The U.S. Supreme Court’s 2021-2022 term is over, and its final ruling was on the "Remain in Mexico" case brought against the administration by the states of Texas and Missouri. But that is only one of a large number of immigration cases filed over the past year and a half since President Biden's inauguration. The Center for Immigration Studies hosted a conversation on immigration-related lawsuits brought against the Biden administration, at 1 p.m. on Wednesday, July 6. The discussion focused on specific cases being litigated as well as on how litigation has affected decision-making in the executive and how it might influence Congress's framing of legislation.
Participants brought a combination of immigration policy, legal, and government experience, both at the agency and congressional level, to the conversation. Ken Cuccinelli is a former Virginia Attorney General and former Acting Deputy Secretary of the Department of Homeland Security. Joseph Edlow is a former Acting Director of U.S. Citizenship and Immigration Services (USCIS) and served in the executive office of the president and the Justice Department’s Office of Legal Policy. Andrew Arthur, the Center’s Resident Fellow in Law and Policy, is a former immigration judge and counsel on the House Judiciary Committee, where he performed oversight of immigration issues.
Ken Cuccinelli, Senior Fellow, Center for Renewing America
Joseph Edlow, Founder, The Edlow Group, LLC
Andrew Arthur, Resident Fellow in Law and Policy, Center for Immigration Studies
Date and Location:
July 6, 2022
MARK KRIKORIAN: Good afternoon. My name is Mark Krikorian. I’m executive director of the Center for Immigration Studies, a think tank here in Washington that examines and critiques the impact of immigration on the United States.
Now that I have you here, we’re online at CIS.org and we have a podcast called “Parsing Immigration Policy,” which is in all the usual podcast places.
What we’re doing today is we’re having a panel on – that we’ve called “Fighting Biden in Court: A Look at Immigration Cases Against the Administration.” This was, obviously, a major issue in the Trump administration with a whole series of lawsuits challenging their immigration actions, and, you know, what’s sauce for the goose is sauce for the gander and so the Biden administration is facing the same kind of thing.
So we have here three people who actually have a lot of experience and knowledge on this issue.
Ken Cuccinelli, senior fellow for immigration and homeland security at the Center for Renewing America, was the acting deputy secretary of DHS and acting head of USCIS under the Trump administration and so, again, at the receiving end of a lot of this – the litigation against the previous administration.
Joe Edlow is founder of the Edlow Group. He’s former general counsel of USCIS and former acting director of USCIS and has long experience both on the legislative and executive branches in dealing with immigration.
And finally, Andrew Arthur is resident fellow in law and policy at the Center for Immigration Studies, former immigration judge, former Hill staffer. He’s written some substantial portions of the immigration law and has been writing about this issue quite extensively.
So before – we’re going to talk about three of the big cases in a little more detail. Before we get to that, I wanted to ask Ken and Joe what was it like being at the receiving end of this litigation onslaught in the previous administration.
How did that affect your actions, your thinking, your planning, et cetera? First you, Ken.
KEN CUCCINELLI: Well, I mean, there’s – you start with tie selection. If I pick green, they’re going to sue me – (laughter) – and if I pick blue, they’re going to sue me. So it was a presumption on everything we did, literally, from the get-go.
Now, I was also a state attorney general, so I’ve been on the other side of some of the state dealing with the federal government as well and, you know, I appreciate that perspective. Frankly, that was the best job I ever had was being an attorney general. But definitely, when the litigation rolls in every day, and at USCIS we were sort of the center hub of DHS immigration regulation management even for the things that dealt with ICE and CBP, that was a(n) enormous consideration.
And when you add – for the nonlawyers, when you add judge shopping in there, which is how it’s going to play out, it isn’t a random selection of judges –
MR. KRIKORIAN: So it wasn’t just coincidence that they went to San Francisco constantly.
MR. CUCCINELLI: It was not coincidence. Yes. And my least favorite tiger, but – that judge out there. (Laughter.) But, yeah, we kind of get deep in the geeks with the lawyers on that one. (Laughter.) But it played out in those jurisdictions and it was predictable. It was critical the changes that President Trump himself made to the Ninth Circuit. Of all the circuits, I think that one –
MR. KRIKORIAN: In the judge shopping context, in other words? Yeah.
MR. CUCCINELLI: Yes. Yes, as a backstop for the judge shopping, and we can talk a bit about it as we go on. But the remain in Mexico program ruling actually has some interesting nuggets for moving ahead if you’re the executive branch. So I won’t steal thunder here.
MR. KRIKORIAN: And we’ll get to that.
And, Joe, before I get to you, I just wanted to – I forgot. If you have questions, we have cards in the back to write the questions on. After the back and forth we’ll take some questions.
So, Joe, you were general counsel at USCIS, and so even though, as I understand it, it’s DOJ who’s actually the lawyer in court defending the government, if I’m not mistaken, but, presumably, you were constantly harried by these lawsuits.
JOSEPH EDLOW: We certainly were. My office had attorneys involved in all of those cases and we were constantly involved in the settlement negotiations and reviewing all of the incoming litigation. It was a coordinated effort. And Ken’s right. Whatever we did, we were expected to be sued on it. It didn’t matter if it was a policy memo or a – just a policy manual update that was seemingly very minor. It didn’t matter what it was. This coordinated effort was well funded, well backed, and you had judges in these jurisdictions that were bending over backwards to find standing for plaintiffs to be able to sue us, and not only were they finding standing but they were quickly enjoining us and forcing us to make concessions and to provide certain amount of relief very, very quickly.
So there was a significant burden on us. But, you know, in terms of our thinking, moving forward from the time that I was general counsel to being acting director, it didn’t deter us from moving forward with policy decisions or from promulgating regulations. If something needed to be done, if something was the right thing to do, we continued to do it knowing that we were going to get sued. But didn’t stop us from moving forward.
MR. KRIKORIAN: Now, were you – I mean, I wouldn’t say that you would be careless without the possibility of lawsuits. But did that certainty of being sued, basically, make you lawyer up the measures more thoroughly than you would have otherwise, or not?
MR. EDLOW: I thought the measures were always very well thought out. They were well-researched and very well-reasoned before they were implemented. And, unfortunately, that just didn’t matter for these courts and for some of these judges that were looking for any sort of hole in our argument or the Department of Justice’s argument to move forward and to find some relief, and to exploit that relief and to give it to as many people as possible.
