How the Supreme Court is Shaping Immigration Policy

The Supreme Court has a long history of ruling on immigration issues—in fact, some of its most consequential decisions have been in immigration cases, such as the 1898 ruling in United States v. Wong Kim Ark, which established the precedent that anyone born in the United States is a citizen by birth (otherwise known as birthright citizenship, or jus soli). Until recently, the majority of cases pertaining to immigration decided by the Supreme Court were fairly obscure, and mostly aimed at practitioners and experts, and were about interpretations of specific sections of immigration law as it pertained to different individual cases, most often in deportation proceedings. These cases had major implications for the practice of immigration law, but were not typically about broad policies or programs. However, recent cases involving immigration, such as Biden v. Texas (the Texas lawsuit over the Biden Administration’s ending of the Migrant Protection Protocols, or MPP), have addressed broad governmental policy and executive authority. As Congress continues to avoid legislating on major immigration policy, presidents and their administrations have increasingly taken bold steps, leading to increasing litigation. This means that the federal courts have taken on a larger role in the sphere of immigration policy and beyond, including the Supreme Court.

The Supreme Court on Immigration

This Supreme Court term’s blockbuster case on immigration, Biden v. Texas, dealt primarily with the implementation and proposed termination of the Migrant Protection Protocols (MPP), a government program commonly known as “Remain in Mexico,” that allowed U.S. immigration officials to send asylum seekers to Mexico to wait for their U.S. immigration court hearings. The policy was first implemented by the Trump administration in 2017. In 2021, the Biden administration’s decision to end MPP was challenged by the states of Texas and Missouri who argued that ending MPP violated federal immigration law and the Administrative Procedure Act. After a series of district court rulings, the case went to the Supreme Court, which had to decide whether the Biden administration had lawfully terminated the program, and whether immigration law, specifically 8 U.S.C § 1225, required the continuation of MPP.

On June 30, 2022, the Supreme Court, in a 5-4 decision in favor of the Biden administration, ruled that DHS had lawfully terminated the MPP program, consistent with both federal immigration law and the Administrative Procedure Act. The Supreme Court also disagreed with the Fifth Circuit’s decision, which contended that 8 U.S.C. § 1225 imposes a statutory obligation on the United States to return all arriving noncitizens who are not clearly admissible and whom it lacks the capacity to detain, to a contiguous territory, such as Mexico. The Fifth Circuit argued that in order to comply with this obligation, DHS had to reinstate MPP. The Supreme Court disagreed, stating that the language of the provision that allows for contiguous territory return is optional—may return instead of must return—and that the Fifth Circuit had incorrectly turned the discretionary provision into a mandatory provision because DHS had insufficient capacity to detain all arriving noncitizens who were not clearly admissible. The opinion also noted that 8 U.S.C. § 1225 had never been interpreted in this way before and warned that requiring the government to administer a program like MPP was unwarranted judicial interference in the executive’s comportment of foreign affairs, since implementing the program required the cooperation of another sovereign country. The decision allowed the Biden administration to move forward with the termination of the program, and on August 9, DHS announced that it would end the program and allow asylum seekers to enter the United States.

Biden v. Texas had an impact beyond the sphere of immigration policy, clarifying the scope of agency discretion and the kinds of agency actions that the court defines as “final agency actions” under the Administrative Procedure Act. It also reestablished that the executive has broad discretion when it comes to the implementation of foreign policy, and cautioned against courts ordering the continuation of programs like MPP that might constitute judicial overreach into policy areas that are firmly ensconced within the executive, such as foreign policy.

Another pending case filed by the states of Texas and Louisiana against the Biden administration’s interior immigration enforcement priorities, scheduled to be heard by the Supreme Court in the fall of 2022, may narrow executive authority in that area. This case could have significant impacts on everyday immigration enforcement inside the country, ultimately leaving frontline Immigration and Customs Enforcement (ICE) officers without guidance and leaving enforcement decisions largely up to their individual discretion. Like the MPP case, this challenge was brought by states that argue that the Biden administration’s enforcement decisions, which prioritize certain groups of unauthorized immigrants for arrest and deportation, might impose undue costs on them. U.S. Solicitor General Elizabeth Prelogar argued in a filing that this rationale would let states challenge most federal policies by arguing they cause incidental and indirect effects on state expenditures, contending that the case is part of a trend of states suing the federal government to prevent the indirect, downstream effects of federal policies. The trend of state attorneys general suing to stop federal government policies they do not like is not limited to the immigration context, and has been escalating for the last 10 to 15 years, but Biden v. Texas is the first case of this kind involving immigration to reach the Supreme Court.

Although these major cases brought by states have caught most of the headlines, the Supreme Court continues to address individual and class action cases that interpret narrow immigration law on a variety of issues, including immigration detention and relief, review of factual error, and other immigration enforcement decisions. Between November 2020 and June 2021, the Supreme Court issued opinions on Pereida v. Wilkinson, Niz v Chavez, Garland v. Dai, Sanchez v. Mayorkas, and Johnson v. Guzman Chavez—all cases that deal with immigration detention and relief. They also decided a review of a factual error case, Patel v. Garland, and an immigration enforcement case, Egbert v. Boule. These cases are more typical of the kind that the Supreme Court usually decides—clarifying specific, narrow sections of immigration law, but nevertheless can have a consequential impact on immigrant populations and the body of law that applies to them.

However, another immigration case this term, Garland v. Gonzalez, may limit the number of immigration cases that come before both the Supreme Court and district courts in the future. The plaintiffs in the case, both non-U.S. citizens subject to a removal order who had been in immigration detention for more than six months, argued against their continued detention without a bond hearing, and petitioned for class-wide relief for non-U.S. citizens in similar detention situations. The Supreme Court ruled that district courts do not have jurisdiction to grant respondent requests for class-wide injunctive relief in such cases. This ruling will likely have a broad impact on immigration litigation in the future—immigration attorneys and advocates often depend on class-wide suits to argue for immigrants’ rights, and this Supreme Court ruling effectively closes down this avenue for attorneys and advocates.

Conclusion

In the wake of Congress’ failure to update or clarify immigration law over the last several decades, advocates on both sides of the aisle have increasingly relied on courts to shape immigration policy, with more consequential cases making their way to the Supreme Court. One popular immigration program, the Deferred Action for Childhood Arrivals (DACA) program, is awaiting a decision in the Fifth Circuit, after District Court Judge Andrew Hanen in Texas ruled a year ago that the program is unlawful. If the Fifth Circuit rules to terminate DACA, which is broadly popular among the American public, DACA recipients would be at risk of deportation and their work authorization would be revoked. Terminating DACA would almost certainly lead to an appeal to the Supreme Court. Amid increasing calls for immigration reform as the United States faces short and long-term workforce shortages, and as court action puts broadly popular programs like DACA at risk, the need for Congress to engage seriously in an effort at immigration reform has never been more imperative. Absent congressional action, immigration policy will continue to be litigated and ultimately defined by the courts.