The conservative revolution at the U.S. Supreme Court has two prongs. One grabs headlines as the justices overturn long-established precedent on big-ticket issues like abortion, affirmative action and voting rights. The second is a less-noticed yet enormously ambitious transformation of the judiciary’s job. Put simply, the justices are placing themselves at the top of the tree of governance, radically curtailing the expert administrative judgment long exercised by the executive branch.
The court’s revolutionary program for transforming how administrative agencies enforce the law was on full display last Tuesday in the oral argument for the term’s major immigration case, Texas v. Biden. The case raises three distinct yet related issues: the separation of powers; whether states have standing to sue the executive branch over enforcing federal law; and the ability of a single court to block policy nationwide.
Begin with the separation of powers. At issue in the case is whether and how the president, through the Department of Homeland Security, can set priorities for detaining and deporting undocumented immigrants. Back in September 2021, DHS Secretary Alejandro Mayorkas issued guidance on exactly that question in a memo that said the department should prioritize three categories: people suspected of terrorism, those convicted of crimes, and those recently apprehended trying to cross the border unlawfully.
