Notice & Comment

U.S. v. Texas and the Many Shades of Prosecutorial Discretion, by Michael Kagan

The Supreme Court’s decision in United States v. Texas partly resolves an immeasurably important question in American immigration law. Can the Executive Branch use prosecutorial discretion to deport some immigrants, but not others?

The practical answer is: Yes. Prosecutorial discretion lives. Specifically: States do not have standing to block the Biden Administration from prioritizing the arrest and deportation of certain removable non-citizens, while not arresting and prosecuting others. This holding affirms the viability of prosecutorial discretion in immigration enforcement, which had been cast into doubt by this case. But the Texas decision also contains a warning. It made more clear than prior Supreme Court cases that there are many shades of prosecutorial discretion, and that other forms of discretion may yet be in legal jeopardy even if the Biden policy in this case is immune. 

It is difficult to exaggerate the importance of prosecutorial discretion to the daily operation of immigration law (or more precisely, deportation law). A study conducted during the Obama Administration suggested that policies similar to those at issue in this case can benefit close to 90 percent of undocumented immigrants in the United States. As Shoba Wadhia (among others) has extensively demonstrated, prosecutorial discretion has always been a key part of immigration law. But for a long time, discretion policies in immigration enforcement were kept largely invisible from the public, often exposed only through long battles under the Freedom of Information Act.

Today, prosecutorial discretion is publicized and a prominent issue in presidential politics. This new era of presidential immigration law can be traced mainly to the Obama Administration. President Obama raised the profile of prosecutorial discretion, most importantly by creating the DACA program in 2012 and then attempting to expand it in 2014, both with high profile presidential speeches and announcements. The Obama Administration also made a concerted effort to publish policies that previously would have operated out of sight. After Obama, both Donald Trump and Joe Biden campaigned for president by making bold, opposing promises to how they would use (or abolish) prosecutorial discretion to expand or narrow who would be deported.

It is actually a little difficult to find the right phrasing to describe the current status of prosecutorial discretion after the Texas decision. We cannot quite say that the Court found the Biden policies to be definitively legal on the merits, since Texas was decided on standing grounds. Justice Kavanaugh’s majority opinion states explicitly that “We take no position on whether the Executive Branch here is complying with its legal obligations.” Slip Op. at 13.  But the decision effectively means that states like Texas do not have standing to challenge the legality of these policies. And, probably, neither does anyone else. What we know is: Prosecutorial discretion lives.

In terms of general standing doctrine, there was some speculation that Texas and the student loan cases that the Supreme Court decided seven days later might rein in “special solicitude” for state claims to standing when states suffer only indirect injuries. For the most part, the state standing question seems to be a can kicked down the road. The majority in the main student loan case (Biden v. Nebraska) found that the state had been directly injured. Nebraska, Slip Op. at 8. That holding has been hotly debated, but it rendered the special solicitude question irrelevant in the main student loan case.

Yet, one can certainly argue that the Supreme Court sent a message this term that direct injury matters, and states cannot be sure that other standing theories will work. There is a footnote in Texas that cast doubt on state standing based on indirect effects of federal policies. Slip Op. at 8-9 n. 3. In Department of Education v. Brown  a unanimous Court found that a private party who was no worse off financially because of the federal policy and who would not directly gain from a favorable ruling did not suffer a direct injury. That poses a problem for anyone who wants to challenge a government policy that offers a benefit to some people while ignoring others. 

An immigrant who is fighting deportation will never have a problem showing a direct injury. She is asking the court to stop her own forcible removal from the country. But plaintiffs challenging federal policies that the restrain deportation of other people have a problem. No matter what a court does, they will end the case exactly where they started. So what right do they have to raise a case at all? In Brown, Justice Alito explained succinctly the standing challenge in such cases, noting that government benefit programs routinely leave some people out, but the people who are not benefited usually cannot challenge the programs in court. Brown, Slip Op. at 9. The same is likely true for immigration programs that benefit some people but not others.

This is where the fuzzy boundaries of state standing become especially fraught, and the whiff of xenophobia starts to seep in. On immigration enforcement, Texas and Louisiana argue that they are indirectly injured when the federal government decides not to arrest and deport a person who in theory could be removed from the country. As the Court summarized the claim: “[T]hey must continue to incarcerate or supply social services such as healthcare and education to noncitizens who should be (but are not being) arrested by the Federal Government.” Slip Op. at 2.

The Court in Texas repeated the states’ claim about how they were supposedly injured, but did not analyze it. That is a shame, because scratch the surface of the Texas/Louisiana arguments and they do not hold up well. To start with, it is not completely clear what Texas and Louisiana mean when they claim that they need to “continue to incarcerate” immigrants if the federal government won’t deport them. Why would states need to detain immigrants just because they are immigrants, and if they did would it even be constitutional? To be clear, nothing in immigration law prevents a state from carrying out judicially-imposed prison sentences on immigrants who are convicted of crimes. But just like anyone else, immigrants should be released from state custody when their sentences are finished. Are Texas and Louisiana saying that they want to give immigrants convicted of crimes special treatment, allowing them to be deported rather than serve prison sentences as citizens would? If it’s not that, then shouldn’t the states just release people if the federal government is not interested in them?

