WEBVTT 00:01.400 --> 00:03.366 align:left position:10% line:83% size:80% JUDY WOODRUFF: The Supreme Court heard a case today that 00:03.366 --> 00:07.533 align:left position:10% line:77% size:80% could have broad implications for how the nation's immigration laws are enforced. 00:07.533 --> 00:11.066 align:left position:20% line:77% size:70% Correspondent John Yang is here with more on the day's arguments. 00:11.066 --> 00:13.800 align:left position:10% line:83% size:80% JOHN YANG: Judy, two states, Texas and Louisiana, 00:13.800 --> 00:18.800 align:left position:10% line:77% size:80% are challenging the Biden administration's guidelines on who of the 11 million people 00:20.266 --> 00:23.566 align:left position:10% line:83% size:80% in the country illegally should be prioritized for deportation. 00:23.566 --> 00:28.566 align:left position:10% line:71% size:80% Here's our resident Supreme Court watcher, Marcia Coyle, the chief Washington correspondent for "The 00:31.000 --> 00:34.233 align:left position:10% line:71% size:80% National Law Journal," who was in the courtroom today, and Theresa Cardinal Brown. She's the 00:34.233 --> 00:39.200 align:left position:10% line:71% size:80% managing director for immigration and cross-border policy at the Bipartisan Policy Center. 00:41.133 --> 00:44.300 align:left position:10% line:77% size:80% Theresa, what's the difference that Texas and Louisiana are complaining about, the 00:46.633 --> 00:50.633 align:left position:10% line:71% size:80% difference between what the immigration law says and what the Biden administration guidelines say? 00:52.600 --> 00:55.166 align:left position:10% line:77% size:80% THERESA CARDINAL BROWN, Bipartisan Policy Center: So, President Biden 00:55.166 --> 00:58.500 align:left position:10% line:71% size:80% when he came in asked the secretary of homeland security to review the prioritization of who 01:00.566 --> 01:03.933 align:left position:20% line:71% size:70% immigration officials should go after for arrest, for deportation in the United States. 01:03.933 --> 01:08.933 align:left position:10% line:77% size:80% President Obama has had similar guidelines. President Trump withdrew them. And President 01:11.300 --> 01:13.900 align:left position:10% line:71% size:80% Biden went and instituted new ones. So they issued a memorandum that is an exercise of 01:13.900 --> 01:16.300 align:left position:10% line:83% size:80% what they call prosecutorial discretion, which is, 01:16.300 --> 01:20.866 align:left position:10% line:71% size:80% we don't have the resources to arrest everybody who's undocumented in the United States and 01:20.866 --> 01:25.066 align:left position:10% line:77% size:80% deport them. So we want to figure out how we tell our people to prioritize. 01:25.066 --> 01:28.733 align:left position:20% line:77% size:70% What Texas and Arizona said is the immigration law doesn't give you 01:28.733 --> 01:32.033 align:left position:10% line:77% size:80% that authority. The immigration law says, if somebody is undocumented, 01:32.033 --> 01:35.800 align:left position:10% line:77% size:80% you shall take them into custody and you shall put them in removal proceedings. 01:35.800 --> 01:40.700 align:left position:10% line:77% size:80% And so some of the debate is, does shall mean shall or does shall mean might? 01:40.700 --> 01:44.766 align:left position:10% line:77% size:80% JOHN YANG: And, Marcia, there was also discussion about the difference between 01:44.766 --> 01:48.566 align:left position:20% line:77% size:70% the immigration law, the words of the immigration law, and reality. 01:48.566 --> 01:51.966 align:left position:20% line:83% size:70% Here's Justice -- Chief Justice John Roberts. 01:51.966 --> 01:56.066 align:left position:10% line:77% size:80% JOHN ROBERTS, Chief Justice of the U.S. Supreme Court: Assuming we think it would be, 01:56.066 --> 02:01.033 align:left position:10% line:71% size:80% if not impossible, surprising and very difficult, for the executive to comply, isn't that a 02:02.966 --> 02:06.100 align:left position:10% line:77% size:80% consideration? We should take into account in trying to figure out if shall means shall? 02:06.100 --> 02:09.166 align:left position:10% line:77% size:80% Because, certainly, there are cases where we have said shall means may. 02:09.166 --> 02:11.300 align:left position:10% line:89% size:80% JOHN YANG: Shall may mean may? 02:11.300 --> 02:13.366 align:left position:10% line:77% size:80% MARCIA COYLE, "The National Law Journal": That's right. And the court has said that. 02:15.366 --> 02:19.033 align:left position:10% line:77% size:80% And I think the broader context here is really about the discretion that federal 02:20.633 --> 02:25.266 align:left position:20% line:77% size:70% agencies have in order to go after violations, not just immigration, 02:27.266 --> 02:30.666 align:left position:10% line:77% size:80% but any federal agency that is enforcing a law tries to prioritize who they will 02:32.500 --> 02:36.166 align:left position:10% line:77% size:80% go after based on the resources they have, the seriousness of the violation. 