Contributor, The Volokh Conspiracy

On Friday, in Arpaio v. Obamathe U.S. Court of Appeals for the D.C. Circuit rejected Maricopa County Sheriff Joseph Arpaio’s attempt to challenge the Obama administration’s immigration initiatives in federal court.  According to the court, Sheriff Arpaio lacks standing to challenge the measures. Judge Cornelia Pillard wrote the opinion for the court, joined by Judge Sri Srinivasan.  Judge Janice Rogers Brown wrote a separate opinion concurring in the judgment.

The introduction to Judge Pillard’s opinion provides a nice summary of the court’s analysis.  It also seems to accept the Obama administration’s characterization of its immigration reforms as an exercise of enforcement discretion, suggesting that this panel would have rejected Sheriff Arpaio’s claims on the merits.

The Secretary of the Department of Homeland Security facing what he perceives to be enormous practical obstacles to removing from the United States the eleven million people unlawfully present here, has sought to set enforcement priorities. He accordingly directed relevant agencies temporarily to defer low-priority removals of non-dangerous individuals so that the agencies can focus their resources on removing dangerous criminals and strengthening security at the border. People whose removal has been deferred are generally eligible to apply for authorization to work, and to reside in the United States for up to three years.

Joseph Arpaio, the Sheriff of Maricopa County, Arizona, sued to enjoin the Secretary’s deferred action policies. He asserts that they are unconstitutional, arbitrary and capricious, and invalid under the Administrative Procedure Act as, in effect, regulations that have been promulgated without the requisite opportunity for public notice and comment. We cannot resolve those claims unless Sheriff Arpaio has Article III standing to raise them. To have standing, a plaintiff must have suffered or be about to suffer a concrete injury fairly traceable to the policies he challenges and redressable by the relief he seeks.

Sheriff Arpaio’s standing arguments rest on the premise that more people causing more crimes harm him because, as Sheriff, he will be forced to spend more money policing the county and running its jails. He alleges two ways in which he believes that the population of undocumented aliens committing crimes will increase as a result of deferred action. First, he contends that deferred action will act as a magnet drawing more undocumented aliens than would otherwise come across the Mexican border into Maricopa County, where they will commit crimes. Second, he alleges that the challenged policies will decrease total deportations by deferring action against approximately six million undocumented aliens, so that more individuals will remain unlawfully in Maricopa County and commit crimes than would be the case without deferred action.

We conclude that Sheriff Arpaio has failed to allege an injury that is both fairly traceable to the deferred action policies and redressable by enjoining them, as our standing precedents require. His allegations that the policies will cause more crime in Maricopa County are unduly speculative. Projected increases he anticipates in the county’s policing burden and jail population rest on chains of supposition and contradict acknowledged realities.

Sheriff Arpaio recognizes that the deferred action policies he challenges apply only to people who are already present in the United States and who either arrived as children or are parents of children who are United States citizens or lawful permanent residents. His magnet theory nonetheless assumes that the policies will cause non-citizens outside of the United States to cross the border in the mistaken hope of benefitting from the current policies. Alternatively, Sheriff Arpaio posits that foreign citizens will view the current policies as a sign of things to come, and will therefore cross the border in the hope of benefitting from hypothesized future, similar policies that are not the subject of Sheriff Arpaio’s challenge. Our precedents establish that standing based on third-party conduct—such as the anticipated reactions of undocumented aliens abroad—is significantly harder to show than standing based on harm imposed by one’s litigation adversary. That difficulty is compounded here because the third-party conduct the complaint forecasts depends on large numbers of people having the same unlikely experiences and behaviors: For the harms Sheriff Arpaio alleges to occur and be redressable by the injunction he seeks, aliens abroad would have to learn about the deferred action policies, mistakenly think that they were eligible to benefit from them, or harbor a hope of becoming eligible for future, similar policies as yet unannounced, actually leave their homes and enter the United States illegally based on that false assumption, commit crime in Maricopa County, become involved in—and costly to—the criminal justice system there, and be less likely under deferred action to be removed from the United States than they would have been without those policies in place.

Sheriff Arpaio’s second standing theory is no less tenuous. Sheriff Arpaio recognizes that only non-dangerous immigrants are eligible for deferred action, but he nonetheless contends that those deferrals will mean that crime by undocumented aliens will be higher than it would be without them. This second theory rests on the mistaken premise that the challenged policies decrease the number of removals below what would have been accomplished had the policies not been adopted. Accurately read, however, the policies seek not to decrease the total number of removals but to prioritize removal of individuals who pose a threat to public safety over removal of those who do not. The policy is designed to make the Department of Homeland Security’s expenditure of resources more efficient and effective. Even if it were plausibly alleged (and it is not) that the challenged policies would mean more undocumented aliens remain in the county, the reduced-removals theory also depends on unsupported speculation that these policies, expressly confined to individuals who do not pose threats to public safety, will increase the number of crimes in Maricopa County above what could reasonably be anticipated in the absence of any such policies.

Judge Brown agreed with the court’s bottom-line result, but wrote separately to express reservations about the state of standing doctrine. Excerpts from her opinion concurring-in-the-judgment follow.

