Carte Blanche: SCOTUS Issues a Puzzling Decision on Texas and Louisiana’s Challenge to the Biden Administration’s Compliance with 8 U.S.C. § 1226 and § 1231

by James M. Truett


I received a letter just before I left office from a man. I don’t know why he chose to write it, but I’m glad he did. He wrote that you can go to live in France, but you can’t become a Frenchman. You can go to live in Germany or Italy, but you can’t become a German, an Italian. He went through Turkey, Greece, Japan and other countries. But he said anyone, from any corner of the world, can come to live in the United States and become an American.[1]

This famous quote from President Ronald Reagan still rings true today and forever will.[2] Immigration is a beautiful and foundational principle of the United States, and the United States would not be the country it is today without immigration. As President John F. Kennedy once aptly stated, “[e]verywhere immigrants have enriched and strengthened the fabric of American life.”[3] Unfortunately, the current United States’ immigration system is in dire need of reform.[4] The most recent substantial immigration reform came in 1996, when President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility  Act (IIRIRA) into law.[5] Unsurprisingly, the United States’ immigration program is outdated and must be adapted to the modern world to ensure safety for immigrants and Americans alike.[6]

In 2022, the International Organization for Migration found that the United States-Mexico border was the deadliest migration land route in the world with nearly 1,000 migrant deaths in the last year alone.[7] According to United States Customs and Border Protection, seizures of illegally made fentanyl at the United States-Mexico border have increased by 433% from 2020 to 2023.[8] Illicit fentanyl is a synthetic opioid that is 50 times stronger than heroin and 100 times stronger than morphine.[9] Additionally, it can be absorbed through inhalation, oral exposure, and skin contact, and only two milligrams of fentanyl can be fatal.[10] As a horrendous consequence of illicit fentanyl trafficking, illicit fentanyl overdose is the leading cause of death for Americans 18 to 45 years of age in the United States.[11] Yet, this tragic epidemic transcends all age groups. This year, a toddler in Kenner, Louisiana, tragically passed away, and subsequent testing revealed that the 20-month-old baby contained illicit fentanyl in her system.[12] Unfortunately, these disturbing accidental fatalities are far too commonplace in the United States.[13]

Through a fiscal perspective, studies indicate that illegal immigration may impose a burden of up to $151 billion per year on U.S. taxpayers.[14] Specifically, the Federation for American Immigration Reform published a study that determined illegal immigration inflicted a yearly $150.6 billion burden on U.S. taxpayers.[15] Similarly, a senior research fellow at the Heritage Foundation testified before the U.S. Senate Committee on the Budget that illegal immigration imposes a financial burden ranging from $84 billion to $94 billion per year on U.S. taxpayers.[16] As the humanitarian tragedies and fiscal outlays demonstrate, Congress must engage in responsible immigration reform to address these issues.

I. Background

Immigration law presents fundamental separation-of-powers issues. In the immigration context, the President and Executive Branch possess nearly absolute discretion to decide whether to prosecute a case or person.[17] Yet, Article II, § 3 of the United States Constitution requires the President and Executive Branch to faithfully execute the laws of the United States.[18] Accordingly, the Constitution pits the Executive Branch’s broad prosecutorial discretion power against the Executive Branch’s duty to faithfully execute immigration enforcement laws enacted by Congress.

A. Immigration Law

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to remedy the now defunct Immigration and Naturalization Service’s (INS)[19] failure to sufficiently address criminal activity through the immigration process.[20] Prior to the IIRIRA, the United States Attorney General (Attorney General) possessed broad discretion regarding the release of criminal noncitizens during their removal proceedings.[21] As a result, Congress enacted 8 U.S.C. § 1226(c)[22] out of “concer[n] that deportable criminal [noncitizens] who are not detained continue to engage in crime and fail to appear[,]” and thus the statute applies to a small set of noncitizens.[23] Section 1226(c) mandates federal detention only for noncitizens with criminal records when they are released from state custody pending a removal hearing. Specifically, § 1226(c) requires the government to detain noncitizens with previous criminal arrests and convictions who are deportable for admitting to or being convicted of certain offenses.[24] Such deportable offenses include a crime related to terrorist activities, crime involving a moral turpitude,[25] and an attempt to violate or a violation of any state, federal, or international law relating to controlled substances.[26] In Nielsen v. Preap, the Supreme Court interpreted § 1226 subsection I as significantly limiting the Attorney General’s enforcement discretion.[27] In a similar tone, 8 U.S.C. § 1231(a)(2) states that once a noncitizen is ordered to be removed (i.e., deported) from the United States, the government must remove the noncitizen within 90 days—often referred to as a removal period.[28] In Zadvydas v. Davis, the Supreme Court determined that the Attorney General lacks authority to indefinitely detain a noncitizen beyond the statutory removal period of 90 days.[29] In other words, a noncitizen may only be detained after the removal period if there is still a reasonable chance that the noncitizen will be removed to his country of origin.[30] Specifically, the Court stated that the Attorney General may detain a noncitizen after the removal period, pursuant to a reasonable chance of removal, for up to six months.[31] Additionally, if a noncitizen’s country of origin does not have a repatriation agreement with the United States, then the Attorney General must release the noncitizen back into the United States as a chance of removal is no longer existent.[32] Therefore, § 1231(a)(2) orders the government to detain the noncitizen and not release the noncitizen until his removal is carried out. However, the government is prohibited from holding the noncitizen indefinitely.[33]

