Supreme Court rejects Texas effort to force Biden administration to change deportation policy

Migrants crossing the border in Roma were apprehended by U.S. Customs and Border Protection on Aug. 16, 2021. (Eddie Gaspar/The Texas Tribune, Eddie Gaspar/The Texas Tribune)

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The U.S. Supreme Court ruled Friday that Texas and Louisiana lacked legal standing to challenge the Biden administration’s priorities on who should be deported.

In an 8-1 decision, the court said that even though the states lacked legal standing to sue in this case, “we do not suggest that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.”

“In sum, the States have brought an extraordinarily unusual lawsuit,” Justice Brett M. Kavanaugh wrote for the majority. “They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Justice Samuel A. Alito Jr. was the lone dissenter.

The case, Texas v. Biden, reached the Supreme Court after Texas and Louisiana sued the Biden administration in April 2021 for changing immigration enforcement priorities. Alejandro Mayorkas, secretary for the Department of Homeland Security, had issued a memorandum instructing immigration agents to target undocumented immigrants who have been convicted of felonies or pose a risk to public safety.

The states argued that Mayorkas’ memo was illegal, and U.S. District Judge Drew Tipton, an appointee of former President Donald Trump based in Corpus Christi, ruled in the states’ favor last year. The Biden administration appealed the decision, which eventually reached the high court.

The case was argued before the Supreme Court in November 2022.

During the Obama administration, which issued similar guidance to immigration agents, the priority guidelines were necessary because Congress allocated only enough money for Immigration and Customs Enforcement to deport about 400,000 undocumented immigrants a year, according to a 2014 U.S. Department of Justice memo. Mayorkas’ memo said Congress still has not allocated enough money to target every undocumented immigrant in the country.

Judd E. Stone II, solicitor general with the Texas attorney general’s office, told the justices in November that under U.S. immigration law, the federal government has to deport every undocumented immigrant who has been ordered deported, and it can’t ignore that because of a lack of resources.

“The final memorandum is unlawful for multiple reasons,” mainly because it treats a section of immigration law “as discretionary,” Stone said, “although this court and every previous administration have acknowledged it’s mandatory.”

Elizabeth B. Prelogar, solicitor general with the Department of Justice, argued in November that the federal government didn’t stop enforcing immigration law but instead is using its resources efficiently.

“This is not about reducing enforcement of immigration laws. It’s about prioritizing limited resources to, say, go after Person A instead of Person B, and there’s no reason to conclude that that’s actually going to lead to less enforcement against individuals overall,” she said.

César Cuauhtémoc García Hernández, an immigration attorney and law professor at Ohio State University, said the court’s ruling reaffirms that the president “gets to decide how the the federal government enforces immigration law — not the courts, governors or state attorneys general.”

“The Court didn’t weigh in on Texas’ own border-policing policies, but today’s decision puts the legal wind at the Biden administration’s back by repeating what it has said in the past: The president has immense discretion to adjust immigration law enforcement priorities, and if others don’t like it, they can complain to Congress or take it out against the president at the ballot box,” he added.

Gov. Greg Abbott, who has criticized the Biden administration for its immigration policies and has sent the National Guard to the border to apprehend people crossing the Rio Grande, called the court’s ruling “outrageous” in a tweet.

“SCOTUS gives the Biden Admin. carte blanche to avoid accountability for abandoning enforcement of immigration laws,” Abbott wrote. “Texas will continue to deploy the National Guard to repel & turn back illegal immigrants trying to enter Texas illegally.”

The Texas attorney general’s office said it was “extremely disappointed” by the decision.

“The court ruled that Texas did not have standing to challenge the federal government’s harmful ‘prioritization guidelines’ that protected certain classes of criminal aliens from arrest, and therefore the court failed to consider the merits of the case. The state of Texas and our citizens are disproportionately affected by the Biden Administration’s unlawful immigration policies, and Texas has played a key role in forcing accountability through the court system,” the attorney general’s office said in a statement to The Texas Tribune. “Our office will continue to advocate for the rights of our citizens and uphold the Constitution against Biden’s open borders onslaught.”

The lawsuit was filed by the office of suspended Attorney General Ken Paxton, who is facing an impeachment trial in the Texas Senate.

Some immigrant rights advocates welcomed the Supreme Court ruling.

“This decision soundly rejects the misguided attempt by Texas and Louisiana to force the government to implement the most draconian immigration enforcement policy,” said Omar Jadwat, director of the American Civil Liberties Union Immigrants’ Rights Project.

This is the second time the Supreme Court has ruled in favor of the Biden administration in a Texas-led immigration lawsuit.

In June 2022, the Supreme Court ruled that the Biden administration had the right to end a Trump-era immigration policy known as the Migrant Protection Protocols, which forces asylum-seekers to wait in Mexico as their cases make their way through U.S. immigration courts. That ruling also stemmed from a Texas lawsuit.

In the lower courts, Texas — which has sued the Biden administration about two dozen times — has had success at stopping some of the Biden administration’s immigration policies. Most of these lawsuits have been filed in courtrooms with judges appointed under the Trump administration.

Stephen Vladeck, a University of Texas at Austin law professor, filed an amicus brief in the case the Supreme Court heard in November, saying Texas has been strategically filing lawsuits in federal courts with judges the state believes will rule in its favor.

“This is more than forum shopping, it is thinly veiled judge shopping,” Vladeck wrote. “Each of the 20 cases was filed in a division that assigns all or virtually all cases to judges appointed during Republican presidencies.”

In March 2022, Paxton’s office denied it was judge shopping.

“The [attorney general’s] office has an extraordinarily high win rate,” a spokesperson said at the time. “That’s a testament not only to the quality of [Attorney] General Paxton’s legal team and lawsuits, but also the flagrant illegality of this administration; when they’re pressed in court, they lose.”

William Melhado contributed to this story.

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