The Supreme Court on Friday upheld a key part of President Biden’s plan for targeted immigration enforcement, ruling the administration may focus its efforts on arresting and deporting those who pose a current danger.
In a 8-1 decision, the justices said Texas and Louisiana lacked standing to sue in order to require a more aggressive federal policy of arrests.
Writing for the court, Justice Brett M. Kavanaugh invoked the conservative principle that judges should not make government policy through politically driven lawsuits. Moreover, enforcing the immigration laws has been understood to be the job of the executive branch, not the courts, he said.
“The states essentially want the federal judiciary to order the executive branch to alter its arrest policy so as to make more arrests,” he said in United States vs. Texas. But the states and their attorneys have not suffered a direct or personal injury that would give them standing to sue, he said.
“If the court green-lighted this suit,” federal judges would soon be asked to decide whether the government must make more arrests to enforce the drug laws, gun laws and many others, he said.
The decision tossed out a lawsuit filed by Texas Atty. Gen. Ken Paxton before a conservative judge in Corpus Christi, Texas. U.S. District Judge Drew Tipton, a Trump appointee, issued a nationwide order declaring the Biden administration’s immigration policy was illegal and could not be used.
The U.S. 5th Circuit Court of Appeals refused to lift the order in July of last year, and the Supreme Court did the same by turning down an emergency appeal filed by Biden’s lawyers.
But after hearing arguments in the case, all but Justice Samuel A. Alito Jr. voted to toss out the lawsuit and allow the administration to proceed as planned.
Texas Gov. Gregg Abbott tweeted that “this decision is outrageous. SCOTUS gives the Biden Admin. carte blanche to avoid accountability for abandoning enforcement of immigration laws. Texas will continue to deploy the National Guard to repel & turn back illegal immigrants trying to enter Texas illegally.”
But David Leopold, former president of the American Immigration Lawyers Assn., called the decision “a victory for common sense over chaos and a blow against Republicans’ reliance on the anti-immigrant judicial pipeline. We hope today’s ruling is a signal that on immigration, judges should follow the law and not impose their own politics.”
Friday’s opinion is the fourth in recent weeks to sound the theme of judicial restraint and deference to Congress or the White House.
With Kavanaugh casting the key vote, the justices earlier this month upheld a provision of the Voting Rights Act in an Alabama case, ruling that Congress required states to try to draw compact election districts that give Black voters a chance to elect a candidate of their choice.
Last week, they upheld the Indian Child Welfare Act that seeks to keep Native American children with relatives or tribal members. Justices Clarence Thomas and Alito dissented in both cases and said they would have overturned those laws.
On Thursday, the justices tossed out a lawsuit brought by Navajo Nation seeking more water rights and ruled the issue is one for Congress, not the courts.
But that trend may not last. Next week, the justices are due to hand down the final decisions of this term. They include challenges to college affirmative action policies and to Biden’s plan to forgive millions of student loans.
In defense of the student loan program, the administration’s lawyers cited standing, arguing the six Republican-led states which sued had not suffered a direct injury. Those states, rather like Texas in the immigration case, said they might have to bear some extra costs, in this instance for processing loans. But in a footnote to Friday’s opinion dismissing the Texas lawsuit, Kavanaugh said, “In our system of dual federal and state sovereignty, federal policies frequently generate indirect effects on state revenues or state spending.”
The immigration case decided Friday does not involve the tens of thousands of migrants who arrive at the border or the millions of those who live in the country without legal documentation.
Instead, it concerned immigrants with past crimes on their records and whether the government is required to seek them out for arrest and deportation.
Republican state attorneys and the Democratic administration have been locked in a dispute over immigration enforcement. Last year, the Supreme Court by a 5-4 vote refused to allow Biden’s immigration enforcement guidelines to take effect, but the justices agreed to hear arguments on the legal dispute.
At issue was whether the law requires mandatory detention for immigrants who have a serious crime on their record or instead allows the administration to focus on arresting and deporting those who pose a current danger to public safety.
Often, immigrants serve years in state prisons for crimes such as drug trafficking. Upon release, they may be taken into custody by federal immigration agents, but that is not automatic.
Biden’s Homeland Security Secretary Alejandro N. Mayorkas said the government had no choice but to set priorities for enforcing the immigration laws. He said the government did not have the staff or the space to seek out and arrest tens of thousands of non-citizens for past crimes.
“It is well-established in the law that federal government officials have broad discretion to decide who should be subject to arrest, detainers, removal proceedings and the execution of removal orders,” he said last September. He said enforcement should focus on “noncitizens who pose a current threat to public safety,” not all those who have a criminal record.
