The Supreme Court and the Migrant Protection Protocols, Part 2

Vacate the Mayorkas Memo or Vacate the Border?

By George Fishman on June 23, 2022

[Read Part 1.]


On June 13, in the case of Garland v. Aleman Gonzalez, the Supreme Court issued a tremendously important and long-overdue ruling that will enable the next presidential administration that actually wants to take care that the immigration laws be faithfully executed to actually do so — to vigorously enforce the law without each and every new enforcement initiative being stopped at the starting block by a lower federal court hostile to immigration law enforcement. However, what are the implications of the Supreme Court’s ruling for another case currently before the Court in which lower federal courts blocked the Biden administration from terminating the Migrant Protection Protocols (MPP)? As I have written:

  • [The MPP] was wildly successful ... being the closest thing we had to a silver bullet to bring the border under control (prior to the arrival of the Covid-19 pandemic ... and [the expulsion of] aliens outside of the strictures of the INA (Immigration and Nationality Act). However, until Covid, the MPP was truly the MVP of border enforcement. It can be so again after our present public health emergency passes if the Biden administration (or a future one) allows it to be.

  • The Biden administration has tried to terminate the MPP on its own on a number of occasions. But ... [in Texas v. Biden, a challenge brought by the states of Texas and Missouri,] the Fifth Circuit Court of Appeals denied the administration’s request that it overturn [the district court’s] vacateur of DHS’s termination decision and his order that DHS implement the MPP in good faith.

In Texas v. Biden, the district court’s order provided that:

  • Defendants ... are hereby PERMANENTLY ENJOINED and RESTRAINED from implementing or enforcing [Secretary Mayorkas’] June 1 Memorandum [terminating the MPP].

  • The June 1 Memorandum is VACATED in its entirety and REMANDED to DHS for further consideration.

  • Defendants are ORDERED to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory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 Biden administration filed a petition for a writ of certiorari with the Supreme Court last December, presenting the questions:

  1. Whether [§ 235 of the INA] requires DHS to continue implementing MPP.
  2. Whether the court of appeals erred by concluding that the Secretary’s new decision terminating MPP had no legal effect.

The Supreme Court granted the petition in February and held oral arguments in April. How might the Court’s decision in Garland v. Aleman Gonzalez impact its upcoming decision in Texas v. Biden? That question is the subject of this post.

Section 242(f) and Nationwide/Classwide Injunctions Against DHS

As the Supreme Court has noted, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in part to “protect[] the Executive's discretion from the courts — indeed, that can fairly be said to be the theme of the legislation.”

One of the most powerful weapons the lower federal courts had used (and continue to use) to eviscerate the executive’s discretion is to unleash nationwide or class-wide preliminary injunctions against agency regulations and actions before even deciding on the ultimate merits of the legal challenges to the regulations/actions. Even assuming the legal propriety of such injunctions in general, federal courts’ deployment of this weapon is itself discretionary. As the Supreme Court has explained:

In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. ... "[The] award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff," and that "where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff." ... [A] federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.

In 1996, Congress sought to prevent lower federal courts from issuing preliminary injunctions wreaking havoc on IIRIRA’s powerful new immigration enforcement regime. Thus, IIRIRA added § 242(f) to the INA:

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [the INA dealing with the inspection, apprehension, examination, exclusion, and removal of aliens] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

The House Judiciary Committee’s report on H.R. 2202, IIRIRA’s foundational legislation in the House of Representatives, states regarding § 242(f) that “[t]hese limitations do not preclude challenges to the new procedures, but the procedures will remain in force while such lawsuits are pending.” (Emphasis added.) Thus, the legislative history makes crystal clear that Congress meant for § 242(f) to bar lower federal courts from enjoining the operation of provisions dealing with the inspection, apprehension, examination, exclusion, and removal of aliens before reaching an ultimate decision on the merits of a case.

