Supreme Court Rules States Can’t Challenge Federal Immigration Policy

In United States v. Texas, 599 U.S. ____ (2023), the U.S. Supreme Court ruled that Texas and Louisiana lacked standing to challenge a Biden Administration immigration enforcement policy. According to the eight-member majority, “federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions.”

Facts of the Case

In 2021, the Secretary of Homeland Security promulgated new immigration-enforcement guidelines (Guidelines for the Enforcement of Civil Immigration Law) that prioritize the arrest and removal from the United States of noncitizens who are suspected terrorists or dangerous criminals or who have unlawfully entered the country only recently. The States of Texas and Louisiana claim that the Guidelines contravene two federal statutes that they contend require the arrest of certain noncitizens upon their release from prison (8 U.S.C. §1226(c)) or entry of a final order of removal (8 U.S.C. §1231(a)(2)).

The District Court found that the States would incur costs due to the Executive’s failure to comply with those alleged statutory mandates, and that the States had standing to sue based on those costs. On the merits, the District Court found the Guidelines unlawful and vacated them. The Fifth Circuit Court of Appeals declined to stay the District Court’s judgment, and the Supreme Court granted certiorari before judgment at the request of the Biden Administration.

Supreme Court’s Decision

The Supreme Court reversed by a vote of 8-1, concluding that the states lacked Article III standing. Justice Brett Kavanaugh wrote on behalf of the majority.

As Justice Kavanaugh explained, to establish standing, a plaintiff must show an injury in fact caused by the defendant and redressable by a court order. Here, the court determined that the dispute was not one that is “traditionally thought to be capable of resolution through the judicial process.”

“The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests,” Justice Kavanaugh wrote. “Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this. The States lack Article III standing because this Court’s precedents and the ‘historical experience’ preclude the States’ ‘attempt to litigate this dispute at this time and in this form.’”

The majority also emphasized that there are good reasons why federal courts have not traditionally entertained such lawsuits. “This Court has consistently recognized 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 wrote. “If the Court green-lighted this suit, 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.”

The majority also stressed that the Court has previously found that the principle of enforcement discretion over arrests and prosecutions extends to the immigration context, including whether to remove a noncitizen from the United States. In addition, courts generally lack meaningful standards for assessing the propriety of enforcement choices in this area, particularly given that the Executive Branch consistently lacks sufficient resources to arrest or deport all of the noncitizens potentially covered by federal immigration laws.

“That reality is not an anomaly—it is a constant,” Justice Kavanaugh wrote. “For the last 27 years since §1226(c) and §1231(a)(2) were enacted in their current form, all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.” Justices Neil Gorsuch authored a concurrence, which was joined by Clarence Thomas and Amy Coney Barrett. The justices agreed that the states lacked standing but disagreed on the reasoning. In their opinion, Congress specifically prohibited courts from issuing injunctions related to certain immigration laws. “The Constitution affords federal courts considerable power, but it does not establish ‘government by lawsuit,’” Gorsuch wrote.