DHS Injunction ‘Incredibly Destabilizing,’ DOJ Tells SCOTUS

The U.S. Supreme Court is shown on April 25, 2022 in Washington, DC.

The U.S. Supreme Court on Tuesday heard marathon oral arguments in an immigration law case that could have far-reaching impacts on several other areas of law and government policy.

Stylized as United States v. Texas, the case is premised on 2021 memos by Department of Homeland Security Secretary Alejandro Mayorkas that prioritize certain groups of immigrants for arrest and detention. Texas and Louisiana sued the Biden administration and won a vacatur – a nationwide injunction – inside a courtroom viewed widely as a bane of immigration lawyers in Texas: that of Donald Trump-appointed U.S. District Judge Drew Tipton.

The locus of the dispute between the GOP-led states and the Biden administration is a federal law that says the government “shall take into custody any alien who” meets a variety of outlined criteria.

Solicitor General Elizabeth Prelogar, arguing for the Biden administration, argued that reading “shall” as requiring mandatory detention for all of the people encapsulated under the statute was an unworkable and outright “impossible” task for immigration officials.

The solicitor general said there are more than 11 million people in the country who could be subject to removal by Immigration and Customs Enforcement and around 6,000 employees. Reading the statute as the states want it read, she said, would require that relatively small number of government agents to initiate enforcement actions against almost everyone they came across.

“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.”

Aside from real world considerations, the administration also said the states should not even be allowed to sue and stop the federal government from using prosecutorial discretion with respect to immigration policy.

“Doesn’t that mean that no state would ever have standing to challenge immigration policies?” Chief Justice John Roberts asked.

“That’s right,” Prelogar replied, saying that the administration has been opposed to broad theories of state standing for awhile now.

Uneasiness with the Biden administration’s direct attack on states’ Article III standing was echoed by Justice Samuel Alito.

“So this is a rule of special hostility to state standing?” he asked, prompting Prelogar to say that their argument rejects standing in this case and is not generally hostile to the concept in all cases.

“You have a special rule for state standing that disfavors the states,” Alito said, clearly not receptive to the clarification.

Bypassing the standing issue, Roberts suggested the states would likely win on the merits of their case.

“I think ‘shall’ means ‘shall,’ and Congress has passed a law that is impossible to implement,” the chief justice said, sketching out a possible viewpoint. “Shouldn’t we just say what we think the law is?”

Prelogar struggled with Roberts’ questions on this front and repeatedly went back to the unworkability argument.

“If this court were to actually adopt that interpretation of the statute, I think that would be incredibly destabilizing,” she said. “It would absolutely scramble immigration enforcement on the ground.”

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Justice Sonia Sotomayor brought up the high court’s parallel precedent on immigration law in terms of deportation, giving the Biden administration’s attorney a bit of a breather.

“We have repeatedly recognized the agency’s broad removal discretion,” she said, “We’ve said that in a legion of cases.”

Sotomayor went on to suggest that there was an internal logical failure if enforcement discretion applies to deportation proceedings but does not apply to whether or not certain immigrants have to be detained in the first place.

Justice Ketanji Brown Jackson also offered the Biden administration a welcome series of lifelines.

“They appear to be conflating Congress’ mandates with respect to detention with Congress’ statements with respect to removal,” the newest justice said, arguing that the statute actually appears to say that once an immigrant subject to deportation, their detention is mandatory.

Prelogar readily agreed with that understanding.

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Jackson also suggested the administration was in the right regarding “conceptions of government power.”

“The reason why you have the authority to detain someone is because you’ve made the determination that they are going to be removed,” the justice offered. “The government doesn’t go around detaining people without having made a determination about their prosecutorial ability, without the fact that they are going to prosecute these or they are going to remove these people.”

Again, Prelogar welcomed the assistance.

“It would be an extraordinary thing for Congress to have dictated to the executive that has to seek out, identify, remove each and every noncitizen who is described in a provision that uses the word ‘shall,”” the government attorney said.

Arguing for the Texas Attorney General’s Office was Judd Edward Stone II, who began by calling the Mayorkas memos “unlawful for multiple reasons,” but chiefly because they treat the federal law in question as discretionary instead of mandatory.

Some of the justices took a dim view of the standing arguments advanced by Texas, which largely relied on a theory of indirect financial harm caused by the Biden administration’s priorities.

“Do you think there is any immigration policy that you could not challenge under the way you view standing?” Justice Elena Kagan asked the Lone Star State attorney, who struggled to answer the question, declining to discuss the concept “in the abstract.”

Leaving nothing to chance or imagination, Kagan went on:

It’s hard to think of, I guess, is what I’m saying. If all you need to do is to say we have a dollar’s worth of costs – and you don’t even need to think about the benefits on the other side? I mean, every immigration policy: you let in more people; you let in fewer people, is going to have some effect on a state’s fiscal condition. Maybe they will get less or more tax dollars. Maybe they will have to spend less or more money. I mean, every single immigration policy. And then, not to mention, all the other policies in the world that if the state comes in and says, ‘I got a dollar’s worth of costs that I can show you.’ We are going to be in a situation where every administration is confronted by suits buy states that can bring a policy to a dead halt, to a dead stop, by just showing a dollar’s worth of costs?

Stone started to reply by saying that “Texas has more than half of the southern border” but was quickly cut off.

“That’s not responsive to my question,” Kagan said.

A similar bout of harsh skepticism was advanced by Sotomayor when Stone disagreed with the Biden administration’s argument that the “net” effects of prosecutorial discretion would be positive for border states.

“That’s in the nature of a factual assertion,” Stone said. “That was a disputed fact question at trial. They offered no evidence. If there were, in fact, that would be powerful evidence attacking our standing.”

“I’m sorry, you have to prove standing,” Sotomayor interjected.

Later on, Sotomayor expressed confusion as to Stone’s argument in terms of the distinction between removal or deportation proceedings against certain immigrants and the command to arrest them.

“What are you arguing?” she asked, picking up the argument advanced earlier by Jackson that the statute is about a combination of using detention to effectuate deportation and that simply arresting people or otherwise going after people without the intent to deport them doesn’t make much sense.

“Why isn’t the policy guideline exactly what the government said?” Sotomayor pressed. “That this has nothing to do with detention; it has to do with removal?”

Jackson later picked up that same thread.

“You said you’re not challenging the removal determination,” she told the Texas attorney. “Isn’t the executive branch’s authority to take people into custody because they’re going to effectuate removal?”

The justice then offered a hypothetical where an immigrant is arrested, in line with Texas’ wishes, while the government takes “nine months” or “a year” to decide whether or not to deport them. She then asked the state’s attorney whether, in his view, the federal government must “hold them indefinitely” as that decision is made.

Stone replied in the affirmative, adding that, according to Supreme Court precedent, “exercises of detention over non-citizens can be constitutionally tolerable even when they are constitutionally intolerable via citizens.”

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