tv Discussion on Biden Administrations Immigration Policy the Courts CSPAN July 8, 2022 3:44pm-4:55pm EDT
cox. >> homework can be hard, but squatting in a diner for internet is harder. that is why we are providing access to the internet for low income students so homework can just be homework. cox, connect to compete. announcer: cox, along with these other television providers, giving you a front row seat to democracy. announcer 2: former trump administration homeland security officials spoke about challenging the biden administration's policies in court. this is about an hour and 10 minutes. >> good afternoon. my name is mark krikorian.
now that i have you here, we are online at cis.org, and we have a podcast that is in usual podcast places. we are having a panel today that we call "fighting biden in court: a look at cases against the administration." this was a major issue in the trump administration with a series of lawsuits challenging their immigration actions. the biden administration is facing the same kind of thinking. we have three people who have a lot of experience and knowledge on this issue. ken cuccinelli, senior fellow for homeland security at the center for a new america, was the accurate -- acting deputy
secretary of dhs under the trump administration, so at the receiving end of a lot of litigation against the previous administration a. joetta low is founder of the -- joe edlow is founder of the edlow group and has experience in the legislative branch of with immigration a. finally, a former immigration judge, former hill staffer, has written substantial portions of immigration law, and has been writing about this issue extensively. before we are going to talk about three of the big cases -- before we get to that, i wanted to ask ken and joe, what was it like being at the receiving end of this law -- onslaught in the
previous administration? ken: if i picked green, they were going to sue me. it was a presumption on everything we did literally from the get go. i was a state attorney general. i've been at the state level dealing with the federal government. that was the best job i ever had, being in attorney general. when the litigation rolls in, and at uscis, we were at the hub of regulation, even for the things regarding ice and cbp, that was an enormous consideration. for the nonlawyers, when you add
judge shopping, which is how it is going to play out, it is not a random selection -- mark: it is not a coincidence they went to san francisco. [laughter] ken: my least favorite tiger there. it played out in those jurisdictions, and it was predictable. it was critical the changes that president trump made -- mark: in the judge shopping context. ken: as a backstop for the judge shopping the. the remain in mexico program ruling actually has interesting nuggets moving forward for the executive branch.
mark: we will get to that. before i get to you, if you have questions, we have cards in the back to write questions on. joe, you were general counsel at the uscis. even though it is doj who is the lawyer in court defending the government, presumably you were constantly harried. joe: we certainly were. my office had attorneys involved in all of those cases, and we were constantly involved in settlement negotiations, reviewing the incoming litigation. it was a coordinated effort. ken is right. whatever we did, we could expected to be sued on it. this coordinated effort was well-funded, and you had judges
bending over backwards to find standing for plaintiffs to be able to sue us. they were quickly and joining us and forcing us to make concessions and to provide a certain amount of relief very quickly. in terms of our thinking moving forward from the time i was general counsel to acting director, it did not deter us from moving forward with policy decisions or moving forward with promulgating regulations. if something was the right thing to do, we would continue to do it. mark: i wouldn't say that you would be careless without the possibility of a lawsuit, but did that certainty of being sued make you lawyer up the measures more thoroughly than you would have otherwise?
joe: i always thought the measures were well thought-out, well researched and well reasoned before they were implemented, and unfortunately, it did not matter for some of these judges looking for any sort of hole in our argument or department of justice argument to find some relief and exploit that relief. ken: i would note for when you are all in their next time, i came in in the second half of the administration, so a lot of that -- the trains were out of the station the. a lot of you have heard the acronym kiss, keep it simple, stupid. it would have been advantageous to trim down on the breath of
what we've been facing and make these fights more clear-cut. how about a 10-page bill? you get the idea. it is a tremendous challenge from a litigation standpoint. >> if you could give us the cliff notes version of the most recent and most widely covered remain in mexico ruling from the supreme court, what was at issue there. what did the court find? will it come back next year? what are the other questions?