Section 1226(c) mandates the detainment of certain criminal noncitizens pending a removal proceeding, and § 1231(a)(2) applies once a noncitizen has been ordered to be removed from the United States.[34] When a noncitizen commits a crime in the United States, the jurisdictional state will typically arrest and detain the noncitizen.[35] If the noncitizen committed a crime or offense under § 1226(c) or § 1231(a)(2), then the federal government must apprehend and detain the noncitizen by law.[36] As such, the government will lodge a detainer with the custodial state to ensure that the government apprehends and detains the noncitizen once he or she is released from state custody.[37] Prior to the noncitizen’s release, the state will notify the DHS to ensure compliance with § 1226(c).[38] Once the state releases the noncitizen to the DHS, the state is relieved from the financial burdens of putting the noncitizen on parole, probation, or release.[39] Notably, the DHS may rescind a detainer before the state releases the noncitizen, in which the financial burdens remain with the state.[40]

B. Article III Standing

To challenge the Executive Branch violations of § 1226(c) and § 1231(a)(2), a plaintiff must have standing pursuant to Article III of the United States Constitution.[41] Plainly, a plaintiff must prove an injury in fact caused by a defendant that can be remedied through the legal system.[42] A monetary injury is a classic example of an injury in fact.[43] In the area of criminal prosecutorial discretion, the United States Supreme Court in Linda R.S. v. Richard D. reinforced the long standing proposition that a private citizen lacks standing to challenge the prosecution or non-prosecution of another individual.[44]

In Linda R.S., the Court addressed the issue of whether a mother possessed standing to challenge a Texas statute that punished parents for willfully deserting, neglecting, or refusing to provide support for their children.[45] In its application, the Texas statute discriminatorily applied to parents of children born in a marriage and not to children born out of wedlock.[46] As a parent to a child born out of wedlock, the plaintiff parent filed suit to enjoin the discriminatory application of the law.[47] The Court determined that the plaintiff mother lacked standing to file suit challenging the Texas statute.[48] In its reasoning, the Court pointed to a prior string of decisions that determined a citizen lacks standing to contest the policies of the prosecuting authority when he or she is neither prosecuted nor threatened with prosecution.[49] Therefore, the Court in Linda R.S. denied standing to the plaintiff mother as she was ineligible for prosecution under the Texas statute.[50]

C. Administrative Law

In addition to implicating the separation-of-powers framework, immigration law also implicates the Administrative Procedure Act (APA).[50] The DHS must abide by various procedural requirements when promulgating final regulations and guidelines under the APA. Specifically, under § 701(a)(2) of the APA, an agency’s actions are not subject to judicial review if the action is within the agency’s discretion delegated by Congress.[52] In Heckler v. Chaney, the Supreme Court stated that “an agency’s decision not to take enforcement action should be presumed immune” from judicial scrutiny under the APA.[53] The Court additionally reasoned that its holding only provided a presumption of unreviewability and may be rebutted when the substantive statute provides guidelines for the agency’s enforcement discretion.[54] Notably, Heckler did not address Article III standing.[55] Additionally, APA § 706(a)(2) states that a court may “hold unlawful and set aside agency action . . . not in accordance with [the] law.”[56] Outside the ambit of the APA, 8 U.S.C. § 1252(f)(1) determines that only the United States Supreme Court may issue an injunction regarding questions arising under the IIRIRA.[57]

D. Recent Developments

On January 20, 2021, then acting DHS Secretary David Pekoske issued guidelines for the detention and removal of noncitizens who implicated national security concerns, arrived after November 1, 2020, and were due to be released from criminal confinement for aggravated felony convictions and thus threats to public safety.[58] In the following month, Immigration and Customs Enforcement (ICE)[59] released a second memorandum stating that Department preapproval is required to bring enforcement actions for noncitizens who did not fall within the first memorandum categories.[60] Eventually, Secretary Mayorkas[61] issued a Final Memorandum stating that noncitizens within the initial memorandum’s priority groups were not required to be apprehended or removed.[62] Conversely, the Final Memorandum instructed DHS officials to consider “aggravating and mitigating factors” in deciding whether to detain noncitizens.[63] Notably, Congress did not include these “aggravating and mitigating factors” in § 1226(c) and § 1231(a)(2).[64] As a result, Louisiana and Texas filed suit.

