Oral arguments began on Tuesday at the Supreme Court in United States v. Texas, in which Texas and Louisiana are fighting against the Biden administration’s policy of prioritizing certain illegal immigrants for deportation, leaving the states to fend for themselves against the huge number of illegal immigrants in their states.
The issue at hand was catalyzed by a September 2021 memorandum from Secretary of Homeland Security Alejandro Mayorkas in which he argued, “We do not have the resources to apprehend and seek the removal of every one of these noncitizens. Therefore, we need to exercise our discretion and determine whom to prioritize for immigration enforcement action.”
“The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them,” Mayorkas added.
But on June 10, 2022, the U.S. District Court for the Southern District of Texas issued a judgment vacating Mayorkas’ memorandum. Texas and Louisiana had contended that the federal government had no authority to prioritize some illegal immigrants for deportation over others.
After the memo was vacated by the court, the U.S. Court of Appeals for the 5th Circuit refused to put the ruling on hold while the Biden administration appealed the decision, asking SCOTUS to freeze the decision. SCOTUS ruled that the decision could stay in effect, but agreed to hear the Biden administration’s challenge.
As Amy Howe of SCOTUS Blog noted, three salient questions are being asked by the Court. SCOTUS is asking both the plaintiffs and defendants whether the states have legal standing. The Biden administration says the states do not have legal standing because they have not been damaged by the federal government, while the states argue that they have to shell out more funds due to the presence of additional immigrants in their state, including public benefits.
SCOTUS is also inquiring whether the Biden administration policy follows federal immigration law and the federal law governing administrative agencies. The states argue that Congress’ federal immigration laws require that the federal government “shall take into custody any alien who” has committed certain crimes “when the alien is released” from criminal custody. In addition, the states argue, Congress’ federal immigration laws stated that a final deportation order requires that the federal government “shall remove” the noncitizen within 90 days.
The word “shall” indicates a mandatory step, the states assert, but the Mayorkas memo makes them discretionary .
The third question asked by SCOTUS, Howe concludes, is whether the U.S. District Court for the Southern District of Texas had the power to vacate Mayorkas’ policy.