In a blow to the Department of Homeland Security’s attempts to set priorities for immigration enforcement, late last week the Supreme Court of the United States decided 5-4 to deny a request from the Department of Justice to restore the priorities while litigation continues.
This decision comes after a confusing several months, culminating in opposing decisions in the 5th and 6th circuits which led to the emergency request at the Supreme Court. The Supreme Court will hear arguments on whether the enforcement priorities are lawful in December. Until then, the 5th Circuit’s decision stands and they are blocked from being implemented.In September 2021, DHS Secretary Mayorkas issued a memo that laid out new priorities for the arrest, detention, and deportation of individuals subject to immigration enforcement. The purpose of the priorities, like similar ones issued by previous administrations, was to direct U.S. Immigration and Customs Enforcement (ICE) to prioritize its use of limited resources. While the memo marked improvements on the Trump era of mass, indiscriminate enforcement, it still allowed local ICE officials significant discretion in making enforcement decisions.
The memo created three broad categories of individuals who should be prioritized for enforcement: those deemed to be threats to national security, public safety, and border security. As the memo clearly states, these priorities did not prevent ICE from arresting, detaining, or deporting people who did not fall within these groups. It did, however, provide ICE guidance on prioritization and gave attorneys and advocates important insight into DHS’s overall priorities. The memo was used as an important tool for advocates to request prosecutorial discretion on individual cases.
Shortly after DHS issued the final memo in September, two parallel cases were filed by attorneys general of a variety of states that sought to stop the implementation of the priorities and have them declared unlawful. Arizona, Montana, and Ohio filed suit in Ohio while Texas and Louisiana sued in Texas, all arguing that the federal government did not have the power to issue the guidance in the manner it did.
The heart of the legal argument against the enforcement priorities (as well as other lawsuits brought against this administration trying to keep Trump-era policies in place) is deceptively simple: two sections of the Immigration and Nationality Act (INA) say that some immigrants, at some parts of their cases, “shall be detained.” The states argue that this means that any policy that suggests that the people who fall into these categories may not be detained is unlawful. Because the enforcement priorities say that ICE should prioritize some groups of people for arrest and detention but not others, these states argue, they are in opposition to the directive “shall detain.”
DHS defended the enforcement priorities. First, it pointed out that Congress has never provided the resources necessary to arrest and detain everyone, and so the government has always made decisions about who to prioritize. In fact, Congress specifically empowered the federal government to do so.
Second, it pointed out that the enforcement priorities don’t prohibit anything, including enforcement against people who fall outside the priorities. The guidelines are just that—and therefore do not order ICE to do anything that contradicts language in the INA.
In both Texas and Ohio, the district court judges issued nationwide decisions prohibiting the federal government from implementing the enforcement priorities. Since June, ICE has not been guided by any enforcement priorities. However earlier this month the 5th Circuit upheld the Texas court’s decision while the 6th Circuit court reversed the Ohio court’s decision, leaving two opposing orders from circuit courts. The 5th Circuit largely accepted the states’ arguments that the enforcement priorities were “tying the hands” of ICE in their enforcement of immigration laws, while the 6th Circuit agreed with DHS that the guidelines acted simply as guidelines and did not force ICE to do anything except allocate finite resources.
That fundamental debate—of whether the federal government has the authority to direct ICE enforcement in the field—is critical to larger questions about the criminalization of immigrants and their communities. It is still not answered, though the Supreme Court’s decision to not issue a stay of the injunction that is in place due to the 5th Circuit’s opinion is disheartening. In the meantime, the courts continue to be used to deter attempts to roll back the previous administration’s worst immigration policies.