The intrepid, largely insipid USDC Judge purported to hold a mini-trial last week, on all of this (as we've long explained, there is no standing here for any party suing the US government). [My last prior backgrounder, of a month ago, here.]
He purported to "try" the issue of whether (as a matter of positive law) a federal agency guidance document, allocating various factors to consider in exercising border enforcement discretion, in view of the obviously limited resources. . . could be tortured into a violation of the Constitution, by NOT prosecuting every jay walking offense the authorities happened to run across, to the maximum extent permitted by the criminal laws. I think the answer there, based on dozens of Supreme Court cases. . . is obvious. But Judge Tipton feels he needs briefs (here "post trial") on the issue, thus tonight:
. . .1. For the purpose of Final Agency Action under the Administrative Procedure Act, whether the challenged action either determines rights or obligations or produces legal consequences. [Spoiler Alert: It Does Not.]
2. The relationship between Town of Castle Rock v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005), and Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), including whether there is “some stronger indication” from Congress that “shall” under 8 U.S.C. §§ 1226(c) and 1231(a)(2) means must. [Spoiler Alert: there is none and it does not -- not in every single circumstance. It never has -- it never will, lest we decide that law enforcement generally is bereft of discretion to allocate precious resources.]
3. The difference, if any, between “custody” and “detention” under 8 U.S.C. §§ 1226 and 1231 and how that impacts the present case. [Spoiler Alert: It Does Not.]
4. Whether and how the challenged guidance is contrary to law under the APA if “shall” in 8 U.S.C. §§ 1226 and 1231 is mandatory. [Spoiler Alert: It Is Not.]
It is SO ORDERED.
Signed on March 2, 2022 [Editor's notes supplied -- by yours truly]. . . .
Now you know. Grinning. This will die an ugly death, soon enough -- but young Tipton will have his "published hard right GOP manifesto" upon which he no doubt intends to run for elected office in the State of Texas, very shortly. What a waste of the local taxpayers' money, that -- creating campaign literature on the federal dime, for an office he hasn't yet sought. Out.
नमस्ते
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