The Supreme Court will decide next term if the Biden administration followed the law when the Department of Homeland Security instructed immigration agents to focus on immigrants with more serious criminal convictions.
In a Thursday order, the high court scheduled the case for oral argument in early December, which adds a major immigration case to a docket that already has big cases on election law and affirmative action.
The 5-4 order also leaves in place lower court rulings that block U.S. Immigration and Customs Enforcement from implementing the policy in the meantime. The Justice Department, in a request to reverse those decisions, had argued those rulings will lead to “disparate prioritization across the country and a lack of consistency in enforcement actions.”
Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson would have lifted those lower court rulings. The order marks Jackson’s first recorded vote since she was sworn in.
The case centers on the administration’s September guidance narrowing immigration enforcement priorities, one of the administration’s efforts to reverse the Trump administration’s immigration policies.
The guidance, signed by Homeland Security Secretary Alejandro Mayorkas, instructs ICE agents to prioritize three categories of immigrants for arrest and deportation: those who recently crossed the border and those who threaten public safety and national security.
Republican officials from Texas and Louisiana challenged the guidance in court, and last month, Judge Drew Tipton of the U.S. District Court for the Southern District of Texas sided with the states and struck it down.
Tipton, a Donald Trump appointee, found Mayorkas’ enforcement memo “flatly contradicts” a pair of immigration laws mandating detention of certain categories of immigrants.
And earlier this month, a federal appeals court backed Tipton’s order, so the administration asked the Supreme Court for relief.
“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,” Solicitor General Elizabeth Prelogar wrote.
The Justice Department also invited the justices to leapfrog the appeals court and treat the request as a full appeal of the lower court’s ruling.
In addition to considering if the contested guidance squares with the federal immigration statute, the high court will also consider if the states have the authority to lodge the suit and whether the lower court had authority to block the guidance.
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