A U.S. Customs and Border Protection (CBP) agent detains camouflaged Mexican migrants near the U.S.-Mexico border on Nov. 4, 2022, near Naco, Arizona. The U.S. Supreme Court heard arguments on Nov. 29 in a Texas lawsuit against a Biden administration policy ordering the CPB to prioritize felons for deportation. (Photo by John Moore/Getty Images)
During the two hours of arguments, the court’s conservative justices sounded skeptical of the Biden administration’s efforts to prioritize undocumented immigrants convicted of felonies rather than ordering agents to deport all undocumented immigrants — which was the Trump administration’s policy.
The federal government has argued it doesn’t have the resources to deport the country’s estimated 11 million undocumented immigrants. Texas, which sued the Biden administration and has so far been successful in blocking its policy, argued that under federal immigration law, the government has the duty to deport every undocumented immigrant.
Chief Justice John Roberts said that if Congress has already approved a law that says the federal government shall deport any immigrant that has been convicted of a crime and is ordered deported, the court’s job is to affirm that interpretation.
“If Congress has passed a law that it is impossible for the executive to comply with, 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 if it’s possible to address this problem. I don’t think we should let them off the hook.”
The case, Texas v. Biden, reached the Supreme Court after Texas and Louisiana sued the Biden administration in April 2021 for changing immigration enforcement priorities after Alejandro Mayorkas, secretary for the Department of Homeland Security, issued a memorandum instructing immigration agents to target undocumented immigrants who are convicted of felonies or pose a risk to public safety.
The states argued that Mayorkas’ memo was illegal, and U.S. District Judge Drew Tipton, an appointee of former President Donald Trump based in Corpus Christi, ruled in the states’ favor last year.
Inadequate funds for deportation
During the Obama administration, which issued similar guidance to immigration agents, the priority guidelines were necessary because Congress allocated only enough money for Immigration and Customs Enforcement to deport about 400,000 undocumented immigrants a year, according to a 2014 U.S. Department of Justice memo. Mayorkas’ memo said Congress still has not allocated enough money to target every undocumented immigrant in the country.
In Tuesday’s oral arguments before the Supreme Court, the states argued that the federal government is selectively enforcing immigration law and that because some undocumented immigrants are not being deported, the states are incurring costs for incarceration, education and health care.
Judd E. Stone II, solicitor general with the Texas attorney general’s office, told the justices that under U.S. immigration law, the federal government has to deport every undocumented immigrant who has been ordered deported, and it can’t ignore that because of a lack of resources.
“The final memorandum is unlawful for multiple reasons,” mainly because it treats a section of immigration law “as discretionary,” Stone said, “although this court and every previous administration have acknowledged it’s mandatory.”
Elizabeth B. Prelogar, solicitor general with the Department of Justice, argued that the federal government didn’t stop enforcing immigration law but instead is using its resources efficiently.
“This is not about reducing enforcement of immigration laws. It’s about prioritizing limited resources to, say, go after Person A instead of Person B, and there’s no reason to conclude that that’s actually going to lead to less enforcement against individuals overall,” she said.
The liberal justices, who are in the minority on the court, seemed dismissive of Texas’ arguments, saying that the federal government oversees immigration enforcement and can determine how to best use its resources to arrest and deport immigrants.
Justice Elena Kagan said Texas had strategically filed its case in a court in which the judge has previously ruled in the state’s favor.
“In Texas, there are divisions within districts, you can pick your trial court judge. You play by the rules, that’s fine. But you pick your trial court judge, 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,” Kagan said.
A ruling in the case is expected before June.
Since President Joe Biden was inaugurated in January 2021, Texas has led the fight in challenging his administration’s efforts on immigration. Of the 20 lawsuits the state has filed against the administration in Texas federal courts, nearly half target Biden’s immigration policies — and all but two of those immigration cases were filed in Trump-appointed judges’ courts.
Stephen Vladeck, a University of Texas law professor, filed an amicus brief in the case the Supreme Court heard Tuesday, arguing that Texas has been strategically filing lawsuits in federal courts with judges the state believes will rule in its favor.
“This is more than forum shopping, it is thinly veiled judge shopping,” Vladeck wrote. “Each of the 20 cases was filed in a division that assigns all or virtually all cases to judges appointed during Republican presidencies.”
Earlier this year, the Supreme Court ruled that the Biden administration had the right to end a Trump-era immigration policy known as the Migrant Protection Protocols, which forces asylum-seekers to wait in Mexico as their cases make their way through U.S. immigration courts. That ruling also stemmed from a Texas lawsuit, filed in District Judge Matthew J. Kacsmaryk’s courtroom in Amarillo.
“The [attorney general’s] office has an extraordinarily high win rate,” a spokesperson said at the time. “That’s a testament not only to the quality of General Paxton’s legal team and lawsuits, but also the flagrant illegality of this administration; when they’re pressed in court, they lose.”
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