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Supreme Court to hear arguments over Biden immigration priorities

Case could hold sweeping implications for how states can contest immigration rules in court

The Supreme Court building is seen in October.
The Supreme Court building is seen in October. (Tom Williams/CQ Roll Call)

The Supreme Court will hear oral arguments Tuesday about the Biden administration’s immigration enforcement priorities, in a case that could bolster or curtail the power of states to challenge federal immigration policies.

The justices will consider litigation brought by Texas and Louisiana to stop implementation of a Department of Homeland Security memo from last year that instructs immigration agents to prioritize the arrests of immigrants who threaten national security or public safety, as well as migrants who recently crossed the border.

An eventual Supreme Court ruling on the legality of the immigration guidance could limit the government’s ability to set enforcement priorities, which “could be a blockbuster,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School.

[McCarthy threatens to impeach Homeland Security secretary]

But legal experts also say that how the justices rule on the more procedural issues in the case — whether states even have the right to file legal challenges over these kinds of immigration issues, or whether federal district court judges may strike down such policies — could carry sweeping implications for how immigration rules may be contested in court.

A decision on those issues holds particular salience at a time when Republican state officials have emerged as frequent court opponents of the Biden administration on immigration, a policy area that has historically resided under federal purview.

State lawsuits have frustrated immigration policy changes during recent administrations, including a June ruling that stopped DHS from implementing this internal guidance meant to focus limited departmental resources.

“In the immigration context, courts have traditionally deferred to the executive branch because immigration touches on sovereignty and foreign relations,” Yale-Loehr said.

But if the high court greenlights the state lawsuit against the administration’s immigration enforcement priorities, “it means that the federal government is no longer getting the benefit of the doubt” in this context, Yale-Loehr said.

Litigation limits

The Supreme Court case centers on a ruling from Judge Drew Tipton of the U.S. District Court for the Southern District of Texas, a Trump appointee, which found that the DHS enforcement guidance “flatly contradicts” a pair of immigration laws that mandate detention of certain categories of immigrants.

The Republican-led states have argued that they have the right to sue, known as standing, because they would incur costs by having undocumented immigrants residing there. This echoes an argument that some Republican-led states have made in other challenges to the Biden administration’s immigration policies.

The Department of Justice has dismissed these alleged harms as “incidental effects” that don’t give the states the grounds to take the issue to court.

A decision that gives the states the right to sue on that basis “would inject the federal courts into all manner of policy controversies at the behest of States seeking to secure by court order what they could not obtain through the political process,” the DOJ wrote in a September court filing at the Supreme Court.

Amber Qureshi, staff attorney at the National Immigration Project of the National Lawyers Guild, said a Supreme Court ruling that the states have the right to sue in this case “would allow any state to sue the federal government for virtually any policy where they complain that they have incidental costs associated with that policy.”

The National Immigration Project, along with dozens of other immigrant and civil rights groups, also argued in a brief in the case that the states’ claim that they are injured by the presence of immigrants is rooted in “animus toward immigrants who are people of color.”

Judicial limits

The Supreme Court will also consider whether the Texas federal judge who blocked the enforcement guidance had the authority to do so.

Earlier this year, the Supreme Court decided in an unrelated immigration case that lower courts do not have jurisdiction to issue certain forms of injunctive relief in immigration class actions. Now, the high court will decide if the federal immigration laws similarly bar judges from vacating immigration policies.

If the high court decides that judges also may not issue orders to vacate immigration policies in this context, it could hinder the ability of all potential litigants — states as well as immigrant advocates — to have certain kinds of immigration policies blocked in court, legal experts said.

Muzaffar Chishti, head of the nonpartisan Migration Policy Institute’s New York office, called this question an “equal opportunity challenge” for its potential effects on immigration challenges brought by immigrant advocates and restrictionists alike.

Broader implications

If the states clear those initial procedural hurdles, a ruling in favor of the states could carry broad implications for federal agency policymaking, legal experts said.

The states have argued that the Biden administration needed to have put the internal guidance through the full administrative process of soliciting public comments.

A ruling that sides with the states on that issue, depending how the justices write the opinion, could usher in a “major sea change” over how federal agencies establish internal guidance, Yale-Loehr said.

“It effectively gives states the power to overrule federal policy on immigration and allow states to challenge anything they want, not just in immigration but in other areas as well,” Yale-Loehr said.

Max Wolson, a staff attorney with the National Immigration Law Center, said such a ruling would mark a “significant departure” from prior practices and “would dramatically expand the world of decisions that the administration has to make by going to notice-and-comment.”

A high court ruling could also upend the way the federal government detains immigrants living in the country unlawfully and present severe implementation challenges for the federal government.

The Supreme Court “could go so far as to say that anyone who could be subject to mandatory detention under our immigration laws has to be arrested and has to be detained, despite decades of case law saying that the executive branch has enforcement discretion in immigration,” Qureshi said.

There are millions of undocumented immigrants living in the United States, but Congress has funded U.S. Immigration and Customs Enforcement, the Homeland Security agency that arrests and detains immigrants found within the country, to detain far fewer, roughly 34,000 in fiscal 2022.

“If Congress says that you have to detain certain people who have committed certain criminal violations, but does not give the administration enough money to actually detain them, what is the administration supposed to do?” Yale-Loehr said. “I think it’s going to be a real conundrum, both for Congress and for the administration, if the Supreme Court rules in favor of Texas in this case on the merits.”

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