NRPLUS MEMBER ARTICLE T he Biden administration has exacerbated problems at the border by adopting immigration-enforcement policies that reduce the number of migrants who are arrested and deported for being here illegally. Texas and Louisiana fought all the way to the Supreme Court to challenge those policies, but this morning, in United States v. Texas, the Supreme Court ruled that the states could not bring their claim in federal court. Justice Brett Kavanaugh, writing for a majority that included Chief Justice John Roberts and the Court’s three liberals, concluded that the states lacked standing to sue. Justices Neil Gorsuch, Amy Coney Barrett, and Clarence Thomas concurred in the outcome, arguing that the courts lack the power to redress any injury because they cannot supervise the enforcement of the law. Only Justice Samuel Alito, in dissent, argued that the Court should rule on whether the administration’s policy violated the law.

Unfortunate as the outcome may be for immigration enforcement, this is the right decision — although the concurring justices have the better argument for why. Faithful enforcement of the law is the duty of the executive branch. Only in unusual cases can courts step in and compel the executive to do his job. Kavanaugh’s opinion does not close the courthouse door to granting such relief under different circumstances, and lays out five types of situations where the courts have the right, power, and duty to act. But it reiterates the general rule: This is the president’s job, and the courts can’t and shouldn’t supervise his doing of it. Unless Congress can use its leverage to force a change in presidential policy, or unless it has the votes to impeach officials for failing to do their jobs, it is typically up to the voters to ensure that the president carries out his constitutional oath to take care that the laws be faithfully executed.

The Court will convene again Tuesday with eight controversies left to resolve. In one of those, the challenge by Missouri and Nebraska to Joe Biden’s executive order releasing student-loan debts, state standing to sue is a central issue. If you’re reading the tea leaves, the U.S. v. Texas decision does nothing to tie the Court’s hands in that case — and suggests that Kavanaugh might be the fifth vote to find standing there.

Prosecutorial Discretion

Kavanaugh frames the Court’s opinion around the conclusion that “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.” Thus, asking the Court to do so is categorically different from asking it to prevent the government from invading the “liberty or property” of an individual. That’s an asymmetrical standard, but then, the Constitution often treats the government’s power differently from the rights of the citizen. Some space for prosecutorial discretion must exist and inhere in the president’s Article II powers, because nobody thinks the executive branch has the resources to arrest everybody who breaks the law. Kavanaugh worried openly about the precedent involved:

If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws—whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path.

That’s a legitimate worry, albeit one that speaks as much to whether these complaints are redressable by a court as to whether the states have an injury.

State Injuries

It has become common in recent years for states to sue the federal government, and the phenomenon is the source of a lot of our lawsuits over questions of constitutionality and of whether the executive branch has exceeded its statutory authority. Such lawsuits come from red states and blue states, from governors and from attorneys general. And, as Gorsuch frets in his concurring opinion, they are often forum-shopped as plaintiffs seek nationwide injunctions issued by individual, friendly district judges in the reddest and bluest parts of the country.

The procedural gamesmanship is unhealthy, and the Court is rightly concerned about policing the outer limits so that states don’t just automatically get the right to sue. But state litigants do offer a real check on executive-branch abuses when the president’s party controls Congress and chooses to go along with those abuses. And the rules need to be consistent. Gorsuch noted that, in Massachusetts v. EPA (2007), the Court made up a doctrine of “special solicitude” to state interests to allow Massachusetts to pursue a claim that the EPA was failing to adequately regulate greenhouse-gas emissions, and that the doctrine has been treated ever since with an implicit acknowledgment that the same solicitude would not be extended in other cases:

Before Massachusetts v. EPA, the notion that States enjoy relaxed standing rules “had no basis in our jurisprudence.” (ROBERTS, C. J., dissenting). Nor has “special solicitude” played a meaningful role in this Court’s decisions in the years since. . . . It’s hard not to wonder why the Court says nothing about “special solicitude” in this case. And it’s hard not to think, too, that lower courts should just leave that idea on the shelf in future ones. [Citation omitted.]

