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November 16, 2010


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Your assessment seems spot on: how is the state statue in this case not an object to a federal goal or scheme?? For the life of me I cannot understand how the Court could be unanimous in rejecting this. I do understand the benefits argument, but -- contrary to the court's declaration in the opinion -- the "benefits" technicality hardly seems like the "main legal issue." It seems too clever by half, in that the legislative history makes it pretty that the state law is an attempt to define away a very real obstacle preemption problem. Based on these observations, if this case goes into the federal system it seems like the plaintiffs have a good chance of reversing the Cal Supremes.

With that said, I’m not so sure. Two fairly untreated issues might take front stage if the Court were to grant cert , and both of them could be much more damaging to the plaintiffs’ case than the benefits argument.

The first is whether the statute federal statute creates a private cause of action at all. Believe it or not, there is no clear answer to this question. The 10th Circuit seems to think a related provision of the statute does create a private cause of action, but the issue is far from settled. From a federal court's perspective, and against the current political backdrop on immigration, to dispose of this case by holding that the federal statute does not create a private cause of action must be very tempting indeed.

The second issue is standing. How the plaintiffs (who are citizen-university students not affected by the state law) can point to the "injury" they need for federal jurisdiction is far from clear. The answer that first pops into mind is that they are taxpayers, but this case isn't a likely candidate for taxpayer standing because there is nothing resembling an establishment clause issue here. So what's left? The stigma of attending school with non-citizens? (Yes, they did argue that -- read their briefs in the CA appellate court -- but it didn't, and shouldn't, fly.) Their political anger at giving money to foreigners? For them that may hurt, but I strongly doubt the pain is "cognizable" under Article III.

Both of these (potential) defects reveal what this suit really is: a sour grapes attempt to use the courts to usurp a state's political decisions. These plaintiffs are not hurt by the law. Nor is it clear that, assuming they have been hurt, the federal law under which they sue even offers them a cause of action. Rather, they are upset that California’s legislature is giving a break to unlawful residents and – in the fine tradition of the ballot imitative state – are seeking to reverse the legislature’s political decisions.

For that reason, despite the strength of the preemption argument, I hope the Court leaves this one alone. I know the plaintiffs are upset. But their remedy here is not, or at least should not be, resort to the federal courts.

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