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The Supreme Court may be running out of patience for Trump’s worst judges

The Court’s decision in United States v. Texas stops rogue judges from seizing control of law enforcement.

Flashing red and blue lights illuminate a nighttime scene of several migrants, including women and children, kneeling or sitting on the ground as police officers handcuff some of them.
Immigrants in Bracketville, Texas, are arrested by police and Border Patrol agents in March 2023.
Jabin Botsford/Washington Post via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

More than a year ago, a Trump-appointed judge named Drew Tipton effectively seized control of parts of Immigration and Customs Enforcement (ICE), the federal agency that enforces immigration laws within the United States. On Friday, the Supreme Court ended Tipton’s reign over ICE’s enforcement priorities.

The Court’s decision in United States v. Texas was 8–1, with all eight justices in the majority concluding that Tipton didn’t even have jurisdiction to hear this case in the first place — though they split 5-3 on why Tipton lacked jurisdiction. Only Justice Samuel Alito, the Court’s most reliable Republican partisan, dissented.

The case concerned 2021 guidelines, issued by Secretary of Homeland Security Alejandro Mayorkas, that instructed ICE agents to prioritize enforcement efforts against undocumented or otherwise removable immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”

Two red states, Texas and Louisiana, sued, essentially arguing that ICE must arrest more immigrants who do not fit these criteria. Moreover, because Texas federal courts often allow plaintiffs to choose which judge will hear their case by deciding to file their lawsuits in specific parts of the state, these two red states chose Tipton — a staunchly anti-immigrant judge who has been a thorn in the Biden administration’s side since the first week of his presidency — to hear this lawsuit.

In one of the most predictable events in the US judiciary’s history, Tipton promptly obliged the two states by striking down Mayorkas’s guidelines.

Justice Brett Kavanaugh’s opinion in Texas holds that no federal judge should have ever even considered this case. As Kavanaugh explains, the plaintiff 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.” To the contrary, the Court held in Linda R. S. v. Richard D. (1973) that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”

That rule, Kavanaugh announces, controls the Texas case. Just as a private citizen may not sue to force the government to arrest or prosecute someone else, a state government also may not bring such a lawsuit.

Kavanaugh’s opinion also reaffirms a longstanding doctrine, known as “prosecutorial discretion,” which permits law enforcement officials to determine who to arrest, and who to otherwise enforce the law against, without interference from the judiciary.

The decision is a serious blow to Republican efforts to control federal immigration policy by seeking injunctions from sympathetic judges. From the earliest days of the Biden administration, Republican Texas Attorney General Ken Paxton has taken advantage of the unusual rules permitting him to often choose which judge hears his cases to secure court orders blocking President Biden’s immigration policies. (To be clear, there is no evidence that these rules were created for the purpose of allowing someone like Paxton to game the process used to assign cases to judges. But they certainly allow him to do so.) Just six days into Biden’s presidency, for example, Tipton granted Paxton’s request to block a 100-day pause on deportations that the new administration announced in its first week.

At the very least, the Court’s Texas decision should mean that judges like Tipton can no longer decide who is or is not arrested.

That said, the decision does contain some language that anti-immigrant judges may latch onto to impose their preference on the country — including a paragraph that reads like it was written to preserve lawsuits challenging the Obama-era Deferred Action for Childhood Arrivals (DACA) program.

And there is one other very frustrating thing about this case. Although the Supreme Court eventually ruled that Tipton is not the head of ICE and cannot decide who its agents arrest, it rejected a request to temporarily block Tipton’s decision last July.

In other words, by sitting on this case, a Supreme Court dominated by conservative Republican appointees effectively let Tipton control ICE for more than a year.

Why prosecutorial discretion exists

Texas’s lawsuit was rooted in a federal statute which states that the United States “shall take into custody any alien” who commits certain immigration offenses. In effect, they argued that the word “shall” is a mandatory command that forces ICE to make mass arrests.

But this argument runs afoul of 150 years of well-settled law. As far back as Railroad Company v. Hecht (1877), the Supreme Court held that “as against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.”

One reason for this strong presumption that federal laws do not impose arrest or prosecution mandates on law enforcement is that it is often literally impossible for a law enforcement agency to arrest every single person who violates a law — imagine the massive police state that would be required, for example, to pull over every single driver who violates a traffic law.

As the Justice Department explained in a 2014 memo, “there are approximately 11.3 million undocumented aliens in the country,” but Congress has only appropriated enough resources to “remove fewer than 400,000 such aliens each year.” That means that leaders of immigration agencies like ICE necessarily must set priorities, and make choices about which deportable immigrants will be targeted and which ones will effectively be tolerated within US borders.

Indeed, as Kavanaugh writes in his Texas opinion, this ability to set priorities and to decide when not to enforce the law has been a regular feature of federal immigration law across many administrations. “For the last 27 years since” the immigration statutes at issue in Texas “were enacted in their current form,” Kavanaugh writes, “all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.”

For this reason, the Court has long held that law enforcement agencies may exercise “prosecutorial discretion” without interference from the courts. As the Court held in Heckler v. Chaney (1985), “an agency’s decision not to take enforcement action should be presumed immune from judicial review.”

As Kavanaugh emphasizes, his opinion in Texas “simply maintains the longstanding jurisprudential status quo.” Tipton should have never heard this lawsuit in the first place, and there is more than a century of US law informing him why he should not have done so.

The Texas case is not a total victory for the Biden administration

All of this said, there are three aspects of this case that may embolden judges like Tipton to continue sabotaging Biden’s immigration policies.

The first is that the Supreme Court appears to have manipulated its calendar to leave Tipton’s order in place for as long as possible.

This is not a hard case, and Tipton’s errors should have been obvious to any judge with even a passing familiarity with the Court’s prosecutorial discretion decisions. And yet the justices sat on the case for nearly an entire year before finally ruling, in a decision joined by every justice except the hyper-partisan Alito, that Tipton did not have jurisdiction to hear this case.

They should have blocked Tipton’s decision last July, when the Biden administration first asked them to do so.

Additionally, while Kavanaugh’s opinion holds that judges ordinarily should not interfere with a law enforcement agency’s decision not to arrest a particular individual, he does write that the “calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.”

To be sure, Kavanaugh also suggests that this exception to the ordinary rule may only apply when the “Executive has entirely ceased enforcing the relevant statutes,” and there is no plausible argument that the Biden administration has stopped enforcing federal immigration law altogether. But judges like Tipton have shown an extraordinary willingness to interfere with federal immigration policy, even when the Supreme Court has clearly told them not to do so. So it’s not hard to see someone like Tipton latching onto Kavanaugh’s “wholly abandoned” language to seize control of immigration policy once again.

Finally, Kavanaugh’s opinion also says that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” That language reads like it was tailor-made to allow legal challenges to DACA, a program that allows hundreds of thousands of undocumented immigrants to live and work in the United States, to move forward.

The Supreme Court, in other words, slow-walked its decision that Alejandro Mayorkas, and not Drew Tipton, is the nation’s chief immigration enforcement officer. And it did not close every possible gate that a rogue judge like Tipton might try to walk through in order to sabotage President Biden’s policies.

But the Texas decision is still an important victory both for the administration and for immigrants. And it suggests that even this very conservative Supreme Court won’t let the judiciary’s right-most fringe act without adult supervision.

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