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Supreme Court Takes Case on Deporting Criminal Aliens, Turns Down Case on Agency Power to Change Its Own Rules

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WASHINGTON, DC – The Supreme Court on Monday announced that it is taking a case on ICE detainers and deporting illegal aliens, while turning down cases on DACA recipients getting driver’s licenses and scaling back agencies’ regulatory power.

If an alien – legal or illegal – is in state custody and then Immigration and Customs Enforcement (ICE) picks up that alien once he is released from state prison or a county jail, federal law found at 8 U.S.C. § 1226(c) requires that alien to be deported.

But at least one federal court held that if ICE does not pick up the alien immediately, then that federal law no longer applies. In Nielsen v. Preap, the Supreme Court will decide if a criminal alien becomes exempt from mandatory deportation if the U.S. Department of Homeland Security (of which ICE is one component) does not immediately take the alien into immigration custody upon release from state incarceration.

Breitbart News reported that the Court turned down an appeal from the Ninth Circuit, where the lower courts have permanently blocked an Arizona law that would have denied illegal aliens who are covered by Barack Obama’s Deferred Action for Childhood Arrivals (DACA) amnesty program.

The Court also issued 11 pages of other denials, including turning down Garco Construction v. Speer, a challenge brought by Supreme Court litigator Will Consovoy, to scale back the power of federal agencies.

Congress through statutes empowers federal agencies to make regulations to carry out those statutes. Various doctrines allow federal agencies to also interpret those statutes under certain circumstances.

But under another doctrine that began in the Supreme Court’s 1945 decision Seminole Rock, and later revised by its 1997 decision Auer v. Robbins, agencies can also interpret – and reinterpret – their own regulations. Conservatives and libertarians have long called for those two decisions (collectively referred to as “Auer deference”) to be overruled.

Justice Clarence Thomas issued a rare statement dissenting from the denial of review in Garco, joined by Justice Neil Gorsuch.

Seminole Rock and Auer require courts to give ‘controlling weight’ to an agency’s interpretation of its own regulations,” Thomas began.

He criticized the fact that courts will defer to the agency if the interpretation is not the most natural reading of the agency’s own words in the regulation, or even if the court concludes that the agency’s interpretation is probably wrong. Thomas explained, “It need only be a reading that is not ‘plainly erroneous or inconsistent with the regulation.’”

Seminole Rock is constitutionally suspect,” Thomas continued, in part because it “undermines the judicial check on the political branches” and “results in an accumulation of governmental powers by allowing the same agency that promulgated a regulation to change the meaning of that regulation at its discretion.”

“By all accounts, Seminole Rock deference is on its last gasp,” he said, predicting that these precedents will soon be overruled in a future case.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.

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