Supreme Court hears case challenging federal authority to decide deportations

The Supreme Court is weighing border security and the extent to which states can challenge federal policy. Texas and Louisiana are contesting the Biden administration’s guidelines on who should be prioritized for deportation. Marcia Coyle of the National Law Journal and Theresa Cardinal Brown of the Bipartisan Policy Center joined John Yang to discuss the arguments.

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  • Judy Woodruff:

    The Supreme Court heard a case today that could have broad implications for how the nation's immigration laws are enforced.

    Correspondent John Yang is here with more on the day's arguments.

  • John Yang:

    Judy, two states, Texas and Louisiana, are challenging the Biden administration's guidelines on who of the 11 million people in the country illegally should be prioritized for deportation.

    Here's our resident Supreme Court watcher, Marcia Coyle, the chief Washington correspondent for "The National Law Journal," who was in the courtroom today, and Theresa Cardinal Brown. She's the managing director for immigration and cross-border policy at the Bipartisan Policy Center.

    Theresa, what's the difference that Texas and Louisiana are complaining about, the difference between what the immigration law says and what the Biden administration guidelines say?

  • Theresa Cardinal Brown, Bipartisan Policy Center:

    So, President Biden when he came in asked the secretary of homeland security to review the prioritization of who immigration officials should go after for arrest, for deportation in the United States.

    President Obama has had similar guidelines. President Trump withdrew them. And President Biden went and instituted new ones. So they issued a memorandum that is an exercise of what they call prosecutorial discretion, which is, we don't have the resources to arrest everybody who's undocumented in the United States and deport them. So we want to figure out how we tell our people to prioritize.

    What Texas and Arizona said is the immigration law doesn't give you that authority. The immigration law says, if somebody is undocumented, you shall take them into custody and you shall put them in removal proceedings.

    And so some of the debate is, does shall mean shall or does shall mean might?

  • John Yang:

    And, Marcia, there was also discussion about the difference between the immigration law, the words of the immigration law, and reality.

    Here's Justice — Chief Justice John Roberts.

    John Roberts, Chief Justice of the U.S. Supreme Court: Assuming we think it would be, if not impossible, surprising and very difficult, for the executive to comply, isn't that a consideration? We should take into account in trying to figure out if shall means shall?

    Because, certainly, there are cases where we have said shall means may.

  • John Yang:

    Shall may mean may?

    Marcia Coyle, "The National Law Journal": That's right. And the court has said that.

    And I think the broader context here is really about the discretion that federal agencies have in order to go after violations, not just immigration, but any federal agency that is enforcing a law tries to prioritize who they will go after based on the resources they have, the seriousness of the violation.

    So this case is being watched closely, not only for immigration, but for what the court may say about that type of discretion.

  • John Yang:

    And, Theresa, what are the constraints? Why — would it be, in the words of the chief justice, perhaps be impossible, surprising and very difficult for the administration to actually carry out the letter of immigration law?

  • Theresa Cardinal Brown:

    As you mentioned, the estimates are there are about 11 million undocumented people in the United States.

    We know that, in our immigration courts today, there are two million cases waiting to decide if people will be deported. And ICE, the Immigration and Customs Enforcement agency, the agency charged with arresting people and putting them in proceedings, only has a few thousand agents for the entire country.

    So it's impossible for them to find and arrest 11 million people or even put them in detention, because Congress has not allocated sufficient resources to detain them until they can decide whether or not they can be put into proceedings.

  • John Yang:

    And, Marcia, another issue that came up in the arguments today was the question of whether or not Texas and Louisiana have the right to bring this case, what's called standing.

    They are arguing that the administration's guidelines may require them to spend more on things like education, law enforcement, social services, but Elena — Justice Elena Kagan questioned that.

  • Elena Kagan, U.S. Supreme Court Associate Justice:

    It's just not enough that you're coming in here with a set of speculative possibilities about your costs,. You have to do more than that, given the backdrop of what has become, I think, a system that nobody ever thought would occur, which is that the states can go into court at the drop of a pin and stop federal policies in their tracks.

  • John Yang:

    What's the significance of this, not only in this case, but in the broader outlook?

  • Marcia Coyle:

    Well, first of all, I think she was telegraphing that she doesn't think the states here have standing, because the costs that they say they're incurring or would incur are just too speculative.

    And, as she pointed out in that clip, later, that it would only take $1 with some judges before they would just knock down a government policy, and any state could come in on any policy at any time with speculative costs. But she was also making a point about what has happened. It's not just Republican-led states. It's Democratic-led states as well that, when they don't like a policy, a government policy, they will go into court, and they will offer these types of costs in order to get standing to bring their lawsuits.

    And then, she said, they find a judge that might be sympathetic, because they know — and they know where to file these cases. And that judge, on the basis of a dollar of costs, could bring a government policy to a dead halt.

    And that's something that I think she and others on the court are very concerned about.

  • John Yang:

    Theresa, what about that argument? What are the burdens or the costs on the states of this — of these Biden guidelines?

  • Theresa Cardinal Brown:

    Well, I think the problem is that there's not a differentiation between the overall costs that a state might bear for immigrants that are living in the state and what additional cost implementation of these guidelines might make.

    Immigrants in a state that are undocumented may be working and may be paying taxes, but, yes, their kids may be in school, they may have health care costs that those states have to bear. That's the case with any state that has immigrants in it. If you're trying to differentiate what's the cost of this particular policy, then you are trying to guess how many additional immigrants might be in any given state.

    And I think that's really hard to do.

  • John Yang:

    Marcia, there was also a lot of discussion about what this judge in Texas did when the case originally came to him. He wiped out the guidelines entirely.

  • Marcia Coyle:

    He did.

    In fact, you usually think, when judges are faced with cases like this, they might issue an injunction, which basically blocks it, maybe a nationwide injunction, but it still allows the case to go forward on appeal, even if the government can't continue to implement it.

    But this particular judge used something called vacatur, which means that he vacated the whole policy. It didn't exist. And the government, the United States says, you can't do that. That's not the kind of remedy that the law allows. And so there was a lot of discussion about a law that we have talked about before, the Administrative Procedure Act, which is the rules of the road for federal agencies when they enact new policies or change them, and whether that act allows federal judges to wipe out a government policy, instead of just blocking it pending an appeal.

    What the court is going to do with that, I don't know. I know the chief justice called it a radical argument, because judges are used to using vacatur. But I think the government's given them some food for thought.

  • John Yang:

    Marcia Coyle of "The National Law Journal," Theresa Cardinal Brown of the Bipartisan Policy Center, thank you very much.

  • Marcia Coyle:

    My pleasure, John.

  • Theresa Cardinal Brown:

    Thank you.

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