The Supreme Court breathed new life into President Biden’s lenient immigration policies Friday, giving the Department of Homeland Security tacit approval to refuse to arrest and deport illegal immigrants even where the law says it must try.
In an 8-1 ruling, the justices said Texas and Louisiana couldn’t sue to force the administration to carry out a law that requires the government to attempt to arrest, detain and deport illegal immigrants with significant criminal records.
“In sum, the States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests,” wrote Justice Brett M. Kavanaugh in the key opinion. “Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”
The ruling’s implications stretch far beyond immigration, suggesting that federal courts can’t — or won’t — step in to police prosecution and law enforcement decisions, except in particular circumstances.
The result, one justice warned, will be presidents increasingly willing to disregard the laws passed by Congress, and lawmakers who find their only recourse to an unruly executive is impeachment.
“Relegating Congress to these disruptive measures radically alters the balance of power between Congress and the Executive, as well as the allocation of authority between the Congress that enacts a law and a later Congress that must go to war with the Executive if it wants that law to be enforced,” wrote Justice Samuel A. Alito Jr.
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At issue in the case is a memo issued by Homeland Security Secretary Alejandro Mayorkas in 2021 that ordered immigration agents and officers to limit the illegal immigrants they tried to arrest and deport. No longer would being in the country illegally be sufficient grounds for deportation, and even those who did have serious criminal records also had to be considered for leniency.
Texas showed in court that because of that policy, Homeland Security was forcing it to release criminals back to the streets.
Among them was Heriberto Fuerte-Padilla, an immigrant in the country illegally who was driving drunk in 2020 when he smashed into the car driven by a Texas teenager, killing her. He fled, but police caught up with him.
Homeland Security said under Mr. Mayorkas’ policy that Fuerte-Padilla wasn’t a priority for deportation, so Texas should release him into the community when he’d served his time on the state charge.
Friday’s ruling produced a complicated set of opinions.
Five justices, led by Justice Kavanaugh, said Mr. Mayorkas’s decision-making could not be questioned by Texas or the courts.
“In light of inevitable resource constraints and regularly changing public-safety and public-welfare needs, the Executive Branch must balance many factors when devising arrest and prosecution policies,” Justice Kavanaugh wrote. “That complicated balancing process in turn leaves courts without meaningful standards for assessing those policies.”
Three other members also shot down Texas’ case but on different grounds. They said there was no obvious solution a court could deliver for Texas — what’s known in legalese as “redressability.”
Even if Mr. Mayorkas’ memo were vacated, courts can’t compel a change in the department’s behavior, Justice Neil M. Gorsuch said in a concurring opinion joined by Justices Clarence Thomas and Amy Coney Barrett.
Justice Alito said everybody got it wrong and warned that the ruling could convey an imperial power on the presidency that could be stopped only by Congress either passing a law to strip money from the president or outright impeaching him.
He compared that to an absolutist English king ignoring a law passed by parliament — something he said even the English ceased after the Glorious Revolution in the late 1600s.
Justice Kavanaugh insisted his ruling was not as wide-ranging as critics suggested. He said it applied only to arrest and prosecution decisions.
But Justice Gorsuch said there’s no way to draw that line based on the Constitution, which doesn’t include a specific prosecution power but rather charges the president with an “executive power” and a duty to make sure the laws are “faithfully executed.”
“These provisions give the President a measure of discretion over the enforcement of all federal laws, not just those that can lead to arrest and prosecution,” Justice Gorsuch said. “So if the Court means what it says about Article II, can it mean what it says about the narrowness of its holding?”
Immigrant rights advocates hailed the decision, saying it frees Mr. Biden to pursue a gentler policy.
“This is a victory for common sense over chaos and a blow against Republicans’ reliance on the anti-immigrant judicial pipeline,” said David Leopold, a former president of the American Immigration Lawyers Association.
He suggested the ruling could also be used against GOP state challenges to the DACA program for illegal immigrants who came to the U.S. as youths.
Andrew “Art” Arthur, a former immigration judge and congressional aide responsible for crafting immigration laws, said the ruling upends immigration law.
“What this decision effectively does is it takes immigration decisions out of the hands of Congress, where the Constitution has placed them, and effectively places it in the hands of the executive branch,” said Mr. Arthur, who is now with the Center for Immigration Studies.
Mr. Arthur said another administration with differing ideological beliefs from the Biden administration’s could cite the court’s ruling in refusing to pursue prosecutions of environmental law or income tax payments.
In issuing its ruling, the high court may be trying to replace a lid on a Pandora’s box it opened in 2007 with Massachusetts v. EPA, a case that found a state could sue to force the administration to take action based on speculative claims of damage from future climate change.
That ruling has been cited in subsequent cases as giving states the power to bring lawsuits to force presidential action on everything from environmental policy to immigration.
In Friday’s decision, the majority said in a footnote that the Massachusetts case was different.
Justice Alito, in his dissent, said that was a skimpy way to brush aside a crucial precedent.
“So rather than answering questions about this case, the majority’s footnote on Massachusetts raises more questions about Massachusetts itself — most importantly, has this monumental decision been quietly interred?” Justice Alito said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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