Supreme Court Allows the Biden Administration to Reinstitute Its Immigration Enforcement Priorities

On June 23rd, 2023 the U.S. Supreme Court issued a decision in U.S. v. Texas, which allows the Biden administration to resume its implementation of guidelines for immigration enforcement within the interior of the United States, otherwise known as enforcement priorities. The Court held that the states challenging the legality of the enforcement priorities lacked the required standing, a legal requirement to bring the issue before the courts.

For decades, both democratic and republican administrations have issued guidelines that direct the immigration enforcement agencies to focus their resources on arresting and deporting certain classes of individuals. These guidelines instruct U.S. Immigration and Customs Enforcement to use prosecutorial discretion in favor of people who fall outside of the identified priorities, which in theory, should result in ICE officers not pursuing their removal.

In 2021, Department of Homeland Security Secretary Alejandro Mayorkas issued final guidance in September 2021, affirming that DHS would focus its enforcement efforts on people who:

Posed a threat to national security.
Posed a threat to public safety.
Posed a threat to border security.

Each of these categories relies on factors that officers must consider before taking enforcement actions against individuals.

A coalition of states, led by Texas and Louisiana, filed a lawsuit to stop the agency from applying these priorities and essentially erode prosecutorial discretion. The Court’s decision to dismiss the states’ lawsuit on standing grounds meant that the Court could sidestep deciding whether implementation of enforcement priorities actually violated immigration law or the Administrative Procedures Act. In explaining the Court’s decision on standing, Justice Kavanaugh said that “lawsuits alleging that the Executive Branch has made an insufficient number of arrests or brought an insufficient number of prosecutions run up against the Executive’s Article II authority to enforce federal law.”

This decision presents a major victory for the Biden administration.