In United States v. Texas, Louisiana and Texas challenged the validity of Homeland Security Secretary Alejandro Mayorkas’s Guidelines for the Enforcement of Civil Immigration Law (Guidelines) in the United States District Court for the Southern District of Texas.[65] Louisiana and Texas asserted that Secretary Mayorkas’s Guidelines violated language in § 1226(c) and § 1231(a)(2), which provides instances where the Attorney General “shall” detain noncitizens.[66] The district court found that Secretary Mayorkas’s guidelines resulted in the rescinding of 141 detainers in Texas, in which the state placed 95 of the noncitizens on variations of state supervision.[67] The district court then highlighted similar behavior from ICE since the publication of the Secretary’s Guidelines.[68]

Based on these findings, the district court determined that Texas suffered four categories of monetary injuries for standing purposes, which included: (1) the costs of state supervision of noncitizens; (2) costs pertaining to criminal recidivism; (3) costs associated with providing noncitizen juvenile offenders public education; and (4) costs pertaining to providing healthcare for noncitizens at the state’s expense.[69] Accordingly, the district court determined that Texas sufficiently proved that the Secretary’s Guidelines caused monetary injuries to the state.[70] Addressing redressability and causation, the district court found that the Guidelines resulted in ICE rescinding 141 detainers that inflicted financial injuries upon Texas.[71] Accordingly, the district court determined that a vacatur of the Guidelines would remedy these financial injuries by not allowing ICE to rescind detainers pursuant to the Guidelines.[72] On the merits, the district court held that the Secretary’s Guidelines were contrary to the law[73] in violation of the APA and vacated the Guidelines.[74] The government appealed and filed a motion to stay pending appeal.[75] Subsequently, the United States Fifth Circuit Court of Appeals denied the appellant’s motion for staying the vacatur.[76]

In 2023, the United States Supreme Court determined that Louisiana and Texas lacked standing to challenge the Guidelines pursuant to Article III of the United States Constitution.[77] This Blog Post provides an analysis of the Court’s ruling in United States v. Texas, an overview of the practical implications of the Court’s ruling, and a potential solution to alleviate confusion in this area of the law.

II. United States v. Texas

In United States v. Texas, the Court readdressed the issue of whether Louisiana and Texas possessed Article III standing.[78] Justice Kavanaugh wrote for the majority and determined that Louisiana and Texas lacked Article III standing to challenge Secretary Mayorkas’s Guidelines.[79] Joined by Chief Justice Roberts and Justices Kagan, Sotomayor, and Jackson, Justice Kavanaugh reasoned that the Court’s prior standing analysis in Linda R.S. applied to Louisiana and Texas’s challenge of Secretary Mayorkas’s Guidelines.[80] In his reasoning, Justice Kavanaugh explained that Linda R.S. had previously been invoked in the immigration context and that the underlying case called for the same result.[81] Further, he noted that federal courts historically have not entertained lawsuits brought by states challenging the Executive Branch’s prosecutorial discretion.[82] To support federal courts’ prior reasoning, Justice Kavanaugh stated that Article II of the Constitution vests the Executive Branch with the authority to prioritize prosecutions in the immigration context, and the DHS’s finite number of resources provides that the DHS must prioritize who it prosecutes.[83] In other words, Justice Kavanaugh conveyed that the DHS cannot possibly prosecute every offender in the immigration context due to its limited resources.[84]

Although Justice Kavanaugh determined that Louisiana and Texas lacked standing, he set forth five scenarios where federal courts may entertain similar legal challenges.[85] First, he noted that the Court previously adjudicated claims under the Equal Protection Clause where a prosecuted individual filed suit, as opposed to a non-prosecuted party filing suit.[86] Second, Justice Kavanaugh suggested that federal courts may grant standing to plaintiffs when Congress lists a defined set of plaintiffs in a statute.[87] Third, he stated that the majority might have granted standing if the Biden administration completely abandoned the statutory mandates in § 1226(c) and § 1231(a)(2), as opposed to partially abandoning the mandates.[88] Fourth, he mentioned that a challenge to the Executive Branch’s prosecutorial priorities and its granting of legal status and benefits could change the standing outcome.[89] In other words, if the Executive Branch’s priorities pertained to both non-prosecution and a conferral of legal benefits, then the standing analysis may change.[90] Lastly, Justice Kavanaugh explained that policies pertaining to continued detention of illegal immigrants might raise a different standing question.[91] Since this case did not fall into any of these scenarios, the majority refused to grant standing for Louisiana and Texas.[92]

In the first concurring opinion, Justices Gorsuch, Thomas, and Barrett declined to grant standing to Louisiana and Texas.[93] However, the concurrence disagreed with the majority’s rationale and denied standing pursuant to the states’ failure to prove redressability if Secretary Mayorkas’s Guidelines were removed.[94] Regarding the majority’s analysis, the Gorsuch concurrence struggled with the majority disregarding the district court’s finding that Texas suffered monetary injuries.[95] The Gorsuch concurrence then highlighted the majority’s emphasis on the Executive Branch’s exercise of coercive power and how the majority’s reasoning may be inconsistent with seminal decisions like Massachusetts v. EPA.[96] Lastly, the Gorsuch concurrence noted how the majority essentially ignored the states’ argument pertaining to the Executive Branch’s discretionary enforcement powers and its duty to faithfully execute the law of the United States.[97]

