Joseph Arpaio v. Barack Obama , 797 F.3d 11 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 2015 Decided August 14, 2015
No. 14-5325
JOSEPH M. ARPAIO,
APPELLANT
v.
BARACK OBAMA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01966)
Larry Klayman argued the cause and filed the briefs for
appellant.
Beth S. Brinkmann, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellees.
With her on the brief were Benjamin C. Mizer, Acting
Assistant Attorney General, Ronald C. Machen Jr., U.S.
Attorney at the time the brief was filed, and Scott R.
McIntosh, Jeffrey Clair, and William E. Havemann,
Attorneys.
Before: BROWN, SRINIVASAN and PILLARD, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge PILLARD.
Concurring opinion filed by Circuit Judge BROWN.
PILLARD, Circuit Judge: 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.
3
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
4
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
5
what could reasonably be anticipated in the absence of any
such policies.
Because Sheriff Arpaio’s allegations of causation and
redressability rest on speculation beyond that permitted by our
standing decisions, we affirm the district court’s dismissal of
the complaint for want of Article III standing.
I.
A.
The nation’s immigration laws provide for the removal
from the United States of people who were “inadmissible at
the time of entry,” or who commit certain offenses or meet
other criteria for removal. Arizona v. United States, 132 S.
Ct. 2492, 2499 (2012). The Secretary of Homeland Security
is “charged with the administration and enforcement” of the
immigration laws. 8 U.S.C. § 1103(a)(1). With enforcement
responsibility comes the latitude that all executive branch
agencies enjoy to exercise enforcement discretion—discretion
necessitated by the practical fact that “[a]n agency generally
cannot act against each technical violation of the statute it is
charged with enforcing.” Heckler v. Chaney, 470 U.S. 821,
831 (1985). The Supreme Court has particularly recognized
that “[a] principal feature of the removal system is the broad
discretion exercised by immigration officials.” Arizona, 132
S. Ct. at 2499. Whether to initiate removal proceedings and
whether to grant relief from deportation are among the
discretionary decisions the immigration laws assign to the
executive. Id.In making immigration enforcement decisions, the
executive considers a variety of factors such as the danger
posed to the United States of an individual’s unlawful
presence, the impact of removal on the nation’s international
6
relations, and the “human concerns” of whether the individual
“has children born in the United States, long ties to the
community, or a record of distinguished military service.” Id.More generally, the Supreme Court has recognized that all
agencies have discretion to prioritize in light of the
Secretary’s and, ultimately, the President’s assessments
“whether agency resources are best spent on this violation or
another, whether the agency is likely to succeed if it acts,
whether the particular enforcement action requested best fits
the agency’s overall policies, and, indeed, whether the agency
has enough resources to undertake the action at all.” Heckler,
470 U.S. at 831.
One form of discretion the Secretary of Homeland
Security exercises is “deferred action,” which entails
temporarily postponing the removal of individuals unlawfully
present in the United States. See Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 484 (1999).
Immigration authorities have made decisions to defer action
or take similar measures since the early 1960s. See The
Department of Homeland Security’s Authority to Prioritize
Removal of Certain Aliens Unlawfully Present (“OLC Op.”),
38 O.L.C. Op. ----, pp. 7-8, 12-13 (Nov. 19, 2014). For
example, in 1990, the Immigration and Naturalization Service
implemented a “Family Fairness” program that deferred
removal of and provided work authorizations to
approximately 1.5 million individuals whose spouses or
parents had been granted legal status in the United States
under the Immigration and Reform Control Act of 1986, Pub.
L. No. 99-603, 100 Stat. 3359. OLC Op. at 14.
Approximately forty percent of individuals unlawfully present
in the United States at that time were potentially eligible for
the program. Id. at 31.
7
Today, the Department of Homeland Security estimates
that there are approximately 11.3 million people in the United
States who may be subject to removal under the immigration
laws. See id. at 1. Of those, the Department estimates that it
has the resources to remove fewer than 400,000 each year. Id.In an effort to allocate the Department’s limited resources,
Secretary Janet Napolitano in June 2012 directed relevant
agencies “to ensure that our enforcement resources are not
expended on . . . low priority cases but are instead
appropriately focused on people who meet our enforcement
priorities.” Memorandum from Janet Napolitano, Exercising
Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children 1 (June 15, 2012), J.A.
101. In what became known as Deferred Action for
Childhood Arrivals, or DACA, the Secretary outlined a policy
to defer removal proceedings for two years, subject to
renewal, of individuals who came to the United States as
children, met certain eligibility criteria, and cleared a
background check. Id. at 1-2. Those eligible for DACA
could identify themselves to the Department for
individualized review and, if eligible, receive temporary
deferral and authorization, on a case-by-case basis, to work in
the United States. Id. at 3. The memorandum emphasizes,
however, that deferred action remains discretionary and
reversible, and “confers no substantive right, immigration
status or pathway to citizenship.” Id.In November 2014, Jeh Johnson, Napolitano’s successor
as Secretary of Homeland Security, revised the DACA
program by extending it to more childhood arrivals and
extending to three years the deferred action and work
authorization periods. Memorandum from Jeh Charles
Johnson, Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children and
with Respect to Certain Individuals Who are Parents of U.S.
8
Citizens or Permanent Residents 1 (Nov. 20, 2014), J.A. 145.
In addition, the Secretary outlined a second deferred action
policy for the parents of United States citizens and lawful
permanent residents, which has become known as Deferred
Action for Parents of Americans, or DAPA. Id. at 4-5.
Parents seeking to take part in DAPA must meet similar
eligibility requirements as DACA beneficiaries, and they, too,
must clear a background check. Id. Neither DACA nor
DAPA applies to individuals who arrived in the United States
after January 1, 2010. Id. at 4.
The Secretary explained that DACA and DAPA apply to
individuals who “are extremely unlikely to be deported given
[the] Department’s limited enforcement resources—which
must continue to be focused on those who represent threats to
national security, public safety, and border security.” Id. at 3.
In a separate memorandum issued on the same day, the
Secretary revised the Department’s enforcement priorities.
Memorandum from Jeh Charles Johnson, Policies for the
Apprehension, Detention and Removal of Undocumented
Immigrants 1 (Nov. 20, 2014), J.A. 154. One of the eligibility
requirements of DACA and DAPA is that individuals must
not fall under any of three enforcement priority categories.
