The Volokh Conspiracy

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Supreme Court Rules Red States Lack Standing to Challenge Biden Immigration Enforcement Guidelines

The 8-1 decision is a major win for Biden and executive enforcement discretion. I think the Court got the right result, but for the wrong reasons.


Flag of Texas.


In today's decision in United States v. Texas, the Supreme Court ruled 8-1 that the states of Texas and Louisiana lacked standing to challenge the Biden Administration's immigration enforcement guidelines. The guidelines had prioritized some undocumented immigrants for removal over others, most notably those who had committed serious crimes or acts of terrorism, and those who had crossed the border only recently. The states claimed these guidelines violated various statutes with provisions indicating the federal government "shall" detain or remove certain categories of migrants that were not prioritized under the guidelines.

The majority did not reach the merits of the case, but instead concluded the states lacked standing to raise the issue in the first place. I think the Court got the right result, but for the wrong reason. They would have done better to reach the merits and rule the executive has enforcement discretion here. Indeed, much of Justice Brett Kavanaugh's majority opinion makes more sense that way.

The standing ruling is a big win for the Biden Administration and for executive discretion in law enforcement more generally. Going forward, it will be very difficult for states (or anyone) to challenge executive decisions on enforcement priorities. Today's ruling also follows on last year's decision in Biden v. Texas, the "Remain in Mexico" case, where the Supreme Court did reach the merits, and also concluded the executive has broad discretion. So far, the primary result of Texas's efforts to use litigation to constrain Biden's immigration policies have been two Supreme Court decisions bolstering executive authority.

Justice Kavanaugh's majority opinion (joined by Chief Justice Roberts and the three liberal justices) argues that states lack standing to challenge most uses of executive discretion over enforcement decisions:

The States have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions. On the contrary, this Court has previously ruled that a plaintiff lacks standing to bring such a suit.

The leading precedent is Linda R. S. v. Richard D., 410 U. S. 614 (1973). The plaintiff in that case contested a State's policy of declining to prosecute certain child-support violations. This Court decided that the plaintiff lacked standing to challenge the State's policy, reasoning that in "American jurisprudence at least," a party "lacks a judicially cognizable interest in the prosecution . . . of another." Id., at 619. The Court concluded that "a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." Ibid.

The Court's Article III holding in Linda R. S. applies to challenges to the Executive Branch's exercise of enforcement discretion over whether to arrest or prosecute.

Kavanaugh then gives a list of reasons why enforcement decisions are generally left to the executive:

Several good reasons explain why, as Linda R. S. held, federal courts have not traditionally entertained lawsuits of this kind. To begin with, when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual's liberty or property, and thus does not infringe upon interests that courts often are called upon to protect….

Moreover, lawsuits alleging that the Executive Branch has made an insufficient number of arrests or brought an insufficient number of prosecutions run up against the Executive's Article II authority to enforce federal law. Article II of the Constitution assigns the "executive Power"to the President and provides that the President "shall take Care that the Laws be faithfully executed." U. S. Const., Art. II, §1, cl. 1; §3. Under Article II, the Executive Branch possesses authority to decide "how to prioritize and how aggressively to pursue legal actions against defendants who violate the law." TransUnion LLC, 594 U. S., at ___ (slip op., at 13)….

That principle of enforcement discretion over arrests and prosecutions extends to the immigration context, where the Court has stressed that the Executive's enforcement discretion implicates not only "normal domestic law enforcement priorities" but also "foreign-policy objectives." Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 490–491 (1999). In line with those principles, this Court has declared that the Executive Branch also retains discretion over whether to remove a noncitizen from the United States. Arizona v. United States, 567 U. S. 387, 396 (2012) ("Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all")….

In addition to the Article II problems raised by judicial review of the Executive Branch's arrest and prosecution policies, courts generally lack meaningful standards for assessing the propriety of enforcement choices in this area. After all, the 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.

This case illustrates the point. As the District Court found, the Executive Branch does not possess the resources necessary to arrest or remove all of the noncitizens covered by §1226(c) and §1231(a)(2). That reality is not an anomaly—it is a constant. For the last 27 years since§1226(c) and §1231(a)(2) [the statutes Texas relies on] were enacted in their current form, all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.

Kavanaugh also points out that a ruling in favor of the states would create a dangerous slippery slope of lawsuits challenging enforcement priorities in other areas of law:

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.

Kavanaugh is right about most of these points. In a world where the federal government lacks the resources to pursue more than a small fraction of violations of federal law (a majority of adult Americans have committed a federal crime at some point in their lives), enforcement discretion is inevitable, and the Constitution largely gives that discretion to the executive, not the courts.

