Biden Administration Prevails with 8-1 Supreme Court Victory in ICE Enforcement Challenge


The administration of President Joe Biden secured a major victory on Friday from the United States Supreme Court when the court ruled by 8-1 in favor of the federal government in U.S. v. Texas.

Justice Kavanaugh wrote the opinion that found the states that initiated the litigation, Texas and Louisiana, lacked the standing to challenge the Guidelines for the Enforcement of Civil Immigration Law released by Secretary of Homeland Security Alejandro Mayorkas which “prioritize the removal from the United States of Non-Citizens suspected of being terrorists or dangerous criminals” or those who entered the country illegally only recently.

Justices Gorsuch and Barrett wrote concurring opinions. Justice Alito was a dissenting judge.


In this case, the Department of Homeland Security issued new enforcement guidelines. The Department of Homeland Security issued new guidelines after initially attempting a 30-day ban on all ICE removals.

In the memo, DHS Secretary Alejandro Mayorkas stated that “the fact an individual was a removable citizen should not be used as the sole basis for an enforcement action.” “We will exercise our discretion to focus our enforcement resources more specifically.” It is necessary for the sake of justice and our nation’s well-being.

The Department of Homeland Security said that it was the best use of limited resources for protecting the American people. But critics saw this as part of an overall rollback of border security and enforcement. The imposition of these guidelines coincided sharply with a drop in ICE’s deportations. In the last months of the Trump Administration, ICE deported 59 011 and arrested 74 082 noncitizens. Only 47,755 of the 74 082 arrests made between October 2020 to October 2021 took place after February 18, when the new priorities came into effect. Only 28,677 deportations out of 59,011 removals took place after February 18.

Texas and Louisiana argued that the guidelines violated two federal statutes and that they have standing to challenge them as they will incur costs if the administration fails to comply with the mandates of the statutes. The U.S. District Court ruled that the states did have standing to challenge the guidelines, declared them unlawful and vacated the guidelines. The Biden Administration appealed. The Fifth Circuit Court of Appeals refused to stay the District Court judgment. And the Supreme Court granted certiorari for the case. The court ruled today that the states did not have Article III standing to file the case, and reversed District Court’s judgment.

Justice Kavanaugh described this lawsuit as “extraordinarily rare,” noting that the states wanted a federal judge to order the Executive Branch “to alter its arrest policy so as to make a greater number of arrests.” Federal courts do not typically entertain this type of lawsuit. Indeed, the States cite no precedent for such a lawsuit. Kavanaugh also added that while Texas and Louisiana did not have standing to sue, federal courts could still hear cases where the Executive Branch is accused of failing to make more arrests.

In his concurrence, Justice Gorsuch also agreed that Texas, Louisiana, and other states lacked standing. But for a different reasoning: “redressability”, the idea that a favorable ruling would not be beneficial to the states.

Federal courts are important, but they have a limited role in our government system. They resolve cases and disputes. The standing doctrine recognizes this limitation from the beginning of each lawsuit. It provides a forum to plaintiffs who are seeking relief from concrete, personal injuries while excluding those with more generalized grievances which belong in the hands of a legislator. The traditional remedial rules are also effective at the end of a lawsuit. They make sure that successful plaintiffs receive meaningful relief. They also prevent courts from changing rights and obligations in a way that interferes with the power reserved for the elected representatives of the people. Standing and remedies are intertwined in this case. Federal courts lack the authority to remedy the States’ injuries. The States are denied any form of coercive remedy under section 1252(f)(1). The voiding of an order pursuant to SS706(2) does not provide them with any effective relief. A vacatur order under SS706(2) may not be legal. I don’t see how we can look past these issues. The Constitution gives federal courts considerable powers, but does not allow for “government by litigation”. R. Jackson, The Struggle for Judicial Supremacy, 286-287 (1941).

Justice Barrett’s reasoning, as set out in her concurrence was more narrow:

The Court weaves multiple doctrinal threads to create a novel rule, which is also at odds with other decisions. See ante at 2-4 (opinion by GORSUCH, J.). I believe that this case should be decided on the well-known ground that any injury must be “likely” and not “speculative” to be “redressed” by a favorable ruling. Lujan, 504 U. S. at 561. I respectfully agree only with the judgment.

Justice Kavanaugh’s majority opinion is only 17 pages long, but Justice Alito’s dissent runs 28 pages. He begins by expressing his strong disagreement with the majority.

The Court finds that Texas does not have standing to challenge the federal policy of releasing illegal aliens who are convicted criminals for serious crimes. To reach this conclusion, it ignores a precedent that directly governs the standing question. It also refuses to apply the established test of standing and disregards the factual findings of the District Court following a trial. Finally, it holds that Congress has the right to use inter-branch weapons such as impeachment, removal, and withholding of funds to limit the power of the President to disobey the law at issue. I would not go down this unwise path. I would apply established law, which ineluctably leads to the conclusion that Texas is entitled to standing.

Alito ends by warning against the expansion of executive powers and criticizing the majority’s failure to perform its duties:

The sweeping Executive power endorsed in today’s ruling may be welcomed by those who support a strong President. However, if Congress is able to use its formidable arsenal of weapons, it will likely reduce executive power by as much as possible. This is not the vision of the Constitution.

Let me end with a final observation. The majority claims that their decision rejects any attempt to convince us that we should “‘usurp,'” the power of other branches. But that’s not true. Ante, at 3. We are exercising the powers granted by Article III and must be careful not to overstep our constitutional role. When we are in a position of authority, it is our “virtually irrevocable obligation” to use that power. Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976). Since the majority has shunned this duty, I respectfully dissented.