The first applies to “threats to national security, border
security, and public safety,” i.e., those engaged in or
suspected of terrorism or espionage, apprehended at the
border or ports of entry attempting to enter the United States
unlawfully, convicted of an offense involving participation in
gangs or organized crime, or convicted of a felony or
aggravated felony. Id. at 3. The second category applies to
those convicted of three or more offenses (not including
traffic- or immigration-related offenses), or of a single
“significant misdemeanor,” including crimes of violence, drug
distribution or trafficking, driving under the influence of an
impairing substance, and any other misdemeanor that resulted
9
in more than ninety days’ incarceration. Id. at 3-4. The third
category applies to individuals who have been issued a final
order of removal on or after January 1, 2014. Id. at 4.
DACA and DAPA therefore apply to the portion of the
population that the Department considers not threatening to
public safety and that has not had any involvement, or only
minimal and minor involvement, with the criminal justice
system. Although estimates of this kind are notoriously
difficult to make, it appears that up to about six million of the
11.3 million individuals subject to removal from the United
States may be eligible either for DACA or DAPA.1
B.
On the same day that the President announced the
revisions to DACA and the new DAPA policy, the elected
Sheriff of Maricopa County, Arizona, Joseph Arpaio, sued the
President and other federal officials seeking a declaration and
preliminary injunction that DACA and DAPA violate the
Administrative Procedure Act, 5 U.S.C. § 551 et seq., the
President’s constitutional duty to “take Care that the Laws be
faithfully executed,” U.S. Const. art. II, § 3, and the non-
delegation doctrine.
1
Sheriff Arpaio claims throughout his briefing, without citation,
that the total number of DACA- and DAPA- eligible individuals is
six million. The Department estimates that four million people may
be eligible for DAPA, but acknowledges the difficulty of arriving at
accurate estimates. See OLC Op. at 30. We have found no
estimate of DACA eligibility in the record, but one court has noted
that some observers expect the number of eligible individuals to
reach 1.7 million, Texas v. United States, No. CIV. B-14-254, --- F.
Supp. 3d ---, 2015 WL 648579, at *4 (S.D. Tex. Feb. 16, 2015),
bringing the combined total to 5.7 million. The Sheriff’s estimate
thus appears reasonable.
10
Maricopa County is the fourth most populous county in
the nation, and the most populous by far in Arizona. It stands
thirty miles from the United States’ border with Mexico.
Sheriff Arpaio alleges that he was “adversely affected and
harmed in his office’s finances, workload, and interference
with the conduct of his duties, by the failure of the executive
branch to enforce existing immigration laws” through
adoption of DACA in 2012. Compl. ¶ 27. He asserts that his
office has been “severely affected” by increases in unlawful
entries that he alleges were motivated by the President’s
“amnesty” policies, and he predicted further unlawful entries
due to the policies announced in 2014. Id. In a declaration,
Sheriff Arpaio avers that the increased number of unlawful
arrivals in Maricopa County after DACA was first adopted in
2012 imposed costs on his office in terms of “manpower and
financially” because some of those individuals who arrived
without documentation ended up in the Sheriff’s jails, and
others committed offenses that required additional
investigation on the part of the Sheriff’s office. Supp’l
Arpaio Decl., J.A. 656-58 ¶¶ 12, 18-20, 27.
The district court denied a preliminary injunction and
dismissed the complaint for lack of subject matter jurisdiction
because Sheriff Arpaio had failed to allege a cognizable
injury in fact for purposes of Article III standing. Arpaio v.
Obama, 27 F. Supp. 3d 185, 192, 207 (D.D.C. 2014). The
court held that Sheriff Arpaio presents a non-justiciable
“generalized grievance,” as opposed to a particularized injury.
Id. at 202. If it recognized Sheriff Arpaio’s standing to bring
these claims, the court opined, it “would permit nearly all
state officials to challenge a host of Federal laws simply
because they disagree with how many—or how few—Federal
resources are brought to bear on local interests.” Id. The
district court also concluded that Arpaio lacked standing
because his claimed injury was “largely speculative.” Id. at
11
203. The court found implausible the contention that “the
challenged deferred action programs will create a ‘magnet’ by
attracting new undocumented immigrants into Maricopa
County, some of whom may commit crimes under Arizona
law.” Id. Sheriff Arpaio’s theory treats as a certain and
immediate effect of the challenged programs, the court held,
migration decisions that are in reality “complex decision[s]
with multiple factors, including factors entirely outside the
United States’ control, such as social, economic and political
strife in a foreign country.” Id. Sheriff Arpaio timely
appealed.
II.
We review de novo the district court’s dismissal for lack
of standing. Renal Physicians Ass’n v. U.S. Dep’t of Health
& Human Servs., 489 F.3d 1267, 1273 (D.C. Cir. 2007). The
plaintiff bears the burden of invoking the court’s subject
matter jurisdiction, including establishing the elements of
standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992). The “irreducible constitutional minimum of standing
contains three elements”: injury in fact, causation, and
redressability. Id. at 560-61. Injury in fact is the “invasion of
a legally protected interest which is (a) concrete and
particularized . . . and (b) actual or imminent, not conjectural
or hypothetical.” Id. at 560 (internal quotation marks and
citations omitted). The “causal connection between the injury
and the conduct complained of” must be “fairly traceable to
the challenged action of the defendant, and not the result of
the independent action of some third party not before the
court.” Id. at 561 (internal quotation marks and alterations
omitted). And it must be “likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.” Id. (internal quotation marks omitted). Finally,
because Sheriff Arpaio seeks prospective declaratory and
12
injunctive relief, he must establish an ongoing or future injury
that is “certainly impending”; he may not rest on past injury.
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013)
(emphasis omitted).
