One of the U.S. Supreme Court’s final decisions this term was in U.S. v. Texas, a dispute between the executive branch and two U.S. states—Louisiana and Texas—regarding whether President Biden had the authority to set priorities for how his administration conducts immigration enforcement. In other words, the states challenged the extent of prosecutorial discretion that can be exercised by a U.S. president when enforcing immigration statutes. The Supreme Court ruled by an 8-1 vote that U.S. states do not have the necessary standing to challenge the federal government’s immigration enforcement priorities—thereby affirming the president’s ability to exercise prosecutorial discretion.
Most of the media coverage and analysis of the decision has glossed over one major impact the decision could have: help the Biden administration better protect labor standards for all workers, including migrant workers. While helping workers was not the rationale of the decision, it could be one of its lasting impacts.
The president has broad authority to set immigration enforcement priorities
In 2021, the Biden administration’s Department of Homeland Security (DHS) issued a memo outlining its immigration enforcement priorities: threats to national security, threats to public safety, and threats to border security. A section in the memo also declared that immigration enforcement should not be used to retaliate against noncitizens who attempt to exercise their rights, including labor rights. Louisiana and Texas challenged the legality of the memo.
The enforcement priorities in the DHS memo were similar to those under the Obama administration and partly a response to those under the Trump administration, which had made virtually all unauthorized immigrants a priority for removal from the United States, without regard for individual or mitigating circumstances that could justify allowing them to remain in the country—like whether they had a clean criminal record or had lived in the United States for many decades and had deep family ties.
The Supreme Court’s rejection of the challenge to the DHS memo means that the principle of prosecutorial discretion in immigration enforcement is now more firmly established. It also confirms what President Biden and other presidents before him have asserted, namely, that the executive branch is not mandated by law to arrest every single unauthorized immigrant—which, although the immigration enforcement agencies get about $25 billion per year from Congress, is something they nevertheless do not have the funding and resources to accomplish, as the Supreme Court pointed out. Ultimately, the decision means that President Biden, and future presidents, can decide whom they wish to target with the resources available when enforcing immigration laws.
If there is a valid reason, the unauthorized migrants who are not priorities and targets for enforcement may receive one of the available forms of temporary protection from deportation, such as deferred action, parole, or deferred enforced departure, which are similar but have some key differences. And under current federal regulations, the recipients of these temporary forms of deportation relief can also be eligible for an employment authorization document (EAD)—also known as a work permit—if they have an economic need for it.
However, the Supreme Court did not say that the executive branch’s ability to exercise prosecutorial discretion in immigration is absolute. As Vox’s legal analyst Ian Millhiser rightly pointed out, some of the language in the decision still left the door open for future challenges. Justice Kavanaugh, who authored the decision, wrote explicitly that, “This holding does not suggest that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions,” and lists five possible scenarios. One of them states:
…a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.
The plain language here suggests that if an unauthorized migrant is the subject of non-enforcement (i.e., is the recipient of a temporary deferral from deportation) and that non-enforcement is also coupled with a grant of government benefits or a legal status, then those benefits or status may be the hook necessary for someone to challenge the exercise of prosecutorial discretion.
It must be noted that current forms of individualized non-enforcement like deferred action or parole do not grant a legal status and recipients are not entitled to federal public benefits. Those who wish to challenge a president’s immigration enforcement priorities might argue that the issuance of employment authorization documents to persons who are granted deferred action constitutes a significant government “benefit”—one that allows them to have standing before the federal courts. They may also directly challenge the ability of the executive branch to issue EADs. But such challenges would likely be based on a misunderstanding of the law that authorizes the issuance of EADs.
As I’ve written about in detail, while the authority to grant deferred action to unauthorized migrants rests on the president’s prosecutorial discretion, the authority of U.S. presidents to grant an EAD to whomever they so choose—regardless of immigration status—is plainly and clearly set out in the law. Thus, DHS’s authority to grant work permits should not be viewed as a federal benefit that permits a challenge to enforcement priorities.
Deferred action for workers helps hold lawbreaking employers accountable
The importance of an EAD for migrants who have been granted deferred action cannot be overstated. The ability to work lawfully means having labor rights that are more meaningfully enforceable in practice. When workers have an EAD, employers cannot use immigration enforcement to threaten workers and silence them from speaking out about workplace violations like wage theft. When workers don’t have an EAD, they’re more likely to be victimized by employers. Research shows unauthorized migrants are twice as likely to be the victims of wage theft, for example.
But from the perspective of enforcing the law, deferred action is also an essential tool for federal agencies to hold lawbreaking employers accountable. That helps explain why the Biden DHS announced in January a streamlined process that provides clarity on how migrant workers who are victims of—or witnesses to—labor and employment violations can come forward to request temporary protection from deportation through deferred action, coupled with employment authorization.
Providing deferred action for workers in labor disputes on a case-by-case basis, as the Biden administration is doing, falls squarely within the prosecutorial discretion authority that the Supreme Court has just affirmed. There’s no question that using this authority will help protect workers and whistleblowers who come forward to report labor and workplace violations.
Given the current budget constraints of federal labor standards enforcement agencies, which are funded at just one-twelfth the rate of immigration enforcement agencies, this will act as a force multiplier that helps underfunded and understaffed labor agencies fulfill their missions. And ultimately, this will make workplaces safer for all workers and level the playing field for law-abiding employers.
In short, Louisiana and Texas brought such a frivolous case against Biden’s immigration enforcement priorities that even an ultra-right-wing Supreme Court ruled almost unanimously that the states didn’t even have the right to challenge it. Thanks to the decision in U.S. v. Texas, the Biden administration’s power to use prosecutorial discretion when enforcing immigration laws is now on even firmer ground than it was before.
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