Armed with a new U.S. Supreme Court opinion, the Biden administration this week argued that an appeals court should reject a Florida legal challenge to federal immigration policies.
U.S. Department of Justice attorneys have filed a 41-page brief that focused, in part, on a June 23 Supreme Court decision that tossed out a challenge by Texas and Louisiana to immigration policies. The Supreme Court said Texas and Louisiana did not have legal standing 鈥� a key initial test that must be met in lawsuits.
Wednesday鈥檚 brief said the 11th U.S. Circuit Court of Appeals should similarly find that Florida does not have standing to challenge policies that Gov. Ron DeSantis and state Attorney General Ashley Moody contend have led to migrants improperly being released from detention.
鈥淚n United States v. Texas, the Supreme Court held that two states lacked standing to challenge DHS鈥檚 (the U.S. Department of Homeland Security鈥檚) immigration enforcement policies because they lacked 鈥榓 legally and judicially cognizable鈥� injury where their alleged injury were costs associated with having more noncitizens in their states. Florida similarly fails to satisfy the 鈥榖edrock constitutional requirement鈥� of standing,鈥� the brief said.
But in a June 26 brief, lawyers in Moody鈥檚 office tried to draw distinctions with the Texas and Louisiana case. As an example, they said the Texas and Louisiana case involved policies related to arresting and starting removal proceedings against migrants who crossed the U.S. border, while the Florida case involves 鈥減arole鈥� policies that involve releasing people.
鈥淏ecause the parole policies are not enforcement policies 鈥� because they both concern only detention and grant affirmative legal benefits 鈥� Florida has a judicially cognizable interest in remedying the sovereign and financial injuries they cause,鈥� the state鈥檚 lawyers wrote.
The Biden administration went to the Atlanta-based appeals court in May to fight two rulings by Pensacola-based U.S. District Judge T. Kent Wetherell. The rulings, issued in March and May, said immigration policies known as 鈥淧arole Plus Alternatives to Detention鈥� and 鈥淧arole with Conditions鈥� violated federal law.
Wetherell, a former state appellate judge appointed to the federal bench by former President Donald Trump, vacated the Parole Plus Alternatives to Detention policy, also known as 鈥淧arole+ATD,鈥� and issued a preliminary injunction against the Parole with Conditions policy.
Moody and DeSantis have long criticized federal immigration policies, with the state filing a lawsuit in September 2021 alleging that the Biden administration violated laws through 鈥渃atch-and-release鈥� policies that led to people being released from detention after crossing the border. The state has contended that undocumented immigrants move to Florida and create costs for such things as the education, health-care and prison systems.
The 2021 lawsuit ultimately led to Wetherell鈥檚 rulings. But the Biden administration has disputed allegations about violating federal laws and said the policies were needed to address issues such as overcrowding in detention facilities.
鈥淭he district court鈥檚 orders are overbroad, coercively interfere with DHS鈥檚 discretion to manage the border and far exceed the scope of Florida鈥檚 alleged injury,鈥� Justice Department lawyers wrote in Wednesday鈥檚 brief.
While the two sides are battling about such issues at the appeals court, the Supreme Court鈥檚 8-1 decision in the Texas and Louisiana case added another element to the case.
In the Supreme Court鈥檚 main opinion, Justice Brett Kavanaugh wrote that the court鈥檚 鈥減recedents and longstanding historical practice establish that the states鈥� suit here is not the kind redressable by a federal court.鈥�
鈥淭he states鈥� novel standing argument, if accepted, would entail expansive judicial direction of the department鈥檚 arrest policies,鈥� Kavanaugh wrote in an opinion joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. 鈥淚f the (Supreme) Court green-lighted this suit, we could anticipate complaints in future years about alleged executive branch under-enforcement of any similarly worded laws 鈥� whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the federal judiciary down that uncharted path.鈥�
Justice Neil Gorsuch, in a concurring opinion joined by Justices Clarence Thomas and Amy Coney Barrett, took a different tack, writing that Texas and Louisiana didn鈥檛 have standing because of a lack of redressability.
鈥淭he (immigration enforcement) guidelines merely advise federal officials about how to exercise their prosecutorial discretion when it comes to deciding which aliens to prioritize for arrest and removal,鈥� Gorsuch wrote. 鈥淎 judicial decree rendering the guidelines a nullity does nothing to change the fact that federal officials possess the same underlying prosecutorial discretion. Nor does such a decree require federal officials to change how they exercise that discretion in the guidelines鈥� absence.鈥�
Justice Samuel Alito dissented, saying the states had met legal tests for standing.
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