“[E]ach element [of standing] must be supported in the
same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation.” Lujan, 504
U.S. at 561. Consequently, because the Department
challenges the adequacy of Sheriff Arpaio’s complaint and
declarations to support his standing, we accept the well-
pleaded factual allegations as true and draw all reasonable
inferences from those allegations in the plaintiff’s favor, as
we do in reviewing dismissals for failure to state a claim. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nevertheless,
“[t]hreadbare recitals of the elements of [standing], supported
by mere conclusory statements, do not suffice.” Id. We do
not assume the truth of legal conclusions, id., nor do we
“accept inferences that are unsupported by the facts set out in
the complaint,” Islamic Am. Relief Agency v. Gonzales, 477
F.3d 728, 732 (D.C. Cir. 2007). Thus, “[t]o survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim [of standing] that is
plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
III.
The Sheriff’s Office’s expenditures of resources on
criminal investigation, apprehension, and incarceration of
criminals are indeed concrete, but Sheriff Arpaio lacks
standing to challenge DACA and DAPA because any effects
of the challenged policies on the county’s crime rate are
unduly speculative.
13
A.
Sheriff Arpaio’s standing theory relies on a predicted
chain of events, as follows: Under the challenged policies,
the Secretary of Homeland Security will refrain from
removing DACA and DAPA beneficiaries. Foreign citizens
outside of the United States and ineligible for either DACA or
DAPA will learn of those policies. Those people will either
mistakenly believe that they are eligible to benefit from them,
or conjecture that the policies make it likely that the federal
government will adopt a future, similar policy of deferred
action for which they would be eligible. Relying on such
surmise, those individuals will decide to enter the United
States unlawfully, stimulated by the hope of obtaining relief
from deportation. Some of those new arrivals will settle in
Maricopa County. And some subset of those, contrary to their
own plans to benefit from anticipated deferred action or
removal opportunities restricted to non-criminal aliens, will
commit crimes. The portion of those who are investigated,
arrested, or jailed by the Sheriff’s Office will cause an
increased expenditure of resources. See Supp’l Arpaio Decl.
¶ 18. It is that predicted expenditure of resources that Sheriff
Arpaio seeks to redress through this suit.
Any injury Sheriff Arpaio suffers from the financial
burdens imposed by new arrivals would not be fairly traceable
to DACA or DAPA. Neither DACA nor DAPA applies to
people who entered the United States after January 1, 2010,
and thus plainly neither applies to entrants arriving now or in
the future. Sheriff Arpaio argues that foreign citizens will see
DACA and DAPA as harbingers of the federal government’s
future immigration policies, and so be encouraged to enter the
United States unlawfully. Even if the causal links in that
attenuated chain were adequately alleged, the decisions of
such individuals to enter the United States unlawfully lack
14
any legitimate causal connection to the challenged policies.
Just as the law does not impose liability for unreasonable
reliance on a promise, see Restatement (Second) of Contracts
§ 90 (1981), it does not confer standing to complain of harms
by third parties the plaintiff expects will act in unreasonable
reliance on current governmental policies that concededly
cannot benefit those third parties. We are aware of no
decision recognizing such an attenuated basis for standing.
See Mideast Sys. & China Civil Const. Saipan Joint Venture,
Inc. v. Hodel, 792 F.2d 1172, 1178 (D.C. Cir. 1986) (“[T]he
mere possibility that causation is present is not enough; the
presence of an independent variable between either the harm
and the relief or the harm and the conduct makes causation
sufficiently tenuous that standing should be denied.”).
Even were we to ignore the disconnect between the
challenged policies and the increased law enforcement
expenditures that Sheriff Arpaio predicts, his reliance on the
anticipated action of unrelated third parties makes it
considerably harder to show the causation required to support
standing. The injuries Sheriff Arpaio predicts would stem not
from the government’s DACA or DAPA programs, but from
future unlawful entrants committing crimes in Maricopa
County after their arrival. Although “standing is not
precluded” in a case that turns on third-party conduct, “it is
ordinarily substantially more difficult to establish.” Lujan,
504 U.S. at 562 (internal quotation marks omitted). We have
required “substantial evidence of a causal relationship
between the government policy and the third-party conduct,
leaving little doubt as to causation and the likelihood of
redress.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ.,
366 F.3d 930, 941 (D.C. Cir. 2004); see also Renal
Physicians, 489 F.3d at 1275.
15
Likewise, because Sheriff Arpaio must rest his claims for
declaratory and injunctive relief on predicted future injury,
see Clapper, 133 S. Ct. at 1147, he bears a “more rigorous
burden” to establish standing, United Transp. Union v. ICC,
891 F.2d 908, 913 (D.C. Cir. 1989). We must take the
complaint’s allegations “of facts, historical or otherwise
demonstrable,” as true. Id. at 912. But we treat “allegations
that are really predictions” differently. Id. “When
considering any chain of allegations for standing purposes, we
may reject as overly speculative those links which are
predictions of future events (especially future actions to be
taken by third parties),” as well as predictions of future injury
that are “not normally susceptible of labelling as ‘true’ or
‘false.’” Id. at 913. In order to establish standing premised
on future injury, Sheriff Arpaio “must demonstrate a realistic
danger of sustaining a direct injury.” Id. (quoting Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298
(1979)).
Sheriff Arpaio asserts that he is entitled to proceed based
on a lenient assessment of his alleged concrete injury, because
his complaint includes a claim of procedural injury from
violation of the Administrative Procedure Act. That
contention mischaracterizes our procedural injury cases.
“[T]hough the plaintiff in a procedural-injury case is relieved
of having to show that proper procedures would have caused
the agency to take a different substantive action, the plaintiff
must still show that the agency action was the cause of some
redressable injury to the plaintiff.” Renal Physicians, 489
F.3d at 1279.
Here, Sheriff Arpaio’s allegations that DACA and DAPA
will cause unlawful immigration to increase are conjectural
and conclusory. See, e.g., Suppl. Arpaio Decl. ¶¶ 16-17. The
only relevant specifics appear not in his pleadings, but in his
16
brief, where he points to the “flood of unaccompanied minors
in the Summer of 2014 crossing the Mexican border”—an
increase that he attributes to Secretary Napolitano’s June 2012
DACA memorandum. Arpaio Br. 17. He argues that we may
extrapolate from that experience that the revised DACA and
new DAPA policies will cause increased unlawful
immigration in the future. Even if we could credit an
assertion in a brief as if it were alleged in a pleading, see
Runnemede Owners, Inc. v. Crest Mortg. Corp., 861 F.2d
1053, 1057 (7th Cir. 1988) (“[A]ssertions contained only in
the briefs may not be used to expand the allegations of the
complaint.”), Sheriff Arpaio’s argument nonetheless suffers
from the logical fallacy post hoc ergo propter hoc (after this,
therefore because of this). Just as we do not infer that the
rooster’s crow triggers the sunrise, we cannot infer based on
chronology alone that DACA triggered the migrations that
occurred two years later.
