Ketanji Brown Jackson lashes out at Biden’s DOJ during immigration process

WASHINGTON — Supreme Court hearings in a key immigration case heated up Tuesday when Judge Ketanji Brown Jackson — President Biden’s first Supreme Court nominee — denied the White House’s interpretation of federal law.

Jackson accused Attorney General Elizabeth Prelogar of having a “conceptual problem” in her understanding of the Administrative Procedures Act, which requires the federal bureaucracy to take specific steps when changing policy.

The case, brought by Texas and Louisiana, challenges Homeland Security Secretary Alejandro Mayorkas’ 2021 memo that federal agents should review the “total” of an illegal immigrant’s threat to public safety, rather than automatically expel them for specific crimes for which a The 1996 law stipulates that they “shall” be detained.

The underlying litigation is complex and the outcome would only affect about 60,000 to 80,000 illegal immigrants who are also criminals, Texas Attorney General Judd Stone admitted in courts — but a reprimand from the memo would politically be a black eye for Biden and would potentially do so by giving states more power to enforce immigration law, which in the past was left to federal discretion.

The Supreme Court heard arguments in an immigration lawsuit filed by Texas and Louisiana on Tuesday.
The Supreme Court heard arguments in an immigration lawsuit filed by Texas and Louisiana on Tuesday.

Jackson ripped through Prelogar on a single element of the complex case, telling her that the Biden administration was wrong in saying that courts cannot throw out policies that violate the APA, which includes certain steps such as providing public notice and comment deadlines requiring changes in regulations.

“The conceptual problem I have with your argument [is] They point to text, context and history, and I understand those things, but typically there’s a symmetry between a claim made in a case and the remedy provided to a successful plaintiff,” Jackson said in one her first oral hearing since taking office 30.

Homeland Security Secretary Alejandro Mayorkas
Homeland Security Secretary Alejandro Mayorkas said last year that authorities should not necessarily deport illegal immigrants convicted of crimes listed in a 1996 law.
Getty Images

“The way you’re reading this actually creates a disconnect for me,” Jackson continued. “I mean this: It is clear that the demand for the APA is about the manner in which the agency has exercised its discretion. And we know agencies don’t have innate authority. They are given all their power to make valid and legally binding policy from Congress. And Congress has said in the APA that agencies must follow certain procedures in order to make valid and legally binding policies.

“So when a plaintiff makes a claim under the APA, they complain that the agency is not following the procedures necessary to obtain a valid and legally binding finding. Given that this is the case, I think there is a contradiction in saying that the successful plaintiff will only get an appeal involving the application of that rule to him,” argued Jackson.

“Her complaint is that the agency did not have authority to do what it did because it failed to follow procedures under the APA,” the newest judge continued. “It’s like they’re saying that what the agency did is void … because they didn’t follow the procedures required by Congress. So I just don’t even understand – apart from how you read the law to get to that conclusion – it doesn’t seem to make sense to me to say that the remedy is to allow the agency to use their void, flawed rule to anyone else who is not the plaintiff.”

More than 2.3 million migrants attempted to enter the United States illegally in fiscal 2022
The case deals with an estimated 60,000 to 80,000 illegal immigrants who have been convicted of crimes.
AFP via Getty Images

“So Judge Jackson, I think where I disagree with your analysis is not that a plaintiff in a case fails to protest the application of the invalid agency regulation
Party. That is the nature of this type of dispute. Well, they might argue…” Prelogar began.

“I’m sorry,” Jackson interjected, “it’s not nature because they obviously say it was imposed on them as a matter of reputation. You must apply for it to collect the fee. But the allegation is that the agency has not received notification and comment where it was needed, or that the agency has made arbitrary and capricious decisions. And if that’s true, it means the agency has no valid exercise of its discretion as required by Congress.

“The result then is that the agency has no rule to apply,” she continued. “If the court in a contract proceeding finds the contract void because it wasn’t properly made, you know, the result is that you can’t apply it to anyone but the plaintiff standing there. It’s not a thing anymore. And that’s what the statute tells me — you put it aside because you didn’t word it properly and consistently with what Congress said.”

A refugee camp on the US-Mexico border
Republicans have accused the Biden administration of failing to enforce other immigration laws amid a record number of illegal border crossings this year.

Prelogar countered, “I certainly recognize that if a plaintiff challenges the agency’s decision-making, their legal theory might suggest that the agency regulation is invalid in all of its applications and also in relation to other parties. But I still think that in this case, just like interpreting a law, the party-specific remedy is the right remedy.”

Jackson closed the back-and-forth by saying: “But we haven’t – the APA is a different kind of claim. It is not – the legal claim does not refer to the authority of Congress to make the policy decision. Did they follow the correct procedures during manufacture?”

Oral arguments do not necessarily indicate how a judge will ultimately vote, and judges from across the ideological spectrum of the court posed pointed questions to both sides.

Jackson expressed her point after Chief Justice John Roberts and Justice Brett Kavanaugh also attacked the federal government’s argument.

Migrants try to cross a barrier at the US-Mexico border
US border officials arrested 2.3 million people for entering the US illegally in 2022.

In its first filing with the Supreme Court, the Justice Department said a Texas District Court judge wrongly invalidated Mayorkas’ writ of execution memo as part of the case “generally.”

Roberts told Prelogar the stance was “pretty radical,” noting that the DC Circuit Court of Appeals makes similar rulings “five times before breakfast” — adding that arguments could affect “thousands” of previously decided cases.

Stone, the Texas attorney general, said a favorable outcome for Republican-led states would mean US immigration and customs officials would have a freer hand in conducting measures to deport illegal immigrant criminals. But he said Texas is only arguing that federal law requires ICE to “detain” the criminals, not necessarily deport them.

Liberal Justice Elena Kagan has expressed concern about the potentially far-reaching implications of the case if judges decide states have the right to overturn politics.

“If you just have to say, ‘We have a dollar’s worth of costs,’ and you don’t even have to think about the benefits on the other side — I mean, with any immigration policy, you let in more people, you let in fewer people, will affect the budget of the state… any immigration policy. Not to mention all the other policies,” Kagan said.

“We’re just going to get into a situation where every government is faced with lawsuits from states that can stall a policy, stall it by just showing a dollar’s worth of costs.” Ketanji Brown Jackson lashes out at Biden’s DOJ during immigration process


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