Homeland Security Secretary Alejandro Mayorkas speaks during a change of command ceremony at U.S. Coast Guard headquarters, June 1, 2022, in Washington. (AP Photo/Evan Vucci, File)

Last week, the Supreme Court refused to lift a lower court order that had effectively blocked the Department of Homeland Security (DHS) from implementing Secretary Alejandro Mayorkas’s 2021 guidelines on immigration enforcement priorities. The Court’s procedural order, which was approved by a 5–4 vote, is unaccompanied by any explanation. It is notable for at least three reasons. It marks the first recorded vote—in dissent, as it happens—of Justice Ketanji Brown Jackson. It also marks the first 5–4 Court vote divided along gender lines, with five male justices in the majority and four female justices in dissent. Finally—and most ominously—it leaves in place a lower court’s blatant interference with the authority of immigration officials to use their well-established customary discretion in matters of enforcement.

The Homeland Security Act of 2022 specifically empowers the secretary of homeland security to “establish national immigration enforcement policies and priorities.” Under the 1965 Immigration and Nationality Act (INA), the secretary is permitted to establish such regulations “as he deems necessary for carrying out his authority.” Noting the logistical impossibility of “apprehend[ing] and seek[ing] the removal” of “every one of” the “more than 11 million undocumented or otherwise removable noncitizens in the United States,” Mayorkas, in his memo, took the stance that the DHS needs to “determine whom to prioritize for immigration enforcement action.” Mayorkas’s priorities were noncitizens who threaten national security, those who pose a “current threat to public safety,” or those who threaten border security. One might be forgiven for thinking that these priorities are common sense.

On June 10, 2022, a federal district court judge in Texas vacated the Mayorkas memo in response to a lawsuit brought by Texas and Louisiana. In a 96-page opinion, Judge Drew Tipton, a Trump judicial nominee, accepted the plaintiffs’ crabbed reading of the INA. Texas and Louisiana argued that the broad categories of aliens who the INA says “shall” be taken into custody preclude the secretary from using his discretion to create his own narrower categories of enforcement priority. In July, a panel of three Fifth Circuit judges refused to stay Tipton’s order while the Biden administration’s appeal was under consideration.

The lower court’s reasoning, however, glosses over the long-accepted centrality of executive branch judgment in deciding how immigration law is enforced. Over the decades, Congress has proliferated the categories of removable aliens, understanding that the executive branch cannot possibly pursue every case. In contrast to the Fifth Circuit, a unanimous Sixth Circuit panel in early July recognized such discretion. It overturned an injunction that an Ohio federal district court had also granted against implementing Mayorkas’s memo. That appeals court doubted that any “mandatory language” in the INA “displaces the Department’s longstanding discretion in enforcing the many moving parts of the nation’s immigration laws.”

Keep in mind that just as our immigration laws provide that certain undocumented persons “shall” be detained, our criminal statutes routinely state that persons committing specified acts “shall” be punished. Yet such laws are universally understood to allow prosecutors to decide which cases to prioritize.

Establishing enforcement priorities is not a Mayorkas innovation. Memos written under the Bill Clinton administration in 2000 (when immigration enforcement was still lodged with the Justice Department) and under the George W. Bush administration in 2005 set forth similar priorities and for the identical reason of practical necessity. Similarly, Secretaries Janet Napolitano and Jeh Johnson issued policies in 2012 and 2014, setting priorities closely resembling Mayorkas’s. Unlike the Napolitano or Johnson guidelines, however, the Mayorkas memo was not given as a predicate to any new deferred action for a specific group of undocumented persons, such as the so-called Dreamers. In 2015, U.S. District Court Judge Andrew Hanen overturned the Deferred Action for Parents of Americans (DAPA) program initiated by Johnson—but he also made it clear that his court had no power to disturb Johnson’s enforcement priorities. The judge could block only the deferred action initiative, he wrote. “The law is clear,” wrote Hanen, a George W. Bush appointee, that “the Secretary’s ordering of DHS priorities is not subject to judicial second-guessing.”

Following a 2017 Trump executive order entitled “Enhancing Public Safety in the Interior of the United States,” then DHS Secretary John Kelly issued a memo that revoked Johnson’s policy. Kelly announced that the DHS “no longer will exempt classes or categories of removable aliens from potential enforcement.” Yet even the Kelly memo, albeit in a confusing fashion, announced seven categories of aliens to be prioritized for removal “regardless of the basis of removability.” Kelly’s guidance was widely criticized. Its priorities were arguably so broad as to prioritize everyone and thus no one. Adding to the muddle, a subsequent unpublished memo by Immigration and Customs Enforcement required its agents to arrest all unauthorized persons they “encountered.” Even so, Kelly’s memo, like those of Napolitano, Johnson, and Mayorkas, was careful to describe the department’s case-by-case decisions to exercise removal authority as instances of “prosecutorial discretion.”

