On May 31, I suggested we could “Expect Immigration Fireworks as SCOTUS Heads into Its Final Month”, as the Supreme Court grappled with a district court order vacating unduly tight restrictions DHS Secretary Alejandro Mayorkas had placed on ICE interior enforcement. On June 23, the Court issued its opinion reversing that decision, and while there were fireworks, they were mostly bottle rockets fired across the bench as the justices bickered among themselves in ruling that the states lack standing to stop the Biden administration’s efforts to protect dangerous criminal aliens. Congress now needs to decide whether to “make the executive’s life difficult”.
The case is U.S. v. Texas, and it is the culmination (for now) of challenges to various Biden administration efforts to undo Congress’ mandates in the Immigration and Nationality Act (INA) on the detention and deportation of aliens removable on criminal grounds.
Biden’s First ICE Enforcement Restrictions. From his first day in office, President Biden has blithely dispensed with Congress’ directives when it comes to DHS officers’ questioning, arrest, detention, prosecution, and removal of aliens who are inadmissible under section 212(a) of the INA and deportable under section 237(a) of the INA (duties collectively known as “enforcement action”).
On January 20, 2021, then-Acting DHS Secretary David Pekoske issued a memo captioned "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities” (Pekoske memo).
The Pekoske memo limited ICE’s enforcement action priorities to three groups: spies and terrorists; aliens who entered illegally on or after the arbitrary date of November 1, 2020; and then-incarcerated aliens convicted of “aggravated felonies”, but only the ones “determined to pose a threat to public safety”. It also placed a 100-day moratorium on all removals.
The state of Texas quickly sued (in Texas v. Pekoske) to block the moratorium, and six days after it was published, Judge Drew Tipton of the U.S. District Court for the Southern District of Texas issued a temporary restraining order preventing it from taking further effect.
Less than a month later, in February, Acting ICE Director Tae Johnson issued his own memo, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities” (Tae Johnson memo).
The Tae Johnson memo ever-so-slightly expanded on the enforcement priorities in the Pekoske memo. Spies, terrorists, and removable aliens who arrived on or after November 1, 2020, were still “priorities” for enforcement action, but the latter memo also included non-detained aggravated felons and certain gang members as enforcement priorities, provided they “pose[] a risk to public safety”.
I’ve analyzed each of those memos several times in the past, but put plainly, under the guise of “priorities” and “limited resources”, the two memos stifled nearly all immigration enforcement in the interior, granting a de facto amnesty to most aliens, and nearly all serious criminal aliens.
Texas and Louisiana filed suit in Texas v. U.S. to enjoin those memos in April 2021, alleging that they transgressed two specific congressional mandates in the INA.
The first is section 236(c) of the INA, which requires ICE officers to detain and hold any alien who is released from criminal custody if the alien is seeking admission or entered illegally and is inadmissible on any of the criminal grounds in section 212(a)(2) of the INA, or if the alien was admitted and is removable on all but one of the criminal deportation grounds in section 237(a)(2) of the INA.
The second is section 241(a) of the INA. It requires ICE to remove all aliens within 90 days after their removal orders have become final, and to detain them pending removal. For aliens removable on criminal grounds, ICE’s release power is even more restricted: “Under no circumstance during the removal period shall [ICE] release an alien who has been found” inadmissible or deportable on criminal grounds.
In August 2021, Judge Tipton enjoined the two memos, finding that DHS lacks discretion to ignore Congress’ mandates to arrest and detain criminal aliens in sections 236(c) and 241(a) of the INA.
The Biden administration appealed, and in September 2021, a three-judge panel of the Fifth Circuit issued a decision that limited the scope of Judge Tipton’s order, applying it only to criminals released from criminal confinement for whom ICE has issued a detainer, and aliens under final orders of removal.
The states then asked the full Fifth Circuit to review Judge Tipton’s order, and in November 2021, the Fifth Circuit agreed to rehear, en banc, the administration’s appeal of Judge Tipton’s order, while vacating the three-judge panel decision.
The Mayorkas Memo and the District Court Order. That rehearing never occurred, however, because on September 30, 2021, Mayorkas issued his own restrictions on ICE enforcement actions in a memo that rescinded the Pekoske and Tae Johnson memos. That “Mayorkas memo” — formally “Guidelines for the Enforcement of Civil Immigration Law” — was effective November 29 — the day before the Fifth Circuit issued its en banc review ruling.
