The Supreme Court Declares DHS Can Ignore Congressional Enforcement Mandates

By George Fishman on June 29, 2023


  • In U.S. v. Texas, the Supreme Court issued a 5-4 decision throwing out Texas and Louisiana’s challenge to DHS Secretary Mayorkas’ 2021 “Guidelines for the Enforcement of Civil Immigration Law”, in which Mayorkas told DHS immigration officers in no uncertain terms to ignore congressional mandates regarding the arrest and detention of criminal aliens and aliens ordered removed.
  • The prevailing coalition of Justices Kavanaugh, Roberts, and the three Obama/Biden appointed justices ruled that the two states didn’t have “standing” to bring a legal challenge in the first place, even assuming that the Mayorkas Guidelines were unlawful. In fact, the clear import of the coalition’s decision is that no one will be able to establish the standing necessary to challenge an administration’s flouting of congressional mandates regarding the arrest, prosecution, and likely the detention of persons in the immigration and criminal justice contexts. The coalition has dealt Congress’s plenary power over immigration a severe blow.
  • Even worse than the coalition’s decision itself are its implications for the future. The coalition has left open the possibility/implied/insinuated that:
    • even if Congress had been (in the coalition’s mind) crystal clear that it was imposing an arrest mandate, the states still might not have been able to establish standing to challenge the administration’s open disregard for the mandate,
    • it may be unconstitutional for Congress to impose arrest/prosecution mandates in the first place, and
    • last but not least, it is possible that no one will be able to establish the standing necessary to challenge a president’s violation of his constitutional obligation under Article II to “take care that the Laws be faithfully executed”.

As Justice Alito proclaimed in his fiery lone dissent:

[T]he majority’s understanding of the “executive Power” seems to be that a President can disobey statutory commands unless Congress, by flexing its muscles, forces capitulation. That is not the Constitution’s conception ... . [It] instead, requires a President to “take Care that the Laws be faithfully executed.”


The majority’s conception of Presidential authority smacks of the powers that English monarchs claimed prior to the “Glorious Revolution” of 1688, namely, the power to suspend the operation of existing statutes, and to grant dispensations from compliance with statutes. After James II was deposed, that changed.

I guess the Court has declared that King James is back.


On Friday, the Supreme Court’s decision in U.S. v. Texas came down. You know it is going to be a bumpy ride when the Court issues a 5-4 decision with a majority consisting of Justices Brett Kavanaugh, John Roberts, Jr., Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. On the other hand, conservative Justices Neil Gorsuch, Clarence Thomas, and Amy Coney Barrett concurred in the decision — only Justice Samuel Alito, Jr., dissented. So how bad could it be? Well, as George Thorogood once said, it was bad to the bone — b-b-b-b-bad.

The majority decision hit like a ton of bricks (and not the kind you’d use to make a wall). It isn’t just that the Court threw out Texas and Louisiana’s challenge to the Biden administration’s immigration (non)enforcement guidelines because the states were found to lack standing to sue. That was bad enough. Rather, what was bad to the bone were the reasons the majority gave for its decision and the intimations the majority gave that this may only be the opening move in a long-term campaign to emasculate Congress’ plenary power over immigration and insulate the presidency from long-accepted checks and balances. The concurring justices took great pains to distance themselves from these troubling implications. And the dissent by Justice Alito was such a brutal (and righteous) takedown of the majority opinion that I can’t believe Justices Kavanaugh and Alito are on speaking terms.

Congress’s Decision to Mandate the Detention of Certain Criminal Aliens

As the Supreme Court explained in its 2003 Demore v. Kim decision:

Section [236(c) of the Immigration and Nationality Act (INA)] mandates detention during removal proceedings for a limited class of deportable aliens —including those convicted of an aggravated felony. Congress adopted this provision against a backdrop of wholesale failure by the [then Immigration and Naturalization Service] INS to deal with increasing rates of criminal activity by aliens.

