who represent threats to

national security, public safety, and border security.” Id. at 3.

In a separate memorandum issued on the same day, the

Secretary revised the Department’s enforcement priorities.

Memorandum from Jeh Charles Johnson, Policies for the

Apprehension, Detention and Removal of Undocumented

Immigrants 1 (Nov. 20, 2014), J.A. 154. One of the eligibility

requirements of DACA and DAPA is that individuals must

not fall under any of three enforcement priority categories.

The first applies to “threats to national security, border

security, and public safety,” i.e., those engaged in or

suspected of terrorism or espionage, apprehended at the

border or ports of entry attempting to enter the United States

unlawfully, convicted of an offense involving participation in

gangs or organized crime, or convicted of a felony or

aggravated felony. Id. at 3. The second category applies to

those convicted of three or more offenses (not including

traffic- or immigration-related offenses), or of a single

“significant misdemeanor,” including crimes of violence, drug

distribution or trafficking, driving under the influence of an

impairing substance, and any other misdemeanor that resulted

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in more than ninety days’ incarceration. Id. at 3-4. The third

category applies to individuals who have been issued a final

order of removal on or after January 1, 2014. Id. at 4.

DACA and DAPA therefore apply to the portion of the

population that the Department considers not threatening to

public safety and that has not had any involvement, or only

minimal and minor involvement, with the criminal justice

system. Although estimates of this kind are notoriously

difficult to make, it appears that up to about six million of the

11.3 million individuals subject to removal from the United

States may be eligible either for DACA or DAPA.1

B.

On the same day that the President announced the

revisions to DACA and the new DAPA policy, the elected

Sheriff of Maricopa County, Arizona, Joseph Arpaio, sued the

President and other federal officials seeking a declaration and

preliminary injunction that DACA and DAPA violate the

Administrative Procedure Act, 5 U.S.C. § 551 et seq., the

President’s constitutional duty to “take Care that the Laws be

faithfully executed,” U.S. Const. art. II, § 3, and the non-

delegation doctrine.

1

Sheriff Arpaio claims throughout his briefing, without citation,

that the total number of DACA- and DAPA- eligible individuals is

six million. The Department estimates that four million people may

be eligible for DAPA, but acknowledges the difficulty of arriving at

accurate estimates. See OLC Op. at 30. We have found no

estimate of DACA eligibility in the record, but one court has noted

that some observers expect the number of eligible individuals to

reach 1.7 million, Texas v. United States, No. CIV. B-14-254, --- F.

Supp. 3d ---, 2015 WL 648579, at *4 (S.D. Tex. Feb. 16, 2015),

bringing the combined total to 5.7 million. The Sheriff’s estimate

thus appears reasonable.

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Maricopa County is the fourth most populous county in

the nation, and the most populous by far in Arizona. It stands

thirty miles from the United States’ border with Mexico.

Sheriff Arpaio alleges that he was “adversely affected and

harmed in his office’s finances, workload, and interference

with the conduct of his duties, by the failure of the executive

branch to enforce existing immigration laws” through

adoption of DACA in 2012. Compl. ¶ 27. He asserts that his

office has been “severely affected” by increases in unlawful

entries that he alleges were motivated by the President’s

“amnesty” policies, and he predicted further unlawful entries

due to the policies announced in 2014. Id. In a declaration,

Sheriff Arpaio avers that the increased number of unlawful

arrivals in Maricopa County after DACA was first adopted in

2012 imposed costs on his office in terms of “manpower and

financially” because some of those individuals who arrived

without documentation ended up in the Sheriff’s jails, and

others committed offenses that required additional

investigation on the part of the Sheriff’s office. Supp’l

Arpaio Decl., J.A. 656-58 ¶¶ 12, 18-20, 27.

The district court denied a preliminary injunction and

dismissed the complaint for lack of subject matter jurisdiction

because Sheriff Arpaio had failed to allege a cognizable

injury in fact for purposes of Article III standing. Arpaio v.

Obama, 27 F. Supp. 3d 185, 192, 207 (D.D.C. 2014). The

court held that Sheriff Arpaio presents a non-justiciable

“generalized grievance,” as opposed to a particularized injury.

Id. at 202. If it recognized Sheriff Arpaio’s standing to bring

these claims, the court opined, it “would permit nearly all

state officials to challenge a host of Federal laws simply

because they disagree with how many—or how few—Federal

resources are brought to bear on local interests.” Id. The

district court also concluded that Arpaio lacked standing

because his claimed injury was “largely speculative.” Id. at

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203. The court found implausible the contention that “the

challenged deferred action programs will create a ‘magnet’ by

attracting new undocumented immigrants into Maricopa

County, some of whom may commit crimes under Arizona

law.” Id. Sheriff Arpaio’s theory treats as a certain and

immediate effect of the challenged programs, the court held,

migration decisions that are in reality “complex decision[s]

with multiple factors, including factors entirely outside the

United States’ control, such as social, economic and political

strife in a foreign country.” Id. Sheriff Arpaio timely

appealed.

II.

We review de novo the district court’s dismissal for lack

of standing. Renal Physicians Ass’n v. U.S. Dep’t of Health

& Human Servs., 489 F.3d 1267, 1273 (D.C. Cir. 2007). The

plaintiff bears the burden of invoking the court’s subject

matter jurisdiction, including establishing the elements of

standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992). The “irreducible constitutional minimum of standing

contains three elements”: injury in fact, causation, and

redressability. Id. at 560-61. Injury in fact is the “invasion of

a legally protected interest which is (a) concrete and

particularized . . . and (b) actual or imminent, not conjectural

or hypothetical.” Id. at 560 (internal quotation marks and

citations omitted). The “causal connection between the injury

and the conduct complained of” must be “fairly traceable to

the challenged action of the defendant, and not the result of

the independent action of some third party not before the

court.” Id. at 561 (internal quotation marks and alterations

omitted). And it must be “likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.” Id. (internal quotation marks omitted). Finally,

because Sheriff Arpaio seeks prospective declaratory and

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injunctive relief, he must establish an ongoing or future injury

that is “certainly impending”; he may not rest on past injury.

