The Supreme Court, in an 8-1 ruling on Friday, revived the Biden administration’s immigration guidelines that prioritize which noncitizens to deport, dismissing a challenge from two Republican state attorneys general who argued the policies conflicted with immigration law.
The court said the states, Texas and Louisiana, did not have the “standing,” or the legal right, to sue in the first place in a decision that will further clarify when a state can challenge a federal policy in court going forward.
The ruling is a major victory for President Joe Biden and the White House, who have consistently argued the need to prioritize who they detain and deport given limited resources. By ruling against the states, the court tightened the rules concerning when states may challenge federal policies with which they disagree. The Biden administration policy was put on pause by a federal judge nearly two years ago and the Supreme Court declined to lift that hold last year.
Justice Brett Kavanaugh wrote Friday’s majority opinion in the case.
“In sum, the states have brought an extraordinarily unusual lawsuit,” Kavanaugh wrote, in an opinion joined by Chief Justice John Roberts, and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. “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.”
Kavanaugh said that the executive branch has traditional discretion over whether to take enforcement actions under federal law. He said that if the court were to allow the states to bring the lawsuit at hand, it would “entail expansive judicial direction” of the executive’s arrest policy and would open the door to more lawsuits from states that think the executive is not doing enough to enforce the law in other areas such as drug and gun regulation and obstruction of justice laws.
“We decline to start the Federal Judiciary down that uncharted path,” Kavanaugh said.
Homeland Security Secretary Alejandro Mayorkas said the administration welcomes the court’s ruling and that his department looks forward to using the immigration guidelines.
The guidelines “enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress,” Mayorkas said.
Justice Neil Gorsuch, joined by Justices Clarence Thomas and Amy Coney Barrett, wrote a concurring an opinion that concluded that the states also lacked standing, but for different reasons than the majority opinion. Justice Samuel Alito dissented.
At the heart of the dispute was a September 2021 memo from Mayorkas that laid out priorities for the apprehension and removal of certain non-citizens, reversing efforts by former President Donald Trump to increase deportations.
In his memo, Mayorkas stated that there are approximately 11 million undocumented or otherwise removable non-citizens in the country and that the United States does not have the ability to apprehend and seek to remove all of them. As such, the Department of Homeland Security sought to prioritize those who pose a threat to national security, public safety and border security.
Kavanaugh’s opinion stressed that the standing doctrine “helps safeguard the Judiciary’s proper – and properly limited – role in our constitutional system.” He said that by ensuring a party has standing to sue, “federal courts prevent the judicial process from being used to usurp the powers of the political branches.”
The majority did not address the underlying question of whether the administration had the authority to implement the policy.
“We take no position on whether the executive branch here is complying with its legal obligations under §1226(c) and §1231(a)(2),” Kavanaugh wrote, referring to the relevant immigration statutes. “We hold only that the federal courts are not the proper forum to resolve this dispute.”
Kavanaugh pointed out that five presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.
In his sole dissent, Alito wrote that this “sweeping executive power endorsed by today’s decision may at first be warmly received by champions of a strong Presidential power, but if presidents can expand their powers as far as they can manage in a test of strength with Congress, presumably Congress can cut executive power as much as it can manage by wielding the formidable weapons at its disposal.”
“That is not what the Constitution envisions,” he wrote.
Steve Vladeck, a CNN Supreme Court analyst who filed an amicus brief in the immigration case, noted that Friday’s ruling was the second decision within the last week in which the court “held that red states lacked standing to challenge a federal policy – perhaps a signal of dissatisfaction with how liberally lower courts, especially the Fifth Circuit, have permitted these challenges to go forward.”
“And it’s the second in the last two years in which it has reversed a nationwide injunction against a Biden immigration policy in a suit brought by Texas,” Vladeck said. “When states are the right plaintiffs to challenge federal policies is also one of the central issues before the court in the challenges to Biden’s student loan program – in which the court is expected to rule next week.”
Kavanaugh’s opinion emphasized that, in “holding that Texas and Louisiana lack standing, we do not suggest that federal courts may never entertain cases involving the executive branch’s alleged failure to make more arrests or bring more prosecutions.”
In court, US Solicitor General Elizabeth Prelogar stressed that Congress has never provided the funds to detain everyone, prompting different administrations to consider how to prioritize limited funds. She noted that the executive branch retains the authority to focus its “limited resources” on non-citizens who are higher priorities for removal and warned that if the states were to prevail, it would “scramble” immigration enforcement on the ground, leading to a totally unmanageable landscape. She said the states’ view in the case was a “senseless” way to run an immigration system.
“I think that that is bad for the executive branch. I think it’s bad for the American public and I think it’s bad for Article Three courts,” she said.
The guidelines call for an assessment of the “totality of the facts and circumstances” instead of the development of a bright-line rule. The government lists aggravating factors weighing in favor of an enforcement action, including the gravity of the offense and the use of a firearm, but it also lists mitigating factors that include the age of the immigrant.
Texas Solicitor General Judd Stone, representing Texas and Louisiana, argued that the administration lacked the authority to issue the memo because it conflicts with existing federal law. He accused the government of treating immigration law in the area as “discretionary” and not “mandatory” and argued that the executive branch lacks the authority to “disregard” Congress’ instruction.
“The states prove their standing at trial based on harms well recognized,” Stone said, emphasizing the costs incurred when the government “violates federal law.”
A district court judge blocked the guidelines nationwide. “Using the words ‘discretion’ and ‘prioritization’ the executive branch claims the authority to suspend statutory mandates,” ruled Judge Drew Tipton, a Trump appointee on the US District Court for the Southern District of Texas. “The law does not sanction this approach.”
A federal appeals court declined to issue a stay of the decision, prompting the Biden administration to ask the Supreme Court for emergency relief last July. A 5-4 court ruled against the administration, allowing the lower court’s decision to remain in effect while the legal challenge played out.
Conservative Justice Amy Coney Barrett joined her three liberal colleagues in dissent without providing any explanation for her vote.
This story has been updated with additional details.