Sheriff Arpaio provides no factual allegations to link the
2014 “flood” of minors to DACA. The record reveals only
speculation about the complex decisions made by non-citizens
of the United States before they risked life and limb to come
here. While immigration policies might have played into that
calculus, so, too, might the myriad economic, social, and
political realities in the United States and in foreign nations.
Even assuming that it is conceivable that inaccurate
knowledge of DACA could have provided some
encouragement to those who crossed the southern border, the
Supreme Court’s precedent requires more than illogic or
“unadorned speculation” before a court may draw the
inference Sheriff Arpaio seeks. Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 44 (1976).
Moreover, even if we were to assume DACA and DAPA
increase unlawful immigration, we cannot further infer that
17
they increase crime. At base, Sheriff Arpaio’s contention is
that more immigrants mean more crime. There is simple
appeal to the notion that, all else being equal, more people
will commit more crime. But the reality is that crime is
notoriously difficult to predict. Explaining its causes, even
after the fact, is rife with uncertainty. Crime rates are affected
by numerous factors, such as the local economy, population
density, access to jobs, education, and housing, and public
policies that directly and indirectly affect the crime rate.
Even if it were possible to do so, Sheriff Arpaio does not
explain how increased migration would interact with those
and other factors affecting the crime rate. On this record, it is
pure speculation whether an increase in unlawful immigration
would result in an increase, rather than a decrease or no
change, in the number of crimes committed in Maricopa
County. Where predictions are so uncertain, we are
prohibited from finding standing. See O’Shea v. Littleton,
414 U.S. 488, 497 (1974) (holding that a class of African
Americans and civil rights activists lacked standing to
challenge an alleged pattern and practice of selective and
discriminatory criminal law enforcement because “attempting
to anticipate whether and when these respondents will be
charged with crime . . . takes us into the area of speculation
and conjecture”).
We faced one example of the obstacles to standing based
on predicted harms flowing from third-party conduct in
Northwest Airlines, Inc. v. FAA, 795 F.2d 195, 201 (D.C. Cir.
1986). Northwest Airlines sought to challenge the FAA’s
decision to certify a pilot to continue flying after the airline
discharged him for flying while intoxicated. The airline
argued that “allowing unfit pilots in the skies endangers all
others who fly and confers upon [the endangered parties]
standing to challenge any . . . certification decision.” Id. at
201. We reiterated that the standing requirements “will not be
18
satisfied simply because a chain of events can be
hypothesized in which the action challenged eventually leads
to actual injury.” Id. Consequently, we held that the airline
lacked standing because the “possibility” that the pilot would
be hired by another airline, fly in the same region as the
plaintiff airline, and actually cause injury to the plaintiff’s
passengers and crew was “too remote and speculative to
constitute injury.” Id. Just as the airline’s challenge to the
FAA’s decision to treat an alcoholic pilot leniently was
premised on the airline’s hypothesis that the decision created
a “marginally increased possibility” that the pilot would
engage in unlawful behavior, id. at 202, Sheriff Arpaio’s
challenge to the Department of Homeland Security’s deferred
action policies rests on his hypothesis that they will lead to
increased unlawful behavior. Both theories suffer from the
same weakness: “the likelihood of any injury actually being
inflicted [is] too remote to warrant the invocation of judicial
power.” Id.2
2
Sheriff Arpaio also argues that we are required to draw the
inference that “a demonstrated willingness to break this nation’s
laws to get what one wants but is not entitled to, experiencing a
widespread outcry excusing their law-breaking, and suffering no
consequences constitute valid grounds for predicting a lowered
resistance to breaking more laws.” Arpaio Br. 46. Not so. Sheriff
Arpaio has made no factual allegations that might support his
asserted connection between the decision to enter the United States
unlawfully and the propensity to commit other crimes. See Islamic
Am. Relief Agency, 477 F.3d at 732 (“This Court need not . . .
accept inferences that are unsupported by the facts set out in the
complaint.”). Even if he had, he has not contended with the legal
hurdle posed by courts’ general reluctance to predict propensities to
commit crime in the future. See, e.g., City of Los Angeles v. Lyons,
461 U.S. 95, 108 (1983) (“[I]t is surely no more than speculation to
assert either that Lyons himself will again be” arrested and
19
Sheriff Arpaio contends that cases recognizing
competitor standing support his reliance on anticipated future
harm. In certain circumstances, we have found standing
premised on the federal government’s favorable regulatory
treatment of a plaintiff’s competitor. Plaintiffs may claim
predictable economic harms from the lifting of a regulatory
restriction on a “direct and current competitor,” Mendoza v.
Perez, 754 F.3d 1002, 1013 (D.C. Cir. 2014) (internal
quotation marks and emphasis omitted), or regulatory action
that enlarges the pool of competitors, which will “almost
certainly cause an injury in fact” to participants in the same
market, Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010).
But we have not hesitated to find competitor standing lacking
where the plaintiff’s factual allegations raised only “‘some
vague probability’” that increased competition would occur.
Id. at 74 (quoting DEK Energy Co. v. FERC, 248 F.3d 1192,
1196 (2001)). Because of the generally contingent nature of
predictions of future third-party action, we have remained
sparing in crediting claims of anticipated injury by market
actors and other parties alike. See United Transp. Union, 891
F.2d at 912 n.7 (distinguishing “allegations of future injury
that are firmly rooted in the basic laws of economics” from
other allegations of future injury). Sheriff Arpaio’s theory
that more immigrants mean more crime is not sufficiently
analogous to the basic laws of economics for our competitor
standing cases to apply.