Section 236(c) provides:

(1) Custody

The [secretary of Homeland Security] shall take into custody any alien who —

(A) is inadmissible by reason of having committed any [criminal] offense covered in section 212(a)(2) [of the INA],

(B) is deportable by reason of having committed any [criminal] offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),

(C) is deportable under section 237(a)(2)(A)(i) … on the basis of a[ criminal] offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 212(a)(3)(B) ... or deportable under section 237(a)(4)(B),

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 [criminal] offense. [Emphasis added throughout.]

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.

(2) Release

The [secretary] may release [such] an alien ... only if the [secretary] decides ... that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the [secretary] that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.

And § 241(a) of the INA provides that:

  • [W]hen an alien is ordered removed, the [secretary of Homeland Security] shall remove the alien from the United States within a period of 90 days (... the “removal period”).

  • During the removal period, the [secretary] shall detain the alien. Under no circumstance during the removal period shall the [secretary] release an alien who has been found inadmissible ... or deportable under [the criminal or terrorist grounds]. [Emphasis added.]

Congress passed these provisions as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The House Judiciary Committee report for H.R. 2202 (the House version of what was to be enacted as IIRIRA) explained that “A chief reason why many deportable aliens are not removed from the United States is the inability of the INS to detain such aliens through the course of their deportation proceedings.” On March 1, 1996, weeks before H.R. 2202 came to the House floor, the Department of Justice’s Office of the Inspector General (OIG) reported that:

  • The INS removed most detained aliens promptly after final orders were issued. In our sample, we found that INS successfully deported almost 94 percent of the detained aliens, with an average deportation time of 16 days.

  • INS was successful in deporting only about 11 percent of nondetained aliens after final orders had been issued.

  • Based on the results of our sample ... it is clear that most of the aliens actually deported were detained, and few of the nondetained aliens were deported. Detention is key to effective deportation.

In Demore, the Supreme Court itself cited the OIG and Judiciary Committee reports for the proposition that Congress “had before it evidence that one of the major causes of the INS' failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings”.

The Court in Demore concluded that:

  • The INS[ had a] near-total inability to remove deportable criminal aliens ... . [D]eportable criminal aliens who remained in the United States often committed more crimes before being removed. One ... study showed that, after criminal aliens were identified as deportable, 77% were arrested at least once more and 45% — nearly half — were arrested multiple times before their deportation proceedings even began.

  • The Attorney General at the time had broad discretion to conduct individualized bond hearings and to release criminal aliens from custody during their removal proceedings when those aliens were determined not to present an excessive flight risk or threat to society.

  • [A] study strongly supports Congress' concern that, even with individualized screening, releasing deportable criminal aliens on bond would lead to an unacceptable rate of flight.

  • [T]his Court has recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process. As we said more than a century ago, deportation proceedings “would be vain if those accused could not be held in custody pending the inquiry into their true character.”

  • Congress had before it evidence suggesting that permitting discretionary release of aliens pending their removal hearings would lead to large numbers of deportable criminal aliens skipping their hearings and remaining at large in the United States unlawfully.

The Court ruled that:

Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that [they] be detained for the brief period necessary for their removal proceedings.

The Mayorkas “Guidelines for the Enforcement of Civil Immigration Law”

DHS Secretary Alejandro Mayorkas issued his “Guidelines for the Enforcement of Civil Immigration Law” on September 30, 2021. As to criminal aliens, the Guidelines provide that:

A noncitizen who poses a current threat to public safety, typically because of serious criminal conduct, is a priority for apprehension and removal.

Whether a noncitizen poses a current threat to public safety is not to be determined according to bright lines or categories. It instead requires an assessment of the individual and the totality of the facts and circumstances. [Emphasis added throughout.]

There can be aggravating factors that militate in favor of enforcement action. Such factors can include, for example:

  • the gravity of the offense of conviction and the sentence imposed;
  • the nature and degree of harm caused by the criminal offense;
  • the sophistication of the criminal offense;
  • use or threatened use of a firearm or dangerous weapon;
  • a serious prior criminal record.

