Supreme Court Revives Biden Immigration Guidelines

Border Patrol agents searching migrants in El Paso. Texas and Louisiana sued to block Biden administration guidelines that they said allowed immigrants with criminal records to remain free while their cases moved forward.Credit...Ivan Pierre Aguirre for The New York Times

The guidelines, setting priorities for which unauthorized immigrants should be detained, were blocked by a federal judge in Texas.


) -- The Supreme Court on Friday ruled that the Biden administration could set priorities for which undocumented immigrants to arrest and which to leave alone, rejecting a challenge from two conservative states that pressed for more aggressive enforcement and handing a major victory to President Biden.

The dispute was part of a larger battle between Mr. Biden, who has struggled to balance control of the southern border with humane treatment of immigrants, and Republican-led states, which have repeatedly sought to quash the administration’s immigration agenda by contesting policy after policy in the courts. In allowing the administration leeway in deciding whom to arrest, the Supreme Court acknowledged the difficulty of the problem and the leading role the executive branch must play in solving it.

In ruling that the states, Texas and Louisiana, lacked standing to sue, the majority, by an 8-to-1 vote, also signaled skepticism of challenges to immigration measures brought by states in an area that has largely been the federal government’s domain. More generally, the ruling set new limits on partisan lawsuits filed by states to challenge federal programs, which have surged in the last decade.

“If the court greenlighted this suit,” Justice Brett M. Kavanaugh wrote for five justices, “we could anticipate complaints in future years about alleged executive branch under-enforcement of any similarly worded laws — whether they be drug laws, gun laws, obstruction of justice laws or the like. We decline to start the federal judiciary down that uncharted path.”

The guidelines, issued in 2021 by the Homeland Security Department, set priorities for which unauthorized immigrants should be arrested and focused on “national security, public safety and border security.”

The new rules sought to undo the broad policies of the Trump administration, which pledged to “take the shackles” off Immigration and Customs Enforcement agents and said anyone in the country without legal documentation could be targeted for deportation. Under its guidelines, the Biden administration said, ICE would instead focus on national security threats and those who had recently crossed the border.

In the final years of the Obama administration, ICE agents prioritized undocumented immigrants with criminal histories. Before a resulting decline in deportations, Mr. Obama carried out more than 409,000 removals in 2012, prompting immigration advocates to call him the “deporter in chief.”

“I think it was a big mistake,” Mr. Biden said of the Obama-era approach during the 2020 presidential campaign. Republicans, however, have seized on the new guidelines, as well as record crossings at the southwestern border, to portray him as weak on law and order.

Texas and Louisiana sued to block the guidelines, which they said allowed many immigrants with criminal records to remain free while their cases moved forward, violating a federal law that they said made detentions mandatory.

In his opinion, Justice Kavanaugh said the court did not address the question of whether the administration was complying with its legal obligations under the immigration laws and ruled only that the challengers, Texas and Louisiana, lacked standing to pursue the question.

“The states have brought an extraordinarily unusual lawsuit,” he wrote. “They want a federal court to order the executive branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the states cite no precedent for a lawsuit like this.”

He said Congress was free to act if it was dissatisfied with the Biden administration’s approach. “Congress possesses an array of tools to analyze and influence those policies — oversight, appropriations, the legislative process and Senate confirmations, to name a few,” Justice Kavanaugh wrote.

Chief Justice John G. Roberts Jr. joined Justice Kavanaugh’s majority opinion, as did 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 its rationale. Only Justice Samuel A. Alito Jr. dissented.

Gov. Greg Abbott of Texas, a Republican, called the decision “outrageous” in a Twitter post.

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

Omar Jadwat, a lawyer with the American Civil Liberties Union, said the ruling was significant and welcome.

“Texas and Louisiana were trying to force the federal government to take a scorched-earth, draconian approach to immigration enforcement,” he said, adding that the decision “means that, like every administration before it, the Biden administration can set priorities for enforcement.”

The states argued that they had suffered financial harm from the Biden administration’s policy, which they said required them to jail or provide social services to people they said should have been arrested.

Justice Kavanaugh said those injuries were too indirect. He added that there were practical problems.

“The executive branch (i) invariably lacks the resources to arrest and prosecute every violator of every law and (ii) must constantly react and adjust to the ever-shifting public-safety and public-welfare needs of the American people,” he wrote, adding that “the executive branch does not possess the resources necessary to arrest or remove all of the noncitizens” covered by the laws the states sought to enforce.

That has been the case, he wrote, for the last 27 years under five presidential administrations.

Some 11 million undocumented immigrants reside in the United States, and successive administrations have issued enforcement guidelines to set priorities for arrest and deportation, typically focusing on threats to national security or public safety.

Justice Gorsuch, joined by Justices Thomas and Barrett, arrived at the same result as the majority by a different route. The problem, he wrote, was that the courts were powerless to redress the states’ grievances.

In dissent, Justice Alito wrote that the majority had given too much leeway to the executive branch.

“To put the point simply, Congress enacted a law that requires the apprehension and detention of certain illegal immigrants whose release, it thought, would endanger public safety,” he wrote. “The secretary of D.H.S. does not agree with that categorical requirement. He prefers a more flexible policy.”

Justice Alito continued: “And the court’s answer today is that the executive’s policy choice prevails unless Congress, by withholding funds, refusing to confirm presidential nominees, threatening impeachment and removal, etc., can win a test of strength. Relegating Congress to these disruptive measures radically alters the balance of power between Congress and the executive.”

Last summer, Judge Drew B. Tipton of the Federal District Court in Victoria, Texas, issued a ruling that blocked the use of the guidelines throughout the nation. A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, refused to pause the ruling.

During the past fiscal year, immigration authorities made more than 142,000 arrests, nearly double the number from the previous year. ICE conducted more than 72,000 deportations, a slight uptick from a year earlier, when the administration hit pandemic lows.

In the three full fiscal years under the Trump administration, an average of 135,094 undocumented immigrants were arrested each year and 236,409 were deported.

In the Supreme Court, the administration argued that the Department of Homeland Security must be able to set priorities given that the federal government does not have the resources to apprehend and seek to deport all unauthorized immigrants. A law that appeared to make some deportations mandatory by using the phrase “shall remove,” the administration said, was unworkable because Congress had not allocated the resources to allow the executive branch to pursue that vast undertaking.

Lawyers for two states responded that the court’s ruling in the case, United States v. Texas, No. 22-58, would affect perhaps 80,000 people. But they conceded that there were not enough beds to detain that many immigrants.

Friday’s ruling could influence other immigration cases that may reach the justices, including one on the Deferred Action for Childhood Arrivals, or DACA, program, the Obama-era initiative that protects some undocumented immigrants brought to the United States as children from deportation.

The decision may also have undermined the court’s 2007 ruling in Massachusetts v. Environmental Protection Agency, which required the Bush administration to address climate change by a 5-to-4 vote. It included a cryptic phrase, saying that states are “entitled to special solicitude in our standing analysis.”

That elicited one of Chief Justice John G. Roberts Jr.’s most memorable dissents. Relaxing standing requirements “because asserted injuries are pressed by a state,” the chief justice wrote, “has no basis in our jurisprudence.”

In his dissent on Friday, Justice Alito suggested that the majority opinion may have implicitly overruled the 2007 decision. “Has this monumental decision been quietly interred?” he asked.

The court is expected to rule next week in a challenge from several states to the Biden administration’s plan to cancel some $400 billion in student debt. There are substantial questions about the states’ standing in that case, and Friday’s ruling may give the administration some cause for optimism.

Miriam Jordan and Zolan Kanno-Youngs contributed reporting.