WASHINGTON — The U.S. Supreme Court will hear arguments Tuesday in a Texas-led case with wide-ranging ramifications for the future of immigration enforcement in the country as well as the relationship between the states and the federal government.
At issue are enforcement guidelines Homeland Security Secretary Alejandro Mayorkas issued last year prioritizing the apprehension and removal of individuals in three categories: terrorists, those committing significant criminal offenses and recent border crossers.
Prioritizing certain individuals for removal inherently means de-prioritizing others who don’t fit into those categories. Mayorkas cited estimates that more than 11 million removable noncitizens are in the United States.
“We do not have the resources to apprehend and seek the removal of every one of these noncitizens,” Mayorkas wrote. “Therefore, we need to exercise our discretion and determine whom to prioritize for immigration enforcement action.”
The approach stems from a basic reality that has confronted recent presidents from both parties.
Congress has passed immigration laws providing for deportations of those in the country illegally while funding only a fraction of the money and manpower needed to round up every person subject to removal.
President Joe Biden’s administration, similar to Barack Obama’s before, is seeking to recognize that reality by focusing on the highest-priority targets.
That’s in contrast to the Trump administration, which preferred to maintain a more expansive view of who should be subject to removal proceedings.
Critics say Mayorkas’ guidelines show the administration is ignoring the law and putting a burden on states by letting more individuals avoid detention.
Texas and Louisiana challenged the guidelines in court, saying in part they violate federal laws requiring the detention of certain immigrants, including those who have committed particular offenses.
The case is fraught with political implications as Republicans continue to sharply criticize the Biden administration for not doing more to secure the southwest border.
The Border Patrol caught immigrants 2.2 million times at the southwest border in fiscal year 2022, which ended September 30. About a third of those immigrants were quickly expelled back to Mexico because of a pandemic-related health policy, known as Title 42.
Immigration experts note the 2.2 million figure doesn’t represent the actual number of immigrants because many are able to try multiple times to cross under Title 42.
Under regular immigration law, there are legal consequences for multiple entries. But there are no legal consequences with a Title 42 expulsion, which went into effect with the pandemic’s start in March 2020.
House Minority Leader Kevin McCarthy, R-Calif., is aiming to become the next speaker when Republicans assume control of the House in January, but he is still trying to shore up his right flank.
During a recent visit to the border, McCarthy publicly warned Mayorkas that he can expect robust investigations and possibly impeachment next year.
Mayorkas has previously shrugged off calls for his impeachment.
Legal issues at play
The case hinges on several questions including whether the states have standing to bring the challenge and whether the guidelines violate those federal laws requiring certain individuals to be detained.
One of the priority categories identified in Mayorkas’ guidelines is “a noncitizen who poses a current threat to public safety, typically because of serious criminal conduct.”
But the guidelines also say whether someone qualifies for that category is “not to be determined according to bright lines” and “instead requires an assessment of the individual and the totality of the facts and circumstances.”
They identify aggravating circumstances such as the seriousness of the offense, prior criminal record and the use of a firearm. But they also include mitigating factors such as age, length of time in the country and potential impact on the individual’s family.
Critics say that ignores federal law requiring detention and removal of those who have committed various felonies.
U.S. District Court Judge Drew Tipton, appointed by Trump, sided with Texas and invalidated the guidelines and the Biden administration was unsuccessful in seeking a stay of that ruling.
But other courts have found fault with challenges to the law, creating a split that will now be decided by the Supreme Court in U.S. vs. Texas.
The government has cited the court’s precedent that a “principal feature” of the immigration laws on the books is broad discretion enjoyed by immigration officials who can abandon the removal of noncitizens at each stage of the process.
It argues the government has long used discretion to focus limited resources and that Texas and Louisiana don’t have standing to bring the challenge.
The states maintain they do have standing, in part from their responsibility to protect the well-being of their residents.
Just the latest challenge
Texas Attorney General Ken Paxton has touted his efforts to block Biden policies, particularly those related to immigration, by taking the administration to court.
“It’s hard to imagine a more dangerous and radical policy than the Biden Administration’s decision to allow violent criminals to roam freely in our communities,” Paxton said in a statement last month regarding the latest case. “In order to protect Texas communities and uphold the rule of law, I’m urging the U.S. Supreme Court to uphold the district court’s judgment and require DHS to detain criminal illegal aliens.”
But Paxton’s enthusiasm for such legal challenges – and where they are filed – has drawn criticism.
University of Texas at Austin law professor Stephen Vladeck wrote in a friend-of-the-court brief that the state of Texas has repeatedly challenged Biden administration policies in a way calculated to ensure the cases are heard by Republican-appointed judges.
Federal district courts are divided into districts and then further subdivided into divisions. Vladeck wrote the state has targeted small divisions in Texas where the case is likely, or even certain, to be assigned to a sympathetic judge.
“Texas has exclusively filed suits challenging federal policies, including this one, in divisions where all or nearly all cases are assigned to judges appointed by Republican presidents,” he wrote. “In fact, almost without exception, Texas has filed its cases in districts presided over entirely or almost entirely by judges appointed by President Trump.”
He wrote that undermines public faith in the independence of the federal judiciary and also goes to the state’s standing in the case.
“Texas’s transparent judge-shopping tactics demonstrate that it is engaged in nothing more than a campaign of generalized grievances against a political opponent — long an improper basis for invoking federal jurisdiction,” Vladeck wrote.
Staff Writer Dianne Solis contributed to this report.