Do Texas and Louisiana Have Standing to Sue on Border Issues?

The liberty principle for this Freedom Friday is the need for sovereign nations to protect their borders. Hans von Spakovsky and Charles “Cully” Stimson published an article at The Daily Signal about a case now at the Supreme Court. Texas and Louisiana sued the Biden administration for its “guidelines that severely restricted the Department of Homeland Security’s enforcement of federal immigration law against illegal aliens.” This case was supported by amicus briefs from twenty other states. 

Oral arguments in the case were heard by the Supreme Court this week because the Biden administration appealed a September 30, 2021, ruling by a federal district court judge. Von Spakovsky and Stimson reported the following:

According to the administration, the misnamed “enforcement” efforts of the Department of Homeland Security are to be “guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years” and the fact that they are here illegally “should not alone be the basis of an enforcement action against them.” …

Texas and Louisiana claimed this type of individualized review and discretionary decision-making violated federal law, specifically 8 U.S.C. §§ 1226(c) and 1231 (a)(2), which mandate that the executive branch “shall take into custody” or deport aliens convicted of specific types of crimes or who have final orders of removal issued against them by immigration judges. Shall means shall (ie., must), Texas argued in the lower court.

The district judge agreed, saying that the Biden administration offered an “implausible construction of a federal law that flies in the face of the limitations imposed by Congress” and that it was invoking “discretion and prioritization in an effort to evade meaningful judicial review.”

The justices heard oral arguments for two and a half hours on Tuesday, and they questioned the lawyers on the above issues as well as “whether the states even had standing to bring a lawsuit in the first place.” No one knows how the justices will rule on this case, but they made some interesting statements.

The solicitor general of the U.S., Elizabeth Prelogar, for example, argued that the states had no standing to sue the federal government, no matter how much they are damaged by the policy implemented by the Biden administration.

She also argued that the word “shall” in the immigration statutes – as in the federal government “shall” detain aliens convicted of particular crimes – does not actually mean “shall,” and the Biden administration instead has the “discretion” to decide which aliens it will detain. In essence, she argued that the administration has the “discretion” to decide whether to comply with the law….

Chief Justice John Roberts sharply questioned Prelogar about her claim that states never have standing to “challenge immigration policies concerning apprehension or removal of aliens.” Roberts himself pointed out that the solicitor general’s claim conflicted with the Supreme Court’s decision at the end of last term in Biden v. Texas over the Biden’s administration’s cancellation of the “Remain in Mexico” policy implemented by the Trump administration.

The chief justice said he thought she would “have a little more concern about an opinion of ours that’s 4 months old” and chided her, saying, “It’s not even out of the cradle yet and you’re throwing it under the bus.”

Other justices asked questions of Prelogar. Justice Samuel Alito questioned the government’s argument about standing – giving standing to individuals but not states. Justice Brett Kavanaugh asked Prelogar if she was saying that a new administration could refuse to enforce any federal labor or environmental laws and deny standing to the states to sue. “Prelogar said that was exactly the position the Biden administration was taking.” This statement is amazing, but it is not the only amazing statement made by the government.