Supreme Court rules for Biden immigration enforcement plan

The Supreme Court building against a blue sky, as one person stands at the bottom of its stairway and another approaches.

June 23, 2023 Updated 7:53 PM PT

WASHINGTON — The Supreme Court on Friday upheld a key part of President Biden’s plan for targeted immigration enforcement, ruling the administration may focus its efforts on arresting and deporting those who pose a current danger.

In an 8-1 decision, the justices said Texas and Louisiana lacked standing to sue in their effort to make the federal government adopt a more aggressive policy on arresting migrants.

Writing for the court, Justice Brett M. Kavanaugh invoked the conservative principle that judges should not make government policy through politically driven lawsuits. Moreover, enforcing the immigration laws has been understood to be the job of the executive branch, not the courts, he said.

“The states essentially want the federal judiciary to order the executive branch to alter its arrest policy so as to make more arrests,” he said in United States vs. Texas. But the states and their attorneys have not suffered a direct or personal injury that would give them standing to sue, he said.

“If the court green-lighted this suit,” federal judges would soon be asked to decide whether the government must make more arrests to enforce laws on drugs, guns and much more, he said.

The decision tossed out a lawsuit Texas Atty. Gen. Ken Paxton had filed before a conservative federal judge in Corpus Christi. U.S. District Judge Drew Tipton, an appointee of former President Trump, issued a nationwide order declaring the Biden administration’s immigration policy was illegal and could not be used.

The U.S. 5th Circuit Court of Appeals refused to lift Tipton’s order last July, and the Supreme Court did the same when it turned down an emergency appeal filed by Biden’s lawyers.

But after hearing arguments in the case, all but conservative Justice Samuel A. Alito Jr. voted to toss out the lawsuit and allow the administration to proceed as planned.

“This decision is outrageous,” Texas Gov. Greg Abbott tweeted Friday.

“SCOTUS gives the Biden Admin. carte blanche to avoid accountability for abandoning enforcement of immigration laws,” he said, adding that “Texas will continue to deploy the National Guard to repel & turn back illegal immigrants trying to enter Texas illegally.”

David Leopold, former president of the American Immigration Lawyers Assn., called the decision “a victory for common sense over chaos and a blow against Republicans’ reliance on the anti-immigrant judicial pipeline,” adding: “We hope today’s ruling is a signal that on immigration, judges should follow the law and not impose their own politics.”

Friday’s opinion was the fourth in recent weeks to sound the theme of judicial restraint and deference to Congress or the White House.

Earlier this month, Kavanaugh cast the key vote as justices upheld a provision of the Voting Rights Act in an Alabama case, ruling in favor of Congress’ requirement that states try to draw compact election districts that give Black voters a chance to elect a candidate of their choice.

Last week, the high court upheld the Indian Child Welfare Act, which aims to place Native American children with relatives or tribal members in custody, foster and adoption cases.

Conservative Justices Clarence Thomas and Alito dissented in both cases, saying they would have overturned those laws.

On Thursday, the justices tossed out a lawsuit brought by the Navajo Nation seeking more water rights, saying the issue is one for Congress, not the courts.

But that trend may not last. Next week, the justices are due to hand down the final decisions of this term. The cases include challenges to college affirmative action policies and to Biden’s plan to forgive millions of student loans.

In defense of the student loan program, the administration’s lawyers have cited standing, saying the six Republican-led states suing are not suffering direct injuries. Those states, rather like Texas in the immigration case, have said they might have to bear some extra costs, in this instance for processing loans.

But in a footnote to Friday’s opinion dismissing the Texas lawsuit, Kavanaugh said, “In our system of dual federal and state sovereignty, federal policies frequently generate indirect effects on state revenues or state spending.”

The immigration case decided Friday does not involve the tens of thousands of migrants who arrive at the border or the millions who live in the country without legal documentation.

Instead, it concerned immigrants with past crimes on their records, and whether the government is required to seek them out for arrest and deportation.

Republican state attorneys and the Democratic administration have been locked in a dispute over immigration enforcement. Last year, the Supreme Court by a 5-4 vote refused to allow Biden’s immigration enforcement guidelines to take effect, but the justices agreed to hear arguments on the legal dispute.

At issue was whether the law requires mandatory detention for immigrants who have a serious crime on their record, or instead allows the administration to focus on arresting and deporting those who pose a current threat to public safety.

Often, immigrants serve years in state prison for crimes such as drug trafficking. Upon release, they may be taken into custody by federal immigration agents, but that is not automatic.

Homeland Security Secretary Alejandro N. Mayorkas said the federal government had no choice but to set priorities for enforcing the immigration laws. He said the government did not have the staff or the space to seek out and arrest tens of thousands of noncitizens for past crimes.

“It is well-established in the law that federal government officials have broad discretion to decide who should be subject to arrest, detainers, removal proceedings and the execution of removal orders,” he said in September.

Mayorkas said enforcement should focus on “noncitizens who pose a current threat to public safety,” not on all of those who have criminal records.