The U.S. Supreme Court was once again faced with a continuing dilemma on Tuesday: How much discretion does an administration have in enforcing the nation’s immigration laws when virtually everyone agrees that there simply aren’t enough resources to deport even a major fraction of the 11 million unauthorized immigrants living in the United States.
For decades, every administration, Democratic and Republican, has made choices about who to apprehend and deport. The priorities have often varied from one administration to the next. The Biden administration’s priorities were to find and deport: first, noncitizens who, like terrorists, are a threat to the national security; second, those who have been convicted of serious crimes; and third, those who pose a threat to border security.
But Texas challenged those priorities, and won in the lower courts, prompting the administration to appeal to the Supreme Court.
What the law says
Several provisions of the immigration law direct the U.S. Immigration and Customs Enforcement agency, known as ICE, to do certain things, using the word “shall.” But the court has often said that in context Congress sometimes intended “shall” to mean “may,” especially in light of limited resources.
That dynamic prompted this exchange between Chief Justice John Roberts and the Biden administration’s solicitor general, Elizabeth Prelogar.
“Shouldn’t we just say what we think the law is, even if we think ‘shall’ means ‘shall,’ and then leave it to [Congress] to sort that out?” Roberts asked. Prelogar replied that “one of the reasons the court has recognized that there is enforcement discretion in this area is precisely because of the practical necessity.” Agencies, she said, “cannot proceed against every violation of the statute.”
Prelogar went on to say out loud what lawyers for both Republican and Democratic administrations have increasingly worried about over the last two decades. That is, when red or blue states don’t like a federal policy, they often find a sympathetic district court judge, who after hearing a state’s challenge to a federal policy, sets it aside for the whole country. The procedure is called vacatur, meaning the policy is voided.
When Prelogar called for curbing vacatur, it prompted this response from the chief justice: “Your position on vacatur, that sounded to me to be fairly radical and inconsistent with [what] those of us who were on the D.C. Circuit, you know, [did] five times before breakfast.”
“I acknowledge, Mr. Chief Justice, that the lower courts, including the D.C. Circuit, have in our view been getting this one wrong.” Prelogar replied.
“Wow,” interjected Roberts. “That’s what the D.C. Circuit and other courts of appeals have been doing all the time as a staple of their decision output.”
Justices Brett Kavanaugh and Ketanji Brown Jackson, both D.C. Circuit grads, piled on to support Roberts on that point, but Justice Neil Gorsuch seemed far more sympathetic to Prelogar’s critique. Vacatur, he said, is like “a monster swallowing the whole” of the law.
Texas’s view
Texas Solicitor General Judd Stone got quite a mauling as well from the justices, among other things on the question of whether Texas has legal standing to challenge federal enforcement policies at all. Pressed by Justice Elena Kagan, Stone insisted that if Texas spends even $1 as a result of federal immigration policies, it has standing to challenge those policies in court.
Kagan wasn’t buying it. “You’re coming in here with a set of speculative possibilities about your costs,” she asserted. “You have to do more than that given the backdrop of — of what has become, I think, a system that nobody ever thought would occur, which is that the states can go into court at the drop of a pin and stop federal policies in their tracks.”
Kavanaugh noted that there simply are not the resources to do what Texas wants the federal government to do. So, he asked, what would happen if Texas prevails?
Lawyer Stone dodged the question.
As of now, though, Texas has prevailed in the lower courts and until and unless the Supreme Court changes that, there is no list of priorities to guide immigration enforcement officers as to who to apprehend and deport.
In all, the justices heard well over two hours of argument in the case, more than double the allotted time. But there was little indication of the outcome.
A decision in the case is expected by summer.
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