WASHINGTON (CN) — Red states are once again taking their fight over President Joe Biden’s border policies to the Supreme Court, with a case next week challenging federal enforcement of U.S. policies.
President Joe Biden’s effort to impose more accessible asylum procedures have left the administration to face roadblocks from suits filed by Republican-led states that favored the stricter policies of Biden's predecessor.
Like most of the presidents before him, Biden is facing a problem he doesn’t have the resources to solve. The Department of Homeland Security says there are over 11 million noncitizens in the country, and the government doesn’t have the manpower to apprehend and remove every single one of them.
In recognition of this conundrum, the Biden administration provided guidance to Immigration and Customs Enforcement officers for which noncitizens should take priority. Homeland Security Secretary Alejandro Mayorkas identified three groups for ICE agents to focus their efforts on: noncitizens who pose a danger to national security, threaten public safety, or pose a threat to border security. Mayorkas’ guidance to ICE agents included a framework for determining whether a noncitizen meets these criteria but also gave officials prosecutorial discretion, emphasizing that they are not forced to take action in any particular case.
The Biden administration’s authority for its guidance rests on two statutes. Homeland Security has been ordered to detain noncitizens convicted of certain offenses but is authorized to release those same citizens in a limited number of circumstances. The agency is also instructed to remove noncitizens within 90 days after a final order of removal or other triggering event.
Several red states claim, however, that the Biden administration’s new guidelines negate Congress’ directive. They say that the Immigration and Nationality Act requires Homeland Security to detain certain criminal noncitizens at a specific time and duration. They also claim Congress has instructed Homeland Security to keep noncitizens detained until final orders of their removal are issued.
Before the Biden administration could issue its final policy laying out the new guidelines, Texas and Louisiana had already filed a suit seeking a preliminary injunction based on interim guidance set in January 2021. By August, the states were able to halt Homeland Security in its tracks, when a Trump-appointed judge ordered the agency to stop enforcing its new guidelines for deportations. A panel on the Fifth Circuit initially reversed the injunction, but then the en banc court vacated the stay.
In September 2021, after a trial on the final memorandum, the district court again ruled against the Biden administration. Finding that ICE officers do not have the discretion to go outside the enforcement policies, the district court threw out the memorandum. The Fifth Circuit declined an attempt by Homeland Security to block the ruling.
The Biden administration then turned to the high court, asking the justices to revive the policy. The Supreme Court sided with the states in a 5-4 vote, preventing the administration from enforcing the guidance. Justice Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson would have blocked the district court’s ruling while the appeal proceeded. The Supreme Court did agree, however, to add the Biden administration’s appeal to their docket.
Texas and Louisiana are asking the justices to permanently throw out Biden’s deportation policies, stating they are unlawful. The states argue that Congress has mandated detention for noncitizens and that the policy is “arbitrary and capricious” because it doesn’t take into account the problems noncitizens create for states. Texas and Louisiana also claim the administration implemented the policy without going through the proper notices and comment procedures.
“Through the Immigration and Nationality Act, Congress has mandated that the Executive must detain specific criminal aliens (e.g., aggravated felons) at a specific time (upon release from criminal custody) for a specific duration (during the removal period),” Texas Solicitor General Judd Stone II wrote in the states’ brief. “Congress has also required the Executive to detain aliens subject to final orders of removal pending their removal. The Executive would rather not.”