Jared Culver's Picture

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  by  Jared Culver

The Biden Administration is barreling towards the midway point of its inaugural year and while their immigration policies received rave reviews from cartels, smugglers and traffickers, the courts are starting to signal the honeymoon is over.

In the latest 9-0 Supreme Court case, Sanchez v. Mayorkas, the Court spoke with a clear and terse (by Supreme Court standards) rebuke of lower courts legislating from the bench on immigration. At issue was the ability of aliens who receive Temporary Protected Status(TPS) to adjust status to legal permanent residence (LPR). TPS was created so that aliens within the United States at a time when it would be unsafe to return home for some temporary reason could remain in the U.S. legally until the situation stabilized in their home country. Because TPS was intended to be temporary to accommodate situations like disasters, aliens were eligible to apply once their country was designated even if they were in the United States illegally.

Congress anticipated that TPS might be construed as some path for the legalization of illegal aliens and took the extraordinary step of changing Senate procedural rules within the bill creating TPS to require a supermajority of support from Senators to approve any future adjustment of status for aliens with TPS. They also made clear that while TPS provided status to remain in the country, it did not count as an admission for adjustment purposes. This is crucial because US law requires an alien to both be in lawful status AND be admitted to be eligible to adjust.

However, in a tale as old as time, agencies and courts somehow read TPS and found it confusing. The source of the confusion was that agencies and courts wanted to provide ineligible aliens with adjustment of status. They could not let a little old thing like the plain meaning of the statute stop them from reaching their policy goal, so courts and agencies read the statute like it was The Da Vinci Code, filled with hidden meanings and signs. Three courts of appeals, including the Ninth Circuit, which is the largest in the country, decided that TPS could count as an admission, making any alien with TPS eligible for a green card. That meant eligibility for a path to citizenship depended not on laws passed by Congress, but in which judicial fiefdom the application was filed. Not one single Supreme Court Justice could be found to concur with these lower court machinations. It was a stinging rebuke for courts looking to twist the words in the statute to fit a preferred policy outcome.

In another unanimous decision from June 1st, the Supreme Court rejected judicial activism of the Ninth Circuit on a narrow issue of credibility of alien applicants for asylum in Garland v. Dai. Perhaps no other cause in the country has the ability to inspire agreement and cooperation at the Supreme Court like the need to overrule the Ninth Circuit's latest crime against jurisprudence. Here, the Ninth created a "deemed true or credible rule" that cleared the path for less than credible asylum applicants to be approved. Justice Gorsuch, writing for the entire court, said this rule "has no proper place in a reviewing court's analysis."

While these two recent cases predate the beginning of the Biden Administration, they both strike at the foundation of its stated immigration agenda. They are also not the only indication that the judiciary is skeptical of the broad claims of executive authority and discretion Biden is counting on to reshape immigration policy. When Biden first entered office he instituted a freeze on deportations for 100 days. That policy was eventually abandoned after a succession of defeats because they failed to explain how the policy squared with the statutes requiring removal of aliens found by a court to be removable.

Between the two unanimous Supreme Court rulings and the abandonment of the deportation freeze after a judicial smackdown, a pattern seems to be emerging. Presidents Obama and Trump also were confronted by hostile judges. Remember that our recent border crises have been driven, in part, by a California judge who oversees the Flores settlement. She dictates border policy through judicial fiat. The Obama Administration even opposed some of her rulings, but to no avail. Obama was also blocked by the courts from expanding Deferred Action for Childhood Arrivals (DACA) to illegal alien parents. President Trump was blocked by judges on his immigration policies routinely, as well.

The reason courts and presidents are clashing more often on immigration is the shift in courts away from deference to executive claims of discretionary authority broadly speaking. For this reason, it is helpful to keep in mind that immigration rulings are part of the larger legal project to overrule Chevron deference. In Chevron, the Supreme Court created a precedent that required judges to defer to the executive branch in most disputes challenging agency actions where a statute is determined to be ambiguous and the agency's action a plausible interpretation. After the Court's ruling, the expansion of the bureaucracy's power was cemented. Across the government, agencies were empowered to interpret the law and create regulations and policies with very little risk of losing in court.

From that legal precedent, thousands of regulations and policies were born. In immigration, the executive branch claimed essentially plenary authority to parole aliens into the country, provide work authorization to aliens not statutorily authorized to work, and ignore enforcement requirements, to name a few. With judges deferring to executive judgment, bureaucrats took the wheel. In a very real sense, Chevron serves as the shield for agency actions like DACA, Optional Practical Training (OPT), catch-and-release policies, and grants of employment authorization documents (EADs). Because Congress writes ambiguous legislation all the time, there is no shortage of inartfully drafted legislation for agencies to point to in justifying more power for themselves.

As indicated by the recent rulings, the judicial questioning of Chevron has major implications. If Congress remains largely defunct as a legislative body, and the Executive Branch is increasingly restricted by judicial review, then we are left with unelected judges as the prime movers in immigration policy creation. Properly understood, Chevron deference is a call to arms from judges to Congress demanding they do their job to legislate clearly and precisely. Sadly, Congress has not lived up to their duty to the American people.

As for Biden's entire ambitious immigration regulatory agenda, it depends on a very expansive reading of his power and a deferential judiciary. Expanding DACA, drastically reducing enforcement, issuing work authorization, and unilateral use of parole would all require judges ruling that the President has far more authority than the statutes (or the Constitution) explicitly grant. Outside of Chevron deference, there is very little legal authority to be found for Biden's vision of his power. Unfortunately for him, the current judiciary has shown increasing skepticism and if the pattern holds the Biden Administration's immigration policies are heading directly toward a buzzsaw. This would be a short term victory for American workers and public health and safety, but trading unelected bureaucrats for unelected and lifetime appointed judges could be exiting the frying pan to enter the fire.

JARED CULVER is a Legal Analyst for NumbersUSA

Updated: Tue, Jun 29th 2021 @ 1:25pm EDT

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