WASHINGTON, DC – The Biden administration argued in a Supreme Court immigration case Tuesday that states have no standing to sue the federal government over illegal immigration policies, and courts lack the power to strike them down anyway.
Attorney General Ken Paxton of Texas and Attorney General Jeff Landry of Louisiana sued the Biden administration over immigration policy, arguing that so-called enforcement guidelines as developed and administered by the Justice Department and Homeland Security Department violate certain provisions of federal law.
The states – joined by three dozen more states filing supporting briefs – sued 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.” It is the law most commonly used to sue federal agencies for acting inconsistently with federal statutes passed by Congress.
At issue are provisions of immigration law where Congress in 8 U.S.C. § 1226(c) said authorities “shall detain” aliens who are convicted of aggravated felonies. But the Biden administration issued 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.
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 agreed to hear the case.
The Biden administration argued in response states have no standing to bring such a lawsuit at all in court, and courts lack the constitutional power to do what the states were asking anyway.
“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,” Chief Justice John Roberts said to U.S. Solicitor General Elizabeth Prelogar. “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.”
When Roberts explained he thought “shall” in Section 1226 means “shall,” Prelogar responded by saying giving effect to the words of Congress’s immigration law “would be incredibly destabilizing on the ground,” adding that it “would absolutely scramble immigration enforcement efforts on the ground.”
Prelogar also shocked 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.
That sweeping claim of executive power to escape judicial review is “fairly radical,” Roberts said.
Justice Ketanji Brown Jackson seemed to agree, telling Prelogar of “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.”
“And the government has never made this argument in all the years of the APA,” Justice Brett Kavanaugh said, calling it “a pretty radical rewrite” of the principal federal law that defines the power of federal agencies.
“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,” Kavanaugh added.
For his part, Justice Samuel Alito 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 apparently rejected Prelogar’s argument, saying 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 Elena Kagan also focused on the issue of standing but leaning the opposite direction, expressing 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.”
Texas Solicitor General Judd Stone responded by giving one of what he said were many examples of harm, referencing an illegal alien who was released, and later was arrested again for human trafficking.
“That’s not speculative. It occurred,” Stone insisted.
Kavanaugh also had questions for Stone, looking for a limiting principle for the court’s decision if the justices ruled in favor of the states, 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.
Stone replied that is 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.
The case has far-reaching consequences beyond immigration, although on that topic alone it would still be a major case. A decision is expected by the end of June.
The case is United States v. Texas, No. 22-58 in the Supreme Court of the United States.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department.