The Supreme Court sounded divided Tuesday over a clash between President Biden and the state of Texas involving immigration enforcement.
At issue is whether an existing law requires federal authorities to arrest, detain and deport any “criminal alien” they encounter, or instead gives them the discretion to focus on those who pose the greatest threat to public safety.
The case is a major test of executive power. In the past, justices frequently gave presidents latitude in matters of immigration enforcement.
But the court’s current conservative majority has increasingly expressed skepticism about Biden administration policies.
It is also unclear whether the case will have much day-to-day impact on immigration enforcement.
Near the end of Tuesday’s argument, Justice Brett M. Kavanaugh noted that both Republican and Democratic administrations have said they did not have the money or resources to arrest or detain all immigrants in the country illegally who have been charged with a felony.
That is not likely to change, he told a Texas state attorney, even if his side wins the case.
The case began when Texas Atty. Gen. Ken Paxton sued to challenge a change in policy when President Biden took office.
Homeland Security Secretary Alejandro Mayorkas backed off the hard-line approach of the Trump administration and issued enforcement guidelines that called for focusing on detaining and deporting immigrants who were a danger to public safety.
The Texas lawsuit argued the law required the government to take enforcement action against tens of thousands of immigrants in the country illegally and with criminal records.
He pointed to a provision adopted by Congress in 1996 that said federal authorities “shall take into custody any alien” with an “aggravated felony” in their past.
A second provision says the government “shall detain” an immigrant who had been ordered to be “removed” or deported.
Paxton took his suit to the courthouse of U.S. District Judge Drew Tipton in Corpus Christi, a Trump appointee. Tipton handed down a broad ruling that held the Mayorkas memo was illegal and may not be followed.
U.S. Solicitor Gen. Elizabeth B. Prelogar, defending the administration, told the court the judge’s ruling was wrong for several reasons.
She urged justices to rein in the growing practice of states suing to overturn or block presidential orders and policies they oppose.
During the Trump administration, California and other Democratic-led states sued regularly to block conservative policies. Now it is Republican states suing to challenge the Biden administration.
She also said a single federal district judge should not be permitted to hand down a broad ruling that prevents the administration throughout the nation from relying on a guidance memo.
Finally, Prelogar said the law should not be read to require the government to spend enormous amounts of time and money seeking to track down and detain hundreds of thousands of people with past crimes on their records.
It “would be impossible to comply” with such a rule, she said.
The court’s three liberal justices appeared to agree with her, and several of the conservatives seemed to agree with parts of her argument.
Justice Elena Kagan questioned why a state attorney and a single judge “can bring a federal policy to a dead stop because the state can show a loss of $1.”
She was referring to rulings that said plaintiffs can have a standing if they can show a loss of any amount.
But Chief Justice John G. Roberts Jr. said Texas may have a good argument.
“What if I think ‘shall’ means ‘shall’?,” he told Prelogar. “It’s our job to say what the law is,” he said, even if it may be impossible for the government to comply.
The justices will likely hand down a ruling in United States vs. Texas early next year.