Unfortunately, § 242(f) has been largely honored in the breach for a quarter-century, through the use of clever legal stratagems by litigants and courts. For instance, as Justice Sotomayer argues in her dissent in Garland v. Aleman Gonzalez:

A class action ... is a collection of individual claims. ... It was well understood when Congress enacted § [242](f)(1) ... that mere use of the word “individual” would not preclude classwide adjudication or relief. ... Indeed, in other subsections of § [242], Congress provided precisely such a clear command. ... The enacting Congress thus knew how to preclude classwide relief and did so in unmistakable terms when that was its intent.

And, as the 9th Circuit has ruled:

[S]ection [242](f) does not bar injunctive relief for the proposed class. [It] prohibits only injunction of "the operation of" the detention statutes, not injunction of a violation of the statutes. This is a distinction we have made before ... :

"[Section] [242](f)(1) limits the district court's authority to enjoin the INS from carrying out legitimate removal orders. Where, however, a petitioner seeks to enjoin conduct that allegedly is not even authorized by the statute, the court is not enjoining the operation of [the provisions], and § [242](f)(1) therefore is not implicated."

But, as Justice Clarence Thomas has realized, this provides an easy way for litigants and courts to get around the preliminary injunction bar:

Many claims seeking to enjoin or restrain the operation of the relevant statutes will allege that the Executive’s action does not comply with the statutory grant of authority, [even though] the text clearly bars jurisdiction to enter an injunction “[r]egardless of the nature of the action or claim.”

The District Court for the Southern District of Texas and the Fifth Circuit Court of Appeals both made use of this stratagem to justify the injunction against DHS Secretary Mayorkas’ memo terminating the MPP. The District Court concluded that § 242(f) “does not apply because Plaintiffs are not seeking to restrain Defendants from enforcing [the return to contiguous territory provision]. Plaintiffs are attempting to make Defendants comply with [it].” And the Fifth Circuit concluded that “In its Termination Decision, DHS all but forbade its own officers from invoking the "operation" of [the provision]. The district court's injunction undid that restraint. Far from "restrain[ing]" the "operation" of the statute, the injunction restored it.”

Texas and Missouri likewise argue to the Supreme Court in Texas v. Biden that:

  • The district court’s injunction prevents petitioners from unilaterally refusing to enforce Congress’s unequivocal mandate; it does not prevent the operation of that mandate.

  • [S]ection [242](f)(1) prevents the lower courts from prohibiting the enforcement of covered provisions, but it does not prevent them from requiring such enforcement.

  • [S]ection [242](f)(1) does not prohibit injunctions requiring the Executive to continue the functioning of the INA. An injunction against a violation of a statute does not “forbid” or “prevent” that statute’s “functioning.” It instead aids its operation.

But as the Biden administration argues to the Supreme Court:

  • Section [242](f)(1) bars ... injunctions that direct the Executive Branch to adhere to the court’s reading of th[e] provisions instead of the Executive Branch’s own interpretation and implementation of them.

  • The [Fifth Circuit] reasoned that DHS “refuses to apply” the discretionary contiguous territory-return authority. ... But that is just another way of saying that the court disagreed with the Secretary’s decision to operate the contiguous territory-return authority in a non-programmatic manner.

The Supreme Court Acts

Over the year, the Supreme Court has indicated a number of times in dicta that Clarence Thomas got it exactly right, that injunctions as to the INA’s provisions dealing with the inspection, apprehension, examination, exclusion, and removal of aliens can only be applicable to an individual plaintiff, not to a class and not universally. But it was not until Garland v. Aleman Gonzalez that the Court etched this conclusion in stone. There, the Court found that:

  • The critical language in [§ 242(f)] strips lower courts of “jurisdiction or authority” to “enjoin or restrain the operation of” the relevant statutory provisions. The ordinary meaning of these terms bars the class-wide [injunction] awarded by the two District Courts.

