In an 8-1 decision, the Supreme Court has absolved the Federal Government from the requirement to faithfully execute the laws passed by the duly elected Congress. The issue here was whether the Biden Administration could promulgate enforcement priorities contrary to the laws passed by Congress. The Court did not say President Biden was acting lawfully. Instead of asking that critical question, the Court focused on legal standing. Establishing standing is the first step in a case, and the Court must decide if an individual bringing a case has been sufficiently injured, in this case by government policy. Legal standing is effectively the right to be heard at all in court. Even though states and cities are declaring states of emergency while migrant numbers explode, Justice Kavanaugh and 7 other justices found there was no standing to even hear their complaint.
Early in his administration, after attempting to freeze all deportations for 100 days, Biden’s DHS issued new enforcement guidance via policy memo which said that no one should be an enforcement priority simply because they had violated immigration law. In other words, simply violating the law would not be sufficient to take any enforcement action. This was occurring as Biden dismissed rising border numbers as “seasonal.” After record breaking numbers showed up at the border in response to this nonenforcement policy, states attempted to sue the Biden Administration to block them from refusing to enforce the law. From Justice Kavanaugh:
“The States have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions. On the contrary, this Court has previously ruled that a plaintiff lacks standing to bring such a suit.”
The key takeaway here is that the Supreme Court is very specific about what particular actions they will not review. If the President decides to abandon enforcement of the law by refusing to arrest or prosecute, then no one has standing to sue. However, this still leaves the door wide open to sue any future President who tries to increase arrests and follow the law. Perversely, enforcing the law is more legally perilous than refusing to enforce it.
Justice Kavanaugh’s explanation for this absurd result implausibly rests on separation of powers. No one wants the courts making decisions entrusted to the other Branches by our Constitution. The dangers of Judicial Supremacy are real and must be resisted. However, the Court has a duty to interpret the Constitution and ensure the President is properly constrained. Otherwise, the Court unilaterally disarms and leaves the path wide open for a Unitary Executive. The dangers of an unaccountable presidency are clearly evident at the border and in local communities in chaos around the country.
Here, the clear constraint on Executive discretion is the Take Care Clause of the Constitution that requires the President to faithfully execute the laws of the United States. In the separation of powers doctrine Kavanaugh quotes, the idea is that the President is limited by the will of the people expressed through Congress. No President is allowed to ignore the laws passed by Congress, otherwise the idea of law becomes imaginary and the President usurps the power of the Legislative Branch.
In the Court’s view, the Take Care Clause actually empowers the President as opposed to limiting him to the constraints of the law. Unfortunately, Justice Kavanaugh doubles down on rendering the Take Care Clause meaningless surplusage that defends the Executive Branch in ignoring the law:
“That principle of enforcement discretion over arrests and prosecutions extends to the immigration context, where the Court has stressed that the Executive’s enforcement discretion implicates not only “normal domestic law enforcement priorities” but also “foreign-policy objectives.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 490–491 (1999). In line with those principles, this Court has declared that the Executive Branch also retains discretion over whether to remove a noncitizen from the United States.
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In addition to the Article II problems raised by judicial review of the Executive Branch’s arrest and prosecution policies, courts generally lack meaningful standards for assessing the propriety of enforcement choices in this area. After all, the Executive Branch must prioritize its enforcement efforts. See Wayte v. United States, 470 U. S. 598, 607–608 (1985). That is because the Executive Branch (i) invariably lacks the resources to arrest and prosecute every violator of every law and (ii) must constantly react and adjust to the ever-shifting public-safety and public welfare needs of the American people.”
This is properly translated as suggesting the Take Care Clause actually gives the Executive complete discretion as opposed to being a duty to follow the law. The President has a duty to follow the law as he or she sees fit within parameters he or she defines. The fact that the Court sees the separation of powers issue as cutting towards maximum discretion to refrain from enforcing the law demonstrates how much of a pickle we are in and how twisted current jurisprudence has become. Importantly, in this particular case, the President’s memo does not simply say that the government will not arrest every violator. This is an unfortunate framing by Justice Kavanaugh. The enforcement memo, instead, says that most aliens violating the law are not subject to enforcement even if they are encountered by the government. The states were not suggesting the government has to arrest everyone or they are violating the law. They challenged a memo that says the government will not enforce the law even for those they encounter. Kavanaugh is simply misunderstanding or misrepresenting what the memo says. No one claims the President must arrest every violator by some date, but the President’s policies should certainly try to enforce the law, rather than actively impede it, just as the Constitution says.
The Supreme Court has provided the greenlight for presidents ignoring the law under the idea that they are protecting the principle of separation of powers. Of course, this might work for the Courts, but what about the people and the Congress they elect to pass laws? What about that little separation of powers issue? Congress can lay out all the rules about illegal status in the country and consequences for violating those laws and the Executive Branch can simply refuse to enforce it. Apparently, the answer is that Congress just has to keep passing laws that the Court says presidents are free to ignore.
Where does that leave us? Well as the population of illegal aliens expands, the government’s official policy is nonenforcement. Not only does that keep pressure on local communities, but it invites more would-be illegal aliens to risk the dangerous journey to the United States. Many more will be exploited and more communities will suffer from resource constraints. The only real limiting principle left is Congress actually doing its job. While the President can ignore laws, Congress still has the power of the purse. They must use that power to strip funds from policies like the enforcement memo. Congress can direct funds to actions and policies that enforce the law as opposed to those that do not. It is now clear that the Supreme Court justices are not going to lift a finger to help. If Congress keeps funding the Biden Administration’s policies, we will know where they stand, as well.
JARED CULVER is a Legal Analyst for NumbersUSA