>> this is one that got to the states early. in january of 2019, we were seeing an influx of migrants coming across the southwest border. in march, the dhs secretary announced a border emergency. just before she did that, taking mergency. just before she did that statutory authority in what i will call the contiguous territory return provision, she instituted the migrant protection protocols better known as remain in mexico. they both allowed dhs to return migrants apprehended at the southwest border who were claiming asylum not from mexico to be sent to mexico to await hearings. by december 2019, it was briefly enjoyed by the courts in california, but by midsummer mpp was fully implemented.
in october 2000 19, dhs determined that mpp was an indispensable tool in addressing the ongoing crisis of the southern border and restoring integrity to the immigration system. throughout the lifetime of mpp, about 70,000 migrants were back to mexico under the program. most of them before march 2020. march 2020, the pandemic was declared, international travel shutdown, fewer people entered the night -- the united states illegally and title 42 orders were issued that allowed dhs to expel illegal migrants coming into the united states. in the 2020 presidential campaign, mpp became one of joe biden's hobby horses. he vowed to end it as president. his first day as president, he did that. he suspended new enrollments in mpp and the next month, dhs started allowing people who had been in mpp to come into the united states so they could have their hearings here. that coupled with the growing crisis at the border april 2021 prompted texas and missouri to file suit in federal court in texas arguing that the migrant crisis was increasing, mpp was necessary to keep the number of migrants low because the greater
number of migrants -- of people who would be coming into their states using state benefits and who would be a burden on the state were coming to their states. notwithstanding the fact they had filed in april, in june 2021 the dhs secretary issued a memo terminating mpp which was just rolled into the suit. they were arguing this is a violation of the administrative procedures act, it didn't go through notice of comment rulemaking, it is in violation of the immigration and nationality act.
on august 2021, a judge of the northern district of texas enjoined mpp's termination or the dhs termination of mpp. he did it based on three grounds. number one, dhs is required to detain every illegal migrant and every arriving alien that shows up. we found that goes back to 1903. that is the detention mandate. number two, dhs is allowed to release some of those aliens on a limited authority called
parole, but dhs was just releasing large numbers into the united states. the third option was to send the aliens they could not detain and should not be releasing back across the border to mexico to await their hearings. dhs couldn't take remain in mexico off of the table. the biden administration quickly ran to the fifth circuit for a state. then they went to the supreme court and that was denied. the biden administration sued or appealed it in the fifth circuit in order to overturn that judges order. on october 29, 2021, or days
before oral arguments before the fifth circuit, the dhs secretary rescinded his prior termination memo and issued a new one that said this is the real reason we are terminating mpp. it didn't make the fifth circuit happy. the biden administration ran and saying now the old one is moot, we changed the rules, you don't have to worry about it, this is the law. the fifth circuit said forget that. it is one termination decision, it doesn't matter it's memos you used to do it. we are going to focus on the june 1 memo and we will consider the october 29 memo as well.
on december 13, 2021, the fifth circuit dismissed dhs' appeal. that prompted the by the administration to go to the supreme court and in february, the supreme court agreed to take up the case which was now captioned biden versus texas. at issue were whether the detention mandate is -- whether the contiguous territory return and the statutory basis for mpp imposed an obligation on dhs to return aliens they could not detain back to mexico. whether the biden administration is properly releasing migrants into the united states on parole. to give you an idea, the parole provision states that dhs is allowed to permit aliens to come into the united states only on a case-by-case basis for urgent humanitarian reasons or
it is a very tight standard. it is a not new one. there has never been as broad an application of that rule as under the biden administration. one million 50,000 more or less illegal migrants and other inadmissible aliens at the southwest border have been released under president biden in the u.s. plainly, tough to do on a case-by-case basis, and tucked to say any of that is to the public benefit. the biden administration, however, argues that it has to release all these aliens it cannot detain and it is a significant public benefit to retain because otherwise someone even worse may show up, although i.c.e. detention space
is about 30% empty. the government was questioned extensively about this at the oral argument. another question before the court is whether the jurisdiction -- this is an important one we will get deeper into -- whether the jurisdiction stripping provision in section 240 two of the immigration nationality act barred any consideration of this case. when congress changed the law in 1996, they limited the availability of injunctive relief by any court other than the supreme court, so district courts, you know, didn't have the ability to enjoin or restrain certain actions under the ina, and circuit courts couldn't do it either, so when secretary cuccinelli was talking before about all those lawsuits, plainly, probably in violation of 242f, but it had been
accepted, you know, it says that but it doesn't really mean it. finally, the last question before the supreme court was whether the circuit court had properly lumped that october 29 memo in with the june 1 memo in finding that it was just one termination decision. the court heard oral arguments and asked a lot about that jurisdiction stripping provision. interestingly, the government hardly mentioned it. it mentioned it in a footnote of a rather extensive brief. texas and missouri did not even respond in their briefs to it, and during the argument, the justices kept arguing about it and neither side really had an answer. after the oral argument, the supreme court said, you know what? we want briefing on this issue and we will give you a few weeks to get those briefs in. with a weak's briefing, they