Finally, we note that the Fifth Circuit’s recent decision in
Texas v. United States, 787 F.3d 733 (5th Cir. 2015), does not
support Sheriff Arpaio’s standing. That court found that the
State of Texas had standing to challenge DAPA because it
would be required to issue driver’s licenses to DAPA
subjected to a chokehold by resisting arrest.); O’Shea v. Littleton,
414 U.S. at 497; cf. Nw. Airlines, 795 F.2d at 201.
20
beneficiaries. Id. at 748-54. Texas offers driver’s licenses at
a substantially subsidized price; it loses $130.89 on each
license it issues. Id. at 748. DAPA renders the approximately
500,000 of its beneficiaries who reside in Texas eligible to
obtain Texas driver’s licenses. Id. at 752. Texas alleged that
anyone who qualifies under DAPA also by the same token
qualifies for a Texas license. Such an increase in the numbers
of persons eligible for Texas driver’s licenses, the Fifth
Circuit reasoned, has the “direct and predictable effect” of
imposing costs on the state. Id. Assuming arguendo the
correctness of that conclusion, here, by contrast, the record
reveals nothing from which we may draw the inference that
the “direct and predictable effect” of the challenged policies
will be an increase in the costs to Sheriff Arpaio’s office of
responding to crime. Sheriff Arpaio’s contention is, at
bottom, premised on the speculative prediction that DACA
and DAPA will create incentives on third parties to behave in
misinformed or irrational ways that would harm him. The
claim in Texas, by contrast, was that undocumented aliens
immediately become eligible for the license benefit by dint of
becoming DAPA beneficiaries. Insofar as those
circumstances pose “actual and imminent” concrete harm to
Texas, we face a significantly different situation here. See id.
at 744-45, 751.
B.
Sheriff Arpaio’s argument in the district court focused on
the harms he anticipates from an increased number of people
unlawfully crossing the border. On appeal, his standing
theory focuses more on a separate prediction that fewer of the
undocumented aliens already in the United States will be
removed under the new policies than would have been
removed without them. See Oral Arg. Tr. 15:6-10. Under
this second theory, Sheriff Arpaio argues that he will be
21
injured because some portion of the six million people who
might benefit from deferred action will remain in Maricopa
County rather than being removed, and some portion of those
will commit crimes. This theory rests on the unsupported
assumption that the total removals will drop due to DACA
and DAPA, plus the speculation that those programs’
beneficiaries will increase the crime rate.
A crucial assumption behind this standing claim is that,
but for the challenged policies, the government would be able
promptly to remove individuals eligible for DACA or DAPA.
But Sheriff Arpaio does not dispute that the Department of
Homeland Security has the resources only to remove fewer
than 400,000 undocumented aliens per year. See Hrg. Tr.,
J.A. 718-19. Indeed, he repeatedly alleges that, before DACA
and DAPA, the government was removing far fewer
undocumented aliens from Maricopa County than he thought
was appropriate. But Sheriff Arpaio does not generally
challenge what he calls the executive’s failure to enforce the
immigration laws; his claims are directed only to DACA and
DAPA. Neither those policies, nor the Department of
Homeland Security that administers them, contemplates the
net removal of fewer individuals under the policies than under
the status quo ante.
The relevant question, then, is not whether the
government will remove fewer undocumented aliens under
the challenged policies than without them, but whether the
shift in removal priorities that DACA and DAPA reflect will
cause an increase in crime in Maricopa County. Sheriff
Arpaio’s prediction of an increase in undocumented aliens
committing crime runs contrary to the thrust of those policies.
DACA and DAPA apply only to non-dangerous immigrants.
They are designed to allow the Department to focus its
resources on removing those undocumented aliens most
22
disruptive to the public safety and national security of the
United States. To qualify for DAPA or DACA, individuals
must pass a background check, have long-term ties to the
United States, and submit to individualized assessments for
compatibility with the Secretary’s priorities in removing
criminals. Even after they are approved for deferred action,
DAPA and DACA beneficiaries are subject to the
Department’s overall enforcement priorities. They get no free
pass to commit offenses, whether dangerous or otherwise
serious; those types of offenders remain high priorities for
removal from the United States.
The flaw in Sheriff Arpaio’s logic is fatal to his claim.
See Renal Physicians, 489 F.3d at 1278. The challenged
policies seek to increase the proportion of removal
proceedings and deportations of those who pose a threat to
public safety or national security. The policies are designed
to remove more criminals in lieu of removals of
undocumented aliens who commit no offenses or only minor
violations while here. To the extent that such predictions are
possible, if the programs are successful by their own terms,
the number of crimes committed by undocumented aliens in
Maricopa County should drop. Sheriff Arpaio has not
explained how making the removal of criminals a priority
over the removal of non-dangerous individuals will instead
result in an increase in crime.3 This is thus not a case in
3
The Fifth Circuit recently acknowledged a similar flaw in
Mississippi’s challenge to DACA. Mississippi’s claim of injury
was not supported by facts showing that DACA-eligible
undocumented aliens would impose increased costs on the state.
Crane v. Johnson, 783 F.3d 244, 252 (5th Cir. 2015). The Fifth
Circuit observed that it could instead be the case, as the Department
of Homeland Security argued and contrary to Mississippi’s
contentions, “that the reallocation of DHS’s assets is resulting in
the removal of immigrants that impose a greater financial burden on
23
which the plaintiff and defendant each present plausible
explanations for the facts alleged. See Starr v. Baca, 652 F.3d
1202, 1216-17 (9th Cir. 2011). Dismissal is required because
the “plausible alternative explanation” that DACA and DAPA
will result in fewer crimes in Maricopa County, not more, “is
so convincing that [the] plaintiff’s explanation is
implausible.” Id.; see also Renal Physicians, 489 F.3d at
1277.
* * *
We have observed that the “complexity and
interdependence of our society and governmental policies”
enable prospective plaintiffs to allege theories of causation
that, though severely attenuated, carry with them “some
plausibility.” Nw. Airlines, 795 F.2d at 203 n.2. “If such
allegations were routinely accepted as sufficient to confer
standing, courts would be thrust into a far larger role of
judging governmental policies than is presently the case, or
than seems desirable.” Id. We must rigorously review
allegations by plaintiffs who seek to invoke the subject matter
jurisdiction of the federal courts based on the projected
response of independent third parties to a challenged
government action. In this case, Sheriff Arpaio’s standing
allegations fall short. For these reasons, we hold Sheriff
Arpaio lacks standing to challenge DACA and DAPA.
