Tip Sheets

‘More litigation likely’ following Hansen and Texas immigration rulings

Media Contact

Damien Sharp

The U.S. Supreme Court issued two important immigration decisions today in United States v. Hansen and United States v. Texas.

Stephen Yale-Loehr, professor of immigration law at Cornell Law School and co-author of a leading 22-volume immigration law series, says that both rulings were important but narrow, meaning that further litigation is likely.

Stephen Yale-Loehr

Professor of immigration law

“Overall, both decisions reflect the complexity of immigration law. The Supreme Court refused to issue sweeping proclamations. Instead, the Court ruled as narrowly as possible. More litigation is likely to flesh out both issues.

“In United States v. Hansen, the Court held 7-2 that a particular immigration provision was constitutional. The case challenged the constitutionality of a federal immigration law that prohibits ‘encouraging or inducing’ illegal immigration. The Ninth Circuit held that the immigration provision violated the First Amendment as being overbroad, but the Supreme Court reversed. Justice Amy Coney Barrett wrote for the majority that because the immigration provision forbids only ‘the purposeful solicitation and facilitation of specific acts known to violate federal law,’ the clause is not unconstitutionally overbroad.

 “In United States v. Texas, the Court ruled 8-1 that Texas and Louisiana could not challenge certain federal immigration enforcement policies in court. Texas and Louisiana sued to block a 2021 Biden administration policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation. The states argued that the immigration enforcement policy violated the immigration statute because of a provision in the law that says the federal government ‘shall’ apprehend, detain, and deport every immigrant who is illegally in the United States. The Supreme Court did not address the merits of the states’ claim, ruling instead that their case failed because the states lacked standing to sue.

“Writing for the majority, Justice Brett Kavanaugh noted that although Texas and Louisiana did not have a right to sue here, ‘we do not suggest that federal courts may never entertain cases involving the Executive Branch's alleged failure to make more arrests or bring more prosecutions.’ Justice Kavanaugh also called this case an ‘extraordinarily unusual lawsuit.’ Thus, the decision leaves open the possibility of continued state challenges to federal immigration policy.”

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