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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