The Boston Globe

Court lets Biden migrant plan stay

Ruling says states lack standing to sue over federal policy guiding arrests

- By Adam Liptak

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.”

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