Today we hold that the elected Sheriff of the nation’s fourth largest county, located mere miles from our border with Mexico, cannot challenge the federal government’s deliberate nonenforcement of the immigration laws. I agree with my colleagues that the state of the law on standing “requires, or at least counsels, the result here reached.” Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 798 (D.C. Cir. 1987). But, recognizing that Sheriff Arpaio’s claims reflect the widespread perception that the administration’s prosecutorial discretion meme is constitutionally problematic, I write separately to emphasize the narrowness of today’s ruling, and note the consequences of our modern obsession with a myopic and constrained notion of standing.

* * *

Sheriff Joseph Arpaio of Maricopa County, Arizona, filed suit to prevent the President from implementing programs deferring the removal of certain undocumented immigrants from the United States. These programs, referred to as Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA), generally delay removal proceedings for undocumented immigrants who pass a background check and satisfy specified eligibility criteria. . . . Those who qualify receive authorization to work and reside in the United States for renewable periods.

What the government views as permissible prosecutorial discretion, Sheriff Arpaio views as a violation of the President’s duty to “take Care that the Laws be faithfully executed,” U.S. CONST. art. II, § 3, and the non-delegation doctrine. Sheriff Arpaio also identifies potential procedural violations, contending the orders fail to comply with noticeand-comment procedures required by the Administrative Procedure Act.

Sheriff Arpaio’s problems with the challenged policies run deeper than a difference in philosophy or politics. He claims DACA and DAPA impose clear and “severe[]” harms on his ability to protect the people of Maricopa County. Compl. ¶ 27. In particular, he argues that deferring removal proceedings and providing work authorizations to undocumented immigrants “harmed . . . his office’s finances, workload, and interfere[d] with the conduct of his duties . . . .” Id. He attributes an influx of undocumented immigrants to the Department’s non-enforcement policies, and claims it corresponded with a rise in crime. Increased crime means increased costs for the Sheriff, who must run the jails and provide deputies to police the streets.

* * *

Sheriff Arpaio’s concerns are no doubt sincere. But, as the court concludes, we cannot hear his claims because he lacks standing to proceed. Under our standing jurisprudence, the injuries he claims resulted from DACA and DAPA are simply too inexact and speculative. Consequently, we must affirm the district court’s dismissal of the complaint. . . .

* * *

Today’s holding puts the consequences of our standing jurisprudence in stark relief. If an elected Sheriff responsible for the security of a county with a population larger than twenty-one states cannot bring suit, individual litigants will find it even more difficult to bring similar challenges. But today’s decision, however broad it may seem, is actually quite narrow in two respects.

First, our decision holds only that Sheriff Arpaio lacks standing to challenge DACA and DAPA, not that those programs are categorically shielded from suit. Indeed, those programs are currently subject to challenge in a number of other circuits. . . .

Second, today’s decision does not take issue with the claim that unlawful immigration carries consequences. Indeed, the Supreme Court has previously made clear that Sheriff Arpaio’s home state of Arizona “bears many of the consequences of unlawful immigration.” Arizona v. United States, 132 S. Ct. 2492, 2500 (2012). “Hundreds of thousands of deportable aliens are apprehended in Arizona each year. Unauthorized aliens who remain in the State comprise, by one estimate, almost six percent of the population.” Id. In the county the petitioner is charged with policing, “these aliens are reported to be responsible for a disproportionate share of serious crime.” Id. Nothing in today’s opinion casts doubt on these conditions. The court holds only that these general conditions, without more, do not afford the right to challenge the specific federal deferred action programs at issue. . . .

* * *

In the not-so-distant past, Judge (and later Chief Justice) Burger could safely conclude that “experience rather than logic or fixed rules” guided the search for standing. Office of Commc’n of United Church of Christ v. FCC, 359 F.2d 994, 1004 (D.C. Cir. 1966) (Burger, J.) (upholding the standing of television viewers to intervene in broadcast license renewal proceedings as “private attorneys general”). Experience and logic no longer reign supreme. In place of “functional” tests “designed to insure [sic] that only those with a genuine and legitimate interest” may come into court, id. at 1002, we now employ formalistic tests that may tend to discourage certain constitutional challenges. Today’s decision teaches a lesson: litigants bringing constitutional challenges must pay exceptionally close attention to standing requirements. The courts do—especially when litigants do not.

No doubt the modern approach to standing serves to reduce our caseload. But there are much more important matters at stake. “Some [litigants] need bread; others need Shakespeare; others need their rightful place in the national society—what they all need is processors of law who will consider the people’s needs more significant than administrative convenience.” Id. at 1005  . . . . Our approach to standing, I fear, too often stifles constitutional challenges, ultimately elevating the courts’ convenience over constitutional efficacy and the needs of our citizenry.

For more on Arpaio v. Obama, and the D.C. Circuit’s other decisions of the past week (several of which are quite interesting) check out Aaron Nielson’s inaugural “D.C. Circuit Review” at Notice & Comment, the blog of the Yale Journal on Regulation.