Authors: Stephen Legomsky
In the United States today, some of the most heated political debate has centered on certain recent executive actions taken by President Obama to grant relief to many of the approximately eleven million immigrants living in the country without authorization. The President's critics have challenged the legality of those actions in federal court. This litigation has exposed and expanded three features of the U.S. judicial system that, while individually less noteworthy, have combined to produce particularly potent effects not yet examined in the scholarly literature. These three features are broader opportunities for states to file lawsuits in federal courts, almost unlimited freedom of states to choose the particular courthouse in which to file, and aggressive use of nationwide injunctions by judges sympathetic to the states' positions. The whole has proved greater than the sum of its parts. The combination of these three developments has armed individual states with a powerful weapon that they have begun to use to shut down federal executive actions to which they object on either policy or political grounds. Recent court decisions blocking a federal policy on transgender rights and a federal policy on labor law rights reinforce the same effect. At a time when partisan differences have also virtually paralyzed the legislative branch of the U.S. federal government, the ease with which individual states can now use the courts to frustrate federal executive power takes on greater significance still. This paper describes the immigration issues and decisions that have triggered this litigation and explains how recent expansions of the three features noted above have interacted to infuse states with outsized power vis a vis the national government.
Keywords: immigration, USA, courts, federal, states