Constitution Check: Could state governments sue to keep out Syrian refugees?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how states refusing to accept Syrian refugees could leverage a 2007 Supreme Court decision.

THE STATEMENTS AT ISSUE:

“The threat posed to Texas by ISIS is very real.  ISIS claimed credit last May when two terrorist gunmen launched an attack in Garland, Texas.  Less than two weeks later, the FBI arrested an Iraqi-born man in North Texas and charged him with lying to federal agents about traveling to Syria to fight with ISIS.  And in 2014, when I served as Texas attorney general, we participated in a Joint Terrorism Task Force that arrested two Austin residents for providing material support to terrorists –including ISIS.

 – Excerpt from a letter to President Obama on November 16 by Texas Governor Greg Abbott, seeking to justify the state of Texas’s decision that it “will not accept any refugees from Syria.”

“On appeal, the United States maintains that states do not have standing [to sue to challenge the government’s 2014 deferred deportation program for undocumented immigrants]….As we will analyze, however, their standing is plain…We begin by considering whether the states are entitled to ‘special solicitude’ in our standing inquiry under Massachusetts v. EPA.  They are….It is obvious that being a state greatly matters in the standing inquiry….Like Massachusetts, the states are not normal litigants for the purpose of invoking federal jurisdiction.”

 – Excerpt from a November 9 ruling by the U.S. Court of Appeals for the Fifth Circuit, concluding that the state of Texas did have a right to sue the federal government because it could show that it would suffer financial injury if the new deportation-deferral policy went into effect.  The Circuit Court decision temporarily blocked that policy.

WE CHECKED THE CONSTITUTION, AND… 

Because the Supreme Court, as recently as three years ago, has made clear that the federal government has nearly exclusive power to control who may enter the United States, state governments who have recently vowed to try to keep out Syrian refugees will have a difficult time enforcing any legal or practical barriers they attempt to put up.   But they may well have another option that has at least some chance of achieving their goal.

Twenty-six states, led by Texas, have shown over the past year that they can be very energetic in using the court system to try to thwart immigration policy that the federal government pursues and that they fervently oppose.

Now, the success that they had in gaining at least temporarily the right to pursue that lawsuit is about to be tested in the Supreme Court, with potential implications for any attempt they might make to challenge President Obama if he goes forward with a plan to admit 10,000 refugees from Syria into the United States.

One of the key issues, when the Justice Department files its appeal to the Justices, probably this week, will be whether states do have a right – under the Constitution’s Article III – to sue the government over immigration policy. And an underlying issue is whether the states will be given special treatment when they sue to protect their basic interests as governments.

Under Article III, the federal courts have no authority to rule on a purely theoretical legal question; they may decide only actual “cases or controversies.”  The Supreme Court has long interpreted that limitation to mean that a party seeking to sue must be able to show that it will face injury or some harm if the program it is challenging is put into effect.  That injury cannot be based on mere speculation or theory, but must be “concrete, particularized, and actual or imminent,” as the court has put it.

As happened in the Fifth Circuit Court earlier this month, the key to the states’ right to go to court to challenge federal policy lies significantly in the Supreme Court’s 2007 decision in the case of Massachusetts v. Environmental Protection Agency.  The court allowed the state to sue the EPA to force it to regulate emissions of greenhouse gases that heat up the atmosphere, because the state had proved that it would be harmed by the impact of those gases on global warming.

If the Supreme Court, in ruling on the government’s request to be able to start enforcing the deferred deportation policy, relies upon that decision to validate the right of the 26 states to sue, that would set a very strong precedent.   That’s because, in the Massachusetts case, the issue involved a federal environmental law, while the new precedent would be in the field of immigration law, over which the federal government’s authority is clearly stronger.

Such a precedent would also give the courts added power to oversee immigration policy – provided that states opposed to admission of Syrian refugees, for example, could come forward with proof that they are definitely threatened by such migration.   Texas Governor Greg Abbott, in his letter to President Obama about heading off such migration, clearly has already attempted to build the argument that Texas’s vital interests in public safety would be threatened.

It is important to point out, though, that the court’s decision in the Massachusetts case was decided by a 5-to-4 vote, and the four Justices in dissent are still on the court: Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Antonin Scalia, and Clarence Thomas.  Would they be guided by the usual respect for prior precedent, or would they hold to the words expressed in 2007 in the Chief Justice’s opinion?   The court’s precedents on the standing issue, he wrote, “simply recognize that redress of grievances of the sort at issue here is the function of Congress and the Chief Executive, not the courts.”

If they are inclined to take the latter view, would they be able to gather a fifth vote and make a majority to rein in the concept of state “standing”?  Or will there still be a majority of five in favor of giving “special solicitude” to states when they object to a federal policy – especially a policy that implicates federal power over issues of immigration?