When ‘Prosecutorial Discretion’ Becomes Suspension of the Law

Can the Biden administration get away with not enforcing the Immigration and Nationality Act?

By Andrew R. Arthur on February 3, 2022

I have written extensively about the Biden administration’s efforts to limit immigration enforcement against removable aliens, most recently DHS Secretary Alejandro Mayorkas’ September memo titled “Guidelines for the Enforcement of Civil Immigration Law”. Can DHS simply not enforce the Immigration and Nationality Act (INA)? Maybe, maybe not, but to explain I must delve deep into a recent decision of the Fifth Circuit, Texas v. Biden, which the Supreme Court may soon consider.

Texas, MPP, Detention, and Parole. At issue in Texas is whether DHS violated the law in its attempts to terminate the Migrant Protection Protocols (MPP, better known as “Remain in Mexico”), but as I explained on January 21, “factually the case has much more to do with how the Biden administration is handling the ongoing disaster at the Southwest border.”

Simply put, DHS is required to detain illegal migrants under section 235(b) of the INA, but alternatively, it can release them individually under a very limited authority known as “parole”, or it can send them back across the border to await their removal proceedings (which is what MPP does). What the Fifth Circuit held DHS cannot do is release them on parole en masse, which appears to be DHS’s current approach.

The parole authority is contained in section 212(d)(5)(A) of the INA. Congress therein significantly limited DHS’s parole authority, allowing parole “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit“.

Urgent humanitarian reasons are usually limited to medical exigencies and significant public benefit to cases like ones in which the alien is needed to testify in a criminal case.

Whether the Biden administration will be allowed to continue evading the limitations Congress placed on parole by releasing large numbers of aliens instead of detaining them — or alternatively sending them back across the border under some version of Remain in Mexico — is at the heart of Texas.

At the district court level, federal Judge Matthew Kacsmaryk held that the parole provision meant what it said, and thus ordered DHS to implement MPP in good faith until “the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under” section 235 of the INA “without releasing any aliens because of a lack of detention resources”.

The Fifth Circuit’s Decision in Texas. Affirming that injunction, a three-judge panel of the Fifth Circuit held that section 235 of the INA constrained DHS’s discretion to parole aliens into the United States in lieu of detention or cross-border return.

Bitingly, the circuit court found that “DHS’s pretended power to parole aliens while ignoring the limitations Congress imposed on the parole power” is “not nonenforcement; it’s misenforcement, suspension of the INA, or both” (emphasis in original). This brings me to DHS’s inability to suspend the mandates in INA.

Suspension, Dispensation, the Stuart Kings, and the “Take Care Clause”. When I previously wrote about this Fifth Circuit decision, I omitted any reference to the court’s extensive analysis of DHS’s attempts to suspend provisions of the INA, not because it was not relevant but rather because, respectfully, the court could have saved itself trouble and omitted it — and thereon hangs a tale. Given the fact that the court’s analysis touches on general non-enforcement policies restricting enforcement of the immigration laws, however, it deserves a look.

The Administrative Procedure Act (APA), which governs executive-branch rulemaking, bars judicial review of “agency action ... committed to agency discretion by law”. The Supreme Court has relied on that provision in holding that an agencies’ decisions “not to institute enforcement proceedings [are] presumptively unreviewable”.

Of course, all claimed instances of “prosecutorial discretion” are premised on the argument that an enforcement agency (like DHS) has the power not to enforce the law, and prosecutorial discretion is the foundation on which the Biden administration has built its immigration non-enforcement efforts (as the Mayorkas memo makes clear).

In Texas, DOJ argued that the APA gave it the power to terminate MPP without any opportunity for judicial review, even though the APA presumes that executive actions are reviewable (notably, the Fifth Circuit stated, “This is perhaps the Government’s most ambitious claim in a case that does not want for ambitious assertions of governmental power.”).

The court disagreed, finding that the Supreme Court holding above — about the non-reviewability of decisions not to institute enforcement proceedings — does not apply to “agency rules” doing so, like DHS’s termination of MPP. Here’s why.

Article II, section 3 of the U.S. Constitution contains what is known as the “Take Care Clause”, which states that the president “shall take Care that the Laws be faithfully executed”.

The Fifth Circuit explained that this clause was inserted into the constitution in response to what it termed “English law’s struggle against royal prerogative”, and particularly efforts by two Stuart kings, Charles II and his brother James II, to suspend acts of Parliament (that is, set them aside for a time) and to dispense with such laws (allowing individuals or entities to disobey them).

