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SCOTUS Leaves In Place Lower Court Order Vacating Biden Admin Immigration Enforcement Dodge, For Now

SCOTUS Leaves In Place Lower Court Order Vacating Biden Admin Immigration Enforcement Dodge, For Now

Court will hear the case on the merits next term, but denied a stay 5-4. “It’s boys v. girls at Supreme Court!” declared conservative legal author Margo Cleveland.

The Biden administration is deliberately not enforcing the immigration laws. The illegal flow of people across the Mexican border is historically large, with an estimated 9 million illegal aliens expected to enter and remain in the U.S. during Biden’s four year term. Almost none of them ever will be forced to leave. It’s a conspiracy to violate our immigration laws, by the Biden administration.

They thought they found a way to evade legal responsibility, by claiming they simply are prioritizing the worst offenders. That was a ruse to not enforce the law as to the bulk of immigration offenders. This prosecutorial discretion excuse is a standard excuse for non-enforcement.

Amy Howe at Scotusblog explained the nature of the dispute:

The policy at the center of the dispute is outlined in a September 2021 memorandum by Secretary of Homeland Security Alejandro Mayorkas on the federal government’s priorities for immigration enforcement. Explaining that there are over 11 million noncitizens currently in the United States who could be subject to deportation, but that the Department of Homeland Security does not have the resources to apprehend and deport all of them, the memorandum instructed immigration officials to prioritize the apprehension and deportation of three groups of noncitizens: suspected terrorists, people who have committed serious crimes, and those caught at the border.

Texas and Louisiana sued in federal court in Texas, and a District Court judge issued an Order after 96 pages of analysis, vacating the prioritization memorandum. The 5th Circuit declined to issue a stay of the District Court decision.

The Biden administration filed an Application for a Stay with the Supreme Court, and asked the court to hear the full case even before the 5th Circuit considered the case on the merits:

This case concerns a district court’s nationwide vacatur of September 2021 guidance issued by the Secretary of Homeland Security to carry out his statutory responsibility to set “national immigration enforcement policies and priorities.” 6 U.S.C. 202(5); see App., infra, 136a-142a (Guidance). The Department of Homeland Security (DHS) has long relied on such guidance to harmonize its efforts and focus its limited resources. In the Guidance at issue here, the Secretary identified as priorities for apprehension and removal noncitizens who threaten national security, public safety, and border security. App., infra, 138a-139a….

The district court’s reasoning contradicts not only the Sixth Circuit’s decisions, but also the historical practices of the Executive Branch. And the court’s remedy violated 8 U.S.C. 1252(f)(1): As an intervening decision of this Court makes clear, Section 1252(f) (1) deprives the lower courts of jurisdiction to compel the Executive Branch to comply with their interpretation of the relevant statutory provisions. See Garland v. Aleman Gonzalez, No. 20-322 (June 13, 2022)….

The Court should stay the district court’s judgment in full — or, at minimum, to the extent it operates outside Texas and Louisiana. That judgment is thwarting the Secretary’s direction of the Department he leads and disrupting DHS’s efforts to focus its limited resources on the noncitizens who pose the gravest threat to national security, public safety, and the integrity of our Nation’s borders.

* * *

The application for a stay of the district court’s judgment vacating the Guidance should be granted. At a minimum, the Court should stay the district court’s judgment outside Texas and Louisiana. In addition, the Court may wish to construe this application as a petition for a writ of certiorari before judgment, grant the petition, and set this case for argument in the fall.

In their Opposition to the Application for a Stay, Texas and Louisiana disputed the characterization of the supposed prosecutorial discretion, as well as other aspects:

Through the Immigration and Nationality Act, Congress has directed the Executive—in mandatory language—to detain specific criminal aliens (e.g., aggravated felons) at a specific time (i.e., upon release from criminal custody) for a specific duration (i.e., during the removal period). It has also required the Executive to detain aliens with final orders of removal while they are removed. Both the federal government and this Court have repeatedly described these provisions as mandatory.

DHS now disagrees….

The district court vacated, but refused to enjoin, the Final Memorandum because—among other reasons—DHS’s guidelines improperly revised Congress’s careful and mandatory commands. App.38a-133a. Applying established precedent, the Fifth Circuit declined to stay that ruling because it was “inclined to agree,” App.2a, but that Court has not yet had the opportunity to review full briefing on the merits. This Court should likewise deny applicants’ request for the extraordinary remedy of a stay pending appeal of that vacatur.

In a 5-4 decision, with new Justice Jackson joining Sotomayor, Kagan, and Barrett dissenting, the court denied the stay, but agreed to hear the case even before a lower court judgment:

The application for stay presented to Justice Alito and by him referred to the Court is denied. The Solicitor General suggested that the Court may want to construe the application as a petition for certiorari before judgment. Doing so, the petition is granted. The parties are directed to brief and argue the following questions: 1. Whether the state plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law; 2. Whether the Guidelines are contrary to 8 U.S.C. §1226(c) or 8 U.S.C. §1231(a), or otherwise violate the Administrative Procedure Act; and 3. Whether 8 U.S.C. §1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the Guidelines under 5 U.S.C. §706(2).

The case will be set for argument in the first week of the December 2022 argument session.

Justice Sotomayor, Justice Kagan, Justice Barrett, and Justice Jackson would grant the application for stay.

I know you are going to find this hard to believe, but Democrats and the lawyers who love them are freaking out.

Ian Millhiser, a bellweather for lefty legal sensitivities, wrote at Vox, The Supreme Court just let a Trump judge seize control of ICE, at least for now:

On Thursday evening, the Supreme Court handed down a brief, 5-4 decision that effectively places Drew Tipton, a Trump-appointed federal trial judge in Texas, in charge of many of Immigration and Customs Enforcement’s (ICE) decisions about which immigrants to target.

