On Friday, in United States v. Texas, the Supreme Court held that Texas and Louisiana lack Article III standing to challenge Department of Homeland Security's immigration enforcement guidelines which, the states allege, violate applicable federal statutes which require the arrest of certain non-citizens, pending their removal from the country. Justice Kavanaugh wrote for the Court, joined by the Chief Justice and Justices Sotomayor, Kagan, and Jackson. Justices Gorsuch, Barrett and Thomas concurred in the judgment. Justice Alito dissented.
In rejecting the states' claims to have Article III standing, Justice Kavanaugh purported to distinguish Massachusetts v. EPA, in which the Court had held that states are entitled to a "special solicitude" when asserting standing to sue the federal government. According to Justice Kavanaugh, nothing in his opinion implicates the Massachusetts holding. Justice Gorsuch, joined by Justices Thomas and Barrett, expressed some skepticism on this point, as did Justice Alito in dissent. I share their skepticism. As I read Justice Kavanaugh's opinion, it undercuts the premises upon which Massachusetts rests (and I am okay with that, having been critical of the Massachusetts standing holding since the beginning).
From the outset of his opinion for the Court, Justice Kavanaugh evaluates the states' standing arguments as if they were no more entitled to invoke Article III jurisdiction than anyone else. So, in his introduction, Justice Kavanaugh writes:
