1 Step Forward and 1 Step Back in Immigration Enforcement

COMMENTARY Immigration

1 Step Forward and 1 Step Back in Immigration Enforcement

Jun 26, 2023 5 min read

Commentary By

Hans A. von Spakovsky @HvonSpakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Thomas Jipping @TomJipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Security fencing sits in front of the U.S. Supreme Court Building on June 26, 2023 in Washington, D.C. Anna Moneymaker / Getty Images

Key Takeaways

The Supreme Court issued two important decisions on Friday, one that...allow[s] the Biden administration to continue to endanger public safety.

Alito dissented, recognizing the “substantial harm” being inflicted on the states...by a federal policy of releasing illegal aliens with criminal convictions.

In U.S. v. Hansen, a man ran a very profitable scam, charging foreigners thousands of dollars by promising they would “inherit” U.S. citizenship by getting adopted.

When it comes to our immigration laws, the Supreme Court issued two important decisions on Friday, one that benefits the enforcement of the law and one that, unfortunately, does not but instead will allow the Biden administration to continue to endanger public safety due to, as Justice Samuel Alito said in his dissent, its “federal policy of releasing illegal aliens with criminal convictions for serious crimes.”

In U.S. v. Texas, Justice Brett Kavanaugh wrote the majority opinion, which was joined by Chief Justice John Roberts, and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, holding that Texas and Louisiana do not have standing to challenge guidelines issued by the U.S. Department of Homeland Security in 2021 that outlined the deportation priorities of the Biden administration. 

The guidelines prioritize the arrest and removal of suspected terrorists and criminals that, in its discretion, DHS determines to be “dangerous.” The states argued these guidelines violate two federal statutes that contain a long list of specific crimes that require the arrest and removal of aliens convicted of those crimes, as well as aliens for whom a final order of deportation has been issued.

A federal district court agreed and vacated the guidelines based on a finding that the states would incur the costs of the executive branch’s failure to comply with these statutory mandates. The U.S. Court of Appeals for the 5th Circuit agreed. 

But on Friday, the Supreme Court disagreed, providing a detailed explanation of why Texas and Louisiana did not have standing to make such a claim against the federal government. Kavanaugh relied on precedent that says a plaintiff lacks standing to sue when he is not himself being prosecuted or threatened with prosecution. 

Here, the states were actually suing over the Biden administration’s failure to arrest and prosecute. Such a claim, said Kavanaugh, runs up against the executive’s constitutional authority to prioritize and determine how aggressively to enforce the law, and the majority declined to wade into that issue.

Kavanaugh made it clear, though, that claims involving the executive branch’s failure to enforce the law were not completely barred. Courts can intervene in selective prosecution claims under the equal protection clause; when Congress elevates de facto injuries to the status of legally cognizable injuries redressable by a federal court; if the executive branch wholly abandons its statutory responsibility to make arrests and prosecutions; in a challenge that involves both arrest or prosecution priorities and the executive branch providing legal benefits or legal status; and policies governing the continued detention of aliens who have already been arrested. 

Kavanaugh also noted that this was a procedural opinion, and the court was not expressing a view on whether the executive branch is complying with its statutory obligations. Although the opinion doesn’t say so, the Biden administration is clearly not fulfilling those obligations. 

Justice Neil Gorsuch, joined by Justices Clarence Thomas and Amy Coney Barrett, concurred in the judgment, but concluded that the problem isn’t standing, because, in his view, Texas and Louisiana have incurred costs and suffered injuries due to the administration’s policy. The problem, Gorsuch concluded, is a lack of redressability or the ability to remedy the problem.

This traces back to a federal immigration law that specifically bars any court other than the Supreme Court from enjoining or restraining the operation of certain immigration laws, including the ones at issue in this case. Thus, the district court had no authority to issue an injunction. The Constitution gives federal courts considerable power, but it does not, he stated, establish “government by lawsuit.” 

Alito dissented, recognizing the “substantial harm” being inflicted on the states and their residents by a federal policy of releasing illegal aliens with criminal convictions for serious crimes. In his view, the majority brushed aside a major precedent that directly controls the standing question, refused to apply the court’s established test for standing, disregarded factual findings made by the district court, and held that the only limit on the power of a president to disobey a law is Congress’ power to employ the weapons of inter-branch warfare—withholding funds, impeachment, and removal. Alito stated that he “would not blaze this unfortunate path” but “would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing.”

The bottom line is that the effort by Texas and Louisiana to force the Biden administration to comply with federal immigration law requirements to remove criminal aliens has struck out based on a procedural rule, not because their claim lacks merit. This is a very serious issue with profound public safety consequences, and this decision means that it is now up to Congress to use the “weapons of inter-branch warfare” to try to remedy it.

In the Supreme Court’s other immigration decision, U.S. v. Hansen, a man ran a very profitable scam, charging foreigners thousands of dollars by promising they would “inherit” U.S. citizenship by getting adopted. He was convicted under a federal statute that prohibits “encourag[ing] or induc[ing]” foreigners to enter or stay in the country illegally. The U.S. Court of Appeals for the 9th Circuit said that the terms “encourage” and “induce” include lots of speech protected by the First Amendment, so the statute was unconstitutional. The Supreme Court disagreed in a 7-2 decision written by Barrett.

Cases that require picking apart individual words and splitting textual hairs can seem overly technical and even tedious, but they can also be very important. This case is one of them. The difference between Barrett’s majority opinion and Jackson’s dissent, which was joined by Sotomayor, boiled down to whether the key terms should be read in the specific context of this criminal statute or read in isolation as we would use them in everyday conversation. It’s the difference between giving those words a narrow or a broad meaning, which means the difference between upholding or striking down the statute.

Barrett focused on these terms in their criminal law context, explaining how “encourage” and “induce” are related to other technical terms such as “facilitation” or “solicitation.” She concluded that, with that narrower focus, the statute “reaches no further than the purposeful solicitation and facilitation of specific acts known to violate federal law” and, therefore, is not overbroad.

Jackson accused the majority of narrowing “this statute in order to save it.” Read “literally,” Jackson wrote, the provision would be overbroad. But that is because Jackson was looking at “encourage” and “induce” in isolation, as used “in ordinary parlance.”

Barrett’s approach avoided striking down a duly enacted statute by employing a limited and focused judicial approach. When judges are asked to invalidate statutes, they do not have free reign to make statutes mean whatever they want. Their job is to discern what Congress intended by what Congress enacted.

Jackson’s “ordinary parlance” approach has virtually no limits at all. When Thomas and Kagan agree on something, as they did in supporting Barrett’s opinion, it is tough to argue that they’re wrong. With all due respect, Jackson’s dissent would have given free rein to cartel members, smugglers, scam artists, and human traffickers to encourage and induce aliens to break our immigration laws and illegally enter the country.

With the current crisis at the border, that is the last thing we need.

This piece originally appeared in The Daily Signal