The decision was largely along party lines, except that Justice Amy Coney Barrett joined the Court’s three Democratic appointees.

The decision in United States v. Texas is temporary, but the upshot of this decision is that Tipton will effectively wield much of Homeland Security Secretary Alejandro Mayorkas’s authority over how ICE officers prioritize their time for as much as an entire year — and that’s assuming that the Biden administration ultimately prevails when the Court reconsiders this case next winter.

Someone at Slate wrote:

But let’s be honest, Thursday’s decision wasn’t really about the law. The last time the Supreme Court temporarily let a Trump-appointed judge do something radical and order the Executive Branch to negotiate with Mexico, the Biden administration ended up winning a 5-4 victory striking down MPP. This case may end the same way because the Biden administration is so undoubtedly correct on the law that the same justices who balked in Biden v. Texas might well balk here, too.

If Thursday’s decision didn’t come from the law, what did it come from? The answer to that is what appears to be a growing sense among the Supreme Court’s conservative majority that undocumented immigrants have won themselves too many rights over the last couple of generations, and that they have to be reminded who’s boss. And the fact that it’s a thumb in the eye of the Biden administration is an additional benefit.

The 5-4 split created another dynamic. “It’s boys v. girls at Supreme Court!” declared conservative legal author Margo Cleveland.

Who wins in the end? My gut tells me one of the “boys” will cross the aisle, and defer to the executive branch and the political process on the control (or lack of control) of (illegal) immigration.


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Part of the Statehood pact was that the Federal Government would defend the several States, starting at the borders.
They didn’t say that they would only do so if they had the time, the inclination and the staffing.
This is essentially breech of contract.

    Milhouse in reply to snowshooze. | July 25, 2022 at 10:14 am

    Tough luck. The contract is indissoluble. See Lincoln v Davis (1861-65)

    Seriously, the supreme court ruled in the Rhode Island revolution in the 1840s that the Republican Guarantee clause is not justiciable. The same would apply to the rest of A 4 § 4.

This does seem like one of those “how are they going to enforce it?” sort of decisions.

Whether the language is discretionary or not, I really don’t see any way to compel the executive branch to enforce any law it does not want to, short of removal and replacement by a different executive branch, and that’s not really something the court is part of.

Or the excuse. It’s Marxism to believe there are no borders for the world Commust Revolution

Margot Cleveland is an excellent writer and legal analyst at The Federalist.

IDK about predicting a win for the Biden Admin here.

The Feds have the responsibility for immigration policy and enforcement of the policy. The statutory language is clear and unambiguous. Love them or hate them Congress provided the statute and the Executive is duty bound to carry out the ‘will of the People’ as expressed through through the infinite wisdom of Congress.

Consider that prior Admin have similarly thrown up their hands and declared the problem is in essence too big to solve with scarce resources. The States most impacted attempted to assist the Federal Govt with immigration issues using State and local resources. The Feds objected to the assistance and successfully argued such assistance intruded into a purely Federal responsibility.

A subsequent Admin with different policies re immigration successfully reduced absolute numbers of illegal crossings, conducted interior enforcement, increased the number of immigration Judges and used diplomacy to reduce the pressure and strain on limited resources. All of which demonstrate that illegal immigration and asylum claims are not, in fact, an insurmountable problem.

Now the Biden Admin has in essence scrapped the successful policies of the prior Trump Admin, rebuffed offers of assistance from States and localities. Instead they offer a claim of discretion and seek deference from the CT for their, IMO, purposeful policies designed and devised to fail to meet their enforcement obligation. The CT may very well choose to retreat behind the issue of standing for the States. If so that presents the obvious question; who does have standing if not the States? Individual citizens? A class of Citizens? No one?

IMO, where the Federal government has asserted and had confirmed in CT exclusive jurisdiction they are under an obligation to meet the duty of performance specified by the statues Congress has passed into law. To allow the Feds to, in essence, claim ‘this is our job, only we can do that job, no one else can attempt to do it…but we choose not to do it’ seems specious given that this is an enumerated power and responsibility of the Federal government.

It will be an interesting case to observe in light of the general tenor of the last term which seemed to emphasize text of the Constitution and text in grants of authority from Congress to agencies. Federalism confers both authority and responsibility. The CT may very well take the opportunity to remind the Federal government of that, then again they may not. We find out which in a year.

and defer to the executive branch
Why would the executive branch be the one to defer to? Congress wrote a law. This one should be a no-brainer for anyone even remotely familiar with the Constitution.

    CommoChief in reply to GWB. | July 23, 2022 at 5:15 pm


    Very simplistic answer is the legislative branch determines ‘what is to be done’ then the executive branch determines ‘how it is to be done’. Sometimes the legislative branch gives a large amount of latitude as to how a statute is implemented, sometimes less and very rarely they leave little at all. When the Judiciary is called upon to referee they often choose to grant deference to the executive because its easier to do so. Especially when the statue grants or directs ‘the Sec of X Agency shall make such regulations as necessary…’

    In those instances the CT can avoid ruling on the merits. The CT will find that no controversy exists for them to rule on and dismiss the claim because they determine that in the language of the statute the legislative branch granted enough discretion to the executive to support the actions or inaction of the executive.

      Milhouse in reply to CommoChief. | July 25, 2022 at 10:22 am

      But that’s why this case isn’t about immigration enforcement in general, where it’s undisputable that the executive branch has a lot of discretion, but about these specific instances where Congress has specifically required the executive to take specific actions, and has provided plenty of funding for it to do so, and it is simply refusing. TX and LA are arguing that in these instances the executive has no discretion, and it can take the resources from the vast area of enforcement where it does have discretion. In other words detain fewer people who don’t fall into these categories, and use those resources to detain those who do.