Justices on the Supreme Court appeared concerned Tuesday about the prospect of allowing states to sue the Biden administration over one of its immigration policies, and the Justice Department warned doing so could allow states to “sue the federal government about virtually any policy.”
The DOJ is seeking to overturn a Texas-based federal court opinion that blocked a policy that prioritizes deportations for undocumented immigrants who pose specific public safety threats. States that sued claim the policy doesn’t do enough to stop the record influx of immigrants at the U.S.-Mexico border, while the DOJ wants to focus on deporting people who pose legitimate threats.
On Tuesday, the high court was split in unconventional ways about the issues. Even Justice Brett Kavanaugh, who voted in a 5-4 order to block the policy temporarily in July, expressed reservations about ruling against the administration.
SUPREME COURT TO HAVE FINAL SAY OVER BIDEN’S DEPORTATION POLICY CHALLENGED BY TEXAS
“I’m just trying to figure out how this will play out if you were to prevail,” Kavanaugh, one of six Republican appointees to the high court, told an attorney arguing on behalf of the states that sued. “So the government says, ‘We don’t have the money to comply.’ Then, what do you do?”
Among the questions justices must consider is whether Texas and Louisiana had the legal standing to bring a challenge and, if they did, whether the immigration policies are unlawful. The high court must also consider whether the Texas judge had the authority to block the policy even if it is unlawful.
Texas and Louisiana say the presence of additional noncitizens in their states creates an injury by requiring them to bear the brunt of the costs of keeping noncitizens in prison or by providing them with public benefits.
However, U.S. Solicitor General Elizabeth Prelogar sought to convince the high court to rule against the states by appealing to precedent and warning about how a favorable ruling for the states could entail troubles for future administrations.
“As the recent explosion in state suits vividly illustrates, respondents’ contrary view would allow any state to sue the federal government about virtually any policy.”
Justice Elena Kagan, a Democratic appointee, nudged Prelogar’s argument forward Tuesday with insight as to how immigration policy has been historically implemented. She argued it would be “extraordinarily onerous” to require the government to apprehend all immigrants in the country illegally, adding that immigration is an area the judiciary branch has historically viewed as being at “the zenith of executive power.”
The Homeland Security Department, in a September 2021 memo laying out the policy, told U.S. Immigration and Customs Enforcement to focus deportation efforts on persons who “pose a threat to national security, public safety, and border security.”
“It is estimated that there are more than 11 million undocumented or otherwise removable noncitizens in the United States,” Homeland Security Secretary Alejandro Mayorkas said in the memo, to which the DOJ argues the administration does not have the funding to address every individual undocumented immigrant in the nation.
Chief Justice John Roberts, an appointee of President George W. Bush, asked if Congress requires the executive branch to do something even if it cannot be accomplished. “Should we still fulfill our responsibility to say what the law is?”
“Now, it’s our job to say what the law is, not whether or not it can possibly be implemented or whether there are difficulties there,” Roberts said, appearing to narrow the court’s interest to the confines of the law.
During a case heard last term over Biden’s efforts to end former President Donald Trump’s “Remain in Mexico” policy, Kavanaugh ruled in lockstep with Roberts, along with the court’s three liberal justices, to grant a favorable ruling to Biden.
However, Roberts and Kavanaugh made no secret about the administration’s assertion that federal judges lack the authority to block the Biden policy nationwide. At one point, Kavanaugh said the government’s arguments were “astonishing,” and the pair also described them as “radical.”
But the chief justice and Kavanaugh later questioned the Texas solicitor general about the federal government’s concerns about being able to enforce a wider scope of deportations, not just on people that pose threats.
“So, nothing changes … if they say: ‘We don’t have the money to comply with the court’s order’?” Kavanaugh asked.
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A ruling in the case is not expected for months, but justices have a number of options they can decide on when they rule over the case. They could choose to toss out the entire lawsuit or rule the Texas federal court had no authority to vacate the policy nationwide.
Additionally, the court could defer to federal law and say there is a zero-tolerance approach to deporting noncitizens.
