Jared Culver's Picture
Judge Michael Newman

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  by  Jared Culver

Another day, another court enjoining the Biden Administration. The issue this time was spelled out strikingly by Judge Michael Newman. He wrote, "At bottom, that is what this dispute is about: can the Executive displace clear congressional command in the name of resource allocation and enforcement goals?" He's talking about enforcement priority memos where the Biden Administration argued they didn't have to follow the law and remove criminal aliens because it was just too expensive. I've written about the fundamental legal tension present in Biden's immigration agenda several times. Specifically, the enforcement priorities of Immigration and Customs Enforcement (ICE) were written to effectively exempt most illegal aliens from removal. The Biden Administration is claiming that their resource constraints allow them to ignore laws passed by Congress. Coincidentally, they always seem to lack resources to enforce laws they oppose as a matter of policy. Courts have long deferred to claims of resource scarcity by the Executive Branch. This most recent court ruling is the latest encouraging sign that courts are not going to allow a president to erase statutes at a whim.

As a brief primer, the Biden Administration has spent the last year and change doing everything possible to administratively abolish ICE's statutory enforcement mission. This includes restricting the number of physical locations where ICE can conduct operations. Perhaps most egregiously, ICE was barred from doing worksite enforcement. Every memo and action shares the same tune: and that tune is whatever "abolish ICE" sounds like in D-sharp. Congressional Squad members may be back-up vocals, but President Biden must be acknowledged as the lead singer. Initially, the President moved to freeze deportations for 100 days. Courts knocked him down. When that failed, ICE simply drafted enforcement priorities that would freeze deportations as a matter of policy. This new policy memo aimed at freezing deportations indefinitely was up for review by Judge Newman.

Judge Newman, like judges are beginning to do around the country, actually starts from the long dormant premise that statutes passed by Congress should have full force and effect. Importantly, most of the Biden Administration's immigration policy proposals depend on a much more flexible view of the meaning and force of immigration laws. Unfortunately for the President, the Judge spends pages detailing the immigration statutes that are plainly mandating the government to take into custody illegal aliens and remove them from the country. Typically, the Biden Administration's in trouble if the particular judge takes statutes seriously.

The inherent contradictions of the Biden immigration agenda are unraveling in real time judicial review. Judge Newman highlighted the bizarre contortions of Biden's legal defense:

"The Permanent Guidance is an end-run around [8 U.S.C.] § 1231. It permits ERO officials to engage in an extra-textual balancing analysis to make removal decisions. Application of the Permanent Guidance to removal period detention decisions expressly contradicts 8 U.S.C. § 1231(a)(2). The Permanent Guidance allows noncitizens to be released on removal-period and post-removal bond based on factors Congress did not intend DHS to consider and in contrast to DHS's own regulations."

Of particular note here is the Judge pointing out that ICE is violating DHS regulations in addition to laws passed by Congress. At least that means Congress doesn't have to take it so personal every time Biden completely ignores them. If he cannot follow his own rules, we surely can't expect him to follow statutes.

A recurring theme in the judicial order is the logical inconsistencies and contradictions that flow from following Biden's legal justifications for his lawlessness. Judge Newman wrote about Biden's policies on felons:

"Strange results follow if the outcome were otherwise. ... It would not make sense if DHS could [under current law], on one hand, seek removal because a noncitizen committed an aggravated felony but, on the other, release the noncitizen on bond pending their removal proceeding."

Here is a rule of thumb: when you read a judge is saying an argument is "strange," "would not make sense," and is an "end-run around" the law, then prepare for business-like dismissal like this:

"The Permanent Guidance displaces the custody and removal factors Congress intended DHS officials to consider for its extra-textual totality-of-the-circumstances analysis. ERO officials cannot simultaneously comply with what is required by 8 U.S.C. §§ 1226(c) and 1231 and the Permanent Guidance."

Before you get out the party hats, remember that there is always the next appeal. Immigration policy is caught up in a legal revolution that is chipping away at judicial deference to the administrative state. Judges have barely begun to wade into the mountains of judicial precedent that give presidents free reign over immigration policy. Even if judges do roll back Executive authority, we are left with immigration policy by judicial fiat.

Though the future is blurry, as it always is and forever will be, there is one potential outcome we can sadly dispense with: It is abundantly clear that the Biden Administration will not change their approach. They are actually considering doubling down by ending the use of Title 42, which has been one of the most successful tools to mitigate the damage inflicted by the Biden Administration at the border. They are also in the final stages of implementing a rule that will create expedited asylum approval for the hundreds of thousands rushing to the border.

That stubborn intransigence in the face of total policy failure indicates we are simply nearing the next stage of Biden's destruction of immigration enforcement. Reading the assorted tea leaves, it seems the next step is to move to using Temporary Protected Status (TPS), Employment Authorization Documents (EADs), and parole power. Rather than completely ignoring statutes that require detention and removal, it looks like the next push will be to willfully misinterpret narrow statutes for temporary relief to aliens as expansive authorization for legalizing a new guest worker population. TPS has long been abused in this way. Countries were granted "temporary" status by DHS for up to 20 consecutive years in some instances with no meaningful debate about whether "temporary" could have possibly meant that. The next battleground will be making sure courts interpret temporary and narrow relief statutes based on what they actually mean as opposed to what the Biden Administration needs them to mean.

JARED CULVER is a legal analyst for NumbersUSA

Updated: Fri, Mar 25th 2022 @ 8:25am EDT

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