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Reviews |  States’ rights are about to come back with a vengeance

In 2021, Texas and Louisiana filed suit to block the guidelines, arguing that they allow immigrants with criminal records to remain free while their cases progress, imposing burdens on state public systems and services. A federal district judge in Texas issued an injunction barring the use of the guidelines nationwide, which an appeals court upheld. In June, the Supreme Court, by a vote of 5 to 4, refused to lift the stay, even temporarily.

The case is a breathtaking blow to the authority of presidents to enforce federal immigration law. The President, through his Secretary of Homeland Security, effectively selects and chooses the best way to enforce the Immigration and Nationality Act (INA). While Trump has moved to halt and expedite deportations of any noncitizens in the country without permission, President Joe Biden and his DHS Secretary Alejandro Mayorkas have chosen a less draconian approach that is more closely aligned with that of the Trump’s predecessor, Barack Obama.

Certainly, in the execution of the law, the presidents must always respect the terms of the statute. The states argue that Congress imposed detentions at all levels in the INA, and the federal government disagrees. But what is surprising in this affair is not the debate on the content of the guidelines. It’s the fact that the States – not an individual subject to deportation – are the plaintiffs here, and so far they have been successful.

Naturally, the feds argue that states don’t have to sue the Biden administration to force it to execute federal law in a way that pleases the states, because they don’t have standing to sue under the Article III of the Constitution (which limits the authority of the federal courts to hear live cases and not political grievances). The only “harm” alleged by the states is that more non-nationals within their borders increase the costs of law enforcement and social services. At a glance Dobbsthe federal government responds that federal policies still impact states, and there is nothing special in this case:

Federal policies regularly have side effects on state spending, revenue, and other activities. However, these effects have never been considered as injuries that can be recognized by the courts. As the recent burst of state lawsuits vividly illustrates, respondents’ view to the contrary would allow any state to sue the federal government over virtually any policy – strongly undermining the requirements of Article III and the principles of separation of powers which they serve…

Here, states are neither subject nor threatened by the application of immigration laws. They cannot challenge federal government policies regarding the enforcement of these laws against third parties.

If the Court decides the question of standing in favor of the states, it would be an open invitation for the states to go to federal court to usurp presidential discretion to apply not only immigration policy – but any exercise of presidential power having a financial impact on a State. The implications for the ability of presidents to function in the face of sharp partisan disagreements from states controlled by politicians of the opposing political party are staggering.

The second case, Brackeen vs. Haalandwas also brought from Texas jointly with a married couple against the Biden administration, but this time the potential loser in the power struggle between the state and the federal government is Congress. Its implications for the respective powers of government are equally staggering: Texas is seeking to declare unconstitutional a 43-year-old federal law known as the Indian Child Welfare Act (ICWA).

In the mid 20’se In the past century alone, nearly one-third of Aboriginal children have been forcibly removed from their families and placed in foster, adoptive or residential schools by the federal government. Congress passed the ICWA in a redress effort to keep Indian children in Native families whenever possible, thereby promoting tribal integrity and stability. The law therefore establishes standards for child protection procedures that promote the placement of Indigenous children with other family members, members of the parents’ tribal nation, or another Indigenous family.

The dispute arose when the Brackeen family, a white evangelical couple who successfully fostered and adopted a Navajo child under ICWA, sought to adopt another child – a younger sister – but were reportedly stymied by ICWA. . Along with Texas, the Brackeens have sued the federal government, arguing that the law is an unconstitutional bar to their family’s plans because it draws racial distinctions “by categorizing children based on genetics and ancestry and adoptive parents potentials according to their race”, in violation of the 14e Amendment equal protection clause.

The federal government responds that the ICWA does not violate equal protection because the Supreme Court has long held that classifications based on tribal affiliation are Politics accolades, no racial those. “As long as special treatment can be rationally tied to fulfillment of Congress’s unique obligation to Indians,” the court insisted, those distinctions “will not be disrupted.” The federal defendants again argue that Texas lacks standing to sue because it suffered no actual harm, merely asserting an interest as a protector of its citizens — an offer that would keep states guessing before the courts. courts virtually anything the federal government does that affects people living in a state.

If the Court rules that ICWA’s preference for adoption by family and tribal community members of a child is a classification based on race rather than political affiliation, the decision could result in the cancellation of a multitude of laws, including tribal rights to land and water. and broader tribal sovereignty. It could also have future implications for Congress’ broader powers under the Commerce Clause, which underlies large swaths of federal legislation, including the ICWA.

In June this year, the Supreme Court ruled for the first time in its history that the states had concurrent jurisdiction with the federal government to prosecute crimes in Indian Territory, dealing a severe blow to tribal sovereignty. Justice Brett Kavanaugh’s 5–4 opinion, joined by Justices Samuel Alito, Clarence Thomas, John Roberts and Amy Coney Barrett, set aside nearly 200 years of precedent and practice. In his scathing dissent, Judge Neil Gorsuch wrote, “Tribes are not private organizations within state boundaries. Their reservations do not glorify private campsites. The tribes are sovereign.

It turns out that the US federal government is also sovereign. What the right-wing majority does with its relative powers vis-à-vis the states could be the jaw-dropping news of this Supreme Court term.


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