Amicus Curiae Brief — United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674)

No. 15-674 “Sipreme Coun, US. |

In The

Supreme Court of the nit

7

UNITED STATES OF AMERICA, et al..

Petitioners,

STATES OF TEXAS, ALABAMA, ARIZONA, ARKANSAS,

FLORIDA, GEORGIA, IDAHO, INDIANA, KANSAS,

LOUISIANA, MONTANA, NEBRASKA, NEVADA,

NORTH DAKOTA, OHIO, OKLAHOMA, SOUTH

CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH,

WEST VIRGINIA, WISCONSIN; PAUL R. LePAGE,

GOVERNOR, STATE OF MAINE; PATRICK L.

McCRORY, GOVERNOR, STATE OF NORTH

CAROLINA; C.L. “BUTCH” OTTER, GOVERNOR,

STATE OF IDAHO; PHIL BRYANT, GOVERNOR, STATE

OF MISSISSIPPI; BILL SCHUETTE, ATTORNEY

GENERAL, STATE OF MICHIGAN,

Respondents.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

°

BRIEF OF AMICI CURIAE FEDERAL COURTS

SCHOLARS AND SOUTHEASTERN LEGAL

FOUNDATION IN SUPPORT OF RESPONDENTS

+

KIMBERLY S. HERMANN ERNEST A. YOUNG

SOUTHEASTERN LEGAL Counsel of Record

FOUNDATION 3208 Fox Terrace Drive

2255 Sewell Mill Road Apex, NC 27502

Suite 320 (919) 360-7718

Marietta, GA 30062 young@law.duke.edu

Counsel for Amici Curiae

April 4, 2016

COCKLE LEGAL BRIEFS (800) 225-6964

WWW .COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether at least one plaintiff State has standing

to challenge the Executive’s Deferred Action for

Parents of Americans and Lawful Permanent Resi-

dents (DAPA) program.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED....................::ccccceeeeeeees i

TABLE OF AUTHORITIES ...................::cccseseeeees iv

INTEREST OF AMICI CURIAE ................000000000 1

SUMMARY OF ARGUMENT ......................:000000 2

EE cchiciisesasnaliaecindceilovacienisnidinnnpacibabecgiinniin 4

I. Texas’s straightforward injury in fact

arises directly from its responsibilities as

B SEALE TOVETRMOANE .......0ccccrsecccccccccscovcscecees 4

A. Texas’s responsibility for issuing

driver’s licenses plainly meets this

Court’s test for Article III standing..... 5

B. The cost of issuing driver’s licenses to

DAPA beneficiaries is simply one ex-

ample of the way DAPA expands the re-

sponsibilities of state governments........ 7

C. Texas does not lack standing as a

Il. Texas does not lack standing on the

ground that its injury is “self-inflicted.” .... 13

A. There is no “self-inflicted injury” rule.... 13

B. Texas’s injury is not “self-inflicted.”.... 19

Ill. Recognizing state standing here will

vindicate — not disrupt — our constitution-

IE cietusdstndcicnaitinteninnicaciahaansmniniiamnnti 24

A. The States are effective litigants for

vindicating diffuse interests ............... 26

ill

TABLE OF CONTENTS -— Continued

Page

B. The government action challenged

here has cut off States’ ordinary polit-

ical and administrative remedies........ 29

IV. The Respondent States have standing

SEES ED ene oe FALE 32

De csitniniiinicivinnsiicnniieecetnensanininnnintnesenie 38

iv

TABLE OF AUTHORITIES

Page

CASES

Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex

rel. Barez, 458 U.S. 592 (1982)..................... 8, 19, 29

Allen v. Wright, 468 U.S. 737 (1984). ........0cccccccceeeeeees 10

Anderson v. Bessemer City, 470 U.S. 564 (1985)......... 6

Ariz. DREAM Act Coal. v. Brewer, 757 F.3d

I SID ins ac niesiianmmadenioonenataiiesiiieneaiiin 21

Arizona v. United States, 132 S. Ct. 2492 (2012) .....2, 8, 34

Baker v. Carr, 369 U.S. 186 (1962).............cccccccceeeeeees 36

Bennett v. Spear, 520 U.S. 154 (1997) ..............0. 5, 6,7

Brown v. Board of Education, 347 U.S. 483

SII sancscccinieneneeiaenusimansinimainenaiaieianeaiiniuaneiabbiaredets 18

Chamber of Commerce v. Whiting, 131 S. Ct.

TINIE. csasrscipitiisicntienisinpenennnientbinapanaaiadidtaanieniniguiciiin 8

Chrysler Corp. v. Brown, 441 U.S. 281 (1979).....35, 36

Clapper v. Amnesty Int'l, 133 S. Ct. 1138

STII sdcnisioptientiabaeinsiedaidignasenmnedighibeniinddiin 13, 14, 15, 20

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987) .....10, 34

De Canas v. Bica, 424 U.S. 351 (1976)....................0064 8

FAIC Sec., Inc. v. United States, 768 F.2d 352

Sy MIE, Cet icesceemnacnsicdasnlicsinieteinssenahanninsebinnineimasiid 32

FEC v. Akins, 524 U.S. 11 (1998)............... 5, 10, 28, 33

Garcia v. San Antonio Metro. Transit Auth.,

I, HE I cciicscnciticcenineinainetenanbibastiniacdicadatoa 30

Vv

TABLE OF AUTHORITIES — Continued

Page

Gregory v. Ashcroft, 501 U.S. 452 (1991)... 30

In re GMC Pick-Up Truck Fuel Tank Prod.

Liab. Litig., 55 F.3d 768 (3d Cir. 1995) ........-..0-++++. 28

Iowa League of Cities v. EPA, 711 F.3d 844 (8th

Chee BOIB) ..cccocccccecccccccccescccccccssccesconssscscssccsososocses 35, 36

Lexmark Int'l, Inc. v. Static Control Compo-

nents, Inc., 134 S. Ct. 1377 (2014)........ 33, 34, 35, 37

Linda R.S. v. Richard D., 410 U.S. 614 (1973).......... 12

Maine v. Taylor, 477 U.S. 131 (1986)...........cccceeeeees 19

Massachusetts v. EPA, 549 U.S. 497 (2007)....6, 25, 26, 28

Massachusetts v. Missouri, 308 U.S. 1 (1939) ........... 17

Match-E-Be-Nash-She-Wish Band of Potta-

watomi Indians v. Patchak, 132 S. Ct. 2199

GID... sincacccncececessevcnseseevesooeescssotesessonuinsoionsatonns 33, 34

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

CRIIIID .....:ncvsicsoccnvesoctsvessecdcsessdnncescebnbesasosssssscsnsesentevtes 22

Mississippi v. Louisiana, 506 U.S. 73 (1992)............. 17

Monsanto Co. v. Geertson Seed Farms, 561 U.S.

SI CIID iccccccoccnecooccsctassosscesstccsornnteassocceios 10, 14, 15

Pennsylvania v. New Jersey, 426 U.S. 660

CRI eccnccasesesicnenssintessssdsbetecsteceieeniin 15, 16, 17, 20, 23

Plyler v. Doe, 457 U.S. 202 (1982)........ccccecceeeereereeens 12

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984)............ 11

Texas v. New Mexico, 462 U.S. 554 (1983)............... 17

Warth v. Seldin, 422 U.S. 490 (1975) ..........:ccccceeeeeeees 18

vi

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

pene I, GU I 32, 34, 36, 37

STATUTES

Administrative Procedure Act,

ee Oe ee OUD invicscccsecesvcsiicconsvntecnieseciiel passim

gh | RETEST ES SEA Ae Wee ee nee ae ON NY 35

gg SEEPS SE renee eral 32, 35

Immigration and Naturalization Act, 8 U.S.C.