turned around and issued their decision. they held that continuous return provision was discretionary and it cannot be made mandatory even if dhs is violating the law. it found the october 29 termination was a new and judicially reviewable action that the circuit court should have considered. finally, something that sec. cuccinelli probably would have liked, it found that jurisdiction stripping provision actually did strip jurisdiction to issue injunctive relief. the outcome of this is probably not that significant as a matter of fact. only about 5000 people were returned back to mexico under the biden administration. mpp -- title 42, which we will discuss, was a bigger issue. the case will now go back to the fifth circuit to consider that october 29 memo, which we will
probably get into more deeply. it is unclear from the court's decision what the fifth circuit will be able to do once it gets to that point because of that jurisdiction stripping provision. with that, you'll back. we will talk a little more about what we might see coming down the road. i want to go to kent to talk about the title 42 case. briefly what it is, than the cliff notes version of what the lawsuit is, where it is now. >> the court ordering this administration to keep up a very effective program and it was done somewhere well below halfheartedly. title 42 is numerically extremely significant. it is a public health title. title 18 is criminal, title 42 is public health. title eight is where you find immigration law. this is not immigration law. this is public health law.
it's important to realize that people are removed from this country using something other than immigration law. the two legal bases exist in the same place along the border. they have completely different legal sources. title 42, we are referring to the border public health order that was issued in march 2020 at the beginning of the covid pandemic by the cdc that provided for the turning around with no process like we are used to in the immigration context back across the border of those who came in in between ports of entry illegally. this is critically significant
because as bad as the numbers are today, even today and i think a lot of people on the rule of law side of this debate aren't aware of these numbers, we are still removing over 50% of illegal border crossers every day under title 42. the catch and release numbers will go through the roof if title 42 comes down. louisiana is the named party against the cdc in this case. it is not under immigration law, but you hear a lot of the same teams. the administrative procedure
act. the claims by the state is that there was not appropriate notice and comment and that the action is arbitrary and capricious. taking those two in turn, the government and knowledge -- acknowledged that the comment was not done here. first is for affairs consideration which we also heard about in the remaining mexico program. the courts are loath to interfere with the executive branches ability to conduct international relations. any of these things going on at the border have international consequences. so the government argues that factor. much sliced -- much like the jurisdictional briefing, the government made little more than one sentence of argument on this front. they just threw it out
generically for the court. it is -- it has historically been an important consideration for the court. if i were writing their briefs, i would have been much more vigorous in pressing the point than they were. they also argued that there is a good cause exception and their takedown of title 42 fits within the good cause exception. they said the good cause is made up by the impracticality of taking public comment. that dhs needs time for implementing the takedown of title 42. they want to hurry because they need time to take down title 42. you don't need to go to law school to see the inconsistency in some of that argument. i would note as did the states
that when title for two was initially implemented, there are a variety of timing sets that a rule can be implement it on. it was implemented on something like an emergency timeline, yet public notice and comment was taken after the rule was implemented march 2020. before the rule was finalized, i think about two months later. they can't point back to the trump administration and state they didn't take notice and comment because the trump administration did. they also are rather stuck with their own arguments in terms of the inconsistency of their need for time according to them. not surprisingly, this is what the states are arguing to the contrary. this all arises out of an executive order from february 2021 in which biden asked dhs to
consider -- hhs to consider taking down this effort. dhs is involved because it's the border, but it is a regulation under hhs authority under the cdc. there were 14 months from the time biden issued the executive order until the administration came out with the decision to remove the order on the border. the argument is you had plenty of time to conduct notice and comment and you chose not to do it. quite intentionally. they also treat the tail end of this pandemic as if it's the beginning of a pandemic meaning the government is doing that. states point out there was an
emergency at the beginning of the pandemic when we did know what we were dealing with, we had a commendable disease. that concern doesn't exist in taking down the border order. again, pushing back on the good cause exception. i mentioned the fact that public comment was taken at the outset of the issuance of this order and consistent with what would be appropriate under the circumstances. issue an order, take comment, issue a final order. the states also pointed out the non sequitur, the governments argument they need time to takedown dhs argues for taking the time to take public comment. i think the government has handled this badly. this is just me the litigator talking. they have not managed this
process well. i do think the states are going to win this round. it would not mean they cannot takedown title 42. but it probably will mean that courts are going to continue to order them to go back and essentially start from scratch to go through notice and comment. for those of you who have never had the torture of going through that process, on the agency side where mark started our discussion, we go through all of those comments. we go through all of them. we categorize them by type and respond substantively to each argument or question or new facts raised in those comments. it is an arduous undertaking.
