Biden Administration Asks SCOTUS for Stay of Order Vacating Non-Enforcement Guidance

Interestingly, by griping about the 122 lawsuits filed against Trump’s immigration policies

By Andrew R. Arthur on July 11, 2022

Last week I analyzed a Fifth Circuit order denying a stay of a district court order, vacating DHS Secretary Alejandro Mayorkas’ latest immigration enforcement guidance, issued on September 30 and captioned “Guidelines for the Enforcement of Civil Immigration Law” (Mayorkas memo). The underlying vacatur removed restrictions on ICE enforcement that the Mayorkas memo placed on the agency, but no sooner had my analysis been published than, on July 8, the Biden administration asked the Supreme Court to stay the district court’s order. The administration made some interesting arguments.

The Issues. The case is captioned U.S. v. Texas, an apt description of the tug-of-war between the Lone Star State and the Biden administration over immigration enforcement. At issue in Texas is the executive branch’s ability to issue rules contradicting congressional commands in the Immigration and Nationality Act (INA).

Two specific provisions of the INA are at issue in Texas. The first is section 236(c) of the INA, which directs ICE officers to detain and hold aliens who are removable on specified criminal grounds as soon as they are released from criminal custody.

The second is section 241(a) of the INA. It requires ICE to remove aliens within 90 days of their removal orders becoming final, and to detain them for that period pending removal. For criminal aliens, those detention rules are even more restrictive: “Under no circumstance during the removal period shall [DHS] release an alien who has been found” removable on criminal grounds in the INA.

The Guidance. In three separate memos — the first of which was issued shortly after Biden took the presidential oath —the administration has attempted to limit the ability of immigration officers to investigate, question, arrest, detain, prosecute, and remove aliens in the United States (collectively known as “enforcement action”).

The Mayorkas memo is the latest. Building upon its predecessors, it “prioritizes” three classes of aliens for enforcement action: spies and terrorists (threats to national security); aliens who entered illegally on or after November 1, 2020 (threats to border security); and aliens convicted of “serious criminal conduct” (threats to public safety).

While not as restrictive in its scope as the prior to memos, the Mayorkas memo requires immigration authorities (primarily but not exclusively ICE officers) to consider so-called “aggravating” and “mitigating” factors that “militate” in favor of or against (respectively) the taking of enforcement action. None of those factors are included in the grounds of removability in the INA.

The Litigation. In April 2021, the plaintiff states (Texas and Louisiana) filed suit in the U.S. District Court for the Southern District of Texas to block the first two of those enforcement memos (issued in January and February 2021, respectively), where the case was assigned to Judge Drew Tipton.

Judge Tipton issued an order enjoining those memos in mid-August, but a three-judge panel of the Fifth Circuit narrowed that injunction on September 15. The plaintiff states asked the full Fifth Circuit to review that decision, which it agreed to do on November 30, when it vacated the panel decision and set the matter for en banc review by all 17 circuit judges.

By that point, Mayorkas had issued his latest memo, and so the administration asked the circuit to allow it to withdraw its appeal (to which the states agreed), sending the latter back to Judge Tipton.

On June 10, Judge Tipton issued a new order, finding that the plaintiff states had standing to challenge the restrictions in the Mayorkas memo, determining that the memo violated the INA and the Administrative Procedure Act (which guides executive branch rulemaking), and vacating the Mayorkas memo.

The administration asked the Fifth Circuit to stay that injunction pending its appeal of Judge Tipton’s June 10 order, and on July 6, the circuit court — agreeing with Judge Tipton and adding its own gloss to the issues in the matter — denied that request.

The Application for Stay. As I had suggested it would, the administration has now applied for a stay of Judge Tipton’s order with Justice Alito, circuit justice for the Fifth Circuit.

The justice has been skeptical of prior Biden administration immigration actions (he authored a dissent in Biden v. Texas, which involved states’ efforts to force the administration to continue the Migrant Protection Protocols — “MPP”, better known as “Remain in Mexico”), and he has previously authored decisions concerning the mandatory nature of the two INA provisions, but the decision will not be his alone.

