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Biden immigration enforcement stumps high court
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Biden immigration enforcement stumps high court

A ruling in this case is poised to shape policy battles between states and the federal government. 

  • Biden instructed ICE officers to prioritize certain noncitizens for detainment and removal based on the threat they could pose to public safety.
    Paul Ingram/TucsonSentinel.comBiden instructed ICE officers to prioritize certain noncitizens for detainment and removal based on the threat they could pose to public safety.

The Supreme Court heard over two hours of arguments Tuesday but appeared no closer to deciding if the Biden administration had the authority to impose guidelines prioritizing public safety when it deports noncitizens. 

President Joe Biden’s immigration policies face almost innumerable challenges from red states. While the administration’s enforcement of deportation policies is at the center of this dispute, the case could prove to be a vehicle for how states can challenge presidents’ policy preferences. 

“States can go into court at the drop of a pin and stop federal policies in their tracks,” Justice Elena Kagan said. 

The Obama appointee questioned how states could be challenging what are supposed to be the “zenith of executive power." 

“Immigration policy is supposed to be the zenith of federal power, and it's supposed to be the zenith of executive power,” the Obama appointee said. “Instead we're creating a system where a combination of states and courts can bring immigration policy to a dead halt.”

On the other side of the aisle, Justice Samuel Alito said the government was showing hostility toward states in its effort to halt challenges against its policies. Chief Justice John Roberts noted that the government theory could leave states without a remedy to address harm. 

The challenged guidelines emerged in response to a problem long expressed by the Department of Homeland Security: There are over 11 million noncitizens in the country but only about 6,000 agents working for Immigrations and Customs Enforcement. 

Biden instructed ICE officers to prioritize certain noncitizens for detainment and removal based on the threat they could pose to public safety. Homeland Security Secretary Alejandro Mayorkas laid out specific groups for agents to target and provided ICE officers with a framework for determining if a noncitizen should be prioritized. These guidelines do not require officers to take specific action but instead gave them prosecutorial discretion. 

As Texas and Louisiana see it, however, the guidance to ICE officers violates congressional mandate. Congress has ordered the Department of Homeland Security to detain noncitizens convicted of certain crimes and remove noncitizens within 90 days after a final order of removal.

The states brought a suit and effectively halted the administration’s guidance before the final memorandum was even issued. A Trump-appointed judge ordered Homeland Security to stop enforcing the guidelines in August 2021, and the Fifth Circuit affirmed in an en banc sitting. 

Once issued, the final memorandum underwent a trial at district court where the Biden administration faced another defeat. The Fifth Circuit and the Supreme Court refused to block the ruling, but the agency’s challenge did secure the Biden administration a spot on the court’s current docket. 

U.S. Solicitor General Elizabeth Prelogar told the justices that it would be impossible for the government to carry out immigration policy as the states have requested.

"Across 25 years and five presidential administrations, the agency has never implemented the INA in the manner that Respondents suggest," Prelogar said. "Given congressional funding choices, it would be impossible for DHS to do so."

While a number of justices appeared receptive to these arguments, Roberts also pondered if it was the court’s job to decide the case based on the realities on the ground instead of just focusing on the legal principles presented in the case. Roberts pondered if it was the court’s job to decide the case based on the realities on the ground instead of just focusing on the legal principles presented in the case.

“It's our job to say what the law is not whether or not it can be possibly implemented or whether there are difficulties there,” the Bush appointee said. “I don't think we should change that responsibility just because Congress and the executive can't agree on something that's possible to address this problem.” 

Texas Solicitor General Judd Stone II told the court that the government was trying to rewrite the law, and that states who are most affected by immigration should be able to sue to stop them. 

“As this Court has recognized before, the states bear many of the consequences of federal immigration decisions,” Stone said. 

A majority of arguments Tuesday were spent debating if the states should even be able to bring a challenge to the government’s authority. Prelogar argued that the states could not prove they had been harmed by the guidelines and urged the justices to create a ruling limiting courts’ role in settling policy debates. 

“Federal courts should not now be transformed into open forums for each and every policy dispute between the states and the national government,” Prelogar said. 

Prelogar appeared to anger some of the justices, however, when questioning the lower court’s vacatur of the guidelines. 

“The lower courts, including the D.C. Circuit, have in our view been getting this one wrong,” Prelogar said. “They have reflexively assumed that vacatur is authorized under Section 706 of the APA.” 

Veterans of the D.C. Circuit on the court took offense to these arguments. "Wow," Roberts said in reaction. Justice Brett Kavanaugh called Prelogar’s argument a “radical rewrite” of standard administrative law practice. 

In response to all the former D.C. Circuit judges addressing Prelogar’s remarks, Kagan brought some levity to the heavy criticism. “Seems to be a kind of D.C. Circuit cartel,” she remarked.

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