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Shop NowOne of the main reasons Democrats wanted to get a new SCOTUS justice named by Biden was to ensure they got their way in some key agenda issues, such as immigration.
I have to say, I was rather impressed with the grilling that Justice Jackson gave the DOJ during the recent hearing on expelling illegal immigrants with criminal records.
It surely did not go how Biden had envisioned.
Going Rogue
Arguments were being heard over the administration’s interpretation of an immigration law that expels criminal illegal immigrants.
Mayorkas has re-interpreted the law to look at the “totality” of an illegal immigrant’s threat to public safety rather than immediate deportation, as the law requires.
This ruling will only impact about 80,000 illegals but more importantly, it would be a crushing blow to prove that Biden is overstepping his boundaries here.
Solicitor General Elizabeth Prelogar got roasted by Justice Jackson, who stated, “The conceptual problem that I’m having with your argument [is] you point to text, context and history, and I understand those things, but ordinarily, there’s a symmetry between a claim that has been made in a case and the remedy that is provided to a successful plaintiff.
“The way that you are reading this actually creates a disconnect for me.
“Here’s what I mean: It is clear that the claim under the APA is about the manner in which the agency has exercised its discretion. And we know that agencies have no inherent authority. They get all of their power to make valid and legally binding policies from Congress. And Congress has said in the APA that in order to make valid and legally binding policies, agencies have to follow certain procedures.
“So when a plaintiff is making a claim under the APA, they’re complaining about the agency’s failure to follow the procedures that are necessary in order to reach a valid and legally binding result. Given that that’s the case, I think there’s a disconnect to say that the successful plaintiff only gets a remedy that is about the application of that rule to them.
“Their complaint is that the agency did not have the authority to do what it did because it didn’t follow the procedures under the APA.
“It is as though they’re saying what the agency did is void … because they did not follow the procedures that Congress required. So I just don’t even understand — setting aside, like, how you read the statute to get to that result — it seems to me to not make sense to say that the remedy is to allow the agency to apply its void, defective rule to anyone else who’s not the plaintiff.”
Prelogar tried to argue back, stating, “So Justice Jackson, I think where I disagree with your analysis isn’t suggesting that a plaintiff in a case isn’t protesting the application of the invalid agency regulation to that party. That’s the very nature of this kind of dispute. Now, it might be the case that the argument they’re making is —.”
But Jackson cut her right off, arguing, “I’m sorry, it’s not the nature because obviously they are saying it was applied to them as a matter of standing. You have to have it applied to you in order to make the charge.
“But the claim is that the agency has failed to have notice and comment where it was required, or the agency has engaged in arbitrary and capricious decision-making. And if that’s true, what it means is that the agency does not have any valid exercise of its discretion per Congress’ requirements.
“That result then is that the agency doesn’t have a rule that it can apply.
“If the court were to find in a contracts case that the contract is void because it wasn’t properly formed, you know, the result is not you can apply it to whomever, just not the plaintiff standing there. It’s not a thing anymore. And that’s to me what the statute says — you set it aside because you haven’t formed it properly and consistently with what Congress has said.”
Prelogar countered, “I certainly acknowledge that when a plaintiff is challenging the agency’s decision-making, their legal theory could suggest that the agency regulation is invalid in all of its applications and as applied to other parties too.
“But I still think that in that case, just like in the case of interpreting a statute, the proper remedy is the party-specific relief.”
Jackson got the last word, concluding, “But we don’t have — the APA is a different kind of claim. It’s not — the statutory claim is not about Congress’ authority to make the policy decision. Did they follow the right procedures in making it?”
Does this mean she will vote against the administration on this issue? Absolutely not, but at least there is some hope that she will not be an automatic rubber stamp as the other liberal justices have proven to be.
Source: New York Post