Accordingly, we affirm the judgment of the district court.
So ordered.
the state,” and, if so, DACA’s “net effect would be a reduction in
the fiscal burden on the state.” Id. The court affirmed dismissal of
the case for want of “a sufficiently concrete and particularized
injury that would give Plaintiffs standing to challenge DACA.” Id.
at 255.
BROWN, Circuit Judge, concurring: 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 non-
enforcement 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 wide-
spread 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. See Memorandum from Janet Napolitano, Exercising
Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children 1 (June 15, 2012), J.A.
101; Memorandum from Jeh Charles Johnson, Exercising
Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children and With Respect to
Certain Individuals Who are Parents of U.S. Citizens or
Permanent Residents 1 (Nov. 20, 2014), J.A. 145. Those who
qualify receive authorization to work and reside in the United
States for renewable periods.
2
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 notice-
and-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.
Some may find today’s outcome perplexing. Certainly
Sheriff Arpaio cannot be blamed for believing he had
standing. The relevant judicial guideposts do not exactly
3
“define[]” standing “with complete consistency.” Valley
Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 475 (1982). And some
cases suggest standing can be satisfied based on fairly
ephemeral injuries and attenuated theories of causation. See,
e.g., Massachusetts v. EPA, 549 U.S. 497, 516–26 (2007).
Indeed, at first blush, Sheriff Arpaio’s allegations appear
somewhat similar to those the Supreme Court found sufficient
to secure standing in Massachusetts v. EPA. That case
revolved around EPA’s decision not to regulate greenhouse
gas emissions in new vehicles. Then, as now, standing
consisted of a tripartite test. Plaintiffs must show they were
or will be concretely injured by an action fairly traceable to
the defendant and redressable by the court. See Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 102–04 (1998). The
rules are somewhat relaxed for plaintiffs who, like
Massachusetts and Sheriff Arpaio, seek to vindicate a
procedural right, including “the right to challenge agency
action unlawfully withheld.” Massachusetts, 549 U.S. at 517.
Procedural rights claims can proceed “without meeting all the
normal standards for redressability and immediacy.” Id. at
517–18 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
572 n.7 (1992)). Massachusetts received a further benefit. As
a sovereign state, it was “entitled to special solicitude in [the]
standing analysis.” Id. at 520.
Massachusetts, like Sheriff Arpaio, believed the federal
government had “abdicated its [statutory] responsibility” to
protect the State’s interests. Id. at 505. The State, like the
Sheriff, asked the Court to construe the meaning of a federal
statute, “a question eminently suitable to resolution in federal
court.” Id. at 516. And Congress had authorized challenges
to the EPA, id., just as Congress has generally authorized the
type of challenge Sheriff Arpaio now pursues, see 5 U.S.C. §
4
704; see also Texas v. United States, 787 F.3d 733, 751–52
(5th Cir. 2015).
The Supreme Court ultimately found that Massachusetts’
injury lay in the potential loss of coastal land caused by the
threat of rising seas. The Court said “the rise in sea levels
associated with global warming has already harmed and will
continue to harm Massachusetts.” Massachusetts, 549 U.S. at
526. Scientific evidence suggested a causal relationship
between greenhouse gases and atmospheric warming. The
Court brushed aside EPA’s argument that Massachusetts had
only a generalized grievance widely shared by others. The
global nature of global warming did not negate the state’s
claimed concrete injury. See id. at 522–23.
Just as EPA’s inaction harmed Massachusetts’ shores,
inaction on immigration is said to harm Sheriff Arpaio’s
streets. Immigration, like global warming, affects the entire
nation. But that does not mean no one has standing to
challenge the concrete effects of the federal government’s
immigration policies. “[W]here a harm is concrete, though
widely shared, the Court has found ‘injury in fact.’” FEC v.
Akins, 524 U.S. 11, 24 (1998).
Based on these facial similarities, someone in Sheriff
Arpaio’s shoes may well believe he has standing. After all,
Massachusetts sets out a “loosened standard” under which
“any contribution of any size to a cognizable injury” seems to
be “sufficient for causation, and any step, no matter how
small,” seems to be “sufficient to provide the necessary
redress.” Jonathan H. Adler, Standing Still in the Roberts
Court, 59 CASE W. RES. L. REV. 1061, 1078 (2009). Under
that elastic framework, the risk of harm, however tenuously
linked to the challenged government action, appears to suffice
to show standing.
5
Despite initial appearances, Massachusetts does not
support the Sheriff’s standing. Preliminarily, perhaps sensing
that Massachusetts’ broad-based claim could not satisfy the
ordinary rules of standing, the Court lowered the bar, ruling
that state litigants were “entitled to special solicitude” in the
standing calculus. Massachusetts, 549 U.S. at 520. In
addition to being special, the solicitude the Massachusetts’
Court manufactured was highly selective: cast in concerns
over state sovereignty, see id. at 518–20, this bit of doctrinal
favoritism likely does not extend to non-state litigants like the
Sheriff, who must clear the ordinary hurdles to standing. The
Sheriff falls short, largely for the reasons addressed below.
Without the laxity afforded to state litigants, Sheriff
Arpaio’s arguments for causation are overly speculative. At
bottom, Sheriff Arpaio avers that DACA and DAPA inspired
a flood of immigration which led, in turn, to increased crime.
His injury rests on the behavior of third parties,
undocumented immigrants who chose to commit crime. “[I]t
is ordinarily substantially more difficult to establish” standing
based on the actions of third parties. Lujan, 504 U.S. at 562(internal quotations omitted). The Sheriff has not met that
higher burden. The link between DACA and DAPA—
programs designed for non-criminals—and crimes committed
by undocumented immigrants is too attenuated and
susceptible to intervening factors.1 See, e.g., Mideast Sys. &
1
Of course, in reality, the link may be no more attenuated than that
connecting a potential twenty-centimeter rise in sea level with
greenhouse gas emissions from new vehicles. See Massachusetts,
549 U.S. at 522; see also Adler, supra, at 1074 n. 91 (“[T]he
amount of sea-level rise that constitute[d] Masachusetts’s actual,
present injury is less than 0.1cm-0.2cm per year, and the amount of
projected sea-level rise that could be redressed by regulation of
greenhouse gas emissions from new motor vehicles under [EPA’s
6
China Civil Const. Saipan Joint Venture, Inc. v. Hodel, 792
F.2d 1172, 1178 (D.C. Cir. 1986) (“[T]he presence of an
independent variable between either the harm and the relief or
the harm and the conduct makes causation sufficiently
tenuous that standing should be denied.”). Lacking grounds
for special treatment under Massachusetts, Sheriff Arpaio has
not satisfied the demands of our standing doctrine.
