Just A Brief Memo Of Law, On The "Substance" Of Why Judge Moses Would Be Wrong To Grant Texas What It Wants...

Ahem. Congress has put certain specific matters pertaining to immigration enforcement beyond the reach of state court review (and it did so, by statutes signed by the President, ones unchallenged as to their validity, for at least two decades).

These same statutes put 8 USC § 1252(f)(1) even beyond the reach of lower federal courts, when the claim is a violation of the Administrative Procedures Act (that would try to change the way the feds either apprehend or release certain migrants). In sum, the state is not allowed to tell the CBP agents how to do their jobs.

The State of Texas, and USDC Judge Alia Moses. . . cannot escape that fact. It is. . . a fact. And so, there can be no injunction against CBP removing razor wire to the extent it endangers either CBP officers and agents, or the migrants themselves. This point is made quite cogently, and forcefully -- by CBP, in a 27 page memo of law to supplement Judge Moses' record down in Del Rio, Texas this afternoon, thus:

. . .Congress has withdrawn lower courts’ authority to grant the relief Texas seeks, even if Texas’s APA claims were meritorious, which they are not. Specifically, except in circumstances inapplicable here, Congress has specified that “[r]egardless of the nature of the action or claim or of the identity of the party or parties bringing the action,” no lower federal courts “shall have jurisdiction or authority to enjoin or restrain the operation of [8 U.S.C. § 1225],” among other INA provisions. 8 U.S.C. § 1252(f)(1). The Supreme Court has held that this bar applies even when the challenged “operation” of the INA is alleged to be “illegal” or “improper,” as long as “in the Government’s view [the actions] are allowed by § [1225].” Garland v. Aleman Gonzalez, 596 U.S. 543, 551 (2022) (parentheses omitted). Texas cannot rely on the APA to circumvent this express bar on the relief it seeks; were it otherwise, the bar would be rendered a nullity. . . .

Even if Texas could overcome these threshold hurdles, its APA claims have no merit. First, its claims that Border Patrol exceeded its statutory authorities or acted ultra vires are unlikely to succeed because Border Patrol undoubtedly has the authority to remove impediments to its execution of federal immigration laws. Congress has charged the Department of Homeland Security, including its subagency U.S. Customs and Border Protection, with protecting the border and apprehending and inspecting unlawful entrants. Border Patrol has authority to interrogate and arrest noncitizens entering between ports of entry and to enter land near the border to carry out that mission. As Texas’s own witness acknowledged, that authority includes the ability to break through barriers, such as gates or locks, when agents judge it necessary. Concertina wire belonging to Texas (or anyone else) is no different. . . .

So -- when we get right down to it, Judge Moses cannot grant an injunction in favor of the State of Texas, as to a matter Texas is not even allowed to bring before her bench in the first place.

Onward, to next Monday. Be excellent to one another! Out, for airport runs!

नमस्ते