Bloomberg Law
Nov. 28, 2022, 9:45 AMUpdated: Nov. 28, 2022, 2:18 PM

Justices to Hear Texas-Led Attack on Biden Immigration Plan (1)

Ellen M. Gilmer
Ellen M. Gilmer
Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

The Supreme Court is set to review a stalled US enforcement effort aimed at immigrants considered safety or security threats, a step Texas calls too narrow and unlawful in its latest legal challenge to Biden administration policies.

US v. Texas to be argued Tuesday centers on a Homeland Security Department memo but has attracted wider attention for its potential impact on prosecutorial discretion across the government. It’s also the latest showdown in the often successful legal campaign by Republican-led states to block the policies of President Joe Biden, especially on immigration.

DHS Secretary Alejandro Mayorkas in 2021 directed US Immigration and Customs Enforcement to focus resources on arresting and deporting noncitizens deemed most dangerous, plus recent border-crossers. The policy departs from Trump-era enforcement against anyone in the country without authorization and was scrapped by a Texas judge this year.

“The district court’s nationwide vacatur thwarts the Secretary of Homeland Security’s exercise of his statutory authority to set priorities for the agency he leads,” Justice Department lawyers toldthe Supreme Court.

Texas, Louisiana, and other critics argued the policy allowed too many noncitizens to avoid consequences for entering illegally, overstaying visas, or otherwise violating immigration laws. The guidelines violate provisions of law that require DHS to detain and deport certain immigrants, including those with a record of aggravated felonies, the states argued.

A federal district court in Texas blocked the Biden policy nationwide this year, and the US Court of Appeals for the Fifth Circuit and the Supreme Court rejected the Biden administration’s bids to freeze that ruling.

The arguments will center on whether enforcement priorities violate the Administrative Procedure Act or the Immigration and Nationality Act, whether the states have standing to challenge the policy, and whether a separate provision of the INA bars district courts from enjoining such policies.

‘Not Enough Money’

Justice Department lawyers say DHS is exercising typical prosecutorial discretion in deciding when to take enforcement action, and say Texas’ contrary interpretation is “both unprecedented and infeasible,” given the astronomical resources that would be required to arrest and deport all of the estimated 11 million undocumented immigrants in the US.

“Not even the Trump administration even came close to doing that,” George Mason University law professor Ilya Somin said during a recent Federalist Society event.

Nine former immigration enforcement officials from Republican and Democratic administrations filed an amicus brief supporting the federal government’s argument. Guidepost Solutions CEO Julie Myers Wood, who led ICE during the George W. Bush administration, noted she set out her own enforcement priorities at the time.

“It’s important to retain this right for future leaders of the agency and for future administrations” to make choices with limited resources, she said in an interview. “There’s not enough money, there’s not enough lawyers, there’s not enough facilities.”

Others agree with the Republican state officials that the Biden memo goes too far.

Ronald Vitiello, who was acting head of ICE during part of the Trump administration, argued prosecutorial discretion should be practiced on an individual basis by line agents. The Biden memo includes provisions preserving ICE officials’ ability to make judgment calls as they go, but Vitiello said they don’t actually feel they have that flexibility, given the overarching message to deprioritize certain immigrants.

With fewer immigrants targeted, Texas and Louisiana argue they’re on the hook for more costs related to law enforcement, recidivism, health care, and education.

The Supreme Court’s decision to review the case follows a split among circuit courts. The Fifth Circuit in July said it was “inclined to agree” with a Texas district court’s conclusion that the Biden enforcement priorities violate federal law. Just days earlier, the Sixth Circuit dissolved a lower court’s injunction after ruling against other state challengers on standing and noting the government has “considerable discretion over whom to arrest and remove.”

Judge Shopping

The case is the 29th federal lawsuit brought by Texas to challenge Biden administration policies, according to University of Texas at Austin law professor Stephen Vladeck, who filed a friend-of-the-court briefbacking the policy.

Texas’ efforts continue an uptick in states—both red and blue—seeking to rein in executive power via the federal courts.

It’s a direct response to recent presidential administrations—from Obama to Trump to now Biden—seeking to use executive power to achieve policy aims they couldn’t get through Congress, according to Troutman Pepper partner Misha Tseytlin, who joined multistate challenges to presidential policies as Wisconsin’s solicitor general.

Historically states weren’t bringing these legal challenges, said Bursch Law founder John Bursch, who previously served as Michigan’s solicitor general. “It’s a recent phenomena” that “every years seems to get more active,” Bursch said.

Those challenges have raised concerns that states are abusing the federal court system for partisan gain through “forum shopping"—that is, seeking to file in a court perceived to be more favorable to a state’s claims.

Bursch noted a string of challenges to Trump administration policies that were brought in courts “stacked with Democratic-appointed judges.”

But Vladeck argues what Texas is doing is “actually different in both degree and kind from the forum shopping we’ve come to expect from savvy litigants in our system.”

What Texas is doing is not just forum shopping, but “judge shopping,” Vladeck said, “where a number of litigants, and most prominently the state of Texas as a litigant, are actually filing in particular divisions within the federal district courts where they have in many cases a 100% chance—in some cases a 95% chance—of drawing not just from a favorable pool of judges, but actually a specific judge.”

Several GOP-led efforts to undo Biden policies have already reached the Supreme Court on its merits and emergency dockets. Those have included federal vaccine mandates for workers and the administration’s efforts to cancel the Trump-era remain in Mexico policy. The states won on vaccines and lost the immigration case.

(Recasts lead paragraph and adds case title in paragraph 2.)

To contact the reporters on this story: Ellen M. Gilmer in Washington at; Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: John Crawley at; Anna Yukhananov at

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