Supremely out of order: Supreme Court order on ICE guidelines violates tradition

In the span of a month, the Supreme Court overturned a half-century-old abortion right, knocked down a century-old New York concealed firearm carry law, made it much harder to hold law enforcement accountable for constitutional violations, frustrated the EPA’s ability to regulate emissions and eroded the wall between church and state, a series of activist rulings in the name of constitutional conservatism.

Yet our highest court exercises its power in other ways, primarily through procedural orders. Last week, in a 5-4 decision largely along ideological lines (Justice Amy Coney Barrett broke from her usual bloc, joining Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson), the court refused to stay a lower court injunction that had prevented the Biden administration from enacting ICE enforcement guidelines issued last year. The court said it would hear the merits of the case at the end of this year.

This leaves in place an untenable situation: A single federal district judge in Texas is forcing the entire federal immigration enforcement efforts nationwide to have absolutely no prioritization whatsoever. Biden’s Department of Homeland Security had sanely sought to concentrate its energies on detention of recent border crossers and those posing a threat to public safety or national security. The judge thwarted that policy choice, which means now a hardworking undocumented mother raising her U.S.-born kids in Queens must be targeted exactly the same as an admitted terrorism supporter or child sexual offender.

Every single law enforcement agency in the history of the United States — local, state and federal — exercises discretion daily. The government does not have the resources to go after the 11 million undocumented people in communities around the country, and even if it did, doing so would cause us social, economic and moral ruin.

This nonsensical directive keeps no one safe, is inhumane and is particularly galling given the top court’s frequent knocking down of district court injunctions against Trump-era restrictive immigration policies. It’s part and parcel with justices’ increasing willingness to be political actors, the precedent be damned.