Immigration Article of the Day: Immigration Federalism Standing by Jacob Hamburger

Abstract

For nearly a decade, state attorneys general have become emboldened to file lawsuits asking federal courts to invalidate executive actions on immigration. As a result, lower courts have grappled with complex questions of when states have Article III standing to sue the federal government. In its recent decision in United States v. Texas, the Supreme Court addressed these standing issues directly for the first time, holding that Texas lacked Article III standing to challenge the Biden administration’s civil immigration enforcement guidelines. But the Court reached this conclusion on narrow grounds, failing to provide a clear indication of when states might have standing in other immigration disputes. Crucially, although the Court arguably rejected applying “special solicitude” in the immigration context, it said nothing about when—if ever—states can assert sovereign interests related to immigration. As a result, it remains uncertain how the Texas case will affect ongoing and future state-led immigration litigation.

This Article provides a framework for state standing grounded in an analysis of immigration federalism. The Court was correct to distance itself from the view articulated in Massachusetts v. EPA that state standing should be favored when states lack power to act within the federal system. Instead, this Article argues that states have sovereign interests for standing purposes where the federal system grants them authority over the enforcement or regulation of immigration. This framework for immigration federalism standing recognizes that states have a stake in various aspects of the immigration system where they are empowered to act, but also limits states’ access to federal courts where they are not. By adopting a federalism-informed approach to standing, this Article seeks to promote state accountability and avoid undermining working relationships between state and federal governments on immigration issues.

KJ