  • [Section 242](f)(1) does not preclude a court from entering injunctive relief on behalf of a particular alien ... but injunctive relief on behalf of an entire class of aliens is not allowed because it is not limited to remedying the unlawful “application” of the relevant statutes to “an individual alien.”

  • Both District Courts entered injunctions requiring the Government to provide bond hearings not only for respondents but also for all other class members. Those orders “enjoin or restrain the operation” of [the provision] because they require officials to take actions that (in the Government’s view) are not required by [it] and to refrain from actions that (again in the Government’s view) are allowed by [it]. Those injunctions thus interfere with the Government’s efforts to operate [the provision], and the injunctions do not fall within the exception for individualized relief because the injunctions were entered on behalf of entire classes of aliens.

I am not sure why it took the Supreme Court a quarter-century to finally effectuate § 242(f), but better late than never!

Of course, the Court considered and rejected the opposing arguments:

  • Respondents first contend that “the operation” of the covered immigration provisions means the operation of those provisions “as properly interpreted” and that what §[242](f)(1) bars are class-wide injunctions that prohibit the Government from doing what the statute allows or commands. ... We do not think that this is the most natural interpretation of the term “operation,” since it is very common to refer to the “unlawful” or “improper” operation of whatever it is that is being operated. ...

    fn: The dissent agrees that “operation” means “functioning” or “working,” but it claims that “unlawful agency action is not a part of the functioning or working of the authorizing statute.” ... The reason that statutes cannot be operated unlawfully, according to the dissent, is this: “[A] statute is the law. Officials may implement a statute unlawfully, but a statute does not operate in conflict with itself.” ... But because to “implement” a statute is to “carry out” that statute ... the dissent’s concession that a statute can be “implement[ed]” “unlawfully” is quite damaging to its position. The dissent asserts, but never explains why, the same cannot be said of a statute’s “operation.”

  • The “operation of” (a thing) means the functioning of or working of (that thing). The way in which laws ordinarily “work” or “function” is through the actions of officials or other persons who implement them. This is certainly true of the statutes to which § [242](f)(1) refers[, which] charge the Federal Government with the implementation and enforcement of the immigration laws governing the inspection, apprehension, examination, and removal of aliens. . . . [T]he “operation of” the relevant statutes is best understood to refer to the Government’s efforts to enforce or implement them. ... Putting these terms together, § [242](f)(1) generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.

The Court’s grant of certiorari involved two cases, one in which the district court granted a preliminary injunction and one in which the district court granted partial summary judgment and issued a permanent injunction. I don’t believe that the Court should have gone so far as to interpret § 242(f) as prohibiting the injunction in the latter case, issued once the lower court had ruled on the ultimate merits. As I noted previously, the House Judiciary Committee’s report states that § 242(f)’s “limitations do not preclude challenges to the new procedures, but the procedures will remain in force while such lawsuits are pending.” Thus, it was never Congress’s intent to bar post-merits injunctive relief (to the extent warranted). Even the government agrees: “Congress’s plan for Section [242](f)(1) ... was ... not to entirely “preclude challenges” to covered immigration procedures, but to ensure that “the procedures will remain in force while such lawsuits are pending.”

In any event, the import of the Supreme Court’s decision cannot be underestimated (and I speak not only from personal experience, seeing many of the immigration regulations I worked on at the Department of Homeland Security enjoined by lower federal courts). Justice Sotomayer realizes its importance, stating (not really fairly in my view) in dissent that:

[This decision] place[s] upon non-citizens [well, aliens, but that is not a word that Justice Sotomayer would ever use] the ... burden of contesting systemic violations of their rights through discrete, collateral, federal-court proceedings. In a great many cases, the inevitable consequence of barring classwide injunctive relief will be that those violations will go unremedied, except as to the few fortunate enough to afford competent collateral counsel or to secure vigorous pro bono representation. The burdens will fall on those least able to vindicate their rights, as well as the law firms and nonprofit organizations that will endeavor to assist as many of these noncitizens as their capacity permits. ... [T]he repercussions of today’s decision will be grave.

