- The Washington Times - Tuesday, November 29, 2022

A legal challenge at the Supreme Court to the Biden administration’s deportation policies erupted Tuesday into a broader debate over states’ ability to use the courts to stop aggressive presidential actions.

U.S. Solicitor General Elizabeth Prelogar told the justices that states have too much power to stymie President Biden’s policies, particularly on immigration matters.

She urged the justices to reverse decades of practice and limit states’ standing to sue. She also asked them to limit courts’ ability to erase administration policies that are issued without going through the proper rule-making process.



The breadth of her request stunned some of the justices, who said she was challenging the kinds of rulings courts have routinely issued for years.

“Wow!” said Chief Justice John G. Roberts Jr. “That’s what the D.C. Circuit and other courts of appeals have been doing all the time.”

He said the Supreme Court has repeatedly handled those cases and has never ruled, as the government now says it should, that courts lack the power to “vacate” an agency’s policy.

Justice Brett M. Kavanaugh called the government’s position “a pretty radical rewrite” of how things have worked.

“No case has ever said what you’re saying,” he said.

Ms. Prelogar said courts “have been getting this one wrong” for decades.

She found a sympathetic ear in Justice Elena Kagan, who noted that states can stymie a president by claiming standing then shopping for a sympathetic judge to issue a ruling.

“We’re creating a system where a combination of states and courts can bring immigration policy to a dead halt,” she said.

Indeed, that’s exactly what’s been happening over the last decade, first with GOP-led states challenging the Obama administration, then with Democrat-led states eviscerating Trump administration policies, and now with GOP-led states attacking Biden policies.

Courts have generally found states did have standing to sue in each of those instances, and have ruled based on the merits of each case.

Should the justices reverse course, it would be a major win for Mr. Biden, who would have much more leeway to act — and it would undoubtedly draw complaints of a double standard from conservatives, who watched the courts block Trump policies such as his handling of “Dreamers” and attempting to rein in profligate use of temporary deportation amnesties.

In the case before the justices Tuesday, United States vs. Texas, the issue is Homeland Security Secretary Alejandro Mayorkas’ attempt last year to limit the range of targets for arrest and deportation.

He said being in the country illegally is no longer a valid reason on its own to arrest and deport someone. He said they must also have other negative factors, such as a serious criminal record, a recent illegal border crossing or pose a risk to national security.

He also ordered immigration officers to look for mitigating circumstances such as supporting a family or having a medical condition as reasons not to deport.

Louisiana and Texas sued, arguing Mr. Mayorkas’ memo violated immigration law, which says the government “shall take into custody” illegal immigrants with serious criminal records.

The states pointed to a major drop in arrests and deportations of immigrants who were in the U.S. illegally from the interior under Mr. Biden.

Texas also pointed specifically to immigrants Homeland Security had identified as deportation targets, issued “detainer” requests for, then canceled once Mr. Mayorkas’ policy was announced.

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.

Justice Sonia Sotomayor suggested the states should be happy with the way the administration has handled things.

She said Mr. Biden was faced with a choice about whether to focus on immigrants already in the country illegally or the record surge of new ones arriving, and it has focused on the latter.

Ms. Prelogar offered another defense of the Mayorkas policy, saying if it works the way he intended, arrests and deportations should not go down. She blamed the pandemic for last year’s drop.

“There is no reason to conclude that is actually going to lead to less enforcement against individuals overall,” Ms. Prelogar said.

But ICE data shows serious drops even between 2020 and 2021 when 2020 included the depths of the early days of the pandemic when enforcement all but ceased.

Judd E. Stone II, Texas’s solicitor general, told the justices that states don’t want to dictate enforcement policy, but they do deserve to be shielded from the consequences when an administration refuses to follow the laws on the books.

Lower courts agreed, and put the Mayorkas policy on hold. The high court was more skeptical of Texas’ claims.

Chief Justice Roberts said that while the law does use the word “shall” to describe the administration’s duty to detain criminal immigrants who are in the country illegally, Congress hasn’t allocated money for enough officers or detention beds to carry that out.

“It is impossible for the executive to do what you want them to do,” he told Mr. Stone.

Justice Ketanji Brown Jackson said the law seems to apply only to decisions about detention. She said the mandatory language doesn’t cover arrest or deportation decisions.

“They appear to be conflating Congress’ mandates with respect to detention with Congress’ statements with respect to removal,” she said.

Justice Samuel A. Alito Jr., though, said Mr. Mayorkas’s priorities fly pretty strongly in the face of what Congress ordered in the 1996 law government on the handling of criminal aliens.

“Congress has established its own set of priorities and has said that certain categories of aliens must be detained, shall be detained. The [Mayorkas] memorandum tells ICE officers, ‘Don’t do that. Don’t detain anybody solely on that person’s criminal history,’” he said.

The court is considering three distinct questions: Whether Texas has standing to sue, whether the lower court judge was correct in finding the Mayorkas policy illegal, and whether courts have the power to vacate the Mayorkas memo.

A ruling is expected before the court‘s term ends in June.

If the court does side with Ms. Prelogar in limiting states’ ability to sue, it would begin to walk back a 15-year-old decision, Massachusetts v. Environmental Protection Agency.

In that case, the justices found that Massachusetts had standing to sue over what it saw as nonenforcement of environmental policies because of the effects of global warming.

Since then, the court has allowed a wide range of latitude for states to challenge federal policies.

Justice Kagan said it’s getting out of hand, with an administration’s opponents able to look for a friendly federal court to bring a challenge. As long as one judge sides with the state, and issues a nationwide injunction, it can stop a president’s policy.

She said the way the federal courts are divided in Texas gives that state a particular ability to shop for a judge who is likely to be amenable to the state’s arguments.

Ms. Prelogar agreed.

“If the states can persuade even one single district judge, in a forum of their choosing, to be skeptical of the federal government’s position then that judge can claim authority to issue a universal remedy that is going to immediately put the federal government’s policies on hold,” she said.

“I think that is bad for the executive branch, I think it’s bad for the American public,” she said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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