WASHINGTON – The Supreme Court ruled Friday that states do not have standing to challenge a Biden administration policy that prioritizes expulsion of migrants with certain criminal convictions.
The 8-1 ruling rejected a case brought by the states of Texas and Louisiana against Homeland Security Secretary Alejandro Mayorkas’ fall 2021 memorandum that directed federal agents to target for removal illegal immigrants who either “pose a threat to national security, public safety, and border security” or just recently crossed into the United States.
“The fact an individual is a removable noncitizen … should not alone be the basis of an enforcement action against them,” Mayorkas wrote in the seven-page memo. “We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country’s well-being require it.”
The policy, which had been blocked from taking effect while the case made its way through the courts, also stated there could be “mitigating factors” for not deporting migrants who have committed crimes, such as their “advanced or tender age”; “lengthy presence in the United States”; “military or other public service of the noncitizen or their immediate family”; and “the impact of removal on family in the United States.”
Further, the policy prohibited law enforcement from arresting and seeking to deport someone in retaliation for exercising First Amendment rights, such as joining a protest or taking part in union activities.
The states had argued that stopping deportation unless the person committed acts of terrorism, espionage, or serious criminal conduct “violate federal statutes that purportedly require the Department to arrest more criminal noncitizens pending their removal,” Justice Brett Kavanaugh wrote for the majority.
The states further alleged that the 2021 memorandum violated a 1996 law that said migrants who commit certain crimes “shall be detained” rather than expelled.
“The states essentially want the federal judiciary to order the executive branch to alter its arrest policy so as to make more arrests,” Kavanaugh wrote. “But this Court has long held ‘that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.'”
“The threshold question is whether the States have standing under Article III to maintain this suit. The answer is no.”
Addressing the states’ actual arguments, Kavanaugh wrote that “the Executive Branch invariably lacks the resources to arrest and prosecute every violator of every law and must constantly react and adjust to the ever-shifting public safety and public welfare needs of the American people.”
Justice Samuel Alito was the single holdout in favor of the state’s arguments, disagreeing with the majority decision that the case did not have standing under Article III, accusing the eight other justices of “reach[ing] out and redefin[ing] our understanding of the constitutional limits on otherwise-available lawsuits” with their decision.
“Prior to today’s decision,” he argued, “it was established law that plaintiffs who suffer a traditional injury resulting from an agency ‘decision not to proceed’ with an enforcement action have Article III standing.”
Alito went on to say that the court’s ruling harmed the separation of powers principle by “improperly inflating the power of the Executive and cutting back the power of Congress and the authority of the Judiciary. And it renders States already laboring under the effects of massive illegal immigration even more helpless.”
Mayorkas applauded Friday’s decision, saying it would allow immigration officers “to focus limited resources and enforcement actions on those who pose a threat to our national security, public safety, and border security.”
Texas Gov. Greg Abbott called the decision “outrageous” and said it gives the White House “carte blanche to avoid accountability for abandoning enforcement of immigration laws.
“Texas will continue to deploy the National Guard to repel & turn back illegal immigrants trying to enter Texas illegally,” the Republican vowed on Twitter.