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A Double Standard on Legal Standing at the Supreme Court

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Patrick Semansky/Associated Press

Federal courts have applied legal principles liberally, shall we say, to allow Democratic states to challenge federal policies they don’t like. So it was amusing to see the Biden Justice Department argue Tuesday that the Supreme Court should apply a stricter standard to GOP-run states.

In question USA v. Texas is a Biden memo that increased Immigration and Customs Enforcement (ICE) discretion over which undocumented immigrants to apprehend and deport. But the question that took up most of the nearly two-and-a-half hours of Tuesday’s oral argument was whether the states even had standing to sue.

The Department of Justice says the states do not, because they will not be directly and concretely harmed by the administration’s guidelines. Still, the states claim they may have to spend more on incarceration and health care for undocumented immigrants who might otherwise be removed.

Conservative Justices sounded incredulous at the Biden attorney general’s argument that no state should have a right to challenge an executive’s immigration policy — or, for that matter, any decision not to enforce federal law. “An individual or a state does not have a judicially cognizable injury to enforce the law against a third party,” argued SG Elizabeth Prelogar.

Chief Justice John Roberts responded that the administration’s position is “inconsistent” with the court’s decision four months ago on the Biden repeal of the “Remain in Mexico” policy. “I would have thought you would be a little more concerned about an opinion from us four months old. I mean, it’s not even out of the cradle yet and you’re throwing it under the bus,” the chief said. Touché.

Justice Samuel Alito asked how the Justice Department’s argument squared with a Democratic state challenge to Trump rules that grant employers a religious exemption to cover contraceptives for workers. States said they held off because they might have to spend more on health care for those workers. Lower courts let the case proceed.

Ms. Prelogar pretended not to remember the details of that case. Justice Alito then perked up Massachusetts v. EPA (2007), which led Democratic states to sue to force the Environmental Protection Agency to regulate greenhouse gases as “pollutants.” States claimed that EPA’s failure to regulate CO2 would cause climate change and damage state property.

The four conservative Justices in the minority in that case believed that the states lacked standing because their alleged injury was not reasonably traceable to EPA’s failure to regulate CO2. But the liberal majority disagreed and granted states “special care” in their standing analysis. Justice Alito said the Biden administration is now showing “special hostility” toward states.

Mrs. Prelogar is a better advocate than she appeared Tuesday, but you can’t blame her for struggling to parse the Court’s conflicting precedents on standing. During the Trump years, the court has given special concern to Democratic states, as Justices Alito and Neil Gorsuch pointed out in a dissent last year.

But in Tuesday’s case, the Justice Department is right that state injuries are speculative, since the enforcement priority guidelines will not necessarily increase the number of undocumented individuals or criminals in the states. Chief Judge Jeff Sutton for the Sixth Circuit Court of Appeals explained as much in July in a nearly identical case brought by three other GOP states.

“That the national government decides to remove or detain person A over person B does not establish that it will pursue fewer people, especially with respect to a guideline that never requires agents to detain some noncitizens over others ,” Judge Sutton explained. Justices trying to make sense of the standing mess his decision has created might consider consulting his opinion.

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