The U.S. Supreme Court’s conservative majority on Tuesday indicated skepticism over a bid by President Joe Biden’s administration to implement guidelines – challenged by two conservative-leaning states – shifting immigration enforcement toward countering public safety threats.
The justices were hearing arguments in the administration’s request to overturn a judge’s ruling in favor of Texas and Louisiana that vacated U.S. Department of Homeland Security (DHS) guidelines narrowing the scope of those who can be targeted by immigration agents for arrest and deportation.
Texas and Louisiana argued that the guidelines ran counter to provisions in federal immigration law that make it mandatory to detain non-U.S. citizens who have been convicted of certain crimes or have final orders of removal.
The court on a 5-4 vote declined in July to put U.S. District Judge Drew Tipton’s ruling hold. On Tuesday, some of the conservative justices who were in the majority in that decision signaled that they were likely to rule against the administration again.
“It’s our job to say what the law is, not whether or not it can be possibly implemented or whether there are difficulties there,” conservative Chief Justice John Roberts said.
Solicitor General Elizabeth Prelogar, arguing for the administration, said such a strict reading of the law could be “incredibly destabilizing” because DHS cannot possibly with its limited resources apprehend and seek the removal of all of the roughly 11 million immigrants living in the country illegally.
The guidelines, announced by Homeland Security Secretary Alejandro Mayorkas in September 2021, prioritized apprehending and deporting non-U.S. citizens who pose a threat to national security, public safety or border security.
Mayorkas cited the longstanding practice of government officials exercising discretion to decide who should be subject to deportation and said that most immigrants subject to deportation “have been contributing members of our communities for years.”
Republicans have criticized Biden’s administration, saying fewer detentions and deportations have encouraged more illegal border crossings. The top Republican in the U.S. House of Representatives, Kevin McCarthy, last week called on Mayorkas to step down and said the House may try to impeach him when Republicans formally take control of the chamber in January.
Republican state attorneys general in Texas and Louisiana sued to block the guidelines after Republican-led legal challenges successfully thwarted other Biden administration attempts to ease enforcement.
Tipton, a Trump judicial appointee based in Texas, ruled in favor of the challengers, finding that while immigration agents could on a case-by-case basis act with discretion the administration’s guidelines were a generalized policy that contravened the detention mandate set out by Congress.
The New Orleans-based 5th U.S. Circuit Court of Appeals in July declined to put that ruling on hold. When the Supreme Court declined to stay Tipton’s ruling, conservative Justice Amy Coney Barrett joined liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson in dissent. The court has a 6-3 conservative majority.
Prelogar told the justices that Texas and Louisiana should not have been allowed to sue in the first place as they lack the proper legal standing to challenge the guidelines because they have not suffered direct harm due to the policy. The states have said they would be harmed by having to spend more money on law enforcement and social services due to an increase in non-U.S. citizens present within their borders thanks to the guidelines.
Prelogar called those indirect harms insufficient and urged the Supreme Court to limit the ability of states more generally to challenge federal policies.
Conservative Justice Samuel Alito said Prelogar was advocating for “a rule of special hostility to state standing” whose principles would not apply to other litigants such as private individuals.
The administration also told the justices that the guidelines do not violate federal immigration law and that the mandatory language of those statutes does not supersede the longstanding principle of law enforcement discretion.
A decision is expected by the end of June.