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Supreme Court justices may finally have to decide if the White House can write immigration rules

CNN 11/30/2022 by Joan Biskupic

When the Supreme Court heard arguments Tuesday over whether the Biden administration is flouting federal immigration law by prioritizing certain non-citizens for deportation, some justices revealed an underlying concern about how the government can realistically deal with more than 11 million undocumented people in the United States.

Also front and center was the reality that immigration has become a partisan battleground for successive administrations and red and blue state agendas, with courts ensnared in the middle.

“Immigration policy is supposed to be the zenith of federal power, and it’s supposed to be the zenith of executive power,” Justice Elena Kagan said. “And, instead, we’re creating a system where a combination of states and courts can bring immigration policy to a dead halt.”

The justices’ regard for consequences might, in the end, favor the Biden administration, which otherwise seemed to face an uphill climb Tuesday, defending its 2021 guidelines that target non-citizens who pose distinct dangers to national security, public safety and border security for removal over others.

Tuesday’s case, initiated by Republican attorney generals in Texas and Louisiana against the Democratic administration, represents the latest political showdown and test of how the high court balances its interpretation of law with possible reverberations on the ground.

It is a balance that Chief Justice John Roberts outwardly resists, seeking to confine the court’s concerns to the law.

“Now, it’s our job to say what the law is, not whether or not it can possibly be implemented or whether there are difficulties there,” Roberts told US Solicitor General Elizabeth Prelogar, as she argued for executive discretion on removal priorities, based on latitude in the law but also the sheer practicality of limited resources. “And I don’t think we should change that responsibility just because Congress and the executive can’t agree on something… . I don’t think we should let them off the hook.”

Still, even as Roberts voiced skepticism for Prelogar’s arguments, he demonstrated an awareness of the possible chaos that accepting the states’ arguments for a mandatory removal policy could bring.

Roberts’ comments recalled his past weighing of competing immigration interests, as in 2020, when he cast the key fifth vote favoring the Obama-era DACA program for people known as “Dreamers” who had come to the US as children without documentation, and last session when he wrote the 5-4 decision upholding the Biden administration’s move to end a “Remain in Mexico” policy requiring asylum seekers at the southern border to wait in Mexico while their claims were resolved

In both, Roberts subtly had an eye on practicalities in both of those rulings.

“It is impossible for the executive to do what you want [it] to do, right?” Roberts on Tuesday asked Texas state solicitor general Judd Stone, who argued that key sections of immigration law – dictating that certain non-citizens “shall” be taken into custody or removed – were mandatory.

Stone emphasized the detriment to Texas in the Biden administration’s discretionary approach, asserting, “we have not only law enforcement costs but social services costs and very serious threats of recidivism that must be considered.”

In her opening arguments, Prelogar had contended that the executive branch has long had discretion regarding law enforcement and needs latitude on those to be apprehended and removed because of limited resources.

“This court has repeatedly held that the word ‘shall’ does not displace background principles of enforcement discretion,” she argued. “Across 25 years and five presidential administrations, the agency has never implemented the INA (the Immigration and Nationality Act) in the manner that respondents suggest. Given congressional funding choices, it would be impossible for DHS to do so.”

Kavanaugh is a key justice to watch

The current Biden priorities for removing non-citizens, put forth in September 2021 memo from the Homeland Security secretary, reversed a tough across-the-board Trump administration policy, which in turn ended Obama-era practices on deportation priorities.

The Biden administration lost in lower courts, and it appealed on three grounds, that the states failed to show sufficient injury for legal “standing” in court; that the priority guidelines were lawful; and that the district court judge who heard the Texas claim lacked the authority to void the guidelines for the entire country. (An appellate court declined to stay the decision.)

Texas had chosen a sympathetic court for its initial challenge, a point of controversy that Kagan homed in on. “Just to think about the backdrop of this case and what’s going on here … you pick your trial court judge.” Then, she continued, “One judge stops a federal immigration policy in its tracks because you have a kind of … speculative argument that your budget is going to be affected.”

“Respectfully, your honor,” Stone interjected, “it’s not speculative.” He referred to a man who had been designated for deportation but then released in the state. “And then he was re-apprehended for committing human trafficking. That commits the kind of cost, both law enforcement and recidivism, that certainly forms the basis of an … injury” to justify a legal case.

Stone dismissed the justices’ concerns about the insurmountable expenses to the federal government of a broadscale deportation mandate – an emphasis of Roberts and, to some extent, Justice Brett Kavanaugh, who could be a pivotal vote in this immigration controversy.

In last session’s dispute over Biden’s effort to end the Trump “Remain in Mexico” policy, Kavanaugh had cast a crucial vote with Roberts, along with the court’s three liberal justices, to back the Biden change.

On Tuesday, Kavanaugh told Stone, “I’m just trying to figure out how this will play out if you were to prevail. So the government says ‘we don’t have the money to comply.’ Then, what do you do?”

Stone did not directly answer.

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