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‘I think there’s a disconnect’: Justice Ketanji Brown Jackson swipes at Biden’s DOJ over immigration

November 30, 2022 | | Print Article

Supreme Court Justice Ketanji Brown Jackson took part in heated oral arguments during an immigration case on Tuesday, taking a stunning swipe at President Biden’s Department of Justice and rejecting the White House’s interpretation of federal law.

Jackson shockingly took aim at Solicitor General Elizabeth Prelogar and accused her of having a “conceptual problem” in her understanding of the Administrative Procedure Act (APA), according to the New York Post.

The case before the high court was brought by Texas and Louisiana which are challenging Homeland Security Secretary Alejandro Mayorkas’ 2021 memo that contends federal agents should review the “totality” of an illegal immigrant’s threat to public safety rather than just automatically deporting them for certain crimes.

The legal dispute is a complicated one and would potentially affect 60,000 to 80,000 illegal immigrants who are also criminals. Discrediting that memo would be an embarrassment for the Biden administration but it would also allow states more leeway when enforcing immigration law.

Jackson took issue with one element of the case. She informed Prelogar that the Biden administration erred when it told courts they cannot toss out policies that violate the Administrative Procedure Act.

“The conceptual problem that I’m having with your argument [is] you point to text, context, and history, and I understand those things, but ordinarily, there’s a symmetry between a claim that has been made in a case and the remedy that is provided to a successful plaintiff,” Jackson noted in one of her first oral arguments since joining the Supreme Court.

“The way that you are reading this actually creates a disconnect for me,” she continued. “Here’s what I mean: It is clear that the claim under the APA is about the manner in which the agency has exercised its discretion. And we know that agencies have no inherent authority. They get all of their power to make valid and legally binding policies from Congress. And Congress has said in the APA that in order to make valid and legally binding policies, agencies have to follow certain procedures.”

She went on to point out the weakness in Prelogar’s argument.

“So when a plaintiff is making a claim under the APA, they’re complaining about the agency’s failure to follow the procedures that are necessary in order to reach a valid and legally binding result. Given that that’s the case, I think there’s a disconnect to say that the successful plaintiff only gets a remedy that is about the application of that rule to them,” Jackson argued.

“Their complaint is that the agency did not have the authority to do what it did because it didn’t follow the procedures under the APA,” she added. “It is as though they’re saying what the agency did is void … because they did not follow the procedures that Congress required. So I just don’t even understand — setting aside, like, how you read the statute to get to that result — it seems to me to not make sense to say that the remedy is to allow the agency to apply its void, defective rule to anyone else who’s not the plaintiff.”

Prelogar attempted to counter Jackson’s unassailable argument in the case and failed.

“So Justice Jackson, I think where I disagree with your analysis isn’t suggesting that a plaintiff in a case isn’t protesting the application of the invalid agency regulation to that party. That’s the very nature of this kind of dispute. Now, it might be the case that the argument they’re making is —,” Prelogar began before being unceremoniously cut off by Jackson.

“I’m sorry,” the justice interjected, “it’s not the nature because obviously, they are saying it was applied to them as a matter of standing. You have to have it applied to you in order to make the charge. But the claim is that the agency has failed to have notice and comment where it was required, or the agency has engaged in arbitrary and capricious decision-making. And if that’s true, what it means is that the agency does not have any valid exercise of its discretion per Congress’ requirements.”

“That result then is that the agency doesn’t have a rule that it can apply,” she asserted, according to the New York Post report. “If the court were to find in a contract’s case that the contract is void because it wasn’t properly formed, you know, the result is not you can apply it to whomever just not the plaintiff standing there. It’s not a thing anymore. And that’s to me what the statute says — you set it aside because you haven’t formed it properly and consistently with what Congress has said.”

Prelogar gave it one more try and face-planted, “I certainly acknowledge that when a plaintiff is challenging the agency’s decision-making, their legal theory could suggest that the agency regulation is invalid in all of its applications and as applied to other parties too. But I still think that in that case, just like in the case of interpreting a statute, the proper remedy is the party-specific relief.”

Jackson did not see it that way and concluded, “But we don’t have — the APA is a different kind of claim. It’s not — the statutory claim is not about Congress’s authority to make the policy decision. Did they follow the right procedures in making it?”

The newest justice on the Supreme Court’s bench was not the only one to take exception to the federal government’s argument. Chief Justice John Roberts and Justice Brett Kavanaugh also took jabs at it.

In its initial filing with the Supreme Court, the Justice Department claimed that a Texas district court judge was wrong to “universally” invalidate Mayorkas’ enforcement memo as part of the case.

Roberts jumped on that premise, telling Prelogar that the government’s stance on the issue was “fairly radical.”

Liberal Justice Elena Kagan legalistically wrung her hands over the potentially far-reaching effects of the case should justices rule that states have a right to nix the policy.

“If all you need to do is to say, ‘We have a dollar’s worth of costs,’ and you don’t even need to think about the benefits on the other side — I mean, every immigration policy, you let in more people, you let in fewer people, is going to have some effect on the state’s fiscal condition … every immigration policy. Not to mention all the other policies,” Kagan commented.

“We’re just going to be in a situation where every administration is confronted by suits from states that can bring a policy to a dead halt, to a dead stop by just showing a dollar’s worth of costs,” she charged.

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