SCOTUS Weighs Biden Administration’s Enforcement Restrictions

Solicitor general all but invites GOP to ‘make Biden’s life difficult’ if they want the law enforced

By Andrew R. Arthur on December 13, 2022

The Supreme Court heard arguments last month in U.S. v. Texas, a challenge by the states of Texas and Louisiana to restrictions DHS Secretary Alejandro Mayorkas has imposed on ICE enforcement. The issues in that case are not purely theoretical given the deleterious impacts of Mayorkas’ enforcement restrictions on public safety, while the U.S. solicitor general all-but invited incoming House GOP leadership to “make the executive’s life difficult” if it wants the immigration laws enforced.

Mayorkas’ Restrictions on ICE “Enforcement Action” Through three separate memos — the first issued the day President Biden was sworn in — the administration has attempted to constrain the ability of U.S. immigration officers to investigate, question, arrest, detain, prosecute, and remove aliens in the United States (collectively known as “enforcement action”).

Texas, as noted, is a case brought by state plaintiffs that have been adversely affected by these non-enforcement policies.

On June 10, Judge Drew Tipton of the U.S. District Court for the Southern District of Texas vacated the latest of those memos, issued by Mayorkas in September 2021 and captioned “Guidelines for the Enforcement of Civil Immigration Law” (Mayorkas memo).

Building upon and refining the two preceding guidance memos, the Mayorkas memo “prioritizes” three classes of aliens for enforcement action: spies and terrorists (threats to national security); aliens who entered illegally on or after November 1, 2020 (threats to border security); and aliens convicted of “serious criminal conduct” (threats to public safety).

While not as restrictive in its scope as the prior two Biden administration memos, the Mayorkas memo requires immigration authorities (primarily but not exclusively ICE officers and attorneys) to consider so-called “aggravating” and “mitigating” factors that “militate” in favor of or against (respectively) the taking of enforcement action against facially removable aliens.

Findings in Texas. Reviewing the evidence presented, Judge Tipton found that the Mayorkas memo increased the number of criminal aliens and aliens with final orders of removal who were being released into the plaintiff states and into the United States as a whole.

More saliently, however, Judge Tipton concluded that two provisions in the Immigration and Nationality Act (INA) — sections 236(c) and 241(a) of the INA — impose mandatory duties on DHS to take criminal aliens described therein into custody, duties with which the Mayorkas memo is in conflict.

He further held that Mayorkas’ recourse to prosecutorial discretion to not detain those aliens contravened the language of those provisions, Supreme Court precedent, and the legislative history of those provisions. Finally, he concluded that the state plaintiffs fell within the “zone of interests” that those statutes were intended to protect.

Subsequent Litigation History in Texas. The administration asked the Fifth Circuit to stay Judge Tipton’s order, a request it denied on July 6. That prompted the administration to seek relief from the Supreme Court, where again DOJ requested a stay of Judge Tipton’s order.

On July 21, the justices denied that stay, but the Court granted the government’s request for certiorari before judgment, bypassing circuit court appeal of Judge Tipton’s order so that the justices could hear the case directly, which they did on November 29.

Oral Argument. Much of the discussion at oral argument on that date concerned whether the state plaintiffs even had standing to bring the case at all (though many of the justices appeared to have no doubt they could), but a key point was whether the use of the word “shall” in the two INA provisions constrained the administration’s ability not to comply with those statutes.

U.S. Solicitor General Elizabeth Prelogar argued that those laws must be read as being discretionary because Congress hasn’t given DHS sufficient resources to enforce those mandates.

As an aside, that’s a curious point, given that a “Considerations” memo that accompanied and implemented the Mayorkas memo referenced as support “academic literature, which points to a negative relationship between immigration and crime” and “micro-level research that generally finds lower criminal involvement by foreign-born individuals, relative to their native-born counterpart”.

In other words, if aliens are less likely than the native-born to be criminals, why wouldn’t DHS be expected to detain and remove the handful of aliens Congress has directed it to detain and remove? But I digress.

All law-enforcement agencies face resource constraints, and thus have traditionally been given latitude to use prosecutorial discretion to determine which offenders they should pursue.

One practical problem with the Mayorkas memo is that it forces ICE agents and attorneys to use their limited resources to consider aggravating and militating factors Congress never told them to consider before ever taking enforcement action — a requirement that essentially wastes the resources the Biden policy contends its conserving.

Consider an extreme case, that of an alien convicted of raping and murdering a minor. Murder, rape, and sexual assault of a minor are each aggravated felonies under section 101(a)(43)(A) of the INA, and under section 236(c) of the INA, that alien is subject to DHS custody as soon as “the alien is released” from incarceration for those offenses.

Despite that (and the heinous nature of the offense), the Mayorkas memo requires DHS officers to consider, for example, “the impact of removal” on the alien’s “family in the United States” before taking enforcement action. That’s because, as the secretary has stated “Whether a noncitizen poses a current threat to public safety is not to be determined according to bright lines or categories”—even when the alien’s crime shocks the conscience.

