Without ruling on the merits of an immigration policy enacted by the Biden administration, the Supreme Court on Friday ruled that Texas and Louisiana lacked standing to challenge the Department of Homeland Security's "Guidelines for the Enforcement of Civil Immigration Law" that prioritized the arrest and removal of illegal immigrants who met a few specific criteria: suspected terrorists or dangerous criminals or those who illegally entered the U.S. only recently.
That policy, according to Texas and Louisiana, violated federal law and would have required them to "incur costs due to the Executive's failure to comply" with the federal laws which the states said gave them standing to sue. A district court previously agreed with the states and found the Biden DHS guidelines unlawful but, after the Fifth Circuit declined to stay the lower court's judgment, the Supreme Court agreed to hear the case.
The Supreme Court's 8-1 decision in United States v. Texas saw Kavanaugh write the majority opinion joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson while Justice Neil Gorsuch filed a concurring opinion joined by Justices Clarence Thomas and Amy Coney Barrett. Justice Barrett also filed a concurring opinion joined by Justice Gorsuch while Justice Samuel Alito was the lone dissenter.
In Justice Kavanaugh's majority opinion, he remarked that Texas and Louisiana "brought an extraordinarily unusual lawsuit."
"They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests," Kavanaugh wrote. "Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this," he added. "The States lack Article III standing because this Court’s precedents and the 'historical experience' preclude the States’ 'attempt to litigate this dispute at this time and in this form.'"
Noting that the Supreme 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,'" Kavanaugh explained that the majority concluded Texas and Louisiana lack standing to bring their suit in order to remain "consistent with that fundamental Article III principle."
That said, Kavanaugh was clear that, [i]n holding that Texas and Louisiana lack standing, 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."
To wit, Kavanaugh explained in the majority opinion that the Supreme Court "has adjudicated selective-prosecution claims under the Equal Protection Clause," but those cases normally include a party that "seeks to prevent his or her own prosecution, not to mandate additional prosecutions against other possible defendants."
Kavanaugh also pointed out that the "standing analysis might differ when Congress elevates de facto injuries to the status of legally cognizable injuries redressable by a federal court." That is, if Congress passed a law to "specifically authorize suits against the Executive Branch by a defined set of plaintiffs who have suffered concrete harms from executive under-enforcement" and "specifically authorize the Judiciary to enter appropriate orders requiring additional arrests or prosecutions by the Executive Branch," standing might exist for states such as Texas and Louisiana to bring such a suit.
The majority opinion continued with a warning that the Supreme Court's ruling in United States v. Texas "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" and reminded that "the Federal Judiciary of course routinely and appropriately decides justiciable cases involving statutory requirements or prohibitions on the Executive."
Listing off "other forums" which "remain open for examining the Executive Branch’s arrest policies," Kavanaugh mentions that "Congress possesses an array of tools to analyze and influence those policies" including "oversight, appropriations, the legislative process, and Senate confirmations." In addition, "through elections, American voters can both influence Executive Branch policies and hold elected officials to account for enforcement decisions," Kavanaugh reminded before adding the Supreme Court recognizes those as "political checks for the political process" and does "not opine on whether any such actions are appropriate in this instance."
In his dissent, Justice Alito explained his differing perspective:
This sweeping Executive Power endorsed by today’s decision may at first be warmly received by champions of a strong Presidential power, but if Presidents can expand their powers as far as they can manage in a test of strength with Congress, presumably Congress can cut executive power as much as it can manage by wielding the formidable weapons at its disposal. That is not what the Constitution envisions.I end with one final observation. The majority suggests that its decision rebuffs an effort to convince us to “‘usurp’” the authority of the other branches, but that is not true... We exercise the power conferred by Article III of the Constitution, and we must be vigilant not to exceed the limits of our constitutional role. But when we have jurisdiction, we have a “virtually unflagging obligation” to exercise that authority... Because the majority shuns that duty, I must respectfully dissent.