- The Washington Times - Wednesday, June 23, 2021

The Supreme Court‘s recent ruling on Obamacare has quickly reverberated across the legal landscape, with the administration rushing to tell lower courts to shut down red-state challenges to President Biden’s immigration policies.

The justices, in a 7-2 ruling last week, said Texas and other Republican-led states couldn’t show enough of a burden from Obamacare to be able to sue. Too many other factors are at play to be able to trace the harms Texas said it faced directly to the 2010 health care law, the court‘s majority said.

Within hours of that ruling, the Justice Department filed notices in courts from Texas to Arizona arguing that the same principle applies to cases where those states are challenging President Biden’s immigration policies.

In each case, the states say the costs of illegal immigration fall on them, so they bear enough harm to have the standing to sue if more illegal immigrants end up within their borders, thanks to Biden decisions.

The Justice Department said the new ruling undercuts that argument.

“Costs that the states incur because of state, federal, or constitutional requirements — such as the obligation to provide community supervision pursuant to a state criminal sentence, medical care to indigents under Medicaid laws, or education services to school-age noncitizens under the 14th Amendment — are not fairly traceable to the policies that the states challenge,” the Justice Department attorneys wrote in their filing in Arizona.

Arizona Attorney General Mark Brnovich replied almost immediately with his own brief saying the feds were grasping.

He said there is no question about the causality of Arizona’s harms. Federal officers are not deporting felons with deportation orders, so it falls on Arizona to “incur community supervision cost.”

“But for the interim guidance, hundreds of aliens with criminal convictions and final orders of removal would be deported,” the attorney general said.

Red-state attorneys general also have filed lawsuits over Mr. Biden’s energy, climate change and tax policies, and some of those cases could face similar arguments from the Justice Department.

The Washington Times asked the department for a list of cases in which filings have been made, but the department declined to talk about those public records.

The question of whether states have standing to sue over federal policies has been a major legal debate for decades.

The Supreme Court seemed to open the floodgates with a 2007 decision that found Massachusetts could sue the federal government over prospective damage from global warming.

In recent years, state entities were granted standing to sue to stop Obama-era and Trump-era immigration policies.

A federal judge in Texas ruled this year that states had standing in an immigration case based on the costs it incurs from illegal immigration.

Last week’s decision also involved Texas, which claimed in a lawsuit that the 2010 health care law was unconstitutional. Texas said it was injured, and therefore had standing to sue, because more people were using medical services and the state had to pay for many of them.

Led by Justice Stephen G. Breyer, the high court said the Republican-led states that sued never proved that connection. The case was California v. Texas.

Without standing, states would have a harder time trying to derail federal policies.

That would blunt Republican-led states’ efforts to hinder Mr. Biden in the near term, but it could hurt blue states when a Republican is in the White House.

Bradford Mank, a professor at the University of Cincinnati College of Law, said it’s usually difficult to say how a high court ruling on standing will affect other cases.

He said he does expect the Biden administration to try to use the latest ruling to shoot down state challenges.

“I expect some lower court judges will rely on California v. Texas to dismiss immigration challenges if they are sympathetic to the Biden administration’s policies. But I think that Arizona and Montana’s standing arguments would still probably prevail with the current Supreme Court,” he said.

“A future Supreme Court with more appointees by Democratic presidents might use California v. Texas to narrow the ability of states to sue the federal government. But standing doctrine is complicated and can be manipulated to either deny or grant standing as the Supreme Court chooses to do in a particular case,” he said.

Paul Nolette, who studies state lawsuits against the federal government, said last week’s ruling was limited to the specific facts of the health care case, and he doubted they would be repeated.

Mr. Nolette, who serves as chair of the political science department at Marquette University, said the decision does supply more ammunition to the federal government. Still, he said plenty of other precedents found states did have standing. In a 2019 case, the Supreme Court ruled that New York had standing to sue over another immigration matter: Mr. Trump’s attempt to add a citizenship question to the full 2020 census.

“If the courts don’t want to hear a case, they might invoke standing problems to dismiss it. If they do want to hear a case, then they will accept that standing exists,” he said.

Christopher Hajec, director of litigation at the Immigration Reform Law Institute, which has filed briefs backing states in the immigration cases, said the states should have standing because it’s easy to draw a direct line from the Biden policies to more illegal immigrants, which means more costs for states.

“The injury from the illegality is clear in the immigration cases,” he said.

Arizona calculated that its costs include jail time, at $70 a day, for migrants who end up behind bars, the expense of recovering dozens of dead bodies of migrants, and medical bills.

The Yuma Regional Medical Center delivers more than $1 million worth of care — never reimbursed — to illegal immigrants each year.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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