Both in terms of public policy and in terms of constitutional implications, mainline conservatives may long regret the Supreme Court’s decision last week that aided the Biden administration’s massive release of illegal immigrants within America’s borders.
Yes, the court gave a one-sentence nod to a possible future challenge to the same policy under terms of the Administrative Procedure Act, but that’s little solace. I think the chances of success for such a challenge aren’t great, and either way, the massive-release program will continue in the meantime. Worse, as libertarian constitutional scholar Ilya Somin argued, last week’s decision, combined with other recent court rulings, effectively is such a grant of “sweeping power” for the presidency in general as to be “at odds with the text and original meaning of the Constitution.”
The underlying question here was whether President Joe Biden is legally permitted to stop applying former President Donald Trump’s “Remain in Mexico” policy that sent illegal immigrants back across the southern border until the time for their asylum hearings arrived. A federal district court had issued an injunction that until last Friday kept Trump’s policy nominally in place. The policy had a remarkable deterrent effect on illegal border crossings, helping cause a 64% drop in “border encounters.” Contrarily, when Biden suspended “Remain in Mexico,” border encounters rose an astonishing 230% in just three months.
The high court, though, doesn’t decide what is or isn’t a good policy — instead, it must determine what the Constitution and current laws actually say. In dispute here in Biden v. Texas was how to effectuate the interplay in various statutes between one clause saying the executive branch “shall” do something and two other clauses saying it “may” do something else. Against the dissenting opinion (which I found quite persuasive) of Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch, the other six justices determined in favor of the “may” clause preferred by Biden that lets him jettison “Remain in Mexico.”
But here’s the kicker: All nine justices agreed that yet another statutory provision uniquely denies a federal district court the jurisdiction to issue an injunction regarding immigration policy. If the injunction were improperly granted, then the whole case should not reach the Supreme Court yet until lower courts fully have considered and ruled on the legal merits of the arguments themselves and until other procedural hurdles are overcome.
Procedurally, it all sounds very complicated. The upshot of it all is that even if the conservative trio eventually could prevail on how to interpret the “shall” and the two “may” clauses (in other words, in favor of Trump’s policy, against Biden’s), their own reasoning about the jurisdictional issue would mean that Biden massive-release policy would stay in the interim — until a challenge to it worked its way to the Supreme Court under different procedural auspices.
Either way, it would mean that Biden could do what he wants for at least another year (or probably two) while the courts painstakingly reconsider all the competing claims of authority.
In terms of actual policy going forward, then, traditional conservatives will chafe unless and until a separate challenge under the Administrative Procedure Act prevails. They will see a continued disrespect for national sovereignty inherent in the massive release of border crossers who, in large percentages, are unlikely ever to show up for their hearings to determine whether they merit asylum or deportation. Conservatives will continue to complain (to some extent, correctly) that far too many of the internally released border crossers are insufficiently screened for health, are likelier to secure federal dole than to find work, and are likely to be transporting illegal drugs or commit other crimes.
Policy, though, can be corrected more easily than constitutional error. Somin is right to lament that in the realm of immigration policy, at least, a combination of statutes with a series of Supreme Court decisions culminating in Biden v. Texas has upset the usual disbursement of powers so that now “the president ends up with sweeping power to exclude, detain, or parole the vast majority of potential migrants.” This aggregation of presidential power runs counter to the spirit and evident intent of the Constitution in Article I, section 8, clause 4, which gives Congress the power “to establish an uniform rule of naturalization.”
By further tilting the “separation of powers” scale in favor of the president on immigration issues, the Supreme Court goes in the opposite direction of its recent trend against unaccountable executive power in other disputes. As Alito put it in his dissent: “The majority cites no authority for the doctrine that the Executive can acquire authority [otherwise] forbidden by law.” Biden v. Texas is a decision mistaken in its legal analysis, with unfortunate policy results. Too bad the ruling itself can’t somehow be detained.
