What good is a court if it can’t stop the government from breaking the law? And what good is a right if the courts are not allowed to enforce it? After the Supreme Court’s 6-3 decision, written by Justice Sameul Alito , in Garland v. Gonzalez on Monday, these are the questions that immigrant rights advocates are now asking themselves.
For immigrants, 1996 is an infamous year. After a series of immigrant rights victories in court, a “tough-on-crime” Congress decided to crack down hard on immigrants and their ability to vindicate their rights in court. The “Illegal Immigration Reform and Immigrant Responsibility Act of 1996” (IIRIRA) not only supercharged the government’s deportation powers, but it also stripped federal courts of jurisdiction to hear a wide variety of immigrant rights lawsuits.
In the 25 years after IIRIRA passed, federal judiciaries around the country—including the Supreme Court—construed these “jurisdiction-stripping” provisions narrowly. Courts have long held that if Congress wants to deny people a day in court, it cannot do so ambiguously; it must write a law with no other possible interpretation. That’s because courts not only want to preserve their own powers, but they also want to ensure that as few people as possible are denied a chance to seek justice in court. That allowed many of the lawsuits brought against the Trump administration to come to fruition, halting Stephen Miller, Jeff Sessions, and Chad Wolf from carrying out some of their most egregious abuses.
But starting in 2020 with a case called Thuraissigiam, the Supreme Court’s newly emboldened far-right majority began widening the reach of these jurisdiction-stripping provisions. Monday’s decision is the latest in this trend. And within weeks, a decision in the Remain in Mexico case, in which the Supreme Court is considering whether the Biden administration can dismiss a Trump-era policy that forces immigrants to wait in Mexico while their case resolves in immigration court, may expand the laws even further to kill more immigration-related lawsuits.
Garland v. Gonzalez concerned the reach of Section 1252(f)(1) of the Immigration and Nationality Act (INA), which strips every federal court but the Supreme Court of the authority to “enjoin or restrain the operation” of most immigration enforcement laws, except in lawsuits brought by individual immigrants suing to protect themselves.
Despite this seemingly harsh language, since 1996 courts generally permitted lawsuits which sought to toss aside an illegal policy or ensure immigrants received the rights they are entitled to under law. Judges at all levels reasoned that enforcing a law was not the same thing as “enjoin[ing] or restrain[ing] the operation” of a law. This interpretation allowed lawsuits to move forward if they were seeking to halt the government’s illegal conduct, but not if they required the government to do more than the minimum required by law.
Writing for the 6-3 Court in Gonzalez, Justice Alito dismissed these arguments completely, declaring that even if the lawsuit only sought to require the government to follow the law, a court could not issue an injunction blocking an unlawful policy. In Justice Alito’s reckoning, even when ICE is breaking the law, it is still “operating” the law, meaning that a court stepping in to order ICE to follow the law would be a forbidden “restraint” of the “unlawful operation” of the law. As a result, the decision leaves federal courts with diminished powers to correct even the most outrageously unlawful conduct of immigration enforcement agencies. And that means that anyone who can’t file an “individual” lawsuit may end up deported or otherwise harmed while a case makes its way to the Supreme Court.
While the decision will be felt most harshly on immigrants seeking to vindicate their rights, it will also affect many cases brought by Republican attorneys general against the Biden administration. For example, the Remain in Mexico case is now on death’s door, because the 5th Circuit ruled that Section 1252(f)(1) didn’t block the lawsuit for the exact reason that Justice Alito dismissed in Gonzalez. Similarly, lawsuits brought by Texas and other states to block the Biden administration’s new asylum process may run aground on the shoals of this new decision.
As a result, during the Biden administration, Gonzalez may end up helping preserve some pro-immigrant policies. But under a future president with a more anti-immigrant intent, Gonzalez may lead to an unchecked ICE and a powerless judiciary. And while advocates and courts alike will likely find some new ways to keep the courthouse doors open in extreme circumstances, there is no debate that yesterday’s decision makes that all substantially harder.
At the same time, there are some key limitations on the ruling. The decision does not address whether “declaratory” relief, where a judge rules that a particular policy is illegal but does not issue a court order to stop it, would be blocked under the law. The court is set to decide that question in the Remain in Mexico case in the next few weeks.
It is also still an open question as to whether a court can get around this strict bar when it “vacates” or “sets aside” a regulation or policy under the Administrative Procedure Act, which guides the process by which federal agencies develop and implement new regulations and policies. A decision last Friday by a federal judge in Texas to block the Biden administration’s immigration enforcement priorities was issued that way, avoiding an injunction. But just hours after the Supreme Court decided Gonzalez, the DOJ asked the court to temporarily halt its decision, arguing that a “vacatur” is just as unlawful as an injunction under 1252(f)(1) because it is a “restraint” on the operation of immigration enforcement. As a result, that question too may be decided soon.
Despite these narrow paths forward, there is no doubt that for many immigrants, this decision slams the door on the possibility of systematic change. Class-action lawsuits brought by detained immigrants have done things like protecting medically vulnerable immigrants from catching COVID in ICE detention, or ensuring that immigrants with mental disabilities are not required to face deportation without safeguards. These new restrictions could make similar lawsuits even more difficult to win in the future—regardless of whether a Biden or a Trump oversees ICE.
Even though IIRIRA has been on the books for 25 years, Gonzalez shows that it can still get worse. But importantly, what Congress takes away, Congress can restore. In a time when the nation is still working to fix the legislative mistakes of the 1990s, Congress should ensure that the judiciary is allowed to carry out its constitutional role and that immigrants are not turned away from the courthouse doors.