WASHINGTON - The Supreme Court wrestled Tuesday with a Biden administration effort to prioritize certain immigrants in the country illegally for deportation over others in a case the government warned could "scramble" immigration enforcement.
During more than two hours of spirited oral argument, the justices appeared split in unconventional ways - particularly when it came to some of the procedural questions raised by the challenge from Texas and Louisiana. The states say President Joe Biden's policy has forced them to spend more money on law enforcement and health care.
At issue is a Biden effort to focus enforcement on immigrants who pose a threat to national security, public safety or who recently crossed the border. The administration says it wants to focus on those classes of immigrants because it doesn't have the resources to go after everyone in the country illegally. The states assert federal law gives Biden far less discretion to pick and choose targets for enforcement.
"It's our job to say what the law is, not whether or not it can be possibly implemented or whether there are difficulties there," Chief Justice John Roberts said, embracing an argument raised by Texas and Louisiana. "I don't think we should change that responsibility just because Congress and the executive can't agree on something."
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But Associate Justice Brett Kavanaugh, another member of the court's conservative wing, repeatedly returned to a line of questioning about the practical impact of a ruling in favor of Texas and Louisiana given that the Biden administration - like its predecessors - doesn't have the resources to fully implement all of the requirements set out in immigration law.
"If you prevail here, what will happen?" Kavanaugh asked the lawyer representing Texas. "That's a concern because I'm not sure much will change because they don't have the resources to change."
The case is one of several challenging Biden's authority to make policy without explicit authorization from Congress - an issue likely to become more prominent now that Republicans will control the House of Representatives. Biden's record at the high court on that question has been spotty, with the 6-3 conservative majority shutting down his COVID-19 eviction moratorium and vaccine-or-testing mandate for large employers.
Though the case is about the Biden effort, the court spent far more time debating procedural questions about whether states are able to sue over such policies and what lower federal courts can do once those suits are filed. Several justices from both ideological wings scrutinized a position put forth by the administration that a single trial court judge shouldn't be permitted to wipe out a policy for the entire nation.
Both Roberts and Kavanaugh described the government's view as "radical."
Immigration advocates question whether Texas and Louisiana should be allowed to sue at all. The states claim Biden's policy forced them to spend more money but critics have said the states have sought to increase their populations and that those costs would rise with an influx of non-immigrants as well. Associate Justice Elena Kagan, nominated to the court by President Barack Obama, questioned the implications of Texas' argument.
"We're just going to be in a situation where every administration is confronted by suits by states that can bring a policy to a dead halt, to a dead stop by just showing a dollar's worth of costs?" Kagan questioned. "We're creating a system where a combination of states and courts can bring immigration policy to a dead halt."
The Biden administration laid out its immigration priorities in a Department of Homeland Security memorandum last year. But the states say federal law demands more than Biden's approach: It requires the government detain immigrants who have committed certain crimes, such as aggravated felonies or human trafficking. The Biden administration doesn't have the power, they say, to pick and choose.
A federal district court in Texas sided with the states and halted the policy's enforcement. A three-judge panel of the New Orleans-based U.S. Court of Appeals for the 5th Circuit - all three of whom were nominated by GOP presidents - declined to put the district court's ruling on hold. Biden then filed an emergency request in July asking the Supreme Court to review the 5th Circuit's decision.
Days later, a 5-4 majority of the court declined Biden's request, barring his ability to carry out the policy. But the court also agreed to hear oral arguments, shifting the case off its emergency docket and delving more deeply into the merits of the legal questions at issue. The court's three liberal justices - joined by conservative Associate Justice Amy Coney Barrett - said they would have granted the Biden administration's request.
A decision in the case is expected next year.
This article originally appeared on USA TODAY: Supreme Court grapples with Biden immigration policy on deportation