The Supreme Court Declares DHS Can Ignore Congressional Enforcement Mandates

Summary In U.S. v. Texas, the Supreme Court issued a 5-4 decision throwing out Texas and Louisiana's challenge to DHS Secretary Mayorkas' 2021 "Guidelines for the Enforcement of Civil Immigration Law", in which Mayorkas told DHS immigration officers in no uncertain terms to ignore congressional mandates regarding the arrest and detention of criminal aliens and aliens ordered removed.

In Demore, the Supreme Court itself cited the OIG and Judiciary Committee reports for the proposition that Congress "Had before it evidence that one of the major causes of the INS' failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings".

Second, the states never even sought to require that DHS "Prosecute" - or in the civil immigration enforcement context, "Remove" - anyone.

As the Passover song "Dayenu" goes, "Had [God] brought us out of Egypt, it would have been enough. ... Had he given us the Torah, it would have been enough." Conversely, "Had Kavanaugh denied the States standing, it would have been too much. Had Kavanaugh denied anyone and everyone the ability to challenge Secretary Mayorkas' unlawful flouting of congressional enforcement mandates, it would have been too much." But the Kavanaugh opinion hinted at an even more radical emasculation of Congress' long accepted plenary power over immigration.

The Court had also stated in Demore, in upholding the constitutionality of mandatory detention under 236(c), that the section "Mandates detention during removal proceedings for a limited class of deportable aliens - including those convicted of an aggravated felony." As Justice Alito noted in Texas, "All of our recent decisions interpreting these provisions confirm that, for covered aliens, shall means shall; it does not mean 'may.'".

The Supreme Court itself concluded in its 2019 decision in Nielsen v. Preap that "The transition rules delayed the onset of the Secretary's obligation to begin making arrests as soon as covered aliens were released from criminal custody .... [H]ad the transition rules not been adopted, the Secretary's failure to make an arrest immediately upon a covered alien's release would not have exempted the alien from mandatory detention under [236(c)]."

The Court of Appeals held that the States had standing ... and the majority in this Court, despite extended engagement with other jurisdictional questions, never hinted that Article III precluded the States' suit. 

https://cis.org/Fishman/Supreme-Court-Declares-DHS-Can-Ignore-Congressional-Enforcement-Mandates