While not as restrictive in its scope as the first two Biden memos, the Mayorkas memo mandates that immigration authorities (primarily but not exclusively ICE officers and attorneys) consider so-called “aggravating” and “mitigating” factors that “militate” in favor of or against (respectively) the taking of enforcement action against facially removable aliens.
In December 2021, the Biden administration asked the Fifth Circuit — with the state plaintiffs’ assent — to withdraw its appeal of Judge Tipton’s injunction to allow him to hear the states’ new challenges to the Mayorkas memo.
After considering the parties’ arguments, on June 10, 2022, Judge Tipton issued an opinion vacating the Mayorkas memo.
He concluded that the latest memo increased the number of criminal aliens and aliens with final orders of removal who were being released into the plaintiff states and into the United States as a whole.
Most crucially, however, and consistent with his earlier order, he concluded that sections 236(c) and 241(a) of the INA impose mandatory duties on DHS to take criminal aliens described therein into custody, duties with which the Mayorkas memo is in conflict.
He further held that Mayorkas’ reliance on prosecutorial discretion to not detain those aliens defied the language of those two provisions, Supreme Court precedent, and the legislative history of those provisions. Finally, he concluded that the state plaintiffs fell within the “zone of interests” those statutes were intended to protect, and thus that they had standing to bring the case.
The Fifth Circuit. The administration sought a stay of Judge Tipton’s latest order from the Fifth Circuit, which denied the request on July 6, 2022.
In its decision, the three-judge panel of the circuit court found that section 242(f)(1) of the INA — which deprives lower courts of the power to issue injunctive relief as the Supreme Court had held on June 13, 2022, in Garland v. Aleman-Gonzalez — did not prevent Judge Tipton from vacating the Mayorkas memo.
The circuit court also rejected DHS’s contention that the Mayorkas memo “in no way binds enforcement agents and their superiors, but ‘simply ensures that discretion is exercised in an informed way’”. It concluded, to the contrary, that the memo deprived immigration officers of discretion to arrest and detain aliens they had previously possessed.
Similarly, the circuit panel rejected the government’s argument that the Mayorkas memo solely deals with issues that are committed to DHS’s discretion by Congress under the INA, finding that the memo “does not represent a one-off enforcement decision, but rather a calculated, agency-wide rule limiting ICE officials’ abilities to enforce statutory law”.
The Supreme Court. Running out of options, the administration asked the Supreme Court for a stay of Judge Tipton’s order. On July 21, the justices denied that stay request, but granted the government’s alternative request for directive review, bypassing circuit court appeal of the order so that the justices could hear the case directly, which they did on November 29.
In the majority opinion, which he authored for himself, Chief Justice Roberts, and Justices Sotomayor, Kagan, and Jackson, Justice Kavanaugh reversed Judge Tipton, holding that the states lacked standing to bring their challenge to the Mayorkas memo.
Under Supreme Court precedent, federal courts must apply a three-part test to determine whether a party bringing a suit has the “capacity” to do so:
First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally-protected interest which is (a) concrete and particularized and (b) "actual or imminent, not conjectural or hypothetical”. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision”. [Internal citations and punctuation omitted.]
Overly simplistically, the majority held that there is no precedent for a plaintiff — even a state — to request that some third-party be prosecuted on either criminal or immigration grounds.
The subject of a prosecution has standing to challenge it, of course, but otherwise the executive’s decision not to use “coercive power over an individual’s liberty or property ... does not infringe upon interests that courts often are called upon to protect”, according to the Court.
”Moreover”, the majority held, “lawsuits alleging that the Executive Branch has made an insufficient number of arrests or brought an insufficient number of prosecutions run up against the Executive’s Article II authority to enforce federal law”, which it found gives the president “authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’”
Finally, the majority complained, “courts generally lack meaningful standards for assessing the propriety of enforcement choices in this area. After all, the Executive Branch must prioritize its enforcement efforts”.
All that notwithstanding, the majority held that there may be instances where they would allow certain requests to force the president to “make more arrests or bring more prosecutions”, five of which they listed: (1) selective prosecution claims; (2) “when Congress elevates de facto injuries to the status of legally cognizable injuries redressable by a federal court”; (3) “if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions”; (4) “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status”; and (5) when the alien is already detained.
The courts are already swamped with claims of the first sort, while it would be hard to discern between the administration’s current enforcement of the immigration laws and its “wholesale abandonment of its responsibilities” under the INA. The fifth instance was a unique concession, based on the government’s representations that the Mayorkas memo has no application to aliens who are in DHS custody.