Se II, coiwtcsccinasienentnadiinscsntanninsiiucnnaliisiig 32, 34, 37

RULES

i ns a Oe i oa erie ries cate nichindtanlinticicheaniiblentiiedl 6

I CT Ts CIN sat inact adptinnnaiabicmnbeebenlanibdonebiinaimnite 1

OTHER AUTHORITIES

Comment, State Standing to Challenge Federal

Administrative Action: A Re-Examination of

the Parens Patriae Doctrine, 125 U. Pa. L.

I | oa snd eeindee iain emnenisaesilieecnndeg 35

Richard H. Fallon, Jr., John F. Manning,

Daniel J. Meltzer, & David L. Shapiro, Hart

and Wechsler’s The Federal Courts and the

Federal System (7th ed. 2015)...............cccecceeeeeeeeeee 25

vii

TABLE OF AUTHORITIES — Continued

Page

Richard D. Freer & Edward H. Cooper, 13B

Federal Practice & Procedure § 3531.11.1 (3d

©” RESEESRAEA SRDS Lapeer a tere a Ser ee See OAD MC ONOY Bae 18

Chuck Lindell, Texas Attorney General Greg

Abbott opposes federal government on many

fronts, Austin American-Statesman, Aug. 7,

2010, available at http://www.statesman.com/

Bradford Mank, Should States Have Greater

Standing Rights than Ordinary Citizens?:

Massachusetts v. EPA’s New Standing Test

for States, 49 Wm. & Mary L. Rev. 1701

Cristina Rodriguez, The Significance of the

Local in Immigration Regulation, 106 Mich.

Os I inthe 8

United States’ Br. as Amicus Curiae in Support

of Appellees in Ariz. DREAM Act Coal. v.

Brewer, No. 15-15307, U.S. App. LEXIS 14423

RN CN, is edeseceinniitnededscwuiinisaisbamidinuneininitiis 21

Kathryn A. Watts & Amy J. Wildermuth,

Massachusetts v. EPA: Breaking New Ground

on Issues other than Global Warming, 102

Nw. U. L. Rev. Colloquy 1 (2007) ..................cee 19

vill

TABLE OF AUTHORITIES — Continued

Page

Herbert Wechsler, The Political Safeguards of

Federalism: The Role of the States in the

Composition and Selection of the National

Government, 54 Colum. L. Rev. 543 (1954)............ 30

Ernest A. Young, Two Cheers for Process Feder-

alism, 46 Vill. L. Rev. 1349 (2001)..................000.008 30

1

INTEREST OF AMICI CURIAE

Amici scholars are law professors who teach and

write in the field of federal jurisdiction.’ Our purpose

is to support Respondents’ claim to standing while

remaining agnostic as to the other issues in the case.

We hold varying views on the policy merits of the

Executiv..s Deferred Action for Parents of Americans

and Lawful Permanent Residents (DAPA) program,

as well as on the legal merits of the States’ separation

of powers and Administrative Procedure Act chal-

lenges to that program. We file this brief in our

individual capacities, without purporting to represent

the views of our home institutions.

Jonathan Adler is the inaugural Johan Verheij

Memorial Professor of Law at the Case Western

Reserve University School of Law. Erin Morrow

Hawley is an Associate Professor at the University of

Missouri School of Law. Bradford Mank is the James

B. Helmer, Jr. Professor of Law at the University of

Cincinnati College of Law. Garrick Pursley is an

Associate Professor at the Florida State University

College of Law. Ernest A. Young is the Alston & Bird

Professor at Duke Law School.

' All parties have consented to the filing of this brief by

blanket or individual letter. See Sup. Ct. R. 37.3(a). No counsel

for a party has authored this brief in whole or in part, and no

person other than amicus curiae, their members, and their

counsel has made monetary contribution to the preparation or

submission of this brief. See Sup. Ct. R. 37.6.

2

Amici Southeastern Legal Foundation (SLF),

founded in 1976, is a national non-profit, public

interest law firm and policy center that advocates

constitutional individual liberties, limited govern-

ment, and free enterprise. SLF drafts legislative

models, educates the public on key policy issues, and

litigates regularly before the Supreme Court. As an

organization interested in federalism and separation

of powers, SLF has a particular interest in the stand-

ing of state governments to assert these principles.

«

SUMMARY OF ARGUMENT

This lawsuit concerns whether the States, which

this Court has recognized “bear[ ] many of the conse-

quences of unlawful immigration,” Arizona v. United

States, 132 S. Ct. 2492 (2012), shall have any voice in

the legal regime that determines who may be lawfully

present within their borders. Our Constitution and

federal statutes provide two primary avenues for

State input: the States’ political representation in

Congress, and the opportunity to participate in

administrative policymaking through the notice and

comment procedures of the Administrative Procedure

Act (APA), 5 U.S.C. §§ 500 et seg. The gravamen of

Respondent States’ claims on the merits in this case

is that both of these avenues have been shut down by

the national Executive’s unilateral action in DAPA.

The United States is thus wrong to say that the

States’ lawsuit asks “the federal courts to resolve

3

complex debates over immigration policy that the

Constitution reserves to the political Branches of the

National Government.” Pet’r Br. at 12. What the

Respondent States ask — and all the court of appeals

order below did — is to force the national Executive to

conduct those “complex debates” in the political and

administrative fora that the Constitution and the

APA demand. The fundamentally process-oriented

nature of Respondent States’ claims on the merits is

essential to understanding what is at stake in the

arguments about Respondents’ standing.

That standing, by this Court’s traditional crite-

ria, is straightforward. The States have largely ceded

to national authorities the ability to determine who is

lawfully present within their own jurisdictions; as a

result, the States’ own governmental responsibilities

necessarily expand and contract in response to chang-

es in national immigration policy. One particularly

concrete instance of this is Texas’s law requiring

issuance of driver’s licenses to all persons that the

national government determines to be lawfully pre-

sent. DAPA’s expansion of that category increases

Texas’s costs, and that is sufficient for injury in fact.

The United States does not, in fact, challenge the

Respondent States’ standing on traditional grounds.

Instead, it has invented novel requirements without

support in this Court’s cases, such as a broad rule

against “self-inflicted injury.” And it has suggested

that the fact that the plaintiffs here are States should

cut against standing because that somehow trans-

forms a legal dispute over statutory authorization

4

and administrative process into a political controver-

sy. Neither of these departures from this Court’s cases

can withstand scrutiny.

Standing in this case requires no special stand-

ing loophole for state governments. It simply requires

recognition that Respondents are governments, with

responsibilities that are in part a function of whom

federal law permits to be lawfully present within

their jurisdictions. Amici take no position on whether

Respondents should prevail on their claims, much

less on what national immigration policy should be.

But there is no doubt that they have standing simply

to demand access to national debates about immigra-

tion policy.

°

ARGUMENT

I. Texas’s straightforward injury in fact

arises directly from its responsibilities as

a state government.

Although Texas alleges a variety of injuries, this

litigation has focused on the expenses the State will

incur on account of DAPA’s expansion of the class of

persons eligible to apply for state driver’s licenses.