Conversely, there can be mitigating factors that militate in favor of declining enforcement action. Such factors can include, for example:

  • advanced or tender age;
  • lengthy presence in the United States;
  • a mental condition that may have contributed to the criminal conduct, or a physical or mental condition requiring care or treatment;
  • status as a victim of crime or victim, witness, or party in legal proceedings;
  • the impact of removal on family in the United States, such as loss of provider or caregiver;
  • whether the noncitizen may be eligible for humanitarian protection or other immigration relief;
  • military or other public service of the noncitizen or their immediate family;
  • time since an offense and evidence of rehabilitation;
  • conviction was vacated or expunged.

The above examples of aggravating and mitigating factors are not exhaustive. The circumstances under which an offense was committed could, for example, be an aggravating or mitigating factor depending on the facts ... . The specific facts of a case should be determinative.

[O]ur personnel must evaluate the individual and the totality of the facts and circumstances and exercise their judgment accordingly. The overriding question is whether the noncitizen poses a current threat to public safety.


The decision how to exercise prosecutorial discretion can be complicated and requires investigative work. Our personnel should not rely on the fact of conviction or the result of a database search alone. Rather, our personnel should, to the fullest extent possible, obtain and review the entire criminal and administrative record and other investigative information to learn of the totality of the facts and circumstances of the conduct at issue. The gravity of an apprehension and removal on a noncitizen's life, and potentially the life of family members and the community, warrants the dedication of investigative and evaluative effort.

Well, it is great to know that DHS may decline to arrest or detain criminal aliens in defiance of Congress’ mandate because they have mental conditions that contributed to their criminal conduct or because they are good providers for their families. As Justice Alito wrote in his dissenting opinion, the Guidelines “did not simply permit deviations from the statutory mandates; it flatly contradicted those mandates by stating that qualifying convictions were insufficient grounds for initiating arrest, detention, and removal”.

U.S. v. Texas

Texas and Louisiana sued the federal government over the Guidelines for dispensing with IIRIRA’s mandate that DHS take into custody and detain criminal aliens and detain aliens ordered removed. As Justice Kavanaugh’s majority opinion puts it: “According to [the States], the arrest policy spelled out in [DHS’s] Guidelines does not comply with the statutory arrest mandates in § [236](c) and § [241](a)(2). The States want the Federal Judiciary to order the Department to alter its arrest policy so that the Department arrests more noncitizens.” (Emphasis in original.)

The opinion states that: “This case concerns only arrest and prosecution policies, and we therefore address only that issue. As to detention, the Solicitor General has represented that the Department’s Guidelines do not affect continued detention of noncitizens already in federal custody.” But as Justice Alito argued in dissent:

The majority states that “policies governing the continued detention of noncitizens who have already been arrested arguably might raise a different standing question than arrest or prosecution policies.”... The majority provides no explanation for this (noncommittal) distinction, and in any event, as the majority acknowledges, the States in this case challenged noncompliance with the § [241](a)(2) detention mandate in addition to the § [236](c) arrest requirement . ... [A]s JUSTICE BARRETT notes, the Government argued that when it chooses not to remove someone under the Final Memorandum’s guidance, its mandatory detention obligation ends — meaning it is asserting discretion over continued detention. [Emphasis added by Justice Alito.]

In any event, arrest policy cannot be divided from detention policy in this case. ... As best I can tell, the majority’s distinction between arrest and detention is made solely to avoid the obvious inference that our decision last Term in Biden v. Texas should have dismissed the case for lack of standing, without analyzing “the Government’s detention obligations.”

The Kavanaugh Opinion

The majority opinion supposedly never got to the merits of the dispute, but found that the states didn’t even have standing to sue:

  • Article III of the Constitution confines the federal judicial power to “Cases” and “Controversies[]”... [which] can exist only if a plaintiff has standing to sue — a bedrock constitutional requirement.

  • 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.”

  • The threshold question is whether the States have standing under Article III to maintain this suit. The answer is no.

