While the timing of the release of cases by the Supreme Court is somewhat random, ocassionally, we get several unrelated cases in the same area of law.  This week, out of eight cases released by the Supreme Court, three were somewhat significant immigration cases.

The most favorable for immigrants, and the one most likely to be significant for other areas of law was United States vs. Texas. The basic facts of this case is that the law on immigration mandates that the government pursue “removal” (i.e. deportation) against a wide range of immigrants — both those who unlawfully entered the U.S. (or unlawfully remained after their authorization expired) and those who have engaged in some act which justifies terminating the authorization to remain in the U.S.  The problem is that  (as is true for other areas of criminal and civil law enforcement) enforcing the law takes resources.  You need agents to investigate, attorney to handle the cases on behalf of the U.S., and judges to hear the cases once they are brought. And Congress is only willing to budget for a certain number of agents, attorneys, and immigration judges.  Thus, the enforcement agency (Immigrations and Customs Enforcement which is part of the Department of Homeland Security) has to set priorities.  In setting priorities, it is conceivable that an agency could pursue a “first in” policy in which it pursues all cases in the order in which they come in.  But that creates a never ending backlog in which the most serious cases get delayed.  On the other hand, the government can decide which casses qualify as the “most serious” and let “minor” cases slide.  Every administration for the past fifty years has set (and over the course of the administration adjusted) its own priorities.

In the past, states have typically recognized that federal government decisions are federal government decisions and that the states have no authority to challenge the decisions.  But in recent years, state Attorney Generals have switched from building up their reputation via criminal cases to filing frivolous claims against the federal government.  So today, every decision made by the federal government inevitably results in Attorney Generals of the other party filing a suit on behalf of their state.  And thus, when the Biden Administration implemented its priorities for enforcing immigration law, red state Attorney Generals led by accused felon Ken Paxton, Attorney General of Texas, filed suit claiming that the policy was improperly adopted (claiming that such a directive needed to be adopted through the same process as a formal regulation) and failed to comply with the statutory mandate.  Because this case was filed in federal court in Texas (heard by a very Trumpy judge) and appealed to the Fifth Circuit, the lower courts were more than willing to grant relief to Texas and bar the Biden priorities.  The United States Supreme Court reversed finding that the states lacked “standing” (or in plain English, the right to sue).   Stripped to its essence, the Supreme Court found that, while the failure to more vigorously enforce immigration laws might, in some way, harm the states, finding that the government’s priorities were in some sense wrong would not eliminate the harm.  In short, enforcement priorities are inherently a matter of discretionary decision making by the Executive branch and it would be improper for the courts to interfere with that discretionary authority.

At this point, the big legal question is whether the opinion in Texas will apply to other cases starting with the opinion expected later this week on student loan forgiveness.  The test put forth in Texas makes it much harder for a state to assert standing to challenge decisions about the priorities of the federal government.  While the opinion refers to this case as involving unusual circumstances, the reality is that, in recent years, this type of case has become much less unusual.

In the middle of the trio of cases is United States v. Hansen.  The defendant in this case can best be described as a con artist who scammed potential immigrants.  He advertised that he had an adult adoption program that would allow immigrants to enter and remain in the U.S. while they were trying to  obtain permanent residence status (get a “green card”).  Of course, there was no such program, and his scheme merely was a fraud to obtain money from desperate individuals.  In addition to some of the more usual charges that would be brought against such a scumbag, the federal government charged Mr. Hansen with violating the law against inducing and encouraging individuals to unlawfully enter or remain in the U.S.  Mr. Hansen challenged his conviction under the theory that the statute was “overbroad” and, therefore, violated the Free Speech Clause of the First Amendment by “chilling” speech which was constitutionally protected.  The Supreme Court rejected this argument.  In doing so, the Supreme Court held that the terms in the statute have recognized meanings in criminal law and should not be interpreted as expanding on those traditional meanings.  Prior cases have recognized that speech encouraging criminal conduct is not constitutionally protected.  As such, properly interpreted, these statutes are not overbroad, and most of the examples of potentially “chilled” protected speech cited by the defendant are not actually subject to this statute.  As such, the overbreadth challenge fails.

Finally, the worst of the cases for immigrants is Pugin v. Garland.  Immigration laws has two tiers of status related to deportation.  Some types of acts merely authorize removal.  The immigration judge has discretion in such cases to “cancel” removal in a wide variety of circumstances.  Other acts essentially mandate removal and effectively eliminate any discretion (with very limited exceptions) on the part of the immigration judge to cancel removal.  This higher level typically involves a statutory concept known as “aggravated felonies.”  One of the subcategories of aggravated felonies are felonies involving “obstruction of justice.”  The issue in this case is whether a state law that covers acts prior to the start of an investigation involve obstruction of justice.  For example, an individual engaged in blackmail may threaten the victim with consequences if they report the blackmailer to law enforcement.  In such a case, the defendant has clearly taken acts to obstruct any potential investigation but there is no investigation yet (because the police have no idea that a crime is taking place).  The Supreme Court determined that the statutory reference to cases related to obstruction of justice included state charges that applied to pre-investigation conduct.  The dissent challenged the way that the majority analyzed this language contending that the majority’s opinion failed to follow the approach that the Supreme Court has used when considering similar language in criminal statutes basing increased penalties on prior convictions for certain types of conduct.

In short, this week reflected what we can probably expect from the current group of justices.  Generally speaking, close statutory calls will be decided against immigrants.  But most cases involving immigration law will involve close policy choices.   It will not offend anybody that somebody like Mr. Hansen is facing additional penalties for his reprehensible conduct because his conduct involved additional immigration.  And some of the immigrants subject to Pugin have equally engaged in clearly reprehensible conduct.  But there are others who have engaged in conduct that average folks would find is only loosely related to obstruction of justice.  But, ultimately, those issues are a matter for legislative policy setting.  And the solution with a court which will interpret these statutes broadly in favor of  the government is to narrow those statutes which are broader than we desire.  But some of these cases will involve statutes which, in the abstract, are very much common sense.