MR. CUCCINELLI: I would note, if I could offer one lesson –
MR. KRIKORIAN: Sure.
MR. CUCCINELLI: – so for when you all are in there next time, I came in in the second half of the administration and so a lot of the trains were already out of the station.
Many of you have heard the acronym KISS – keep it simple, stupid – and I have to say, looking back in the rearview mirror, that would have been very advantageous to trim down the breadth of some of what we were doing and simplify it dramatically, and so make these fights more clean-cut and give them less hooks for the judges to hang on.
MR. KRIKORIAN: Fewer holes to go through.
MR. CUCCINELLI: That’s right.
MR. KRIKORIAN: OK.
MR. CUCCINELLI: And, you know, do a larger number of smaller exercises. Frankly, we’re sitting on Capitol Hill. I wouldn’t mind seeing that in legislation either. How about a 10-page bill, folks, you know? (Laughter.)
MR. KRIKORIAN: You can dream.
MR. CUCCINELLI: Yes. Exactly. But you get the idea.
MR. KRIKORIAN: Right. Right. Interesting.
MR. CUCCINELLI: Complexity is a tremendous challenge from a litigation defense standpoint.
MR. KRIKORIAN: Interesting.
Now let’s talk about some of the specific cases. Art, if you could give us kind of the Cliff Notes version of the most recent and most widely covered one was the so-called remain in Mexico ruling from the Supreme Court. What was – what’s at issue there? What did the Court find and what might we see? You know, will it come back next year to face the Court? What are the other questions?
ANDREW ARTHUR: Yeah. No, it’s – it really is a good question. This is one of those cases that was – that were brought by the states early.
So just to provide some timeline to put all this into context, in January of 2019 we were seeing a huge influx of migrants coming across the Southwest border. In fact, in March of 2019, DHS Secretary Kirstjen Nielsen announced a border emergency.
Just before she did that in January of 2019, taking statutory authority in Section 235(b)(2)(C) of the INA, which I’m just going to call the contiguous territory return provision, she instituted the migrant protection protocols – MPP – better known as remain in Mexico.
235(b)(2)(C) and MPP both allowed DHS to return migrants apprehended at the Southwest border who were claiming asylum who were not from Mexico back across the border to Mexico to await their removal hearings.
By mid-summer 2019 – again, it was briefly enjoined by the courts in California, I believe – but by mid-summer 2019 MPP was fully implemented. In October 2019, DHS determined that MPP was, quote, “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system,” close quote.
Throughout the lifetime of MPP about 70,000 migrants were returned back to Mexico under the program, most of them before March 2020. In March 2020, the pandemic was declared. International travel shut down. Fewer people were entering the United States illegally, and CDC issued Title 42 orders that we’ll talk about a little bit that allowed DHS to simply expel illegal migrants – in fact, direct DHS to expel illegal migrants coming into the United States.
Nonetheless, in the 2020 presidential campaign, MPP became one of Joe Biden’s hobbyhorses. He railed against the program. He vowed that he was going to end it as president. January 20th, 2021, his first day as president, Biden actually did that. He suspended new enrollments in MPP and the next month DHS started allowing people who had been in MPP to come into the United States so that they could have their hearings here.
That, coupled with the growing crisis at the border in April of 2021, prompted Texas and Missouri to file suit in federal court in Texas, arguing that the migrant crisis was increasing. MPP was necessary to keep the number of migrants low because the greater number of migrants, the greater number of people who would be coming into their states who would be using state benefits and who would, you know, be a burden on the state were coming to their states.
Notwithstanding the fact that they’d filed this suit in April, on June 1st, 2021, DHS Secretary Alejandro Mayorkas issued a memo terminating MPP, which, of course, just got rolled into the suit that they were doing and they were arguing, look, this is a violation of the Administrative Procedures Act. It didn’t go through notice and comment rulemaking, it’s arbitrary and capricious, and it’s in violation of the Immigration and Nationality Act.
On August 13th, 2021, Judge Matthew Kacsmaryk of the Northern District of Texas agreed, largely, with the states and he enjoined MPP’s termination of – or DHS’s termination of MPP and he did it based on three grounds. One – or with three findings – one, DHS is required under Section 235(b) of the INA to detain every illegal migrant and every arriving alien that shows up in the United States. During the argument in the MPP case we found that that goes all the way back to 1903. So that’s a pretty old law. But that is the detention mandate.
Two, DHS is allowed to release some of those aliens on a very limited authority called parole. But DHS was, really, just releasing large numbers of aliens into the United States.
The third option Judge Kacsmaryk found that they had was to send those aliens they couldn’t detain and that it shouldn’t be releasing back across the border to Mexico to await their hearings. And so DHS couldn’t take MPP or couldn’t take – yeah, couldn’t take remain in Mexico off of the table.
The Biden administration quickly ran to the Fifth Circuit for a stay. That was denied. They went to the Supreme Court for a stay and that was denied. So the case went back to Texas, and Texas – or the Biden administration sued or appealed it in the Fifth Circuit in order to overturn Judge Kacsmaryk’s order.
On October the 29th, 2021, which was four days before oral argument before the Fifth Circuit, Alejandro Mayorkas rescinded his prior termination memo and issued a brand new one that said, oh, you know, this is the real reason that we’re terminating MPP.
That didn’t make the Fifth Circuit very happy because, you know, the Biden administration ran into court saying, well, now the old one’s moot. We changed the rules. You don’t have to worry about it. This is really the law.
And the Fifth Circuit said, forget that. It’s really just one termination decision. It doesn’t matter which memos you use to do it. So we’re going to just simply focus on the June 1 memo and we’ll consider the October 29th memo as well.
On December the 13th, 2021, DH – or the Fifth Circuit dismissed DHS’ appeal. That prompted the Biden administration to go to the Supreme Court and in February the Supreme Court agreed to take up the case, which was now captioned Biden v. Texas. At issue in Biden v. Texas were whether that detention mandate in Section 235(b) of the INA is actually a detention mandate, whether the contiguous territory return – again, the statutory basis for MPP imposed an obligation on DHS to return aliens that it couldn’t detain back to Mexico – whether the Biden administration is properly releasing migrants into the United States on parole.
