Fifth Circuit's Ruling on Standing in Mississippi DACA Case -- Implications for Texas DAPA Case

On Tuesday a three-judge panel of the United States Court of Appeals for the Fifth Circuit affirmed a decision of a District Court finding that the State of Mississippi lacks standing to challenge President' Obama's "DACA" immigration policy -- the policy that defers deportation of persons brought to this country as children. What does this mean for the decision of a Texas federal district court that found that the State of Texas and other states have standing to challenge the President's DAPA immigration policy -- the policy that defers deportation for four million more undocumented aliens?

I previously wrote Texas Federal Court Strikes Down DAPA, criticizing the district court's decision in Texas v. United States that the State of Texas had standing to challenge federal immigration policy. The State had argued, and the district court found, that Texas would incur costs (up to $175 per applicant) to issue driver's licenses to every extra person who applied for one, and that these costs constituted an "injury" that gave the state standing to oppose the President's immigration policy.

To have "standing" in federal court, a plaintiff must prove (1) that it suffered an injury; (2) that the action of the defendant caused the injury; and (3) that, if the plaintiff is successful, that the court can issue an order that will redress the injury. These three elements -- injury, causation, and redressability -- all are required in order for a plaintiff has standing.

In the previous post I argued that DAPA doesn't force the State of Texas to issue driver's licenses to anyone and that DAPA doesn't force the State of Texas to issue driver's licenses at less than cost. I was basically arguing that the federal government didn't cause Texas' injury.

In its recent ruling in Crane v. Johnson the Fifth Circuit ruled that the State of Mississippi lacked standing to challenge the President's DACA policy because it failed to prove that it had sustained any injury at all, the first prong of standing doctrine. However, the court in Crane didn't discuss the "driver's license" argument because Mississippi failed to raise the issue properly. In footnote 34 of its opinion the court stated:

In  a letter brief filed after oral argument, Mississippi put forward three new arguments in support of its standing, based on (1) the cost of issuing driver's licenses to DACA;s beneficiaries; (2) standing requirements specific to the Administrative Procedure Act; and (3) the federal government's abdication of its duties to enforce the immigration law. Because Mississippi failed to provide evidentiary support on these arguments and failed to make these arguments in their opening brief on appeal and below, they have been waived. (case citations omitted)

Accordingly, one might conclude that the court's decision in Crane doesn't have any implications for its eventual ruling in Texas v. United States because the driver's license argument wasn't even addressed.

However, Ian Millhiser of Think Progress has posted a cogent and persuasive essay arguing that the decision of the Fifth Circuit in Crane v. Johnson is signalling how the appeals court intends to rule in Texas v. United States. In Federal Appeals Court Hints That It May Reinstate President Obama's New Immigration Programs (April 8, 2015), Millhiser describes how the Fifth Circuit's decision repeatedly emphasizes how much discretion federal immigration law gives to the federal government over the decision to deport individuals. Millhiser states:

Indeed, the Crane opinion is peppered with language emphasizing the broad scope of executive branch officials' discretion in matters relating to immigration. Quoting a seminal Supreme Court opinion, Crane explains that "a principal feature of the removal system is the broad discretion exercised by immigration officials." The Fifth Circuit also emphasizes that "the concerns justifying criminal prosecutorial discretion are 'greatly magnified in the deportation context.'"

In other words, the Fifth Circuit has stated that under federal law the federal government has broad discretion whether to deport someone, even if they are in the United States illegally. This could mean that the Fifth Circuit is signalling that DACA and DAPA are consistent with federal law and are constitutional.

The court's language in Crane could also mean that even if DACA and DAPA are unlawful, the states lack standing to challenge those policies because the courts are powerless to order the federal government to deport anyone. Even if the states could prove that they sustained an "injury" as a result of having additional undocumented workers within their borders, the courts would be powerless to redress that injury by ordering the deportation of those individuals. The states would have failed to prove the third prong of standing doctrine -- redressability -- and on that ground alone these cases would have to be dismissed for lack of subject matter jurisdiction.