It has been reported that President Barack Obama is planning to unilaterally attempt to grant legal status to illegal immigrants.  There is no legal authority for him to do so.  It has been reported that it may not be possible to stop Obama’s action with a lawsuit because nobody would have standing to bring the lawsuit.

Legal experts see any challenge to the expected immigration policy changes headed for the same key roadblock facing House Speaker John Boehner’s planned suit over Obamacare implementation delays: finding a way to show the injury needed to press a case in the federal courts. (snip)

While broad immigration moves clearly have beneficiaries, it’s hard to find a person or entity harmed enough by under-enforcement to have the standing to pursue a case in court.

However, there are a bunch of entities that would have standing to sue the federal government if Obama unilaterally grants legal status to illegal immigrants – the States.  Moreover, a suit by a State against the federal government could be filed directly in the United States Supreme Court because the Supreme Court has original jurisdiction over such suits.  Article III, Section. 1 of the United States Constitution states, in part: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.  Article III, Section 2 states, in part: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . to Controversies to which the United States shall be a Party . . . .”  Article III, Section 2 also states: “In all Cases . . . in which a State shall be Party, the supreme Court shall have original Jurisdiction.”  States have standing to sue the federal government to enforce their Tenth Amendment right to exercise police powers, including the administration of state programs.  This is explained in great detail by Pacific Legal Foundation attorney Timothy Sandefur, at pages 327-335 of his article entitled State Standing to Challenge Ultra Vires Federal Action: The Health Care Cases and Beyond, published in the University of Florida Journal of Law and Public Policy, Vol. 23, pp. 311-344 (2013).

The United States Supreme Court stated in Plyler v. Doe, 457 U.S. 202 (1982), a case that has been misrepresented by the Obama Administration, that while regulation of immigration is an exclusively federal function, a State is permitted to take action, consistent with federal immigration policy, to protect its economy and ability to provide governmental services from the deleterious effects of a massive influx of illegal immigrants.  Plyler stated:

Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service.  Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.  (Plyler, at 228 n.23.)

The net fiscal impact on the States is significant.  The Federation for American Immigration Reform (FAIR) estimates that the cost to California alone in 2014 is over $25 billion.  FAIR states:

Californians bear an enormous fiscal burden as a result of an illegal alien population estimated at almost 3 million residents. The annual expenditure of state and local tax dollars on services for that population is $25.3 billion. That total amounts to a yearly burden of about $2,370 for a household headed by a U.S. citizen.

Nearly half of those expenditures ($12.3 billion) result from the costs of K-12 education for the children of illegal aliens — both those illegally in the country and those born in the United States. Another major outlay ($2.1 billion) results from the need to provide supplemental English language instruction to Limited English Proficient students, many of whom are children of illegal aliens. Together, these educational costs are 57.1 percent of total expenditures.

Other fiscal outlays result from the costs of medical care ($4.0 billion), public assistance services ($800 million), administration of justice functions ($4.4 billion), and general governmental services ($1.6 billion).

Because some tax revenue is collected from the illegal alien population, we include an estimate of this revenue from sales, income, property and "sin" taxes. Yet, it should be kept in mind that the $3.5 billion in tax collections is not truly an offset to the fiscal costs, because similar, and likely greater, tax revenue would be collected if the same jobs were filled by legal workers.

If Obama unilaterally grants legal status to illegal immigrants, the States will have to grant even more benefits to them because of their alleged “legal” status, at enormous cost to the States.  The States’ ability to perform most of their basic functions will be detrimentally affected.  The States would have standing to sue the federal government if Obama takes this action.  They could sue for declaratory and injunctive relief, which means that they would ask the Supreme Court to declare Obama’s action illegal, and order the federal government to do nothing to enforce Obama’s illegal action.

The question becomes whether any States have the commitment to the Constitution, to America, and the courage, to file such a lawsuit.

Allan J. Favish is an attorney in Los Angeles.  His website is allanfavish.com.  He has co-authored with James Fernald, a book about what might happen if the government ran Disneyland entitled "Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).