Author Topic: Justices delve into a trio of thorny issues in states’ challenge to federal immigration policy  (Read 299 times)

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Offline Elderberry

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SCOTUSblog by Amy Howe 11/29/2022


ARGUMENT ANALYSIS


The Supreme Court heard oral argument on Tuesday in a challenge to a Biden administration policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation. Although some justices questioned the legality of the policy, there were also questions about whether the states challenging the policy could bring their lawsuit at all, and whether a federal district judge had the power to set aside the policy. After nearly two-and-a-half hours of debate, it was difficult to predict precisely how the justices will resolve the case, which could have significant implications not only for the the executive branch’s ability to set immigration policy but also for states’ ability to sue the federal government when they disagree with its actions.

The policy at the center of the case is set forth in a September 2021 memorandum by Secretary of Homeland Security Alejandro Mayorkas. The memorandum explains that because the Department of Homeland Security does not have the resources to apprehend and deport all of the more than 11 million noncitizens who could be subject to deportation, immigration officials should prioritize the apprehension and deportation of three groups of noncitizens: suspected terrorists, people who have committed crimes, and those caught recently at the border.

Texas and Louisiana went to federal court in Texas to challenge the policy. U.S. District Judge Drew Tipton agreed with the states that the policy violates federal law and vacated it nationwide.

When the Supreme Court decided to take up the case, it directed the parties to address three questions. The first was whether the states had a legal right to bring their lawsuit – a concept known as standing. Texas Solicitor General Judd Stone told the justices on Tuesday that the states have standing because of the costs that the policy inflicts on them, for everything from social services to incarceration for noncitizens who commit new crimes.

Justice Ketanji Brown Jackson suggested that any harm that the states suffered was the result of decisions they made, rather than the policy itself. If the federal government has decided not to detain some noncitizens with a criminal history because it doesn’t believe that they are a risk, she said, but Texas nonetheless opts to detain them, Texas has chosen to incur a self-inflicted injury.

Justice Elena Kagan was perhaps the strongest proponent of the idea that the states do not have standing. She told Stone that, under his theory, states could challenge virtually all immigration policies – “not to mention all the other policies in the world” – even if they cost the states only one dollar. Immigration policy, she said, is supposed to be the “zenith” of federal power, but instead Stone’s theory would allow states to bring immigration policy to a “dead halt.”

U.S. Solicitor General Elizabeth Prelogar, representing the Biden administration, echoed Kagan’s sentiments. She too stressed the “consequences of the district court’s very broad” conception of standing: Any state can challenge any decision by the federal government, and if it can persuade just one federal district judge, he can issue an order blocking the policy nationwide. That in turn, she reminded the justices, will lead the federal government to come to the Supreme Court, asking it to intervene on an emergency basis – without oral argument or the benefit of several decisions by the lower courts exploring the question. Such a process, she said, is “bad for the executive branch,” “bad for the American public,” and “bad for” federal courts.

More: https://www.scotusblog.com/2022/11/justices-delve-into-a-trio-of-thorny-issues-in-states-challenge-to-federal-immigration-policy/