Notwithstanding its concerns, the Gorsuch concurrence ultimately refused to grant standing based on the lack of redressability.[98] The Gorsuch concurrence explained that a plaintiff “must show that its injuries are capable of being remedied by a ‘favorable decision’”[99] to establish redressability.[100] Therefore, the Gorsuch concurrence stated that most states would seek an injunction in the underlying matter.[101] However, Justice Gorsuch noted that § 1252(f)(1) provides that only the United States Supreme Court may issue an injunction relating to laws under the IIRIRA.[102] Justice Gorsuch next magnified the Court’s recent ruling in Garland v. Aleman Gonzales, where the Court determined that § 1252(f)(1) “prohibits lower courts from . . . order[ing] federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.”[103] Accordingly, the first concurrence noted that the states’ highest chance of redressability occurred with an impermissible injunction.[104]

Notably, Justice Gorsuch determined that the district court’s vacatur on the Secretary’s Guidelines under § 706(2) of the APA, even if permissible, still resulted in a lack of redressability for the states.[105] Stated another way, the district court’s vacatur did not “change the fact that federal officials possess the same underlying prosecutorial discretion.”[106] In a similar fashion, the Gorsuch concurrence determined that federal officials will not alter their prosecution priorities considering the Court’s decision merely related to guidelines.[107] Lastly, in pertinent part, Justice Gorsuch denied to grant an injunction under § 1252(f)(1), as he explained it would not remedy the states’ lack of redressability.[108]

Despite the Gorsuch concurrence’s lengthy analysis pertaining to redressability, it also expressed concerns on the district court’s interpretation that the APA empowers federal courts to vacate agency actions.[109] Justice Gorsuch first explained how injunctions must be party specific, meaning that a court “[directs] the defendant to take or not take some action relative to the plaintiff.”[110] He further explained that an injunction may only affect nonparties if it is an incidental consequence of the injunction, stemming from the foundational principle that courts “render a judgment or decree upon the rights of the litigant[s]” and only decide matters for parties, not the entire public.[111] Justice Gorsuch reasoned that, in contrast with these fundamental principles, the “universal injunction” is ascending to prominence in the federal judicial system and that the district court followed this ascension with its interpretation of the APA.[112] In short, the first concurrence noted that § 706(2) on the APA’s plain language of “set aside” did not equate to nullifying or vacating an agency action.[113] To support his argument, Justice Gorsuch highlighted historical jurisprudence indicating the difference between setting aside and vacating.[114] Thus, the Gorsuch concurrence determined that the states were barred from coercive relief by § 1252(f)(1), unable to receive effectual relief under § 706(2), and therefore did not possess Article III standing due to the lack of redressability.[115]

In a second concurring opinion, Justice Barrett was joined by Justice Gorsuch, in which both determined that the majority’s reliance on Linda R.S. was inaccurate.[116] The Barrett concurrence reasoned that the majority possessed an overly broad view of the Linda R.S. case.[117] Justice Barrett asserted that Linda R.S. stands for the proposition that “when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.”[118] Even if the majority’s superfluous application was correct, Justice Barrett stated that Linda R.S. was not controlling precedent because the states did not attempt to seek the prosecution of a specific individual.[119] Instead, the states sought a temporary detention of certain noncitizens during elective removal proceedings of an uncertain duration.[120]

In addition to her disagreement with the majority’s analysis pertaining to Linda R.S., Justice Barrett conveyed skepticism over the majority’s reliance on historical precedent.[121] In her reasoning, Justice Barrett explained that the majority confused various doctrines pertaining to the merits of individual cases and morphed the doctrines to apply to standing.[122] For example, the majority cited Castle Rock v. Gonzales to determine that the inherent discretionary nature of the Executive Branch’s enforcement powers would require more than the word “shall” to uproot the deeply rooted concept of enforcement discretion.[123] Justice Barrett explained that Castle Rock did not pertain to standing but instead addressed “whether an individual who has obtained a state-law restraining order has a constitutionally protected property interest” under the Fourteenth Amendment “in having the police enforce the restraining order when they have probable cause to believe it has been violated.”[124] Justice Barrett concluded that the majority “weave[d] together multiple doctrinal strands to create a rule that is not only novel, but also in tension with other decisions.”[125] Therefore, Justice Barrett concurred solely on the basis that the states failed to show that the district court could order effective relief.[126]

As a lone dissenter, Justice Alito determined that Louisiana and Texas possessed Article III standing to challenge Secretary Mayorkas’s Guidelines.[127] Justice Alito noted that the “shall” language in § 1226(c) and § 1231(a)(2) did not equate to the word “may” and that the Attorney General lacked discretion in accordance with these statutory mandates.[128] To underpin his reasoning, he turned to the Court’s recent decisions in Johnson v. Gusman Chavez and Nielsen v. Preap, which stated that “shall means shall” within the relevant immigration statutes.[129] He further supported his position by noting that the United States held the same position regarding “shall” in immigration statutes as recently as 2022.[130] Next, Justice Alito highlighted the congressional impetus behind enacting the IIRIRA, namely Congress’s desire to reign in the Executive Branch’s prosecutorial discretion based on previous failures in curtailing crime within the immigration context.[131]

