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U.S. Supreme Court faces dilemma over enforcing the country's immigration laws


The fight over how to enforce immigration laws is in front of the Supreme Court. Today, justices considered this - how much discretion does an administration have in enforcing the nation's immigration laws when, even if the U.S. wanted to, there simply are not enough resources to deport the 11 million unauthorized immigrants in the country? NPR legal affairs correspondent Nina Totenberg has more on today's arguments.

NINA TOTENBERG, BYLINE: For decades, every administration, Democratic and Republican, has made choices about who to deport. The priorities have often varied from one administration to the next. The Biden administration's priorities were to find and deport, first, noncitizens who, like terrorists, are a threat to the national security, second, those who have been convicted of serious crimes and, third, those who pose a threat to border security. But Texas challenged those priorities and won in the lower courts, prompting the administration to appeal to the Supreme Court. Several provisions of the immigration law direct the Immigration Enforcement Agency to do certain things using the word shall. But the court has often said that in context, Congress sometimes intended shall to mean may, especially in light of limited resources. That prompted this exchange between Chief Justice Roberts and the Biden administration solicitor general, Elizabeth Prelogar.


JOHN ROBERTS: Shouldn't we just say what we think the law is, even if we think shall means shall, and then leave it for them to sort that out?

ELIZABETH PRELOGAR: One of the reasons the court has recognized that there is enforcement discretion in this area is precisely because of the practical necessity that agencies cannot proceed against every violation of the statute.

TOTENBERG: Prelogar went on to say, out loud, what both Republican and Democratic administration lawyers have increasingly worried about over the last two decades, and that is when red or blue states don't like a federal policy, they often find a sympathetic district court judge who sets aside that policy for the whole country. The procedure is called vacatur, meaning the policy is voided. When Prelogar called for curbing vacatur, that prompted this from the chief justice.


ROBERTS: Your position on vacatur - that sounded to me to be fairly radical and inconsistent with those of us who are on the D.C. Circuit would do, you know, five times before breakfast.

PRELOGAR: I acknowledge, Mr. Chief Justice, that the lower courts, including the D.C. Circuit, have in our view been getting this one wrong.


PRELOGAR: In conclusion, with...

ROBERTS: I mean, this is a long - that's what the D.C. Circuit and other courts of appeals have been doing all the time.

TOTENBERG: Justices Kavanaugh and Jackson, both D.C. Circuit grads, piled on to support Roberts on that point. But Justice Gorsuch seemed far more sympathetic to Prelogar's critique. Vacatur, he said, is like a monster swallowing the whole of the law. Texas Solicitor General Judd Stone got quite a mauling as well, among other things, on the question of whether Texas has legal standing to challenge federal enforcement policies at all. Pressed by Justice Kagan, Stone insisted that if Texas spends even a dollar as a result of federal immigration policies, it has standing to challenge those policies in court. Kagan wasn't buying it.


ELENA KAGAN: You have to do more than that, given the backdrop of what has become, I think, a system that nobody ever thought would occur, which is that the states can go into court at the drop of a pin and stop federal policies in their tracks.

TOTENBERG: Justice Kavanagh noted that there simply are not the resources to do what Texas wants the federal government to do. So, asked Kavanaugh, what would happen if Texas prevails? Lawyer Stone dodged the question. As of now, though, Texas has prevailed in the lower courts. And until and unless the Supreme Court changes that, there is no list of priorities to guide immigration enforcement officers as to who to detain and deport. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.