Dear Karen,

While many lower courts are still digesting the Supreme Court’s recent decision that the Biden Administration can end “Remain in Mexico,” the Supreme Court just granted review in another Texas case that is likely to have significant consequences for other red state challenges to immigrant inclusive policies. In this newsletter, we dive into litigation over ICE enforcement guidelines.

View Litigation Tracker

Updates: July 22, 2022

SCOTUS to consider legality of ICE enforcement guidance, but denies request to stay Judge Tipton’s vacatur of it in the interim

The Supreme Court announced yesterday that it would be reviewing the lower courts’ decisions in a case brought by Texas challenging guidance DHS Secretary Mayorkas issued to ICE on how to prioritize (i.e., help ICE agents decide which immigrants should be arrested and deported) the agency’s enforcement and detention resources. In general, the guidance prioritizes “threat[s] to our national security, public safety, and border security,” while also emphasizing a case-by-case approach. Per statute, the DHS Secretary is required to set such immigration enforcement priorities, and prior Administrations over the last 20+ years (including Trump’s) have issued similar guidance. Nonetheless, red states have sought to portray the Biden Administration’s guidance as radical and unlawful, claiming, as usual, that it did not go through required procedures to implement its policy and that the substance of the guidance is insufficiently draconian. 

Overall, red states have been failing more than succeeding in their lawsuits over the Administration’s immigration guidance [more red state lawsuits cases on prosecutorial discretion here]. Their latest loss came earlier this month in the Sixth Circuit Court of Appeals (covering Kentucky, Michigan, Ohio, and Tennessee) in a lawsuit brought by Arizona, Montana, and Ohio. In its opinion—written by Chief Judge Jeffery Sutton, a Republican-appointed judge who clerked for Justice Scalia—the Sixth Circuit picked apart the red state argument, explaining not only how the guidance is fully consistent with the law but also why, under well-established precedent, states are not injured by it, and thus do not have standing to challenge it in the first place.

Hours after the Sixth Circuit issued its decision, the Fifth Circuit released an opinion in virtually identical lawsuit by Texas. Predictably, the Fifth Circuit went in the exact opposite direction as the Sixth on every issue; in so doing, the Fifth Circuit denied the Biden Administration’s request to stay (pause) the lower Judge Tipton’s court decision vacating (voiding) the guidance. Because Judge Tipton and the Fifth Circuit decided that this vacatur should apply nationwide—and not just in Texas and Louisiana—Texas has once again succeeded in setting immigration policy for the entire country, and notwithstanding the considered judgment of the various courts outside the Fifth Circuit who rejected identical arguments.

Days later, the Biden Administration went to the Supreme Court to ask it to do what the Fifth Circuit wouldn’t—stay Judge Tipton’s vacatur while the full appeal proceeds. The Biden Administration also suggested that the Supreme Court could choose to go ahead and review the lower court decisions, without waiting for the Fifth Circuit to resolve the appeal to it. Yesterday the Supreme Court denied the stay request—and so the guidance remains vacated for now—by a 5-4 vote that broke down on gender lines (in her first vote, Justice Jackson would have granted the stay request). At the same time, however, the Supreme Court granted review and set the case for oral argument in the first week of the December 2022 argument session.

We will keep you updated on further developments. As always, JAC’s litigation tracker microsite contains more information about these and other red state legal challenges on immigration, as well as an archive of our past newsletters.

In addition, our new FAQ page answers questions like, “Why are there so many cases in the Fifth Circuit?” “When/how can a Supreme Court case be challenged?” “Can plaintiffs pick their judge?” and more—with more to come: If you have a question you want to submit, please send it to us as a reply to this email and you might see an answer to it on the FAQ page!

Thanks for reading!

Adela de la Torre

Deputy Director

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