Subsequently, Justice Alito turned to a traditional standing analysis where he determined that Texas’s monetary injuries of apprehending these individuals who fell within the statutory mandates constituted an injury in fact.[132] For redressability, Justice Alito disagreed with Justice Gorsuch’s lack of effective relief analysis by pointing to Franklin v. Massachusetts, where the Court determined that a declaratory judgement regarding the legality of the Executive Branch’s actions constituted sufficient redressability because “it [was] substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation” of the law “even though they would not be directly bound by such a determination.”[133] Next, the dissent pointed to settled law to indicate that Texas possessed Article III standing.[134] In Federal Election Commission v. Akins, the Court granted standing to a plaintiff based on an agency’s decision not to proceed with enforcement action.[135] Likewise, Justice Alito analogized Texas to Massachusetts in Massachusetts v. EPA.[136] The Court in Massachusetts determined that Massachusetts possessed Article III standing to challenge the EPA’s refusal to enforce its civil enforcement power to regulate greenhouse gas emissions ostensibly injuring the state.[137] The Massachusetts Court explained that when the Commonwealth entered the Union, the Commonwealth lost “certain sovereign prerogatives” that could have been used to defend its alleged loss of territory resulting from greenhouse gas emissions.[138] Similarly, Justice Alito asserted that Texas lost “certain sovereign prerogatives” when it entered the Union, which certainly included the ability to police its borders and regulate immigration into its borders.[139]

Lastly, the dissent agreed with Justice Barrett’s analysis in distinguishing Linda R.S. and challenged the majority’s five scenarios where states may challenge the Executive Branch in the immigration context.[140] In pertinent part, Justice Alito pointed to Spokeo, Inc. v. Robins to explain that although Congress may provide causes of action in statutes, it is not the only determinative factor.[141] Plainly, once a plaintiff proves an injury in fact, statutory authorization of standing is irrelevant.[142] Addressing the majority’s position that standing may be granted if the government “wholly abandoned its statutory responsibilities,” Justice Alito highlighted the lack of manageable standards to address if an agency fully abandons its statutory responsibilities.[143] In other words, he raised the question of how to measure if the Executive Branch abandoned its statutory responsibilities by 30%, 60%, or 90%.[144] Finally, Justice Alito highlighted historical precedent where the Court determined that a President must enforce his or her statutory duties.[145]

III. Practical Implications

Further exacerbating the confusion between Article II, § 3 of the United States Constitution and the Executive Branch’s Prosecutorial Discretion under the IIRIRA, United States v. Texas upsets the fundamental separation-of-powers principles set forth in the Constitution.[146] The Constitution’s framework establishes three equal branches of government: legislative; executive; and judicial.[147] Simply, the Legislative Branch in Congress creates law, the Executive Branch through the President and agencies enforces the law, and the Judicial Branch through the federal court system interprets the law.[148]

Congress unambiguously revised the Immigration and Nationality Act through the passage of the IIRIRA.[149] As a response to the Attorney General’s failure to address criminals within the immigration context, Congress enacted the IIRIRA to remove the Attorney General’s broad discretion in the immigration enforcement arena.[150] The Court has even said so as recently as 2019 in Nielsen v. Preap.[151]

Yet, the Court in United States v. Texas contradicts Nielsen and consequentially does not reinforce the separation-of-powers principles.[152] While Secretary Mayorkas and the Attorney General rightfully possess broad enforcement discretion, such discretion must have limits, especially when such discretion violates Congress’s clear and unambiguous language. The Court’s decision essentially permits any executive agency to ignore any laws, no matter the language within the statute.[153] Now, confusion will engulf the immigration sector, which is already submerged in confusion, instability, and danger.[154] Executive agencies will be able to abide by and ignore laws as they see fit.[155] Clearly, the Constitution does not establish three equal branches of government only when each branch sees fit, and the Court’s decision implicitly endorses such a result.[156]

IV. Potential Solution

Congress must remedy the precariousness in the separation-of-powers framework caused by United States v. Texas. The differing reasoning behind the majority, two concurrences, and dissent evidence such precariousness. While the majority in United States v. Texas provided four ambiguous scenarios where states may challenge an executive agency in the immigration context, it also pointed to one scenario where Congress can act.[157] Justice Kavanaugh stated that Congress could explicitly authorize suits against the Executive Branch through defining a clear set of plaintiffs who have suffered concrete harms from the Executive Branch’s failure to enforce the law or failure to prosecute individuals.[158] Likewise, Justice Kavanaugh explained that Congress’s potential authorization may be paired with specifically authorizing the “[j]udiciary to enter appropriate orders requiring additional arrests or prosecutions by the [e]xecutive [b]ranch.”[159] Therefore, Congress should revise § 1226(c) and § 1231(a)(2) by allowing states to file suits against the Executive Branch if the states have been injured from the Executive Branch’s failure to enforce the law. Notably, while a statutory definition of a class of plaintiffs may satisfy the redressability element of standing, it will not lower the injury-in-fact and traceability elements every plaintiff must meet. For example, if Texas failed to prove that the Secretary’s Guidelines imposed financial burdens upon them, then Texas would not have standing despite the suggested revisions. Stated another way, a state still must show that the Executive Branch’s underenforcement of the law imposed a traceable injury in fact upon the state. Jurisprudence indicates that satisfying these elements is anything but a guarantee.

