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Justices seem conflicted in immigration enforcement case

Texas sued over a Biden administration policy that prioritizes only some undocumented immigrants for deportation

U.S. Immigration and Customs Enforcement agents gather in a parking lot in Alexandria, Va., on Oct. 4 before a predawn raid. (Tom Brenner for The Washington Post)
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The Supreme Court appeared conflicted Tuesday in a contentious dispute about whether the Biden administration’s immigration policy priorities conflict with Congress’s instructions in federal law.

At issue is a Department of Homeland Security policy that says immigration officers should focus on arresting recent border crossers and immigrants who pose a threat to public safety, rather than the millions of other noncitizens who have lived here for years. The policy was a departure from the Trump administration, which encouraged arrests of all undocumented immigrants, at a time when border apprehensions are at a record high and Congress has not designated the resources to arrest all of the estimated 11 million immigrants deemed “removable.”

The Biden administration guidelines were challenged by a number of Republican-led states — Texas and Louisiana brought the case at the Supreme Court — and halted nationwide by a district judge in Texas, who said they violated federal law.

U.S. Solicitor General Elizabeth B. Prelogar told the justices that ruling was untenable and at odds with past deference to how the executive branch carries out its duties under the Immigration and Nationality Act.

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

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In September 2021, Homeland Security Secretary Alejandro Mayorkas directed U.S. Immigration and Customs Enforcement officers to prioritize the detention of recent border crossers and immigrants who pose a threat to national security, through terrorism or espionage, or who were designated as egregious threats to public safety. The Trump administration had a far broader policy that allowed removal of those in the country illegally regardless of criminal history or how long they had lived in the community.

Prelogar and several liberal justices noted Tuesday that the guidelines were just that, giving the nation’s 6,000 ICE agents discretion to decide which unlawful immigrants posed the most pressing threats.

But Texas and other Republican-led states said the guidance violated specific commands from Congress. One provision of federal law says DHS “shall take into custody” noncitizens convicted of certain crimes when they are released from criminal custody. Another says DHS “shall remove” a noncitizen within 90 days after a final deportation order.

Prelogar said courts have always taken notice of the limited resources Congress has provided for such removals and allowed the executive branch prosecutorial discretion.

But Chief Justice John G. Roberts Jr. wondered what the court should do if it decides “shall means shall.”

“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,” Roberts said. “And I don’t think we should change that responsibility just because Congress and the executive can’t agree on something . . . I don’t think we should let them off the hook.”

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Roberts may have been playing devil’s advocate. In questioning Texas Solicitor General Judd E. Stone II, he called Prelogar’s practicality argument “compelling” and wondered what Stone thinks the government should do if Texas prevails in the case.

“It’s impossible for the executive to do what you want him to do, right?” Roberts asked.

When Stone said his interpretation of the law would require between 60,000 and 80,000 more arrests, Roberts asked: “Are there 60,000 to 80,000 empty beds?”

ICE has 34,000 detention beds and, as of June, more than 4 million undocumented immigrants in its caseload, including 327,000 people with criminal histories.

Justice Brett M. Kavanaugh also wondered whether anything would change should Texas prevail. “There are never enough resources — or almost never enough resources — to detain every person who should be detained, arrest every person who should be arrested, prosecute every person who has violated the law,” Kavanaugh told Stone.

Prelogar argued that the case should be thrown out, saying Texas and other states don’t have legal standing to challenge the administration’s policy decisions, and federal judges in lower courts don’t have the authority to vacate DHS rules. Either point could provide a way to dispose of the case without deciding on the merits. Both proved controversial with the justices.

Justice Samuel A. Alito Jr. said Texas was contending it will lose money for law enforcement and education if the guidelines result in more unlawful immigrants staying in the country, and showing such damages would allow individuals to sue. In the past, he said, the Supreme Court has recognized a “special solicitude” for states to bring suits.

What Prelogar was proposing, Alito said, was “a rule of special hostility to state standing.”

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But Justice Elena Kagan said the court is increasingly confronted with cases in which states that dislike an administration’s policy go to court and find a friendly judge to stop them. It is particularly egregious when the subject is immigration, she said.

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

She continued: “One judge stops a federal immigration policy in its tracks because you have a kind-of, sort-of speculative argument that your budget is going to be affected.”

“Respectfully, Your Honor, it’s not speculative,” Stone replied.

Roberts called Prelogar’s idea that courts cannot vacate agency rules “fairly radical,” noting that the U.S. Court of Appeals for the D.C. Circuit, where he served previously, has a steady diet of challenges to agency actions. The solicitor general acknowledged the government has not pushed that interpretation of the law previously at the Supreme Court.

“Those of us who were on the D.C. Circuit, you know, five times before breakfast, that’s what you do in an APA case,” Roberts said, referring to the Administrative Procedure Act. Kavanaugh and Justices Clarence Thomas and Ketanji Brown Jackson also served on that appeals court.

It is unclear whether the justices will decide United States v. Texas on an expedited basis. They voted 5-4 this summer not to let the guidelines take effect while the government challenged the ruling by the district judge in Texas. Kagan, Jackson and Justices Sonia Sotomayor and Amy Coney Barrett were in the minority.

Maria Sacchetti contributed to this report.