Posted on January 22, 2015

Could States Kill Obama’s Executive Amnesty?

Ian Smith, National Review, January 22, 2015

On January 30, the Southern District Court of Texas will decide whether 25 plaintiff states in Texas v. U.S. should be granted a preliminary injunction to stop the Obama administration’s latest, lawless executive amnesty. Establishing “legal standing”–essentially, a plaintiff’s right to sue–is highly problematic for petitioners aggrieved by the non-enforcement of our immigration laws, but the plaintiff states have skillfully laid out in their briefs a comprehensive case for why they should be granted standing.

The states assert several economic interests harmed by the Deferred Action for Parental Accountability (DAPA) program. They cite, among other things, the millions of dollars that DAPA will impose in costs to state budgets and the labor-market distortions created by its work-authorization provisions. If the states are granted standing, their challenge to DAPA’s legality will be allowed to go forward.


{snip} In their briefs, the states cite the costs that illegal aliens add to well-known programs. Texas, for example, must spend an additional $1.3 billion annually in uncompensated medical care, $106 million in CHIP provisions, and $9,473 to educate each illegal-alien child.

The plaintiff states emphasize the added cost to state licensing. They claim that under DAPA, illegal-alien recipients in most states, including Texas, will become eligible to apply for driver’s licenses, which will incur costs. Attorneys for the Justice Department have attempted to rebut this claim, asserting that the costs of processing licenses would be recouped with fees. Texas notes, however, that fees received from non-citizen applicants “do not come close to covering the State’s costs.” The net loss to the state will be as high as $200 per license, not including the costs of renewals, the plaintiff states maintain.


The plaintiff states rely in part on the Supreme Court’s decision in Massachusetts v. EPA, in which Massachusetts sued the Environmental Protection Agency for failing to regulate carbon emissions from new cars sold in the U.S. The state claimed that the emissions increased climate change, which would disproportionately impact the coastal state by raising sea levels. In Texas v. U.S., the plaintiffs argue, modestly, that their economic injuries are “far more concrete” and traceable than in Massachusetts’s case and that therefore their legal standing should be much clearer.


If they are granted standing and a trial on the case’s merits is held, the states will be able to provide further evidence of their injury under DAPA. Texas, for example, should include as an economic interest the $1 billion in un-recouped law-enforcement costs traceable to illegal aliens. But if Judge Andrew S. Hanen of the Southern District in Texas finds that the states lack sufficient standing and he dismisses the case, the House of Representatives should pass a resolution authorizing litigation to vindicate its institutional injury by filing a separation-of-powers lawsuit against the executive.