Additionally, a congressional authorization of state standing would not automatically render any executive agency rules, guidelines, or regulations invalid. In United States v. Texas, the Court did not address the merits. Stated another way, the Court did not determine whether Secretary Mayorkas’s Guidelines violated § 1226(c), § 1231(a)(2), or various provisions of the APA.[161] Congress would be revising § 1226(c) and § 1231(a)(2) to solely allow states that are significantly impacted by the Executive Branch’s potential incompliance with the law to challenge the Executive Branch. After standing, courts are free to rule on the merits whichever way they deem necessary.


Immigration is a fundamental principle in the United States that must be revised to ensure individuals can come to the United States in a legal, fair, and safe manner. The current state of the United States-Mexico border is completely unacceptable. Nearly 1,000 individuals die each year attempting to cross into the country, and the illegal substances that are pouring into the country are killing men, women, and children at alarming rates.[162] United States v. Texas green lights the Department of Homeland Security to arbitrarily abide by and enforce laws as it sees fit, which in turn endangers immigrants and Americans alike. Congress must act to end this epidemic and allow states to challenge the Executive Branch in immigration, especially when the Executive Branch selectively chooses which laws to follow. The proposed congressional solution will only provide an avenue for negatively impacted states to challenge the Executive Branch, and courts would subsequently rule on the merits from there. If Congress adopts the proposed solution, states will have an opportunity to change the immigration system into a process that is safe and fair for all Americans and those who wish to enter this great country.

[1] Ronald Reagan, President of the United States, Speech at the Cold War Memorial in Fulton, Missouri (Nov. 19, 1990).

[2] Id.

[3] John F. Kennedy, A Nation of Immigrants 3 (Harper & Row revised and enlarged ed. 1964).

[4] The Honorable Kay James et al., An Agenda for American Immigration Reform, Heritage Found. (Feb. 20, 2019), [].

[5] Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009-546 (1996).

[6] The Honorable Kay James et al., supra note 4.

[7] US-Mexico Border World’s Deadliest Migration Land Route, Int’l Org. for Migration (Sept. 12, 2023), [].

[8] Drug Seizure Statistics FY2023, U.S. Customs & Border Prot., [] (last modified Sept. 22, 2023).

[9] Fentanyl: One Pill Kills, Tex. Health & Human Servs., [] (last visited Oct. 16, 2023).

[10] Fentanyl: Incapacitating Agent, Ctrs. for Disease Control &Prevention, [] (last updated May 12, 2011).

[11] DEA Administrator on Record Fentanyl Overdose Deaths, Get Smart About Drugs, [] (last visited Oct. 16, 2023).

[12] Sam Winstrom, Kenner mom arrested after toddler dies with Fentanyl in their system, WWLTV, [] (last updated Jan. 13, 2023, 5:39 PM).

[13] Max Matza, US child dies from fentanyl kept under nursery nap mat, BBC (Sept. 20, 2023), [] (finding that a child in the Bronx, New York, tragically passed away due to accidental illicit fentanyl exposure).

[14] The Fiscal Burden of Illegal Immigration On United States Taxpayers 2023, The Federation for American Immigration Reform (Mar. 8, 2023),; Robert Rector, Senior Research Fellow at the Heritage Foundation, Testimony before

The U.S. Senate Committee on the Budget (Sept. 13, 2023).

[15] The Fiscal Burden of Illegal Immigration On United States Taxpayers 2023, The Federation for American Immigration Reform (Mar. 8, 2023),

[16] Robert Rector, Senior Research Fellow at the Heritage Foundation, Testimony before the U.S. Senate Committee on the Budget (Sept. 13, 2023).

[17] See United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . . .”).

[18] U.S. Const. art. II, § 3 (“[The President] shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”).

[19] In 2003, the INS morphed into the U.S. Immigration and Customs Enforcement. Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135 (2002).

[20] United States v. Texas, 599 U.S. 670, 712–13 (2023) (Alito, J., dissenting); Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009, 3009–546; Nielsen v. Preap, 139 S. Ct. 954, 966 (2019) (stating that § 1226(c)’s “job is to subtract some of [the Attorney General’s] discretion when it comes to the arrest and release of criminal aliens.”).

[21] See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009, 3009–546.

[22] In pertinent part, 8 U.S.C. § 1226(c) states that

The Attorney General shall take into custody any alien who—

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,

when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

[23] Demore v. Kim, 538 U.S. 510, 513 (2003). While the term noncitizen is deemed to be less pejorative and is seemingly interchangeable with the term alien, it is paramount to understand the accurate definitions of both terms. Pursuant to 8 U.S.C. § 1408, a noncitizen national of the United States includes certain individuals who are born in American Samoa or the Swains Islands. Further, §1408 authorizes a small class of individuals from the Commonwealth of the Northern Mariana Islands to opt in for U.S. nationality without obtaining U.S. citizenship. Alternatively, under 8 U.S.C. § 1101, an alien is “any person not a citizen or national of the United States.” Thus, noncitizens and aliens are clearly distinguishable. Noncitizens lack U.S. citizenship but possess U.S. nationality, whereas aliens lack U.S. citizenship and U.S. nationality. Although this blog post uses the term noncitizen in lieu of the term alien to be respectful, it is important to highlight the divergence between the two terms and understand that the term alien is in fact not a derogatory term.

