the conservative scotus are placing themselves at the top of the tree of governance
The conservative revolution at the US Supreme Court has two prongs. One grabs headlines as the justices overturn long-established precedent on big-ticket issues like abortion, affirmative action and voting rights. The second is a less-noticed yet enormously ambitious transformation the judiciary’s job. Put simply,The conservative revolution at the US Supreme Court has two prongs. One grabs headlines as the justices overturn long-established precedent on big-ticket issues like abortion, affirmative action and voting rights. The second is a less-noticed yet enormously ambitious transformation the judiciary’s job. Put simply, the justices are placing themselves at the top of the tree of governance, radically curtailing the expert administrative judgment long exercised by the executive branch.
The court’s revolutionary program for transforming how administrative agencies enforce the law was on full display last Tuesday in the oral argument for the term’s major immigration case, Texas v. Biden. The case raises three distinct yet related issues: the separation of powers; whether states have standing to sue the executive branch over enforcing federal law; and the ability of a single court to block policy nationwide.
Begin with the separation of powers. At issue in the case is whether and how the president, through the Department of Homeland Security, can set priorities for detaining and deporting undocumented immigrants. Back in September 2021, DHS Secretary Alejandro Mayorkas issued guidance on exactly that question in a memo that said the department should prioritize three categories: people suspected of terrorism, those convicted of crimes, and those recently apprehended trying to cross the border unlawfully.
Setting such priorities is normal. Consider that there are some 11 million undocumented immigrants in the US, that Congress has passed laws ordering that many different sorts of undocumented persons “shall” be detained and deported, and that Congress hasn’t allocated anything like sufficient resources to detain and deport all of them. Given the impossibility of achieving anything even slightly approaching what the letter of the law would seem to require, the head of DHS must direct staff to prioritize.
https://www.washingtonpost.com/business/the-supreme-courts-other-conservative-revolution/2022/12/04/c23214c6-73dc-11ed-a199-927b334b939f_story.html
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