CINCINNATI (CN) — Federal courts cannot impose nationwide injunctions to counteract guidance handed down by the Department of Homeland Security regarding enforcement of federal immigration law, President Joe Biden's administration argued Friday before an appeals court.
Prioritized deportation of illegal immigrants who "pose the greatest threats to national security, public safety, and border security" is within the scope of DHS's authority and does not run counter to established immigration law, according to the administration, which was sued by several states after the guidance was implemented in September 2021.
Ohio, Arizona and Montana challenged the "balancing test" adopted as part the guidance, claiming the discretionary nature of the analysis of an immigrant's mental health and criminal history exceeds the statutory authority granted to DHS and Immigration and Customs Enforcement, or ICE.
U.S. District Judge Michael Newman, a Donald Trump appointee, sided with the states and granted their motion for a preliminary injunction in March 2022, finding federal law "left no flexibility" when it comes to detainment of illegal immigrants during the removal process.
“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,” he said.
Shortly thereafter, a Sixth Circuit panel stayed the injunction pending the outcome of Biden's appeal.
In its brief to the Cincinnati-based appeals court, the federal government criticized the outlandish nature of the lawsuit and cited Chief U.S. Circuit Judge Jeffrey Sutton when he argued courts have no authority to adjudicate federal immigration policy.
"For most of our nation's history, a lawsuit like this one would have been unheard of: states did not sue the federal government based on the indirect, downstream effects of federal policies," the brief states. "And district judges did not purport to enter nationwide injunctions, which 'take the judicial power beyond its traditionally understood uses,' 'incentivize forum shopping,' and 'short-circuit' the judicial process by forcing appellate courts to resolve complex disputes on short notice and without the benefit of percolation or full briefing."
The Biden administration argued the states lack standing to sue and said Newman's decision would set a precedent to "allow the federal courts to be drawn into all manner of generalized grievances at the behest of states seeking to secure by court order what they were unable to obtain through the political process."
In their brief, the states highlighted the federal government's refusal to "uphold their end of the constitutional bargain" and accused it of failing to enforce well-established immigration law.
"Through the rote invocation of 'prosecutorial discretion,' a series of presidents have neutered immigration enforcement," the states said. "At times, presidents have adopted policies effecting 'a categorical suspension of existing law.' On other occasions, presidents have dropped successful policies without putting any viable alternative in place."
The guidance adopted by Biden contradicts two existing immigration laws that "impose mandatory duties" to arrest "certain criminal aliens" and deport individuals with orders of removal within 90 days of their arrest, according to the brief.
Attorney Daniel Tenny argued Friday on behalf of the federal government and told the panel of judges that "policy disputes ... have not been resolved through Article 3 courts."
"This isn't a case where the federal government has stopped enforcement of immigration law," he said.
Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, asked about the harm caused to the federal government if the appeals court allowed the injunction to remain in place.
"It certainly leads to confusion," Tenny answered. "It leads to officers not being able to conduct their operations in a normal course."
The attorney emphasized the guidance does not run counter to immigration law and requires officers to zero in on dangerous criminals because of the focus on individuals deemed threats to national security.
"It makes you start to think guidance just isn't reviewable," Sutton quipped.
Tenny agreed that most guidance is not. He said "there are circumstances ... with guidance that requires people to do something where it could be reviewed," but pointed out such a scenario is "worlds apart from here."
Ohio Solicitor General Benjamin Flowers argued on behalf of the states and firmly rejected the notion the guidance has had little impact on enforcement of immigration law.
"This is binding policy," he told the panel. "Enforcement is down ... and we will be forced to spend more money. It is undisputed that the removal of serious criminal aliens is down."
Sutton pushed back against the idea of states challenging the federal government in this fashion, and said in the past, "most people would have laughed at the idea ... of states coming in to challenge the guidance."
"Let's say you're right," the judge said. "I'm still trying to figure out what a victory looks like for you."
"All that we want," Flowers answered, "is what the district court did."
Sutton expressed skepticism of immigration enforcement statistics cited by the states' attorney and said he was "so dubious about relying on these numbers" because of the Covid-19 pandemic and other factors.
Flowers countered with evidence that ICE officials have gone on the record and claimed the drop in enforcement is based solely on compliance with the guidance.
"Their key theory," Sutton said, "is that elections matter. That resonates to me when it's very unclear what the courts could do [in this situation]."
In his rebuttal, Tenny argued no administration has ever fully enforced federal immigration law because there simply aren't enough resources.
He also disputed the statistics cited by his opposing counsel.
"There is so much going on in the world here," Tenny said. "To say changes in numbers is because of the guidance is extraordinary."
U.S. Circuit Judges R. Guy Cole Jr. and Karen Moore, both Bill Clinton appointees, also sat on the panel.
Sutton said the court hopes to adhere to the three-month timeframe established at the outset of the appeal, which would set release of the panel's opinion for early July.
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