The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Counting to Five in Texas v. United States
Justice Kavanaugh penned a narrow decision that cobbled together a majority.
In December 2022, the Supreme Court heard the latest iteration of a case styled as United States v. Texas. This dispute concerned the Biden Administration's 2021 memorandum that "prioritized" immigration enforcement. (I'll get into the details later). The trial court found that Texas had standing, and vacated the policy. The Fifth Circuit declined to stay an injunction. The Supreme Court granted certiorari before judgment.
After oral argument, my prediction was that the final vote would be very fragmented. A majority of the Court seemed inclined to rule against Texas, but there was no obvious consensus on why the states lacked standing. Moreover, several Justices seemed uncomfortable with the argument pressed by the Solicitor General that Section 706 of the APA did not support so-called "national vacaturs."
The Court decided this case on Friday. The bottom line is that eight justices ruled against Texas, and only Justice Alito would have affirmed the lower court. But the majority really fractured 5-3. Justices Gorsuch, Thomas, and Barrett found that the plaintiffs lack standing on redressability grounds. They contended that 8 U. S. C. § 1252(f)(1) prohibits injunctions against certain immigration laws, including those at issue in this case. Because the Court couldn't remedy the alleged injuries, the concurring justices found, the Court lacked jurisdiction. But Justice Kavanaugh, writing for the Court, did not rely on redressability. Instead, he found that the plaintiff states did not have a "judicially cognizable" injury--the sort of injury that the federal courts "traditionally" have recognized.
I'll admit, when I first digested this case, I couldn't quite figure out why the majority chose this path. My first inclination was that the Court was trying to close the door on strategic litigation brought by red states against blue administrations. There is certainly some language to that effect, but there is some other language that limits the Kavanaugh opinion to the specific facts presented in this case. (More on the specifics later). Now, my working hypothesis is that the Court simply couldn't come to an agreement on one key issue: could a national vacatur redress a cognizable injury? Justices Thomas, Gorsuch, and Barrett, who cast doubt on the entire notion of a national vacatur, suggest the answer to this question is no. Therefore, Texas has to lose. But the majority does not even touch the redressability prong because they resolve the case on the injury prong. And in doing so, they leave open the question of whether federal courts can issue national vacaturs--and more importantly, whether the availability of a national vacatur can satisfy the redressability prong.
Rather, the majority seized upon a super-specific rationale that will not apply in any other circumstances. That's the only way I can count to five. The Court's progressives do not want to block off progressives using national vacatur to challenge a future Republican administration, and the Chief and Kavanaugh are still partial to D.C. Circuit, which vacates five rules before breakfast. Thus, the majority needed to find a rationale--any rationale really--that would deny Texas standing without trickling into other future disputes. So Justice Kavanaugh latched onto Linda S. v. Richard D. (1973), which he raised during oral arguments.
As promised, more details will come later.
