Supreme Court takes up bid to revive key Biden immigration policy

The Supreme Court on Tuesday will consider the Biden administration’s effort to revive a policy that set immigration enforcement priorities by focusing on public safety threats.

The administration is seeking to overturn a Texas-based federal judge’s ruling in June that blocked the policy nationwide. It had been in effect for less than a year.

Announced in September 2021, President Joe Biden’s plan marked a shift away from the hard-line enforcement approach taken by former President Donald Trump. The administration argued that with an estimated 11 million immigrants in the U.S. illegally, the government has to prioritize certain cases because it does not have the resources to detain and deport all of them.

Texas and Louisiana immediately challenged the plan in court, arguing that federal immigration law requires that certain illegal immigrants — including those convicted of aggravated felonies, human trafficking and some gun crimes — must be detained after they are released from criminal custody. Biden’s policy, which required an individual assessment of whether an immigrant is a threat to public safety or national security while the government initiates the deportation process, would defy that requirement, the states say.

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Biden administration lawyers argue that the president has broad discretion to set enforcement priorities.

The justices will consider whether the states had legal standing to bring the challenge and, if they did, whether the guidelines are unlawful. A third question concerns whether the judge had the authority to block the policy even if it is unlawful.

In the ruling blocking the policy, U.S. District Judge Drew Tipton — a Trump appointee — said Texas had standing because it could show that immigrants who should have been detained were in Texas and in some cases had committed crimes.

Tipton found both that the policy was unlawful and that the government failed to follow the correct procedure in implementing it.

Solicitor General Elizabeth Prelogar, representing the administration, said in court papers that Tipton’s decision cutting back on federal officials’ discretion to set enforcement priorities “runs counter to longstanding practice spanning multiple administrations.”

Texas Attorney General Ken Paxton countered on behalf of the states that when Congress sets requirements, the president “lacks the authority to disregard that instruction.”

The Supreme Court voted 5-4 in July to reject the Biden administration’s request to immediately restore the policy but agreed to hear oral arguments. A ruling is due by the end of June.

Republicans have frequently accused Biden of a lax approach to enforcement and border security, which they argue have led to a rise in crime and an increase in the number of people entering the U.S. illegally.