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013)

(emphasis omitted).

“[E]ach element [of standing] must be supported in the

same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence

required at the successive stages of the litigation.” Lujan, 504

U.S. at 561. Consequently, because the Department

challenges the adequacy of Sheriff Arpaio’s complaint and

declarations to support his standing, we accept the well-

pleaded factual allegations as true and draw all reasonable

inferences from those allegations in the plaintiff’s favor, as

we do in reviewing dismissals for failure to state a claim. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nevertheless,

“[t]hreadbare recitals of the elements of [standing], supported

by mere conclusory statements, do not suffice.” Id. We do

not assume the truth of legal conclusions, id., nor do we

“accept inferences that are unsupported by the facts set out in

the complaint,” Islamic Am. Relief Agency v. Gonzales, 477

F.3d 728, 732 (D.C. Cir. 2007). Thus, “[t]o survive a motion

to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim [of standing] that is

plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

III.

The Sheriff’s Office’s expenditures of resources on

criminal investigation, apprehension, and incarceration of

criminals are indeed concrete, but Sheriff Arpaio lacks

standing to challenge DACA and DAPA because any effects

of the challenged policies on the county’s crime rate are

unduly speculative.

13

A.

Sheriff Arpaio’s standing theory relies on a predicted

chain of events, as follows: Under the challenged policies,

the Secretary of Homeland Security will refrain from

removing DACA and DAPA beneficiaries. Foreign citizens

outside of the United States and ineligible for either DACA or

DAPA will learn of those policies. Those people will either

mistakenly believe that they are eligible to benefit from them,

or conjecture that the policies make it likely that the federal

government will adopt a future, similar policy of deferred

action for which they would be eligible. Relying on such

surmise, those individuals will decide to enter the United

States unlawfully, stimulated by the hope of obtaining relief

from deportation. Some of those new arrivals will settle in

Maricopa County. And some subset of those, contrary to their

own plans to benefit from anticipated deferred action or

removal opportunities restricted to non-criminal aliens, will

commit crimes. The portion of those who are investigated,

arrested, or jailed by the Sheriff’s Office will cause an

increased expenditure of resources. See Supp’l Arpaio Decl.

¶ 18. It is that predicted expenditure of resources that Sheriff

Arpaio seeks to redress through this suit.

Any injury Sheriff Arpaio suffers from the financial

burdens imposed by new arrivals would not be fairly traceable

to DACA or DAPA. Neither DACA nor DAPA applies to

people who entered the United States after January 1, 2010,

and thus plainly neither applies to entrants arriving now or in

the future. Sheriff Arpaio argues that foreign citizens will see

DACA and DAPA as harbingers of the federal government’s

future immigration policies, and so be encouraged to enter the

United States unlawfully. Even if the causal links in that

attenuated chain were adequately alleged, the decisions of

such individuals to enter the United States unlawfully lack

14

any legitimate causal connection to the challenged policies.

Just as the law does not impose liability for unreasonable

reliance on a promise, see Restatement (Second) of Contracts

§ 90 (1981), it does not confer standing to complain of harms

by third parties the plaintiff expects will act in unreasonable

reliance on current governmental policies that concededly

cannot benefit those third parties. We are aware of no

decision recognizing such an attenuated basis for standing.

See Mideast Sys. & China Civil Const. Saipan Joint Venture,

Inc. v. Hodel, 792 F.2d 1172, 1178 (D.C. Cir. 1986) (“[T]he

mere possibility that causation is present is not enough; the

presence of an independent variable between either the harm

and the relief or the harm and the conduct makes causation

sufficiently tenuous that standing should be denied.”).

Even were we to ignore the disconnect between the

challenged policies and the increased law enforcement

expenditures that Sheriff Arpaio predicts, his reliance on the

anticipated action of unrelated third parties makes it

considerably harder to show the causation required to support

standing. The injuries Sheriff Arpaio predicts would stem not

from the government’s DACA or DAPA programs, but from

future unlawful entrants committing crimes in Maricopa

County after their arrival. Although “standing is not

precluded” in a case that turns on third-party conduct, “it is

ordinarily substantially more difficult to establish.” Lujan,

504 U.S. at 562 (internal quotation marks omitted). We have

required “substantial evidence of a causal relationship

between the government policy and the third-party conduct,

leaving little doubt as to causation and the likelihood of

redress.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ.,

366 F.3d 930, 941 (D.C. Cir. 2004); see also Renal

Physicians, 489 F.3d at 1275.

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Likewise, because Sheriff Arpaio must rest his claims for

declaratory and injunctive relief on predicted future injury,

see Clapper, 133 S. Ct. at 1147, he bears a “more rigorous

burden” to establish standing, United Transp. Union v. ICC,

891 F.2d 908, 913 (D.C. Cir. 1989). We must take the

complaint’s allegations “of facts, historical or otherwise

demonstrable,” as true. Id. at 912. But we treat “allegations

that are really predictions” differently. Id. “When

considering any chain of allegations for standing purposes, we

may reject as overly speculative those links which are

predictions of future events (especially future actions to be

taken by third parties),” as well as predictions of future injury

that are “not normally susceptible of labelling as ‘true’ or

‘false.’” Id. at 913. In order to establish standing premised

on future injury, Sheriff Arpaio “must demonstrate a realistic

danger of sustaining a direct injury.” Id. (quoting Babbitt v.

United Farm Workers Nat’l Union, 442 U.S. 289, 298

(1979)).

Sheriff Arpaio asserts that he is entitled to proceed based

on a lenient assessment of his alleged concrete injury, because

his complaint includes a claim of procedural injury from

violation of the Administrative Procedure Act. That

contention mischaracterizes our procedural injury cases.

“[T]hough the plaintiff in a procedural-injury case is relieved

of having to show that proper procedures would have caused

the agency to take a different substantive action, the plaintiff

must still show that the agency action was the cause of some

redressable injury to the plaintiff.” Renal Physicians, 489

F.3d at 1279.

