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For decades, ICE has given its agents guidance about which immigrants to prioritize for enforcement. There are literally millions of immigrants in the United States in violation of their immigration status in one way or another, and ICE could not possibly deport them all. The enforcement priorities serve multiple purposes. Law enforcement agencies always exercise discretion to avoid enforcement where targeting a particular person would be unfair or a waste of resources. And ICE doesn鈥檛 have the capacity to arrest, detain, and deport every removable person in the country, so some amount of picking and choosing is inescapable. The current priorities direct ICE agents to focus their efforts on three categories: people who recently crossed the border, people with certain criminal convictions, and people who ICE believes threaten national security. Before going after a person, ICE agents must consider these categories along with all the other factors that bear on whether enforcement is fair and a good use of resources.

A group of states with anti-immigrant leaders have challenged ICE鈥檚 priorities, with the goal of freeing ICE agents to detain and deport whoever they want, without considering anyone鈥檚 individual circumstances. They argue that the priorities violate two immigration laws which allegedly mandate enforcement in certain circumstances. On that basis, a Texas district court ordered ICE to stop using its priorities nationwide, and the Supreme Court left that order in place while the case proceeds. But the Court also agreed to review the case faster than usual, and it will now decide the case by summer 2023.

The case raises many important legal questions, which could determine not only whether the priorities are legal, but also when states are permitted to go to court to challenge federal immigration enforcement decisions.

Before the Court can decide whether the priorities are legal, it will need to decide whether the states have standing to challenge them in the first place. Plaintiffs can only challenge a policy that harms them in a concrete way. But in their many recent challenges to immigration and other federal policies, states like Texas have relied on minor and uncertain harms鈥攈ere, they claim that the priorities will lead people to be released, and some may then commit crimes or use state public benefits. The federal government has asked the Court to first decide whether that鈥檚 enough for standing. If it is, then going forward, states may be able to challenge virtually every immigration policy in court.

On the merits, the states argue that the policy violates two statutes. One, 8 U.S.C. 1226(c), says that ICE 鈥渟hall鈥� detain people who are removable on certain criminal grounds. The other, 8 U.S.C. 1231(a)(2), says ICE 鈥渟hall鈥� detain people with final removal orders during a 90-day 鈥渞emoval period.鈥� But as the ACLU鈥檚 amicus brief explains, the statutes speak only to detention, but the priorities do not apply to detention decisions. Thus, because the policy and the statutes govern different actions, there鈥檚 no way for one to conflict with the other. In addition, neither statute requires ICE to pursue any particular person鈥檚 removal. And the Supreme Court has made clear that law enforcement has prosecutorial discretion even when a statute says that officers 鈥渟hall鈥� take enforcement action. Finally, even if the priorities did violate the statutes, the violation would only occur in a small portion of the cases that the priorities govern, because the statutes at most apply to arrest decisions for limited categories of people. So we argue it was wrong to enjoin the whole priority policy鈥攍eaving ICE agents without any enforcement guidance鈥攂ased on just a few alleged errors in the policy.

On June 23, 2023, the Supreme Court rejected a challenge by Texas and Louisiana to the Biden administration鈥檚 immigration enforcement priorities. The court held that Texas and Louisiana lacked standing to force 鈥渢he Executive Branch to alter its arrest policy so as to make more arrests鈥� because that discretion belongs to the federal government.