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Supreme Court Signals Divide Over Biden’s Border Priorities (1)

Nov. 29, 2022, 6:17 PM

The US Supreme Court signaled a divide over President Joe Biden’s effort to shift the government’s deportation priorities, with some conservatives blasting the administration for saying federal courts lack power to block the new guidelines.

Hearing arguments for two-plus hours in Washington, the justices sent mixed signals on a bid by Texas and Louisiana to invalidate the policy as violating federal immigration law. The administration says it’s trying to devote its limited resources toward the most dangerous undocumented immigrants and those who recently crossed the border.

US Solicitor General Elizabeth Prelogar drew strong resistance for her contention that federal courts for years have been overstepping their authority by tossing out rules issued by government agencies.

An incredulous Chief Justice John Roberts called the administration’s position “fairly radical” and said it would mean thousands of cases had been wrongly decided. Justice Brett Kavanaugh described the approach as “pretty astonishing.”

Both justices are veterans of a Washington federal appeals court that frequently hears challenges to agency rules and sets them aside “five times before breakfast,” in Roberts’ words.

Liberal Justice Elena Kagan pushed back in the opposite direction, questioning the right of states to challenge -- and frequently block -- every new immigration policy, no matter which party controls the White House. She pointed to procedural rules in Texas that have let that state’s Republican attorney general essentially hand-pick which judge will hear a case.

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

Border Priorities

The Biden administration is trying to prioritize undocumented immigrants who threaten national security or public safety, or who recently entered the country. The Trump administration had focused enforcement more broadly on anyone in the country without authorization.

Texas and Louisiana contend the Biden approach violates federal immigration law, which says the Department of Homeland Security “shall” detain a broader set of undocumented immigrants who are facing deportation. DHS says it doesn’t have the resources to detain and deport all 11 million undocumented people estimated to be in the US.

A central question in the case is whether the states have the legal right to challenge the administration’s guidelines. The Biden administration says the states haven’t alleged the type of concrete injury that would given them standing to sue.

Texas and Louisiana say they have to spend more on law enforcement and social services because of the presence of so many undocumented immigrants within their borders.

The Supreme Court in July refused on a 5-4 vote to let the Biden administration put its guidelines into effect. That left in force a ruling by the conservative 5th US Circuit Court of Appeals, which said the Biden policy “radically reduces” the detention of people who are required by law to be deported.

Justice Amy Coney Barrett joined the three liberal justices in dissent in July, hinting that her vote might be in play once the court took up the case.

Barrett and fellow conservative Neil Gorsuch emerged as potential swing votes during Tuesday’s argument. Both suggested they were open to the administration’s argument that a federal trial judge in Texas exceeded his authority by invalidating the policy.

The case is United States v. Texas, 22-58.

(Updates with comments from Roberts, Kagan starting in fifth paragraph.)

--With assistance from Kimberly Robinson.

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Greg Stohr

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