No doubt you have all heard about the injunction against the Obama administration's deferred action directive regarding undocumented aliens issued by a Brownsville, Texas federal district judge.
While the Memorandum and Opinion justifying that order is a smorgasbord of derp, its central argument finding that the challenging states (including Texas) have standing is quite something:
The States allege that the DHS Directive will directly cause significant economic injury to their fiscal interests. Specifically, Texas argues that the DHS Directive will create a new class of individuals eligible to apply for driver's licenses, 14 the processing of which will impose substantial costs on its budget. [...] As Defendants concede, "a direct and genuine injury to a State's own proprietary interests may give rise to standing." [. . .] Defendants in this case argue, however, that the projected costs to Plaintiffs'. [. . . ] driver's license programs are "self-inflicted" because the DHS Directive does not directly require states to provide any state benefits to deferred action recipients, and because states can adjust their benefit programs to avoid incurring these costs.This assertion, however, evaluates the DHS Directive in a vacuum. Further, this claim is, at best, disingenuous. Although the terms of DAPA do not compel states to provide any benefits to deferred action recipients, it is clear that the DHS Directive will nonetheless affect state programs. Specifically, in the wake of the Ninth Circuit's decision in Arizona Dream Act Coalition v. Brewer, it is apparent that the federal government will compel compliance by all states regarding the issuance of driver's licenses to recipients of deferred action. 757 F.3d 1053 (9th Cir. 2014).
In Arizona Dream Act Coalition v. Brewer, the plaintiffs, DACA beneficiaries, sought an injunction to prevent the defendants from enforcing an Arizona policy that denied driver's licenses to recipients of deferred action. Id. at 1060. Necessary for the imposition of an injunction, the Ninth Circuit examined whether the plaintiffs were likely to succeed on the merits of their case, and focused on the fact that Arizona's driver's license program permitted other non-citizens to use employment authorization documents to obtain driver's licenses-the same documentation that would be conferred upon DAPA recipients. Id. at 1064. Finding that this policy likely discriminated against similarly-situated parties in violation of the Equal Protection Clause, the court enjoined the defendants from denying driver's licenses to deferred action beneficiaries. Id. at 1069.
No doubt you are asking yourself, wait a second, isn't Texas in the Fifth Circuit, not the Ninth? You would be correct. But derp can't be bothered with facts and logic.
Head below the fold for some clarification.
Although the Ninth Circuit's opinion in Arizona is not necessarily binding on the majority of Plaintiffs in this case, it nonetheless suggests that Plaintiffs' options to avoid the injuries associated with the DHS Directive are virtually non-existent and, if attempted, will be met with significant challenges from the federal government. [My emphasis]
Wait, what? What do you mean "not necessarily binding?" It's not binding at all. The only way it can become binding is if the Fifth Circuit adopts the holding in
Arizona. The derp judge waves this problem away:
This conclusion would be particularly persuasive in Texas since its driver's license program—like Arizona's—permits applicants to rely on federal employment authorization documentation to show legal status in the United States. If Texas denied driver's licenses to beneficiaries of the DHS Directive, as suggested by the Government here, it would immediately be sued for impermissibly discriminating against similarly situated parties that rely on employment authorization documentation to apply for driver's licenses.
Oh a potential lawsuit confers standing now? Who knew? Here's what's funny, this derp judge is not saying that he is adopting the Ninth Circuit rule, but rather he is claiming someone might sue arguing that the Fifth Circuit
should adopt this rule. Voila! Standing!
Forget for a moment that this derp judge is misstating what the Ninth Circuit rule is (see actual case for that), what is astounding is he finds his implicit speculation that the Fifth Circuit would adopt the Ninth Circuit rule as the basis for conferring standing in THIS case. So the standing requirement of a "direct injury" is reduced—standing is present IF someone can allege that someone else might sue them arguing that nonbinding case law should be adopted by the Fifth Circuit. This is, to say the least, a novel interpretation of standing doctrine. And the derp judge is not shy about articulating the speculative fear of a lawsuit is conferring standing:
[I]f Texas or any of the other non-Ninth Circuit States sought to avoid an Equal Protection challenge and instead denied driver's licenses to all individuals that rely on employment authorization documentation, they would be subjecting themselves to a different but significant challenge on federal preemption grounds.
That's direct injury now? I might get sued? Allrighty then. DERP.
But to me the interesting part of this story is what will the Fifth Circuit do with this? The government has already announced its intention to appeal (injunctions can be immediately appealed). Will the Fifth Circuit, in order to confer standing, adopt the Ninth Circuit's Arizona rule? Will it hold that Texas (and other Fifth Circuit states) have to accept federal work documents from deferred action undocumented aliens for the issuance of drivers licenses? That would be a significant and unexpected victory in and of itself.
It is important to note that the standing issue does not decide the merits of this case. (I think the precedents make it pretty clear that states can not raise the objections identified here in that the federal government, particularly the executive branch, has the constitutional power to act as it has, but more on this point in a later post), but to even entertain the merits, standing must be present. And Judge Derp is requiring the Fifth Circuit adopt the Ninth Circuit rule here if Judge Derp's ruling on standing is to be upheld. A point worth watching.