To give you an idea, the parole provision states that DHS is allowed to permit inadmissible aliens to come into the United States but, quote, “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit,” close quote. This is a very tight standard. It’s not a new one. Goes all the way back to the 1952 act as revised in 1996 to actually tighten it up.
There’s never been as broad a(n) application of that rule as under the Biden administration. Under the Biden administration, 1,050,000, more or less, illegal migrants and other inadmissible aliens at the Southwest border had been released into the United States – 1,050,000. Plainly, tough to do on a case-by-case basis and tough to say that any of them is a significant public benefit.
The Biden administration, however, argues that it has to release all those aliens that it can’t detain and it’s actually a significant public benefit to release them rather than detain them because that means that somebody who’s even worse may show up, although ICE detention space is about 30 percent empty. So, and again, the government was actually questioned extensively about this at the oral argument.
Another question before the Court is whether the jurisdiction – this is an important one that we’re going to get much deeper into – whether a jurisdiction-stripping provision in Section 242 of the Immigration Nationality Act barred any consideration of this case.
When Congress changed the law in 1996 they limited the availability of injunctive relief by any court other than the Supreme Court. So district courts, you know, didn’t have the ability to enjoin or restrain certain actions under the INA and the circuit courts couldn’t do it, either.
So when Secretary Cuccinelli was talking before about all those lawsuits, plainly, probably in violation of 242(f), but it had always been accepted that, well, you know, it says that but they’re – you know, it says that but it doesn’t really mean it.
Finally, the last question before the Supreme Court was whether the circuit court had properly lumped that October 29th memo in with the June 1 memo in finding that it was just one termination decision.
The Court heard oral argument and then it asked a lot about that jurisdiction-stripping provision. Interestingly, the government hardly mentioned it. It mentioned it in a footnote in a rather extensive brief. Texas and Missouri didn’t even respond in their briefs to it, and during argument the justices kept asking about this and neither side really had an answer.
So on May the 2nd, after oral argument the Supreme Court said, you know what, we want briefing on this issue and we’re going to give you a week to get those briefs in.
So with the week’s briefing they then turned around and issued their decision. They held that that contiguous return provision in Section 235(b)(2)(C) of the INA is discretionary and that it can’t be made mandatory even if DHS is violating the law.
Two, it found that the October 29th termination was a new and judicially reviewable final agency action that the circuit court should have considered.
Finally, something that Secretary Cuccinelli probably would have liked, it found that that jurisdiction-stripping provision in Section 242(f)(1) of the INA actually did strip jurisdiction to issue injunctive relief.
The outcome of this is probably not that significant. As a matter of fact, only about 5,000 people were returned back to Mexico under the Biden administration MPP, which we’re going to discuss – or Title 42, which we’re going to discuss as a much bigger issue.
But the case will now go back to the Fifth Circuit to consider that October 29th memo, and this we’ll probably get into a little bit more deeply. It’s, really, unclear from the court’s decision what the Fifth Circuit is going to be able to do once it gets to that point because of that jurisdiction-stripping provision.
But with that, I’ll yield back.
MR. KRIKORIAN: OK. Good. So we’ll talk a little more maybe about what we might see coming down the road on any of these cases.
But I wanted to go to Ken next to talk a little bit about the Title 42 case, just very briefly what it is and then, again, the Cliff Notes version of what the lawsuit is and where it is now.
MR. CUCCINELLI: Right. As Art mentioned, you know, the Court ordering this administration to keep up a very effective program meant it was done somewhere well below half-heartedly and – but Title 42, as he also mentioned, is numerically extremely significant. Title 42 is a public health title. Title 18 is criminal. Title 42 is public health. Title 8 is where you find immigration law.
This is not immigration law. This is public health law, and it’s important to realize that people are removed from this country using something other than immigration law. The two legal bases exist in the same place – along the border – and have completely different legal sources.
Title 42 – when we say Title 42, we’re referring to the border public health order that was issued in March of 2020 at the beginning of the COVID pandemic by Centers for Disease Control that provided for the turning around, really, with no process like we’re used to in the immigration context back across the border of those who came in in between ports of entry illegally, which is a double negative. That’s how that goes.
This is critically significant because as bad as the numbers are today, even today – and I think a lot of people on the rule of law side of this debate aren’t aware of these numbers – we are still removing over 50 percent of illegal border crossers every day under Title 42.
So when you hear about the possibility of numbers going up, and they continue to go up, the fastest way for them to go up is for Title 42 to come down because overnight they’ll more than double, and when I say they will more than double I’m referring to the releases into the United States. The catch and release numbers will go through the roof if Title 42 comes down.
And Louisiana is the named party against the CDC in this case and it is not, as I said, under immigration law but, again, you hear a lot of the same themes – the APA, the Administrative Procedure Act. So the claims by the states are that there was not appropriate notice and comment and that the action is arbitrary and capricious.
Taking those two in turn, the government acknowledged that notice and comment would normally apply but they gave a number of reasons why it wasn’t done here. The first is the foreign affairs considerations, which we also heard about in the remain in Mexico program.
The courts are loath to interfere with the executive branch’s ability to conduct international relations and any of these things going on at the border have international consequences and so the government argues that factor.
But they’re – much like the jurisdictional briefing, the government made little more than about a sentence of argument on this front. They just threw it out very generically for the Court.
Now, it has, historically, been an important consideration for the courts. So, if I were writing their briefs, I would have been much more vigorous in pressing this point than they were.
And then they also argued that there is a good cause exception and that their takedown of Title 42 fits within the good cause exception. They said it was – the good cause is made up by the impracticality of taking public comment and that DHS needs time for implementing the takedown of Title 42. So they want to hurry because they need time to take down Title 42. You don’t need to go to law school to see the inconsistency in some of that argument.
I would note, as did the states, that when Title 42 was initially implemented – there are a variety of timing sets that rules can be implemented on. It was implemented on something like an emergency timeline, and yet public notice and comment was taken after the rule was implemented in March of 2020 before the rule was finalized, I want to say, about two months later.
So they can’t point back to the Trump administration and say, well, they didn’t take notice and comment because the Trump administration did, and they also are rather stuck with their own arguments in terms of the inconsistency of their need for time, according to them, and so forth. And, not surprisingly, this is what the states are arguing to the contrary.
