\n\n“by sitting on this case, a Supreme Court dominated by conservative Republican appointees effectively let Tipton control ICE for more than a year.”
…
“Texas\u2019s lawsuit was rooted in a federal statute which states that the United States \u201cshall take into custody any alien\u201d who commits certain immigration offenses. In effect, they argued that the word \u201cshall\u201d is a mandatory command that forces ICE to make mass arrests.<\/p>\n\n\n\n
But this argument runs afoul of 150 years of well-settled law. As far back as Railroad Company v. Hecht<\/em><\/a> (1877), the Supreme Court held that \u201cas against the government, the word \u2018shall,\u2019 when used in statutes, is to be construed as \u2018may,\u2019 unless a contrary intention is manifest.\u201d<\/p>\n\n\n\n One reason for this strong presumption that federal laws do not impose arrest or prosecution mandates on law enforcement is that it is often literally impossible for a law enforcement agency to arrest every single person who violates a law \u2014 imagine the massive police state that would be required, for example, to pull over every single driver who violates a traffic law.<\/p>\n\n\n\n As the Justice Department explained in a 2014 memo, \u201cthere are approximately 11.3 million undocumented aliens in the country,\u201d but Congress has only appropriated enough resources to \u201cremove fewer than 400,000 such aliens each year<\/a>.\u201d That means that leaders of immigration agencies like ICE necessarily must set priorities, and make choices about which deportable immigrants will be targeted and which ones will effectively be tolerated within US borders.<\/p>\n\n\n\n Indeed, as Kavanaugh writes in his Texas opinion, this ability to set priorities and to decide when not to enforce the law has been a regular feature of federal immigration law across many administrations. \u201cFor the last 27 years since\u201d the immigration statutes at issue in\u00a0Texas<\/em>\u00a0\u201cwere enacted in their current form,\u201d Kavanaugh writes, \u201call five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.\u201d”<\/p>\n\n\n\n