    To establish standing, a plaintiff must show an injury in fact caused by the defendant and redressable by a court order ... . [T]his Court has “also stressed that the alleged injury must be legally and judicially cognizable.”... That “requires, among other things,” that the “dispute is traditionally thought to be capable of resolution through the judicial process” — in other words, that the asserted injury is traditionally redressable in federal court.

No standing, no ability to mount a challenge, even if the administration’s action at issue is blatantly unlawful. As Justice Kavanaugh stated, “the question of reviewability is different from the question of legality. We take no position on whether the Executive Branch here is complying with its legal obligations.”

The Court concluded 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.

  • [T]his Court’s precedents and longstanding historical practice establish that the States’ suit here is not the kind redressable by a federal court.

Justice Kavanaugh’s opinion made crystal clear that there is absolutely no judicial recourse when the executive branch refuses to abide by Congress’ arrest and prosecution mandates. Let me repeat that: there is no judicial recourse available to anyone, even the states. The only crumbs that Justice Kavanaugh throws are that:

[O]ther forums remain open for examining the Executive Branch’s arrest policies. For example, Congress possesses an array of tools to analyze and influence those policies — oversight, appropriations, the legislative process, and Senate confirmations, to name a few ... . And through elections, American voters can both influence Executive Branch policies and hold elected officials to account for enforcement decisions.

OK, so Congress can withhold funds from the offending law enforcement agency (defund ICE!) or bring impeachment proceedings against President Biden or Secretary Mayorkas. And in a year and a half, voters are free to express their anger at the ballot box. Thanks, Justice Kavanaugh!

As Justice Alito wrote in dissent:

  • [The majority] holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’s power to employ the weapons of inter-branch warfare.

  • The Secretary of Homeland Security ... has instructed his agents to disobey this legislative command and instead follow a different policy that is more to his liking. And the Court now says that no party injured by this policy is allowed to challenge it in court.

The Majority’s Rationale

Justice Kavanaugh’s primary rationale for his conclusion as to the states’ lack of standing to sue is that:

[T]his Court has previously ruled that a plaintiff lacks standing to bring such a suit.

The leading precedent is [the Supreme Court’s 1973 decision in] Linda R. S. v. Richard D. ... The plaintiff ... contested a State’s policy of declining to prosecute certain child-support violations. This Court decided that the plaintiff lacked standing to challenge the State’s policy, reasoning that in “American jurisprudence at least,” a party “lacks a judicially cognizable interest in the prosecution ... of another.” ... The Court concluded that “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.”


The Court’s Article III holding in Linda R. S. applies to challenges to the Executive Branch’s exercise of enforcement discretion over whether to arrest or prosecute. [Emphasis added.]

Justice Kavanaugh’s reliance on Linda R.S. falls apart on closer analysis. First, as Justice Barrett pointed out in her concurrence, the Supreme Court’s language in Linda R.S. was dicta, not essential to the holding of the case, and therefore not binding precedent on any other federal court:

  • [I]f the plaintiff “were granted the requested relief, it would result only in the jailing of the child’s father.” ... Needless to say, the prospect that prosecution would lead to child-support payments could, “at best, be termed only speculative.”... For this reason, we held that the plaintiff lacked standing. Only then, after resolving the standing question on redressability grounds, did we add that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” ... In short, we denied standing ... because it was speculative that the plaintiff ’s requested relief would redress her asserted injury, not because she failed to allege one.

  • I see little reason to seize on the case’s bonus discussion of whether “a private citizen” has a “judicially cognizable interest in the prosecution or nonprosecution of another”.

Second, the states never even sought to require that DHS “prosecute” — or in the civil immigration enforcement context, “remove” — anyone. As Justice Barrett also pointed out, Texas does not even involve a prosecution:

Unlike the plaintiff in Linda R. S., the States do not seek the prosecution of any particular individual — or even any particular class of individuals. ... In fact, they disclaim any interest in the prosecution or nonprosecution of noncitizens.


[T]he States do not dispute that the Government can prosecute whomever it wants. They seek, instead, the temporary detention of certain noncitizens during elective removal proceedings of uncertain duration.

