The Biden administration has asked the Supreme Court to give early approval to Homeland Security Secretary Alejandro Mayorkas‘ “priorities” policy that limits the kinds of illegal immigrants his agents and officers can arrest and deport.
Government lawyers are asking the high court to stay a lower-court ruling that largely blocked Mr. Mayorkas‘ rules.
But they also cast the case as a larger test of how much leeway the administration has to pursue its immigration objectives free from the watchful eye of judges who, prodded by lawsuits from Republican-led states, have stepped in to block a number of Mr. Mayorkas‘ immigration decisions.
“Those suits enmesh the judiciary in policy disputes between states and the federal government that should be — and, until recently, were — resolved through the democratic process,” Solicitor General Elizabeth B. Prelogar wrote in her brief on Friday.
Her request went to Justice Samuel A. Alito Jr., who gave Texas — the Biden administration‘s opponent in the case — until Wednesday to respond.
Ms. Prelogar said that while she is asking for a stay, the justices also could consider her brief a request for the high court to speed the full case straight to their doorstep with arguments in the fall.
That would skip over the appeals court case that is already underway.
Ms. Prelogar has good reason to want to skip the appeal.
The U.S. Court of Appeals for the 5th Circuit last week delivered a preliminary ruling in the case excoriating the government’s arguments as “not in good faith” and “troubling.”
A three-judge panel also blasted the Department of Homeland Security for trying to inject President Biden’s “equity” agenda into enforcement decisions by U.S. Immigration and Customs Enforcement officers and agents.
“DHS’s replacement of Congress’s statutory mandates with concerns of equity and race is extralegal, considering that such policy concerns are plainly outside the bounds of the power conferred by the [Immigration and Nationality Act],” the judges wrote.
They found that Mr. Mayorkas likely cut procedural corners and violated the letter of immigration law with his priorities policy, which instructs immigration officers and agents to focus almost exclusively on recent border jumpers and illegal immigrants with severe criminal records.
The appeals court said Congress laid out clear guidelines about immigration cases that are considered mandatory for enforcement, based on the level of criminality or the deportation process used.
Mr. Mayorkas‘ new rules undermine the law, the judges said, creating a new higher standard that agents and officers have to meet before they can make an arrest.
The secretary’s rules also require officers to balance cases, giving credit to illegal immigrants who support families or have been in the U.S. a long time in violation of the law, or whose crimes are years old.
The court said that also flies in the face of the law, saying Congress required “categorical” treatment.
Texas had sued to block the new rules, saying under the Mayorkas policy more illegal immigrant criminals will be allowed to remain in the U.S.
Statistics presented by the state pointed to dozens of people Homeland Security would have deported in the past but who have been, or will eventually be, set free under Mr. Mayorkas‘ policy. Four already had committed new crimes in Texas, and at least one remains at large.
Mr. Mayorkas justified his policy by saying ICE has limited resources and detention capacity, and he said he wanted to focus those on the worst offenders.
In her brief Friday, Mr. Prelogar said Congress hasn’t given Homeland Security enough money to detain and deport all illegal immigrants in the country.
But the 5th Circuit had said that the argument “was not in good faith.” The judges said that even as the Biden administration professed poverty, it has submitted two budget requests that would cut its own detention capacity even more.
And ICE is already underutilizing the beds it does have, the judges said.
• Stephen Dinan can be reached at email@example.com.
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