Tuesday, April 7, 2015
In what may be a precursor of things to come in the appeal to the U.S. Court of Appeals for the Fifth Circuit in Texas v. United States, the Fifth Circuit today in Crane v. Johnson affirmed dismissal on standing grounds of a challenge by the state of Mississippi and Immigration & Customs Enforcement officers to the 2012 Deferred Action for Childhood Arrivals program.
The opinion was written by Judge W. Eugene Davis (elevated to the Fifth Circuit by President Ronald Reagan) with a short concurrence by Judge Priscilla Owen (who was appointed to the Fifth Circuit by President George W. Bush and later was rumored to be a possible Supreme Court nominee). As the court summarized the holding, "We conclude that neither the Agents nor the State of Mississippi has demonstrated the concrete and particularized injury required to give them standing to maintain this suit. We therefore affirm the district court’s judgment."
Mississippi claimed that undocumented immigrants imposed costs on the state but, according to the Fifth Circuit, failed to specify how DACA itself imposed any additional costs on the state. The ICE officers claimed that they could be disciplined if they failed to fully follow DACA; the court found that the speculative threat of sanctions were insufficient to confer standing.
Texas and the other states in Texas v. United States will need to establish the prerequisite injury to be able to distinguish Crane v. Johnson. Recall that Texas's primary argument that the expanded deferred action program would impose costs on the state was that the state would have to spend limited resources on issuing driver's licenses to DACA recipients.