judges have kicked regulations for failure to properly respond to the comments. it's not just 60 days of taking in emails. you have to respond to the substance of what is put forth by the public which is why it is considered a substantive part of the regulatory process. a very strong case here as it stands today by the states, but much like what we see with the remaining mexico program, the courts are not just going to force the executive branch to maintain an order if they go through proper process and come to a release -- a reasonable conclusion that it should come down. now i'm going to put on my policy hat and say i think the last covid thing to come down in america should be the border or. if the cdc is recommending anything anywhere, then border order should state. as long as americans have to give up freedom to deal with
this condition, this pandemic, then the border order should stay in place. that is a policy call, it wouldn't hold up legally, but i will say as a litigator who might argue a case, i would use circumstances that the administration is doing in other places where they are trying to force people to give up freedom or to do things like wear masks where there isn't a basis for it yet they are taking down the border order. i would certainly use that in a court hearing to embarrass the other side and enjoy doing it. [laughter] >> thank you. you talked about the administration's efforts to end remaining mexico. -- remain in mexico. can talked about the effort and title 42. i want to talk about the administration's effort to stop immigration forstmann altogether.
or one texas also sued on. >> want to switch gears because they were both talking about things that bind the administration was trying to end that the previous administration had started. here, we're talking about something that the biden administration put in place themselves that they are trying to defend based on litigation they came out. went you start with the position that might sound slightly unpopular, but it's something that i lived by when i was in the administration which is the administration has the prerogative to implement policy as it sees fit. we might not all agree with it, but policy decisions are the prerogative of that administration. when a policy is implemented, that policy has to be implemented correctly using the correct procedure and cannot
ultimately ignore the law. when we look at the three memos at issue here in this nonenforcement legation which is also called texas versus u.s., was a considered related? so many of them were, i don't member at this point. this is one where clearly the administration took action that was meant first-rate not only -- frustrate the enforcement and was done so in a way that violated statutory law and all of the known principles under the administered a procedure act. we are dealing with three memos. the first was issued right on inauguration day by then acting secretary of the dhs. three main purposes.
