Supreme Court Forced to Play Whack-a-Mole on Immigration

Lower courts calculate that some of their absurd rulings will survive due to SCOTUS time constraints

By Dan Cadman on October 25, 2019

My colleague Andrew Arthur has recently written about a couple of the immigration-related cases that will occupy the attention of the Supreme Court of the United States (SCOTUS) in its current session (see, e.g., here and here). The cases are, of course, the result of appeals of decisions made by the lower level district and circuit courts.

I, too, have been writing about the judiciary lately — about the judicial activism consuming the country, particularly on the progressive eastern and western coastal corridors, that has resulted in so many petitions being filed with the high court. In my view, much of the reason that immigration matters are eating up so much of the finite time and resources of our judicial system, often to the detriment of other important matters, is because of the lopsided concept of standing, which prevails in the federal system. Standing inevitably favors aliens whenever the government takes an action that might be considered adverse, whether that is an attempt to remove an alien in accordance with federal statutes or because an alien is denied one of the many benefits, including discretionary decisions such as "deferred action", which is clearly an act of ministerial grace, not statutory mandate.

The stretch to which district and circuit court judges are willing to go to accommodate aliens and their allies and advocates in the struggle to mitigate or even nullify enforcement controls, by finding standing to sue, was described in detail by Arthur in two other recent posts (here and here). It would make for hilarious reading, if not for the fact that even when district or circuit court judges are ultimately overturned for the absurdity of their fact-finding or thought processes or decisions about standing, in the interim entire federal programs and processes are placed in check or halted for months, sometimes years, with a cumulative adverse effect on the entire country. That's because of the proclivity of district court judges in recent years to issue nationwide restraining orders that enjoin the federal government from doing — or in some cases, declining to do — something that offends the judges' philosophical values. This despite the fact that, in theory judges, are generally supposed to 1) act as neutral arbiters and not insert personal views; 2) confine themselves to the specific legal controversy at play, and not extrapolate to thousands of other cases outside their scope; and 3) to do this within the boundaries of their judicial district rather than binding other district court judges by such injunctions.

It increasingly seems to me that many in the lower levels of the judiciary don't appear to mind that they will in every likelihood be overturned up the road, since their intent is one of obstructing the system from operating in the manner intended by past congresses and chief executives when they passed and signed into law the framework of statutes known collectively as the Immigration and Nationality Act (INA). It's a kind of contempt-of-court writ large being played out, ironically, by courts themselves, since they are in a real sense defying the Supreme Court to grant a petition for certiorari and review the case somewhere long up the road in the indefinite future. They, better than most, recognize that there are very real constraints that force the high court to reject many petitions for review despite the noteworthiness of the underlying issues. So they're willing to roll the dice and hope that their decision will be one that gets jettisoned in the horse-trading that goes on among SCOTUS justices when deciding what cases will make up their docket during any particular term of the Court.

But even so, immigration issues are playing an outsized role at the Court these days. I took a few minutes to examine all of the cases accepted for this term that have been published to date, and of the 46 the Court will review, 10 of them directly involve immigration. Incredibly, that's about 22 percent — a little shy of one out of every four cases — of SCOTUS's workload.

What's more, even though they don't relate directly to provisions of the INA, by my gauge another three cases up for review involve collateral issues, in that they relate to aliens who are contesting the provisions under which they were sentenced for crimes in state courts, and in one case whether or not a U.S. citizen mother was entitled to take her dual-citizen child out of Italy where the alien father resides or whether that constituted child abduction under international treaties.

I cannot wish that this drag on the Court's time and attention were not so, given the stakes involved in all things immigration these days. But it looks increasingly like a game of whack-a-mole because as soon as the Supreme Court issue one decision, some district court judge or circuit court panel somewhere else is making a mockery of the system by granting standing to a plaintiff on the thinnest of grounds, and then moving along to issue another national injunction or precedential decision that upends the law and stymies enforcement officers from doing their duty and preserving the territorial integrity and sovereignty of the United States.

In one notable recent instance, no sooner had SCOTUS dissolved a nationwide injunction issued by a district court judge and sent it back than he re-issued the injunction. As I said, whack-a-mole and internal contempt seem to be the order of the day within the federal judiciary.

The Supreme Court is the highest court in the land. When it issues decisions, it expects its coequal branches of government in the legislature and the executive to attend to, and obey those decisions. This is one of the foundations of our governmental system. How ironic, then, that it cannot seem to rein in its own feckless children in the lower reaches of the judiciary.