In Tuesday’s single hearing, the Supreme Court will have a historic encounter with United States policy on immigration. The hearing will be in the language of legal decorum, but not far in the background will be a dark theory of xenophobia – the bitter resentment of foreigners among us.
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Tomorrow’s case: United States v. Texas and Louisiana The hearing will begin at 10 a.m., and is scheduled for one hour; given the case’s importance and complexity, the hearing may last longer.
Background: This case will bring fully into public view the legal side of the increasing resistance by conservative leaders of states – Texas and its allies – to government policy on immigration, sometimes spurred by versions of the “great replacement theory.” That’s the increasingly angry complaint that foreign citizens from nations of color are arriving at too great rates, too many are allowed to be released into the U.S. instead of being detained, and too few are deported.
That theory, said to have originated with French nationalist Renaud Camus in the 1990s, is gaining a considerable following in America, among deeply conservative politicians and activist groups and, in particular, by some commentators on the cable TV channel, Fox News. Camus (who is not related to the late Albert Camus, French philosopher and author) published a book in 2011 about his idea, Le Grand Remplacement (translation in English, The Grand Replacement).
The basic notion is that “elites” have promoted the replacement of European white populations by non-white immigrants in large numbers, mainly from Muslim nations. As the concept has spread more recently across America, there is rising blame on immigration of Jews. A notorious example of that grievance was the “Unite the Right” rally of white nationalists in Charlottesville, VA, in August 2017, chanting “Jews will not replace us!”
Some of the same resistance, perhaps not so obviously racist, has unfolded for years over U.S. immigration policy along the Southern border with Mexico. That policy has drawn bitter criticism, especially in some border states; for a time, there were claims that “caravans” of migrants were being recruited to “invade” the United States. As President, Donald Trump eagerly promoted the hostility to immigrants.
Now, the new Republican leadership that will take over the House of Representatives in January is already promising to impeach Homeland Security Secretary Alejandro Mayorkas, over his management of that policy. (There is no chance of him being removed by the Senate.)
It is a set of guidelines, on detention and release of immigrants, that Secretary Mayorkas issued in September 2021 that is at the center of the case being heard in the Supreme Court on Tuesday. A number of the filings in the case, responding to the challenges by Texas and Louisiana to those guidelines, referred explicitly to the “replacement theory” and its racist implications.
A federal judge in Texas, in a case filed by those two states, has issued a nationwide order barring enforcement of those guidelines, concluding that they violate federal immigration law and were issued by improper procedures. A federal appeals court refused, on a temporary basis, to interfere with that order.
The Justice Department promptly asked the Supreme Court to allow the guidelines to go into effect; the Court refused to do that, although four Justices voted to grant that request; that was one short of the number needed. The Court went on to agree to review the dispute, in advance of any further action in the lower courts, which are split on the issue.
The scope of the guidelines at issue: Soon after the Biden Administration came into office in January 2021, it began studying ways to relax policy on the arrest, detention, release and deportation of foreign nationals who had entered the U.S. illegally or remained without permission. Several orders were issued, concluding with the final guidelines issued by Secretary Mayorkas.
Noting that immigration enforcement agencies have limited capacity for dealing with more than 11 million foreign nationals who entered illegally or otherwise were potentially subject to deportation, the guidelines set priorities on who among those individuals would be taken into custody, held in custody or released while awaiting final action on deportation, or deported.
Although federal immigration laws generally specify that the federal government has a duty to carry out each of those functions, for more than a century, officials have had given broad discretion on how to carry out those assignments. A main feature of that discretion has been to suspend or avoid taking any step in the process.
In the new guidelines, the Homeland Security Department set up priorities of enforcement, focusing on three categories of non-citizens: first, suspected terrorists and others deemed to be threats to national security; second, others who may pose a threat to public safety – mainly because of serious criminal conduct, and third, those who may pose a threat to safety along the nation’s borders.
Instead of relying on very specific categories, the guidelines mandated review of all of the circumstances involving each case, with substantial discretion left with officials in the field. The mandate stressed that it would not apply to non-citizens already being held in custody, but only to new arrests, detention, release or deportation.
The policy was challenged successfully in federal court in Ohio, by the states of Arizona, Montana and Ohio, and in a federal court in Texas, by Texas and Louisiana. The challenging states argued that they would be harmed if the guidelines went into effect, increasing their costs of law enforcement, education and other public services, and exposing their residents to increased crime. They contended that the orders were unlawful under federal immigration law. Federal appeals courts reached conflicting decisions on the enforcement issue.
Only the Texas order is before the Court at tomorrow’s hearing.
The questions before the Court: (1) did state governments have a right to file these lawsuits when they cannot prove direct legal harm and are not themselves targets of the guidelines; (2) are the guidelines illegal under immigration law, and did the government use a flawed procedure in issuing them, and (3) did the Texas trial judge in this case lack the authority to set aside the order nationwide?
Significance: For more than a generation, attempts in Congress to rewrite immigration policy overall, or at least to clarify some of its complex provisions, have routinely ended in stalemate. The two major political parties insist that they favor reform, but they remain so polarized that nothing gets done. Immigration legislation has routinely failed more than any other policy initiative.
What that means, then, is that the courts – especially the Supreme Court – are the main actors in determining how the federal government treats the millions of non-citizens who are now living in the country without official permission to remain. The task has never been easy; Justices and lower court judges find themselves wandering in a maze of bewildering clauses in an array of laws passed years ago.
With the aggressive anti-immigration views of the Trump Administration, and the spread of hostility to foreign nationals – now made even angrier by the “great replacement theory,” the courts in general are buffeted by dueling advocacy organizations, with each side well-funded and with considerable legal talent to press its side of the controversy.
In this case, the Court has given itself a particularly challenging task by specifying the three major questions that it will try to decide. Ordinarily, it is up to the lawyers filing appeals to specify the issues but the Court, in speeding its process in this case, crafted the questions itself.
It will take a majority of at least five Justices to come together to make a meaningful decision. The Biden Administration has some hope of counting on the four Justices who would have allowed the guidelines to go into effect while the case proceeded (Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor), but the fate may be decided by the other five Justices who were unwilling to take that step.
The briefs in the case are focused on the legal questions at issue, so the hearing may be, too. The “great replacement theory” could go unmentioned, but it will be no less present.
On Wednesday, the Court will hold a single hearing in a significant case testing Congress’s authority to take away federal courts’ power to decide a case. Lately, liberal critics of the current Court’s conservative direction have been promoting restraints on its jurisdiction as one potential response.