Texas challenges Biden immigration policy at Supreme Court

AUSTIN (Nexstar) — The battle over immigration policy shifted Tuesday from the Texas border to the U.S. Supreme Court. On Tuesday, the court heard oral arguments in a case challenging how the Biden administration is enforcing immigration laws, arguing that the administration is wrongly limiting who can be deported.

Texas’ argument stems from new guidelines issued by Homeland Security Secretary Alejandro Mayorkas in 2021, which recommends that states should prioritize deporting terrorists, other dangerous criminals and those who have recently crossed the border illegally, rather than attempt to deport all people in the country illegally. The guidelines came about in part because of limited manpower and resources. 

Aaron Reichlin-Melnick, policy director at the American Immigration Council (AIC), says our immigration system is complicated and that that has effects on those who have already immigrated. 

“The reality is, we live in a world of limited resources, ICE is never going to be able to arrest every undocumented immigrant in the country,” Reichlin-Melnick said.

The AIC has indicated support for the administration’s policy.

“So for undocumented immigrants who are already in the country who are keeping their heads down, and who are contributing, paying taxes and generally have a generally following other laws, that Myorkas enforcement priorities gave them some sense of security,” Reichlin-Melnick said. “But in a world in which there are no enforcement priorities, that means much more arbitrary enforcement, ICE agents can pick and choose who they want to go after with no rhyme or reason or guidance from Washington, DC. And that’s just not a good way to run the system.” 

Lawyers representing Texas argue that the Biden administration’s enforcement of immigration law endangers the citizens of Texas. 

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Chance Weldon, director of litigation for the Texas Public Policy Foundation, a conservative policy group, supports the state’s case. 

“This is one of those cases that people follow because they think it’s about immigration,” Weldon said, “But really, it’s about who decides immigration policy, whether that’s the legislative branch or the executive branch, and ultimately, whether or not states like Texas have the right to get into court to challenge immigration policies that ultimately affect the state’s bottom line.”

University of Texas Law professor Stephen Vladeck filed an amicus brief in this case, questioning the state’s methods of advancing the case.

“Texas has abused the federal courts by intentionally, repeatedly, and solely filing its Texas-based lawsuits against the federal government in district court divisions staffed entirely, or almost entirely, by judges appointed during presidencies of the Texas Governor’s and Attorney General’s party. In many of these cases, Texas has had a 95% (or greater) chance of drawing a specific judge,” Vladeck’s brief stated. “Those courts have repeatedly issued nationwide injunctions against a growing array of actions and initiatives undertaken by the Biden administration.”

In response, Weldon said going to judges where litigators think they will have a favorable outcome is nothing new. 

“That’s been present in litigation since there’s been litigation, progressive states, like California filed in California when they wanted to sue the Trump administration in the state of Texas is going to file in Texas whenever it wants to sue the Biden administration,” Weldon said. “I mean, for one thing, because that’s where they’re injured. They’re injured in Texas because they are Texas. And yes, there are more conservative judges here, but…folks have been filing lawsuits in favorable jurisdictions since there’s been litigation.”

There has been a dispute about the language of the current law, which says illegal immigrants “shall” be taken into custody, and whether the federal government is overstepping its power.

“I think the broader issue here is that the administration has taken an interpretation of the law that’s contrary to the text, the statute that Congress passed,” Weldon said. “A very interesting part of the argument today that went on for five minutes where they’re going back and forth and saying, well, ‘does shall mean shall?’, and the Federal the federal attorney in the case was saying, ‘well, sometimes shall mean shall and sometimes shall means may. And I just don’t think that’s a reasonable way to look at the law.” 

“It’s our job to say what the law is, and I don’t think we should change that responsibility because Congress and the executive can’t agree on something that’s possible,” Chief Justice John Roberts said.

