Supreme Court revives Biden immigration guidelines
The Supreme Court on Friday revived immigration enforcement guidelines issued by the Biden administration, which had set priorities for deciding which unauthorized immigrants to arrest and detain, saying the challengers had not sustained the kind of injury that would allow them to face charges.
Justice Brett M. Kavanaugh wrote the opinion of the majority, joined by Chief Justice John G. Roberts Jr. and the court’s three liberal members, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Justices Clarence Thomas, Neil M. Gorsuch, and Amy Coney Barrett voted with the majority, but did not adopt the rationale. Only Judge Samuel A. Alito Jr. disagreed.
The guidelines, issued in 2021, focused on “national security, public safety and border security”. But they also gave immigration and customs enforcers considerable latitude in deciding whether enforcement action was warranted.
Texas and Louisiana filed a lawsuit to block the guidelines, which they say allowed many immigrants with criminal records to remain free while their cases progressed, straining the states’ legal systems and violating a federal law that, according to forced them to be detained.
Last summer, Judge Drew B. Tipton of the Federal District Court in Victoria, Texas a statement which blocked the use of the guidelines across the country. A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, refused to interrupt the statement.
The Biden administration filed an emergency petition asking the Supreme Court to block Judge Tipton’s ruling. In a short assignment in July, the court refused by a vote of 5 to 4. But the judges agreed to move the case relatively quickly and hear arguments in November.
They considered three fundamental issues: whether states had sustained the kinds of injuries that would allow them to be sued; whether the directives were lawful; and what should happen if the court ruled that this was not the case. The judges seemed divided on all three questions.
The government argued that the Department of Homeland Security should be able to prioritize since the federal government lacks the resources to arrest and attempt to deport all unauthorized immigrants. A law that appeared to mandate some deportations by using the phrase “shall remove,” the administration said, was unworkable because Congress had not allocated the resources to allow the executive branch to continue that massive undertaking.
Lawyers from two states responded that the court’s ruling in the case, United States v. Texas, No. 22-58, might affect 80,000 people. But they admitted there weren’t enough beds to hold that many immigrants.
In a separate but nearly identical case brought by three other states – Arizona, Montana and Ohio – a unanimous panel of three judges from the Sixth Circuit, in Cincinnati, refused to block the guidelines in July.
Chief Justice Jeffrey S. Sutton, writing for the panel, said the guidelines were consistent with previous administrations’ approaches. “Federal legislation gives the national government significant say over immigration policy,” he wrote.