Biden’s enforcement of deportations to undergo high court scrutiny
Red states are once again taking their fight over President Joe Biden’s border policies to the Supreme Court, with a case next week challenging federal enforcement of U.S. policies.
President Joe Biden’s effort to impose more accessible asylum procedures have left the administration to face roadblocks from suits filed by Republican-led states that favored the stricter policies of Biden's predecessor.
Like most of the presidents before him, Biden is facing a problem he doesn’t have the resources to solve. The Department of Homeland Security says there are over 11 million noncitizens in the country, and the government doesn’t have the manpower to apprehend and remove every single one of them.
In recognition of this conundrum, the Biden administration provided guidance to Immigration and Customs Enforcement officers for which noncitizens should take priority. Homeland Security Secretary Alejandro Mayorkas identified three groups for ICE agents to focus their efforts on: noncitizens who pose a danger to national security, threaten public safety, or pose a threat to border security. Mayorkas’ guidance to ICE agents included a framework for determining whether a noncitizen meets these criteria but also gave officials prosecutorial discretion, emphasizing that they are not forced to take action in any particular case.
The Biden administration’s authority for its guidance rests on two statutes. Homeland Security has been ordered to detain noncitizens convicted of certain offenses but is authorized to release those same citizens in a limited number of circumstances. The agency is also instructed to remove noncitizens within 90 days after a final order of removal or other triggering event.
Several red states claim, however, that the Biden administration’s new guidelines negate Congress’ directive. They say that the Immigration and Nationality Act requires Homeland Security to detain certain criminal noncitizens at a specific time and duration. They also claim Congress has instructed Homeland Security to keep noncitizens detained until final orders of their removal are issued.
Before the Biden administration could issue its final policy laying out the new guidelines, Texas and Louisiana had already filed a suit seeking a preliminary injunction based on interim guidance set in January 2021. By August, the states were able to halt Homeland Security in its tracks, when a Trump-appointed judge ordered the agency to stop enforcing its new guidelines for deportations. A panel on the Fifth Circuit initially reversed the injunction, but then the en banc court vacated the stay.
In September 2021, after a trial on the final memorandum, the district court again ruled against the Biden administration. Finding that ICE officers do not have the discretion to go outside the enforcement policies, the district court threw out the memorandum. The Fifth Circuit declined an attempt by Homeland Security to block the ruling.
The Biden administration then turned to the high court, asking the justices to revive the policy. The Supreme Court sided with the states in a 5-4 vote, preventing the administration from enforcing the guidance. Justice Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson would have blocked the district court’s ruling while the appeal proceeded. The Supreme Court did agree, however, to add the Biden administration’s appeal to their docket.
Texas and Louisiana are asking the justices to permanently throw out Biden’s deportation policies, stating they are unlawful. The states argue that Congress has mandated detention for noncitizens and that the policy is “arbitrary and capricious” because it doesn’t take into account the problems noncitizens create for states. Texas and Louisiana also claim the administration implemented the policy without going through the proper notices and comment procedures.
“Through the Immigration and Nationality Act, Congress has mandated that the Executive must detain specific criminal aliens (e.g., aggravated felons) at a specific time (upon release from criminal custody) for a specific duration (during the removal period),” Texas Solicitor General Judd Stone II wrote in the states’ brief. “Congress has also required the Executive to detain aliens subject to final orders of removal pending their removal. The Executive would rather not.”
The states claim the Biden administration’s enforcement guidelines leave states to bear the burden of noncitizens within their borders. Texas and Louisiana claim that they bear additional costs for law enforcement, recidivism, health care and education because of noncitizen residences.
The Biden administration calls this “pure speculation,” but immigrant and civil rights organizations told the court these arguments have more sinister origins. Forty-eight immigrant and civil rights groups came together to accuse the states of discrimination in their opposition to policies around noncitizens within their borders. The groups claim this is proven by the states’ willingness to actively encourage and celebrate overall population growth while concurrently crying foul about an influx of noncitizens and their strain on state resources.
“This fundamental policy contradiction can only be explained by the Plaintiff States’ animus toward immigrants who are people of color,” the immigrant and civil rights groups told the court. “Such discrimination is impermissible.”
The groups argue that, by asking the court to exclude noncitizens from public services, the states' suit poses serious constitutional questions.
“The Plaintiff States’ arguments also frame noncitizens only in terms of the costs they impose on broadly available social programs and the danger they potentially pose to the community,” the groups wrote. “Framing noncitizens as such burdens on society echoes familiar xenophobic rhetoric that has been mobilized against immigrants in the past.”
While the government disagrees with the states’ arguments on the merits of their case, they also argue that Texas and Louisiana don’t have standing to even bring the suit in the first place. The Biden administration claims the states haven’t actually been harmed by the deportation policy and instead cite indirect injuries.
“Federal policies routinely have incidental effects on States’ expenditures, revenues, and other activities,” U.S. Solicitor General Elizabeth Prelogar wrote. “Yet such effects have never been viewed as judicially cognizable injuries.”
Prelogar warns the justices that recognizing this scheme for creating standing will have broad consequences.
“As the recent explosion in state suits vividly illustrates, respondents’ contrary view would allow any State to sue the federal government about virtually any policy — sharply undermining Article III’s requirements and the separation of powers principles they serve,” Prelogar wrote.
The standing questions in this case were at the center of many friend-of-the-court briefs. Stephen Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas at Austin School of Law, said Texas, in particular, has used this theory of standing to challenge any policy with which Texas politicians disagree. Vladeck — who has documented every time Texas has brought challenges against federal policies in its district courts — argues that the state is not only manipulating the courts’ Article III-mandated role by filing “generalized grievances against a political opponent,” but also selectively picking where these suits are filed to obtain its favored outcome.
“Texas has deployed its approach to standing to engage in a deliberate strategy of judge shopping, a strategy that undermines core principles of Article III,” Vladeck’s brief states. “Specifically, Texas has abused the federal courts by intentionally, repeatedly, and solely filing its Texas-based lawsuits against the federal government in district court divisions staffed entirely, or almost entirely, by judges appointed during presidencies of the Texas Governor’s and Attorney General’s party.”
Vladeck's research showed that in most cases, Texas had at least a 95% chance of drawing a specific judge. These cases have routinely been responsible for obtaining nationwide injunctions against Biden administration policies.
“If litigants like Texas are regularly able to obtain nationwide injunctions from judges whom they have hand-picked to hear their complaints, it should go without saying that public faith in the independence of the federal judiciary will be undermined,” Vladeck’s brief argues.
The Biden administration’s policy initiatives are not only harmed by the standing issues presented in the case but also by the lower court ruling on alleged violations of the Administrations and Procedures Act. The lower court adopted the states’ claim that the agency’s deportation policies were unlawful because they failed to go through the notice and comment procedures normally required for policy changes. The administration argues it was exempt from the process, however, because the guidelines presented a general statement of policy, providing the agency with how to carry out the policy.
A group of administrative law experts warned the court against adopting this ruling, claiming it would encourage agency heads to not inform the public of their priorities and create unnecessary hurdles for policy guidance or enforcement priorities.
“The Executive Branch has, and needs, the ability to issue guidelines informing the public of agency priorities and resource utilization,” the administrative law professors' brief states. “That power is essential to an efficient, effective, and responsive federal public administration. Its absence would severely hinder agencies’ ability to fulfill their statutory duties and to implement the Executive Branch’s policies.”
Tuesday’s arguments will not be Biden’s first trip to the court to enforce his immigration initiatives. Last term, the justices heard a challenge to the administration’s abandonment of former President Donald Trump's “Remain in Mexico” policy, which forced asylum seekers to wait in Mexico while their claims were processed. Biden won the case with a slim five-justice majority who agreed he had the authority to enforce his own policy preferences.
The high court showdown comes as Republicans in Congress are threatening to bring impeachment proceedings against Mayorkas for his border management.