On Tuesday, an arrogant Biden administration argued, in a Supreme Court immigration case, that states have no standing to sue the federal government over illegal immigration policies. Making the sweeping claim of executive power to escape judicial review, they also argued that the courts lack the power to strike them down anyway
Arguing that the so-called enforcement guidelines, as developed and administered by the Justice Department and Homeland Security Department, violate certain provisions of federal law, Attorney Generals’ Ken Paxton of Texas and Jeff Landry of Louisiana, sued the Biden administration over immigration policy.
Texas and Louisiana, were joined by three dozen other states that filed supporting briefs. They sued the Biden administration, under the Administrative Procedure Act (APA), which in 5 U.S.C. § 706(2)(A), authorizes judges to “hold unlawful and set aside” – which means to vacate – agency actions that are arbitrary, capricious, “or otherwise not in accordance with law.” This is essentially the law, most commonly used to sue federal agencies, for acting inconsistently with federal statutes passed by Congress. It is a means of accountability that obviously the Biden administration thinks that they are above.
Regarding the immigration law provisions that are at issue is the fact that, Congress in 8 U.S.C. § 1226(c) said authorities “shall detain” aliens who are convicted of aggravated felonies. However, the Biden administration subverted the law by issuing a guidance memo, saying that instead, aliens should be detained only if the agency determines they are a threat to public safety, listing various factors for making that determination. Apparently, Biden’s DOJ and DHS, think they know better than Congress who wrote the law.
The Biden administration essentially took it upon themselves to supersede what Congress (the voice of the people) had passed as law, and rewrote the provisions (effectively watering it down) to suit their would-be policy. Essentially the courts, upholding the separation of powers, agreed with the states. Judge Drew Tipton of the Southern District of Texas rendered judgment in favor of the states, vacating (i.e., striking down) the policy. The U.S. Court of Appeals for the Fifth Circuit affirmed, and the Supreme Court has now agreed to hear the case.
All along the Biden administration has argued, that the states have no standing to bring such a lawsuit at all in court, and that the courts lack the constitutional power to do what the states were asking anyway. Effectively telling the court system, as established, that they need to step down from doing their constitutional job. The arrogance demonstrated here is deafening.
Further, U.S. Solicitor General Elizabeth Prelogar, stunned justices across the judicial spectrum, by arguing that Section 706 of the APA, did not give courts the power to vacate agency actions, despite the fact that there have been thousands of cases doing so over the past 80 years, many of which have been affirmed by the Supreme Court over that lengthy period. One can only assume that the Biden administration does not know the history of the use of the APA, and continues to argue in ignorance.
Obviously, in taking this case – the Supreme Court will now be weighing in on this argument. Some of the Supreme Court Justices responded preliminarily this way-
Chief Justice John Roberts said to U.S. Solicitor General Elizabeth Prelogar-
“Now it’s our job to say what the law is, not whether or not it can be possibly implemented or whether there are difficulties there,”. “And I don’t think we should change that responsibility just because Congress and the executive can’t agree on something that’s possible to address this problem. I don’t think we should let them off the hook.” [explaining he thought} “shall” in Section 1226 means “shall.” (Imagine that the word means exactly what it says - Emphasis mine) further adding [their claim of executive power to escape judicial review is] “fairly radical.”
-Chief Justice John Roberts
Still Prelogar argued for the Administration, by saying giving effect (interpreting the word for what is actually says) to the words of Congress’s immigration law “would be incredibly destabilizing on the ground,” adding it “would absolutely scramble immigration enforcement efforts on the ground.”
Justice Ketanji Brown Jackson told Prelogar-
“the conceptual problem I’m having with your argument” [that courts do not have power to fully set aside agency regulations and orders, explaining] “Congress has said in the APA that in order to make valid and legally binding policies, agencies have to follow certain procedures,” [and that when an agency fails to do so] “what the agency did is void.”
- Justice Ketanji Brown Jackson
Justice Brett Kavanaugh said, calling it-
“a pretty radical rewrite” {of the principal federal law that defines the power of federal agencies], adding “And the government has never made this argument in all the years of the APA,” …“And I find it pretty astonishing that you come up here and make … [that] the main part of your submission, and I’m going to push back pretty strongly,”
- Justice Brett Kavanaugh
Justice Samuel Alito, apparently also rejecting Prelogar’s argument, balked at the Justice Department’s argument that states lack standing under Article III of the Constitution to sue federal agencies under circumstances like these. He, stated that it meant that-
“an injury sufficient for Article III for purposes for an individual or for a private entity is not sufficient in your view for states,” [calling it a] “special rule” [that] “disfavored” [states in court].
- Justice Samuel Alito
Also focused on the issue of standing, but leaning the opposite direction, Justice Elena Kagan, expressed skepticism that Texas and Louisiana had standing to bring this matter to court, saying “it’s hard to think of” federal policies that states could not challenge in federal court if they could – as the states did here – come up with a dollar amount of damages the states claim resulted from a federal policy, calling such claims of harm “speculative.”
Responding to Justice Kagan’s comment by sharing one, of what he said were, many examples of harm, Texas Solicitor General Judd Stone, referenced an illegal alien who was released, and later was arrested again for human trafficking.
Stone emphatically insisted - “That’s not speculative. It occurred,”
Looking for a limiting principle for the court’s decision, if the justices ruled in favor of the states, Justice Kavanaugh also questioned Stone, saying that he was concerned what the court’s order would say, if federal agencies must achieve results that they do not have the resources to accomplish.
Solicitor Stone replied, that there not an issue here, because “there is an on-the-record finding of bad faith,” that the Biden administration was deliberately not trying to achieve the results required by law, arguing that when a court determines that an agency is deliberately not trying to follow the law, that courts can strike down the policy that is inconsistent, with how the law is written.
That the Biden Administration argues the states have no right to sue them, under this circumstance, is in error under the law, especially when it has already been proven that they are deliberately trying to not follow the law (as written) and are effectively re-writing what Congress wrote, to suit executive branche policy.
Gratefully the American people have a Constitution that upholds the separation of powers and the court will likely be able once and for all to set the Biden administration straight. This case could have significant and far-reaching consequences beyond immigration, however on immigration alone, it could still yield a major victory for the states. Reportedly, a decision is expected by the end of June 2023.
“It is in no way remarkable, and in no way a vindication of textual evolutionism, that taking power from the people and placing it instead with a judicial aristocracy can produce some creditable results that democracy might not achieve. The same can be said of monarchy and totalitarianism. But once a nation has decided that democracy, with all its warts, is the best system of government, the crucial question becomes which theory of textual interpretation is compatible with democracy. Originalism unquestionably is. Non-originalism, by contrast, imposes on society statutory prescriptions that were never democratically adopted.”
-Justice Antonin Scalia, Reading Law: The Interpretation of Legal Texts