02:36.166 --> 02:39.700 align:left position:20% line:77% size:70% So this case is being watched closely, not only for immigration, 02:39.700 --> 02:43.233 align:left position:10% line:83% size:80% but for what the court may say about that type of discretion. 02:43.233 --> 02:46.866 align:left position:10% line:77% size:80% JOHN YANG: And, Theresa, what are the constraints? Why -- would it be, 02:46.866 --> 02:51.833 align:left position:10% line:71% size:80% in the words of the chief justice, perhaps be impossible, surprising and very difficult for 02:53.800 --> 02:56.633 align:left position:10% line:77% size:80% the administration to actually carry out the letter of immigration law? 02:56.633 --> 02:58.733 align:left position:20% line:83% size:70% THERESA CARDINAL BROWN: As you mentioned, 02:58.733 --> 03:01.133 align:left position:10% line:77% size:80% the estimates are there are about 11 million undocumented people in the United States. 03:01.133 --> 03:05.033 align:left position:10% line:77% size:80% We know that, in our immigration courts today, there are two million cases waiting to decide 03:05.033 --> 03:09.300 align:left position:10% line:77% size:80% if people will be deported. And ICE, the Immigration and Customs Enforcement agency, 03:09.300 --> 03:12.166 align:left position:10% line:77% size:80% the agency charged with arresting people and putting them in proceedings, 03:12.166 --> 03:14.700 align:left position:10% line:83% size:80% only has a few thousand agents for the entire country. 03:14.700 --> 03:19.700 align:left position:20% line:77% size:70% So it's impossible for them to find and arrest 11 million people 03:21.633 --> 03:25.000 align:left position:10% line:77% size:80% or even put them in detention, because Congress has not allocated sufficient 03:25.000 --> 03:29.966 align:left position:20% line:71% size:70% resources to detain them until they can decide whether or not they can be put into proceedings. 03:29.966 --> 03:34.500 align:left position:10% line:71% size:80% JOHN YANG: And, Marcia, another issue that came up in the arguments today was the question of whether 03:34.500 --> 03:38.733 align:left position:10% line:77% size:80% or not Texas and Louisiana have the right to bring this case, what's called standing. 03:38.733 --> 03:43.733 align:left position:10% line:77% size:80% They are arguing that the administration's guidelines may require them to spend more 03:46.300 --> 03:49.500 align:left position:10% line:83% size:80% on things like education, law enforcement, social services, 03:50.900 --> 03:54.366 align:left position:10% line:83% size:80% but Elena -- Justice Elena Kagan questioned that. 03:54.366 --> 03:59.066 align:left position:10% line:71% size:80% ELENA KAGAN, U.S. Supreme Court Associate Justice: It's just not enough that you're coming in here 03:59.066 --> 04:04.033 align:left position:10% line:71% size:80% with a set of speculative possibilities about your costs,. You have to do more than that, given the 04:06.600 --> 04:11.600 align:left position:10% line:77% size:80% backdrop of what has become, I think, a system that nobody ever thought would occur, which is 04:15.766 --> 04:20.766 align:left position:10% line:71% size:80% that the states can go into court at the drop of a pin and stop federal policies in their tracks. 04:23.366 --> 04:27.733 align:left position:10% line:71% size:80% JOHN YANG: What's the significance of this, not only in this case, but in the broader outlook? 04:27.733 --> 04:30.533 align:left position:10% line:77% size:80% MARCIA COYLE: Well, first of all, I think she was telegraphing that 04:30.533 --> 04:35.400 align:left position:10% line:77% size:80% she doesn't think the states here have standing, because the costs that they 04:35.400 --> 04:39.166 align:left position:10% line:83% size:80% say they're incurring or would incur are just too speculative. 04:39.166 --> 04:44.166 align:left position:10% line:77% size:80% And, as she pointed out in that clip, later, that it would only take $1 with 04:46.133 --> 04:50.633 align:left position:10% line:77% size:80% some judges before they would just knock down a government policy, and any state could come 04:52.600 --> 04:56.700 align:left position:10% line:77% size:80% in on any policy at any time with speculative costs. But she was also making a point about 04:59.100 --> 05:03.066 align:left position:10% line:71% size:80% what has happened. It's not just Republican-led states. It's Democratic-led states as well that, 05:05.033 --> 05:09.033 align:left position:10% line:77% size:80% when they don't like a policy, a government policy, they will go into court, and they 05:09.033 --> 05:14.033 align:left position:10% line:77% size:80% will offer these types of costs in order to get standing to bring their lawsuits. 05:15.500 --> 05:19.233 align:left position:10% line:83% size:80% And then, she said, they find a judge that might be sympathetic, 05:19.233 --> 05:23.400 align:left position:10% line:77% size:80% because they know -- and they know where to file these cases. And that judge, 05:23.400 --> 05:28.400 align:left position:10% line:77% size:80% on the basis of a dollar of costs, could bring a government policy to a dead halt. 05:30.333 --> 05:33.100 align:left position:10% line:77% size:80% And that's something that I think she and others on the court are very concerned about. 05:33.100 --> 05:37.600 align:left position:20% line:77% size:70% JOHN YANG: Theresa, what about that argument? What are the burdens or 05:37.600 --> 05:40.866 align:left position:10% line:83% size:80% the costs on the states of this - - of these Biden guidelines? 05:40.866 --> 05:43.600 align:left position:20% line:77% size:70% THERESA CARDINAL BROWN: Well, I think the problem is that there's 05:43.600 --> 05:48.600 align:left position:10% line:71% size:80% not a differentiation between the overall costs that a state might bear for immigrants that are 05:50.566 --> 05:53.500 align:left position:10% line:77% size:80% living in the state and what additional cost implementation of these guidelines might make. 05:53.500 --> 05:58.300 align:left position:10% line:77% size:80% Immigrants in a state that are undocumented may be working and may be paying taxes, but, 05:58.300 --> 06:01.666 align:left position:10% line:77% size:80% yes, their kids may be in school, they may have health care costs that those 06:01.666 --> 06:05.800 align:left position:10% line:77% size:80% states have to bear. That's the case with any state that has immigrants 06:05.800 --> 06:10.800 align:left position:10% line:77% size:80% in it. If you're trying to differentiate what's the cost of this particular policy, 06:10.800 --> 06:15.466 align:left position:10% line:77% size:80% then you are trying to guess how many additional immigrants might be in any given state. 06:15.466 --> 06:17.466 align:left position:20% line:83% size:70% And I think that's really hard to do. 06:17.466 --> 06:20.733 align:left position:10% line:77% size:80% JOHN YANG: Marcia, there was also a lot of discussion about what this judge in 06:20.733 --> 06:25.700 align:left position:10% line:77% size:80% Texas did when the case originally came to him. He wiped out the guidelines entirely. 06:25.700 --> 06:27.700 align:left position:20% line:89% size:70% MARCIA COYLE: He did. 06:27.700 --> 06:31.266 align:left position:10% line:77% size:80% In fact, you usually think, when judges are faced with cases like this, they might issue 06:33.766 --> 06:36.533 align:left position:10% line:71% size:80% an injunction, which basically blocks it, maybe a nationwide injunction, but it still allows the 06:38.800 --> 06:43.800 align:left position:10% line:77% size:80% case to go forward on appeal, even if the government can't continue to implement it. 06:45.833 --> 06:48.900 align:left position:10% line:77% size:80% But this particular judge used something called vacatur, which means that he vacated the whole 06:51.466 --> 06:56.033 align:left position:10% line:71% size:80% policy. It didn't exist. And the government, the United States says, you can't do that. That's not 06:58.666 --> 07:03.666 align:left position:10% line:77% size:80% the kind of remedy that the law allows. And so there was a lot of discussion about a law that 07:06.200 --> 07:08.433 align:left position:10% line:71% size:80% we have talked about before, the Administrative Procedure Act, which is the rules of the road for 07:08.433 --> 07:13.433 align:left position:10% line:77% size:80% federal agencies when they enact new policies or change them, and whether that act allows 07:15.500 --> 07:19.433 align:left position:20% line:71% size:70% federal judges to wipe out a government policy, instead of just blocking it pending an appeal. 07:21.433 --> 07:25.533 align:left position:10% line:77% size:80% What the court is going to do with that, I don't know. I know the chief justice called 07:25.533 --> 07:30.533 align:left position:10% line:77% size:80% it a radical argument, because judges are used to using vacatur. But I think 07:31.900 --> 07:33.966 align:left position:10% line:83% size:80% the government's given them some food for thought. 07:33.966 --> 07:37.366 align:left position:10% line:77% size:80% JOHN YANG: Marcia Coyle of "The National Law Journal," Theresa Cardinal Brown of 07:37.366 --> 07:39.500 align:left position:10% line:83% size:80% the Bipartisan Policy Center, thank you very much. 07:39.500 --> 07:40.733 align:left position:10% line:89% size:80% MARCIA COYLE: My pleasure, John. 07:40.733 --> 07:45.600 align:left position:20% line:83% size:70% THERESA CARDINAL BROWN: Thank you.