In the U.S. Supreme Court, oral arguments usually focus on one or two legal questions that the justices have agreed to decide. But sometimes those arguments reveal unexpected and harsh truths about the way in which our judicial system is operating. That was the situation in a case argued at the end of November 2022 and will be again in a very different case being argued next month.
The November argument was in United States v. Texas. The Republican-led states of Texas and Louisiana challenged a policy by the Biden administration’s Department of Homeland Security that set priorities for the removal of illegal immigrants. Because Congress has never appropriated enough resources for the department to apprehend and remove an estimated 11 million noncitizens, the department said it would focus on three categories: those who pose threats to national security (suspected terrorists), to public safety (individuals who committed serious crimes) and to border security (noncitizens caught at the border).
Texas and Louisiana challenged the department’s policy guidance in a Texas federal district court where Trump-appointed Judge Drew Tipton ruled that the guidance was “arbitrary and capricious, contrary to law, and failing to observe procedure under the Administrative Procedure Act.” He issued an order vacating– invalidating– the guidance and applied his order nationwide. The U.S. Court of Appeals for the Fifth Circuit, arguably the most conservative appeals court in the country, refused the administration’s request to halt the order while its appeal proceeded. The administration then turned to the Supreme Court, which declined to reinstate the policy guidance but agreed to hear arguments on the merits.
A critical, not so “sexy” question before the justices is whether the two states have “standing” to challenge the immigration enforcement guidance. Standing, as we know, is the key to the federal courthouse door. It is the legal right to bring a claim in court. The party suing must show a direct injury caused by another– here, the federal government– and that a court is able to remedy that injury.
Texas and Louisiana claimed that they had standing because the enforcement priorities will cause more noncitizens to be within their borders and that will cost the two states more on law enforcement and social services.
During the arguments, the standing issue became a hill on which Justice Elena Kagan appeared ready to fight. In her comments to Texas Solicitor General Judd Stone II, she questioned whether the two states had established an actual “injury” sufficient for standing, particularly given the authority of the executive branch in this area of the law. And she also noted a questionable legal-political strategy being used by the states to dismantle federal policies they dislike:
The fact that you are not the party directly regulated, the fact that you are challenging an enforcement action, particularly an enforcement action where the most discretion has been given to executive officials, but -- but those form the backdrop by which we should say, you know, it's just not enough that you're coming in here with a set of speculative possibilities about your costs. You have to do more than that given the backdrop of-- of what has become, I think, a system that nobody ever thought would occur, which is that the states can go into court at the drop of a pin and stop federal policies in their tracks.
Kagan went on to note that Texas has many court divisions within its judicial districts:
You can pick your trial court judge. You know, you play by the rules, that's fine, but you pick your trial court judge. One judge stops a federal immigration policy in its tracks because you have a kind of, sort of speculative argument that your budget is going to be affected. I mean, we're just going to be in a --in a situation where every administration is confronted by suits by states that can, you know, bring a policy to a dead halt, to a dead stop, by just showing a dollar's worth of costs?
Kagan may have been channeling in part an amicus brief filed in the case by a federal court scholar at the University of Texas Law School– Stephen Vladeck. In the brief, Vladeck, using court data, informed the justices of what he described as Texas’s “judge-shopping” strategy in suits against the Biden Administration.
Of 19 Texas lawsuits, judges appointed during Republican presidencies are presiding in all but one, the brief stated.
“Specifically, the state of Texas has abused the federal courts by intentionally and repeatedly filing lawsuits against the federal government in district court divisions staffed entirely, or almost entirely, by judges appointed during presidencies of the Texas attorney general’s and governor’s party,” the brief read. “Those judges have repeatedly issued nationwide injunctions against virtually every challenged action taken by the Biden administration.”
The immigration enforcement challenge is an example of this strategy, according to Vladeck. The suit was filed in the Victoria division of the southern district of Texas which is not on the border and has no connection to the enforcement guidance. But it does have only one district judge who handles new civil cases– Tipton, appointed by former President Donald Trump in 2020 and who has handled five Texas suits against the federal government.
Kagan also said during the arguments that Texas was not the only state to pursue a claim in a favorable court. She noted if some other administration came into power, “the California solicitor general will be standing where you are.” But Vladeck said there is a difference between what Republican-led states and Democratic-led states have been doing in challenges to administration policies.
Democratic-led states, when challenging Trump administration policies, he explained, filed cases in courthouses where judges were assigned to cases randomly and this took their chances in courts with more than one judge.
In February, the justice will hear arguments in two challenges to the Biden administration’s student debt relief program: Biden v. Nebraska and Department of Education v. Brown. Those cases come from the Fifth Circuit, like the immigration enforcement challenge, and the Eighth Circuit. In both cases, the administration challenges the standing of the states and individuals suing. In both cases, the lower courts issued nationwide orders blocking the program.
Standing, judge-shopping and nationwide injunctions, when abused, have the potential to wreak havoc with citizens’ lives and any administration’s ability to govern. Finding what is their legitimate use in our system is the ultimate challenge for the Supreme Court.
Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.
