Samuel Alito. (Image via YouTube screengrab/The Heritage Foundation.)
Justice Samuel Alito stood alone Friday in opposing the rest of the Supreme Court’s ruling that Texas and Louisiana lacked standing to challenge the Biden administration Department of Homeland Security’s 2021 “Guidelines for the Enforcement of Civil Immigration Law.”
The conservative justice raised complaints about “sweeping Executive Power” being “endorsed” by the Justice Brett Kavanaugh-led majority, which included Chief Justice John Roberts, Justice Sonia Sotomayor, Justice Elena Kagan, and Justice Ketanji Brown Jackson. Justice Neil Gorsuch wrote an opinion concurring in the judgement, which Justice Clarence Thomas and Justice Amy Coney Barrett joined. Barrett herself penned a concurrence in the judgment, which Gorsuch joined.
The majority held in United States v. Texas that the red state challengers lacked standing to sue over the Biden administration’s immigration enforcement priorities.
“According to Texas and Louisiana, the arrest policy spelled out in the Department of Homeland Security’s 2021 Guidelines does not comply with the statutory arrest mandates in §1226(c) and §1231(a)(2). The States want the Federal Judiciary to order the Department to alter its arrest policy so that the Department arrests more noncitizens,” Kavanaugh wrote. “The threshold question is whether the States have standing under Article III to maintain this suit. The answer is no.”
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“On the contrary, this Court has previously ruled that a plaintiff lacks standing to bring such a suit ‘when he himself is neither prosecuted nor threatened with prosecution,”” the case syllabus summarized.
Kavanaugh’s majority found that the states “cite no precedent, history, or tradition of federal courts entertaining lawsuits of this kind.”
“To establish standing, a plaintiff must show an injury in fact caused by the defendant and redressable by a court order,” Kavanaugh added. “The District Court found that the States would incur additional costs because the Federal Government is not arresting more noncitizens. Monetary costs are of course an injury. But this 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.”
The majority did say, however, that the court’s holding should not be interpreted to mean that federal courts “may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.”
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Justice Alito fired back at the holding by saying that majority ignored a “major precedent” in order to bolster “sweeping Executive Power” even though the Biden administration’s policy “inflicts substantial harm” on Texas.
“The Court holds Texas lacks standing to challenge a federal policy that inflicts substantial harm on the State and its residents by releasing illegal aliens with criminal convictions for serious crimes. In order to reach this conclusion, the Court brushes aside a major precedent that directly controls the standing question, refuses to apply our established test for standing, disregards factual findings made by the District Court after a trial, and 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—withholding funds, impeachment and removal, etc.,” Alito wrote. “I would not blaze this unfortunate trail. I would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing.”
In closing, Alito said that the Supreme Court’s ruling amounted to an endorsement of “sweeping Executive Power” and a shunning of its “duty” and “virtually unflagging obligation” to “exercise” jurisdiction in a matter such as this.
This sweeping Executive Power endorsed by today’s decision may at first be warmly received by champions of a strong Presidential power, but if Presidents can expand their powers as far as they can manage in a test of strength with Congress, presumably Congress can cut executive power as much as it can manage by wielding the formidable weapons at its disposal. That is not what the Constitution envisions.
I end with one final observation. The majority suggests that its decision rebuffs an effort to convince us to “‘usurp’” the authority of the other branches, but that is not true. Ante, at 3. We exercise the power conferred by Article III of the Constitution, and we must be vigilant not to exceed the limits of our constitutional role. But when we have jurisdiction, we have a “virtually unflagging obligation” to exer- cise that authority. Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976). Because the majority shuns that duty, I must respectfully dissent.
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