UPDATED, @ 5 PM EST: See this email chain, just filed by DoJ, per Judge Tipton's order of this morning. Read it in chron order. You will see that involved "higher up" DHS and ICE officials immediately countermanded a woefully-errant (malevolent officer's?) misreading of Mr. Biden's Friday directives. Tucker Carlson intentionally misrepresented the gravamen of this email chain. No surprise. But for the Governor of Texas, and the AG, to make an emergency Sunday filing based on a Tucker Carlson rumor piece. . . is well-nigh. . . unprofessional. Then to double down on it, when the DoJ said in court "that's not what the emails say". . . borders on misconduct.
But now you know. End update.
Unsurprisingly, Texas lost its hearing this morning -- whole hog. No TRO.
USDC Judge Tipton is taking the matter back under advisement, after learning (unsurprisingly) that the Texas Sunday claims are based on lies, from Trucker Carlson, and no one else.
Here is the more comprehensive 23 page Biden Administration response -- and a bit that conclusively establishes that the claims of Texas Gov. Abbott, and AG Paxson are. . . DOA:
. . .Texas asserts that DHS contracted away the sovereign’s right to decide federal immigration policy by imposing a 180-day stay on federal action, pending Texas’s response to that action. Such a promise to abstain from taking a wide range of immigration-related actions until a State has exercised a 180-day comment power lies beyond the power of contract. The federal government has plenary power over the enforcement of federal immigration law and an outgoing administration cannot contract away that power for an incoming administration. See Biodiversity Assocs. v. Cables, 357 F.3d 1152, 1172 (10th Cir. 2004) (“The executive branch does not have authority to contract away the enumerated constitutional powers of Congress or its own successors. . . .”); see also United States Trust Co. v. New Jersey, 431 U.S. 1, 23 (1977) (“[T]he Contract Clause does not require a State to adhere to a contract that surrenders an essential attribute of its sovereignty”); Stone v. Mississippi, 101 U.S. 814, 817 (1880) (“[T]he legislature cannot bargain away the police power of a State.”). . . .
Further, Texas fails to identify any permissible statutory authority that contemplates DHS entering into a contract to grant states the power to delay and review agency policy decisions, and for good reason. It runs afoul of the non-delegation doctrine. U.S. Telecom Ass’n v. F.C.C., 359 F.3d 554, 565 (D.C. Cir. 2004) (“subdelegations to outside parties are assumed to be improper absent an affirmative showing of congressional authorization’). Indeed, all applicable statutes preserve federal prerogatives. For example, the Homeland Security Act vests the Secretary with responsibility for all functions of the Department, and provides that she may delegate those functions only to “any officer, employee, or organizational unit of the Department.” 6 U.S.C. § 112(b)(1). Delegations of functions to Texas, to include the power to delay DHS policies related to enforcement of federal immigration law, as the purported contract appears to provide by vesting Texas with a 180-day period to comment before an agency decision takes effect, violate this statutory limitation.The INA sets forth numerous provisions governing federal-state relations with respect to the immigration laws, see, e.g., 8 U.S.C. §§ 1103(a)(10), 1257(g), but none contemplates such extraordinary MOUs. Had Congress intended to authorize such extraordinary agreements, it certainly would have done so expressly with unmistakable clarity. See, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). The MOU is therefore unauthorized by statute. . . .
This is not even remotely. . . funny. But I am unbothered, since all it is doing is wasting court time down in Texas -- and making Abbott a laughing-stock of the competent State Governors' associations. Cheers, bub, you are. . . 21 flavors -- check that -- all kinds. . . of stupid.
नमस्ते
