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Case challenging the Biden administration's ICE priorities heads to SCOTUS this week

Published: Monday, November 28, 2022 - 6:03pm

The Supreme Court is hearing oral arguments beginning Tuesday on a case brought by Texas that challenges the Biden administration’s immigration enforcement priorities.

The case centers on a 2021 memo issued by Department of Homeland Security Secretary Alejandro Mayorkas, which directs ICE officers to prioritize arresting undocumented immigrants who pose a national or public security threat, rather than those who do not. 

Aaron Rechlin-Melnick with the American Immigration Council says this is prosecutorial discretion, and many past administrations have done the same.

"This is because there are more than 11 million undocumented immigrants in the United States and ICE doesn’t have the ability to deport more than a couple 100,000 each year. That means that ICE, like every other law enforcement agency, has to pick and choose who they go after," he said. 

But Texas argues the memo allows too many undocumented immigrants to avoid arrest. The state filed suit alongside Louisiana last year to invalidate the enforcement priorities.

Reichlin-Melnick says if the Supreme Court sides with the states, it could strip the Biden's administration and those in the future of the ability to decide how federal law enforcement resources are used.

Texas also argues it has the right to challenge the memo because undocumented immigrants who are not prioritized for deportation could stay in Texas and use state resources, the Biden administration argues that is not grounds enough to file suit. Rechlin-Melnick says how the Supreme Court rules on that front could have implications that go well beyond immigration policy, because it asks the key question of whether states can sue to stop federal policy.

"Over the last decade, we have seen states start to sue the federal government at paces never seen before, under the Trump administration, California filed 122 lawsuits against the Trump administration, and in the last year and a half alone, Texas has filed more than 30 lawsuits against the Biden administration," he said. "In this case, the Supreme Court is going to decide how Texas can get into the court in the first place and whether or not they should be able to ask federal judges to overturn entire policies even in cases where Texas in not impacted."

Fronteras Immigration Law Enforcement