Vegas isn’t taking action on Joe Biden’s nominee to replace retiring Supreme Court Justice Stephen Breyer, but oddsmakers in the press evidently favor D.C. Circuit Court of Appeals Judge Ketanji Brown Jackson.
Obliging Democrat identity politics obsessions, Joe Biden is considering only black women. Jackson checks that box. If only she also checked the one marked “judicial excellence.”
Her opinion in Make the Road New York v. McAleenan as a U.S. district court judge is a case study in judicial activism and bad judging.
The road to her awful ruling begins in July 2019. That’s when the Trump administration published a notice expanding “expedited removal” to aliens apprehended up to two years after illegally crossing into the U.S. by land.
Congress created expedited removal in 1996 so that immigration officials can summarily remove certain inadmissible aliens illegally entering the U.S. instead of allowing entry and hoping that they appear for the immigration hearing (and heed the removal order if the judge denies relief).
Until the July 2019 notice, expedited removal was applied to aliens illegally entering the country by land only if they were determined to have done so within 14 days of apprehension and within 100 miles of the border.
The ACLU, representing a trio of activist groups led by Make the Road New York, sued. Jackson blocked the expansion, finding it illegal.
Was the July 2019 notice permissible? Yes, and it’s a no-brainer. That immigration law can be complex doesn’t mean there are no straightforward issues.
Under 8 U.S.C. §1225(b), certain inadmissible aliens encountered at the border are subject to expedited removal.
This section also empowers the attorney general (Department of Homeland Security secretary per the Homeland Security Act) to designate as eligible for expedited removal any alien who has not “been physically present in the United States continuously for the two-year period immediately prior to the date of the determination of inadmissibility” — the very class of persons covered by the notice.
“Such designation,” the statute provides, “shall be in the sole and unreviewable discretion of the [DHS secretary] and may be modified at any time.” No ifs, ands, or buts.
But “even if Congress has granted DHS broad discretion,” says Jackson’s opinion, “that grant does not necessarily carry with it the freedom to make the ultimate discretionary determination however the agency wants to.”
Actually, it does — as the Court of Appeals ruled in its opinion reversing her ruling.
Her honor’s insistence that Congress retained a role for courts to evaluate DHS designations here (despite the clear language to the contrary) also anchors her entire discussion of the Administrative Procedure Act, or APA.
The APA mandates that federal agencies engage in “reasoned decision making” when formulating rules, and permits courts to strike agency action which falls short. Indeed, much of the judge’s long opinion discusses how, in her view at least, DHS failed in this regard.
But it’s blackletter law that there is no APA review if agency action is “committed to agency discretion by law.” In such cases, there is no law for the court to apply.
Jackson breezily declares that the statutory language “comes nowhere close to expressing clearly Congress’s intention to override the presumptive applicability of the APA.”
While no case she cites supports that view, she glosses over precedent cited by the government in its briefing conclusively demonstrating that the statutory language forecloses APA review.
Those authorities include Bremer v. Johnson (8th Cir., 2016) (DHS’s “Sole and unreviewable discretion” prevents courts from reviewing “[w]hat evidence the agency requires or considers” as this is “an essential part of how the agency exercises its discretion”) and Gebhardt v. Nielson (9th Cir., 2018) (“sole and unreviewable discretion” prevents the court “from reviewing how the Secretary exercises” discretion).
It’s also worth noting that in Webster v. Doe (1988), the Supreme Court held that an agency director’s authority to fire an employee whenever he “shall deem such termination necessary or advisable” (language less forceful than “sole and unreviewable”) precludes APA review.
Of course, DHS did have good reasons to expand expedited removal, including “reduc[ing] incentives not only to enter unlawfully but also to attempt to travel quickly into the interior of the United States in an effort to avoid the application of expedited removal.”
Sounding much like the activist groups who brought the lawsuit, Jackson devotes pages to the potential negative consequences to aliens from the notice.
For the record, even under the Trump administration’s stepped-up enforcement, the focus remained on criminal aliens and more serious immigration law violators — such as those reentering the U.S. after a previous removal.
Jackson’s moral calculus (besides not being germane) is also skewed. Mass illegal immigration has engendered great political strife in this country while enriching the Mexican cartels who control human smuggling. Eliminating loopholes that incentivize illegal immigration is a valid policy objective.
As mentioned, the Court of Appeals reversed her decision. Notably, the court’s majority opinion is written by two liberals — Patricia Millett and Harry Edwards.
These judges properly rejected Jackson’s preposterous holding that “sole and unreviewable discretion” allows a court to review how such discretion is exercised.
Judge Neomi Rao agreed with the majority on this point, but dissented on the grounds that Congress stripped federal courts of jurisdiction to hear the dispute in the first place in 8 U.S.C. 1252.
The jurisdiction disagreement between Rao and her colleagues is beyond the scope here, but it highlights how even the panels’ liberals, who took an expansive view of the court’s role, recognized that the expedited removal statute left no room for judicial reexamination in this case — something which Ketanji Brown Jackson couldn’t bring herself to do.
Her ruling is indicative of a mediocre judge whose politics easily trumps the law. Joe Biden can, and should, do better.
Ken Sondik, an attorney in Zionsville, Indiana, can be reached at email@example.com.
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