Here, Sheriff Arpaio’s allegations that DACA and DAPA

will cause unlawful immigration to increase are conjectural

and conclusory. See, e.g., Suppl. Arpaio Decl. ¶¶ 16-17. The

only relevant specifics appear not in his pleadings, but in his

16

brief, where he points to the “flood of unaccompanied minors

in the Summer of 2014 crossing the Mexican border”—an

increase that he attributes to Secretary Napolitano’s June 2012

DACA memorandum. Arpaio Br. 17. He argues that we may

extrapolate from that experience that the revised DACA and

new DAPA policies will cause increased unlawful

immigration in the future. Even if we could credit an

assertion in a brief as if it were alleged in a pleading, see

Runnemede Owners, Inc. v. Crest Mortg. Corp., 861 F.2d

1053, 1057 (7th Cir. 1988) (“[A]ssertions contained only in

the briefs may not be used to expand the allegations of the

complaint.”), Sheriff Arpaio’s argument nonetheless suffers

from the logical fallacy post hoc ergo propter hoc (after this,

therefore because of this). Just as we do not infer that the

rooster’s crow triggers the sunrise, we cannot infer based on

chronology alone that DACA triggered the migrations that

occurred two years later.

Sheriff Arpaio provides no factual allegations to link the

2014 “flood” of minors to DACA. The record reveals only

speculation about the complex decisions made by non-citizens

of the United States before they risked life and limb to come

here. While immigration policies might have played into that

calculus, so, too, might the myriad economic, social, and

political realities in the United States and in foreign nations.

Even assuming that it is conceivable that inaccurate

knowledge of DACA could have provided some

encouragement to those who crossed the southern border, the

Supreme Court’s precedent requires more than illogic or

“unadorned speculation” before a court may draw the

inference Sheriff Arpaio seeks. Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 44 (1976).

Moreover, even if we were to assume DACA and DAPA

increase unlawful immigration, we cannot further infer that

17

they increase crime. At base, Sheriff Arpaio’s contention is

that more immigrants mean more crime. There is simple

appeal to the notion that, all else being equal, more people

will commit more crime. But the reality is that crime is

notoriously difficult to predict. Explaining its causes, even

after the fact, is rife with uncertainty. Crime rates are affected

by numerous factors, such as the local economy, population

density, access to jobs, education, and housing, and public

policies that directly and indirectly affect the crime rate.

Even if it were possible to do so, Sheriff Arpaio does not

explain how increased migration would interact with those

and other factors affecting the crime rate. On this record, it is

pure speculation whether an increase in unlawful immigration

would result in an increase, rather than a decrease or no

change, in the number of crimes committed in Maricopa

County. Where predictions are so uncertain, we are

prohibited from finding standing. See O’Shea v. Littleton,

414 U.S. 488, 497 (1974) (holding that a class of African

Americans and civil rights activists lacked standing to

challenge an alleged pattern and practice of selective and

discriminatory criminal law enforcement because “attempting

to anticipate whether and when these respondents will be

charged with crime . . . takes us into the area of speculation

and conjecture”).

We faced one example of the obstacles to standing based

on predicted harms flowing from third-party conduct in

Northwest Airlines, Inc. v. FAA, 795 F.2d 195, 201 (D.C. Cir.

1986). Northwest Airlines sought to challenge the FAA’s

decision to certify a pilot to continue flying after the airline

discharged him for flying while intoxicated. The airline

argued that “allowing unfit pilots in the skies endangers all

others who fly and confers upon [the endangered parties]

standing to challenge any . . . certification decision.” Id. at

201. We reiterated that the standing requirements “will not be

18

satisfied simply because a chain of events can be

hypothesized in which the action challenged eventually leads

to actual injury.” Id. Consequently, we held that the airline

lacked standing because the “possibility” that the pilot would

be hired by another airline, fly in the same region as the

plaintiff airline, and actually cause injury to the plaintiff’s

passengers and crew was “too remote and speculative to

constitute injury.” Id. Just as the airline’s challenge to the

FAA’s decision to treat an alcoholic pilot leniently was

premised on the airline’s hypothesis that the decision created

a “marginally increased possibility” that the pilot would

engage in unlawful behavior, id. at 202, Sheriff Arpaio’s

challenge to the Department of Homeland Security’s deferred

action policies rests on his hypothesis that they will lead to

increased unlawful behavior. Both theories suffer from the

same weakness: “the likelihood of any injury actually being

inflicted [is] too remote to warrant the invocation of judicial

power.” Id.2

2

Sheriff Arpaio also argues that we are required to draw the

inference that “a demonstrated willingness to break this nation’s

laws to get what one wants but is not entitled to, experiencing a

widespread outcry excusing their law-breaking, and suffering no

consequences constitute valid grounds for predicting a lowered

resistance to breaking more laws.” Arpaio Br. 46. Not so. Sheriff

Arpaio has made no factual allegations that might support his

asserted connection between the decision to enter the United States

unlawfully and the propensity to commit other crimes. See Islamic

Am. Relief Agency, 477 F.3d at 732 (“This Court need not . . .

accept inferences that are unsupported by the facts set out in the

complaint.”). Even if he had, he has not contended with the legal

hurdle posed by courts’ general reluctance to predict propensities to

commit crime in the future. See, e.g., City of Los Angeles v. Lyons,

461 U.S. 95, 108 (1983) (“[I]t is surely no more than speculation to

assert either that Lyons himself will again be” arrested and

19

Sheriff Arpaio contends that cases recognizing

competitor standing support his reliance on anticipated future

harm. In certain circumstances, we have found standing

premised on the federal government’s favorable regulatory

treatment of a plaintiff’s competitor. Plaintiffs may claim

predictable economic harms from the lifting of a regulatory

restriction on a “direct and current competitor,” Mendoza v.

Perez, 754 F.3d 1002, 1013 (D.C. Cir. 2014) (internal

quotation marks and emphasis omitted), or regulatory action

that enlarges the pool of competitors, which will “almost

certainly cause an injury in fact” to participants in the same

market, Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010).

But we have not hesitated to find competitor standing lacking

where the plaintiff’s factual allegations raised only “‘some

vague probability’” that increased competition would occur.