Indeed, it appears that the up until now fairly successful efforts to enjoin immigration enforcement out of existence may be § 242(f)’d.

Implications for Texas v. Biden

How is the district court’s permanent injunction likely to fare following the Supreme Court’s ruling in Garland v. Aleman Gonzalez? What about the district court’s vacatur of the Mayorkas memo? Possibly knowing that its ruling in Garland v. Aleman Gonzalez was forthcoming, on May 2, the Supreme Court directed the parties in Texas v. Biden to file briefs addressing the following questions presented:

  1. Whether [§ 242](f)(1) imposes any jurisdictional or remedial limitations on the entry of injunctive relief, declaratory relief, or relief under 5 U.S.C. 706.
  2. Whether such limitations are subject to forfeiture.
  3. Whether this Court has jurisdiction to consider the merits of the questions presented in this case.

Injunction

It seems clear that injunctions cannot survive the Supreme Court’s ruling in Garland v. Aleman Gonzalez. In this case, the Supreme Court rejected contentions such as those made by Texas and Missouri and the district court and the Fifth Circuit, contentions that § 242(f) does not prevent courts from issuing injunctions “requiring” DHS to enforce the provisions at issue. As the Court stated in Aleman Gonzalez, “require[ing] officials to take actions that (in the Government’s view) are not required by [it] and to refrain from actions that (again in the Government’s view) are allowed by [it]. ... interfere with the Government’s efforts to operate” the relevant provision and are thus prohibited by § 242(f).

While the injunction issued by the district court in Texas v. Biden was not a pre-merits injunction — the court “enter[ed its] findings of fact and conclusions of law ... after a consolidated hearing and trial on the merits” — the Supreme Court’s decision in Garland v. Aleman Gonzalez did not consider this distinction of import. Thus, the U.S. District Court for the Southern District of Texas’ injunction prohibiting DHS from implementing or enforcing Secretary Mayorkas’ June 1 memorandum terminating the MPP cannot stand.

However, injunctions have not been taken completely off the table. As Texas and Missouri note to the Supreme Court, “if the Court harbors doubts regarding the lower courts’ jurisdiction, it may nonetheless enter an injunction identical to the district court’s injunction.” This is because § 242(f) provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions” at issue. (Emphasis added.)

Vacatur

As to a vacatur, Texas and Missouri argue to the Supreme Court that:

[Section 242(f)(1)] is no bar because: (1) the district court’s vacatur relief does not “enjoin” or “restrain” petitioner; (2) the terms “enjoin” and “restrain” do not include mandatory relief, as the district court also ordered; and (3) the district court’s mandatory relief does not enjoin “the operation of”.

The states also argue that:

Petitioners acknowledged below that vacatur alone — of any geographic scope — would not have required them to continue MPP. ... The district court therefore found an injunction necessary, and further found that that “a geographically limited injunction would likely be ineffective” to remedy the asserted harm to respondents “because aliens would be free to move among [S]tates.”

I don’t know why in the world the states would make this argument. First, it seemingly misconstrues what the government is saying. The government informs the Court that:

Respondents ... claim[] the government “asserted that vacating the June Termination would not require [DHS] to reimplement MPP,” ... That misrepresents the record. The government [merely] observed that MPP had preserved line-level immigration officers’ discretion not to return individual noncitizens to Mexico, and thus “[r]einstating MPP would not require DHS to return anyone to Mexico.”

But even if the government is arguing that the vacatur did not require DHS to continue the MPP, why should the states agree with this assertion? What is the point of fighting to save the district court’s vacatur of the Majorkas memo if the vacatur will not in fact require DHS to continue the MPP?

