People For the American Way

Supreme Court Reverses Trump Judge’s Overreach on Immigration

News and Analysis

An 8-1 Supreme Court majority rejected a transparently political effort by a Trump judge to hobble the Biden administration on immigration. In United States v. Texas, the Court dismissed efforts by two red states to prevent the president from pursuing his own priorities rather than Donald Trump’s. 

What did the Biden administration try to do?

When he took office, President Biden sought a sharp departure from Trump’s deliberately cruel immigration policies. The Trump administration generally encouraged federal Immigration and Customs Enforcement (ICE) agents to arrest and seek to deport as many people without immigration papers as possible. This included people with long ties to their local communities who posed no public safety or national security risks. This spread fear and misery throughout the targeted communities. 

In contrast, Biden officials directed ICE agents to prioritize enforcement efforts against immigrants who pose “threats to public safety and national security.” 

The Supreme Court has long recognized that the president has enormous discretion in how to prioritize immigration enforcement. That is especially the case since Congress does not appropriate enough money for any administration to fully enforce every immigration law in every context. Every administration must choose where to put its limited resources. 

How did Republican states and judges respond?

Despite what the law says, Republican officials in Texas and Louisiana quickly sued. They went before Trump Judge Drew Tipton, who ordered Biden to follow Trump’s policies. He held that the immigration statutes require all immigrants in certain categories to be deported, which means it is illegal to give officials discretion. His order applied not just in Texas and Louisiana, but nationwide. This was condemned as “unprecedented and outrageous.” 

On appeal, the Fifth Circuit let Tipton’s order remain in effect. This was not a surprise, since the Fifth Circuit is among the most right-wing in the country. The three-judge panel was comprised of judges nominated by Ronald Reagan, George W. Bush, and Trump, all of whom were committed to the far right’s agenda of taking over our nation’s courts. 

What did the Supreme Court do?

The lower courts’ efforts to impose their political beliefs were too much even for most of the current Supreme Court. Eight justices agreed that the states lacked standing to sue, but they were split in the reasoning. 

Justice Kavanaugh wrote the majority opinion, joined by Roberts, Sotomayor, Kagan, and Jackson. They ruled that Judge Tipton should never have even considered the case in the first place, because the states don’t have “standing” to sue. To have standing, you must show an injury. Judge Tipton had held that having more undocumented immigrants in Texas and Louisiana would force the states to spend money, and that is enough injury to get into federal court. 

The Court disagreed. The majority opinion found no precedent for a case like this, which Kavanaugh called a “highly unusual lawsuit.” The states are not the ones being subjected to immigration policies. In addition, the decision not to arrest or prosecute someone does not threaten anyone’s liberty interest. Also, courts simply don’t have any standards to use to determine the propriety of an administration’s enforcement choices in a context with such limited resources and public policy choices. 

Gorsuch (joined by Thomas and Barrett) agreed that the states lack standing, but they disagreed with the majority’s reasons. For them, it was because the courts can’t offer the states any relief. They wrote that the immigration statutes prohibit lower federal courts from ordering immigration officials to carry out  certain immigration laws, including the ones at issue in this case. Alito disagreed with both sets of justices and believed the lower courts were right to consider the states’ lawsuit. He also made clear that he would have ruled in their favor on the merits, calling up images of ancient British monarchs who unilaterally suspended acts of Parliament.

Can someone other than states bring this issue back to the courts?

Kavanaugh’s majority opinion made clear that this was simply not a matter for the federal courts to decide. He stressed that the Court was not addressing whether the administration’s policies comply with our immigration laws. He said that is a question to be addressed in the political process, through congressional hearings, new legislation, and elections. 

What does this tell us about lower federal courts?

This case would never have made it to the Supreme Court if far-right judges in Texas and the Fifth Circuit had not overreached. Yet the vast majority of lower federal court decisions don’t get reviewed by the Supreme Court, which hears only a few dozens cases a year. 

President Biden and Senate Democrats have done a spectacular job of filling vacancies with fair-minded judges who will protect the rights of all people, not just the powerful. Yet progress is slow in many Red states, including Texas, which has eight district court vacancies without nominees. As long as home state senators exercise unilateral veto power over district court nominees in their states, we will have two systems of justice. 


Immigration, Supreme Court, Trump judges