Legal Sidebari

Supreme Court Limits States’ Ability to
Challenge Immigration Enforcement Policies
August 18, 2023
The Department of Homeland Security (DHS) is one of the key agencies responsible for the enforcement
of federal immigration laws against aliens who lack a legal basis to remain in the United States. Citing
resource and humanitarian concerns, DHS, during the Biden Administration, has generally limited its
enforcement actions to cover only those who pose a threat to national security, public safety, or border
security. On June 23, 2023, the Supreme Court held in United States v. Texas that Texas and Louisiana
lacked legal standing to challenge DHS’s immigration enforcement guidelines, reversing lower court
rulings that had blocked their implementation. More broadly, the Court’s decision seems likely to affect
states’ ability to challenge federal enforcement policies, whether they involve immigration or other issues,
going forward. This Legal Sidebar provides an overview of the relevant background on DHS’s
enforcement powers, the Texas case’s procedural history, and the Court’s decision, as well as certain
considerations for Congress.
Background: DHS’s Enforcement Powers and Discretion
DHS has authority to arrest, detain, and remove aliens suspected of being unlawfully present in the United
States. Under 8 U.S.C. § 1226(a), DHS may, but is not required to, arrest and detain an alien who is
placed in formal removal proceedings. Section 1226(c), however, instructs that DHS “shall take into
custody” an alien who is removable because of specified criminal or terrorist-related grounds, and
authorizes the alien’s release only in limited circumstances (e.g., for witness protection purposes).
Following the completion of removal proceedings, if it is determined that an alien is subject to a final
order of removal, 8 U.S.C. § 1231(a)(1)(A) provides that DHS “shall remove” the alien from the United
States within a 90-day “removal period.” A separate provision, 8 U.S.C. § 1231(a)(2), states that DHS
“shall detain” the alien during that 90-day period, and that “[u]nder no circumstances during the removal
period” may DHS release an alien who is removable on certain criminal or terrorist-related grounds.
While DHS is charged with immigration enforcement, the Supreme Court has held that the executive
branch has considerable discretion to determine when or whether it is appropriate to pursue the removal
of aliens who lack a legal basis to remain in the United States. In Arizona v. United States, the Supreme
Court recognized that “[a] principal feature of the removal system is the broad discretion exercised by
immigration officials,” and that the decision whether to pursue an alien’s removal may be based on
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various factors, including public safety, humanitarian concerns, and the alien’s equities and ties to the
United States. Similarly, in Reno v. American-Arab Anti-Discrimination Committee (AAADC), the Court
observed that immigration officials can make discretionary enforcement decisions at any stage of the
removal process.
The Biden Administration’s Immigration Enforcement
Guidelines
During the Trump Administration, DHS adopted a policy that generally required the enforcement of
immigration laws against all removable aliens. The Trump Administration also prioritized the removal of
aliens who engaged in criminal activity, those who committed fraud, those who posed threats to national
security, recent arriving aliens and unlawful entrants who were inadmissible, and those subject to final
orders of removal.
This policy shifted somewhat under the Biden Administration. In a September 30, 2021, memorandum to
DHS components, DHS Secretary Mayorkas announced new immigration enforcement guidelines,
asserting that DHS lacks the resources to pursue every removable alien, and that many otherwise
removable aliens have been “contributing members of our communities for years.” Secretary Mayorkas
argued that “[t]he fact an individual is a removable noncitizen therefore should not alone be the basis of
an enforcement action against them.” He announced that DHS would use its discretion and resources to
prioritize the apprehension and removal of aliens who fall within three categories: (1) threat to national
security, (2) threat to public safety, and (3) threat to border security.
As relevant here, aliens falling within the “threat to public safety” category generally include those who
have engaged in “serious criminal conduct.” The guidelines require consideration of aggravating and
mitigating factors—rather than the fact of a criminal conviction alone—in assessing whether enforcement
action under this category is warranted based on “the totality of the facts and circumstances of the
conduct at issue.” The aggravating factors include the gravity and nature of the criminal offense, the
degree of harm to the victim or community, and the alien’s prior criminal record. Mitigating factors
include the alien’s advanced or tender age, mental condition, evidence of rehabilitation, length of
presence in the United States, and the impact of removal on the alien’s family. Another consideration is
the broader public interest in determining whether apprehension and removal is warranted.
The Texas Case’s Procedural History
In October 2021, Texas and Louisiana challenged the Biden Administration’s immigration enforcement
guidelines in the U.S. District Court for the Southern District of Texas. The states argued that DHS’s
failure, under the guidelines, to apprehend and detain aliens who are otherwise removable because of
serious criminal convictions is unlawful and would impose significant costs to the plaintiffs. On June 10,
2022, the district court vacated Secretary Mayorkas’s September 2021 immigration enforcement
guidelines memorandum. First, the court determined that the plaintiff states had legal standing to sue. To
establish standing, a plaintiff (1) must have suffered a concrete and particularized injury; (2) show that the
injury is “fairly traceable” to the defendant’s challenged conduct; and (3) demonstrate that the court is
able to redress the injury. The district court explained that only one plaintiff needed to show standing to
proceed to the merits, and determined that Texas made such a showing based on evidence that DHS’s
policy would harm the state and its residents through increased costs for health care, education, and other
social services available to unlawfully present aliens, and increased criminal activity by aliens whom
DHS declines to detain.

