Skip to content


By: Maya Wells Hermerding, Volume 107 Staff Member

In its second major immigration-related case of the term, the Supreme Court will weigh the executive branch’s authority to regulate immigration policy as conservative states contend that the Biden administration’s policies put them at a disadvantage.[1] In July 2022, the Supreme Court granted certiorari in United States v. Texas to address three questions: (1) whether the state plaintiffs have Article III standing to challenge the Department of Homeland Security’s (DHS) guidelines; (2) whether the guidelines violate the Immigration and Nationality Act (INA) or the Administrative Procedure Act (APA); and (3) whether a court’s power “to hold unlawful and set aside agency action” under Section 706(2) of the APA permits courts to vacate agency action such that it cannot be applied to anyone.[2] Oral argument for the case was held on November 29, 2022.[3]

This Post explains the immigration landscape leading up to the United States v. Texas decision. It then analyzes the Supreme Court’s decision in Biden v. Texas, the previous immigration case decided in the 2022 term, to understand how the current Court might approach other immigration-related cases. The Post closes with a prediction that the Court will rule in favor of the Biden administration on the issue of removal prioritization by emphasizing the executive branch’s expansive power over immigration.


The policy at the heart of the case stems from a September 2021 memorandum that the Secretary of Homeland Security, Alejandro Mayorkas, released addressing the federal government’s new priorities for “apprehension and removal of noncitizens.”[4] The memo highlighted a 2012 Supreme Court case noting that broad discretion by immigration officials is a principal feature of the U.S. removal system[5] and that federal officials must decide whether to remove all “removable noncitizens” or focus on certain priority groups.[6] There are 11 million undocumented or otherwise removable individuals in the United States.[7] This fact led Mayorkas to state that the Biden administration would focus its efforts on deporting three categories of removable individuals—those who pose a threat to national security, public safety, and border security.[8]

Five states brought two separate claims in federal district court in response to the DHS policy.[9] Arizona, Montana, and Ohio challenged the policy in an Ohio federal district court.[10] Although the district court barred the Biden administration from relying on the memorandum, the U.S. Court of Appeals for the Sixth Circuit reversed the ruling, finding instead that the three states were unlikely to succeed on the merits.[11] Texas and Louisiana brought a separate claim against the policy in a federal court in Texas. U.S. District Court Judge Tipton vacated the DHS policy on June 10, 2022.[12] On appeal, the Fifth Circuit concluded that Texas had Article III standing to challenge the policy because the state would have to spend more money on law enforcement and social services.[13] Additionally, the court held that the policy violates the APA because it grants DHS discretion to decide who will be detained and when, and because it was issued without notice and comment.[14] Thus, the Fifth Circuit vacated the policy nationwide, and it denied the Biden administration’s request to have Tipton’s ruling put on hold during the appeal process.[15]

On July 8, the Biden administration asked the Supreme Court to temporarily block the federal court’s ruling vacating the policy nationwide.[16] U.S. Solicitor General Elizabeth Prelogar argued the case should not continue because (1) the states do not have a right to sue based on their claim that the policy may indirectly cost them more,[17] and (2) the holding in Garland v. Aleman Gonzalez clarified that a provision of federal immigration law does not allow district courts to compel the executive branch to comply with their interpretation of relevant statutory provisions.[18] The states responded by (1) emphasizing their right to sue due to financial harm from the new policy, and (2) arguing that the relevant provision merely “limits a district court’s jurisdiction to enter an injunction.”[19] The district court in this case vacated the policy rather than instituting an injunction.

In a brief order issued on July 21, the Supreme Court denied the Biden administration’s application for a stay of the federal district court’s judgment.[20] However, the Court adhered to Prelogar’s request that it fast-track the case for oral argument this fall.

The Supreme Court’s decision to hear the case comes less than one month after its decision in Biden v. Texas, another high-profile suit between Texas and the federal government over immigration policy. The Court’s holding in this case may give insight into how it will decide United States v. Texas.


