Tuesday, the Supreme Court questioned the Biden administration’s ability to prioritize which non-citizens to deport in response to a lawsuit brought by two Republican state attorneys general who allege that the Department of Homeland Security is circumventing federal immigration law.

In this case, the justices considered three independent questions, which allows for shifting majorities. After debate, it was unclear if there was a clear majority in any one region.

The lawsuit was filed by Texas and Louisiana.

“At the heart of the dispute is a September 2021 memo from Homeland Security Secretary Alejandro Mayorkas that laid out priorities for the arrest, detention and deportation of certain non-citizens, reversing efforts by former President Donald Trump to increase deportations,” CNN reported, adding:

Several of the conservative justices on Tuesday seemed ready to rule in favor of the states on a major threshold issue: whether Texas and Louisiana had the legal right to bring the challenge in the first place.

Turning to the merits of the case – whether the Biden administration’s guidelines conflicted with two provisions of federal law – Alito, Chief Justice John Roberts, and Justice Brett Kavanaugh repeatedly noted that the law states that certain immigrants “shall” be detained or removed, indicating skepticism regarding the administration’s discretion in the area.

“Shall means shall,” Roberts said. “Shouldn’t we just say what we think the law is,” he suggested, and leave it to the other branches to “sort that out.”

More than two hours were spent arguing.

A district court judge halted the rules nationally.  “Using the words ‘discretion’ and ‘prioritization’ the Executive Branch claims the authority to suspend statutory mandates,” ruled Judge Drew Tipton, a Trump appointee on the US District Court for the Southern District of Texas. “The law does not sanction this approach.”

Last July, the Biden administration petitioned the Supreme Court for emergency relief after a federal appeals court failed to issue a stay of the judgment. A court with a vote of 5 to 4 decided against the administration, allowing the lower court’s ruling to stay in place pending the outcome of the legal case.

Amy Coney Barrett, a conservative justice, joined her three liberal colleagues in dissent without offering a reason for her decision.

In his memo, Mayorkas indicated that there are about 11 million illegal or otherwise removable non-citizens in the nation, and that the United States lacks the capacity to arrest and remove them all. As a result, the Department of Homeland Security prioritized threats to national security, public safety, and border security.

Prelogar said that the lower court’s ruling against the administration is contrary to established norms. She stated that the recommendations are not binding directives mandating action, but rather an effort to maximize existing resources while leaving discretion to the discretion of individual immigration authorities.

More on this story via The Republic Brief:

As a threshold matter, she urged the justices to dismiss the challenge, arguing that the states don’t have the legal right – or standing – to be in court.

Prelogar said if the lawsuit were allowed to go forward, any state could sue the federal government about “any policy with which they disagree.” CONTINUE READING…