In any event, the government argues to the contrary that:

Respondents contend ... that vacatur is “distinct from injunctive relief” and thus not precluded by Section [242](f)(1). Although vacatur of an agency decision can be a “less drastic remedy” than an injunction in some respects ... vacatur is still coercive. Because vacatur prohibits the agency from giving effect to its decision, a district court “enjoin[s] or restrain[s] the operation of” the covered INA provisions when it vacates an agency decision implementing them. ... And contrary to respondents’ assertion ... that Section [242](f)(1) “refers to injunctive relief alone,” the statute bars lower-court orders that would “enjoin or restrain” DHS’s operation of the covered INA provisions, no matter how those orders are labeled.

The district court was clear that its vacatur would have a compulsory, nationwide reach. The court described vacatur as “a veto-like power that enables the judiciary to formally revoke an agency’s” action. ... That leaves no doubt that the vacatur enjoined and restrained the Secretary’s June decision.

Before discussing the government’s next argument, I should note that the APA provides that:

The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. [Emphasis added.]

And the APA provides that:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. ... Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

With these provisions in mind, the government argues that:

  • The INA and the APA both make clear that the APA’s remedial authorities give way to the specific remedial limitations in § [242](f)(1). The INA makes those limitations applicable “[r]egardless of the nature of the action or claim or of the identity of the [plaintiff],” and it expressly withdraws “jurisdiction” to enter the prohibited remedies. ... The APA ... provid[es] that “[n]othing” in [it] “affects other limitations on judicial review” or the court’s duty to “deny relief on any other appropriate legal or equitable ground.”

And it argues that:

  • The [district court and Fifth Circuit] decisions ... read [the APA] to authorize the district court to “vacate[]” the Secretary’s decision terminating MPP and render it “void,” preventing the Secretary from implementing his decision anywhere in the Nation. ... Some other lower courts have adopted a similar interpretation of [the APA]. ... But as the government has long argued, that interpretation is wrong.

  • [T]he “set aside” language in [the APA] speaks to the court’s decisional process, not the appropriate relief. It directs the court to disregard — that is, set to the side — unlawful “agency action, findings, and conclusions” in resolving the case before it.

  • Second, even if [the APA’s] “set aside” language did describe a remedy, it would not suggest that courts should “set aside” an unlawful agency action universally, as opposed to as applied to the specific parties before the court.

  • The APA incorporates traditional limitations on equitable relief, including the principle that relief must not extend “beyond the parties to the case,” ... by providing that the APA’s authorization of judicial review does not affect “the power or duty of the court to * * * deny relief on any other appropriate legal or equitable ground[]”.

Following the Supreme Court’s decision in Garland v. Aleman Gonzalez, the district court in Texas v. Biden ruled that:

  • [T]he Court is of the opinion that Garland v. Aleman Gonzalez offers no basis for ... altering the Court’s decision on the merits.

  • Aleman Gonzalez is inapplicable. ... First, [it] does not apply to this case because this Court did not enter an injunction [What? Yes it did.]. ... Instead, the only relief granted was vacatur of the rule. ... And Aleman Gonzalez did not disturb the Supreme Court’s prior holding that Section [242](f) “[b]y its plain terms, and even by its title, ... is nothing more or less than a limit on injunctive relief.”

  • [V]acatur under the [APA] does not “enjoin or restrain the operation of” [the relevant provisions].

  • [R]eading Aleman Gonzalez as the Government does is not only an incorrect interpretation of that case, but it would likely insulate virtually every rule related to the INA from judicial review. Such a result is inconsistent with the Fifth Circuit’s explicit rejection of the Government’s claimed authority to have “unreviewable and unilateral discretion to ignore statutory limits imposed by Congress and to remake entire titles of the United States Code to suit the preferences of the executive branch.”

