Post-Alliance Standing Rule: Legal-Services Organizations and Counties Cannot Manufacture Article III Injury by Voluntarily Incurring Costs to Oppose or Adapt to S.B. 4
I. Introduction
This en banc Fifth Circuit decision concerns a pre-enforcement, facial challenge to Texas Senate Bill 4 (“S.B. 4”), a state statute that creates Texas crimes paralleling federal unlawful entry and reentry provisions and authorizes a state-court “return” order process. The plaintiffs here were not the regulated class (aliens). Instead, the challengers were two immigration legal-services nonprofits—Las Americas Immigrant Advocacy Center and American Gateways (together, the “Nonprofit Plaintiffs”)—and the County of El Paso, Texas.
The district court preliminarily enjoined S.B. 4’s enforcement, finding likely federal preemption and crediting standing based on mission frustration, resource diversion, and increased expenditures. A divided panel affirmed; the court then took the case en banc and vacated the panel opinion. By the time of en banc review, the Supreme Court had decided FDA v. Alliance for Hippocratic Medicine (“Alliance”), 602 U.S. 367 (2024), which sharply limited organizational standing theories. The United States—an original plaintiff in a consolidated action—dismissed its suit without prejudice, rendering only the private plaintiffs’ standing decisive.
Key issue: Whether Nonprofit Plaintiffs and El Paso County had Article III standing—under Alliance and related Supreme Court precedent—to obtain a preliminary injunction against S.B. 4 before it took effect.
Holding: They did not; the Fifth Circuit vacated the preliminary injunction without reaching preemption or any merits question.
II. Summary of the Opinion
Writing for a majority, Judge Jerry E. Smith framed standing as the “end of this matter” because the plaintiffs’ asserted harms arose from costs they chose to incur in response to a law regulating others. Relying on the Supreme Court’s recent admonitions that plaintiffs must have a “personal stake” and cannot “manufacture standing,” the court held:
- Nonprofit Plaintiffs lack organizational standing because their claimed injuries (resource diversion, restructuring services, increased legal representation) are voluntary expenditures made in response to a law that does not regulate them, foreclosed by Alliance and not saved by Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
- El Paso County lacks standing because alleged “eroding public trust” is a non-cognizable, subjective reputational harm lacking a close historical analogue under TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), and claimed fiscal harms are speculative in a pre-enforcement posture.
Accordingly, the preliminary injunction entered by the Western District of Texas was vacated.
III. Analysis
A. Precedents Cited (and How They Drive the Result)
1. FDA v. All. for Hippocratic Med., 602 U.S. 367 (2024) (the controlling pivot)
The majority treated Alliance as the decisive doctrinal shift. It extracted three propositions from the Supreme Court’s standing framework:
- Standing requires a “personal stake” and a concrete injury.
- Standing is “substantially more difficult” when challenging “unlawful regulation of someone else.”
- Organizations cannot “spend [their] way into standing” or “manufacture [their] own standing” by voluntarily incurring costs in response to government action.
On that view, the nonprofits’ core allegation—S.B. 4 will force them to change how they represent and advise clients—was recast as precisely the sort of voluntary expenditure Alliance rejected.
2. Bost v. Ill. State Bd. of Elections, 146 S. Ct. 513 (2026)
The opinion opens with Chief Justice Roberts’s statement that courts sometimes overcomplicate standing and emphasizes the “personal stake” requirement and the inability to “manufacture standing by voluntarily” incurring costs. Bost is used as a reinforcement and simplifier: the majority treats it as confirmation that doctrinal complexity should not obscure the basic point that self-chosen expenditures do not supply injury-in-fact.
3. Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) (narrowed)
The central dispute was how much life remains in Havens Realty Corp. v. Coleman for organizational standing. The prior panel majority relied heavily on Havens to uphold standing for a counseling organization based on “frustration” and a “drain on resources.”
The en banc majority accepted that Havens exists, but embraced the limitation emphasized in Alliance: Havens was an “unusual case,” and the Supreme Court “has been careful not to extend the Havens holding beyond its context.” The majority then adopted the distinction highlighted in Judge Oldham’s earlier panel dissent: Havens involved a concrete, defendant-caused injury in the form of falsehoods and direct interference, whereas S.B. 4 “says nothing about Las Americas” and does not target the nonprofits’ services.
