WASHINGTON – The Supreme Court wrestled Tuesday with a Biden administration effort to prioritize certain immigrants in the country illegally for deportation in a case the government warned could be "incredibly destabilizing" for immigration enforcement.
During more than two hours of at times spirited argument, the justices appeared split in unconventional ways – particularly when it came to some of the procedural questions raised by the challenge from Texas and Louisiana. The states say President Joe Biden's policy has forced them to spend more money on law enforcement and health care.
At issue is a Biden memorandum last year that focuses enforcement on immigrants who pose a threat to national security, public safety or who recently crossed the border. The administration says it wants to prioritize those immigrants because it doesn't have the resources to remove everyone in the country illegally. The states counter that federal law gives Biden far less discretion to pick and choose targets for enforcement.
"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," Chief Justice John Roberts said, embracing an argument made by Texas and Louisiana. "I don't think we should change that responsibility just because Congress and the executive can't agree on something that's possible."
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But Associate Justice Brett Kavanaugh, another member of the court's conservative wing, repeatedly returned to a line of questioning about the practical impact of a ruling in favor of the states given that the Biden administration – like its predecessors – doesn't have the resources to implement all of the law's requirements.
"If you prevail here, what will happen?" Kavanaugh asked Texas Solicitor General Judd Stone. "That's a concern because I'm not sure much will change because they don't have the resources to change."
Stone said that individual immigration officers would have more power to enforce the law. He also questioned the administration's lack of resources, arguing that Biden officials have "repeatedly sought to decrease their enforcement capabilities."
The case is one of several challenges to Biden's authority raised by conservative states – an issue likely to become more prominent once Republicans take control the House of Representatives early next year. Biden's record at the high court on that question has been spotty in other areas of the law, with the 6-3 conservative majority shutting down his COVID-19 eviction moratorium and vaccine-or-testing mandate for large employers.
Though the case is about the Biden effort, the court spent just as much time debating procedural questions about whether states are able to sue over such policies and what lower federal courts may do once those suits are filed. Several justices from both ideological wings scrutinized a position put forth by the administration that a single trial court judge shouldn't be permitted to wipe out a policy for the entire nation.
Both Roberts and Kavanaugh described the government's view on the point as "radical." At one point, Kavanaugh told U.S. Solicitor General Elizabeth Prelogar that he found it "pretty astonishing" and "pretty extreme" that the Biden administration wanted to "toss out decades of this court's law" on what lower courts could do.
Prelogar acknowledged that lower courts have long exercised power to vacate administration policies like the one at issue but she said the high court hadn't had an "opportunity to actually engage with the arguments that we're making here." In other words, past practice by lower courts doesn't necessarily mean that's the right approach.
The argument seemed to draw some support from Associate Justice Neil Gorsuch, nominated by President Donald Trump. On the other hand, it appeared to draw skepticism from Associate Justice Ketanji Brown Jackson, a Biden nominee.
The administration has also questioned whether Texas and Louisiana should be allowed to sue at all. The states claim Biden's policy forced them to spend more money but critics have said the states have sought to increase their populations and that those same costs would rise with an influx of non-immigrants as well. Associate Justice Elena Kagan, nominated to the court by President Barack Obama, questioned the long-term implications of Texas' argument.
"We're just going to be in a situation where every administration is confronted by suits by states that can bring a policy to a dead halt, to a dead stop by just showing a dollar's worth of costs?" Kagan questioned. "We're creating a system where a combination of states and courts can bring immigration policy to a dead halt."
The Biden administration laid out its immigration priorities in a Department of Homeland Security memorandum last year. But the states say federal law demands more than Biden's approach: It requires the government detain immigrants who have committed certain crimes, such as aggravated felonies or human trafficking.
A federal district court in Texas sided with the states and halted the policy's enforcement. A three-judge panel of the New Orleans-based U.S. Court of Appeals for the 5th Circuit – all three of whom were nominated by GOP presidents – declined to put the district court's ruling on hold. Biden then filed an emergency request in July asking the Supreme Court to review the 5th Circuit's decision.
Days later, a 5-4 majority of the court declined Biden's request, barring his ability to carry out the policy. But the court also agreed to hear oral arguments, shifting the case off its emergency docket and delving more deeply into the merits of the legal questions at issue. The court's three liberal justices – joined by conservative Associate Justice Amy Coney Barrett – said they would have granted the Biden administration's request.
A decision is expected next year.
This article originally appeared on USA TODAY: Supreme Court grapples with Biden immigration policy on deportation