The Supreme Court Could Force the Biden Administration to Arrest, Detain, and Deport a Massive Number of Immigrants – By Emily Creighton (Slate) / Dec 2, 2022
Does the executive branch have the right to focus its limited resources to enforce immigration laws against people it believes most deserve deportation, or must it carry out an inflexible mandate to arrest large numbers of immigrants?
In oral arguments at the Supreme Court in U.S. v. Texas on Tuesday, Texas and Louisiana continued their challenge to the federal government’s ability to decide which immigrants are apprehended and removed. Although the case is different from some of the callous state-level antics that have gotten media attention recently—such as the removal of migrants from the state of Texas to Martha’s Vineyard with false promises of employment and cash assistance—it is another reminder that Republican-led states want to play the heavy in the larger immigration policy debate.
The justices offered a heated debate about the power of the federal government to decide its own immigration enforcement priorities without tipping their hand about the outcome. The question for immigrants—many of whom have lived in the United States for years and whom the Biden administration would not otherwise seek to remove—is where the court will come down: in support of an immigration system that offers some grace and flexibility in how it enforces its laws, or in support of what the federal government describes as “unyielding mandates” to apprehend and remove a broad set of unauthorized immigrants who pose no danger to anybody.
The enforcement guidance challenged in the case prioritizes the apprehension and removal of immigrants who pose a threat to national security, public safety, and border security. They add common sense and basic decency within the limits of our current system, directing immigration officials to exercise discretion when, for example, a person has a mental condition, is a provider or caregiver, is a victim of a crime, or is eligible for humanitarian protection. They also instruct DHS officers to consider each case individually, weighing the positive and negative equities of an individual’s case before carrying out an arrest. Texas and Louisiana characterize the guidance as an abdication of the federal government’s mandate to enforce certain immigration laws, while the federal government describes the guidance as a necessary tool to carry out the administration’s priorities for enforcement. Underlying the case is a core reality about immigration enforcement—Congress has never given ICE anywhere close the resources needed to arrest every noncitizen subject to immigration enforcement. (Disclosure: My organization, the American Immigration Council, signed onto an amicus brief in support of petitioners.)