I believe that Texas and Missouri are likely to prevail, and that the Supreme Court will uphold the district court’s vacatur. First, as the D.C. Circuit has determined, the APA does talk in terms of vacatur:

  • Harmon v. Thornburgh: “When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated — not that their application to the individual petitioners is proscribed.”
  • United Steel v. Mine Safety & Health Admin: “The ordinary practice is to vacate [under the APA] unlawful agency action. ... ‘The reviewing court shall ... set aside agency action ... found to be’ unlawful.”
  • Heartland Regional v. Sebelius: “Failure to provide the required notice and to invite public comment ... is a fundamental flaw that ‘normally’ requires vacatur of the rule.”

This view is supported by the understanding of the term “set aside” at the time of the enactment of the APA. As law professor Mila Sohoni argues:

Well before and right up to the threshold of the APA’s enactment, th[e] term [“set aside”] was used by Congress, by executive-branch lawyers advising on the APA’s drafting, and by other noteworthy actors to mean the act of recognizing the invalidity of rules of general applicability — a category that includes not only federal and state statutes but also federal regulations. It is therefore incorrect to contend that the term “set aside” had some technical meaning limited to the reversal of judicial judgments and narrow-gauged orders, or that the drafters of the APA could not have envisioned that this term might be applied to vacate a rule of general applicability. The term “set aside” means invalidation — and an invalid rule may not be applied to anyone.

Second, the House Judiciary Committee’s report is clear that what IIRIRA is barring is injunctive relief:

[While] courts may issue injunctive relief pertaining to the case of an individual alien, and thus protect against any immediate violation of rights[,] ... single district courts or courts of appeal do not have authority to enjoin procedures established by Congress to reform the process of removing illegal aliens from the U.S.” [Emphasis added.]

Third, the Supreme Court explicitly stated in Garland v. Aleman Gonzalez that:

At oral argument, the Government suggested that § [242](f)(1) not only bars class-wide injunctive relief but also prohibits any other form of relief that is “practically similar to an injunction,” including class-wide declaratory relief. ... The Government analogized § [242](f)(1) to the Tax Injunction Act ... which we have held extends to declaratory judgments. See California v. Grace Brethren Church. ... Because only injunctive relief was entered here, we have no occasion to address this argument. [Emphasis added.]

Thus, it is still an open question to the Supreme Court as to whether § 242(f) bars “other form of relief that is ‘practically similar to an injunction,’ including class-wide declaratory relief [which could include a vacatur].” It would be tremendously consequential for the Supreme Court to uphold the district court’s vacatur — for vacaturs by definition are issued after a court’s ruling on the merits. Even following the Supreme Court’s disallowance of post-merits injunctions, allowing vacaturs would (through an alternate path) restore the House Judiciary Committee’s principal that § 242(f) not “preclude challenges to the new procedures, but the procedures will remain in force while such lawsuits are pending.”

Declaratory Relief

Should lower federal courts be allowed to grant declaratory relief in the § 242(f) context, this would further bolster the contention that they can issue vacaturs. Two of the questions presented by the Supreme Court in Texas v. Biden are “[w]hether 8 U.S.C. [242](f)(1) imposes any jurisdictional or remedial limitations on the entry of injunctive relief, declaratory relief, or relief under 5 U.S.C. 706 [the APA]” and “[w]hether this Court has jurisdiction to consider the merits of the questions presented in this case.”

The Declaratory Judgment Act provides that:

In a case of actual controversy within its jurisdiction, except with respect to Federal taxes [and certain other matters], any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.

Further, it provides that:

Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.

Both the states and the government agree that declaratory relief is available. As the government states:

The parties agree that Section [242](f)(1) does not affect this Court’s jurisdiction to resolve the questions presented. ... In particular, the parties agree that Section [242](f)(1) would not have prevented the lower courts from considering respondents’ request for declaratory relief, and that it would not preclude this Court from considering whether to grant declaratory relief or an injunction. ... The Court should therefore resolve the questions on which it granted certiorari, regardless of whether Section [242](f)(1) barred the injunction and vacatur below.

