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Supreme Court turns away Biden attempt to enforce limits on immigration arrests

In a 5-4 vote on Thursday, the Supreme Court rejected a plea from the Biden administration to allow enforcement of an immigration policy that would limit border arrests. 

The policy was thrown out by a lower court at the request of Republican-led states. Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson said they would have allowed the administration to block the lower court’s order while the case proceeds. 

While the majority turned down the administration’s request to enforce the policy, the court said it would add the case to its docket next term and hear arguments in December. 

The case concerns a Department of Homeland Security policy that allows Immigration and Customs Enforcement officers to use discretion when detaining immigrants who illegally cross the border. The new guidance was adopted in September and directs ICE agents permission to prioritize detaining immigrants who pose a threat to national security and public safety. 

A number of Republican-led states sued to challenge the new policy. Texas and Louisiana — the states involved in this case — were able to get a district court to throw out the policy nationwide. The Fifth Circuit blocked an attempt from the Biden administration to halt the lower court order, sending the case to the Supreme Court. 

In a very similar challenge to the policy from Arizona, Montana, and Ohio, the Sixth Circuit did the opposite of the Fifth Circuit and allowed the administration to enforce its guidance.

The Biden administration chastised the lower court for allowing two states to hijack its immigration authority. 

“In this case, the district court rejected each of the Sixth Circuit’s conclusions and vacated the Guidance — nationwide — at the behest of two other States, Texas and Louisiana,” Solicitor General Elizabeth Prelogar wrote in the administration’s application to the high court. “The district court’s reasoning contradicts not only the Sixth Circuit’s decisions, but also the historical practices of the Executive Branch.” 

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Prelogar claimed the lower court ruling infringes on Homeland Security Secretary Alejandro Mayorkas’ authority to lead the department. 

“That judgment is thwarting the Secretary’s direction of the Department he leads and disrupting DHS’s 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 wrote. 

Texas and Louisiana claim DHS does not have the authority to enforce the new policy and that it is bound by Congress’ charge in the Immigration and Nationality Act to detain immigrants in the country illegally. The states say the policy imposes burdens on them, including increased numbers of immigrants leading to a strain on public services. 

“Agencies lack the ‘power to revise clear statutory terms; even when the agency believes those terms ‘turn out not to work in practice,’” Texas Solicitor General Judd Stone II wrote in the state’s brief. “Through the Immigration and Nationality Act, Congress has directed the Executive — in mandatory language — to detain specific criminal aliens (e.g., aggravated felons) at a specific time (i.e., upon release from criminal custody) for a specific duration (i.e., during the removal period).” (Parentheses in original.)

Stone said the policy puts DHS in conflict with Congress’ direction.

The administration said the case represents a trend of states suing the federal government based on indirect effects of policy decisions. 

“That explosion of state suits seeking nationwide relief is inconsistent with bedrock Article III and equitable principles,” Prelogar wrote. 

She continued, “They allow single district judges to dictate national policy, nullifying decisions by other courts and forcing agencies to abruptly reverse course while seeking review of novel and contestable holdings.”

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In a very similar challenge to the policy from Arizona, Montana, and Ohio, the Sixth Circuit did the opposite of the Fifth Circuit and allowed the administration to enforce its guidance.