The Supreme Court issued an opinion on June 23, 2023, which held that the states of Texas and Louisiana have no standing to challenge the Executive Branch’s prosecutorial discretion in enforcing immigration law. United States et al. v. Texas et al., 599 U.S. ___ (2023) (U.S. v. Texas). In its decision, the Court found that the states cannot challenge the Department of Homeland Security (DHS) Secretary Alejandro Mayorkas’s September 30, 2021 memorandum, “Guidelines for the Enforcement of Civil Immigration Law” (Memorandum) because, even if injured monetarily by the government’s immigration enforcement policies, the states themselves are not being arrested or threatened with arrest under those policies.

Summary of Facts

On Sept. 30, 2021, DHS Secretary Mayorkas issued the Memorandum, which outlined three priority groups for the enforcement of immigration law: individuals who are a threat to (1) national security, (2) public safety, or (3) border security. The states of Texas and Louisiana challenged the Memorandum in federal court, claiming that, by following the Memorandum’s guidelines, the Biden Administration was not meeting its mandate under INA §§ 236(c) and 241(a)(2) (mandatory detention statutes) to arrest and detain certain noncitizens. This caused, the states alleged, costs to the states in the form of continued incarceration of or provision of social services such as healthcare and education to those noncitizens. The U.S. District Court for the Southern District of Texas found that the states would indeed incur such costs as a result of the policies outlined in the Memorandum. These costs, the district court determined, were injuries that gave the states standing. The district court then found on the merits that the guidelines in the Memorandum were unlawful and vacated the Memorandum. The U.S. Court of Appeals for the Fifth Circuit declined to stay the District Court’s order, and the Supreme Court subsequently granted certiorari.

Analysis

The Supreme Court started its analysis by citing decades of precedent that held that Article III courts can only hear cases or controversies, and that a case or controversy only exists where a plaintiff has standing to sue. The Court stated that case or controversy requirement “helps safeguard the Judiciary’s proper – and properly limited – role in our constitutional system.” To establish standing, the Court stated, “a plaintiff must show an injury in fact caused by the defendant and redressable by a court order.” Texas and Louisiana, the Court admonished, cited “no precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies… [to make] more arrests or initiate more prosecutions.” Instead, the Court found, precedent provides that “a party lacks a judicially cognizable interest in the prosecution of another…[and] a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” This principle, the Court held, applies equally to the Executive Branch’s discretionary authority to decide not to arrest or prosecute.

The Court then noted several reasons why precedent points to this result. First, courts are typically called upon to protect individuals’ liberty or property interests, neither of which are infringed upon by the Executive Branch’s decision not to arrest or prosecute. Second, the authority to enforce federal law and determine how to prioritize pursuing legal action against defendants who violate that law lies squarely with the Executive Branch under Article II of the Constitution. This authority cannot be transferred to state officials or to Congress. This enforcement discretion, the Court emphasized, extends to immigration arrests and prosecutions, which implicate not only domestic enforcement priorities, but also foreign policy objectives.

Finally, the Court noted that “courts generally lack meaningful standards for assessing the propriety of enforcement choices in this area,” remarking also that the Executive Branch is in the best position to determine how to prioritize its limited resources in the face of constantly changing “public-safety and public-welfare needs” of the country. Indeed, the district court in this case found that the Executive Branch does not possess the resources necessary to arrest or remove all noncitizens encompassed by INA §§ 236(c) or 241(a)(2), with the Supreme Court adding that this has been a constant in U.S. history. The courts, the Court found, are simply not equipped to conduct the complex balancing of factors required to assess whether any given immigration enforcement policies are appropriate.

The Court then acknowledged that there are limited cases in which plaintiffs can challenge the under-prosecution of the law. The first are so-called “selective-prosecution” cases under the Equal Protection Clause of the Constitution. In those cases, unlike the case at hand, a plaintiff typically seeks to prevent their own prosecution, not to impose additional prosecutions on others. In addition, were Congress to create causes of action for certain plaintiffs suffering concrete harms by the under-enforcement of certain laws, such plaintiffs would clearly have standing. In this case, the Court found, the word “shall” in both INA §§ 236(c) and 241(a)(2) is not a strong enough indication of congressional intent to create such a cause of action.

Nor did the Executive Branch “wholly abandon[]” its responsibilities under the INA to make arrests or prosecutions, which would allow for potential review by the courts under the Administrative Procedure Act. The Executive’s enforcement priorities, likewise, did not provide for legal benefits such as work authorization or Medicare eligibility, which could implicate “more than simply the Executive’s traditional enforcement discretion.” Finally, executive policies governing the prolonged detention of noncitizens could arguably lead to a “different standing question than arrest or prosecution cases.”

Practical Impact 

Following the Supreme Court’s decision, DHS Secretary Mayorkas issued a statement stating that “DHS looks forward to reinstituting the [Memorandum].” Whether there is a practical effect of the reinstatement of the Memorandum remains to be seen. The Memorandum in many ways is a culmination of years of past enforcement guidance that instructed DHS to focus on the three broad categories of noncitizens for enforcement: national security, public safety, and border security. During the period that the Memorandum was blocked by the District Court, advocates obviously could not cite it; however, DHS retained discretion in its enforcement of immigration law. Advocates were therefore encouraged to continue zealously advocating for their clients by arguing that the balance of positive and negative discretionary factors in clients’ cases tipped in their clients’ favor.

Now that the Memorandum is back in play, advocates should continue to argue that the positive factors outweigh the negative in their clients’ cases. Where clients do not fall into one of the three priority groups outlined by the Memorandum, advocates should emphasize this fact. Where they do, advocates should keep in mind that the Memorandum clearly allows individual officers to exercise ultimate discretionary authority in any particular case. Therefore, in cases where clients have already been subjected to enforcement, advocates are encouraged to affirmatively push for officers to exercise that broad discretion. In those cases that have not yet been subjected to enforcement, advocates must discuss with their clients the risks of affirmative action where they do fall into the Memorandum’s priorities.