Finally, the central difference between this case and
Massachusetts may be much more practical in nature:
Massachusetts, unlike Sheriff Arpaio, did its homework. The
State hired experts and introduced detailed information
suggesting a causal relationship between certain gases,
atmospheric warming and a rise in sea levels. See
Massachusetts, 549 U.S. at 521–23. Sheriff Arpaio instead
can show potential costs but not causation, owing largely to
the difficulty of showing causation in cases dependent on
third-party behavior. Without more, his claim cannot survive
the scrutiny of our modern, formalistic approach to standing.
***
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
regulatory authority] is even less, as U.S. motor vehicles only
represent a fraction of [greenhouse gas] emissions.”). Even so,
Sheriff Arpaio has not shown that link with the particularity our
precedents demand. See, e.g., Nat’l Wrestling Coaches Ass’n v.
Dep’t of Educ., 366 F.3d 930, 941 (D.C. Cir. 2004) (requiring
“substantial evidence” in the record “of a causal relationship
between the government policy and the third-party conduct, leaving
little doubt as to causation and the likelihood of redress”).
7
twenty-one states2 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. See Texas, 787 F.3d at 747–55 (upholding
Texas’ standing to challenge DAPA based on the costs of
providing drivers licenses to DAPA beneficiaries); Ariz.
DREAM Act Coal. v. Brewer, No. 15-15307, 2015 WL
300376 (9th Cir. July 17, 2015) (ordering the parties, and
inviting the federal government, to file briefs discussing
whether DACA violates the separation of powers or the Take
Care Clause of the Constitution); cf. Crane v. Johnson, 783
F.3d 244, 252 (5th Cir. 2015) (holding Mississippi lacked
standing to challenge DACA because the state failed to
“submit[] . . . evidence that any DACA eligible immigrants
resided in the state” or “produce evidence of costs it would
incur if some DACA-approved immigrants came to the
state”).
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.
2
Maricopa County Profile, MARICOPA COUNTY OPEN BOOKS,
http://www.maricopa.gov/OpenBooks/profile.aspx (last visited July
28, 2015).
8
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.
***
Our jurisprudence on standing has many shortcomings.
As today’s decision demonstrates, standing doctrines often
immunize government officials from challenges to allegedly
ultra vires conduct. To understand how this deferential
attitude came to pass, we must briefly consider how the
standing doctrine evolved over the decades.
Academic accounts suggest that, from the time of the
founding until the early twentieth century, “there was no
separate standing doctrine at all.” Cass R. Sunstein, What's
Standing After Lujan? Of Citizen Suits, "Injuries," and Article
III, 91 MICH. L. REV. 163, 170 (1992); accord JOSEPH
VINING, LEGAL IDENTITY: THE COMING OF AGE OF PUBLIC
LAW 55 (1978) (“The word ‘standing’ . . . does not appear to
have been commonly used until the middle of . . . [the
twentieth] century.”); William A. Fletcher, The Structure of
Standing, 98 YALE L.J. 221, 224–25 (1988) (“[N]o general
doctrine of standing existed.”). “In early practice in England
and in the United States, moreover, certain forms of action, or
writs, were available to all citizens without any showing of a
‘personal stake’ or an ‘injury in fact.’” Alex Hemmer, Note,
Civil Servant Suits, 124 YALE L.J. 758, 764 (2014). There
were limits. Namely, plaintiffs could only proceed based on a
cause of action rooted in common law or statute. See
9
Sunstein, supra, at 169–70; Fletcher, supra, at 224. The
absence of a free-standing, self-conscious doctrinal approach
left room to challenge the government’s failure to meet its
obligations. That type of claim, “the public action—an action
brought by a private person primarily to vindicate the public
interest in the enforcement of public obligations—has long
been a feature of our English and American law.” Louis L.
Jaffe, Standing to Secure Judicial Review: Private Actions, 75
HARV. L. REV. 255, 302 (1961).
If public actions ever were a feature of our law, that is
true no longer. Soon after the turn of the twentieth century, as
the administrative state materialized, the Supreme Court
began focusing on standing as a critical component of
justiciability. See Sunstein, supra, at 179–81. In a significant
1923 case, the Court dismissed a taxpayer’s constitutional
challenge to the Maternity Act of 1921, finding the taxpayer’s
pecuniary interest in the Act to be “minute and
indeterminable” and noting this scant interest was “shared
with millions of other[]” citizens. Massachusetts v. Mellon,
262 U.S. 447, 487 (1923). In a sign of things to come, the
opinion emphasized the “inconveniences” inherent in
permitting challenges to widely shared grievances. Id.Emboldened justiciability doctrines along these lines served
to “insulate progressive and New Deal legislation” from a
variety of challenges. Sunstein, supra, at 179.
In the following decades, the standing doctrine secured
its footing and coalesced around the three factors we know
today: injury in fact, causation and redressability. See Lujan,
504 U.S. at 560. But hidden within these factors, and the
surrounding case law, is a surprising hostility to suits seeking
to redress executive branch wrongdoing. That hostility is
encapsulated in the generalized grievance doctrine, which the
district court below emphasized in dismissing Sheriff
10
Arpaio’s suit. As the district court described the doctrine, “a
plaintiff who seeks to vindicate only the general interest in the
proper application of the Constitution and laws does not
suffer the type of direct, concrete and tangible harm that
confers standing and warrants the exercise of jurisdiction.”
Arpaio v. Obama, 27 F. Supp. 3d 185, 200 (D.D.C. 2014).
Separation of powers concerns underlie this approach.
“Vindicating the public interest (including the public interest
in Government observance of the Constitution and laws),” we
are reminded, “is the function of Congress and the Chief
Executive.” Lujan, 504 U.S. at 576.
