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Supreme Court: States Lack ‘Standing’ To Challenge Biden Slow Walk On Immigration Enforcement

Supreme Court: States Lack ‘Standing’ To Challenge Biden Slow Walk On Immigration Enforcement

Eight justices agreed Texas and Louisiana lacked standing to sue for non-enforcement of immigration laws but disagreed on why. Justice Alito believed the states had standing to sue.

The Supreme Court of the United States held 8–1 that states lack standing to sue the federal government for failing to arrest illegal immigrants. Texas and Louisiana had accused the federal government of not fulfilling its statutory obligations to arrest illegal immigrants and sought an order that the government fully enforce immigration law.

The Department of Homeland Security praised the Court’s decision: “We applaud the Supreme Court’s ruling. . . . The Guidelines enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress.”

“We filed this suit because Joe Biden has failed to protect our homeland by ignoring Congress and releasing violent criminal aliens into our communities,” Louisiana Attorney General Jeff Landry told Legal Insurrection. Landry vowed to “continue pursuing every legal avenue to defend the rights of Americans injured by Biden’s dangerous immigration policies.”

The Court stated that Texas and Louisiana “brought an extraordinarily unusual lawsuit” asking “a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests.”

United States v. Texas, decided on June 23, 2023, involved a challenge to the 2021 Guidelines for the Enforcement of Civil Immigration Law, “which prioritize the arrest and removal from the United States of non-citizens who are suspected terrorists or dangerous criminals or who have unlawfully entered the country only recently.”

Texas and Louisiana objected to the Guidelines because the revised rules de-prioritized the arrest of illegal immigrants with state criminal convictions or those subject to a final order of removal, whom federal law says “shall” be arrested.

The states argued that because the de-prioritization of these arrests imposed additional financial burdens on the states, the Guidelines injured them and conferred standing.

Justice Kavanaugh authored the opinion of the Court, which the Chief Justice and Justices Sotomayor, Kagan, and Jackson joined. Justices Gorsuch and Barrett wrote opinions concurring in the judgment. Justice Alito wrote a dissenting opinion.

Kavanaugh, writing for the Court, began with the threshold consideration of standing: “To establish standing, a plaintiff must show (1) an injury in fact (2) caused by the defendant and (3) redressable by a court order.” (parentheticals added)

The Court agreed that the states had alleged an injury but averred that this injury was insufficient to confer standing on the states:

Monetary costs are of course an injury. But this Court has “also stressed that the alleged injury must be legally and judicially cognizable.” That “requires, among other things,” that the “dispute is traditionally thought to be capable of resolution through the judicial process”—in other words, that the asserted injury is traditionally redressable in federal court. (citations omitted; link added)

The Court found the states’ injury not “legally and judicially cognizable” because precedent showed there exists no “judicially cognizable interest in the prosecution . . . of another” and “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.”

The Court also noted that finding for the states would intrude on the Executive Branch’s “exclusive authority and absolute discretion to decide whether to prosecute a case.” This discretion, the Court continued, extended to immigration enforcement, which involves both “normal domestic law enforcement priorities” and “foreign-policy objections.”

On a more pragmatic level, the Court noted that the Executive Branch can seldom enforce the law in all circumstances:

[T]he Executive Branch must prioritize its enforcement efforts. That is because the Executive Branch (i) invariably lacks the resources to arrest and prosecute every violator of every law and (ii) must constantly react and adjust to the ever-shifting public-safety and public-welfare needs of the American people. (citations omitted)

Because the Court found Texas and Louisiana lacked standing to sue, it did not reach the issue of whether the United States had failed in its immigration enforcement obligations. On the matter of standing, however, the Court described several situations in which a state might have standing to sue because of “the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.”

These situations include when Congress enacts a statutory scheme that elevates non-legally cognizable injuries “to the status of legally cognizable injuries redressable by a federal court” or when “the Executive Branch wholly abandon[s] its statutory responsibilities to make arrests or bring prosecutions.”

Gorsuch’s concurrence, which Justices Thomas and Barrett joined, agreed with the Court’s finding Texas and Louisiana lacked standing but not based on injury and instead based on a lack of redressability. Gorsuch noted that “Congress provided that ‘no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of ‘ certain immigration laws, including the very laws the States seek to have enforced in this case.”

The Court had earlier interpreted this statutory prohibition to include a ban on courts requiring “federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.”

