ICE priorities

A divided Supreme Court ruled 5-4 to reject the Biden administration’s request to implement immigration policy without interference from lower court Trump-appointed judges.

At issue is a September 2021 memo by Secretary of Homeland Security Alejandro Mayorkas ordering that immigration officials prioritize the apprehension and deportation of three groups of noncitizens: suspected terrorists, people who have committed serious crimes, and those caught at the border. Texas and Louisiana filed a lawsuit, choosing to challenge the policy before Drew Tipton—a Trump judge known for handing down legally dubious decisions blocking the Biden administration’s immigration policies. Unsurprisingly, Tipton ruled in favor of the states and issued an injunction preventing the federal government from using its discretion in immigration enforcement.

Also unsurprisingly, a panel of the hyper-conservative 5th Circuit agreed with Tipton’s injunction and left it in place.

The Biden administration appealed to the Supreme Court earlier this month, asking for a stay to Tipton’s injunction, which would allow the new ICE priorities to take effect.

Thousands of DHS employees across the Nation have been told that they must disregard their training and stop considering the Secretary’s instructions… The Court should stay the district court’s judgment in full — or, at minimum, to the extent it operates outside Texas and Louisiana. That judgment is thwarting the Secretary’s direction of the Department he leads and disrupting DHS’s efforts to focus its limited resources on the noncitizens who pose the gravest threat to national security, public safety, and the integrity of our Nation’s borders.

Last week, the Supreme Court handed down a 5-4 decision without explanation that effectively gives Judge Tipton control of Immigration and Customs Enforcement (ICE). The vote was largely along party lines except Justice Amy Coney Barrett joined the liberal justices. The Court’s order announces that the justices will hear this case in December, after which it will decide whether Tipton’s decision should be permanently vacated.

Consider that this should not be a close call. Federal law 6 U.S. Code § 202 provides that the secretary of Homeland Security “shall be responsible” for “establishing national immigration enforcement policies and priorities.” Furthermore, prosecutorial discretion gives immigration officials (and all law enforcement) the power to decide when to enforce the law. Immigration officials, according to the 2012 Supreme Court, are to be given “broad discretion” to determine who should be removed from the country.

Tipton’s ruling flies in the face of years of precedent. As the government explained in their brief, the previous Secretaries of Homeland Security have issued enforcement priority memos under both Democratic and Republican administrations in 2000, 2005, 2010, 2011, 2014, and 2017.

For over a century, the Executive Branch has established policies to guide immigration officials’ exercise of that discretion. In line with that historical practice, when Congress established DHS in 2002, it made the Secretary responsible for “[e]stablishing national immigration enforcement policies and priorities.” Since then, DHS has regularly issued such policies. Different administrations have pursued different approaches at different times. Policies issued in 2000 and 2011 adopted a “totality of the circumstances” approach that vested broad discretion in line-level officers; policies issued in 2010 and 2014 identified “categories of individuals who should be prioritized for enforcement”; and a policy issued in 2017 prioritized broad categories that “effectively described all removable noncitizens,” thereby “delegat[ing] prioritization decisions to individual line agents.”

---

---

LGBTQ protections

A Trump-appointed judge in Tennessee issued an injunction preventing federal agencies from enforcing directives that extended protections for LGBTQ people in schools and workplaces.

The case originated from a challenge filed by 20 state attorneys general, led by Tennessee’s Herbert Slatery, to President Biden’s 2021 executive order “preventing and combating discrimination on the basis of gender identity or sexual orientation.” The Executive Order declared that “laws that prohibit sex discrimination…prohibit discrimination on the basis of gender identity or sexual orientation” and directed agencies to ensure that their policies are consistent with the order.

For example, the Department of Education was told that it has a responsibility to investigate and address sex discrimination, including sexual harassment, against students because of their perceived or actual sexual orientation or gender identity.” Republican-led states objected to this provision, which would have interfered with recent laws banning transgender students from sports teams and prevented them from using bathrooms consistent with their gender.

District Judge Charles Atchley, confirmed during Trump’s last month in office, ruled that Biden’s guidance interferes with states’ right to govern themselves:

During oral argument, Plaintiffs represented that the alleged injury to their sovereign interests is the most direct injury that confers standing. The Court agrees…

the Court finds that ten Plaintiff States have adequately demonstrated an injury in fact to their sovereign interests. Defendants’ guidance documents presently harm Plaintiff States by undermining their sovereign authority to enforce their state laws as written and imposing substantial pressure on Plaintiffs to change their state laws.