Supreme Court Revives Federal Deportation Guidelines

The U.S. Supreme Court ruled Friday that Texas and Louisiana lack standing to challenge President Joe Biden's attempt to prioritize national security threats and other targets for immigration arrests and deportations.

In an 8-1 ruling, the justices declined to weigh in on whether the U.S. Immigration and Customs Enforcement guidance violated several provisions of the Immigration and Nationality Act, undoing Texas federal Judge Drew Tipton's vacatur of the guidance last June.Justice Brett Kavanaugh's majority opinion rejected the states' argument they had standing based on costs they said they would incur because the Biden administration was not following laws requiring immigration officials to arrest certain noncitizens.

"The states cite no precedent, history, or tradition of federal courts entertaining lawsuits of this kind," Justice Kavanaugh wrote.

Calling the states' lawsuit "extraordinarily unusual" for asking the judicial branch to order the executive branch to arrest more people, the majority reiterated its longstanding preclusion of entertaining such complaints, saying there is no concrete injury the court can redress.

When the executive branch chooses not to arrest or prosecute certain people, it's not infringing on liberty rights that courts generally have the authority to protect, the decision said. Supreme Court precedent has generally held that plaintiffs lack standing when they have not been prosecuted or threatened with prosecution, "and the States have pointed to no case or historical practice holding otherwise," it said.

The states' lawsuit also runs up against the executive branch's power to enforce federal laws, Justice Kavanaugh wrote. Accepting their standing argument "would entail expansive judicial direction" over the U.S. Department of Homeland Security's arrest policies, and such policy decisions are better left to Congress, it said.

"If the court green-lighted this suit, 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," the opinion said. "We decline to start the federal judiciary down that uncharted path."

Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined the majority opinion. Justice Neil Gorsuch wrote a concurring opinion that was joined by Justices Clarence Thomas and Amy Coney Barrett, and Justice Barrett wrote a separate concurrence joined by Justice Gorsuch.

Justice Samuel Alito dissented, saying the majority "brushes aside" major precedent directly controlling the standing question, which he said has allowed standing for traditional injuries that stem from agency decisions not to take enforcement actions.

Alito also suggested his colleagues disregarded findings of fact quantifying the costs the states incurred from criminally supervising noncitizens who should have been in DHS custody.

The policy, which was issued in February 2021, revamped immigration enforcement guidance to prioritize the removal of individuals considered a threat to border security, national security and public safety. Judge Tipton, however, agreed with Texas and Louisiana that the policy flouted Section 1226(c) and Section 1231(a) of the INA, which state the U.S. attorney general "shall" arrest noncitizens with aggravated felony convictions or final orders of removal. A month later, the Fifth Circuit let the ruling stand.

During oral arguments at the high court in November, Solicitor General Elizabeth Prelogar incensed several of the justices with her argument that courts cannot vacate federal agency actions, and have been overreading Section 706 of the Administrative Procedure Act to impose nationwide injunctions blocking federal policy. Justice Roberts called it a "fairly radical" proposition.

In his concurrence, Justice Gorsuch addressed the argument, calling it "serious enough to warrant careful consideration." He suggested nationwide injunctions and vacatur — forms of universal relief — put separation of powers at risk.

"It exaggerates the role of the judiciary in our constitutional order, allowing individual judges to act more like a legislature by decreeing the rights and duties of people nationwide," he wrote.

The policy at issue was the Biden administration's third attempt to identify which noncitizens to prioritize for arrest and deportation, after two previous two schemes were tied up in court. The administration has argued that there are more than 11 million unauthorized immigrants in the U.S. and DHS does not have the resources to remove all of them.

Justice Kavanaugh gave a nod to that argument in the majority opinion, saying "that reality is not an anomaly" and has been a constant for 27 years over five administrations that "determined that resource constraints necessitated prioritization in making immigration arrests."

The White House, the U.S. Justice Department and Texas did not immediately respond to requests for comment.

A spokesperson for Louisiana Attorney General said in a statement to Law360 that the justices "specifically did not endorse" the Biden administration policy, suggesting that "Congress should pass legislation allowing states to hold federal government officials accountable."

"The court noted that Congress could not only authorize lawsuits against the executive branch by a specified group of plaintiffs that have suffered harm, but also authorize judicial remedies," the statement said. 

Homeland Security Secretary Alejandro Mayorkas, meanwhile, welcomed the ruling, saying the agency "looks forward" to reinstating the guidance.

"The Guidelines enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress," Mayorkas said.

Friday's decision was widely welcomed by immigrant rights advocates. American Immigration Lawyers Association President Farshad Owji said in a statement the decision "sends a clear message."

"It was always a bad idea to try and use the courts as a political weapon. Justice wins out today, and this decision means the government will be able to prioritize its limited resources to ensure public safety in a smart and rational manner," Owji said.

Kate Melloy Goettel, the American Immigration Council's legal director, said in a statement that "courts should not be in the business of directing law enforcement's decision-making.

The decision "should give pause to states contemplating using the courts to drive a political strategy," she said.

Law360 is tracking the latest on immigration policies and related developments, including the ICE enforcement guidance.

The government is represented by Elizabeth B. Prelogar of the U.S. Department of Justice.

Louisiana is represented by Elizabeth B. Murrill and Joseph S. St. John of the Louisiana Department of Justice.

Texas is represented by Judd E. Stone, Lanora C. Pettit and Benjamin D. Wilson of the Office of the Texas Attorney General.

The case is U.S. et al. v. Texas et al., case number 22-58, in the Supreme Court of the United States.