It is unclear what the other eight justices will choose to do. On the one hand, Judge Tipton’s vacatur simply returns enforcement to the status quo prior to the issuance of the Biden administration’s restrictions.

On the other, in the MPP case, Chief Justice Roberts joined by other four justices held that section 241(f)(1) of the INA limits the ability of the lower courts to enjoin certain executive branch immigration decisions, which would include the enforcement of sections 236(c) and 241(a) of the INA. Enjoining an action and vacating it are two different things, but the MPP decision left a lot of room for interpretation.

For its part, the Biden administration argues that the Court should nip this case in the bud, complaining: “The need for this Court’s intervention is especially acute because this case exemplifies a troubling trend.”

What is that “troubling trend”? Interestingly, the administration asserts:

For most of our Nation’s history, a suit like this would have been unheard of. Courts did not allow States to sue the federal government based on the indirect, downstream effects of federal policies. And district judges did not purport to enter nationwide relief, which “take[s] the judicial power beyond its traditionally understood uses,” “incentivize[s] forum shopping,” and “short-circuit[s]” the judicial process. ... But suits like this have recently become routine. California, for example, “filed 122 lawsuits against the Trump administration, an average of one every two weeks,” and Texas’s Attorney General recently announced that he had “filed his 11th immigration-related lawsuit against the Biden Administration — the 27th overall against Biden.”

That explosion of state suits seeking nationwide relief is inconsistent with bedrock Article III and equitable principles. Those suits enmesh the Judiciary in policy disputes between States and the federal government that should be — and, until recently, were — resolved through the democratic process.

Respectfully, I don’t recall the president or anyone else in his administration complaining in real time about the plethora of suits that were filed against Trump’s immigration policies, or chiding then-California Attorney General Xavier Becerra for filing his share of them. Rather, Biden made Becerra his secretary of Health and Human Services.

In fact, then-candidate Joe Biden issued a statement the day the Supreme Court issued its decision in Regents v. DHS, blocking Trump’s attempt to “wind-down” the Deferred Action for Childhood Arrivals (DACA) program, where he stated: “The Supreme Court’s ruling today is a victory made possible by the courage and resilience of hundreds of thousands of DACA recipients who bravely stood up and refused to be ignored.”

Of course, consistency is no virtue in politics, and the axiom that “what’s sauce for the goose is sauce for the gander” is not a legal principle found in Blackstone’s commentaries or federal law.

The administration argues it is likely to succeed on the merits, contending the states lack standing (“The Guidance does not require the States to do or refrain from doing anything” — a questionable proposition); “the guidance is lawful” (and simply “advises the public how DHS will exercise its discretion and allocate its resources”); that section 242(f)(1) of the INA deprived the district court of authority to vacate the memo (at best an open question); and that even if the lower court had authority, the vacatur should have been limited to the plaintiff states.

With respect to the last point, it should be noted that the Sixth Circuit did stay and then reversed an order issued by a federal district court judge in Ohio that had enjoined portions of the Mayorkas memo. Thus, Texas and Louisiana have managed (for now) to do what Arizona, Montana, and Ohio failed to do.

That said, the Fifth Circuit distinguished that case (Arizona v. Biden), noting its own circuit precedent — not binding on its sister circuits — had “predetermined” many of its conclusions. Further, it described the record developed by Judge Tipton as “fulsome” (not surprising given that he has been at it for over a year) compared to that before the Ohio judge, which the Sixth Circuit held was “insufficient to support the states’ standing”.

President Biden — likely too late to be of help to his immediate predecessor — has now interestingly come around to the view that courts should be hesitant in allowing classes of individuals (including states) to block administrative immigration policy proposals. In the MPP Texas case, the Supreme Court attempted to kick the can down the road on such efforts, but that road was likely shorter than it had imagined.