In my post last night about the district court decision blocking President Obama’s executive order granting lawful status to as many as five million illegal immigrants, I did not discuss the important threshold issue in the case — whether the plaintiff states have standing to challenge the order. Judge Hanen found that they do. I believe this finding is well-reasoned and correct.
Texas argued, and Judge Hanen agreed, that Obama’s executive order, by granting legal status to illegal immigrants, will cause the state to have to issue drivers licenses on a large scale. This, in turn, will impose costs. Texas presented solid evidence that the cost would be in excess of several million of dollars — easily enough to confer standing on it.
The counter-argument is that Texas could change its laws to deny licenses to those whose status is changed via the executive order. Ironically, though, the Justice Department previously argued, in a case arising from Arizona, that it is unconstitutional to deny drivers licenses to beneficiaries. The Ninth Circuit agreed with DOJ.
Judge Hanen found that although the Ninth Circuit’s decision is not binding in Texas, it “suggests that Plaintiffs’ options to avoid the injuries associated with the [Executive Order] are virtually non-existent and, if attempted, will be met with significant challenges from the federal government,” challenges that are likely to be upheld.
Moreover, even if the costs of issuing licences could be avoided by restructuring the license issuing program, this would require the state to deny licenses to individuals it has previously determined are entitled to them. This itself is “a significant intrusion into an area traditionally reserved to a state’s judgment,” Judge Hanen observed.
In my view, Judge Hanen’s analysis provides Texas with a strong platform from which to defend his decision as the case progresses through the appeals process. But let’s keep in mind that “standing” is a notoriously manipulable doctrine. Thus, it would be within the capability of a judge (or Justice) inclined to rule in the Obama administration’s favor to reject Judge Hanen’s reasoning and toss the case for lack of standing.