The Supreme Court on Tuesday will consider the Biden administration’s efforts to revive policies that prioritize immigration enforcement by focusing on threats to public safety.
The government is seeking to overturn a Texas-based federal judge’s ruling in June that blocked the policy nationwide. It was in effect for less than a year.
President Joe Biden’s plan, announced in September 2021, marked a shift from former President Donald Trump’s tough enforcement approach. The government argued that with an estimated 11 million illegal immigrants in the US, the government must prioritize certain cases because it does not have the resources to detain and deport them all.
Texas and Louisiana immediately challenged the plan in court, arguing that federal immigration law requires certain illegal immigrants — including those convicted of major crimes, human trafficking and some gun crimes — to be detained after being released from criminal custody. Biden’s policy, which requires an individual assessment of whether an immigrant poses a threat to public safety or national security as the government initiates the deportation process, would defy that requirement, the states say.
Attorneys for the Biden administration argue that the president has broad discretion to set enforcement priorities.
The judges will consider whether the states had legal standing to take up the challenge and, if so, whether the guidelines are illegal. A third question concerns whether the court was authorized to block the policy, even if it is unlawful.
In the ruling blocking the policy, U.S. District Judge Drew Tipton — a Trump appointee — said Texas stood its ground because it could show that immigrants who should have been detained were in Texas and, in some cases, had committed crimes.
Tipton felt both that the policy was illegal and that the government had not followed proper procedure in implementing it.
Attorney General Elizabeth Prelogar, who represents the administration, said in court documents that Tipton’s decision to cut back on federal officials’ discretion to set enforcement priorities “goes against the longstanding practice that spans multiple administrations.”
Texas Attorney General Ken Paxton countered on behalf of the states that when Congress makes demands, the president “has no authority to override that instruction.”
The Supreme Court voted 5 to 4 in July to deny the Biden administration’s request to reinstate the policy immediately, but agreed to hear oral arguments. A decision will be made at the end of June.
Republicans have often accused Biden of a lax approach to enforcement and border security, which they say has led to an increase in crime and an increase in the number of people entering the US illegally.