FederalImmigration & BorderIssuesJudicialTexas Argues Against Biden’s Loosened Deportation Guidelines in U.S. Supreme Court

Austin, TX, November 30, 2022 — Justices on the U.S. Supreme Court heard oral arguments in the lawsuit between Texas and the U.S. government over the Biden administration’s deportation guidelines.

The familiar debate is over whether the federal government has the right to prioritize only certain illegal aliens for removal based on limited resources, or has an obligation under federal law to enforce immigration laws across the board.

In June, federal Judge Drew Tipton struck down the U.S. Department of Homeland Security’s (DHS) deportation rules that prioritize only certain cases for removal.

Much of the discussion in Tuesday’s oral argument concerned the interpretation of the word “shall” in the portions of federal law that govern immigration.

Chief Justice John Roberts seemed skeptical to accept the view that Congress has not given the DHS enough funding to pursue removal in all cases.

“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, and I don’t think we should change that responsibility just because Congress and the Executive can’t agree on something that’s possible to address this problem,” Roberts said.

U.S. Solicitor General Elizabeth Prelogar contended that the DHS should be allowed to employ the “background principles of enforcement discretion” when considering immigration cases.

Prelogar seemed to fear a rigid interpretation of the law that creates “unyielding mandates” for the federal government to pursue every illegal alien for removal.

“If the court did that, and the reason I’m turning to the practical implications here, is because in the meantime, while Congress and the Executive tried to figure out, it would absolutely scramble immigration enforcement efforts on the ground,” she said.

There was also debate over Prelogar’s contention that the Washington, D.C. Circuit Court of Appeals had been improperly using “universal vacatur” in administrative procedure cases for years. Some of the justices who served on the appeals court resisted her suggestion.

“You devote three pages in your brief to this complete change that all these judges have been doing for all these years, and the government comes up and acknowledges that in case after case after case with labor, energy, (and) environmental (cases) and I think it’s a big step,” Kavanaugh said.

“You’re saying they’re not paying attention to the text. Yeah, we did. ‘Set aside’ means ‘set aside.’ That’s always been understood to mean the rule’s no longer in place.”

Texas is seeking to reduce the expenses it is incurring as a result of historic levels of illegal immigration. There were 1.5 million encounters with illegal immigrants in Texas border patrol sectors during Fiscal Year 2022, according to U.S. Customs and Border Protection.

Texas Solicitor General Judd Stone argued that Texas has suffered financial losses from the federal government’s selective application of immigration laws.

Stone contended that the Biden administration cannot use prosecutorial discretion to pick and choose which illegal aliens to prioritize for removal based on national security and other such criteria.

Referring to a federal law directing the U.S. government to arrest and remove illegal immigrants, Stone pointed to the historical understanding of the statute.

“On the merits, the final memorandum is unlawful for multiple reasons, most clearly because it treats §1226(c) as discretionary, while both this court and every previous administration have acknowledged it as mandatory,” Stone said.

“Petitioners respond by appealing to resource constraints and their prosecutorial discretion, both of which are beside the point.”

While Justice Elena Kagan suggested that the cost to Texas is “speculative,” Stone pointed to one case in which the DHS removed the detainer paperwork from an illegal alien who was later arrested on suspicion of human trafficking.

There was also debate over whether Texas had standing to sue the federal government. Stone contended that there is a measurable cost of illegal immigration to the states, particularly Texas due to the fact that it shares most of the country’s southern border with Mexico.

Meanwhile, Prelogar expressed fear that with a loosened view of standing, states will simply find a U.S. district judge to strike down federal policies with which they disagree.

Much of the argumentation was similar to oral arguments in the controversy over the “Remain in Mexico” policy that the Supreme Court decided could be ended this year.

The Supreme Court could make a decision by the end of June 2023.