Tomorrow, #SCOTUS will hear United States v. Texas. Yesterday I talked about the stakes for immigrants. Today I'm going to explain how this case could also reshape the legal landscape and make it much harder—or much easier, depending on outcome—to overturn federal actions.🧵
First, #SCOTUS will have to decide if TX & LA have "standing" to sue to block the priorities. A decade ago, it was rare for states to sue to overturn federal policies. Now it's common. CA sued Trump 122 times. TX has sued Biden 30+ times. This case could end that.
/3
The recent explosion of state lawsuits is often traced back to Texas's lawsuit blocking DAPA (the program for parents of DACA grantees). Courts said Texas was "injured" because it had to issue drivers licenses to people granted DAPA—and thus could sue to overturn the program.
/4
In tomorrow's case, Texas' argument is even more attenuated than drivers licenses. They argue that because some people in Texas may not be deported under the priorities, Texas is injured because those people might end up using some state resources at some point in the future.
/5
Until now, courts generally refuse to say that a state is "injured" when a federal policy has only indirect effects on the state—exactly what Texas alleges here.
As DOJ says, if #SCOTUS upholds this theory of standing, state AGs would get a greenlight to sue over anything.
/6
As DOJ explains, our system of government wasn't designed for the torrent of state lawsuits a decision in Texas' favor could unleash.
Throughout history, states didn't go straight to court if they disagreed with the President—and our country would be different if they could.
/7
If #SCOTUS finds that Texas has standing to bring this lawsuit, then expect even MORE states suing to block things like student loan forgiveness or immigration policies.
But that's not the only big legal impact that this case could have! There's actually ANOTHER big issue!
/8
The third big question that #SCOTUS will hear tomorrow is whether federal courts can use the Administrative Procedure Act (APA) to overturn entire federal policies/regulations in one go—"vacating" a policy.
Judges have done this for years. But SCOTUS may now impose limits.
/9
In this case, Judge Tipton "vacated" the enforcement priorities, wiping them out nationwide. But the DOJ says he shouldn't be allowed to do that, arguing that judges can't "vacate" entire rules.
If #SCOTUS agrees with DOJ, it could make suing the government much harder.
/10
Why does that matter? In a world where plaintiffs judges can't "vacate" federal policies under the Administrative Procedure Act, it suddenly becomes a lot harder to stop someone like Trump from wielding the federal gov to do his bidding, even if the law is being broken.
/11
To give you a sense of why this remedy matters so much, under Trump judges "vacated" dozens of policies under the APA, including:
- Nearly every Trump immigration policy
- Rollbacks of prior environmental protections
- A rule that would have cut 700,000 people from SNAP
/12
So if #SCOTUS decides that judges can't vacate entire policies under the Administrative Procedure Act as they've been doing for decades, it could mean that litigators have to struggle to find new ways to get the courts to step in to overturn unlawful policies. A big deal.
/13
Even if #SCOTUS disagrees with DOJ and allows judges to keep vacating policies under the APA, it may still block Tipton's order anyway on procedural grounds.
That's due to a case issued last term which harshly enforced a 1996 limitation on judges.
In Garland v. Gonzales, the Supreme Court held that judges may not issue injunctions against certain immigration enforcement policies. But it left open the question of whether judges could still "vacate" those policies. Now it'll decide that issue. slate.com/news-and-polit…
/15
If the Supreme Court holds that federal judges may neither enjoin unlawful immigration enforcement policies nor vacate them under the APA, that leaves extremely few options for immigrants to go to court to stop the government from acting illegally—a big blow to civil rights.
/16
So there you have it. Not only will United States v. Texas potentially have big ramifications for immigration enforcement, but it could reshape how states and private parties sue the government for generations going forward.
In other words, it could be a big, big case!
• • •
Missing some Tweet in this thread? You can try to
force a refresh
Over a month since construction began, there is still a near-complete media blackout (except for Fox News) on Ducey's illegal shipping container border wall built in a national forest.
Not a single article in the NYTimes, Wash. Post, CNN, Axios, NBC, CBS, ABC, PBS, NPR, etc...
This is a HUGE construction project, built smack dab in the middle of a federal wildlife refuge and in direct defiance of the federal government. It's costing Arizona taxpayers large sums. And yet the national news media is completely asleep at the wheel.
It's not like this is going to suddenly go away when Katie Hobbs takes office. At the rate construction is going, there may be TEN MILES of this disaster built when Ducey leaves. Again, why is the national media sleeping on this illegal monstrosity?
This Tuesday, #SCOTUS will hear United States v Texas. It may become one of the most consequential immigration cases of all time—less because of its direct impact and more because of the precedential shrapnel the Court might produce. Here's a 🧵 on one of the biggest stakes:
1/
US v. Texas could lead to:
1) ICE being forced to supercharge detention and deportation. 2) States getting a greenlight to constantly sue the feds. 3) Federal courts losing key abilities to block illegal policies.
Tonight I'm focusing on the first one. Stay tuned for 2 & 3.
2/
The background to United States v. Texas begins with acknowledging a core reality for law enforcement agencies; you can't get everyone.
🚨This is massive! Judge Sullivan, in the ACLU's "Huisha-Huisha" lawsuit, vacated Title 42 entirely, granting the ACLU partial summary judgment and holding that the policy was arbitrary and capricious under the APA. He also refuses to grant a stay.
Judge Sullivan finds that Title 42 is arbitrary and capricious for multiple reasons. I'll go through them here to explain what happened. Each may require some explanation, so bear with me as I read and digest it.
First, the ACLU argued that in 2017, the CDC had passed a regulation requiring the agency to impose the "least restrictive means necessary" when adopting disease control policies, and that the CDC violated the APA by failing to follow that regulation and not explaining why.
Larry Keefe, DeSantis's "public safety czar," worked closely with Perla Huerta. She's oversaw the process of tricking migrants onto the Martha's Vineyard flight, and unlawfully paid a migrant in cash to recruit others.
"Thank you for this opportunity and support," she wrote him.
The Florida government and Vertol Systems continue to hide documents from the Miami Herald and others.
Keefe used his personal Gmail account to coordinate the Martha's Vineyard flight for DeSantis, and Vertol is refusing to turn over text messages and other data.
In 1980, over 100,000 Cubans in boats arrived in Florida asking for asylum. Because Cuba refused to take deportations, the US had no other option but to let them remain.
Does that mean the border was "open" for Cubans? Again, I'd say no—but I suspect Cubans might have said yes.
Until 2012, the majority of people crossing the U.S.-Mexico border between ports of entry successfully made it across without being taken into custody.
Does that mean we had "open borders" until 10 years ago? Again, I'd say no, even though millions entered successfully.
What a perfect example of border fearmongering. Right-wing journalists respond to a person saying that the border isn't a lawless hellscape with "CRIME CRIME CRIME HOW DARE YOU NOT FEAR."
Border cities are some of the safest in the country. Ask yourself why they want you afraid!
You want to know who's coming across the border right now? Last year, 99.5% had ZERO prior criminal record. 99.97% had no connection to a gang. But telling the truth—that it's mostly people who just want safety and a better life—isn't scary. So they don't. nytimes.com/2022/09/18/us/…
I have literally no problem with newly-arrived immigrants being here in DC. Migrants have been arriving in the DC area for generations and they are quite literally the ones building the city, since 1/3 of all construction workers in the area have TPS.