Losing Pitcher Paxton

It is really, really hard for reactionary Attorneys General and District Court judges to invent ad hoc legal justifications so specious that they get near-unanimous rejection from this Supreme Court, but especially in Texas they’re up to the challenge:

On Friday, the Supreme Court delivered an overdue message to red states: quit wielding the federal courts as a weapon against President Joe Biden’s immigration policies. The court’s 8–1 decision in U.S. v. Texas is a rebuke to the Republican attorneys general battling the Biden administration, most prominently the now-impeached Texas Attorney General Ken Paxton. It also rebuffs the conservative lower courts attempting to transfer control over the southern border from the executive branch to federal judges. The red-state brigade and its black-robed allies who’ve worked together to obstruct the Biden administration from week one have suffered an embarrassing and lopsided defeat.

Texas is the latest in a long line of cases designed to give a handful of Republican-appointed district court judges sweeping authority over immigration law. It was initiated by Paxton (who has since been impeached over allegations of bribery and corruption), joined by Louisiana Attorney General Jeff Landry, and supported by 21 other red states. This challenge took aim at the Department of Homeland Security’s enforcement guidelines, which prioritized the arrest and removal of certain unauthorized immigrants—those who are suspected of terrorism, convicted of felonies, or caught entering the country very recently.

DHS has far too few resources to go after every single noncitizen who qualifies for deportation, so the agency has no choice but to prioritize the removal of some groups over others. It has exercised this “enforcement discretion” for decades, under Democratic and Republican presidents alike. Yet Paxton asserted that the enforcement guidelines violated a federal law that says DHS “shall” arrest a broader swath of noncitizens, leaving no room for discretion. He shopped his case to Judge Drew Tipton, a Donald Trump appointee who had already issued the very first nationwide injunction against Biden during the president’s first week in office.

The “too few resources” here is critical. The idea that the executive branch is violating the will of Congress by not arresting everyone it could possibly arrest is just transparently wrong — the actual collection of policies enacted by Congress makes categorical enforcement literally impossible. Choosing what arrests to prioritize within this framework is critical to executive power. For this reason. I agree with — credit where credit is due — Illya Somin that the Court could have reached the issue on the merits and upheld the Biden administration’s policy.

But the procedural rulings are fine, just fine:

To which the Supreme Court said on Friday: no. Justice Brett Kavanaugh authored the majority opinion, which won the votes of Justices John Roberts, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Kavanaugh explained that there is no “precedent, history, or tradition of courts ordering the executive branch” to “make more arrests or bring more prosecutions.” Rather, the Supreme Court has held that plaintiffs cannot establish standing by challenging an “exercise of enforcement discretion over whether to arrest or prosecute.” That’s especially true in “the immigration context,” where the president’s power to “enforce federal law” is intertwined with his constitutional prerogative over foreign policy. In this area, the president must “balance many factors when devising arrest and prosecution policies.” And courts simply have no “meaningful standards for assessing those policies.” So the states have no “judicial cognizable interest” that the courts can redress.

That holding will wipe out not only Tipton’s decision, but several other pending cases that challenge to DHS’ enforcement priorities. That’s a major victory for the Biden administration, which should no longer be bedeviled by these lawsuits. What’s more, language in the majority opinion suggests that red state lawsuits against other Biden policies are in serious trouble, as well. Kavanaugh cast doubt upon Massachusetts v. EPA, the 2007 decision that Republican attorneys general have used to justify all of their suits against Biden. Massachusetts said that states deserve “special solicitude” in standing analysis because of their “quasi-sovereign interests.” But Kavanaugh not-so-subtly noted the many “disagreements” with that logic. The justice also wrote that states do not have standing to challenge federal policies just because they “generate indirect effects” on a state’s “revenues” or “spending.” This theory, too, lies at the heart of many red state lawsuits, which frequently allege that the cost of imprisoning noncitizens or giving them driver’s licenses is, by itself, enough to establish standing.

So while Kavanaugh insisted that his holding was “narrow,” its reasoning should prove fatal to red state lawsuits that rely on the same theories that he shot down here. For instance: Red states have attacked the Biden administration’s efforts to “parole” specific groups of noncitizens, allowing them to remain in the country while their claims are adjudicated. Trump-appointed judges have issued nationwide injunctions purporting to block these rules. (One judge wrote that “the Southwest Border has been out of control for the past 2 years” and suggested that a “surge” of “aliens” was poised to invade the country.) Red states have also urged Trump-appointed judges to shred Biden’s asylum policies, with considerable success. Yet in both contexts, the states’ theory of standing rests on the idea that the presence of noncitizens within their borders harms their treasures and other “quasi-sovereign interests.” If those arguments are null, as per Kavanaugh’s ruling on Friday, the states have nothing else to stand on.

Remarkably, Kavanaugh’s opinion did not go far enough for three conservatives. In a concurring opinion joined by Justices Amy Coney Barrett and Clarence Thomas, Justice Neil Gorsuch expressed a desire to cut off all these lawsuits at the knees by stripping judges of the power to halt Biden’s policies in the first place. The justice asserted that federal law bars district courts from issuing injunctions against many immigration policies, or attempting to “vacate” them nationwide. Gorsuch cast serious doubt on the legality of any “universal” injunction or “vacatur,” writing that these decrees “strain our separation of powers,” allow “individual judges to act more like a legislature,” and “encourage parties to engage in forum shopping.”

I think the liberal justices probably made a strategic mistake in not joining the Gorsuch concurrence — nationwide District Court injunctions are a plague — and giving him a majority, although both arguments are right and the impact will probably be similar.

If you’re curious about the latest solo dissent Alito wrote to impress his rally girls, you could write “fuck off we’re full” in crayon and get a little more intellectual heft instead.