Texas challenge to Biden deportation policy goes to Supreme Court

But Texas has already succeeded in stopping that for the first time after a district judge threw out the Biden priorities this summer.  

IN-DEPTH: How Texas Republicans ushered in the new era of immigration policymaking

On Tuesday, justices questioned whether a ruling for Texas in the case would go even further and open the door for states to grind virtually any federal policy to a halt by arguing the policy costs them money — even if it’s just $1 — and filing their challenges with lower court judges sympathetic to their cause. 

“One judge stops a federal immigration policy in its tracks because you have a kind of sort of speculative argument that your budget is going to be affected,” said Elena Kagan, a liberal justice. 

“Immigration policy is supposed to be the zenith of federal power and it’s supposed to be the zenith of executive power and instead we’re creating a system where a combination of states and courts can bring immigration policy to a dead halt,” Kagan said. 

Brett Kavanaugh, a conservative justice, asked whether a state could challenge a president’s war powers in a similar fashion.

“There would definitely be a cost to the state from its people going into a foreign war, so why couldn’t the state then challenge under your theory here?” Kavanaugh asked the lawyers for Texas. 

It’s an issue that has drawn increased scrutiny by the high court as both red and blue states have turned to the courts more frequently in recent years to block immigration policy — an area over which presidents have long been given broad leeway, said Muzaffar Chishti, a senior fellow at the nonpartisan Migration Policy Institute.

“When the states are challenging every single action of the federal action … it’s a different level of scrutiny you get,” Chishti said. “If you allow that in immigration context, then that sets a very bad precedent for almost all federal policies.”

Still, some conservatives on the court appeared skeptical of the Biden administration’s argument that Texas lacked standing to sue. Justice Samuel Alito called it a “rule of special hostility to state standing” that “disfavors the states.”

And Kavanaugh questioned what would happen if an administration decided not to enforce any environmental or labor laws. 

“Your position, I believe, is no state would have standing to challenge,” he said, questioning whether the only recourse then would be for Congress to impeach the president or shut down the government. “That’s forcing Congress to take dramatic steps.”

The case at hand centers on the Biden administration’s attempt to narrow targets for arrest and deportation to those immigrants seen as a threat to national security or public safety, a significant shift from the Trump administration’s more sweeping approach, which directed Immigrations and Customs Enforcement to consider virtually anyone in the country illegally to be a priority. 

Texas and Louisiana sued, arguing in part that the narrower scope would drive up costs for law enforcement, education and health. They say the law requires Immigrations and Customs Enforcement to arrest more people who are in the country illegally than just those the Biden administration wants to prioritize.

“The law that the Biden administration is trying to ignore is crystal clear: certain illegal aliens that have committed crimes must be detained and cannot be allowed to roam freely in our communities,” Attorney General Ken Paxton said in a statement. “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.” 

A federal judge in Corpus Christi blocked the Biden policy last summer and the Supreme Court declined at the time to toss out the judge’s ruling, with justices voting 5-4 to leave it in place until it could consider the case during its fall term.

Now the high court is weighing whether the states have standing to sue, if Biden’s approach flouts immigration law and whether the administration followed the necessary process to change it, and whether the lower court judge overstepped by vacating the administration’s priorities. 

U.S. Solicitor General Elizabeth Prelogar told the justices that the administration must be able to prioritize how to use the Department of Homeland Security’s resources at a time when it could not possibly arrest every immigrant in the country illegally. Following Texas’s reading of the law that the agency must arrest certain immigrants outside of its priorities would “absolutely scramble” enforcement efforts. 

“If this court were to actually adopt that interpretation of the statute, I think it would be incredibly destabilizing on the ground,” Prelogar said.

Experts say it’s a major test of a relatively new strategy of using courts to shape immigration policy that Texas Republicans have led the way on.

“If the Supreme Court were to rule in Texas’s favor, this would be a landmark 180-degree shift from about the last 140 years of immigration law,” said Leon Fresco, an immigration attorney based in Washington, D.C. “It would replace the principle that presidents get broad say over how to enforce the immigration laws.”

While lower courts have been more willing than ever to step in on behalf of states like Texas, the Supreme Court so far has been reluctant to do so — and has sought to limit the ability of judges to block presidential immigration policies. 

In June, the high court shot down an attempt by Texas to prevent Biden from ending a Trump-era policy known as “remain in Mexico,” which forced asylum seekers to wait in Mexico while their claims were processed. 

Chief Justice John Roberts wrote in the 5-4 ruling that only the Supreme Court can “enjoin or restrain” immigration policies, including those related to asylum.

The justices on Tuesday appeared to be grappling with whether to go even further, stopping judges from singlehandedly overturning federal policy, as the Texas judge did in this case. 

“This is a huge issue,” said Justice Amy Coney Barrett. 

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