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Supreme Court Refuses to Reinstate Biden Immigration Policy
Justice Ketanji Brown Jackson Cast First Vote, in Dissent, Since Joining Court

July 22, 2022 by Dan McCue
Supreme Court Refuses to Reinstate Biden Immigration Policy
Supreme Court Justice Ketanji Brown Jackson signs the Oaths of Office at the Supreme Court in Washington, Thursday, June 30, 2022, as Chief Justice of the United States John Roberts watches. (Fred Schilling/Collection of the Supreme Court of the United States via AP)

WASHINGTON — The Supreme Court on Thursday declined to reinstate a Biden administration policy directive amending the nation’s strategy for immigration enforcement, handing a victory to red state attorneys general who argued the plan would only encourage more illegal border crossings.

The 5-4 vote was also noteworthy because it marked Justice Ketanji Brown Jackson’s first vote since joining the court on June 30.

The decision denied the Biden administration’s request to overturn a lower court ruling that prevented immigration officials from carrying out the new enforcement guidelines while litigation over the policy continues.

That guidance, issued by Homeland Security Secretary Alejandro Mayorkas in September 2021, directed Immigration and Customs Enforcement agents to prioritize the arrest of undocumented immigrants found to pose a threat to national security or public safety.

In the underlying lawsuit, Republican lawmakers from Arizona, Montana and Ohio had claimed the administration’s guidance would effectively force them to spend more money on law enforcement and public services to host undocumented immigrants with lesser or no criminal records.

In March, U.S. District Judge Michael Newman, an appointee of former President Donald Trump, partially blocked the directive on the grounds that it violated congressional mandates on the detention of immigrants with certain criminal convictions and those with final orders of deportation.

In a court filing, U.S. Solicitor General Elizabeth Prelogar argued that the lower court opinion is “thwarting the secretary’s direction of the department he leads and disrupting DHS’ efforts to focus its limited resources on the noncitizens who pose the gravest threat to national security, public safety, and the integrity of our nation’s borders.”

Prelogar also noted how unusual the case is, reminding the justices that for most of the nation’s history, “courts did not allow states to sue the federal government based on the indirect, downstream effects of federal policies.” 

Meanwhile, both Texas Attorney General Ken Paxton and Louisiana Attorney General Jeff Landry filed documents urging the justices to stay out of the dispute.

They contend federal law enforcement officials lack the discretion to hand down guidelines like those announced by Mayorkas, and that the federal officers are obligated to detain immigrants who commit a wide array of serious and less serious crimes or who have been ordered removed.

While they ultimately refused to grant the administration the relief it sought, the justices did say that they would fast-track its appeal and hear oral arguments on the case the first week of December.

Jackson joined Justices Elena Kagan, Sonia Sotomayor and Amy Coney Barrett in dissenting from the court’s decision.

Although the court doesn’t sit for oral arguments over the summer, the justices do, as in this case, vote on emergency applications that it receives between the end of one term, typically in late June, and the beginning of the next in early October.

Should there be no more emergency applications this summer — something that seems unlikely but could happen, Jackson’s next public role will be participating in her formal investiture in the court, which will likely occur in September.

In a statement on Thursday, the DHS said that it would abide by the lower court’s ruling as long as it remains in effect.

“In the interim, ICE officers will make enforcement decisions on a case-by-case basis in a professional and responsible manner, informed by their experience as law enforcement officials and in a way that best protects against the greatest threats to the homeland,” the statement continued. “ICE officers apply prosecutorial discretion when making apprehension and removal decisions, as do law enforcement officers in different agencies and offices throughout the country.”

Dan can be reached at dan@thewellnews.com and @DanMcCue

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