Lewis Morris / December 2, 2022

Biden’s Open Border on Trial

The Supreme Court heard arguments in a case over whether enforcement of the law can be selective.

The Supreme Court heard oral arguments Tuesday in United States v. Texas, in which the Biden administration’s policy of selective immigration enforcement has come into question.

The legal battle began in September 2021 after Homeland Secretary Alejandro Mayorkas released a memorandum stating that the federal government would prioritize illegal immigration cases based on whether individual detainees posed a public safety threat or a national security risk. “We do not have the resources to apprehend and seek the removal of every one of these noncitizens,” Mayorkas wrote at the time. “Therefore, we need to exercise our discretion and determine whom to prioritize for immigration enforcement action.”

Moreover, he said, “The majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years,” and the fact that they are here illegally “should not alone be the basis of an enforcement action against them.” He concluded that “justice and our country’s well-being require” this policy.

Talk about rolling out a welcome mat.

Texas and Louisiana filed suit on grounds that federal immigration policy requires detention and deportation hearings for all illegal immigrants convicted of felonies in the U.S. The states also noted that Biden’s immigration policy places an undue burden on border states to tackle a problem that is the responsibility of the federal government. On June 10, 2022, Judge Drew Tipton of the U.S. District Court for the Southern District of Texas vacated the Mayorkas memo. The U.S. Court of Appeals for the Fifth Circuit later refused to leave the policy on hold, but the Supreme Court allowed Tipton’s decision to stay in place while the case wound its way through the courts.

The showdown at the Supreme Court unfolded in a lively two-and-a-half-hour debate in which justices were confronted with three major issues: whether the Biden administration has the authority to alter immigration law, whether states have standing to challenge the federal government in court, and whether a federal district court judge has the authority to set aside the policy.

It appeared that the Court’s bloc of six conservative justices were united in their support for the states’ right to sue the federal government and in their skepticism of the Biden administration’s unilateral alteration of immigration policy. The administration proceeded from the assumption that it has the discretion to dictate policy, particularly in the face of what it termed congressional inaction in funding to deal with 11 million illegal immigrants.

Now, about that number. Democrats have been clinging to the “11 million illegal immigrants” figure since at least the Obama administration. While that number may have dipped due to the Trump administration’s solid border enforcement policies and COVID, there is no way that there are currently that few illegals in the country. Nearly five million illegals have slipped in since Biden took office, and the real number in the country could be more than 20 million.

If the Biden administration had not established an open border and let so many illegals into the country, the federal government might have the resources necessary to do its job and protect citizens from criminal aliens.

Chief Justice John Roberts brought home the point that the White House doesn’t get to reset policy because it cannot meet its demands. “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,” said Roberts. “And I don’t think we should change that responsibility just because Congress and the executive can’t agree on something that’s possible to address this problem. I don’t think we should let them off the hook.”

Roberts and Justice Samuel Alito also took issue with the position of the Biden administration that federal judges lacked authority to block the new guidelines. Roberts pointed out that courts have had this power for decades. Alito noted that the federal government was showing “special hostility” toward the states in this matter.

The case is due to be decided in June 2023, and the Biden administration may have signaled with some enforcement announcements that it knows defeat is coming.

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