The Supreme Court of the United States has decided against the states of Texas and Louisiana’s lawsuit against the Department of Homeland Security over a guideline given to the Immigration and Customs Enforcement (ICE) Agency. 

In 2021, the Department of Homeland Security (DHS) issued guidelines for ICE to prioritize the arrest and detention of illegal immigrants who are terrorists, known criminals, or have only recently entered the country illegally.

The states of Texas and Louisiana sued the DHS saying that federal law mandates the federal government make more arrests according to Title 8. The states say that Title 8 mandates the federal government to remove illegal immigrants when they are released from state prisons. Additionally, the states say that Title 8 mandates the federal government “arrest and detain certain noncitizens for 90 days after entry of a final order of removal.”

Their injury put forward was that the states will incur the costs of holding more illegal immigrants in their states because the federal government is not making more arrests. “The States assert, for example, that they must continue to incarcerate or supply social services such as healthcare and education to noncitizens who should be (but are not being) arrested by the Federal Government,” said the Supreme Court in their Opinion. 

The Supreme Court listened to the case and decided that the states of Texas and Louisiana did not have standing to sue the Executive Branch. 

The states allege that they will incur costs because of the policy. That is an injury. But the Court said that their injury has to be something traditionally resolved in a federal court. The Court also noted that the Judicial Branch was not the place to handle this situation and interferes with the Executive Branch’s ability to discern which arrests to make. 

According to an article by CBS, “[Justice] Kavanaugh said the judiciary was “not the proper forum” to resolve a dispute about immigration arrests, saying such policies could be altered through congressional appropriations and oversight, changes to the law and federal elections. Had the high court accepted Texas and Louisiana’s arguments, Kavanaugh warned, such a ruling could have allowed states to interfere in federal law enforcement beyond immigration matters.”

Article II of the Consitution states that the power to enforce the law lies with the Executive Branch. This means they also have discretion in whom they will prosecute, and enforce the law upon, due to a lack of resources to prosecute every single case in every category of law. The Supreme Court said, “Such lawsuits run up against the Executive’s Article Il authority to decide “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” TransUnion LLCv. Ramirez, 594 U.S,” said the Court.

For immigration in this case, the Department of Homeland Security does not have the resources to arrest and detain every single illegal immigrant in the United States. “…the Executive Branch invariably lacks the resources to arrest and prosecute every violator of every law and must constantly react and adjust to the ever-shifting public safety and public welfare needs of the American people,” said the Court.

Furthermore, the Supreme Court wrote that someone lacks standing to sue the prosecution policies of the Executive Branch if they themselves are not being prosecuted by those policies, or threatened to be prosecuted. According to the Opinion of the Supreme Court, they have “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.” Linda R. S. v. Richard D., 410 U. S. 614, 619 (1973).”

However, that did not mean that the Supreme Court legally supporting the memo from the Biden Administration. “To be clear, our Article III 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,” said the Opinion of the Court. “Moreover, the Federal Judiciary of course routinely and appropriately decides justiciable cases involving statutory requirements or prohibitions on the Executive.”

So this ruling does not determine if the justices believe that the Biden Administration is complying with the law or not. “In holding that Texas and Louisiana lack standing, we do not suggest that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.”

So, while the Supreme Court decided not to rule for Texas and Louisiana, at the same time they were not ruling for the DHS’s guidelines either. 

Rather, the Supreme Court of the United States ruled Texas and Louisiana did not have a real injury to sue the Department of Homeland Security in this case, and that the states were asking the Judiciary to force the Executive to make more arrests. “In sum, the States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this,” said the Court.

Texas and Louisiana had no historical precedent to rely upon when making their case. “The States have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions. On the contrary, this Court has previously ruled that a plaintiff lacks standing to bring such a suit,” said the Court. 

The Court does not want to start a precedent that forces the Executive Branch to do more enforcement in a specific category of law, because that would open the door when people do not approve of the Executive’s enforcement in other categories of law. “Standing doctrine helps safeguard the Judiciary’s proper—and properly limited—role in our constitutional system. By ensuring that a plaintiff has standing to sue, federal courts “prevent the judicial process from being used to usurp the powers of the political branches” Clapper, 568 U. S., at 408,” said the Court.