One of the most slippery concepts in civil law is that of "standing" — a legal concept that defines whether or not a person or entity has the right to sue for an alleged wrong. To a large extent, whether or not there is a basis for a finding that the person or entity has suffered, or will suffer, actual harm depends on how the presiding judge sees the world. So standing is very much subject to whether or not that particular judge sees the American jurisprudence system and the Constitution in narrow terms, or whether the judge believes the courts can be used as leverage to accomplish socially desirable goals.
Looked at in this context, "standing" becomes a particularly slippery notion where immigration is concerned. Here is why: When an alien, or a group of aliens seeking "class action" status, files a lawsuit, he or they need only say that a particular decision — or new policy being effected — has had (or will have) an adverse impact on their personal circumstances through denial of an application for status of some kind or another. They are at least halfway to the goal of achieving standing simply by the allegation they are harmed by not being given a benefit, or by being detained, or by being ordered deported, or by not being admitted, even if the law overtly and transparently gives the president and his officers statutory authority or sole discretion to say no.
Conversely, however, citizens such as you or me who see a policy that we believe adversely affects us — such as huge and burdensome foreign guestworker programs that depress wages or deprive Americans of jobs; or chain migration that strains social services that are ostensibly (but not in actuality) outside the reach of "self-sufficient" migrants whose sponsors have filed meaningless and unenforced affidavits of support — we will have a difficult time convincing a judge that the harm against us or other citizens similarly situated is particularized enough to gain standing to sue.
Consider, for instance, that when the union of federal immigration agents felt obliged to take the extreme step of suing the Obama administration for unlawfully and unconstitutionally instituting an administrative equivalent of amnesty via the DACA program, thus forcing them to disregard the law and their oaths of office, even they were ultimately deemed not to have standing and the suit was dismissed.
The result is — and has been for many years — a lopsided system in which our courts have become a venue for aliens legal and illegal to press their claims and chip away through the process of erosion at the protections supposedly afforded to citizens in federal law, protections that are designed to shield them from the harm of an out-of-control immigration system — yet the citizenry has no similar recourse in the courts, even though the adverse effects of that broken system are evident all around us.
Since advent of the Trump administration, though, the lopsided nature of court access has become even more pronounced; the envelope of "legal standing" has been stretched to the point of absurdity. Repeatedly, activist courts cherry picked by immigrant advocates and their allies have granted standing in the most specious of circumstances.
For instance, the series of Trump presidential orders commonly but mistakenly referred to as the "Travel Ban" were contested by a host of different entities, including state universities whose claim to standing was that they would be injured by not being able to accept as foreign students nationals from countries falling within the scope of the executive order. This presupposes, though, that any university, public or private has the right to accept foreign students as they wish. But they don't. Federal law is clear that no institution of higher learning can accept any foreign student without specific permission granted in advance to that institution by federal immigration officials — and even then they are entitled to accept such students only under such circumstances as the government deems appropriate. In the end, the grant or denial of a visa to any alien, including foreign students and exchange program visitors, is a fundamental exercise of national sovereignty, which is a prerogative of the federal government, not the states.
But state universities weren't the only ones to file suit: Several state governments also filed suit through their attorney general offices. Again, one wonders exactly what standing the states had in filing, since it is difficult to find any discernible harm to any state in what is clearly a matter of federal preemption. And, of course, this has increasingly become the norm in virtually all policies not to the liking of progressive states and their attorneys general.
The most recent example of this is the filing of a lawsuit by Xavier Becerra, California attorney general and, ironically, a former member of Congress who presumably understands something about federal preemption. But of course this isn't going to stop Becerra, who is adamantly opposed to all things Trumpian, as well as to anything that smacks of immigration control or enforcement. (One media outlet asserts that this is the fortieth time that Becerra, in his role as California attorney general, has initiated a lawsuit against the administration. I can't help but wonder what already-burdened California taxpayers, whose rates are among the highest in the nation, think of his office's profligate, and rising, litigation costs.)
Becerra is suing the Justice Department over recent rulings by U.S. Attorney General Jeff Sessions that are binding upon his employees, including those in the Executive Office for Immigration Review (EOIR), which houses the immigration courts as well as the Board of Immigration Appeals. Those decisions limited the scope of the phrase "particular social group" for purposes of granting asylum or refugee status to an alien, when the basis for a claim to the social group is that one was the victim of a crime, as opposed to persecution, per se.
While many immigrant advocacy groups have decried Sessions' decisions (wrongly in my view and that of my colleague, former immigration judge Andrew Arthur; see here, here, here, and here, for instance), the question arises: What is California's standing to sue? What identifiable harm to itself can the state articulate that is within its constitutional boundaries? None that I can see.
Undoubtedly some progressives will point out that states have also filed suit against government policies to prevent actions like DACA or refugee resettlement within their boundaries without their consent. That's true. It seems to me, though, that there is a signal difference. A state that is obliged to carry the follow-on burden — through granting of driver's licenses, provision of social services, and even emergency, police, and health care — of extra-statutory or constitutionally dubious federal immigration policies is in a significantly different position than a state that is claiming harm because aliens will not be admitted or settled. Exactly what harm does a state confront by not having to provide services to additional aliens among its populace?