to review the part sees -- the policies and practices of the immigration arm of dhs. to set up interim enforcement priorities mirror what we see in the final memo essentially border security, public safety and national security are the three main. if you would ask me how those work being implemented, i couldn't tell you now. then it was my favorite an immediate suspension of all removals for 100 days. on day one of the administration. that's what the president wanted to do through the secretary. this was followed very closely on february 18 by a memo from the acting ice director which provided interim guidance setting up the priority
categories following along with what the memo had outlined. the important part there is that it created this presumption that if you weren't in the priority category, you were essentially outside of it and therefore not priority for enforcement action. you are not subject to an enforcement action. this resulted even before we get to the final enforcement action of september 30, this resulted as texas and louisiana point out in the lawsuit in multiple numerous detainers being rescinded. the refusal of dhs and ice to take custody of criminal aliens throughout the country including the refusal of ice to take custody and affect final removal orders for aliens who had those removal orders issued by an immigration judge. you have essentially at this
point lawlessness. the ina being largely ignored by the enforcement wing of the department of homeland security that is charged with carrying out the immigration enforcement activities of this country. what else they are doing and removal operations, i don't know but that is what they are supposed to be doing this memo is preventing them from doing that. then we have the final priority memo of september 30. issued by secretary mayorkas. finalizing the original interim priorities of border security again national security public safety. this creates in the narrow category of public safety where mainly aggravated felonies takes a narrow category of criminal aliens but also creates a nonexhaustive list of mitigating
factors that ice has to used to consider when moving forward with an enforcement action. it's not just you have committed a crime therefore you are being placed into removal proceedings. we have to look at a litany of factors to determine whether you should be subject to removal proceedings. again that has to be reviewed by several levels of people. it is absolutely absurd. october 2021, texas and louisiana file suit in the southern district of texas and they allege six counts. i am glad mark allowed me to talk about this case because these six counts represent not only the best we have in terms of procedural ways to challenge the government's action but also substantive. procedurally, there's the apa.
if something is being done, you have to file -- you have to follow the procedural mechanisms. there's notice and comment, you have to give everyone the ability to understand what's going on and let the public comment on that. the government actually does review these comments and does make changes at times aced on those comments between noticed of proposed rulemaking and a final rule, there are changes made in response and a final rule must properly include those comments and say we listened to, we understand these comments and this is our response to those comments. there was nothing here, these are just memos. but the court did find it was a rule. an additional violation that was alleged was that the rule itself was arbitrary and capricious which is a fancy way for saying that the government lacked its reason decision-making when it decided to issue this rule. i'm sorry, this memo which was a
rule. that they didn't consider alternatives, they didn't consider everything that would have potentially stemmed from this decision. they didn't consider anything. since there's no missed rate of record with a memo, they have nothing to come back on. the substantive claims rest on the fact that as i mentioned before, after ice issued its memo in february, it stopped going after a large group of aliens both criminal aliens and aliens with final orders. texas and louisiana seized on that. two revisions in the ina that mandate detention and removal of aliens in certain categories. based on that, they made claims saying that the department of homeland security and the government was failing to comply with the law. this is something that when the
judge ultimately ruled on this case and we are only at district court phase, so the judge in the southern district only rolled back on june 10 so this is still fresh. found that two claims as well as the other two procedural claims were all sustained based on the fact that the government did fail to follow the law. did hold that in that case, shall does mean shall which is fully shocking. there are two other claims. one is a general constitutional take care that the executive shall faithfully execute the laws and take care to faithfully execute. the judge felt that it was not appropriate for the judge to rule on that one so we set that one aside.
there was also one involving something more specific involving agreements that were made between texas and the dhs and louisiana and the dhs back at the time before the by demonstration took over. the court ultimately found that because those were entered into during the lame-duck time, dhs could not really be bound by something that the previous administration had entered into so those were not upheld. four of the six were upheld and the judge ultimately vacated final rule which was this memo and more importantly, there are a litany of memos issued by various components within the dhs that have referenced sec. mayorkas september 30 memo that
have no or should be fully rescinded based on they kicked her of this memo. at this point, there's an asterisk. yes, the government took an appeal. this was entered on june 10, the appeal was taken on june 13. around june 15, i decision came out in the supreme court that adds an interesting spin. justice barrett touched on it briefly in her dissent in the mpp case regarding whether or not the court even had jurisdiction in that case to look at the mpp issue which has
to do with this issue of the issue of judicial review. and whether the lower courts have the ability to enjoin or restrain the operation of certain operations of the ina. in the ina, it says they do not. that has always been not really been followed. the courts of been very hesitant to apply that. now, we have a supreme court case in -- where based on facts in the district court class-action suit, supreme court ultimately has found that that provision does apply and the lower courts cannot buy a large restrict or enjoin most provisions involving the inadmissibility or portability or enforcement of immigration laws.
as our alluded to -- art alluded to with justice barrett dissent, her concern was that that needed to be re-examined based on the decision in allemande v gonzales. when the fifth circuit now takes a look at the nonenforcement case, they are going to look at it through the allemande v gonzales colored glasses. how that plays out, i don't know. do you have a thought? >> i would like to hear from everyone on this exact question. essentially, the tool that the trump administration opponents used were injunctions. that was the point. at the very least to run out the clock if not to stop something altogether.
