United States v. Texas and Discretion in Arrest and Prosecution

The Supreme Court just concluded its Term with blockbuster decisions on affirmative action, free speech, and student loan forgiveness. But criminal law practitioners should be aware of a less-ballyhooed case that is significant for its broad pronouncements about the discretion of police and prosecutors. The case is United States v. Texas. This post summarizes the decision and places it in context of the ongoing national debate about discretionary decisions concerning arrest and prosecution.

Summary of the case. The case arose after the Biden Administration promulgated guidelines concerning the enforcement of immigration law. The guidelines advised immigration officers to focus on immigrants who were suspected terrorists or extremely dangerous criminals. The guidelines instructed officers not to pursue other immigrants subject to deportation, including:

  • Some who had been convicted of lesser offenses, despite language in 8 U.S.C. 1226(c) saying that such convicted persons “shall” be arrested and deported.
  • Some who were subject to final orders of removal, notwithstanding language in 8 U.S.C. 1231(a)(2) saying that such immigrants “shall” be detained and not released before deportation.

Texas and Louisiana sued the federal government, contending that they were injured by the guidelines because they had to spend money providing benefits to and/or incarcerating some immigrants who were legally eligible for deportation but who were not prioritized for deportation under the guidelines. The states prevailed in the lower courts, but the Supreme Court reversed.

The vote was 5-3-1. Justice Kavanaugh, joined by the Chief Justice and the three liberal Justices, found that the states lacked standing because the states’ alleged injuries were not of a type historically deemed redressable by the courts. Justice Gorsuch, joined by Justices Justices Thomas and Barrett, concluded that the states’ alleged injuries met general redressability standards, but could not be redressed in this particular instance because of a statute that prohibits most federal courts from issuing certain immigration-related injunctions. Justice Alito dissented and would have found that the states had standing.

What the case says about discretion. When courts find a lack of standing, they typically do not address the merits of a suit, and so the broader implications of the case are frequently limited. But in this instance, the majority’s explanation of why the states lacked standing would potentially apply to many other cases, by other plaintiffs, attempting to challenge other discretionary decisions not to arrest or prosecute people who have violated other laws. Therefore it is important to understand the majority’s analysis:

  • The Court described Linda R. S. v. Richard D., 410 U. S. 614 (1973), as “[t]he leading precedent” in this area and said that it stands for the proposition that no one has “a judicially cognizable interest” in the prosecution of another person.
  • The Court further reasoned that “lawsuits alleging that the Executive Branch has made an insufficient number of arrests or brought an insufficient number of prosecutions run up against the Executive’s Article II authority to enforce federal law” and its power to decide who to arrest and how aggressively to prosecute them.
  • The Court underscored that “the Executive Branch must prioritize its enforcement efforts . . . because the Executive Branch (i) invariably lacks the resources to arrest and prosecute every violator of every law and (ii) must constantly react and adjust to the ever-shifting public-safety and public welfare needs of the American people.” The Court indicated that there were no “meaningful standards” under which such prioritization decisions could be reviewed.

As the Court noted, this reasoning does not apply to individuals who contend that they have been singled out for selective prosecution. There is an established framework for adjudicating such claims. But any allegation that police are under-arresting, or prosecutors are under-prosecuting, those who violate the law seems likely to be defeated by the Court’s analysis. Nothing in the Court’s rationale seems limited to the immigration context.

The Court set out a handful of possible exceptions or limitations to its holding. Most are quite narrow, but one caveat is worth mentioning: the Court stated that “the standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.” In other words, “an extreme case of non-enforcement” could be different. But the Court did not indicate what would count as an “extreme case.” For example, if a prosecutor declines to pursue misdemeanor marijuana violations, but continues to prosecute other drug offenses, would that be an “extreme case” that could potentially be challenged in court?

The bigger picture. Shea wrote here about the national debate over whether prosecutors may categorically decline to prosecute certain types of offenses. That issue has arisen most often in connection with progressive prosecutors who have declined to prosecute minor drug and property crimes. It has been in the news recently as a number of prosecutors across the country have pledged not to prosecute certain abortion-related offenses.

I have heard similar discussions about the propriety of initiatives by police not to investigate or charge certain types of crimes. This prior post about making marijuana violations the lowest law enforcement priority touches on similar issues.

United States v. Texas does not completely resolve that debate, particularly given that the Court reserved judgment on whether an “extreme case of non-enforcement” might be justiciable. But it has made any challenge to non-arrest or non-prosecution policies an uphill battle in federal court.

The decision would not be binding on state law claims brought in state court. Different types of writs are available under state law, potentially supporting different conclusions about redressability. Further, the state constitution structures the branches of government differently than the federal Constitution does, including by placing prosecutors in the judicial branch.

Another open question concerns the recent effort by legislatures in several states, including Georgia and Texas, to rein in the exercise of prosecutorial discretion in various ways – including by allowing for the removal of prosecutors who decline to prosecute certain matters. For more information about these initiatives, see this interesting Bloomberg article. All of the approaches under consideration may raise constitutional questions about the extent to which legislatures may curtail the discretion historically vested in other branches, and some of the initiatives have already been challenged in court.

Questions about official discretion are difficult. Reasonable minds may disagree about how much discretion should be vested in police and prosecutors. I don’t expect United States v. Texas to be the last word, but it is an important contribution to the discussion. We’ll cover further developments here on the blog.