This Should Spell The End Of That Judge Tipton-Led Bit Of Judicial Activism In Texas...

The latest federal brief (as filed tonight, on USDC Judge Bruce Drew Tipton's docket) makes a very-muscular argument that this case needs to die -- by quoting the Fifth Circuit opinion we discussed last week, back to the trial court Judge -- and suggesting the Biden Administration priorities now being set are not reviewable, until final. And they are not yet. . . final.

In sum, there is "no case or controversy", in the language of Ex parte McCardle. Sweet:

. . .Regardless, discovery is particularly inappropriate in this case in light of the Fifth Circuit’s recent conclusion that the Department of Homeland Security’s (“DHS’s”) immigration enforcement determinations are committed to DHS’s discretion and are not subject to judicial review. See Texas v. United States, --- F.4th ---, 2021 WL 4188102 (5th Cir. Sept. 15, 2021) (“CA5 Stay Op.”). In fact, the Fifth Circuit Court found “it is instructive that the Supreme Court has never allowed judicial oversight of such decisions” because decisions about “who to arrest and charge,” are matters “committed to law enforcement discretion.” Id. at *4 n. 4 (5th Cir. Sept. 15, 2021); see also id. at *5 (noting that it did “not see a strong justification for concluding that the [Illegal Immigration Reform and Immigration Responsibility Act] detention statutes override the deep rooted tradition of enforcement discretion when it comes to decisions that occur before detention, such as who should be subject to arrest, detainers, and removal proceedings”). . . .

“‘Without jurisdiction the court cannot proceed at all in any cause.’” Steel Co. v. Citizens for Better Envt., 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514 (1869)). The same principle applies when claims are barred by threshold questions, such as when the challenged agency action is committed to agency discretion and therefore not subject to judicial review. See 5 U.S.C. § 701(a)(2); cf. In re United States, 138 S. Ct. 443 (2017) (per curiam) (instructing district court to resolve threshold questions before requiring government to compile administrative record). A court must therefore consider the threshold questions before addressing the merits of a claim, including discovery. Here, because Plaintiffs cannot overcome numerous threshold limitations, discovery is improper. . . .

Now you know. This one is dying on the vine. . . and I, for one, am. . . grinning.

नमस्ते