Written by Joseph Meyers, Staff Attorney at the National Immigration Project
A group of immigrant advocacy organizations filed an amicus brief in United States v. Texas last week, in which they highlight the unlawful, racist arguments behind Texas and Louisiana’s lawsuit against the Biden administration’s immigration enforcement priorities.
In United States v. Texas, the Supreme Court will review a challenge brought by Texas and Louisiana to the U.S. Department of Homeland Security’s (DHS) attempt to set immigration enforcement priorities. Texas and Louisiana claim they object to the increased costs that come with the policy, but their motivations are clear—keep immigrants out of their states.
The brief argues that the states’ basis for claiming to have standing to bring this lawsuit are motivated by their discriminatory objection to the presence of noncitizens residents within their borders. This is not only an unlawful basis for standing but builds on a long history of racist and xenophobic tropes.
As in any lawsuit, the states had to show they had “standing” to bring this case, a constitutional requirement that plaintiffs in a lawsuit have suffered a concrete injury that can be traced to an action of the defendant and is solvable by a court decision in their favor.
In September 2021, DHS Secretary Alejandro Mayorkas issued a memo setting new priorities for enforcing immigration laws, including the arrest, detention, and deportation of noncitizens, creating broad categories of individuals who should be priorities for enforcement.
Texas and Louisiana quickly sued to challenge these priorities, securing an order enjoining them in June 2022. That injunction was upheld by the Fifth Circuit, and the Supreme Court denied the government’s attempt to lift the injunction pending appeal. The case is now pending before the Supreme Court and will be heard in December 2022.
As with many other cases seeking to invalidate Biden administration immigration policies, Texas and Louisiana asserted that they have standing based on state spending on noncitizens residents, which includes costs of healthcare, education, and criminal detention and supervision. They claim that the mere fact of spending state resources on noncitizens is an injury to their states—even though state and federal law requires that state services generally be provided to all state residents, regardless of immigration status.
As shown in the amicus brief, which was drafted by the NYU Immigrants’ Rights Clinic and the National Immigration Project (NIPNLG), Texas and Louisiana’s standing arguments are deeply flawed.
Much of the states’ lawsuit claims to object to increased stated expenditures. But in reality, they are objecting to the mere presence of noncitizens in their borders. The states’ motivations are made clear by the fact that, while objecting to increased noncitizen presence, Texas and Louisiana have worked to encourage population growth and domestic migration from other states.
The states have also publicly touted their success in doing so. For example, over the past several years, Governor Greg Abbot has repeatedly made clear that he believes population growth is a boon. In one tweet, Governor Abbot said that “Newcomers are welcome. They just need to help keep TX an appealing state.”
Texas and Louisiana’s true motivations are cast in stark relief by their dogged harassment of noncitizens within their borders. In recent years, both Texas and Louisiana have passed a litany of anti-immigrant laws.
The states’ general objection is not a lawful basis for a state to claim injury. It is well established that discrimination on the basis of race, national origin, or citizenship status is inherently suspect under the U.S. Constitution, including discrimination against noncitizens who are subject to deportation. The Supreme Court has also made clear that a state’s desire to harm a politically unpopular group is not a legitimate interest for a state government to pursue.
What’s more, Texas and Louisiana’s assertions of standing draw upon well-worn racist and xenophobic tropes describing immigrants as inherently burdensome on public resources and safety. The states’ position that immigrants are a costly burden echoes arguments made by eugenicists in the early 1900s in support of racially exclusionary immigration laws: that immigrations of racial groups they viewed as inferior and “criminally inclined” should be barred from entry lest they impose greater costs on state services.
There is a direct throughline from those arguments to the states’ standing arguments in United States v. Texas. The rhetoric of “invasion” and the supposed threat that immigrants of color pose to America have been mobilized again and again over the course of the 20th century, including in opposition to accommodations for Haitian refugees fleeing the Duvalier regimes and Cubans during the 1980 Mariel Boatlift. In both cases, unfortunately, this racist rhetoric worked, and the legacy immigration service responded with harsher action against refugees, including mass detention.
Today, in word and deed, Texas is giving new life to this familiar, dangerous rhetoric.
Against this background, it is clear Texas and Louisiana’s claim that they are injured by the presence of noncitizens within their borders is closely tied to a long history of racist and xenophobic thought and action. The Court should reject their lawsuit for this reason.
FILED UNDER: Biden-Harris Administration, United States v. Texas