Supreme Court conflicted over Biden deportation policy

The justices heard more than two hours of arguments in U.S. v. Texas.

November 29, 2022, 4:20 PM

The U.S. Supreme Court on Tuesday wrestled for more than two hours with a perennial Washington pickle: how to square immigration enforcement mandates in federal law with Congress' failure to provide sufficient funding to do the job.

The justices also took on whether states like Texas and Louisiana, suffering alleged harm from illegal immigration, can sue the government to force it to crack down.

There appeared to be no clear answers to the politically charged questions.

"'Shall' means 'shall,'" Chief Justice John Roberts suggested of federal law instructing the Department of Homeland Security to "take into custody" unlawful immigrants convicted of certain crimes.

But Roberts went on to observe "it's impossible" for the executive branch to detain and deport all 11 million immigrants eligible for removal from the U.S. "Certainly, there are cases where we've said 'shall' means 'may,'" he added. (The government has only 6,000 interior immigration enforcement officers, according to DHS.)

A migrant boy attempts to catch raindrops, backlit by a border patrol agent's headlamp, as he and his family await to be registered after being smuggled across the Rio Grande river from Mexico into Roma, Texas, Nov. 18, 2022.
Adrees Latif/Reuters

At the heart of the case are Department of Homeland Security guidelines established by the Biden administration in 2021 to prioritize arrest and deportation of unlawful immigrants deemed a danger to national security or public safety over those who are otherwise non-criminals.

The administration argues it has broad discretion in how it detains and deports immigrants -- consistent with an approach long taken by governments of both parties.

"It's about prioritizing limited resources to say go after person A instead of person B," argued Solicitor General Elizabeth Prelogar. "There is no reason to conclude that that's actually going to lead to less enforcement against individuals overall."

Texas and Louisiana, which are challenging the guidelines, allege the White House approach to deportations is an abuse of discretion that has imposed costs on state taxpayers.

"States bear many of the consequences of federal immigration decisions," said Texas Solicitor General Judd Stone. He claims up to 80,000 "criminal aliens" are living in Texas.

"We either pay the costs through detention or through recidivism," Stone said.

PHOTO: Texas Solicitor General Judd Stone talks to reporters along with Texas Attorney General Ken Paxton, right, and Missouri Attorney General Eric Schmitt, left, in front of the U.S. Supreme Court, April 26, 2022, in Washington, D.C.
Texas Solicitor General Judd Stone talks to reporters along with Texas Attorney General Ken Paxton, right, and Missouri Attorney General Eric Schmitt, left, in front of the U.S. Supreme Court after arguments in their case about Title 42 on April 26, 2022, in Washington, D.C.
Chip Somodevilla/Getty Images, FILE

A federal district court vacated the guidelines nationwide last year, and they are not currently in effect. The Biden administration is asking the Supreme Court to reinstate them.

Several conservative justices were highly skeptical that the guidelines were compliant with federal law.

"We have one set of priorities established by Congress and another set by the executive branch. Isn't that correct?" Justice Samuel Alito asked of Prelogar.

"No, that's wrong," she replied, "because the guidelines govern only decisions about apprehension and removal, whether to charge a non-citizen in the first place."

Justice Brett Kavanaugh suggested the government's abuse of immigration enforcement discretion has forced some in Congress to consider "dramatic steps" to compensate.

"What are the tools Congress has to make sure its laws are enforced in the U.S.?" Kavanaugh asked Prelogar. "I think your position is, instead of judicial review, Congress has to resort to shutting down the government or impeachment or dramatic steps if it -- if some administration comes in and says we're not going to enforce laws."

The court's three liberal justices were more deferential to the administration.

"Immigration policy is supposed to be the zenith of executive power," Justice Elena Kagan told Stone. "We're just going to be in a situation where every administration is confronted by suits, by states that can bring a policy to a dead halt by just showing a dollar's worth of costs?"

"It's just not enough [to do that] with a set of speculative possibilities about your costs," she said.

Asylum-seeking migrants emerge after crossing the Rio Bravo river to turn themselves in to U.S Border Patrol agents to request asylum in El Paso, Texas, Nov. 22, 2022.
Jose Luis Gonzalez/Reuters

Justice Ketanji Brown Jackson said she was "troubled" by the practical impact of forcing DHS to detain unlawful immigrants before a decision has been made on deportation. "You can't just indefinitely hold people," she said, noting the months-to-years-long backlog in cases.

The justices spent significant time grappling with two potential resolutions to the case that would not involve weighing in on the merits of the guidelines themselves.

One approach could be to decide that a lower court erred in vacating the guidelines since federal immigration law explicitly limits courts' ability to intervene. Another option could be to find that Texas and Louisiana don't have standing to bring the case or have not shown sufficient proof of being harmed.

"What will happen here if you prevail?" Kavanaugh asked the Texas Solicitor General Stone.

"Individual officers in ICE will go back to not believing that their enforcement discretion has been restrained," Stone replied.

The Biden administration had a starkly different answer: "It would be incredibly destabilizing on the ground," Prelogar insisted. "Bad for the executive branch, bad for the American public, and bad for Article 3 courts."

A decision is expected by the end of June 2023.