Thread by @ReichlinMelnick

This Tuesday, #SCOTUS will hear United States v Texas. It may become one of the most consequential immigration cases of all time—less because of its direct impact and more because of the precedential shrapnel the Court might produce. Here's a 🧵 on one of the biggest stakes:

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US v. Texas could lead to:

1) ICE being forced to supercharge detention and deportation.
2) States getting a greenlight to constantly sue the feds.
3) Federal courts losing key abilities to block illegal policies.

Tonight I'm focusing on the first one. Stay tuned for 2 & 3.

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The background to United States v. Texas begins with acknowledging a core reality for law enforcement agencies; you can't get everyone.

As @shobawadhia has documented, this reality has long required ICE/INS to prioritize some people and ignore others. amazon.com/Beyond-Deporta…

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Most people first learned about ICE's longstanding prosecutorial discretion authority when Obama's "felons not families" ICE priorities were first rolled out.

No lawsuits followed, but the right wing seethed—and in 2017, Trump got rid of them week 1.
americanimmigrationcouncil.org/research/immig…

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In February 2021 the Biden admin announced interim ICE priorities. Broadly based on the Obama priorities, they told ICE agents to focus on national security threats, recent border crossers, and those with certain criminal records—deprioritizing others. immigrationimpact.com/2021/02/19/ice…

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This time, Texas went straight to court, claiming the priorities were illegal. In Judge Tipton agreed and struck them down.

In a stroke of luck the appeal was heard by the only two Obama-appointed judges on the 5th Circuit, who blocked Tipton's order. thehill.com/regulation/cou…

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In fall 2021, @SecMayorkas replaced the interim priorities with new ones. Despite saying that no person should be deported just for being undocumented, the priorities gave ICE agents a LOT of discretion to target people they thought should be deported. immigrationimpact.com/2021/10/01/new…

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Texas went back to Judge Tipton, arguing that the priorities were unlawful because ICE was *legally required* to arrest and detain every undocumented immigrant. In short, that prosecutorial discretion itself was illegal. And last August, Tipton agreed.

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https://twitter.com/ReichlinMelnick/status/1428415271929356292

Notably, at the same time as Texas was bringing this case in front of Judge Tipton, plaintiffs elsewhere were trying to get the same thing—and losing. In April, a conservative 6th Circuit panel struck down another judge's attempt to pull a Tipton.

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https://twitter.com/ReichlinMelnick/status/1514681819400130571

So that brings us to Tuesday's arguments in United States v. Texas, which will decide the core disagreement; did a 1996 law actually REQUIRE that immigration enforcement agents arrest and detain every undocumented immigrant, erasing generations of prosecutorial discretion.

If the Supreme Court rules in the Biden administration's favor, it could keep the law the same as it's been for generations, with courts refusing to meddle in the day-to-day operations of law enforcement agencies by ordering them to carry out the impossible—to get them all.

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If the Supreme Court rules in Texas' favor, it could supercharge the immigration enforcement apparatus, stripping DHS HQ of power to superintend the system and requiring ICE to ignore extenuating circumstances and the interests of justice when deciding who to arrest.

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Remember, EVERY law enforcement agency deals with limited resources by prioritizing some things and ignoring others. If Texas wins, it would be a lot like a judge holding that it's illegal if local police don't focus equally as much attention on jaywalkers as murderers.

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There are good reasons to believe that Texas won't win on this argument. Even though a majority of Justices likely think that the Biden administration should be harsher on undocumented immigrants, telling ICE that it HAS to arrest everyone might be a bridge too far.

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Tomorrow, I'll explain how even if Texas loses and #SCOTUS rules that the Mayorkas priorities are legal, US v. Texas could reshape the legal landscape anyway; how the court might limit (or supercharge) the judiciary's ability to overturn federal rules.

https://twitter.com/ReichlinMelnick/status/1597010608897290244

Correction: I said this case is about whether ICE must target everyone. That was an oversimplification. Although vacating the priorities makes everyone a target, Texas's statutory argument has a narrower focus on noncitizens with criminal records or with final orders of removal.