The Wrongologist

The Daily Escape:

Park Avenue, Arches NP, UT – November 2022 photo by Joe Witkowski

Last Tuesday, the Supreme Court (SCOTUS) heard arguments in United States v. Texas, a case that asks some big questions about immigration policy and the relationship between government agencies and the states. From Vox:

“The case involves a memo that Secretary of Homeland Security Alejandro Mayorkas issued in September 2021, instructing ICE agents to prioritize undocumented immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being” when making arrests or otherwise enforcing immigration law.”

Texas and Louisiana challenged DHS’ ability to prioritize certain groups for deportation. The states argued that the executive branch doesn’t have the authority to pick and choose which groups to prioritize. A Texas federal judge, Drew Tipton, agreed with Louisiana and Texas, and stayed the ability of the DHS to prioritize certain groups of immigrants.

In July, the Supremes agreed to hear an appeal by the US government of the case, while permitting Tipton’s order to remain in effect. Vox maintains that the ruling by the Texas federal judge is questionable:

“A federal statute explicitly states that the homeland security secretary “shall be responsible” for “establishing national immigration enforcement policies and priorities,” and the department issued similar memos setting enforcement priorities in 2005, 2010, 2011, 2014, and 2017.”

The case has already been heard by SCOTUS. We won’t know what their decision is until sometime next summer, but the case raises questions that we all should ponder.

First, do Louisiana and Texas have standing to bring the case? To prove you have standing is to show that you have a right to bring your lawsuit and that you have had real, and direct harm. The two states have to show that they are being adversely affected directly by this policy. The data presented so far by the states isn’t of high quality.

Second, SCOTUS needs to address whether the DHS followed the rules under the Administrative Procedures Act. The Administrative Procedures Act establishes procedures that federal administrative agencies like DHS use for rule-making. And the states are saying that the Biden administration didn’t follow all the rules in adopting this policy deciding which immigrants to deport.

The key rule is about “prosecutorial discretion.” It’s one of the fundamental rules about how police and prosecutors operate at all levels of government. More from Vox:

“Suppose that there are a rash of home break-ins in Washington, DC….Police precinct commanders, the city’s police chief, or even the…mayor may respond…by ordering DC cops to spend more time patrolling Columbia Heights — even though that means that crimes in other neighborhoods might go uninvestigated or unsolved.”

It isn’t practical or useful for judges to monitor every decision made by every law enforcement department at every level of government. Vox says that SCOTUS has repeatedly warned judges against doing just that.

Third is whether the federal courts below SCOTUS have the power to vacate a rule that affects the rest of the states. Or whether SCOTUS is the only court that is permitted to stop a government policy nationwide.

The states contend that the DHS in this case has a mandatory duty to apprehend non-citizens. They’re arguing that the use of “shall” in the law means that these provisions are mandatory.

The Congress may have passed a law that creates a mandatory duty, but that same Congress hasn’t funded the DHS to the extent that performing such a mandatory duty is remotely possible.

The implications of the SCOTUS ruling are potentially huge. If any state can challenge any federal policy that they disagree with, it has ramifications beyond immigration law. An adverse decision for the government in this case would open the door to chaos if states are allowed to sue to overturn laws that they disagree with.

Think about it: If this stands, a Republican state attorney general’s office can handpick judges who they know will strike down (in this case) a Biden administration policy; and once the policy is declared invalid, the state knows that SCOTUS will play along with these partisan judges’ decisions for at least the year it takes for the decision to get up to the Supreme Court.

Time to wake up America! Wrongo has said it many times: Elections have consequences, particularly when Trump got to appoint three Supremes in four years. To help you wake up, take a listen to Bruce Springsteen performing “Nightshift” live on the Tonight Show. “Nightshift” is a 1985 song by the Commodores. Springsteen has covered it on his 2022 album, “Only the Strong Survive”: