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Supreme Court revives Biden immigration enforcement policy

Two Republican-led states did not have the legal right to challenge the federal government's guidance to immigration agents, high court says

The Supreme Court building.
The Supreme Court building. (Caroline Brehman/CQ Roll Call file photo)

The Supreme Court on Friday cleared the way for the Biden administration to implement immigration enforcement priorities, in what the opinion called “a highly unusual lawsuit” from two Republican-led states.

The high court ruled 8-1 that Texas and Louisiana do not have the legal right to challenge the enforcement guidelines, which instructed federal immigration agents to prioritize for arrest individuals who posed a threat to border, public or national security, or who recently crossed the border.

Lower-court rulings have blocked that guidance for more than a year. Former Homeland Security officials had warned the lack of nationwide immigration guidance could threaten agency operations long-term and make enforcement of immigration laws unequal and dependent on where the migrant happens to live.

Homeland Security Secretary Alejandro Mayorkas issued a statement Friday that the department looked forward to reinstituting the guidelines, which “enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress.”

The states had argued the guidance conflicted with parts of the federal immigration statute stating that the government “shall” detain certain categories of immigrants.

Writing for the majority, Justice Brett M. Kavanaugh found that litigation seeking to force the government to arrest more people would infringe on the executive branch’s prosecutorial discretion authority.

“The Executive Branch — not the Judiciary — makes arrests and prosecutes offenses on behalf of the United States,” Kavanaugh wrote. Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined that opinion.

Kavanaugh noted the case “involves both a highly unusual provision of federal law and a highly unusual lawsuit,” and he warned that allowing the states’ lawsuit would spur future legal challenges to the federal government’s enforcement of other laws.

“If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws — whether they be drug laws, gun laws, obstruction of justice laws, or the like,” Kavanaugh wrote. “We decline to start the Federal Judiciary down that uncharted path.”

Kavanaugh added that while he does not suggest the court would never consider cases that challenge the federal government’s failure to make more arrests, this case does not fall into one of the scenarios where such a lawsuit would be allowed.

Justice Neil M. Gorsuch wrote a separate opinion, joined by Justices Amy Coney Barrett and Clarence Thomas, that agreed with the majority’s end conclusion but for different reasons. Barrett also wrote a similar separate concurring opinion.

Justice Samuel A. Alito Jr., in a dissent, wrote that he would have ruled that the states do have the legal right to sue. He wrote that the majority opinion “not only violates the Constitution’s allocation of authority among the three branches of the Federal Government,” but “also undermines federalism.”

Louisiana Attorney General Jeff Landry, in an emailed statement, called on Congress to “pass legislation allowing states to hold federal government officials accountable for their unlawful conduct.”

Texas and Louisiana filed the lawsuit against the September 2021 enforcement memo, which instructed Immigration and Customs Enforcement agents to prioritize immigrants who have engaged in terrorist activities or been convicted of certain criminal offenses, or those who recently crossed the border, when making arrests.

The memo largely realigned the administration’s prosecutorial discretion policies to those of the Obama administration, after the Trump administration had expanded immigration enforcement targets.

Last year, Judge Drew Tipton of the U.S. District Court for the Southern District of Texas blocked the administration from implementing the agency’s enforcement priorities, after striking down an earlier version of the guidance the year prior.

The U.S. Court of Appeals for the 5th Circuit later backed Tipton’s ruling, and the Supreme Court refused to allow the Biden administration to implement the guidance while litigation continued.

The Supreme Court heard oral argument in November.

The Biden administration has faced a slew of litigation on both ends of the ideological spectrum against its immigration and border policies. The administration is currently battling court challenges to the Deferred Action for Childhood Arrivals program and new asylum restrictions at the border.

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