https://www.washingtontimes.com/news/2023/jun/23/alejandro-mayorkas-non-deportation-policy-survives/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=woGTyblYupFQeYYN3cFwtEUW71vPhelBaTOqO7OXD4EIOXh4N5DxO2N4yHrTGKC6&bt_ts=1687534730708Mayorkas’ non-deportation policy survives Supreme Court challenge
The Supreme Court breathed new life into President Biden’s lenient immigration policies Friday, giving the Homeland Security Department 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, warned one justice, 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.
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 onto 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 tried to flee the scene, but police caught up with him.
Homeland Security said under Mr. Mayorkas’s 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’s case but on different grounds. They said there was no obvious solution a court could deliver for Texas — what’s known in legal speak as “redressability.”
Even if Mr. Mayorkas’s memo was 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 only be stopped 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 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.
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https://www.theepochtimes.com/supreme-court-rules-states-cant-challenge-biden-deportation-policy_5351742.htmlThe Supreme Court ruled 8–1 on June 23 that Texas and Louisiana may not challenge the Biden administration’s 2021 decision to focus its deportation efforts on individuals deemed to be a threat to public safety.
The new, complex decision allows the government’s selective immigration enforcement policy, which had been blocked by a lower court, to take effect.
The case was one in a series brought by Republican-controlled states that have helped to frustrate Biden administration policies related to immigration and border security.
The Homeland Security Memo
Texas and Louisiana sued the Biden administration over a policy announced in a Sept. 30, 2021, memorandum (pdf) by Homeland Security Secretary Alejandro Mayorkas that claims it is impossible to remove the estimated 11 million illegal aliens present in the United States. Mayorkas has been heavily criticized by Republicans for his allegedly lax approach to immigration enforcement. Some Republicans in Congress want to impeach him for dereliction of duty.
“We do not have the resources to apprehend and seek the removal of every one of these noncitizens. Therefore, we need to exercise our discretion and determine whom to prioritize for immigration enforcement action,” the memo states.
The document prioritizes the arrest and deportation of suspected terrorists, people who have committed crimes, and illegal aliens recently apprehended at the border.
The memo praises the “majority of undocumented noncitizens who could be subject to removal [even though they] have been contributing members of our communities for years.”
“They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways,” it states.
But the states argued that the federal government is illegally refusing to enforce the nation’s immigration laws by prioritizing only certain enforcement categories at the expense of others. They said that the federal Immigration and Nationality Act (INA) requires that specific criminal aliens, such as aggravated felons, must be detained upon release from criminal custody pending a decision on whether to remove them from the country. The law also requires that aliens subject to final orders of removal must be detained pending their removal, they said.
The states argued that the immigration statute requires authorities to detain and deport even those deemed to pose little or no risk to the public.
Instead, the Biden administration said in the memo that it would embark on case-by-case determinations instead, which the states said leaves the door open for violent criminals to return to the nation’s streets.
“Keeping our citizens safe is one of the most fundamental duties of government, perhaps even the most fundamental. The Biden Administration has tried to ignore that duty, but we’re fighting every single day to remind them,” Texas Attorney General Ken Paxton, a Republican, said on Nov. 29, 2022, the day the case was heard by the court.
The Memo Was Blocked
The Mayorkas memo was blocked last year by U.S. District Judge Drew Tipton, a Trump appointee, who ruled that Texas had legal standing to pursue the case because it could show the state was harmed when illegal aliens who should have been detained by the federal government found their way to the state and committed crimes there.
The now-suspended policy is similar to one enforced by then-President Barack Obama but differs from the more aggressive policy pursued by his successor, then-President Donald Trump, who limited the role of discretion in the enforcement of immigration laws.
The Biden administration asked the Supreme Court to stay Tipton’s order, but on July 21, 2022, it refused to do so. Conservative Justice Amy Coney Barrett, along with the three liberal justices–Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—dissented, indicating they would have granted the stay.
New Majority Opinion
The new majority opinion (pdf) in the case, United States v. Texas (court file 22-58), was written by Justice Brett Kavanaugh. The opinion says that precedent dictates that states lack legal standing to challenge the policy.
Four other justices—John Roberts, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—joined Kavanaugh’s opinion.
Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett agreed with the outcome but for different reasons.
The sole dissenting opinion was filed by Justice Samuel Alito.
The states here “have brought an extraordinarily unusual lawsuit,” Kavanaugh wrote for the majority.
“They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this. The States lack Article III standing because this Court’s precedents and the ‘historical experience’ preclude the States’ ‘attempt to litigate this dispute at this time and in this form.’ And because the States lack Article III standing, the District Court did not have jurisdiction,” he wrote.
Article III of the U.S. Constitution lays out the powers of the judicial branch.
Because resources are limited, the government must prioritize some enforcement areas over others.
The executive branch “invariably lacks the resources to arrest and prosecute every violator of every law and must constantly react and adjust to the ever-shifting public-safety and public welfare needs of the American people,” Kavanaugh wrote.
The court “has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions,” he wrote.
Kavanaugh added a proviso, writing that even though the court found Texas and Louisiana lack standing, “we do not suggest that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.”
The Supreme Court reversed the decision of Judge Tipton.
Justice Gorsuch wrote an opinion concurring in the judgment of the court but with a different analysis of the standing issue than was stated in the majority opinion.
The opinion was joined by Thomas and Barrett.
Barrett also wrote her own concurring opinion, which Gorsuch joined.
“I agree with the Court that the States lack standing to challenge the Federal Government’s Guidelines for the enforcement of immigration law,” Barrett wrote.
“But I reach that conclusion for a different reason: The States failed to show that the District Court could order effective relief. … And because redressability is an essential element of Article III standing, the District Court did not have jurisdiction.”
The Dissenting Opinion
In his dissenting opinion, Justice Alito wrote that he would have held that Texas has standing.
The majority opinion inappropriately favors the president over Congress, he said.
“And it renders States already laboring under the effects of massive illegal immigration even more helpless,” the justice wrote.
To deny Texas standing “to challenge a federal policy that inflicts substantial harm on the State and its residents by releasing illegal aliens with criminal convictions for serious crimes” the court “brushes aside” precedent.
In so doing, the court also “refuses to apply our established test for standing, disregards factual findings made by the District Court after a trial, and holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’s power to employ the weapons of inter-branch warfare—withholding funds, impeachment, and removal, etc.,” Alito wrote.
“I would not blaze this unfortunate trail. I would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing,” he wrote.
