The Supreme Court on Tuesday questioned the Biden administration’s authority to prioritize which non-citizens to deport when hearing a challenge brought by two Republican state attorneys general who say the Department of Homeland Security is skirting federal immigration law.
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. “Shall means shall,” Roberts said. “Shouldn’t we just say what the law is,” he suggested, and leave it to the other branches to figure out how to comply with it. But later, both Roberts and Kavanaugh acknowledged a key argument put forward by the government: that Congress had not provided the necessary funds for the government to try to remove every non-citizen.
Lawyers for Texas and Louisiana argued that the government lacked the authority to issue the memo because it conflicts with federal law. They point to immigration law that holds that some immigrants “shall” be taken into custody or removed. In his memo, Mayorkas stated that there are approximately 11 million undocumented or otherwise removable non-citizens in the country and that the United States does not have the ability to apprehend and seek to remove all of them. As such, the Department of Homeland Security sought to prioritize those that pose a threat to national security, public safety and border security.
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