By Amanda Frost
on Nov 23, 2022
at 1:16 pm
Can the Biden administration issue guidelines setting priorities in the enforcement of immigration law? Do states have standing to challenge these guidelines? And if the guidelines are unlawful, does the Administrative Procedure Act give lower courts the power to vacate them — a universal remedy that goes beyond the parties to the case? These are the three questions before the Supreme Court in United States v. Texasset to be argued on Nov. 29. Legal scholars have addressed all three issues, and their work is prominently cited in the briefing on both sides.
In her book Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press, 2015), Professor Shoba Sivaprasad Wadhia of Penn State Law observes that discretion in immigration enforcement is unavoidable in a system that lacks the resources to remove more than a few percent of the nation’s 11 million undocumented immigrants. The debate over how that discretion should be exercised has created a sharp policy divide between the Obama and Biden administrations, on the one hand, and that of former President Donald Trump on the other.
In 2011, John Morton, then the director of Immigration and Customs Enforcement, issued a series of memos setting enforcement priorities. Morton explained that his agency “only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States.” Accordingly, he declared that ICE would prioritize apprehension and removal of certain categories of undocumented immigrants, such as those who had committed crimes or were recent arrivals. In contrast, undocumented immigrants without criminal records, who had lived in the United States for many years, and who had U.S. citizen family members were low priorities for removal.
The “Morton Memos” were often ignored by ICE officersand in any case did not give legal protection from removal to those undocumented immigrants categorized as lower priorities. But if nothing else, they set the tone.
That tone changed abruptly when Trump took office in 2017. Within the first week of his administration, Trump replaced the Morton Memos with an executive order directing immigration officials “to ensure the faithful execution of the immigration laws of the United States against all removable aliens.” The goal, Trump explained, was to end “exempt[ions] [for] classes or categories of removable aliens from potential enforcement.” To be sure, the Trump administration also lacked the resources to deport the vast majority of undocumented immigrants. But the new executive order sent the message that no one in the United States without status was safe from removal.
The Trump administration followed an “attrition through enforcement” approach proposed in 2008 by Kris Kobach, who was at that time a professor at the University of Missouri-Kansas City School of Law and later became Kansas’ secretary of state. (Earlier this month, he was elected as Kansas’ incoming attorney general.) Acknowledging the limited resources to remove undocumented immigrants, Kobach advocated for policies that encouraged self-deportation. Accordingly, he opposed any categorical use of prosecutorial discretion, advocating instead for enforcement policies that would leave all undocumented immigrants in fear that they were imminently removable.
Now, in United States v. TexasTexas and Louisiana have asked the court to weigh in on this debate. At issue is whether the Immigration and Nationality Act permits the Biden administration to adopt guidelines prioritizing removal of certain categories of undocumented immigrants over others, just as Obama did before him. These states also argue that the guidelines violate the Administrative Procedure Act.
The case is perhaps even more important for its challenge to states’ standing to sue the federal government. A glance at the court’s docket in recent years reveals the rapid rise in state challenges to executive branch changes in policy, with red states taking the lead under Presidents Obama and Biden and blue states doing so during the Trump administration. In April of 2022, Texas issued a press release celebrating its 27th lawsuit against the Biden administration (the number is certainly higher by now). Likewise, California filed 122 lawsuits against the Trump administration during Trump’s four years as president, averaging one new lawsuit every 12 days.
Many of these cases challenged executive branch changes to immigration policy. In United States v. Texas, Texas and Louisiana argue that the new enforcement priorities will increase the number of undocumented immigrants in their states, and so increase their incarceration, education, and health care costs. They claim these higher costs are a cognizable injury that gives them standing to sue.
In its brief, the United States cites University of Virginia Law Professors Ann Woolhandler and Michael Collins’ recent article, Reining in State Standing, which argues in favor of a “return to [states’] traditional disfavored status as plaintiffs.” Under the tripartite requirements for standing, a plaintiff must show an “injury in fact” that is traceable to the challenged action and redressable by a court. But that standard gives states enormous leeway to claim injury on behalf of themselves as sovereigns or to their Parent of the fatherland interests (that is, the interests of their citizens), because almost any change to federal policy will have a fiscal impact on a state and its residents. Woolhandler and Collins propose that state standing to sue should be limited to cases in which states are “the direct regulatory objects of federal statutes and regulations,” which would fit more comfortably with states’ traditionally limited role as litigants before federal courts.
Finally, the Supreme Court is asked to decide the scope of the permissible remedy if the guidelines violate federal law. Over the past few years, courts and commentators have debated the power of lower federal courts to enter universal injunctions — that is, injunctions that bar defendants from enforcing a challenged law against anyonenot just the plaintiffs. United States v. Texas raises an offshoot of this question: whether a court’s power “to hold unlawful and set aside agency action” under Section 706(2) of the APA permits courts to vacate agency action such that it cannot be applied to anyone.
The United States cites a recent article by Professor John Harrison of University of Virginia Law arguing that Section 706(2) does not give courts authority to issue universal remedies, but rather only allows courts to decline to enforce unlawful agency action in cases before them. Texas and Louisiana rely on University of San Diego Law Professor Mila Sohoni’s article, “The Power to Vacate a Rule,” asserting that Section 706(2) authorizes (but does not require) vacatur, and citing longstanding precedent in the U.S. Court of Appeals for the District of Columbia Circuit and other lower federal courts supporting that position.
As Sohoni puts it, perhaps the most “astonishing” aspect of the case is that the scope of Section 706(2)’s remedy remains uncertain nearly 80 years after that statute’s enactment. That uncertainty will likely be resolved by the court’s decision this term.