Id. at 74 (quoting DEK Energy Co. v. FERC, 248 F.3d 1192,

1196 (2001)). Because of the generally contingent nature of

predictions of future third-party action, we have remained

sparing in crediting claims of anticipated injury by market

actors and other parties alike. See United Transp. Union, 891

F.2d at 912 n.7 (distinguishing “allegations of future injury

that are firmly rooted in the basic laws of economics” from

other allegations of future injury). Sheriff Arpaio’s theory

that more immigrants mean more crime is not sufficiently

analogous to the basic laws of economics for our competitor

standing cases to apply.

Finally, we note that the Fifth Circuit’s recent decision in

Texas v. United States, 787 F.3d 733 (5th Cir. 2015), does not

support Sheriff Arpaio’s standing. That court found that the

State of Texas had standing to challenge DAPA because it

would be required to issue driver’s licenses to DAPA

subjected to a chokehold by resisting arrest.); O’Shea v. Littleton,

414 U.S. at 497; cf. Nw. Airlines, 795 F.2d at 201.

20

beneficiaries. Id. at 748-54. Texas offers driver’s licenses at

a substantially subsidized price; it loses $130.89 on each

license it issues. Id. at 748. DAPA renders the approximately

500,000 of its beneficiaries who reside in Texas eligible to

obtain Texas driver’s licenses. Id. at 752. Texas alleged that

anyone who qualifies under DAPA also by the same token

qualifies for a Texas license. Such an increase in the numbers

of persons eligible for Texas driver’s licenses, the Fifth

Circuit reasoned, has the “direct and predictable effect” of

imposing costs on the state. Id. Assuming arguendo the

correctness of that conclusion, here, by contrast, the record

reveals nothing from which we may draw the inference that

the “direct and predictable effect” of the challenged policies

will be an increase in the costs to Sheriff Arpaio’s office of

responding to crime. Sheriff Arpaio’s contention is, at

bottom, premised on the speculative prediction that DACA

and DAPA will create incentives on third parties to behave in

misinformed or irrational ways that would harm him. The

claim in Texas, by contrast, was that undocumented aliens

immediately become eligible for the license benefit by dint of

becoming DAPA beneficiaries. Insofar as those

circumstances pose “actual and imminent” concrete harm to

Texas, we face a significantly different situation here. See id.

at 744-45, 751.

B.

Sheriff Arpaio’s argument in the district court focused on

the harms he anticipates from an increased number of people

unlawfully crossing the border. On appeal, his standing

theory focuses more on a separate prediction that fewer of the

undocumented aliens already in the United States will be

removed under the new policies than would have been

removed without them. See Oral Arg. Tr. 15:6-10. Under

this second theory, Sheriff Arpaio argues that he will be

21

injured because some portion of the six million people who

might benefit from deferred action will remain in Maricopa

County rather than being removed, and some portion of those

will commit crimes. This theory rests on the unsupported

assumption that the total removals will drop due to DACA

and DAPA, plus the speculation that those programs’

beneficiaries will increase the crime rate.

A crucial assumption behind this standing claim is that,

but for the challenged policies, the government would be able

promptly to remove individuals eligible for DACA or DAPA.

But Sheriff Arpaio does not dispute that the Department of

Homeland Security has the resources only to remove fewer

than 400,000 undocumented aliens per year. See Hrg. Tr.,

J.A. 718-19. Indeed, he repeatedly alleges that, before DACA

and DAPA, the government was removing far fewer

undocumented aliens from Maricopa County than he thought

was appropriate. But Sheriff Arpaio does not generally

challenge what he calls the executive’s failure to enforce the

immigration laws; his claims are directed only to DACA and

DAPA. Neither those policies, nor the Department of

Homeland Security that administers them, contemplates the

net removal of fewer individuals under the policies than under

the status quo ante.

The relevant question, then, is not whether the

government will remove fewer undocumented aliens under

the challenged policies than without them, but whether the

shift in removal priorities that DACA and DAPA reflect will

cause an increase in crime in Maricopa County. Sheriff

Arpaio’s prediction of an increase in undocumented aliens

committing crime runs contrary to the thrust of those policies.

DACA and DAPA apply only to non-dangerous immigrants.

They are designed to allow the Department to focus its

resources on removing those undocumented aliens most

22

disruptive to the public safety and national security of the

United States. To qualify for DAPA or DACA, individuals

must pass a background check, have long-term ties to the

United States, and submit to individualized assessments for

compatibility with the Secretary’s priorities in removing

criminals. Even after they are approved for deferred action,

DAPA and DACA beneficiaries are subject to the

Department’s overall enforcement priorities. They get no free

pass to commit offenses, whether dangerous or otherwise

serious; those types of offenders remain high priorities for

removal from the United States.

The flaw in Sheriff Arpaio’s logic is fatal to his claim.

See Renal Physicians, 489 F.3d at 1278. The challenged

policies seek to increase the proportion of removal

proceedings and deportations of those who pose a threat to

public safety or national security. The policies are designed

to remove more criminals in lieu of removals of

undocumented aliens who commit no offenses or only minor

violations while here. To the extent that such predictions are

possible, if the programs are successful by their own terms,

the number of crimes committed by undocumented aliens in

Maricopa County should drop. Sheriff Arpaio has not

explained how making the removal of criminals a priority

over the removal of non-dangerous individuals will instead

result in an increase in crime.3 This is thus not a case in

3

The Fifth Circuit recently acknowledged a similar flaw in

Mississippi’s challenge to DACA. Mississippi’s claim of injury

was not supported by facts showing that DACA-eligible

undocumented aliens would impose increased costs on the state.

Crane v. Johnson, 783 F.3d 244, 252 (5th Cir. 2015). The Fifth

Circuit observed that it could instead be the case, as the Department

of Homeland Security argued and contrary to Mississippi’s

contentions, “that the reallocation of DHS’s assets is resulting in

the removal of immigrants that impose a greater financial burden on

23

which the plaintiff and defendant each present plausible

explanations for the facts alleged. See Starr v. Baca, 652 F.3d

1202, 1216-17 (9th Cir. 2011). Dismissal is required because

the “plausible alternative explanation” that DACA and DAPA

will result in fewer crimes in Maricopa County, not more, “is

so convincing that [the] plaintiff’s explanation is

implausible.” Id.; see also Renal Physicians, 489 F.3d at

1277.

