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In July 2022, the Supreme Court agreed to review lower court decisions in this case, brought by Texas and Louisiana, challenging guidance Secretary of Homeland Security Mayorkas issued in September 2021 to Immigration and Customs Enforcement (ICE) about how to prioritize the agency’s enforcement and detention resources (in other words, the guidance memo sets priorities to help ICE agents decide which immigrants should be arrested and deported).  In general, the guidance prioritizes threats to national security, public safety, and border security, while also emphasizing a case-by-case approach. Per statute, the DHS Secretary is required to set such immigration enforcement priorities, and prior Administrations over the last 20+ years (including that of President Trump) issued similar guidance. Nonetheless, red states have challenged the guidance as extreme and unlawful, claiming that it did not go through required procedures and that its substance is insufficiently draconian.

The challenged guidance was vacated (voided) in June 2022 by District Court Judge Tipton, who held that the guidance conflicts with two immigration statutes and did not adhere to required procedures.  On July 6, 2022, the Fifth Circuit denied the Biden Administration’s request to stay (pause) the district court’s vacatur of the guidance pending the appeal.  The Biden Administration then asked the Supreme Court to stay the district court’s vacatur pending the Fifth Circuit appeal; the Supreme Court denied that request (by a 5-4 vote) on July 21, 2022 (meaning the guidance remains vacated for now), but granted review.

On October 24, 2022, former Kansas Secretary of State Kris Kobach filed a motion with the Supreme Court requesting that he be allowed to intervene in this case on behalf of a few Texas county sheriffs he represents in a different case (Coe v. Biden) challenging similar immigration enforcement. The Supreme Court denied that motion in a one-line order on November 21, 2022. 

The Supreme Court issued a decision in this appeal on June 23, 2023.  The Court held (by an 8-1 vote, with only Justice Alito dissenting) that Texas and Louisiana lack standing to challenge the enforcement priorities and that the case should be dismissed. Justice Kavanagh’s opinion for the Court held that the states’ alleged injuries are not “legally and judicially cognizable,” including because the states could not identify any “legal precedent, history, or tradition” of courts entertaining a case like this one, in which a plaintiff asks the judiciary to force the Executive branch to make more arrests. Four justices joined J. Kavanagh’s opinion, while two justices joined J. Gorsuch’s concurring opinion, in which he agreed that the states lack standing but for a different reason—no court order would redress their alleged injuries. (Justice Barrett also wrote a concurring opinion, but also she joined Justice Gorsuch’s concurrence and vice-versa).

Technical Summary

The district court (Judge Tipton) vacated the September 2021 guidance based on three APA claims.  Judge Tipton concluded that the guidance (1) “flatly contradicts detention mandates under [8 U.S.C.] Sections 1226(c) and 1231(a)(2),” and is therefore contrary to law; (2) was issued in an arbitrary and capricious manner due to the failure to consider “recidivism and abscondment,” the costs to the States, or the States’ purported reliance interests on mandatory detention; and (3) should have (but did not) go through notice and comment rulemaking.  Judge Tipton denied the States’ request for an injunction, reasoning that vacatur of the guidance was sufficient to remedy the States’ injuries.  Judge Tipton did, however, vacate the guidance nationwide, and not just as applied to the specific plaintiffs (Texas and Louisiana).

In granting certiorari, the Supreme Court directed the parties to brief and argue the following questions presented:

  1. Whether the 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 deciding the appeal, the Court did not reach questions 2 or 3.


Latest Updates

  • 06/23/2023
    Opinion (PDF)
  • 11/29/2022
    Oral Argument
  • 11/17/2022
    Biden Administration’s Reply Brief (PDF)

Full Timeline and Documents

  • 10/18/2022
    Texas’s Brief
  • 09/12/2022
    Biden Administration’s Opening Brief
  • 07/21/2022
    Order Denying Stay and Granting Certiorari
  • 07/14/2022
    Biden Administration’s Reply In Support of Stay Application
  • 07/13/2022
    Texas’s Response to the Stay Application
  • 07/08/2022
    Biden Administration’s Application for Stay Pending Appeal


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