Because Congress barred federal courts from issuing the order, the injury to Texas and Louisiana could not be redressed and, therefore, the states lacked standing.

Barrett’s concurrence, which Gorsuch joined, expounded on why she believed the Court’s injury analysis was flawed. Barrett suggested the Court applied precedent too broadly, and she cited cases when federal courts “entertained lawsuits” like United States v. Texas.

Alito’s dissent suggested the Court endorsed a “grossly inflated conception” of the Executive Branch’s power that threatens separation of powers and would have found Texas had standing to sue.

Alito objected to the Court’s finding that Texas’s injury was not “cognizable.” Alito argued the majority failed to consider “contrary precedent that is squarely on point,” that the precedent cited by the Court failed to support the Court’s conclusion, and that the Court broke from the established standing test.

Alito then addressed redressability, rejecting Gorsuch’s argument. Alito argued that the statutory prohibition Gorsuch cited did not apply because the district court, instead of issuing an injunction, voided the Guidelines, an act not covered by the cited statute.

Alito further noted that the cited statute only barred federal district and appellate courts from granting an injunction to compel enforcement of the relevant immigration laws. The Court was free to award such an injunction.


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The opinion is that there’s no structurally stable fix to the problem, not that the immigration is a good idea.

What about all the other laws that aren’t enforced, for instance.

So there is no separation of powers, and the voters are getting what they voted for.

The Federal Government has dropped the ball in its obligations to the states in a variety of matters. The duty it owes was described quite well in the Texas v. Pennsylvania lawsuit over the 2020 election, invoking the Supreme Court’s original jurisdction, which was declined due to cowardice to address the issue.

UnCivilServant | June 26, 2023 at 7:37 pm

So, who Does have standing to sue over the deliberate failure to enforce the laws?

    Subotai Bahadur in reply to UnCivilServant. | June 26, 2023 at 7:54 pm

    It would appear that in the absence of a rule of law and constitutional supremacy . . . no one. Which is news that should be more widely known.

    Subotai Bahadur

    CommoChief in reply to UnCivilServant. | June 26, 2023 at 9:20 pm

    Sue? Not so much. Congress can impeach or censure Executive branch officials. They could alter the statues. That’s just whistling Dixie though.

    Without a solid Congressional majority in both houses and a POTUS willing to rewrite the statutes to compel enforcement actions then it will continue as an on again /off again enforcement as the parties which occupy the WH change power.

    The place to put pressure is onto local govts and NGOs. Deny grant money to any entity that materially supports illegal immigrants including Local and State govt. Got to get it past CA and NY congressional delegation though, that’s a whole lot of automatic no votes to overcome.

      Without a solid Congressional majority in both houses and a POTUS willing to rewrite the statutes to compel enforcement actions
      Even then it will be dependent on the White House – unless enforcement action places serious, personal, deleterious consequences on those who make decisions in violation of the Constitution and the law.
      If no one goes to (real) jail for this, or suffers ignominy and is shunned by all of society for it, then it will continue.

      Deny grant money to any entity that materially supports illegal immigrants including Local and State govt.
      Again, how would this be enforced? Executive branch already has great leeway in spending money. Heck, they manage to get around things like the Hyde Amendment all the time.
      So, even if Congress passes it, the Executive will essentially ignore it – unless there is actual repercussions to individuals AND to offices/departments for violating it.

        CommoChief in reply to GWB. | June 27, 2023 at 12:33 pm

        Tie receipt of funds to explicit cooperation with ICE for govt entities. End the block grants and the authority of the executive branch to make block grants to NGO or non govt entities.

        Thus no $ appropriated by Congress for grants to NGO nor authority of the executive to issue any grant funds to NGO. Likewise any govt recipients must actively cooperate with ICE. Monitored by IG of ICE and Committee of jurisdiction in Congress and specifically revoking/removing all discretion of the Executive.

        Until we fix the current holes in boat there’s no point in worrying about future holes.

    BierceAmbrose in reply to UnCivilServant. | June 26, 2023 at 10:35 pm

    “So, who Does have standing…?”

    Nobody. Well, nobody outside the machinery of mutual opportunism.

