Congress specifically orders in immigration law that aliens (i.e., noncitizens) who commit certain crimes must be detained and deported. Those provisions of law include 8 U.S.C. ?? 1226(c)(1), 1231(a)(2), and 1231(a)(1)(A), which use language like the attorney general “shall take into custody,” “shall detain,” and “shall remove” aliens that commit these different categories of criminal acts.
On September 30, 2021, Homeland Security Secretary Alejandro Mayorkas issued a “guidance” memorandum instructing immigration personnel to essentially stop the enforcement of those laws against broad categories of aliens. This includes legal and illegal aliens involved in sex trafficking, selling drugs, prostitution, and certain gun crimes.
Attorneys general of Texas and Louisiana sued the Biden administration over this policy, arguing that it is illegal for multiple reasons under the Administrative Procedure Act (APA).
Texas Solicitor General Judd Stone’s argument quotes various Supreme Court precedents. For example, Heckler v. Chaney held that “Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers.” And in Utility Air Regulatory Group, the justices explained that agencies lack the “power to revise clear statutory terms” even when the agency decides that those provisions “turn out not to work in practice.”
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Judge Drew Tipton of the U.S. District Court for the Southern District of Texas agreed with Stone’s arguments for Texas and Louisiana. Tipton held that the Biden-Mayorkas policy violated federal immigration law and was arbitrary and capricious.
The U.S. Court of Appeals for the Fifth Circuit indicated that it agreed with Tipton. Although the New Orleans-based court has not yet handed down a final decision, it refused to issue a stay of Tipton’s order with a full-length opinion in which a three-judge panel wrote that it was “inclined to agree” with the lower court.
U.S. Solicitor General Elizabeth Prelogar then applied to the Supreme Court for a stay of the lower court decision.
The Supreme Court denied that application in a 5-4 decision. The justices also took the extremely unusual step of taking up this case before the Fifth Circuit issues a final decision – a procedural move called granting certiorari before judgment – ordering the parties to file legal briefs in the case and scheduling the case for oral argument in December.
The four justices who would have granted a stay were the three liberal justices Sonia Sotomayor, Elena Kagan, and the newly installed Ketanji Brown Jackson, as well as Justice Amy Coney Barrett. It is unknown why Barrett would have stayed Tipton’s order, and her vote is especially surprising because she believes the Supreme Court should not use its emergency docket – which includes applications for stays – to decide big questions, instead waiting to see if the justices grant certiorari and then receive the benefit of full briefing and argument before making major moves.
The court will decide three major issues: First, whether states like Texas and Louisiana have standing to sue the federal government in federal court on questions like these. Second, whether the Mayorkas memo does indeed violate the federal immigration law and the APA. And third, whether federal district courts have jurisdiction to hold unlawful and set aside immigration enforcement guidelines.
A December argument will likely result in a decision sometime between March and June of 2023.
The case is United States v. Texas, No. 22-58 in the Supreme Court of the United States.
Ken Klukowski served as a lawyer in the White House and U.S. Department of Justice, and is a senior legal contributor to Breitbart News.