Third, a state is not a private citizen! As Justice Barrett stated in her concurrence, “the States’ desire to remove the Guidelines’ influence on the Government’s admittedly broad discretion to enforce immigration law meaningfully differs from the Linda R. S. plaintiff’s desire to channel prosecutorial discretion toward a particular target.” Further, a state’s burden to demonstrate standing is not necessarily the same as a private citizen’s! The Supreme Court concluded in 2007 in Massachusetts v. Environmental Protection Agency that:

  • Well before the creation of the modern administrative state, we recognized that States are not normal litigants for the purposes of invoking federal jurisdiction. As Justice Holmes explained in [a 1907 case] in which Georgia sought to protect its citizens from air pollution originating outside its borders:

    "The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here ... . This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens.”

  • When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.

  • Congress has moreover recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious ... . Given that procedural right and Massachusetts' stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis. [Emphasis added.]

Latching on to this decision, Justice Alito wrote in dissent that:

  • In Massachusetts v. EPA, the Court suggested that allowing Massachusetts to protect its sovereign interests through litigation compensated for its inability to protect those interests by the means that would have been available had it not entered the Union. In the present case, Texas’s entry into the Union stripped it of the power that it undoubtedly enjoyed as a sovereign nation to police its borders and regulate the entry of aliens. The Constitution and federal immigration laws have taken away most of that power, but the statutory provisions at issue in this case afford the State at least some protection — in particular by preventing the State and its residents from bearing the costs, financial and non-financial, inflicted by the release of certain dangerous criminal aliens. Our law on standing should not deprive the State of even that modest protection. We should not treat Texas less favorably than Massachusetts. And even if we do not view Texas’s standing argument with any “special solicitude,” we should at least refrain from treating it with special hostility by failing to apply our standard test for Article III standing.

  • [I]t’s hard not to wonder why the Court says nothing about “special solicitude” in this case.

Justice Alito concluded that:

If States are also barred from bringing suit even when they satisfy our established test for Article III standing, they are powerless to defend their vital interests. If a President fails or refuses to enforce the immigration laws, the States must simply bear the consequences. That interpretation of executive authority and Article III’s case or controversy requirement is deeply and dangerously flawed.

Three Strikes and Congress’ Power Over Immigration Enforcement Is Out

All this was bad enough. As the Passover song “Dayenu” goes, “Had [God] brought us out of Egypt, it would have been enough. ... Had he given us the Torah, it would have been enough.” Conversely, “Had Kavanaugh denied the States standing, it would have been too much. Had Kavanaugh denied anyone and everyone the ability to challenge Secretary Mayorkas’ unlawful flouting of congressional enforcement mandates, it would have been too much.” But the Kavanaugh opinion hinted at an even more radical emasculation of Congress’ long accepted plenary power over immigration.

Strike One. Justice Kavanaugh’s opinion insinuated that even if Congress was crystal clear (in his mind) that it was imposing an arrest mandate, this still might not be sufficient to convey standing to the states. It states that “We do not take a position on whether such a statute would suffice for Article III [standing] purposes; our only point is that no such statute is present in this case.”

In fact, such as statute was present in Texas. While the executive branch generally possesses the inherent power of prosecutorial discretion, the legislature can mandate enforcement to its liking as long as the legislature is sufficiently clear that it is implementing a mandate. In its 2005 decision in Castle Rock v. Gonzales, the Supreme Court concluded that “a true mandate of police action would require some stronger indication from the Colorado Legislature than ‘shall use every reasonable means to enforce a restraining order’ (or even ‘shall arrest ... or ... seek a warrant’).” The Court in Castle Rock reasoned that:

A well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.

