Immigration and Citizenship

RELEASE: Biden Administration Memo Setting Priorities for Immigration Enforcement Is Lawful, Group of Former DHS and INS Officials Tell Supreme Court

WASHINGTON, DC – Earlier today, the Constitutional Accountability Center (CAC) filed a brief in the U.S. Supreme Court in United States v. Texas on behalf of a group of former officials who served in both Republican and Democratic administrations at the Department of Homeland Security and the Immigration and Naturalization Service. The brief explains why a ruling by the U.S. Court of Appeals for the Fifth Circuit—vacating a Biden Administration memo that sets priorities for immigration enforcement—was wrong.

CAC Appellate Counsel Smita Ghosh said:

The former DHS and INS officials we represent—officials who served in both Republican and Democratic administrations—differ in their views of the Biden Administration immigration enforcement guidance as a matter of policy. But they all agree that it is legal, and that the Supreme Court should reverse the Fifth Circuit’s ruling to the contrary.

As we explain in our brief, the Supreme Court has long recognized that the executive branch enjoys “substantial discretion” in the enforcement of the nation’s immigration laws. The executive branch’s discretion in this context includes the decision to refrain from seeking a noncitizen’s removal and to prioritize others for removal instead.

Indeed, administrations of both parties have long exercised that discretion in determining how best to enforce the nation’s immigration laws. As our brief further explains, immigration agencies have for decades “coped with limited enforcement resources by carefully targeting particular noncitizens for removal. And they have often used guidance documents like the one at issue here to ensure that that discretion is exercised in a consistent and transparent manner.”

The Fifth Circuit ignored this history, disregarding the considerable discretion the executive branch has long exercised in the immigration context, along with its use of guidance documents to ensure that that discretion is exercised in a consistent and transparent manner. Letting the Fifth Circuit’s decision stand would frustrate the executive branch’s ability to effectively enforce the nation’s immigration laws.



Case page in United States v. Texas:


Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at


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