But how to draw the line? If the question is when a state has properly alleged an injury, some principles are clear. Federal policies can impose all manner of indirect consequences on state government. The Court reiterated just last week in the Indian Child Welfare Act case what it held in the 2021 Obamacare-mandate case: Just imposing some recordkeeping requirements on the states doesn’t give them standing to challenge the underlying policy.

The majority opinion spent surprisingly little time directly addressing the states’ specific theories of injury: their arguments that letting more illegal immigrants roam their states drove up the cost of state law enforcement, social services, health care, and education. Aside from noting the general distinction between challenges to prosecution and non-prosecution, Kavanaugh relegated those arguments to a footnote:

In our system of dual federal and state sovereignty, federal policies frequently generate indirect effects on state revenues or state spending. And when a State asserts, for example, that a federal law has produced only those kinds of indirect effects, the State’s claim for standing can become more attenuated.

Alito, however, shot back that just last year, the Court decided Biden v. Texas, a case in which states challenged Biden’s revocation of Trump’s “Remain in Mexico” policy; the Fifth Circuit found that the states had standing for similar reasons, and the Court proceeded to the merits without questioning that finding. Kavanaugh did note one major distinction that supported the Court’s finding state standing in the DACA litigation — namely that there remains a difference between the federal government’s simply declining to act and its actually granting some change in legal status:

A challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis. That is because the challenged policy might implicate more than simply the Executive’s traditional enforcement discretion.

That’s a crucial distinction in the student-loan case, where Biden is not just claiming the authority to decline to collect on loans, but is permanently releasing the debtors. With the opinions all but ready to release in that case, Kavanaugh (and perhaps Roberts as well) probably had his eye on making sure this opinion is consistent with that one — even though the main standing argument in that case turns on a different legal point involving Missouri’s right to assert injuries to one of its state agencies. Alito, for his part, thought the distinction vague, given that challenges to the grant of legal status or benefits would provide a separate basis for standing and not support standing to challenge a related failure of enforcement.

Unequal Protection

Among Kavanaugh’s five categories of cases that might offer some plaintiffs standing to challenge a failure to prosecute, one was simply a selective-prosecution claim (where standing is obvious, but the remedy is normally to dismiss the unequal prosecution); another was described as follows:

The standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. Under the Administrative Procedure Act, a plaintiff arguably could obtain review of agency non-enforcement if an agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities. . . . So too, an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing. But the States have not advanced [an] “abdication” argument in this case or argued that the Executive has entirely ceased enforcing the relevant statutes. [Citations and quotations.]

Alito’s reply was caustic, and the majority didn’t really have an answer for it:

Under what circumstances might the Court say that the Federal Government has “wholly abandoned” its enforcement duties? Suppose the Federal Government announced that it would obey 80% of the immigration laws or 70% of the environmental laws. Would the Court say that it had “wholly abandoned” enforcement of these bodies of law? What would happen if the Final Memorandum in this case had directed DHS agents not to arrest anyone convicted of any covered crime other than murder? DHS would still be enforcing the arrest mandate as to one of the many covered crimes. Would this only-murder policy qualify as complete abandonment? And why should the ability of a particular party to seek legal redress for an injury turn on the number of others harmed by the challenged enforcement policy?

This is an interesting question, especially if one considers the distinct issue — not addressed by a state-filed lawsuit — of the failure to prosecute a crime against a specific victim, rather than a crime against public order. For example, the equal-protection clause of the Fourteenth Amendment was originally aimed primarily at compelling states to prosecute the murders of black Americans who had recently been freed from slavery. (That aspect of the clause has been effectively neutered for quite some time in terms of direct enforcement.)

Ultimately, while the majority was right about the bottom line as well as the general structural problem with this sort of lawsuit, the better argument is simply that advanced by Gorsuch and Barrett in their concurring opinions: It would be an unworkable morass for the Court to get into the business of dragging a recalcitrant executive branch into enforcing more of the law but not all of it. That is simply not an injury the courts are equipped to redress.