Reichlin-Melnick gave insight into why his group is opposed to the state’s lawsuit: 

“This case has implications beyond just immigration law. Not only would a decision in Texas’s favor lead to a significantly more arbitrary immigration enforcement system, it could also greenlight the ability of states to bring these kinds of lawsuits against the federal government in the first place. Texas is arguing that it has a right to go to court anytime any government policy leads to more immigrants in its state, regardless of whether those immigrants are people here legally or otherwise.” Reichlin-Melnick said. “Our system of checks and balances works best when people who are harmed by federal policies can go to a federal judge and get an order in their favor. But at the same time, we don’t want the courthouse doors to be so wide open, anyone can go into court anytime and overturn wide swaths of executive action. In this case, the Supreme Court is going to have to figure out how to strike a balance.” 

The SCOTUS decision is expected by late June 2023.

Texas finds funding to start tracking impact of substance abuse on foster children

As a former foster mother, Cameron Hernholm knows how traumatic it can be for a child when they are removed from their home and enter the Child Protective Services system.

It’s especially true in Texas, she said, where a shortage of beds at residential treatment facilities and in foster homes over the last few years left hundreds of children spending nights in state office buildings and hotel rooms, waiting for placement. Lawmakers, advocates and even a panel of national child welfare experts discussed solutions — including ways to prevent children from entering state custody in the first place.

“Children have much better outcomes if they are able to stay with their permanent and biological family, rather than entering the foster care system,” Hernholm explained.

She now serves as the chief philanthropy officer at Nexus Recovery Center in Dallas. They house mothers undergoing treatment for substance abuse and addiction with their children, in order to keep families together. They also offer resources for pregnant women in recovery.

“It is a very vulnerable place, and typically what we find is why a mother wouldn’t get treatment is because she doesn’t know what would happen to her children if she were to seek treatment,” Hernholm said. “Do I lose my kid? Or do I go and get treatment for an illness that I know I need help with?”

According to national data from the Adoption and Foster Care Analysis and Reporting System, Texas has one of the highest rates of children being removed from their homes due to alcohol or drug abuse by their parents. In 2019, more than 60% of cases in Texas indicated substance abuse as a condition of the child’s removal. The national average was under 40%.

Hernholm said her team at Nexus serves more than 2,000 mothers and children every year with its different programs. They started tracking how many removals have been stopped and how many children have been reunified with their families due to Nexus’ services, but she said it would be helpful to see this kind of data on a statewide level.

In 2013 and again in 2019, lawmakers directed the Texas Department of Family and Protective Services (DFPS) to collect specific data on the issue, including:

• The number of children reported to the department who at birth tested positive for the presence of alcohol or a controlled substance;
• The controlled substances for which the children tested positive;
• The number of children who were removed from their homes and have been diagnosed as having a disability or chronic medical condition resulting from the presence of alcohol or controlled substances; and,
• The number of parents who test positive for the presence of a controlled substance during a department investigation of a report of abuse or neglect of the parent’s child.

“The idea here is: let’s get tracking on it,” said Texas Sen. Charles Perry, R-Lubbock, at a committee hearing in 2019. “We should know, and I think foster parents specifically have a right to know.”

However, nearly four years later, DFPS released a memo stating it did not have the funding to create this report.

The memo explained the agency’s automated case tracking and information management system, called IMPACT, may have this kind of information entered in narrative form, but there was no way to pull it out into aggregate data without reading every investigation manually.

“This would be costly and time-consuming since the data is manually entered on a case-by-case basis and not readily searchable,” the memo read.

Then, just a few weeks later after KXAN asked the agency about the lack of funding, a DFPS spokesperson told us it found the necessary money to update the IMPACT system, using existing state appropriations. The spokesperson said those updates are scheduled for fiscal year 2023.  

“The data that’s out there is great, but the more data we have access to — the more sophisticated that data is — the better we’re able to be with the services that we provide,” said Jesse Booher with DePelchin Children’s Center.

He explained that DFPS already made it easy for foster and adoption agencies such as Depelchin to access this type of information on a case-by-case basis through the narratives kept in the system. However, until now, the state has not been able to compile aggregate data about substance use and its impacts.

Booher explained that DFPS does track certain “proxy measures” that are often used as indicators of potential substance abuse, such as neglectful supervision, which can help target programming and funding.

According to the DFPS October report, neglectful supervision was found in more than 67% of CPS investigations.

Still, Booher told KXAN that a wider view of the issue with aggregate data could help everyone involved know how to best target resources.