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The Supreme Court on Thursday turned down an emergency appeal from the Biden administration and left in place a Texas judge's order that says the government must detain and deport immigrants who have serious crimes on their record.
Justice Ketanji Brown Jackson cast her first vote in dissent, saying she would have set aside the judge's order. Justices Sonia Sotomayor, Elena Kagan and Amy Coney Barrett also voted to grant the administration's emergency appeal.
Though the five other conservative justices rejected the emergency appeal, the court said it would hear the administration's arguments in December.
The decision again highlights the court's shift to the right. In the past, the justices routinely said the executive branch has broad authority to enforce the immigration laws.
But in this instance, a Texas judge effectively set the national policy by vetoing the Biden administration's enforcement plan, which said agents should focus their efforts on apprehending and detaining immigrants who posed the greatest threat.
Neither the conservative appeals court in New Orleans nor the conservative majority at the Supreme Court was willing to rein in the Texas judge.
The action Thursday also led to a first-of-its-kind 5-4 split at the high court. The five male justices turned down the administration's appeal, while the four female justices voted to grant it.
The decision is not likely to have a direct or immediate impact. The administration has said it does not have enough staff and jail facilities to detain all the immigrants who could be subject to deportation for past crimes.
For the past year, Republican state attorneys general and the Democratic administration have been locked in a dispute over immigration enforcement.
At issue is whether the law requires mandatory detention for immigrants with a serious crime on their record or allows the administration to prioritize deportations by focusing on those who pose a current danger to public safety. Often, immigrants serve years in state prisons for crimes and are then released, when they may be taken into custody by federal immigration agents.
Since taking office early last year, Biden's appointees at the Department of Homeland Security have issued several memos setting guidelines for deciding whether certain immigrants must be detained and deported.
"It is well established in the law that federal government officials have broad discretion to decide who should be subject to arrest, detainers, removal proceedings, and the execution of removal orders," DHS Secretary Alejandro N. Mayorkas said last September. He said enforcement should focus on "noncitizens who pose a current threat to public safety," not anyone with a past record of serious crimes.
Biden and previous administrations have argued there are insufficient resources to deport all immigrants with a criminal record.
But Texas Atty. Gen. Ken Paxton filed a suit contending the law required the government to arrest, detain and deport what Congress called "criminal aliens," including those who had an "aggravated felony" on their record.
He won a broad ruling from U.S. District Judge Drew Tipton, a Trump appointee, who sits in Corpus Christi, Texas. Tipton issued a nationwide order declaring the administration's enforcement policy was illegal and may not be used.
The U.S. 5th Circuit Court of Appeals in New Orleans refused to lift the order on July 6.
In a 3-0 decision, the appellate judges said the administration's "new immigration rule radically reduces the federal government’s detention of those who are statutorily required to be removed post-haste." They pointed to provisions in federal law that say immigration authorities "shall take into custody" and "shall detain" and "shall remove" noncitizens who were convicted of certain crimes, including drug trafficking, human smuggling and other aggravated felonies.
A day earlier, the 6th Circuit Court in Cincinnati handed down an opposite ruling. Its 3-0 decision lifted a judge's order and said the federal authorities have long had discretion in deciding which noncitizens will be held for deportation. Setting priorities "is not new," said Chief Judge Jeffrey Sutton.
U.S. Solicitor Gen. Elizabeth Prelogar filed an emergency appeal on July 8 and urged the high court to block the district judge's order in the Texas case. She said it has long been understood that immigration authorities do not have enough agents or jail cells to arrest and detain all the undocumented persons who could be subject to deportation.
"By purporting to dictate how and when the executive branch should enforce immigration law in all 50 states, the district court upended the separation of powers and intruded on a core executive prerogative," she wrote in her appeal in United States vs. Texas. The government faces "significant resource constraints" which "make it imperative that the Department of Homeland Security have the freedom to target noncitizens who pose the greatest threat to national security, public safety, and border security."
She also cited an "explosion of state suits seeking nationwide relief" and urged the court to put a stop to them.
"For most of our nation’s history, a suit like this would have been unheard of. Courts did not allow states to sue the federal government based on the indirect, downstream effects of federal policies," she said.
"But suits like this have recently become routine. California, for example, filed 122 lawsuits against the Trump administration, an average of one every two weeks, and Texas’ attorney general recently announced that he had filed his 11th immigration-related lawsuit against the Biden administration — the 27th overall against Biden.”
The attorneys general of Louisiana, Arizona and 17 other Republican-led states agreed with Texas and urged the court to reject the administration's appeal.
This story originally appeared in Los Angeles Times.