Update: 3:52 p.m. with additional information and quotes.
Update: 3:52 p.m. with additional information and quotes.
WASHINGTON — The Biden administration painted a bleak picture Tuesday of what would happen if the Supreme Court sides with Texas and rules that federal laws trump prosecutorial discretion in certain immigration enforcement cases.
Texas is leading a legal challenge to guidelines issued last year by Homeland Security Secretary Alejandro Mayorkas seeking to prioritize certain categories of individuals for enforcement.
Those guidelines run afoul of federal laws declaring the government “shall” detain certain individuals in the country illegally, including those convicted of certain felonies or those with final removal orders, according to Texas and others backing the challenge.
During oral arguments in the case Tuesday, U.S. Solicitor General Elizabeth Prelogar told the justices it is impossible as a practical matter for the Department of Homeland Security to comply with all of the “shall” clauses written into the country’s immigration laws.
If the court rules it must treat those clauses as binding mandates with no discretion, she said, it would be destabilizing to the system.
Enforcement officials would be required to take actions against any individuals they encounter who might be subject to the mandates, she said.
“And that means we wouldn’t have the resources or ability to go after those individuals who are threats to public safety, national security and border security,” Prelogar said. “That is a senseless way to run an immigration enforcement system and it is not the statute that Congress enacted.”
Texas Solicitor General Judd Stone countered that talk about resource limitations and prosecutorial discretion is beside the point.
The states challenging the guidelines are not claiming the government must remove everyone in the country illegally, Stone said, but rather a “small subset of this nation’s illegal aliens” who are specifically and clearly identified in the law.
Such arguments appeared to be welcomed by some of the right-leaning members of the court. Chief Justice John Roberts pressed Prelogar on whether “shall” should mean “shall” regardless of the practicality involved.
“Now 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,” Roberts said. “And I don’t think we should change that responsibility just because Congress and the executive can’t agree on something that’s possible to address this ... problem. I don’t think we should let them off the hook.”
Texas argues the guidelines have resulted in individuals avoiding detention, negatively impacting the state in various ways such as requiring it to lock those individuals up or provide social services to them.
The arguments come in the context of the continuing and deeply partisan debate about immigration and border security in which Republicans say the Biden administration has adopted a lax approach that encourages even more migrants to overwhelm the southern border.
Sen. John Cornyn, R-Texas, said Tuesday during an appearance on Fox News the situation at the border is out of control and the Mayorkas guidelines undercut congressional requirements, with the administration attempting to cherry pick when it has to enforce the law and when it doesn’t.
“This is a really important case because the Biden Administration has run up the white flag when it comes to enforcing our border,” Cornyn said.
The Biden administration has responded to GOP criticism in part by saying Republicans have opposed efforts to boost homeland security funding.
But Tuesday’s arguments ventured well beyond how to enforce the nation’s immigration laws and delved into broader questions of when states have standing to challenge federal policies.
Prelogar said states can file suits in numerous jurisdictions, searching for a judge sympathetic to their cause.
“If the states can persuade even one single district judge in a forum of their choosing to be skeptical of the federal government’s position, then that judge can claim authority to issue a universal remedy that is going to immediately put the federal government’s policies on hold,” she said.
Prelogar also argued federal courts have been exceeding their authority for years in the way they wipe government policies off the books when they find them to be unlawful.
That position was met with deep skepticism by a number of the justices who described it as running counter to thousands of rulings in recent years.
Roberts took particular exception to it as “fairly radical” given D.C. Circuit Court judges issue such rulings “five times before breakfast.”
Roberts also suggested some of Prelogar’s arguments on standing are at odds with the court’s findings just a few months ago in another immigration case involving Texas and the Biden administration. He said he would expect more consideration for such a recent decision.
“It’s not even out of the cradle yet, and you’re throwing it under the bus,” Roberts said, before conceding he had mixed his metaphors.
Still, Prelogar did get some sympathy on the standing issues from Justice Elena Kagan, who suggested Texas would need to do more in demonstrating the harms it has suffered from the Mayorkas guidelines.
“It’s just not enough that you’re coming in here with a set of speculative possibilities about your costs,” Kagan said. “You have to do more than that, given the backdrop 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.”
A decision in the case is expected by next summer.
Jason Whitehead, a professor of political science at California State University, Long Beach who studies legal and judicial politics, said federal laws related to immigration, along with other areas, often use the word “shall.”
If the court accepts the argument that such usage means the executive branch must always do exactly what the statute says, it could have major and potentially unworkable consequences, he said.
The Texas case also could be a bellwether of how far the conservative majority on the court is willing to go, particularly on the question of the flexibility and power afforded executive agencies.
Roberts might, as he has in some past cases, be able to persuade conservative justices on the court to back a more narrowly tailored decision that stops short of sweeping edicts and sends the case back to the lower courts.
“He’s much more institutionally minded,” Whitehead said of Roberts. “He doesn’t want the court to be seen as too political and you can’t get more political than immigration controversies right now.”