By Jeff Zymeri
June 23, 2023 nationalreview.com
The Supreme Court ruled Friday that Texas and Louisiana do not have standing to sue the Biden administration over a deportation policy it instituted in 2021.
The case — United States v. Texas — was decided 8-1 and stems from a Department of Homeland Security policy that prioritizes certain groups of illegal immigrants for arrest and removal — namely, suspected terrorists, dangerous criminals, and those recently caught at the border.
In a memo, Secretary Alejandro Mayorkas explained DHS does not have the resources to apprehend and deport all of the 11 million illegal immigrants living in the U.S. Texas and Louisiana claimed that this violated federal statutes that purportedly require DHS to arrest more illegal immigrants pending their removal.
Justice Brett Kavanaugh, writing for the majority, explained that “the States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests.”
“But this 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,'” continued Kavanaugh. “Consistent with that fundamental Article III principle, we conclude that the States lack Article III standing to bring this suit.”
The justice also noted that the states cite no precedent, calling the lawsuit “extraordinarily unusual.” Kavanaugh was joined in his opinion by Chief Justice Roberts as well as Justices Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan.
“To be clear, our…decision today 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,” wrote Kavanaugh, clarifying that this case is narrow and pertains only to the executive branch’s traditional discretion over whether to take enforcement actions against violators of federal law.
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The courts are not the proper forum, argued Kavanaugh, instead pointing to Congress’s oversight and appropriations powers as well as elections, through which “American voters can both influence Executive Branch policies and hold elected officials to account for enforcement decisions.”
The Supreme Court thus overruled the district court, which had held for the states.
Justice Neil Gorsuch, joined by Justices Amy Coney Barrett and Clarence Thomas, wrote a concurring opinion that the states do not have standing. Gorsuch argued that “the States lack standing because federal courts do not have authority to redress their injuries.” Barrett also issued a concurring opinion on similar grounds.
Only Justice Samuel Alito dissented. “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,” wrote Alito.
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