This was a big deal at the time and led to James II being deposed by his son-in-law, William of Orange. After William (now William III) took over, Parliament drafted the English Bill of Rights, which explicitly barred attempts by the Crown to use suspension and dispensing powers. That created a tenet of English law that our founders adopted in drafting the Take Care Clause.

The Fifth Circuit held, based on Supreme Court precedent, “that Congress can rebut the common-law presumption that nonenforcement discretion is unreviewable ... where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers” — as it had in the parole provision.

Tying all of this together, the circuit court explained that “the English Bill of Rights, followed by the Constitution, explicitly forbade the executive from nullifying whole statutes by refusing to enforce them on a generalized and prospective basis”.

It was following this analysis that the court found that the administration’s policy of paroling aliens without complying with the limitations on that authority in section 212(d)(5) of the INA was “misenforcement” and “suspension of the INA”.

Texas v. U.S. (Interim Enforcement). The question then becomes whether Mayorkas’ “guidance” memo and other similar “generalized and prospective” non-enforcement policies would also be suspensions of the INA.

That is sort of what is at issue in the similarly named case, Texas v. U.S., which the Fifth Circuit in the MPP case helpfully captioned Texas (Interim Enforcement). There, two DHS enforcement guidelines implemented before the Mayorkas memo was issued were challenged by states to block restrictions that those guidelines had placed on ICE detention and removal of criminal aliens.

U.S. District Court Judge Drew Tipton issued an injunction in Texas (Interim Enforcement), finding that the Biden administration’s restrictions flew in the face of ICE’s mandatory duties under two separate immigration statutes.

The first is section 236(c) of the INA, which requires DHS to “take into custody” — and hold — every alien inadmissible on criminal grounds and most aliens deportable on criminal grounds as soon as they are released from incarceration.

The second statute is section 241(a)(2) of the INA. It requires DHS to (1) remove every alien under a final order of removal in 90 days; (2) detain those aliens pending removal; and (3) “[u]nder no circumstance” release the ones removable on criminal grounds.

Notably, I used the phrase “sort of” four paragraphs above because Judge Tipton did not consider the states’ claims that the administration’s actions under the Take Care Clause (he did not need to, having accepted the plaintiff’s statutory claims), but he left the door open to do so. Under the rule of “constitutional avoidance”, courts generally pass on such claims when they can rule on other grounds.

The government sought a stay of that injunction, and a three-judge circuit panel concluded that, despite the mandatory language in the two provisions, Congress did not intend to limit immigration officials’ prosecutorial discretion. Overly simplistically, it held that the word “shall” in the respective provisions of the INA did not mean “must”.

Because of that, the Fifth Circuit panel concluded that ICE was only required under section 236(c) of the INA to detain “prisoners with qualifying convictions against whom ICE has lodged a detainer”; and under section 241(a)(2) of the INA, to detain criminal aliens subject to removal orders. Thus, DHS could decide not to enforce the INA by refusing to lodge detainers or seek orders of removal.

That precedent decision, however, was soon thereafter vacated by the Fifth Circuit, which voted to consider the matter en banc (as a whole). While the ultimate decision would have been interesting, DOJ moved (with the state plaintiffs’ assent) to withdraw its appeal following the issuance of the Mayorkas memo — which was not at issue before Judge Tipton.

Can the Biden Administration Simply Refuse to Enforce the INA? Where does that leave the matter?

The Fifth Circuit’s decision in Texas provides extremely useful analysis for the plaintiffs in the still-ongoing Texas (Interim Enforcement) to challenge the Mayorkas memo on suspension/Take Care Clause grounds.

Of course, the issues in Texas had to do with DHS’s rule terminating the Trump administration’s MPP policy and with the department’s policy of paroling illegal migrants out of custody, notwithstanding the restrictions on parole in section 212(d)(5) of the INA.

That said, the three-judge panel there could have largely “dispensed” with its exhaustive analysis of the prohibition on the executive’s suspension and dispensing power — and on the Take Care Clause (it too ruled on statutory grounds). Instead, it created new circuit-court precedent in the court where most challenges to the Biden administration’s non-enforcement regime are occurring.

The panel’s consideration of DHS’s prosecutorial discretion authority in Texas (Interim Enforcement) ran a mere four pages (in a 15-page decision). It once was precedent, but as noted, thanks to the en banc vote of the circuit court, now has no precedential value.

Its sister panel’s analysis of the scope of DHS’s discretion in Texas ran 10 pages-plus (in a 117-page decision). I am prolix and know that more does not mean “better”, but when a court in 2021 is analyzing the actions of two Stuart kings and Parliament’s response, it sure seems to be making a point.