* * *

We have observed that the “complexity and

interdependence of our society and governmental policies”

enable prospective plaintiffs to allege theories of causation

that, though severely attenuated, carry with them “some

plausibility.” Nw. Airlines, 795 F.2d at 203 n.2. “If such

allegations were routinely accepted as sufficient to confer

standing, courts would be thrust into a far larger role of

judging governmental policies than is presently the case, or

than seems desirable.” Id. We must rigorously review

allegations by plaintiffs who seek to invoke the subject matter

jurisdiction of the federal courts based on the projected

response of independent third parties to a challenged

government action. In this case, Sheriff Arpaio’s standing

allegations fall short. For these reasons, we hold Sheriff

Arpaio lacks standing to challenge DACA and DAPA.

Accordingly, we affirm the judgment of the district court.

So ordered.

the state,” and, if so, DACA’s “net effect would be a reduction in

the fiscal burden on the state.” Id. The court affirmed dismissal of

the case for want of “a sufficiently concrete and particularized

injury that would give Plaintiffs standing to challenge DACA.” Id.

at 255.

BROWN, Circuit Judge, concurring: Today we hold that

the elected Sheriff of the nation’s fourth largest county,

located mere miles from our border with Mexico, cannot

challenge the federal government’s deliberate non-

enforcement of the immigration laws. I agree with my

colleagues that the state of the law on standing “requires, or at

least counsels, the result here reached.” Haitian Refugee Ctr.

v. Gracey, 809 F.2d 794, 798 (D.C. Cir. 1987). But,

recognizing that Sheriff Arpaio’s claims reflect the wide-

spread perception that the administration’s prosecutorial

discretion meme is constitutionally problematic, I write

separately to emphasize the narrowness of today’s ruling, and

note the consequences of our modern obsession with a

myopic and constrained notion of standing.

***

Sheriff Joseph Arpaio of Maricopa County, Arizona, filed

suit to prevent the President from implementing programs

deferring the removal of certain undocumented immigrants

from the United States. These programs, referred to as

Deferred Action for Childhood Arrivals (DACA) and

Deferred Action for Parents of Americans (DAPA), generally

delay removal proceedings for undocumented immigrants

who pass a background check and satisfy specified eligibility

criteria. See Memorandum from Janet Napolitano, Exercising

Prosecutorial Discretion with Respect to Individuals Who

Came to the United States as Children 1 (June 15, 2012), J.A.

101; Memorandum from Jeh Charles Johnson, Exercising

Prosecutorial Discretion with Respect to Individuals Who

Came to the United States as Children and With Respect to

Certain Individuals Who are Parents of U.S. Citizens or

Permanent Residents 1 (Nov. 20, 2014), J.A. 145. Those who

qualify receive authorization to work and reside in the United

States for renewable periods.

2

What the government views as permissible prosecutorial

discretion, Sheriff Arpaio views as a violation of the

President’s duty to “take Care that the Laws be faithfully

executed,” U.S. CONST. art. II, § 3, and the non-delegation

doctrine. Sheriff Arpaio also identifies potential procedural

violations, contending the orders fail to comply with notice-

and-comment procedures required by the Administrative

Procedure Act.

Sheriff Arpaio’s problems with the challenged policies

run deeper than a difference in philosophy or politics. He

claims DACA and DAPA impose clear and “severe[]” harms

on his ability to protect the people of Maricopa County.

Compl. ¶ 27. In particular, he argues that deferring removal

proceedings and providing work authorizations to

undocumented immigrants “harmed . . . his office’s finances,

workload, and interfere[d] with the conduct of his duties . . .

.” Id. He attributes an influx of undocumented immigrants to

the Department’s non-enforcement policies, and claims it

corresponded with a rise in crime. Increased crime means

increased costs for the Sheriff, who must run the jails and

provide deputies to police the streets.

***

Sheriff Arpaio’s concerns are no doubt sincere. But, as

the court concludes, we cannot hear his claims because he

lacks standing to proceed. Under our standing jurisprudence,

the injuries he claims resulted from DACA and DAPA are

simply too inexact and speculative. Consequently, we must

affirm the district court’s dismissal of the complaint.

Some may find today’s outcome perplexing. Certainly

Sheriff Arpaio cannot be blamed for believing he had

standing. The relevant judicial guideposts do not exactly

3

“define[]” standing “with complete consistency.” Valley

Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 475 (1982). And some

cases suggest standing can be satisfied based on fairly

ephemeral injuries and attenuated theories of causation. See,

e.g., Massachusetts v. EPA, 549 U.S. 497, 516–26 (2007).

Indeed, at first blush, Sheriff Arpaio’s allegations appear

somewhat similar to those the Supreme Court found sufficient

to secure standing in Massachusetts v. EPA. That case

revolved around EPA’s decision not to regulate greenhouse

gas emissions in new vehicles. Then, as now, standing

consisted of a tripartite test. Plaintiffs must show they were

or will be concretely injured by an action fairly traceable to

the defendant and redressable by the court. See Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 102–04 (1998). The

rules are somewhat relaxed for plaintiffs who, like

Massachusetts and Sheriff Arpaio, seek to vindicate a

procedural right, including “the right to challenge agency

action unlawfully withheld.” Massachusetts, 549 U.S. at 517.

Procedural rights claims can proceed “without meeting all the

normal standards for redressability and immediacy.” Id. at

517–18 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

572 n.7 (1992)). Massachusetts received a further benefit. As

a sovereign state, it was “entitled to special solicitude in [the]

standing analysis.” Id. at 520.

Massachusetts, like Sheriff Arpaio, believed the federal

government had “abdicated its [statutory] responsibility” to

protect the State’s interests. Id. at 505. The State, like the

Sheriff, asked the Court to construe the meaning of a federal

statute, “a question eminently suitable to resolution in federal

court.” Id. at 516. And Congress had authorized challenges

to the EPA, id., just as Congress has generally authorized the

type of challenge Sheriff Arpaio now pursues, see 5 U.S.C. §

4

704; see also Texas v. United States, 787 F.3d 733, 751–52

(5th Cir. 2015).