This all arises out of an executive order from February of 2021 in which Biden asked DHS to consider – ordered DHS to consider – sorry, HHS; I got to get my -HSes correct – taking down this effort. Now, DHS is involved because it involves the border, but it is a regulation under HHS authority under the CDC.
There was 14 months from the time Biden issued that executive order until the administration came out with its decision to remove the order on the border. And so the argument is you had plenty of time in there to conduct notice and comment and you chose not to do it, quite intentionally.
They also treat the tail end of this pandemic as if it’s the beginning of a pandemic, meaning the government is doing that, and the states point out, look, there was an emergency at the beginning of the pandemic when we didn’t know what we were dealing with. We had a very communicable disease, et cetera. That concern doesn’t exist in taking down the border order. Again, pushing back on the good cause exception.
I mentioned the fact that public comment was, in fact, taken at the outset of the issuance of this order and consistent with what would be appropriate under the circumstances: issue an initial order, take public comment, and then issue a final order.
And the states, of course, also pointed out the non sequitur. Our government’s argument they need time to take down DHS actually argues for taking the time to take public comment.
So I think the government really has handled this very badly, and this is just Ken the litigator talking. They have not managed this process well and I do think the states are going to win this round. It will not mean that they cannot take down Title 42 – the border order – but it probably will mean that courts are going to continue to order them to go back and, essentially, start from scratch. Go through notice and comment.
And for those of you who have never had the torture of going through that process, on the agency side, where Mark started our discussion, we go through all of those comments. We go through all of them and categorize them by type and respond substantively to each argument or question or new facts raised in those comments.
It is an arduous undertaking. It is an arduous undertaking, and judges have kicked regulations for failure to properly respond to those comments. It’s not just 60 days of taking in emails and then you move on your merry way. You actually have to respond to the substance of what’s put forth by the public, which is why it’s considered a substantive part of the regulatory process.
So very strong case here as it stands today by the states. But I think, much like we see with the remain in Mexico program, the courts are not going to just force the executive branch to maintain an order if they go through a proper process and come to a reasonable conclusion that it should come down.
All right. That’s Ken the litigator. Now I’m going to put on my policy hat real quick and just say I think the last COVID thing to come down in America should be the border order. If CDC is recommending anything anywhere, then the border order should stay. As long as Americans have to give up freedom to deal with this condition, this pandemic, then the border order should stay in place.
That’s a policy call. It wouldn’t hold up, per se, legally. But it is an – I will say, as a litigator who might argue a case, I would use circumstances that the administration is doing in other places where they’re trying to force people to give up freedom or to do things like wear masks, et cetera, where there isn’t a basis for it, and yet they’re taking down the border order. I would, certainly, use that in a court hearing to embarrass the other side and enjoy doing it. (Laughter.)
MR. KRIKORIAN: Thank you, Ken.
So, Art, you talked about the administration’s efforts to end remain in Mexico. Ken talked about the administration’s effort to end Title 42. I want Joe to talk about the third case, the top case that we’re going to be talking about, which is the administration’s effort to, basically, stop immigration enforcement altogether, or a nonenforcement memo from Mayorkas that Texas also sued on. So, Joe, what’s the situation with that?
MR. EDLOW: Thanks, Mark. So I’m going to switch gears a little bit from where Art and Ken were because they were both talking about things that the Biden administration was trying to end that the previous administration had started.
Here, we’re talking about something that the Biden administration put in place themselves that they are trying to defend based on litigation that came out and, you know, I’m going to start with a position that might sound slightly unpopular but it’s something that we – you know, that I, certainly, lived by when I was in part of the administration, which was the administration has the prerogative to implement policy as it sees fit.
We might not all agree with that policy but, certainly, policy decisions are that prerogative of that administration. But when a policy is implemented, that policy has to be implemented correctly using the correct procedure and can’t, ultimately, ignore the law.
And when we look at the three memos that are at issue here in this nonenforcement litigation, which, also not to confuse it with MPP but it’s also called US v. – I’m sorry, Texas v. U.S. Though was it considered a related case? I don’t even know.
MR. ARTHUR: No.
MR. EDLOW: OK. So many of them were I just don’t remember at this point. But this is one where, clearly, the administration took action that was meant to frustrate not only the entire system of immigration enforcement but was done so in a way that just violated statutory law and also all the known principles of – under the Administrative Procedure Act.
So what we’re dealing with here are three memos, the first of which was issued right on Inauguration Day, January 20th, by then Acting Secretary Pekoske at DHS, and it – pretty much three main purposes. One was to review the policies and practices of the immigration wing of – arm of the Department of Homeland Security. It was to set up these interim enforcement priorities, which pretty much mirror what we see in the final memo. Essentially, border security, public safety, and national security are the three main, still. If you ask me right now how those are being – how those were being implemented I still couldn’t really tell you. But those were – those are what they are. And then it was my favorite, an immediate suspension of all removals for a hundred days, right then and there on day one of the administration. That’s what the president wanted to do through the secretary.
This was followed very closely on February 18th by a memo from the acting ICE director, who’s still the acting ICE director, which provided interim guidance setting out the priority categories, essentially, following along with what the Pekoske memo had outlined.
But the important part there is that it created this presumption that if you weren’t in the priority category you were, essentially, outside of it and, therefore, not a priority for an enforcement action. You were not, therefore, subject to an enforcement action.
This resulted – even before we get to the final agency action of September 30th, this resulted, as both Texas and Louisiana have pointed out in this lawsuit, in multiple – numerous detainers being rescinded, the refusal of DHS and ICE to take custody of criminal aliens throughout the country, including the refusal of ICE to take custody and to actually effect final removal orders for aliens who had those removal orders issued by an immigration judge.
So you’ve got, essentially, at that point, lawlessness. You’ve got the INA – the Immigration Nationality Act – just being, largely, ignored by the enforcement wing of the Department of Homeland Security that is charged with carrying out the immigration enforcement activities of this country. What else they’re doing in enforcement removal operations I do not know. But that is what they are supposed to be doing but this memo was preventing them from doing that.
Then we have the final priority memo of September 30th. This was issued by Secretary Mayorkas finalizing those, essentially, original interim priorities of border security – again, national security, public safety.
