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States’ Rights Is About To Come Roaring Back

A couple of pending cases on immigration and child welfare could dramatically swing the balance of power away from the president and Congress.

What the right-wing majority does with its relative powers vis-a-vis the states could be the jaw-dropper news of this Supreme Court term.,Drew Angerer/Getty Images

The Supreme Court’s decision in Dobbs was groundbreaking not just because it revamped the Fourteenth Amendment’s protection of abortion rights. It also reconfigured the relationship between the Constitution and the states, giving the latter primary authority over pregnancies. In the court’s new term, two less-noticed cases may well continue the march toward enhancing state power at the expense of the federal government, with massive implications for both the U.S. presidency and the U.S. Congress.

In a worst-case scenario, decisions in favor of the states would open the door to a slew of legal challenges to any federal policy that a state might object to, effectively neutering the president’s constitutional authority to enforce laws passed by the legislative branch.

The first case, United States v. Texas & Louisiana, concerns a set of administrative guidelines that the Biden administration’s Department of Homeland Security issued in September of 2021 for deciding which immigrants should be arrested and deported on grounds of “national security, public safety and border security.” There are 11 million undocumented noncitizens in the country and limited government resources to apprehend and remove every one of them. Accordingly, the guidelines gave Immigration and Customs Enforcement agents broad discretion to decide whether to arrest someone, using criteria that include the seriousness of an individual’s past offense, the harm caused, whether a firearm was involved, the individual’s youth or advanced age and the impact of deportation on their family.

In 2021, Texas and Louisiana filed suit to block the guidelines, arguing that they allow immigrants with criminal records to remain free while their cases move forward, imposing burdens on the states’ public systems and services. A federal district judge in Texas entered an injunction banning use of the guidelines nationwide, which an appeals court upheld. In June, the Supreme Court, by a 5-4 vote, refused to lift the stay, even temporarily.

The case is a breathtaking swipe at the authority of presidents to execute federal immigration law. The president, through his appointed Secretary of Homeland Security, effectively picks and chooses how to best to enforce the Immigration and Nationality Act (INA). While Trump set out to arrest and speed deportations of any noncitizen in the country without authorization, President Joe Biden and his DHS secretary Alejandro Mayorkas chose a less draconian approach that is more closely aligned with that of Trump’s predecessor, Barack Obama.

To be sure, in executing the law, presidents still must abide by the terms of the statute. The states argue that Congress mandated detentions across-the-board in the INA, and the federal government disagrees. But what’s stunning about the case isn’t the debate over the contents of the guidelines. It’s the fact that the states — not an individual who was susceptible to deportation — are the plaintiffs here, and so far, they’ve been successful.

Understandably, the federal government argues that the states have no business suing the Biden administration to force it to execute federal law in ways that please the states, as they lack standing to sue under Article III of the Constitution (which confines the authority of the federal courts to hearing live cases and not political grievances). The only “injury” the states allege is that more noncitizens within their borders increase the costs of law enforcement and social services. In a nod to Dobbs, the federal government responds that federal policies always impact states, and there’s nothing special about this case:

Federal policies routinely have incidental effects on States’ expenditures, revenues, and other activities. Yet such effects have never been viewed as judicially cognizable injuries. As the recent explosion in state suits vividly illustrates, respondents’ contrary view would allow any State to sue the federal government about virtually any policy — sharply undermining Article III’s requirements and the separation-of-powers principles they serve ...

Here, the States are neither subject to nor threatened with enforcement of the immigration laws. They may not challenge the federal government’s policies regarding the enforcement of those laws against third parties.

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If the Court decides the standing issue in the states’ favor, it would be an open invitation for states to go into federal court to usurp presidential discretion to enforce not just immigration policy — but any exercise of presidential power that has a financial impact on a state. The implications for presidents’ ability to function in the face of sharp partisan disagreement from states controlled by politicians from the opposing political party are mind-boggling.

The second case, Brackeen v. Haaland, was also brought by Texas jointly with a married couple against the Biden administration, but this time, the potential loser in the state-versus-federal government power struggle is Congress. Its implications for the respective powers of government are equally staggering: Texas aims to strike it down as unconstitutional a 43-year-old federal statute known as the Indian Child Welfare Act (ICWA).

In the mid-20th century alone, nearly one-third of Native children were forcibly removed from their families and placed in foster care, with adoptive families or in boarding schools by the federal government. Congress passed the ICWA in a remedial effort to keep Indian children in Native families to the extent possible, thereby promoting tribal integrity and stability. The statute accordingly sets up standards for child welfare proceedings that favor placement of Native children with other family members, members of the parents’ tribal nation or another Native family.

The dispute arose when the Brackeen family, a white Evangelical couple who fostered and successfully adopted a Navajo child under the ICWA, sought to adopt another child — a younger sister — but were allegedly hindered by the ICWA. Together with Texas, the Brackeens sued the federal government, arguing that the statute is an unconstitutional impediment to their family’s plans because it makes racial distinctions “by categorizing children based on genetics and ancestry and potential adoptive parents based on their race,” in violation of the 14th Amendment’s Equal Protection Clause.

The federal government responds that ICWA does not violate equal protection because the Supreme Court has long-determined that classifications based on tribal affiliation are political distinctions, not racial ones. “As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians,” the Court has insisted, those distinctions “will not be disturbed.” The federal defendants argue again that Texas has no standing to sue because it suffered no actual harm, merely claiming an interest as a protector of its citizens — a bid that would enable states to second-guess in court virtually anything the federal government does that affects individuals living in a state.

If the Court decides that the ICWA’s preference of adoption by members of a child’s family and tribal community is a classification based on race rather than political affiliation, the ruling could lead to a slew of laws being struck down — things including tribal land and water rights and tribal sovereignty broadly. It could also have future implications for Congress’s broader powers under the Commerce Clause, which is a basis for wide swaths of federal legislation, including the ICWA.

In June of this year, the Supreme Court ruled for the first time in its history that states have concurrent jurisdiction with the federal government to prosecute crimes in Indian country, dealing a severe blow to tribal sovereignty. The 5–4 opinion by Justice Brett Kavanaugh, which Justices Samuel Alito, Clarence Thomas, John Roberts and Amy Coney Barrett joined, sidelined almost 200 years of precedent and practice. In his scathing dissent, Justice Neil Gorsuch wrote: “Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. Tribes are sovereigns.”

It turns out that the U.S. federal government is a sovereign, as well. What the right-wing majority does with its relative powers vis-a-vis the states could be the jaw-dropper news of this Supreme Court term.

Kimberly Wehle is a visiting professor at the American University Washington College of Law.