Blue cities ask SCOTUS to rescue Biden-era immigration rule from backdoor deal

Democratic-led cities pushed back after Texas successfully squashed a longstanding immigration practice through a one-day lawsuit against the federal government.WASHINGTON (CN) — A group of Democratic-led cities called for the Supreme Court on Thursday to disrupt a deal between Texas and the Trump administration ending a longstanding immigration practice through friendly litigation.The cities say a Texas judge ignored their request to defend the Biden-era rule and instead rushed to approve an agreement between Texas and the Department of Justice terminating the policy. They urged the Supreme Court to step in, warning against allowing the case to become an example for leveraging court rulings to achieve desired policy without the necessary review process.“As long as this judgment serves as a viable template, this court’s holding that agencies must ‘use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance’ will be effectively a dead letter,” the cities wrote.At issue is a 2024 rule codifying a longstanding practice allowing immigration judges to temporarily pause removal proceedings under certain conditions. The practice known as administrative closure could be used when an individual was pursuing protections through the U.S. Citizenship and Immigration Services. And advocates say it often helped law enforcement secure cooperation from immigrant crime victims and witnesses.Two years after the rule was adopted by the Executive Office for Immigration Review, Texas filed a lawsuit claiming the policy exceeded the agency’s authority. And the Lone Star State argued it allowed individuals without legal status to remain in the U.S. indefinitely.Hours after the lawsuit was filed, Texas and the Department of Justice jointly asked the lower court to declare the 2024 rule unlawful and vacate it. They also request that the court prevent the Justice Department from enforcing the rule or enacting similar regulations in the future.Later that day, Chief U.S. District Judge Reed O’Connor, a George W. Bush appointee in the Northern District of Texas, agreed to eliminate the 2024 rule nationwide and permanently restricted the federal government from adopting similar protections in the future.Legal services provider Centro Legal de la Raza moved to intervene along with the cities of Baltimore, Maryland, Columbus, Ohio, and New Haven, Connecticut. The cities said if the judgment were to result in more deportations of noncitizens as Texas suggested, it would harm their revenue because their taxpayers would be deported.Centro Legal de la Raza, which represents immigrants facing removal proceedings, said the judgment imposed substantial uncompensated legal work on the group.Under what is known as rulemaking-by-collusive acquiescence, a new administration that is hostile to a regulation by its predecessor can leverage litigation brought by a friendly party to circumvent the Administrative Procedure Act’s requirements. The cities and Centro Legal de la Raza said this case represents an “egregious new extension of this phenomenon.”“The government did not merely leverage a convenient loss to undo agency action, but rather, announced in advance that it would not defend a disfavored regulation and then colluded with the challenger from the moment that suit was filed,” the cities wrote. “The result is that a significant regulation that established certain important procedures in immigration courts was erased over the course of a single day, without meaningful judicial review, public participation or adherence to the APA’s rulemaking requirements.”In 2021, the Supreme Court attempted to answer whether interested states could intervene in similar cases where the federal government refused to defend its own rule, but the appeal was dismissed due to another change in administration.The cities urged the justices to use their case to address these litigation tactics, noting that the practice of regulatory repeal by acquiescence has become increasingly common and effective. They said the “egregious collusion” in Texas’ case made it a compelling candidate for the court’s review.“Texas sued more than two years after the rule was issued and only after the federal government announced that it ‘could not — and will not — defend’ the rule ‘against legal challenge,’” the cities wrote. “On the day Texas sued in the Wichita Falls Division of the Northern District of Texas, the parties jointly asked the sole district judge assigned to that division for identical relief.”The cities also noted that the Justice Department didn’t challenge Texas’ standing even though the state’s theory of injury was similar to the arguments the Supreme Court recently rejected in a different case the federal government brought against the Lone Star State. And the Justice Department asked for a permanent injunction preventing future administrations from reinstituting the policy even though the government has previously acknowledged the harms of indefinitely binding future administrations.“DOJ’s abandonment of the defenses it ordinarily presses confirms the absence of a genuine controversy,” the cities wrote.The Supreme Court did not immediately respond to the cities’ application.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads