Executive Discretion and DHS Guidelines Prevail: SCOTUS Rejects States’ Challenge on Deportation Priorities

On June 23, 2023, the U.S. Supreme Court delivered an 8-1 ruling rejecting Texas and Louisiana’s challenge to a Department of Homeland Security (DHS) policy that aimed to prioritize certain individuals for deportation enforcement. This ruling represents a significant legal victory for the Biden administration.

The Challenged Policy

At the core of the case was a September 2021 memorandum issued by DHS Secretary Alejandro Mayorkas, which sought to focus apprehension and deportation resources on individuals posing the greatest threats to national security, public safety, and border security – namely, suspected terrorists, noncitizens with criminal records, and recent border crossers.

Deportation Enforcement

Deportation enforcement involves apprehending and removing noncitizens who violate immigration laws. In the United States, that process involves several key agencies. Two DHS agencies – U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) – play vital roles: while ICE is responsible for enforcement within the country, including apprehension, detention, and removal of noncitizens, CBP focuses on security and enforcement at the border. A third agency, the Executive Office for Immigration Review (EOIR), operating under the Department of Justice (DOJ), oversees the immigration court system, where immigration judges decide on individual removal cases. All three agencies fall under the executive branch, headed by the President of the United States.

Resource Limitations

Limited resources pose considerable challenges for these agencies in identifying, apprehending, initiating, and completing legal proceedings for removal, as evidenced by the high number of pending cases and the limited number of judges in the immigration court system. According to data from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, as of January 2023, there are approximately 2,097,244 cases pending before U.S. Immigration Courts; meanwhile, the U.S. Department of Justice (DOJ) reports only 650+ judges in 69 immigration courts and three adjudication centers nationwide. Recognizing these constraints, the September 2021 DHS memorandum aimed to address the reality that limited resources prevent the effective enforcement of deportation for the more than 11 million noncitizens who may be subject to deportation enforcement in the United States.

The Lawsuit

Following the release of the DHS memorandum, Texas and Louisiana filed a lawsuit in federal court, arguing that the policy violated federal law and hindered immigration authorities’ work. Initially, a U.S. district judge ruled in favor of the states and halted the policy nationwide. However, the Biden administration appealed the ruling directly to the Supreme Court, which agreed to review the case without waiting for a federal appeals court’s review, thereby keeping the policy on hold during the litigation process.

The Supreme Court’s Ruling

In a majority opinion authored by Justice Brett Kavanaugh and joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, the Court concluded that Texas and Louisiana lacked standing to challenge the policy. Of note, the ruling centered on the question of whether the states had standing, or the legal right to bring the lawsuit, rather than the policy’s legality itself. Justice Kavanaugh, writing for the majority, emphasized the executive branch’s broad discretion in enforcing laws and cautioned against court orders altering arrest or prosecution policies. Justices Neil Gorsuch and Amy Coney Barrett, in separate concurring opinions, agreed on the lack of standing for Texas and Louisiana, but centered their reasoning on the absence of direct benefit to the states from a favorable ruling, rendering the lawsuit flawed. Only Justice Samuel Alito dissented, arguing that Texas had standing to bring the lawsuit and expressing concerns about the decision’s potential to limit congressional powers while expanding executive authority.

Implications and Next Steps

Although the Supreme Court’s decision did not address the policy itself, the ruling represents a significant legal victory for the Biden administration’s deportation policies and carries important implications for states’ challenges to executive actions in the immigration domain.

First and foremost, the ruling allows DHS to reinstitute and implement its enforcement guidelines. In response to the decision, DHS Secretary Mayorkas, on Friday, issued a statement praising the Court’s ruling and announcing the department’s intent to reinstitute the enforcement guidelines outlined in the September 2021 memorandum. The specific changes or release dates of the guidelines remain unknown, but it is evident that addressing resource limitations and backlogs in a pragmatic and innovative manner is crucial for improving the deportation enforcement process while upholding fairness, due process, and national security.

Additionally, the challenge posed by Texas and Louisiana highlights the ongoing tension between federal immigration policies and state interests. Although the Supreme Court denied the states’ challenge in this instance, the ruling does not eliminate the possibility of future legal battles as states seek to assert their authority in shaping immigration enforcement within their jurisdictions. Thus, striking a balance between federal authority and state interests will be vital as the nation strives for a more equitable and effective immigration system.

Lastly, as the Biden administration moves ahead with reinstating the prioritization policy, the implications of this decision are likely to shape future debates and discussions surrounding immigration law and the exercise of executive discretion in enforcement actions. As citizens, it is important for us to stay informed and participate in the dialogue surrounding these issues. To take action, consider reaching out to your elected representatives to express your views on immigration policies and advocate for comprehensive reforms that address resource limitations, prioritize national security, and safeguard the rights and dignity of individuals involved in the immigration and removal processes. Stay engaged with news and developments in this field, and contribute to discussions that promote a balanced approach between federal and state interests. By staying informed and actively participating, we can help shape a more equitable and effective immigration system that respects the rights and values of all individuals. Together, let’s work towards a better future for immigration in our great nation.