by Elise Spenner
The Court handed four opinions down today, including a significant victory for the Biden Administration’s immigration policy in United States v. Texas, and I was lucky enough to be in the building when it happened. I’ll break down Texas below, but I’ll also take a second to share a bit about my experience inside the Court.
Coincidentally, I happened to be in DC for a journalism program, and headed out around 8:30 a.m. in the hopes of snagging a spot at the Court to hear the justices announce opinions. I was the last person to receive a yellow ticket (shown on the right) that guarantees you a spot in line. It was a rainy day, which probably boosted my chances of getting in and made up for my late arrival. However, despite my golden (literally) ticket, I still wasn’t actually cleared to enter. The security guards announced that only the first 30 tickets would gain entry — I was ticket #40 — but I stayed in line on the off chance that they would let a few more guests sneak in.
By 9:30, I somehow was in. We deposited all bags and electronic devices into lockers before entering the courtroom, although I brought a pen and notebook along — more for the aesthetic than for any practical reasons. Naturally, I was seated in the very back, directly behind the justices’ clerks. The building was stunning and magisterial, of course, but I was equally excited to see the press corps gathered in the left corner of the room, including Nina Totenberg, Marcia Coyle, and Joan Biskupic. Just before 10, the justices entered the courtroom to the tune of “oyez, oyez, oyez,” although Justice Neil Gorsuch was absent. Chief Justice John Roberts immediately announced that Justice Barrett had written and would read the first opinion of the day. Notably, the justices did not wait 10 minutes before proceeding to the next opinion. After Barrett finished reading the syllabus and the holding, Kavanaugh announced his two opinions, and Thomas closed the session with the fourth opinion of the day.
I’m still desperate to sneak my way into an oral argument session, but it was stunning to see the justices in real life, and fascinating to observe the Court’s in-person procedures. Read on for my analysis of United States v. Texas.
In United States v. Texas, the Court held 8-1 that Texas and Louisiana lacked standing to challenge the Biden Administration’s immigration-enforcement guidelines. The Court did not reach the merits question of whether the guidelines were too narrowly focused on specific noncitizens (terrorists and dangerous criminals, for instance). In other words, Texas and Louisiana wanted “the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests,” as Justice Brett Kavanaugh wrote for the majority.
To put it simply, that isn’t a request that the states can bring before the Court, Kavanaugh concluded. The only justice who disagreed was Justice Samuel Alito, who wrote a solo dissent.
For this case, it’s important to focus on two key components of standing: The defendant has to suffer an injury, and the injury must be “legally and judicially cognizable.” The states easily surpassed the first hurdle, claiming that the federal government’s refusal to address noncitizens will raise costs for Texas and Louisiana. But Kavanaugh found they failed to meet the second standard because it is not an injury that can be used to challenge the policy before the Court.
Why? According to historical precedent, only the person being prosecuted has standing to challenge arrest and prosecution policies. For anyone else, the executive branch has “enforcement discretion.” Basically, the judiciary has no general authority over who the government chooses to arrest. For one, this is true because choosing not to arrest someone does not violate their liberties in any way; as a result, courts don’t need to step in to protect anyone. More to the point, it is impractical — and more likely, impossible — for the Executive Branch to arrest everyone that commits a crime. The Executive Branch has to make hard decisions based on a multitude of factors that the judiciary isn’t really equipped to question.
Kavanaugh distinguished this case from five other situations where a plaintiff could challenge the federal government’s prosecution authority:
- When plaintiffs sue the government for violating their rights under the equal protection clause.
- When Congress itself waives the redressability requirement and authorizes courts to hear cases brought by plaintiffs who suffer from under-enforcement.
- When the Executive Branch completely ignores the statute and refuses to make arrests or bring prosecutions.
- When a plaintiff makes a broader claim that doesn’t just relate to a non-enforcement policy — for example, they challenge how the Executive Branch handles legal benefits.
- When a noncitizen challenges a policy that keeps them detained after their arrest.
Because the challenge in United States v. Texas doesn’t check any of those boxes, Kavanaugh concluded that the plaintiffs lack standing.
Justices Gorsuch and Barrett both filed concurring opinions; they reached the same conclusion, but for a different reason. They ignored the question of a “judicially cognizable interest” and focused on a different component of standing known as redressability. In his concurrence, Gorsuch poked holes in Kavanaugh’s arguments against the injury element of standing, reminding Kavanaugh of the monetary injury suffered by the states, and the fact that in other cases, states have been given special privileges to challenge regulatory failure. After dismantling Kavanaugh’s claims, Gorsuch addressed what he saw as the real problem: the Court couldn’t do anything to redress the injury because of a congressional statute that prevents federal courts from enforcing or enjoining immigration laws. This statute foreclosed any potential relief that the Court could provide, he concluded. Barrett took a similar stance, claiming that Kavanaugh’s standing claims rest on shaky ground. The Court “weaves together multiple doctrinal strands to create a rule that is not only novel, but also in tension with other decisions,” she wrote.
Alito dissented, arguing that the Court draws an arbitrary line to reach its conclusion on standing, preventing lawsuits that challenge “arrest and prosecution policies” but not other suits against the Executive Branch. Alito found that Texas and Louisiana suffered a direct, not indirect, injury because of the Biden Administration’s policy. In failing to address this injury, Alito wrote, the Court undermines federalism because it gives States no way to seek relief for harms inflicted.
High School SCOTUS 