Today’s decision reaches the same conclusion as did the
district court—Sheriff Arpaio lacks standing—but wisely
rests on grounds other than the generalized grievance
doctrine. Our antagonism to so-called generalized grievances,
if unbounded, threatens multiple harms. For one thing, this
doctrine gives public officials all the wrong incentives. The
advice seems to be: “Never steal anything small.” Focused
acts of wrongdoing against particular persons or classes of
persons will probably result in injury in fact, affording
standing to challenge public officials. But the larger the
injury, and the more widespread the effects, the harder it
becomes to show standing.
Moreover, the generalized grievance theory and related
principles of contemporary standing doctrine effectively
insulate immense swaths of executive action from legal
challenge. Our relentless emphasis on the need to show a
concrete injury caused by executive action and redressable by
judicial relief makes it virtually impossible to challenge many
decisions made in the modern regulatory state. Executive
branch decisions crafting binding enforcement (or non-
enforcement) policies, devoting resources here or there (at
taxpayer expense), or creating generally applicable norms
11
may well escape challenge. See, e.g., Hemmer, supra, at
768–69; see also Heckler v. Chaney, 470 U.S. 821, 831
(1985) (noting the “general unsuitability for judicial review of
agency decisions to refuse enforcement”).
Consider this case. The Sheriff’s claims on the merits
may well raise a constitutionally cogent point. Despite the
dazzling spin DHS puts on the DACA and DAPA programs, a
categorical suspension of existing law—distinct from the
case-by-case deferrals or targeted humanitarian exemptions
cited as past precedent—complete with a broad-based work
authorization, arguably crosses the line between
implementing the law and making it. See Zachary S. Price,
Enforcement Discretion and Executive Duty, 67 VAND. L.
REV. 671, 759–61 (2014). And this is true even if the
legislature aids and abets the usurpation. See generally
Department of Homeland Security Appropriations Act of
2010, Pub. L. No. 111-83, 123 Stat. 2142, 2149 (2009);
Consolidated Appropriations Act of 2014, Pub. L. No. 113-
76, div. F., Tit. II, 128 Stat. 5, 251 (2014) (directing the
Secretary of Homeland Security to “prioritize the
identification and removal of aliens convicted of a crime by
the severity of that crime,” but silent as to the propriety of
categorically suspending existing removal laws). Neither the
aggressive entrepreneurship of the executive nor the
pusillanimity of the legislative branch can alter the
fundamental constraints of the Constitution. See, e.g., Robert
J. Delahunty & John C. Yoo, Dream On: The Obama
Administration’s Nonenforcement of Immigration Laws, the
DREAM Act, and the Take Care Clause, 91 TEX. L. REV. 781,
850–56 (2013); Price, supra, at 759–61. However, although it
is the denial of standing rather than its grant that undermines
democratic accountability in such circumstances, concerns
about the efficacy of separation of powers principles can be
12
dismissed as “generalized grievances” no one has standing to
challenge.
Separation of powers concerns surely cannot justify every
application of the generalized grievance doctrine. By
prohibiting abstract, general claims, the doctrine aims to
ensure that the President’s “most important constitutional
duty, to ‘take Care that the Laws be faithfully executed’” is
not transferred to the courts. Lujan, 504 U.S. at 577 (quoting
U.S. CONST. art. II, § 3). But what if the Chief Executive
decides not to faithfully execute the laws? In that case our
doctrine falls silent. Paying a nominal filing fee guarantees
access to the federal courts, but challenge the executive’s
decision to undermine the rule of law and you will likely find
your fee wasted.
This court has previously emphasized the need to
approach the standing of challengers to ultra vires conduct
with a measure of sensitivity. In a 1987 case, we held that a
non-profit providing services to Haitian refugees lacked
standing, under both constitutional and prudential rubrics, to
challenge the executive’s policy of interdicting Haitian
refugees on the open ocean. Haitian Refugee Ctr., 809 F.2d
at 796. After concluding the challengers lacked standing
under Article III, the court applied the prudential standing
doctrine, which asks whether a plaintiff falls within the zone
of interests protected under a particular statutory or
Constitutional provision. Some flexibility was in order. The
challengers did not have to satisfy the zone of interest test
with respect to the
constitutional and statutory powers invoked by the
President in order to establish their standing to challenge
the interdiction program as ultra vires. Otherwise, a
meritorious litigant, injured by ultra vires action, would
13
seldom have standing to sue since the litigant’s interest
normally will not fall within the zone of interests of the
very statutory or constitutional provision that he claims
does not authorize action concerning that interest.
Id. at 811 n.14. While the court’s comments centered on
prudential standing, they offer a useful reminder that standing
doctrines—both constitutional and prudential in nature—
should not be construed so narrowly as to choke legitimate
challenges to ultra vires conduct. Here, the lesson is clear.
We should, at the very least, give careful thought before
blindly applying the generalized grievance doctrine in cases
challenging federal programs as ultra vires.
The second shortcoming of our standing doctrine is this:
standing has become a “lawyer’s game,” as Chief Justice
Roberts phrased it. Massachusetts, 549 U.S. at 548 (Roberts,
J., dissenting). Sophisticated, well-resourced litigants can
game the system, producing the types of proof that pass
muster, while less sophisticated litigants may be left outside
the courthouse doors. Our case law hardly provides clear
guidance. Sometimes standing appears to rest on mere ipse
dixit. “A litigant, it seems, will have standing if he is
‘deemed’ to have the requisite interest, and ‘if you . . . have
standing then you can be confident you are’ suitably
interested.” Flast v. Cohen, 392 U.S. 83, 130 (1968) (Harlan,
J., dissenting) (quoting Ernest J. Brown, Quis Custodiet Ipsos
Custodes?—The School-Prayer Cases, 1963 SUP. CT. REV. 1,
22).
More broadly, our obsession with standing “present[s]
courts with an opportunity to avoid the vindication of
unpopular rights, or even worse to disguise decision on the
merits in the opaque standing terminology of injury,
causation, remedial benefit, and separation of powers.” 13A
14
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 3531.3 (3d ed. 1998).
***
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 (quoting Edmond
Cahn, Law in the Consumer Perspective, 112 U. PA. L. REV.
1, 13 (1963)). 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.