Next Monday the Court will hear argument in United States v. Texas, in which Texas and twenty-five other states are challenging the Obama administration’s initiatives deferring removal of millions of unauthorized immigrants.  Yet one of the most important issues in the case – whether Texas has standing to challenge these initiatives – has nothing to do with immigration law.  The question of when and whether states have standing to sue the United States to challenge executive branch enforcement policies has cropped up frequently over the last decade in cases concerning federal environmental policies, the Affordable Care Act, and federal disaster relief, among others.  This case gives the Court an opportunity to settle questions about the role of the states (and thus the courts) in monitoring federal law enforcement policies.

Legal scholars have been thinking about these questions for at least the last fifty years.  In the 1960s, prominent constitutional scholar Alexander Bickel argued that broad state standing to challenge federal law “would make a mockery . . . of the constitutional requirement of case or controversy, which . . . forms an essential limitation on the reach of the power of judicial review.”  In more recent work, Ann Woolhandler and Michael Collins agreed.

But the Supreme Court’s 2007 decision holding that Massachusetts had standing to sue the EPA for its refusal to regulate greenhouse gasses has led scholars to reevaluate these arguments.   Gillian Metzger wrote that the decision suggests “states have a special role in monitoring and improving” the president’s implementation of federal law.  As Metzger acknowledges, however, there must be somelimits on state standing, or else state attorneys general could force the courts to address almost any change in federal enforcement policy, dragging the courts into political battles between state attorneys general and the federal government.

In a recent article in the Cornell Law Review, Tara Grove has sought to provide just such a limiting principle.  She argues that “states are entitled to “‘special solicitude’ in the standing analysis in only one context:  when they seek to enforce or defend state law.”  Thus, although she contends that states can challenge federal laws and practices that preempt or undermine continued enforceability of state law, she argues they have “no special standing to ensure that federal agencies properly implement federal law.”  According to Grove, this view not only comports with the Constitution’s text and design, but is also desirable from a policy perspective.  As she explains, state attorneys general are well suited to make determinations about what is good for their state, but do not have the same expertise regarding the best interests of the United States as a whole.  Accordingly, under her standard, Texas lacks standing to sue the executive for its non-enforcement of federal immigration law, but does have standing to contest federal laws requiring it to change its treatment of deferred-action recipients (for example, by requiring Texas to provide them with driver’s licenses).

Stephen Vladeck articulated a different, and more stringent, limiting principle to explain why states lacked standing to challenge implementation of the Affordable Care Act.  He concludes that states only have standing when challenging federal laws that “operate on the states qua states.”  For example, he would agree that states have standing to challenge federal voting rights laws enacted under the Fifteenth Amendment, because that provision empowers Congress to regulate the states directly.  But Vladeck concludes that states lack standing to sue when challenging the enforcement of laws that may affect their citizens, but do not expressly bind the states themselves.  Under that standard, Texas lacks standing to challenge Obama’s immigration initiatives because its alleged injury – the cost of providing driver’s licenses to deferred-action recipients – is self-inflicted and not imposed by federal law.

In contrast, Zachary Price argues the standing question should focus on the capabilities of the federal judiciary, which suggests the Court does have standing to review Texas’s challenge (though he reaches no definitive conclusion on that question).  He would employ the political-question doctrine to help decide the role of courts in reviewing state challenges to executive non-enforcement.  Thus, judicial review is barred when the Constitution’s text assigns the question to the political branches or there are no judicially manageable standards for a court to apply.  Under this standard, Price tentatively concludes that courts are capable of reviewing Obama’s deferred-action initiatives for consistency with existing immigration law, past practice, and congressional ratification – the same standards that the Office of Legal Counsel used when discussing their legality.  Finally, he points out that if non-enforcement of federal immigration law is beyond judicial review, then administrations’ decisions to forgo enforcement of environmental, tax, or firearms regulation would be too.

Texas’s standing to sue is thus a major and unresolved question that the Court must address even before it reaches the legality of the president’s deferred-action initiatives.  Perhaps for that reason, the Court agreed with the parties to give the case thirty minutes of extra argument time.  It will be interesting to see how much of that time is devoted to the question of whether the Court can hear the case at all.