But this one also creates in that narrowed category of public safety where mainly aggravated felonies, which is not a term of art. It’s a legally defined term. Takes a narrowed category of criminal aliens but also creates a non-exhaustive list of mitigating factors that law enforcement – ICE – has to use to consider when moving forward with an enforcement action.
So it’s not just you’ve committed a crime and, therefore, you are being placed into removal proceedings, you’re being set up for removal, whatever. We have to look at a litany of factors to determine whether you are – you should be subject to removal proceedings.
Again, that has to be reviewed by several levels of people in order for that decision to be made. It’s absolutely absurd.
So October of 2021 Texas and Louisiana file suit in the Southern District of Texas and they allege six counts.
Now, I’m so glad that Mark allowed me to speak about this case because these six counts represent not only the best that we have in terms of procedural ways to challenge a government – the government’s action but also substantive mechanisms.
Procedurally, there’s the APA, right. If something is being done you’ve got to file the – you’ve got to follow, rather, the procedural mechanisms, and Ken talked about it. There’s notice and comment. You’ve got to give everyone the ability to understand what’s going on and let the public comment on that and, as Ken said, the government actually does review these comments and does make change at times based on those comments.
Between a notice of proposed rulemaking and a final rule there are changes that are made in response, and a final rule must properly include those comments and say, listen, we listened to, we understand these comments, and this is our response to those comments.
There was nothing here. These are just memos. But, yet, the Court did find that it was a rule.
An additional violation that was alleged was that the rule itself was arbitrary and capricious, which is just a fancy way for saying that the government lacked reasoned decision-making when it decided to issue this rule – I’m sorry, this memo, which was a rule – that they didn’t consider alternatives. They didn’t consider everything that would have, potentially, stemmed from this decision. They didn’t consider anything. And, of course, since there’s, really, no administrative record with a memo they have nothing, really, to come back on.
The substantive claims rest on the fact that, as I mentioned before, after ICE issued its memo in February it, really, stopped going after a large group of aliens, both criminal aliens and aliens with final orders, and Texas and Louisiana seized on that – seized on that with two provisions in the INA that mandates detention and removal of aliens in certain categories.
Based on that, they made substantive claims saying that the Department of Homeland Security and the government, ultimately, was failing to comply with the law, and this is something that when the judge, ultimately, ruled on this case – and we’re only at the district court phase.
So the judge, Judge Tipton, in the Southern District only ruled back on June 10th. So this is still fresh. Found that those two claims as well as the other two procedural claims were all sustained based on the fact that the government did, in fact, fail to follow the law and did hold that in that case shall actually does mean shall, which is, I know, completely shocking. But it does mean shall in that case.
So there are two other claims. One is a general constitutional take care that the executive shall faithfully execute the laws, take care to faithfully execute the laws. Judge felt that it was in – not appropriate for the judge to rule on that one so set that one aside.
There was also one involving something a little bit more specific involving agreements that were made between Texas and the Department of Homeland Security and Louisiana and the Department of Homeland Security back at the time before the Biden administration took over.
The Court, ultimately, found that those – because those were entered into during the, quote/unquote, “lame duck period” that the DHS could not really be bound by something that the previous administration had entered into. So those were not upheld.
But four of the six were and the judge, ultimately, vacated the final rule, which was this memo, and, more importantly, there are a litany of memos issued by various components within the Department of Homeland Security that have referenced Secretary Mayorkas’ September 30th memo that have now or should be fully rescinded based on the vacatur of this memo.
So at this point, there’s a little bit of an asterisk here because, yes, there’s a – immediately, of course, the government took an appeal. This was entered on – the decision – the opinion was entered on June 10th. The appeal was taken on June 13th.
But then around June 15th a decision came out in the Supreme Court that kind of adds an interesting spin, and Art touched on it briefly, because Judge Barrett – Justice Barrett touched on it briefly in her – well, not briefly. She touched on it. It was her dissent in the MPP case Texas v. U.S. regarding whether or not the Court even had jurisdiction in that case to look on – to look at the MPP issue, which has to do with this issue of 8 U.S.C. 1252(f), which is the issue of judicial review, and whether the lower courts have the ability to enjoin or restrain the operation of certain provisions of the INA.
Clearly, in the INA it says that they do not. Of course, as Art said, that’s always been kind of – not really been followed and the courts have been very hesitant to apply that.
Well, now we have a Supreme Court case in Garland v. Aleman Gonzalez. Is that – yeah – where, based on some facts involving a district court class action suit, the Supreme Court, ultimately, has now found that they – that that provision does apply and that the lower courts other than the Supreme Court cannot, by and large, restrict or enjoin most of the provisions involving the inadmissibility or deportability or the enforcement of immigration laws.
So, as Art alluded to with Justice Barrett’s dissent, her concern was that that case needed to be relooked at, reexamined, based on the decision in Aleman Gonzalez. My assumption is that when the Fifth Circuit now takes a look at the nonenforcement case they’re going to look at it through the Aleman Gonzalez-colored glasses.
How that, ultimately, plays out I don’t know. I’m not really sure what’s going to, ultimately, happen there. Art, do you have a thought on –
MR. KRIKORIAN: Well, actually, yeah, I mean, I would like to hear from everybody on this exact question. Essentially, the tool that the Trump administration’s opponents used, whether the ones in – you know, the judges who opposed the administration or the outside groups bringing the cases were injunctions. That was the point –
MR. EDLOW: Yes.
MR. KRIKORIAN: – is at the very least to run out the clock if not to stop something altogether. If the Supreme Court has now said in a lot of cases that’s a no go, what does that mean not so much for the next two and a half years of this administration but also for future administrations IN actually trying to get stuff done?
MR. EDLOW: Well, the only – yes, but because it’s limited to only certain issues within the INA –
MR. KRIKORIAN: OK. Right.
MR. EDLOW: – I think, as I said at the beginning, everything that was done previously was a very coordinated effort and they have a plethora of plaintiffs that they can choose from. They may be able to find a class action outside of the specific subchapter of the INA where that prohibition applies. It would all depend on the specifics of the case, in my opinion. I just – yeah.
MR. CUCCINELLI: You will – you will also learn a new Latin phrase.
MR. KRIKORIAN: OK.
MR. CUCCINELLI: Void ab initio.
