Jared Culver's Picture


  by  Jared Culver

We have a new 'Florida Man' story with which to delight. Judge T. Kent Wetherell II, who perhaps we can call Mr. T., is the latest judge to tackle the most pressing question in immigration law: does the President have virtually unlimited discretion to enforce the law based on policy preferences? The case is Florida v. U.S., and Judge Wetherell, in an order denying the government's motion to dismiss, made clear where he stands on the unitary executive:

"Suffice it to say the Court is wholly unpersuaded by Defendants' position that they have unfettered discretion to determine how (or if) to comply with the immigration statutes and that there is nothing that Florida or this Court can do about their policies even if they contravene the immigration statutes. This position is as remarkable as it is wrong because it is well established that no one, not even the President, is above the law and the Court unquestionably has the authority to say what the law is and to invalidate action of the executive branch that contravenes the law and/or the Constitution. Thus, if Florida's allegations that Defendants are essentially flaunting the immigration laws are proven to be true, the Court most certainly can (and will) do something about it."

This above quote should be completely uncontroversial. Presidents do not have unfettered discretion to determine whether to comply with the law. Nor is the President immune from legal review. A political system that provides one person unfettered discretion and immunity from legal challenge is a dictatorship. Yet that is precisely what the Biden Administration (and his predecessors) argue in legal filings in immigration cases all the time. They argue that they have both unlimited discretion and that their discretionary decisions are immune from legal challenge in court. The scary thing is that judges have accepted these arguments at times. A recent Sixth Circuit opinion agreed with Biden that he had vast discretion and no one would likely have the legal right to even challenge him.

Here, Florida is challenging the DHS Notice-to-Report (NTR) policy and the parole + ATD policy. Under immigration law, aliens that DHS believes are subject to removal are issued a Notice-to-Appear (NTA) in immigration removal proceedings. The NTA is the commencement of the (potential) removal process and includes information like location to appear, date of court proceeding, and consequences for failure to appear. The NTR was not so informative and thus did not commence proceedings upon issuance. Under the law, there is also discretion for limited parole in certain narrow circumstances: significant public benefit or urgent humanitarian need. Barring parole for narrow circumstances, the law is clear that many aliens are required to be detained or remain in Mexico during the pendency of their removal proceedings. Facing the largest influx of aliens at the border in decades, the Biden Administration has decided the law is too hard to enforce. Rather than issue NTAs to start removal proceedings, they decided to issue the NTR, which simply depended on the alien following up to start removal proceedings. Then, somehow, that was too burdensome, and DHS just began using parole to make it easier.

How is this possible? At the base level, the argument is that limited resources demand discretion to the executive in how to use the resources available. The most common example is a speed limit. Anyone that has been let go with a warning instead of an expensive ticket has been the beneficiary of prosecutorial discretion. While this is not controversial at all, the concept of discretion has been steadily expanding in direct correlation with the expansion of the administrative state since the New Deal. What was once simply discretion to refrain from enforcement in a particular case has been reimagined as power to ignore laws entirely or exempt entire groups of people from enforcement as a matter of policy. The arguments presented to justify this view of discretion are laughably bad. They start with the false premise that either the President has the duty to strictly enforce the law in every instance or the President has unlimited discretion to decide how to enforce the law entirely. To them, to suggest otherwise would be allowing courts to decide executive prerogatives which is tantamount to exchanging a unitary executive for judicial supremacy.

To go along with the theme, this is another false premise. Judges pushing back against unlawful expansion of executive discretion is their duty. Judge Wetherell had the exact right response when government lawyers attempted to conflate the judicial role of review with usurpation of executive authority:

"The Court did not overlook Defendants' reliance on Heckler v. Chaney, 470 U.S. 821 (1985), for the proposition that the decision to release an individual on parole is committed to agency discretion because it involves the balancing of factors within the agency's particular expertise. This argument is not persuasive because the Supreme Court acknowledged in Heckler itself that it did not apply to "a situation where it could justifiably be found that the agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." Id. at 833 n.4 (internal quotation marks omitted); see also Texas v. Biden, 20 F.4th at 983-84 ("Heckler ... shelter[s] one-off nonenforcement decisions rather than decisions to suspend entire statutes."). Such a situation is precisely what Florida alleges here."

The Judge is laying it all out, here. What the Biden Administration is doing is conflating noncontroversial individual decisions to refrain from enforcement with national policies affecting millions of people. They are essentially arguing that if they have discretion for an individual, it necessarily means they have that same power for millions. And because the government is conflating proper restrained prosecutorial discretion with mass power to ignore the law, they can also challenge judges that oppose their power grabs as being the ones actually abusing their authority. Once the facts are sufficiently confused and twisted, judges arguing that presidents do not have unlimited authority are the ones abusing their role and usurping executive power.

The way out of this mess is to reject the false framing and bring clarity to what is actually being argued. Discretion is a choice to not enforce the law against an individual for good faith reasons permissible under law. This discretion belongs to the executive. It does not follow that this power translates to creation of policies that abandon enforcement altogether because of political disagreement with the law. Nor is it judicial supremacy or activist judging to critically review executive claims of discretion and limited resources. In reality, the pattern over a bipartisan collection of past presidents shows the true abuse of power has been the executive's steady power grab in the name of discretion.

Indeed, as I have stressed before, the entire Biden immigration agenda rests on the expansive view of unfettered discretion. Every DHS immigration agency is claiming unfettered discretionary authority to rewrite our immigration laws. This is happening at the border, as seen in this case. It is happening in the interior, as well, with enforcement priority memos exempting the vast majority of illegal aliens from removal as a matter of policy. DHS is also expending vast amounts of resources creating new work authorization programs without statutory authorization or approval. As the consequences of this Administration's policies become more apparent, the urgency rises for strict scrutiny of their legal justifications.

We will have to monitor this case going forward as one of the many cutting-edge cases on the frontier of the legal debate on prosecutorial discretion. This is simply a preliminary order denying a motion to dismiss the case by the government. So while it is encouraging, the case has only just begun. But there are clues, here, that hopefully Florida, and litigators across the country, will follow up on in the case. Namely they must reject and forcefully push back on the false premises upon which the Biden Administration relies. Reject the conflation between narrow limited individual discretion and the expansive creation of policies that exempt entire categories of people from enforcement. They must also get some forensic accounting experts to demand proof of how limited resources are for the government. If broad nonenforcement policies are premised on limited resources the government must provide significant evidence of how many resources they have and how they are being allocated. The alternative is more of the Biden border madness.

JARED CULVER is a Legal Analyst for NumbersUSA

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

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