Biden administration’s selective deportation policy that states say endangers communities is challenged in Supreme Court

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Two states challenging the Biden administration’s decision last year to focus its deportation efforts on individuals deemed to be a threat to public safety urged the Supreme Court during oral arguments on Nov. 29 not to restore the policy.

The states take the position that the federal government is illegally refusing to enforce the nation’s immigration laws by prioritizing only certain enforcement categories at the expense of others. They say that the federal Immigration and Nationality Act (INA) requires that specific criminal aliens, such as aggravated felons, have to be detained upon release from criminal custody pending a decision on whether to remove them from the country. The law also requires that aliens subject to final orders of removal must be detained pending their removal.

But instead of adhering to the INA’s mandates, the Biden administration said in a memorandum that it would embark on case-by-case determinations instead, which the states say leaves the door open for violent criminals to return to the nation’s streets.

“The law the Biden Administration is trying to ignore is crystal clear: certain illegal aliens that have committed crimes must be detained and cannot be allowed to roam freely in our communities,” said Texas Attorney General Ken Paxton, a Republican, in a statement released as oral arguments were getting underway in the high court.

“Keeping our citizens safe is one of the most fundamental duties of government, perhaps even the most fundamental. The Biden Administration has tried to ignore that duty, but we’re fighting every single day to remind them,” Paxton said.

In United States v. Texas, court file 22-58, Texas and Louisiana are suing the Biden administration over a policy announced in a Sept. 30, 2021, memorandum (pdf) by Homeland Security Secretary Alejandro Mayorkas that claims it is impossible to remove the estimated 11 million illegal aliens present in the United States. Mayorkas has been heavily criticized by Republicans for his allegedly lax approach to immigration enforcement. Some Republicans want to impeach him for dereliction of duty.

“We do not have the resources to apprehend and seek the removal of every one of these noncitizens. Therefore, we need to exercise our discretion and determine whom to prioritize for immigration enforcement action,” the memo states.

Instead, the document prioritizes the arrest and deportation of suspected terrorists, people who have committed crimes, and illegal aliens recently apprehended at the border.

The memo praises the “majority of undocumented noncitizens who could be subject to removal [even though they] have been contributing members of our communities for years.”

“They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways.”

The Mayorkas memo was blocked this summer by federal Judge Drew Tipton, who ruled that Texas had legal standing to pursue the case because it could show the state was harmed when illegal aliens who should have been detained by the federal government found their way to the state and committed crimes there.

The now-suspended policy is similar to one enforced by then-President Barack Obama but differs from the more aggressive policy pursued by then-President Donald Trump who tried to limit the role of discretion in the enforcement of immigration laws.

The Biden administration asked the Supreme Court to stay Tipton’s order, but on July 21 it refused to do so. Conservative Justice Amy Coney Barrett, along with the three liberal justices–Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—dissented, indicating they would have granted the stay.

U.S. Solicitor General Elizabeth Prelogar emphasized the difficulty of enforcing the INA during oral arguments before the justices on Nov. 29.

The U.S. Department of Homeland Security (DHS) had to adopt enforcement priorities because “there are more than 11 million removable non-citizens in this country, and DHS has about 6,000 interior enforcement officers,” Prelogar said.

And the argument that states have standing to challenge the memo is wrong, she said.

“They argue states can challenge any federal policy that imposes even one dollar of indirect harms on their own taxing or spending. That theory has no limiting principle. It’s incompatible with our constitutional structure, and it contradicts more than 200 years of history and tradition where states could not sue the United States on this basis.”

She said the federal courts should not be “transformed into open forums for each and every policy dispute between the states and the national government.”

Chief Justice John Roberts pushed back, telling Prelogar her position on standing seemed “inconsistent” with the government’s arguments in previous cases.

Prelogar said just because the INA uses the word “shall” in enforcement provisions, that doesn’t mean that the government loses the power to exercise discretion in the enforcement process.

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

Roberts told Prelogar that the word “‘shall’ means ‘shall.’” Even if Congress has passed a law that is impossible for the executive branch to enforce, it is the court’s job “to say what the law is, not whether or not it can be possibly implemented or whether there are difficulties there.”

Texas Solicitor General Judd E. Stone II told the justices that states, which “bear many of the consequences of federal immigration decisions,” have standing in the case.

Moreover, the Mayorkas memo is “unlawful” because it treats an enforcement provision as discretionary even though this court “and every previous administration have acknowledged it as mandatory.”

The administration is wrong to plead limited resources and prosecutorial discretion, which are “beside the point,” Stone said.

Justice Kagan told Stone his argument would impose an “extraordinarily onerous obligation on DHS.”

But what happens if the government lacks enforcement resources, Justice Brett Kavanaugh asked Stone.

“I’m just trying to figure out how this will play out if you were to prevail. So the government says we don’t have the money to comply … then what do you do?” the justice said.

Stone replied that it was a “difficult hypothetical” to respond to.

This article by Matthew Vadum appeared Nov. 29, 2022, in The Epoch Times.