On June 30, 2022, in a 5-4 decision, the Supreme Court freed the Biden administration to end a Trump-era policy, Migrant Protection Protocols (MPP), also commonly known as “Remain-in-Mexico.”[21] DHS initially instituted MPP on December 20, 2018. To initiate the policy, DHS released a memorandum that relied on an INA provision—8 U.S.C. § 1225(b)(2)(C)—that authorized immigration officials to return certain recent entrants to a country contiguous to the United States while the foreign national awaits a full hearing.[22]

In June 2021, the Biden administration attempted to end the policy, but Texas and Missouri challenged the action.[23] The States argued that rescinding the policy violated both federal immigration law and the APA.[24] A federal district court agreed with the challengers—ordering the Biden administration to either implement MPP in good faith or initiate a new agency action in compliance with the APA.[25] Both the Fifth Circuit and the Supreme Court declined to block the lower court’s ruling.[26] In October 2021, DHS issued another memorandum stating its intent to end MPP supported a more detailed explanation of its reasoning.[27] Again, a district court ordered DHS to continue the policy, and the Fifth Circuit upheld the order.[28] Thus, the Biden administration appealed to the Supreme Court to determine whether the Government’s rescission of MPP violated the INA and whether the Government’s second termination of the policy was a valid final agency action.[29]

Writing for the majority, Chief Justice Roberts resolved a threshold question of jurisdiction.[30] Roberts concluded that 8 U.S.C. § 1252(f)(1)—which states that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation” of the INA’s removal provisions, apart from individual removal cases involving specific noncitizens—does not strip lower federal courts of subject matter jurisdiction over legal challenges to removal rules.[31]

In turning to the merits, Chief Justice Roberts noted that 8 U.S.C. §1225(b)(2)(C) states that immigration officials “may return” the noncitizen to a foreign state “contiguous to the United States.”[32] Citing Opati v. Republic of Sudan,[33] Roberts noted that the Supreme Court has repeatedly held that the use of “may” in statutes clearly confers discretionary power to the Government’s decisionmaker.[34] Roberts contrasted “may” with words like “shall” or “must” to represent its discretionary nature.[35] Importantly, since its enactment, every presidential administration has interpreted section 1225(b)(2)(C) as purely discretionary.[36] To further support his conclusion, Roberts noted that interpreting the provision as mandatory would restrict the executive branch’s ability to conduct diplomatic relations with Mexico, which Congress likely did not intend. Once the district court vacated the original attempt to rescind the policy, DHS properly “issue[d] a new rescission bolstered by new reasons” separate from the original rescission.[37]

Ultimately, the Court’s recognition of the executive branch’s expansive power over the immigration system and its right to exercise discretionary power when granted by law may be helpful to the Government in arguing its case in United States v. Texas.


I predict that even with its current conservative majority, the Supreme Court will rule in favor of DHS. Secretary Mayorkas’s actions are protected by both statutory law and Supreme Court precedent.

A. Statutory Law Protections

Federal law provides that the Secretary of Homeland Security “shall be responsible” for “establishing national immigration enforcement policies and priorities.”[38] Immigration enforcement agencies such as Immigration and Customs Enforcement (ICE) are under the control the Secretary of DHS. Pursuant to his statutorily authorized power, Secretary Mayorkas issued the September 2021 memorandum to ICE’s acting director stating priority status for deporting certain removable immigrants.

As a practical matter, there is no feasible way for DHS to apprehend and deport every undocumented person. Each year, Congress only appropriates enough resources to remove approximately 400,000 individuals of the 11 million undocumented people in the United States.[39] Additionally, historical practice supports Mayorkas’s memorandum as Secretaries of Homeland Security have issued similar memoranda in previous years.[40]

B. Supreme Court Precedent Protections

Even without explicit authorization to establish a priority schedule, Mayorkas would have the power to do so under his prosecutorial discretion which allows law enforcement agencies to decide not to enforce a particular law against a particular individual. The Supreme Court has warned federal judges to be reluctant in their criticism of law enforcement agency discretion.[41] The presumption in favor of agency discretion is particularly strong in the immigration context because the Supreme Court has held that “a principal feature of the removal system is the broad discretion exercised by immigration officials.” [42] The Court also previously noted that the executive branch’s discretionary power is so strong that it may “abandon [an] endeavor” even after it decides to bring removal proceedings against a particular immigrant” for “humanitarian reasons or simply for its own convenience.”[43] These holdings coupled with a strong body of Supreme Court precedent holding that the executive branch, not the judiciary, decides enforcement priorities gives the Court ample reason to rule in favor of the Biden administration.

