On September 30, 2021, the Department of Homeland Security (DHS) issued a memorandum to the Acting Director of U.S. Immigrations and Customs Enforcement (ICE). The memo stated that because it is impossible for ICE officials to seek out all of the “more than 11 million undocumented or otherwise removable noncitizens” in the country, they should prioritize removing those individuals who pose a threat to national security, public safety, or border security. The states of Texas and Louisiana filed a lawsuit challenging this guidance.

In June of 2022, the Southern District Court of Texas held that the guidance is unlawful, and the Fifth Circuit affirmed. In July, the federal government asked the Supreme Court to hear the case, and it agreed to do so.

On September 19, 2022, CAC filed an amici curiae brief in support of the federal government on behalf of a group of former officials of DHS and its predecessor, the Immigration and Naturalization Service (INS), who served in both Republican and Democratic administrations.  The brief makes three main points.

First, the brief explains that the executive branch enjoys substantial discretion in the enforcement of immigration law, as the Supreme Court has long recognized. In Reno v. American-Arab Anti-Discrimination Committee, for example, the Court explicitly stated that the executive branch has the authority to refrain from seeking a noncitizen’s removal—or deportation—and to prioritize others for removal instead. Executive branch discretion in this area is particularly important because removal decisions can influence foreign affairs and be affected by rapidly changing circumstances on the ground.

Second, the brief explains that guidance documents on enforcement priorities and prosecutorial discretion have long been an essential component of immigration enforcement. As one immigration official explained in a 1976 memo, this guidance is important for “practical and humanitarian” reasons.  Because of limited enforcement resources, the memo explained, the agency was entitled to focus its efforts on especially important cases and decline to prosecute others. In subsequent decades, immigration agencies continued to use guidance documents to direct the exercise of prosecutorial discretion in immigration enforcement. These instructions promote consistency and transparency in the executive branch’s enforcement of the nation’s immigration laws.

Third, and finally, the brief explains that the 2021 memorandum is a valid exercise of the DHS Secretary’s discretion in immigration enforcement. The 2021 document requires personnel to review a variety of individualized factors to determine whether noncitizens fit into priority groups, but it also makes clear that discretion is ultimately left to the judgment of DHS personnel, just as memoranda from previous decades have done.

In sum, the power to set enforcement priorities is a longstanding and essential function of the executive branch, and invalidating DHS’s memo would frustrate the ability of immigration agencies to enforce the nation’s immigration laws effectively.