Jared Culver's Picture


  by  Jared Culver

In my opinion, the Judiciary Branch is the most vital institution in the government. It is before a judge that even the most powerful government official has no privilege or protection except the same laws that apply to everyone. It is in the Judiciary that laws passed by the people become manifest. In courts, only relevant evidence can be considered and no facts are admitted without evidence to back them up. Congress, elected by the people, makes the laws governing the boundaries of behavior and the President enforces. That's the theory anyway. Courts are the government institution depended upon to make sure the government itself follows the law it enforces against the people. When that gets out of whack you start to see the whole system unravel. This brings me to the recent Sixth Circuit Court of Appeals decision in Arizona v. Biden where Immigration and Customs Enforcement (ICE) discretion was placed above the law. If you want a glimpse into how the immigration system has collapsed, this opinion is a great place to start.

The author of this epilogue for immigration law is President George W. Bush appointee Chief Judge Jeffrey Sutton (you may remember him as one of the judges upholding Obamacare). He's one of those great conservative judges we've heard so much about from conservative organizations over the years. No matter how much they betray their base on issue after issue, they still give us great judges. Now we see what rich bounties that await us from all these conservative judges.

As a quick primer, ICE's attempts to immolate itself included drafting a policy memo that substituted the policy preferences of the current administration for the laws passed by the Congress. The memo largely exempts most illegal aliens from removal and creates a complicated "totality-of-the-circumstances" test for overworked staff to apply before making any enforcement decisions. Now, if you are interested, NOTHING in the law suggests any of this. Nothing the duly elected Congress has passed suggests that the people ever expected or wanted this memo. Under the Constitution and separation of powers, this should be an easy situation to resolve. And shockingly, Judge Sutton agreed. Only, he thinks it is an easy win for...ICE?

First off, Judge Sutton does not even think ICE completely ignoring the law is worth review:

"Viewed through the lens of these "legal effect" considerations, the Guidance likely is not reviewable. Start with the revealing language of its action: "Guidelines for the Enforcement of Civil Immigration Law." "Guidelines" do not evoke binding legal effect. Consistent with its label, the Guidance couches its instructions on lots of conditional language that preserves officials' discretion. The document provides a "not exhaustive" list of factors as "example[s]" of what officials should consider. R.4-1 at 3--4. It allows officials to make decisions "depending on the facts." Id. at 4. It cautions that it "does not compel an action to be taken or not taken" but "leaves the exercise of prosecutorial discretion to the[ir] judgment." Id. at 5. Even when the Guidance uses the word "requires," it does so in the context of "an assessment of the individual No. 22-3272 Arizona, et al. v. Biden, et al. Page 10 and the totality of the facts and circumstances." Id. at 3. Capping it off, the Guidance makes clear that it "is not intended to, does not, and may not be relied upon to create any right or benefit." Id. at 7. This has the telltale signs of a non-binding policy statement, not of reviewable agency action."

Simple enough, right? ICE leadership is not forcing anyone to do anything. It says "GUIDELINE" right there in the title! This is written by a man that seemingly has never had a real job with a real boss in his life. Any working person knows that "guidelines" and "suggestions" is corporate speak for "do what you are told." However, our fearless judges see your boss offering a guideline as somehow not binding. I wonder if ICE leadership will endorse this view and allow officers discretion to ignore these non-binding guidelines? Hey, ICE officers-- the Judge upholding the memo based it on the fact that it is not mandatory. So maybe just ignore the memo like he said.

And what about the fact that the statutes are very clear about requiring detention and removal? Judge Sutton has thoughts:

"The question is not whether 8 U.S.C. ยงยง 1226(c) and 1231(a) have mandatory language. It is whether this mandatory language displaces the Department's longstanding discretion in enforcing the many moving parts of the nation's immigration laws. We think it unlikely that either statute creates a judicially enforceable mandate that the Department arrest or remove certain noncitizens."

Did you catch that remarkable statement? To Judge Sutton and his funky bunch the question is if the laws passed by Congress are as important as the discretion of ICE to ignore them. This is the key fact to them: Not whether the law is clearly expressing the will of the people, but rather if that will conform to the discretion of ICE to do whatever they want.

How is it that the courts that are supposed to stand as the bulwark for freedom that holds the government accountable to the rule of law in this context? According to Judge Sutton, it is a deep-rooted principle that clear statutory language mandating government action is not as important as maintaining government discretion:

"Even so, both statutes say "shall," the States insist, connoting a command, particularly when contrasted with the use of "may" elsewhere in both statutes. But the use of "shall" does not automatically create a judicially enforceable mandate, especially when criminal or civil law enforcement is at issue [emphasis mine]. Town of Castle Rock v. Gonzales, 545 U.S. 748, 761--62 (2005) (statute saying that officers "shall arrest" did not eliminate police discretion whether to arrest a violator). "[C]ommon sense" dictates that law enforcement officers generally retain "deep-rooted" discretion "even in the presence of seemingly mandatory legislative commands." Id. at 761 (quotation omitted). Even an "express statutory deadline" does not necessarily mean "Congress intended for courts to enforce the deadline." See Nielsen v. Preap, 139 S. Ct. 954, 969 n.6 (2019); see also United States v. James Daniel Good Real Prop., 510 U.S. 43, 63 (1993). We see no "stronger indication" from Congress in these statutes that "shall" creates a judicially enforceable mandate. Castle Rock, 545 U.S. at 761. The context in fact cuts the other way. There are many moving parts in immigration law, and we doubt these laws eliminate the Department's discretion to decide whom to charge, whom to remove, and when to do so."

