The US Supreme Court is struggling over Biden’s immigration policy

The US Supreme Court on Tuesday heard arguments about whether the Biden administration has the right to decide which undocumented federal agents should be prioritized for deportation.

During the two-hour argument, the court’s conservative judges expressed skepticism about the Biden administration’s efforts to prioritize undocumented immigrants convicted of crimes, rather than ordering agents to deport all undocumented immigrants — which is the Trump administration’s policy was.

The federal government has argued that it does not have the resources to deport the country’s estimated 11 million undocumented immigrants. Texas, which is suing the Biden administration and has so far successfully blocked its policies, argued that federal immigration law requires the government to deport any undocumented immigrant.

Chief Justice John Roberts said if Congress has already passed legislation stating that the federal government should deport any immigrant convicted of a crime who is ordered to be deported, it is the court’s job to uphold that interpretation .

“If Congress has passed a law that the Executive Branch cannot comply with, our job is to say what the law is, not whether it can possibly be implemented or whether there is a difficulty there,” Roberts said. “I don’t think we should change that responsibility just because Congress and the Executive Branch can’t agree on something if it’s possible to address this issue. I don’t think we should let her off the hook.”

The case, Texas vs Bidenreached the Supreme Court after Texas and Louisiana sued the Biden administration in April 2021 for changing immigration enforcement priorities after Homeland Security Secretary Alejandro Mayorkas issued a memorandum directing immigration agents to identify undocumented immigrants targeting those convicted of crimes or posing a risk to public safety.

States argued that Mayorkas’ memo was illegal, and US District Judge Drew Tipton, a Corpus Christi appointee for former President Donald Trump, ruled in favor of the states last year.

Courts take the lead as US immigration policy remains in limbo

During the Obama administration, which issued similar guidelines for immigration officials, the priority guidelines were necessary because, according to a 2014 U.S. Department of Justice memo, Congress only provided enough money for immigration and customs enforcement to deal with about 400,000 undocumented immigrants deport per year. Mayorkas’ memo says Congress still hasn’t allocated enough money to target every undocumented immigrant in the country.

At the Supreme Court hearing on Tuesday, states argued that the federal government is selectively enforcing immigration law and that states face costs in detention, education and health care because some undocumented immigrants are not deported.

Judd E. Stone II, attorney general for the Texas State Attorney’s Office, told judges that under US immigration law, the federal government must deport any undocumented immigrant who has been ordered to be deported, and it cannot ignore that because of a lack of resources.

“The final memorandum is unlawful for a number of reasons,” Stone said, primarily because it treats a section of the immigration law “as discretionary,” Stone said, “despite this court and every previous government recognizing that it is mandatory.”

Justice Department Attorney General Elizabeth B. Prelogar argued that the federal government does not stop enforcing immigration laws but instead uses its resources efficiently.

“It’s not about reducing enforcement of immigration laws. It’s about prioritizing limited resources, for example to go after person A instead of person B, and there’s no reason to conclude that this will actually lead to fewer enforcement actions against individuals overall,” she said.

The liberal justices, who are in the minority in the court, appeared to dismiss Texas’ arguments, saying the federal government oversees immigration enforcement and can determine how best to use its resources to arrest and deport immigrants.

Judge Elena Kagan said Texas strategically submitted its case to a court where the judge had previously ruled in favor of the state.

“In Texas, there are divisions within the counties, you can choose your judge at the trial. You play by the rules, that’s fine. But you choose your trial court judge, a judge stopping a federal immigration policy because you have some kind of speculative argument that your budget will be affected,” Kagan said.


A decision in the case is expected before June.

Since the inauguration of President Joe Biden in January 2021, Texas has waged the fight to challenge its administration’s efforts on immigration. Of the 20 lawsuits the state has filed against the government in Texas federal courts, nearly half are against Biden’s immigration policies — and all but two of those immigration lawsuits have been filed before Trump-appointed judges.

Stephen Vladeck, a law professor at the University of Texas, filed an amicus brief in the case heard by the Supreme Court on Tuesday, arguing that Texas strategically filed lawsuits in federal courts with judges the state believes that they will decide in his favour.

This is more than forum shopping. It’s a thinly veiled judge’s purchase. Each of the 20 cases was filed in a division that assigns all or virtually all cases to judges appointed during the Republican presidency.

– Professor Stephen Vladeck, University of Texas

Earlier this year, the Supreme Court ruled that the Biden administration had the right to end a Trump-era immigration policy known as Migrant Protection Protocols, which forces asylum seekers to wait in Mexico while their cases go through U.S. immigration courts walk. That decision also stemmed from a Texas lawsuit filed in the courtroom of District Judge Matthew J. Kacsmaryk in Amarillo.

In March, Texas Attorney General Ken Paxton’s office denied it was a judge’s buyout.

“That [attorney general’s] Office has an exceptionally high win rate,” a spokesman said at the time. “This is a testament not only to the quality of General Paxton’s legal team and legal process, but also to the blatant illegality of this administration; If they are pushed into court, they lose.”

Disclosure: The University of Texas at Austin was a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization funded in part by donations from members, foundations, and corporate sponsors. Financial backers play no part in the Tribune’s journalism. A complete list can be found here.