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Immigration-Enforcement Guidelines and Article III Standing

June 23, 2023

Prof. Cary Coglianese and Practice Prof. of Law Sarah Paoletti respond to the Supreme Court’s decision in U.S. v. Texas.

In United States v. Texas, the Supreme Court ruled that Texas and Louisiana lack Article III standing to challenge Biden Administration immigration-enforcement guidelines that prioritize the arrest of immigrants with serious criminal records, national security threats, and migrants who recently entered the U.S. illegally.

University of Pennsylvania Carey Law School faculty have issued statements in response.

Cary Coglianese

Cary Coglianese, Edward B. Shils Professor of Law, Professor of Political Science, and Director of the Penn Program on Regulation:

If it were not for all the heated political contestation surrounding immigration policy in the United States, today’s decision by the U.S. Supreme Court in United States v. Texas should hardly be any news at all. The Court’s decision follows a long line of precedents that make the exercise of enforcement discretion by executive authorities all but unreviewable by the courts.

Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political ScienceAs I noted in 2016 in a co-authored article, settled administrative law principles have meant that “in most circumstances agency decisions to defer on inspections or enforcement actions have been left entirely unconstrained.” More recently, I pointed out much the same with respect to the inability of litigants to obtain standing before the courts in cases of “unrules”—that is, when agencies have lifted or alleviated regulatory obligations, including by systematic prioritization of nonenforcement, as was at issue in United States v. Texas.

As we previously noted in our research on obligation alleviation, “for anyone challenging an unrule, showing a ‘particularized’ injury will often prove more difficult, especially when the harm is spread across the public rather than concentrated in an individual who has been or will be demonstrably affected.” These observations described the law as it has existed for decades prior to today’s decision in United States v. Texas.

The Court’s 8-1 outcome today not only delivers the Biden Administration a “win,” it also reinforces principles that have long provided executive officials in any administration a major source of discretionary power.

Coglianese is a globally renowned expert on administrative law and regulatory policy. He has produced extensive and pathbreaking scholarship on a range of regulatory issues and has consulted with regulatory organizations around the world. He was a founding editor of the peer-reviewed journal Regulation & Governance and also created and continues to serve as the faculty advisor to the PPR’s flagship publication, The Regulatory Review.

Sarah Paoletti

Sarah Paoletti, Founder and Director of the Transnational Legal Clinic—the Law School’s international human rights and immigration clinic—and Practice Professor of Law:

The Supreme Court’s ruling today that Texas and Louisiana do not have standing to challenge the Biden Administration’s immigration enforcement priorities, serves as an important lesson to Texas, Louisiana, and other states that have been knocking down the doors of the Judiciary doors in an effort to supersede the power of the executive to implement immigration law and policy.

Sarah Paoletti, Transnational Legal Clinic Director Sarah Paoletti, Transnational Legal Clinic DirectorThe ruling effectively reinstated the Administration’s articulated enforcement priorities—which include the deportation of persons who pose a danger to society or are suspected terrorists—and in doing so, recognized longstanding principles of federal court jurisdiction alongside principles of prosecutorial discretion.

As Justice Kavanaugh noted, “For the last 27 years since §1226(c) and §1231(a)(2) [provisions in the Immigration and Nationality Act that created mandatory detention and removal for certain categories of immigrants] were enacted in their current form, all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.”

Both the majority opinion and the concurring opinion have sought to educate the states—and the lower court judges who have bought into the arguable counterfactual arguments that immigration has caused fiscal harm to the states—about the role of the different branches of government and sends signals as to the limitations the courts will put on challenges to the Biden Administration’s authority over the enforcement and execution of immigration law and policy. Not mentioned in the decision are the thousands of immigrants who have been caught up in a system of mandatory detention and deportation for civil law violations, deprived of their right to liberty, due process, right to seek asylum, and right to non-interference in their family life—fundamental principles under international human rights law. For those individuals and their families, this ruling provides a ray of hope.

Paoletti’s research focuses on the intersection of human rights, migration, labor law, and access to justice. She has authored numerous amicus briefs addressing international law in federal court litigation as well as several pathbreaking reports and articles on migrant workers’ rights.

Read more of our esteemed faculty’s insights on today’s pressing legal issues.