“In each and every state there are long-standing statutes that, by their terms, seem to preclude nonenforcement by the police ... . However, for a number of reasons, including their legislative history, insufficient resources, and sheer physical impossibility, it has been recognized that such statutes cannot be interpreted literally.[”] [quoting the ABA Standards for Criminal Justice]

Relying on Castle Rock, Justice Kavanaugh first concluded that §§ 236(c) and 241(a) contain no mandate since “For an arrest mandate to be enforceable in federal court, we would need at least a ‘stronger indication’ from Congress that judicial review of enforcement discretion is appropriate — for example, specific authorization for particular plaintiffs to sue and for federal courts to order more arrests or prosecutions by the Executive.”

Justice Kavanaugh’s conclusion is exceedingly curious because on a number of recent occasions, the Supreme Court has indeed found § 236(c) to be mandatory. Most notably, in 2018, the Court ruled in Jennings vs. Rodriguez (in an opinion joined by Justice Roberts) that:

  • § [236(c)] mandates detention “pending a decision on whether the alien is to be removed from the United States,” ... and it expressly prohibits release from that detention except for narrow, witness-protection purposes. [Emphasis added throughout.]

  • We hold that § [236(c)] mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings “only if” the alien is released for witness-protection purposes.

The Court had also stated in Demore, in upholding the constitutionality of mandatory detention under § 236(c), that the section “mandates detention during removal proceedings for a limited class of deportable aliens — including those convicted of an aggravated felony." (Emphasis added.) As Justice Alito noted in Texas, “All of our recent decisions interpreting these provisions confirm that, for covered aliens, shall means shall; it does not mean ‘may.’”

And, as I have said before, Congress specifically provided for a limited waiver of § 236(c)’s mandatory detention requirement. IIRIRA provided that:

If the Attorney General, not later than 10 days after the date of the enactment of this Act, notifies in writing the Committees on the Judiciary of the House of Representatives and the Senate that there is insufficient detention space and [INS] personnel available to carry out section 236(c) ... the [transition period custody rules] shall be in effect for a 1-year period beginning on the date of such notification, instead of such section. ... The Attorney General may extend such 1-year period for an additional year. ... After the end of such 1-year or 2-year periods, [§ 236(c)’s detention mandate] shall apply.

The Supreme Court itself concluded in its 2019 decision in Nielsen v. Preap that “The transition rules delayed the onset of the Secretary’s obligation to begin making arrests as soon as covered aliens were released from criminal custody ... . [H]ad the transition rules not been adopted, the Secretary’s failure to make an arrest immediately upon a covered alien’s release would not have exempted the alien from mandatory detention under § [236(c)].” (Emphasis added.)

Why would there have been any need to set forth a process to suspend the mandate if it wasn’t in fact a mandate? As Justice Alito reasoned “If the Executive had possessed the discretion to decline to enforce the new mandates in light of ‘resource constraints,’ those transition rules would have been entirely ‘superfluous.’”

Strike Two. Justice Kavanaugh next implied that, even apart from questions of standing, it might be unconstitutional for Congress to mandate that the executive branch carry out arrests and prosecutions. He warned in a footnote that “As the Solicitor General noted, those kinds of statutes, by infringing on the Executive’s enforcement discretion, could also raise Article II issues,” meaning that a congressional mandate could impinge on the constitutional power of the presidency under Article II. His opinion further stated that:

[L]awsuits alleging that the Executive Branch has made an insufficient number of arrests or brought an insufficient number of prosecutions run up against the Executive’s Article II authority to enforce federal law. Article II of the Constitution assigns the “executive Power” to the President. ... Under Article II, the Executive Branch possesses authority to decide “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.”

As Justice Alito responded:

[I]t is hard to see why the presence or absence of a statute authorizing suit has a bearing on the question whether the court has Article III jurisdiction as opposed to the question whether the plaintiff has a cause of action. In the end, however, none of this may matter because the majority suggests that such a statute might be unconstitutional.

Strike Three. Finally, Justice Kavanaugh indicated that it may be that no one would have standing to mount a challenge to a president’s violation of his obligation under Article II of the Constitution to “take care that the Laws be faithfully executed”. His opinion stated that:

[T]he standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions”... . [A]n extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing. But the States have not advanced a Heckler[v. Chaney]-style “abdication” argument in this case or argued that the Executive has entirely ceased enforcing the relevant statutes. Therefore, we do not analyze the standing ramifications of such a hypothetical scenario. [Emphasis added.]