supreme court has now said in a lot of cases, that's a no go, what does that mean for the next years of this administration, but also for future administrations? >> yes, but because it is limited to only certain issues within the ina, everything that was done previously was a very coordinated effort and they have a plethora of plaintiffs they can choose from. they may be able to find a class-action outside of the specific subchapter of the ina where that prohibition applies. it all depends on the specifics of the case. >> you also learn a new latin phrase. instead of enjoining regulation, they will void it. i do expect possibility. in this case, you have the administration breaking the law.
i don't think they will enjoin the memos, i think you will see -- they are acting outside of the legal authority. the memos will be struck. i think judges -- how does that differ from vacating? >> it's also a question about whether they catcher -- vacating will be viewed from the. >> justice barrett identified this. the day before biden versus texas came down, i wrote a post and i should note never to do this, that said maybe they're just going to continue the case rather than issue an opinion or maybe they will bounce back to the circuit court because there are certain issues. for the justices of the supreme court more or less agreed with
me. these were big questions that should be considered are the lower court before their considered by the supreme court again. this log is back to 1996. up until june 13 when court issued allemande v gonzales, it had never been viewed this way. in the supreme court turns around and blocks huge piece of legislation based on this decision it made. justice barrett said it's better to kick this back to the lower courts, let them figure out what this means to make intel other they are right or wrong -- then they can tell whether they are right or wrong. it's a very big issue. let's put it in these terms. imagine it was a constitutional challenge in texas v united states that the fifth circuit had found this violates the take care clause of the constitution. in that instance under the logic
of the supreme court in biden versus texas, there is nothing anyone could do. there would simply be a violation of the constitution and no court in the united states would have the ability to do anything about it. whether you want to arrest people or not, remove them or not, it's with the law says so it should be done. these would be very big issues and it should be an offense to any lawyer, any american that there would be plain flat out constitutional violations and no court that anybody can go to to get any sort of relief. that really is what all this could come down to. i think what those intermediate courts are going to do is say yes but this is tightly tailored and if you call it an injunction you can't do it. >> now to get a little
speculative, what other cases do you think should be brought against this administration actions that haven't been brought yet? does anyone have any thoughts? >> impeachment of mayorkas. [laughter] that's a political action. >> one that wouldn't be affected by the jurisdiction stripping section 242, that no party has brought up thus far is one that congress has addressed. the secure fence act of 2006 has a provision that mandates that the secretary of homeland security gain operational control of the southwest border within six months. and maintain control. operational control means that not a single alien enters the united states unlawfully. this is a mandate, it is not in
the provisions of the ina that are blocked off from judicial review. yet for some reason, no state has sought -- based on this provision. you can go to court and demand that the law be enforced. no state has done this because i don't think any state thinks that the law means what it says. i have no idea why. for what it's worth, for 26 years we didn't think section 242 meant what it said. this is a provision that congress, that joe biden voted for, barack obama voted for and hillary clinton voted for. this isn't some right-wing scheme. this is the law of the united states that goes on enforced and i would love to hear either of your opinions? >> i think it would succeed, but then the court faces the challenge of remedy. saying go do your job, mayorkas
views his job is opening the border he won't admit that. >> he has kind of admitted it. >> that was put there for a reason. that was back just before may be a couple of years before immigration became partisan. back when it was more of a question of degrees of effort on the security front. and you had a lot more bipartisan support for the corporately helpful illegal immigration. that was both sides. that has evolved. that has changed in several ways. one, it has become a partisan lay divided issue which has not helped america. that is not a plus for america that has occurred.
