Supreme Court Refuses to Block Order Vacating Mayorkas’ Non-Enforcement Memo

Will hear the case in the winter, with a decision likely after the next Congress is seated

By Andrew R. Arthur on July 22, 2022

The Supreme Court is out of session until October, but that did not stop them from issuing an order in Texas v. U.S., in which they refused to stay an order by Texas federal district court Judge Drew Tipton vacating a Biden administration memo that significantly limited immigration enforcement. The Court will hear a direct appeal on the merits of that order in its December session, bypassing the circuit court. It will likely not issue an opinion, however, before the next Congress is seated, when the political landscape could be very different.

Background on the Biden Administration’s Enforcement “Guidance”. In three separate memos — the first issued directly after Biden was sworn in — the administration has attempted to constrain the ability of immigration officers to investigate, question, arrest, detain, prosecute, and remove aliens in the United States (collectively known as “enforcement action”).

At issue in Texas in the latest memo, distributed by DHS Secretary Alejandro Mayorkas on September 30 and captioned “Guidelines for the Enforcement of Civil Immigration Law” (Mayorkas memo).

Building upon and refining the two preceding guidance memos, 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 two Biden administration memos, Mayorkas’ requires immigration authorities (primarily but not exclusively ICE officers and attorneys) to consider so-called “aggravating” and “mitigating” factors that “militate” in favor of or against (respectively) the taking of enforcement action against facially removable aliens. None of those factors are included in the grounds of removability in the INA.

The Issues Before the Court. As a practical matter, the Supreme Court will be considering three different questions in Texas: (1) Can the executive branch issue enforcement rules that contradict congressional directives in the Immigration and Nationality Act (INA)? (2) Are those directives binding on the executive? and (3) How much power do the federal courts have to intervene in executive-branch immigration decisions?

In arguing that the Mayorkas memo violated the INA, the state plaintiffs in Texas focused on two specific provisions therein.

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

The second is section 241(a) of the INA. It directs 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 the criminal grounds in the INA.

The Biden administration argued that it has “prosecutorial discretion” under Supreme Court precedent to decide whether to take enforcement action against aliens described in sections 236(c) and 241(a) of the INA. Such discretion is warranted, it asserts, because DHS lacks the resources to take enforcement action against all removable criminal aliens, and must consequently focus on the most serious offenders.

Both Judge Tipton and the Fifth Circuit (denying the administration’s request for a stay of Judge Tipton’s order) disagreed, holding that the language in those INA provisions imposes mandatory duties on DHS to arrest and detain criminal aliens.

The Fifth Circuit also questioned the administration’s contentions about limited resources, noting that ICE officers now must waste (my term, not theirs) their resources assessing irrelevant aggravating and mitigating factors.

Accordingly, Judge Tipton held the Mayorkas memo violated the Administrative Procedure Act (“APA”, which governs executive branch implementation of governing statutes) because it exceeded the power granted the secretary in the INA.

He also concluded that DHS had acted “arbitrarily and capriciously” in violation of the APA in issuing the Mayorkas memo, because it failed to properly consider rates of recidivism and abscondment by criminal aliens and ignored fiscal costs to the states and their reliance interests in proper enforcement. The Court will also consider those APA questions.

Then there is the question of whether Judge Tipton or any federal judge (other than the Supreme Court) has the authority to vacate an immigration enforcement decision by the executive branch.

In its June 13 opinion in Garland v. Aleman Gonzalez, the Supreme Court held that section 242(f)(1) of the INA bars inferior federal courts (that is, every U.S. court other than the Supreme Court) from issuing class-wide injunctive relief of executive branch enforcement decisions under specified provisions in the INA — including sections 235 and 241 therein.

Both Judge Tipton and the Fifth Circuit held that section 242(f)(1) of the INA did not bar the lower courts from vacating executive-branch actions, only from enjoining them (which is harsher relief). As I have explained, the Court’s opinion in Aleman Gonzalez left a lot of questions unanswered; this distinction is one of them.

It is important to note that the Sixth Circuit did stay and then reversed an order issued by a federal district court judge in Ohio enjoining portions of the Mayorkas memo in a case brought by Arizona, Ohio, and Montana. A concurrence in that ultimate reversal was based, in part, on the Supreme Court’s opinion in Aleman Gonzalez.

In its reversal in that case (Arizona v. Biden), the Sixth Circuit also questioned whether Arizona, Ohio, and Montana had standing to bring their claims, because their injuries resulting from non-enforcement were “speculative”.

In its decision denying a stay, however, the Fifth Circuit found that “Texas’s injuries as a result of the” Mayorkas memo were “difficult to deny”. That was because Judge Tipton was working from a much more robust record than the Ohio judge had been, and because the plaintiff states (Texas and Louisiana) benefited from Fifth Circuit standing precedent that was not binding on its sister circuit.

That precedent dates back to 2015, when the Fifth Circuit issued its decision in another case, captioned Texas v. U.S., involving a state challenge to the Obama administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).

