By MARK SHERMAN
Associated Press
WASHINGTON (AP) -- The Supreme Court on Tuesday wrestled with a partisan-tinged dispute over a Biden administration policy that would prioritize deportation of people in the country illegally who pose the greatest public safety risk.
It was not clear after arguments that stretched past two hours and turned highly contentious at times whether the justices would allow the policy to take effect, or side with Republican-led states that have so far succeeded in blocking it.
At the center of the case is a September 2021 directive from the Department of Homeland Security that paused deportations unless individuals had committed acts of terrorism, espionage or "egregious threats to public safety." The guidance, issued after Joe Biden became president, updated a Trump-era policy that removed people in the country illegally regardless of criminal history or community ties.
On Tuesday, the administration's top Supreme Court lawyer told the justices that federal law does "not create an unyielding mandate to apprehend and remove" every one of the more than 11 million immigrants living in the country illegally.
Solicitor General Elizabeth Prelogar said it would be "incredibly destabilizing on the ground" for the high court to require that. Congress has not given DHS enough money to vastly increase the number of people it holds and deports, the Biden administration has said.
But Texas Solicitor General Judd Stone told the court that the administration violated federal law requiring the detention of people who are in the U.S. illegally and who have been convicted of serious crimes.
Chief Justice John Roberts was among the conservative justices who pushed back strongly on the Biden administration's arguments. "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, and I don't think we should change that responsibility just because Congress and the executive can't agree on something ... I don't think we should let them off the hook," he said.
But Roberts wasn't totally satisfied when Stone said the number of people potentially affected total 60,000 to 80,000.
Justice Brett Kavanaugh said that whatever the actual number, "the resources still aren't there."
The court's three liberal justices, on the other hand, were sympathetic to the Biden administration's arguments. Justice Sonia Sotomayor and Elena Kagan, made clear they believed that Texas and Louisiana, which joined Texas in suing over the directive, weren't even entitled to bring their case.
The case is the latest example of a Republican litigation strategy that has succeeded in slowing Biden administration initiatives by going to GOP-friendly courts. Kagan picked up on that during arguments, saying that Texas could file its suit in a courthouse where it was guaranteed to get a sympathetic hearing and that one judge stopped "a federal immigration policy in its tracks."
In July, the court voted 5-4 to leave the immigration policy frozen nationwide. Conservative Justice Amy Coney Barrett joined the court's three liberals in saying they would have allowed the Biden administration to put in place the guidance.