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SCOTUS Refuses To Reinstate Biden Policy Limiting Immigration Arrests Before It Hears Texas Challenge

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OPINION: This article may contain commentary which reflects the author's opinion.


The U.S. Supreme Court denied a bid by the Biden administration on Thursday to block a ruling from a federal judge that barred immigration officials from following its enforcement guidelines.

“The Supreme Court on Thursday refused to reinstate the Biden administration’s policy limiting immigration arrests after a Texas district judge said the guidance to deportation officers violated federal laws,” the Texas Tribune reported.

“The court instead said it will hear the merits of the case in December. The practical result is that the administration will not be able to implement its strategy for the rest of the year. The Biden administration had protested that it was unfair to allow a single district judge to disrupt the executive branch’s immigration priorities on a nationwide basis,” the outlet continued.

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In a 5-4 vote, Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson “indicated they would have granted the administration’s request to put the lower court ruling on hold and allow the administration to go forward with its policy while deciding the merits of the case.”

The one-page order stated:

The application for stay presented to Justice Alito and by him referred to the Court is denied. The Solicitor General suggested that the Court may want to construe the application as a petition for certiorari before judgment. Doing so, the petition is granted. The parties are directed to brief and argue the following questions: 1. Whether the state plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law; 2. Whether the Guidelines are contrary to 8 U.S.C. §1226(c) or 8 U.S.C. §1231(a), or otherwise violate the Administrative Procedure Act; and 3. Whether 8 U.S.C. §1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the Guidelines under 5 U.S.C. §706(2). The case will be set for argument in the first week of the December 2022 argument session.

In late June, the Supreme Court delivered its long-awaited ruling on the Trump administration’s “Remain in Mexico” policy.

The case involved the Biden administration trying to end the Trump-era policy, which required asylum-seekers to wait in Mexico as their cases make their way through U.S. immigration courts. The Trump administration sent more than 70,000 asylum-seekers to Mexico under the policy.

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In a 5-4 ruling, the Court ruled that President Joe Biden’s administration can terminate the Trump-era immigration policy.

Conservative Justices John Roberts and Brett Kavanaugh joined liberal the justices in the decision.

During arguments before the Supreme Court earlier this year, Justice Brett Kavanaugh suggested he supported keeping the policy in place.

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Kavanaugh asked Solicitor General Elizabeth Prelogar, who represented the Biden administration, whether there was any indication that Congress when it last rewrote the law in 1996, knew that hundreds of thousands of people would be released in the U.S. while they wait for their hearings.

Texas Solicitor General Judd Stone argued before the Court that immigration law states that the federal government must return every immigrant to Mexico if they can’t detain every single one attempting to enter the country.

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“MPP, as implemented, reduced the number of violations. It did not fully satisfy the executive’s mandate,” Stone told the justices. “But so far as it went, it complied with the executive’s obligations to return rather than detain the aliens enrolled in MPP.”

Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt, who filed the lawsuit jointly in Texas, spoke earlier this year about the case and the arguments made before the justices.

“I really trust that we did the best we could today,” Paxton said. “I really believe we’re going to get a good result with this, and hopefully from the consequences of this huge loophole that everyone knows is a loophole.”

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