The United States has characterized this injury as a

contrivance based on a quirk of state law. That is

unfair and misleading. The point is simply that both

the national and state governments are responsible

for caring for all persons lawfully present within their

jurisdictions. When the national Executive expands

5

that category by deeming over four million unlawfully

present aliens “lawfully present,” Pet. App. 413a, the

costs of governing not only for the national govern-

ment but also for state and local governments in-

crease drastically. Texas’s driver’s license program is

simply one particularly concrete example of those

increased costs. It is sufficient to answer the standing

question in this case.

A. Texas’s responsibility for issuing driv-

er’s licenses plainly meets this Court’s

test for Article III standing.

Article III requires a concrete injury in fact,

fairly traceable to the challenged government conduct

and redressable by the requested relief. Bennett v.

Spear, 520 U.S. 154, 167 (1997). The costs of issuing

driver’s licenses are plainly concrete and quantifiable

in monetary terms, although this is not required.’ Nor

is the injury widely shared; rather, as a cost of gov-

ernance, it is shared only by other states with similar

driver's license regimes.

The United States has not challenged traceability

or redressability here, nor could it do so.* Because

* See, e.g., FEC v. Akins, 524 U.S. 11, 24-25 (1998) (finding

“informational injury” based on an agency's failure to enforce dis-

closure requirements to be “sufficiently concrete and specific”).

* The United States’ novel argument that Texas's injury is

“self-inflicted” does ultimately go to traceability, but it does not

claim that the relation between DAPA and the State’s increased

costs is factually attenuated or uncertain. See infra Part II

(considering the “self-inflicted” argument).

6

standing does not turn on the magnitude of the

impending injury, it does not matter whether all or

even a large number of persons made eligible to

remain in the United States by DAPA apply for Texas

driver’s licenses. The United States does not appear

to dispute that some of those persons will apply for

driver's licenses,’ and that is sufficient to establish

traceability. And of course if the requested injunction

renders those persons ineligible to apply, Texas will

not incur the costs of issuing them licenses.*

Critically, the district court held a hearing on

these matters and grounded its standing ruling in

specific findings of fact. Those findings of fact con-

cerning the causal connections between DAPA and

Texas’s injury — which were affirmed by the court of

appeals — can be set aside only for clear error.” The

* The court of appeals found that “it is apparent that many

would do so.” Pet. App. at 30a.

* Cf. Massachusetts v. EPA, 549 U.S. 497, 524-25 (2007)

(holding that that plaintiffs may attack a government decision

even if it is merely an incremental cause of their injuries, and

even if the requested relief would only incrementally mitigate

those injuries); Bennett, 520 U.S. at 167-68 (holding sufficient to

establish an injury to plaintiffs that the agency was likely to

reduce the amount of water available to all affected parties, even

though it was not yet clear precisely how much plaintiffs’ own

allocation would be reduced).

* Fed. R. Civ. P. 52(a); Anderson v. Bessemer City, 470 U.S.

564, 573-74 (1985). Much of the Intervenors’ standing discussion

asks this Court to look Lehind the district court’s finding, see

Brief for Intervenors-Respondents Jane Does in Support of

Petitioner (Intervenor Br.) at 30-32, but Intervenors’ speculation

hardly demonstrates clear error.

7

United States has not argued that any finding by the

district court was clearly erroneous.

The United States argues instead that the cost of

applications for state benefits is “incidental” to the

main purpose of DAPA, which is to determine whom

may remain within the country. That is no doubt true;

no one says the United States embarked upon this

policy with the malign purpose of imposing costs on

state governments. But this Court’s standing cases

recognize no doctrine of “incidental” injury. Govern-

ment policies frequently inflict harm on parties as a

side effect of the government’s primary policy goal.

The injuries are no less injurious for that, and this

Court has frequently relied upon such injuries in

recognizing standing.’ Respondent States do not lack

standing here simply because their injuries may be

characterized as collateral damage.

B. The cost of issuing driver’s licenses to

DAPA beneficiaries is simply one ex-

ample of the way DAPA expands the

responsibilities of state governments.

Although the United States characterizes immi-

gration as an area of exclusive federal authority, this

" See, e.g., Bennett, 520 U.S. at 167-68 (finding injury in fact

where plaintiffs challenged an agency’s opinion on biological

impacts on endangered species, where that would incidentally

result in a reduction in water available for their irrigation

operations).

8

Court’s cases have recognized that the matter is

significantly more complex. This Court struck down

most of Arizona’s effort to ratchet up immigration

enforcement in Arizona v. United States, 132 S. Ct.

2492 (2012), but it upheld that same State’s measures

limiting employment of undocumented aliens in

Chamber of Commerce v. Whiting, 131 S.Ct. 1968

(2011).* State law and policy are intertwined with the

federal immigration regime in a variety of ways.” And

this Court has acknowledged that States bear many

of the costs of unlawful immigration. See Arizona, 132

S. Ct. at 2500.

More fundamentally, immigration regulation is

unique in that it concerns the scope of the body politic

itself. As Justice Scalia observed in Arizona, “the

power to exclude from the sovereign’s territory people

who have no right to be there” is “the defining charac-

teristic of sovereignty.” 132 S. Ct. at 2511 (Scalia, J.,

dissenting). That is because power to determine who

can enter and who can remain impacts every other

function of government. Aliens pervasively interact,

for example, with state laws and policies concerning

healthcare, education, employment, and public safety.

See generally Alfred L. Snapp & Son, Inc. v. Puerto

* See also De Canas v. Bica, 424 U.S. 351 (1976) (upholding

state law prohibiting employment of unauthorized aliens). The

United States’ brief cites Arizona v. United States extensively; it

does not acknowledge Whiting or the actual holding of De Canas.

* See Cristina Rodriguez, The Significance of the Local in

Immigration Regulation, 106 Mich. L. Rev. 567 (2008).

9

Rico, ex rel. Barez, 458 U.S. 592, 601 (1982) (observing

that States have an “easily identified” “sovereign in-

terest” in “the exercise of sovereign power over indi-

viduals and entities within the relevant jurisdiction”).

Although the States have ceded authority to the

national government to determine who may lawfully

be present within their jurisdictions, that concession

hardly erases the profound impact of those determi-

nations upon legitimate state interests. It is hard to

think of another aspect of federal policy that more

directly affects state governance. To pretend that

States cannot be injured by federal immigration

decisions is to close one’s eyes to the way the world

actually works.

C. Texas does not lack standing as a mere

“beneficiary” of federal regulation.

The United States suggests Texas lacks standing

because it is not directly regulated by federal immi-

gration laws. See Pet’r Br. at 20-22. This argument

fails for two reasons. First and foremost, Texas’s

standing rests on the various ways in which DAPA

affects Texas’s own responsibilities as a governmental

regulator and provider of government benefits. Texas

need not rely on its status as “beneficiary” of federal

regulation for standing. Second, notwithstanding the

United States’ suggestion, no categorical rule bars

beneficiaries of federal regulation from challenging

the national government’s administration of federal

programs.

10

It is certainly true that persons actually subject

to regulatory action nearly always have standing to

challenge that action; their difficulties generally

involve timing of review. And it is also true that

persons challenging governmental regulation of

others have faced higher hurdles to establish stand-

ing. But it has never been the case that plaintiffs in

the latter category were categorically excluded from

seeking judicial review of government decisions.”

