An Analysis of United States v. Texas: The Commodification of Undocumented Individuals in a Federal and State Government Power Struggle

On November 29, 2022, the United States Supreme Court heard oral arguments for United States v. Texas, in which the U.S. government sought to reverse a decision made by the U.S. District Court for the Southern District of Texas earlier that year. The judge for the lower court case, Drew Tipton, ruled in favor of the plaintiffs, the states of Texas and Louisiana, to vacate the Mayorkas Memorandum, allowing Immigration and Customs Enforcement (ICE) to target more demographics of undocumented immigrants for deportation. The Memorandum in question, released by the Department of Homeland Security (DHS) on September 31, 2021, set three criteria for which undocumented people in the country would be prioritized for deportation: those considered a threat to national security, public safety, or border security. A decision from the Supreme Court is expected to be released in June 2023 to either reinstate the Mayorkas Memorandum or vacate it, which would render a larger number of undocumented immigrants subject to deportation by ICE. The case’s ruling will have broad implications for states’ ability to challenge federal immigration policy through the judiciary, including possibly making established legal precedent concerning undocumented immigrants more easily contestable by anti-immigration states.

The initial hearing by the Supreme Court was based on three primary questions presented by the Justices to both parties: whether states have the right to challenge the federal government via a lawsuit (known as legal standing), whether the memorandum aligns with previous legal precedent concerning immigration, and whether or not a lower district court judge like Tipton had the authority to vacate a federal policy. 

Regarding the first question, the representative for Texas, Solicitor General Judd Stone, argued that his state had standing on the basis that the Mayorkas Memorandum directly harmed states via the “costs that the policy inflicts on them, for everything from social services to incarceration for noncitizens who commit new crimes.” This is questionable, as the charges incurred from choosing to incarcerate and deport larger groups of undocumented immigrants would be, as noted by Justice Ketanji Brown Jackson, “a self-inflicted injury” that would be made at the discretion of a state. Regarding the costs of providing social services to undocumented immigrants, there are few programs that they are eligible for in terms of government assistance like food stamps or medical insurance, making Stone’s claim “uncertain” and based on negative assumptions about undocumented immigrants. If, however, the Supreme Court were to rule in favor of Stone’s argument, it would establish precedent for states to challenge federal immigration law based on their individualized needs, opening the door for anti-immigrant states in the future to contest virtually any immigration law that conflicts with their state politics.

Additionally, Stone argued that the Mayorkas Memorandum was in clear violation of federal immigration law for prioritizing the deportation of specific groups of undocumented immigrants. Specifically, Stone referenced two statutes which state that ICE “shall” detain immigrants on removable criminal grounds and with final removal orders over a 90 day period. It should be noted, however, that the federal executive branch has traditionally possessed the power to delay deportation, known as prosecutorial discretion. This is mentioned in the memorandum: “It is well established in the law that federal government officials have broad discretion to decide who should be subject to arrest, detainers, removal proceedings, and the execution of removal orders.” Both Chief Justice John Roberts and Justice Brett Kavanaugh made note about the impracticality of what the states were arguing for, given the limited financial resources and enforcement officers, as well as the tedious process of deportation, essentially upholding what the Mayorkas Memorandum sought to do: emphasize the arrest and deportation of a smaller and more manageable percentage of undocumented immigrants. Stone’s interpretation of the statutes would open the possibility for all undocumented immigrants to be categorized at the same threat level for deportation, eliminating the case-by-case approach that has historically been used in a deportation decision.  

The last question addressed in the hearing concerned the power Judge Tipton had in vacating federal guidelines. U.S. Solicitor General Elizabeth B. Prelogar argued that traditionally only the Supreme Court possesses the power to vacate federal immigration law. This claim was contested both by the states and the justices, given that it is indeed possible for lower courts to set aside the actions of federal agencies if they are in violation of federal law. However, as has been mentioned, whether or not the guidance released by the Biden Administration violated federal law is questionable, meaning that the particular argument made by Prelogar and the effect it could have on the state of immigration law is more unclear than the other questions posed by this case. 

The ruling in United States v. Texas has the potential to alter the balance of power between federal and state governments. In the context of immigration policy, this means that if the Supreme Court rules in favor of Texas, anti-immigrant states in the future will likely have the power to sue the federal government and challenge existing legal precedents on immigration, threatening to exacerbate the already highly political issue. While these are the potential long-term effects of a pro-Texas ruling, the immediate aftermath of a vacated Mayorkas Memorandum is evident. As noted by proponents of the reinstallation of the memo, judicial reporters, and commentators, the ruling will essentially make “a working mother with no criminal history … just as great a removal priority as a would-be terrorist or violent felon” to ICE officials, given that there will be less discretion in selecting who to target for expulsion from the country. Thus, beyond threatening the balance between federal and state government on the issue of immigration law, this case also holds dire implications for the livelihoods of undocumented immigrants in the United States.

Editors: Reed Cantrell and Anna Reis