Supreme Court returns to immigration in test of Biden's power to choose deportation targets

• The Supreme Court will hear arguments Tuesday in an important immigration case.
• At issue is whether an administration may focus on some immigrants over others for enforcement.
• The high court temporarily blocked Biden from implementing the policy in a July order.

WASHINGTON – Four months after the Supreme Court temporarily blocked President Joe Biden's power to prioritize certain immigrants in the country illegally for deportation, the justices will revisit the issue Tuesday in the first major immigration case of the term. 

Biden's administration wants to focus enforcement on immigrants who pose a threat to national security or public safety. But that approach, which officials announced last year, represents a departure from the Trump administration's more sweeping tactics. And two conservatives states, Texas and Louisiana, sued over the strategy.

The case is one of several challenging Biden's authority to make policy without explicit authorization from Congress – an issue likely to become more prominent now that Republicans will control the House of Representatives. Biden's record at the high court on that question has been spotty, with the 6-3 conservative majority shutting down his COVID-19 eviction moratorium and vaccine-or-testing mandate for large employers. 

Power?:Biden's ability to bypass Congress faces 'major' legal hurdle

Immigration:Biden asks court to revive power to prioritize immigration enforcement 

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Immigration advocates question whether Texas and Louisiana should be allowed to sue. The states claim Biden's policy forced them to spend more money on law enforcement, health care and education. But critics say the states have sought to increase their populations and that those costs would rise with an influx of non-immigrants as well. 

"Just because you say it's a drain on resources doesn't actually mean that that is real," said Sirine Shebaya, executive director of the National Immigration Project, whose group co-authored a brief in the case supporting Biden's position. "They are actively targeting this group and breaking it apart from the rest of the population, even though federal and state law require that all residents of a state be treated similarly."

Louisiana Solicitor General Liz Murrill pushed back on that argument, asserting that states should be permitted to prioritize their resources as they see fit.  

"We do not have a money tree in the backyard, nor can we print money," Murrill said. "Any argument that our position on illegal immigration is somehow in conflict with a policy of encouraging growth in our states is falsely equating two things that are wildly dissimilar."

Texas and Louisiana told the Supreme Court this year in their brief that other states have been allowed to sue on similar grounds. The states told the court that officials have an obligation to "protect the health and well-being of their residents by protecting them from criminal aliens that Congress has ordered detained."

The federal government doesn't have the resources to detain and deport every immigrant in the country illegally. Like previous administrations, the Biden administration sought in a Department of Homeland Security memorandum last year to focus its immigration enforcement on people it believes pose a threat to national security or public safety or who are recent border crossers. 

But the states say that federal law demands more than that: It requires the federal government detain immigrants who have committed certain crimes, such as aggravated felonies or human trafficking. The Biden administration doesn't have the power, they say, to pick and choose which of those immigrants to target for enforcement. 

A federal district court in Texas sided with the states and halted the policy's enforcement. A three-judge panel of the New Orleans-based U.S. Court of Appeals for the 5th Circuit – all three of whom were nominated by GOP presidents – declined to put the district court's ruling on hold. Biden then filed an emergency request in July asking the Supreme Court to review the 5th Circuit's decision.

Days later, a 5-4 majority of the court declined Biden's request, barring his ability to carry out the policy. But the court also agreed to hear oral arguments, shifting the case off its emergency docket and delving more deeply into the merits of the legal questions at issue. The court's three liberal justices – joined by conservative Associate Justice Amy Coney Barrett – said they would have granted the Biden administration's request.  

As often happens with emergency appeals, the justices didn't explain their reasoning.  

Shadows:Alabama redistricting case renews fight among justices over docket

Remain:Supreme Court rules Biden may end Trump-era 'remain in Mexico' policy 

Shift:Immigration was a scorching topic at the Supreme Court. That's now changed.

Though the Biden administration has lost several high-profile cases dealing with administrative policies and regulations, it secured a major win this year in another immigration dispute that had some key arguments in common with the current case. 

In the final opinion handed down in the term that ended in June, a 5-4 majority allowed the Biden administration to end a Trump-era immigration policy that required migrants seeking asylum to remain in Mexico while their cases are reviewed, ending a yearlong legal fight over a policy critics said contributed to a humanitarian crisis on the border.

Chief Justice John Roberts and Associate Justice Brett Kavanaugh sided with the court's liberal wing in that decision. Associate Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Barrett dissented.

Roberts, writing for the majority, said that the lower court's ruling against the administration "imposed a significant burden upon the executive’s ability to conduct diplomatic relations with Mexico." That's because, Roberts noted, the United States cannot unilaterally return migrants who are from Central America to Mexico. Those returns must be negotiated with Mexican officials. 

A decision is expected next year.