Supreme Court Revives Biden Deportation Guidelines

June 23, 2023 by Dan McCue
Supreme Court Revives Biden Deportation Guidelines
The U.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON — The Supreme Court on Friday revived immigration guidelines set by the Biden administration that prioritized the arrest and deportation of individuals known to pose a national security risk to the nation or “egregious threats to public safety” over those who merely entered the country illegally.

The policy, promulgated by the Department of Homeland Security in 2021, was an acknowledgment by the administration that it simply doesn’t have enough money or manpower at its disposal to deport all of the estimated 11 million people who are currently in the United States illegally.

The directive updated a Trump-era policy to remove everyone who entered the country illegally regardless of their criminal history or the threat they posed.

The attorneys general of Texas and Louisiana then sued, arguing that the Biden policy contravened two existing federal statutes — one that required them to arrest illegal entrants on immigration charges upon their release from prison on other charges, the other, to detain them after receiving a final order of removal — and that the new policy would force them to incur costs they wouldn’t have had under the Trump policy.

A federal district judge found that states would incur those costs as a result of the administration failing to comply with the alleged statutory mandates and held the states had standing to sue. 

The 5th U.S. Circuit Court of Appeals declined to stay the lower court’s order.

But in an 8-1 ruling Friday morning, the Supreme Court held that the states did not have standing, nor the legal right to sue.

The opinion, written by Justice Brett Kavanaugh, clarifies when states can challenge a federal policy with which they disagree going forward.

“In sum, the states have brought an extraordinarily unusual lawsuit. They want a federal court to order the executive branch to alter its arrest policies so as to make more arrests,” Kavanaugh wrote. 

“Federal courts have not traditionally entertained that kind of lawsuit,” he continued. “Indeed, the states cite no precedent for a lawsuit like this. The states lack Article III standing because this court’s precedents and the ‘historical experience’ preclude the states’ attempt to litigate this dispute at this time and in this form. And because the states lack Article III standing, the district court did not have jurisdiction.”

In a concurring opinion, Justice Neil Gorsuch agreed Texas and Louisiana lacked a right to sue, but for a different reason: “redressability.” 

“As I see it, the jurisdictional problem the states face in this case isn’t the lack of a ‘judicially cognizable’ interest or injury,” Gorsuch wrote. “The states proved that the guidelines increase the number of aliens with criminal convictions and final orders of removal released into the states. 

“They also proved that, as a result, they spend more money on everything from law enforcement to health care,” he continued.

“The problem the states face concerns something else altogether — a lack of redressability,” Gorsuch wrote. “To establish redressability, a plaintiff must show from the outset of its suit that its injuries are capable of being remedied ‘by a favorable decision.’”

“Ordinarily, to remedy harms like those the states demonstrated in this suit, they would seek an injunction. The injunction would direct federal officials to detain aliens consistent with what the states say the immigration laws demand,” he said. “But even assuming an injunction like that would redress the states’ injuries, that form of relief is not available to them.”

The reason for that, Gorsuch explained, is a federal law in which Congress stated that “‘no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of’ certain immigration laws, including the very laws the states seek to have enforced in this case.

“Put simply, the remedy that would ordinarily have the best chance of redressing the states’ harms is a forbidden one in this case,” Gorsuch concluded.

He was joined in his concurring opinion by Justices Clarence Thomas and Amy Coney Barrett. Barrett also wrote a concurring opinion in which she was joined by Gorsuch. Justice Samuel Alito Jr. filed a dissent.

In that dissent, Alito pushes back at the majority, arguing the federal policy being challenged “inflicts substantial harm” on the state [of Texas] and its residents “by releasing illegal aliens with criminal convictions for serious crimes.” 

“In order to reach this conclusion, the court brushes aside a major precedent that directly controls the standing question, refuses to apply our established test for standing, disregards factual findings made by the district court after a trial, and holds that the only limit on the power of a president to disobey a law like the important provision at issue is Congress’ power to employ the weapons of inter-branch warfare — withholding funds, impeachment and removal, etc.,” Alito wrote.

“I would not blaze this unfortunate trail. I would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing,” he said.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue

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