The Supreme Court issued four more rulings today. I’m going to take a stab at summarizing the competing opinions in United States v. Texas, though I fear that I might not fully grasp some of the differences between Justice Kavanaugh’s majority opinion and the opinions of Justices Gorsuch and Barrett that concur in the judgment.

Some brief background: After President Biden took office, the Department of Homeland Security issued new guidelines for immigration enforcement. In what Kavanaugh calls an “extraordinarily unusual lawsuit,” Texas and Louisiana sued DHS on the ground that its guidelines violate federal statutes that, in their view, require DHS to arrest more criminal noncitizens pending their removal than the guidelines provide for.

Kavanaugh issued a majority opinion for five justices: himself, the Chief, Sotomayor, Kagan, and Jackson. Gorsuch, joined by Thomas and Barrett, wrote an opinion concurring in the judgment, as did Barrett, joined only by Gorsuch. Alito dissented.

1. Kavanaugh does not dispute the district court’s finding that Texas and Louisiana “would incur additional costs because the Federal Government is not arresting more noncitizens,” and he states that “[m]onetary costs are of course an injury.” But his opinion holds that Texas and Louisiana do not have a “judicially cognizable interest” in the federal government’s arrest policies. A lawsuit that seeks relief that would order the executive branch “to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions” lacks is “not the kind redressable by a federal court.”

Kavanaugh goes on (slip op. at 9-12) to state that his standing ruling against Texas and Louisiana does not mean that “federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.” For example, the “standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.” Ditto if a challenge is “to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status.” (Emphasis in original.) He also emphasizes that the “question of reviewability [in court] is different from the question of legality.”

2. Gorsuch and Barrett (in Gorsuch’s phrase) “diagnose the jurisdictional defect differently.” As Gorsuch puts it, the problem “isn’t the lack of a ‘judicially cognizable interest or injury,’” as the increased costs the states face ought to satisfy that. The problem instead is “a lack of redressability”: the injunction that the states would need to redress their injury is barred by a federal statute.

Barrett adds that she believes that the precedent Kavanaugh invokes does not resolve this case and that the “novel” rule that the majority creates is “in tension with other decisions.”

(I’ll note that Gorsuch, in Part III of his opinion (pp. 8-18), also calls into question whether federal courts may issue so-called “universal injunctions.” His observations on that important issue merit careful attention, but they’re beyond the scope of this post.)

3. In a long solo dissent, Alito argues that “settled law … leads ineluctably to the conclusion that Texas has standing.” He first explains why he believes that Texas “easily met” the three-part test—injury in fact, traceability, redressability—under Lujan v. Defenders of Wildlife (1992). (Slip op. at 10-14.) He then faults the majority’s “remarkable rule that injuries from an executive decision not to arrest or prosecute, even in a civil case, are generally not ‘cognizable.’” (Slip op. at 14-23.) That rule, he argues, “fails to engage with contrary precedent that is squarely on point,” “lacks support in the cases on which it relies,” and notes “exceptions (or possible exceptions) that … do nothing to allay concern about the majority’s break from our established test for Article III standing.” He also criticizes the majority for its refusal to reject the Biden DOJ’s “radical theory” that (in Alito’s summary) “even if a party clearly meets our three-part test for Article III standing, the Constitution bars that party from challenging a President’s decision not to enforce the law.”

Alito concludes by charging that, far from upholding our constitutional system of separation of powers, the majority inflates the power of the executive at the expense of Congress and the courts—and in the process it renders states “even more helpless” to deal with the “effects of massive illegal immigration.”