United States v. Texas

LII note: The U.S. Supreme Court has now decided United States v. Texas.


Are states required to suffer direct injuries to sue the federal government? Are the Department of Homeland Security’s September 2021 immigration enforcement guidelines, which authorize discretion to enforce immigration statutes, contrary to federal immigration law or the Administrative Procedure Act, and can a court vacate the guidelines?

Oral argument: 
November 29, 2022

This case asks the Supreme Court to consider whether Texas and Louisiana may sue the federal government in federal court despite not having suffered a direct injury from agency action, and whether the Department of Homeland Security’s (“DHS”) September 2021 Guidelines for the Enforcement of Civil Immigration Law (“Guidelines”) violate the Immigration and Nationality Act (“INA”) or the Administrative Procedure Act (“APA”). The Court must also decide whether the INA prevents a court from vacating an administrative action under the APA. The United States claims that Texas and Louisiana cannot sue the federal government because the Constitution requires a direct harm, that the Guidelines do not violate the INA because the statutory language accommodates traditional prosecutorial discretion, and that the INA prevented the district court from vacating the Guidelines. Texas and Louisiana counter that they can sue because a direct injury is not required when a state sues the federal government, that the Guidelines violate the INA because the statutory language specifically override prosecutorial discretion, and that the district court properly vacated the Guidelines because it was authorized by the broad statutory language and court precedent and did not conflict with the INA. The Court’s holding will affect the removal for noncitizens, which significantly impacts the social treatment of and rhetoric surrounding noncitizens, government efficiency and accountability, and public health, safety, and stability.

Questions as Framed for the Court by the Parties 

(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).


In January 2021, the then-Acting Secretary of the Department of Homeland Security (“DHS”) issued a memorandum. Texas v. United States at 2. The memorandum prioritized certain categories for removal enforcement against noncitizens, including threats to national security, public safety, and border security. Id. In February 2021, the Acting Director of the U.S. Immigration and Customs Enforcement (“ICE”) issued another memorandum which reflected the same enforcement priorities and also required that “enforcement agents obtain ‘preapproval’ from their superior offices for any enforcement action against criminal aliens that did not fall within the three categories.” Id. at 3. The January and February memoranda were considered “interim measures” to guide immigration enforcement until the new Secretary of Homeland Security issued enforcement guidelines. Id.

On September 30, 2021, the new Secretary of Homeland Security, Alejandro Mayorkas, issued a third memorandum (“Final Memo”). Id. The parties agree that the Final Memo is an agency rule under the Administrative Procedure Act (“APA”). Id. The Final Memo rescinded the January and February memoranda and reiterated the same enforcement priorities as the first two memoranda. Id. However, the Final Memo did not “presumptively subject [the priorities] to enforcement action.” Id. The Final Memo requires that enforcement officials assess “the individual and the totality of facts and circumstances” prior to arresting and detaining the individual. Id. The assessment must include “various aggravating or mitigating factors,” and enforcement officials cannot rely solely on “the fact of conviction.” Id.

The Final Memo included specific procedures for enforcement officials to implement these priorities (“the Guidelines”). Id. at 4. Specific procedures include continuous training and a “rigorous review” process of all enforcement decisions. Id. The Final Memo provided that DHS would “need to collect detailed, precise, and comprehensive data as to every aspect of the enforcement actions [] take[n] pursuant to th[e] guidance, both to ensure the quality and integrity of [the] work and to achieve accountability for it.” Id. at 4.

Texas and Louisiana sued the United States, arguing the Final Memo 1) violates federal law; 2) is arbitrary and capricious; and 3) is procedurally invalid. Id. at 5. Texas and Louisiana sought injunctive relief to preclude the Final Memo from continued implementation. Id. at 6. The District Court for the Southern District of Texas ruled in Texas and Louisiana’s favor on all three issues and vacated the Final Memo. Id. However, the District Court stayed the vacatur briefly to allow the United States to appeal. Id. The United States moved for the Fifth Circuit Court of Appeals to grant a stay pending appeal. Id.

