Opinion: The Supreme Court’s message to red states: You can’t sue just because you don’t like federal law

A building with columns in the front.
The Supreme Court in Washington.
(Patrick Semansky / Associated Press)

A state government should not be able to sue the federal government just because it disagrees with a federal policy. This principle, affirmed by the Supreme Court in an 8-1 decision on Friday, should be obvious.

But in recent years, as the country has become more politically polarized, there have been a proliferation of suits filed by states to dismantle White House policies. Blue states, including California, did this during the Trump years and the trend has intensified with red states taking the Biden administration to court.

Friday’s ruling in United States vs. Texas is a perfect illustration. In 2021, the Biden administration’s Department of Homeland Security announced its priorities in arresting and deporting those who are illegally in the United States. There are more than 11 million undocumented individuals in the country, but only several hundred thousand can practically be deported each year. The Biden administration said that it would focus its arrest and deportation efforts on suspected terrorists or dangerous criminals, or people who unlawfully entered the country recently.


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Texas and Louisiana sued the administration in federal court claiming that federal laws require it to arrest more people pending their deportation. But Justice Brett M. Kavanaugh, writing for the majority (only Justice Samuel Alito dissented), ruled that the states lacked standing to sue. The decision was also a rebuke to the federal district court in Texas and the Court of Appeals for the 5th Circuit, both of which ruled that the states could sue the federal government over a policy disagreement.

It is a longstanding principle that for a federal court to hear a case, the plaintiff must show that it was directly harmed, that the defendant caused the harm and that the harm could be remedied by a court decision. The court said that neither Texas nor Louisiana met that test.

In the past, the standing issue was often used by the Supreme Court to dismiss suits seeking to change the law in a progressive direction. For example, 40 years ago, the court dismissed a case involving use of chokeholds by Los Angeles police officers for lack of standing to sue, concluding that the plaintiff could not show that he was likely to be injured in the future. And suits seeking to protect the environment have been dismissed for lack of standing.

Although I think the court is often too restrictive in its standing rulings, Friday’s decision closely follows from earlier precedents and rightly limits the ability of states to sue in federal court because they disagree with a presidential policy.

The practical effect of the court’s analysis is its recognition that the government must make choices in enforcing the law. Thus, the Department of Homeland Security must set priorities in arresting and deporting non-citizens and it is not for the federal courts to second guess those choices. As Kavanaugh wrote, “If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws — whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path.”

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This is actually the second time this month that the court restricted the ability of states to sue when they dislike federal policy. Last week, in upholding the federal Indian Child Welfare Act — a law that says priority should be given to Native American families when Native American children are placed for adoption in foster care — the court again dismissed a claim by Texas that the law was an unconstitutional racial preference. In a 7-2 opinion by Justice Amy Coney Barrett, the court concluded that the state of Texas could not show that it was injured by the federal law.


Friday’s decision is a double-edged sword. It will mean that when there is a conservative Republican president, states like California will be limited in their ability to sue. But the court did not close the door to all suits by states, only that they must meet the standing test. While the law in this area certainly is not new, the court did the right thing by applying it in this case.

Erwin Chemerinsky is a contributing writer to Opinion and dean of the UC Berkeley School of Law. His latest book is “Worse Than Nothing: The Dangerous Fallacy of Originalism.”