The Supreme Court ultimately found that Massachusetts’

injury lay in the potential loss of coastal land caused by the

threat of rising seas. The Court said “the rise in sea levels

associated with global warming has already harmed and will

continue to harm Massachusetts.” Massachusetts, 549 U.S. at

526. Scientific evidence suggested a causal relationship

between greenhouse gases and atmospheric warming. The

Court brushed aside EPA’s argument that Massachusetts had

only a generalized grievance widely shared by others. The

global nature of global warming did not negate the state’s

claimed concrete injury. See id. at 522–23.

Just as EPA’s inaction harmed Massachusetts’ shores,

inaction on immigration is said to harm Sheriff Arpaio’s

streets. Immigration, like global warming, affects the entire

nation. But that does not mean no one has standing to

challenge the concrete effects of the federal government’s

immigration policies. “[W]here a harm is concrete, though

widely shared, the Court has found ‘injury in fact.’” FEC v.

Akins, 524 U.S. 11, 24 (1998).

Based on these facial similarities, someone in Sheriff

Arpaio’s shoes may well believe he has standing. After all,

Massachusetts sets out a “loosened standard” under which

“any contribution of any size to a cognizable injury” seems to

be “sufficient for causation, and any step, no matter how

small,” seems to be “sufficient to provide the necessary

redress.” Jonathan H. Adler, Standing Still in the Roberts

Court, 59 CASE W. RES. L. REV. 1061, 1078 (2009). Under

that elastic framework, the risk of harm, however tenuously

linked to the challenged government action, appears to suffice

to show standing.

5

Despite initial appearances, Massachusetts does not

support the Sheriff’s standing. Preliminarily, perhaps sensing

that Massachusetts’ broad-based claim could not satisfy the

ordinary rules of standing, the Court lowered the bar, ruling

that state litigants were “entitled to special solicitude” in the

standing calculus. Massachusetts, 549 U.S. at 520. In

addition to being special, the solicitude the Massachusetts’

Court manufactured was highly selective: cast in concerns

over state sovereignty, see id. at 518–20, this bit of doctrinal

favoritism likely does not extend to non-state litigants like the

Sheriff, who must clear the ordinary hurdles to standing. The

Sheriff falls short, largely for the reasons addressed below.

Without the laxity afforded to state litigants, Sheriff

Arpaio’s arguments for causation are overly speculative. At

bottom, Sheriff Arpaio avers that DACA and DAPA inspired

a flood of immigration which led, in turn, to increased crime.

His injury rests on the behavior of third parties,

undocumented immigrants who chose to commit crime. “[I]t

is ordinarily substantially more difficult to establish” standing

based on the actions of third parties. Lujan, 504 U.S. at 562

(internal quotations omitted). The Sheriff has not met that

higher burden. The link between DACA and DAPA—

programs designed for non-criminals—and crimes committed

by undocumented immigrants is too attenuated and

susceptible to intervening factors.1 See, e.g., Mideast Sys. &

1

Of course, in reality, the link may be no more attenuated than that

connecting a potential twenty-centimeter rise in sea level with

greenhouse gas emissions from new vehicles. See Massachusetts,

549 U.S. at 522; see also Adler, supra, at 1074 n. 91 (“[T]he

amount of sea-level rise that constitute[d] Masachusetts’s actual,

present injury is less than 0.1cm-0.2cm per year, and the amount of

projected sea-level rise that could be redressed by regulation of

greenhouse gas emissions from new motor vehicles under [EPA’s

6

China Civil Const. Saipan Joint Venture, Inc. v. Hodel, 792

F.2d 1172, 1178 (D.C. Cir. 1986) (“[T]he presence of an

independent variable between either the harm and the relief or

the harm and the conduct makes causation sufficiently

tenuous that standing should be denied.”). Lacking grounds

for special treatment under Massachusetts, Sheriff Arpaio has

not satisfied the demands of our standing doctrine.

Finally, the central difference between this case and

Massachusetts may be much more practical in nature:

Massachusetts, unlike Sheriff Arpaio, did its homework. The

State hired experts and introduced detailed information

suggesting a causal relationship between certain gases,

atmospheric warming and a rise in sea levels. See

Massachusetts, 549 U.S. at 521–23. Sheriff Arpaio instead

can show potential costs but not causation, owing largely to

the difficulty of showing causation in cases dependent on

third-party behavior. Without more, his claim cannot survive

the scrutiny of our modern, formalistic approach to standing.

***

Today’s holding puts the consequences of our standing

jurisprudence in stark relief. If an elected Sheriff responsible

for the security of a county with a population larger than

regulatory authority] is even less, as U.S. motor vehicles only

represent a fraction of [greenhouse gas] emissions.”). Even so,

Sheriff Arpaio has not shown that link with the particularity our

precedents demand. See, e.g., Nat’l Wrestling Coaches Ass’n v.

Dep’t of Educ., 366 F.3d 930, 941 (D.C. Cir. 2004) (requiring

“substantial evidence” in the record “of a causal relationship

between the government policy and the third-party conduct, leaving

little doubt as to causation and the likelihood of redress”).

7

twenty-one states2 cannot bring suit, individual litigants will

find it even more difficult to bring similar challenges. But

today’s decision, however broad it may seem, is actually quite

narrow in two respects.

First, our decision holds only that Sheriff Arpaio lacks

standing to challenge DACA and DAPA, not that those

programs are categorically shielded from suit. Indeed, those

programs are currently subject to challenge in a number of

other circuits. See Texas, 787 F.3d at 747–55 (upholding

Texas’ standing to challenge DAPA based on the costs of

providing drivers licenses to DAPA beneficiaries); Ariz.

DREAM Act Coal. v. Brewer, No. 15-15307, 2015 WL

300376 (9th Cir. July 17, 2015) (ordering the parties, and

inviting the federal government, to file briefs discussing

whether DACA violates the separation of powers or the Take

Care Clause of the Constitution); cf. Crane v. Johnson, 783

F.3d 244, 252 (5th Cir. 2015) (holding Mississippi lacked

standing to challenge DACA because the state failed to

“submit[] . . . evidence that any DACA eligible immigrants

resided in the state” or “produce evidence of costs it would

incur if some DACA-approved immigrants came to the

state”).

