On April 18, 2016, the Supreme Court heard oral argument in a major immigration suit, United States v. Texas. This case is a highly-politicized lawsuit in which dozens of states have sued the federal government over what is effectively a policy dispute. In that respect, the case is newsworthy not only for the substantive immigration issues raised, but also because it implicates an important issue of standing.

By way of background, on November 20, 2014, the Secretary of Homeland Security issued a “Guidance” to establish a process for considering deferred action for certain aliens who have lived in the U.S. for five years and either came here as children or already have children who are U.S. citizens or permanent residents. Texas, along with a number of other states, challenged the Obama Administration’s authority to expand certain deferred action programs through this Guidance, alleging that the Guidance could result in millions of undocumented immigrants being granted some form of temporary relief from deportation and, as a consequence, impose significant burdens on the states. Most of the individuals who would fall within the parameters of the expanded programs are parents of children who have a legal right to remain in the United States. While these individuals would not gain U.S. citizenship, they would be allowed to remain in the country, obtain jobs, and gain access to several public benefits, such as drivers’ licenses.

The Guidance never went into effect because a Texas district court issued certain preliminary orders, subsequently affirmed by the Fifth Circuit, barring enforcement until a full trial could be held. The Obama Administration appealed these orders, arguing, in part, that the Department of Homeland Security has long engaged “in a regular practice (which ha[s] come to be known as “deferred action”)” in which the Secretary “exercis[es] [his] discretion for humanitarian reasons or simply for [his] own convenience.” Reno v. American-Arab Anti-Discrimination Comm..

In granting certiorari in this politically charged case, the Supreme Court asked the parties to address four questions:

  • Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action.
  • Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.
  • Whether the Guidance was subject to the APA’s notice-and-comment procedures.
  • Whether the Guidance violates the take care clause of the Constitution, Art. II, §3.

The first question, regarding standing, could have a profound impact on these types of policy dispute litigations. A ruling that the states do not have standing to sue the federal government over a policy or order would severely curtail these lawsuits. On the other hand, should the Court decide that the states do have standing, the floodgates may be opened for states (or entities that have the political ability to influence state attorneys general) to challenge all sorts of federal policies with which they disagree. Expectedly, the question of standing took center stage during oral argument and was the first topic the Chief Justice asked the Solicitor General to address.

The case, like many others, has also been made more intriguing by virtue of Justice Scalia’s death. That is because even if the Court decides that the state has standing to sue, it is unclear whether either side will secure a majority decision on the actual merits of the action.

And, finally, the Supreme Court itself added some allure to this case in that question 4, above, was presented by the Court sua sponte – a highly unusual step because the issue has not been addressed by the lower courts. It is extremely rare that the Supreme Court addresses a question that has not already been the subject of briefing and argument in lower courts.

A decision is expected in the case in June.