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On the merits, the court held that the guidelines’ directive allowing immigration officials to weigh
aggravating and mitigating factors not specified in statute “flatly contradicts” the detention mandates of 8
U.S.C. §§ 1226(c) and 1231(a)(2). Such a directive, according to the court, conferred impermissible
discretion to DHS to decide whether an alien who has committed specified crimes or has a final order of
removal is subject to enforcement action. In the court’s view, the use of “shall” in these statutes
“unambiguously means ‘must,’” and DHS’s enforcement discretion does not supersede “Congress’s clear
commands.” The court also ruled that the guidelines violated the Administrative Procedure Act because
they were “arbitrary and capricious” and did not comply with the applicable notice-and-comment
requirements.
The Fifth Circuit denied the government’s motion to stay the district court’s decision pending
adjudication of its appeal. The Fifth Circuit rejected the government’s contention that the states lacked
standing to challenge DHS’s immigration enforcement guidelines. The Fifth Circuit also agreed with the
lower court that DHS’s enforcement guidance violates the “incontrovertibly mandatory” detention
provisions of 8 U.S.C. §§ 1226(c) and 1231(a)(2), and fails to satisfy the APA’s standards and procedural
requirements.
On July 21, 2022, the Supreme Court granted the government’s request to review the case and heard
arguments on November 29, 2022.
The Supreme Court’s Decision in United States v. Texas
On June 23, 2023, in an 8-1 decision, the Supreme Court reversed the Fifth Circuit’s ruling. In the
majority opinion authored by Justice Kavanaugh (joined by Chief Justice Roberts and Justices Sotomayor,
Kagan, and Jackson), the Court held that Texas and Louisiana lacked standing to challenge DHS’s
enforcement guidelines. The Court explained that, although Texas and Louisiana alleged monetary costs
resulting from DHS’s policy, they failed to show a “legally and judicially cognizable” injury that is
traditionally addressed through the judicial process.
The Supreme Court described the states’ case as “an extraordinarily unusual lawsuit” that asks federal
courts “to order the Executive Branch to alter its arrest policies so as to make more arrests.” The Court
observed that the states cited no judicial precedent, history, or tradition of federal courts considering
lawsuits of this kind. The Court instead recognized that it has held there is no standing to bring that type
of lawsuit. The Court, in particular, cited its 1973 decision in Linda R.S. v. Richard D., which held that a
plaintiff lacked standing to challenge a state’s policy of declining to prosecute certain child support
violations, which, if prosecuted, would have resulted in the incarceration of the nonpaying parent. In so
concluding, the Court held that a party has no “judicially cognizable interest” in challenging prosecutorial
authorities’ policies “when he himself is neither prosecuted nor threatened with prosecution.” The Court,
in Texas, determined that this principle applied to legal challenges to the executive branch’s exercise of
discretion over decisions whether to arrest or prosecute.
The Court explained that several reasons supported the application of this principle in this case. First,
when the executive branch declines 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.” Second, lawsuits challenging the executive branch’s number of arrests or prosecutions, in the
Court’s view, potentially infringe upon the President’s authority under Article II of the Constitution to
hold “executive Power” and to “take Care that the Laws be faithfully executed.” These Article II
provisions, the Court stated, vest the executive branch with the power to decide which cases to prioritize
for enforcement. Citing Arizona and AAADC, the Court observed that this concept of enforcement
discretion “extends to the immigration context,” and that the executive branch has broad discretion over
whether to remove a person from the United States. Finally, the Court cautioned that courts “generally
lack meaningful standards” to review enforcement decisions, which are influenced by resource

