The Latest Chapter in State Lawsuits Versus the Federal Government: United States v. Texas
In the 1990 case of Burnham v. Superior Court, the Supreme Court unanimously ruled that a non-resident defendant may be subject to personal jurisdiction in a state in virtue of having been served with process while physically present within the state, even apart from any other contacts the defendant has or doesn't have with the forum state. Despite the agreement about the outcome, the Court divided badly and surprisingly contentiously on the rationale. Justice Stevens thus wrote a pithy concurrence in the judgment that included, in a footnote, this lovely piece of snark: "Perhaps the adage about hard cases making bad law should be revised to cover easy cases."
That brings us to Friday's ruling in United States v. Texas. The Court was nearly unanimous in holding that the state of Texas lacked Article III standing to sue the federal government demanding that it arrest and remove more undocumented immigrants, despite accepting (for purposes of the case) the claims by the state that the presence of such persons at large in Texas imposes financial costs on the state. Only Justice Alito dissented.
But the 8-1 result masked a very substantial disagreement for the rationale. Justice Kavanaugh wrote for the majority, which comprised himself, Chief Justice Roberts, and Justices Sotomayor, Kagan, and Jackson. He opined that, as a general matter and subject only to narrow exceptions, Article III disallows civil actions seeking to compel the executive branch to exercise its prosecutorial discretion to enforce the law against third parties. Justice Gorsuch wrote a concurrence in the judgment for himself and Justices Thomas and Barrett. He thought that the majority over-read the prosecutorial discretion cases and would have ruled that Texas lacked standing because its injuries were not redressable by a favorable ruling.
In Burnham, the Court divided along ideological lines on rationale. That's not obviously the case in US v. Texas. The Republican appointees split 2/3/1. However, with all three of the Democratic appointees joining the majority, it appears that on at least some issues they regarded the case through an ideological lens. But why? I'll examine the three main points that animated the Gorsuch concurrence-in-the-judgment.
(1) Special solicitude for states. In rejecting the claim that Texas has standing, the majority relied on general principles applicable to all plaintiffs. Yet in Massachusetts v. EPA, the Court held that states suing the federal government in their sovereign capacity are entitled to special solicitude (more or less) as compensation for having ceded some of that sovereignty to the Union. Hence, in at least some cases in which a private party would be denied Article III standing to sue the federal government for an injunction, Massachusetts implies that a state would have standing. The United States v. Texas majority gets around Massachusetts in a footnote by stating that there the plaintiffs sought an injunction requiring a federal agency to engage in rulemaking; thus, the case did not implicate the executive's prosecutorial discretion.
Justice Gorsuch didn't buy it. He thought the distinction between rulemaking and arrest/removal was not relevant to Article III standing. But he also said that he had doubts about the correctness of Massachusetts and urged the lower courts to henceforth treat it as a dead letter.
It's pretty clear why the more liberal justices preferred the Kavanaugh approach to the Gorsuch approach regarding Massachusetts. The Kavanaugh majority preserves the case as a precedent for states to sue the executive branch and seek regulation. Although there are some forms of regulation favored by conservatives, more often than not we will see blue states suing a laissez-faire Republican administration. When red states sue a Democratic administration demanding action from the latter, that will more likely be action that targets individuals. And that's what we see here. In Massachusetts, a blue state sought environmental regulation from the Bush administration. In last week's case, a red state sought an immigration crackdown from the Biden administration. The Kavanaugh approach allows the former but not the latter and is thus better from the perspective of the more liberal Justices.
(2) Universal injunctions. The Gorsuch concurrence in the judgment repeats complaints that he and other Justices have previously made against so-called universal injunctions that block the government with respect to everyone, not just parties. The claims are familiar: traditionally and in most cases, relief extends only to parties; universal injunctions circumvent the requirements for class certification; they encourage forum shopping; etc. Opposition to universal injunctions was common among conservatives during the Trump administration (when they were issued against the Muslim Travel Ban, for example), and perhaps in response, liberals came to approve of them. However, as indicted-and-impeached Texas AG Ken Paxton has made very clear, universal injunctions can be used to stymie Democratic administrations as well. Hence, while it's possible that one or more liberal-leaning Justices was put off by Justice Gorsuch's strong statement against universal injunctions, it's also possible that any or all of them have come to see the device as very much a double-edged sword.
(3) The Gorsuch concurrence in the judgment also takes aim at a longstanding practice in the DC Circuit of reading language in Section 706 of the Administrative Procedure Act that authorizes courts to "hold unlawful and set aside agency action" expansively as a basis for judicial nullification of regulations and other agency policies deemed illegal. In effect, the DC Circuit and other courts--including the lower courts in the Texas case against the Biden administration--read this language to enable the accomplishment of much the same thing as a universal injunction. Agency action "set aside" in this way is effectively void with respect to everyone, not just the parties to the case.
In expressing skepticism about the "set aside = vacate" view, Justice Gorsuch echoed the position advanced by the Solicitor General and, before that, in a law review article by Professor John Harrison. I am not an administrative law specialist, nor have I studied the Section 706 issue in any depth. Thus, although I found the Harrison article, the argument by SG Prelogar, and the concurrence in the judgment by Justice Gorsuch persuasive, I could be wrong; perhaps there's a strong argument I've overlooked in favor of reading "set aside" to authorize vacatur.
For now, however, I'll simply note that the Gorsuch opinion--in expressing sympathy for the Harrison/SG view, is hardly staking out a right-wing position. Vacatur would be used, on average, at least as often against agency actions in Democratic administrations as in Republican ones. So on this point too, the Gorsuch concurrence in the judgment should have been at least as tempting to the liberal-leaning Justices as the Kavanaugh majority opinion was.
Bottom Line: Maybe preserving Massachusetts v. EPA was so important to the liberal-leaning Justices that it was worth bargaining hard for that result in the Kavanaugh opinion, and perhaps Justice Gorsuch was unwilling to say as much preservative of Massachusetts as Justice Kavanaugh was. But even if so, the ideological stakes of United States v. Texas were not entirely clear. And that shouldn't be particularly surprising. The ideological valence of state-initiated litigation against the federal government will depend almost entirely on whether a red state sues a Democratic administration or a blue state sues a Republican one. Given that, I suppose we should count it as a victory that five of the six conservative Justices didn't see the case in narrowly partisan terms.