    Somebody’s always the sucker a the poker table. If you look around and don’t see the mark; it’s you.

    navyvet in reply to UnCivilServant. | June 26, 2023 at 11:29 pm

    I would think every citizen of this nation would have standing to sue the president, the DOJ, ICE, and any additional federal entity responsible for failing to execute the immigration laws of this country. If the law can be routinely ignored by those responsible for its enforcement, we no longer have a nation of laws…we have a nation of dictatorship and disregard of the “law”. The “law” now is whatever they say it is. See: Hunter Biden.

    Don’t give me crap about resorting to the ballot box. That option died when rigged elections became the norm.

    Change my mind.

    randian in reply to UnCivilServant. | June 27, 2023 at 3:47 am

    Once SCOTUS ruled that police have no duty to protect you unless they affirmatively obligate themselves (which is very, very hard to prove, even prisoners have no right to be protected from harm) it was a very small leap to rule that there is no obligation to enforce law at all.

    caseoftheblues in reply to UnCivilServant. | June 27, 2023 at 6:29 am

    The left and illegals ALWAYS have standing dontchaknow

The Supreme Court Justices have been intimidated into submission to the Biden administration agenda.

    JR in reply to Elric. | June 26, 2023 at 8:25 pm

    Thanks again to Donald Trump for screwing everything involving the Supreme Court.

      wendybar in reply to JR. | June 27, 2023 at 6:28 am

      So you think it is Trumps fault that our Congress has been corrupt for over 50 years?? Get help for your TDS. You need it.

      robertthomason in reply to JR. | June 27, 2023 at 9:26 am

      Also thanks to Barack H. Obama, Bush 41, Bush 43 and Joe Biteme.

      M Poppins in reply to JR. | June 28, 2023 at 4:37 pm

      I agree that his choices weren’t the best. But if they had been the best, then his candidates would never have been confirmed.

    M Poppins in reply to Elric. | June 28, 2023 at 4:29 pm

    no, some of them are just stupid. I said from the first day that Lovely Amy was a fake.

Growing up in the South (I’m 73), you always heard ‘the South is gonna rise again!”. Well, if they don’t do so pretty soon, there will be nothing to rise up for. We need to protect our land cause the yankees ain’t going to.

    JohnSmith100 in reply to oldvet50. | June 26, 2023 at 10:03 pm

    Which brings up the issue of what can states do to make it easier and safer for the public to take action, to avoid prosecution for protecting themselves and others. Can SYG be fine tuned to help with this problem?

    alohahola in reply to oldvet50. | June 27, 2023 at 8:21 am

    Well, then, the folks of the South need to stop selling out land to folks like Bill Gates, for a start.

inspectorudy | June 26, 2023 at 8:25 pm

I guess the huge cost to the schools, public services, hospitals, and law enforcement is not standing? Every part of a state like Texas is being ground down to the barely functioning level yet they don’t have standing? I always thought standing referred to mean that you had been harmed in some way and that your case was to look for a remedy. This turns that on its head.

    CommoChief in reply to inspectorudy. | June 26, 2023 at 9:28 pm

    Make a test case by refusing to allow illegal immigrants access to any public services including medical and public schools which isn’t paid for by the Federal govt as a separate invoice.

    X School district tells Dept of Ed and ICE y’all got 120 illegal immigrants here wanting to register for school we need another four or five teachers plus four teachers aides plus ESL services plus school lunch payments, plus textbooks and school supplies and to build another five classrooms and the utilities and maintenance on all that and it comes to a total of $Y. We ain’t letting them register until y’all send the check and the check clears the bank.

      Close The Fed in reply to CommoChief. | June 26, 2023 at 11:11 pm

      Plyler v. Doe (1982),SCOTUS said Texas had to admit these aliens into government schools and couldn’t charge them tuition.

        caseoftheblues in reply to Close The Fed. | June 27, 2023 at 6:27 am

        Of course it did… ALWAYS a priority over US citizens… illegal foreign nationals

        CommoChief in reply to Close The Fed. | June 27, 2023 at 8:02 am

        The ruling in Plyler isn’t precisely on point. The distinction is that within the test case circumstances I described:
        1. It is a local school board Not the State govt
        2. The district isn’t refusing to register, merely asking for payment for additional costs imposed
        3. The illegal immigrants are not being asked to pay, the Federal govt is being billed up front

        What SCOTUS told us in the most recent ruling is that without actual v speculative costs the States don’t have a case due to standing.

        In my scenario the costs are not speculative but reflect actual expenditures that wouldn’t be made absent the failure of the Federal govt to adequately enforce immigration laws.

