WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a brief in the Supreme Court on behalf of Kansas and other states asking for review of a case where the Ninth Circuit denied invention by the States to defend an administrative rule that discourages aliens from crossing the border surreptitiously.
The States sought to intervene after the Biden Administration abruptly stopped defending one of the few pro-enforcement rules it has issued—a rule denying asylum to aliens who cross the southern border unlawfully. Instead of defending the rule, the administration suddenly announced it is pursuing settlement talks with the activist plaintiffs in these cases.
If such a settlement is reached and approved by the Ninth Circuit, it will result in a “consent decree,” in which the court will sanction the terms of settlement as orders binding on the parties indefinitely. Since one of the parties is the United States, those terms, even if drafted by anti-borders activist attorneys, will control the actions of future administrations, even pro-enforcement administrations. In these circumstances, a strong version of the rule may be impossible to resurrect.
To stop that, the States moved to intervene in the case to defend the rule and participate in any settlement. But the Ninth Court, over a dissenting opinion, denied the States motion to intervene because the majority determined that the States lack a protectable interest in the enforcement of immigration policies.
As IRLI shows in its brief, certiorari, a higher court review of the case, is warranted because contrary to the Ninth Circuit, the States have a strong quasi-sovereign interest in the faithful enforcement of federal immigration law that would be harmed if the rule is weakened or effectively rescinded via settlement with nominally opposing parties. IRLI also shows that the Ninth Circuit misconstrued the Court’s decision in United States v. Texas, 599 U.S. 670 (2023), which turned upon the unavailability of relief sought and not upon the lack of a legally protected interest in the faithful enforcement of federal immigration law.
The Supreme Court has expressed interest in addressing the practice of sue and settle or “rulemaking-by-collective-acquiescence,” Arizona v. City & Cnty. of S.F., Cal., 596 U.S. 763, 766 (2022) (Roberts, C.J., concurring in dismissal of the writ of certiorari as improvidently granted).
“The Biden Administration has done incalculable damage to our border security, now they are trying to compound their sabotage by limiting future administrations’ ability to repair the damage” said Dale L. Wilcox, executive director and general counsel of IRLI. “Sue and settle is an abusive practice that seeks to rule the country via court orders that are not required by the law, but just echo the parties’ wishes, no matter what the voters may think about it. We hope the High Court checks this practice here, and allows this rule to be defended in court.”
The case is Kansas v. Mayorkas, No. 23-1353 (S. Ct.).
