Courts Save the Border – Momentarily

We have to interrupt what would otherwise be a day of research and office work to congratulate the 5th Circuit Court of Appeals which has upheld a Texas Federal Court which says the Obama administration can’t just unilaterally make up its own set of rules (as opposed to laws passed by Congress and duly funded) to essentially tear down the border.  The FedGov wanted to implement immediately which was challenged by:

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;

Of course the Obamanites will head to the US Supreme Court, where they’ve got something more of a stacked deck.  But enjoy it while you can, the Courts are Defending America.

(Be sweet if the people in Washington would o that without legal prodding…)

We begin by deciding whether the government has made a strong showing that it is likely to succeed on the merits of its claim that the states lack standing. It has not done so. We reach only the district court’s first basis for standing—the driver’s license rationale—because it is dispositive.

The states have the burden of establishing that at least one of them has Article III standing.23 First, they must assert an injury that is “concrete, par-ticularized, and actual or imminent.

“‘[T]hreatened injury must be certainly impending to constitute injury in fact,’ and . . . ‘[a]llegations of possible future injury’ are not sufficient.”25 Second, the injury must be “fairly traceable to the challenged action.” Clapper, 133 S. Ct. at 1147 (quoting Monsanto, 561 U.S. at 149). The states may establish standing based on costs they incur as a reasonable reaction to a risk of harm only if that harm is certainly impending. See id. at 1151. Third, the injury must be “redressable by a favorable ruling.” Id. at 1147 (quoting Monsanto, 561 U.S. at 149). “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” Massachusetts, 549 U.S. at 518.

The first requirement is likely satisfied by Texas’s proof of the costs of issuing driver’s licenses to DAPA beneficiaries. “An applicant who is not a citizen of the United States must present . . . documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States before the applicant may be issued a driver’s license.” TEX. TRANSP. CODE § 521.142(a). Documentation confirming lawful presence pur-suant to DAPA would qualify.26 The district court found that Texas would lose at least $130.89 on each license it issues to a DAPA beneficiary,27 and the United States does not dispute that calculation on appeal. It is well establishedthat a financial loss generally constitutes an injury, so Texas is likely to meet its burden.

The government attacks that conclusion on two grounds. First, it claims that Texas will be required neither to issue licenses nor to subsidize them. Texas responds that it will have to do so in light of Arizona DREAM Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014), which held that DACA beneficiaries were likely to succeed on their equal-protection challenge to Arizona’s policy of issuing licenses to some noncitizens but not to them, id. at 1067, and suggested but did not decide that the policy was preempted, id. at 1063. Although Arizona DREAM Act supports Texas’s position that it cannot legally deny licenses to DAPA beneficiaries, it is not dispositive. Even if we were bound by the decision of another circuit, that court said nothing about subsidizing licenses, and Texas could avoid financial injury by raising its application fees to cover the full cost of issuing and administering a license.
But that does not resolve the matter. The flaw in the government’s reasoning is that Texas’s forced choice between incurring costs and changing its fee structure is itself an injury: A plaintiff suffers an injury even if it can avoid that injury by incurring other costs.29 And being pressured to change state law constitutes an injury.
“[S]tates have a sovereign interest in ‘the power to create and enforce a legal code.’” Based on that interest, we held that Texas had standing to challenge the FCC’s assertion of authority over an aspect of telecommunications regulation that the state believed it controlled
31; three other circuits held that the preemption of an existing state law constitutes an injury; and the Sixth Circuit held that making the enforcement of an existing state law more difficult qualifies.33 Reviewing that caselaw, the Fourth Circuit explained that a state has standing based on a conflict between federal and state law if “the state statute at issue regulate[s] behavior or provide[s] for the administration of a state program,” Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011), but not if “it simply purports to immunize [state] citizens from federal law,” id. at 270.

That well-established caselaw is dispositive because if pressure to change state law in some substantial way were not injury, states would have no standing to challenge bona fide harms because they could offset most finan-cial losses by raising taxes or fees. Texas’s forced choice between incurring costs and changing its laws is an injury because those laws exist for the admin-istration of a state program, not to challenge federal law, and Texas did not enact them merely to create standing.

Second, the government urges that Texas will suffer no injury, because the costs of issuing licenses will be outweighed by countervailing economic ben-efits, including increased tax revenue, decreased reliance on state-subsidized health care, better financial support for DAPA beneficiaries’ children, increased revenue from vehicle-registration fees, and decreased auto insurance costs. A

ll that may be true, but those benefits are not properly weighed in evaluating standing here. We have addressed the question of offsetting benefits only to a limited extent, holding that individuals lacked taxpayer standing to challenge Louisiana’s issuance of pro-life license plates in part because the extra fees paid by drivers who purchased the plates could have covered the expenses associated with offering them and distributing the funds they raised. Henderson, 287 F.3d at 379–81.

That approach is appropriate, if at all, where the costs and benefits are of the same type and arise from the same transaction because the plaintiff has suffered no real injury. By contrast, other circuits have declined to consider offsetting benefits of different types or from different transactions. Our sister

circuits’ approach makes sense in that context because attempting to balance all costs and benefits associated with a challenged policy would leave plaintiffs without standing to challenge legitimate injuries, given that defendants could point to unrelated benefits, improperly shifting to the plaintiffs the burden of showing that the costs outweigh them.

Most of the benefits the government cites—increased tax revenue, decreased reliance on state-subsidized health care, and better financial sup-port for DAPA beneficiaries’ children—are wholly separate from the costs of issuing licenses. The other benefits it identifies—increased revenue from vehi-cle fees and decreased auto insurance costs—are more closely associated with the costs of issuing licenses, but the caselaw illustrates that they are still too far removed to be applied as offsets.

If you would like to read the complete text of what is likely to become a landmark (and contentious) case, click over to here and save a local copy on your computer.

Although the “dream artists” are going to howl holy hell as this, the real showdown will come at the US Supremes, where I think I’ve mentioned, the deck is stacked in favor of the Dreamers, illegals, and those new folks on welfare who we have been conveniently not enforcing existing laws on the books to prevent the invasion which continues even while the legal circus persists.

The border thus lives – on paper – for another day.  And despite the best efforts of the rank and file CBP personnel, the fix comes in from the top.  Which is why 10-20 million Mexicans are here in the first place.  Not all, but a lot were incentivized by the drug money and that in turn gets washed and back into where, exactly?

There is, clearly, a nod in the closing paragraph of the decision that the decision today will not hold:

I would hold that the underlying issue presented to us—the order in which non-citizens without documentation must be removed from the United States—must be decided, presently is being decided, and always has been decided, by the federal political branches. See Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.”).

On the expedience of immigration measures, sensible things can be said on all sides, mindful that our country is an immigrant society itself.
12 The political nature of this dispute is clear from the names on the briefs: hundreds of mayors, police chiefs, sheriffs, attorneys general, governors, and state legislators—not to mention 185 members of Congress, 15 states and the District of Columbia on the one hand, and 113 members of Congress and 26 states on the other. I would not affirm intervention and judicial fiat ordering what Congress has never mandated.

Sound jurisprudence is what is sounds like to me.  Next chapter, please?  I’ll call that one “Legislating from the Bench: SUPCO style.”

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