President Joe Biden, by way of a Department of Homeland Security policy change, attempted to dramatically reduce the number of illegal migrants who could be deported by immigration officials, but that new policy was blocked from implementation by a federal district court in Texas.
The Biden administration had asked the Supreme Court to place a hold on that lower court’s ruling and allow the policy to go into effect, but a 5-4 majority of the nation’s highest court just rejected that request, the Conservative Brief reported.
The Supreme Court did, however, agree to take up the case in the coming fall term, so while the new DHS policy that set priority levels on which illegal migrants could and couldn’t be swiftly deported may eventually take effect, that won’t happen at least until some time next year.
Challenged DHS policy broadly limits deportations
At issue here is a September 2021 memo from DHS Sec. Alejandro Mayorkas that, in light of limited resources for the department, established a new policy on deportations that prioritized just three classes of illegal migrants — suspected spies and terrorists, those who posed a threat to public safety, and those apprehended immediately at the border — and, in effect, discouraged or prohibited efforts to deport any other illegal migrants who were not in those specific classes.
SCOTUSblog reported that Texas and Louisiana filed a lawsuit against that new DHS policy and a federal district judge in Texas agreed that it was likely unlawful and struck it down. The Biden administration asked the Fifth Circuit Court of Appeals to overturn that ruling, but the Fifth Circuit declined to do so.
Separately, a collection of states led by Arizona, Montana, and Ohio also filed suit over the policy, and a district judge in Ohio similarly ruled against the administration, but on request from Biden’s attorneys, the Sixth Circuit Court of Appeals overruled the lower court.
That has now caused a dispute at the appeals court level that must be settled by the nation’s highest court. Thus, the petition filed by the Biden administration for the Supreme Court to place a hold on the Texas court’s ruling in order to allow the policy to go into effect while the challenges against it remain pending.
The policy will remain blocked, but the court will hear the case
According to a one-page order released Thursday, however, the Supreme Court rejected that request for a stay on the lower court, though it was noted that Justices Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagen, and Sonia Sotomayor would have granted the requested stay.
That said, while the Supreme Court declined to lift the lower court’s block of the challenged DHS deportation prioritization policy, it did agree to take up the administration’s emergency appeal to bypass the circuit courts and scheduled oral arguments on the matter for the first week of December.
The court further laid out three specific questions that both the administration and states must focus on: Whether the states had legal standing to challenge the new DHS policy; whether the policy is in violation of certain immigration enforcement statutes and the Administrative Procedure Act; and whether the Texas district judge had the authority and jurisdiction to “hold unlawful and set aside” the DHS policy.
A loss for Biden
To be sure, the Biden administration has prevailed at the Supreme Court level previously with regard to its immigration policies, such as the court’s decision in June to allow the administration to end the Migrant Protection Protocol, better known as the “Remain in Mexico” policy, that had asylum seekers wait in Mexico while their claims were processed.
That said, this decision to allow the new DHS deportation policy to remain blocked, even if only temporarily, constitutes a win for the American people and Republicans and a loss for Biden and Democrats and those who seek open borders policies with lax or entirely nonexistent enforcement of duly enacted immigration laws.