Professor Jennifer Koh, "The Rise of the 'Immigrant-as-Injury' Theory of State Standing" -- American University Law Review

Professor Jennifer Lee Koh's article, "The Rise of the 'Immigrant-as-Injury' Theory of State Standing," is published in the American University Law Review, 72 Am. U. L. Rev. 885 (2023). The article considers the “immigrant-as-injury” standing doctrine that has enabled the states and federal judiciary to intervene on federal executive immigration policy.

Abstract of "The Rise of the 'Immigrant-as-Injury' Theory of State Standing"

Despite the Biden Administration’s efforts to hold itself out as a humane alternative to the excesses of immigration enforcement during the Trump presidency, federal courts have prevented a number of immigration policy changes from going forward during the first half of the Biden era. States serve as the primary plaintiffs in these lawsuits, which have impacted cornerstone immigration policies such as the termination of exclusionary border policies, the restoration of Deferred Action for Childhood Arrivals (DACA), and the application of enforcement priorities. During the 2022–23 term, the Supreme Court will hear certain states’ challenge to immigration enforcement priorities in United States v. Texas and will address whether the states have standing to bring the lawsuits in the first instance. Guidance from the Court on the standing issue is overdue and poised to have widespread consequences throughout the administrative state and immigration bureaucracy.

This Article interrogates the standing doctrine—what it calls the “immigrant-as-injury” standing doctrine—that has enabled the states and federal judiciary to intervene mightily on federal executive immigration policy. At bottom, the states’ standing theories treat the existence of immigrants within the jurisdiction of a state as financial costs and threats to states’ quasi-sovereign injuries. While the courts have long recognized financial injury for standing purposes, the treatment of immigrant existence as a cognizable injury merits critical attention, given its influence—and flaws. That doctrine infuses contested assumptions about migrant humanity with legal significance and forecloses meaningful opportunities to challenge the conclusion that the existence of immigrants imposes costs on the states. In doing so, the doctrine furthers the subordination of immigrants and stunts productive legal discourse about migration in the law. Furthermore, the story of the states as marginalized entities relies on blunt and misstated assumptions about the nature of federal power in the immigration sphere. Familiar but growing concerns about political polarization in the courts and society exacerbate concerns associated with the rise of the immigrant-as-injury standing doctrine. This Article encourages the Court to apply anti-solicitude principles to the immigrant-as-injury standing doctrine, which would require higher showings of injury, redressability, and causation in the standing analysis.