In effect, the majority reads Alliance to compress Havens into a fact-bound exception rather than a general permission slip for “diversion of resources” standing.
4. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982)
Cited for the principle that standing cannot rest on ideological opposition, “intensity of interest,” or “the fervor of advocacy.” This supports the majority’s portrayal of the nonprofits’ injuries as advocacy choices, not legally cognizable harms.
5. Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) and Raines v. Byrd, 521 U.S. 811 (1997)
These anchor the baseline requirements: a concrete, particularized injury and a “personal stake.” The majority uses them to frame plaintiffs as outsiders complaining about regulation of third parties.
6. Fifth Circuit limits on advocacy-organization standing: Ass'n for Retarded Citizens of Dall. v. Dallas Cnty. Mental Health & Mental Retardation Ctr. Bd. of Trs., 19 F.3d 241 (5th Cir. 1994)
The majority relied on this case to reject standing theories based on an organization’s mandate “to protect and advocate the rights of” others through “legal representation.” This precedent is deployed to prevent legal-services nonprofits from converting their professional work—learning the law, counseling clients, representing more clients—into an Article III injury.
7. County standing constraints: Donelon v. La. Div. of Admin. Law ex rel. Wise, 522 F.3d 564 (5th Cir. 2008) and Coleman v. Miller, 307 U.S. 433 (1939)
These are cited for a general rule that political subdivisions usually lack standing to sue their parent state, absent limited recognized circumstances. While the majority’s primary reasoning focused on lack of cognizable injury, these authorities reinforce skepticism toward a county’s attempt to block enforcement of state law through federal litigation.
8. Reputational harm and historical analogues: TransUnion LLC v. Ramirez, 594 U.S. 413 (2021)
The county’s “public trust dilution” theory was rejected as a non-cognizable, subjective reputational complaint lacking a “close historical or common law analogue.” TransUnion operates here as a gatekeeping tool: reputational injury is not assumed; it must resemble historically recognized harms in kind, not merely in rhetoric.
9. Pre-enforcement uncertainty: Arizona v. United States, 567 U.S. 387 (2012)
Although the en banc majority did not reach preemption, it invoked Arizona v. United States to caution against assuming how S.B. 4 will be construed or enforced in a pre-enforcement posture. The majority used this to underscore that plaintiffs’ projected fiscal and operational consequences are speculative.
B. Legal Reasoning
1. The court’s standing framework: third-party regulation and “What’s it to you?”
The opinion presents standing as a separation-of-powers limit: federal courts may not adjudicate generalized policy objections dressed as injury. Because S.B. 4 is enforceable against “aliens illegally present in Texas” and not against the nonprofits or county, plaintiffs faced a heightened causation/injury hurdle typical of challenges to “unlawful regulation of someone else.”
2. Nonprofit Plaintiffs: why “more clients” and “more work” is not an Article III injury
The nonprofits argued S.B. 4 would frustrate their missions, force restructuring, and divert resources. The majority characterized these as:
- Voluntary expenditures made to counteract or respond to a law (barred by Alliance).
- Ordinary legal work—learning new rules, shifting capacity, representing clients affected by legal change—which cannot itself create standing.
- Ideological opposition reframed as injury (barred by Valley Forge).
A key move is the court’s rule-like statement: a legal-services organization cannot have Article III standing merely because a new law requires it to understand the change, adjust resources, or increase the scope of legal representation for clients adversely affected. This is the opinion’s most operationally significant doctrinal contribution.
3. El Paso County: reputational claims and speculative fiscal impacts
The county claimed S.B. 4 would erode public trust and require more jail space and officers. The majority rejected:
- Public trust dilution as subjective and non-justiciable reputational harm under TransUnion.
- Projected costs as conjectural in a pre-enforcement facial challenge, given uncertainty about enforcement, detention locations, sentencing choices, reimbursement, and possible deterrent effects.
4. Why the court refused merits review
Because standing was absent, the court vacated the preliminary injunction without addressing whether S.B. 4 is preempted. The opinion thus exemplifies a jurisdiction-first posture: major federalism merits questions (state immigration enforcement and preemption) remain undecided when plaintiffs cannot clear Article III.
