If the Supreme Court won’t force Biden to enforce immigration law, no one will

In what has been described as a major victory for President Biden’s immigration policies, the Supreme Court recently held that Texas and Louisiana do not have standing to bring a suit challenging his administration’s immigration enforcement guidelines in federal court.

The justices who voted for this decision have shielded Biden and every future president from judicial review of their immigration enforcement policies.

Legal actions cannot be brought in federal court solely because an individual or group is displeased with a government action or law. A lower court found that the states in this case are injured by the challenged enforcement policy because it results in additional state expenses, and monetary costs are an injury. But the Supreme Court has stressed that the alleged injury must also “be legally and judicially cognizable.” This, of course, is subject to interpretation based on the facts of a particular case.

In his opinion for the majority, Justice Brett M. Kavanaugh framed the dispute as an effort by Texas and Louisiana to obtain a court order that would require the Department of Homeland Security to “alter its arrest policy so that the Department arrests more noncitizens.” But the states have cited no precedent, history or tradition of federal courts entertaining lawsuits of this kind. In fact, the Supreme Court has held that “a plaintiff lacks standing to bring such a suit when he himself is neither prosecuted nor threatened with prosecution.”

The states argued that the Biden administration’s enforcement guidelines contravene two federal statutes, section 1226(c) of the Immigration and Nationality Act (INA) and INA section 1231(a)(2).

The first section provides that the “Attorney General shall take into custody” certain migrants when released from state or local custody, who:

• Are inadmissible on specified criminal grounds;
• Are deportable by reason of having committed a specified criminal offense; or
• Are inadmissible on specified security and related grounds or deportable for terrorist activities.

The second section provides that the Attorney General shall detain migrants subject to a removal order during the removal period. It specifies that, “Under no circumstance during the removal period shall the Attorney General release an alien who” has been found inadmissible under specified criminal and related grounds or deportable for specified criminal offenses or on security and related grounds.

The Supreme Court’s decision holds that the states do not have standing to challenge the administration’s failure to comply with these statutory requirements. The decision does not express a position, however, on whether the administration is complying with its legal obligations under those provisions.

Apparently, the court had some concern about unintended consequences. It adds that it is not suggesting that federal courts never can entertain cases involving an administration’s alleged failure to make more arrests or bring more prosecutions.

It has adjudicated selective-prosecution claims under the Equal Protection Clause in which the plaintiff is seeking to prevent his or her own prosecution. Standing might be found when Congress elevates de facto injuries to the status of legally cognizable injuries redressable by a federal court. The standing calculus might change if the administration has wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. And standing might be found in a case where an administration policy involves both arrest or prosecution priorities and the provision of legal benefits or legal status.

Furthermore, other forums remain open for examining the administration’s immigration enforcement policies. For example, Congress possesses an array of tools to analyze and influence such policies: oversight, appropriations, the legislative process, and Senate confirmations, to name a few.

In other words, “we” won’t let federal courts adjudicate the merits of complaints about a president’s immigration enforcement measures, but you can seek relief from Congress — which has been deadlocked on immigration issues for almost 40 years.

In a dissenting opinion, Justice Samuel Alito excoriated the majority for inflating the power of the executive branch. In order to reach the decision that Texas and Louisiana do not have standing, Alito wrote, the court “brushes aside major precedent that directly controls the standing question, refuses to apply our established test for standing, disregards factual findings made by the District Court after a trial, and holds that the only limit on the power of a President to disobey a law … is Congress’s power to employ the weapons of inter-branch warfare.”

Alito argued that the majority disregarded applicable precedent, misapplied other precedent and glossed over the court’s standing test in order to reach a conclusion that the plaintiffs here do not have standing. But when the facts and legal decisions are properly reviewed, they clearly do have standing.

The issue in this case is Congress’s constitutional authority to control immigration, which the Supreme Court has repeatedly emphasized. Here, Congress has explicitly required the government to arrest and detain certain criminal migrants. Yet, in Alito’s words, Biden “has instructed his agents to disobey this legislative command and instead follow a different policy that is more to his liking. And the Court now says that no party injured by this policy is allowed to challenge it in court.”

The Supreme Court’s decision will have a lasting impact on immigration enforcement, in the short run and for years to come. It has allowed Biden to fully implement his enforcement guidelines and release criminal migrants who the law says must be detained and removed. Moreover, future presidents will be free to exempt undocumented immigrants from statutory enforcement measures too.

But the standing requirement has been protected. Justice has been served!

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at nolanhillop-eds.blogspot.com