In a brief order, the high court denied — without explanation — a request for emergency relief by the Justice Department to place a hold on the ruling by a Texas federal judge preventing the Department of Homeland Security from focusing immigration enforcement on undocumented immigrants who are considered to pose the greatest threat.
The Supreme Court instead said it would take up the case in the first week of its December argument session.
Homeland Security Secretary Alejandro Mayorkas in September issued the new directives that ordered officials to use “discretionary authority” to prioritize arresting immigrants who “pose a threat to national security, public safety and border security.”
“The fact an individual is a removable non-citizen therefore should not alone be the basis of an enforcement action against them,” Mayorkas wrote at the time. “We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country’s well-being require it.”
Last month, U.S. District Court Judge Drew Tipton, an appointee of former President Donald Trump, ruled to nullify the guidance in response to a challenge from Texas and Louisiana, which argued that the policy prevented U.S. Immigration and Customs Enforcement from enforcing immigration law.
After the U.S. Court of Appeals for the 5th Circuit allowed Tipton’s nationwide injunction to remain in place, the Biden administration filed a request for an emergency stay from the Supreme Court.
In the request, Solicitor General Elizabeth Prelogar said the order is “disrupting DHS’s efforts to focus its limited resources on the non-citizens who pose the gravest threat to national security, public safety and the integrity of our nation’s borders.”
Prelogar also said that Tipton wrongly made the decision to block the policy nationwide, which is “unheard-of” throughout most of U.S. history.
“Courts did not allow states to sue the federal government based on indirect, downstream effects of federal policies, And district judges did not purport to enter nationwide relief,” she said.
Lawyers for Louisiana and Texas countered that they had experienced direct and concrete injuries under the policy that entitled them to sue.