A good summary of this quote is it means the government always wins. The people can elect whomever to Congress and they can write whatever words they want in the statutes. Even the clear plain language will not be followed if the government's discretion is harmed. That's the court's mission in immigration policy. They protect the government's discretion at all costs, even at the cost of the will of the people.

The only argument Judge Sutton proffers to support this distorted view of the court's role to protect government power over enforcing the law and being a CHECK on the executive is the tried and true limited resources argument:

"Not every "shall" directive in a federal immigration statute, it turns out, necessarily creates a judicially enforceable mandate. That is in part because the Executive Branch has considerable enforcement discretion in deploying limited resources to address its policy challenges. And that is in part to preserve bedrock separation of powers. It takes little imagination to envision the difficulty the Judicial Branch would face in trying to ensure that immigration officers enforce federal laws like these just the way some States would like them to. If it is fair to worry from time to time about the risks when executive-branch agencies exercise legislative and judicial power, it is equally fair to worry when judges are called into disputes that turn principally on policy and resource debates between the First and Second Branches."

The Court says it is fair to worry about the risks of unchecked executive discretion (thanks for that), but if you read the opinion he shows zero alarm about this fact and dismisses all the worry of the states in the case. I say that because there is no actual discussion of how limited ICE's resources are within the opinion. Even though the discretion the courts grant ICE is based on a claimed lack of resources, the court devotes no time to examining that claim. The court does not mention that Biden's Budget requests this year for ICE reduced the number of detention beds and does not include a massive request to help this supposed poverty of resources. There is no indication that the court looked critically at the fact-dependent claim of poverty of resources.

Judge Sutton shreds the arguments made by the states at every turn, but when it comes to review of ICE's claims that billions of dollars and thousands of staffers is not enough to do their jobs, it is just accepted at face value. Government says they lack resources and then the Rule of Law is canceled.

To be clear, Judge Sutton's opinion is par for the course over the last few decades. Courts have spent years creating precedents that protect the government's power at all costs. This is, in fact, a conservative credo for many years. It is referred to by some as "judicial restraint." A fine concept in theory, that as happens so often, was taken to extremes that render the fine theory into a dangerous reality. Judicial restraint comes from a healthy skepticism of judicial supremacy where the country is ruled by judicial fiat. This came in response to sweeping activist judges on the left redrafting laws of Congress in the courtroom. Where the left could not win at the ballot box, they were triumphant in courts across the country.

In response to this, conservatives embraced the idea of judicial restraint as the counterbalance. Courts are unelected and unaccountable to the people, so judges need a humble jurisprudence that defers to the other branches and their authority. So far, so good. However, the conservatives forgot that judges have a role, albeit limited, that requires decisive action. While judges should be deferential to the powers given exclusively to Congress and the President, there is still a vital role the courts play in refereeing this conflict between Congress and the President. Just as judges should not write our laws, neither should the President. And of all the people in the government across the country, only judges have the power to check a President overreaching. So when the judges see their role as deferring and the President sees their role as overreaching their authority, we get the situation we find ourselves in currently.

It is not a policy dispute between Congress and ICE on this matter. Judge Sutton and numerous other judges have made this mistake, and from it has come endless executive actions from multiple presidents. Congress sets the policy and the President is Constitutionally required to faithfully execute the laws Congress passes creating policy. Discretion is allowed and always has been, but only consistent with the duty to faithfully execute the law. Discretion without limits makes the Executive Branch tyrannical.

There is hope however, as we have chronicled here, there has been a growing movement among judges to reconsider the last few decades of judicial slumber in various areas of Federal law. President Biden has seen many judicial defeats, and perhaps Judge Sutton will be overruled as judges begin to view skeptically resource claims and take seriously the duty of presidents to faithfully execute the law. It won't happen overnight as there are many judges like Judge Sutton that are fully immersed in the status quo and they will still be around writing these rulings for years to come.

Going forward, it is clear that the single greatest factor in picking judicial nominees is not whether the president or the judge ticks off all the talking points or talking nerdy to us about originalism and plain meaning of the statutes, but rather we need judges that grasp their exclusive duty to hold the other branches accountable. When another branch of government steps outside the law we need judges to act. Humility and restraint are cold comforts under a unitary executive.

Right now we see the failings of judicial restraint espoused by Judge Sutton. We are witnessing an Executive Branch untethered to political or policy reality. We are preparing now for perhaps the biggest summer wave in our history and the Biden Administration is moving rapidly to disassemble ever more of our enforcement apparatus. For once, Congress has already done its part. The laws are there to enforce. We just need the President to do his duty. In other words, the classic case where even a restrained judge should clearly see their duty to act. Judicial restraint fails because it rests on a trust that the other branches are doing their duty faithfully. When the facts clearly dispute that assumption, judicial restraint has no answer because at that time the demand is for action. Judge Sutton's opinion stands as the epitome of a sufficiently restrained conservative judge. A great jurist with a sharp mind fiddling as Rome burns. Hopefully, there are enough judges to pick up the fire hoses while Sutton sings them a jaunty tune.

JARED CULVER is a Legal Analyst for NumbersUSA

Updated: Thu, Sep 22nd 2022 @ 5:25pm EDT

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