“Sue and Settle” Model Is How Biden Will Pay Illegal Immigrants And Open The Borders, And There May Be No Stopping It

“Sue and Settle” Model Is How Biden Will Pay Illegal Immigrants And Open The Borders, And There May Be No Stopping It

It was recently publicized that the Biden administration is negotiating a settlement of a lawsuit brought by a class of plaintiffs who, in 2018, were separated from their family members after being arrested for illegally crossing the southern border.

News reports revealed that Biden’s camp is offering $450,000 to each family that was separated.  This could equate to over $1 million per family and over $1 billion overall.

While much of the public was justifiably outraged to learn that the government is considering paying such a vast sum of money to illegal migrants – especially since families who lose loved ones in military service only receive a death gratuity of $100,000 – the worst part about the settlement has nothing at all to do with the money.

It has to do with the fact that the left is using this lawsuit to set our nation’s border polices under a technique called “sue and settle.”

No Reason to Settle

Since 1952, 8 USC Section 1325 of the United States Code has made it a federal crime for aliens to enter the United States “at any time or place other than as designated by immigration officers” and to elude “examination or inspection by immigration officers.”  This crime carries a penalty of imprisonment up to six months for the first offense, and up to two years for each subsequent one.

In plain English, that means that it’s a crime to sneak across the border.

And Congress plainly has the power to criminalize such conduct.  The Supreme Court has described Congress’s authority to control entry into our country as our “Nation’s armor,” and emphasized “that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.”

On April 6, 2018, then-AG Sessions issued a “Memorandum for Federal Prosecutors along the Southwest Border” that directed them to prosecute, to the extent practicable, all Section 1325 crimes referred to them by DHS. This was known as the “Zero Tolerance” policy.

This, too, was lawful – after all, as the Supreme Court has recognized, the Executive Branch possesses “exclusive authority and absolute discretion to decide whether to prosecute a case.”

And, whenever adults are arrested and prosecuted in the criminal justice system, their children cannot, by law, be housed with them in criminal jails.  Consequently, the family unit must be separated.  This is true whether the crime is a bank robbery in Peoria or an illegal border crossing in Texas.

President Biden called the criminal prosecution of those who illegally crossed our border “outrageous behavior” for which the arrestees deserved compensation.  “If in fact, because of the outrageous behavior of the last administration, you coming across the border — whether it was legal or illegal — and you lost your child,” said Biden, “You deserve some kind of compensation no matter what the circumstances.”

But there’s nothing “outrageous” for a president – whom the Constitution charges to “take care that the laws be faithfully executed” – to abide by his sworn duty to enforce the laws created by Congress.

The Plaintiffs’ Claims

Represented by the ACLU, plaintiffs in this action sued the United and fifteen individually-named defendants. The crux of their case is that the government’s enforcement of 8 U.S.C. § 1325 amounted to an “unreasonable seizure” under the Fourth Amendment and deprived them of a Fifth Amendment right to “remain together as a family.”

To begin, the Supreme Court declared over a decade ago in Van de Kamp v. Goldstein that those who formulate prosecutorial policies are absolutely immune from civil suits for damages.  The architects of the Zero Tolerance policy fall into this category.

Next, the plaintiffs assert that the separation of families violated equal protection because the Zero Tolerance policy “was intentionally applied to and disparately impacted families arriving from Central America” and was motivated by “animus based on race, ethnicity, and/or national origin.”

But Supreme Court has long held that a policy that does not target a suspect class or fundamental right “cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.”

The Zero Tolerance policy applied to all groups entering along the southern border – it was not directed to any specific nationality.  The policy was put in place at the Southern Border not because of any discriminatory animus but because the vast majority of illegal entries to the United States occur there.

In any event, even if the policy had targeted a specific nationality, courts allow the political branches of the federal government to do so in the immigration context so long as doing so is merely rationally related to some legitimate end.  That’s because immigration policy implicates foreign affairs and national security decisions – things that are best left to elected officials who are politically accountable to their constituents, not judges.

And the Zero Tolerance policy clearly had a legitimate purpose – deterring immigrants from attempting to illegally enter the country and curbing the trafficking of minors.

To fail rational basis review, the plaintiffs would have to show that the policy was “so irrational or absurd on [its] face” that it could not have been motivated by anything “other than animus or prejudice against a group.”  That’s just not the case here.

While the plaintiffs may disagree with the wisdom of the Zero Tolerance policy, the Supreme Court has been clear that courts cannot second guess the Executive Branch when it comes to how to enforce immigration laws passed by Congress.

So, given the weakness of the plaintiffs’ legal claims, shouldn’t the administration want to fight the case?  It should, unless it’s using this lawsuit as a vehicle to make changes it can’t accomplish legislatively.

Sue and Settle

Since at least last spring, the litigation of the case has been stayed due to the parties’ settlement negotiations.

The DOJ’s willingness to settle this case and its refusal to aggressively defend against it indicates that what’s happening here is a version of the sue-and-settle technique that has been used for years by environmental special interest advocacy groups to alter EPA regulations without public input.

In other words, unable to get Congress to pass legislation that would eliminate the criminal penalty for illegally crossing the border – and, by extension, the family separations attendant to prosecutions for that crime – the radicals on the left have reached into their bag of tricks to hijack border policy through private lawsuits.

In sue-and-settle cases, agencies intentionally fail to defend against lawsuits brought by special interest groups in order to enter into legally binding, court-approved settlements negotiated behind closed doors. These settlement agreements – which are routinely rubber stamped by the courts – impose rulemaking requirements and other obligations on the agencies.

In a nutshell, the process allows special interest groups to dictate agency policy while bypassing the transparency and public participation conditions for rulemaking under the Administrative Procedure Act.

For an example of how the sue-and-settle technique works to tie the hands of future administrations, look no further than Flores v. Reno, in which was a class-action brought by liberal immigration activist groups against the federal government on behalf of illegal immigrant children who claimed to have been mistreated in detention facilities.

After making its way up to the Supreme Court, the lawsuit culminated in a 1997 settlement – called the Flores Consent Decree – between the activist groups and the Clinton administration.  In it, the federal government agreed to certain terms regarding the detention of unaccompanied alien minors. These included that the government would detain the minors in the “least restrictive” setting appropriate, but must release them “without unnecessary delay” if they were neither a flight risk nor a threat to the safety of others.

In 2015, an Obama-appointed federal district court judge in California interpreted Flores’ “without unnecessary delay” language to mean 20 days.  That court also unilaterally expanded Flores to require the release of all minors, whether accompanied or unaccompanied – a decision that was later affirmed by the Ninth Circuit.

Thus, under Flores, at least as courts have interpreted it, accompanied children must be released even if their parents are being detained pending their immigration hearings.  The government can either separate the children from their parents or release the entire family after 20 days. Because the former was not a palatable option, the Obama administration elected the latter approach – which, in shorthand, was called “catch-and-release.”

Of course, catch-and-release is exactly what the open-borders left has wanted from the get go – an avenue through which entire families can settle into the country’s interior without going through our legal immigration process.

The strictures imposed by Flores do not come from a legislatively-enacted statute or an executive agency regulation, but from a court settlement that has the force of law.  That distinction is important because, unlike an agency policy that can change with the vagaries of each new administration, court orders are practically immutable.

To borrow a phrase from the late Justice Antonin Scalia, the left uses the courts as an “ad hoc nullification machine” to override executive branch policies and regulations it disfavors and to cement in place those it prefers.

And that’s exactly what’s going on here.

Conclusion

Paying money to people for violating our criminal immigration laws is the type of kooky, through the looking glass fantasy that socialists excel at dreaming up.

Should El Chapo file a lawsuit because he was separated from his young daughters when he was arrested?  The very idea is risible.

But while we used to be able to shrug off such mad rantings, we now have an administration filled with marionettes of the  left.

It seems that the Biden Administration is truly committed to paying money to a class of people – numbering in excess of 4,000, according to the plaintiffs’ complaint –  for being legally separated from their families as a result of lawfully-brought criminal prosecutions for illegal entry into the United States.

If Congress can’t legislate to prevent this settlement from being consummated, at the very least it must protect against this travesty by enacting a “Son of Sam law”-type provision that would allow the government to assert a lien on any civil recovery for all amounts incurred at the local, state and federal levels to apprehend and detain each plaintiff.

More importantly, Congress also must claw back its plenary authority over border policy.  It cannot permit its constitutionally enumerated power over immigration to be delegated to open-borders special interest groups and their sympathizers on the federal bench.

In fact, releasing information about the potential $450,000 payouts may well have been a ploy by the left to distract Americans from the central purpose of the lawsuit – changing border policy into perpetuity.  If the public’s attention is focused on the price tag of the settlement, it likely won’t notice the other terms of the agreement.  Such sleight of hand can’t be ruled out.

For an administration that has proven time and again to have no respect for the rule of law, it certainly knows how to use the courts to game the system to its advantage.

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