The Supreme Court is hearing arguments in an immigration case brought by Texas, Louisiana

The Supreme State is scheduled to hear hearings this month in a case brought by Texas and Louisiana over a change in Department of Homeland Security policy to bar the detention and deportation of certain violent criminal aliens and send them to the United States instead to release.

Ahead of hearings, Louisiana Attorney General Jeff Landry and Texas Attorney General Ken Paxton filed a brief with the court arguing, “Congress has not allowed agencies the freedom to follow legislative directions in the disregarding the agency-managed legal system.”

The case addresses three key issues. The first is whether Texas and Louisiana are eligible under Article III to challenge DHS policies that change enforcement of the civil immigration law. The second concerns whether the guidelines conflict with US immigration laws 8 USC § 1226(c) or 8 USC § 1231(a) and whether they violate the Administrative Procedures Act. The third concerns whether 8 USC §1252(f)(1) precludes entering an order to “deem unlawful and void” the guidelines under 5 USC §706(2).

Texas and Louisiana sued after DHS Secretary Alejandro Mayorkas issued a final memorandum, “Policies for Enforcement of Civil Immigration Law,” which drastically changed deportation policies, including restricting the issuance of detention warrants for dangerous criminal aliens.

Its latest memorandum, dated September 2021, states: “The fact that a person is a removable non-citizen should therefore not alone be the basis of an enforcement action against him. We will use our discretion and better target our enforcement resources. Justice and the well-being of our country require it.”

A federal judge in Texas ruled in favor of Texas and Louisiana in June, overturning the latest memo and prompting the government to appeal.

U.S. District Judge Drew Tipton said Mayorkas’ policies were “arbitrary and capricious, unlawful and disrespectful of procedure under the Administrative Procedures Act.” He also refused any other relief requested by the administration.

The Justice Department appealed, asking the Fifth Circuit Court of Appeals to stay Tipton’s decision. In early July, the court denied the stay pending appeal.

The DOJ then appealed to the US Supreme Court, requesting that Tipton’s sentence be stayed. She didn’t, and instead scheduled oral arguments to be heard in court later that month.

“It is hard to imagine a more dangerous and radical policy than the Biden administration’s decision to allow violent criminals to roam freely in our communities,” Paxton said in a statement. “To protect Texas communities and uphold the rule of law, I urge the U.S. Supreme Court to uphold the District Court’s ruling requiring DHS to arrest criminal illegal aliens.”

The brief highlights the district court’s earlier decision, which said, “Congress has ordered the executive branch to arrest certain criminal aliens. … When Congress directs the executive branch to act, the executive branch lacks the authority to disobey that directive. This court should uphold the district court’s finding that the Final Memorandum is prejudicial to States, illegal in substance and procedural, and must be set aside.”

In July, 19 attorneys general filed an amicus letter expressing support for Texas and Louisiana’s lawsuit, arguing that Mayorka violated federal law and DHS’s actions negatively impacted their states and the safety and well-being of Americans endangered.

By Bethany Blankley

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