On July 6, 2022, the Fifth Circuit denied the United States’ motion. Id. at 32. The Fifth Circuit agreed with the District Court that the Final Memo likely conflicted with federal immigration law, was arbitrary and capricious, and was procedurally invalid. Id. at 2. Moreover, the Fifth Circuit rejected the United States’ argument that Texas’ injuries were “not redressable” because Texas’ costs would be “eased if DHS stopped rescinding detainers pursuant to the Final Memo.” Id. at 23. Additionally, the Fifth Circuit found that ICE’s rescission of a detainer “directly caused the Texas Board of Pardons and Paroles to revoke parole” and caused noncitizens who had committed crimes to remain in Texas’ custody. Id. at 11–12.

The United States appealed to the Supreme Court, which granted certiorari on July 21, 2022.



The United States argues that Texas and Louisiana do not have standing to sue the federal government because they have not suffered a direct injury caused by the federal government, which is a requirement for a state to sue the United States. Brief for Petitioners, United States of America at 12. The United States asserts that a federal policy’s incidental effects on a state are insufficient to establish standing, and that finding otherwise would flood the federal courts with state claims against the federal government, because almost every federal action has some sort of incidental effect on states. Id. at 11–12, 15. The United States reasons that Texas and Louisiana have suffered only indirect effects from DHS’s Guidelines. Id. at 12–13. The United States elaborates that the states’ alleged injury––that the Guidelines will result in more noncitizens remaining in the states, some of whom may commit crimes––is merely incidental to the federal policy. Id. Furthermore, the United States maintains that because the federal government and states share sovereignty over the same people within different spheres of power, the federal government acting within its sphere, such as when DHS enacted its Guidelines, cannot directly injure states. Id. The United States concludes that because Texas and Louisiana have experienced only incidental, rather than direct, injuries, and the Guidelines do not control states’ actions, Texas and Louisiana do not have standing to sue the United States. Id. at 17.

Texas and Louisiana counter that states are not required to have direct injuries to sue the federal government, so they have standing to sue. Brief for Respondents, Texas and Louisiana at 17. Texas and Louisiana explain that because the federal government does not have the power to directly regulate states, requiring that states suffer direct injuries to sue the federal government would prevent states from suing at all. Id. at 17–18. Texas and Louisiana further assert that Supreme Court precedent in similar cases, where states have sued the federal government over federal actions, did not require that the states suffer direct injuries and considered indirect injuries to the states sufficient to establish the “concrete and particularized” injury required for the states to have standing. Id. at 18–19. Moreover, Texas and Louisiana contend that they have suffered sufficient injury because DHS Guidelines will increase the number of noncitizens with criminal records within the United States, which will in turn increase the states’ costs in incarcerating, educating, and providing healthcare to the noncitizens, in addition to the costs of recidivism. Id. at 13. Texas and Louisiana conclude that the increased cost that the states suffer because of the DHS Guidelines is sufficient injury to establish standing. Id. at 13–14.


The United States argues that the Guidelines do not violate 8 U.S.C. § 1226 and 8 U.S.C. § 1231, which govern noncitizen apprehension, detention, and removal, because they do not override DHS’s prosecutorial discretion to apprehend noncitizens not yet in custody. Brief for Petitioners at 24. The United States elaborates that although §§ 1226 and 1231 use the word “shall” when directing states to retain custody of certain noncitizens, the use of “shall” does not take away DHS’s discretion because prosecutorial discretion is so “deep-rooted” that it should even be read into statutes whose language seems obligatory on its face. Id. at 27–28. The United States also notes that the Supreme Court has sometimes read “shall” to cooperate with, rather than override, law-enforcement agency discretion. Id. at 30. Furthermore, the United States contends that even if § 1226 is read as binding on the federal agency, it applies only if DHS has decided to proceed with removal proceedings, and the decision to institute proceedings in the first place remains in DHS’s “absolute discretion.” Id. at 28. The United States posits that in drafting §§ 1226 and 1231, Congress did not intend to take away DHS’s discretion, particularly in light of DHS’s “competing duties,” its scarce resources, and the Secretary of Homeland Security’s expertise in making such discretionary decisions. Id. at 29–30. The United States warns that reading §§ 1226 and 1231’s language as requiring DHS to arrest and detain every noncitizen who qualifies would “completely overwhelm” DHS and make it more difficult for DHS to respond to serious threats. Id. at 29.