In his decision in Texas DAPA, Judge Andrew Hanen of the U.S. District Court of the Southern District of Texas held that the state of Texas had standing to challenge DAPA because that program would require the state to issue driver’s licenses to DAPA beneficiaries, the costs of which would constitute a “cognizable injury” for standing purposes.

The Fifth Circuit there agreed, and the Obama administration appealed the matter to the Supreme Court, which issued a one-line unsigned per curiam (for the Court as a whole) order in June 2016: “The judgment is affirmed by an equally divided Court.”

The vote was equally divided because Justice Scalia had died the preceding February, and the Senate did not act to name a replacement until after the 2016 presidential election. Accordingly, the standing analysis in Texas DAPA remains good law that many of the challengers to Biden administration immigration efforts in that circuit have relied upon for standing.

That means, however, that the Supreme Court has never actually issued a dispositive opinion on the circuit’s standing analysis. For that reason, its latest order directs the parties to brief the issue of whether the plaintiff states have standing to challenge the Mayorkas memo.

Keep in mind that the lineup in the Supreme Court today is very different than it was in June 2016. Justice Gorsuch has replaced Justice Scalia, Justice Kavanaugh has replaced Justice Kennedy, Justice Barrett has replaced Justice Ginsberg, and Justice Jackson has replaced Justice Breyer.

Justice Ginsburg was almost definitely one of the justices who voted to overturn the Fifth Circuit in Texas DAPA. Her replacement, Justice Barrett, however, is one of the four justices — along with Justice Sotomayor, Justice Kagan, and Justice Jackson (who issued her first vote on the Court in this case) — who would have stayed Judge Tipton’s order.

That does not mean that all the justices who voted against a stay will affirm the vacatur in Texas, or that those who voted against a stay (which would have left the Mayorkas memo in place pending appeal) will dismiss it. Those who cheer the appointment of so-called “conservative” justices, however, will often find themselves disappointed by their decisions in the years to come.

Hopscotching the Circuit Court on “Cert. Before Judgment”. The Fifth Circuit decision in this Texas, however, only addressed the Biden administration’s request for a stay of Judge Tipton’s vacatur of the Mayorkas memo, not the government’s appeal of that order (which likely would have gone to a different three-judge panel).

The High Court did grant the government’s request to hopscotch over the Fifth Circuit and to take its appeal of Judge Tipton’s order directly to the Supreme Court, a procedure known as “certiorari before judgment”.

SCOTUSblog noted in January that “cert. before judgment” (as it is known) has traditionally been issued only “sparingly”, although it has become more common of late. Under Supreme Court Rule 11, the Court will only grant a petition for cert. before judgment where “the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination” by the justices.

They plainly know that the stakes are high in this case. That said, under Aleman Gonzalez and section 242(f)(1) of the INA, only the Supreme Court could enjoin the Mayorkas memo, so if the Court determines that a vacatur is equivalent to an injunction, the Court could now block the memo itself.

The Impact of the Court’s Decision. Because the Court denied the government’s motion for a stay and set the matter for a hearing in the first week of its December session, no decision is likely to be issued on the merits in this matter until at least January.

By that point, the next (118th) Congress will be seated. If Republicans gain a majority in the House or Senate (or both) in November, the political landscape will be very different than it is today, where the president’s fellow Democrats hold a slim majority in the House and control an evenly divided Senate (thanks to the vice president’s tie-breaker vote as president of that chamber).

In the interim, ICE officers and attorneys are not bound by the Mayorkas memo, nor by a similar memo issued by the agency’s Principal Legal Advisor (read: “de facto general counsel”), Kerry Doyle, that is dependent on the secretary’s memo.

Both memos needlessly and senselessly undermine immigration enforcement and endanger the American people. The Doyle memo, in particular, encourages ICE attorneys to agree to reopen final orders of removal (regardless of how long ago they were issued), including in cases involving aliens who are removable on criminal grounds. Nothing about that preserves so-called “scarce resources”.

Congress — either this one or the next — should demand accountability and transparency to ensure that Judge Tipton’s order is complied with. And, given that there are likely any number of congressmen who want Mayorkas impeached, the secretary should not give them any additional ammunition to use in such an effort.

Former Chicago Bears head coach “Iron Mike” Ditka once remarked, “Success isn’t permanent, and failure isn’t fatal”, a thought that those who applaud the Court’s latest order in Texas should keep in mind. The justices may yet issue a decision that not only blocks Judge Tipton’s order, but that also overturns the Fifth Circuit’s precedent beginning in Texas DAPA.

But they may not, and by the point that the Court ultimately rules on the issues in this case the political process may have rendered its own judgment on Joe Biden’s immigration policies. The justices try to avoid wading into hotly contested political issues, and while the midterm elections likely won’t allow them to take a pass on the issues in this case, the electoral results may encourage the Biden administration to take a different enforcement tack.