Typically, beneficiaries of regulation struggle to

establish standing to challenge agency decisions

because, not being direct subjects of regulation,

their traceability and redressability scenarios involve

a more attenuated string of causal relationships.”

© See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 US.

139, 153-56 (2010) (upholding conventional alfalfa growers’

standing to challenge agency order deregulating genetically-

modified alfalfa on account of possible impacts on their own

crops); Akins, 524 U.S. at 11 (upholding voters’ standing to

challenge FEC’s decision not to enforce registration and report-

ing requirements against another organization); Clarke v. Sec.

Indus. Ass’n, 479 U.S. 388, 403 (1987) (holding securities broker

association had standing to challenge agency’s policy regulating

national] banks).

" In Allen v. Wright, 468 U.S. 737 (1984), for example, this

Court denied standing to parents of black children attending

public schools to challenge the Internal Revenue Service's

alleged failure to deny tax-exempt status to segregated private

schools. Pointing out that neither the private schools nor the

families attending them were parties to the litigation, the Court

held it was too uncertain that the IRS’s decisions had under-

mined desegregation in the public schools or that reversal of

those decisions would result in a desegregated education for the

plaintiffs’ children. See id. at 756-58.

11

And to the extent that the United States warns of an

avalanche of litigation if the States prevail here,

traceability and redressability are likely to remain

significant obstacles in many contexts. But aside from

asserting that Texas’s injury is self-inflicted, the

United States has not contested that Article III’s

causation requirements are met here. Apart from

those requirements, there is no freestanding re-

striction on claims by regulatory beneficiaries.”

In any event, Texas and the other Respondent

States need not rest their standing on their status as

regulatory beneficiaries. To be sure, they do have

interests that fall into that category. Many have

argued that illegal immigration undermines the

interests of legal workers and increases crime, and to

the extent this is true the citizens of Respondent

States benefit from the national government’s en-

forcement of the immigration law. In their capacity as

" The United States and its amici cite Sure-Tan, Inc. v.

NLRB, 467 U.S. 883, 897 (1984), for the proposition that plain-

tiffs have no “judicially cognizable interest in procuring en-

forcement of the immigration laws” against another, Pet’r Br. at

20; Brief for Professor Walter Dellinger as Amicus Curiae in

Support of Petitioners (Dellinger Br.) at 6, but neither acknow!l-

edges that Sure-Tan was not a standing case or that this Court

confined its statement to “private persons like petitioners,” who

were employers seeking to disqualify employees from voting in a

union election. 467 U.S. at 897.

12

parens patriae, the States have standing to sue to

protect these interests.”

But Respondent States have an even stronger

direct argument that, as a state government, they

must regulate and, in some cases, provide benefits for

persons the national government allows to enter the

country and is unable or unwilling to remove." In this

way, federal action (or inaction) significantly affects

the scope of the States’ own responsibilities. To

equate Texas with the private plaintiffs denied stand-

ing in cases like Linda R.S. v. Richard D., 410 U.S.

614 (1973), see Pet’r Br. at 20, is to ignore the crucial

fact that Texas is also a sovereign entity and that

federal immigration decisions impact the State’s own

governmental obligations.

In this, immigration is arguably unique. Both the

national government and the States must govern the

persons they find within their concurrent jurisdic-

tions. But only the national government can deter-

mine who is lawfully here or what steps will be taken

to exclude or remove those who are unlawfully pre-

sent. Fundamental state interests in the exercise of

their own governmental powers are thus inextricably

* See Resp't Br. at 30-34; see, e.g., Bradford Mank, Should

States Have Greater Standing Rights than Ordinary Citizens?:

Massachusetts v. EPA’s New Standing Test for States, 49 Wm. &

Mary L. Rev. 1701 (2008).

* See, e.g., Plyler v. Doe, 457 U.S. 202 (1982) (holding that

Texas cannot deny free public education to undocumented

school-age children within its borders).

13

tied to federal decisions in this field. None of the

cases cited by the United States, which involve pri-

vate individuals seeking to challenge government

action or inaction vis-a-vis other private individuals,

raise a comparable concern.

Il. Texas does not lack standing on the

ground that its injury is “self-inflicted.”

The United States’ central standing argument is

that Texas’s injury is “self-inflicted” and therefore

“not a legally cognizable injury or one that is fairly

traceable to the challenged federal policy.” Pet’r Br. at

24. But this Court’s cases recognize no general doc-

trine of “self-inflicted injury.” On the contrary, the

handful of cases that use that phrase refer to a di-

verse group of much more limited considerations,

none of which is applicable here. The novel doctrine

proposed by the United States, if adopted by this

Court, would revolutionize standing law. And in any

event, Texas’s injury is not self-inflicted.

A. There is no “self-inflicted injury” rule

under Article ITI.

Amici scholars have taught and written about

standing for many years without being aware of any

doctrine of “self-inflicted” injury. The closest this

Court has come is Clapper v. Amnesty Int'l, 133 S. Ct.

1138 (2013), which held inter alia that the costs a

plaintiff may incur to avoid the impact of a federal

policy do not constitute the injury in fact needed to

14

challenge that policy if the impact of the policy on

plaintiffs is itself highly uncertain. The Clapper

plaintiffs challenged aspects of the Foreign Intelli-

gence Surveillance Act (FISA) that authorized sur-

veillance of certain individuals outside the United

States. The plaintiffs — who claimed to engage in

communications with persons subject to FISA surveil-

lance — could not demonstrate that they had, in fact,

been subjected to any FISA surveillance; instead,

they relied on the costs they had incurred to avoid the

possibility of such surveillance to establish their

injury. Because these costs arose from the plaintiffs’

concerns that they might be subjected to surveillance,

this Court held that “respondents’ self-inflicted inju-

ries are not fairly traceable to the Government’s

purported activities ... and their subjective fear of

surveillance does not give rise to standing.” Jd. at

1152-53.

Clapper holds, at most, that plaintiffs who cannot

show they are even subject to a government policy

cannot manufacture injury in fact by voluntarily

expending resources in anticipation of being subject

to that policy. That is not the case here, where the

United States cannot and does not dispute that DAPA

will apply to persons in Texas and, as a result, affect

the operation of Texas’s own governmental opera-

tions. Clapper, moreover, must be read in conjunction

with other cases recognizing standing based on

injuries that might also be characterized as “self-

inflicted.” In Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010), for example, this Court held that

15

conventional alfalfa farmers had standing to chal-

lenge a federal agency’s decision to deregulate genet-

ically engineered alfalfa. Although it was uncertain

whether the genetically engineered alfalfa would in

fact infect nearby conventional alfalfa farms, the

plaintiffs undertook costly precautions against such

infection. This Court concluded that “[s]uch harms,

which respondents will suffer even if their crops are

not actually infected with the Roundup-ready gene,

are sufficiently concrete to satisfy the injury-in-fact

prong of the constitutional standing analysis.” Jd. at

155. If there were a general rule against self-inflicted

injuries, then surely Monsanto would have come out

the other way.”