For that reason, the Mayorkas memo is perhaps the most extreme example of prosecutorial discretion. If the Court allows the administration to proceed in this procrustean effort, no congressional mandate could survive.

The 1996 Act and Transitional Rules. The legislative history of sections 236(c) and 241(a) of the INA underscores, however, that Congress intended those provisions to be enforced punctiliously, a point Texas Solicitor General Judd Stone II — arguing for the state plaintiffs — made before the Court.

Chief Justice Roberts asked Stone whether DHS’s ability to comply with those restrictions shouldn’t inform the Court’s analysis of whether the words “shall take into custody” in section 236(c) of the INA should be interpreted as a mandatory directive notwithstanding DHS’s inherent prosecutorial discretion authority.

As Stone explained, “Congress actually considered” the administration’s “exact excuse” that it lacked resources to comply with the mandates in those provisions in 1996, when it added that provision to the INA in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

Included as part of the criminal alien detention provision in section 236(c) of the INA in IIRIRA were the “Transition Period Custody Rules”, which one court described as “a two-year grace period for application of the” detention mandates in that section.

As the states explained in their brief to the Court: “During that grace period, insufficient bed space could excuse INS’s mandatory duties under section [236(c) of the INA]. INS [ICE’s predecessor in interior enforcement] sought to extend the two-year period, but Congress refused, and the mandate took effect.”

Why would Congress take such a tough stance on criminal alien detentions? As the Supreme Court itself held in 2003, Congress adopted section 236(c) of the INA in IIRIRA “against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens”.

Decline in Interior Enforcement Under Biden. What’s past is prologue, and as my colleague, Jessica Vaughan, explained on December 8, we are seeing another such wholesale failure — this time by the Biden administration — to deal with criminal activity by aliens.

Among her key findings in a report published on that date were the following facts:

  • Under Biden enforcement priorities, there was a 71 percent decline in removals of deportable aliens who came to ICE’s attention due to a local criminal arrest.
  • Ten states experienced an extreme decline in enforcement of greater than 80 percent under Biden policies (Connecticut, Georgia, Idaho, Mississippi, Montana, Nevada, North Dakota, South Carolina, Tennessee, and Vermont).
  • Of the 50 U.S. counties that typically have the most criminal alien removals, 14 experienced extreme declines (greater than 80 percent) under Biden policies. About one-third of these high-volume counties are in Texas.
  • In one representative county, Howard County, Texas, under Biden policies just half the number of criminals convicted of homicides were removed than before, and there also were steep drops in removals of criminals convicted of assault, burglary, drugs, larceny, and sex offenses.

“The Power of the Purse”. Interestingly, after Prelogar argued the Court couldn’t grant the states the relief they are seeking (enforcement of the INA sections at issue), Justice Kavanaugh was prompted to ask “if courts aren't going to be able to enforce those congressional mandates, what are the exact tools that Congress has to make sure that the laws are enforced in the United States?”

Prelogar responded: “Well, I think that Congress obviously has the power of the purse. It can make the executive's life difficult with respect to its decisions about how to appropriate funds. Congress has oversight powers.”

I doubt the solicitor general wants the Republicans who will soon control “the power of the purse” in the House of Representatives to force the Biden administration to enforce the criminal alien mandates in the INA by “making the executive's life difficult”, but it is difficult to view her statements as anything other than an invitation to do so, given DHS’s dereliction of its duties as Vaughan has outlined.

That’s especially true given that the administration is asking Congress for billions of dollars to pay for the disaster that the president has created at the Southwest border.

Congress likely has no choice but to pay for additional Border Patrol resources and detention, but the incoming GOP leadership will likely be much choosier when it comes to other Biden asks, such as money to transport released migrants into the interior or for costly and ineffective “Alternatives to Detention”.

“Impeachment” and Other “Dramatic Steps”. Justice Kavanaugh carried Prelogar’s argument one step further, asserting:

I think your position is, instead of judicial review, Congress has to resort to shutting down the government or impeachment or dramatic steps if it — if some administration comes in and says we're not going to enforce laws or at least not going to enforce the laws to the degree that Congress by law has said the laws should be enforced.

Speaker-presumptive Kevin McCarthy (R-Calif.) has, in fact recently called on Mayorkas to resign or face impeachment for his failures to comply with the INA, so this is not a purely theoretical point.

Running Out of Excuses. With the Southwest border in chaos and criminal alien enforcement tanking, the administration is running out of excuses for not enforcing the immigration laws Congress has written. It’s unclear whether the Supreme Court will force the issue, but even if it doesn’t, it’s doubtful incoming House Republican leaders — who will now have the power to “make Biden’s life difficult” — will fail to take the “dramatic steps” necessary to at least try.