The House of Representatives has passed the Laken Riley Act by a whopping 264-159. The bill may set up a constitutional showdown on the question of the standing of states to sue federal officials for failure to enforce federal law, but not any time soon.
The bill adds theft offenses to the crimes for which aliens may be taken into custody. In addition, though, it grants standing to state attorneys general to sue the Secretary of Homeland Security for a variety of failures to enforce several immigration laws. Can Congress do that?
A year and a half ago, in United States v. Texas, the Supreme Court held that states did not have standing to bring this kind of suit. Five Justices joined the majority opinion, which was premised on the constitutional doctrine of standing that the Court has derived from Article III’s definition of the jurisdiction of federal courts.
Justice Gorsuch, joined by Justices Thomas and Barrett disagreed with this analysis but concurred in the judgment on a much narrower ground. Injunctive relief for the states, he said, “is not available because of 8 U. S. C. § 1252(f)(1). There, Congress provided that ‘no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of’ certain immigration laws, including the very laws the States seek to have enforced in this case.“ Justice Alito dissented.
Can Congress change the law of 8 U. S. C. § 1252(f)(1)? Certainly. Can it amend Article III of the Constitution? Certainly not. Where federal court jurisdiction is specified in Article III, Congress cannot expand it. That was established in 1803.
So on the surface, at least, it would appear that Congress-conferred standing in such matters is a loser unless one of the five Justices in the majority departs, which does not look likely in the near term.
But not so fast. Although Congress cannot change Article III, that does not mean that its enactments have no effect on standing issues. Spokeo v. Robins (2016) involved the harm element of standing, and the Court noted, “In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles.” Does the judgment of Congress play a role on when and by whom the federal government’s own officers can be sued for dereliction of duty? It is not inconceivable that this could be enough to flip one vote.
The bill must pass the Senate first, of course, but it passed its first procedural vote 84-9. Final passage, I expect, will be sometime after January 20, when it will certainly be signed and not vetoed. But an actual case will likely be at least four years after that, as I expect the new administration will enforce these laws to the extent that its resources allow. So, in addition to whatever weight Congress’s input may have, the Supreme Court may have a different composition by the time this comes up again.
