WASHINGTON – The Supreme Court handed President Joe Biden a narrow win Friday in a major immigration case, ruling that Republican officials in two states who challenged the president’s effort to prioritize some unauthorized immigrants for arrest and detention over others did not have standing to sue.
The legal questions involved in the case are separate from the crisis that unfolded earlier this year on the border caused by the lifting of the national emergency declared because of COVID-19.
At issue is a Biden memorandum from 2021 that focused enforcement on immigrants who pose a threat to national security, public safety or who recently crossed the border. The administration says it wants to prioritize those immigrants because it doesn’t have the resources to remove everyone in the country illegally. Texas and Louisiana said federal law gives Biden less discretion to pick and choose enforcement targets.
A 5-4 majority of the court put the policy on hold in July as it considered the case. Justice Brett Kavanaugh wrote for a five-justice majority. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Amy Coney Barrett wrote an opinion that agreed with the final outcome. Justice Samul Alito dissented.
Though the policy was at the heart of the case, the justices spent just as much time during the November oral arguments debating whether the states were able to sue and what power lower courts have to block such policies. Those questions may be particularly important for a president operating with a divided and gridlocked Congress.
Biden’s attorneys questioned whether Texas and Louisiana should be allowed to sue. The states claim the immigration policy forced them to spend more money but critics have said the states have sought to increase their populations and that the same costs – such as for public education – would rise with an influx of non-immigrants as well.
Biden laid out his immigration priorities in a Department of Homeland Security memorandum in 2021. But the states said federal immigration law demands more than Biden’s approach: It requires the government to arrest and detain immigrants who have committed certain crimes, such as aggravated felonies or human trafficking.
A federal district court in Texas sided with the states and halted the policy’s enforcement. A three-judge panel of the New Orleans-based U.S. Court of Appeals for the 5th Circuit – all three of whom were nominated by GOP presidents – declined to put the district court’s ruling on hold. Biden then filed an emergency request in July asking the Supreme Court to review the 5th Circuit’s decision.
In July, a 5-4 majority of the court declined Biden’s request, barring his ability to carry out the policy. But the court also agreed to hear arguments, shifting the case off its emergency docket and delving more deeply into the merits of the legal questions.
The high court had been set to hear another immigration case in March about whether the government could continue to rapidly expel migrants under the pandemic-era Title 42 program. But after Biden announced he would end the emergency declarations tied to COVID-19, the court removed the case from its calendar.
Biden’s lawyers argued the administration doesn’t have the resources to do what the states are asking: DHS has about 6,000 interior enforcement officers to deal with more than 11 million people in the country illegally. The administration’s priorities don’t reduce enforcement, the government argued, but rather focus it on the worst offenders.
That position seemed at least partly persuasive to Associate Justice Brett Kavanaugh, who repeatedly returned to a line of questioning during arguments about the practical impact of a ruling in favor of the states.
“If you prevail here, what will happen?” Kavanaugh asked the attorney for Texas. “That’s a concern because I’m not sure much will change because they don’t have the resources to change.”
But Chief Justice John Roberts at times seemed to press an opposing view.
“It’s our job to say what the law is, not whether or not it can be possibly implemented or whether there are difficulties there.” he said in November. “And I don’t think we should change that responsibility just because Congress and the executive can’t agree on something that’s possible to address this problem.”
