The Supreme Court heard oral arguments for a case that is central to the Department of Homeland Security’s immigration policy, U.S. v. Texas. The two-pronged case focuses on both the validity of this type of challenge and the legality of the DHS’s enforcement policy.

The case stems from a September 2021 memorandum by Homeland Security Secretary Alejandro Mayorkas that instructed ICE to prioritize deportations for immigrants who are a threat to national security, public safety and border security. ICE contends that because 11 million immigrants are in the country illegally compared to only 6,000 immigration officers, it does not have the resources to go after all of them. This policy marks a change from Trump administration policies that allowed agents to arrest anyone in the U.S. illegally.

The justices heard arguments about two questions. The first question asks whether states have standing to challenge the Department of Homeland Security’s immigration guidelines in the first place. U.S. Solicitor General Elizabeth Prelogar and some of the court’s liberal justices said the states do not.

“Federal courts should not now be transformed into open forums for each and every policy dispute between the states and the national government,” General Prelogar told the justices.

Arguments for this question honed in on whether the states will incur financial harm.

“If all you need to do is to say, ‘We have a dollar’s worth of costs, and you don’t even need to think about the benefits on the other side…’ I mean, every immigration policy, you let in more people, you let in fewer people, is going to have some effect on a state’s fiscal condition,” Justice Kagan said during a back and forth with Texas Solicitor General Judd Stone.

Stone responded that the state has at least one example where a detainer was removed from an immigrant in the country illegally who then went on to break the law again.

“That detainer was removed, he was released, and then he was re-apprehended for committing human trafficking. That commits that kind of costs, both law enforcement recidivism, that certainly forms the basis of an Article III injury. That is speculative, it occurred,” Stone said. 

The second question in the case was on the merits–that is, do DHS guidelines violate Title 8 of U.S. code regarding the apprehension and detention of aliens?

“The INA [Immigration and Nationality Act] does not create an unyielding mandate to apprehend and remove every noncitizen described in provisions that use the term shall,” General Prelogar said. 

General Stone focused on section 1226c of federal code regarding the detention of criminal aliens.

“The final memorandum is unlawful for multiple reasons, most clearly, because it treats section 1226c as discretionary. Well, both this court and every previous administration have acknowledged it as mandatory,” Stone told the justices. 

A lower court ruled against DHS in this case. The Biden administration is hoping the Supreme Court justices will overturn that decision.