Washington — The Supreme Court on Friday cleared the way for the Biden administration to reinstate rules that instruct Immigration and Customs Enforcement to focus its deportation efforts in the U.S. interior on immigrants with serious criminal convictions and those deemed to threaten national security.
The court found that Texas and Louisiana, the two states that challenged the administration’s guidelines, lacked standing to bring the suit, formally known as United States v. Texas.
The ruling was 8-1, with only Justice Samuel Alito dissenting. Justice Brett Kavanaugh wrote the opinion for the majority, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Justices Neil Gorsuch, Clarence Thomas and Amy Coney Barrett concurred in the judgment, with Gorsuch and Barrett contributing opinions of their own.
The decision in the case marks a major victory for the Biden administration and a vindication of the executive branch’s broad powers to dictate — and in this case, narrow — the enforcement of federal immigration laws without interference from lawsuits.
At the center of the dispute is a memo issued in 2021 by the Biden administration that directed ICE agents to prioritize the arrest of immigrants with serious criminal records, national security threats and migrants who recently entered the U.S. illegally. The policy generally shielded unauthorized immigrants who have been living in the U.S. for years from being arrested by ICE if they did not commit serious crimes.
The Biden administration has argued the memo, signed by Homeland Security Secretary Alejandro Mayorkas, allows ICE to concentrate its limited resources — and 6,000 deportation agents — on apprehending and deporting immigrants who pose the greatest threats to public safety, national security and border security. The policy, administration officials have argued, relies on the recognition that the government can’t deport the millions of people living in the country unlawfully.
But Republican officials in Texas and Louisiana challenged the memo in federal court, saying it restrained ICE agents from fully enforcing immigration laws that govern the detention of certain migrants. After the states convinced lower court judges to block the policy, the Supreme Court agreed to hear the case last year.
In his majority opinion, Kavanaugh called the bid by Texas and Louisiana “an extraordinarily unusual lawsuit.”
“They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests,” Kavanaugh wrote. “Federal courts have traditionally not entertained that kind of lawsuit; indeed, the States cite no precent for a lawsuit like this.”
Kavanaugh said the judiciary was “not the proper forum” to resolve a dispute about immigration arrests, saying such policies could be altered through congressional appropriations and oversight, changes to the law and federal elections. Had the high court accepted Texas and Louisiana’s arguments, Kavanaugh warned, such a ruling could have allowed states to interfere in federal law enforcement beyond immigration matters.
“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,” he wrote. “We decline to start the Federal Judiciary down that uncharted path.”
In a scathing dissent, Alito said the court’s majority had incorrectly granted the executive branch “sweeping” powers, arguing that the states did have standing to sue over the ICE arrest policy.
“To put the point simply, Congress enacted a law that requires the apprehension and detention of certain illegal aliens whose release, it thought, would endanger public safety,” Alito wrote. “The Secretary of DHS does not agree with that categorical requirement. He prefers a more flexible policy.”
The case over the ICE arrest memo is part of a broader legal feud between the Biden administration and Republican-led states that have challenged — and oftentimes, halted — most of its major immigration policy changes.
Texas and other Republican-controlled states have successfully convinced judges to delay the termination of Title 42 border restrictions and reinstate a policy that required asylum-seekers to await their U.S. court hearings in Mexico. The states have also secured rulings that blocked a proposed 100-day moratorium on most deportations, closed the Deferred Action for Childhood Arrivals program for so-called “Dreamers” to new applicants and halted a quick migrant release policy designed to alleviate overcrowding in border facilities.
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