Understandably, the United States does not rely

primarily on Clapper (and does not mention Monsan-

to). Instead, its best case is Pennsylvania v. New Jersey,

426 U.S. 660 (1976) (per curiam). That case consid-

ered two separate motions for leave to file complaints

in this Court’s original jurisdiction concerning taxation

'* Clapper distinguished Monsanto on the ground that the

farmers presented “concrete evidence to substantiate their

fears,” as opposed to “mere conjecture about possible govern-

mental actions.” 133 S.Ct. at 1154. This confirms that the

problem in Clapper was rooted in the uncertainty that the

challenged government action would ever apply to the plaintiffs,

thus rendering their precautionary expenditures not only self-

inflicted but superfluous. Given the evidentiary record and

district court findings here, the present case is much closer to

Monsanto than Clapper.

* See, e.g., Pet’r Br. at 25 (“Pennsylvania controls.”).

16

by one state that allegedly injured other states. The

entirety of the relevant discussion in this Court’s

opinion is as follows:

In neither of the suits at bar has the defen-

dant State inflicted any injury upon the

plaintiff States through the imposition of the

taxes held, in No. 69, and alleged, in No. 68,

to be unconstitutional. The injuries to the

plaintiffs’ fiscs were self-inflicted, resulting

from decisions by their respective state legis-

latures. Nothing required Maine, Massachu-

setts, and Vermont to extend a tax credit to

their residents for income taxes paid to New

Hampshire, and nothing prevents Pennsyl-

vania from withdrawing that credit for taxes

paid to New Jersey. No State can be heard to

complain about damage inflicted by its own

hand.

Id. at 664. This cursory discussion is the rock upon

which the United States rests its “self-inflicted inju-

ry” argument.

Pennsylvania simply cannot bear the weight that

the United States would place upon it here. The only

use of the term “standing” in the opinion occurs in the

Court’s later discussion of Pennsylvania’s additional

parens patriae claim on behalf of its citizens. Penn-

sylvania, 426 U.S. at 665-66. The Court rejected that

claim based on other grounds having nothing to do

with self-inflicted injury, and the United States does

not appear to rely on that part of the opinion here.

17

Amici submit that the remainder of Pennsylva-

nia’s discussion is best read as not concerning Article

III standing at all, but rather as an application of this

Court’s standard for exercising its original jurisdic-

tion. In Mississippi v. Louisiana, 506 U.S. 73 (1992),

this Court explained that “[rlecognizing the delicate

and grave character of our original jurisdiction, we

have interpreted the Constitution and 28 U.S.C.

§ 1251(a) as making our original jurisdiction obligato-

ry only in appropriate cases, and as providing us with

substantial discretion to make case-by-case judg-

ments as to the practical necessity of an original

forum in this Court.” Jd. at 76 (internal quotation

marks and citations omitted). One criterion is that “it

must appear that the complaining State has suffered

a wrong through the action of the other State,” Mas-

sachusetts v. Missouri, 308 U.S. 1, 15 (1939), and it is

evidently this requirement that concerned the Court

in Pennsylvania. Certainly there is conceptual over-

lap between this requirement and Article III injury in

fact, but the original jurisdiction cases do not invoke

Article III and there is no reason to believe that the

standards are the same.” As the Wright & Miller

treatise puts it, “[t]he special concerns that have

guided the Court in this area [original jurisdiction]

" The standard for this Court’s original jurisdiction seems

rather higher than the standard for Article III injury in fact. See,

e.g., Texas v. New Mexico, 462 U.S. 554, 571 n.18 (1983) (“The

model case for invocation of this Court’s original jurisdiction is a

dispute between States of such seriousness that it would amount

to casus belli if the States were fully sovereign.”).

18

are unique to its own jurisdictional problems, and do

not provide a sure basis for analogous reasoning in

other areas of state standing.””

In any event, the novel requirement proposed by

the United States would have radical implications for

standing doctrine. The United States suggests that

an injury is self-inflicted, and therefore unable to

support standing, any time it could have been avoided

if the plaintiff had taken some further action. That

radical doctrine would eliminate standing in any

number of landmark decisions of this Court. The

plaintiffs in Brown v. Board of Education, 347 U.S. 483

(1954), could have avoided the injury of segregation

by homeschooling their children, for example. But

because the laws in question were unconstitutional,

the plaintiffs were not required to alter their affairs

to avoid them.

Most injuries can be avoided by some action or

other; the question is whether the plaintiff could have

so easily avoided its injury that it lacks any real

personal stake in the dispute.” Certainly the

justiciability rules do not require the States to take

evasive action at all costs to avoid injury at the hands

of federal law. When a state law has been held invalid

* Richard D. Freer & Edward H. Cooper, 13B Federal

Practice & Procedure § 3531.11.1 (3d ed.), Westlaw (database

updated April 2015).

" See, eg., Warth v. Seldin, 422 U.S. 490, 498 (1975)

(observing that “the standing question is whether the plaintiff has

alleged .. . a personal stake in the outcome of the controversy”).

19

on federal constitutional grounds, for example, the

state has standing to appeal that judgment based on

the injury that inheres in not being able to enforce its

law;” no one says that this injury is “self-inflicted”

because the state did not have to enact its law in the

first place. Texas was not required here to alter its

legal regime to accommodate a change in federal law

that injured it, without first having the opportunity

to challenge the validity of that federal change. See,

e.g., Alfred L. Snapp & Son, 458 U.S. at 601 (recog-

nizing a State’s “sovereign interest” in “the power to

create and enforce a legal code”).”

B. Texas’s injury is not “self-inflicted.”

Even if this Court were to adopt a rule foreclos-

ing standing based on “self-inflicted” injuries, no

plausible version of that rule would cover Texas’s

claim here. Texas adopted its policy of permitting all

persons legally present in its jurisdiction to apply for

driver’s licenses long before DAPA, foreclosing any

claim that it adopted the policy as a post hoc attempt

to manufacture standing for its challenge to DAPA.

” See Maine v. Taylor, 477 U.S. 131, 137 (1986) (permitting

a state government intervenor to appeal a judgment invalidat-

ing a state law because “a State clearly has a legitimate interest

in the continued enforceability of its own statutes”).

*" See also Kathryn A. Watts & Amy J. Wildermuth, Massa-

chusetts v. EPA: Breaking New Ground on Issues other than

Global Warming, 102 Nw. U. L. Rev. Colloquy 1, 7 (2007) (noting

that “the state ... has a sovereign interest in preserving its own

law” that “should be sufficient for Article III purposes”).

20

Compare Clapper, 133 S. Ct. at 1151 (“[Rjespondents

cannot manufacture standing merely by inflicting

harm on themselves based on their fears of hypothet-

ical future harm that is not certainly impending.”).”

More fundamentally, Texas’s reliance on the federal

definition of lawful presence was entirely appropri-

ate, given the primary role that federal authorities

play in the immigration field.

As a border state with a large immigrant popula-

tion (both lawful and unlawful), Texas must address

which members of this population are eligible for

state benefits and services. Given the national gov-

ernment’s primary authority over immigration, it is

natural for the States to defer to federal decisions as

to who is lawfully present when making these deci-

sions. Texas has not made some sort of idiosyncratic

choice here; it has not pulled out some obscure provi-

sion of federal law and made it the touchstone of

eligibility for state benefits. Rather, it has simply

decided that, given the federal government’s primary

role in determining who may lawfully enter the

country and whom it will undertake to remove,

anyone federal authorities authorize to remain will be

eligible for certain state benefits. Indeed, given the

United States’ repeated emphasis on its exclusive

authority over these matters,” it is decidedly odd for

it to criticize Texas for relying on federal definitions.

* It is only on this narrow point that Clapper cited Penn-

sylvania. See id.

” See, e.g., Pet’r Brief at 13, 19-20.

