Dissecting the SCOTUS Immigration Decisions

Mark Krikorian; Hans von Spakovsky; Andrew R. Arthur

By Mark Krikorian, Hans von Spakovsky, and Andrew R. Arthur on July 6, 2023

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Summary

This week’s episode of Parsing Immigration Policy examines two recent immigration-related Supreme Court opinions and delves into the implications of those rulings for immigration law enforcement, public safety, and the role of Congress in shaping immigration policy.

Andrew Arthur, the Center’s fellow in law and policy, and Hans von Spakovsky, senior legal fellow at the Heritage Foundation, start the discussion with an analysis of U.S. v. Texas. In Texas, the Court held that the states of Texas and Louisiana lacked standing to challenge the immigration-enforcement “guidelines”, issued by DHS Secretary Alejandro, that limit ICE officers ability to detain criminal aliens. Notably, the majority did not even review the district and circuit court findings that Mayorkas’ guidelines would mean more criminal aliens would be released onto the streets, imposing significant costs on the states.

Now that the justices have held that the states lack standing to challenge the Biden administration’s non-enforcement policies, will Congress use the weapons of inter-branch warfare – the power of the purse, impeachment, and legislation – to force the executive to comply with federal statutes mandating that aliens convicted of specific crimes be detained and deported?

In the second case, U.S. v. Hansen, the justices held that a provision of the Immigration and Nationality Act making it a crime to encourage or induce an alien to enter the United States illegally is not “overbroad” in that it prohibits free speech under the First Amendment. The defendant in that case had scammed aliens out of nearly $2 million by promising them he could obtain citizenship for them through “adult adoption”—a pathway to status that does not exist in the law. Hansen argued that the law was overly broad, but the Court disagreed.

The public and Congress are very divided on the issue of illegal immigration, so congressional action seems unlikely. But Arthur says, “the Texas v. U.S. case is a prime example of the Court being tired of being pulled into cases.” Yet in a final discussion on the prospects for a separate case captioned Texas v. U.S., in which the states allege that the Obama-era DACA program is illegal, both Arthur and von Spakovsky predict it will head to SCOTUS.

In the closing commentary, Mark Krikorian, the Center’s executive director and the host of Parsing Immigration Policy, highlights Florida’s tough new immigration law, which went into effect July 1 and focuses on making it more difficult for illegal aliens to work in the state – thus weakening one of the main drivers of illegal immigration.