        In context SCOTUS has held since Plyler that
        1. The executive has discretion to prioritize enforcement actions as they see fit.
        2. The Fed govt has exclusive power over naturalization (explicitly in the Constitution) as well as immigration which isn’t an explicit power but rather a judicial construction based on a, IMO, flawed implication

        In sum the proposal sidesteps the barriers raised about standing and in Plyler by agreeing to provide services but only with reimbursement of actual costs by Fed govt. This is, IMO, the sort of case SCOTUS seemed to be inviting in the opinions.

        alohahola in reply to Close The Fed. | June 27, 2023 at 8:23 am

        1982. Yikes.

      M Poppins in reply to CommoChief. | June 28, 2023 at 4:31 pm

      excellent idea

The Supreme Court did not go far enough in stopping this nonsense by states that fail to show proper respect to their federal overlords. Not only do those states lack standing, but they should apologize to the Biden administration for failing to yield proper fealty.

‘Lack of standing’ at the SCOTUS is code for ‘we’re too cowardly to actually rule on this issue’.

Why would you even accept the case in the first place if you were just going to dismiss it for lack of standing?

    MattMusson in reply to Olinser. | June 27, 2023 at 7:27 am

    My Mother-in-law used to have a saying that seems to apply to this timid court – “You just can’t make chicken salad out of chicken shit.”

“Why would you even accept the case in the first place if you were just going to dismiss it for lack of standing?”

It makes you wonder if perhaps something happened afer they took the case that caused them to rule as they did.

Close The Fed | June 26, 2023 at 11:21 pm

The supreme court is totally fine with the ongoing destruction of the United States of America. None of those asses deserve to have their jobs.

What did Jack Kennedy say? “Those who make peaceful revolution impossible will make violent revolution inevitable.” You can also say, those who make civil redress impossible, make violent redress inevitable.

This outcome is reckless and the death of America can truly be laid on the court’s steps. Law-itis unto death.

the Executive Branch wholly abandon[s] its statutory responsibilities to make arrests or bring prosecutions

In what sense hasn’t it already done that?

caseoftheblues | June 27, 2023 at 6:24 am

Weird how the courts always rule foreign nationals/ illegal aliens who choose to come here always have standing and courts always rule in their favor… US citizens and States who have absolutely no choice but to accept the costs and devastation to their infrastructure and communities are deemed as unaffected parties …,always

    M Poppins in reply to caseoftheblues. | June 28, 2023 at 4:35 pm

    no one – and that includes Conservatives – has the intellectual courage to face the fact that the very concept of immigration as a right is the flaw here.

Fat_Freddys_Cat | June 27, 2023 at 8:00 am

This is the answer to those who pompously declare that these issues should only be handled “the proper way” such as voting and the courts. Our political class–especially on the federal level–openly refuses to handle the problem.

Whenever the Court lacks guts, it invokes standing to push issues away.

ChrisPeters | June 27, 2023 at 8:26 am

The states should simply begin to enforce immigration laws themselves, and let the feds try to sue THEM in court. The states have rights, and even obligations, to protect their citizens.

Capitalist-Dad | June 27, 2023 at 9:25 am

This particular tyranny is probably one that SCOTUS can’t fight. It requires a Kentucky and Virginia Resolutions fix—where Red States reassert their duty to define when the central government is out of bounds and their obligation to protect their citizens in the face of the central government’s purposeful dereliction of duty. Then start tossing illegals back across the border and closing it themselves. And when federal courts say otherwise, reject those decisions. The central tyranny along with its Blue States will wail and cry, but under federalism no state need sit idly by while the Democrat regime in DC twists laws and the Constitution to suit its ideological ends. Leftists need passive cooperation to impose their despotism. Don’t give it to them. Stop pretending our current rule of sophistry has anything to do with justice or the rule of law. Just push back!

whom federal law says “shall” be arrested
But “shall” doesn’t mean “shall” when Big Brother says it doesn’t.
Congress put “shall” in there for a reason.

Congress needs to entirely defund DHS.
The States need to tell the Federal gov’t that if they refuse their duties under the Constitution, then they and their people are under no obligation to fulfill their duties under it, either. (And then seal the border with the state guard – against an invasion, not lawbreakers. And immediately deport any and all who illegally cross the border – despite “asylum” claims of any sort – right back to Mexico.)

we need a ten year moratorium on immigration