Second, today’s decision does not take issue with the

claim that unlawful immigration carries consequences.

Indeed, the Supreme Court has previously made clear that

Sheriff Arpaio’s home state of Arizona “bears many of the

consequences of unlawful immigration.” Arizona v. United

States, 132 S. Ct. 2492, 2500 (2012). “Hundreds of thousands

of deportable aliens are apprehended in Arizona each year.

2

Maricopa County Profile, MARICOPA COUNTY OPEN BOOKS,

http://www.maricopa.gov/OpenBooks/profile.aspx (last visited July

28, 2015).

8

Unauthorized aliens who remain in the State comprise, by one

estimate, almost six percent of the population.” Id. In the

county the petitioner is charged with policing, “these aliens

are reported to be responsible for a disproportionate share of

serious crime.” Id. Nothing in today’s opinion casts doubt on

these conditions. The court holds only that these general

conditions, without more, do not afford the right to challenge

the specific federal deferred action programs at issue.

***

Our jurisprudence on standing has many shortcomings.

As today’s decision demonstrates, standing doctrines often

immunize government officials from challenges to allegedly

ultra vires conduct. To understand how this deferential

attitude came to pass, we must briefly consider how the

standing doctrine evolved over the decades.

Academic accounts suggest that, from the time of the

founding until the early twentieth century, “there was no

separate standing doctrine at all.” Cass R. Sunstein, What's

Standing After Lujan? Of Citizen Suits, "Injuries," and Article

III, 91 MICH. L. REV. 163, 170 (1992); accord JOSEPH

VINING, LEGAL IDENTITY: THE COMING OF AGE OF PUBLIC

LAW 55 (1978) (“The word ‘standing’ . . . does not appear to

have been commonly used until the middle of . . . [the

twentieth] century.”); William A. Fletcher, The Structure of

Standing, 98 YALE L.J. 221, 224–25 (1988) (“[N]o general

doctrine of standing existed.”). “In early practice in England

and in the United States, moreover, certain forms of action, or

writs, were available to all citizens without any showing of a

‘personal stake’ or an ‘injury in fact.’” Alex Hemmer, Note,

Civil Servant Suits, 124 YALE L.J. 758, 764 (2014). There

were limits. Namely, plaintiffs could only proceed based on a

cause of action rooted in common law or statute. See

9

Sunstein, supra, at 169–70; Fletcher, supra, at 224. The

absence of a free-standing, self-conscious doctrinal approach

left room to challenge the government’s failure to meet its

obligations. That type of claim, “the public action—an action

brought by a private person primarily to vindicate the public

interest in the enforcement of public obligations—has long

been a feature of our English and American law.” Louis L.

Jaffe, Standing to Secure Judicial Review: Private Actions, 75

HARV. L. REV. 255, 302 (1961).

If public actions ever were a feature of our law, that is

true no longer. Soon after the turn of the twentieth century, as

the administrative state materialized, the Supreme Court

began focusing on standing as a critical component of

justiciability. See Sunstein, supra, at 179–81. In a significant

1923 case, the Court dismissed a taxpayer’s constitutional

challenge to the Maternity Act of 1921, finding the taxpayer’s

pecuniary interest in the Act to be “minute and

indeterminable” and noting this scant interest was “shared

with millions of other[]” citizens. Massachusetts v. Mellon,

262 U.S. 447, 487 (1923). In a sign of things to come, the

opinion emphasized the “inconveniences” inherent in

permitting challenges to widely shared grievances. Id.

Emboldened justiciability doctrines along these lines served

to “insulate progressive and New Deal legislation” from a

variety of challenges. Sunstein, supra, at 179.

In the following decades, the standing doctrine secured

its footing and coalesced around the three factors we know

today: injury in fact, causation and redressability. See Lujan,

504 U.S. at 560. But hidden within these factors, and the

surrounding case law, is a surprising hostility to suits seeking

to redress executive branch wrongdoing. That hostility is

encapsulated in the generalized grievance doctrine, which the

district court below emphasized in dismissing Sheriff

10

Arpaio’s suit. As the district court described the doctrine, “a

plaintiff who seeks to vindicate only the general interest in the

proper application of the Constitution and laws does not

suffer the type of direct, concrete and tangible harm that

confers standing and warrants the exercise of jurisdiction.”

Arpaio v. Obama, 27 F. Supp. 3d 185, 200 (D.D.C. 2014).

Separation of powers concerns underlie this approach.

“Vindicating the public interest (including the public interest

in Government observance of the Constitution and laws),” we

are reminded, “is the function of Congress and the Chief

Executive.” Lujan, 504 U.S. at 576.

Today’s decision reaches the same conclusion as did the

district court—Sheriff Arpaio lacks standing—but wisely

rests on grounds other than the generalized grievance

doctrine. Our antagonism to so-called generalized grievances,

if unbounded, threatens multiple harms. For one thing, this

doctrine gives public officials all the wrong incentives. The

advice seems to be: “Never steal anything small.” Focused

acts of wrongdoing against particular persons or classes of

persons will probably result in injury in fact, affording

standing to challenge public officials. But the larger the

injury, and the more widespread the effects, the harder it

becomes to show standing.

Moreover, the generalized grievance theory and related

principles of contemporary standing doctrine effectively

insulate immense swaths of executive action from legal

challenge. Our relentless emphasis on the need to show a

concrete injury caused by executive action and redressable by

judicial relief makes it virtually impossible to challenge many

decisions made in the modern regulatory state. Executive

branch decisions crafting binding enforcement (or non-

enforcement) policies, devoting resources here or there (at

taxpayer expense), or creating generally applicable norms

11

may well escape challenge. See, e.g., Hemmer, supra, at

768–69; see also Heckler v. Chaney, 470 U.S. 821, 831

(1985) (noting the “general unsuitability for judicial review of

agency decisions to refuse enforcement”).

