A Double Standard on Legal Standing at the Supreme Court

The Justice Department says the states don’t because they won’t be directly and concretely injured from the Administration’s guidelines. Yet the states claim they might have to spend more on incarcerating and providing healthcare to undocumented immigrants who might otherwise be removed.

Conservative Justices sounded incredulous at the Biden Solicitor General’s argument that no state should have standing to challenge an executive’s immigration policy—or for that matter any decision not to enforce federal law. “An individual or a state doesn’t have a judicially cognizable injury in seeking enforcement of the law against a third party,” SG

Elizabeth Prelogar

argued.

Chief Justice

John Roberts

replied that the Administration’s position is “inconsistent” with the Court’s decision four months ago on the Biden rescission of “Remain in Mexico” policy. “I would have thought you’d have a little more concern about an opinion of ours that’s 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 granted employers a religious exemption from covering contraception for workers. States said they had standing because they might have to spend more on healthcare for those workers. Lower courts let the case proceed.

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

The four conservative Justices in the minority in that case believed the states lacked standing since their purported injury wasn’t fairly traceable to EPA’s failure to regulate CO2. But the liberal majority disagreed and granted “special solicitude” in their standing analysis to states. Justice Alito said the Biden Administration is now showing “special hostility” to states.

Ms. Prelogar is a better advocate than she seemed on Tuesday, but you can’t blame her for struggling to parse the Court’s inconsistent precedents on standing. During the Trump years, the Court granted special solicitude 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 won’t 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, particularly with respect to a Guidance that never requires agents to detain some noncitizens over others,” Judge Sutton explained. Justices trying to make sense of the standing mess its decision have created might consider consulting his opinion.