There is no doubt Congress intended that DHS secretaries have the authority to set enforcement priorities. For every year from 2008 until 2017, the House Appropriations Committee included a provision in the Homeland Security funding bill that required the department to prioritize the “removal of aliens convicted of a crime by the severity of that crime.” In 2017, that language got dropped, but its excision was presumably not meant to imply that setting priorities was now verboten. More likely, House Republicans made the change to avoid the appearance that Trump’s failure to set precise priorities was a violation of appropriations restrictions.

Tipton’s opinion, by contrast, treats the executive branch’s defense of prosecutorial discretion as a claim of power to nullify immigration law. For its part, the Fifth Circuit opinion agrees.

These opinions are oblivious to the ways in which the Mayorkas memo and similar guidelines advance values of fairness and the rule of law. As I have argued at length elsewhere, enforcement priorities, even with a reservation of case-by-case discretion, are likely to induce greater consistency, and thus equity, in how an administrative agency handles a huge volume of individual cases. The odds of arbitrary decision-making are highest when an enforcement agency is large and its officers are numerous and dispersed. Delineating priorities invites greater oversight by Congress and by the public.

In reviewing policies like the Mayorkas guidelines, courts must be careful not to overreach. It is incontestably the law that, if Texas and Louisiana had sued to challenge an individual decision by the DHS not to detain or deport a specific individual, such a lawsuit would ordinarily be thrown out of court. Under a 1985 Supreme Court decision called Heckler v. Chaney, nonenforcement decisions by administrative agencies in individual cases are almost always treated as “committed to agency discretion.” An agency’s categorical prioritization policies may have broader impacts that justify some judicial oversight. But that oversight should respect the teaching of Heckler. Writing for eight of nine justices, Chief Justice William Rehnquist observed that

an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, and whether the particular enforcement action … best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all … The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.

In Heckler, the Court acknowledged that judicial intervention would be called for if an agency has “consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” But the Biden administration’s record belies any such accusation. In fiscal year 2021, for example, the administration made 74,000 arrests and deported 59,000 persons. These figures represented a downturn in the overall arrest and removal numbers—but an increase in the number of cases implicating what the DHS quite persuasively determined were threats to public safety. Thus, between February and September 2021, ICE’s Enforcement and Removal Operations reported that it “arrested an average of 1,034 aggravated felons per month … , a 53 percent increase over the monthly average during the final year of the Obama Administration and a 51 percent increase over the monthly average during the Trump Administration.” It further set a record for the number of felons per month actually removed from the United States. This is hardly a record of “abdication.”

Although declining to suspend Tipton’s order, the Supreme Court did agree to expedite a full decision without waiting for the Fifth Circuit to render its judgment, setting oral arguments for December. Yet even under this schedule, there will still be a six- to eleven-month period when the DHS is disabled from enforcing the secretary’s priorities.

Among the questions the Court will eventually decide is whether Texas and Louisiana had legal standing to bring their challenge at all. The Sixth Circuit’s opinion denied that the states were entitled to challenge the Mayorkas memo. Additionally, that appellate court opined that the DHS was likely to prevail. Notably, the opinion was written by Sixth Circuit Chief Judge Jeffrey Sutton, a conservative jurist and legal scholar who has written extensively about the importance of state policy making in our system of federalism.

By leaving Tipton’s order in place, the Court rewards Texas for what the law professor Stephen Vladeck has shown to be a pattern of litigation abuse waged in the courts of GOP-appointed jurists. As Vladeck notes, “Those judges have repeatedly issued nationwide injunctions against virtually every challenged action taken by the Biden administration.” In turn, district court judgments unfriendly to the Biden administration often find a warm reception on appeal in the Fifth Circuit. In the words of Slate’s Mark Joseph Stern, that court comprises a substantial contingent of the nation’s “most radically conservative judges.”

It is conceivable that, sometime in 2023, one male Supreme Court justice might join the women justices in allowing Mayorkas to exercise his authority. But the male justices were presumably aware of what they were doing last week in hamstringing the DHS and giving Texas and Louisiana the benefit of their lower court forum shopping. One need not be a cynic to worry that December’s oral argument will be more performative than an open-minded assessment of the prosecutorial discretion that federal immigration authorities have long enjoyed.

Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.