Posted on June 23, 2023

Mayorkas’ Non-Deportation Policy Survives Supreme Court Challenge

Stephen Dinan, Washington Times, June 23, 2023

The Supreme Court breathed new life into President Biden’s lenient immigration policies Friday, giving the Department of Homeland Security tacit approval to refuse to arrest and deport illegal immigrants even where the law says it must try.

In an 8-1 ruling, the justices said Texas and Louisiana couldn’t sue to force the administration to carry out a law that requires the government to attempt to arrest, detain and deport illegal immigrants with significant criminal records.

“In sum, the States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests,” wrote Justice Brett M. Kavanaugh in the key opinion. “Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

The result, one justice warned, will be presidents increasingly willing to disregard the laws passed by Congress, and lawmakers who find their only recourse to an unruly executive is impeachment.

“Relegating Congress to these disruptive measures radically alters the balance of power between Congress and the Executive, as well as the allocation of authority between the Congress that enacts a law and a later Congress that must go to war with the Executive if it wants that law to be enforced,” wrote Justice Samuel A. Alito Jr.

At issue in the case is a memo issued by Homeland Security Secretary Alejandro Mayorkas in 2021 that ordered immigration agents and officers to limit the illegal immigrants they tried to arrest and deport. No longer would being in the country illegally be sufficient grounds for deportation, and even those who did have serious criminal records also had to be considered for leniency.

Texas showed in court that because of that policy, Homeland Security was forcing it to release criminals back to the streets.

Among them was Heriberto Fuerte-Padilla, an immigrant in the country illegally who was driving drunk in 2020 when he smashed into the car driven by a Texas teenager, killing her. He fled, but police caught up with him.

Homeland Security said under Mr. Mayorkas’ policy that Fuerte-Padilla wasn’t a priority for deportation, so Texas should release him into the community when he’d served his time on the state charge.


Even if Mr. Mayorkas’ memo were vacated, courts can’t compel a change in the department’s behavior, Justice Neil M. Gorsuch said in a concurring opinion joined by Justices Clarence Thomas and Amy Coney Barrett.


Andrew “Art” Arthur, a former immigration judge and congressional aide responsible for crafting immigration laws, said the ruling upends immigration law.

“What this decision effectively does is it takes immigration decisions out of the hands of Congress, where the Constitution has placed them, and effectively places it in the hands of the executive branch,” said Mr. Arthur, who is now with the Center for Immigration Studies.