In September 2021, the Biden administration issued an order to the Department of Homeland Security that only illegal aliens who posed a national security threat, had committed major crimes, or who crossed a U.S. border unlawfully after November 2020 be arrested and deported. The rule exempted the 11 million illegal aliens who have been living in the U.S. without permission for years from being arrested and deported, as long as they did not commit serious crimes.

That rule, established in a memo from Homeland Security Secretary Alejandro Mayorkas, limited ICE’s ability to arrest and deport illegal aliens to only those who committed a serious crime or threatened national security. The rule was challenged by the states of Texas and Louisiana, and a lower court agreed that the rule was too restrictive. After failing to get a lower court to overturn the order, Biden took his case to the Supreme Court.

A majority of the court decided to hear the merits of the challenge over the Mayorkas memo, but won’t immediately reinstate the rule, setting up oral arguments during its December session.


The Biden administration has said the policy is a proper exercise of the government’s broad powers to decide which cases to prioritize, arguing the rules allow ICE to use its limited enforcement resources to arrest immigrants who pose the gravest threats to national security, public safety and border security.

But Republicans lawmakers have called the rules too restrictive, saying they fail to deter illegal immigration. In lawsuits, Republican-controlled states have also argued the guidelines violate laws that govern the detention of certain unauthorized immigrants, such as those with final deportation orders.

Previously, courts have sided with the executive regarding the president’s authority to prioritize immigration cases, and this court may still agree with past decisions. But the nature of Mayorkas’ memo was far too restrictive in enforcing immigration law, according to border state governors.

In its request to the Supreme Court earlier this month, the Justice Department said Tipton’s order contradicted the 6th Circuit Court of Appeals’ ruling. It also said Tipton’s ruling was part of a broader trend of lawsuits that “enmesh the Judiciary in policy disputes between States and the federal government that should be — and, until recently, were — resolved through the democratic process.”

Since January 2021, Republican-controlled states have filed more than a dozen lawsuits targeting President Biden’s immigration and border policies.

Those lawsuits have led federal judges, many of them appointed by former President Donald Trump, to block the Biden administration’s proposed 100-day deportation moratorium, halt earlier limits on ICE arrests and force U.S. border officials to continue expelling migrants under a public health authority.

Given that state attorneys general sued the Trump administration 138 times, perhaps the Biden administration should practice what it preaches.

A sampling of suits filed against the Trump administration by Democratic states:

Among the topics: the “travel ban“; the Deferred Action for Childhood Arrivals program, or DACA; family separations at the U.S.-Mexico border; the “national emergency” declaration to build the border wall; international student visas; student loan protections; clean water rules; transgender health care protections; automobile emissions; a citizenship question on the 2020 census; U.S. Postal Service operations; and Obamacare.

It’s likely that even the conservative court sitting now will grant the administration its wish and allow the rule to continue to be enforced. Of course, all this nonsense could be avoided if Congress would only pass intelligent immigration reform — just like the Constitution set them up to do.

You Might Like
Learn more about RevenueStripe...