The Supreme Court is set to wade into the immigration debate Tuesday as it takes up a challenge to a Biden administration policy instructing agents to focus on arresting immigrants who pose a threat to public safety or national security.

Republican-led states brought the case to the high court, arguing the directive created a burden on their criminal justice systems by allowing undocumented immigrants with criminal records to remain in the United States.

What You Need To Know

  • The Supreme Court on Tuesday will examine a Biden administration policy that instructs immigration agents to prioritize arresting immigrants who pose a threat to public safety or national security  

  • The directive was part of the Biden administration’s attempted rollback of immigration policies enacted under President Donald Trump

  • Texas and other Republican-led states sued to block the policy, saying the policy shift is not allowed under federal law and would leave them with the burden of providing services to people who should not be in the country

  • A federal judge in Texas sided with the states and blocked the policy earlier this year. The Supreme Court voted 5-4 to keep the policy on hold while it decides the case

In a Sept. 2021 memo, Homeland Security Sec. Alejandro Mayorkas ordered Immigration and Customs Enforcement (ICE) to prioritize their resources on undocumented immigrants who pose a threat to national security, public safety and border security.

Texas and other Republican-led states sued to block the policy, saying the policy shift is not allowed under federal law and would leave them with the burden of providing services to people who should not be in the country.

“The language in the law is mandatory,” said Robert Henneke, an executive director at the Texas Public Policy Foundation, a conservative think-tank. "It doesn't leave any room for discretion by the Department of Homeland Security."

Henneke claims the policy "violates federal law by attempting to create exceptions where none exists in the statute."

The directive was part of the Biden administration’s attempted rollback of hardline immigration tactics enacted under President Donald Trump. 

Doris Meissner, former Commissioner of the Immigration and Naturalization Service under President Bill Clinton, says the administration should have the right to set enforcement priorities because Congress has not allocated enough money to arrest and deport all the undocumented immigrants in the U.S.

“There is not enough money and never has been enough money or detention space given to immigration agencies to make it possible to detain everybody,” Meissner said. “So, within the cost confines of how many detention spaces are available, the executive branch has always and the immigration agencies have always made choices.” 

A ruling by the high court against the Biden administration could have a sweeping impact on the ability of any administration to set enforcement priorities in the future. 

“One of the questions is to what extent is it appropriate for a secretary of a department to issue this kind of overarching guidance," said Theresa Cardinal Brown, the Bipartisan Policy Center's managing director of immigration and cross-border policy.

"I would say that it's been done a lot over a lot of years," Brown, who previously served under the George W. Bush and Barack Obama administrations, added. "So if that decision goes to say that the secretary can't do that, I think it would have a far-reaching effect, not just on this administration, but future administrations.”

A federal judge in Texas sided with the states and blocked the policy earlier this year. The Supreme Court voted 5-4 to keep the policy on hold while it decides the case. Homeland Security officials say ICE agents have been making decisions on a case-by-case basis in a responsible and professional way. The Supreme Court is expected to issue a decision next year.