Texas did not have standing to challenge the Biden Administration’s policy priorities regarding removal of noncitizens, the U.S. Supreme Court has ruled. United States v. Texas, No. 22-58 (June 23, 2023).

In February 2021, recognizing that, of the more than 11 million removable noncitizens in the United States, the majority have become contributing members of their communities, Secretary of Homeland Security Alejandro Mayorkas issued guidelines prioritizing the apprehension and removal of noncitizens who posed a threat to national security, public security, and border security based on a case-by-case assessment.

Texas, joined by Louisiana and, later, by other states, challenged that policy, alleging it was not in compliance with the law stating that the Department of Homeland Security “shall” take into custody certain noncitizens. Texas claimed it had an interest in this policy because it had an interest in protecting its citizens from the criminal activity of aliens who were subject to mandatory detention. The U.S. District Court for the Southern District of Texas agreed and held the policy guidance had to be vacated.

The Biden Administration appealed to the U.S. Court of Appeals for the Fifth Circuit and, ultimately, to the U.S. Supreme Court seeking a stay of the vacatur. Neither court would issue a stay, but the Supreme Court agreed to hear the case even prior to a Fifth Circuit decision.

The Supreme Court requested briefing on three questions: 1) standing; 2) whether the guidance violated the Immigration and Nationality Act or the Administrative Procedure Act; and 3) whether the remedy of vacatur is barred. The Court reached only the question of standing in its decision.

In an 8-1 vote, the Court wrote that the executive branch had broad discretion in enforcing the laws and that past administrations have all had to prioritize enforcement due to a lack of resources necessary to arrest and deport all noncitizens who are deportable. Justice Brett Kavanaugh, writing for the majority, held that granting standing in this case could open the door to allowing states to challenge any number of enforcement policies. But, he did stress that this ruling was a narrow one. Justices Neil Gorsuch and Amy Coney Barrett wrote concurring opinions. Only Justice Samuel Alito dissented, writing that Texas did have standing.

Secretary Mayorkas has noted that, due to various formalities, it likely will take a month before the guidelines will be reinstituted. In the meantime, individual requests for prosecutorial discretion should continue to be pursued.