MR. KRIKORIAN: OK.
MR. CUCCINELLI: And so instead of enjoining a regulation, they will void it.
MR. KRIKORIAN: Oh, that’s interesting. OK.
MR. CUCCINELLI: So, you know, I do expect that possibility. But in this case, you literally have the administration breaking the law. So I don’t know – I don’t think they’ll enjoin the memos. I think you may see – the memo equivalent of void ab initio is that they don’t have the – they’re acting outside their legal authority, and so the memos will be struck. So I think judges will feel around for other strategies.
MR. KRIKORIAN: How is that – how is that different from vacating the memo, for instance?
MR. EDLOW: But that’s – I think it’s also a question about whether they’ll – whether a vacatur will be viewed differently than an enjoined –
MR. CUCCINELLI: I agree. I agree.
MR. EDLOW: – injunction, versus, and I just don’t know the answer to that.
MR. CUCCINELLI: You are – you are going to hear some of that.
MR. ARTHUR: And that really is the biggest issue, and Justice Barrett identified this. In fact, the day before Biden v. Texas came down, I wrote a post – and I should know never to do this – that said maybe they’re just going to continue the case rather than issue an opinion tomorrow, or maybe they’ll bounce it back to the circuit court because there are certain issues.
Four of the justices of the Supreme Court actually, more or less, agreed with me that these were big questions that should be considered by the lower court before they’re ever considered by the Supreme Court. Again, this law goes back to 1996.
Up until June the 13th when the Supreme Court issued Aleman Gonzalez, it had never been read this way and, yet, a week later the Supreme Court turns around and blocks a huge piece of legislation based upon this decision it made.
Justice Barrett said, look, it’s better to kick this back to the lower courts, let them figure out what all this means, and then we can tell them whether they’re right or wrong, rather than five justices of the Supreme Court saying this is the way that the law is and possibly being wrong.
So, yeah, it’s a very big issue. But, you know, let’s put it in these terms. Imagine that it was a constitutional challenge in Texas v. United States, that the Fifth Circuit had found this violates the take care clause of the Constitution.
In that instance, under the logic of the Supreme Court in Biden v. Texas there’s nothing anyone could do. There would simply be a violation of the Constitution and no court in the United States would have the ability to do anything about it. And, again, whether you want to arrest people or not arrest people or remove them or not remove them, it’s what the law says so it should be done.
These could be some very big issues and it should be an offense to any lawyer, any American, that there would just be plain flat-out constitutional violations and no court that anybody can go to to get any sort of relief. And that, really, is what all of this could come down to, which is why, to Ken’s point, I think that what the – what those intermediate courts are going to do is say, yes, but this is, you know, narrowly cabined, tightly tailored; and if you call it an injunction you can’t do it, but if you call it a vacatur, well, that’s OK.
MR. CUCCINELLI: Yeah. I think we’ll see more of that.
MR. KRIKORIAN: So – yeah. So to now get a little speculative, are there – what other cases do you think should be brought against this administration’s actions that haven’t been brought yet? Anybody has any thoughts on that? I think, Art, you had – well, go ahead, Ken, if you have some idea.
MR. CUCCINELLI: Let’s start with impeachment of Mayorkas, but that’s –
MR. KRIKORIAN: Well, OK. Yeah, that’s true, but I mean, that’s a little – (laughter) – that’s a political action.
MR. CUCCINELLI: Dramatic. I’ll toss it out here.
MR. ARTHUR: It’s interesting because one particular provision that wouldn’t be affected by the jurisdiction-stripping section to Section 242 that no party has brought up thus far is when the Congress has actually addressed and taken on Secretary Mayorkas pretty hard on.
The Secure Fence Act of 2006 has a provision in it that mandates that the secretary of homeland security gain operational control of the Southwest border within six months and maintain control, and operational control means that not a single alien enters the United States unlawfully.
This is a mandate. It’s not the provisions of the INA that are blocked off from judicial review. And, yet, for some reason no state has sought mandamus based upon this provision. You could go to court and you can demand that the law be enforced. No state’s done this because I don’t think any state thinks that the law means what it says, and I have no idea why. For what it’s worth, for 26 years we didn’t think Section 242(f) of the INA meant what it said.
But, yeah, this is actually a provision that Congress – that Joe Biden voted for, Barack Obama voted for, and Hillary Clinton voted for. So this isn’t, like, some, you know, right-wing scheme. This is the law of the United States that goes unenforced and I think – I’d love to hear either of your opinions on a mandamus action on that.
MR. CUCCINELLI: Well, I think it would succeed but the courts – then the court faces the challenge of remedy and saying go do your job. Mayorkas views his job as opening the border, though he would never admit that, and he’s done that job well.
MR. KRIKORIAN: Well, he’s kind of admitted it, actually, to Brett Baer. But go ahead.
MR. CUCCINELLI: As we – yeah, as we would interpret it. But, you know, that was put there for a reason and that was back just before – maybe a couple of years before immigration became partisan, back when it was, really, more of a question of degrees of effort on the security front and you had a lot more bipartisan support for the corporately helpful illegal immigration. That was both sides, and that has evolved. That has changed in several ways.
One, it has become a partisanly divided issue, which has not helped America. That is not a plus for America that that has occurred. That wasn’t recent. It was pre-Trump. I really think that was part of what happened in the Obama administration. It was because of their abuses of the law those of us who respect the rule of law responded very strongly and it’s become this powerful virtue signal point on the left. And, unfortunately, that seems to drive a lot of their policy agenda, even though it shouldn’t and – but it makes getting the solutions much, much harder.
I mean, as much as some of us are fighters in this and that, when we work together toward common solutions like security, the 2006 legislation is a good example of that actually being done successfully and following through on it would be valuable for America and I do think states would prevail nominally. But I don’t see a court ordering the level of detail for the secretary to respond that will make it a reality and I don’t know that – I mean, even Democrat voters know the border is insecure. That part isn’t, really, in question. It isn’t like the point needs to be made.
It would have other consequences, though, in my view. You know, one of the thing – we’re talking about the federal level, but one of the things I’ve advocated, as the folks up here know, is states on the border declaring themselves invaded and repelling the people crossing their border themselves under Article 1, another source of legal authority that’s different from immigration law and different from public health law.