that wasn't recent, it was pre-trump. that's part of what happened in the obama administration was because of their abuses of the law, those of us who respect the rule of law is bonded strongly and -- responded strongly and it has become a virtue signal on the part of the left and unfortunately, that seems to drive a lot of their policy agenda even though it should not. it makes adding the solutions much harder. as much as some of let's -- some of us are writers, will my work toward common solutions like security, the 2006 just laois and is a good example of that being done successfully -- the 2006 legislation is a good example of that being done successfully. i think states would prevail nominally but i don't see a court ordering the level of detail for the secretary to
respond that will make it a reality. i don't know that, even democrat voters know the border is insecure. that isn't in question. it isn't like the point needs to be made. it would have other consequences in my view. we are talking about federal level, but one of the things i have advocated is states on the border declaring themselves invaded and repelling the people crossing the border themselves under article one. another source of legal authority that is different from immigration or public health law. when you have a finding like that, it buttresses the factual case for the alternative for the states. again, i am thinking strategically. >> specifics to some degree but looking forward, the public is going to get the majority in the house and senate.
two years after that, entirely possible to have republican president as well. then there could be potential changes to statute. are there changes, statutory changes the congress can make that would make it harder for what this administration is trying to do in a growing the law? -- in ignoring the law? i don't mean policy changes. kind of to the mechanics legal changes. >> as soon as the majority is back for republicans, it's time to go big. it's time to make real changes, to actually start to close, we can talk about the specific ones, but it's time to fix the mechanics to a lot of these issues. whether it be credible fear, the
[indiscernible] >> i mean -- those are short bills. >> doing other things specifically to the mechanics. we need to take direction that we are getting from these courts showing specifically when judge tipton says shall means shall, he is getting that directly from jennings v. rodriguez and other supreme court decisions like that. we have to go back and do it in a way carefully, we don't want to make it seem that if we put it in the bill it looks like prior shall did not mean shout. -- shall did not mean shall. there's a way to write it to make it clear that dhs now knows
that -- and other agencies that shall always meant shall and if you don't do what needs to be done, there's going to be consequences. whether that be appropriation consequences or other consequences, there's got to be something written into the mechanics so that we are making that point clear. the time now, the time will be to go big and to make these fixes. the other point is, and i cannot stress this enough, the point has to be to start going down there to start the oversight and to start hearing what is going and seeing what is actually going on down there because i think members of congress are going to see that what the law says versus what is going on our night and day. that's what can't be done anymore.
we need to make sure congress is using its oversight authority to stop the bleeding. >> do you have any ideas on the shall means shall? maybe change it to must? >> it is interesting because in texas versus united states before judge tipton, one of the issues they were addressing is section 241 of the ina mandates -- one of the provisions which mandates the detention and removal of certain individuals. congress has said anyone under final order removal has to be detained. then they have a set -- cut out for criminal aliens and under no circumstances. congress kept having to throw
conch -- clauses into the law to say we really mean it this time. the same thing happened with the perot provision but with the provision we had to add extra adjectives on to say we do not mean for you to allow everybody in. >> that did not work. >> but you asked about process. >> in the next two years' bud get, it'll be the only available mechanism. here is the process mechanism. the reason we talked about detention, ok, but then what does a judge do? the wall there, let us spell it out, a judge will not appropriate money. a judge will not order congress to spend x, y, and z. however, congress can do money-saving measures in light of the fact that we are underwater on every side. here is a process item.
