The Volokh Conspiracy

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Podcast on United States v. Texas

In this Federalist Society podcast on a major immigration case currently before the Supreme Court, I go over the issues at stake, and make some tentative predictions about the case's likely outcome.


Flag of Texas.


In a recent Federalist Society podcast, I went over the issues in United States v. Texas, an important immigration case currently before the Supreme Court (the case should not be confused with the 2021 case with the same title, concerning Texas's SB 8 law anti-abortion law). The case involves a lawsuit filed by the states of Texas and Louisiana challenging the legality of the Biden Administration's immigration enforcement guidelines, which prioritize detention and deportation of those undocumented aliens who are suspected terrorists, those who have committed crimes, and those caught recently at the border. The states claim these priorities violate statutes that seemingly require nondiscretionary detention and deportation of far broader categories of migrants.

In addition to the important substantive issue at stake, there is also the question of whether the two states even have standing to sue the federal government over this issue, and whether it was appropriate for the district court to use the remedy of "vacatur" to forbid implementation of the Biden guidelines.

Both the substantive issue and the two procedural ones could potentially set important precedents for future cases, including some that go far beyond immigration policy.

In the podcast, I consider all three issues, and explain why I think the states should prevail on standing, but Biden should prevail on the merits. If that happens, the Court need not even address the issue of vacatur (because, arguably, there is no need to consider potential remedies if the Court concludes the administration hasn't done anything illegal in the first place).

I also make some tentative predictions about how the case might come out, based on the oral argument. I expect that the Biden Administration will prevail. But it's not entirely clear whether it will do so on standing or on the merits (though I very tentatively think the latter is more likely). My assessment of the oral argument is in some ways similar to Josh Blackman's. He also concludes the administration is likely to win, and is also unsure of whether it will be on the merits, or not.

If the Administration does ultimately prevail, it will be the second big victory the 6-3 conservative-controlled Court gave Biden in an immigration policy case, following Biden v. Texas, issued last June, which allowed Biden to put an end to Trump's "Remain in Mexico" policy.

The conservative justices are very reluctant to rule in favor of immigrants when it comes to issues involving constitutional rights (most notably in the 2018 Trump travel ban case). But they do not seem to be averse to doing so when the issue is separation of powers and the use of executive discretion in a pro-immigrant direction (though of course the same broad discretion can be used the other way). It's also possible that some conservative justices might be happy to use this case to strike a blow against what they regard as overbroad theories of state standing (though they were generally more skeptical of the administrations' standing arguments than the liberal justices were).

In this case, as in the loan forgiveness litigation before the Supreme Court, the Biden Administration has adopted an incredibly narrow theory of standing (in contrast with traditional liberal views on the subject), while conservative litigants have defended relatively broad theories (which is at odds with traditional conservative approaches to the subject). For those keeping score, I have long advocated the near-total abolition of constitutional standing restrictions, and have stuck to that view, regardless of the ideological valence of the case at hand. Thus, I support standing for the state plaintiffs in both the loan forgiveness case (where I think they deserve to win on the merits), and United States v. Texas (where I think they deserve to lose). In a few months, we will likely learn where the Supreme Court stands on standing in these cases.