As the American Civil Liberties Union argues in an amicus brief, additional evidence supports this conclusion:

  • Five Justices of this Court have already concluded that Section [242](f)(1) does not bar declaratory relief. [Alito, J., Roberts, C.J., Kavanaugh, J., Breyer, J., Sotomayor, J.]. ... Every circuit court to have addressed the issue has reached the same conclusion.

  • [I]n a neighboring provision of the very same statute, Congress explicitly precluded declaratory relief for other types of claims. In the contemporaneously enacted Section [242](e), Congress prohibited a court from entering “declaratory, injunctive, or other equitable relief.”

  • As th[e Supreme] Court has noted, “[t]he only occasions where this Court has ... found that a preclusion of injunctive relief inevitably led to a denial of declaratory relief have been cases in which principles of federalism militated altogether against federal intervention in a class of adjudications.” ... Because Section [242](f)(1) concerns federal courts’ ability to enjoin the operation of federal law, it does not implicate federalism concerns.

  • The statute bars only lower courts, not th[e Supreme] Court, from “enjoining or restraining”. ... This Court’s ability to provide such relief necessarily depends on the ability of district courts to issue some form of relief ... [as] this Court has only limited original jurisdiction. ... If Section [242](f)(1) bars district courts from granting even declaratory relief, it is unclear how this Court would ever have an opportunity to grant injunctive relief as contemplated.

But what is declaratory relief? The Supreme Court ruled in 1969 that “[a] declaratory judgment can then be used as a predicate to further relief, including an injunction.” (Emphasis added.) And while the Court stated in California v. Grace Brethren Church, that “there is little practical difference between injunctive and declaratory relief”, it also indicated that:

  • Because the declaratory judgment "procedure may in every practical sense operate to suspend collection of the state taxes until the litigation is ended," ... the very language of the Act suggests that a federal court is prohibited from issuing declaratory relief in state tax cases. [Emphasis added.]

  • [W]e would be hard pressed to conclude that Congress intended to prohibit taxpayers from seeking one form of anticipatory relief against state tax officials in federal court, while permitting them to seek another, thereby defeating the principal purpose of the Tax Injunction Act. [Emphasis added.]

Thus, California v. Grace Brethren Church was predicated on the same kind of pre-merits relief that Congress was focused on in § 242(f).

The government argues that declaratory judgements are not at all “coercive”, relying on the 1963 Supreme Court decision in Kennedy v. Mendoza-Martinez:

  • Section [242](f)(1) generally does not preclude declaratory relief that adheres to the proper scope for such relief and does not circumvent Section [242](f)(1)’s limitations: A declaratory judgment “declare[s] the rights and other legal relations” of the parties, 28 U.S.C. 2201(a), but does not coerce compliance or “interdict[] the operation” of the challenged statute or administrative action.

  • [A] declaratory judgment ... is “totally noncoercive,” Kennedy[ v. Mendoza-Martinez], and merely “declare[s]” the parties’ “rights and other legal relations[.]”

  • When a lower court enters a declaratory judgment but not a preliminary or permanent injunction, “the Government [remains] free to continue to apply” the challenged statute or administrative action pending further district-court proceedings and appellate review [quoting Kennedy v. Mendoza-Martinez].

However, Kennedy v. Mendoza-Martinez was also considering pre-merits relief. The Court concluded that “the purpose of Congress [regarding the statute at issue was] to provide for the convocation of a three-judge court whenever the operation of a statutory scheme may be immediately disrupted before a final judicial determination of the validity of the trial court's order can be obtained.” (Emphasis added.) Thus, the case really doesn’t provide support for the proposition that post-merits declaratory relief cannot be “coercive”. And because declaratory relief can be “coercive”, and can also lay the foundation for further relief, the fact that Congress did not bar declaratory relief in the context of § 242(f) adds further credence to the conclusion that lower federal courts can vacate rules implementing provisions of the INA dealing with the inspection, apprehension, examination, exclusion, and removal of aliens.