USA TODAY US Edition

Immigratio­n case comes before the high court

Two conservati­ve states will test Biden’s power to prioritize some migrants

- John Fritze

WASHINGTON – Four months after the Supreme Court temporaril­y blocked President Joe Biden’s power to prioritize certain immigrants in the country illegally for deportatio­n, the justices will revisit the issue Tuesday in the first major immigratio­n case of the term.

Biden’s administra­tion wants to focus enforcemen­t on immigrants who pose a threat to national security or public safety. But that approach, which officials announced last year, represents a departure from the Trump administra­tion’s more sweeping tactics. And two conservati­ves states, Texas and Louisiana, sued over the strategy.

The case is one of several challengin­g Biden’s authority to make policy without explicit authorizat­ion from Congress – an issue likely to become more prominent now that Republican­s will control the House of Representa­tives. Biden’s record on that question has been spotty, with the 6-3 conservati­ve majority rejecting his COVID-19 eviction moratorium and vaccine-or-testing mandate for large employers.

Immigratio­n advocates question whether Texas and Louisiana should be allowed to sue. The states claim Biden’s policy forced them to spend more money on law enforcemen­t, health care and education. But critics say the states have sought to increase their population­s and that those costs would rise with an influx of non-immigrants, too.

“Just because you say it’s a drain on resources doesn’t actually mean that that is real,” said Sirine Shebaya, executive director of the National Immigratio­n Project, whose group co-wrote a brief in the case supporting Biden’s position. “They are actively targeting this group and breaking it apart from the rest of the population, even though federal and state law require that all residents of a state be treated similarly.”

Louisiana Solicitor General Liz Murrill asserted that states should be permitted to prioritize their resources.

“We do not have a money tree in the back yard, nor can we print money,” she said. “Any argument that our position on illegal immigratio­n is somehow in conflict with a policy of encouragin­g growth in our states is falsely equating two things that are wildly dissimilar.”

Texas and Louisiana told the Supreme Court in their brief that other states have been allowed to sue on similar grounds. The states said officials have an obligation to “protect the health and well-being of their residents by protecting them from criminal aliens that Congress has ordered detained.”

The federal government doesn’t have the resources to detain and deport every immigrant in the country illegally. Like previous administra­tions, the Biden administra­tion sought in a Department of Homeland Security memorandum last year to focus its immigratio­n enforcemen­t on people it believes pose a threat to national security or public safety or who are recent border crossers.

But the states say that federal law demands more than that: It requires the federal government detain immigrants who have committed certain crimes, such as aggravated felonies or human traffickin­g. The Biden administra­tion doesn’t have the power, they say, to pick and choose which of those immigrants to target for enforcemen­t.

A federal district court in Texas sided with the states and halted the policy’s enforcemen­t. A three-judge panel of the New Orleans-based U.S. Court of Appeals for the 5th Circuit – all three of whom were nominated by GOP presidents – declined to put the district court’s ruling on hold. Biden filed an emergency request asking the high court to review the decision.

Days later, a 5-4 majority of the court declined Biden’s request, barring his ability to carry out the policy. But the court also agreed to hear oral arguments, shifting the case off its emergency docket and delving more deeply into the merits of the legal questions at issue. The court’s three liberal justices – joined by conservati­ve Associate Justice Amy Coney Barrett – said they would have granted the Biden administra­tion’s request.

Though the Biden administra­tion has lost several high-profile cases dealing with administra­tive policies and regulation­s, it secured a major win this year in another immigratio­n dispute that had some key arguments in common with the current case.

A 5-4 majority allowed the Biden administra­tion to end a Trump-era immigratio­n policy that required migrants seeking asylum to remain in Mexico while their cases are reviewed.

Chief Justice John Roberts and Associate Justice Brett Kavanaugh sided with the court’s liberal wing in that decision. Associate Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Barrett dissented.

Roberts, writing for the majority, said that the lower court’s ruling against the administra­tion “imposed a significan­t burden upon the executive’s ability to conduct diplomatic relations with Mexico.”

The case is one of several challengin­g Biden’s authority to make policy without explicit authorizat­ion from Congress – an issue likely to become more prominent now that Republican­s will control the House of Representa­tives.

 ?? AP ?? Venezuelan migrants walk from Ciudad Juarez, Mexico, in October, across the Rio Bravo toward the U.S. border to surrender to patrol officers.
AP Venezuelan migrants walk from Ciudad Juarez, Mexico, in October, across the Rio Bravo toward the U.S. border to surrender to patrol officers.

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