Texas v. U.S. : Solicitor general Elizabeth Prelogar challenges judicial power to compel government enforcement of immigration laws Mark Joseph Stern

Solicitor General Elizabeth Prelogar argued to the Supreme Court that states have no standing to challenge the resident's discretion in pursuing removal of persons here without legal authorization.

She also argued that the Courts lack the power to by "universal vacatur" or nationwide injunction declare unenforceable federal regulations and enforcement actions.  The use of such devices has been the source of celebration and warning.  Among the skeptics is Vox's Ian Millhiser who embraced a skeptical view of these powers by Neil Gorsuch the Associate Justice.

Prelogar embraced the critique offered by Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017). The critique is that a single judge overreaches when issuing a "nationwide injunction" which extends beyond the parties before the court and the District in which the controversy arises.

I have been a skeptic about Bray's argument because courts properly blocked the Trump administration's defiance of the Asylum Act 8 USC 1158 mandate that asylum requests must be considered regardless of the point of entry.

The Administrative Procedure Act, 5 USC 706, declares that a 

reviewing court shall—

(1)

compel agency action unlawfully withheld or unreasonably delayed; and

(2)hold unlawful and set aside agency action, findings, and conclusions found to be—

(A)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law

S.G. Prelogar was challenged by the Chief Justice:

...doesn't that mean that no state would ever have standing to challenge immigration policies concerning apprehension or removal of aliens?

GENERAL PRELOGAR: That's right. We think that the Court articulated a principle there that an individual or a state doesn't have a judicially cognizable injury in seeking enforcement of the law against a third party. 

The government argues that such orders must be confined to the particular parties in the matter before the reviewing court; that voiding by "vacatur" or injunction is beyond the court's authority.  So here I find myself allied with the Court of Appeals for the District of Columbia Circuit whose jurisdiction over federal agencies is wide.  The Supreme court -   has been almost stripped of lawyers with substantial political experience (think for Governors Earl warren and Frank Murphy) - but packed with former judges of the D.C. Circuit who relish the powers they once exercised.

 It has been an unwritten rule that the courts do not interfere broadly with the discretion of the executive branch on how to "faithfully execute" the laws, as the Presidential oath of office demands.  But in this case the states - whose immigration policies are preempted by federal law.

- GWC 12/13/22

Texas v. U.S. : Solicitor general Elizabeth Prelogar challenges judicial power to compel government enforcement of immigration laws

By Mark Joseph Stern

During oral argument on Tuesday in United States v. Texas, an important immigration case, the Supreme Court got sidetracked over a question that has major implications for the executive branch and its ability to function: Can a plaintiff walk into court, challenge a federal regulation, and win a victory that halts the entire government’s ability to enforce that regulation anywhere, against anyone—even parties that played no role in the litigation?

The answer to this question is important, because this tactic has rapidly become an obstacle to governance.

Under President Barack Obama, conservative judges began using a specific power to “set aside” policies, granted to them by a provision of a 1946 law, to halt executive policies nationwide, claiming that Congress intended to award them this sweeping power. Left-leaning judges used the tool to limit President Donald Trump’s efforts to rewrite federal statutes, particularly asylum law, and prompted a huge backlash among Republicans. Today, with President Joe Biden in office, conservative judges have transformed the power to “set aside” policies into an unprecedented weapon of obstruction, voiding agency rules and executive policies so frequently that they have turned the federal judiciary into a kind of shadow president with a permanent veto over the actual, elected president.

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