U.S. Supreme Court

States can't challenge Biden administration's immigration enforcement policy, Supreme Court rules

  • Print

SCOTUS building at night

Texas and Louisiana “essentially want the federal judiciary to order the executive branch to alter its arrest policy so as to make more arrests,” wrote Justice Brett Kavanaugh in the June 23 majority opinion in United States v. Texas. Image from Shutterstock.

Updated: Texas and Louisiana don’t have standing to challenge immigration-enforcement guidelines that the two states believe to be too lenient, the U.S. Supreme Court has ruled in an 8-1 decision.

Justice Brett Kavanaugh wrote the June 23 majority opinion, which was joined in full by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Justices Neil Gorsuch, Clarence Thomas and Amy Coney Barrett concurred in the judgment but did not agree with Kavanaugh’s analysis.

The Biden administration guidelines at issue prioritized the arrest and deportation of noncitizens who are suspected terrorists or dangerous criminals or who have recently been apprehended at the border.

Texas and Louisiana “essentially want the federal judiciary to order the executive branch to alter its arrest policy so as to make more arrests,” Kavanaugh wrote. “But this court has long held ‘that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.’ … Consistent with that fundamental Article III principle, we conclude that the states lack Article III standing to bring this suit.”

Texas and Louisiana had contended that they incur costs when the administration does not enforce federal statutes that make some deportations mandatory. They argue that they have to spend money on imprisonment and social services that they would not have to provide if noncitizens were detained by the federal government.

But Kavanaugh said the executive branch has to take account of “resource constraints and regularly changing public-safety and public-welfare needs” when making arrest and prosecution policies.

“The states’ novel standing argument, if accepted, would entail expansive judicial direction of the [Department of Homeland Security’s] arrest policies,” Kavanaugh wrote. “If the court green-lighted this suit, we could anticipate complaints in future years about alleged executive branch underenforcement 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 said his opinion would not prohibit federal courts from hearing all claims regarding a failure to make more arrests or bring new prosecutions. First, he pointed out, selective prosecution claims are brought under the equal protection clause, although they don’t typically seek more prosecutions. Second, the analysis might be different if Congress specifically authorized suits for underenforcement. Third, the “standing calculus might change if the executive branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.”

Fourth, “a challenge to an executive branch policy that involves both the executive branch’s arrest or prosecution priorities and the executive branch’s provision of legal benefits or legal status could lead to a different standing analysis. That is because the challenged policy might implicate more than simply the executive’s traditional enforcement discretion.”

Fifth, Kavanaugh said, policies regarding continued detention of noncitizens who are already arrested raise a different standing question.

“To be clear,” Kavanaugh wrote. “our Article III decision today should in no way be read to suggest or imply that the executive possesses some freestanding or general constitutional authority to disregard statutes requiring or prohibiting executive action.”

Justice Samuel Alito was the lone dissenter. He said the majority had ignored precedent and disregarded factual findings.

“I would not blaze this unfortunate trail,” Alito wrote. “I would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing.”

ABA President Deborah Enix-Ross commented on the decision in a statement.

“The American Bar Association applauds the U.S. Supreme Court’s decision today that allows the Biden administration’s policy on immigration enforcement to remain in place,” Enix-Ross said. “The ABA supports giving immigration authorities the discretion to decide whether longtime, law-abiding noncitizens may remain in the United States. The ABA also supports allowing authorities to set priorities for deportations, focusing on those who are threats to national security and public safety.”

The case is United States v. Texas.

Hat tip to SCOTUSblog.

Updated June 23 at 11:50 a.m. to include the statement from ABA President Deborah Enix-Ross.

Give us feedback, share a story tip or update, or report an error.