Thread by @ReichlinMelnick

Tomorrow, #SCOTUS will hear United States v. Texas. Yesterday I talked about the stakes for immigrants. Today I'm going to explain how this case could also reshape the legal landscape and make it much harder—or much easier, depending on outcome—to overturn federal actions.🧵

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https://twitter.com/ReichlinMelnick/status/1597010567063310337

The headline story of United States v. Texas is its impact on prosecutorial discretion for ICE, which I discussed yesterday.

But there are two other questions the Court will have to decide, both of which may have impacts far beyond just immigration.

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https://twitter.com/ReichlinMelnick/status/1597010608897290244

First, #SCOTUS will have to decide if TX & LA have "standing" to sue to block the priorities. A decade ago, it was rare for states to sue to overturn federal policies. Now it's common. CA sued Trump 122 times. TX has sued Biden 30+ times. This case could end that.

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The recent explosion of state lawsuits is often traced back to Texas's lawsuit blocking DAPA (the program for parents of DACA grantees). Courts said Texas was "injured" because it had to issue drivers licenses to people granted DAPA—and thus could sue to overturn the program.

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In tomorrow's case, Texas' argument is even more attenuated than drivers licenses. They argue that because some people in Texas may not be deported under the priorities, Texas is injured because those people might end up using some state resources at some point in the future.

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Until now, courts generally refuse to say that a state is "injured" when a federal policy has only indirect effects on the state—exactly what Texas alleges here.

As DOJ says, if #SCOTUS upholds this theory of standing, state AGs would get a greenlight to sue over anything.

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As DOJ explains, our system of government wasn't designed for the torrent of state lawsuits a decision in Texas' favor could unleash.

Throughout history, states didn't go straight to court if they disagreed with the President—and our country would be different if they could.

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If #SCOTUS finds that Texas has standing to bring this lawsuit, then expect even MORE states suing to block things like student loan forgiveness or immigration policies.

But that's not the only big legal impact that this case could have! There's actually ANOTHER big issue!

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The third big question that #SCOTUS will hear tomorrow is whether federal courts can use the Administrative Procedure Act (APA) to overturn entire federal policies/regulations in one go—"vacating" a policy.

Judges have done this for years. But SCOTUS may now impose limits.

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In this case, Judge Tipton "vacated" the enforcement priorities, wiping them out nationwide. But the DOJ says he shouldn't be allowed to do that, arguing that judges can't "vacate" entire rules.

If #SCOTUS agrees with DOJ, it could make suing the government much harder.

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Why does that matter? In a world where plaintiffs judges can't "vacate" federal policies under the Administrative Procedure Act, it suddenly becomes a lot harder to stop someone like Trump from wielding the federal gov to do his bidding, even if the law is being broken.

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To give you a sense of why this remedy matters so much, under Trump judges "vacated" dozens of policies under the APA, including:

- Nearly every Trump immigration policy
- Rollbacks of prior environmental protections
- A rule that would have cut 700,000 people from SNAP

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So if #SCOTUS decides that judges can't vacate entire policies under the Administrative Procedure Act as they've been doing for decades, it could mean that litigators have to struggle to find new ways to get the courts to step in to overturn unlawful policies. A big deal.

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Even if #SCOTUS disagrees with DOJ and allows judges to keep vacating policies under the APA, it may still block Tipton's order anyway on procedural grounds.

That's due to a case issued last term which harshly enforced a 1996 limitation on judges.

/14 slate.com/news-and-polit…

In Garland v. Gonzales, the Supreme Court held that judges may not issue injunctions against certain immigration enforcement policies. But it left open the question of whether judges could still "vacate" those policies. Now it'll decide that issue. slate.com/news-and-polit…

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If the Supreme Court holds that federal judges may neither enjoin unlawful immigration enforcement policies nor vacate them under the APA, that leaves extremely few options for immigrants to go to court to stop the government from acting illegally—a big blow to civil rights.

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So there you have it. Not only will United States v. Texas potentially have big ramifications for immigration enforcement, but it could reshape how states and private parties sue the government for generations going forward.

In other words, it could be a big, big case!