The second proposal suggests that Congress could amend the judicial review provisions in section 242 of the INA to give the states standing to demand enforcement, but even then, it’s not clear that the justices would go along.
The fourth scenario, a challenge to an administrative policy that involves both non-enforcement and some sort of “legal benefits or legal status”, is the most intriguing, and one that might signal the Court could rule differently when it comes to border releases in violation of Congress’ mandate in section 235(b) of the INA that inadmissible “applicants for admission” — including illegal migrants — be detained.
As I have explained elsewhere, there are any number of such challenges pending, including in Florida v. U.S., Florida v. Mayorkas, Texas v. DHS, and Texas v. Mayorkas. Each involves Biden administration border releases, mainly of illegal migrants on “parole” under section 212(d)(5)(A) of the INA.
Aliens released on parole are, by regulation, eligible for employment authorization, and as my colleague George Fishman has explained, are in certain instances eligible for federal benefits, as well. Stay tuned for further developments on that front.
Justice Gorsuch Concurrence. Justice Gorsuch wrote a concurrence for himself and Justice Barrett. In that concurrence, Justice Gorsuch “confess[es] to having questions about each of the reasons” the majority offers for concluding that the state plaintiffs lack standing, but concluding that he would have reversed because the states’ claims aren’t “redressable”.
As noted, redressability is the third prong in the Court’s traditional analysis for determining whether a plaintiff has capacity to bring suit, but as the concurrence explains, that would require an injunction of the Mayorkas memo.
Lower courts (as also noted) lack the authority to issue injunctive relief under the pertinent provisions of the INA due to the restrictions in section 242(f)(1) of the INA, and the concurrence concluded that Judge Tipton’s “vacatur” of that memo “still does nothing to redress the States’ injuries”. Justice Gorsuch continues:
The Guidelines merely advise federal officials about how to exercise their prosecutorial discretion when it comes to deciding which aliens to prioritize for arrest and removal. A judicial decree rendering the Guidelines a nullity does nothing to change the fact that federal officials possess the same underlying prosecutorial discretion. Nor does such a decree require federal officials to change how they exercise that discretion in the Guidelines’ absence. [Emphasis added.]
This is a point that I have made numerous times in the past, and with due respect to the five justices in the majority (each of whom is a better lawyer than I could hope to be), should have been the basis for reversal, if any.
It’s also why the majority’s opinion is not the unmitigated disaster it could have been. If there were a way that some judge could force the administration to enforce the law strictly with respect to all criminal aliens, the majority’s standing analysis likely would have prompted some future Congress to amend section 242 of the INA to grant them standing. As is, there’s no point — unless Congress also allows the states to question, apprehend, detain, prosecute, and remove those aliens as well, and that’s unlikely.
It’s Up to Congress. The majority noted that “even though the federal courts lack Article III jurisdiction over this suit, other forums remain open for examining the Executive Branch’s arrest policies”, including “oversight, appropriations, the legislative process, and Senate confirmations”.
Justice Alito, who dissented from the majority’s reversal of Judge Tipton’s order, added yet another such “forum” — “impeachment and removal” (although none of the justices opined on whether any of these options is a good idea or not).
That takes me back to the November oral argument in this case, when Justice Kavanaugh asked the U.S. Solicitor General, Elizabeth Prelogar (arguing for the administration): “So, if courts aren't going to be able to enforce those congressional mandates, what are the exact tools that Congress has to make sure that the laws are enforced in the United States?”
Prelogar responded: “Well, I think that Congress obviously has the power of the purse. It can make the executive's life difficult with respect to its decisions about how to appropriate funds. Congress has oversight powers.”
To which Justice Kavanaugh eventually retorted:
I think your position is, instead of judicial review, Congress has to resort to shutting down the government or impeachment or dramatic steps if ... some administration comes in and says we're not going to enforce laws or at least not going to enforce the laws to the degree that Congress by law has said the laws should be enforced, and ... that's forcing — I mean, I understand your position, but it's forcing Congress to take dramatic steps, I think.
Prompting the following response by Prelogar: “Well, I think that if those dramatic steps would be warranted, it would be in the face of a dramatic abdication of statutory responsibility by the executive.”
If the states want to force the administration to take removable alien criminals off the street, the courts are no longer an option. It’s now up to Congress and the states to determine whether the president has abdicated his responsibilities under the INA, and if so, to consider making “the executive’s life difficult”. Biden’s own lawyer, aided by the author of this decision, has laid out some ideas as to how they can do it.