But if you have a finding like that it buttresses the factual case for that alternative for the states.
MR. KRIKORIAN: So –
MR. CUCCINELLI: And I’m thinking strategically rather than a specific case.
MR. KRIKORIAN: Yeah. I had a question, too, for – now, specifics to some degree but looking forward, Republicans are almost certainly going to get the majority in the House, maybe in the Senate and, you know, maybe two years after that entirely possible there will be a Republican president as well, and so then there could be potential changes to the statute.
Are there changes – statutory changes – that Congress can make that would make it harder for what this administration is trying to do in not – in ignoring the law? In other words, are there – you know, I’m not even sure what that would be. But, I mean, that’s – I’m kind of throwing that out. Are there specific – I don’t mean policy changes. There’s all kinds of policy things I’d like to see done. But kind of to the mechanics, legal changes. Joe, do you have any ideas on that?
MR. EDLOW: Yeah. As soon as we get the – as soon as the majority is back to Republicans it’s time to go big. It’s time to make real changes. It’s time to actually start to really close and I – you know, we can talk about the specific ones but it’s time to fix the mechanics to a lot of these issues, whether it be credible fear, whether it be the will to –
MR. CUCCINELLI: TVPRA.
MR. EDLOW: – you know, TVPRA or the –
MR. CUCCINELLI: Which is minors, for those who don’t know these acronyms.
MR. KRIKORIAN: Right. Unaccompanied minors.
MR. EDLOW: Right. The Flores settlement agreement.
MR. KRIKORIAN: But my – I mean, I agree totally. Yeah.
MR. EDLOW: No. No. But then in terms of –
MR. KRIKORIAN: And those are short bills.
MR. EDLOW: Those are very short bills. (Laughter.) But then, you know, doing other things specifically to the mechanics. You know, when you’re looking at it, we need to take the direction that we’re getting from these courts to show –
MR. KRIKORIAN: Right. That’s what we mean, yeah.
MR. EDLOW: – you know, specifically, when Judge Tipton says shall means shall he’s getting the – Judge Tipton’s getting that directly from, you know, Jennings v. Rodriguez and other Supreme Court decisions like that. We need to go back, and we’ve got to do it in a way carefully to not – we never want to make it seem that if we put that in the bill that it looks like prior shall didn’t mean shall. That’s always a concern.
MR. KRIKORIAN: I see.
MR. EDLOW: However, there’s got to be a way to do it and I believe there is a way to do it so that you write it so that you make it clear that DHS now knows that if – and other agencies, for that matter, know that if shall always meant shall and if you don’t actually do what needs to be done there’s going to be consequences. Whether that be appropriation consequences, whether that be –
MR. KRIKORIAN: I see.
MR. EDLOW: – other consequences, there’s got to be something else written into the mechanics so that we are making that point clear. But more so – so yes, legislation. Like I said, the time now – the time will be then to go big and to make these fixes.
But then the other point is – and I cannot stress this point enough, and we can start this now and move this in to the next Congress – the point has to be to start going down there, to start the oversight, and to start hearing what is going – and seeing what is actually going on down there because I think members of Congress are going to see that what the law says versus what is actually going on are night and day, and that’s what can’t be done anymore. We need to make sure that Congress is using its oversight authority to stop the bleeding there.
MR. KRIKORIAN: Right. Art, do you have any ideas on the shall means shall part? In other words, maybe change it to must or something. (Laughter.) I have no idea, but that’s the kind of thing I mean.
MR. CUCCINELLI: Really, really – (laughter) –
MR. ARTHUR: It is interesting because, you know, in the – in Texas v. United States before Judge Tipton, one of the provisions that they were addressing is Section 241 of the INA which mandates the – actually, 244 – one of the provisions – 241 – which mandates the detention and removal of certain individuals.
So Congress has said everybody under final order of removal has to be detained, and then they have a separate carveout for criminal aliens and it says they all had to be detained and under no circumstances whatsoever may they – that’s not the exact language. But, you know, Congress kept having to throw clauses into the law in order to say, no, we really mean it this time.
Again, the same thing happened with the parole provision. With the parole provision, we had to add extra adjectives on to say, no, we really don’t mean for you to allow everybody in. So yeah.
MR. KRIKORIAN: But so that didn’t work, so in a sense –
MR. CUCCINELLI: But you asked about process. So in the next two years’ budget it will be really the only available mechanism.
So here’s the process mechanism. We just talked about the detention and mandamus. OK. But then what does a judge do? And the wall there – let’s spell it out – is a judge isn’t going to appropriate money. It’s that simple.
MR. KRIKORIAN: Right.
MR. CUCCINELLI: A judge is not going to order Congress to spend money on X, Y, or Z, even if it’s consistent with the law they have passed. However – however – Congress can do money-saving measures in light of the fact that we’re underwater on every side.
So here’s a process item. If you lose any immigration case at any level anywhere you must return to your home country to file an appeal.
MR. KRIKORIAN: Oh. That’s –
MR. CUCCINELLI: – because we need to save the money, and then we’re using resource constraint to our advantage to actually enforce the law. And so, you know, in the whole process up to getting a removal order there’s a lot of people that make decisions and any one of those going against would trigger, on a budget basis because we know we’re going to save money doing it this way, we won’t have to detain or we won’t have to do the appeal. Either way we save money.
MR. KRIKORIAN: Right.
MR. CUCCINELLI: And in the same way courts are very reluctant to interfere with the executive branch’s sole control of international relations – foreign relations – they are also loath – not quite that loath but awfully close – to dictate the spending of money. And if Congress uses – in this case, the House and/or the House and Senate – uses their budget position on a year-by-year basis to do that – this year we’re going to do this because we don’t have the money, and then do it again the following year, and so forth – at some point, it’d be better to have that in process statutorily as opposed to simply as a money-saving measure. But we can take advantage of being bankrupt.
MR. KRIKORIAN: OK. Great. That’s the plus side of national insolvency.
MR. CUCCINELLI: Yeah. Silver lining. Silver lining. Yes. (Laughs.)
MR. KRIKORIAN: So the –
MR. CUCCINELLI: We’re going to have to come up with a lot more of those.
MR. KRIKORIAN: So some final comments. I mean, just really sort of thoughts on where you think litigation over the next – litigation and the – against the administration on immigration is likely to go over the next two and a half years that this administration is going to be around. Any thoughts?
