The Supreme Court heard arguments Tuesday over a challenge against the Biden administration’s discretion on removing illegal immigrants in a challenge brought by Republican attorneys general in Texas and Louisiana, which accuse the Department of Homeland Security of sidestepping federal immigration law.
The oral arguments come just four months after the high court temporarily blocked President Joe Biden‘s ability to prioritize certain illegal immigrants in the country for deportation at a time when a record number of undocumented immigrants are crossing the U.S.-Mexico border. The Justice Department is challenging a lower court order that invalidated the DHS policy.
Biden has been adamant about focusing its deportation policy on immigrants who pose a threat to national security or public safety. But its announcement in a September 2021 memo by DHS Secretary Alejandro Mayorkas marked a departure from former President Donald Trump‘s more stringent policies, prompting the pair of conservative-leaning states to sue against the strategy.
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Toward the beginning of the nearly two-hour argument period, justices and U.S. Solicitor General Elizabeth Prelogar deliberated on whether Congress meant verbatim the word “shall” in describing federal officials’ duties to detain broad groups of illegal immigrants under the Immigration and Nationality Act.
“Make no mistake, it is impossible for DHS to comply with each and every ‘shall’ in the INA as truly a judicially enforceable duty,” Prelogar told the justices, arguing the federal government “wouldn’t have the resources or ability to go after those individuals who are threats to public safety, national security, and border security.”
Chief Justice John Roberts, one of six Republican-appointed members, appeared swayed by the states’ arguments that federal law gives the president far fewer abilities to select its targets for enforcement. The states also argued that Biden’s policy forced them to spend more tax dollars to account for the influx of immigrants.
“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. “I don’t think we should change that responsibility just because Congress and the executive can’t agree on something.”
Justice Brett Kavanaugh, a Trump appointee, agreed with Roberts in describing the government’s view of adjusting its immigration policy as “radical.”
But Kavanaugh appeared divided from the conservative bloc in some unconventional ways. For example, he returned several times to a question about what a favorable ruling for the states would actually fulfill, given the Biden administration’s stated inability to enforce each requirement fully under immigration law.
And one of three Democratic-appointed justices, Elena Kagan, raised caution about setting a precedent where every administration can be blocked from setting immigration policy if states sue.
“We’re creating a system where a combination of states and courts can bring immigration policy to a dead halt,” Kagan said.
The Biden administration had faced an uphill battle in court after a federal judge ruled in June that its attempt to limit severely which illegal immigrants federal law enforcement may arrest and remove from the United States overstepped its congressional authority.
Judge Drew Tipton of the U.S. District Court for the Southern District of Texas had concluded that the Biden administration violated the law with its directive that limited whom U.S. Immigration and Customs Enforcement officers could target for arrest and removal.
“The Executive Branch may prioritize its resources. But it must do so within the bounds set by Congress,” Tipton, a Trump appointee based in Corpus Christi, Texas, said in his July 6 order. “Using the words ‘discretion’ and ‘prioritization,’ the Executive Branch claims the authority to suspend statutory mandates. The law does not sanction this approach.”
The DOJ turned to the 5th U.S. Circuit Court of Appeals, but the court rebuffed the administration’s request on July 6 to put Tipton’s order on hold.
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Soon after, a 5-4 high court decision declined Biden’s request, blocking him from implementing the policy. The justices agreed to hear oral arguments and pivoted the case off its emergency docket to move more cautiously into the merits of the legal question. Three liberal justices joined Trump-appointee Justice Amy Coney Barrett in saying they would have granted Biden’s request at the time.
A decision in the case is expected before the end of the 2023 term in June.