But as Justice Alito asked in dissent, “Is that true, though? The States have pleaded a claim under the Take Care Clause. ... Is that not an abdication argument? Did they fail to plead it properly? Or is the Court simply ignoring it?”

Justice Alito further wrote that:

  • At [oral] argument, the Solicitor General was asked whether it is the position of the United States that the Constitution does not allow any party to challenge a President’s decision not to enforce laws he does not like. What would happen, the Solicitor General was asked, if a President chose not to enforce the environmental laws or the labor laws? Would the Constitution bar an injured party from bringing suit? She responded:

    “That’s correct under this Court’s precedent, but the framers intended political checks in that circumstance. You know, if — if an administration did something that extreme and said we’re just not going to enforce the law at all, then the President would be held to account by the voters, and Congress has tools at its disposal as well.”


    Thus, according to the [Biden administration], even if a party clearly meets our [longstanding] test for Article III standing, the Constitution bars that party from challenging a President’s decision not to enforce the law.

    The Court — at least for now — does not fully embrace this radical theory and instead holds only that, with some small and equivocal limitations ... no party may challenge the Executive’s “arrest and prosecution policies.”... But the Court provides no principled explanation for drawing the line at this point.

  • [T]he majority’s understanding of the “executive Power” seems to be that a President can disobey statutory commands unless Congress, by flexing its muscles, forces capitulation. That is not the Constitution’s conception of “the executive Power.”... The Constitution, instead, requires a President to “take Care that the Laws be faithfully executed.”... [Emphasis added by Justice Alito.]

    Neither the Solicitor General nor the majority has cited any support for the proposition that a President has the power to disobey statutes that require him to take enforcement actions, and there is strong historical evidence to the contrary.

Whither Biden v. Texas?

In another perplexing moment, Justice Kavanaugh noted that:

[I]n 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.

Wait one New York minute! As Justice Alito responded in exasperation:

Just last Term in Biden v. Texas [the Supreme Court’s decision regarding the Biden administration’s attempt to terminate the Migrant Protection Protocols] two States argued that their spending on the issuance of driver’s licenses and the provision of healthcare for illegal immigrants sufficed to establish Article III standing and thus enabled them to sue to compel enforcement of a detain-or-return mandate. ... The Court of Appeals held that the States had standing ... and the majority in this Court, despite extended engagement with other jurisdictional questions, never hinted that Article III precluded the States’ suit.


If the new rule adopted by the Court in this case is sound, these decisions and others like them were all just wasted ink. I understand that what we have called “‘drive-by jurisdictional rulings’” are not precedents ... but the Court should not use a practice of selective silence to accept or reject prominently presented standing arguments on inconsistent grounds.

Kavanaugh’s Osmosis

Justice Kavanaugh’s opinion imported rulings and doctrines having nothing to do with standing jurisprudence and turned them into standing doctrines, often without even mentioning this magical transmutation. As Justice Barrett wrote in her concurring opinion:

  • Castle Rock is not a case about Article III standing. ... I see no reason to opine on Castle Rock’s application here, especially given that the parties (correctly) treat Castle Rock as relevant to the merits of their statutory claims rather than to the States’ standing to bring them.

  • While it is possible that Article II imposes justiciability limits on federal courts, it is not clear to me why any such limit should be expressed through Article III’s definition of a cognizable injury. [T]he Court works the same magic on the Take Care Clause that it does on Castle Rock: It takes an issue that entered the case on the merits and transforms it into one about standing.

  • Heckler was not about standing. It addressed a different question: “the extent to which a decision of an administrative agency to exercise its ‘discretion’ not to undertake certain enforcement actions is subject to judicial review under the Administrative Procedure Act.”

