By Emily Creighton | Slate.com | NOV. 30, 2022 | Photo by John Moore
Does the executive branch have the right to focus its limited resources to enforce immigration laws against people it believes most deserve deportation, or must it carry out an inflexible mandate to arrest large numbers of immigrants?
In oral arguments at the Supreme Court in U.S. v. Texas on Tuesday, Texas and Louisiana continued their challenge to the federal government’s ability to decide which immigrants are apprehended and removed. Although the case is different from some of the callous state-level antics that have gotten media attention recently—such as the removal of migrants from the state of Texas to Martha’s Vineyard with false promises of employment and cash assistance—it is another reminder that Republican-led states want to play the heavy in the larger immigration policy debate.
The justices offered a heated debate about the power of the federal government to decide its own immigration enforcement priorities without tipping their hand about the outcome. The question for immigrants—many of whom have lived in the United States for years and whom the Biden administration would not otherwise seek to remove—is where the court will come down: in support of an immigration system that offers some grace and flexibility in how it enforces its laws, or in support of what the federal government describes as “unyielding mandates” to apprehend and remove a broad set of unauthorized immigrants who pose no danger to anybody.
The enforcement guidance challenged in the case prioritizes the apprehension and removal of immigrants who pose a threat to national security, public safety, and border security. They add common sense and basic decency within the limits of our current system, directing immigration officials to exercise discretion when, for example, a person has a mental condition, is a provider or caregiver, is a victim of a crime, or is eligible for humanitarian protection. They also instruct DHS officers to consider each case individually, weighing the positive and negative equities of an individual’s case before carrying out an arrest. Texas and Louisiana characterize the guidance as an abdication of the federal government’s mandate to enforce certain immigration laws, while the federal government describes the guidance as a necessary tool to carry out the administration’s priorities for enforcement. Underlying the case is a core reality about immigration enforcement—Congress has never given ICE anywhere close the resources needed to arrest every noncitizen subject to immigration enforcement. (Disclosure: My organization, the American Immigration Council, signed onto an amicus brief in support of petitioners.)
The states’ position has racist and xenophobic underpinnings.
The court grappled with three issues during argument: First, the states’ “standing” to bring the case against the U.S. Department of Homeland Security (DHS) in the first place; second, whether DHS’ enforcement priorities violate immigration law; and third, whether a federal court can decide the priorities are unlawful and vacate them nationwide.
The states’ position on standing is rooted in the idea that the mere presence of a noncitizen who might otherwise have been deported harms the states. The states argue that noncitizens impose costs related to education, health care, and criminal detention. As numerous organizations have pointed out, this position has problematic racist and xenophobic underpinnings. In addition, the district court’s fact-finding below doesn’t support the states’ position. The district court reviewed data from fiscal year 2021 to show costs incurred by the states—a period before the enforcement guidelines were in effect. The court also failed to show that fewer criminal noncitizens were in custody or that fewer removals occurred when the enforcement priorities were in effect. Data introduced by immigrant rights groups also tells a very different story about the benefits of immigrants to the states, demonstrating that immigrants in Texas and Louisiana have paid billions of dollars in state taxes and make up a significant portion of the labor force.
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson seemed to think that states should not be permitted to bring suits that allege this type of attenuated harm and where the states have not properly weighed the benefits of the federal government’s immigration policies against the cost to the states. Sotomayor also drove home the point that “suppressing enforcement authority” isn’t the same as proving the federal authorities have “reduced enforcement overall.” The government might be exercising enforcement authority against one person instead of another—an immigrant with multiple convictions rather than one with a clean record, for instance—but that doesn’t mean fewer enforcement actions are happening overall.
If the states’ standing arguments prevail, a floodgate of cases against the federal government may result—in the realm of immigration policy and beyond. Kagan highlighted the particular irony of this possibility in the immigration context. “Immigration policy is supposed to the be the zenith of federal power and it’s supposed to be the zenith of executive power,” she said. Instead, “we’re creating a system where a combination of states and courts can bring immigration policy to a dead halt.”
The states’ wildly impractical position is that DHS officials must find, arrest, and remove a huge number of immigrants, far more than Congress has allocated the resources to detain and deport. This impossible demand dominated much of the discussion of the merits. The states argue that statutory language stating that DHS “shall take into custody” certain criminal noncitizens and “shall detain” certain noncitizens with final orders of removal requires DHS to apprehend and detain everyone in those groups. If it doesn’t, the states argue, Congress intended courts to step in and force DHS to comply, even when compliance is unfeasible. Chief Justice John Roberts and Justice Samuel Alito seemed open to enforcing provisions with the term “shall” and leaving it to DHS to find a way to enforce the laws. But Justice Brett Kavanaugh seemed troubled by the impossibility of the task and Congress’ refusal to allocate sufficient resources to complete it.
There was agreement among the liberal justices that “shall” does not require mandatory, judicially enforceable action in every instance it appears in the statute. Sotomayor and Kagan hammered the Texas solicitor general on this point, incredulous at the states’ interpretation that the law would require immigration authorities to seek out and apprehend so many individuals. As Kagan pointed out, it is an “extraordinarily onerous obligation on DHS to go around finding … everybody who has had orders of removal put in where they don’t have the faintest idea where they are … talk[] about distorting the agency’s priority.”
Addressing the district court’s ability to vacate enforcement priorities nationwide, Roberts took issue with the government’s argument that the lower court didn’t have the authority to vacate the enforcement priorities under the Administrative Procedure Act (APA). He pointed out that courts frequently vacate agency actions under the APA—sometimes “five times before breakfast”—and that this would be a “radical” change. Apart from Justice Neil Gorsuch, the justices only lightly discussed the government’s position that a 1996 law would preclude the district court from vacating the enforcement priorities.
If the court rules in the federal government’s favor with respect to standing or whether the 1996 law bars vacating the enforcement priorities, it may mean a victory for the federal government without a decision on whether the enforcement priorities are lawful.
Our immigration enforcement system simply would not work if immigration officials didn’t have flexibility to take critical factors—criminal records, humanitarian interests, and so on—into consideration when deciding whom to detain and deport. The respondent states’ position wouldn’t leave room for a more human approach to enforcement. Former immigration officials acknowledged the importance of the priorities to a functional immigration system in an amicus brief to the court, explaining that “for decades administrations of both parties have used their enforcement discretion to meet the unique and variable challenges that arise in the immigration context.”
The federal government has both the power and the responsibility to establish fair and humane immigration policies. The time-honored principle of prosecutorial discretion—which is baked into the president’s constitutional authority—gives him the ability to make discretionary calculations about how to enforce immigration laws against individuals. State attorneys general should not be allowed to collude with federal judges to strip this power from the president. In U.S. v. Texas, the Supreme Court should make a decisive determination that states may no longer take destabilizing and aggressive steps to upend our government’s enforcement priorities.