[24] 8 U.S.C. § 1226(c) (2023) (listing the offenses found in 8 U.S.C. § 1182(a)(2) and 8 U.S.C. § 1227(a)(2)(A)(ii), (A)(iii), (B), (C), and (D) as deportable offenses).

[25] The Fourth Circuit has defined moral turpitude as “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001).

[26] 8 U.S.C. § 1226(c) (2023) (listing the offenses found in 8 U.S.C. § 1182(a)(2) and 8 U.S.C. § 1227(a)(2)(A)(ii), (A)(iii), (B), (C), and (D) as deportable offenses).

[27] Nielsen v. Preap, 139 S. Ct. 954, 966 (2019).

[28] 8 U.S.C. § 1231(a)(2) states that “[d]uring the removal period, the Attorney General shall detain the alien. Under no circumstance during the removal period shall the Attorney General release an alien who has been found inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this title or deportable under section 1227(a)(2) or 1227(a)(4)(B) of this title.”

[29] Zadvydas v. Davis, 533 U.S. 678, 678–702 (2001).

[30] Id. (majority opinion).

[31] Id. at 701 (majority opinion).

[32] Id. at 711 (Scalia, J., dissenting)(“[t]he result of the Court’s rule is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community.”)

[33] Id. at 678–702 (majority opinion).

[34] United States v. Texas, 599 U.S. 670, 713–16 (2023) (Alito, J., dissenting).

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

[42] Id. Raines v. Byrd, 521 U.S. 811, 818 (1997).

[43] Raines, 521 U.S. at 818.

[44] Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).

[45] Id. at 615.

[46] Id.

[47] Id. at 615–16.

[48] Id. at 617–18.

[49] Id. at 619.

[50] Id.

[51] United States v. Texas, 599 U.S. 670, 690 (2023) (Gorsuch, J., concurring).

[52] 5 U.S.C. § 701(a)(2) (2023) states that Chapter 7 of Title 5 “applies, according to the provisions thereof, except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.”

[53] Heckler v. Chaney, 470 U.S. 821, 832 (1985).

[54] Id. at 832–33.

[55] Texas, 599 U.S. at 708 (Barrett, J., concurring).

[56] 5 U.S.C. § 706(a)(2).

[57] 8 U.S.C. § 1252(f)(1) (2023) states that:

[r]egardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 . . . .

[58] Texas, 599 U.S. at 714 (Alito, J., dissenting).

[59] ICE is an arm of the DHS. Id. at 714–15.

[60] Id. (Alito, J., dissenting).

[61] Secretary Mayorkas succeeded acting DHS Secretary Pekoske in February 2021. Nicole Sganga and Camilo Montoya-Galvez, Senate confirms Mayorkas as secretary of homeland security over GOP objections, CBS News, updated Feb. 2, 2021).

[62] Id.

[63] Id.

[64] Id.

[65] Id. at 715. (Alito, J., dissenting).

[66] Id. at 674 (majority opinion).

[67] Id. at 716 (Alito, J., dissenting).

[68] Id.

[69] Id. at 716–17 (Alito, J., dissenting).

[70] Id.

[71] Id. at 716 (Alito, J., dissenting).

[72] Id.

[73] Id. at 717 (Alito, J., dissenting). 5 U.S.C. § 706(a)(2) (2023): “[t]he reviewing court shall—(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”

[74] Texas, 599 U.S. at 717 (Alito, J., dissenting).

[75] Id.

[76] Texas v. United States, 40 F.4th 205, 216–17 (5th Cir. 2022).

[77] Texas, 599 U.S. at 674 (majority opinion).

[78] Id. at 675

[79] Id. at 674

[80] Id. at 677 (majority opinion).

[81] Id.

[82] Id. at 678–79 (majority opinion).

[83] Id. at 679–80 (majority opinion).

[84] Id.

[85] Id. at 681–83 (majority opinion).

[86] Id.

[87] Id.

[88] Id.

[89] Id.

[90] Id.

[91] Id.

[92] Id. at 686 (majority opinion).

[93] Id. at 686 (Gorsuch, J., concurring).

[94] Id.

[95] Id. at 687 (Gorsuch, J., concurring).

[96] Id. at 688–89 (Gorsuch, J., concurring).

[97] Id. at 689 (Gorsuch, J., concurring).

[98] Id.

[99] Id. at 690 (Gorsuch, J., concurring) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

[100] Id.

[101] Id.

[102] Id.

[103] Id. (quoting Garland v. Aleman Gonzales, 142 S. Ct. 2057, 2065 (2012)).

[104] Id. at 690–91 (Gorsuch, J., concurring).

[105] Id. at 691 (Gorsuch, J., concurring).

[106] Id.

[107] Id. See Haaland v. Brackeen, 143 S. Ct. 1609, 1640 (2023) (stating that “[i]t is a federal court’s judgment, not its opinion, that remedies an injury; thus it is the judgment, not the opinion, that demonstrates redressability.”).

[108] Texas, 599 U.S. at 692 (Gorsuch, J., concurring).

[109] Id. at 693 (Gorsuch, J., concurring).