On the contrary, Texas and Louisiana argue that §§ 1226 and 1231 should be read as mandatory, and that DHS does not have discretion within the purview of these statutes. Brief for Respondents at 24. Texas and Louisiana accordingly contend that the Guidelines violate §§ 1226 and 1231 by instructing immigration agents to weigh and assess each noncitizen’s situation before deciding to enforce the provision where Congress ordered no such discretionary analysis to be done in the first place. Id. at 24–26. Texas and Louisiana disagree with the United States’ contentions that § 1226 only applies during removal proceedings and that DHS has unfettered discretion to begin the proceedings because there is no such limitation in the statutory language. Id. at 29. Texas and Louisiana elaborate that the statute mandates detention at the moment the noncitizen is released from custody, whether or not DHS intends to initiate removal proceedings, and leaves no room for the discretion instructed in the Guidelines. Id. Moreover, Texas and Louisiana maintain that traditional notions of discretion should not be read into the statutes because the mandatory language of the provisions should govern and take precedence. Id. at 29–30. Texas and Louisiana also argue that Congress intentionally took away DHS’s discretion by using mandatory language and did so due to the agency’s prior ineffectiveness at addressing rising levels of criminal activity by noncitizens. Id. at 30.


The United States argues that the district court did not have the power to vacate the Guidelines under 5 U.S.C. § 706(2), which empowers courts to “hold unlawful and set aside agency action, findings, and conclusions.” Brief for Petitioners at 39, 41. The United States asserts that “set aside” means that courts have the power to decline to give effect to the disputed agency action. Id. at 39. The United States elaborates that this is the only interpretation consistent with the statutory language because the scope of § 706(2) includes “agency action[s], findings, and conclusions,” and vacating an agency’s findings or conclusions would be nonsensical, while it would make sense for courts to disregard agency findings. Id. at 41. The United States also contends that the statutory context which supports § 706(2) cannot be interpreted as authorizing a court to vacate an unlawful agency action because the provision is not about remedies, which are covered in 5 U.S.C. § 703, a statute that directs courts to look outside of the Administrative Procedure Act (“APA”) for remedies. Id. at 40, 42. Moreover, the United States argues that the power granted during judicial review under § 706(2) is limited to the “negative power” to disregard an unlawful agency action. Id. at 41. The United States notes that the historical record shows that Congress anticipated the remedies to derive from § 703 rather than from a new remedy to vacate under § 706. Id. at 43. The United States warns that interpreting § 706(2) as allowing courts to vacate actions would conflict with 8 U.S.C. § 1252(f)(1), which bars all courts but the Supreme Court from “enjoin[ing] or restrain[ing] the operation” of certain DHS actions. Id. at 39–40.

Texas and Louisiana counter that the district court’s actions were proper because allowing courts to vacate unconstitutional agency actions is a reasonable interpretation of the “set aside” language in § 706(2). Brief for Respondents at 39. Texas and Louisiana posit that judicial precedent and history show that courts have interpreted § 706(2) as authorizing court to vacate judgments. Id. at 40. Texas and Louisiana elaborate that contrary to the United States’ claim that courts vacating agencies’ “findings and conclusions” would be nonsensical, courts often do so. Id. at 41. Furthermore, Texas and Louisiana contend that the statutory context of § 706 within the APA supports this interpretation because a prior section authorizes courts to terminate agency actions during litigation, and it follows that courts would have the power to do so after determining that an action is unlawful. Id. at 40. Moreover, Texas and Louisiana argue that interpreting “set aside” as simply disregarding the agency action would make the language to “hold unlawful” within § 706(2) superfluous, as the statute authorizes courts to “hold unlawful and set aside” improper agency actions. Id. at 41. Texas and Louisiana warn that holding that § 706(2) does not authorize courts to vacate unlawful agency actions would contravene decades of judicial precedent. Id. at 42. Texas and Louisiana also contend that this interpretation does not conflict with § 1252(f) because § 1252(f)’s language limits its restriction to injunctive relief, and vacating an action is not injunctive relief because it is not coercive and not an extraordinary remedy. Id. at 43–46.



