Supreme Court hears challenge to Biden rules narrowing ICE immigration arrests

Washington — The Supreme Court heard oral arguments Tuesday in a case that could have major implications on the power of the executive branch to issue rules governing the enforcement of U.S. immigration laws, as well as the ability of states and organizations to challenge those directives.

At the center of the court case is a directive issued by Homeland Security Secretary Alejandro Mayorkas in September 2021 that instructed Immigration and Customs Enforcement (ICE) agents to prioritize the arrest of migrants who recently entered the U.S. illegally as well as immigrants deemed to pose a threat to national security or public safety, while effectively exempting other unauthorized immigrants without serious criminal records from enforcement.   

The Biden administration argued the directive allowed ICE to concentrate its finite resources — and 6,000 deportation agents — on efforts to arrest and deport unauthorized immigrants deemed to be law enforcement priorities. The administration said the government does not have the resources nor personnel to arrest and deport the millions of immigrants estimated to be living in the U.S. without legal permission. 

Republican officials in Texas and Louisiana filed a lawsuit against Mayorkas' memo, arguing it prevented ICE agents from fully enforcing U.S. immigration laws. In June, a federal judge in Texas agreed with the state officials, declaring the Biden administration rules unlawful and blocking ICE agents from enforcing them.

The Biden administration then asked the Supreme Court to intervene. In July, the high court declined to lift the block on Mayorkas' memo, but agreed to hear the merits of the case.

The Supreme Court probed three questions during Tuesday's arguments: whether Texas and Louisiana had legal standing to sue the Biden administration, whether Mayorkas' memo is lawful and whether federal courts can set aside policies governing immigration enforcement.

Representing the Biden administration, Solicitor General Elizabeth Prelogar argued that Texas and Louisiana should not be allowed to challenge Mayorkas' memo, saying they were not directly harmed by the policy. Texas and Louisiana had argued that the presence of unauthorized immigrants in their states who were not detained harmed them financially because of social services and criminal justice costs.

Prelogar also argued it's not feasible for the Department of Homeland Security (DHS), which oversees ICE, to identify and detain all immigrants without legal status who the law says "shall" be detained. 

"Across 25 years and five presidential administrations, the agency has never implemented the [Immigration and Nationality Act] in the manner that [Texas and Louisiana] suggest," Prelogar told the justices. "Given congressional funding choices, it would be impossible for DHS to do so."

Chief Justice John Roberts asked Prelogar why the high court shouldn't read "shall" as a mandate: "Should we still fulfill our responsibility to say what the law is, and then it's up to Congress and the executive to figure out a way to comply with that?"

Prelogar said such a ruling would "absolutely scramble immigration enforcement efforts on the ground," saying federal officials have broad discretion to decide which immigrants to arrest.

Judd Stone, Texas' solicitor general, told the justices the Biden administration's argument was erroneous because it treated the immigration detention laws as "discretionary," as opposed to mandatory. He said Texas and Louisiana are not arguing that federal officials should detain all unauthorized immigrants. The government, Stone said, is only obliged to detain a "small subset of this nation's illegal aliens."

Several justices, including liberals Sonia Sotomayor and Ketanji Brown Jackson and conservative Brett Kavanaugh, highlighted that law enforcement officials often rely on a long-standing authority known as "prosecutorial discretion" when making prosecution and arrest decisions given the impracticality of going after all those suspected of violating the law.

"There are never enough resources, or almost never enough resources, to detain every person who should be detained, arrest every person who should be arrested, prosecute every person who's violated the law," Kavanaugh said.

Conservative Justice Samuel Alito, however, expressed concerns about Mayorkas' memo, saying his "problem" with the policy was that Congress, in his view, had already established immigration enforcement priorities by mandating the detention of certain classes of immigrants.

While Customs and Border Protection (CBP) is charged with intercepting unauthorized migrants and illicit drugs along U.S. borders, ICE is responsible for arresting, detaining and deporting immigrants within the U.S. who have committed immigration violations.

For decades, including before ICE's creation in 2003, U.S. deportation agents have been instructed to exercise prosecutorial discretion to determine whether filing a charge or making an arrest is appropriate and advances the interest of justice.

Amid progressive criticism of large-scale deportations, the Obama administration issued several memos directing ICE agents to focus on arresting certain classes of deportable immigrants, including recent border-crossers and those found to threaten public safety or national security. It also discontinued mass ICE arrests at work sites, which had garnered outcry among advocates during the George W. Bush administration.  

The Trump administration rescinded the Obama memos, dramatically expanding the number of unauthorized immigrants ICE agents could arrest. Soon after President Biden took office, his administration revoked the Trump directives and issued a memo that again instructed ICE to focus on arresting immigrants deemed to pose threats to national security, public safety or border security. 

In his September 2021 memo, Mayorkas included the same three priority groups for arrest, but eliminated a categorical definition for the public safety category. Instead, he instructed agents to weigh "aggravating factors," such as the gravity of crimes and previous convictions, as well as "mitigating factors" like an immigrant's age, the time they have lived in the U.S. and military service when deciding whether to make an arrest.

Mayorkas' directive is part of a Biden administration effort to overhaul ICE. The administration has also instructed the agency to discontinue mass work-site arrests and the long-term detention of families with minor children, and to refrain from arresting pregnant women, victims of serious crimes and military veterans.

Together with operational limits caused by the COVID-19 pandemic, the Biden administration rules have led to a sharp decrease in ICE arrests and deportations in the U.S. interior. ICE carried out 59,011 deportations in fiscal year 2021, the lowest tally on record. In fiscal year 2022, which ended on Sept. 30, the number of ICE deportations increased to 69,019, according to government data.

Republican lawmakers have strongly criticized the historically low number of deportations, accusing the Biden administration of not fully enforcing U.S. immigration laws amid record levels of migrant apprehensions along the U.S.-Mexico border.

During the pandemic, U.S. border officials have relied on a public health authority known as Title 42 to swiftly turn back a significant number of the migrants they encounter. Because Title 42 is a public health authority, expulsions under the policy are not counted as formal deportations.

Several justices on Tuesday expressed doubts about the Biden administration's position that federal courts should not be allowed to set aside certain nationwide policies they deem to be unlawful, with Roberts and Kavanaugh calling the argument "fairly radical" and "extreme," respectively.

The justices also questioned whether Texas and Louisiana had met the legal threshold to be able to show they were harmed by Mayorkas' memo and thus eligible to sue the federal government. All changes to nationwide immigration policy, Justice Elena Kagan argued, would impact a state's finances, favorably or unfavorably.

"We're just going to be in a situation where every administration is confronted by suits by states that can, you know, bring a policy to a dead halt, to a dead stop, by just showing a dollar's worth of cost," Kagan said.