OPINION ANALYSIS

Texas and Louisiana lack right to challenge Biden immigration policy, court rules

This article was updated on June 23 at 2:19 p.m.

In a major victory for the Biden administration, the Supreme Court on Friday ruled that Texas and Louisiana do not have a legal right, known as standing, to challenge a Biden administration policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation. The justices therefore did not weigh in on the legality of the policy itself, instead reversing a ruling by a federal district court in Texas that struck down the policy. The vote was 8-1. Justice Brett Kavanaugh wrote for a majority that included Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Justice Neil Gorsuch wrote an opinion in which he agreed that the states lacked standing, but for a different reason; his opinion was joined by Justices Clarence Thomas and Amy Coney Barrett (who wrote her own concurring opinion, joined by Gorsuch).

Justice Samuel Alito was the lone dissenter. He complained that the court’s decision left states “already laboring under the effects of massive illegal immigration even more helpless.”

The policy at the center of the case, United States v. Texas, was outlined in a September 2021 memorandum by Secretary of Homeland Security Alejandro Mayorkas. The memorandum explains that because the Department of Homeland Security does not have the resources to apprehend and deport all of the more than 11 million noncitizens who could be subject to deportation, immigration officials should prioritize the apprehension and deportation of three specific groups of people: suspected terrorists; noncitizens who have committed crimes; and those caught recently at the border.

Texas and Louisiana went to federal court in Texas to challenge the policy. U.S. District Judge Drew Tipton agreed that the policy violates federal law and vacated it nationwide. The Biden administration then came to the Supreme Court, which agreed to take up the case without waiting for a federal appeals court to weigh in – but left Tipton’s ruling striking down the policy in place while it considered the dispute.

The justices had agreed to review three separate questions. The first was whether the states had a legal right to bring their lawsuit – a concept known as standing – at all. The second was whether federal immigration laws require the federal government to detain noncitizens who have committed certain crimes after their release from prison and to keep in custody noncitizens who are subject to final deportation orders. The third was whether Tipton had the power to block the Biden administration from implementing the policy nationwide.

In the end, the justices reached only the first question – whether Texas and Louisiana had standing to bring their lawsuit. In his 14-page opinion for the majority, Kavanaugh framed the dispute as an effort by the two states to obtain a court order that would require DHS to “alter its arrest policy so that the Department arrests more noncitizens.” But there is no history of courts “ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions,” Kavanaugh wrote. To the contrary, Kavanaugh emphasized, the court in 1973 held that a plaintiff lacked standing to challenge a state’s policy of not prosecuting some violations of child-support laws.

Moreover, Kavanaugh noted, the Constitution gives the executive branch broad discretion to enforce the laws. And in the immigration context, Kavanaugh observed, it has long been the case that the executive branch has not had sufficient resources to arrest or deport all of the noncitizens potentially covered by federal immigration laws. As a result, Kavanaugh wrote, the past five presidential administrations have had to make decisions about which immigration arrests to prioritize. “That complicated balancing process” by the executive branch, Kavanaugh reasoned, “leaves courts without meaningful standards for assessing the” executive branch’s decisions – which has in turn led the Supreme Court to conclude that “federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions.”

Kavanaugh also warned that recognizing what he characterized as the states’ “novel standing argument” to go forward could have serious implications in the future. “If the Court green-lighted this suit,” he cautioned, “we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws — whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path.” Kavanaugh stressed that Friday’s ruling was a narrow one, limited to the “question of whether the Federal Judiciary may in effect order the Executive Branch to take enforcement actions against violators of federal law.” And he added that although federal courts cannot weigh in on the states’ challenge to the enforcement policy, “other forums” – such as Congress and the ballot box – “remain open for examining the Executive Branch’s arrest policies.”

In a 19-page opinion concurring in the judgment, Gorsuch agreed that Texas and Louisiana lack standing. But in his view, the fatal flaw in the states’ lawsuit is that they would not benefit from a ruling in their favor.

In her separate opinion, Barrett questioned several aspects of Kavanaugh’s reasoning, concluding that his opinion “weaves together multiple doctrinal strands to create a rule that is not only novel, but also in tension with other decisions.” Instead, she explained, she would rule for the Biden administration on the ground “that it must be ‘likely,’ as opposed to merely ‘speculative,’ that any injury ‘will be redressed by a favorable decision’” – a standard that, in her view, the states could not meet.

In his dissent, Alito contended that “settled law” “leads ineluctably to the conclusion that Texas has standing” to bring its lawsuit. He criticized Kavanaugh’s suggestion that the majority’s decision preserves the Constitution’s separation of powers, arguing instead that it “actually damages that system by improperly inflating the power of the Executive and cutting back the power of Congress and the authority of the Judiciary.”

Alito compared Kavanaugh’s “conception of Presidential authority” to “the powers that English monarchs claimed prior to the ‘Glorious Revolution’ of 1688, namely, the power to suspend the operation of existing statutes, and to grant dispensations from compliance with statutes.” But that power was changed, Alito stressed, after King James II was deposed in the revolution.

The justices have not yet released their decision in the challenges to the Biden administration’s student-loan debt forgiveness program, which were argued in February. Like Friday’s decision, the justices must decide whether the plaintiffs in the case – a group of states with Republican attorneys general and two individual borrowers – have standing before they can weigh in on the legality of the program itself. On the one hand, Kavanaugh’s opinion took pains to emphasize that the standing question in United States v. Texas was a narrow one, limited to standing to challenge the executive branch’s discretionary enforcement decisions, that may not shed much light on how the justices might approach the standing question in the student loan cases. On the other hand, a footnote in the Kavanaugh opinion noted that a state’s standing argument “can become more attenuated” when a state contends that “a federal law has produced only … indirect effects” on state revenues or state spending – a more encouraging discussion for the Biden administration.

Friday’s ruling cleared the way for the Biden administration to reinstate the policy. In a statement released on Friday, Mayorkas praised the decision and indicated that DHS “looks forward to reinstituting these Guidelines, which had been effectively applied by U.S. Immigration and Customs Enforcement (ICE) officers to focus limited resources and enforcement actions on those who pose a threat to our national security, public safety, and border security.”

This article was originally published at Howe on the Court.