But this reasoning makes more sense as a decision on the merits than as a standing ruling. The states claim that Biden's enforcement priorities inflict financial costs on them (e.g. in the form of migrants spending more time in state detention and using various state services), and Kavanaugh's opinion acknowledges that financial losses are the type of injury normally sufficient to create standing.

That's true even if (as in this case) the migrants also create economic benefits for states that outweigh their losses. I don't see why financial losses resulting from enforcement discretion are somehow less "cognizable" than those resulting from other government policies. In a concurring opinion, Justice Amy Coney Barrett says she is "skeptical that these reasons are rooted in Article III standing doctrine." Her skepticism is well-justified! Barrett correctly explains that the precedents cited by Kavanaugh are mostly not actually about standing, but about the substantive scope of executive discretion.

The majority does note several situations where litigants will still have standing to challenge executive nonenforcement:

First, the Court has adjudicated selective-prosecution claims under the Equal Protection Clause. In those cases, however, a party typically seeks to prevent his or her own prosecution, not to mandate additional prosecutions….

Second, as the Solicitor General points out, the standing analysis might differ when Congress elevates de facto injuries to the status of legally cognizable injuries redressable by a federal court…. For example, Congress might (i) specifically authorize suits against the Executive Branch by a defined set of plaintiffs who have suffered concrete harms from executive under-enforcement and (ii) specifically authorize the Judiciary to enter appropriate orders requiring additional arrests or prosecutions by the Executive Branch….

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, policies governing the continued detention of noncitizens who have already been arrested arguably might raise a different standing question than arrest or prosecution policies.

The fourth point may be significant in cases where the executive combines non-enforcement with a possible grant of benefits to undocumented immigrants, as in the case of the grant of "lawful presence" to DACA recipients (though in my view the right approach here is just to rule against that provision of the policy while keeping the rest intact). But, overall, these five exceptions are likely to come up only rarely.

Like Kavanaugh's general points about executive discretion, these exceptions make more sense as an analysis of the scope of executive power than as a theory of standing. With the possible exception of post-arrest detention policies (the inclusion of which in this list makes little sense), they all apply to cases where the executive goes beyond exercising ordinary enforcement discretion or (in the case of the Equal Protection Clause) uses it in a way that violates suspects' constitutional rights.

In a concurring opinion joined by Justices Clarence Thomas and Amy Coney Barrett, Neil Gorsuch differs with the majority's analysis, but concludes the states lack standing for a different reason: redressability. He reasons that a ruling setting aside the Biden guidelines would not really redress the states' financial injuries, because there is no guarantee that federal officials would actually detain or deport the migrants in question. Even if the guidelines were rescinded, lower-level federal officials would still lack resources to deport more than a small fraction of all undocumented immigrants, and they would still have to exercise discretion over which ones to cover.

Gorsuch is right about much of this. However, if the states had prevailed, it is highly likely that federal officials would detain or deport at least a few migrants they would otherwise have left alone. And this in turn would save the states at least a little money on the types of expenditures they complain about. Usually, the ability to partially redress an injury, even in a small way, is enough for standing (Gorsuch admits as much). Gorsuch contends that statutes preclude federal courts from issuing injunctions in a case like this. But even if this is true, a decision invalidating the enforcement guidelines would likely lead to at least some additional deportations and detentions, thereby alleviating the states' claimed injuries at least to a small degree.

Gorsuch also argues at length that federal courts lack the power to issue "vacatur" orders negating administrative policies like the one in question. I will leave this issue to administrative law experts.

In a lengthy dissent, Justice Samuel Alito disputes the majority's and Gorsuch's standing analysis, often for good reason. He also claims the original meaning of the scope of executive power doesn't give the President the power to exercise enforcement discretion in this way. But virtually all the history he cites relates to the executive's possible power to "suspend" or "dispense" with laws, thereby rendering otherwise illegal actions legal. Here, the administration isn't asserting the power to make otherwise illegal migration legal. It merely adopts a policy prioritizing pursuit of some violators over others.

As the majority recognizes, such discretion is unavoidable in a situation where there are far too many lawbreakers for the executive to pursue more than a small fraction of them. And it is a core executive power.

I sympathize with concerns that the combination of executive discretion, resource limitations, and a vast number of law-breakers gives the executive too much power, and undermines the rule of law. But the right solution to that problem is reducing the number of laws, not lawsuits like the one the states brought in this case.