The Supreme Court ruled 8–1 on June 23 that Texas and Louisiana may not challenge the Biden administration’s 2021 decision to focus its deportation efforts on individuals deemed to be a threat to public safety.
The new, complex decision allows the government’s selective immigration enforcement policy, which had been blocked by a lower court, to take effect.
The Homeland Security Memo
Texas and Louisiana sued the Biden administration over a policy announced in a Sept. 30, 2021, memorandum (pdf) by Department of Homeland Security Secretary Alejandro Mayorkas that claims that it’s impossible to remove the estimated 11 million illegal aliens present in the United States. Mayorkas has been heavily criticized by Republicans for his allegedly lax approach to immigration enforcement. Some Republicans in Congress want to impeach him for dereliction of duty.“We do not have the resources to apprehend and seek the removal of every one of these noncitizens. Therefore, we need to exercise our discretion and determine whom to prioritize for immigration enforcement action,” the memo states.
The document prioritizes the arrest and deportation of suspected terrorists, people who have committed crimes, and illegal aliens recently apprehended at the border.
The memo praises the “majority of undocumented noncitizens who could be subject to removal [even though they] have been contributing members of our communities for years.”
“They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways,” it states.
But the states argued that the federal government is illegally refusing to enforce the nation’s immigration laws by prioritizing only certain enforcement categories at the expense of others. They said that the federal Immigration and Nationality Act requires that specific criminal aliens, such as aggravated felons, must be detained upon release from criminal custody pending a decision on whether to remove them from the country. The law also requires that aliens subject to final orders of removal must be detained pending their removal, they said.
The states argued that the immigration statute requires authorities to detain and deport even those deemed to pose little or no risk to the public.
Instead, the Biden administration said in the memo that it would embark on case-by-case determinations instead, which the states said leaves the door open for violent criminals to return to the nation’s streets.
The Memo Was Blocked
The Mayorkas memo was blocked last year by U.S. District Judge Drew Tipton, a Trump appointee, who ruled that Texas had legal standing to pursue the case because it could show the state was harmed when illegal aliens who should have been detained by the federal government found their way to the state and committed crimes there.The now-suspended policy is similar to one enforced by then-President Barack Obama but differs from the more aggressive policy pursued by his successor, then-President Donald Trump, who limited the role of discretion in the enforcement of immigration laws.
New Majority Opinion
The new majority opinion (pdf) in the case, United States v. Texas (court file 22-58), was written by Justice Brett Kavanaugh. According to the opinion, precedent dictates that states lack legal standing to challenge the policy.Four other justices—John Roberts, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—joined Kavanaugh’s opinion.
Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett agreed with the outcome but for different reasons.
The sole dissenting opinion was filed by Justice Samuel Alito.
The states here “have brought an extraordinarily unusual lawsuit,” Kavanaugh wrote for the majority.
“They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this,“ he wrote. ”The States lack Article III standing because this Court’s precedents and the ‘historical experience’ preclude the States’ ‘attempt to litigate this dispute at this time and in this form.’ And because the States lack Article III standing, the District Court did not have jurisdiction.”
Article III of the U.S. Constitution lays out the powers of the judicial branch.
Because resources are limited, the government must prioritize some enforcement areas over others.
The executive branch “invariably lacks the resources to arrest and prosecute every violator of every law and must constantly react and adjust to the ever-shifting public-safety and public welfare needs of the American people,” Kavanaugh wrote.
The court “has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions,” he wrote.
Kavanaugh added a proviso, writing that even though the court found that Texas and Louisiana lack standing, it doesn’t suggest “that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.”
Justice Gorsuch wrote an opinion concurring with the judgment of the court but with a different analysis of the standing issue. The opinion was joined by Thomas and Barrett.
Barrett also wrote her own concurring opinion, which Gorsuch joined.
“I agree with the Court that the States lack standing to challenge the Federal Government’s Guidelines for the enforcement of immigration law,” Barrett wrote.
The Dissenting Opinion
In his dissenting opinion, Justice Alito wrote that he would have held that Texas has standing.The majority opinion inappropriately favors the president over Congress, he said.
“And it renders States already laboring under the effects of massive illegal immigration even more helpless,” the justice wrote.
By denying Texas standing “to challenge a federal policy that inflicts substantial harm on the State and its residents by releasing illegal aliens with criminal convictions for serious crimes” the court “brushes aside” precedent.
In so doing, the court also “refuses to apply our established test for standing, disregards factual findings made by the District Court after a trial, and holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’s power to employ the weapons of inter-branch warfare—withholding funds, impeachment, and removal, etc.”
“I would not blaze this unfortunate trail,“ Alito wrote. ”I would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing.”
