Washington v. Trump may be headed to the Supreme Court — and with it the question of whether a state has standing to sue the federal government over enforcement (or nonenforcement, or misapplication) of immigration laws. As many others have observed, the standing question in Washington v. Trump is very similar to the standing question in Texas v. United States, the 26-state challenge to the Obama administration’s deferred action policy. There, Texas and its co-plaintiff states won in the Fifth Circuit, and an eight-member Supreme Court affirmed the Fifth Circuit’s decision by a 4–4 vote. As Roderick Hills writes, a “delicious irony” of Washington v. Trump is that the pro-immigration side is now arguing in favor of state standing while the anti-immigration side is arguing against — a reversal of roles from the Texas case.

As a formal matter, the Supreme Court’s 4–4 affirmance without opinion in the Texas case sets no precedent. Yet I think the Justices who voted to affirm in that case (i.e., the four who sided with Texas) must — if they are to be faithful to rule-of-law principles — vote in favor of state standing if and when they hear the Washington case. By contrast, the four Justices who voted to reverse in the Texas case have no obligation to vote against state standing in the Washington case, regardless of whether they can draw a normatively relevant distinction between the Texas case and the Washington case. This is so even if the Justices who voted to reverse in the Texas case did so on standing grounds. (We do not know which Justices voted which way in Texas, although most court-watchers will guess that it was the Republican-appointed Justices who voted with the states and the Democratic appointees who voted with the Obama administration.)

I recently posted on the ambiguity of the phrase “rule of law,” so I should be clear about what I mean by “rule-of-law principles.” I mean that a judge who applies rule R to party P in case 1 must apply rule R to party Q in case 2 unless there is a normatively relevant distinction between party P and party Q or between case 1 and case 2 that would justify the application of some other rule (~R) in case 2. This rule-of-law principle applies regardless of whether the decision in case 1 is precedential as a formal matter. Whether or not a decision sets a precedent is separate from whether the judges who issue that decision are obligated to act according to rule-of-law principles.

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