Texas Republicans currently insist that the United States is not allowed to exercise mercy toward undocumented immigrants, but must instead carry out the most draconian consequences possible. A series of conservative judges has agreed with them, stripping Department of Homeland Security Secretary Alejandro Mayorkas of his authority to set immigration enforcement priorities that focus the agency’s limited resources away from otherwise law-abiding undocumented immigrants with strong ties to the community. And on Thursday, the Supreme Court issued a 5–4 order rewarding this intrusion on executive power by refusing to restore Mayorkas’ discretion over deportation. It appears that a majority of the justices may agree with Republicans that the president must inflict unceasing cruelty on a maximum number of immigrants.
The roots of this latest controversy rest in a single, incontrovertible fact: It is impossible to deport everyone in the United States who may have violated our immigration laws. Congress, not interested in pouring trillions of additional dollars into what is already the largest law enforcement agency in the federal government, has never provided immigration enforcement agencies with the resources necessary to make a real dent in the undocumented population. That’s why in 2003, when the Department of Homeland Security was created, Congress formally codified longstanding practice and instructed the DHS Secretary to establish “national immigration enforcement policies and priorities”—and every administration since has done so, even the Trump administration.
Last September, Secretary Mayorkas used this authority to set out the Biden administration’s vision for immigration enforcement. The Mayorkas enforcement priorities sought to focus agency resources on removing individuals who posed a threat to national security, a threat to public safety, and prioritized recent arrivals over undocumented immigrants who have been contributing to our communities for years. It also told agents to consider each person’s circumstances individually before deciding to move forward with arrest and deportation. For those who are not priorities, the policy emphasizes that agents should not waste resources on going after people solely because they are undocumented.
This kind of policy is neither new nor particularly unusual. Think about the increasingly common choice by local prosecutors not to waste their time on misdemeanor marijuana possession and instead focus their time and energy on prosecuting drug dealers and people using hard drugs.
Just like prosecutors have nearly infinite authority over who to charge with a crime, the president’s authority under the Constitution in the area of immigration enforcement is exceptionally broad and has been widely recognized for generations. In 1999, Justice Antonin Scalia’s opinion in Reno v. AAADC said that “at each stage [of the deportation process] the Executive has discretion to abandon the endeavor.” Similarly, in 2012, Justice Anthony Kennedy wrote in Arizona v. United States that a “principal feature of the removal system is the broad discretion exercised by immigration officials.”
Despite this, President Joe Biden’s opponents found his refusal to continue Trump’s war on undocumented immigrants an unacceptable betrayal. So last year, Texas hand-picked a district court with a Trump-appointed judge and sued to halt implementation of the new priorities. The judge, Drew Tipton, ruled in Texas’ favor, declaring that a 1996 law eliminated presidential discretion in immigration enforcement without anyone having noticed for the past 25 years. The ruling also stated that no DHS secretary can implement new priorities without first going through an onerous and time-consuming regulatory process. The arch-conservative 5th U.S. Circuit Court of Appeals then refused a DOJ request to halt his ruling, which applied nationwide.
In response, the Biden administration asked the Supreme Court for emergency relief so that DHS can continue to apply its enforcement priorities. This should have been a slam-dunk case: As University of Texas School of Law Professor Steve Vladeck has documented, the Supreme Court agreed to step in on behalf of the Trump administration in similar situations 11 out of 12 times (even though it eventually ruled against Trump in all but one case).
Instead, the Supreme Court refused to step in. (Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson, and Amy Coney Barrett dissented, noting that they would have stayed the lower court order.) The justices set the case for argument for the late fall, with a decision not likely until next June. That means that for almost a year, DHS agents will have no guidance on resource prioritization and will be free to largely ignore what the duly elected and appointed leaders of the executive branch have instructed them to do.
But let’s be honest, Thursday’s decision wasn’t really about the law. The last time the Supreme Court temporarily let a Trump-appointed judge do something radical and order the Executive Branch to negotiate with Mexico, the Biden administration ended up winning a 5-4 victory striking down MPP. This case may end the same way because the Biden administration is so undoubtedly correct on the law that the same justices who balked in Biden v. Texas might well balk here, too.
If Thursday’s decision didn’t come from the law, what did it come from? The answer to that is what appears to be a growing sense among the Supreme Court’s conservative majority that undocumented immigrants have won themselves too many rights over the last couple of generations, and that they have to be reminded who’s boss. And the fact that it’s a thumb in the eye of the Biden administration is an additional benefit.
Immigration law is undoubtedly harsh, and over the years the courts have made that clear. From the Chinese Exclusion Acts to Japanese Internment to Trump’s travel ban, the Supreme Court has adopted a draconian view of the government’s authority to wield nearly unchecked power against noncitizens.
However, as Professor of Law at Penn State Shoba Sivaprasad Wadhia has documented, that harsh power has historically been accompanied by an equally strong authority to exercise mercy and grace. For over a century, the executive branch has used inherent and statutory authority to allow immigrants to remain in the country even when the law suggests they must leave. And from 1929 to 1986, Congress regularly updated a “statute of limitations” for undocumented immigrants known as The Registry, which allowed people of “good moral character” who had resided peacefully in the United States since a date set by Congress to apply for green cards. This sense of mercy pervades immigration law itself, which is studded with dozens of waivers and forms of “relief from removal” that permit the executive branch to give people a second chance.
Sadly, in the decades after 1986, the idea that an undocumented immigrant could be a person of good moral character became controversial. In 1996, a tough-on-crime Congress stripped many of these paths for mercy out of immigration law altogether, believing that immigration judges were being too soft. And by the time Trump took office, it had become gospel on the right that undocumented immigrants were “murderers” and “rapists” who all should be thrown out, no matter the cost.
At the same time as the right was increasingly embracing full-throated ICE raids and mass deportations, undocumented immigrants were winning victories. The DACA program, which gave over 800,000 people who’d grown up in the United States a chance at temporary security, was widely popular and benefited a group that the American public didn’t believe should be an enforcement priority. But for the Stephen Millers of the world, the idea that someone might be “undocumented and unafraid” was heresy. And when Texas kicked off a trend of suing to block immigration policies in 2014, it was only Scalia’s death that prevented the Supreme Court from effectively ruling DACA unlawful.
Thus, for a Supreme Court that also has become increasingly hostile to immigrants in recent years, the Biden administration’s attempt to turn back the clock to a more humane immigration policy is inherently suspect—terrible policy at best and fundamentally illegitimate at worst. With Thursday’s order, five justices sent the Biden administration a political message that they will not step in and temporarily block the mess made by a lower court when they think the immigration policy is too soft.
None of this has happened in a vacuum. Due process and a fair day in court used to be bipartisan. But under Jeff “dirty immigration lawyers” Sessions and Donald “you have to get rid of judges” Trump, the right has begun attacking anything that might prevent deportation, even prosecutorial grace.
For undocumented immigrants who have gone nearly 40 years since the last amnesty, fights about legal authority are mostly irrelevant. Biden, elected to office with one of the strongest pro-immigrant platforms of any candidate in history, promised to deliver. Within less than a year, any hopes of congressional action have now evaporated, leaving only executive action. And on that front, the Biden administration has either been lackluster or stymied. With few exceptions, every major attempt to make administrative changes to the immigration enforcement system have been blocked in courts.
To the Texas judges who now seemingly run the Department of Homeland Security, the only legitimate action a president can take when it comes to undocumented immigrants is deportation. But even immigration law, which has dehumanized noncitizens for generations, still acknowledges the need for mercy. And if the Supreme Court can’t recognize that, we’re in trouble. Because law enforcement without mercy or grace is authoritarianism.