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constraints, public safety needs, and other factors that courts are ill-equipped to assess. For that reason,
the Court determined, “federal courts are generally not the proper forum for resolving claims that the
Executive Branch should make more arrests or bring more prosecutions.” Otherwise, the Court signaled,
there would be “expansive judicial direction” of DHS’s enforcement policies and an “uncharted path” of
future litigation over the executive enforcement decisions in other areas of law.
The Court held that courts could consider challenges to the executive branch’s failure to make more
arrests in some cases. According to the Court, standing might be shown when (1) a person claims to be
subject to selective prosecution in violation of the Equal Protection Clause; (2) Congress has authorized
lawsuits from those who have suffered harm resulting from under-enforcement policies; (3) the executive
branch’s policy is an “extreme case of non-enforcement” that amounts to an abdication of its statutory
responsibilities; (4) the challenged policy goes beyond enforcement discretion and confers legal benefits;
or (5) the policy governs the continued detention of those who have already been arrested. The Court
determined that none of these circumstances were present in this case.
The Court emphasized that its decision only addressed the “narrow Article III standing question” of
whether federal courts can require the executive branch to alter its enforcement policies. The Court took
no position on whether DHS’s enforcement guidelines violate 8 U.S.C. §§ 1226(c) and 1231(a)(2), and
indicated that its decision does not imply that the executive branch has a “freestanding or general
constitutional authority to disregard statutes requiring or prohibiting execution action.”
In a concurring opinion, Justice Gorsuch (joined by Justices Thomas and Barrett) agreed that Texas and
Louisiana lacked standing. Justice Gorsuch, however, argued that the states’ lack of standing was not
because they had no “judicially cognizable” interest or injury; rather, he contended that the states lacked
standing because federal courts do not have authority to redress their injuries. In his view, 8 U.S.C.
§ 1252(f)(1) bars lower courts from issuing class-wide “injunctive relief” that compels federal officials to
enforce specified statutes (including those concerning the detention of aliens). Furthermore, Justice
Gorsuch argued that even if § 1252(f)(1) does not bar orders of vacatur (as the Fifth Circuit held), an
order vacating the guidelines would also be ineffectual because it does not change the fact that DHS
officers still “possess the same underlying prosecutorial discretion.”
In another concurring opinion, Justice Barrett (joined by Justice Gorsuch) also agreed that Texas and
Louisiana lacked standing, but argued that the absence of standing resulted from the courts’ inability to
order effective relief rather than the states’ lack of a judicially cognizable interest.
In a dissenting opinion, Justice Alito argued that the states showed standing to challenge DHS’s
enforcement guidelines. Justice Alito asserted that Texas, in particular, established the requisite injury in
the form of increased financial costs and criminal activity of those whom DHS refuses to detain, and that
the injury is capable of being redressed by courts (e.g., by vacating the Mayorkas memorandum). Justice
Alito rejected the majority’s determination that courts generally lack jurisdiction to review the executive
branch’s apprehension and prosecution policies, and warned that this “grossly inflated conception” of
executive branch power intrudes upon Congress’ power to control immigration and the states’ ability to
address harms resulting from the executive branch’s policies.
Considerations for Congress
The Supreme Court’s Texas decision limits states’ ability to challenge federal immigration enforcement
policies, holding that they lack a “judicially cognizable interest” in the government’s decision whether to
apprehend or detain removable aliens. The Court’s decision may suggest, more broadly, that states
generally lack standing to challenge federal enforcement policies in other, non-immigration contexts. For
example, Texas may have implications for states’ ability to satisfy standing requirements to challenge

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federal policies that exercise enforcement discretion in limiting the criminal prosecution of marijuana-
related offenses or the regulation of certain tobacco products.
The Supreme Court indicates in Texas that plaintiffs might have standing in some cases, including if they
challenge the executive branch’s provision of legal benefits in addition to its enforcement policies, or if
they challenge the executive branch’s total “abdication” of its responsibilities. In his dissent, Justice Alito
argues that the Court insufficiently explained when these exceptions would arise, or how they can be
distinguished from the Court’s “general rule” that there is no standing to challenge the exercise of
enforcement discretion. Consequently, there may be some uncertainty about the extent to which states can
challenge the executive branch’s enforcement policies in the future.
The Supreme Court has previously recognized that law enforcement officials retain broad discretion
“even in the presence of seemingly mandatory legislative commands,” but indicated that a “true mandate”
of enforcement action requires “some strong indication” that there is limited discretion. If Congress has
any concern over whether immigration officials should retain discretion over the apprehension and
detention of aliens who committed serious crimes, it could, as the Court suggests, influence the executive
branch’s policies through legislation. For instance, Congress could clarify that immigration officials have
no discretion to release individuals described within 8 U.S.C. §§ 1226(c) and 1231(a)(2) (other than those
subject to the exceptions in § 1226(c)(2)), or clarify that those officials may release them in their
discretion only in specified situations or after consideration of certain factors. In the alternative, and more
generally, Congress could itself set immigration enforcement guidelines specifying which classes of
aliens, in addition to those who have committed serious crimes, should be prioritized for removal.
The Texas decision suggests another legislative option in which Congress could authorize lawsuits from
those who have suffered harm resulting from “under-enforcement” policies, and enable courts “to enter
appropriate orders” requiring additional arrests. As the Court explained in a footnote, these types of
statutes might raise separation of powers issues by infringing upon the executive branch’s enforcement
discretion. Relatedly, in another case decided by the Court during the same term as Texas, several Justices
called into question whether a statute allowing private parties to initiate civil enforcement actions on
behalf of the federal government under the False Claims Act interferes with the executive branch’s Article
II power.
Beyond legislation, the Texas opinion suggests that Congress “possesses an array of tools” to influence
the executive branch’s immigration policy, such as through its oversight, appropriations, and Senate
confirmation authorities. In the aftermath of Texas, Congress may consider these and other measures in
deciding to what extent immigration officials retain enforcement discretion, including with respect to
those who have committed serious crimes and who may potentially be threats to public safety.

Author Information

Hillel R. Smith

Legislative Attorney




Disclaimer

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