The majority’s turning of lead into gold was more than just sloppy or slippery. It has profound consequences for the separation of powers and Congress’ plenary power over immigration. Standing is a constitutional requirement, so unlike a ruling on the merits, the transference of these doctrines could result in the denial of Congress’s fundamental ability to legislate. As Justice Barrett warned, “elevating it to the status of a constitutional rule would transform it from a case about statutory provisions (that Congress is free to amend) to one about a constitutional principle (that lies beyond Congress’s domain).”

The Concurrences and Redressability

Finally, what about the concurrences by Justices Gorsuch and Barrett, finding that the states lacked standing based on the lack of redressability? As Justice Gorsuch put it:

The Guidelines merely advise federal officials about how to exercise their prosecutorial discretion when it comes to deciding which aliens to prioritize for arrest and removal. A judicial decree rendering the Guidelines a nullity does nothing to change the fact that federal officials possess the same underlying prosecutorial discretion. Nor does such a decree require federal officials to change how they exercise that discretion in the Guidelines’ absence.

It is true that the Guidelines were promoted simply as guidelines, not mandates on DHS personnel: “The civil immigration enforcement guidance does not compel an action to be taken or not taken. Instead, the guidance leaves the exercise of prosecutorial discretion to the judgment of our personnel.” Yet, the Guidelines then state immediately following that:

  • To ensure the quality and integrity of our civil immigration enforcement actions, and to achieve consistency in the application of our judgments, the following measures are to be taken before the effective date of this guidance. ... [Emphasis added throughout.]

  • Extensive training materials and a continuous training program should be put in place to ensure the successful application of this guidance.

  • A review process should be put in place to ensure the rigorous review of our personnel's enforcement decisions throughout the first ninety (90) days of implementation of this guidance. The review process should seek to achieve quality and consistency in decision-making across the entire agency and the Department. It should therefore involve the relevant chains of command.

    Longer-term review processes should be put in place following the initial 90-day period, drawing on the lessons learned. Assessment of implementation of this guidance should be continuous.

Hmmm. This all seems designed to ferret out DHS enforcement officials who don’t get with the program. Further, as Justice Alito pointed out:

[In o]ur decision in Franklin v. Massachusetts ... the Court held that a declaratory judgment regarding the lawfulness of Executive Branch action satisfied 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.” ... Here, we need not speculate about how DHS officers would respond to vacatur of the Final Memorandum because the District Court found that the DHS personnel responsible for detainers were rescinding them “because of” the [Guidance] ... . This point was effectively conceded by the Government’s application for an emergency stay pending our decision in this case. The Government argued that the [Guidance] was needed to guide prosecutorial discretion ... and if the District Court’s order were ineffectual, that would not be true. For these reasons, the harm resulting from the [Guidance] is redressed by setting [it] aside.

Thus, contrary to the concurrences’ conclusions, the states concerns should have been found to be redressable.


In the words of Justice Alito’s dissent:

  • The majority’s conception of Presidential authority smacks of the powers that English monarchs claimed prior to the “Glorious Revolution” of 1688, namely, the power to suspend the operation of existing statutes, and to grant dispensations from compliance with statutes. After James II was deposed, that changed. The English Bill of Rights of 1689 emphatically rejected “the pretended Power of Suspending of Laws or the Execution of Laws by Rega[l] Authority without Consent of Parl[i]ament” and “the pretended Power of Dispensing with Laws or the Execution of Laws by Rega[l] Authorit[y] as it ha[s] bee[n] assumed and exercised of late.”

    By the time of the American Revolution, British monarchs had long abandoned the power to resist laws enacted by Parliament but the Declaration of Independence charged George III with exercising those powers with respect to colonial enactments.


    [A]t the Constitutional Convention, a proposal to grant the President suspending authority was unanimously defeated. Many scholars have concluded that the Take Care Clause was meant to repudiate that authority.

  • In [the 1838 case of ]Kendall v. United States ex rel. Stokes … the full Court rejected the President’s claim that he had the authority to disregard a statutory duty to pay certain sums to a government contractor: “To contend that the obligations imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and is entirely inadmissible.”

All told, Justice Alito’s dissent was one of his, and the Court’s, finest hours.