Not a Lexis+ subscriber? Try it out for free.

Immigration Law

Supreme Court Preview: U.S. v. Texas ("Could Be a Blockbuster")

On Tuesday, Nov. 29, 2022, the Supreme Court will hear oral arguments in the case of U.S. v. Texas on a writ of certiorari before judgment, to review the Fifth Circuit's denial of a stay of federal district court Judge Tipton's nationwide injunction.  Issues: (1) Whether state plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law; (2) whether the Guidelines are contrary to 8 U.S.C. § 1226(c) or 8 U.S.C. § 1231(a), or otherwise violate the Administrative Procedure Act; and (3) whether 8 U.S.C. § 1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the guidelines under 5 U.S.C. § 706(2).

Cornell Law professor Stephen W. Yale-Loehr and other experts discuss this "blockbuster" case here.

American University law professor Amanda Frost goes into greater detail here.

University of Alabama law professor Joyce White Vance sums it up this way:

"This is an important, politically charged case that sets two different approaches to immigration enforcement at odds with each other and asks SCOTUS to decide how much latitude presidential administrations have to act. During the Obama administration, recognizing that law enforcement resources were not unlimited, priorities were set for deporting certain types of people who were illegally present in the United States—those who committed crimes, for instance. Others, those who’d been here for a long time or had American citizen family members, were lower-priority. The Trump administration adopted a different approach, one that targeted anyone law enforcement came in contact with. The desired effect was to keep all people who were here without legal status in fear of deportation at all times, by setting no priorities for enforcement, in hopes that people would be frightened and “deport themselves.” (This was the same strategy Alabama adopted in a 2011 law envisioned by the same then-academic, now Kansas Attorney General-to-be Kris Kobach, who also masterminded some of the pre-Trump Republican efforts to adopt restrictive voting laws justified by non-existent voter fraud, but I digress.) Now, as the Biden administration tries to return to a more principled approach that prioritizes measures that make communities safer, Texas and Louisiana have challenged its right to do so, arguing Biden cannot prioritize the removal of certain categories of immigrants over others. In addition to that immigration policy issue, there are two procedural issues lurking in the case. The first involves whether states should be permitted to bring lawsuits like this. California brought over 100 challenges to Trump-era decisions, and Texas is already north of 20 cases involving the Biden administration. The second issue involves the remedy—namely, whether a district judge in one case should be permitted to vacate the administration’s policy, ending it not just for the parties to that case, but universally. So the three issues here are weighty and important, both substantively as to immigration, but also on the legal procedure side of things for how they will impact this and future cases."