With its official term finished, the Supreme Court just released a short order with big implications for immigration policy. The court on Thursday refused to block a lower court ruling that has prevented the Biden administration from setting immigration enforcement priorities. Homeland Security Secretary Alejandro Mayorkas announced these priorities last September, and then in June a Texas judge blocked them from taking effect. Now the high court voted (5-4) to keep Biden’s immigration priorities on hold, and to hear arguments on the case in December.
This may sound like business as usual, as controversial measures often wend their way through our legal system. But here the Supreme Court’s conservative majority is ignoring federal law, precedent, and common sense. The court is basically allowing one Trump judge to usurp the authority of elected and appointed leaders. This amounts to a threat to our separation of powers, as well as to immigrant families who could find themselves at risk for deportation.
At issue is whether Biden can set his own immigration enforcement priorities, something presidents of both parties have been doing for decades. Presidents set such priorities because Congress has never allocated enough money to the Department of Homeland Security (DHS) to remove all of the undocumented immigrants in the U.S. The Pew Research Center estimates that there are nearly 11 million undocumented people in the country.
Biden’s immigration enforcement priorities are completely reasonable. The administration wanted to focus on removing threats to national security, public safety, and border security. Immigration agents were being told to go after criminals and terrorists, rather than, say, rounding up U.S. military veterans and students. This targeted use of resources is within Mayorkas’s authority. When DHS was created in 2003, Congress said that the Secretary “shall be responsible” for “establishing national immigration enforcement policies and priorities.”
That didn’t stop District Judge Drew Tipton from ruling that the administration could not implement its guidelines. Worse, the Supreme Court is letting his deeply flawed decision stay in place for months.
Consider that the court has consistently upheld the authority of the federal government over immigration. In 2012, the court noted that “a principal feature of the removal system is broad discretion exercised by immigration officials.” The court ruled in 1999 that an agency can drop deportation proceedings against a person for any number of reasons, and in 1985 it held that “an agency’s decision not to take enforcement action should be presumed immune from judicial review.” By allowing Judge Tipton to substitute his judgment for that of the administration, the current court is trampling on precedent.
The court’s order could also have a devastating impact on undocumented immigrants. Now any person in the country without authorization is at risk of deportation. It doesn’t matter if they have been in the country for years, have citizen children, or are on the front lines in the fight against COVID-19. ICE agents are free to target anyone they choose, which could destabilize immigrant communities and lead to more racial profiling of Latinos.
Setting immigration priorities doesn’t mean that a president is soft on illegal immigration. Biden’s priorities are close to those of Obama, and his administration deported over 2 million people.
True, the court’s order is temporary, as it agreed to hear arguments in this case in December. Yet that means that a final decision will probably not come until next Spring. Even if the Biden administration ultimately wins its case, a core responsibility of DHS Secretary Mayorkas will have been held hostage by a lone federal judge for nearly a year. And eliminating these priorities is not fair to immigration agents either; they will have to do their jobs without official guidance on best practices.
It’s one thing to have aggressive immigration policies under a president like Trump, who was democratically elected and accountable to voters. It’s a different matter to have aggressive immigration policies because a conservative judge in Texas thinks we should. By permitting this, the court is allowing an encroachment upon the powers of the executive. That seems a violation of our system of co-equal branches of government.
President Biden has the right to enact his immigration agenda unimpeded by a partisan judiciary, whether that be a Texas judge or the Supreme Court’s conservative majority. By again imposing its will on millions of Americans, the high court is further eroding its own legitimacy.
Raul Reyes is an immigration attorney and member of the USA Today Board of Contributors. A graduate of Harvard University and Columbia Law School, he is also a contributor to NBCNews.com and CNN Opinion. You can follow him on Twitter at @RaulAReyes, Instagram: raulareyes1.