Liberty, Prudence, Imperfection, and Law

“The States v. Obama’s Decrees,” By Bruce Frohnen

“South Texas, Border Patrol Agents, McAllen Horse Patrol Unit” by US Customs and Border Protection. Photographer: Donna Burton

US District Court Judge Andrew Hanen has blocked implementation of recent Obama administration executive orders on immigration. Those orders would formally end possible deportation proceedings for millions of illegal immigrants, allowing them to remain in the United States and to receive a variety of government benefits and working privileges. Judge Hanen’s ruling, suspending Obama’s decrees while proceedings continue to determine their constitutionality, surprised many observers. Perhaps one reason for the surprise was the fact that the Obama executive orders have been for some months the subject of a feckless lawsuit pursued by House Speaker John Boehner. The so-far-more-successful lawsuit mentioned above has been spearheaded by the state of Texas, joined by twenty-five other states, but it questions the same executive decrees on much the same grounds. Yet the states’ lawsuit is not only more appropriate but much more likely to succeed. The reasons are instructive for understanding the manner in which constitutional issues can, or at least should, be contested in our legal system.

The legal claims before Judge Hanen actually are quite simple and irrefutable. First, the president has failed in his constitutional duty to take care that the laws are faithfully executed because he has made it impossible for the Immigration and Naturalization Service to deport illegal immigrants as required by duly enacted laws. Second, Obama’s “Deferred Action Program” is in violation of the Administrative Procedure Act because new regulations under that act must go through an extensive notice and comment period, which these decrees have not. Finally, that same program also is substantively unlawful because it is not, in fact, a set of revised regulations putting existing law into effect, but it is an entirely new law which would repeal duly enacted statutes and replace them with new legal provisions that have not been adopted through proper legislative procedures involving bicameral passage in Congress and presentment to the president for his signature or veto. Thus, the president’s actions clearly are unconstitutional, though it is unclear, given current judicial personalities and doctrines, whether the courts will do their duty and hold them so. Nonetheless, it is instructive to look at why it is that what is essentially the same legal case makes sense when brought by one party or set of parties (Texas and the twenty-five other states that joined its suit) whereas it is and should be a nonstarter when brought by a different party, namely a member of Congress.

Law cases in the United States require a plaintiff who has standing. This means, in essence, that the one doing the suing has to have a specifically legal reason for doing so. Not every judicial system has this requirement. Indeed, courts in many nations will seek to adjudicate claims made by just about anybody about just about anything, provided it suits the judges’ fancies. The results are hardly friendly toward liberty, due process of law, or even the interests of plaintiffs. In India, for example, supreme court justices sometimes note tragic events (e.g., fatalities from some industrial accident) or policy problems disproportionately impacting the poor and will invite activist lawyers to submit an “epistolary petition” (a letter) asking for help. Judges then will round up defendants through ads in the papers and convene a court-like session in which companies and/or individuals must defend themselves against a variety of charges and then submit to the judges’ orders and continuing oversight as they work to change their policies and practices. The judges get to feel good about themselves, as do their activist allies. And some few poor citizens who could not afford legal representation may be saved from potentially hazardous conditions. But the defendants, who quite rightly feel aggrieved at the lack of notice and judicial proof, may simply skip town (or never bother opening shop in India). In any event, the results affect only a tiny fraction of India’s billion people at a time when the court system is so overburdened that many acts are committed with legal impunity. The poor and powerless remain so because there is no genuine rule of law or the protections and economic development it would encourage, instead they have only the occasional, unpredictable interference of judges-as-policymakers.

A number of courts in the United States have sought to widen American standing requirements beyond the bounds of reason. Thankfully, however, our legal system has a different character and different aim, namely provision of a neutral mechanism by which parties may sort out their legal claims against one another. This means that not everyone can or should have a day in court over every bad thing that happens—even very bad things. Instead, even today plaintiffs must have standing, which means several things. First, the one suing must in fact have been injured by some action or face immediate injury should the contested action be allowed. Second, the injury must be traceable to the actions of the one being sued. Third, the injury must be one that can be redressed by a favorable court ruling. You cannot sue over harm suffered by someone else, you cannot sue someone who did not actually cause the harm, and you cannot sue simply because it would make you feel better to have the court tell you that you are in the right.

Regarding the Obama immigration decrees (and in most every other circumstance), Congress really cannot meet these criteria for standing. Critics of “The Political Question Doctrine” complain that refusal to grant standing to Congress may mean that unconstitutional acts will continue. But they overlook the need to maintain a legal system designed to address concrete wrongs and to maintain our constitutional system as one of coequal branches with the power, means, and duty to defend their own turf and their own views concerning the nature and limits of constitutional power. Thus, when Congress runs to the Supreme Court to prevent President Obama from essentially redrafting immigration laws, it fails in its duty to use the tools the Constitution gave it (the power of the purse as well as that of impeachment and removal). Just as important, it is difficult to see what genuine injury Congress suffers from the president’s actions, aside from intrusion on its own powers and the thwarting of its will. Damage to the rule of law, the national economy, and so on may be very real, but it is not specific to members of Congress and should be combated through legislative and political processes.

Texas, on the other hand, stands to lose a great deal under the Obama immigration decrees, as do the twenty-five other states joined in its suit. Federal mandates require that the states provide education, medical, and other funding and services for those the administration would allow in the country. These are significant costs, and the states have no choice but to bear them under Obama’s immigration decrees. And these costs are in addition to increased law enforcement expenses and the costs of combating the widening practice of human smuggling, carried on almost exclusively by and enriching the drug cartels already spreading poison and violence, particularly across the southwest.

The general costs of bad policy are not, of course, grounds for standing. So the vast human cost to children put into the clutches of “coyotes” smuggling them across the border—the exposure of increasing numbers of even very young children to a host of physical, social, and sexual dangers on the road to illegal entry into the United States when sent by parents who have heard that the United States will take care of their children for them—are not at issue in the legal sense. But the states clearly have a dog in this fight; they are proper plaintiffs who will suffer genuine injuries. What is more, the states traditionally have been understood to have standing to sue in our system because they are corporate parties (like, say, a business corporation) and are specifically mentioned as potential parties to suits in Article III, Section 2 of the US Constitution.

Generally speaking, our legal system works best in adjudicating disputes between private parties. But individual Americans, while certainly damaged by the Obama immigration decrees, could not show the kind of specific and concrete injuries necessary for standing. This is as it should be in a country where policy issues are reserved to the political branches by the Constitution. That said, the states, here, are serving as an important bulwark to constitutional government by acting in their corporate capacity to represent the interests of their people in a dispute with a president increasingly attached to extraconstitutional methods aimed at imposing his policy preferences on an unwilling people.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law, and he is a Nomocracy in Politics Contributor.

2 Responses to ““The States v. Obama’s Decrees,” By Bruce Frohnen”

  1. gabe


    I got confused for a second. When speaking of the Indian system of “epistolary petitions”, I thought you were referring to US Executive Agencies – how silly of me!!


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