WashU Expert: Immigration case will have profound consequences


The United States Supreme Court agreed Jan. 19 to hear United States v. Texas, the challenge brought by 26 states to President Barack Obama’s executive actions on immigration. The stakes could not be larger, and they are not limited to immigration, said an immigration law expert at Washington University in St. Louis.

“Led by Texas, these states persuaded the U.S. Court of Appeals for the Fifth Circuit to issue a nationwide injunction, preventing the administration from implementing a policy called DAPA (Deferred Action for Parents of Americans),” said Stephen Legomsky, JD, DPhil, the John S. Lehmann University Professor Emeritus at the Washington University School of Law.

“Under this policy, immigration officials would consider whether to grant temporary reprieves from removal, and temporary work permits, to certain parents of U.S. citizens and lawful permanent residents,” he said.

Legomsky is former chief counsel of U.S. Citizenship and Immigration Services, the Department of Homeland Security agency that would be charged with implementing the challenged policy. More recently he was senior counsel to the Secretary of Homeland Security on immigration issues. In between, he provided expert testimony to both the House and Senate Judiciary committees on immigration.

He is the principal author of “Immigration and Refugee Law and Policy,” which has been the required text for immigration courses in 185 law schools.

“Each of those individuals would have to have lived continuously in the U.S. since January 1, 2010, meet certain other criteria, and show why he or she merits the favorable exercise of discretion,” he said.

Much has been written about the merits of the states’ challenge, Legomsky said. “But the most sweeping impact of the Court’s decision will be how it rules on whether Texas has standing even to bring the lawsuit. Texas will have to show that DAPA would harm it in some concrete way.”

“That’s why this case is so critical,” he said. “The Court of Appeals, in a 2-1 decision, held that Texas had legal standing. It reasoned that Texas’s laws would make DAPA recipients eligible for driver’s licenses and that the costs of processing driver’s license applications exceeds the application fees.”

That might seem like a narrow issue, Legomsky suggested, “but if the Supreme Court were to accept Texas’s theory, the ramifications would be enormous.”

“That is because Texas could easily avoid any of those extra costs simply by declining to grant driver’s licenses to deferred action recipients, which is something the state plainly wants to do anyway,” he said. “If the mere fact that a state would need to change a policy in order to avoid costs were enough to establish standing, the courtroom doors would be flung wide-open for individual states to derail all kinds of nationwide federal programs for years.”

Why is that the case? “The federal government is constantly required to interpret the federal laws that it administers and to make policy decisions,” Legomsky said. “Almost every time such an announcement favors the person who seeks an immigration benefit, some state benefit somewhere will be triggered. So under Texas’s theory, at least one state hostile to the particular policy will almost always have both the incentive and the opportunity to sue. And if, like Texas, the state is able to choose the judge it believes most likely to agree, that one state would be able to tie up federal programs for years, nationwide.”

It’s not just immigration, he said. “Many states link their income taxes to federal taxable income, so any time an IRS interpretation favors the taxpayer, a state could lose revenues,” Legomsky said. “Any time the Defense Department expands eligibility for military enlistment, a state could incur additional costs in its veterans programs. The states could avoid these costs by changing their policies, but under Texas’s theory they wouldn’t have to.”

Legomsky called Texas’s theory “a recipe for paralysis.”

“It would enable a single state to thwart important nationwide federal policies just by shopping for a sympathetic federal judge,” he said. “And that, above all, is why he considers today’s Supreme Court decision to take the case so momentous.”

Editor’s note: Members of the media interested in interviewing Legomsky can reach him by email at legomsky@wustl.edu or by phone at 314-935-6469 (office) or 314-779-4713 (cell).

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