The Texas/Louisiana argument has other disturbing, offensive implications. At base, the states are arguing that they are injured by the mere presence of certain people inside their borders. Jennifer Lee Koh has explored the problems with this “immigrant-as-injury” theory and argued for the Court to limit solicitude for states in this context. Anytime a person moves into the state or a new baby is born, the state may be on the hook for providing social services. There are a myriad federal policies that can lead people to migrate into certain states, which will impose potential costs on those states. Expanding a military base. Subsidizing an industry that is concentrated in certain states. Providing grants to homeowners to make it easier to weatherize a home for harsh climates. Do states have standing to challenge such policies just because they lead people to live in one place rather than another? Or is it only immigrants whose mere presence is an injury? 

The Court sidestepped this minefield. What Justice Kavanaugh’s majority opinion does instead is hold that courts cannot order the Executive Branch to arrest and prosecute more people. Texas thus confirms who most immigration law scholars already believed. The President can give direction to immigration enforcement by deciding to target certain undocumented immigrants for detention and deportation, but not others. 

But what does this mean for the most publicly well-known form of prosecutorial discretion, namely, the embattled DACA program (Deferred Action for Childhood Arrivals)? Well, the answer is: DACA may still be in trouble, unless the Court really cracks down on indirect effects as a basis for state standing. 

Immigration scholars and advocates (myself included) have long argued that the President can use prosecutorial discretion to fill gaps in the immigration statutes by creating deferred action programs. The DACA program, which helps undocumented immigrants who were brought to the United States as children, is the most well-known of these programs, though there are others. The legal justification for such programs is rooted in prosecutorial discretion, and the arguments made for deferred often mirror the language the Supreme Court has used to uphold the use of enforcement discretion in cases like Texas

Yet, deferred action programs have always been a bit different than what the Supreme Court considered in Texas or in previous cases dealing with prosecutorial discretion, like Reno v. American-Arab Anti-Discrimination Committee or Arizona v. United States. The essence of the discretion at issue in these cases is that beneficiaries are simply not arrested, and not pursued for deportation.  They are just left alone, and often will not even know they are beneficiaries. 

By contrast, with deferred action programs like DACA, the government posts criteria, people send in an application, and they receive back a letter telling them the Department of Homeland Security has decided to grant them deferred action, which (according to a Reagan-era regulation) entitles them to employment authorization. It no doubt serves some of the purposes that the Court articulated in Arizona. It “embraces immediate human concerns.” It recognizes the value of “unauthorized workers trying to support their families” and of people with “long ties to the community.” And yet, deferred action programs do more than just leave people alone. This may also be justified by prosecutorial discretion. But it is different.

Back in 2015, I suggested that there is a taxonomy of discretion in immigration policy, and that some types are more subject to doubts about their legality than others. Justice Kavanaugh’s opinion for the Court adopts something like this taxonomy, by stating that its holding might not apply to other types of prosecutorial discretion. 

For example, the Court noted that its holding in Texas might not apply if the Executive “wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.” Slip Op. at 11. This is the scenario envisioned by the famous Footnote Number 4 in Heckler v. Chaney(1). The Supreme Court has still never directly applied this idea, though it might explain why President Biden’s early effort to impose a near-complete moratorium on deportations could not stand

The Court articulated another limitation on the Texas holding that is ominous for beneficiaries of deferred action programs like DACA. The Court said that the standing analysis might be different if discretion to not arrest and deport certain people is combined with “provision of legal benefits or legal status.” Slip Op. at 11. Such a policy would “implicate more than simply the Executive’s traditional enforcement discretion.” Id. In case there is any doubt what programs the Court was thinking of here, the opinion cites to past litigation about DACA and related Obama-era programs. 

To be clear, the Court did not decide that states have standing to challenge DACA, nor that DACA is illegal on the merits. Justice Alito, the lone dissenter in Texas, complained that the Court did not have a principled reason to limit its holding from also applying in these other types of prosecutorial discretion cases. Slip Op. at 3. To that, I might reply: Exactly. Texas should not have standing to challenge DACA, either. But that does not appear to be the way the majority of the justices see it. 

The lesson from Texas is thus two-fold. On the one hand, prosecutorial discretion in immigration enforcement lives on, and appears fairly secure. But on the other hand, there are many types of prosecutorial discretion, and some – like DACA – remain in legal jeopardy. For better or worse, immigrants cannot rely on the Court’s refusal to block discretion in one type to defend the others. 


(1) Heckler v. Chaney Footnote 4: “We do not have in this case a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction. Nor do we have a situation where it could justifiably be found that the agency has ‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”

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