While the main focus at the moment is on a pending massive amnesty for millions in a budget reconciliation bill, the Fifth Circuit Court of Appeals has voted for a rehearing on an extremely important immigration challenge from Texas that could shake the foundation of the entire Biden immigration policy agenda.1 Congress passing amnesty is hanging in the balance of the Senate Parliamentarian and whatever tea leaves Senator Manchin is reading on a given day. Meanwhile, the Fifth Circuit will be examining the immigration enforcement priorities issued by the Biden administration. These are “enforcement” in name only as any fair reading of them makes it clear they are designed to drastically reduce the enforcement of immigration laws under the name of resource management.
We have looked at the Biden immigration enforcement priorities before. I detailed how the immigration enforcement policy memo effectively abolished Immigration and Customs Enforcement (ICE) from completing their statutory mission. Prior to that, we have also discussed how the Biden Administration’s entire immigration agenda depends on an extremely broad view of executive discretion. Most everything Biden has done and wants to do at the executive level includes a sweeping view of his authority. However, Biden finds himself in office at a time where courts have become increasingly skeptical of the White House claiming broad authority beyond statutes. As courts critically re-examine presidential authority, immigration becomes a battleground in a far wider war between the judiciary and the executive branch.
This ongoing battle has already brought down many policies of both the Obama and Trump Administrations, including high priority immigration policies. Biden has already seen Deferred Action for Childhood Arrivals (DACA) and his deportation freeze receive negative judicial action. His attempts at fashioning a non-enforcement immigration policy have also had a bumpy ride in court. A District Court stayed the initial attempt at crafting new enforcement policies for violating the statutes requiring detention and removal of some aliens. This was partially stayed by a 3-judge panel of the Fifth Circuit in September. Now, the entire Fifth Circuit has voted to vacate that 3-judge decision and rehear the case en banc. This is an extraordinary development for the entire court to vacate a panel decision in any situation. But it is especially extraordinary where the matter at hand is executive discretion in immigration policy.
Of course there is no way of knowing what this really means until we get to the oral argument and ultimately the decision from the full Fifth Circuit. However, it is enlightening to look at the reasoning of the 3-judge panel decision that was just vacated after review from their colleagues.2 Close reviewers of judicial opinions on Federal immigration policy would find the reading very familiar. The opinion, written by Judge Gregg Costa (appointed by President Barack Obama and supported by Senator John Cornyn3), is a classic example of the judiciary deferring to executive claims of discretion on enforcement matters. Judge Costa pointed out that
“... neither the States nor the district court have cited a single Supreme Court case requiring law enforcement (state nor federal, criminal nor immigration) to bring charges against an individual or group of individuals. What is more, in the quarter century that IIRIRA has been on the books, no court at any level previously has held that sections 1226(c)(1) or 1231(a)(2) eliminate immigration officials’ discretion to decide who to arrest or remove”
First of all, this is the type of boilerplate language of deference that one sees in many immigration opinions over the years. In that sense, Judge Costa is not out on a limb. This is standard operating procedure. Second, it is absolutely easy to puncture this line of logic. Judge Costa talks about citing Supreme Court cases to bolster their point. But the judge and the States pointed to STATUTES. Otherwise known as, you know, the laws that govern executive branch policies and procedures. Furthermore, we are in the middle of a judicial overhaul of their prior precedents on deference to the executive branch. It is not shocking that an ongoing judicial revolution on the matter of deference to the executive is lacking on judicial citations in the old regime.
Perhaps it is the type of logic that inspired Judge Costa’s colleagues in the Fifth Circuit to vacate and decide to rehear the case? If the Fifth Circuit was fine with the standard deference to the executive for enforcement decisions and priorities, then why vacate Judge Costa’s opinion? We will have to wait and see the final result, but this has to be seen as a bad sign for the standard operating procedure of deferring to the executive branch.
This is important because, as I have written before, most of the Biden Administration’s radical open borders immigration agenda rests completely on deference from courts to their claims of sweeping authorities. DACA rests on a claim of broad authority both to set blanket non-enforcement priorities and to issue work authorization to any alien they want. Indeed, most of their policies require some plenary claim of authority to either parole or issue deferred action for aliens coupled with a sweeping claim of authority to provide work authorization. If courts begin to grow skeptical of these claims, then the foundation upon which Biden has built his immigration agenda will crack.
Obviously, the courts must begin to study these sweeping claims more critically. The Separation of Powers, upon which the Constitution rests, was designed specifically to limit the power of one President to control the country. As Congress dithers and courts defer, the power of the presidency has become almost total. Congress still cuts the checks for government policy, but rarely is Congress actually directing the policy. Just reading the vacated Costa opinion provides a good glimpse into what courts have been doing, which is essentially rubber-stamping the claims of the administrative state.
One thing that is very interesting in the now vacated Judge Costa opinion is that he never mentions the duties of the executive under the Take Care Clause of the Constitution. He talks about discretion provided to the executive. He talks about the limits of their resources to enforce the law. But there is no discussion of the DUTY to enforce the laws. Just my speculation, but perhaps the full Fifth Circuit noticed that as well. Little discussion of statutes and zero discussion of the duty to faithfully execute the laws of the United States does not lead to a carefully crafted judicial opinion on executive discretion.
That is what has been missing from the discussion of presidents and immigration law. The President of the United States is sworn and duty bound to enforce the laws of the United States. Resource constraints are real, but they are not a get-out-of-jail-free card. Let’s not forget the billions Congress appropriates for immigration enforcement. Are courts really supposed to just take the word of presidents about resource constraints? Is the rule of law or the country best served by courts taking the government at their word without question? Even if there is discretion and courts must defer in some instances, we have begun to reach the limits. Courts must articulate the limits of discretion and provide real teeth to the duty to faithfully execute the law under the Constitution. We can hope the Fifth Circuit is going to do that, and send the Biden Administration back to the statutes and Constitution for policy guidance.
JARED CULVER is a Legal Analyst for NumbersUSA
1 https://news.bloomberglaw.com/us-law-week/biden-limits-on-immigrant-arrests-suffers-fifth-circuit-setback
2 https://www.bloomberglaw.com/public/desktop/document/StateofTexasvUSADocketNo21406185thCirAug232021CourtDocket/2?1638370585
3 https://www.chron.com/news/houston-texas/article/Obama-urged-to-fill-two-federal-bench-vacancies-2077511.php
