Supreme Court Strips Standing from States in Lawsuit over Enforcement Priorities
FAIR Take | June 2023
On Friday, the Supreme Court of the United States issued an opinion that stripped the ability of Texas and Louisiana to sue the Biden Administration over its immigration enforcement priorities. The decision set off a flurry of legal analysis and speculation about whether the Supreme Court would ever allow states to challenge the wholesale failure of the Biden Administration to enforce our immigration laws.
The controversy began on Inauguration Day 2021, when President Biden issued an executive order tossing out the Trump Administration’s immigration enforcement priorities. The same day, the Acting Secretary of Homeland Security issued a 100-day moratorium on deportations and set new, interim immigration enforcement priorities for the Department. The 100-day moratorium on deportations was quickly enjoined by a court; however, the interim enforcement priorities remained in place. In February, ICE issued guidance to implement those enforcement priorities, which, among other things, required agents to seek preapproval for enforcement actions in all non-priority cases.
In September of 2021, Secretary Alejandro Mayorkas formally adopted these enforcement priorities for the entire Department. The Mayorkas memorandum offered more detail than the original memo, explaining that the Biden Administration would generally only arrest and deport aliens who pose a threat to national security, public safety, and border security. Even with regard to aliens with criminal convictions, the Mayorkas memo encouraged agents to apply broad mitigating factors when deciding to initiate deportation proceedings against them and stated that a qualifying conviction, standing alone, was not necessarily conviction to make such decisions. And with regard to illegal aliens who had not come in contact with law enforcement, Secretary Mayorkas essentially declared they are now off limits. He wrote, “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.”
Texas and Louisiana sued the federal government, arguing that the immigration enforcement priorities set forth in the Mayorkas memorandum violate federal law. Specifically, they argued that the memorandum granted agents broad discretion regarding whether to arrest and deport criminal aliens when federal law expressly eliminates the use of discretion. First, they cite 8 USC 1226(c), which provides the federal government “shall take into custody” any alien who commits certain crimes set forth in the statute. Second, they cite 8 USC 1231(a)(2), which provides the federal government “shall remove” any alien within 90 days of receiving a final order of removal and mandates the federal government detain the alien during that period. That section of law also states “[u]nder no circumstance” during this 90-day period shall the government release an alien who is determined to be inadmissible or removable for the commission of certain crimes.
In response, the Biden Administration argued that the sections of law raised by the states, 8 USC 1226 and 8 USC 1231, are not, in fact, binding upon the government. And even if they were the government does not have enough resources to execute the mandate and therefore must be allowed to use discretion to undertake enforcement actions based on the resources it has available.
In June 2022, the Federal District Court for the Southern District of Texas agreed with Texas and Louisiana and issued a judgment vacating the Mayorkas memorandum. In his opinion, Judge Tipton argued that the Biden Administration was not attempting to use discretion with respect to individuals, on a case-by-case basis. Instead, it was issuing orders and setting priorities that related to broad swaths of the illegal alien population.
Judge Tipton also argued that while the government does get to prioritize actions based on available resources, it must still act within the confines of the law. Moreover, he found that the Government was not, with respect to the resources argument, acting in good faith. “Throughout this case,” Judge Tipton wrote, “the Government has trumpeted the fact that it does not have enough resources to detain those aliens it is required by law to detain. The Government blames Congress for this deficiency. At the same time, however, the Government has submitted two budget requests in which it asks Congress to cut those very resources and capacity by 26%. Additionally, the Government has persistently underutilized existing detention facilities.” (Citations omitted.)
The U.S. Court of Appeals for the 5th Circuit declined to stay the District Court’s decision while the government appealed. At that point, the Biden administration asked the Supreme Court to freeze Tipton’s order. By a vote of 5-4, the justices left Tipton’s order in place, but they also agreed to take up the challenge and hear oral argument without waiting for the court of appeals to weigh in.
The Supreme Court reversed the decision of the District Court. Unlike the District Court, however, the Supreme Court did not even reach the merits of the case. Its analysis came to a halt when it decided that Texas and Louisiana did not have standing to even bring the lawsuit.
In an abbreviated analysis of the traditional standing test (established in the Lujan 1973 decision) the Supreme Court found that Texas had shown injury in fact but had not established that the injury was one that is traditionally redressable by a court order. Looking at “history and tradition” the Court said the states could not show historical or legal precedent for asking the Supreme Court to order the government to initiate more enforcement actions. It argued that the executive branch has traditionally had discretion over arrests and prosecutions and that this discretion extends to the context of immigration. “After all,” it wrote, “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.”
Interestingly, however, no sooner did the Court rule that Texas and Louisiana did not have standing than it sought to limit the impact of its own decision. The Justices wrote: “we do not suggest that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.” Congress could, for example, specifically authorize suits against the executive branch by a defined set of plaintiffs who suffer concrete harms. In addition, the Court said, its calculus might be different if the executive branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. “It bears emphasis,” the Court wrote, “that the question of whether federal courts have jurisdiction under [standing principles] is distinct from the question of whether the Executive Branch is complying with the relevant statutes…. We hold only that the federal courts are not the proper forum to resolve this dispute.”
In his dissent, Justice Alito excoriated that majority for inflating the power of the Executive Branch. In order to reach the decision that Texas and Louisiana do not have standing, he argued, the Court “brushes aside major precedent that directly controls the standing question, refuses to apply our established test for standing, disregards factual findings made by the District Court after a trial, and holds that the only limit on the power of a President to disobey a law…is Congress’s power to employ the weapons of inter-branch warfare.”
Alito argued that he majority disregarded applicable precedent, misapplied other precedent and glossed over the Court’s standing test in order to reach a conclusion that the plaintiffs here do not have standing. But when the facts and legal decisions are properly reviewed, he argued, Texas clearly has standing. What is at issue, he wrote, is Congress’s constitutional authority to control immigration, which the Supreme Court has repeatedly emphasized. Here, Congress has clearly spoken, requiring that the government arrest and detain criminal aliens. Yet, the Secretary of Homeland Security “has instructed his agents to disobey this legislative command and instead follow a different policy that is more to his liking. And the Court now says that no party injured by this policy is allowed to challenge it in court.”
The Supreme Court’s decision in United States v. Texas will no doubt have lasting impact on immigration enforcement, in the short term and for years to come. To start, the decision has allowed the Biden Administration to fully implement the Mayorkas memorandum and release criminal aliens the law says must be detained and removed. And, with this opinion, the Biden Administration may be contemplating new memoranda that exempt illegal aliens from other areas of enforcement. The next test to see how far this opinion reaches may be lawsuits regarding DACA and immigration parole that are currently winding their way through the court system.