Law Enforcement Immigration Task Force

News and Resources

Learn more. Contact Us.

Share questions. Get more information. Get involved.

United States v. Texas Explainer: Can the Executive Branch Set Immigration Enforcement Priorities?

Law Enforcement Immigration Task Force   Focus Point

This explainer provides an overview of U.S. v. Texas, the legal challenge to the Biden administration’s immigration enforcement priorities that was argued before the U.S. Supreme Court on November 29, 2022. The questions being considered by the Supreme Court and their implications – with potentially significant impacts on immigrants, agency authority, and the relationship between the federal government and the states – are presented and summarized.


On September 30, 2021, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued immigration enforcement guidelines that affirmed the right of DHS to exercise prosecutorial discretion in choosing which undocumented immigrants to target for enforcement actions such as detention and deportation. Specifically, the guidelines — referred to as the “Mayorkas memo” — direct Immigration and Customs Enforcement (ICE) to prioritize undocumented or otherwise removable immigrants who threaten national security or public safety or who recently crossed the border without authorization.

Because DHS and ICE do not have the capacity to target, detain, and deport all 11 million undocumented immigrants living in the U.S., they, like other federal, state, and local law enforcement agencies, have long utilized prosecutorial discretion to direct limited resources towards effective enforcement. Across multiple prior administrations, DHS and/or ICE have applied prosecutorial discretion principles to issue immigration enforcement priorities aimed at reducing threats to the community.

Nevertheless, a group of states led by Texas (“states bringing suit”) sued the federal government to challenge the Mayorkas memo, arguing that the enforcement guidelines violate mandatory detention provisions of the Immigration and Nationality Act (INA). In June, U.S. District Judge Drew Tipton agreed with the states bringing suit, vacating the Mayorkas memo. After the U.S. Court of Appeals for the Fifth Circuit declined to stay Judge Tipton’s ruling, the U.S. Supreme Court took the case, leaving the order vacating the Mayorkas memo in place during litigation. The Supreme Court heard oral arguments in the case – United States v. Texas – on November 29, 2022 and is expected to rule on the case in Spring 2023.

Questions before the Court

 The Supreme Court must decide on the following questions:

  1. Do the states bringing suit have standing to challenge the DHS enforcement guidelines?

 This question hinges on whether the states bringing suit can demonstrate that the guidelines caused them injury, giving them standing to sue. These states argue that the guidelines will increase the number of undocumented immigrants present in the U.S., leading them to endure to higher costs related to public services or incarceration. The Biden administration argues the guidelines are cost-effective and reasonable, prioritizing those who are highest risk to the states bringing suit and the public, generally. The administration also argues that courts have not recognized these types of speculative or indirect costs as an injury that would create the right to sue. If the states bringing suit prevail, the administration argues that any state could “sue the federal government about virtually any policy” in the future.

  1. Do the enforcement guidelines violate federal immigration laws and laws governing agency actions?

This question hinges on whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) prohibits the promulgation of immigration enforcement priorities. IIRAIRA states the federal government “shall” detail all noncitizens who have committed certain crimes and that it “shall” deport all noncitizens with final orders of removal. The states bringing suit argue that the Mayorkas memo renders these mandatory requirements discretionary by deprioritizing certain individuals, and that DHS lacked authority to issue this guidance.

The Biden administration argues that federal immigration laws have never been interpreted as requiring the agency to detain all immigrants unlawfully in the U.S. because the agency has never had sufficient resources to do so – it’s simply not possible for the federal government to detain and/or deport the entire undocumented population. Previous Supreme Court rulings have made clear that enforcement agencies retain expansive discretion “not to prosecute or enforce,” particularly in the context of immigration enforcement.  The Biden administration further claims that it satisfies its statutory requirements by using all the resources available on immigration enforcement, it just does so in a prioritized manner due to the capacity constraints.

  1. Can lower courts issue nationwide injunctions blocking federal immigration and border policy?

This question rests on whether lower federal courts can vacate immigration policies of a national scope. The Biden administration argues the Immigration and Nationality Act makes clear that only the Supreme Court has the authority to “enjoin or restrain” the operation of immigration law and that lower courts generally are not permitted to halt such policies on a nationwide basis.

The states bringing suit counter that federal administrative law grants lower courts the ability to “set aside” federal actions that violate federal law – an argument that appeared to receive support from both the Supreme Court’s liberal and conservative wings at oral argument.

Implications of the Case

The Supreme Court’s upcoming ruling on United States v. Texas is likely to have significant implications for immigrants, agency authority, and the relationship between the federal government and the states.


The Supreme Court’s ruling on the standing question is critical because it will determine how and whether states can halt federal policies through litigation. If the Court rules for the states bringing suit, it will solidify a broad definition of standing for states experiencing even indirect or uncertain injuries traced to federal policies. This reading of standing is likely to lead to more and more state challenges to federal policies – impacting both Democratic and Republican presidential administrations in the future.

Immigrants and Immigration Enforcement

The Supreme Court’s ruling will determine whether the federal government can set priorities in immigration enforcement, with potential spillover effects in other areas of law enforcement. A ruling for the Biden administration will allow DHS to continue to prioritize threats to public safety and national security, as previous administrations have done.

A ruling for the states bringing suit, however, could have distorting effects, ramping up enforcement against long-term undocumented residents who pose no threat and directing resources away from actual threats to public safety. Such a ruling may also undermine community trust, leading immigrant communities to avoid cooperating with law enforcement at the federal, state, and local levels out of fear of that they, their families members, and other community members could face detention or removal as a result an encounter with government authorities.

Lower Courts Power to Block Immigration Policies

Finally, the Court’s ruling will determine the extent to which lower federal courts can block federal policies. If the Court rules for the states bringing suit, we will likely see additional challenges against federal policies — in immigration and in other areas – against presidential administrations of both parties. Such a ruling may also incentivize instances of “judge shopping,” where states seek to file challenges in front of “friendly” federal judges likely to rule in their favor to enjoin administration policies on a nationwide basis. This practice can undermine the ability of the executive branch to set and carry out lawful policies, holding up policy implementation for months or years even in situations where the administration ultimately prevails in the Supreme Court.

On the other hand, a ruling in favor of the Biden administration could prevent courts from halting blatantly unlawful policies in a timely manner – potentially incentivizing future presidential administrations to set policies in violation of federal law.

In Conclusion

If the states bringing suit against the Biden administration prevail, DHS and other enforcement agencies will be limited in how they can set enforcement priorities, even those aimed tailored towards targeting threats to public safety – with potential negative impacts to community trust. And we will likely see states be more aggressive in the future in filing lawsuits to halt executive branch actions by presidential administrations of both parties – in the area of immigration policy and elsewhere.

If the Biden administration wins, presidential administrations will retain the ability to utilize prosecutorial discretion in reaching enforcement decisions – and DHS will continue to be able to set priorities aimed at directing resources towards threats to public safety and national security.

Follow me