if you lose any immigration case at any level anywhere, you must return to your home country to file an appeal. >> that is interesting. >> because we need to save the money. then we are using resource constraint to our advantage to actually enforce the law. and so in the whole process after getting a removal order, there is a lot of people that make decisions and any one of those going against would trigger on a budget basis because we know we are going to save money doing it this way and we won't have to detain or we won't have to do the appeal. either way, we save money. >> right. >> in the same way courts are very reluctant to interfere with the executive branch's sole control of international
relations, foreign relations, they are loathe to dictate the spending of money. if congress uses in this case the house and/or the house and senate uses their budget position on a year-by-year basis to do that, this year we are going to do this because we don't have the money and then do it the following year and so forth. at some point, it would be better to have that in the process statutorily as opposed to simply as a money-saving measure. but we can take advantage of being bankrupt. >> ok. that is the plus side of insolvency. >> have to come up with a lot more of those. >> some final comments. just really thoughts on where you think litigation over the next -- litigation against the administration over the next two and a half years that this
administration is going to be around. any thoughts? >> i will offer two. one, another simple budget mechanism would be for congress to stop them from regulating by budget language. simply don't let them spend money to issue the regulations out of the department of homeland security. and they can do that and buy the time. i doubt the republicans have the intestinal fortitude for any of these. i would love to be proven wrong and will be happy that any of these cameras be rolled around and you can back my face when i said that. i would love to be wrong about that because it would be the first time. but they can do it. it is being made a priority issue for a lot of these candidates who are coming in. leadership talks about it. although if you saw steve scalise's op-ed, which i take as voice of the leadership, it was
pretty watered down. it was a pretty lame commitment from them. that is item one that i think could go a long way. i mentioned of course the other. using the lack of money in the budget process to achieve goals one year at a time. you can actually start knocking down the case backlog if people who lose at any stage have to go home in order to appeal. you can actually start attacking those numbers, which we honestly tried to do but we don't get any credit for that. >> any ideas on where the litigation itself, all of the various litigations might be taking us the next couple years? >> i probably say i think the decision in aleman gonzalez is going to change things slightly. at least in the lower courts and district courts and circuit courts. in terms of people out there,
states mainly holding the administration's feet to the fire when it comes to doing things, using the proper procedure, or ensuring they are in fact following the law, my only hope is that more states join into the ultimate freight and get in -- fray and get in. we have several states that have been good at jumping in there and getting after the administration. >> several states have filed suits that we have not mentioned. arizona, indiana. >> art noted that border numbers are continuing to go out of control, and they are permitted every month, we are reporting more and more numbers that are completely astronomical and something that i could not fathom the type of numbers we are seeing on a monthly basis. what this is leading to is
hopefully a realization by many states and by the attorney general's in those states that no states -- generals in those states that every state is able to essentially. i hope more of these states join into the fray and the lawsuits on the egregious misuse and flagrant disregard for the law we are seeing from the administration. >> in a sense, not to start a whole of thought because we will wrap up here shortly, but that whole new line of thought because we will wrap up here shortly, but using the courts as a way of obstructing enforcement, it is sort of coming around to bite them because it was the lawsuit to the federal -- the states got standing the suit on immigration matters during the obama administration, wasn't it? in other words, that has created
the opportunity for texas and indiana and the louisiana and everybody else to do these. the other is in aleman gonzalez. injunctions now at least in certain areas do not apply, and that was a tool they were making extensive use for against trump administration. >> by the way, another reason to do a narrow regulating, if you can stay under those provisions, you get the protection. >> ok, right. interesting. my point is this stuff seems to have come around in the long run, biting them in the behind. >> you actually raised a very important point. because as i mentioned, during the supreme court briefing in biden versus texas, the biden doj really did not make a big deal of 242. literally i think it was two lines. >> the injunction. >> with respect to the injunctions. you cannot issue injunctive relief. i think part of that had to do with the people at doj running
doj today looking down the road to a possible desantis administration. they did not want a decision that said that you could not issue an injunctive release because the cases would not be possible. you could do what you want, but even the ninth circuit will end up having to stop a judge in the northern district of california, no names will be mentioned, from doing those things. i am not mentioning any names. >> just to bring my thoughts to a close, this really is not a republican and democrat thing and not really a new thing, although we go through these waves. august of 1994 in los angeles, harry reid wrote the following "the federal government has been grossly irresponsible in its neglect of mounting immigration problems, even as these problems
place unbearable burdens on states like california. it is her credible that states have reached a point where the only avenue they have for justice is the courts." two years after he brought that, congress actually stepped up and did their job. they issued something that tightened immigration. 19 years after he wrote this, in 2013, 82% of every illegal migrant entering the united states was detained. not the 100% standard congress set, but pretty darn close. the law was enforced. i have no doubt, depending on the will of the american people, that we can get back to a point like that. >> on that upbeat note, we will end this today. thank you to all the speakers. thanks to all of you for coming in. we will have a video of this if you want to tune in later and a transcript on our website at cis.org. go there. you can sign up for email lists.
you can subscribe to our podcasts as well. thank you, gentlemen. we will do another one of these when there was another bunch of supreme court cases to talk about. thank you. [applause] >> that is true. they will. [applause] [indiscernible chatter] [captions copyright national cable satellite corp. 2022] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [indiscernible chatter]
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