AUSTIN – The US Supreme Court will hear oral arguments in an immigration policy case arising from a Texas challenge on Nov. 29.
In the United States v. Texas case, judges will debate whether the Biden administration’s revised immigration policy violates the Administrative Procedures Act.
Texas argues that the Biden administration failed to follow proper political procedures when the US Department of Homeland Security issued new guidance in September 2021.
The policy directed immigration officials to prioritize the arrest and deportation of certain categories of people who entered the country illegally, including those who “pose a threat to national security,” those who pose a “threat to… representing public security, typically due to serious criminal behavior” and those representing “a threat to border security”. The guidelines define non-citizens as those apprehended at the border or who arrived in the United States after November 1, 2020.
In an attempt to overturn the guidelines, attorneys on behalf of Texas argue that the guidelines are prejudicial to states and “substantially and procedurally unlawful.”
In addition to the federal government overriding what Texas calls standard practice when issuing guidance, the guidance also imposes “significant unrecoverable financial costs on states, including health care, education, and correctional facilities.”
“Just as there is always a public interest in the prompt execution of deportation orders, there is always a public interest in the detention of criminal aliens consistent with Congressional mandates,” Texas said in its brief. “The non-detention of such aliens ‘permits and perpetuates a continued violation of US law.’ ”
The lower courts sided with Texas, finding the policy unlawful because it “[conferred] discretion [on officers] to decide independently who will be detained and when – if at all.”
In addition, the Court of Appeals concluded that the guidelines violate the Immigration and Nationality Act, which mandates the “mandatory detention” of illegal entrants to the United States.
In counterargument, the American Civil Liberties Union filed an amicus curiae letter on behalf of the guidelines.
It noted that the document “guides only discretionary powers where it exists and does not address issues of liability,” so it does not override statutory mandates, Texas argues.
The ACLU also argued that even if the court found a violation of the guidelines, that was only a small section and did not constitute the reversal of the entire policy.
This isn’t the first time Texas is suing the Biden administration over immigration policies. Earlier this year, Texas lost its case when it blocked the Biden administration from ending the controversial Migrant Protection Protocols, also known as Remain in Mexico.
In this case, Texas also argued that federal law requires mandatory detention of illegal immigrants. SCOTUS ruled in favor of the Biden administration, giving it legal authority to end MPP.
Arguments in the latest case are scheduled to begin at 9am on November 29.