I have now had a chance to review the transcript in United States v. Texas. On its face, this case concerns fairly technical debates about how to interpret the word "shall" in federal immigration law, and whether the APA permits the remedy of a national vacatur. But lurking under the surface are profound issues that implicate Congress's Article I powers, the President's Article II powers, and the Article III jurisdiction of the federal judiciary. I will take these topics in reverse order.
Article III
The threshold issue in this dispute is whether Texas has Article III standing to challenge the federal immigration policy. But Article III is also implicated at the backend of the case. Specifically, do the federal courts have Article III jurisdiction to issue a national vacatur under the APA? In a colloquy with Justice Barrett, Solicitor General Prelogar said "that when courts issue remedies that go beyond the parties in the case, it can take courts beyond the traditional forms of relief that are authorized, whether under Article III or under the statute." Now the government has forcefully argued that the APA does not permit the national vacatur. But Prelogar added an additional ground–that Article III does not support this remedy.
