All justices besides Samuel Alito concurred in the opinion that Texas and Louisiana lack standing to challenge the new rules, which the Department of Homeland Security promulgated in 2021.

Texas and Louisiana argued that federal law requires law enforcement to arrest certain noncitizens upon their release from prison or entry of a final order of removal, but the new DHS rule only prioritizes the arrest and removal of noncitizens who are suspected terrorists or dangerous criminals who unlawfully entered the country recently. The states claimed that these rules harmed them by imposing extra costs by requiring them to continue to incarcerate or supply social services—such as health care and education—to noncitizens.

While the US District Court for the Southern District of Texas last year found that the states would incur additional costs, the Supreme Court ruled that any alleged injury must also be "legally and judicially cognizable" to meet standing requirements, and this harm does not.

On the merits, the district court found the DHS guidelines unlawful and vacated them, and the 5th US Circuit Court of Appeals declined to stay the court's judgment.

Justice Brett Kavanaugh delivered the court's opinion, and Chief Justice John Roberts joined it, along with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Justice Neil Gorsuch wrote a concurring opinion, in which Justices Clarence Thomas and Amy Coney Barrett joined. Barrett also wrote a concurring opinion, which Gorsuch joined.

Alito condemned the decision in a scathing dissent.

"The Court holds Texas lacks standing to challenge a federal policy that inflicts substantial harm on the State and its residents by releasing illegal aliens with criminal convictions for serious crimes," Alito wrote. "In order to reach this conclusion, the Court brushes aside a major precedent that directly controls the standing question, refuses to apply our established test for standing, disregards factual findings made by the District Court after a trial, and holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress's power to employ the weapons of inter-branch warfare—withholding funds, impeachment and removal, etc."

"I would not blaze this unfortunate trail," the justice added. "I would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing."

While Barrett agreed that Texas lacks standing, she faulted the court's decision, saying it "weaves together multiple doctrinal strands to create a rule that is not only novel, but also in tension with other decisions."

Hans von Spakovsky, senior legal fellow at The Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies, commented on the ruling. (The Daily Signal is The Heritage Foundation's news outlet.)

"This opinion recognizes the constitutional limit on the power of the federal judiciary and state governments to remedy a reckless president and his policy of refusing to properly and vigorously enforce federal law," von Spakovsky told The Daily Signal. "It is important to realize that this was a procedural decision based on a lack of standing, i.e., the inability of the state governments to bring such a claim against the executive branch."

"The Court was very careful to say that it was not ruling on the Biden administration lack of compliance with federal law," he noted. "That is a major problem that can only be fixed by Congress and potentially voters through the election process." Subscribe for free to Breaking Christian News here

Since the start of the Biden administration, Customs and Border Protection reports encountering more than 5.5 million illegal aliens at the southern border. Since fiscal year 2023 began on Oct. 1, CBP has encountered more than 1.4 million illegal aliens, about triple the number encountered at the southern border during fiscal year 2020.

U.S.-v.-Texas-DHS-border-policy Download

This is a breaking story and will be updated. The Daily Signal's Virginia Allen contributed to this report.

Tyler O'Neil is managing editor of The Daily Signal and the author of "Making Hate Pay: The Corruption of the Southern Poverty Law Center."

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