Immigrant and Civil Rights Organizations, et al. ("Organizations"), in support of the United States, argue that allowing state standing here perpetuates "longstanding racist and xenophobic tropes about immigrants." Brief of Amici Curiae Immigrant and Civil Rights Organizations et al., in Support of Petitioners at 20. According to the Organizations, the Texas and Louisiana’s assertion of standing perpetuates systemic racism because it characterizes nonresidents as harms in and of themselves. Id. at 4. The Organizations contend that characterizing noncitizens as "drains on state coffers or threats to public safety" reflects and perpetuates a long history of discrimination and violence in Texas and Louisiana. Id. at 7, 12.

In contrast, Arizona et al. ("Arizona"), in support of Texas and Louisiana, argues that it is particularly important for states to have standing in the “immigration context.” Brief of Amici Curiae Arizona et al., in Support of Respondents at 13. Arizona asserts that the “border crisis” is increasing law enforcement and health care costs, which are harms sufficient to assert standing. Id. at 28–29. Arizona argues that states should have standing because states bear the cost of undocumented immigration and cannot themselves mitigate these harms. Id. at 14. Arizona posits that, because states cannot protect themselves from “immigration-based harms,” states should have standing to sue the federal government. Id. According to Arizona, without standing, states would be at the “mercy of the whims of the federal executive.” Id.


Administrative Law Professors, in support of the United States, argue that requiring agencies to submit to notice-and-comment requirements for policy guidelines would damage agency efficiency and transparency. Brief of Amici Curiae Administrative Law Professors, in Support of Petitioners at 24. Administrative Law Professors assert that requiring notice-and-comment for internal policy guidelines would impose greater costs and take on average just under two years to complete a given rulemaking. Id. at 25, 28. Because of these additional costs, Administrative Law Professors contend that agencies would increasingly avoid costs by "act[ing] in secrecy," which reduces visibility and accountability. Id. at 28, 29. Administrative Law Professors argue that efficiency in publishing guidelines allows for clarity and uniformity across the country. Id. at 26.

To the contrary, Florida, in support of Texas and Louisiana, argues that resource constraints should not permit a state to "evade its statutory responsibilities" and instead the federal government should allocate greater resources to improve efficiency. Brief of Amicus Curiae The State of Florida, in Support of Respondents at 15. Texas Sheriffs and Counties, et al., in support of Texas and Louisiana, maintain that the executive must enforce immigration laws which have been duly enacted and must "follow the law," regardless of efficiency. Brief of Amici Curiae Texas Sheriffs and Counties et al., in Support of Respondents at 29.


New York, et al. ("New York"), in support of the United States, argue that creating clear immigration enforcement priorities improves public health, safety, and stability. Brief of Amici Curiae New York et al., in Support of Petitioners, at 17, 20. New York argues that setting clear priorities builds trust between law enforcement and immigrant communities, whereas uncertainty would lead to underreported crime and less cooperation. Id. at 20. New York asserts that noncitizens contribute to state economies by "filling gaps in the labor market," including in industries such as in farming, cleaning and maintenance, and home health care. Id. at 21, 23. Similarly, 21 Cities, Counties, and Local Government Organizations ("21 Cities"), in support of the United States, argue that immigrants have lower conviction and arrest rates, and undocumented immigration is linked to decreases in violent crime. Brief of Amici Curiae 21 Cities, Counties, and Local Government Organizations ("21 Cities"), in Support of Petitioners, at 8–9. 21 Cities asserts that unclear removal priorities will discourage immigrants from seeking medical and preventative care and enrolling in health insurance. Id. at 18–19. Ultimately, 21 Cities argues that unprioritized enforcement imposes huge psychological costs on children and harms their health, education, and professional development. Id. at 20, 26.

Texas Sheriffs and Counties, et al., in support of Texas and Louisiana, counter that clear immigration removal priorities "expose lawful residents to heightened crime." Brief of Texas Sheriffs and Counties et al. at 29. Texas Sheriffs, et al. argue that local law enforcement is strained and cannot "adequately respond to the surge in crime." Id. Texas Sheriffs, et al. and Arizona argue that removal priorities fail to address the "border crisis." Id. at 29; Brief of Arizona at 28. According to Arizona, the "border crisis" has increased law enforcement and health care costs. Id. at 29. Arizona contends that "actual enforcement of U.S. immigration laws by DHS" is the "rare exception, rather than the rule." Id. at 32.


Written by:

Laura DeMassa

Ashley Dyer

Edited by:

Tori Staley