The Biden administration is deliberately not enforcing the immigration laws. The illegal flow of people across the Mexican border is historically large, with an estimated 9 million illegal aliens expected to enter and remain in the U.S. during Biden’s four year term. Almost none of them ever will be forced to leave. It’s a conspiracy to violate our immigration laws, by the Biden administration.
They thought they found a way to evade legal responsibility, by claiming they simply are prioritizing the worst offenders. That was a ruse to not enforce the law as to the bulk of immigration offenders. This prosecutorial discretion excuse is a standard excuse for non-enforcement.
Amy Howe at Scotusblog explained the nature of the dispute:
The policy at the center of the dispute is outlined in a September 2021 memorandum by Secretary of Homeland Security Alejandro Mayorkas on the federal government’s priorities for immigration enforcement. Explaining that there are over 11 million noncitizens currently in the United States who could be subject to deportation, but that the Department of Homeland Security does not have the resources to apprehend and deport all of them, the memorandum instructed immigration officials to prioritize the apprehension and deportation of three groups of noncitizens: suspected terrorists, people who have committed serious crimes, and those caught at the border.
Texas and Louisiana sued in federal court in Texas, and a District Court judge issued an Order after 96 pages of analysis, vacating the prioritization memorandum. The 5th Circuit declined to issue a stay of the District Court decision.
The Biden administration filed an Application for a Stay with the Supreme Court, and asked the court to hear the full case even before the 5th Circuit considered the case on the merits:
This case concerns a district court’s nationwide vacatur of September 2021 guidance issued by the Secretary of Homeland Security to carry out his statutory responsibility to set “national immigration enforcement policies and priorities.” 6 U.S.C. 202(5); see App., infra, 136a-142a (Guidance). The Department of Homeland Security (DHS) has long relied on such guidance to harmonize its efforts and focus its limited resources. In the Guidance at issue here, the Secretary identified as priorities for apprehension and removal noncitizens who threaten national security, public safety, and border security. App., infra, 138a-139a….The district court’s reasoning contradicts not only the Sixth Circuit’s decisions, but also the historical practices of the Executive Branch. And the court’s remedy violated 8 U.S.C. 1252(f)(1): As an intervening decision of this Court makes clear, Section 1252(f) (1) deprives the lower courts of jurisdiction to compel the Executive Branch to comply with their interpretation of the relevant statutory provisions. See Garland v. Aleman Gonzalez, No. 20-322 (June 13, 2022)….The Court should stay the district court’s judgment in full — or, at minimum, to the extent it operates outside Texas and Louisiana. 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.* * *The application for a stay of the district court’s judgment vacating the Guidance should be granted. At a minimum, the Court should stay the district court’s judgment outside Texas and Louisiana. In addition, the Court may wish to construe this application as a petition for a writ of certiorari before judgment, grant the petition, and set this case for argument in the fall.
In their Opposition to the Application for a Stay, Texas and Louisiana disputed the characterization of the supposed prosecutorial discretion, as well as other aspects:
Through the Immigration and Nationality Act, Congress has directed the Executive—in mandatory language—to detain specific criminal aliens (e.g., aggravated felons) at a specific time (i.e., upon release from criminal custody) for a specific duration (i.e., during the removal period). It has also required the Executive to detain aliens with final orders of removal while they are removed. Both the federal government and this Court have repeatedly described these provisions as mandatory.DHS now disagrees….The district court vacated, but refused to enjoin, the Final Memorandum because—among other reasons—DHS’s guidelines improperly revised Congress’s careful and mandatory commands. App.38a-133a. Applying established precedent, the Fifth Circuit declined to stay that ruling because it was “inclined to agree,” App.2a, but that Court has not yet had the opportunity to review full briefing on the merits. This Court should likewise deny applicants’ request for the extraordinary remedy of a stay pending appeal of that vacatur.
In a 5-4 decision, with new Justice Jackson joining Sotomayor, Kagan, and Barrett dissenting, the court denied the stay, but agreed to hear the case even before a lower court judgment:
The application for stay presented to Justice Alito and by him referred to the Court is denied. The Solicitor General suggested that the Court may want to construe the application as a petition for certiorari before judgment. Doing so, the petition is granted. The parties are directed to brief and argue the following questions: 1. Whether the state plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law; 2. Whether the Guidelines are contrary to 8 U.S.C. §1226(c) or 8 U.S.C. §1231(a), or otherwise violate the Administrative Procedure Act; and 3. Whether 8 U.S.C. §1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the Guidelines under 5 U.S.C. §706(2).The case will be set for argument in the first week of the December 2022 argument session.Justice Sotomayor, Justice Kagan, Justice Barrett, and Justice Jackson would grant the application for stay.
I know you are going to find this hard to believe, but Democrats and the lawyers who love them are freaking out.
Ian Millhiser, a bellweather for lefty legal sensitivities, wrote at Vox, The Supreme Court just let a Trump judge seize control of ICE, at least for now:
On Thursday evening, the Supreme Court handed down a brief, 5-4 decision that effectively places Drew Tipton, a Trump-appointed federal trial judge in Texas, in charge of many of Immigration and Customs Enforcement’s (ICE) decisions about which immigrants to target.
The decision was largely along party lines, except that Justice Amy Coney Barrett joined the Court’s three Democratic appointees.
The decision in United States v. Texas is temporary, but the upshot of this decision is that Tipton will effectively wield much of Homeland Security Secretary Alejandro Mayorkas’s authority over how ICE officers prioritize their time for as much as an entire year — and that’s assuming that the Biden administration ultimately prevails when the Court reconsiders this case next winter.
Someone at Slate wrote:
But let’s be honest, Thursday’s decision wasn’t really about the law. The last time the Supreme Court temporarily let a Trump-appointed judge do something radical and order the Executive Branch to negotiate with Mexico, the Biden administration ended up winning a 5-4 victory striking down MPP. This case may end the same way because the Biden administration is so undoubtedly correct on the law that the same justices who balked in Biden v. Texas might well balk here, too.
If Thursday’s decision didn’t come from the law, what did it come from? The answer to that is what appears to be a growing sense among the Supreme Court’s conservative majority that undocumented immigrants have won themselves too many rights over the last couple of generations, and that they have to be reminded who’s boss. And the fact that it’s a thumb in the eye of the Biden administration is an additional benefit.
The 5-4 split created another dynamic. “It’s boys v. girls at Supreme Court!” declared conservative legal author Margo Cleveland.
Who wins in the end? My gut tells me one of the “boys” will cross the aisle, and defer to the executive branch and the political process on the control (or lack of control) of (illegal) immigration.
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