Dear Karen,

We finally have a decision from the Supreme Court in the enforcement priorities case—and it’s a good one! See below (and on our microsite) for a summary of today’s decision and the latest updates regarding red state litigation attempting to commandeer national immigration policy.

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June 23, 2023

SCOTUS holds States lacks standing to challenge enforcement priorities

This morning, the Supreme Court issued a decision in Texas and Louisiana’s challenge to the immigration enforcement priorities, holding (by an 8-1 vote) that the states lack standing—that is, they do not meet the Constitution’s minimum requirements to bring a suit in federal court. Justice Kavanaugh’s opinion for the Court held that the states’ alleged injuries are not “legally and judicially cognizable,” including because the states could not identify any “legal precedent, history, or tradition” of courts entertaining a case like this one, in which a plaintiff asks the judiciary to force the executive branch to make more arrests. Four justices joined J. Kavanaugh’s opinion, while two justices joined J. Gorsuch’s concurring opinion, in which he agreed that the states lack standing but for a different reason—no court order would redress their alleged injuries. (Justice Barrett also wrote a concurring opinion, but also she joined Justice Gorsuch’s concurrence and vice-versa). Only Justice Alito dissented.

There is still much to digest from the opinions, but the Court’s 8-1 decision to throw out Texas’s suit should result in many other red state challenges to immigrant inclusive policies receiving much closer scrutiny in the coming months—and potentially several dismissed.

Fifth Circuit revives Texas border wall suit

Last Friday, the Fifth Circuit issued a decision in the Texas and Missouri challenge to the Biden Administration’s alleged failure to use funds appropriated by Congress to build portions of a border wall. The district court had held that Missouri lacked standing and that George P. Bush’s identical, earlier-filed case—in his capacity as Commissioner of Texas’s General Land Office—precluded Texas from instituting a second suit in its own name, because doing so would be to “split” the State’s claim across both lawsuits. The majority reversed, essentially holding that the State of Texas and its General Land Office have sufficiently distinct interests that the latter’s suit doesn’t preclude the former. The majority did not decide Missouri’s standing.

The panel, however, went beyond that technical legal holding, directing the district court to “expeditiously” consider the states’ motion for a preliminary injunction (which had been pending when their claims were dismissed) and that any future appeals in this case come back to the same three-judge panel—an ominous sign for the Biden Administration.

New 18-State lawsuit challenges exceptions in Biden’s asylum ban

As previously reported, Texas sued last month to challenge the entirety of Biden’s asylum ban. Since then, another red state lawsuit (led by Indiana) about the asylum ban has been filed, but this one just targets the (narrow) exceptions in ban. Indiana filed the case in the Western Division of the District of North Dakota. As you might have guessed, there is only one district court judge in that division, and he was appointed by President Trump.

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As always, we’ll keep you posted on these and other cases.

Thanks for reading,

Tasha Moro

Communications Director

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