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Congressional ______
Research Service
Supreme Court Limits States' Ability to
Challenge Immigration Enforcement Policies
August 18, 2023
The Department of Homeland Security (DHS) is one of the key agencies responsible for the enforcement
of federal immigration laws against aliens who lack a legal basis to remain in the United States. Citing
resource and humanitarian concerns, DHS, during the Biden Administration, has generally limited its
enforcement actions to cover only those who pose a threat to national security, public safety, or border
security. On June 23, 2023, the Supreme Court held in United States v Texas that Texas and Louisiana
lacked legal standing to challenge DHS's immigration enforcement guidelines, reversing lower court
rulings that had blocked their implementation. More broadly, the Court's decision seems likely to affect
states' ability to challenge federal enforcement policies, whether they involve immigration or other issues,
going forward. This Legal Sidebar provides an overview of the relevant background on DHS's
enforcement powers, the Texas case's procedural history, and the Court's decision, as well as certain
considerations for Congress.
Background: DHS's Enforcement Powers and Discretion
DHS has authority to arrest, detain, and remove aliens suspected of being unlawfully present in the United
States. Under 8 U.S.C. @ 1226(a), DHS may, but is not required to, arrest and detain an alien who is
placed in formal removal proceedings. Section 1226(c), however, instructs that DHS shall take into
custody an alien who is removable because of specified criminal or terrorist-related grounds, and
authorizes the alien's release only in limited circumstances (e.g., for witness protection purposes).
Following the completion of removal proceedings, if it is determined that an alien is subject to a final
order of removal, 8 U.S.C. @ 123 1(a)(1)(A) provides that DHS shall remove the alien from the United
States within a 90-day removal period. A separate provision, 8 U.S.C. @ 1231(a)(2), states that DHS
shall detain the alien during that 90-day period, and that [u]nder no circumstances during the removal
period may DHS release an alien who is removable on certain criminal or terrorist-related grounds.
While DHS is charged with immigration enforcement, the Supreme Court has held that the executive
branch has considerable discretion to determine when or whether it is appropriate to pursue the removal
of aliens who lack a legal basis to remain in the United States. In Arizona v. United States, the Supreme
Court recognized that [a] principal feature of the removal system is the broad discretion exercised by
immigration officials, and that the decision whether to pursue an alien's removal may be based on
Congressional Research Service
https://crsreports.congress.gov
LSB11023
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govemoo0001&div=1&collection=&method=preview&ext=.png&size=3)
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