The Supreme Court’s decision last month ruling that the Biden administration lawfully ended the inhumane Remain in Mexico program was a surprising win on immigration. But on Thursday, the right-wing court reminded the president of who they believe gets to set policy within his administration: Republican judges.
In a 5-4 decision, justices refused to reinstate deportation priorities that had been blocked by Judge Drew Tipton, who was appointed by the previous administration in 2020. Department of Homeland Security (DHS) secretaries and similar officials have set similar priorities six times since 2000, Vox reported. But in yet another shadow docket decision this week, Tipton “gets to throw DHS into chaos by issuing a nationwide order that nullifies the executive branch’s authority to set immigration priorities, something presidents have done forever,” tweeted legal expert Mark Joseph Stern.
The decision was the first with associate Justice Ketanji Brown Jackson. Amy Coney Barrett joined Jackson, Sonia Sotomayor, and Elena Kagan in dissenting. After declining to allow a Democratic administration to set its own priorities, as administrations prior to it have done, the court agreed to hear the merits of the case in December.
“Tipton, appointed to the bench by President Donald Trump, sided with the states and vacated the ICE priorities, leaving the agency without any operational guidelines,” The Texas Tribune reported. “A panel of the U.S. Court of Appeals for the 5th Circuit rejected the administration’s plea to put Tipton’s order on hold while it considered the case’s merits.”
“Unbelievably, today, with a 5-4 vote the Supreme Court is allowing an unlawful intrusion by the state of Texas on the federal administration of immigration laws by keeping in place a nationwide injunction until after arguments at the end of the year,” American Immigration Lawyers Association President Jeremy McKinney said. “Every single law enforcement agency uses prosecutorial discretion on a daily basis. When resources, whether human or financial, are finite then decisions must be made about where and how those resources are best allocated. That’s just common sense.”
But common sense and conservatism, whether from right-wing officials or the judges they appoint, do not go together. As noted over and over again following one of these decisions (and there have been many), Republicans have been using right-wing judges to sabotage the president’s immigration agenda because they can. This anti-immigrant judicial pipeline has been primarily led by corrupt Texas Attorney General Ken Paxton, who himself has evaded court for years after being indicted in 2015 on felony securities fraud charges.
“It is striking that, just a few weeks ago, SCOTUS halted the Texas state government’s attempt to control a different enforcement policy in Biden v. Texas,” McKinney continued. “For those same justices who railed against nationwide injunctions before, to completely reverse their position today and be okay with this Texas judge enjoining a federal immigration agency from implementing immigration law is blatantly hypocritical and patently political.” But none of the decisions resulting from Paxton’s lawsuits actually have to make any sense. Republicans have the votes, and that’s all they need.
“Make no mistake, if a liberal judge had even dreamed of issuing a similar order against the Trump administration the Supreme Court would have come down on them like a ton of bricks,” tweeted American Immigration Council Policy Director Aaron Reichlin-Melnick. “This exposes even further how the shadow docket is nakedly political and unrelated to the law.” He said the previous administration “got slapped down a lot because it would issue policies that were obviously illegal, or be so sloppy that even conservative judges would demand a do-over or strike them down. That is just not the case here. The priorities were written to be ironclad.”