Consider this case. The Sheriff’s claims on the merits

may well raise a constitutionally cogent point. Despite the

dazzling spin DHS puts on the DACA and DAPA programs, a

categorical suspension of existing law—distinct from the

case-by-case deferrals or targeted humanitarian exemptions

cited as past precedent—complete with a broad-based work

authorization, arguably crosses the line between

implementing the law and making it. See Zachary S. Price,

Enforcement Discretion and Executive Duty, 67 VAND. L.

REV. 671, 759–61 (2014). And this is true even if the

legislature aids and abets the usurpation. See generally

Department of Homeland Security Appropriations Act of

2010, Pub. L. No. 111-83, 123 Stat. 2142, 2149 (2009);

Consolidated Appropriations Act of 2014, Pub. L. No. 113-

76, div. F., Tit. II, 128 Stat. 5, 251 (2014) (directing the

Secretary of Homeland Security to “prioritize the

identification and removal of aliens convicted of a crime by

the severity of that crime,” but silent as to the propriety of

categorically suspending existing removal laws). Neither the

aggressive entrepreneurship of the executive nor the

pusillanimity of the legislative branch can alter the

fundamental constraints of the Constitution. See, e.g., Robert

J. Delahunty & John C. Yoo, Dream On: The Obama

Administration’s Nonenforcement of Immigration Laws, the

DREAM Act, and the Take Care Clause, 91 TEX. L. REV. 781,

850–56 (2013); Price, supra, at 759–61. However, although it

is the denial of standing rather than its grant that undermines

democratic accountability in such circumstances, concerns

about the efficacy of separation of powers principles can be

12

dismissed as “generalized grievances” no one has standing to

challenge.

Separation of powers concerns surely cannot justify every

application of the generalized grievance doctrine. By

prohibiting abstract, general claims, the doctrine aims to

ensure that the President’s “most important constitutional

duty, to ‘take Care that the Laws be faithfully executed’” is

not transferred to the courts. Lujan, 504 U.S. at 577 (quoting

U.S. CONST. art. II, § 3). But what if the Chief Executive

decides not to faithfully execute the laws? In that case our

doctrine falls silent. Paying a nominal filing fee guarantees

access to the federal courts, but challenge the executive’s

decision to undermine the rule of law and you will likely find

your fee wasted.

This court has previously emphasized the need to

approach the standing of challengers to ultra vires conduct

with a measure of sensitivity. In a 1987 case, we held that a

non-profit providing services to Haitian refugees lacked

standing, under both constitutional and prudential rubrics, to

challenge the executive’s policy of interdicting Haitian

refugees on the open ocean. Haitian Refugee Ctr., 809 F.2d

at 796. After concluding the challengers lacked standing

under Article III, the court applied the prudential standing

doctrine, which asks whether a plaintiff falls within the zone

of interests protected under a particular statutory or

Constitutional provision. Some flexibility was in order. The

challengers did not have to satisfy the zone of interest test

with respect to the

constitutional and statutory powers invoked by the

President in order to establish their standing to challenge

the interdiction program as ultra vires. Otherwise, a

meritorious litigant, injured by ultra vires action, would

13

seldom have standing to sue since the litigant’s interest

normally will not fall within the zone of interests of the

very statutory or constitutional provision that he claims

does not authorize action concerning that interest.

Id. at 811 n.14. While the court’s comments centered on

prudential standing, they offer a useful reminder that standing

doctrines—both constitutional and prudential in nature—

should not be construed so narrowly as to choke legitimate

challenges to ultra vires conduct. Here, the lesson is clear.

We should, at the very least, give careful thought before

blindly applying the generalized grievance doctrine in cases

challenging federal programs as ultra vires.

The second shortcoming of our standing doctrine is this:

standing has become a “lawyer’s game,” as Chief Justice

Roberts phrased it. Massachusetts, 549 U.S. at 548 (Roberts,

J., dissenting). Sophisticated, well-resourced litigants can

game the system, producing the types of proof that pass

muster, while less sophisticated litigants may be left outside

the courthouse doors. Our case law hardly provides clear

guidance. Sometimes standing appears to rest on mere ipse

dixit. “A litigant, it seems, will have standing if he is

‘deemed’ to have the requisite interest, and ‘if you . . . have

standing then you can be confident you are’ suitably

interested.” Flast v. Cohen, 392 U.S. 83, 130 (1968) (Harlan,

J., dissenting) (quoting Ernest J. Brown, Quis Custodiet Ipsos

Custodes?—The School-Prayer Cases, 1963 SUP. CT. REV. 1,

22).

More broadly, our obsession with standing “present[s]

courts with an opportunity to avoid the vindication of

unpopular rights, or even worse to disguise decision on the

merits in the opaque standing terminology of injury,

causation, remedial benefit, and separation of powers.” 13A

14

CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND

PROCEDURE § 3531.3 (3d ed. 1998).

***

In the not-so-distant past, Judge (and later Chief Justice)

Burger could safely conclude that “experience rather than

logic or fixed rules” guided the search for standing. Office of

Commc'n of United Church of Christ v. FCC, 359 F.2d 994,

1004 (D.C. Cir. 1966) (Burger, J.) (upholding the standing of

television viewers to intervene in broadcast license renewal

proceedings as “private attorneys general”). Experience and

logic no longer reign supreme. In place of “functional” tests

“designed to insure [sic] that only those with a genuine and

legitimate interest” may come into court, id. at 1002, we now

employ formalistic tests that may tend to discourage certain

constitutional challenges. Today’s decision teaches a lesson:

litigants bringing constitutional challenges must pay

exceptionally close attention to standing requirements. The

courts do—especially when litigants do not.

No doubt the modern approach to standing serves to

reduce our caseload. But there are much more important

matters at stake. “Some [litigants] need bread; others need

Shakespeare; others need their rightful place in the national

society—what they all need is processors of law who will

consider the people's needs more significant than

administrative convenience.” Id. at 1005 (quoting Edmond

Cahn, Law in the Consumer Perspective, 112 U. PA. L. REV.

1, 13 (1963)). Our approach to standing, I fear, too often

stifles constitutional challenges, ultimately elevating the

courts’ convenience over constitutional efficacy and the needs

of our citizenry.