C. Impact
1. Tightening organizational standing for service providers in the Fifth Circuit
The decision signals a particularly restrictive post-Alliance approach: nonprofit service providers (including legal-services organizations) cannot rely on anticipated increases in demand, operational reshuffling, or additional representation costs as “injury,” even when those consequences are predictably induced by a new criminal-enforcement scheme aimed at the nonprofits’ client base.
2. Constraining political subdivision challenges premised on “trust” and predicted spending
Counties and other subdivisions face a narrowed path: reputational “trust” harms are treated as too subjective and historically unmoored, and pre-enforcement budget forecasts can be dismissed as speculation.
3. Practical consequences for future S.B. 4 litigation
Because the court vacated on standing, not merits, future challenges to S.B. 4 (or similar state immigration laws) may depend on:
- suits by directly regulated individuals (e.g., persons subject to arrest/prosecution/return orders),
- or suits by sovereigns with a justiciable injury and live claims (the United States had dismissed here),
- or as-applied challenges after enforcement clarifies facts and reduces speculation.
4. The opinion’s “shadow” merits debate (concurring and dissenting writings)
Although not controlling, the separate opinions reveal live fault lines likely to recur:
- Judge Ho’s concurrence endorses a State War Clause theory, emphasizing executive determinations of “invasion” and invoking war-power and political question themes.
- Judge Oldham’s concurrence addresses facial preemption burdens (United States v. Salerno, 481 U.S. 739 (1987); Moody v. NetChoice, LLC, 603 U.S. 707 (2024); Bondi v. VanDerStok, 604 U.S. 458 (2025); United States v. Rahimi, 602 U.S. 680 (2024)) and argues at least some applications of § 51.02 would not conflict with federal law, distinguishing Arizona v. United States.
- Judge Richman’s dissent (joined in substantial part) would find standing (via Havens Realty Corp. v. Coleman) and would hold S.B. 4 preempted under Arizona v. United States, emphasizing federal discretion, removal processes, CAT/asylum timing, and state unilateralism.
Those debates—standing boundaries, facial preemption standards, and state “invasion” theories—are positioned to shape subsequent litigation even though only standing controlled the en banc judgment.
IV. Complex Concepts Simplified
1. “Standing” (Article III)
Standing is the constitutional requirement that the plaintiff show a real, personal injury caused by the defendant that a court can likely remedy. It prevents courts from issuing advisory opinions about laws that some plaintiffs oppose as a matter of policy.
2. “Organizational standing” and “diversion of resources”
Organizations sometimes claim injury when they must spend money or shift staff due to challenged conduct. After FDA v. All. for Hippocratic Med., this Fifth Circuit majority treated many such costs as non-cognizable when they are voluntarily incurred to respond to a law affecting third parties—particularly when the organization is doing what it already does (advocacy or legal assistance), just more of it.
3. “Pre-enforcement facial challenge”
This is a lawsuit filed before the law is applied to anyone, seeking to block it entirely in all circumstances. Courts often view predicted harms here as speculative because the law’s real-world enforcement details are unknown.
4. “Preemption”
Preemption is the Supremacy Clause doctrine under which federal law can displace state law. The en banc majority did not decide preemption; it decided only that these plaintiffs could not be the ones to litigate it in federal court.
5. “Reputational harm” and “historical analogue”
After TransUnion LLC v. Ramirez, some intangible harms must resemble historically recognized injuries. The majority held that “eroding public trust” is too subjective and lacks that historical grounding.
V. Conclusion
The en banc Fifth Circuit vacated the preliminary injunction against Texas’s S.B. 4 on a jurisdictional ground: the challengers lacked Article III standing. The court’s core doctrinal message is that, under recent Supreme Court standing precedent, legal-services nonprofits and counties cannot establish standing by pointing to costs they choose (or predict they will need) to incur in response to a law regulating third parties—whether styled as resource diversion, increased workload, mission frustration, reputational “trust” injury, or anticipated expenditures in a pre-enforcement posture.
By disposing of the case at the threshold, the court left unresolved the major merits questions—federal preemption, the permissible state role in immigration enforcement, and constitutional arguments about “invasion” and war powers—while simultaneously sharpening the standing barrier for future institutional plaintiffs who seek to challenge similar statutes in the Fifth Circuit.
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