At their discretion: The Supreme Court must throw out challenge to ICE prioritization rules
If you see a cop walk past a carjacking in progress to ticket a person for littering, you might rightly have some concerns about the officer’s understanding of the job.
Yet a nonsensically robotic approach to applying the law is more or less what a single federal judge in Texas has imposed on Immigration and Customs Enforcement agents nationwide with an injunction that throws out Homeland Security Secretary Alejandro Mayorkas’ prioritization scheme for immigration detention and deportation. It is up to the Supreme Court to set things right again.
In a June order, Trump-appointed District Judge Drew Tipton essentially blocked ICE from having any discretion on how to focus their efforts, meaning that the agency is legally obligated to pursue everyone equally, whether they’re a hardened meth trafficker or a working mom volunteering and raising her children in the Bronx.
Of course, this doesn’t magically give ICE the resources to target every single undocumented person in the country (they’ve never had that). Rather, it incentivizes the agency to go after the so-called low-hanging fruit — the very type of people who live peacefully in communities around the country and are not even attempting to evade detection and capture. The real public safety threats rejoice.
Discretion is a longtime principle in any enforcement agency, and the Biden administration rules were really just a return to form after Trump foolishly did away with prioritization in a misguided effort to seem tough. The high court erred in refusing to stay Tipton’s injunction this summer, but it now has the power to fully close the door on this dangerous and ahistorical interpretation of the law with a final ruling in the administration’s favor after hearing arguments in the case this week.
Finding against the government could have wide-ranging negative implications, creating a precedent for activist states to find favorable judges to take control over federal enforcement functions and sow chaos not just around immigration, but any agency that exercises judgment to keep the wheels of justice turning.