21

Adopting the United States’ position on “self-inflicted”

injury would create perverse incentives for states to

adopt their own definitions of lawful presence for

purposes of state law, in order to protect themselves

from unexpected changes in the federal regime that

states would lack standing to challenge.

Critically, the United States has taken the posi-

tion that States are not free to adopt their own defini-

tions that diverge from federal immigration policy. As

Texas notes, Resp’t Br. at 23 n.20, the United States

argued to the Ninth Circuit that because federal

power over immigration is exclusive, “a State general-

ly may not establish classifications that distinguish

among aliens whom the federal government has treated

similarly.” In that case, the Ninth Circuit held that

both the Equal Protection Clause and (probably)

federal preemption precluded Arizona (a respondent

in the present case) from “target{ing)] DACA recipi-

ents for disparate treatment.” Ariz. DREAM Act Coal.

v. Brewer, 757 F.3d 1053, 1064 65 (9th Cir. 2014).

Amici take no position on whether either the United

States’ or the Ninth Circuit’s views are correct. But

surely it is a reasonable course for state governments

to avoid these potential conflicts with federal law by

incorporating federal definitions in this sensitive

* United States’ Brief as Amicus Curiae in Support of

Appellees, at 8 in Ariz. DREAM Act Coal. v. Brewer, No. 15-

15307, U.S. App. LEXIS 14423 (9th Cir. Aug. 2015). See also J.A.

309.

22

field. Such accommodation should hardly be charac-

terized as “self-inflicted injury.”

The special role of federal law in the immigration

context resolves the United States’ concern that state

governments will gratuitously incorporate elements

of federal law on any number of subjects into their

own legal regimes, then use that incorporation as

leverage to challenge federal policy. Whether or not

that hypothetical is a plausible expectation of how

state governments are likely to employ their own

limited resources, the field of immigration law is

unique on account of federal law’s primary role.

Although state income tax regimes frequently incor-

porate the federal definition of taxable income, see

Pet’r Br. at 32, for example, it is well-settled that the

national government lacks exclusive or even primary

authority over taxation.” State incorporation is a

matter of convenience. If this Court wished to limit

state standing to challenge changes in federal law

that trigger effects under state law, it could sensibly

draw the line between gratuitous incorporation of

this kind and incorporation that is arguably com-

pelled, such as federal immigration law’s definition of

lawful presence.”

* See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,

425 (1819).

* Amici do not say such a line is essential. Many other

constraints limit improvident state challenges, such as resource

and political constraints or the possible lack of a cause of action

or substantive legal basis for challenging a change in federal tax

policy.

23

The United States’ amicus make the extraordi-

nary claim that it does not actually matter whether

Texas can change its eligibility criteria for driver’s

licenses: “That there may be constitutional or other

limits on Texas’s options for changing its driver’s-

license program to avoid its self-imposed ‘harm’ does

not change the analysis.” Dellinger Br. at 15. This is

because “[t]hose exogenous constraints do not arise

from the Guidance and are therefore not relevant to

the question of respondents’ standing to challenge it.”

Id.” But amicus can hardly be arguing that the

Respondent States’ challenge is better directed at the

Supremacy or Equal Protection Clauses. If federal

statutory or constitutional law makes state incorpo-

ration of federal immigration law non-optional, then

injuries arising from changes in federal immigration

rules are simply not “self-inflicted.”

In any event, DAPA presented Texas with a

range of choices, each of which constituted cognizable

injury. It could have adopted its own definition of

which aliens are eligible for driver’s licenses, risking

a constitutional challenge and imposing distinctions

among aliens that Texas itself may have viewed as

unfair; it could have, as the United States insists,

” The United States’ amici assert that the dormant Com-

merce Clause would have prevented Pennsylvania changing its

tax scheme in Pennsylvania v. New Jersey. Dellinger Br. at 15-16

& n.7. The Pennsylvania Court's cursory discussion of “self-

inflicted” injury did not consider this point, which underscores

that that case should not be read as sub silentio articulating a

fundamental principle of standing doctrine.

24

raised the fees for driver’s license applications to

cover its additional costs, which would have entailed

either increasing costs for persons it had previously

chosen to assist or imposing potentially problematic

distinctions among them; or it could have taken no

action and simply absorbed the cost of additional

driver’s license applications. The important point is

that each of these choices either involves additional

costs or legislative action departing from Texas's

preferred legal regime. Each option, in other words,

would amount to a concrete injury in fact. And so the

fact that DAPA presented Texas with a choice among

bad options cannot make its injury “self-inflicted.”

Ill. Recognizing state standing here will

vindicate - not disrupt - our constitution-

al structure.

The United States remarkably asserts that “[iln

the immigration context alone, the court of appeals’

theory would give States virtually unfettered ability

to conscript courts into entertaining their complaints

about federal policies.” Pet’r Br. at 31. And it worries

that “States could interfere with the federal govern-

ment’s administration of the law in many other

contexts as well.” Jd. at 32. This rhetoric presupposes

a conclusion. Parties with valid injuries in fact do not

“conscript” courts into hearing their legal claims, and

valid claims that a federal agency has exceeded its

statutory authority or omitted necessary procedural

steps do not “interfere” with federal administration.

But the United States may be making a broader point

25

about the separation of powers — that is, that major

public controversies should not be resolved in court,

especially not at the behest of institutional actors like

state governments.

Article III, of course, contains no exception for

major controversies, and any rule that sought to

distinguish between major and minor disputes would

be hopelessly indeterminate. Moreover, nothing in

Article III limits the rights of States to pursue their

own claims in federal fora.” Instead, this Court has

said States are “entitled to special solicitude in our

standing analysis.” Massachusetts v. EPA, 549 U.S.

497 (2007). States are, in fact, particularly appropri-

ate litigants for aggregating the diffuse interests at

stake in controversies like this one. And precisely

because they are governments, the States suffer more

concrete harms.

Critically, the gravamen of Respondent States’

claims on the merits in this case is that the ordinary

processes for resolving policy disputes about immi-

gration or other issues have been cut off by the feder-

al Executive’s unilateral action. The States are

* One perverse consequence of the United States’ position

would be to encourage States to litigate these sorts of disputes in

their own courts. If the United States is right about Article III

standing, then these cases would not be removable to federal

court, and it is unclear that the state courts would lack authori-

ty to issue some relief. See, e.g., Richard H. Fallon, Jr., John F.

Manning, Daniel J. Meltzer, & David L. Shapiro, Hart and

Wechsler’s The Federal Courts and the Federal System 435-37

(7th ed. 2015) (noting continuing uncertainty).

26

politically represented in Congress, but the States

claim is that the Executive has circumvented the

legislative process here. And States are entitled to

participate in the administrative process as well, but

the States argue that the federal Executive has pre-

vented that by denying notice and comment under

the APA. These aspects of the case both make the

States’ standing particularly pressing here and pro-

vide potential limiting principles in future litigation.

A. The States are effective litigants for

vindicating diffuse interests.

Massachusetts v. EPA’s “special solicitude” for

States’ standing makes sound functional sense,

because States will often be uniquely appropriate

litigants for certain sorts of claims. States can play

this role, moreover, without requiring this Court to

recognize any special rule of standing for state liti-

gants. All that is necessary is to recognize that States

are governments, and governments have interests

and responsibilities that private litigants may not

share.

