Supreme Court Decides United States v. Texas

On June 23, 2023, the U.S. Supreme Court decided United States v. Texas, No. 22-58, holding that Texas and Louisiana did not have standing to challenge guidelines for the enforcement of certain immigration laws promulgated by the Department of Homeland Security.

In 2021, Texas and Louisiana sued the federal government, challenging a Department of Homeland Security policy that “prioritize[d] the arrest and removal from the United States of noncitizens who are suspected terrorists or dangerous criminals, or who have unlawfully entered the country only recently.” The States alleged that the policy conflicted with two federal statutes authorizing the arrest of a broader group of noncitizens. According to the States, “the Department’s failure to comply with those statutory mandates imposes costs on the States” in the form of social services, healthcare, and education expenses spent on noncitizens who should be arrested. A Southern District of Texas district court agreed with the States and vacated Homeland Security’s guidelines.

After the Fifth Circuit declined to stay that judgment, the Supreme Court granted certiorari before judgment and reversed. The Court did not rule on the merits of the lawsuit, finding instead that Texas and Louisiana did not have Article III standing to challenge the federal government’s policy in the first place. Writing for the majority, Justice Kavanaugh observed that the “States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests.” The Court declined to do so, finding no “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.” The Court also reaffirmed that “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.”

The Court clarified that it may entertain cases challenging under-enforcement of statutes if, for example, the failure to make arrests allegedly violates the Equal Protection Clause or an agency’s non-enforcement of a statute is “so extreme as to amount to an abdication of its statutory responsibilities.” The immigration policy, however, amounted to a discretionary “prioritization,” based partly on unavoidable “resource constraints”—not an “extreme case of non-enforcement.”

Justice Kavanaugh authored the opinion of the Court. Justice Gorsuch filed an opinion concurring in the judgement, joined by Justices Thomas and Barrett. Justice Barrett filed an opinion concurring in the judgment, joined by Justice Gorsuch. Justice Alito filed a dissenting opinion.