AILA and the American Immigration Council Respond to Supreme Court Oral Arguments in U.S. v. Texas

November 29, 2022
Last modified: 
November 29, 2022

Washington, DC - In response to today’s Supreme Court of the United States hearing oral arguments in the case, U.S. v. Texas -- a dispute over the Biden Administration’s authority to set immigration policy, the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) issued the following statement: 

Jeremy McKinney, President of the American Immigration Lawyers Association, stated,

Today, the Supreme Court heard oral arguments in USA v. Texas and a truly dystopian vision emerged. As envisioned by the State of Texas, the United States would become a country where we pour billions more into enforcement funding so that ICE officers can flood our communities, actively seeking out and detaining anyone appearing to be deportable. Even worse, if in the opinion of one state, the federal government was not sufficiently aggressive, the federal government can be ordered to execute immigration law in accordance with that state’s wishes. 

Fortunately, the federal government stood up ably to this historic overreach. It is clear after arguments today that the State of Texas did not have standing to bring this lawsuit because they have not been legally injured by the Biden Administration setting enforcement priorities like its predecessors from both political parties. 

The Biden Administration’s enforcement guidelines are a legitimate tool for any administration in making decisions about how and in what manner it will direct its finite resources to enforce immigration law. It also happens to be settled law. The late Justice Scalia, writing for a unanimous court 23 years ago, made clear that at each stage of an enforcement action, the determination to withhold or terminate deportation is confined to administrative discretion.  Unfortunately, via this lawsuit, the guidelines have been commandeered to attempt to achieve a goal not previously conceivable by even the most ardent anti-immigrant activists. 

As Justice Kagan stated, setting immigration policy is the zenith of federal power. AILA’s every expectation is that commonsense and justice will prevail and that the Supreme Court will firmly and clearly establish that the Biden Administration acted within its exclusive power to provide immigration enforcement guidance to its personnel. 

Kate Melloy Goettel, Director of Litigation for the American Immigration Council, noted,

For the last decade, states have attempted to use the courts to dictate immigration policy. Today the Supreme Court has the best opportunity in years to affirm the federal government’s well-established authority to set its own enforcement priorities and choose who it targets for deportation—and who it doesn’t. Our immigration system works better when federal officials decide when to prioritize immigration enforcement. States like Texas have repeatedly sought to make our immigration system harsher and more inhumane by overturning federal immigration authority in a manner inconsistent with our immigration laws and years of court precedent. Our laws allow for prosecutorial discretion, and our immigration enforcement system requires a level of discretion to make room for humanity and common sense. The Supreme Court should reject Texas’ ill-conceived argument that immigration laws impose affirmative obligations on ICE to carry out arrests against their considered judgment. 

Gregory Z. Chen, AILA Senior Director of Government relations added,

The Supreme Court should rule against Texas and Louisiana, and today’s oral argument demonstrated in striking terms that these states are trying inappropriately to dictate federal immigration policy – like a tail wagging the dog. DHS is not refusing to enforce the statute in question as the states claim. DHS is pursuing an aggressive strategy of immigration enforcement that apprehends and detains thousands of immigrants and applies harsh, often inhumane, enforcement measures to deter people from entering the United States without authorization. It is a well-established principle stretching back decades and spanning administrations of all stripes, that law enforcement agencies have discretion to set priorities and exercise prosecutorial discretion. The law does not require DHS to follow the desires of any single state, and Texas has not shown to the Court that this enforcement policy imposes a significant net cost to the state that would give it standing to sue.” 

For more information, contact: 

Brianna Dimas at the American Immigration Council, at [email protected], 210-639-5587. 

The American Immigration Council is a powerful voice in promoting laws, policies, and attitudes that honor America’s proud history as a nation of immigrants. Through research and policy analysis, litigation and international exchange, the Council seeks to shape a twenty-first century vision of the American immigrant experience. In January 2022, the Council and New American Economy merged to combine a broad suite of advocacy tools to better expand and protect the rights of immigrants, more fully ensure immigrants’ ability to succeed economically, and help make the communities they settle in more welcoming. Follow the latest Council news and information on and Twitter @immcouncil. 

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