WASHINGTON (CN) — As the Trump administration defends a fast-track deportation policy that has been likened to a nationwide “show-me-your-papers” regime, the D.C. Circuit shredded arguments from both sides Friday.
Enacted last year but first announced by President Donald Trump in 2017, the rule allows the government to begin expedited removal, foregoing deportation hearings, for immigrants unable to demonstrate they have lived in the U.S. for more than two years.
Though an earlier version of this rule was applied only to immigrants detained within 100 miles of the border, immigrant-advocacy groups represented by the American Civil Liberties Union struggled in court Friday to allege that expansion exceeded the executive authority.
“How could you write something stronger than ‘sole and unreviewable discretion,’” said U.S. Circuit Judge Neomi Rao, a Trump-appointee, quoting the statute the Justice Department built its case on.
The Justice Department seeks a reversal after a federal judge put the new immigration rule on hold. U.S. Circuit Judge Patricia Millett held its nose to the grindstone Friday, however, asking Justice Department attorney Scott Stewart to map out exactly how an expedited removal order is carried out.
Explaining that an immigrant is interviewed and can be removed within days once detained, Stewart said there are cases where challenges have been brought in the U.S. District Court for the District of Columbia, as required by law to challenge immigration orders.
“By an individual who has just been grabbed up, interviewed by an immigration official and is being put on a bus?” the Obama-appointed Millett asked.
Stewart replied that the cases he could recall involved immigrants with credible-fear claims, which slow the deportation process.
ACLU attorney Anand Balakrishnan meanwhile challenged the rule as invalid because the Department of Homeland Security failed to undergo a public notice and comment period before announcing the policy change.
The lawyer argued that the necessity of rulemaking procedures rests on a belief that the government has a good-faith duty to apply any information submitted by the public.
U.S. Circuit Judge Harry Edwards, the final and most senior member of Friday’s panel, appeared skeptical.
“That doesn’t make any sense to me,” said Edwards. “I don’t know how you have any cause of action under the Administrative Procedure Act.”
Edwards, a Carter appointee, became visibly annoyed with the Justice Department’s Stewart at the hearing. Repeatedly, Stewart tried to make the case that only individual immigrants and not a collective group represented by advocacy associations can sue the Trump administration.
“I would like to move away from that,” Edwards said. “We’ve killed that.”
After a lengthy questioning by the panel, followed by the ACLU’s arguments, Stewart returned to the lectern for rebuttal arguments.
“This is a context where constitutional rights are extremely diminished,” Stewart said. The final assertion was met by a question from Judge Millet: “Wouldn’t that at least raise a constitutional question?”