One of the most difficult problems in federal

practice and procedure concerns the appropriate

mechanisms for aggregating claims that affect large

numbers of people but that individual litigants lack

the incentives or the wherewithal to pursue. Standing

doctrine often creates or exacerbates the aggregation

problem. Here, for example, the persons most directly

affected by DAPA are the unlawfully present aliens

27

granted legal presence. These persons, of course, are

unlikely to challenge the program. But the natural

persons arguably injured by DAPA — the voters whose

representatives voted for the federal statutes that

DAPA arguably transgresses, or the federal and state

taxpayers whose resources will be diverted to pay

DAPA’s significant expenses — lack individual stand-

ing under settled law.

Our law has adopted a number of solutions —

such as class actions or organizational standing ~— for

aggregating claims that are impracticable to bring on

an individual basis. But these mechanisms all have

their problems, and none addresses the lack of indi-

vidual standing when injuries occur to diffuse public

interests. States, however, are empowered by state

constitutions and the Tenth Amendment to represent

the diffuse public interest of their citizens.

One significant advantage that States have over

private organizations and class actions is that they

have built-in mechanisms of democratic accountabil-

ity for their conduct of litigation on behalf of their

citizens.” Justices of this Court have complained that

tae use of “private attorneys general” to enforce

federal law raises significant problems of public

accountability, and similar concerns exist about

* Mank, supra, at 1784 (discussing checks on state litiga-

tion).

28

accountability of class counsel in class actions.” State

officials who sue on behalf of their citizens are politi-

cally accountable for their actions, however. A recent

re-election campaign by the Texas Attorney General,

for example, featured public debate about the appro-

priateness of the State’s participation in litigation

challenging the Affordable Care Act.”

Litigation by States fits well into a constitutional

system predicated on the notion that no one person or

institution can lay a unique claim to the public inter-

est. Our system of both vertical and horizontal checks

and balances recognizes that the public benefits when

multiple institutions can step in if a particular officer

or agency fails to pursue the public welfare or respect

legal constraints. Even in an area of strong national

interest like immigration, the national Executive is

not, and cannot be, judge in its own case. By accord-

ing “special solicitude” to States’ standing, Massachu-

setts v. EPA facilitated States’ valuable role in the

process by which every political institution is held

accountable to the rule of law.

* See, e.g., Akins, 524 U.S. at 36 (1998) (Scalia, J., dissent-

ing) (criticizing private attorneys general); In re GMC Pick-Up

Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768, 788 (3d Cir.

1995) (noting concern about lack of accountability of class

counse)).

" See Chuck Lindell, Texas Attorney General Greg Abbott

Opposes Federal Government on Many Fronts, Austin American-

Statesman, Aug. 7, 2010, available at http//www.statesman.

com/news/texaspolitica/texas-attorney-general-greg-abbott-opposes-

federal-government-847623.html?printArticle=y.

29

DAPA’s impact on the public is diffuse. But

because States, as governments, are immediately

responsible for governing whomever the national

government decides to allow to remain within the

country, States suffer direct and immediate conse-

quences. The cost of issuing driver’s licenses, as we

have said and the district court found, is only the

most salient example.

B. The government action challenged here

has cut off States’ ordinary political

and administrative remedies.

Throughout their submissions, the United States

and its amici assert that this dispute should be

reserved to the national political branches. See, e.g.,

Pet’r Br. at 12. There is a deep irony to this claim,

because the essence of the States’ argument is that

the national Executive has circumvented the political

and administrative processes that would otherwise

give States a voice. These processes include the

ordinary legislative process in Congress, which repre-

sents the States, as well as the APA’s notice and com-

ment procedure, which would ordinarily afford affected

States an opportunity for direct participation.

This Court recognized in Snapp that “the State

has an interest in securing observance of the terms

under which it participates in the federal system.”

458 U.S. at 607-08. And the federalism jurisprudence

has long acknowledged that “the principal means

chosen by the Framers to ensure the role of the

30

States in the federal system lies in the structure of

the Federal Government itself” — particularly the

representation of the States in Congress. Garcia v.

San Antonio Metro. Transit Auth., 469 U.S. 528, 550

(1985). This Court has given life to these “political

safeguards” of federalism by insisting that Congress

make the crucial decisions that affect important state

interests.” Whether or not these political safeguards

are sufficient to obviate the need for judicial enforce-

ment of other constitutional limits on national au-

thority, doctrines protecting Congress’s role have been

critical to sustaining our federal structure.”

It is thus crucial that States have standing to

complain when Congress — and therefore States

representation in that body — is cut out of the loop. If

States have standing to make no other constitutional

objection, they must nonetheless be allowed to make

this one. Because Congress’s role supplies the bul-

wark protection for state interests, the circumvention

of the legislative process that Respondent States

® See also Herbert Wechsler, The Political Safeguards of

Federalism: The Role of the States in the Composition and

Selection of the National Gavernment, 54 Colum. L. Rev. 543

(1954).

* See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 464 (1991)

(“{I]nasmuch as this Court in Garcia has left primarily to the

political process the protection of the States against intrusive

exercises of Congress’ Commerce Clause powers, we must be

absolutely certain that Congress intended such an exercise.”).

“ See, e.g., Ernest A. Young, Two Cheers for Process Federal-

ism, 46 Vill. L. Rev. 1349 (2001).

31

allege here works a unique injury to their interests.

And the United States cannot be heard to argue that

this dispute over immigration policy should be de-

ferred to political resolution when the national Exec-

utive has made an end-run around that very political

process in which Respondent States would otherwise

have been represented.

The other possible avenue for state participation

in a policy debate over immigration would be through

the notice and comment procedure guaranteed by the

APA. To be sure, the APA puts state commenters on

the same plane as any private party, rather than

affording them the structural representation they

receive in the national legislative process. But at

least notice and comment is a form of participation.

Respondent States claim here that they have been

wrongfully denied that very opportunity to partici-

pate. Whatever other claims the States may or may

not have standing to bring, they must at least have

standing to challenge the decision to foreclose their

participation in administrative decisions that cause

them concrete injury.

The political process to which the United States

asks this Court to defer, therefore, is simply the

internal deliberations of the national Executive

Branch. The Executive would be judge in its own

case, having cut off both legislative debate and partic-

ipatory agency deliberation. Having been excluded

from the avenues of participation ordinarily open to

them, the Respondent States must at a minimum

have standing to challenge their exclusion.

32

IV. The Respondent States have standing under

the APA.

The United States argues that the Respondent

States lack standing because they do not fall within

the zone of interests of the Immigration and Natural-

ization Act (INA), 8 U.S.C. §§ 1101 et seq. Pet’r Br. at

33-36. On its own terms, this argument rests on an

overly cramped reading of the INA’s purposes. But in

any event, the United States misconceives the rele-

vant legal provisions for its zone of interests argu-

ment. Respondent States have raised claims not only

that DAPA is inconsistent with the INA, but also that

the Executive has failed to meet its obligations under

the notice and comment provisions of the APA and the

Take Care Clause, U.S. Const. art. II, § 3. Standing to

bring those claims turns on the respective zones of

interests of those provisions, not the INA.

The Respondent States have sued under Section

10 of the APA, which provides that “[a] person suffer-

ing legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the

meaning of a relevant statute, is entitled to judicial

review thereof.” 5 U.S.C. § 702. Speaking of this

language, then-judge Scalia observed that “[t]he zone

of interests adequate to sustain judicial review is

particularly broad in suits to compel federal agency

compliance with law, since Congress itself has pared

back traditional prudential limitations by the [APA].”

