Last Friday, the U.S. Supreme Court issued a decision in U.S. v. Texas, which allows the Biden administration to resume its implementation of guidelines for immigration enforcement within the interior of the United States, otherwise known as enforcement priorities. The Court held that the states challenging the legality of the enforcement priorities lacked the required standing, a legal requirement to bring the issue before the courts.

The 8-1 opinion, written by Justice Kavanaugh, held that decisions about whom to arrest and prosecute rest with the executive branch, and that courts generally lack the power to tell the federal law enforcement agencies to arrest more people.

For decades, both democratic and republican administrations have issued guidelines that direct the immigration enforcement agencies to focus their resources on arresting and deporting certain classes of individuals. These guidelines instruct U.S. Immigration and Customs Enforcement to use prosecutorial discretion in favor of people who fall outside of the identified priorities, which in theory, should result in ICE officers not pursuing their removal.

In 2021, the Biden administration sought to establish its enforcement priorities through a series of memoranda. Initially, the administration set out interim guidelines in January and February 2021.  Department of Homeland Security  Secretary Alejandro Mayorkas then issued final guidance in September 2021. The memorandum affirmed that DHS would focus its enforcement efforts on people who:

  • Posed a threat to national security.
  • Posed a threat to public safety.
  • Posed a threat to border security.

Each of these categories relies on factors that officers must consider before taking enforcement actions against individuals.

A coalition of states, led by Texas and Louisiana, filed a lawsuit to stop the agency from applying these priorities and essentially erode prosecutorial discretion. The states argued that Secretary Mayorkas’s enforcement priority guidelines violate immigration law. The states also argued that the government should have gone through the procedures set by the Administrative Procedures Act required when an agency takes certain action. The lawsuit worked its way up to the Supreme Court.

The Court’s decision to dismiss the states’ lawsuit on standing grounds meant that the Court could sidestep deciding whether implementation of enforcement priorities actually violated immigration law or the Administrative Procedures Act.  In explaining the Court’s decision on standing, Justice Kavanaugh said that “lawsuits alleging that the Executive Branch has made an insufficient number of arrests or brought an insufficient number of prosecutions run up against the Executive’s Article II authority to enforce federal law.”

This decision presents a major victory for the Biden administration. Prior to the Supreme Court’s ruling, a lower court in Texas stopped DHS from implementing its enforcement priority guidelines, which led to uncertainty as to how DHS exercised its prosecutorial discretion. Shortly after the decision, Secretary Mayorkas said DHS would move to reinstitute the application of enforcement priorities.

The Supreme Court’s decision also may have wider implications beyond this case. Red states, such as Texas and Florida, have filed lawsuits to thwart parts of the Biden administration’s immigration agenda. These cases rely on the premise that the states meet the standing requirements.

For example, in Texas v. DHS, a coalition of states led by Texas is suing DHS to halt the Biden administration’s implementation of the humanitarian parole programs for nationals of Cuba, Haiti, Nicaragua and Venezuela. While the Supreme Court’s decision arises in the context of DHS’s authority to arrest and prosecute, district courts must now account for this decision, which should give some pause to the courts and to the states themselves to use the courts as a means to thwart the execution of federal policy.

The issuance of enforcement priorities guidelines is by no means a panacea for how ICE conducts its business. A recent study showed that roughly one-third of ICE’s enforcement action between February and November 2021 while the priorities were in place prior to the memo being vacated by the federal district court in Texas were against individuals who were not classified under the priorities. The mere existence of this guidance does not ensure that prosecutorial discretion is exercised in a humane or consistent manner.

As the government reinstitutes its priorities, it is imperative they include a data keeping requirement that is available to the public and that DHS conduct meaningful and periodic oversight of whether ICE is adhering to its own policies.