Court lets Biden migrant plan stay
Ruling says states lack standing to sue over federal policy guiding arrests
WASHINGTON — The Supreme Court ruled Friday that the Biden administration could set priorities for which immigrants to arrest and which to leave alone, rejecting a challenge from two conservative states that pressed for more aggressive enforcement and handing a major victory to President Biden.
The dispute was part of a larger battle between Biden, who has struggled to balance control of the southern border with humane treatment of immigrants, and Republican-led states, which have repeatedly sought to quash the administration’s immigration agenda by contesting policy after policy in the courts. In allowing the administration leeway in deciding whom to arrest, the Supreme Court acknowledged the difficulty of the problem and the leading role the executive branch must play in solving it.
In ruling that the states, Texas and Louisiana, lacked standing to sue, the majority, by an 8-1 vote, also signaled skepticism of challenges to immigration measures brought by states in an area that has largely been the federal government’s domain. More generally, the ruling set new limits on partisan lawsuits filed by states to challenge federal programs, which have surged in the last decade.
“If the court greenlighted this suit,” Justice Brett Kavanaugh wrote for five justices, “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. We decline to start the
federal judiciary down that uncharted path.”
The guidelines, issued in 2021 by the Department of Homeland Security, set priorities for which immigrants living in the country without legal permission should be arrested and focused on “national security, public safety and border security.”
The new rules sought to undo the broad policies of the Trump administration, which pledged to “take the shackles” off Immigration and Customs Enforcement agents and said anyone in the country without legal documentation could be targeted for deportation. Under its guidelines, the Biden administration said, ICE would instead focus on national security threats and those who had recently crossed the border.
In the final years of the Obama administration, ICE agents prioritized immigrants with criminal histories. Before a resulting decline in deportations, President Barack Obama carried out more than 409,000 removals in 2012, prompting immigration advocates to call him the “deporter in chief.”
“I think it was a big mistake,” Biden said of the earlier Obamaera approach during the 2020 presidential campaign. Republicans, however, have seized on the new guidelines, as well as record crossings at the southwest border, to portray him as weak on law and order.
Texas and Louisiana sued to block the guidelines, which they said allowed many immigrants with criminal records to remain free while their cases moved forward, violating a federal law that they said made detentions mandatory.
In his opinion, Kavanaugh said the court did not address the question of whether the administration was complying with its legal obligations under the immigration laws and ruled only that the challengers, Texas and Louisiana, lacked standing to pursue the question.
“The states have brought an extraordinarily unusual lawsuit,” he wrote. “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 said Congress was free to act if it was dissatisfied with the administration’s approach. “Congress possesses an array of tools to analyze and influence those policies — oversight, appropriations, the legislative process and Senate confirmations, to name a few,” Kavanaugh wrote.
Chief Justice John Roberts joined Kavanaugh’s majority opinion, as did the court’s three liberal members, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett voted with the majority but did not adopt its rationale. Only Justice Samuel Alito dissented.
Governor Greg Abbott of Texas, a Republican, called the decision “outrageous” in a Twitter post.
“SCOTUS gives the Biden Admin. carte blanche to avoid accountability for abandoning enforcement of immigration laws,” Abbott wrote. “Texas will continue to deploy the National Guard to repel & turn back illegal immigrants trying to enter Texas illegally.”
Omar Jadwat, a lawyer with the American Civil Liberties Union, said the ruling was significant and welcome.
“Texas and Louisiana were trying to force the federal government to take a scorchedearth, draconian approach to immigration enforcement,” he said, adding that the decision “means that, like every administration before it, the Biden administration can set priorities for enforcement.”