FAIC Sec., Inc. v. United States, 768 F.2d 352, 357

33

(D.C. Cir. 1985) (internal quotation omitted).” More

recently, he wrote for this Court that “in the APA

context, . . . the [zone of interests] test is not ‘especial-

ly demanding.’” Lexmark Int'l, Inc. v. Static Control

Components, Inc., 134 S. Ct. 1377, 1389 (2014) (quot-

ing Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012)). “In

that context,” the Lexmark Court explained, “we have

often ‘conspicuously included the word ‘arguably’ in

the test to indicate that the benefit of any doubt goes

to the plaintiff,’ and have said that the test ‘forecloses

suit only when a plaintiff’s interests are so marginal-

ly related to or inconsistent with the purposes implic-

it in the statute that it cannot reasonably be assumed

that’ Congress authorized that plaintiff to sue.” /d.

(quoting Patchak, 132 S. Ct. at 2210).

The United States cannot make that showing

here. Its argument is that “Respondents cannot

satisfy this [zone of interests] requirement because no

relevant statute protects a State from bearing the

costs of a voluntary state-law subsidy for driver’s

licenses.” Pet’r Br. at 34. Aside from conflating zone of

interests with their self-inflicted injury argument, the

United States’ assertion runs directly counter to this

Court’s repeated admonition that “[w]e do not require

any ‘indication of congressional purpose to benefit the

would-be plaintiff.” Patchak, 132 S.Ct. at 2210

* In Akins, 524 U.S. at 19, this Court said that “(hlistory

associates the word ‘aggrieved’ with a congressional intent to

cast the standing net broadly.”

34

(quoting Clarke, 479 U.S. at 399-400). The question,

in other words, is whether issues concerning who may

lawfully remain in the United States, and the extent

to which immigration imposes obligations on affected

governments, fall within the scope of the INA.” That

question answers itself.

The scope of the INA is not the question, howev-

er, when it comes to Respondents’ claims under the

Take Care Clause and the notice and comment provi-

sions of the APA.” The United States is correct that

when a party sues under the general provisions of the

APA to challenge the consistency of agency action

with some other statute, such as the INA, then the

relevant zone of interests concerns that other statute.

But the right to notice and comment is created by the

APA itself; for suits seeking to enforce that require-

ment, then, the APA both creates the cause of action

and the underlying procedural right to be enforced.

As this Court recognized in Lexmark, “(wJhether a

plaintiff comes within the ‘zone of interests’ is an

* Cf. Patchak, 132 S.Ct. at 2210 n.7 (recognizing that

Indian Reorganization Act, authorizing acquisition of land for

Indian tribes, was not meant to benefit non-Indian landowners

who live nearby, but holding that the zone of interests question

was simply “whether issues of land use (arguably) fall within

{the IRA's] scope — because if they do, a neighbor complaining

about such use may sue to enforce the statute’s limits”).

” Even if Respondents’ notice and comment claim had to

fall within the zone of interests of the INA itself, it would surely

do so. See Arizona, 132 S. Ct. at 2508 (“Consultation between

federal and state officials is an important feature of the immi-

gration system.”).

35

issue that requires us to determine ... whether a

legislatively conferred cause of action encompasses a

particular plaintiff’s claim.” 134 S.Ct. at 1387.

Respondents are entitled to sue because they are

“aggrieved,” 5 U.S.C. § 702, by the denial of their

procedural rights under 5 U.S.C. § 553. And there is

no doubt that the latter provision embodies broad

interests in participation by persons affected by agen-

cy action.”

Government entities whose own regulatory

responsibilities will be affected by national agency

action fall squarely within the zone of interests

protected by the APA notice and comment require-

ment.” A recent Eighth Circuit decision provides a

good example. In Jowa League of Cities v. EPA, 711

F.3d 844 (8th Cir. 2013), local governments chal-

lenged an EPA action for effectively making new

legislative rules without notice and comment in

violation of procedural requirement in both the Clean

Water Act (CWA) and the APA. Ruling that the cities

had established Article III standing, the court of

appeals recognized that “[t]Jhe League’s members

have a concrete interest not only in being able to meet

* See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 316

(1979) (“In enacting the APA, Congress made a judgment that

notions of fairness and informed administrative decisionmaking

require that agency decisions be made only after affording

interested persons notice and an opportunity to comment.”).

* See generally Comment, State Standing to Challenge

Federal Administrative Action: A Re-Examination of the Parens

Patriae Doctrine, 125 U. Pa. L. Rev. 1069, 1094-1103 (1977).

36

their regulatory responsibilities but in avoiding

regulatory obligations above and beyond those that

can be statutorily imposed upon them. Notice and

comment procedures for EPA rulemaking under the

CWA were undoubtedly designed to protect the con-

crete interests of such regulated entities by ensuring

that they are treated with fairness and transparency

after due consideration and industry participation.”

Id. at 871.“

The analysis concerning Respondents’ Take Care

claim is similar. The United States makes two argu-

ments concerning the Take Care Clause relevant to

justiciability. The first is that this claim raises a

nonjusticiable political question because “to under-

take such an inquiry would express a ‘lack of the

respect due’ to the Nation’s highest elected official.”

Pet’r Br. at 73 (quoting Baker v. Carr, 369 U.S. 186,

217 (1962)). Courts do not dismiss constitutional

claims on the ground that they are disrespectful to

the government, of course, and no decision of this

Court has ever found a case nonjusticiable on this

ground.

The second argument is that the Take Care

Clause does not furnish a cause of action. But as

Respondents note, Resp’t Br. at 73, there is a long

“ Although the quoted language emphasized notice and

comment procedures in the CWA, the plaintiff cities also sued

under the APA and the court cited this Court’s APA cases. See

711 F.3d at 871 (citing Chrysler Corp., 441 U.S. at 316).

37

history of equitable relief against executive officials

acting in violation of law, and in any event it is un-

clear why the APA would not also provide a vehicle

for a Take Care claim. In the latter situation, the

relevant question would be whether plaintiffs fell

within the zone of interests of the Take Care Clause

itself, not the INA. Whether the Take Care Clause

creates enforceable rights and the exact contours of

the obligations it imposes on the Executive are, to be

sure, difficult questions. But if there are problems

with Respondents’ Take Care claim, they do not arise

from the zone of interests doctrine.

It is true that many potential plaintiffs fall

within the zone of interests of the APA’s notice and

comment provisions and the Take Care Clause as we

have construed them. But that simply reflects the

fact that the zone of interest test is “not especially

demanding,” Lexmark, 134 S. Ct. at 1389, especially

in the APA context. The more important constraints

arise from Article III. Given the Respondent States’

allegation of a concrete injury in fact under the

constitutional standard, the zone of interests argu-

ments raise no additional bar here.

>

38

CONCLUSION

The judgment of the U.S. Court of Appeals for the

Fifth Circuit should be affirmed insofar as it upheld

the States’ standing to sue in this matter.

Respectfully submitted,

KIMBERLY S. HERMANN ERNEST A. YOUNG

SOUTHEASTERN LEGAL Counsel of Record

FOUNDATION 3208 Fox Terrace Drive

2255 Sewell Mill Road Apex, NC 27502

Suite 320 (919) 360-7718

Marietta, GA 30062 young@law.duke.edu

April 4, 2016