MR. CUCCINELLI: Well, I’ll offer two. One, another simple budget mechanism would be for Congress to stop them from regulating by budget language.
MR. KRIKORIAN: OK.
MR. CUCCINELLI: Simply don’t let them spend money to issue new regulations out of the Department of Homeland Security, and they can do that and buy the time.
I doubt the Republicans have the intestinal fortitude for any of these fights. I would love to be proved wrong and I’ll be happy that any of these cameras be rolled around and you can laugh at my face when I say that. I would love to be wrong about that because it will be the first time.
But the – but they can do it and it’s being made a priority issue for a lot of these candidates who are coming in, and the leadership talks about it, although if you saw Steve Scalise’s op-ed, which I take as voice of the leadership, a month ago it was pretty watered down. It was a pretty lame commitment from them.
So that is item one that, I think, could go a long way, and I mentioned, of course, the other – using the lack of money in the budget process to achieve goals one year at a time. You can actually start knocking down the case backlog if people who lose at any stage have to go home as –
MR. KRIKORIAN: Right. Right. Interesting.
MR. CUCCINELLI: – in order to appeal. You can actually start attacking those numbers, which we, honestly, tried to do, though we don’t get any credit for that.
MR. KRIKORIAN: So, Joe and Art, any ideas on where the litigation itself, all of these – all of the various tendrils of litigation might be taking us the next couple years?
MR. EDLOW: Well, you know, obviously, I think the decision in Aleman Gonzalez is going to change things slightly, at least in the lower courts and the district court and some of the circuit courts.
You know, in terms of people out there, states mainly, holding the administration’s feet to the fire when it comes to doing things, using the proper procedure or ensuring that they are, in fact, following the law, you know, my only hope is that more states join into the ultimate fray and get in.
We’ve got several states out there that have been very, very good at jumping in there and really going after the administration. But –
MR. KRIKORIAN: And several states have filed suits we haven’t mentioned. I mean, Arizona has filed a suit.
MR. EDLOW: Absolutely.
MR. KRIKORIAN: Indiana has filed –
MR. EDLOW: Indiana. Yeah. But –
MR. KRIKORIAN: – something relatively recently and a lot of others have signed on to other suits.
MR. EDLOW: But I would note, you know, Art noted that border numbers are continuing to go out of control, and they are. Every month we’re reporting more and more numbers that are completely astronomical and completely something that me, having been previously part of the administration, I couldn’t fathom the type of numbers that we’re seeing on a monthly basis.
But what this is leading to is, hopefully, a realization by many states and by the attorney generals in those states that no state is not a border state. Every state is a border state, essentially, and I hope these states realize it and I hope more of these states join into the fray and join in on these lawsuits to push back on some of the egregious misuse and flagrant disregard for the law that we’re seeing from the administration.
MR. KRIKORIAN: And in a sense – not to start a whole new line of thought because we’re going to wrap up here shortly – but the opponents of immigration enforcement using the courts as a way of sort of obstructing enforcement it is sort of coming around to bite them, I mean –
MR. CUCCINELLI: It is.
MR. KRIKORIAN: – because it was Arizona – it was the lawsuit to the federal – it was the states got standing. The states got standing to sue on immigration matters during the Obama administration, wasn’t that? So – and so, in other words, that’s now created the opportunity for Texas and Indiana and Louisiana and everybody else to do these because there was – nobody had standing before.
And the other is in Aleman Gonzalez injunctions now, at least in certain areas, don’t apply, and that was a tool they were making extensive use for against the Trump administration.
MR. CUCCINELLI: It’s, by the way, another reason to do narrower regulating. If you can stay under those provisions for any particular regulation, you get the protection of the injunction umbrella.
MR. KRIKORIAN: Ahh, interesting. OK. Right. Right. Interesting.
So my point is that this stuff has come – it seems to have come around and, in the long run, biting them in the behind.
MR. ARTHUR: But you actually raised a very important point because, as I mentioned, during the briefing – the Supreme Court briefing in Biden v. Texas – the Biden DOJ really didn’t make a big deal of 242(f). Literally, one footnote. I think it was two lines. And I think that –
MR. KRIKORIAN: This is the injunction with – right.
MR. ARTHUR: With respect to the injunctions and, you know, you can’t issue injunctive relief.
I actually think that part of that had to do with the people at DOJ running DOJ today looking down the road to a possible DeSantis administration. They didn’t want a decision that said that you couldn’t issue injunctive relief –
MR. KRIKORIAN: Interesting.
MR. ARTHUR: – because the cases that vexed Ken and vexed Joe wouldn’t be possible next time. You could do what you want, but even the Ninth Circuit is going to end up having to stop a judge in the Northern District of California – no names will be mentioned – from, you know –
MR. CUCCINELLI: I’ll do that.
MR. ARTHUR: – doing those things. I’m not mentioning any names. (Laughter.)
But, Mark, I just want to – just to bring my thoughts to a close. This really isn’t a Republican-Democrat thing and it’s not really a new thing, although we go through these waves.
In August of 1994 in The Los Angeles Times, Harry Reid, future Senate majority leader, wrote the following: Quote, “The federal government has been grossly irresponsible in its neglect of mounting immigration problems even as these problems place unbearable burdens on states like California. It is regrettable that states have reached a point where the only avenue they have for justice is the courts.”
Two years after he wrote that, Congress actually stepped up and did their job. They used the ’96 act, which tightened immigration. Nineteen years after he wrote those words, in 2013, 82 percent of every illegal migrant entering the United States was detained. Not the hundred percent standard the Congress had said but pretty darn close. And, you know, the border encounter numbers went down. The law was enforced.
I have no doubt, depending on, you know, the will of the American people, that we can get back to a point like that.
MR. KRIKORIAN: Well, on that upbeat note, we will – we’ll end this today. Thank you for all – to all the speakers. Thanks for all of you for coming in.
We’re going to have this – the video of this if you want to tune in later and a transcript on our website at CIS.org. Go there. You can sign up for our email list. You can subscribe to our podcast as well.
Thank you, gentlemen, and we’ll do another one of these when there’s another bunch of Supreme Court cases to talk about. Thank you. (Applause.)