The stakes in United States v. Texas are high. The authority to set enforcement priorities is a longstanding and necessary function of the executive branch. Invalidating the DHS memo would frustrate the agency’s ability to effectively enforce U.S. immigration law. If the Supreme Court rules in favor of the plaintiffs, the Biden administration will likely spend the next two years fighting conservative federal judges who block his immigration policies.


[1] See Texas v. United States, 40 F.4th 205 (5th Cir. 2022), cert. granted, 213 L.Ed.2d 1138 (U.S. 2022) (No. 22-58(22A17)).

[2] Id.

[3] Supreme Court of the United States October Term 2022, [].

[4] dep’t of homeland sec., guidelines for the enforcement of civil immigration law (2022), [].

[5] Id. at 2.

[6] Id.

[7] Id.

[8] Id. at 3–4.

[9] Texas v. United States, Civil Action No. 6:21-CV-00016, 2022 U.S. Dist. LEXIS 104521 (S.D. Tex. June 10, 2022); Arizona v. Biden, No. 3:21-CV-314, 2022 U.S. Dist. LEXIS 50576 (S.D. Ohio Mar. 22, 2022).

[10] Arizona, 2022 U.S. Dist. LEXIS 50576, at *1.

[11] Arizona v. Biden, 40 F.4th 375, 390 (6th Cir. 2022).

[12] Texas, 2022 U.S. Dist. LEXIS 104521 at *118.

[13] Texas v. United States, 40 F.4th *205, *215–19 (5th Cir. 2022).

[14] Id. at *226.

[15] Id. at *230.

[16] Application for a Stay of the Judgment Entered by the United States District Court for the Southern District of Texas at 1, United States v. Texas, 213 L.Ed.2d 1138 (U.S. 2022) (No. 22-58(22A17)).

[17] Id. at 4–5.

[18] Id. at 3.

[19] Respondents’ Opposition to Motion for a Stay Pending Appeal at 30, United States v. Texas, 213 L.Ed.2d 1138 (U.S. 2022) (No. 22-58(22A17)) (emphasis added).

[20] Texas v. United States, 40 F.4th 205 (5th Cir. 2022), cert. granted, 213 L.Ed.2d 1138 (U.S. 2022) (No. 22-58(22A17)).

[21] Id.

[22] Dep’t of Homeland Sec., Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration (2018), [].

[23] Texas v. Biden, 554 F. Supp. 3d 818, 828 (N.D. Tex. 2021).

[24] Id. at 847.

[25] Id.

[26] State v. Biden, 10 F.4th 538 (5th Cir. 2021); Biden v. Texas, 142 S. Ct. 926 (2021).

[27] Dep’t of Homeland Sec., Termination of the Migrant Protection Protocols (2019), [].

[28] Texas v. Biden, 20 F.4th 928 (5th Cir. 2021).

[29] Biden v. Texas, 142 S. Ct. 2528 (2022), petition for cert. filed.

[30] Biden v. Texas, 142 S. Ct. 2528, 2538 (2022).

[31] Id.

[32] Id. at 2541 (emphasis added).

[33] 140 S. Ct. 1601, 1609 (2020) (explaining that the Court has repeatedly observed the use of the word “may” in legislative statutes discussing remedial provisions “clearly connotes discretion”).

[34] Id.

[35] Id.

[36] Id. at 2543.

[37] Id. at 2545.

[38] 8 U.S.C. § 202(5)

[39] Dep’t of Homeland Sec., The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others (2014), [].

[40] See e.g., Application for a Stay of the Judgment Entered by the United States District Court for the Southern District of Texas at 1, United States v. Texas, 213 L.Ed.2d 1138 (U.S. 2022) (No. 22-58(22A17)) (explaining that federal agencies routinely adopt enforcement priorities without notice and comment with similar policy statements being released in 2000, 2010, 2014, and 2017).

[41] See Heckler v. Chaney, 470 U.S. 821, 832 (1985) (stating that “an agency’s decision not to take enforcement action should be presumed immune from judicial review”).

[42] Arizona v. United States, 641 F.3d 339 (2012).

[43] Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84 (1999) (emphasis added).