The vote was 5 to 4. Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson indicated they would have granted the administration’s request to put the lower court ruling on hold and allow the administration to go forward with its policy while deciding the merits of the case.
It was Jackson’s first recorded vote since she joined the court June 30. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh turned down the administration’s request, so it was the first time a 5 to 4 vote on the court also indicated a gender split.
As is often the case in emergency requests before the court, neither side publicized its reasoning.
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In September, the Department of Homeland Security directed U.S. Immigration and Customs Enforcement (ICE) officers to prioritize the detention of recent border crossers and immigrants who pose a threat to national security and public safety, and to consider giving a break to immigrants with mitigating factors, such as farmworkers picking crops and grandmothers caring for American children.
Homeland Security Secretary Alejandro Mayorkas said that being present in the country without authorization “should not alone be the basis” for arrest or removal, a switch from the Trump administration’s view.
Republican attorneys general across the country filed suits, and those in Texas and Louisiana were successful. Judge Drew Tipton in Texas agreed with the argument that the policy burdened them with the costs of immigrants’ education, health care, and other services, and ignored federal laws that require ICE to detain and deport immigrants who commit serious crimes or have been given a recent deportation order.
Tipton, appointed to the bench by President Donald Trump, sided with the states and vacated the ICE priorities, leaving the agency without any operational guidelines. A panel of the U.S. Court of Appeals for the 5th Circuit rejected the administration’s plea to put Tipton’s order on hold while it considered the case’s merits.
Instead, the Supreme Court said it will hear the case the first week of December.
Another appeals court, the U.S. Court of Appeals for the 6th Circuit, ruled for the Biden administration when it considered a nearly identical case filed by Arizona, Montana and Ohio.
Chief Judge Jeffrey Sutton, a Republican appointee, wrote that the DHS policy “does not tie the hands of immigration officers” and that congressional mandates carry some flexibility.
Federal laws require ICE to detain immigrants with serious criminal records and anyone with a final deportation order with the goal of deporting them within 90 days. But such enforcement has never materialized, Sutton wrote. “Which presidential administration since this law came into effect in 1996, it is fair to wonder, has come close to removing all eligible noncitizens within 90 days, whether with respect to statutorily permitted reasons or not?” he wrote.
Sutton wrote that Republican and Democrat administrations have long set their own enforcement priorities. Under Trump, anyone in the United States illegally could be a target for enforcement, while the Obama administration tried to limit removals to “felons, not families.”
The 5th Circuit panel said it was “inclined to agree” with Tipton, and rejected the Biden administration’s request to stay Tipton’s decision wiping out the ICE enforcement priorities.
The Texas case is among a series of lawsuits that have sought to take down Biden’s immigration policies, which he characterized as a more humane approach to enforcement. The president tried to “pause” deportations for 100 days, a policy Tipton also blocked, and he sent a bill to lawmakers that would allow most of the 11 million undocumented immigrants to get on a path to U.S. citizenship. The bill has largely fizzled in a divided Congress.
Solicitor General Elizabeth B. Prelogar on July 8 asked the Supreme Court for an emergency stay of the 5th Circuit’s action, writing in a brief that Tipton’s ruling has upended the agency.
“Thousands of DHS employees across the Nation have been told that they must disregard their training and stop considering the Secretary’s instructions,” she wrote in the request. “That judgment is thwarting the Secretary’s direction of the Department he leads and disrupting DHS’s efforts to focus its limited resources on the noncitizens who pose the gravest threat to national security, public safety, and the integrity of our Nation’s borders.”
Prelogar said the Supreme Court should at least limit Tipton’s order to Texas and Louisiana. Some justices in the past have criticized district judges for imposing nationwide remedies. “For most of our Nation’s history, a suit like this would have been unheard of,” Prelogar wrote.
In the term just completed, the court ruled 5 to 4 for the Biden administration on another immigration policy. Roberts and Kavanaugh joined the court’s three liberals in saying the administration had the authority to reverse a Trump-era initiative that requires asylum seekers to remain in Mexico while their cases are reviewed in U.S. courts.
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Mayorkas has said his policy guidelines instructed agents to set priorities just as he did as a U.S. attorney in Los Angeles years ago. He said the agency has limited resources and should use them effectively to make communities and the border more secure.
“Does the grandmother who entered this country 30 years ago, who has cleaned our neighbors’ houses to make a better life for her U.S. citizen grandchildren, does she really pose a public safety threat?” he said in an interview in September when the guidelines were made public.
ICE deportations and arrests dropped to their lowest levels in the agency’s history last fiscal year. Officers working in the interior of the United States carried out about 74,000 administrative arrests, a drop from 104,000 the year before and an average of 148,000 annually from 2017 through 2019.
Texas and Louisiana argue that enforcement has remained low, despite record-high apprehensions at the border that Republicans link to Biden’s more lenient immigration policies. They have challenged the administration’s claim that it lacks sufficient funding to detain and deport immigrants, noting that the president’s budget proposal for next fiscal year calls for a “dramatic reduction” in detention beds from 34,000 to 25,000.
“It would be particularly troubling to allow applicants a free pass to ignore Congress’s commands under current circumstances because the facts show the problem is, at least in part, self-inflicted,” the states wrote to the Supreme Court, opposing the administration’s request for a stay.
Daniel Bible, acting deputy executive associate director of ICE’s Enforcement and Removal Operations, said in a government affidavit that it would be “impossible” for the agency to detain everyone eligible for deportation. ICE has 6,000 immigration officers, 34,000 detention beds and, as of early June, more than 4 million undocumented immigrants in its caseload, including 327,000 people with criminal histories.
George is Digismak’s reported cum editor with 13 years of experience in Journalism