By Eric Segall
The Supreme Court has three controversial, nationally important cases left this term, all from Texas. The Justices have been asked by the state of Texas to declare President Obama's immigration plans illegal; a woman who has graduated from Louisiana State University is asking the Court to stop the University of Texas from using racial criteria among other factors for roughly 25% of its undergraduate class; and clinics and doctors who perform abortions are asking the Court to strike down a Texas law that requires doctors who perform abortions to have admitting privileges at nearby hospitals and requires clinics to dramatically change their physical plants in ways that would drive many clinics out of business.
It is universally agreed that the doctors and clinics have legal standing to bring their case. But the Justices should not resolve the merits of the other two cases.
It is horn book law that in all cases filed in federal Court a plaintiff must have a personal injury caused by the defendant that can be redressed by the Court. These requirements, the Court has said, all inhere in Article III of the Constitution and cannot be waived by the defendant. Additionally as most federal jurisdiction experts would agree, these requirements are not self-defining, and soft or intangible factors often affect the Court's standing decisions. In both the affirmative action and immigration cases, both legal doctrine and soft factors should result in the Court refusing to reach the merits.
The University of Texas admits 75% of its class through a top ten percent program that has no explicit racial component. For the other 25%, the University looks at race as one factor among many others to build a racially and ethnically diverse class. Until 1956, the University of Texas was 100% white. Today, it is roughly 50% white and 50% people of color.
Abigail Fisher applied to the school in 2008 and was denied admittance. She filed a lawsuit shortly afterwards and then enrolled at LSU, eventually graduating from that school. In the lower court after graduation she explicitly waived all claims for injunctive relief, meaning she does not ever want to attend the University of Texas an an undergraduate. She also has never said she deserves damages for any difference in value between a LSU and Texas degree. Her only claim of injury is that she wants to be reimbursed for non-refundable application and housing deposit fees she paid when she applied to the school. But, even had she been admitted, she would not have received those fees back, so her denial of admittance did not cause her injury. Moreover, there are good arguments that sovereign immunity would bar a court from ordering Texas to pay Ms. Fisher any damages at all. Unlike previous affirmative action cases, Ms. Fisher did not bring a class action. The reality is that she no longer has a personal stake in this lawsuit.
But there is an even more compelling reason or soft factor for the Court to dismiss this case. Justice Kagan has reccused herself (I will exercise will power and not discuss her recusal and the ACA here). Thus, there are only seven Justices eligible to vote. Even in normal times, the Court should be reluctant to enter a controversial and nationally important area of law with only seven Justices (and has rarely done so). But when the plaintiff has so little to gain (if anything) from the case, and where the recused Justice's vote would almost certainly make a difference, it is the height of arrogance for the Court to reach out and resolve one of our nation's most sensitive social issues without good reason. Especially where, as here, the decision below (whether ultimately right or wrong) applied prior law in good faith, the Court should leave the case alone until all of its current members can participate fully.
In United States v. Texas, the State of Texas is challenging the President's decision to extend certain benefits to a few million undocumented immigrants who are parents of citizen or resident alien children and who have not committed any crimes. Like all plaintiffs, Texas must allege direct injury caused by the defendant.
The main injury Texas alleges in the lawsuit is that it may incur increased costs, such as having to issue more driver's licenses, if the President's program goes into effect. But there is nothing at all in the proposed rules relating to Texas' driver's licenses or any other services Texas may or may not provide to immigrants who take advantage of the programs. Texas would be free to make up for any additional costs (if there are any) in any number of ways related to the benefits it might in the future extend. More importantly, Texas would likely receive a lot more money in fees and taxes if the President's plan is allowed to protect the people who currently are afraid of coming out into the open. Texas may sincerely dislike the new immigration rules but its financial interest in the case is speculative at best and is not the kind of "imminent harm" the Court usually requires.
Intangible factors also counsel strongly against the Court deciding this case at this time. If states are allowed to sue the federal government every time federal law or policy alters the number of legal residents or citizens in that state, virtually every change in immigration and law enforcement policy would be fair game in federal court. There would be virtually no limit on which federal policies states could stall in the federal courts solely on the basis of ideological disagreement. Standing doctrine has been designed by the Justices to keep exactly those kinds of disputes out of the hands of federal judges.
Finally, what is truly at issue in this case is a policy dispute between those in favor of the President's immigration plan and those against it. Texas does not allege, nor could it, that the Congress could not implement the same exact rules. The 2016 election, only a few months away, may well change the nature and stakes of this case dramatically. Given Texas' failure to allege any imminent injury, economic or otherwise, the Court should not enter this political fray that may well be moot when the Administration changes in January.