Supreme Court hears clash over DHS immigration enforcement policy

The Supreme Court on Tuesday wrestled with an effort by the Biden administration to reinstate guidance that directed federal officials tasked with enforcing the nation’s immigration laws to prioritize public safety threats.

During more than 90 minutes of argument, the justices heard sparring between lawyers for the U.S. government and Texas over whether executive branch officials have the latitude to focus enforcement actions on certain groups of undocumented immigrants over others.

At issue was a Department of Homeland Security (DHS) policy — which was invalidated by a lower court — that instructed immigration officers to most vigorously pursue the arrest and removal of undocumented immigrants who pose a threat to public safety or national security.

During Tuesday’s argument, that policy ran headlong into sharp questions over just how literally Congress meant the word “shall” in describing federal officials’ duties to detain broad populations of undocumented immigrants under the Immigration and Nationality Act (INA).

U.S. Solicitor General Elizabeth Prelogar said it would be “impossible” to apply the law in a strictly literal sense that allowed no discretion. According to a DHS estimate, more than 11 million people in the U.S. are undocumented or considered “otherwise removable.”

“Make no mistake, it is impossible for DHS to comply with each and every ‘shall’ in the INA as truly a judicially enforceable duty,” she told the justices, adding that it would mean “we wouldn’t have the resources or ability to go after those individuals who are threats to public safety, national security and border security.”

Several justices appeared sympathetic to the government’s claim that it lacked the resources to apply the INA’s language strictly across the board.

Justice Brett Kavanaugh, one of the court’s conservatives, queried Texas’s solicitor general about what would happen if the red-state challengers won their case in light of DHS’ constraints.

“I’m not sure much will change because they don’t have the resources to change. So what do you envision?” Kavanaugh asked. “I know Florida’s amicus briefs says, well, the executive will then strive to meet its obligations. ‘Strive to’ is not a usual term of a judicial order. So what do you think happens if you prevail here?”

In response, Texas’s solicitor general Judd Stone said the result would be that individual officers “will go back to not believing their enforcement discretion has been restrained” as they were under the DHS guidelines.

The DHS guidance under review, issued in September 2021, directed officers to make a comprehensive assessment of noncitizens before proceeding with an arrest or removal, in addition to spelling out enforcement priorities.

The policy drew several lawsuits, including a challenge by Texas and Louisiana that secured a legal victory in the lower courts. The red-state challengers contend the INA obligates federal officials to detain undocumented immigrants found guilty of certain crimes or who have been ordered removed from the U.S.

In June, a Trump-appointed U.S. judge in Texas sided with the state challengers, vacating the DHS policy after concluding the agency failed to follow federal immigration law. As a result, the policy is currently not being enforced.

The Biden administration was rebuffed when it asked the U.S. Court of Appeals for the 5th Circuit to block the district court’s judgment, prompting the administration’s request to the Supreme Court.

In July, the justices voted 5-4 to deny an emergency request from the Biden administration to revive the policy while the case played out. The court’s three liberals, joined by conservative Justice Amy Coney Barrett, indicated they would have sided with the administration. In that same order, the court treated the administration’s filing as a formal petition for appeal, which it granted.

Much of the Tuesday’s argument dealt with whether the states had standing, or the legal right to sue, in response to the alleged harms suffered because of DHS’ guidelines.

Pushing back against this claim, the solicitor general said such a finding would risk transforming federal courts into “open forums for each and every policy disputes between the states and the national government.”

Justice Samuel Alito, a conservative, said Prelogar’s argument inverted the court’s tradition of providing states “special solicitude” on the issue of standing.

“This is a rule of special hostility to state standing,” he said.

A decision in the case, U.S. v. Texas, is expected by this summer.

This story was updated at 2:39 p.m.