How Far Will Supreme Court Precedent Go? Neither was writing on a completely blank slate, as both courts analyzed also considered a separate Supreme Court case, Castle Rock v. Gonzales, which concerned nonenforcement of state law in a small town in Colorado.

The matter had to do with an alleged “official policy or custom” followed by the local police not to respond “properly” to violations of restraining orders. The relevant Colorado provision stated: “A peace officer shall enforce a valid restraining order whether or not there is a record of the restraining order in the registry.” (Emphasis added.)

The Tenth Circuit below held that this law “established the Colorado Legislature’s clear intent ‘to alter the fact that the police were not enforcing domestic abuse retraining orders,’ and thus its intent ‘that the recipient of a domestic abuse restraining order have an entitlement to its enforcement.’”

The Court disagreed, describing “law-enforcement discretion” as “deep rooted”, and holding: “A well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.”

That may seem to be the end of the issue and a signal that the Court will hold the Biden administration can simply stop enforcing the immigration laws entirely, leaving the American people with no recourse except the ballot box.

But maybe not. Again, the three-judge panel in Texas set down a serious marker on the limits of prosecutorial discretion in the immigration context, and the full Fifth Circuit plainly suggested that the issues in Texas (Interim Enforcement) deserved a second look.

There are also some significant differences between the non-enforcement policies at issue in Castle Rock and those in Texas (Interim Enforcement). The facts in Castle Rock were horrible (as Justice Scalia, writing for the majority, admitted), but the appellant there could have obtained proper protection by moving out of the town (although she plainly should not have been forced to do so).

The state of Texas, however, has no choice except to continue to rely on the Biden administration to enforce the immigration laws. Seven years after Castle Rock, the Supreme Court in Arizona v. U.S. held that states have no power to enforce the immigration laws themselves.

Citing Center for Immigration Studies research, the Court in Arizona expressly noted that “The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration.” Those consequences are at issue in both Texas cases.

There is also a factual distinction between Castle Rock and Texas (Interim Enforcement). In Castle Rock, Justice Scalia noted: “Whether or not respondent [Castle Rock] had a right to enforce the restraining order, it rendered certain otherwise lawful conduct by her husband both criminal and in contempt of court.”

In Texas (Interim Enforcement), by contrast, there is no question that the conduct underlying the aliens’ removability is unlawful and in violation of the INA.

Then, there is the intervening Supreme Court decision in Jennings v. Rodriguez, where Justice Alito writing for the majority held that the INA mandates the detention of specified aliens, including illegal migrants in section 235(b) of the INA and criminal aliens in section 236(c) of the INA — the former class at issue in Texas and the latter class at issue in Texas (Interim Enforcement).

In Rodriguez, however, it was an alien who was seeking bond, whereas the states in Texas (Interim Enforcement) are seeking DHS enforcement of section 236(c) of the INA. The three-judge Fifth Circuit panel in its now-vacated decision held that this was a significant distinction given “the government’s traditional prerogative to decide who to charge in enforcement proceedings”, and they may be right.

Of course, in Jennings, the Court was considering (and reversed) the decision of the Ninth Circuit, who had a solid argument as well. It was just wrong.

Finally, Mayorkas plainly learned the lessons of the ham-handed drafters of the two preceding immigration enforcement memos, which were chockful of bright-line rules that ICE officers were warned not to cross.

His memo is much more nuanced, for example stating: “The civil immigration enforcement guidance does not compel an action to be taken or not taken.” That said, the secretary also makes clear: “Our personnel should not rely on the fact of conviction ... alone.” That means that aliens whom Congress has mandated ICE to detain will not be detained.

Answers Should Be Coming Soon. Answers to the question of how far a DHS policy of systemic immigration nonenforcement can go — both under the INA and possibly under the Constitution — should be coming soon.

DOJ has filed a petition for writ of certiorari in Texas with the Supreme Court. The plaintiffs in that case oppose Supreme Court review of the Fifth Circuit’s decision, but perhaps they should just let it ride.

In a January 4 op-ed in The Hill, Nolan Rappaport, former Democratic staffer on the House Judiciary Committee (where he was my colleague for several years) argued that Supreme Court review might not be the best course of action for the administration.

He explained: “Biden may very well end up stuck with a Supreme Court decision that will end his open border policy and that will serve as precedent for killing his executive branch refusal to do interior enforcement.” I concur with his well-reasoned and exhaustive analysis.

There is a paucity of Supreme Court precedent on both the Take Care Clause of the Constitution and on the limits of systemic “prosecutorial discretion” policies. But this is a Court that likes to give meaning to every word in statute (including the indefinite article “a”). If the administration is not careful, it may soon learn that when Congress uses the word “shall” in the INA, it means “must”.