[110] Id. (quoting Doran v. Salem Inn, Inc., 422 U. S. 922, 931 (1975)).

[111] Id. at 693–94 (Gorsuch, J., concurring) (quoting Rhode Island v. Massachusetts, 12 Pet. 657, 718 (1838)).

[112] Id. at 694 (Gorsuch, J., concurring) (quoting Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 600–01 (2020)).

[113] Id. at 695 (Gorsuch, J., concurring).

[114] Id.

[115] Id. at 695–704 (Gorsuch, J., concurring).

[116] Id. at 704 (Barrett, J., concurring).

[117] Id. at 705 (Barrett, J., concurring).

[118] Id.

[119] Id. at 706 (Barrett, J., concurring).

[120] Id.

[121] Id. at 707 (Barrett, J., concurring).

[122] Id. at 708 (Barrett, J., concurring).

[123] Id. at 707 (Barrett, J., concurring) (citing Castle Rock v. Gonzales, 545 U.S. 748, 761 (2005)).

[124] Id. (citing Castle Rock, 545 U.S. at 750–51).

[125] Id. at 708–09 (Barrett, J., concurring).

[126] Id. at 709 (Barrett, J., concurring).

[127] Id. (Alito, J., dissenting).

[128] Id. at 713 (Alito, J., dissenting).

[129] Id. See Johnson v. Gusman Chavez, 141 S. Ct. 2271, 2780–‍81 (2021) (finding that “shall” means “must” under § 1226 and § 1231); Nielsen v. Preap, 139 S. Ct. 954, 966–67 (2019) (determining that under § 1226(c), criminal noncitizens “must” be arrested once released from state custody).

[130] Texas, 599 U.S. at 713 (Alito, J., dissenting); Biden v. Texas, 142 S. Ct. 2528, 2538–39 (2022) (illustrating that the government took the position that § 1252(f)(1) required that no court other than the Supreme Court “shall” have the ability to issue injunctions for issues arising under the IIRIRA and subsequently asserted that a district court incorrectly granted an injunction pursuant to § 1252(f)(1)).

[131] Texas, 599 U.S. at 713 (Alito, J., dissenting).

[132] Id. at 718 (Alito, J., dissenting).

[133] Id. at 720–21 (Alito, J., dissenting) (quoting Franklin v. Massachusetts, 505 U.S. 788, 803 (1992)).

[134] Id. at 722 (Alito, J., dissenting).

[135] Id. See Fed. Election Comm’n v. Akins, 524 U.S. 11, 19 (1998).

[136] Texas, 599 U.S. at 722–23 (Alito, J., dissenting); Massachusetts v. EPA, 549 U.S. 497 (2007).

[137] Texas, 599 U.S. at 722–23 (Alito, J., dissenting); Massachusetts, 549 U.S. at 519–20.

[138] Texas, 599 U.S. at 723 (Alito, J., dissenting); Massachusetts, 549 U.S. at 519–20.

[139] Texas, 599 U.S. at 722 (Alito, J., dissenting).

[140] Id. at 726 (Alito, J., dissenting).

[141] Id. at 728 (Alito, J., dissenting); Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016).

[142] Texas, 599 U.S. at 728 (Alito, J., dissenting); Spokeo, 578 U.S. at 341.

[143] Texas, 599 U.S. at 728–29 (Alito, J., dissenting).

[144] Id.

[145] Id. at 730–36 (Alito, J., dissenting); Kendall v. U.S. ex rel. Stokes, 37 U.S. 524 (1838) (rejecting the President’s assertion that he could disregard his statutory duty to pay specific sums to government contractors and determining that the President may not ignore congressional mandates under the separation-of-powers framework); Off. of Personnel Mgmt. v. Richmond, 496 U.S. 414, 435 (1939) (White, J., concurring) (finding that the “Executive Branch does not have the [power to dispense with congressionally imposed statutory mandates] on its own” and therefore “should not be granted such a power by judicial authorization.”).

[146] See Texas, 599 U.S. at 735 (Alito, J., dissenting).

[147] Separation of Powers in Action – U.S. v. Alvarez, U.S. Cts., [] (last visited Oct. 1, 2023).

[148] Id.

[149] See Texas, 599 U.S. at 713 (Alito, J., dissenting).

[150] Id..

[151] Nielsen v. Preap, 139 S. Ct. 954, 966 (2019).

[152] See Texas, 599 U.S. at 713 (Alito, J., dissenting).

[153] Id. at 735 (Alito, J., dissenting); see Nielsen, 139 S. Ct. at 966–67 (determining that under § 1226(c), criminal noncitizens “must” be arrested once released from state custody).

[154] See Texas, 599 U.S. at 735 (Alito, J., dissenting).

[155] Id.

[156] Id. at 735 (Alito, J., dissenting); see Separation of Powers in Action, supra note 147.

[157] Texas, 599 U.S. at 682 (majority opinion).

[158] Id.

[159] Id.

[160] Texas, 599 U.S. at 686 (majority opinion).

[161] Id.

[162] The Honorable Kay James et al., supra note 4; US-Mexico Border World’s Deadliest Migration Land Route, supra note 7; Drug Seizure Statistics FY2023, supra note 8.