On June 10, 2022, a U.S. district judge in the Southern District of Texas vacated the Biden administration’s September 2021 memorandum on immigration enforcement prioritization as “arbitrary and capricious, contrary to law, and failing to observe procedure under the Administrative Procedure Act.” Judge Drew Tipton said the core of the dispute was “whether the Executive Branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress. It may not.” 

The states of Texas and Louisiana argued that the memorandum conflicted with detention mandates under federal law. The judge noted that in the 1990s, Congress reined in the Executive Branch’s discretion by mandating detention of criminal aliens or those with final orders of removal: “The wisdom of the statute passed by Congress and signed into law by the President has no bearing here. The passions of the present sometimes conflict with the views of the past. But the law remains unless it is repealed or replaced. And the two statutes at issue in this case are still the law of the land.” Although the Executive Branch has “case-by-case discretion to abandon immigration enforcement as to a particular individual,” the judge said, this case “does not involve individualized decisionmaking. Instead, this case is about a rule that binds Department of Homeland Security officials in a generalized, prospective manner” in contravention of Congress’s detention mandate. Further, although it is true that the Executive Branch “may prioritize its resources,” it “must do so within the bounds set by Congress.” Accepting the Executive Branch’s position invoking “discretion” and “prioritization” would have “profound consequences for the separation of powers,” the judge said.

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