The U.S. Supreme Court on Tuesday is set to consider whether President Joe Biden’s administration can implement guidelines – challenged by two conservative-leaning states – shifting immigration enforcement toward public safety threats in a case testing executive branch power to set enforcement priorities.
The justices will hear the administration’s bid 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.
The Democratic president’s policy departed from the hardline approach of his Republican predecessor, Donald Trump, who sought to broaden the range of immigrants subject to arrest and removal. Biden campaigned on a more humane approach to immigration but has been faced with large numbers of migrants crossing the U.S.-Mexico border.
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.
In a memo, Mayorkas called the guidelines necessary because his department lacks the resources to apprehend and seek the removal of every one of the estimated 11 million immigrants living in the United States illegally.
Mayorkas cited the longstanding practice of government officials exercising discretion to decide who should be subject to deportation and said that a majority of 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.
Their lawsuit, filed in Texas, argued that the guidelines ran counter to provisions in immigration laws that make it mandatory to detain non-U.S. citizens who have been convicted of certain crimes or have final orders of removal.
U.S. District Judge Drew Tipton, a Trump appointee, 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.
“Whatever the outer limits of its authority, the executive branch does not have the authority to change the law,” Tipton wrote.
After the New Orleans-based 5th U.S. Circuit Court of Appeals in July declined to put that ruling on hold, Biden’s administration turned to the Supreme Court.
The justices on a 5-4 vote declined to stay Tipton’s ruling, with conservative Justice Amy Coney Barrett joining liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson in dissent. The justices did not provide reasons for their disagreement.
Biden’s administration has told the Supreme Court that Texas and Louisiana lack the proper legal standing to challenge the guidelines because the states had not suffered any direct harm as a result of the policy. The states countered that they would be harmed by having to spend more money on law enforcement and social services as a result of an increase in non-U.S. citizens present within their borders due to the guidelines.
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.