The U.S. Supreme Court will hear arguments Tuesday in a long-running dispute over how to enforce the nation's immigration laws.
President Biden's administration wants to set guidelines for whom immigration authorities can target for arrest and deportation. But a group of Republican attorneys general sued to block the guidelines, arguing that they were preventing immigration authorities from doing their jobs.
The outcome of the case could have major implications — and not just for immigration enforcement. Former Department of Homeland Security officials and immigrant advocates say the case could hinge on the question of how much discretion law enforcement agencies have to decide how and when to enforce the law.
"A cop doesn't pull over every speeder on the highway," says Jeremy McKinney, the president of American Immigration Lawyers Association. "So you have to make choices. All that the Biden administration was attempting to do was make choices, just like every administration before it."
It's widely agreed that Immigration and Customs Enforcement does not have the resources to arrest or deport all of the roughly 11 million people in the country without authorization. So immigration authorities have to set enforcement priorities — priorities that have swung sharply from one administration to the next.
'Prosecutorial discretion'
During former President Trump's administration, ICE agents and officers were empowered to arrest and deport anyone who was living in the U.S. without legal authorization.
"If you're in this country illegally and you committed a crime by entering this country, you should be uncomfortable," acting ICE director Thomas Homan told a congressional subcommittee in 2017. "You should look over your shoulder, and you need to be worried."
When the Biden administration took office, it put on the brakes. Instead of arresting and deporting anyone they encountered who was in the country without authorization, immigration authorities were given a very different set of priorities.
Homeland Security Secretary Alejandro Mayorkas described the new guidance as an exercise of prosecutorial discretion.
"We have guided our workforce to exercise its discretion to focus on individuals who pose a threat to national security, public safety and border security," Mayorkas told NPR in an interview last year.
There had been official immigration enforcement priorities at the Department of Homeland Security before. During former President Obama's administration, ICE officers and agents were also encouraged to use prosecutorial discretion, and focus on threats to public safety.
But the announcement of the Biden administration's enforcement priorities prompted multiple lawsuits from immigration hardliners, who argue that this policy goes far beyond what any previous administration had done.
"They went way left on this. So it's almost like the Immigration and Nationality Act doesn't exist anymore," said Homan, the former head of ICE, during an interview last year.
Texas and Louisiana win in federal court
Part of what outraged Homan and other hardliners about the new priorities was that under the Biden administration's guidance, simply being present in the U.S. without legal authorization "should not alone be the basis" for immigration authorities to arrest or deport someone.
"Saying that someone cannot be removed just because they're an illegal alien is a drastic change in our immigration law," says Christopher Hajec at the Immigration Reform Law Institute in Washington, which filed a friend of the court brief before the Supreme Court. "It's not within an agency's power to do that. Only Congress could do that."
That's an argument that the states of Texas and Louisiana made in court. A federal judge in Texas agreed, and threw out the administration's enforcement priorities in June.
But former DHS officials of both parties worry about the implications of that ruling.
"Not everyone can be arrested or put in proceedings," said Julie Myers Wood, the head of ICE during the George W. Bush administration, and one of several former DHS officials who filed a brief expressing their concerns to the Supreme Court.
Wood, a former federal prosecutor, says every law enforcement agency exercises discretion about how to deploy its resources — and that those decisions are too important to leave up to individual field offices.
"What you don't want to see is a situation where a particular office is focusing on all noncriminal arrests simply because they are easier or more convenient to the detriment of individuals that have serious criminal histories," she said in an interview.
Wood says she might not have chosen the same priorities as Secretary Mayorkas, but it's his call to make.
If the lower court's ruling is upheld, immigrant advocates worry it could signal a return to the more expansive priorities of the Trump administration.
"There was a lot of fear in the community at that time," says Sarah Owings, an immigration lawyer in Atlanta. "And I did see some really awful things."
Owings says she had a number of clients who had been following the guidance and checking in with ICE for years who suddenly found themselves in detention. She remembers one man in particular whose wife was pregnant at the time of his check-in with ICE.
"He had a wife who was a high-risk pregnancy and a few weeks away from delivering, and they were like, well, he used a false name one time 10 years ago, so we're taking you in today," Owings recalls. "I really hope that we don't get back to that era."
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