Why the Supreme Court Handed Biden an Immigration Win

Brett Kavanaugh pasted together a majority for an eminently reasonable ruling.

A U.S. Border Patrol honor guard attends a ceremony for fallen agents at the Border Security Expo on April 12, 2017 at the Henry B. Gonzalez Convention Center in San Antonio, Texas. (Photo by John Moore/Getty Images)

THE SUPREME COURT’S ANNOUNCEMENT on Friday of its ruling in United States v. Texas felt refreshingly moderate. In a majority opinion authored by Justice Brett Kavanaugh, the Court declined an invitation to substantially inflate the power of states to control federal immigration policy, deferring to the discretion of the Biden administration. In so doing, the Court’s conservative majority also resisted the temptation to gobble up more federal power for itself. Justice Samuel Alito was the lone dissenter.

The case involved guidelines issued in 2021 by the Secretary of Homeland Security, Alejandro Mayorkas, that govern how Immigration and Customs Enforcement (ICE) agents should prioritize the arrest and removal of noncitizens from the United States. The guidelines direct ICE personnel to focus on noncitizens who are (a) suspected terrorists or (b) dangerous criminals, or who (c) unlawfully entered the country only recently.

Texas and Louisiana sued the Biden administration, arguing that the governing statute passed by Congress—the Immigration and Nationality Act—uses the word “shall” in certain places when it talks about arresting non-citizens. “Shall” is mandatory, not discretionary, the states argued, so DHS is in violation of federal law if it doesn’t round up every offender in the country. At a minimum, explained Justice Kavanaugh, “the States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests.” Last year, the states won in the Texas district court and in the U.S. Court of Appeals for the Fifth Circuit. Now the Supreme Court has thrown out the case without even getting to the legality of the Mayorkas guidelines.

It’s important to bear in mind that, as a matter of sheer common sense, it would be impossible for ICE to achieve 100 percent enforcement of the federal immigration laws—just like local police can’t stop every motorist who violates a traffic law. According to a Department of Homeland Security estimate, the number of unauthorized immigrants in the United States in 2018 (the most recent year for which the estimate is available) exceeds 11.4 million; other estimates from government and nonprofit sources are in the same ballpark. ICE’s 21,000 employees are responsible for enforcing over 400 federal statutes across 50 states, the District of Columbia, and in 57 other countries. Since the creation of ICE in 2003, the federal government has spent an estimated $333 billion on immigration enforcement, which falls into two broad categories: border security on one hand and apprehending noncitizens in the interior of the country on the other. For the latter, ICE arrests individuals and then detains them during their removal proceedings. Only after a judge orders removal can ICE actually deport them.

Kavanaugh didn’t get into the question of the meaning of “shall” under the INA, instead dismissing the case for lack of “standing”—meaning that the states were asking the federal courts to do something that the judiciary is not constitutionally authorized to do. The job of the judicial branch is to resolve “cases”—not to make policy (which is the job of the legislative branch) or decide whom to arrest and prosecute (which is the job of the executive branch). In dismissing the case on standing grounds, the decision shut down any future attempts by states to control federal immigration policy through the courts.

In his analysis, Kavanaugh sidestepped the traditional focus of standing doctrine—that is, whether the plaintiff suffered a discrete injury (which courts can constitutionally remedy) rather than a generic grievance (which is left to Congress to remedy). Instead, Kavanaugh underscored the radical nature of what the states proposed:

The States have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions. . . . [T]he Executive Branch does not possess the resources necessary to arrest or remove all of the noncitizens covered by [the Immigration and Nationality Act]. That reality is not an anomaly—it is a constant. For the last 27 years . . . , all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.

Kavanaugh then turned to the separation of powers, a concept that aims to ensure that each branch of the federal government confines itself to its respective job description without treading on either of the other two. If the states don’t like what DHS is doing, Kavanaugh stated, they can complain to Congress, which “possesses an array of tools to analyze and influence those policies—oversight, appropriations, the legislative process, and Senate confirmations, to name a few.” Notably, this is precisely the argument that Alito made when, almost exactly one year ago in his majority opinion in Dobbs v. Jackson Women’s Health Organization, he directed women who want abortion access to vote for state legislators who might pass laws that give it to them.

This round, Alito was highly skeptical of the feasibility of a political remedy where the states’ asserted harms amounted to increased costs for having to deal with noncitizens within their borders. In his dissent, he argued that “Congress’s power to employ the weapons of inter-branch warfare” is not enough to address the “substantial harm on the State and its residents by releasing illegal aliens with criminal convictions for serious crimes.” While Kavanaugh was not willing to “usurp” the power of the president over immigration enforcement, Alito asserted that the Supreme Court had a constitutional obligation to step in.

Had Alito’s view gained a majority, United States v. Texas would have extended the embattled Supreme Court’s expansive power trip while deputizing the states to help oversee federal immigration policy. The fact that Chief Justice John Roberts and Justices Clarence Thomas, Gorsuch, Kavanaugh, and Barrett all saw that as a bridge too far is a very good thing for the separation of powers—and for the legitimacy of the Court itself.